Stephen Stacey and Frank King v. The Canadian Paper-Workers Union and its Local 934, 1992 CanLII 6346

[1992] OLRB Rep. June 682

2256-91-R Stephen Stacey and Frank King, Applicants v. The Canadian Paper-Workers Union and its Local 934, Respondents v. Domtar Inc., Intervener

BEFORE: Robert D. Howe, Vice-Chair, and Board Members W. H. Wightman and R. R. Montague.

APPEARANCES: C. J. Abbass, Stephen Stacey and Frank King for the applicants; Doug Wray and Andre R. Foucault for the respondents; Elizabeth Hosie, Bill Lukewich, and Don Leslie for the intervener.

DECISION OF ROBERT D. HOWE, VICE-CHAIR AND BOARD MEMBER W. H. WIGHTMAN; June 24, 1992

1. The style of cause of this application is amended to read as follows: "Stephen Stacey and Frank King, Applicants v. The Canadian Paperworkers Union and its Local 934, Respondents v. Domtar Inc., Intervener."

2. This is an application under section 58(2) [formerly section 57(2)] of the Labour Relations Act for a declaration that the employees in the bargaining unit described below are no longer represented by their current bargaining agent.

3. It is common ground among the parties that this application is timely, and that it pertains to the following bargaining unit, as described in Article 1.01 of the applicable collective agreement:

all employees of the Company in its Plant situated at St. Marys, Ontario, save and except Foremen, and those above the rank of Foreman, Office Personnel, Sales Staff, watchmen and guards, and employees engaged in confidential capacity relating to labour relations.

4. The intervener (also referred to in this decision as the "Company" and "Domtar") produces corrugated boxes at its St. Marys plant. It is common ground among the parties that on the date on which this application was filed with the Board, there were 120 employees in the bargaining unit for purposes of the count.

5. The preamble to the aforementioned collective agreement indicates that it was entered into between:

DOMTAR INC. a Corporation, incorporated (by continuance) under the Laws of Canada and having its Head Office located at 395 de Maisonneuve Blvd., West, Montreal, Quebec, herein acting with respect only to its Domtar Packaging Plant (Corrugated Containers Division) located at St. Marys, Ontario, hereinafter referred to as the "Company".

and

CANADIAN PAPERWORKERS' UNION and its Local 934 hereinafter referred to as the "Union".

The recognition clause contained in Article 1 of the collective agreement indicates that the Company recognizes "the Union" as the exclusive bargaining agent of the employees in the bargaining unit.

6. The memorandum of agreement that gave rise to that collective agreement, and to various other collective agreements pertaining to other Company plants, was entered into between:

Domtar Inc., Domtar Packaging (Corrugated Containers Division)

and

Canadian Paperworkers Union

and its Locals

309 Keele St.

595 Etobicoke

934 St. Marys

1196 Kitchener

1597 Peterborough

486 Duberger

205 Molson St.

830 Winnipeg

That memorandum of agreement was signed by two Officers and Representatives of the Canadian Paperworkers Union (also referred to in this decision as the "CPU" and the "National", for ease of exposition). It was also signed by officers of the various locals, including Stephen Stacey, who was Local 934's Recording Secretary when that memorandum was signed, and Steve Wright, who was the President of Local 934 (also referred to in this decision as "the Local") at that time. Bargaining with the Company on "main agenda" items was conducted by National representatives and representatives of the CPU locals on a centralized basis, with "local issues" being bargained with Company representatives (including a Head Office representative) at each plant by the executive officers of the local pertaining to that plant and a CPU National Representative. Local negotiations generally commenced about two months prior to main agenda negotiations. Any local issues which remain unresolved were transferred over to the main agenda negotiations.

7. During the two and a half days that were devoted to hearing evidence and argument regarding this application, the Board heard testimony from the following three persons: the applicant Stephen Stacey, who at all material times was the President of Local 934; the applicant Frank King, who at all material times was the Local's Recording Secretary; and Bill Conley, a Local 934 steward who was also called as a witness by applicants' counsel. (Those three persons and all others holding office in the Local lost their positions when the Local was placed under trusteeship by the National following the commencement of these proceedings.) The respondents and the intervener did not call any witnesses. In making the findings and reaching the conclusions contained in this decision, we have considered all of that oral evidence (with due consideration of the usual factors germane to the assessment of credibility), the documentary evidence that has been placed before us, and the submissions of counsel. We have also assessed what is most probable in the circumstances of the case, and considered the inferences which may reasonably be drawn from the totality of the evidence.

