Mechanics in Garage Maple Lodge Farm v. United Food and Commercial Workers International Union, Local 175, 1994 CanLII 9917

[1994] OLRB Rep. April 447

3721-93-R Mechanics in Garage Maple Lodge Farm, Applicant V. United Food and Commercial Workers International Union, Local 175, Responding Party V. Maple Lodge Farms, Intervenor

BEFORE: M. Kaye Joachim, Vice-Chair, and Board Members W. A. Correll and K. Davies.

APPEARANCES: Daniel Rioux for the applicant; Kelvin Kucey for the responding party; Marilyn Silverman for the intervenor.

DECISION OF THE BOARD; April 19, 1994

1. This is an application under section 58(1) of the Labour Relations Act for a declaration that the responding party (the "union") no longer represents the employees of the intervenor (the "employer") in the bargaining unit described below, for which it is the bargaining agent.

2. The union is currently the bargaining agent for the following bargaining unit:

all employees of Maple Lodge Farms Ltd. employed in its garage at R.R. #2, Norval, save and except General Garage Foreman, persons above the rank of General Garage Foreman, Driver Trainer and Office and Clerical staff.

Preliminary Motions

3. At the commencement of the hearing the union brought a motion to have the applica­tion dismissed as untimely. They also argued that the application was so lacking in particulars as to warrant dismissal. The union led no evidence with respect to the preliminary motions, relying solely on the application and the petitions filed.

4. The relevant provisions of the Act are set out below:

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determined in the certificate may, subject to section 62, apply to the Board for a declaration that the trade union no longer represents the employees in the bargaining unit.

62.-(i) Subject to subsection (3), where a trade union has not made a collective agreement within one year after its certification and the Minister has appointed a conciliation officer or a mediator under this Act, no application for certification of a bargaining agent of, or for a decla­ration that a trade union no longer represents, the employees in the bargaining unit determined in the certificate shall be made until,

(a) thirty days have elapsed after the Minister has released to the parties the report of a conciliation board or mediator;

(b) thirty days have elapsed after the Minister has released to the parties a notice that he or she does not consider it advisable to appoint a conciliation board; or

(c) six months have elapsed after the Minister has released to the parties a notice of a report of the conciliation officer that the differences between the parties concerning the terms of a collective agreement have been settled, as the case may be. (emphasis added)

5. The application was filed on January 31, 1994, along with an undated petition bearing seventeen signatures ("petition # 1"). The preamble to the petition stated "We do not wish to be represented by a union". The petition did not name the union or its locals. The union concedes that the application was timely, but argued that the petition was insufficient and should be disre­garded.

6. In accordance with the Board's usual practice, a notice was posted in the workplace advising employees of the application for termination of bargaining rights. The notice advised the parties that any evidence that employees do or do not wish to be represented by the trade union must be filed by the terminal date, February 23, 1984. Two further petitions were submitted, one by another employee in the bargaining unit on February 22 ("petition #2") and one by the appli­cant on February 23 ("petition #3"). Those petitions contained many of the same signatures as contained on petition #1, and a few additional signatures. However, the preambles to petitions #2 and #3 referred specifically to the union and its locals.

7. The union argued that these latter two petitions should be treated as new applications that were untimely. The union was certified on December 23, 1992. On February 7, 1994, the union applied for the appointment of a conciliation officer. The union stated that Board Officer J. Miller was appointed on February 14, 1994, but no evidence on this point was presented to the Board. As of February 23, the union and the employer had not yet met with the conciliation offi­cer, and thus no report had issued. The union asserted that petitions #2 and #3 should be treated as new applications that were untimely, as they were received by the Board after the appointment of the conciliation officer (February 14, 1994) but before thirty days had elapsed following the report of the officer (see section 62(1)(a) above).

8. The panel declined to dismiss the application at the outset but advised the applicant that they could renew their argument at the conclusion of the hearing. The union was advised that the Board would require evidence with respect to the date of the appointment of the conciliation offi­cer, if the union intended to pursue this argument. In light of the ultimate disposition of the appli­cation, it is unnecessary to consider this argument.

The Merits

9. With respect to the merits of the application, section 58(3) states:

58.-(3) Upon an application under subsection (1) or (2), the Board shall ascertain the number of employees in the bargaining unit at the time the application was made and whether not less than 45 per cent of the employees in the bargaining unit have voluntarily signified in writing at the time that is determined under clause 1O5(2)(j.1) that they no longer wish to be represented by the trade union, and, if not less than 45 per cent have so signified, the Board shall, by a representa­tion vote, satisfy itself that a majority of the employees desire that the right of the trade union to bargain on their behalf be terminated. (emphasis added)

10. Three petitions were filed prior to the terminal date, (one with the application, two sub­sequently) each of which contained a sufficient number of employee signatures to cause the Board to conduct its normal inquiry into the origination and circulation of each petition in order to deter­mine whether it represented the voluntary expression of the individuals who signed it.

