Ontario Labour Relations Board

[1994] OLRB Rep. December 1641

2031-94-R National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada), Applicant v. Dualex Enterprises Inc., a division of Depco International Incorporated, Responding Party v. Group of Employees, Objectors

BEFORE: Gail Misra, Vice-Chair, and Board Members W. A. Correll and H. Peacock.

APPEARANCES: Craig Grant and Kim Saliba for the applicant; Richard Anstruther, Nick Mattina, Sonya Veinot and Timmie McFarlane for the responding party; Augustine Bonsu, Mike Mody, Jelka Selak, Anna Smenderova and Ethel Perrier for the objectors.

DECISION OF THE BOARD; December 5, 1994

1. This is an application for certification.

2. The Board finds that the applicant is a trade union within the meaning of section 1(1) of the Labour Relations Act.

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

all employees of Dualex Enterprises Inc., a division of Depco International Incorporated, at 340 Rexdale Blvd., Rexdale, save and except supervisors, persons above the rank of supervisor, technical employees, office and clerical staff.

Clarity Note: The parties agree that "technical employees" includes research and development technicians, quality assurance technicians and electricians.

4. A hearing was held by the Board to inquire into allegations made by a group of ten employees that they had been intimidated and coerced by union organizers in the course of the organizing drive. It was submitted by counsel for the employees that the Board should order a rep­resentation vote be held to determine the true wishes of the employees. The responding party's counsel participated vigorously in this case and supported the position of the group of employees.

5. Over the course of two days of hearings, the Board heard the evidence of Anna Smen­derova, Anna Stergar, Grace Labella, Ethel Perrier, Martin Komes, Jelka Selak, Archibald Nimmo, Stan Nowicki, Ed Malone, and Robert Fitton, all of the objecting employees. The appli­cant called one witness and the responding party called no evidence. In arriving at our findings of fact, the Board has carefully considered all of the evidence before it and has taken into account such factors as the demeanour of the witnesses when giving their evidence, the clarity and consis­tency of that evidence when tested in cross-examination, the witnesses' ability to recall events and resist the tug of self-interest in shaping their answers, and what seems most probable in all of the circumstances.

6. The background to this hearing was that the applicant (also referred to as the "union") filed its application for certification on September 8, 1994. Notices to the employees of the applica­tion for certification were posted in the workplace on September 14, 1994. The terminal date set by the Board for the certification application was September 19, 1994. By a letter dated September 18, 1994, and received at the Board on September 19, 1994, counsel for the group of objecting employees filed an untimely petition and an affidavit suggesting that the union had acted in a coer­cive and intimidating manner during the organizing campaign, had made misrepresentations and promises to employees to induce them to sign membership applications, and had harassed and pressured employees to sign membership applications. In addition, the affidavit alleged that the union had pressured females and members of minority groups, and had discriminated against a group of employees in the course of organizing. The allegations were made in an affidavit sworn by Mr. Augustine Bonsu. Mr. Bonsu never gave evidence at the hearing.

7. Following a decision of the Board (panel differently constituted) dated October 13, 1994, the group of employees provided particulars of the allegations they would be making at a hearing before the Board. However, since counsel for the group of employees had still failed to identify who was making the allegations, the Board (panel differently constituted in part), by a decision dated October 26, 1994, ordered that Mr. Mody provide the applicant and the responding party (also referred to as the "employer") with the names of the employees who were making alle­gations against the union.

8. The October 21, 1994, letter containing the allegations made by the objecting employ­ees is outlined below. The version reproduced has been amended at the joint request of the parties to reflect the names of the employees and some changes which the employees' counsel made to their allegations.

"Further to your letter dated October 17, 1994, the following are the particulars of allegations from the objecting employees.

Grace Labella: Mary Youssef and Stella Lalonde, harassed me everyday, followed me everywhere and repeatedly asked me, on the work and outside, "did you sign the membership card, if not, why not, what have you got to lose?"

Both of them either together or alone followed me in washroom, cafeteria, left membership cards in my shop coat and followed it up with asking questions, "did you sign it?".

They often told me that the union will get me higher wages, more prestige and power, security and peace of mind. If the union does not get certification then I may lose job, the company may close down or move to U.S.

