National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada) v. Volkswagen Canada Inc., 1991 CanLII 6159

Ontario Labour Relations Board

[1991] OLRB Rep. December 1423

2540-90-R National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada), Applicant v. Volkswagen Canada Inc., Respondent v. Group of Employees, Objectors

BEFORE: Susan Tacon, Vice-Chair, and Board Members J. A. Ronson and C. McDonald.

APPEARANCES: B. Chercover, Wayne McKay and Michael Hinch for the applicant; Joseph Liberman, Dave Lewis and Don McQuirter for the respondent; D. Turner (from July 22rd onward), C. Katz (prior to July 22nd), Ralph Grasmeyer, Donald Gregory and Kevin Shuttleworth for the objectors.

DECISION OF THE BOARD; December 19, 1991

1. This is an application for certification in which the Board conducted an inquiry into the voluntariness of the petition filed in opposition to the application and an inquiry into a non-pay allegation. Both these issues are dealt with in further detail below. The parties did meet with a Board Officer and did resolve some matters.

2. The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act.

3. Having regard to the agreement of the parties, the Board finds that the following consti­tutes a unit of employees appropriate for collective bargaining:

all employees of the respondent in the City of Barrie save and except supervisors, persons above the rank of supervisor, office and sales staff and students employed during the school vacation period.

4. The Board is satisfied on the basis of all the evidence before it that more than fifty-five per cent of the employees of the respondent in the bargaining unit, at the time the application was made, were members of the applicant on January 9, 1991, the terminal date fixed for this applica­tion and the date which the Board determines, under section 103(2)(j) of the Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act.

5. As noted, a statement of desire (or "petition") in opposition to the application was filed with the Board. Given the number of persons signing that petition who had previously signed membership applications, the Board commenced an inquiry into the voluntariness of the petition as, if that petition was proved voluntary, the Board would generally exercise its discretion to direct that a representation vote be held notwithstanding the level of membership support enjoyed by the applicant.

6. The proceedings involved over twenty days of hearing in which some twenty-six witnesses testified. Documentary material was introduced in evidence and, as well, the Board took a view of the plant. The Board has considered the credibility of the witnesses according to the usual factors. In reaching its findings of fact, the Board has weighed and assessed the viva voce evidence, including the relative credibility of the witnesses, in the context of the documentary material and what is reasonably probable in the circumstances. In the Board's view, given the Board's assess­ment of the circumstances in which the petition was circulated, it would not serve the parties well nor is it necessary for the Board's decision herein to contain an exposition of the facts in great detail nor to resolve every minor discrepancy in the testimony as between witnesses or every minor inconsistency in a particular wiTriess's testimony. The Board intends to sketch only its most rele­vant factual findings. Except as noted, the Board regards the witnesses as, for the most part, sin­cerely trying to give evidence about events occurring some months earlier and to resist the influ­ence of self-interest to tailor that evidence.

7. The Board must comment on the testimony of four witnesses called by the applicant, namely, R. Kerr, J. Sauder, C. Ingram and J. Alksnis. Notwithstanding a Board order excluding witnesses in which the Board cautioned potential witnesses that they must not discuss their evi­dence with other persons whom they knew would be or might be witnesses, the four acknowledged in cross-examination that such discussions had taken place following the Board's direction, includ­ing on the evening prior to their giving evidence. The parties addressed that issue in argument. The Board regards this as a serious matter. Such directions are given by the Board, when requested by a party, to ensure as far as possible that the best evidence, untainted by tailoring or even innocent reconstruction of events, is before the Board. Violation of such a Board direction in effect under­mines the integrity of the adjudication process. In the circumstances, the testimony of the four is so weakened that its probative value is negligible and that testimony is discounted.

