United Steelworkers of America v. Bannerman Enterprises Inc., 1994 CanLII 9879

United Steelworkers of America v. Bannerman Enterprises Inc.

[1994] OLRB Rep. November 1489

0262-94-R United Steelworkers of America, Applicant v. Bannerman Enterprises Inc., Responding Party v. Group of Employees, Objectors

BEFORE: K. G. O'Neil, Vice-Chair.

APPEARANCES: P. Turtle for the applicant; A. P. Tarasuk for the responding party; C. J. Abbass and Sandy Menard for the group of employees; J. Bowers, L. Judd, V. Peters, S. Swiergosz, R. Taylor and H. Zielkie on their own behalf on some days of hearing.

DECISION OF THE BOARD; November 8, 1994

1This is an application for certification in which the Board issued a decision certifying the applicant on August 19, 1994 with reasons to follow. These are the Board's reasons.

2For ease of reference, the applicant will sometimes be referred to as the union or the Steelworkers, while the responding party will be referred to as the dealer or the employer.

3Subsequent to the release of the August 19, 1994 decision, but prior to the release of these reasons, the Board received a request for reconsideration from the objecting employees and employer. This included a request that they be allowed to file additional submissions within a time period of thirty days from the reasons' being released. If the employer or objecting employees wish to do so, the Board will consider such further submissions in support of their requests for reconsid­eration, if they are received within thirty days of the receipt of these reasons.

4This case involved 27 days of hearing. The Board heard the evidence of nine witnesses and submissions made throughout the proceedings, all of which I have considered thoroughly, whether or not set out below in detail.

The Background

5Ross and Julie Bannerman operate a Canadian Tire store in Kirkland Lake, which they took on in March, 1994. The departing dealer, Brian Draves, left to operate a larger store in St. Catharines. The uncertainty associated with this change lead Carolyn Rutetzki, an office worker in the Kirkland Lake store, to contact the union to organize the store in mid-April 1994.

6There are thirty-seven employees on the list for the purposes of the count. The union filed current membership evidence in the names of 64% of those employees, enough to warrant automatic certification if the Board relied on the membership evidence as a reliable indicator of the wishes of the employees involved. There was some suggestion from some of the objecting employees that the union only had the support of pan-time employees and students, but the actual situation is that the union had the support of over 55% of both the full-time and the pan-time employees considered as separate groups as well. As there are only 11 part-time employees on the list of 37 employees, the union could not have been in a certifiable position in a bargaining unit composed of both full-time and part-time employees with support from only the part-time employ­ees.

7The objecting employees and the employer urged the Board not to rely on the member­ship evidence filed, and to dismiss the application or order a representation vote. It was argued that Carolyn Rutetzki, who initiated the organizing campaign, was a managerial employee and/or employed in a position confidential as to labour relations, and should be excluded from the bar­gaining unit. On the basis of her managerial status, it was argued that the application should be dis­missed, as section 13 of the Labour Relations Act precludes the Board's certifying a union if the employer has participated in its organization. As well, it was alleged that Ms. Rutetzki and Steve Yee, who assisted her in collecting some signatures, had made misrepresentations, threats, intimi­dating and coercive statements, which rendered the membership evidence unreliable as an indica­tion of the wishes of the employees. Reinforcing this submission was the argument that Ms. Rutetzki had used her position as an office employee, with perceived or actual managerial or confi­dential status, to unduly influence the employees who signed cards. The representations made and the manner in which the campaign was conducted were argued to create sufficient doubt as to whether the true wishes of the employees were disclosed by the cards submitted that a confirma­tory representation vote should be ordered at the very least. We will deal with each of the issues in turn.

The status of Carolyn Rutetzki

8The objecting employees took the position that Carolyn Rutetzki was a managerial employee, and perceived as such, while the employer took the position that she was employed in a confidential capacity in matters relating to labour relations. At the hearing, which took place after the count had been released through the waiver process, the employer also attempted to take the position that Ms. Rutetzki and the head cashier were managerial. The Board did not allow the employer to resile from the position taken during the waiver process. See, among others, Cor Jesu Re-education Centre of Timmins Inc., [1992] OLRB Rep. March 298.

9The Board agreed to hear the evidence relating to Ms. Rutetzki's duties and responsi­bilities directly rather than referring the matter to a labour relations officer for examinations because it appeared that the evidence on the issue of whether there was employer participation in the organization of the union was inseparable from the evidence on whether Ms. Rutetzki exer­cised managerial functions. During the course of the hearing, the parties agreed that the evidence of the period up until March 24, 1994 would govern the application for the purposes of Ms. Rutetz­ki's status.

10In the August 19, 1994 decision, the Board found that Ms. Rutetzki was an employee for the purposes of the Act. Our reasons in each of the categories of the exercise of managerial functions and employment in a capacity confidential as to labour relations follow.

Did Ms. Rutetzki exercise managerial functions?

11It is common ground that Ms. Rutetzki had no role in hiring or firing employees, setting wages, doing payroll, or scheduling employees which are all salient in the Board's jurisprudence as indicators of managerial functions. Rather it is argued that the depth of her involvement with the financial side of the store operation and functions which are argued to be disciplinary, such as monitoring of employees as to cash shortages, and correcting other employees on matters such as paperwork procedure, justify a finding that she is managerial.

12As the Board stated in its earlier decision, Ms. Rutetzki's duties and responsibilities involve some superv sory functions and regular reporting functions. However, what separates her duties and responsibilities from those the Board has found to be managerial in other cases is the absence of independent decision making power and discretion. Further, the evidence about her reporting functions did not indicate that she had the powers of effective recommendation. In sum, Ms. Rutetzki had a considerable amount of autonomy and responsibility, but did not exercise man­agerial authority. The Board based these findings on the application of the Board's case law to the facts of this case. We will briefly refer to that case law and then review the facts.

13The Board's jurisprudence on supervisory employees and those with significant respon­sibility has shown that it looks for the actual exercise of significant managerial functions or effec­tive recommendation before excluding employees from the ambit of the Act. The core of the issue is whether the duties exercised are such as to put the employee in a position of conflict with the duties owed to the employer as a manager. Given the purposes of the Act, the Board will not lightly deprive an employee of the coverage of the Act.

14For example, in the Canadian Tire store in Collingwood, a person who supervised four full-time employees and the operation of the hardware department was found not to be manage­rial. In its decision reported as Ken Bodnar Enterprises Inc., [1994] OLRB June 688, the Board noted the employee's higher level of responsibility and autonomy than those she supervised, but posed the question as whether her duties were of such a nature as to preclude her from enjoying "employee" status under the Act. The Board noted the particular significance of a person's role in hiring, firing and disciplining and had this to say at para. 35 about analysing that evidence:

……Central to this analysis is whether the individual in question actually makes decisions or oth­erwise exercises an independent discretion with respect to matters relating to earnings levels or job security, and that in the process of doing so, the person exercises an "effective control" over employees. For this reason, the Board has long held that the mere conveyance of information to or from the employer, the routine performance of tasks requiring little in the way of indepen­dent exercise of discretion, or the coordination of efforts of other employees is not per se a "managerial function" as contemplated under section 1(3) of the Act. (Borough of Etobicoke, supra; Oakwood Park Lodge, [1982] OLRB Rep. Jan. 84.) Similarly the making of recommen­dations with respect to decisions on such matter as hiring, firing, discipline and promotion are significant only if effectively followed by the person's superiors. (Oakwood Park Lodge, supra.

15See also The Corporation of the Township of Innisfil, [1994] OLRB Rep. January 76, at para 32 where the Board said "..the fact that [an employee] raises mistakes in performance with the employees or with the Direction, in the absence of evidence of some greater involvement in a disciplinary process, only suggests that he is conscientious with respect to the performance of the work in his department." To similar effect see, RCA Limited [1980] OLRB Rep. Sept. 1316.

16As was made clear in The Corporation of the City of Thunder Bay, [1981] OLRB Rep. Aug. 1121, co-ordinating functions alone are not sufficient to exclude one from collective bargain­ing and the fewer the number of subordinates, the stronger the need for demonstrative evidence of managerial status - especially if the next level of management is in close proximity and seems to be closely involved in the ultimate decision making.