I was so much fed up that I gave it up and signed it, not knowing whether or not I was making a right decision. I still do not understand as to what is union and why they were so much after me to get it signed?

Ethel Perrier: Mary Youssef and Teresa Snook, pressured me during and on the job to sign membership cards.

Mary Youssef came over every where and time, and asked me "did you sign the card?, the card are [sic] in locker; go and sign it".

Teresa Snook, told me that the company will move to U.S. if we do not unite together. The union will bring us security, more benefits and higher wages. Both of them harassed me to such an extent that just to get them of [sic] my back I signed it. To date, I do not know what the union is and why my signature was so important.

Mary Youssef had followed me on the job while I was working and concentrating on my work. She keeps showing me the cards & telling me the cards are in Maria's locker. Maria pushed me in the washroom and said are you going to sign or not.

Anna Stergar: Mary Youssef called me at my home on Sunday and said, "the union will get me higher wages, more benefits than what I have been receiving, so it is in my interest that I should sign up".

Amy Fagundes followed up the conversations left behind by Mary Youssef, and followed me every where including during my work time, in cafeteria, washroom and put membership cards in my pocket. She wouldn't let me go until I signed the membership card.

She put intense pressure on me during the time I was working, put cards in my pocket and on my work desk. I was blinded by the pressure.

Anna Smenderova: Mary Youssef came to my home on September 15, 1994 and told me to sign membership card. She followed it up by calling me at home and wouldn't give it up. She told me that union is the best for me, will get higher wages, security and peace of mind. I was pressured, and I doubted myself whether, was it true that I will lose every thing if the union is not certified? I was confused. And when Mary Youssef showed up often, out of fear, I didn't signed [sic] the card.

Jelka Selak: Mary Youssef followed me to a near by shopping plaza. She promised me that the union will get me higher wages, power and prestige. She followed me, every where and she was not giving up until I signed the card. She put intense pressure while I was on the job and work­ing.

Stan Nowicki: On one occasion, at 6 a.m. when I was coming out of my car, she approached me and asked me to sign the card, let us have a union.

Mary Youssef followed me in storage room and asked me "did you sign card?, the card is in your tool box, how long does it take to signed [sic]?".

Joan Pitter, put card in my pocket.

Robert Fitton: Mary Youssef followed me in cafeteria and asked me, "did you sign?, if you want to keep your job then you better signed [sic] it".

Archie Nimmo (Archibald): Stella Lalonde asked me, Why don't you sign card and forget every thing. Mary Youssef followed up intensely and asked me repeatedly, "why don't I signed [sic]?."

Eddie Malone: Mary Youssef told me that I will lose job if the union is not certified. The union will get me higher wages, security and prestige.

Martin Komes: Mary Youssef at least once a month asked me to sign: "The union is coming anyhow so there is no need to delay it". I am the Chairperson of the plant for Safety and the girls in my dept. said that Mary Youssef was harassing them during work time and what can I do to keep Mary away and let them do their jobs. As a Safety Pt. of view this was interfering."

9. The opening statement on behalf of the objecting employees suggested that the evi­dence would show that the union's conduct created a "profound fear" as to whether the employees should join the union or not, and would indicate that the union had collected membership applica­tions through intimidation and material misrepresentation.

10. There is a significant body of the Board's jurisprudence which makes clear that where there are allegations of misconduct by the union in the collection of membership evidence, the Board will assess the evidence to determine whether it casts doubt on the reliability of the mem­bership cards submitted in support of the certification application. In a recent unreported decision, Davis Distributing Limited, Board File No. 1151-94-R, September 8,1994 [now reported at 91994] OLRB Rep. Sept. 1190], the Board summarized its approach as follows:

11. In deciding whether improper conduct by a union organizer casts doubt on the voluntariness of membership evidence, the Board is conscious of the heavy reliance that it places on member­ship evidence filed by a trade union in certification applications. In order to protect the integrity of a certification process which depends on such evidence, the Board takes care to ensure that where improper conduct is alleged, it is satisfied that it does not cast doubt on the reliability of that evidence: see, for example, Can-Eng Metal Treating Ltd., [1988] OLRB Rep. May 444.