11. The Board proceeded to hear the applicant's evidence with respect to the circulation of the three petitions. Daniel Rioux testified with respect to the circulation of petitions #1 and #3. Petition #2 was drafted by an employee named Syed Hussain, but circulated primarily by a lead

hand named Robert Yake. The parties agreed that Mr. Hussain need not be called and that they would accept as a fact that Mr. Hussain had drafted petition #2. Mr. Yake testified with respect to the circulation of petition #2. At the conclusion of the applicant's case on March 14, 1994, the Board, on it own motion, decided that it would not require the responding party to call any evi­dence, and dismissed the application. The parties were advised orally of the Board's decision and were also advised that written reasons would follow. These are the Board's reasons for dismissing the application.

Background

12. The union was certified on December 23, 1992. During the organizing drive Daniel Rioux and Robert Yake circulated a petition and obtained the signatures of a number of employ­ees who were opposed to becoming represented by the union. A different panel of this Board held a hearing to determine whether the petition was voluntary. By decision dated February 8,1993, the Board decided that the involvement of the lead hand, Robert Yake, was fatal to the voluntari­ness of the petition:

13. The parties have agreed that the lead hands, including Mr. Yake, are bargaining unit employ­ees, but whether or not they exercise "managerial functions" within the meaning of section 1(3)(b) of the Labour Relations Act, it is clear that the lead hands at this workplace have a rela­tionship with management that is not that of a typical bargaining unit employee. The lead hands here would be perceived as linked with management. The lead hand on the night shift is the individual in charge of the shift. No "managerial" individual is present. As such, that lead hand will necessarily have to direct the work force during that shift. During the day shift, Mr. Yake appears to exercise a number of managerial functions, and is clearly perceived as linked to man­agement, both because he was formerly the General Foreman of the plant, and because of the nature of his current duties and responsibilities. As noted, those responsibilities include impos­ing discipline, sending people home, and assigning work to employees on the afternoon shift.

14. There were no allegations of impropriety against the company, and there is no evidence that the company was in any way involved in the petitions.

3 10. In all the circumstances, we are satisfied that both the petitions originating from the night shift and the day shift were motivated in large part by the lead hands' collective decision to oppose the union, and the actions they then took in response. The lead hands were instrumental in obtaining or assisting in obtaining most of the signatures on the petitions. They were highly visible in terms of their participation in the origination of the petitions and in the collection of signatures on them. When all the circumstances are taken into account, we are satisfied that employees generally would have perceived the lead hands as somehow linked with management, and this in turn would have pressured employees to sign the petitions. In light of this, and not­withstanding the very credible evidence given by both Mr. Rioux and Mr. Yake, we are not sat­isfied that the petitions were voluntary.

The Law

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

(a) The applicant is expected to call witnesses to give evidence, based on personal knowledge and observation, relating to the circumstances of the origination and preparation of the petition, and the manner in which each signature was obtained. Each and every signature on the petition must be

identified and the circumstances under which it was obtained must be described. Where such evidence is not presented, the signature may, and likely will, be discounted. (Custom Foam Specialities Limited, (1986] OLRB Rep. Dec. 1680) (emphasis added)

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

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

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

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

1759

The Evidence

14. The employees in the bargaining unit, the garage employees at Maple Lodge Farms, work on two shifts, a night shift and a day shift. There are three day crews and three night crews. There is a lead hand on each crew. When two crews work together, one of the lead hands "steps down" leaving one lead hand in charge of the double crew. When leading a single crew, the lead hand generally performs the same work as the other employees. In addition, the lead hand is responsible for answering the telephone, organizing work assignments and generally, liaising with management. Lead hands on double crews do very little hands on garage work and more "manag­ing". Their responsibilities include assigning work to employees, imposing minor discipline, send­ing people home, monitoring the length of the coffee breaks, and assessing the work of new employees.

15. Generally, the situation is much the same as it was approximately one year ago, when a different panel of the Board concluded that lead hands in this particular work environment would be perceived as linked with management. We reach the same conclusion.

Petition #1

16. Mr. Rioux drafted and circulated petition #1. He is not a lead hand. Although he dis­cussed the idea of circulating the petition with other employees, including some lead hands, he tes­tified that the decision to circulate the petition was his alone. He obtained seventeen signatures on this petition, over two to three days. For the following reasons, the Board does not accept that petition #1 is a voluntary expression of the wishes of the employees.

17. First, during examination by the Board and cross-examination by the responding party, Mr. Rioux contradicted himself several times about the dates, times and circumstances surround­ing the signing of petition #1. He frankly admitted to being confused because of the circulation of the subsequent petitions. In the end, Mr. Rioux could only state that he had witnessed each employee sign petition #1, but he could give no reliable evidence with respect to any of the cir­cumstances surrounding each signature. This lack of reliable evidence with respect to the signa­tures on the petition is fatal.

18. Second, Mr. Rioux indicated that four out of the first seven signatures on the petition were lead hands. The status of lead hands in this workplace, coupled with the fact that the petition was circulated during working hours at the work place, leads the Board to conclude that employees would have perceived this petition to be supported by or at least condoned by management.