8. The Board first deals with the non-pay allegation with respect to the facts, the argument and the decision, and then does likewise with regard to the petition. It is useful to note that, in view of the number of witnesses and days of hearing, the Board directed each party to file with the Board (and copy to the other parties), by a specified date following the conclusion of the evidence, what was referred to as a "factual distillation". That is, the parties filed a written account of the facts which each asserted the Board should find on the evidence, including their assertions as to credibility. The Board then heard the parties' oral representations on the jurisprudence and the relationship between the instant (asserted) facts and that jurisprudence. In the Board's opinion, this process facilitated those representations. Further, the submissions could more readily focus on the relationship between the asserted facts and the jurisprudence as the Board (and the other par­ties) had the opportunity to review each party's view of the facts. In the decision, the Board merely presents a highly condensed summary of the able and thorough submissions of counsel.

THE NON-PAY ALLEGATION

9. The Board summonsed four witnesses with respect to the allegation that Mike Bertram did not pay one dollar in connection with his application for membership in the union (the "CAW").

10. Mike Bertram testified that he did not pay the one dollar fee when he completed the application for membership although he conceded he signed the union card in the portion acknowl­edging payment of that fee. Bertram named Laird Shaughnessy as the card collector although Larry Eadie's name appeared as collector on the card itself. Bertram testified that no one but Shaughnessy was present at the time the card was collected.

11. Shaughnessy stated that he recalled talking to Bertram about the union but could not remember whether he had collected a card from Bertram. Shaughnessy testified that his role in the union organizing campaign was minimal; he spoke with a number of individuals about the CAW but actually collected only one or two cards. Shaughnessy's knowledge of the organizing process and card collection requirements stemmed from his involvement in organizing an employees' asso­ciation some years ago. His best recollection, albeit of a general nature, was that he would have collected the one dollar fee for cards, as that was required. The Board confirmed to the parties that Shaughnessy's name appeared as collector on only one card of those submitted to the Board by the CAW in support of their certification application.

12. Eadie testified that he had been given instructions as to the requirements for collecting cards. He, too, had only been minimally involved in collecting cards and, indeed, stated he later signed the petition opposing certification. The Board confirmed to the parties that Eadie's name appeared as collector on five cards, including that of Bertram. Eadie had no specific recollection of collecting Bertram's card but repeatedly stated his conviction that he must have received the one dollar fee, as indicated on the face of the card, because he had collected cards "legally".

13. Wayne McKay, the CAW official responsible for coordinating the organizing drive, tes­tified about the instructions given to collectors directly by him and/or through the main in-plant organizer. McKay also testified as to his detailed questioning of Eadie and Shaughnessy with respect to the cards each collected, reviewing specifically in regard to each card, that the collector had collected the one dollar fee and that the collector shown on the card was the actual collector of that card. McKay stated that one Eadie's cards submitted initially (Shaughnessy's card) contained an error and that card was returned to Eadie to be corrected. When that correction was not forth­coming, McKay eventually personally collected a new card properly completed for Shaughnessy. McKay recalls specifically asking Eadie about Bertram's card because McKay was unsure of Ber­tram's first name as shown on the card.

14. In argument, each counsel reviewed the evidence and the jurisprudence in support of their respective positions. Counsel for the employee objectors submitted that the evidence in con­nection with Bertram's card brought the validity of the Form 9 into question to the point where all the membership evidence was under a cloud and the application for certification should be dis­missed. Counsel for the company, while indicating that there was no suggestion that McKay was involved in any fraud on the Board, also argued that the union must be held responsible for the non-pay and the certification application should be dismissed. In the alternative, counsel asserted that all of the cards submitted by Shaughnessy and Eadie should be discounted. Counsel for the union contended there was no basis on the evidence to impugn the integrity of the Form 9 and, consequently, opposed the outright dismissal of the application. With respect to the specific non-pay allegation regarding Bertram's card, counsel submitted the evidence was equivocal and the Board could rely on the face of the card to conclude Bertram did pay the one dollar but, at most, that card alone should be discounted.

