Teamsters, Chauffeurs, Warehousemen and Helpers Local Union No. 141 v. Summit Food Distributors Inc., 1991 CanLII 6190

[1991] OLRB Rep. June 780

2236-90-R; 2237-90-R Teamsters, Chauffeurs, Warehousemen and Helpers Local Union No. 141, Applicant v. Summit Food Distributors Inc., Respondent v. Group of Employees, Objectors; Teamsters, Chauffeurs, Warehousemen and Helpers Local Union No. 141, Applicant v. Summit Food Distributors Inc., Respondent

BEFORE: R. O. MacDowell, Alternate-Chair, and Board Members W. H. Wightinan and K. Dav­ies.

APPEARANCES: Linda Huebscher, Andrew C. Bome, Wayne Gibson, Anthony Kircher and Jim O'Donnell for the applicant; Anneli LeGault, Jack Battersby and Bob Fowler for the respondent; Daniel J. McNamara and Frank Spada for the objectors.

DECISION OF THE BOARD; June 24, 1991

I

1. These are two applications for certification concerning the employees working in the respondent's wholesale food business at 580 Industrial Road in London, Ontario. The parties are agreed that the correct name of the respondent is Summit Food Distributors Inc. "Joe Dees Wholesale" is merely the name applied to an aspect of the respondent's business. Joe Dees Whole­sale is neither a separate corporate entity nor separate employer. Accordingly, the application for certification made in respect of Joe Dees Wholesale (Board File 2237-90-R) is hereby withdrawn.

2. There is no dispute that this application is timely.

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

4. Having regard to the agreement of the parties, the Board further finds that the unit of employees appropriate for collective bargaining should be framed as follows:

all employees of the respondent in the City of London, save and except fore­men, persons above the rank of foreman, persons regularly employed for not more than twenty-four hours per week and students employed during the school vacation period.

5. The parties are in agreement on the description of the appropriate bargaining unit, but they are not entirely agreed about its composition. The union claims that Ray Battersby and Randy Fowler exercise "managerial functions" and, consequently, are not "employees" within the mean­ing of the Act. The respondent asserts that neither of these workers is "managerial". We will return to that issue below.

II

6. In support of its application for certification, the trade union filed documentary evi­dence of membership on behalf of more than fifty-five percent of the employees in the above-men­tioned bargaining unit. This documentary evidence took the form of membership cards, which con­sist of a combination application for membership and an attached receipt. Each card is signed by the subject employee, the receipts are countersigned by a witness, and the documents confirm that a payment of $5.00 has been made to the union in respect of its membership fees. This $5.00 pay­ment is in the nature of consideration and confirms the act of signing.

7. The documentary evidence is supported by a properly completed Form 9, Statutory Declaration, attesting to its regularity and sufficiency. There is no allegation of any defect in form, nor is there any alleged impropriety in the manner in which this evidence was solicited. Certainly there is nothing to call into question the "voluntariness" of the individual acts of signing, or to sug­gest that, when the employees signed these cards, they were not unequivocally designating the union to represent them. Accordingly, the evidence meets the requirements of sections 1(1)(l) and 103(2)(j) of the Act, and demonstrates a level of "membership support" in excess of that required for certification without recourse to a representation vote (see sections 7(2) of the Act).

8. However, there was also filed with the Board a "petition" signed by a number of employees and indicating that those employees oppose the union's certification. This petition con­tains the names of several employees who have also signed union membership cards. The respon­dent and the objectors assert that these "members" have had a change of heart, and now no longer support the union's certification. They urge the Board to exercise its discretion to order a represen­tation vote to resolve the question of representation.

9. The union replies that the petition document is totally unreliable because of the manner in which the signatures were collected, and the absence of confirmatory evidence of the kind required by the Rules. The union concedes that its support is not unanimous, but maintains that there is no credible basis for discounting the documentary evidence of membership from a "clear majority" of the employees. In the union's submission there is no need for a representation vote, and this case should not be delayed any further.

III

10. The system of certification prescribed in Ontario by the Labour Relations Act rests pri­marily upon an assessment of the union's membership support based upon an examination of its documentary evidence of membership. Rule 73 reads as follows:

73.-(1) Evidence of membership in a trade union or of objection by employees to certification of a trade union or of signification by employees that they no longer wish to be represented by a trade union shall not be accepted by the Board on an application for certification or for a declara­tion terminating bargaining rights unless the evidence is in writing, signed by the employee or each member of a group of employees, as the case may be, and,

(a) is accompanied by,

(i) the return mailing address of the person who files the evidence, objection or signification, and

(ii) the name of the employer; and

(b) is filed not later than the terminal date for the application.