17Consultation and democratic decision making does not necessarily mean that real mana­gerial authority has percolated downward. The recommendations need to be decisive; input should not be confused with decision-making. In Ottawa General Hospital [1984] OLRB Rep. Sept. 1199 the effective recommendation test was put this way at pg. 1204: the issue is whether "the person making the recommendation is, if not the actual decision-maker, then the one decisively influenc­ing that decision and thereby exercising a significant influence over the livelihood or economic destiny of his co-workers." As was pointed out in Red Cross Society [1991] OLRB Rep. February 163, the fact that input is treated seriously does not necessarily amount to effective recommendation. Similarly, see York University [1975] OLRB Rep. Dec. 945 where the Board pointed out that its task is to separate the effective and the meaningful exercise of managerial authority from the sup­portive and supplemental functionaries without whom prudent decisions could not be made. The Board there referred to the review of the tests applied by the Board in distinguishing between real decision making authority and the collators and conduits of information in the supervisory contexts in Mcintyre Porcupine Mines Ltd. [1975] OLRB Rep. April 261. In that case a person spending a majority of her time attending to administrative duties in support of the chairman and the balance in the exercise of supervisory duties was found to be in the bargaining unit.

18The fact that a person generates work for another to complete is not sufficient to make a person managerial, nor is the fact that they are consequently in a position to assess performance enough to make a person managerial. See Township of Innisfil, at para. 35 cited above. See also Ottawa General Hospital, cited above, where the Board refers to the role of semi-autonomous work groups which include a variety of individuals with lower level of skill, and finds that the fact that a person performs an assigned role as teacher and trainer, a role which inevitably involves some degree of evaluation, as with journeymen and apprentices, does not of itself mean a person is managerial.

19Turning to the factual context, the administrative structure was headed by the dealer, Mr. Draves. The General Manager, Mr. Wickens, reported directly to Mr. Draves; Ann Wickens, his wife, performed the payroll functions. There was also a floor Manager, Tammy MacDonald, and department heads, such as in hardware. In the office, besides Mr. Draves, there were two employees who worked there full-time, Carolyn Rutetzki and Faye Ranger. Ms. Ranger was responsible for data entry. Assisting Ms. Rutetzki part-time was Rose Godin, who also worked part-time as a cashier.

20Ms. Rutetzki started at the store in 1990 as a cashier. By August, 1991 she had been given part-time responsibilities in the office to assist Debbie Laurier, the full-time office worker. By March 24, 1994 when Mr. Draves left, Ms. Rutetzki was responsible for most of the financial paperwork in the office, which included balancing various accounts and reconciling figures so they could be forwarded to an accountant, who prepared a profit and loss statement which was returned to Mr. Draves in a sealed envelope. She also dealt with other office matters such as receipts for boots and benefits as well as the distribution of uniforms.

21Ms. Rutetzki had overall responsibility for balancing cash on a monthly basis, and was the employee who did cash balancing most frequently on a daily basis as well. However, both Rose Godin and Hazel Gillett, the head cashier, also did daily cash balancing. This function involves ensuring that each cashier's figures balance, and trying to track down the reason for overages and shortages, which are daily occurrences. Ms. Rutetzki was very good at the tracking down side of this, which requires a sense of what might have gone wrong. In discussions with the cashier in ques­tion, one can "solve" the shortage or overage. It was the duty of the person cash balancing to report to Mr. Draves any unsolved shortages and overages. When Ms. Rutetzki did this reporting, she often offered a theory on what was causing the problem, which Mr. Draves learned to trust, as it was frequently accurate.

22It is clear that consistent shortages and overages can and do result in discipline up to and including discharge. Ms. Rutetzki's role in reporting shortages is said to intimately involve her in discipline of employees. On balance we are of the view that this is really a quality control type of function. The fact that it deals with money, and is an essential function to the operation of the store, does not elevate it to managerial or make it a discipline function. Neither Ms. Rutetzki nor the other employees who cash balance and report to the dealer had any discretion about whether to report the shortages and overages or any control over what happened afterwards. There was also evidence that the general manager or the head cashier talked to the employee about overages and shortages once they had occurred, separately from the advice of the existence of an overage or shortage for which the person balancing cash was responsible. Ms. Rutetzki's function was largely to find out if the shortages were "real", i.e. whether there was an explanation that would make the cash tray balance, such as that the employee had made change improperly for another cashier, which would result in a mirror overage and shortage which would cancel each other out. Mr. Draves' evidence also made clear that the cash balancing and reporting was all within the context of well structured daily procedures.

23Several specific examples of discipline up to discharge were given some of which were based on information from reports from Ms. Rutetzki on shortages and overages. In one of these Ms. Rutetzki developed a hunch that the shortages were consistent with borrowing from petty cash and paying it back, and in another with taking cash outright, which she reported to Mr. Draves. In the former example, Mr. Draves asked her to keep an eye on petty cash. She suggested balancing twice daily, and did so. In another example, when Mr. Draves suggested recording the serial num­bers of the cash put in a certain cashier's drawer, and Ms. Rutetzki suggested photocopying the money, Mr. Draves accepted her idea. Although this involvement was referred to by employer counsel as "a serious managerial function", we do not agree. This is because it is Mr. Draves who was making the decisions which affected the employee's job. Ms. Rutetzki was intelligently assist­ing with how to best track the cash. It is not that there was no consequence to the employee from the information; the point is that Ms. Rutetzki did not determine what that consequence would be. Illustrative of this is that when Ms. Rutetzki put the photocopies of the bills on Mr. Draves desk, he then held a closed door meeting with Mr. Wickens and Ms. MacDonald, to determine what to do. He did not include Ms. Rutetzki in this discussion. Similarly, when Ms. Rutetzki made sure the last person out of the office balanced the cash when trying to track the cash float of another employee, counsel argued these were instructions which are the mark of a managerial employee. We consider it rather part of her cash tracking duties which were essentially reporting duties and not decision making or effective recommendations. As indicated above, she had no discretion whether to report or not, nor any control over what happened as a result of the information she provided.

24Ms. Rutetzki had a role in training new cashiers which was apparently shared by all cashiers with experience. While the new cashier was learning, she would be paired with a more experienced one. We do not find this to be managerial, but rather the sharing of experience.

25Mr. Draves described Ms. Rutetzki as providing information on cashier's accuracy and capacity and informed Mr. Bannerman that she was, with the floor manager, a good source of information on the capacities of employees. Indeed, Ms. Rutetzki apparently offered her opinion on employees much more often than others to Mr. Draves. It is clear that Mr. Draves and Ms. Rutetzki enjoyed considerable rapport and that Ms. Rutetzki "had his ear". They chatted daily, apparently about every subject under the sun. What is important to the Board's determination is that no decision making authority went with this. Mr. Draves listened and sometimes did things consistent with Ms. Rutetzki's opinion, and sometimes did not. For example, an employee with an absenteeism problem had an impact on how often Ms. Rutetzki had to relieve on cash, which sometimes put her behind in her office work. Ms. Rutetzki complained of this, (others had com­plained of the impact on their work as cashiers as well) and wondered out loud why Mr. Draves kept her on. He explained why and took no action. On another occasion, when Mr. Draves had himself become impatient with the same issue, and she suggested the eve of an impending mater­nity leave was not the time to take action, he agreed.

26There was some difference between the evidence of Mr. Draves and Ms. Rutetzki about whether she was obliged to offer these opinions, and whether she was aware they were being relied upon, but in the end the difference is more degree than substance. Even if one relies on Mr. Draves' evidence alone, it is clear that there was no confusion in his mind about who made the decisions in regards to discipline. It was Mr. Draves or Mr. Wickens in the cases to which we were referred. That he valued Ms. Rutetzki's input because he had come to trust her judgement does not make her managerial, or the effective decision maker. There were a number of examples which make it abundantly clear that Mr. Draves weighed Ms. Rutetzki's opinions with all the other infor­mation at his disposal and made decisions of his own, which often did not coincide with Ms. Rutetzki's. The incidents to which reference was made about discharges following reporting by Ms. Rutetzki are ones where there was no doubt about the result if the facts were proven; she made no independent judgement to fire, or even to recommend firing. She reported the information she was required to record and report, which she had no discretion to withhold.

27It is important to keep in mind that many modern management styles emphasize an "open door policy" and keeping on top of employee complaints. This usually involves encouraging employees to report to managers their dissatisfactions or suggestions for improvement. It would be curious indeed if the fact that management sometimes acted on complaints or suggestions garnered in this manner made the people who made them managerial. One of the things that can make someone managerial is the right to decide whether or not to act on complaints or suggestions affecting others' conditions of employment. This is the aspect that was conspicuously absent from the evidence about Ms. Rutetzki's duties and responsibilities.