12. At the same time, the Board is also concerned that it not impose artificial standards of behav­iour that are contrary to normal human interaction. The Board has stated that it does not act as a censor of the social pressures which are common to an organizing campaign on the part of those who either support or oppose the union. It would not be a surprise if some employees find the choice a difficult one, if some employees find it harder than others to resist peer pressure from one side or another, or if some employees make a decision which they later regret. It would not be a surprise to find that some statements made during an organizing drive turn out to be wrong, are rude or annoying, or cause distress. The Board assumes that the average employee engaged in a debate about the merits of unionization with other employees has a cer­tain level of ability to make up his or her own mind and to act in accordance with his or her own volition.

13. In order to remain realistic about the social pressures that accompany an organizing drive, the Board has stated that it will treat as qualitatively different improper conduct on the part of union officials and improper conduct by a fellow employee. Further, the Board distinguishes between physical threats and threats to job security, and comments which do not contain those elements either directly or by implication: see The Kendall Company (Canada) Limited, [1975] OLRB Rep. Aug. 611 and Dupont of Canada Ltd., [1961] OLRB Rep. Jan. 360. The Board has also distinguished between misrepresentations which are not fundamental in that they do not relate to the effect or purpose of the membership evidence, and those that do: see Masters Con­struction Ltd., [1988] OLRB Rep. Feb. 162.

14. In this context, the Board ultimately looks to whether the conduct at issue would deter the reasonable employee, in other words, whether the reasonable employee faced with those cir­cumstances would be able to make his or her own decision about union representation.

In our assessment of the evidence, we have adopted the approach outlined above. The facts, as we find them, are outlined below.

11. Anna Smenderova, an employee of Dualex for four and a half years, testified that Mary Youssef, an inside union organizer, and Daniel Kaplan, a union organizer, visited her home on September 15, 1994, to induce her to sign a membership card. Ms. Smenderova insisted that this visit occurred on the date she claimed, although the application for certification was filed on Sep­tember 8, 1994. Ms. Smenderova's adult son came home from work during the visit and partici­pated in some of the conversation. Ms. Smenderova indicated in her evidence that she was not afraid of Mary Youssef, and never had been. She did not sign a membership card. To the extent that this witness's evidence is of any assistance to us in our determination, we find that Ms. Smen­derova was not intimidated and felt no fear from any union organizer, so much so that she did not sign a membership card.

12. Anna Stergar has worked at Dualex for three and a half years. She testified that Ms. Youssef had called her at home and asked her to join the union in November 1992 and never again. She also indicated that another Dualex employee, Amy Fagundes, had called Ms. Stergar at home one evening in September 1994 to ask her to join the union, but Ms. Stergar told Ms. Fagundes she was undecided. According to this witness, neither Ms. Youssef nor Ms. Fagundes followed her anywhere, and Ms. Fagundes did not push membership cards on her. Ms. Stergar emphatically denied that Ms. Fagundes pressured her and indicated she was not threatened or inti­midated by Ms. Youssef or Ms. Fagundes. Ms. Stergar never signed a membership application. She says most of the statements in the October 21, 1994, letter outlined above, which have been attributed to her, were not her allegations at all. She was simply contacted in 1992 by Mary Yous­sef, and again in September this year by Ms. Fagundes, and chose not to sign a card. As with the previous witness, Ms. Stergar's evidence indicates that there was no misrepresentation, intimida­tion, or coercion by the union with respect to her.

13. Martin Komes is a Press Roll Form Set-Up Lead Hand at Dualex and has worked there for four years. Mr. Komes testified he was approached by Mary Youssef about once a month for some unspecified period of time to ask him to sign a union membership card, but he did not do so. The rest of Mr. Komes' testimony consisted of hearsay evidence and the Board declines to give it any weight. There is nothing in Mr. Komes' evidence to lead the Board to conclude that the union acted improperly in the course of its organizing campaign.