(2) No oral evidence of membership in a trade union or of objection by employees to certification of a trade union or of signification by employees that they no longer wish to be represented by a trade union shall be accepted by the Board except to identify and substantiate the written evidence referred to in subsection (1).

(3) Any employee or group of employees affected by an application for certification or by a dec­laration of termination of bargaining rights and desiring to make representations to the Board in opposition to the application may file a statement in writing of such desire in the form pre­scribed by subsection (1) not later than the terminal date for the application, but this subsection does not apply where the Board grants a request that a pre-hearing representation vote be taken.

(4) An employee or group of employees who has filed a statement of desire in the form and manner required by this section may appear and be heard at the hearing or, in the case of an application to which sections 87 to 99 apply, at any hearing directed by the Board, in person or by a representative.

(5) The Board may dispose of the application without considering the statement of desire of any employee who fails to appear in person or by a representative and adduce evidence that includes testimony in the personal knowledge and observation of the witness as to,

(a) the circumstances concerning the origination of the statement of desire; and

(b) the manner in which each signature on the statement of desire was obtained.

The Board does not solicit viva voce opinions about trade union representation, nor, in this juris­diction is a representation vote the primary vehicle for testing the wishes of a group of employees or securing the right to represent them. That right depends upon the solicitation of a sufficient number of membership cards authorizing the union to act as bargaining agent, and to protect the employees from possible employer reprisals the anonymity of the union supporters is preserved (see section 111 of the Act). Representation votes are a residual mechanism required only when the union cannot demonstrate a "clear majority" (i.e. more than fifty-five per cent of the employ­ees), or where, in the Board's discretion, a representation vote should be held in the particular cir­cumstances of a case. One of those circumstances is a timely "petition" indicating a purported change of heart by employees who have previously signed union membership cards.

11. The Board must be satisfied however, that when these union supporters sign a petition indicating an apparent change of heart, they were doing so voluntarily, and were not motivated by a perceived threat to their job security or a concern that their failure to sign would be communi­cated to their employer or result in reprisals. Often, as in the present case, a petition will be signed by employees who have indicated their support for the union only a short time before, and a natu­ral question arises as to what prompted the change of heart. Was it motivated by a reappraisal of the value of collective bargaining, or by a reluctance to identify oneself as a union supporter when presented with the petition document? An employee can be reasonably assured that his personal support for the union will not be communicated to his employer but he may have no such assur­ance when presented with a petition opposing the union. The petition is a personal and public dec­laration of opposition to the union, but the refusal to sign it may be taken as an equally personal and public declaration of support. And the employee is being asked to declare his allegiance to individuals who in their opposition to the union are aligned in interest with the employer.

12. Of course, the mere identity of interest between the employer and the objecting employees is not sufficient, in itself, to link the petition with management in the minds of reason­able employees, or undermine the reliability of the signatures placed on it. There must be more than that, and each case must be considered on its own merits. On the other hand, in the Board's experience there are enough instances where employers have committed unfair labour practices, or have sponsored or supported anti-union petitions, that these employee fears cannot be discounted. That is why the Act itself protects the confidentiality of these expressions of employee opinion (again see section 111). The Legislature has specifically recognized these employee concerns and fears.

13. It is for this reason that the Board undertakes the inquiry contemplated by Rule 73(5) of the Rules of Practice, in order to satisfy itself from the circumstances of the origination, prepa­ration, and circulation of the petition, that the document truly represents the voluntary wishes of those who signed it. In Radio Shack, [1978] OLRB Rep. Nov. 1043, the Board discussed the nature of this inquiry in a long passage to which we might usefully refer:

14. The Board has long held that there is an onus on a party relying on a statement of desire in opposition to an application for certification to establish that the "sudden change of heart" by those who have signed for the union and shortly thereafter repudiated the union, represents a voluntary change of heart. The Board recognizes the delicate and responsive nature of the employer-employee relationship and having regard to it, is circumspect in its assessment of the voluntariness of any statement of desire which bears the signatures of employees who have also signed in support of the union. The Board's approach to these matters is described in the lead­ing Pigott Motors case, 63 CLLC 16,264 in the following terms:

"In view of the responsive nature of his relationship with his employer and of his nat­ural desire to want to appear to identify himself with the interests and wishes of his employer, an employee is obviously peculiarly vulnerable to influences, obvious or devious, which may operate or impair or destroy the free exercise of his rights under the Act. It is precisely for this reason and because the Board has discovered in a not inconsiderable number of cases that management has improperly inhibited or inter­fered with the free exercise by employees of their rights under the Act, that the Board has required evidence of a form and of a nature which will provide some reasonable assurance that a document such as a petition signed by employees purporting to express opposition to the certification of a trade union, truly and accurately reflects the voluntary wishes of the signatories."