28In her cash balancing and other paperwork duties, Ms. Rutetzki often had to track down paperwork missing from other employees, cashiers in particular. There were times when, apparently impatient with others for not having had the paperwork where she considered it should have been in the first place, Ms. Rutetzki was less than diplomatic in retrieving the material. For instance, Ms. Peters, one of the objecting employees, said Ms. Rutetzki had "torn a strip off her" for not doing a procedure properly, or given her a "tongue lashing" for having a cash shortage when she had worked as a cashier. However, there is no evidence that these exchanges affected the work record of the employee on the receiving end. Having considered the evidence in its totality, the Board is of the view that this type of incident is properly seen as the product of an unfortunate part of Ms. Rutetzki's strong personality. It is clear that Ms. Rutetzki has many strengths, but tact when impatient is not one of them. However, this does not make her managerial, in light of all of the other evidence.

29It was argued that incidents such as those above showed that Ms. Rutetzki regularly meted out the first rung of discipline. This was argued to be most clear with Ms. Godin, who assisted her part-time in the office. Mr. Draves testified that Ms. Rutetzki had authority to disci­pline Ms. Godin. However, the rest of the evidence does not support that Ms. Rutetzki actually did discipline Ms. Godin. Nor is there any evidence that she was actually informed that she had such authority. The Board's jurisprudence is clear that unexercised authority is not the standard that the Board uses in the face of the statute's words "exercises managerial functions".

30It is not disputed that Ms. Rutetzki and Ms. Godin had "words" in the office; Ms. Godin found these exchanges so one-sided as to not constitute a discussion. Ms. Godin described other exchanges as "we would talk it over" or "we were arguing the amount". Ms. Rutetzki felt she was spending too much time going back over Ms. Godin's work and grew impatient with Ms.

Godin's progress in the office. She complained of this to Mr. Draves, who had assigned the task of training Ms. Godin to Ms. Rutetzki when Ms. Godin was first assigned to the office in the fall of 1992. Part of the training involved deciding when to cover a certain topic, when to report lack of success to Mr. Draves, and the responsibility to evaluate and correct Ms. Godin's work. It is clear that Mr. Draves took the complaints at least as much as a comment on Ms. Rutetzki's training abil­ities as on Ms. Godin's suitability for office work. No discipline resulted to either Ms. Rutetzki or Ms. Godin. He suggested a variety of things, and asked Ms. Rutetzki for suggestions as to a replacement. Interestingly, none were forthcoming. What was crystal clear was that Mr. Draves was balancing all the information he was receiving on the situation, and at no time delegated or surrendered the decision making discretion to Ms. Rutetzki. In fact, Ms. Rutetzki grew impatient with Mr. Draves' lack of action on her complaints.

31In the case of Ms. Godin, as with others, Mr. Draves took Ms. Rutetzki's input seri­ously, but did not, on the evidence, regularly follow her suggestions at the level that would make them effective recommendations as to discipline. The evidence is clear that he had never directed Ms. Rutetzki to carry out discipline he had decided on, as he did with Mr. Wickens or Ms. Mac-Donald. The fact that Ms. Rutetzki was informed about discharges and the reasons for them in some cases before others is also not an indication of managerial status where she did not partici­pate in the decision making. The fact that she had to be informed of the reasons is in itself an indi­cation that they were not her reasons but someone else's.

32In argument, Mr. Tarasuk suggested that the test for deciding whether discipline was given out to Ms. Godin was whether the employee was made aware of the consequences if she failed to improve. There is no evidence that Ms. Rutetzki's criticisms of Ms. Godin ever carried with them a threat of consequence. The fact that Mr. Draves did not stop Ms. Rutetzki from cor­recting employees is argued to indicate that she had managerial authority directly from him. How­ever, the totality of the evidence suggests otherwise. For one thing, Draves had spoken to her about how she spoke to other employees; he did not find her manner appropriate. Further, we do not find the evidence goes beyond showing that she played the role of an experienced and skilled employee in showing others how to do things. The fact that she did this abruptly or arrogantly at times, or that she "carried herself as if she had authority", does not make her managerial. The important fact is that her speaking to other employees did not result in negative consequences to the employment record, on the evidence in this case.

33Ms. Rutetzki clearly supervised Ms. Godin; this included assigning work. However, given the limitations on her role generated by the close proximity of Mr. Draves, and the fact that he reserved the decision making to himself in regards to Ms. Godin's status and abilities, we do not consider the supervision of one employee truly managerial. It was rather more consistent with Ms. Rutetzki's skill and experience at the work in the office.

34At one point Mr. Draves described Ms. Rutetzki's function in the office as very similar to the function his wife had played, with the exception that his wife did payroll and not much cash balancing. As to the difference between Ms. Laurier, who came into the office when Mrs. Draves left the office, and Carolyn Rutetzki, he said that the difference was attitude and rapport. Counsel for the employer argued, on the basis of this evidence, that Ms. Rutetzki was playing the role Mr. Draves' wife had played in the office to the extent that she was his alter-ego, the joint decision maker. We do not find that the evidence goes that far. Firstly, one cannot ignore the fact that Mrs. Draves owned part of the business, while Ms. Rutetzki is an employee who looked on a wage of $9.80 an hour as something to aspire to. Thus, Ms. Rutetzki, from a point of view of conflict of interest, cannot accurately be compared to someone who is a part owner of the business. More­over, the fact that payroll was not done by Ms. Rutetzki as it was by Mrs. Draves, is telling, and will be referred to further below as to our finding that her status was not confidential as to labour relations. It is a function that was reserved, both at the time of Mrs. Draves' presence and after, to people other than those holding Ms. Rutetzki's position. The comparison to Ms. Laurier, is also interesting. Ms. Rutetzki's assertive attitude, and her rapport with Mr. Draves, it appears, are the source of much of the feeling among some of the witnesses that Ms. Rutetzki might be managerial. It is not such personality factors which form the basis for the Board's determinations. It is rather the actual functions exercised, and a detailed analysis of their limitations or lack thereof.

35At one point Mr. Draves put Ms. Rutetzki on salary with a small increase over her hourly wage because of her talent and to "show her she had a future." He paid for a word process­ing course at a local community college as well. We do not find either of these to amount to any­thing other than an expression of Mr. Draves' high opinion of Ms. Rutetzki's capabilities in office work. At no time were they accompanied by any delegation of managerial authority. We have the same view of the fact that Mr. Draves left Ms. Rutetzki to work on her own and report to him any problems. This was an expression of his trust in her abilities, but he never gave up any of his dis­cretion as to what to do with the problems she reported. As to matters such as cash balancing, she had no discretion as to what to report; she was required to report the status of each cash tray.

36Other duties of Ms. Rutetzki are consistent with the autonomy she had in the carrying out of her functions, but are not managerial in nature. These included more regular access to keys and locked areas than other employees and responsibility to keep track of uniforms and make bank deposits.

37It was also argued that occasions on which Ms. Rutetzki spoke to Mr. Draves or other managers on behalf of other employees indicates she was managerial. By contrast, union counsel suggests it could be analogized to the activities of a union steward. In our view, this evidence is entirely equivocal. It is important to keep in mind that in a pre-collective bargaining situation, who is management and who is not is not normally given the attention that it is once a union is in the picture. In this light, Ms. Rutetzki's activities on behalf of other employees were most likely quite independent of any actual job function, which is what the Board looks at in determining status. Rather it appears they were a product of her assertive personality and her rapport with Mr. Draves.

38On this issue,the Board did not find helpful general statements of employees who were not familiar with Ms. Rutetzki's duties, but, for example thought she was in management because she worked in the office, and dealt with uniforms. The perception issue raised on the basis of that type of evidence will be dealt with below with the issues relating to the reliability of the member­ship evidence.

Was Ms. Rutetzki employed in a capacity confidential as to Labour Relations?

39The Board's considerations in determining whether a person is employed in a capacity confidential as to labour relations have their source in the same concern about conflict of interest as those referred to above concerning managerial status. The Board takes a detailed look at the duties to see if they are so materially related to labour relations as to require the employee to refrain from collective bargaining under the Act. We will refer to some of the examples in cases provided to us by the parties.