8. The possibility of leaving the CPU was first discussed by members of the bargaining unit at a Local 934 meeting in February of 1991. At that meeting a motion was made that the Local hire a business representative, because it was felt that the Local was not getting enough assistance from the National. Concerns were also expressed about other matters, including what Mr. Stacey described as "political games being played at the top". The idea of leaving the CPU came up during the discussion of that motion. The motion was defeated at that meeting but another motion to the same effect was passed at a subsequent meeting (in March or April of 1991), as a result of which the Local hired as a consultant Gary Bucella (who, prior to being terminated by the National in the Fall of 1990, had been a CPU National Representative whose duties included servicing Local 934). Employee dissatisfaction with the CPU was also raised by some of the bargaining unit employees in discussions which took place following meetings of the Local in the Spring of 1991.

9. No CPU National Representative attended the "local issues" bargaining session that was held in August of 1991 in respect of the St. Marys plant. The only persons in attendance other than Company representatives were members of the Local 934 Executive and Mr. Bucella.

10. The idea of leaving the CPU resurfaced in September of 1991. At the regular meeting of the Local on September 7, 1991, Mr. Stacey reported to the membership that when the negotiation committee met with management to discuss local issues in August, "no one from the CPU bothered to show up that day". The members were extremely upset by that information and decided to discuss the matter further after the Local 934 meeting was adjourned. Accordingly, following the adjournment of that meeting, the forty to fifty people in attendance had a discussion about getting out of the CPU and looking elsewhere for another union. Mr. King and other members of the Local 934 Executive were aware from discussions with executive members from other locals that employees at other Domtar plants were also thinking about leaving the CPU. This information was passed on to the membership during the course of the discussion which followed the adjournment of the September 7 meeting. During that discussion it was agreed that Mr. Stacey and another person (whose name was not disclosed in the evidence) would check out the employees' options by looking into other unions, and that they would get back to the membership at the next meeting of the Local. Mr. Bucella was also asked to look around "to see if there was anything out there". No decision was made on September 7 about whether or not to leave the CPU as Mr. Stacey and others involved in the matter felt that they "still had lots of time" because a company other than Domtar had been chosen as the CPU's target company, negotiations with that target company had not yet begun, and all that had occurred in respect of the Domtar negotiations was "the exchanging of main agendas".

11. The evidence also indicates that the outcome of the election of National officers that was to be held at the CPU convention which was to commence on September 16 was likely to have a bearing on whether employees in the bargaining unit would want to change unions or remain with the CPU. If there was a change in leadership, employees might wish to remain with the CPU, but if the incumbents were re-elected the employees would likely want to get out of the CPU.

12. On Friday, September 13, 1991, Don Snow, the President of CPU Local 309 (at the Company's Keele Street Plant) telephoned David Forrester, who at that time was the Vice-President of Local 934, to tell him that the National had applied for conciliation. Mr. Snow further indicated that if they wanted to keep their options open they only had until 5:00 p.m. on Tuesday, September 17 to get a decertification petition signed and presented to the "Labour Building". Mr. Snow also gave Mr. Forrester the wording of the petition and advised him that employees at other Domtar plants were taking similar steps. Mr. Forrester passed all of that information on to Mr. King, who took the wording home and used it to type the petition that was subsequently filed with the Board. The heading on the petition, which was typed by Mr. King on the letterhead of Local 934 and addressed to "Labour Building, 400 University Avenue, Toronto, Ontario", reads as follows:

We the undersigned no longer desire or wish to be represented by the Canadian Paperworkers Union as our bargaining agent with our company Domtar Packaging Inc.

13. There are eighty-one signatures on the front of the petition, and twenty-six more on the reverse, which does not contain a heading (or any other wording except those twenty-six signatures and the words "President Local 934" which appear after Mr. Stacey's signature). Thus, the petition contains a total of 107 signatures, 101 of which coincide with names on the list of employees filed by the intervener. (As indicated above, on the basis of that list it is common ground among the parties that there were 120 employees in the bargaining unit on the date of this application for purposes of the count.)