Petition #2

19. On February 18, following the posting of the Board notice advising employees of the termination application and the terminal date for submitting evidence that employees do or do not wish to be represented by a trade union, the, lead hand on the day shift, Robert Yake, called the employees together in the lunchroom. A discussion ensued and the employees decided to circulate a petition. Syed Hussain, an employee in the bargaining unit, drafted petition #2. It was in the form of a letter to the Board and stated "This is to inform you that we, the garage employees of Maple lodge Farms, department 610, opposes to be represented by the United Food and Commer­cial local union 175-633, form B-12, File No. 3721-93-R. Supplied below are the signatures of the garage employees opposing the union." Twenty employees signed this petition. Many of them had previously signed petition #1 and also signed petition #3. It is appropriate to note here that the Board's notice requesting employees to submit evidence that employees do or do not wish to be represented by the union refers to additional evidence, and is not intended to solicit those same employees who signed the original petition to submit further signatures.

20. Although Mr. Hussain wrote out the petition, he did not circulate it. Mr. Yake did. Mr. Yake is a lead hand on both single and double crews and he performs all the functions of a lead hand described above. Mr. Yake was the first to sign the petition and he then obtained the signa­tures of most of those on the shift. When he was not obtaining signatures, he kept the petition in his locker which was probably locked. He turned the petition over to the lead hand on the next shift to obtain more signatures. That lead hand did not testify. The petition was returned to him by yet another lead hand, who also did not testify. Two to three signatures were therefore obtained by persons who did not testify to the circumstances of those signatures, nor to the custody of the peti­tion during that time. Mr. Yake then obtained the remaining signatures and delivered petition #2 to the Board. For the following reasons, the Board does not accept the voluntariness of petition #2.

21. For the same reasons as found by a previous panel of the Board, this panel finds that the active involvement of the lead hand Mr. Yake in the circulation of the petition during working hours would likely lead employees to believe that the petition was supported or condoned by man­agement. The fact that Mr. Yake called the employees on his shift into the lunchroom for the pur­pose of obtaining signatures would have had a further coercive effect on employees.

22. Further, the petition was out of Mr. Yake's custody when he left it in his locker, which may have been unlocked. More importantly, it was out of his custody when he passed it on to a lead hand until it was returned by another lead hand

23. Finally, the circumstances surrounding two to three of the signatures were unknown, as the applicant did not call the lead hands who obtained those signatures.

Petition #3

24. The circumstances giving rise to petition #3 are as follows. Following its usual practice, the Board edited petition #1 for confidentiality by blanking out the names and other identifying material of the employees who signed it. All that remained on petition #1, after editing, was the preamble. In place of the signatures on the first page, the Board typed in the words "11 signa­tures" and in place of the signatures on the second page, the Board typed in the words "6 signa­tures", to indicate the material which had been edited out. This information was circulated to the parties, including the applicant. The applicant misunderstood this document. He interpreted it as a request from the Board to obtain eleven signatures on the first page and six signatures on the sec­ond page. Although he was not scheduled to work that day, he took the document to work on Feb­ruary 18 to obtain the seventeen signatures. He obtained eighteen. Most, but not all, were employ­ees who had signed the previous petitions. There was some confusion between Mr. Yake and Mr. Rioux's evidence as to whether Mr. Rioux arrived with his petition shortly before Mr. Yake called the above-mentioned meeting in the lunchroom to sign petition #2, or whether Mr. Rioux brought petition #3 in at a different time. In any event, it is clear that petition #3 also started circulating on February 18 and that Mr. Yake called the employees into the lunchroom to assist Mr. Rioux. Mr. Rioux signed the document first. Mr. Yake, the lead hand, signed second. He added the name of the union and its local to the preamble. Mr. Rioux witnessed all the remaining signatures over the course of three days. Mr. Rioux testified that there was very little discussion with the employ­ees, although this time they expressed confusion and frustration over the fact that they were being asked to sign yet another petition. Mr. Rioux told them that the Board had asked him obtain more signatures. He was not able to give reliable evidence with respect to the circumstances surrounding any of the signatures. For the following reasons, the Board does not accept that petition #3 is a voluntary expression of the wishes of the employees.

25. First, Mr. Rioux was unable to recall with any degree of precision the circumstances surrounding the signatures he obtained on petition #3.

26. Second, the Board is not satisfied that the employees knew what they were signing when they signed petition #3. They were confused and frustrated at being asked to sign a third document. Very little discussion took place. They were advised that the Board had requested this petition.

27. Third, the lead hand, Mr. Yake was involved in the circulation of the petition, both by adding the union's name to the preamble and by calling the employees into the lunchroom to sign it. For the reasons expressed above, the involvement of the lead hand in this particular workplace invalidates the petition.

28. In light of the circumstances above, the Board does not accept that any of the petitions are the voluntary expression of the wishes of the employees. It is appropriate to note at this point, that there were no allegations of impropriety against the company and there was no evidence that the employer was in any way involved in any of the petitions.