40In Frito-Lay Canada, [1978] OLRB Rep. Sept. 831,the Board found that payroll clerks who collect and collate individual payroll information relating to individual employees were not privy to the employer's industrial strategy and thus should not be excluded from collective bargain­ing. By contrast, a member of the "finance team" in York University, [1975] OLRB Rep. Decem­ber 945, who did costing for salary increment exercises and union proposals during negotiations, payroll purge exercises, and the writing of programme designs for them was exposed to informa­tion that is inherently confidential. As well a person who typed all the budget material for the comptroller and had access to financial statements was found to be so "intrinsically exposed to con­fidential information in matters that may directly or indirectly relate to labour relations as an inte­gral part of her routine job functions that she ought to be excluded from the bargaining unit". A person who typed proposals as to how to deal with grievances was also excluded. But secretaries typing material relating to tenure deliberations that were not confidential, since the person con­cerned knew about them, were not found to be excluded.

41The union referred us to RCA Limited [1980] OLRB Rep. September 1316. In that case the Board dealt with five secretaries to senior company executives. The Board said that it must determine whether the information handled was sufficiently particular in respect of material labour relations information such as projected hirings, lay-offs, or wages as to raise the likelihood of a genuine conflict of interest. Those who handled material giving them knowledge of projected rates of increase were excluded. Those who did not handle that sort of material, but did deal with profit statements, performance appraisals, letters of discipline and long-range financial plans were not. The Board held that the business data they were privy to was too general to be of any particular value in collective bargaining, such as long-range business plans that appear to contain no particu­lar statements about manpower requirements or wage estimates. The Board also dealt with a Cost Analyst who prepared statements analysing the performance of the plant in terms of material costs and labour costs incurred in producing. Characterizing this as essentially a reporting function that involved the gathering of data, the Board found that it did not involve any independent power of decision in policy formulation or in areas that affect the jobs or job conditions of employees and was thus not managerial. As well, because the focus of the employee's involvement with manpower data was on the past, he was found not to be employed in a capacity confidential as to labour relations.

42Another relevant case for the purposes of this determination is Metropolitan Toronto Library Board [1991] OLRB Rep. March 339. In that case a Public Relations Secretary was excluded as employed in a confidential capacity in matters of labour relations. She attended and took minutes of management meetings at which the settlement of grievances and collective bar­gaining might be discussed. As well she typed performance evaluations and prepared draft budgets and had access to draft proposals for collective bargaining. Ms. Rutetzki does none of these things. As the Board said in that case at para. 7:

Access to information which may be sensitive or confidential in some business or general sense is not, by itself, sufficient to cause an individual to be deemed to not be an "employee". Simi­larly, access to personnel information is to be distinguished from access to confidential labour relations information. It is the labour relations content or potential for use in the collective bar­gaining or grievance resolution of information which is important for purposes of the Board's considerations..."

43See also The Corporation of the Town of Innisfil, [1994] OLRB Rep. January 76. In that case access to irregular discipline notes, and responsibilities for preparing invoices, reports, cheques, and even the payroll were not held to exclude the person from the bargaining unit, although access to all the labour relations files of the Town did warrant exclusion.

44The employer referred us to Spruce Falls Power & Paper Co. Ltd., [1980] OLRB Rep. January 110 in this area. This case dealt with employees with responsibilities for financial material, an area in which Ms. Rutetzki has duties and responsibilities as well. The Board noted at para. 3 that the involvement with matters relating to labour relations must be regular and an integral part of the employees' duties, and it must be material which would prejudice the employee in the sphere of labour relations if employees knew about it. Employees who were involved in labour negotiations with the union, costing proposals, creating cost projections and! or were privy to the company's best projection of the wage settlement for the upcoming year were excluded from the bargaining unit.

45Ms. Rutetzki had access to some personnel information, like S.I.N. numbers, but all other material related to employee relations were intentionally and systematically kept from her, with the exception of the global payroll costs which she needed to calculate the employer health tax. However, she did not have any access to projections of costs or proposals for terms and condi­tions of employment and was told she should not discuss salary with any other employees. The per­sonnel information to which she was privy, such as S.I.N. numbers, was neither integral to her job, nor occupied a significant portion of her time, and in any event can not reasonably be construed as labour relations material.

46The employer also argued that because Mr. Draves remembered and relied on some of the things Ms. Rutetzki told him, she was making entries in what could be considered an oral per­sonnel file. If she had been deciding what material was important enough to be kept and used in determining employee issues, perhaps this would be an indication that she had some duties that related to material confidential as to labour relations. But it is was not she, but Mr. Draves, who was making that determination, and there is no evidence that she had access to any information that Mr. Draves later chose to note down. Employer counsel argued on a number of occasions that Ms. Rutetzki had full access to confidential information because she provided information on employees to him. However, the evidence indicates the information flow was one-way. There is no indication that Mr. Draves gave confidential information to Ms. Rutetzki. For instance, he did not divulge medical information he had from an employee they discussed, and she had no access to the personnel file kept by Mrs. Wickens. That she knew that certain problems were occurring with cash shortages, for instance, does not amount to "full access to confidential information" as argued. It was part of her cash tracking function, functions shared with at least two other employ­ees. That she may have been under an obligation to keep that information from other employees (a point on which there was no evidence) does not make her confidential as to labour relations.

47The employer also argued that due to the successor rights provisions in Act, the sale of a business is a labour relations matter. Therefore, it is argued that Ms. Rutetzki's role in the changeover of dealers indicates she was employed in a confidential capacity as to labour relations. The evidence indicated that her role in the changeover was in providing information and doing bookkeeping and clerical functions. There was no evidence of any role as to labour relations. Mr. Draves provided the run-down on the employees to Mr. Bannerman himself. That this included information from Carolyn Rutetzki is not conclusive because of the same considerations that apply in regards to the "oral file" idea dealt with above.

48Employer counsel argued that Ms. Rutetzki was the clearing house for the financial pic­ture of the operation. She organized and put together each financial account which would make up the profit and loss statement. Mr. Draves indicated one could create a profit and loss statement from the information she handled. The fact that it was theoretically possible to create a profit and loss statement from the material that went through her hands is not sufficient to warrant exclusion from the Act, especially when the finished report was intentionally kept from her. If she already had the information for all practical purposes, it would not have made sense to keep the report from her. Further, there is no evidence that Ms. Rutetzki did know how to determine the employ­er's profit from the material at her disposal, a function which required the accountant's services.

49Although Ms. Rutetzki sometimes met with Mr. Draves alone in his office, she was excluded from the regular management meetings. Employer counsel argued that she was excluded from managerial meetings because they dealt with sales, not the financial picture she was involved in. It is odd that if she was as integral to the financial planning of the store as argued, that she would have been excluded from meetings discussing sales. In fact, the evidence does not support the idea that she was involved in planning at all. Wage grids were dealt with at these meetings as well. Ms. Rutetzki was not involved in these discussions, and was only allowed to see the wage grid to see where she personally fit at her individual wage review session, and had no regular access to it.

50Ms. Rutetzki did have extensive duties in the collating and summarizing of the financial aspect of the store. She also wrote cheques. She was sufficiently knowledgeable about the accounts to deal with the accountant's questions about the paperwork sent to him. The employer argues that access to financial information on a regular basis unquestionably creates a conflict of interest, in that the financial position of the employer, what he could afford, would be in Ms. Rutetzki's hands before it was in the employer's. As can be seen from the cases referred to above, distinctions are made about the kind of access and functions performed with financial information. Ms. Rutetzki's involvement with the financial side of the business is all of a historical nature; it deals with the past. There is no evidence that she is privy to any plans or projections or costing of projected wages or changes to the employee complement. She is not allowed to see the profit and loss statement. She is not allowed to see any payroll figures except the gross amount, to which she mechanically applies a formula to determine the employer health tax owing. It would appear that she is being kept from the very aspect of the financial picture that would impact on labour relations.

51Ms. Rutetzki was allowed to take home the financial material she worked on when she was behind, and employer counsel suggested that she could pass this material on. We do not con­sider this material confidential as to labour relations, and the fact that it was otherwise confidential is not a reason for excluding her from the Act. Many bargaining unit employees across the prov­ince have access to information that they are not permitted to pass on, for commercial or privacy reasons, but this does not make them managerial.

