Ontario Labour Relations Board
[1992] OLRB Rep. June 760
2110-91-R Elizabeth Gierasimczuk, Applicant v. United Food and Commercial Workers' International Union - Local 175, Respondent v. Royce Dupont Poultry Packers, Intervener
BEFORE: Susan Tacon, Vice-Chair, and Board Members W. A. Correll and K. Davies.
APPEARANCES: C. J. Abbass and Elizabeth Gierasimczuk for the applicant; Douglas J. Wray, Harold F. Caley and Jay Nair for the respondent; Irv Kleiner, Wayne Maracle and Ken Dew for the intervener.
DECISION OF THE BOARD; June 15, 1992
This is an application seeking termination of the bargaining rights held by the respondent trade union in respect of the employees of the intervener company.
The Board heard testimony from three persons, including the applicant and two witnesses called by the union. The Board has weighed and assessed that testimony, including the relative credibility of the witnesses, in the context of the documentary material filed with the Board and what is reasonably probable in the circumstances. Following the conclusion of the evidence, the Board heard the submissions of counsel. In this regard, it should be noted that Mr. Kleiner, acting on behalf of the intervener company, did not appear on the final day set for hearing and accordingly did not make submissions to the Board, for reasons set out in his letter to the Board of May 21, 1992.
In the Board's view it is not useful to recite herein its factual findings in any detail. Rather, the Board merely sets out those factors which were of greatest relevance, although, of course, all the circumstances in the instant case were considered individually and cumulatively. Likewise, there is no need to repeat the submissions of counsel. Both concisely reviewed the evidence in support of their respective assertions and the relevant jurisprudence.
There was no dispute that the onus of proving that the petition in support of the termination application was voluntary lies on the applicant. The jurisprudence clearly establishes that the applicant must satisfy this onus through adducing viva voce evidence concerning the origination and circulation of the petition, including the circumstances in which each signature was obtained. In such a context, the credibility of the applicant is critical. The Board has carefully reviewed the applicant's testimony in light of the usual factors going to credibility. The Board has some concerns with the applicant's credibility given that, at times, her answers were internally inconsistent or implausible in all of the circumstances. However, the Board's decision in this matter does not ultimately turn on this aspect alone and, thus, the Board need not elaborate further on this point.
The petition filed with the Board in support of the termination application cannot be faulted in its form. The date, time and place in which each signature was collected is indicated. Most signed at a restaurant near the company premises during lunch or break; the rest were obtained at the person's home or in close proximity to the restaurant. There was a typed information sheet available outlining the decertification process. The petition and the information sheet were prepared with the assistance of counsel. The applicant testified that the employees approached her to act on their behalf in initiating the termination application and she was simply carrying out their wishes. The triggering event for the instant termination application, the applicant stated, was the deduction of union dues from the employees' wages in July or August 1991 following the implementation of the first collective agreement between the parties.
.6. There was, however, a "first" petition approximately two weeks prior to the one filed with the Board in support of the termination application. The signatures on that petition were collected on company premises in a small room adjacent to the public area of the retail store and, least in some instances, during the working hours of those signing. More critically, several of the employees signing that document work in the plant and were directed to see the applicant at the retail store by "Paul", the manager. The applicant asked "Paul" to send several persons to see her when he (Paul) encountered the individuals at the plant. Paul, in telling the employees during their working hours that the complainant wished to see them, did not give a reason; the employees, when they approached the applicant, were presented with the petition to sign. While the applicant testified that Paul was requested to send over only two persons, the Board prefers the testimony of Austin Frank that four persons, including himself, were directed by Paul to see the complainant. Austin Frank testified that he cannot read and the complainant did not read the document to him or to the others; she directed them to sign and at least Austin Frank complied. Frank later learned the document was a petition against the union. He also signed the "second" petition which is the subject of the instant application.
In the Board's view, it would be reasonable for an employee to conclude in the circumstances that Paul (and the rest of management) knew of and condoned the applicant's activities in circulating a petition seeking to decertify the union and that management would learn which employees signed and which did not. Even if the applicant's motive in asking Paul to direct employees to her was entirely innocent, the fact remains that the employees were told by management to see the complainant and then were confronted with the petition opposing the union. The Board, given the evidence, is cognizant as well of the ethnic composition and literacy level of the workforce and the difficulty many have with the English language. A manager's direction to see the applicant and then the presentation of the petition would have considerable impact and underscore the linkage between management and the petition. The difficulties with the "first" petition do not necessarily taint the second. In the Board's opinion, in the instant case, however, the nature of the defect in the first, that is, the linkage of management and the applicant and the petition in the context of what employees would reasonably perceive that relationship to be,is such that the format and circumstances of the second petition cannot cure.
Moreover, the relationship of the company and the union prior to the instant termination application is of considerable significance. The union obtained bargaining rights through certification pursuant to section 8 of the Labour Relations Act as a result of a Board decision in May 1989 wherein the Board found numerous and egregious unfair labour practices committed by the employer, including clear threats to the job security of employees if the union was supported. The Board need not reiterate those findings (see Royce Dupont Poultry Packers, [1989] OLRB Rep. May 492) except to note the flagrant nature of the employer's conduct and the threats to the employees' employment prospects should the union be successful. While the past, even where the union is certified pursuant to section 8 will not automatically or necessarily taint a subsequent termination application, the Board must be sensitive to the lingering effects of egregious unfair labour practices on the likelihood of employees voluntarily seeking to decertify the union at the first available opportunity thereafter. The Board must be cautious and circumspect in assessing the circumstances surrounding the origination and circulation of a petition filed in support of such a termination application. Indeed, in the instant case, there had been attempts by employees, including the applicant, to decertify the union following the certification and prior to the instant application; those attempts were untimely. The parties did not finally conclude a collective agreement (which also resolved several grievances and new allegations of unfair labour practices) until July 1991. The first petition followed shortly thereafter and, approximately two weeks after that, the instant application was filed on September 28, 1991. This is not a case where, notwithstanding a certification pursuant to section 8, the Board is satisfied that the parties thereafter established a stable collective bargaining relationship and the opposition to the union by employees in the bargaining unit was prompted by concerns unrelated to the unfortunate start to the parties' relationship.
In all the circumstances, including concerns with respect to the complainant's credibility, the "first" petition and the context created by the employer's unfair labour practices resulting in the section 8 certification, the Board has concluded that the petition filed in support of the instant termination application is not voluntary. Accordingly, the termination application is dismissed.