Having regard to the sensitive nature of the employer-employee relationship, the Board has consistently held that it must be governed by the overall environment in the work place in decid­ing whether or not the statement of desire represents a voluntary expression of those who signed ~t. If the evidence establishes that the hand of management has been actively involved in its orig­ination, preparation or circulation, the Board will dismiss the statement. The Board will also, however, dismiss the statement if the evidence establishes that an employee might reasonably suspect the involvement of management and hence be concerned as to whether or not manage­ment might become aware of his decision to sign it or not to sign it. (See Morgan Adhesives of Canada Ltd. and Canadian Paperworkers Union, [1975] OLRB Rep. Nov. 813 and the cases cited therein.)

Reference might also be made to the following passage from Baltimore Aircoil Interamerican Corporation, [1982] OLRB Rep. Oct. 1387, where the Board reaffirmed its approach to such employee statements:

Before reviewing each of these issues it is useful to understand the general legal and policy back­ground against which petitions are considered by this Board. There is usually and naturally an identity of interest between an employer and those of his employees interested in opposing an applicant trade union. In this context the circulation of a statement of desire involves petitioners approaching their fellow employees to solicit support. Understandably, an employee so approached may worry or feel anxious that his refusal to sign such a petition will become known to his employer given this natural interest employers have in employees opposing the trade union. But, this identity in interest between employer and opposing employees, standing alone, has never been viewed by this Board as undermining the reliability of signatures places on a cir­culated petition. If this were not so, a petition could never be found to be voluntary. On the other hand, this is not to say that a similarity in interest between employer and petitioners is irrelevant and, indeed, it is the reason why this Board subjects the origination and circulation of a statement of desire in opposition to an application for certification to considerable scrutiny. There is an onus on those employees who present the documentary evidence to the Board to demonstrate that the signatures contained therein constitute a voluntary expression of the wishes of those employees who on recent and earlier occasion joined the applicant trade union. It is in this context that the Board, in the often cited Pigott Motors (1961) Ltd. case, 63 CLLC ¶16,264, made the following observations:

41. Actions by either the employees opposing the trade union or the employer can adversely affect the reliability of a statement of desire. Direct and open support by an employer will obvi­ously suggest a relationship between the employer and the petitioners that would reasonably cause anxiety in the minds of employees approached by the petitioners. Therefore, in such cir­cumstances, it would be just as reasonable to infer that the employees signed the document to conceal their support for the trade union as it would be to conclude that they signed voluntarily. Where this is the case, the Board usually takes the view that the petitioners have not satisfied the onus on them and the statement of desire is dismissed as an unreliable indicator of the true wishes of the employees. Similarly, actions by the petitioners without support of the employer can equally destroy the reliability of a statement of desire. Circulating a document in the pres­ence of foremen or representations clearly indicating support by the employer can produce the same anxiety in the minds of employees whose signatures are solicited and thus prompt the Board to respond in a similar fashion.

IV

14. These applications were filed on November 21, 1990 and came on for hearing before the Board on December 21, 1990. A good part of that day was consumed by the parties' efforts to sort out the identity of the employer(s) and the description and composition of the bargaining unit(s). This ultimately involved the amalgamation of the two files and the creation of a composite employee list, for the purpose of assessing the union's membership support. That done, the case began with the objectors' evidence concerning the origination, preparation and circulation of their petition (see Rule 73(2) and (5) above).

15. Frank Spada was the first and ultimately the only witness called on behalf of the object­ing employees. By the end of the day, Mr. Spada had given his evidence "in-chief', and counsel for the union had begun her cross-examination. On the agreement of the parties, the case was scheduled to continue on April 22 and April 23, 1991. It was anticipated that two days would be sufficient to complete Mr. Spada's cross-examination, as well as entertain any other evidence which the parties might wish to adduce.