52It was further argued that, as Mr. Draves had described Ms. Rutetzki to Mr. Banner-man as his right hand person on the office side, as intimately familiar with the management and administration office side of the business, that she was clearly confidential as to labour relations. There is no doubt that Ms. Rutetzki was very familiar with the workings of the office to the extent required to do her duties. There is also no doubt that she would be more aware of the administra­tive side of the operation than many of the other employees. But this does not translate into being employed in a capacity confidential as to labour relations in light of the other evidence referred to above. The evidence is clear that Ms. Rutetzki was excluded from the information that would put her in a conflict of interest position. As indicated above, the fact that some of the information she dealt with is confidential from a financial or commercial point of view is an entirely different mat­ter.

53As the Board pointed out in the Township of Innisfil, cited above, being deemed to be an employee under the Act, and therefore able to engage in collective bargaining, does not dimin­ish the trust and loyalty of employees in the performance of the work of the employer. The employee always owes duties to the employer, which include keeping confidential material that the employer has directed them should be confidential, or is obviously so, and being loyal to the employer in carrying out their duties. This does not mean they cannot engage in collective bargain­ing to further their own interests as well.

54For all of the above reasons, the Board concluded that Ms. Rutetzki is an employee within the meaning of the Act.

55Because of our finding that Ms. Rutetzki does not exercise managerial functions, and the considerable evidence that she was not acting on behalf of management in the organizing cam­paign, section 13 has no application to the facts of this case. We will deal with the role of percep­tion of managerial status when we deal with the allegations concerning the membership evidence below.

The Membership Evidence

56As to the evidence concerning allegations about the collection of membership evidence, we are of the view that there is not sufficient cause for concern for the Board to dismiss the appli­cation or order a representation vote. In other words, we found that the evidence did not indicate that the membership evidence was unreliable as an indicator that at the date of application, more that 55% of the employees in the bargaining unit had applied to become members of the Steel­workers.

57The Board's jurisprudence has made clear that where misconduct is alleged, it will assess the evidence to ascertain whether it casts doubt on the reliability of the cards submitted. The central question is whether the conduct complained of would deter the reasonable employer from making his or her own decision as to whether she or he wishes union representation. The Board tries to be realistic about human behaviour and has considered such factors as whether the person involved is a paid organizer, or a fellow employee and whether the statements involved go beyond social pressure or salesmanship. Threats to job security are over the line. 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.

58In determining what is a threat to job security, the Board does not include statements to the effect that employees would have more job security with a union to fall into that category. The reality of the economic relationship between management and non-unionized employees is that there is a very real element of job insecurity. This is because, under the common law, which applies to discharges outside of the scheme of the Labour Relations Act, it is the law of unjust dis­missal which applies; this does not involve the prospect of reinstatement no matter how unfairly discharged an employee is. The most that can normally be hoped for is damages for an unfair fir­ing. Neither do the provisions of The Employment Standards Act provide the prospect of reinstate­ment in the face of an unjust discharge. Thus to suggest that a collective agreement provides job security which the employee does not otherwise have is a true and lawful thing to say. If people feel anxiety when their lack of such protection is drawn to their attention, or feel threatened or insecure when thinking about it, it does not mean, without more, that their job security has been threatened by the person speaking about the subject. And this is true even if the employer is actu­ally very fair.

59It is not a threat in the ordinary sense of the word, or under the Labour Relations Act, to point out the economic insecurity at the basis of the common law contract of employment. Nor is it a threat to suggest that without a collective agreement an employer is free to do what he likes in terms of cutting hours and benefits. Other than the right to quit, which in the current economy is a right many do not choose to exercise, the average employee has little effective recourse on such issues outside the scheme of collective bargaining. To say that employees can engage in individual negotiations about such things with their employer is theoretically true, but the real individual bar­gaining power of hourly workers such as the ones at this store may well be negligible.

60It is also of note that insecurity about jobs at a time of change is normal. For instance, Mr. Draves tried to reassure employees before he left because he knew such fears would arise.

61It is important to note as well that a feeling of "intimidation" because of personality or

tone of voice, or aggressive or unfriendly attitudes or personalities is not the same as a threat. See

Ken Bodnar Enterprises Inc., [1994] OLRB Rep June 688 (another Canadian Tire store) and

Venture industries Canada, Ltd. [1989] OLRB Rep. October 1074.

62However, it is an entirely different matter to threaten that a person might lose their job or otherwise be negatively affected, in comparison to those who supported the union, if they did not sign. Such allegations were made in this case, and if they had been supported by the evidence, the result would have been different. However, there was not a shred of evidence to support them. Not one of the witnesses testified that anyone suggested that if they did not sign, and the union got in, that they would be worse off than those who did sign.

63It is important to keep in mind that the Board is not concerned with a person's motiva­tion for organizing a union as it is their right to do so. Much of the evidence in this case was aimed at showing that the statements Ms. Rutetzki made to others about her reasons for wanting a union were inaccurate or over reactions. The Board allowed this evidence over the objection of the union, because the pleadings suggested that the statements made by Ms. Rutetzki were part of a scheme of fundamental misrepresentations systematically made to the employees. In the final anal­ysis, the evidence in this area showed mostly that the employer feels both that Ms. Rutetzki was hasty in her judgement of them, and that she misinterpreted some of the things that happened in the initial period of their presence in the store. It did not show that she had no basis for the things she said. Rather, it showed there were a number of opinions about changes in the workplace, and that Ms. Rutetzki and others were concerned about the future.

64The Board dismissed a number of allegations as disclosing no prima facie case at the outset of the hearing with brief oral reasons. They included the allegation that the union had not contacted everyone in the proposed bargaining unit. The union is not required to contact every­one; there is no requirement for full debate in the Act. The Board had this to say on the same sub­ject in Hemlo Gold Mines Inc., [1993] OLRB Rep. March 158, affirmed by the Divisional Court in an unreported decision of May 31, 1993:

……Unions frequently organize through contact with some but not all of the employees of an employer. If it is to obtain certification without a representation vote (in the absence of contra­ventions of the Act making certification appropriate under section 9.2) a union will have to gain the support of over fifty-five per cent of the employees. However, it is under no obligation to contact all of the employees. A union may be unable to contact employees for whom it does not have an address or telephone number, or who are away on vacation or absent due to illness. Moreover, it may choose to intentionally avoid contacting employees who are known to be strongly opposed to unionization, or who are thought likely to notify the employer of any such contact. Employees who are not contacted by the union are treated by the Act (and the Board) as being opposed to unionization (by virtue of being included in the denominator but not in the numerator of the fraction used to determine the count). The same is true of employees con­tacted by the union who decline to sign a union card.

65The allegations dismissed for want of a prima facie case also included a number of alle­gations that amounted to employees feeling rushed, and wishing they had not been urged to sign right away. However, there is evidence of at least one employee who simply said she would not sign without more time, and it is clear others could simply have said no as well.

66As well, sentiments such as those expressed by a number of people that the Banner-mans should be given a chance to prove themselves to the employees without a union are opinions which are essentially expressions of opposition to unionization, but suggest no impropriety in the campaign itself, and do not cause the Board to intervene.

67There were other allegations filed in writing which were unsupported by any evidence; they are hereby dismissed.

68The Board was referred by the employer to Elk Lake Planing Mill Limited, [1981] OLRB Rep. April 446 on the subject of the perception of employees that a person is managerial on the voluntariness of membership evidence. In that case, a displacement application, the person who collected much of the membership evidence was perceived by employees to have some duties beyond the rank and file employees. However, the Board found that he was not in fact managerial, and that his activities did not cast such a cloud on the membership evidence that the application should be dismissed. The Board ordered a vote, because of the unusual circumstances of that case, which included that all the members of the applicant had chosen to identify with management dur­ing a strike as well as the collector's ambiguous role.

69The Board there analogized to cases involving petitions circulated by persons close to management and said that the question was whether other employees would likely have viewed the supervisor as acting on behalf of, or with the support of management, or whether they would likely have perceived him as a bargaining unit employee seeking only to further his own self-interests. Where the person involved had his own, well-known, reasons for spear-heading a displacement organizing campaign, the Board found that there were not factors which would destroy the ability of the employees in the bargaining unit from electing on their own to join or not to join the appli­cant association.

70Reference was also made to Ontario Hydro [1989] OLRB Rep. February 185, as well, at para. 94. Similarly, see Addidas Textile (Canada) Ltd., [1980] OLRB Rep. May 639 at para 6. and 9. Where membership evidence was signed in the presence of a general manager and certain foreladies were signed as well, although section 13 (then section 12) was not applied, a representa­tion vote was held as questions arose as to the voluntariness of evidence signed through the initia­tive of managerial personnel. See also Waldorf Astoria, [1981] OLRB Rep. Sept. 1308.