14. Jelka Selak has been a General Assembler at Dualex for almost eight years. Ms. Selak alleged that Ms. Youssef followed her to a shopping plaza and talked to her for half an hour to 45 minutes about joining the union. She could not recall when this event took place, whether it was on a weekend, or weekday, and had no basis for her allegation that Ms. Youssef had followed her to the plaza. Since Ms. Selak had her son with her at the plaza, she agreed she must have been home first before the visit to the plaza, however, she could not testify that Ms. Youssef had also followed her home before the trip to the plaza. Nonetheless, Ms. Selak did recall that Ms. Youssef had promised that the union would get her higher wages, power and prestige. Ms. Selak's allega­tions in the October 21, 1994, letter suggest she was subjected to intense pressure and that Ms. Youssef did not give up until Ms. Selak signed a membership application. In her oral testimony, however, it became obvious that the statement in the letter was incorrect and may have been made as a result of Ms. Selak's limitations in the use of the English language. Ms. Selak testified that she was not afraid of Mary Youssef and had never signed a membership card.

15. The Board does not accept that Ms. Youssef followed Ms. Selak to the shopping plaza as there is no evidence to support such a proposition. It is more probable than not that Ms. Yous­sef noticed Ms. Selak at the plaza and used the opportunity to speak to Ms. Selak about joining the union. As with the evidence of the other employees in the group of objecting employees, Ms. Selak's evidence does not disclose any wrongdoing on the part of the union, and it is clear that Ms. Selak was not coerced or intimidated into joining the union. We are not convinced, having heard Ms. Selak give evidence, that Ms. Selak's English language skills are such that she would have used some of the words attributed to her in her allegations in the October 21, 1994, letter. Nonetheless, we do accept Ms. Selak's evidence that Ms. Youssef told her that a union would get her higher wages. However, such a comment amounts to no more than salesmanship on Ms. Youssef's part and we do not find that it casts doubt on the voluntariness or reliability of other membership evi­dence collected by Ms. Youssef.

16. Stan Nowicki is a toolmaker at Dualex and has worked there for three years. Mr. Now­icki was approached about one year ago, in 1993, by Ms. Youssef and was encouraged to sign a union membership card. He testified he did not take seriously Ms. Youssef's claims about what the union could do for him. He also recalled that a year or year and a half ago Joan Pitter put an enve­lope in his jacket pocket which turned out to contain a union membership form. The third instance Mr. Nowicki testified to was during the recent campaign. Stella Lalonde approached him in the Dualex parking lot at 6:00 a.m. when he was arriving for work. She told him of the advantages of having a union and what had been happening with two Dualex employees. Mr. Nowicki told Ms. Lalonde he could not make a judgement about the plight of the two employees without hearing the other side of the story, and in any event, would not sign a card. There is no evidence he was approached again. Mr. Nowicki indicated he was not threatened or intimidated by Stella Lalonde.

17. Mr. Nowicki's evidence of events which occurred a year or more ago is of little assis­tance to us, due not only to the fact that it relates to an earlier campaign, but also because it dis­closes no intimidation, coercion, or material misrepresentation on the part of the union. Similarly, the meeting with Stella Lalonde discloses no such action on the part of the union or its organizers. Like all of the other employees whose evidence was put before the Board, Mr. Nowicki did not feel threatened or intimidated by his co-workers, and he exercised his right not to sign a union membership application.

18. Ed Malone, an extrusion operator, has worked at Dualex for four and a half years. He testified that Ms. Youssef had approached him around September 6, 1994, and had wanted him to sign a membership application in support of the union. She told him that if the employees had a union, the employees could get higher wages and the company could not close the door and leave. She indicated that if the company closed the next day and there was no union, then the employees would not get severance pay. However, if there was a union they could get six months' severance pay. Mr. Malone testified he did not know whether to believe Ms. Youssef but he told her he did not want a union in the workplace. Mr. Malone felt Ms. Youssef was being a pest, but she did not frighten him and he was clear that he did not want the union. It is noteworthy that this witness, like a number of the other witnesses, indicated that although the October 21, 1994, letter setting out the employee allegations quotes him as saying the union would get him prestige, he never said that.