29. The application is dismissed.

30. After the hearing the Board received a letter dated March 30, 1994, from an employee in the bargaining unit. The full text of the letter is reproduced below:

The Board's decision, resulting from the hearing, was that Local 175 will be the Collective Bar­gainer for the garage employees. This despite the collective bargaining to ratify the Union Con­tract had broken down twice in bitter dispute with a majority vote against. The main topic at the union meetings was that the majority of the employees did not wish to be represented by the Food and Commercial Union, as they appear not to have enough expertise in handling transport garages but rather represent food and catering concerns. We feel that there was misunderstand­ing as to the Union's capabilities at the time membership was initiated.

There is no "collective agreement" here, between the parties. We feel that the Board has made a sincere error in passing such a judgement.

The March 14 hearing was a closed hearing, which we understand is a practice under constant criticism since 1990. No closed ballot vote was taken by the Board from garage workers, which would be a very desirable operation in such a matter.

The Garage Employees, Department 610 of Maple Lodge Farms respectfully submit a request for an appeal to the Board's March 14 decision. We further respectfully request a reversal of that decision; that the United Food and Commercial Union, Local 175 be terminated as bar­gaining agents for these garage employees.

A copy of this letter has been forwarded to the Honourable Minister of Labour.

31. The Board interprets this as a request for reconsideration of its oral decision of March 14, 1994 to dismiss the application. The Board has decided to dismiss the application for reconsid­eration for the following reasons.

32. The basis of the Board's jurisdiction to reconsider its decisions is found in section 108(1) of the Act:

108.-(i) The Board has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it, and the action or decision of the Board thereon is final and conclusive for all purposes, but nev­ertheless the Board may at any time, if it considers it advisable to do so, reconsider any deci­sion, order, direction, declaration or ruling made by it and vary or revoke any such decision, order, direction, declaration or ruling.

33. As can be seen from this provision, the Board has a broad discretion to reconsider any of its decisions. However, the Board's jurisprudence is clear that there are sound legal and labour relations considerations for treating a Board decision as final and conclusive for all purposes unless there is a good reason to change it. Generally, the Board will not reconsider a decision unless an obvious error has been made; or a request for reconsideration raises important policy issues which have not received adequate attention or consideration; or the party requesting reconsideration pro­poses to adduce new evidence which it could not with the exercise of reasonable diligence have obtained or adduced previously, and which new evidence would, if accepted, have a material impact on the decision in question; or that a party seeks to make representations which it has had no previous opportunity to make.

34. The letter does not raise any issues which could not have been raised at the initial hear­ing. The basis of the request for reconsideration appears to be the fact that the union has failed to achieve a collective agreement with the employer and the Board made an error in finding that there was a collective agreement in place. Whether or not the union has reached a collective agree­ment is not a relevant factor to our decision. Further, the Board did not make any finding with respect to the existence of a collective agreement.

35. We wish to address the employee's concern that the hearing was "closed". This is not the case. The Board hearings are open to the public, as this one was. However, at the outset of the hearing the responding party made a request for an order excluding witnesses. One of the primary purposes of excluding witnesses is to prevent witnesses who may testify later from hearing the evi­dence of earlier witnesses, in order to reduce the likelihood that later witnesses (whether intention­ally or inadvertently) will tailor their evidence to fit with the earlier evidence. The Board ordered all witnesses excluded, except the parties and their advisors. Pursuant to that order, the applicant, Mr. Rioux was permitted to remain in the hearing room as was his chosen advisor, Mr. Yake. All other witnesses were requested to leave the room until they were called to give evidence. It was Mr. Rioux's decision to ask all the persons present in the hearing room on his behalf to leave, in case he needed to call them as witnesses.

36. Finally, with respect to the concern that "no closed ballot vote was taken", it should be noted that a vote will only be taken only if the applicant shows that at least forty-five per cent of the employees have voluntarily signified in writing that they no longer wish to be represented by the trade union (section 58(3)). For all the reasons discussed above, the Board has concluded that the signatures obtained on the three petitions are not voluntary. Therefore, the applicant is not entitled to a vote.

37. On April 7, the Board received a further petition bearing sixteen signatures which stat­ed:

RE: MIN. OF LABOUR FILE #3721-93-R

WE, THE UNDERSIGNED GARAGE WORKERS EMPLOYED BY MAPLE LODGE FARMS LTD. RESPECTFULLY REQUEST AN APPEAL OF THE DECISION OF THE ONTARIO LABOUR RELATIONS BOARD WITH REFERENCE TO THE BOARD'S DECISION RE: OUR APPLICATION FOR THE TERMINATION OF BARGAINING RIGHTS OFTHE UNITED FOOD & COMMERCIAL WORKERS INT

[1994] OLRB REP. APRIL 447

3721-93-R Mechanics in Garage Maple Lodge Farm, Applicant V. United Food and Commercial Workers International Union, Local 175, Responding Party V. Maple Lodge Farms, Intervenor

Petition - Reconsideration - Termination - Board not accepting that petitions filed repre­senting voluntary expression of wishes of employees - Termination application dismissed - Reconsid­eration application dismissed

BEFORE: M. Kaye Joachim, Vice-Chair, and Board Members W. A. Correll and K. Davies.