71These latter cases are distinguishable from the facts of our case, in that the individuals involved actually were managerial, and we have found that Ms. Rutetzki is not. In any event, we do not find that the evidence of perception of Ms. Rutetzki was such as to indicate that employees could not exercise their choice freely to join the union or not; we do not find the evidence suppor­tive of the suggestion of undue influence.

72We are not convinced that the employees involved signed as a result of a perception that Ms. Rutetzki was managerial and/or representing management. For instance, it is not disputed that she made it quite clear that she did not want the employer to know about the campaign in say­ing that she wanted the membership evidence to be filed quickly, before the Bannermans found out.

73Mr. Abbass further argued that the pressure to sign union cards in circumstances like this where it is a "steelworkers town and the local president is there" should cause doubt as to the voluntariness of the evidence signed. There is nothing in the evidence or case law which would cause us to find that the mere presence of the president of the local at the mine in the same town cast doubt on the voluntariness of the membership evidence filed. The allegations about state­ments made by him and Ms. Rutetzki are dealt with below.

74It is also important to keep in mind that not every misapprehension on the part of an employee who signs a union card is the result of a misrepresentation on the part of the collector. Something that the employee concludes but was not part of what the collector was saying is not to be held against the collector or the campaign. See also Venture Industries Canada, Ltd., cited above.

75The argument on behalf of the objecting employees stressed the opinion that the facts of this case were unusual, and suggested that the Board should find that the employees did not have the opportunity to check out the representations made to them. Specifically, the fact that all the signatures were obtained on one Sunday afternoon and evening is argued to mean that the cards are inherently unreliable, because no one had time to think about what they were doing. It was argued that the Board's usual assumption that employees could have or did check out the veracity of organizers' claims should not apply in this case. It is said that because of the length of the campaign, there was no opportunity to debate the merits of unionization. Counsel asserts that this may have been because the union did not want the dealer or the employees who were opposed to be able to talk to employees. Where employees are deprived of the chance to hear the other side, counsel suggested the Board should order a vote. He suggested that in particular in light of the amendments made by Bill 40, which remove the period up to the terminal date as a period for debate, the Board should consider ordering votes in cases like this.

76Further, the objecting employees argue that because the Bannermans were new to the business in Kirkland Lake, the employees had had no opportunity to make an independent assess­ment of them and would have relied on what Ms. Rutetzki, the office employee, whom they rea­sonably perceived as management, told them was going on. When she said she had lost her posi­tion and might lose her job and that two employees had lost their job for no reason, she was believed. Counsel submitted that Ms. Rutetzki's reference to job security, reduction of hours and reduction of benefits might just be talk coming from the average employee, but when made by her in the presence of the well-known president of the mine local, they are sufficiently threatening that a vote should be held. Counsel asserts that the witnesses were deterred from refusing to sign by intimidation by Ms. Rutetzki.

77We will deal with the specifics of these assertions below, but as a general proposition, we cannot accept them. Although it is true that this was a quick campaign, there are many cam­paigns that are no longer than one meeting. In small workplaces, campaigns sometimes last no longer than a coffee break. The Act does not require any specific length of time, or require that the matter be debated. Absent conduct in the nature of coercion, intimidation or threats, the Board relies on employees to just say "no" if they think they are not being given enough time or information to make the decision. It is not prepared to assume that something done quickly is not voluntary. Nor is it prepared to read into the 1993 amendments an intention that there be such requirements inferred by the Board. There is nothing in them which would suggest that that was the intention of the Legislature in passing them. If the Legislature had wished to change the direc­tion of the Board's jurisprudence in this area, it could have, as it did explicitly in other areas in the 1993 amendments. Although Ms. Rutetzki has a strong personality and undoubtedly exerted some pressure on people to make up their minds quickly, there is no indication that anyone was deprived of the ability to simply say no. If the time pressure had been coupled with some negative conse­quence for not signing, it would be another matter, but the evidence does not warrant such a find­ing.

78In coming to the conclusions about the membership 7 evidence, it was necessary to weigh the often conflicting evidence about what was said in the conversations that preceded and followed the signing of the membership evidence in issue. In the Board's experience, most witnesses demonstrate that the human memory is subject to a variety of frailties which set in almost immediately after an event and increase with time. When that is combined with nervousness at giv­ing evidence in a public forum, the dynamic between examiner and witness, as well as a host of other factors such as fatigue and personal point of view, even an honest witness will often give evi­dence that is not entirely reliable as to what actually happened. This is the most common source of conflicts in evidence, although some witnesses consciously lie. And the same witness may be mis­taken or lie about some things and tell the truth about others. In the heat of cross-examination, it can appear that the world is divided between people who are lying and people who are telling the truth, and never the twain shall meet. In the final analysis, though, credibility is not mostly about villains and angels, or liars and people with total recall. Rather, most people are mostly trying to tell the truth as they know it (which means as they saw and remember it), but the various factors referred to above may result in testimony which sounds quite different from other people who tes­tified about the same event or subject.

79The witnesses in this hearing were no exception to this general state of affairs. There were contradictions and gaps between witnesses and within the evidence of most of the witnesses. The Board considers the accounts of the witnesses both on their own and as compared with other witnesses. Conflicts in the evidence which are necessary to resolve are resolved on the basis of a number of standard factors such as the demeanour of the witnesses, the extent to which their account accords with what is most probable in the circumstances, and the ability of witnesses to withstand the ever present pull of self-interest or the interest of the party with whom their position is most identified.

80We will deal with each of the employees who gave evidence on the allegations about membership evidence.

Veronica Peters

81The allegations in respect to Veronica Peters' card signing are that she signed on the basis of misrepresentations that i) all employees were being contacted, ii) what she was signing was not a union card. More specifically it is alleged that she did not intend to sign an application to join the union or accept membership in the union.

82There are significant inconsistencies both within Ms. Peters evidence and between her and the union witnesses to the signing of her card, Ms. Rutetzki and Mr. Yee. The Board first con­sidered the evidence given on its own merits, independent of the contradictions between it and the union witnesses, to assess if the allegations had been made out.

83As to the first allegation, we are convinced from Ms. Peters' evidence that she formed an impression that all the employees in the store were being contacted, but she confirmed on cross-examination that that was not actually what was said to her. Thus, we do not find the evidence to support the first portion of her allegation. In any event, we do not find that a statement that all the employees were being contacted, even if untrue, would be so material as to call into question the nature of the membership evidence as an expression of the employee's wish at the time of signing. See Can-Eng Metal Treating Ltd., and Masters Construction Ltd., cited above.

84The second allegation, that she was told that what she was signing was not a union card, is a much more fundamental matter. If the nature of what Ms. Peters was being asked to do was misrepresented to the extent that she was told she was not doing exactly what she was doing, i.e. signing a union card, this would be a material misrepresentation.

85It is clear from Ms. Peters' testimony and the letter she wrote dated April 29, 1994, (which she said was more reliable than her evidence, given the passage of time) that she was aware that the purpose of Ms. Rutetzki's visit to her house was to discuss bringing a union into the Cana­dian Tire store. She describes in her letter that Ms. Rutetzki and Mr. Yee were seated at her table and "continued to discuss how much better off we would be with the union". From this type of statement, it is fair to conclude that Ms. Peters knew that what was being discussed was unioniza­tion. Ms. Peters wrote that it was when she asked if all the people were being contacted that Ms. Rutetzki explained that "they needed 55% of the employees to agree to sign a card, allowing them to present their case before a panel in Toronto..." Ms. Peters then says she asked about the card again and got a similar answer, after which she says she asked if it was a union card and Ms. Rutetzki said "no" and explained again, about needing 55% of the signatures of employees in order to go before the Panel. She says she then asked if there would be any repercussion if she signed the card and did not go union, to which Mr. Yee answered no.

86She said she signed the card with the understanding they were only presenting an infor­mal request for the union. After saying that she was told that it was not a union card, she said there was no discussion about it being a union card, because the discussion was only allowing them to present their case. She says that she had no idea of what kind of case they were presenting and that although she knew that Ms. Rutetzki and Mr. Yee wanted the union in, she herself "was not even thinking union" when she signed the card. During cross-examination, Ms. Peters was asked the question: "They never said it was a proposal or an informal request", to which she replied, "In my heart it was". When the proposition that she had asked what the card was for, and Mr. Yee and Ms. Rutetzki had said to join a union, was put to her, she answered "I don't recall". And "They never said it was a union card."