19. Ms. Youssef appears to have outlined what she believed were the benefits which would accrue to employees if they organized their workplace. In that process~ she gave some misleading information with respect to severance pay. However, Mr. Malone knew he could not believe everything he was being told, and he did not sign a card. As the Board stated in Davis Distributing Limited, cited above, some statements made during an organizing drive, especially by a fellow employee, may turn out to be wrong. However, the Board assumes that an average employee will have the ability to make up his or her own mind, and act accordingly. Mr. Malone did make up his own mind and decided not to support the union despite Ms. Youssefs comments. The Board finds nothing in Mr. Malone's evidence to establish that there was union misconduct in the organizing campaign.

20. Robert Fitton, a three and a half year employee of Dualex, gave evidence of Ms. Yous­sef giving him a union membership card to sign in January 1993. He testified that at that time Ms. Youssef told him if the union came in he could not lose his job because the employer would not be able to fire anyone who signed a card. Mr. Fitton did not believe her, was not scared of her, never stgned a card, and was never approached again. As with parts of Mr. Nowicki's evidence, Mr. Fit-ton's evidence relates to a time more than a year and a half ago. It is of no assistance to the Board in its determination of whether there was union misconduct in the campaign preceding September 1994 when the present application was filed. In any event, Ms. Youssef's comments were more akin to a sales pitch and were not threatening to Mr. Fitton's future employment prospects.

21. Archibald Nimmo has been a toolmaker at Dualex for five months. It was his evidence that in August 1994 Stella Lalonde approached him to sign a union membership card and he refused. One week later he was approached by Mary Youssef and asked to sign a card again, and he told her to "get lost". On about three occasions after that he was asked by Ms. Youssef to sign and he declined every time.

22. In cross-examination by counsel for the employer, Mr. Nimmo made further allegations which had never been raised previously and which the parties had not been advised of through the disclosure ordered by the Board. Mr. Nimmo's allegations in the October 21,1994, letter made no mention of the instance he alluded to in cross-examination. The gist of Mr. Nimmo's claim is that while Ms. Youssef never said anything to him to induce him to sign a membership card, in her capacity as the Quality Assurance person, she may have acted improperly. He alleges that at some time around the end of August 1994 Ms. Youssef indicated to Mr. Nimmo's supervisor that there was a problem with a product coming off one of the lines. Since Mr. Nimmo was responsible for that line at that juncture, his supervisor asked him to check it. As the toolmaker, it is Mr. Nimmo's job to deal with any problems which the quality assurance people find through their visual or mechanical inspections. Mr. Nimmo was of the view there was no problem with the product. Ms. Youssef wanted him to adjust the line because in her capacity as the Quality Assurance inspector on that line that day she perceived a problem. Mr. Nimmo was upset because the line had to be shut down for about one and a half hours to deal with the concern Ms. Youssef raised. On the stand, Mr. Nimmo insisted he was correct and there had been no problem with the parts coming of that line. He agreed it was pure supposition on his part to think that this incident had anything to do with his refusal to sign a membership application in support of the union, but he felt it was a form of harassment. He said he does not feel threatened or intimidated by Ms. Youssef as she is a woman and he is a man. There was no evidence of any repercussions to Mr. Nimmo as a result of the line stoppage.

23. The Board views Mr. Nimmo's evidence with respect to the late August incident as self-serving and speculative. It would appear that Ms. Youssef was simply doing her quality assurance job, and whether Mr. Nimmo agreed with her concern or not, it was his job to service the line. It is unclear to the Board why, if this was something which Mr. Nimmo believed to have been a repri­sal, he did not raise it sooner, with either his employer or his counsel. The totality of Mr. Nimmo's evidence does not disclose any intimidation, coercion, or misrepresentation by the union to Mr. Nimmo, and the evidence does disclose that Mr. Nimmo was steadfast in his refusal to sign a mem­bership for the union.

24. Two individuals who did sign membership applications are among the group of employees who are alleging that the union's conduct created such a profound fear in them and that the union's conduct consisted of material misrepresentations, intimidation and coercion. The evidence and the Board's findings with respect to these two employees, Grace Labella and Ethel Perrier, are outlined below.