APPEARANCES: Daniel Rioux for the applicant; Kelvin Kucey for the responding party; Marilyn

Silverman for the intervenor.

DECISION OF THE BOARD; April 19,1994

1. This is an application under section 58(1) of the Labour Relations Act for a declaration that the responding party (the "union") no longer represents the employees of the intervenor (the "employer") in the bargaining unit described below, for which it is the bargaining agent.

2. The union is currently the bargaining agent for the following bargaining unit:

all employees of Maple Lodge Farms Ltd. employed in its garage at R.R. #2, Norval, save and except General Garage Foreman, persons above the rank of General Garage Foreman, Driver Trainer and Office and Clerical staff.

Preliminary Motions

3. At the commencement of the hearing the union brought a motion to have the applica­tion dismissed as untimely. They also argued that the application was so lacking in particulars as to warrant dismissal. The union led no evidence with respect to the preliminary motions, relying solely on the application and the petitions filed.

4. The relevant provisions of the Act are set out below:

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

62.-(i) Subject to subsection (3), where a trade union has not made a collective agreement within one year after its certification and the Minister has appointed a conciliation officer or a mediator under this Act, no application for certification of a bargaining agent of, or for a decla­ration that a trade union no longer represents, the employees in the bargaining unit determined in the certificate shall be made until,

(a) thirty days have elapsed after the Minister has released to the parties the report of a conciliation board or mediator;

(b) thirty days have elapsed after the Minister has released to the parties a notice that he or she does not consider it advisable to appoint a conciliation

board; or

(c) six months have elapsed after the Minister has released to the parties a notice of a report of the conciliation officer that the differences between the parties concerning the terms of a collective agreement have been settled, as the case may be. (emphasis added)

448 [1994] OLRB REP. APRIL

5. The application was filed on January 31, 1994, along with an undated petition bearing seventeen signatures ("petition # 1"). The preamble to the petition stated "We do not wish to be represented by a union". The petition did not name the union or its locals. The union concedes that the application was timely, but argued that the petition was insufficient and should be disre­garded.

6. In accordance with the Board's usual practice, a notice was posted in the workplace advising employees of the application for termination of bargaining rights. The notice advised the parties that any evidence that employees do or do not wish to be represented by the trade union must be filed by the terminal date, February 23, 1984. Two further petitions were submitted, one by another employee in the bargaining unit on February 22 ("petition #2") and one by the appli­cant on February 23 ("petition #3"). Those petitions contained many of the same signatures as contained on petition #1, and a few additional signatures. However, the preambles to petitions #2 and #3 referred specifically to the union and its locals.

7. The union argued that these latter two petitions should be treated as new applications that were untimely. The union was certified on December 23, 1992. On February 7, 1994, the union applied for the appointment of a conciliation officer. The union stated that Board Officer J. Miller was appointed on February 14, 1994, but no evidence on this point was presented to the Board. As of February 23, the union and the employer had not yet met with the conciliation offi­cer, and thus no report had issued. The union asserted that petitions #2 and #3 should be treated as new applications that were untimely, as they were received by the Board after the appointment of the conciliation officer (February 14, 1994) but before thirty days had elapsed following the report of the officer (see section 62(1)(a) above).

8. The panel declined to dismiss the application at the outset but advised the applicant that they could renew their argument at the conclusion of the hearing. The union was advised that the Board would require evidence with respect to the date of the appointment of the conciliation offi­cer, if the union intended to pursue this argument. In light of the ultimate disposition of the appli­cation, it is unnecessary to consider this argument.

The Merits

9. With respect to the merits of the application, section 58(3) states:

58.-(3) Upon an application under subsection (1) or (2), the Board shall ascertain the number of employees in the bargaining unit at the time the application was made and whether not less than 45 per cent of the employees in the bargaining unit have voluntarily signified in writing at the time that is determined under clause 1O5(2)(j.1) that they no longer wish to be represented by the trade union, and, if not less than 45 per cent have so signified, the Board shall, by a representa­tion vote, satisfy itself that a majority of the employees desire that the right of the trade union to bargain on their behalf be terminated. (emphasis added)

10. Three petitions were filed prior to the terminal date, (one with the application, two sub­sequently) each of which contained a sufficient number of employee signatures to cause the Board to conduct its normal inquiry into the origination and circulation of each petition in order to deter­mine whether it represented the voluntary expression of the individuals who signed it.

11. The Board proceeded to hear the applicant's evidence with respect to the circulation of the three petitions. Daniel Rioux testified with respect to the circulation of petitions #1 and #3. Petition #2 was drafted by an employee named Syed Hussain, but circulated primarily by a lead

(1994] OLRB REP. APRIL 449

hand named Robert Yake. The parties agreed that Mr. Hussain need not be called and that they would accept as a fact that Mr. Hussain had drafted petition #2. Mr. Yake testified with respect to the circulation of petition #2. At the conclusion of the applicant's case on March 14, 1994, the Board, on it own motion, decided that it would not require the responding party to call any evi­dence, and dismissed the application. The parties were advised orally of the Board's decision and were also advised that written reasons would follow. These are the Board's reasons for dismissing the application.