14. At the time he typed the petition, Mr. King understood the CPU to be the employees' bargaining agent and understood the wording of the petition to be indicating that the employees "want to get out of the CPU". He drew no distinction between the CPU and Local 934 because he thought they were one and the same. He was also of the view that if they got out of the CPU, the employees would find another union to represent them. He viewed the purpose of the petition to be keeping the employees' options open, with one of those options being that of remaining with the CPU if the employees wanted to do so. He did not type the petition on Local 934 letterhead for any particular reason, such as to indicate that Local 934 was supporting the petition; he merely used it because it was the only unused paper which he had on hand at the time he typed the petition.

15. Mr. King brought the petition with him to the plant when he reported for work on Sunday, September 15, 1991 for the midnight shift which runs from 11:00 p.m. to 7:00 a.m. During the course of that shift he obtained 27 signatures on the petition by bringing it to the employees at their machines during working hours and explaining to them that the purpose of the petition was to keep their options open. All of the employees working on that shift signed the petition. Some of the signatures were obtained as Mr. King moved around the plant performing some of his duties as a flexo bundler, which include speaking with other employees to obtain instructions about customers' orders and walking through the plant to obtain various sheets and side panels. Others were obtained during periods in which he had temporarily completed all of his duties and was waiting for other employees to finish the work necessary to begin a new run. It is clear from the evidence that it was not unusual for Mr. King to be away from his machine several times during the course of a shift. The only member of management who was present during that shift was Carl Schmidt, who was the foreman on that shift. His desk is located thirty or forty feet away from the machine on which Mr. King is the bundler. Mr. Schmidt does not remain at his desk throughout the shift; he also moves around the plant, which occupies approximately 180,000 square feet. Although Mr. King was not particularly concerned about keeping Mr. Schmidt unaware of the petition, he did not discuss it with him. Moreover, we accept his evidence that neither Mr. Schmidt nor any other member of management was present when Mr. King obtained any of those signatures.

16. When Mr. King was not obtaining signatures on the petition he kept it in his back pocket. He put the petition in his locker around 6:30 a.m. (on September 16) and gave it to Mr. Conley about twenty-five minutes later. When he handed Mr. Conley the petition, Mr. King told him that the National had applied for conciliation and that in order to keep their options open to change unions they had to have a petition signed and brought to the Labour Board in Toronto by Tuesday. He asked Mr. Conley to take the petition around to the employees on his shift and then to give it to Mr. Stacey at the end of the shift. This conversation took place in front of their lockers as Mr. King's shift was ending and Mr. Conley's shift was about to begin. Mr. King selected him to circulate the petition on the day shift because he was the shop steward and no one on the Local Executive was working on that shift.

17. During the course of his eight-hour shift, Mr. Conley, who is also a flexo bundler, obtained over forty additional signatures on the petition. Some of the employees heard about the petition and approached Mr. Conley in order to sign it. Others signed when they came to his work station to resolve work-related problems. However, most of those signatures were obtained by Mr. Conley going over to the employees in their work areas during times when his presence was not required at his own machine, during his breaks~ and during times when the duties of his position required him to leave his machine and go to other places in the plant. Mr. Conley told the employees that the National had filed for conciliation and that the only way to keep their options open was to submit a petition to the Labour Board. In response to questions, he also told some of the employees that one of the options was to stay with the CPU~ depending upon who was elected at the convention. No member of management was present when any of those signatures were obtained. Only one of the employees whom Mr. Conley approached about signing the petition declined to do so.

18. As requested by Mr. King, Mr. Conley gave the petition to Mr. Stacey when he arrived for work shortly after 3:00 p.m. on September 16. Mr. Stacey had not had very much contact with members of the Local Executive or other employees during the preceding week because he was on the midnight shift and had been absent for several nights due to his son's hospitalization in London as a result of a serious accident. However, he was informed by Mr. Forrester of the National's conciliation application and the decertification petition when Mr. Forrester telephoned him late at night on Saturday September 14 or Sunday September 15 from Vancouver, where Mr. Forrester and Dan Richardson (the Treasurer of Local 934) had gone to attend the CPU convention. (Mr. Stacey had planned to attend the convention but was unable to do so because of his son's accident.) Mr. Forrester told Mr. Stacey that it was the President of the Keele Street CPU Local who had advised him of the National's application for conciliation. Mr. Forrester also explained that if they did not get the petition to the Labour Board by 5:00 p.m. on Tuesday, September 17 so as to obtain "a vote amongst all of the employees to see if they really truly wanted to leave the CPU", they would be locked in for the term of the next collective agreement. He told Mr. Stacey that Mr. King would circulate the petition on the midnight shift and then give it to the steward on the day shift, who after collecting signatures on that shift would give the petition to Mr. Stacey, so that he could "look after the 3:00 - 11:00 p.m. shift". Mr. Forrester also indicated that a number of other CPU locals were going to be doing the same thing.