15. The jurisprudence was not disputed by the parties, although they differed as to where the instant facts properly fell. In a number of cases, the Board has dealt with non-pay allegations and differentiated between irregularities in the collection of membership evidence committed by union officials versus in-plant organizers, and has set out these standards required of Form 9 declarants: Pebra Peterborough Inc., [1988] OLRB Rep. Jan. 76; The Watson Manufacturing Com­pany of Paris Limited, [1967] OLRB Rep. Dec. 862; Laidlaw Wire of Canada Ltd., [1985] OLRB Rep. Oct. 1479; Dough Delight Ltd., [1986] OLRB Rep. May 603; Belair Restoration (Ontario) Inc., [1987] OLRB Rep. Feb. 183; Crock & Block Restaurant and Tavern, [1980] OLRB Rep. Apr. 424; Daltons (1834) Limited, [1982] OLRB Rep. April 567; Olympia Floor & Wall Tile Company, [1987] OLRB Rep. May 762; Kitchener News Company Limited, [1980] OLRB Rep. Nov. 1656; Webster Air Equipment Company (1958), 58 CLLC ¶18,110; Colling Shipyards, Divi­sion of Canadian Shipbuilding & Engineering Ltd. et. al. (1967), 67 CLLC ¶16,017; Lilo-Rail of Canada Limited, [1983] OLRB Rep. May 672; Dominion General Manufacturing Limited, [1985] OLRB Rep. Aug. 1187. The thrust of the caselaw is that the Board must be assured of the highest standards of integrity with respect to the membership evidence given its hearsay nature. The conse­quences for failing to comply with those standards reflect, in appropriate proportion, the serious­ness of the lapse, ranging from an isolated bona fide loan by an inexperienced in-plant collector to a failure by the Form 9 declarant to make the requisite enquiries. The latter example is the most serious and leads to the dismissal of the application on the ground that the Board cannot rely on any of the membership evidence filed in support of the application.

16. In the instant case, the Board need not conclusively determine the issue as to whether Bertram did or did not pay the one dollar fee, as indicated on the face of the union card and signed by Bertram. The Board is fully satisfied that the evidence clearly establishes that McKay, as Form 9 declarant, conducted the thorough enquiry necessary in filing that document. The Board is fully satisfied that the Form 9 is reliable. This conclusion would hold whether or not the Board found that Bertram had not paid the one dollar fee. That is, at its highest, were the Board to find the non-pay allegation was sustained, the Board would do no more than discount all of the cards col­lected by Eadie and Shaughnessy. This would still leave the applicant in a certifiable position with­out the necessity of a vote, pending the outcome of the Board's enquiry into the voluntariness of the petition. Even if the non-pay allegation was upheld (and, as noted, the Board need not make that determination), the irregularity was of a nature that only Eadie (and perhaps Shaughnessy) were culpable and that irregularity was concealed from McKay despite his careful enquiries. The Board's jurisprudence properly does not hold the union at risk of the dismissal of its application in such circumstances.

17. For these reasons, then, the Board would not dismiss the certification application on the basis of the non-pay allegation and proceeds to deal with the petition.