16. At the opening of the hearing on April 22, however, counsel advised the Board that Mr. Spada was not available for cross-examination that day, and that he (counsel) was unable to say when Mr. Spada would be available. Counsel put before the Board a Declaration, in which Mr. Spada asserts that for medical reasons he is unable to be present for the hearing and that, in any event, "pain makes concentration on any matter extremely difficult". The Declaration also reads in part:

"I am unable at this time to furnish a precise diagnosis of my medical condition and I am unable to indicate specifically when I would expect to be in a position to continue my evidence"

No medical report or opinion is attached to this Declaration nor were the parties or the Board able to assess Mr. Spada's condition or determine when, if at all, he would be able to complete his testi­mony.

17. Counsel for the objectors argued that, in the circumstances, it was appropriate to adjourn the case since Mr. Spada was both his advisor and the key witness tendered on behalf of the objectors pursuant to Rule 73(2) and (5). Counsel for the union resisted that adjournment request, pointing out that time was of the essence in certification matters, there had been ample opportunity between December and April to apprise the parties and the Board of the witness's condition, and any last minute rescheduling of agreed upon hearing dates would inevitably result in a further delay of some months. The union noted that on the evidence before it, the Board was simply unable to determine when, or even whether, Mr. Spada would be available, so that the request was really for an indefinite adjournment or adjournment sine die.

18. The Board made the following oral ruling which is hereby recorded and confirmed:

"Time is of the essence in labour relations matters - particularly those involving representation. This has been consistently confirmed both by the Board and the Court of Appeal in such cases as the Ottawa Journal, [Journal Publishing Co. of Ottawa Ltd. v. Ottawa Newspaper Guild et. al., unreported March 31,1977 per Estey C.J.O.] and Nick Mansey Hotels Ltd., [1973] OLRB Rep. 461. [see also Re Flamborodowns Holdings Ltd. and Teamsters Local 879, (1979) (24) OR. 2d 400]. In Nick Masney Hotel, Laskin J.A., as he then was observed:

"The Ontario Labour Relations Board deals in certification matters with fluid situa­tions which cannot be judged by the more leisurely standards that operate in the pros­ecution of a claim for damages for a tort or for a breach of contract where the situa­tion is fairly well frozen when the tort or the breach of contract has occurred. Expedition is important to the union, to employees and to an employer, since the cer­tification is merely the first step in an often laborious collective bargaining process.

It is against that background that we must consider this request for an adjournment; and, as all counsel have indicated, the rules of natural justice must be measured and applied having regard to the facts of the particular case.

What then is the situation here?

Mr. Spada is the representative of the objecting employees, the advisor of counsel, and the first and principal witness on behalf of the petitioners. He has given his evidence in-chief and is in the midst of cross-examination. This case was last heard on December 21, and was scheduled to proceed today and tomorrow, which are the dates to which all parties have agreed. We are now advised however that Mr. Spada is unable to be present this morning because of a degenerative back condition over which he has no control.

The difficulty is that on the basis of the material provided, and assuming it to be true, there is no indication that Mr. 5pada will be available to complete his evidence in weeks, or months, or at all. In short, the objectors are asking for an adjournment for an indefinite period which will nec­essarily engender some months delay together with the possibility that the parties may be in pre­cisely the same position in which they find themselves this morning. Any adjournment would necessarily delay this matter for several months, and even then we would have no assurance that the matter would be completed. On the other hand, the union is anxious to proceed, Mr. Spada is apparently reachable by telephone, and the union is content to have counsel for the objectors discuss Mr. Spada's evidence with any witnesses previously excluded and to choose an alterna­tive advisor should they consider this necessary. The union opposes any adjournment, because of the prejudice which will inevitably arise.

In the circumstances and having considered the competing considerations in issue, we are not persuaded that the case should be adjourned. We are prepared, however, to adjourn this matter to 1:00p.m. so that counsel can seek further instructions from such other witnesses as are avail­able. Those witnesses are released, as is counsel, from any restrictions on such discussions."

In all the circumstances the Board was not prepared to grant an indefinite adjournment, involving significant and prejudicial delay, with no assurance that the situation would be substantially improved some weeks or months later.

19. Following the morning adjournment, counsel for the objectors advised the Board and the other parties that the objectors would not be calling any other evidence with respect to the origination, preparation or circulation of the petition. In that respect, his case was closed. The par­ties then took the rest of the afternoon to put together a written agreement of fact concerning the alleged "managerial" status of Randy Fowler and Raymond Battersby - the individuals whose sta­tus the union had challenged. In the result, the only evidence concerning the of the petition put before the Board pursuant to Rule 73(5) is that of Frank Spada, and that testimony has not been tested by cross-examination.