Background

12. The union was certified on December 23, 1992. During the organizing drive Daniel Rioux and Robert Yake circulated a petition and obtained the signatures of a number of employ­ees who were opposed to becoming represented by the union. A different panel of this Board held a hearing to determine whether the petition was voluntary. By decision dated February 8,1993, the Board decided that the involvement of the lead hand, Robert Yake, was fatal to the voluntari­ness of the petition:

13. The parties have agreed that the lead hands, including Mr. Yake, are bargaining unit employ­ees, but whether or not they exercise "managerial functions" within the meaning of section 1(3)(b) of the Labour Relations Act, it is clear that the lead hands at this workplace have a rela­tionship with management that is not that of a typical bargaining unit employee. The lead hands here would be perceived as linked with management. The lead hand on the night shift is the individual in charge of the shift. No "managerial" individual is present. As such, that lead hand will necessarily have to direct the work force during that shift. During the day shift, Mr. Yake appears to exercise a number of managerial functions, and is clearly perceived as linked to man­agement, both because he was formerly the General Foreman of the plant, and because of the nature of his current duties and responsibilities. As noted, those responsibilities include impos­ing discipline, sending people home, and assigning work to employees on the afternoon shift.

14. There were no allegations of impropriety against the company, and there is no evidence that the company was in any way involved in the petitions.

3 10. In all the circumstances, we are satisfied that both the petitions originating from the night shift and the day shift were motivated in large part by the lead hands' collective decision to oppose the union, and the actions they then took in response. The lead hands were instrumental in obtaining or assisting in obtaining most of the signatures on the petitions. They were highly visible in terms of their participation in the origination of the petitions and in the collection of signatures on them. When all the circumstances are taken into account, we are satisfied that employees generally would have perceived the lead hands as somehow linked with management, and this in turn would have pressured employees to sign the petitions. In light of this, and not­withstanding the very credible evidence given by both Mr. Rioux and Mr. Yake, we are not sat­isfied that the petitions were voluntary.

The Law

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

(a) The applicant is expected to call witnesses to give evidence, based on personal knowledge and observation, relating to the circumstances of the origination and preparation of the petition, and the manner in which each signature was obtained. Each and every signature on the petition must be

450 (1994] OLRB REP. APRIL

identified and the circumstances under which it was obtained must be described. Where such evidence is not presented, the signature may, and likely will, be discounted. (Custom Foam Specialities Limited, (1986] OLRB Rep. Dec. 1680) (emphasis added)

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

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

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

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

1759

The Evidence

14. The employees in the bargaining unit, the garage employees at Maple Lodge Farms, work on two shifts, a night shift and a day shift. There are three day crews and three night crews. There is a lead hand on each crew. When two crews work together, one of the lead hands "steps down" leaving one lead hand in charge of the double crew. When leading a single crew, the lead hand generally performs the same work as the other employees. In addition, the lead hand is responsible for answering the telephone, organizing work assignments and generally, liaising with management. Lead hands on double crews do very little hands on garage work and more "manag­ing". Their responsibilities include assigning work to employees, imposing minor discipline, send­ing people home, monitoring the length of the coffee breaks, and assessing the work of new employees.

15. Generally, the situation is much the same as it was approximately one year ago, when a different panel of the Board concluded that lead hands in this particular work environment would be perceived as linked with management. We reach the same conclusion.

Petition #1

16. Mr. Rioux drafted and circulated petition #1. He is not a lead hand. Although he dis­cussed the idea of circulating the petition with other employees, including some lead hands, he tes­tified that the decision to circulate the petition was his alone. He obtained seventeen signatures on this petition, over two to three days. For the following reasons, the Board does not accept that petition #1 is a voluntary expression of the wishes of the employees.

[1994] OLRB REP. APRIL 451

17. First, during examination by the Board and cross-examination by the responding party, Mr. Rioux contradicted himself several times about the dates, times and circumstances surround­ing the signing of petition #1. He frankly admitted to being confused because of the circulation of the subsequent petitions. In the end, Mr. Rioux could only state that he had witnessed each employee sign petition #1, but he could give no reliable evidence with respect to any of the cir­cumstances surrounding each signature. This lack of reliable evidence with respect to the signa­tures on the petition is fatal.

18. Second, Mr. Rioux indicated that four out of the first seven signatures on the petition were lead hands. The status of lead hands in this workplace, coupled with the fact that the petition was circulated during working hours at the work place, leads the Board to conclude that employees would have perceived this petition to be supported by or at least condoned by management.

