Garage Workers Maple Lodge Farms Ltd. v. United Food and Commercial Workers International Union, Local 175, AFL-CIO-CLC, 1994 CanLII 10002

[1994] OLRB REP. OCTOBER 1371

1837-94-R Garage Workers Maple Lodge Farms Ltd., Applicant V. United Food and Commercial Workers International Union, Local 175, AFL-CIO-CLC, Responding Party v. Maple Lodge Farms Ltd., Intervenor

BEFORE: Gail Misra, Vice-Chair, and Board Members R. Sloan and K. Davies.

APPEARANCES: Maxwell Kirby, Syed Hussain and James Rodgers for the applicant; Kelvin Kucey for the responding party; Marilyn Silverman and Debra May Kee for the intervenor.

DECISION OF THE BOARD; October 4, 1994

1. The applicant has applied to the Board under section 58 of the Labour Relations Act for a declaration that the responding party (hereinafter also referred to as the "union") no longer rep­resents the employees in the bargaining unit for which it is the bargaining agent.

2. The bargaining unit which is the subject of this application consists of:

all employees of Maple Lodge Farms Ltd. employed in its garage at R.R. #2, Norval, Ontario, save and except general garage foreman, persons above the rank of general garage foreman, driver trainer, and office and clerical staff.

3. It was common ground among the parties that this application was timely. However, a hearing was held on September 19, 1994, to determine the issue of the voluntariness of the petition filed by the applicant in support of this application. Having heard the evidence of the applicant and having considered the submissions of the parties, the Board ruled orally as follows:

Having heard the submissions of the parties, we hereby grant the non-suit motion made by the responding party. This application is dismissed. Our reasons will follow.

4. These are the reasons for that decision.

5. The relevant sections of the Act for the purposes of this termination application are as follows:

58.-(1) If a trade union does not make a collective agreement with the employer within one year after its certification, any of the employees in the bargaining unit determined in the certificate may, subject to section 62, apply to the Board for a declaration that the trade union no longer represents the employees in the bargaining unit.

(2) Any of the employees in the bargaining unit defined in a collective agreement may, subject to section 62, apply to the Board for a declaration that the trade union no longer represents the employees in the bargaining unit,

(a) in the case of a collective agreement for a term of not more than three years, only after the commencement of the last two months of its operation;

(b) in the case of a collective agreement for a term of more than three years, only after the commencement of the thirty-fifth month of its operation and. before the commencement of the thirty-seventh month of its operation and during the two-month period immediately preceding the end of each year that the agreement continues to operate thereafter or after the commence­ment of the last two months of its operation, as the case may be;

(c) in the case of a collective agreement referred to in clause (a) or (b) that provides that it will continue to operate for any further term or successive terms if either party fails to give to the other notice of termination or of its desire to bargain with a view to the renewal, with or without modifications, of the agreement or to the making of a new agreement, only during the last two months of each year that it so continues to operate or after the com­mencement of the last two months of its operation, as the case may be.

(3) 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.1) 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.

6. The Board has established that the burden of proving, on the balance of probabilities, that a petition represents the voluntary expression of the employees who signed it, lies with the applicant. In order to satisfy its onus, the applicant is required to provide the Board with credible evidence regarding the origination, preparation, and circulation of the petition (see Hully Gully London Ltd., [1990] OLRB Rep. Feb. 160). The precise nature of the evidence required by the Board was set out in Hully Gully London Ltd., supra, as follows:

7. The Board has declined to accept petitions as voluntary expressions of employee wishes where there is inadequate first hand evidence regarding the origination and preparation of the petition (see Dynasty Inn, [1986] OLRB Rep. Mar. 326; Markham Hydro Electric Commission, [1984] OLRB Rep. Oct. 1481; Upper Canada Glass, [1981] OLRB Rep. Aug. 1181; Intercity News Company Limited, [1981] OLRB Rep. Feb. 171); where there are gaps in the evidence regarding ongoing custody of the petition (see Canada Dry Bottling Company Ltd., [1987] OLRB Rep. Mar. 337; Mac-Wood Machine Limited, [1975] OLRB Rep. Nov. 842); where there is inadequate or incomplete evidence regarding the circulation of the petition and the circum­stances surrounding each and every signature thereon (Skelhorns Bus Line Limited, [1986] OLRB Rep. Oct. 1435). Petitions have also been rejected where, absent any evidence or allega­tion of misconduct, the evidence offered on behalf of the applicant is internally inconsistent, unreliable, or otherwise lacking in credibility (see Custom Foam Specialties Limited, [1986] OLRB Rep. Dec. 1680; Fisher Scientific Limited, unreported October 19, 1989; Arosan Enter­prises Ltd., unreported January 9, 1990).

