[1994] OLRB Rep. December 1708
2765-94-R Rebecca Millar and Stacy Fenn, Applicants v. Retail Wholesale Canada, Canadian Service Sector Division of United Steelworkers of America, Local 448, Responding Party v. Wendy's Restaurants of Canada Inc., Intervenor
BEFORE: Gail Misra, Vice-Chair.
APPEARANCES: Rebecca Millar and Stacy Fenn for the applicants; Robert McKay, Bob Low, Janet Christie and Tony Matthews for the responding party; C. G. Riggs, D. M. Barbini, D. Newcombe and D. Orlando for the intervenor.
DECISION OF THE BOARD; December 14, 1994
[1]. The applicants have applied under section 58 of the Labour Relations Act for a declaration that the responding party no longer represents the employees of the intervenor, Wendy's Restaurants of Canada Inc., in a bargaining unit for which the responding party is the bargaining agent.
[2]. The parties agree that the applicants have filed the termination application in a timely fashion. The application was supported by three petitions bearing a total of 24 signatures. Of those signatures, 20 coincide with employees in the thirty-seven person bargaining unit. If these signatures are the voluntary signatures of the employees, the applicants would have filed the signatures of not less than forty-five per cent of the employees in the bargaining unit.
[3]. However, prior to the terminal date set for this application, the Board received two counter-petitions, or statements of reaffirmation, in support of the responding party (also referred to as the "union"). These documents bear the names of 22 employees of the intervenor employer, 21 of which coincide with names of employees in the bargaining unit. The preamble to the documents read as follows:
We, the undersigned bargaining unit members of Wendy's Restaurant in London at 243 Oxford St. E., confirm that we wish to be represented by Retail, Wholesale Canada, Canadian Service Sector Division of the United Steelworkers of America, Local 448 as our bargaining agent and we hereby withdraw our names on any document to the contrary.
The reaffirmation documents indicate on their face that they were circulated between November 9 and November 13, 1994, and were sent to the Board by registered mail on November 14, 1994, the terminal date set for this application. These documents contain the names of seven persons who appear to have earlier affixed their signatures to the original petitions in support of the termination application. As required by section 105(2)(j.1) of the Act, and the Board's Rules of Procedure (specifically, Rules 53, 55, and 56), the reaffirmation documents are signed by each employee concerned, indicate the date upon which each signature was obtained, the name of the employer, and the name of the union involved.
[4]. The Board has consistently ruled that when statements of reaffirmation are filed within the time requirements set out in the Act and Rules, that evidence must be considered by the Board in the exercise of its authority under section 58(3) of the Act (see V.S. Services Q. E. Hospital, [1978] OLRB Rep. March 323, and the cases cited therein). Since the reaffirmations might have been signed subsequent to the petition, the signatures on the reaffirmations, if voluntary, provide evidence of the most recently expressed wishes of those particular employees. Seven employees who signed reaffirmations also signed the petition. If the reaffirmations are voluntary, then only fourteen employees, as of the relevant time, were seeking to terminate the bargaining rights of the responding party, assuming the petition signatures are also voluntary. This number of employees is less than forty-five per cent of the bargaining unit. It thus appeared necessary to first inquire into the voluntariness of the reaffirmation. In the event that the Board did not find the counter-petition to be a voluntary expression of the wishes of the employees in the bargaining unit, the union reserved its right to ask the Board to consider its position that the petition in support of the termination application was involuntary.
[5]. The union called Janet Christie and Tony Matthews to give evidence in support of the counter-petitions. The intervenor and applicants called no evidence.
[6]. Janet Christie is the Chief Steward for the union at this Wendy's location. She gave evidence in support of the voluntariness of the statement of reaffirmation she handled and which contained twenty-one signatures of employees. Her evidence satisfies the Board that the origination and preparation of the counter-petition was properly undertaken by the union staff, and that Ms. Christie circulated the statement of reaffirmation in a bona fide manner. The Board is satisfied that there was no management involvement in the circulation of the document, and that those employees who signed the document were not threatened, intimidated, or coerced into doing so.