19. After receiving the petition from Mr. Conley, Mr. Stacey obtained a further 38 signatures on it during the course of his shift. The first ten of those signatures were obtained around 3:45 p.m. while the corrugator of which Mr. Stacey is an operator was being repaired by maintenance workers after breaking down. He obtained another signature around 4:45 p.m. when an employee who had heard about what was going on approached him at the corrugator and asked him to sign the petition. The next nine signatures were obtained in the cafeteria just after 5:00 p.m. during supper break. Before they signed their names on the back of the petition, those nine employees were told by Mr. Conley that it was a petition to decertify the CPU, which had applied for conciliation "behind [their] backs" and thereby placed them "under severe time limits". He explained that the petition had to be presented to the Board by Tuesday September 17. He also explained that "by signing the document it did not necessarily mean that [they] would be leaving the CPU; it was merely a request to have a vote about leaving the CPU." At least some of those employees read the front of the petition before signing their names on the back of it. The next six people signed at their (and Mr. Stacey's) work station shortly after 7:00 p.m. while awaiting the return of the two maintenance department employees who were working on that shift. Mr. Stacey obtained the next ten signatures by visiting employees at their work station during his break. All of them read the petition and were provided by Mr. Stacey with an explanation similar to that described above. After signing the petition himself, Mr. Stacey obtained one additional signature by going to see an employee just before the end of the shift. That employee signed the front of the petition (after asking Mr. Stacey if there was any special place to sign and being told "wherever you can find a place to put your signature"). Most of the employees whom Mr. Stacey approached already knew about the petition before he spoke to them. No member of management was present when any of the signatures witnessed by Mr. Stacey were obtained. All of the employees whom Mr. Stacey approached concerning the petition signed it, with the exception of three employees who declined to do so.

20. Mr. Stacey returned the petition to Mr. King when the latter reported for work at 11:00 p.m. on Monday September 16. Mr. King put it in his locker and left it there until his shift ended at 7:00 a.m. on September 17. He then brought the petition to his home and, after having breakfast and visiting with his family until approximately 8:30 a.m., drove to Toronto and delivered the petition to the Board. He subsequently obtained facsimiles of a blank Form 17 application form and a completed Form 17 application form from Mr. Snow, and used the completed form as a precedent to assist him in filling out the blank form. After typing in the pertinent information on the form and having it signed by himself and Mr. Stacey, Mr. King forwarded it by courier to the Board.

21. At the commencement of the hearing of this application, respondents' counsel submitted that the application should be dismissed because the wording of the petition refers only to employees no longer wishing to be represented by "the Canadian Paperworkers Union", whereas (in his submission) the bargaining rights in question are held jointly by the CPU and its Local 934. In support of that position he referred the Board to the collective agreement's preamble, recognition clause, and union security clause, as well as to the fact that the memorandum of agreement which gave rise to that collective agreement was signed not only by National Officers and Representatives but also by local officers including two from Local 934. He also referred to section 73 of the Rules, section 58 of the Act, the case of Patrick McKeon and Other Employees of Hiram Walker & Sons Limited, [1973] OLRB Rep. Nov. 603, and the Board's certification jurisprudence holding that evidence of membership in the parent union is not sufficient where it is the local applying to be certified.

22. After hearing submissions from counsel for the applicants and counsel for the intervener, and reply submissions from respondents' counsel, the Board recessed the hearing to consider that matter and then made the following oral ruling:

Having given some initial consideration to the issue raised by respondents' counsel, we are unanimously of the view that we should proceed to hear evidence on all aspects of the case, including evidence regarding what entity or entities hold the bargaining rights in question, evidence concerning the origination, circulation, and voluntariness of the petition, and evidence concerning what the somewhat ambiguous language of the petition was intended or understood to mean. (For an example of such evidence being received by the Board in a somewhat similar context, see Patrick McKeon and Other Employees of Hiram Walker & Sons Limited, [1973] OLRB Rep. Nov. 603, at paragraphs 5 and 9. See also Fuller's Restaurant, 80 CLLC ¶14,021.)