THE PETITION ENQUIRY

18. The Board considers it appropriate to first outline the parties' positions. All counsel reviewed the evidence in the context of the jurisprudence. The principles enunciated in the caselaw were not in dispute and the cases referred to covered a wide variety of circumstances in which the Board has considered the voluntariness of the petitions. Cases cited by counsel included: F. W. Woolworth Co. Limited, [1982] OLRB Rep. May 797; Parker's Dye Works & Cleaners Limited, Toronto, [1974] OLRB Rep. Dec. 859; Willow Manufacturing Company Limited, [1980] OLRB Rep. July 1131; Autotube Limited, [1984] OLRB Rep. Mar. 400; Elgin Handles Limited; [1987] OLRB Rep. Apr. 496; Pyrotenax of Canada Ltd., Trenton (1960), 60 CLLC ¶16,170; Radio Shack, [1978] OLRB Rep. Nov. 1043; Pigott Motors (1961) Ltd. (1963), 63 CLLC Dec. ¶16,264; Baltimore Aircoil Interamerican Corporation, [1982] OLRB Rep. Oct. 1387; Picker International Canada Inc. [Unreported, Board File 1762-88-R, Dec. 19, 1988]; Chapleau Forest Products Limited, [Unreported, Board File 1062-90-R, Dec. 14, 1990]; Markham Hydro Electric Commission, [1984] OLRB Rep. Oct. 1481; Nichiran Inc., [Unreported, Board File 2200-90-R, Sept. 26, 1991]; Leamington Vegetable Growers' Co-operative Limited Operating as, G. Smith Produce Company, [1974] OLRB Rep. June 402; Ontario Hospital Association (Blue Cross), [1980] OLRB Rep. Dec. 1759; VME Equipment of Canada Ltd., [Unreported, Board File 2372-86-R, July 8, 1987]; Linread Canada Limited (1965), 65 CLLC July ¶16,050; Morgan Adhesives of Canada Limited, [1975] OLRB Rep. Nov. 813; Thornton Sand & Gravel Limited, [1987] OLRB Rep. Oct. 1331; Lyman Tube, [1980] OLRB Rep. Oct. 1472; Universal Cooler, a Division of Sno­Boy Coolers Limited, [1967] OLRB Rep. Sept. 546; Dad's Cookies Ltd., [1976] OLRB Rep. Sept. 545; Canada Dry Bottling Company Ltd., [1987] OLRB Rep. March 337; Mac-Wood Machine Limited, [1975] OLRB Rep. Nov. 842; Vered & Harvey Company Limited known as Almont Hotel, [1971] OLRB Rep. Nov. 736; Formosa Spring Brewery, [1974] OLRB Rep. Sept. 604; Buntin Reid Paper, [1983] OLRB Rep. April 487; Browning - Ferris Industries, [1982] OLRB Rep. June 816; Minnova Inc., [1991] OLRB Rep. May 644; Cooper Corrugated Containers Ltd., [1983] OLRB Rep. Nov. 1986.

19. Counsel for the employee objectors argued that the evidence satisfied the onus and established that the petition was voluntary. Counsel requested the Board to direct a representation vote. Counsel for the company concurred, stressing that there was no credible evidence on which to conclude that management was or would be reasonably be perceived to be involved in the peti­tion. Not surprisingly, counsel for the union disagreed and asserted the onus had not been met, the petition was involuntary on the reasonable perception branch of the Board's jurisprudence and asked that the union be certified. Given the Board's conclusion with respect to the voluntariness of the petition, the Board need not deal with the alternative argument of union counsel which focused on specific aspects of the petition and possible overlapping signatures with those who signed union cards.

20. In summarizing the parties' representations so briefly, the Board wishes to reiterate its view that it is in large part because of the able and thorough submissions of counsel and the factual distillations filed in advance with the Board that the Board is in a position to determine the appli­cation expeditiously.

21. Apart from minor involvement by a few other employees, three persons were responsi­ble for the petition: Ralph Grasmeyer, Don Gregory and Kevin Shuttleworth. Almost two hun­dred signatures were collected on the petition in the space of a few days. The Board heard detailed testimony as to the circumstances in which each signature was obtained. While the Board has con­sidered the evidence on the basis noted in paragraph 6 above, the Board sees no need to relate that evidence in detail herein.

