Communications, Energy, and Paperworkers Union of Canada v. Insulec Ltd., 1994 CanLII 9971

[1994] OLRB Rep. March 254

2997-93-R Communications, Energy, and Paperworkers Union of Canada, Applicant v. Insulec Ltd., Responding Party, v. Group of Objecting Employees, Objectors

BEFORE: Janice Johnston, Vice-Chair, and Board Members R. M. Sloan and R. R. Montague.

APPEARANCES: J. James Nyman and Jim Counahan on behalf of the applicant; fry Kleiner and Mac Hogarth on behalf of the responding party; Milton Verskin and Greg R. McDonald on behalf of the objectors.

DECISION OF THE BOARD; March 8, 1994

1The style of cause is hereby amended to reflect the correct name of the responding party: "Insulec Ltd."

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

3This is an application for certification. The parties reached partial agreement with regard to the appropriate bargaining unit description as follows:

Bargaining Unit #1

All employees of Insulec Ltd. at its Unipac Division located at 145 Edward Street in the Town of Aurora and at its Insulec Division located at 125 Edward Street in the Town of Aurora save and except Supervisors, persons above the rank of Supervisor, office, clerical and technical staff, Engineering and Sales Staff.

Clarity Note: The parties further agree that office and clerical staff include the administrative staff and technical includes the Laboratory Technicians, Quality Assurance Technical Staff, chemists and Production Scheduling Assistants which are all excluded from the Unit.

And pending resolution by the Board excluding as well its Insulec Division located at 125 Edward Street in the Town of Aurora. In which case there will be Unit #2 which will read:

Bargaining Unit #2

All Employees of Insulec Ltd. at its Insulec Division located at 125 Edward Street in the Town of Aurora save and except Supervisors, those above the rank of Supervisor, office, clerical and technical staff, Engineering and Sales Staff.

4At the hearing convened to deal with this application, there were three issues in dispute between the parties. The applicant, the Communications Energy and Paperworkers' Union of Canada (the "union"), and the objecting employees took the position that there should be one bargaining unit whereas the responding party (the "company" or "Insulec Ltd.") took the position that there should be two bargaining units. There were also filed with the Board timely and relevant individual statements of desire or petitions in opposition to the union. As there was sufficient overlap of employees who had signed a petition and a membership card in the union, the Board determined that it was appropriate to inquire into the voluntariness of the petitions. Should the Board be satisfied that the petition documents reflect the voluntary expression of the wishes of those employees who signed them, pursuant to section 8(3) of the Labour Relations Act (the "Act"), the Board has the discretion to direct the taking of a representation vote. The third issue concerned whether Mr. Joe DaSilva was an employee of the company and therefore properly included on the list of employees in the bargaining unit.

5The Board heard evidence from nine witnesses over seven days of hearings. For the purposes of resolving the issues before us it is not necessary to set out all of the evidence in great detail.

The Bargaining Unit Description Issue

i) The Facts

6Insulec Ltd. is made up of two divisions. One division will be referred to as the "Insulec" division or the "electrical" division. This division produces flexible electrical parts or insulation for companies such as Westinghouse and General Electric. The second division will be referred to as the "Unipac" division. The Unipac division is in the business of producing bottle cap liners such as the heavy paper liner one would find sealing a new jar of mayonnaise or induction sealable liners such as are found on containers of windshield washer fluid.

7In 1967, Mr. Mac Hogarth, the owner, sole shareholder, president and general manager of Insulec Ltd., bought the company. At that time it was known as Universal Insulators Company Limited. The majority of the business at that time was made up of electrical as opposed to bottle cap work. That changed gradually over time and today the Unipac or bottle cap division makes up the majority of the business and employs the majority of the people. Although both businesses were originally carried out under the name of Universal Insulators Company Limited, in the early 1980's the Unipac division was created and additional buildings adjacent to the original buildings

were purchased to house the new division. Some existing equipment was moved over to the new premises and new equipment was also purchased.

8There are two main buildings on the site, one for each division, and numerous smaller buildings used in the manufacturing process. There is also a third large building on the site in which the head office and research and development staff are located. The three main buildings each have a different street address and each manufacturing plant has its own sign. Each division has its own lunch room, change room and parking lot. There is a separate sales force for each division although they each report to a single sales manager. The two divisions are held out to the public as separate businesses and each has its own distinct clientele. Each division maintains its own financial records, letterhead and promotional material.

9Although some of the equipment and processes are different, many of the same basic machines are found in both divisions. For example, each division has equipment referred to as slitters and laminators. There is some generic training and specific training on a particular piece of equipment is also offered.

10There are two full shifts operating in the Unipac division, a day shift and an afternoon shift. In the Insulec division there is a day shift and a few employees who work on the afternoon shift. There are two supervisors who rotate shifts with their staff in the Unipac division and one supervisor working days in the Insulec division. Each supervisor is responsible for the staff and operations on his/her shift with the exception of the afternoon shift supervisor in the Unipac division. In the event of problems or emergencies, that supervisor is also expected to assist the employees working on the afternoon shift in the Insulec division. The supervisors report to a plant manager.