[7]. Tony Matthews is a co-Steward for the union at the Wendy's location in question. Mr. Matthews gave evidence in support of the one signature he had collected on the statement of reaffirmation he handled. I am satisfied that the counter-petition was originated and prepared by the union staff, was circulated by Mr. Matthews, and that he collected the one signature on his document without threats, intimidation, or coercion. I am also satisfied that there was no management involvement in the circulation of Mr. Matthews' document.
[8]. Counsel for the employer argued that the Board should disregard Ms. Christie's evidence as it lacked reliability. In particular, it was argued that since she made no notes contemporaneous with her collection of signatures, that her recollection was faulty. The Board does not require persons who collect signatures on petitions of any kind to take notes. The Board assesses the evidence given by witnesses and makes findings of fact, whether or not they take notes. On the whole, I found Ms. Christie to be an honest and reliable witness who was able to give sufficient evidence about each signature she collected to establish that those employees voluntarily signed the reaffirmation document signifying their wish to continue to be represented by this responding party. As the Board stated in Mitten Industries Gait Limited on behalf of its Affiliate Company, Field-Price Ltd., [1976] OLRB Rep. March 76, at paragraph 5:
…..The most reliable evidence of the true wishes of the employees is the latter signed statements which in effect revoke support for the application for termination and expresses support for the incumbent trade union.
[9]. It was also argued on behalf of the employer that the union had failed to establish continuity in the handling of the Christie counter-petition. Therefore, the argument went, the Board should find there is a deficiency in the evidence which casts doubt on the completeness, accuracy, reliability and credibility of the Christie document. The facts giving rise to the employer's concern were as follows. Ms. Christie worked the 8 p.m. to 3:30 or 4:30 a.m. shift. She had no locker or safe area in which to put her valuables at work. Prior to her shift beginning and after she had collected some employee signatures, on November 9, 10, and 12, 1994, Ms. Christie had given her counter-petition to her brother-in-law, Harley Christie, to take home for safe-keeping. Since Harley Christie resides with Ms. Christie and her family, upon her return home after her shifty she retrieved the document from Mr. Christie and kept it with her. Harley Christie does not work at Wendy's, and does not know any person in management at Wendy's.
[10]. There is nothing before me to suggest how Mr. Christie's handling of the counter-petition casts doubt on the completeness, accuracy, reliability, or credibility of the document. There were no signatures about which Ms. Christie did not give evidence, there was no suggestion that Mr. Christie had himself collected any of the signatures, he does not work for this employer, and it was not contested that he did not know anyone in management with this employer. In any event, in considering reaffirmations in the context of a termination application, the Board does not usually expect to find any employer support. I adopt the Board's statement in Canadian Pacific Hotels, [1985] OLRB Rep. Oct. 1445, wherein it said:
……Petitions seek either to prevent a union from acquiring bargaining rights or to extinguish bargaining rights which it already holds. Counter-petitions, on the other hand, seek to defend a union's attempt to acquire bargaining rights or to defend the bargaining rights which it already holds. Therefore, successful counter-petitions operate against the presumed preference of employers not to have to bargain with unions. That being the case, in order for the Board to make a finding that it would be reasonable for employees to perceive their employer as supporting a counter-petition, there would have to be evidence that the employer had made known to the employees by its actions that it preferred to deal with the union which would benefit from the counter-petition.
In this particular case, in the absence to any evidence to the contrary, I conclude that there is no employer support for the counter-petition.
[11]. The issue for determination by the Board in this case is whether the Board is satisfied on the evidence that the counter-petitions are voluntary. I am satisfied, on the basis of all of the evidence before me, that the counter-petitions represent the voluntary expression of the wishes of the employees who signed them.
[12]. As outlined earlier, seven employees who signed reaffirmations had previously signed the petitions in support of the application for termination of the union's bargaining rights. Having found those seven signatures to signify the voluntary expression of those employees in support of the union, I find that less than forty-five per cent of the employees of the bargaining unit have, as of the assessment date, applied for the termination of the responding party's bargaining rights. It is therefore unnecessary to consider the voluntariness of the petitions in support of the application, and the application is hereby dismissed.