22. The cases noted above, and others, outline the framework in which petitions are consid­ered by the Board. It is trite but necessary to reiterate the fundamental proposition that the Board must be satisfied that the signatures represent the voluntary wishes of the employees and that the onus lies upon the petitioners to so satisfy the Board. The Board is concerned specifically with those persons who signed the petition but who had previously signed membership cards in support of the applicant trade union. The cases are replete with reference to the Board's concern that this "change of heart" must not be motivated by fear of employment consequences for refusing to sign a petition. The Board is cognizant of and sensitive to the responsive nature of the employer -employee relationship. Thus, where there is evidence of actual management involvement in the origination and circulation of the petition, where, for example, a foreman circulates a petition, the Board has concluded that document is not a voluntary expression of the employees' true wishes. Even absent actual managerial involvement, the Board has considered the evidence from the per­spective of the "reasonable employee", often referred to as the "reasonable perception" test. That is, if the Board is satisfied that an employee would reasonably perceive that management con­doned the petition and would likely become aware of those signing (or refusing to sign), the Board has regarded such a document as not voluntary. The Board has repeatedly stressed that each case must be determined in the context of the the specific circumstances. No single factor is necessarily determinative of the issue and the Board has had regard, as well, to the cumulative impact of the circumstances.

23. The Board has concluded that the ordinary employee would reasonably fear that man­agement would learn of those employees refusing to sign the petition. The Board's conclusion is this regard is grounded primarily on the evidence of the petitioners themselves with respect to the circumstances in which the petition was circulated.

24. Kevin Shuttleworth candidly acknowledged that he obtained signatures in the foundry by going from work station to work station. While his normal duties did include movement in the foundry, this pattern of activity was not usual. Shuttleworth and Ralph Grasmeyer were in fre­quent contact during the work day while the petition was being circulated. This pattern of activity was also unusual and was noted by other employees. Grasmeyer, too, went from work station to work station in several departments soliciting signatures from employees at their machines. Don Gregory circulated the petition on the night shift in a similar fashion. Grasmeyer and Gregory are in the maintenance department and are readily identifiable because of that department's uniform. Their duties do involve some movement throughout the plant and, at the relevant period, the maintenance department was in some flux because of the relocation of the maintenance work area from one end of the plant to another. However, the Board finds that this movement throughout the plant during the period the petition was circulated was highly unusual even in the context of the department's relocation and was not reflective of the normal pattern of activity required by their duties.

25. The name of Ivy Walton appeared on the petition and was disclosed to the parties. The Board finds that her status at the time of acting supervisor in quality assurance was common knowledge. Even accepting the petitioners' evidence that employees would only see the single page of the petition each signed, the Board regards the supervisor's signature on the petition as having a serious impact on the reasonable perception of the other employees that management would become aware of those employees who did and did not sign. This impact remains the same even if Walton signed innocently believing she could do so because her status as a supervisor was only "acting". Moreover, the Board is satisfied that the fact of this signature would more likely than not come to the knowledge of employees other than those signing below Walton on that one page.

26. It is not necessary to further illustrate the Board's conclusion that the petition fails on the reasonable perception branch of the jurisprudence. The Board accepts that the petitioners were sincere in their opposition to the union. However, all three acknowledged they were rapidly identified as the persons circulating the petition. Gregory and Shuttleworth candidly testified that, shortly after they commenced collecting signatures, many employees (singly or in small groups and including those who initially declined to sign), sought out the petitioners at their work stations and as they walked through the various departments in order to add their names to the petition. The Board is not satisfied that those employees who signed the petition when approached at their work station during working hours or those who initially refused but quickly changed their minds or those who approached the petitioners to sign were acting out of a firm opposition to the union or a change of heart by those who had signed union cards. Rather, in the Board's opinion, the tactics of the petitioners - even if unwitting - of methodically canvassing employees at their work stations during working hours resulted in a reasonable perception by employees that management would learn of their refusal to sign. Those signatures could not, in the circumstances of that workplace, be regarded as voluntary.

27. For the foregoing reasons, the Board finds the petition is not a voluntary expression of the true wishes of the employees signatory. Given the level of support enjoyed by the applicant trade union, the Board certifies the applicant in respect to the bargaining unit described in para­graph 3 above.