87The front of the card which Ms. Peters signed states: "Yes, I hereby apply for and accept membership in the United Steelworkers of America." At an angle over this, but not obscur­ing the words just set out are the two words, "STRICTLY CONFIDENTIAL". The Board is of the view, that it should be clear to anyone who reads the card that it is an application for member­ship in the United Steelworkers of America. Ms. Peters filled out the back of the card with infor­mation such as her name, address and phone number, and signed the front, but insists that she did not read the front of the card. There is no suggestion that she was hindered in any way from read­ing the card. From observing Ms. Peters in the stand, it is clear that she is an articulate, literate person. If we are to accept that she did not read the most important part of the card, perhaps it is appropriate to state the obvious: there may be consequences from signing things that one does not read.

88Ms. Peters wishes to be relieved of the normal consequence of signing an application for membership because she says that she was told it was not a union card. Her evidence on this point is subject to the inconsistencies set out above, i.e. she says she had no idea what was going to be presented in Toronto although she was clear that what Ms. Rutetzki and Mr. Yee were doing in her house was trying to get a union into the store. She says she was clearly told it was not a union card, yet she says she cannot recall whether Ms. Rutetzki and Mr. Yee told her the card was to join a union. The evidence that "in her heart" it was just an informal request suggests that she con­cluded the request was informal in some way, and does not indicate a clear recollection that she was told that. That she was lending her name to something that she had no idea about, is not con­sistent with a reasonable approach by someone in Ms. Peters' situation. The surrounding evidence indicates that Ms. Peters is clearly able to speak up for herself, as she did to the Board and as the evidence disclosed she did when angry with Ms. Rutetzki. Having assessed this aspect of Ms. Peters' evidence on its own, in accord with what seems probable in the circumstances of the undis­puted facts, the Board finds it unlikely that Ms. Peters did not understand what she was doing when she signed the application for membership in the union presented to her by Ms. Rutetzki and Mr. Yee.

89The Board has also assessed Ms. Peters' evidence in comparison to that of Ms. Rutetzki and Mr. Yee, who were present at the time of signing. There are discrepancies between Ms. Rutetzki and Mr. Yee as to whether he made certain statements about benefits. We have con­cluded that Ms. Rutetzki is not accurate on the point of whether Mr. Yee said that benefits would be the first thing to be cut, as both he and Ms. Peters agree that is what he said. Counsel for the employer and objecting employees suggested that I should reject all of Ms. Rutetzki's evidence because of this inconsistency and other factors including her caution on cross-examination, and all of Mr. Yee's evidence because of his failure to recall many details. Union counsel made similar suggestions about Ms. Peters. My assessment of the evidence is that no one's testimony was entirely accurate or free from the influence of various distorting factors, but that no one's evidence warranted being rejected outright. Thus, as I explained above, I have weighed the stories alone and in comparison to each other, and in light of what seems most probable in all the circumstances, including the undisputed facts.

90Mr. Yee and Ms. Rutetzki were very clear that they had never said that what they were presenting was not a union card. Given Ms. Peters' confirmation that they had made it clear that they were trying to get a union in to the store, and that they were discussing the benefits of unioni­zation, and that they explained that they needed 55% of the employees to sign to support a presen­tation before the Board, it seems much more probable than not that they did not say it was not a union card, as this would have been inconsistent with everything else Ms. Peters acknowledges they said, and inconsistent with the wording on the card. Ms. Peters said she was stunned by the idea that unionization was being considered, and that she did not recall the exact words that were said on the occasion in question. Although the Board does not expect witnesses to recall every­thing precisely, as most people do not, it is relevant to deciding whether Ms. Peters' testimony is an accurate reflection of what happened that her own evidence indicates she was bewildered at the time and that she was "trying to bring the words back" rather than actually remembering what was said. In sum, the Board has weighed the evidence in its totality and concluded that it is more likely than not that Ms. Rutetzki and Mr. Yee did not make the misrepresentation that what she was signing was not a union card. Thus, we do not find that they misconducted themselves on the occa­sion in question.

91No threats or coercion were pleaded either by Ms. Peters or by counsel for the object­ing employees in reference to her signing. However, Mr. Abbass later argued that Ms. Peters was intimidated because Mr. Yee said benefits were the first thing the employer would cut if they con­tinued making cuts when she needed her benefits at that particular point in time. We do not find these statements to be more than salesmanship and thus they do not call into doubt the reliability of Ms. Peters' membership card.

92The Board has also concluded that there was no perception on Ms. Peters' part that Ms. Rutetzki was acting on behalf of management or on inside information. When her own counsel asked her if she had thought about Ms. Rutetzki's knowing something about cutbacks she did not (referring to the idea that Ms. Rutetzki worked in the office) Ms. Peters answered that she had never thought about her knowing something. Further, the Board finds that Ms. Peters' actions in seeking Ms. Rutetzki out later in the week and yelling at her in the office about her views about the union are inconsistent with the idea that Ms. Peters considered her to be her superior or in some position of authority over her at work. As well, Ms. Peters' whole attitude in testimony about the organizing drive can be summed up in her statement, "The Bannermans don't deserve this", a remark totally inconsistent with any suggestion that she actually thought the organizing campaign was being conducted by or with any approval from management.

93The thrust of Mr. Abbass's argument suggested that in any event one should order a vote because Ms. Peters did not intend to become a member of the union. Absent a material mis­representation by the representatives of the. union, or some indication that Ms. Peters was not in a position to decide to sign or not, the fact that she signed a clearly worded application for member­ship is important evidence that at the time she signed it, she intended to do so. We have concluded from the evidence that there was no material misrepresentation, and that Ms. Peters was able to decide not to sign if she wished. We have little doubt that Ms. Peters changed her mind later and now regrets having signed the card. Nonetheless, the evidence is persuasive that it is a sufficiently reliable indicator of Ms. Peters' wishes at the time she signed it.

Herb Zielkie

94Mr. Zielkie testified that before he signed, Ms. Rutetzki told him that they already had 75% of employees signed but they wanted 80%. Ms. Rutetzki says that when she first talked to him on the phone, she said a majority of the people she had spoken to were for the union, and that a few days later, after he had signed, she called him to tell him nearly 80% had signed. Mr. Zielkie cannot recall being told that on the later conversation. In other testimony, Ms. Rutetzki said that she often told people that 55% were necessary for certification but the union wanted to get at least 60%.

95Having considered the two accounts, we are of the view that neither is a material mis­representation which goes to the root of the membership evidence. In any event, on the basis of the list the union organizers were working with at the time, it was true that approximately 75% of the employees in the bargaining unit had signed when Ms. Rutetzki was talking to Mr. Zielkie, although Ms. Rutetzki insisted she did not know this at the time that she spoke to Mr. Zielkie. We are persuaded by Mr. Zielkie's evidence that he knew what he was doing when he signed; he had been involved with a union before at the mine. He evaluated what Ms. Rutetzki said, for instance, about wage negotiations, based on that experience and what he knew about the garage where he worked. He said the percentages were not in any event what he relied on in signing.

96Mr. Zielkie also said he wondered what management was doing bringing a union in, as he was under the impression that Ms. Rutetzki was part of management because she worked in the office. He appeared to base this on the fact that he dealt with her in regards to forms for benefits and reimbursement for boots. He raised no concerns about this to Ms. Rutetzki or anyone else at the time. The Board has found that Ms. Rutetzki does not actually exercise managerial functions. It is clear that Mr. Zielkie was not subject to Ms. Rutetzki's supervision and that he had never dealt with her in regards to wages or other truly managerial matters. Nor is there anything to sug­gest he thought she was acting on behalf of the Bannermans. We are not of the view that Mr. Zielkie's perception of Ms. Rutetzki's status, which really amounted to his knowledge that she was an office worker, was such as would deter him from exercising his right to choose whether or not to sign. He acknowledged that he agreed to have Ms. Rutetzki's husband come over to sign a card, although he felt somewhat pressured because he was tired and did not find it easy to say no to Ms. Rutetzki. These latter factors are in the realm of social pressure, which the Board has consistently said it will not police.