23. In final argument, Mr. Wray referred the Board back to his preliminary submissions on behalf of the respondents, and contended that the evidence adduced during the hearing provided additional support for that position. He further submitted, in the alternative, that the application should be dismissed on certain other grounds, which may be summarized as follows: (1) the evidence of where the idea and wording of the petition came from is inadequate; (2) the evidence does not establish that not less than 45 per cent of the bargaining unit employees had voluntary signified in writing as of the pertinent time that they no longer wished to be represented by the union, as many of them were told that the purpose of the petition was merely to keep open their options, including the option of staying with the CPU, and because 26 persons signed the reverse side of the petition, which had no heading on it; (3) the employees' reasonable perception would be that the petition, which was circulated during working hours, was tacitly supported by management and that the names of those refusing to sign the petition would become known to management; (4) the applicants did not meet the onus of establishing the voluntariness of the petition on the balance of probabilities; and (5) the cumulative effect of the foregoing factors is such that the Board should not give any weight to the petition. Respondents' counsel also referred the Board to a substantial number of previous decisions during the course of his submissions.

24. In his submissions on behalf of the applicants, Mr. Abbass reviewed the evidence and submitted that the onus of establishing the voluntariness of the petition had been met. Having noted that the considerations which apply to a decertification petition differ from those applicable to a petition circulated in opposition to a certification application, he contended that the circulation of the petition on Company premises during working hours did not taint it, as there was nothing in the circumstances that would give rise to a reasonable perception on the part of employees that the petition was supported by management~ or that the names of employees who declined to sign it would become known by management. He further contended that there was no need for the applicants to call other witnesses and thereby prolong the proceedings. Applicants' counsel also argued that the petition clearly evinces an intention on the part of the employees to decertify their bargaining agent, and that the Board should not permit that intention to be defeated by technicalities. It was his position that the employees who signed the back of the petition knew what was going on and were aware of what they were signing. In reply to Mr. Wray's submissions regarding employees signing the petition to keep their options open, applicants' counsel argued that it is highly unreasonable to say there is something wrong with explaining to people the two-step procedure set out in section 58(3) of the Act, which provides for a representation vote to be taken in which bargaining unit employees can vote for or against termination of their trade union's bargaining rights. He also argued that all of the witnesses, including Mr. King, had testified in a straightforward and honest manner, and that their evidence should be accepted as credible by the Board. During the course of his reply argument (which for ease of exposition in this decision has been blended together with his argument in chief and his response to Mr. Wray's preliminary submissions), applicants' counsel distinguished many of the cases cited by the respondents' counsel on the basis that they pertained to petitions in certification proceedings rather than termination petitions.

25. In her submissions on behalf of the intervener, Ms. Hosie noted that there is no evidence that management saw, encouraged, or was in any way involved with the petition. Thus, she asked the Board to render a decision reflecting that management had not affected its voluntariness. She also submitted that to adopt the position advocated by respondents' counsel in his preliminary submissions would be to permit form to triumph over substance.

26. Section 58(3) of the Act provides:

Upon an application under subsection (1) or (2), the Board shall ascertain the number of employees in the bargaining unit at the time the application was made and whether not less than 45 per cent of the employees in the bargaining unit have voluntarily signified in writing at the time that is determined under clause 105(2)(j) that they no longer wish to be represented by the trade union, and, if not less than 45 per cent have so signified, the Board shall, by a representation vote, satisfy itself that a majority of the employees desire that the right of the trade union to bargain on their behalf be terminated.

27. Having duly considered the submissions of counsel, we have concluded, for the reasons set forth below, that although there are some factors present which in other circumstances might invalidate a petition, in the circumstances of the present case we are satisfied on the totality of the evidence that the petition has been duly proven on the balance of probabilities to be voluntary.

28. As contended by applicants' counsel, the considerations applicable to a petition circulated in support of an application for termination of bargaining rights differ to some extent from those applicable to a petition circulated in opposition to a certification application. See, for example, Ontario Hospital Association, [1980] OLRB Rep. Dec. 1759 (request for reconsideration dismissed, [1981] OLRB Rep. March 304):

31. The sole issue before the Board in every case regarding a "petition" is the voluntariness of the acts of signing. The Board has often drawn a distinction between petitions which are filed in connection with an application for certification, and those which accompany an application for termination of bargaining rights. In the former case, the Board has said that it must be sensitive to the role which management influence, devious or otherwise, may have played in causing employees who have only recently signed a card in support of a union to subsequently sign a petition which opposes the union. In the case of a termination application, the Board is not less concerned about influence by the employer, but there may, as a practical matter, be any number of reasons, including the mere passage of time, to readily explain the employees' apparent change of hearts. As the Board commented in N.J. Spivak Limited, [1977] OLRB Rep. July 462:

6. In contrast to a statement filed in opposition to an application for certification a statement of desire filed in support of a termination application under section 49 [now section 58] of the Act does not represent a sudden change of heart by those who sign it. The operation of section 49, a section designed to give vent to employee desires, requires the passage of at least one year from the date of the union's certification before the Board will entertain an application for termination of bargaining rights. Because of the absence of an immediate change of heart, as happens when an employee signs himself into membership in a trade union and shortly thereafter signs a statement in opposition to the certification of the same union, and having regard to the purpose of section 49, the Board is less inclined to draw inferences adverse to the voluntariness of the statement filed in support of an application under section 49 of the Act.

See also Kitchener Beverages Limited, [1990] OLRB Rep. March 291, and the cases cited in that decision.

29. It is clear from the totality of the evidence that by February of 1991 at least some of the members of Local 934 had formed the idea of leaving the CPU because of various concerns~ including their feeling that they were not getting enough assistance from the National. That idea resurfaced on September 7, 1991 after Mr. Stacey reported to the membership at a meeting of the Local that when the negotiation committee met with management to discuss local issues in August, "no one from the CPU bothered to show up that day". That the forty to fifty employees in attendance at the meeting were quite dissatisfied with the CPU is evident not only from their reaction to this information but also from the fact that after the members had discussed the desirability of leaving the CPU, it was agreed that Mr. Stacey and another individual would check out the employees' options by looking into other unions. Mr. Stacey and others involved in the matter felt that they still had lots of time (for the reasons indicated in paragraph 10 of this decision). However, the available time was substantially reduced when the National applied for conciliation during the following week. Under the provisions of section 62(2) of the Act, once a conciliation officer had been appointed in respect of the aforementioned centralized bargaining, neither the employees in the St. Marys plant bargaining unit nor the employees at the other Domtar plants (who had also been thinking of leaving the CPU) would be entitled to make an application for termination of bargaining rights until at least twelve months had elapsed from the date of the conciliation officer's appointment (and possibly much longer). Thus, the National's application for conciliation prompted Mr. Snow, the President of CPU Local 309 at the Company's Keele Street plant, to inform Mr. Forrester of the conciliation application and of the steps which would have to be taken by 5:00 p.m. the following Tuesday in order for the membership to keep their options open. Mr. Forrester relayed that information to Mr. King, who typed the petition and, with the assistance of Messrs. Conley and Stacey, circulated it in the manner described above and obtained signatures from over eighty per cent of the employees in the bargaining unit. Although many of those signatures were obtained on Company premises during working hours, the circumstances were not such that employees would reasonably perceive that the petition was supported by management or that the names of employees who declined to sign it would become known to management. Two of the circulators were flexo bandoleers whose job duties involved considerable movement around the plant. Some of the signatures were obtained during breaks, and no member of management was present when any of the signatures were obtained. Moreover, the petition was being circulated not by persons opposed to unionization, whose interests might reasonably be perceived to be allied with those of management, but by local union officials following discussions initiated by the membership as a result of widespread employee dissatisfaction with the CPU. Thus, in the rather unique circumstances of this case, the manner in which the signatures were obtained does not cast doubt upon their voluntariness, and the Board is prepared to accept and rely upon Mr. King's entirely candid and credible explanation of where he obtained the wording of the petition and the idea of circulating it.

30. We also find no merit in Mr. Wray's contention that the application should be dismissed because the wording of the petition refers only to employees no longer wishing to be represented by "the Canadian Paperworkers Union". It is clear from the evidence that this is not a case like the aforementioned Patrick McKeon case in which the petition was being circulated in order to get rid of the parent union but retain the local, and in which it was unclear whether the employees who signed the petition understood the nature of the document they were signing. In the instant case the petition was clearly being circulated in order to preserve the employees' option of changing bargaining agents. As noted by the Board in Genwood Industries Limited, [1976] OLRB Rep. Aug. 417, at paragraph 7, "[i] is the duty of the Board to concern itself with the substance and not merely the form of documents tendered in support of an application for termination of bargaining rights." In paragraph 8 of that decision, the Board went on to state:

It is the intention of section 49 [now section 58] that it shall be the primary concern of the Board to ascertain the wishes of the employees voluntarily expressed in writing. The right of employees to come before us would be seriously abridged, and the ability of the Board to ascertain their wishes would be unnecessarily fettered, if we were to adopt the "forms of action" approach suggested by [counsel for the respondent]. The right of a group of employees to bring their written wishes before the Labour Relations Board cannot be made to depend strictly upon the choice of words made by persons who may be uninitiated in the niceties of pleading. Frequently, as here, petitions of this kind are drafted by rank and file workmen of limited writing ability and without the assistance of legal counsel. To adopt the legalistic approach suggested would be unrealistic and would frustrate the intention of the Act.

(See also Duke's Hotel (1977) Inc., [1979] OLRB Rep. April 298.) Having regard to all of the evidence and the inferences which may reasonably be drawn from the evidence, we are satisfied that the reference in the petition's heading to "the Canadian Paperworkers Union" was intended by its circulators and understood by its signers to be a reference to the employees' current bargaining agent, which is the "Canadian Paperworkers Union and its Local 934" under the terms of the aforementioned collective agreement that was jointly negotiated and signed by the National and the Local.

31. The fact that 26 of the 107 signatures appear on the petition's reverse side which does not have a heading is also of no moment in the instant case as it is evident that even if the Board disregards all 26 of those signatures, the signatures on the front of the petition that coincide with names on the employer's list constitute well over the requisite forty-five per cent of the employees in the bargaining unit.

32. We are also unpersuaded that this application should be dismissed because some of the employees who signed the petition were told that its purpose was to keep their options open. In the context of a termination application which, under section 59 of the Act, does in fact involve a two-stage procedure of which the petition (if found to be voluntary) is but the first, we see nothing improper about the circulator of a petition indicating to potential signatories that it is intended to give them the option of subsequently voting for or against continued representation by their bargaining agent. We are satisfied on the evidence adduced before us that this is what the circulators of the petition understood its purpose to be, and what they conveyed to the employees with whom the matter was discussed.

33. Thus, we are not persuaded that the matters raised by respondents' counsel in his able submissions, whether considered individually or cumulatively, warrant the rejection of the petition filed by the applicants. Nothing in the evidence provides any suggestion of managerial involvement in or support for the petition, which was circulated by local union officials in order to preserve the option of the bargaining unit employees to act upon their pre-existing dissatisfaction with their current bargaining agent by terminating its bargaining rights as a first step towards changing unions.

34. For the foregoing reasons, the Board is satisfied on the totality of the evidence that not less than forty-five per cent of the employees in the bargaining unit at the time the application was made, had voluntarily signified in writing that they no longer wished to be represented by their current bargaining agent on October 21, 1991, the terminal date fixed for this application and the date which the Board determines, under section 105(2)(j) of the Labour Relations Act, to be the time for the purpose of ascertaining the number of persons who have voluntarily signified in writing that they no longer wish to be so represented under section 58(3) of the Act.

35. The Board directs that a representation vote be taken of the employees of the intervener in the bargaining unit described in paragraph 3 of this decision. All those employed in the bargaining unit on the date of this decision who are so employed on the date the vote is taken will be eligible to vote.

36. Voters will be asked to indicate whether or not they wish to be represented by The Canadian Paperworkers Union and its Local 934 in their employment relations with Domtar Inc.

37. The matter is referred to the Registrar.

DECISION OF BOARD MEMBER RENE R. MONTAGUE; June 24, 1992

I concur with the majority in this termination application and ordering a vote, but in my opinion the only losers in this application will be the employees if they choose to vote to decertify themselves from the Canadian Paperworkers Union to join another union. If the employees choose to decertify themselves they will loose all the economic power they enjoyed while part of a master agreement with 7 other plants. The only winner will be the employer Domtar, as now they can play one plant against the other.

In the past albeit not perfect, the Canadian Paperworkers Union had some clout at the bargaining table, with the possibility and threat there that the Company could be shut down at all 8 locations. This economic power will be diminished greatly.

In the past the employees were part of the decision making that affected them but now if they vote to go to another union they may have to accept what someone else has negotiated and they will have had absolutely no say or power to do otherwise.

In closing remember "the union" is you the employees and will be no stronger than you are prepared to make it no matter what name you attach to the union be it Canadian Paperworkers Union or International Woodworkers Union.