25. Grace Labella has worked at Dualex for a little over six years. This witness could not recall any dates, months, or simple time frames. Although the organizing campaign had been con­ducted in late August and early September 1994, approximately eight weeks before the hearing into this matter, she had no idea when anyone said anything to her. In cross-examination, she did recall voluntarily attending two meetings hosted by the union in 1992 or 1993, where she had met Mr. Craig Grant, a National Representative for the union. On one of those occasions she received Mr. Grant's business card which, in addition to the union's address and local telephone number, has a toll-free telephone number on it. Ms. Labella was invited to attend a union meeting in the 1994 campaign but chose not to attend.

26. Ms. Labella indicated that at some unspecified time Mary Youssef had given her two union membership applications to take home and sign, one for her and one for her husband who also works at Dualex. Ms. Labella never returned them and was later given another two by Stella Lalonde, another Dualex employee. According to Ms. Labella, Ms. Youssef and Ms. Lalonde repeatedly asked her if she had signed her membership card. Ms. Youssef apparently told Ms. Labella that she would be "guaranteed" higher wages if the union came in. In her evidence, Ms. Labella recalled that Ms. Youssef had said that if a union came in and the plant closed and went to the United States, then Ms. Labella would get a severance package. According to Ms. Labella, Ms. Youssef was referring to "Dualex 2", a sister company which had closed and gone to the United States. Ms. Labella testified that Ms. Youssef was saying the same would "probably" or "possibly" happen at Dualex if they did not get a union. Ms. Labella knew that the rumour was Dualex 2 had closed because of having a union. It is unclear when this conversation took place, but the witness indicated it was "maybe" in the lunchroom/cafeteria where there was a group of employees discussing the unionization. She said no such conversation took place alone with Ms. Youssef. Indeed, Ms. Labella said "they maybe talked about it" and when questioned as to who "they" may be, indicated there was a group of workers from the plant who had been having a dis­cussion.

27. Although Ms. Labella claimed she had felt harassed by Ms. Youssef, who kept asking her if she had signed a card, she did not complain to her employer or to her husband. Her spouse is on a workplace committee designed to help anyone who needs help, but she did not approach him. Dualex also has a harassment policy in place which Ms. Labella was aware of. Ms. Labella had met Mr. Grant on two occasions and had received his business card, but she said she did not think there was any need to call him about her apparent concerns.

28. As with some of the previous witnesses, Ms. Labella indicated she had not made some of the allegations outlined in the October 21, 1994 letter reproduced above. She specifically made no allegation that she had been told the union would get her "prestige and power", and did not allege the second sentence of that paragraph, that "if the union does not get certification then I may lose job [sic], the company may close down or move to U.S.". Ms. Labella attended a meeting with Mr. Mody, counsel for the group of employees, because her sister, Ethel Perrier, told her there was a meeting against the union and because Ms. Lalonde had never thought the union would actually get far enough with its campaign to file an application. She had signed a member­ship card to get the organizers and her co-workers to leave her alone. She said she signed to stop them "nagging" her and to "get rid of them". She testified she was neither afraid nor intimidated by Ms. Youssef. She was also not afraid of Ms. Lalonde, although she was a little intimidated by her. There was no evidence of why Ms. Labella was a little intimidated by Ms. Lalonde.

29. Although there may be some question about what Ms. Youssef told Ms. Labella in an effort to get her to sign a membership card, it is clear that Ms. Labella was not coerced or intimi­dated into signing, and signed only to stop people from asking her if she had signed. She thought the union would not get sufficient support to file an application, and she had participated in the earlier campaign in 1992 or 1993, which had not come to anything, so it appears she assumed this one would not either. It was only after the application was filed that she decided perhaps she should not have signed and then made some of the allegations now before the Board. There appears to have been some group discussion of what severance package the employees could get in the event Dualex was organized and closed down to move to the United States. However, Ms. Labella recalls Ms. Youssefs comments in the context of the group discussion as being tentative. There was no suggestion that the company would close down and move to the U.S., but rather that it was possible that it may, and in the event that it did, if there was a union at Dualex, the employ­ees would get a severance package. To the extent that these comments were made by Ms. Youssef, they are more in the nature of a sales pitch than material misrepresentations. Having considered Ms. Labella's evidence, we find that at the time she signed the membership application she did so freely and without coercion. Her present allegations are made because she has changed her mind. Pursuant to section 8(4)(2) of the Labour Relations Act, the Board does not give any consideration to evidence of this sort tendered after the certification application date. The Board finds that the union is entitled to rely on the membership evidence tendered on behalf of this employee, as it rep­resents the true wishes of this employee at the time she signed and at the time the membership evi­dence was submitted on her behalf.