97Counsel for the objecting employees argued that Mr. Zielkie signed on the basis of a material misrepresentation that the union was already in the store. Ms. Zielkie testified that Ms. Rutetzki said that a union was formed or being formed at the store, or that they were bringing a union in to the store. If Mr. Zielkie concluded from that that the union was already certified, and he should "get on board", the evidence does not warrant the conclusion that it was because Ms. Rutetzki said the union was already certified. The words he attributes to Ms. Rutetzki to the effect that a union was being formed, are not misrepresentative. In any event, the statements attributed to Ms. Rutetzki do not amount to material misrepresentations about the organizing campaign.

98Having considered the totality of Mr. Zielkie's account, we are of the view that he vol­untarily signed the card, without any material misrepresentation or unlawful pressure.

Janet Hartling

99It is alleged that Janet Hartling did not know what she was signing when she signed a union card in front of Ms. Rutetzki and Mr. Yee. Ms. Hartling was a straightforward witness, who said that she read the card, and understood she was applying to join a union, but that she thought there would be more steps before she became a member. She further said that she understood that the card was being used to try to get a union in at the store. On cross-examination, she agreed that Ms. Rutetzki had told her what the card was for, that signing it would be joining the union. As the Act considers an application for membership on the same footing as evidence of membership for the purposes of a certification application, we are of the view that Ms. Hartling had sufficient understanding of what she was signing when she signed even if one relies only on her direct exami­nation.

100There was conflicting evidence about an intervention from Ms. Hartling's mother dur­ing the visit to her house. Ms. Hartling recalls that her mother said to Ms. Rutetzki that she (Ms. Hartling) did not know what she was doing, and that Ms. Rutetzki answered that it was confiden­tial. Ms. Rutetzki's version was that Ms. Hartling's mother said to Janet that she better know what she was doing, and that she responded that the cards were confidential and the Bannermans would not know that Ms. Hartling had signed. On cross-examination, Ms. Hartling acknowledged that it was possible that Ms. Rutetzki's recollection was correct. Ms. Rutetzki testified that Mrs. Hartling added, "You know that's a union card; once you sign you can not just change your mind.", and that Janet responded that she knew what she was doing. When this version was put to Ms. Hartling on cross-examination, she said that she doubts that she said that because she did not know what she was doing, but that she would not deny that she said that.

101In the final analysis, we are not persuaded that much turns on which version is correct. Both versions indicate that Ms. Hartling's mother interrupted in a way that was intended to make her think about what she was doing. It was an "out" which, had Ms. Hartling wished, she could have availed herself of.

102At one point in her testimony Ms. Hartling said that Ms. Rutetzki had told her 80% signed during the card-signing visit and that this was a major reason she signed. Later she said she had said most had signed, and that she did not remember the exact words. Ms. Hartling said that it was not until the next day that she asked Ms. Rutetzki who she had approached, at which time Ms. Rutetzki said 80% had signed. We have the same view of this as with the similar issue in regards to Mr. Zielkie. It does not amount to a material misrepresentation even if it was said.

103It is alleged that Ms. Hartling was intimidated when Ms. Rutetzki said that two workers were fired and that she did not feel it was for any specific reason, and that this caused her to be concerned that without a union her job was in jeopardy. Ms. Hartling's testimony was that she understood Ms. Rutetzki's concerns to mean she could be fired too and that if there were no rea­son for firings the union would be helpful.

104Ms. Hartling testified that Ms. Rutetzki said salaries and benefits could be cut with the

new management, and that hours were already being cut. As she did not work many hours and did not have many to cut, this was of concern to her. She also felt she was not fully informed.

105Ms. Hartling wrote in her letter to the Board that she was intimidated because she feared having Ms. Rutetzki mad at her at work. She had had an experience where Ms. Rutetzki gave her unsolicited advice about a personal matter, which she had not appreciated. However, she did not follow the advice.

106On a number of occasions, Ms. Hartling's letter also states simply that she was per­suaded to join the union, something that is the lawful object of organizing campaigns. She then relates that the reason that she knew Ms. Rutetzki had not gone about getting the union together properly was because she had not asked the people who the union would really affect. She was under the impression, as were many of the objecting employees, that the full-time employees were not given a say in the matter. As the union filed membership evidence on behalf of more than 55% of each group considered separately, this is incorrect and seems to be a misapprehension that arose at work during the week following the card signing.

107We are not persuaded that there was anything untoward about what Ms. Hartling says occurred surrounding the signing of her card. The effect of her feelings about Ms. Rutetzki's per­sonality are in the realm of social pressure, and, as we have said above, is not something the Board should police. Ms. Hartling related some of her discomfort with Ms. Rutetzki to the fact that she worked in the office and could report her for mistakes on cash. However, given the totality of her evidence, we are not of the view that Ms. Hartling was unduly influenced by this, or that a reason­able employee would have been deterred from exercising free choice because of her office duties. There was, in our view, no fundamental misrepresentation made to Ms. Hartling. The statements made about hours being cut, or the possibility of being fired with no protection without a union, do not constitute misrepresentations in our view. Whether or not Mr. Bannerman thought there was any change to the average hours of the employees to whom Ms. Rutetzki was referring, it is clear that they had experienced a reduction in hours in the weeks prior to the campaign; Mr. Banner-man himself acknowledged this.

108Ms. Hartling's wish that she had been more thoroughly informed, or that she had spent more time thinking about the matter was a theme in many of the objecting employees' submissions to the Board. It was clearly their point of view that the Act should include an obligation for unions to provide certain kinds of information, the obligation to contact everyone in the workplace, and a cooling off period. However, the Act does not provide for these things, and it is not for the Board to insert them where the Legislature has not.

Rose Godin

109It is alleged that Rose Godin was told by Ms. Rutetzki that the new owner wanted to cut wages, had cut hours and would probably find a way to cut benefits. She was told that the own­ers could cut her hours and even fire her and that she could not do anything about it if they did not have a union, and that she took this as a threat.

110Her name is also listed as one of the people to whom representations were made that those who did not sign would not be protected from cuts to their wages, benefits, hours and the possibility of being fired.

111Ms. Godin was a very forthright witness, and on the basis of her evidence alone, we are persuaded that she intended to sign the card when she did, but had second thoughts after doing so. Her own evidence supports a finding that she felt concerned about job security after hearing what Ms. Rutetzki and Mr. Yee had to say, but that she was not intimidated, and had no misrepresenta­tions made to her.

112Counsel for the objecting employees argues that one has to view the interaction between Rose Godin and Carolyn Rutetzki as the interaction between a person who supervises and trains her and is abrupt and domineering, that she took what Ms. Rutetzki said as a threat to her job security, since it came from someone who knows what goes on and is close to management. Counsel said, "Rose sees Carolyn as the boss". There is nothing in the evidence that we find objec­tively intimidating, and in those circumstances, Ms. Godin's reactions are in the category of reac­tions to peer pressure. As to the argument that Ms. Rutetzki was perceived as the boss, this was not evident from Ms. Godin herself, and we have found that, objectively, Ms. Rutetzki was not the boss. We are of the view that there was nothing in the evidence of Ms. Godin that persuades us that Ms. Godin was, or any other reasonable employee would have been, deterred from expressing her own choice.

113The evidence is clear that Ms. Rutetzki made reference to various ways in which employees were vulnerable, including the possibility of cuts to hours and benefits and competition from Walmart. Ms. Godin acknowledged that Ms. Rutetzki might have said that she heard about a proposed change to the way the Bannermans calculated labour costs from the floor manager rather than the Bannermans, although she was not sure which person Ms. Rutetzki said she had been talking to. We are not of the view that the source of these remarks changes the conclusions above about Ms. Godin's perception of Ms. Rutetzki.

114After much consideration, I have decided that it would not be fruitful to deal in detail with the serious concerns the Board had about the conduct of this hearing. Suffice it to say that the adversary system appeared at its worst in this hearing. It is not my view that the excesses on which I commented orally at the hearing were in anyway necessary to the protection of the interests rep­resented. Rather, they served to unnecessarily worsen the divisions engendered by the differences of opinion over union representation. I orally urged the parties to attempt to muster sufficient goodwill to overcome the negative effects of such a prolonged and aggravated hearing as this one became, and wish to reaffirm that here, as it is important to the long-term working relationships of all concerned.

119For the reasons and as a result of the findings above, the Board certified the applicant on August 19, 1994.