8. Mr. Syed Hussain appeared on behalf of the applicant group and was represented by his Agent at Law, Mr. Kirby. Mr. James Rodgers and Mr. Hussain gave evidence on behalf of the applicant group. It was Mr. Hussain's evidence that he had become involved in this application because some employees approached him and asked him if he would help them to decertify the union. Mr. Hussain drafted the petition, but he was not involved in the circulation of the petition or the collection of the signatures. Mr. Rodgers testified that Mr. Hussain had asked him to circu­late the petition. He met with employees in the parking lot of the workplace, which is outside the working premises. While Mr. Rodgers had collected all of the signatures on the petition, he did not give evidence of how he collected each signature or what steps were taken prior to the filing of the petition in support of the present application.

9. The union and the intervenor called no evidence. Following the applicant's evidence being adduced, the union made a non-suit motion and argued that the Board should dismiss the application on the grounds that the applicant had failed to prove its case.

10. It was uncontested that this application for decertification is the fourth such application filed by the employees of Maple Lodge Farms Ltd. in the past year and a half. While some of the applications have been withdrawn, the Board has issued one decision regarding a termination application. In the April 19, 1994, decision of a panel chaired by Vice-Chair M. Kaye Joachim, on Board File No. 3721-93-R [now reported at [1994] OLRB Rep. Apr. 447], the Board dealt with the voluntariness of a petition filed in connection with the application for termination of bargaining rights of the union. The Board outlined the onus which must be met by petitioners in order to establish the voluntariness of the petition. In Paragraph 13 of that decision the Board stated as fol­lows:

11. There is an onus on the applicant to satisfy the Board, on a balance of probabilities, that the petition filed represents the voluntary wishes of its signatories. In order to satisfy the onus, the Board requires credible evidence regarding the origination, preparation and circulation of the petition. (Hully Gully London Ltd., [1990] OLRB Rep. Feb. 160)). Although the Board has not laid down an exhaustive list of rules to apply in determining voluntariness, the Board has consid­ered many factors; the following are relevant to this case:

(a) The applicant is expected to call witnesses to give evidence, based on personal knowledge and observation, relating to the circumstances of the origination and preparation of the petition, and the manner in which each signature was obtained. Each and every signature on the petition must be identified and the circumstances under which it was obtained must be described. Where such evidence is not presented, the signature may, and likely will, be discounted. (Custom Foam Specialties Limited, [1986] OLRB Rep. Dec. 1680) (emphasis added)

(b) The Board has declined to accept petitions as voluntary expressions of employee wishes where there are gaps in the evidence regarding ongoing custody of the petitions (Hully Gully London Ltd., supra)

(c) Where management employees or employees who are associated with man­agement are involved in the circulation of the petition, the Board has declined to accept the petition as voluntary.

……In addition, the circulation of petitions must be free from the actual or perceived influence of management. Consequently, the Board will discount the signature of any employee who is, or is perceived to be, managerial. Similarly, where managerial personnel, or persons who are perceived as having a greater proximity to management than other employees, are involved in originating or circulating a petition, it is difficult to escape the conclusion that the employees would reasonably have perceived the petition to be supported by the employer and its reliability as a gauge of employee desires will be destroyed (Custom Foam, supra, at paragraph 11)

(d) Although there is no rule against circulating a petition in the workplace, the Board may question the voluntariness of a petition circulated at the work­place. The Board has reasoned that employees would likely perceive that a petition circulated in the workplace is supported or condoned by manage­ment. (Ontario Hospital Association Blue Cross, [1980] OLRB Rep. Dec. 1759.)

10. The applicant has not provided the Board with detailed evidence of the origination of the petition and the only evidence before the Board is that Mr. Hussain prepared it. There is no evidence before us with respect to the circulation of the petition, the continuity of carriage of the petition from the time it went from Mr. Hussain to Mr. Rodgers, and then to the Board, and, there is no evidence of the circumstances in which each and every signature was collected by Mr. Rodg­ers. We are therefore not prepared to accept that the statement of desire filed by the applicant rep­resents the voluntary wishes of the employees who are alleged to have signed the petition. On the basis of the evidence before us, the Board could not find that the required number of employees in the bargaining unit voluntarily signified in writing that they no longer wished to be represented by the responding party.

11. We note for the record that there was no evidence of employer involvement in this application for termination of bargaining rights.

12. It was for the foregoing reasons that we granted the union's motion to non-suit the applicant and dismissed this application on September 19, 1994.

13. By a letter dated September 28, 1994, Mr. Syed Hussain requested "a transcript of the complete hearing verbatim", and "a list of the Board's reasons" for our oral decision. This deci­sion gives our reasons for the oral ruling rendered on September 19, 1994. The Board does not make a verbatim transcript of any of its hearings, so Mr. Hussain's request cannot be granted. Notes taken by the panel during hearings do not constitute a transcript or record of the proceed­ings and have no official status (see Antoine A. Plennevaux, [1994] OLRB Rep. May 593)