V

20. Mr. Spada told the Board that he shares an office with a member of management but has no managerial responsibilities himself. He first learned of the union s certification application from an acquaintance who works in the office, and he made his way to his present counsel through family connections. According to Mr. Spada, his lawyer advised him that signatures should not be solicited on company premises or during working hours, and in circulating the petition he followed that advice. He collected signatures between December 4 and December 6 at various times and places during the day and night, visiting employees at their homes or intercepting drivers on the road.

21. Mr. Spada indicated that Raymond Battersby was involved in circulating the petition from the very outset. Mr. Battersby was present when 19 of the 26 signatures were solicited, actively encouraged employees to sign the petition, and arranged meetings so that they could do so. In several cases, Mr. Battersby was the only one immediately present when the employee sig­nature was collected. Mr. Spada travelled from place to place with Mr. Battersby in the latter's van. Mr. Battersby arranged with his brother Richard to obtain a mobile phone which he then used together with the company's dispatching system to contact drivers who were not at work. Ray Bat­tersby also organized a meeting of about a dozen employees at a local bar where he and Mr. Spada addressed the employees about the union's organizing campaign and the problems at work. We do not know precisely what was said because Mr. Spada's evidence is incomplete on that point and Mr. Battersby did not give evidence at all about his role in the petition process. Nor do we know what Mr. Battersby said to these employees whose signatures he witnessed, or to the employees with whom meetings were arranged.

22. Raymond Battersby is the brother of Jack Battersby the President and owner of the respondent company.

23. On the evidence before us, we cannot conclude that Ray Battersby exercises managerial functions; however, he obviously stands in a special relationship to the owner of the company, and would be so regarded by any employee approached. Randy Fowler does not exercise managerial functions either; but, he was a foreman only two or three months before the union's organizing campaign, he is currently described as a "lead hand" who occasionally "fills in" for management personnel, and he is the brother of Robert Fowler who is described as the "manager" of the Joe Dees aspect of the company's operation. Randy Fowler's name appears on the top of the second page of the petition. His precise involvement (if any) is unclear. All that can be said is what would be apparent to any employee: another individual with managerial connections is part of the anti-union opposition group, which the individual is being invited to join or reject.

24. As we have already mentioned, we do not know what Mr. Battersby had to say to employees either before or at the time of their signing the petition. If Mr. Spada is believed how­ever, we do know that certain employees who had already signed union membership cards, declared themselves to be "neutral", or told him that they had not heard of or were opposed to the union. One could only speculate about why they would make those false statements to Mr. Spada and Mr. Battersby, but one obvious possibility is their reluctance to identify their union affiliation to the owner's brother.

25. In summary, then, the petition document in this case is supported only by the incom­plete testimony of Mr. Spada; and while it is true to say (as counsel does) that this testimony is uncontradicted", neither was it subjected to the test of cross-examination. For that reason alone, we would be inclined to assign it very little weight, bearing in mind that pursuant to Rule 73(5) the Board is specifically permitted to reject any petition which is unsupported by credible affirmative evidence as to its origination and circulation. In addition, even if accepted in its limited form, the evidence establishes that the brother of the company's owner was intimately involved in circulating the petition, as well as arranging for and persuading employees to sign; moreover, in some instances Mr. Battersby was the only person who was in a position to say what transpired at the point of signing.

VI

26. Having regard to the foregoing, the Board finds that more than fifty-five per cent of the employees in the above - noted bargaining unit, at the time the application was made, were mem­bers of the union on December 7, 1990, the terminal date, and the date which the Board fixes pur­suant to section 103(2) of the Act to be the date for determining membership evidence for the pur­poses of section 7 of the Act. On the basis of the totality of the evidence before it, the Board is not persuaded that it should exercise its discretion under section 7(2) to direct the taking of a represen­tation vote.

27. A certificate will therefore issue to the applicant union in respect of the bargaining unit described in paragraph 4.

28. On the basis of the evidence adduced or agreed to by the parties, it is the opinion of the Board that Randy Fowler and Raymond Battersby do not exercise "managerial functions" within the meaning of section 1(3)(b) of the Act. They do have certain co-ordinating and reporting duties in the nature of those exercised by a "lead hand", but they are not properly regarded as members of "management" excluded from the process of collective bargaining by section 1(3)(b) of the Act.