30. Ethel Perrier has worked at Dualex for five years as a packer. According to her, the pressure applied to her to get her to sign a card was that she was asked repeatedly to sign, and eventually did so. At work, Teresa Snook, a co-worker, asked her to sign a card "a couple of times" and Mary Youssef asked her to sign a card "a couple of times". According to Ms. Perrier, she could not recall exactly what was said, but Ms. Snook told her Dualex may move to the U.S. if the employees did not unite together. Ms. Snook said that if the union did not come in and the company closed down, the employees would not get any severance payments. Ms. Perrier said other employees were also talking about this issue, and indeed, everyone was talking about the union, but she was emphatic that Ms. Youssef never told her about the possible company move to the United States. In any event, Ms. Perrier testified she was not sure whether she should believe what she was hearing. Ms. Snook also told Ms. Perrier that the union would get the employees higher wages.

31. Ms. Perrier signed a membership card in the women's washroom at Dualex. Ms. Perrier had gone to the washroom and was about to enter a stall when another employee, Maria, approached her with a card, asked her to sign it, and pushed Ms. Perrier at the top of her shoulder to get her to go further into the stall so that Maria could also enter. Ms. Perrier did not take offence, but said she would sign if she would not have to hear any more about the union after this. Ms. Perrier then grabbed the card and signed it. Maria and Ms. Perrier work together and while they are not good friends, they have socialized together outside of working hours. Counsel for the employer attempted to negatively characterize the occasion when Ms. Perrier signed a membership card. From the evidence before us, we conclude that there was nothing untoward in the incident, but merely two employees who know each other well who were acting in a familiar fashion towards each other.

32. According to Ms. Perrier, she was not threatened or intimidated by Ms. Youssef, and was never scared of her. She also never felt threatened or intimidated by Maria. Ms. Perrier says she was not sure whether to believe what was being said about the union or not. She said she signed a card in large part because she did not want to hear any more about the union and just wanted Maria to "get off' her back.

33. After Ms. Perrier heard that the union had filed an application for certification, she was "pissed off' that she had signed a card when she knew she should not have. She therefore made the allegations which are the subject of this hearing.

34. From the evidence before us, there is nothing to suggest that Ms. Perrier was threat­ened, coerced, or misinformed to the extent that she signed a membership card as a result. She was clear that the reason she signed was because she wanted people to stop asking her whether she had signed, and talking to her about the union. Then when she realized the union had actually filed a certification application, she was angry with herself for having signed and so filed these allegations. We do not find anything in her evidence to demonstrate any wrongdoing by the union. To the extent that there were comments made about the company possibly moving to the U.S., it does not appear that those comments weighed significantly in Ms. Perrier's decision to sign a card. As with Ms. Labella, the Board finds that Ms. Perrier had a change of heart after she had succumbed to peer pressure, had signed a card, and later realized that the union had filed a certification applica­tion. As such, her situation falls within the parameters of section 8(4)(2), and the Board declines to consider her evidence. The Board finds that the union is entitled to rely on the membership evi­dence tendered on behalf of this employee, as it represents the true wishes of this employee at the time she signed and at the time the membership evidence was submitted on her behalf.

35. For the reasons outlined above, the Board finds there is no substance to the allegations made that the applicant union's conduct created a "profound fear" among the employees as to whether or not they should join the union, and did not indicate that the union had collected mem­bership applications through intimidation and material misrepresentation. The union is therefore entitled to rely on the membership evidence it submitted for the purposes of the count.

36. In accordance with the Rules of Procedure, respecting applications for certification, the employer has filed a list of employees in the bargaining unit at the time the application was made.

37. 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 responding party in the bargaining unit on September 8, 1994, the certification application date, had applied to become members of the applicant on or before that date. In keeping with the Act's objectives, since we find no taint in the membership evidence, we decline to order a representation vote as the applicant has the support of more than fifty-five per cent of the bargaining unit.

38. A certificate will issue to the applicant.