Petition #2

19. On February 18, following the posting of the Board notice advising employees of the termination application and the terminal date for submitting evidence that employees do or do not wish to be represented by a trade union, the, lead hand on the day shift, Robert Yake, called the employees together in the lunchroom. A discussion ensued and the employees decided to circulate a petition. Syed Hussain, an employee in the bargaining unit, drafted petition #2. It was in the form of a letter to the Board and stated "This is to inform you that we, the garage employees of Maple lodge Farms, department 610, opposes to be represented by the United Food and Commer­cial local union 175-633, form B-12, File No. 3721-93-R. Supplied below are the signatures of the garage employees opposing the union." Twenty employees signed this petition. Many of them had previously signed petition #1 and also signed petition #3. It is appropriate to note here that the Board's notice requesting employees to submit evidence that employees do or do not wish to be represented by the union refers to additional evidence, and is not intended to solicit those same employees who signed the original petition to submit further signatures.

20. Although Mr. Hussain wrote out the petition, he did not circulate it. Mr. Yake did. Mr. Yake is a lead hand on both single and double crews and he performs all the functions of a lead hand described above. Mr. Yake was the first to sign the petition and he then obtained the signa­tures of most of those on the shift. When he was not obtaining signatures, he kept the petition in his locker which was probably locked. He turned the petition over to the lead hand on the next shift to obtain more signatures. That lead hand did not testify. The petition was returned to him by yet another lead hand, who also did not testify. Two to three signatures were therefore obtained by persons who did not testify to the circumstances of those signatures, nor to the custody of the peti­tion during that time. Mr. Yake then obtained the remaining signatures and delivered petition #2 to the Board. For the following reasons, the Board does not accept the voluntariness of petition

#2.

21. For the same reasons as found by a previous panel of the Board, this panel finds that the active involvement of the lead hand Mr. Yake in the circulation of the petition during working hours would likely lead employees to believe that the petition was supported or condoned by man­agement. The fact that Mr. Yake called the employees on his shift into the lunchroom for the pur­pose of obtaining signatures would have had a further coercive effect on employees.

22. Further, the petition was out of Mr. Yake's custody when he left it in his locker, which may have been unlocked. More importantly, it was out of his custody when he passed it on to a lead hand until it was returned by another lead hand.

452 (1994] OLRB REP. APRIL

23. Finally, the circumstances surrounding two to three of the signatures were unknown, as the applicant did not call the lead hands who obtained those signatures.

Petition #3

24. The circumstances giving rise to petition #3 are as follows. Following its usual practice, the Board edited petition #1 for confidentiality by blanking out the names and other identifying material of the employees who signed it. All that remained on petition #1, after editing, was the preamble. In place of the signatures on the first page, the Board typed in the words "11 signa­tures" and in place of the signatures on the second page, the Board typed in the words "6 signa­tures", to indicate the material which had been edited out. This information was circulated to the parties, including the applicant. The applicant misunderstood this document. He interpreted it as a request from the Board to obtain eleven signatures on the first page and six signatures on the sec­ond page. Although he was not scheduled to work that day, he took the document to work on Feb­ruary 18 to obtain the seventeen signatures. He obtained eighteen. Most, but not all, were employ­ees who had signed the previous petitions. There was some confusion between Mr. Yake and Mr. Rioux's evidence as to whether Mr. Rioux arrived with his petition shortly before Mr. Yake called the above-mentioned meeting in the lunchroom to sign petition #2, or whether Mr. Rioux brought petition #3 in at a different time. In any event, it is clear that petition #3 also started circulating on February 18 and that Mr. Yake called the employees into the lunchroom to assist Mr. Rioux. Mr. Rioux signed the document first. Mr. Yake, the lead hand, signed second. He added the name of the union and its local to the preamble. Mr. Rioux witnessed all the remaining signatures over the course of three days. Mr. Rioux testified that there was very little discussion with the employ­ees, although this time they expressed confusion and frustration over the fact that they were being asked to sign yet another petition. Mr. Rioux told them that the Board had asked him obtain more signatures. He was not able to give reliable evidence with respect to the circumstances surrounding any of the signatures. For the following reasons, the Board does not accept that petition #3 is a voluntary expression of the wishes of the employees.

25. First, Mr. Rioux was unable to recall with any degree of precision the circumstances surrounding the signatures he obtained on petition #3.

26. Second, the Board is not satisfied that the employees knew what they were signing when they signed petition #3. They were confused and frustrated at being asked to sign a third document. Very little discussion took place. They were advised that the Board had requested this petition.

27. Third, the lead hand, Mr. Yake was involved in the circulation of the petition, both by adding the union's name to the preamble and by calling the employees into the lunchroom to sign it. For the reasons expressed above, the involvement of the lead hand in this particular workplace invalidates the petition.

28. In light of the circumstances above, the Board does not accept that any of the petitions are the voluntary expression of the wishes of the employees. It is appropriate to note at this point, that there were no allegations of impropriety against the company and there was no evidence that the employer was in any way involved in any of the petitions.

29. The application is dismissed.

30. After the hearing the Board received a letter dated March 30, 1994, from an employee in the bargaining unit. The full text of the letter is reproduced below:

[1994] OLRB REP. APRIL 453

The Board's decision, resulting from the hearing, was that Local 175 will be the Collective Bar­gainer for the garage employees. This despite the collective bargaining to ratify the Union Con­tract had broken down twice in bitter dispute with a majority vote against. The main topic at the union meetings was that the majority of the employees did not wish to be represented by the Food and Commercial Union, as they appear not to have enough expertise in handling transport garages but rather represent food and catering concerns. We feel that there was misunderstand­ing as to the Union's capabilities at the time membership was initiated.

There is no "collective agreement" here, between the parties. We feel that the Board has made a sincere error in passing such a judgement.

The March 14 hearing was a closed hearing, which we understand is a practice under constant criticism since 1990. No closed ballot vote was taken by the Board from garage workers, which would be a very desirable operation in such a matter.

The Garage Employees, Department 610 of Maple Lodge Farms respectfully submit a request for an appeal to the Board's March 14 decision. We further respectfully request a reversal of that decision; that the United Food and Commercial Union, Local 175 be terminated as bar­gaining agents for these garage employees.

A copy of this letter has been forwarded to the Honourable Minister of Labour.

31. The Board interprets this as a request for reconsideration of its oral decision of March

14, 1994 to dismiss the application. The Board has decided to dismiss the application for reconsid­eration for the following reasons.

32. The basis of the Board's jurisdiction to reconsider its decisions is found in section 108(1) of the Act:

108.-(i) The Board has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it, and the action or decision of the Board thereon is final and conclusive for all purposes, but nev­ertheless the Board may at any time, if it considers it advisable to do so, reconsider any deci­sion, order, direction, declaration or ruling made by it and vary or revoke any such decision, order, direction, declaration or ruling.

33. As can be seen from this provision, the Board has a broad discretion to reconsider any of its decisions. However, the Board's jurisprudence is clear that there are sound legal and labour relations considerations for treating a Board decision as final and conclusive for all purposes unless there is a good reason to change it. Generally, the Board will not reconsider a decision unless an obvious error has been made; or a request for reconsideration raises important policy issues which have not received adequate attention or consideration; or the party requesting reconsideration pro­poses to adduce new evidence which it could not with the exercise of reasonable diligence have obtained or adduced previously, and which new evidence would, if accepted, have a material impact on the decision in question; or that a party seeks to make representations which it has had no previous opportunity to make.

34. The letter does not raise any issues which could not have been raised at the initial hear­ing. The basis of the request for reconsideration appears to be the fact that the union has failed to achieve a collective agreement with the employer and the Board made an error in finding that there was a collective agreement in place. Whether or not the union has reached a collective agree­ment is not a relevant factor to our decision. Further, the Board did not make any finding with respect to the existence of a collective agreement.

35. We wish to address the employee's concern that the hearing was "closed". This is not the case. The Board hearings are open to the public, as this one was. However, at the outset of the

454 [1994] OLRB REP. APRIL

hearing the responding party made a request for an order excluding witnesses. One of the primary purposes of excluding witnesses is to prevent witnesses who may testify later from hearing the evi­dence of earlier witnesses, in order to reduce the likelihood that later witnesses (whether intention­ally or inadvertently) will tailor their evidence to fit with the earlier evidence. The Board ordered all witnesses excluded, except the parties and their advisors. Pursuant to that order, the applicant, Mr. Rioux was permitted to remain in the hearing room as was his chosen advisor, Mr. Yake. All other witnesses were requested to leave the room until they were called to give evidence. It was Mr. Rioux's decision to ask all the persons present in the hearing room on his behalf to leave, in case he needed to call them as witnesses.

36. Finally, with respect to the concern that "no closed ballot vote was taken", it should be noted that a vote will only be taken only if the applicant shows that at least forty-five per cent of the employees have voluntarily signified in writing that they no longer wish to be represented by the trade union (section 58(3)). For all the reasons discussed above, the Board has concluded that the signatures obtained on the three petitions are not voluntary. Therefore, the applicant is not entitled to a vote.

37. On April 7, the Board received a further petition bearing sixteen signatures which stat­ed:

RE: MIN. OF LABOUR FILE #3721-93-R

WE, THE UNDERSIGNED GARAGE WORKERS EMPLOYED BY MAPLE LODGE FARMS LTD. RESPECTFULLY REQUEST AN APPEAL OF THE DECISION OF THE ONTARIO LABOUR RELATIONS BOARD WITH REFERENCE TO THE BOARD'S DECISION RE: OUR APPLICATION FOR THE TERMINATION OF BARGAINING RIGHTS OF THE UNITED FOOD & COMMERCIAL WORKERS INTERNATIONAL UNION LOCAL 175, AFL-CIO-CLC AS IT PERTAINS TO THAT PARTICULAR UNION REPRESENTING US.

38. Attached to the petition was the earlier letter from the employee in the bargaining unit dated March 30, 1994 and an unsigned copy of what appeared to be a draft collective agreement between the union and the employer.

39. The petition does not add any further reasons to the request for reconsideration dated March 30, 1994. The request for reconsideration is still denied.

40. In conclusion, the application is dismissed and the request for reconsideration is dis­missed.