11As already noted, Mr. Hogarth is the president and general manager of both divisions. He plays an active role in the management of both divisions. Working under him, with responsibility for both divisions, are the sales manager, the product development manager, the plant manager and the plant engineer. There is one training co-ordinator who conducts training for both divisions; one maintenance department, located in the Insulec building with a supervisor and several employees who perform work in both divisions; and one research and development group which performs work on behalf of both divisions.

12There is one payroll system and one compensation plan or wage structure for all employees. There is one benefit package and one vacation policy for all employees. Seniority is recognized and applied based on overall company seniority. Job vacancies are posted in both locations and employees move from one division to the other. All employees are provided with bereavement leave, boot and back support/safety boot allowances, paid jury duty and shift premium. Overtime is paid to all employees on the same basis.

13It was not disputed that some employees physically located in one division perform work on behalf of both divisions. For example, there is one bailer operator located in the Insulec division who bails waste material produced in both divisions; one still operator located in the Insulec division who reclaims solvents for use as cleaning agents in either division; Mr. Dennis Dalrymple currently operates a rewinder machine located in the Insulec division and fifty per cent of his regular work is performed on behalf of the Insulec division and fifty per cent of his work is performed on behalf of the Unipac division; prior to operating the rewinder, Mr. Dalrymple operated a slitter in which eighty per cent of his work was Unipac work and twenty per cent of his work was Insulec work; and Mr. McDonald is the company trainer and he performs training work on behalf of both divisions.

14It was also not disputed that there are employees who move back and forth between the two divisions and perform work in both divisions. For example, Mr. Greg Vidic operates a slitter physically located in the Insulec division (although all his work is Unipac work) and a couple of times a month, if he finishes his work or if there are any problems with his machine, he will go over to the Unipac building and assist a machine operator located in that division. Bill Riches is another employee who frequently performs work for both divisions and moves back and forth between the two.

ii) Decision

15It is fitting to begin any analysis as to what is an appropriate bargaining unit description by reference to the Board's decision in the Hospital for Sick Children, [1985] OLRB Rep. Feb. 266. In that case the Board defines the test as: Does the unit which the union seeks to represent encompass a group of employees with a sufficiently coherent community of interest that they can bargain together on a viable basis without at the same time causing serious labour relations problems for the employer (see paragraph 23). In explaining the rationale for such an approach, the Board in Hospital for Sick Children wrote as follows:

Given that the definition of the bargaining unit can materially affect the ability of employees to organize, and that uncertainties concerning its contours can provoke costly litigation and potentially prejudicial delay, what then is the purpose of the concept of the "appropriate bargaining unit"? Quite simply, it is an effort to inject a public policy component into the initial shaping of the collective bargaining structure, so as to encourage the practice and procedure of collective bargaining and enhance the likelihood of a more viable and harmonious collective bargaining relationship. That objective is spelled out clearly in the Preamble to the Act. While the requisites for effective collective bargaining cannot always be defined with certainty, may necessitate a balance of competing collective bargaining values, and may, in any event, turn on factors beyond the Board's control, the discretion to frame the "appropriate" bargaining unit during the initial organizing phase provides the Board with an opportunity (albeit perhaps a limited one) to avoid subsequent labour relations problems. Now, of course, this is not necessarily the same thing as minimizing administrative problems for the employer or organizing problems for the union. The structures and policies that promote a maximization of the employer's business interests are not those that will necessarily describe a viable bargaining unit, or the only viable bargaining unit -- particularly since those interests may include a desire to avoid collective bargaining altogether, or limit its effectiveness. The employer's administrative structures are relevant in determining the bargaining unit, but they are not necessarily to be taken as the conclusive blue print in deciding what is appropriate. Nor is it a matter of simply giving an applicant union what it wants. It is, as we have noted, a matter of balancing competing considerations, including such factors as: whether the employees have a community of interest having regard to the nature of the work performed, the conditions of employment, and their skills; the employer's administrative structures; the geographic circumstances; the employees' functional coherence, or interdependence or interchange with other employees; the centralization of management authority; the economic advantages to the employer of one unit versus another; the source of work; the right of of employees to a measure of self-determination; the degree of employee organization and whether a proposed unit would impede such organization; any likely adverse effects to the parties and the public that might flow from a proposed unit, or from fragmentation of employees into several units, and so on.

Some of the collective bargaining consequences of the bargaining unit determination were canvassed in Kidd Creek Mines Ltd., [1984] OLRB Rep. March 481. In that case, the applicant was seeking to represent a "craft" unit of about 100 certified electricians who were part of a maintenance department of 800 employees and an industrial work force of 2,800, all of whom were unorganized. The Board made the following general observations about the potential significance of a bargaining unit determination:

We may begin by observing that the notion of an "appropriate" bargaining unit is a labour relations concept with no common law antecedents and in the general case, no precise statutory definition. What it means, quite simply, is the group of employees whom it makes "labour relations sense" to lump together for the purpose of collective bargaining, and section 6(1) of the Act leaves the Board's discretion to fashion bargaining units largely unfettered. Yet the Board's determination is obviously of immense practical importance, not only for the immediate parties, but for the structure and performance of the collective bargaining system as a whole. The definition of the unit affects the bargaining power of the union and the point of balance it creates with that of the employer. It influences the potential scope and effectiveness of collective bargaining for dealing with different matters, and to some extent, even the substantive issues covered in the collective agreement. And, perhaps most important, the shape of the bargaining unit can profoundly influence the potential for industrial peace or collective bargaining discord. The more disparate are the interests enclosed within the unit, the more difficult it may be for the union to effectively represent the collectivity. Insufficient attention to these special interests generates internal strife, while too much attention to minorities may make it more difficult for a union to formulate a coherent package of proposals or make necessary concessions. On the other hand, there are dangers at the other extreme, as the Board noted in Bestview Holdings Limited, [1983] OLRB Rep. Aug. 1250:

Self-determination and community of interest often favour relatively small units, but these are not the only relevant factors in bargaining unit design. The Board must also strive to create a viable structure for ongoing collective bargaining and, to this end, undue fragmentation must be avoided. Consolidated bargaining offers several advantages over a fragmented structure. A proliferation of small units may result in unnecessary work stoppages. Each time one group goes on strike, other employees performing jobs that are functionally dependent upon the work normally done by strikers are brought to a halt. Even in the absence of functional integration, strikers may erect picket lines that keep other employees away from work. The likelihood of a strike occurring increases as the number of rounds of bargaining grows, and is further enhanced by competition among bargaining agents. Secondly, each of several units typically becomes a separate seniority district, enclosed by walls which impede the movement of employees between jobs. In addition, broader-based structures may lower the cost and thereby increase the availability of insurance schemes and benefit plans. A multiplicity of bargaining units also inevitably spawns jurisdictional disputes over the assignment of work and entails the cost of negotiating and applying several collective agreements. Finally, the existence of a single bargaining unit facilitates equitable treatment of employees doing similar jobs.

A patchwork quilt of bargaining units is a recipe for industrial unrest -- if only because in an integrated enterprise it takes only one collective bargaining breakdown to start the whole system unravelling.

The comments in Kidd Creek illustrate some of the problems which could arguably arise in some settings from an unduly fragmented bargaining structure -- even if the group of employees who sought to organize themselves did indeed share a distinct or identifiable community of interest.

Some of the same concerns underly[sic] the Board's analysis in Stratford General Hospital, [1976] OLRB Rep. Sept. 459, which involved an attempt by two unions to organize differently described but overlapping units of paramedical employees. The initial problem was the description of the appropriate bargaining unit. The Board recognized that in the special environment of a public hospital pharmacists, physiotherapists, social workers, etc. all had an arguably distinct identity stemming from such factors as their specialized training, outside professional or quasi-professional associations, and particular departmental focus. In this sense, each sub-group and each department could claim a distinct community of interest. However, the Board made it clear that this did not mean that each of these groupings, would constitute a separate bargaining unit for collective bargaining purposes. Such balkanization of bargaining would create serious administrative problems for the Hospital. Nor, for reasons set out at length, was the Board persuaded that technical, paramedical, paraprofessional and professional employees could, or should be distinguished for collective bargaining purposes, even though there were obviously important distinctions between the various sub-groupings based upon their level of education, responsibilities, degree of independence, and how far they had travelled on the "road to professionalization". The Board was of the view that for collective bargaining purposes, they could all comfortably co-exist within one paramedical bargaining unit.

In Kidd Creek (and Stratford General Hospital, to a lesser extent), it was suggested that an inappropriate or unduly fragmented bargaining structure could contribute to subsequent labour-management problems, tension within and between bargaining units, and an escalation of industrial conflict. Such outcomes are undesirable. If these problems can be avoided by more careful attention to the determination of the bargaining unit "at the front end", without prejudicing other collective bargaining or statutory objectives, then that attention is obviously warranted. On the other hand, if the potential for collective bargaining difficulties is less obvious or serious, or if the possible problems are less certainly connected with one bargaining unit definition as opposed to another, or if similar problems are likely to arise wherever the line is drawn, then the precise perimeter of the bargaining unit may be less important from a policy point of view.

16The Board's approach as outlined above was further refined and clarified in the recent Board decision, The Governing Council of the Salvation Army in Canada & Bermuda dated January 5, 1994 (not yet reported) [now reported at [1994] OLRB Rep. Jan. 85]. In it the Board stated:

Both in Hospital for Sick Children and in later cases, the Board has explored the tension between bargaining structures that facilitate organizing (one of the goals of the Statute), and bargaining structures that are likely to be more stable and effective in the long-run (another goal of the Act). The former objective points to smaller employee groupings which are more readily organized. The latter goal points to broader-based bargaining units that have the organizational mass and bargaining power to survive over time and in changing market conditions.

These goals must be harmonized within a framework that now recognizes that there is no single unique and indisputably "appropriate" unit. There are degrees of appropriateness; or to put the matter another way, sensible, alternative ways in which one can define the bargaining unit without triggering (as the Board in Hospital for Sick Children put it) "serious labour relations problems". A trade union need not seek to represent the most comprehensive or most appropriate bargaining unit; and as the applicant or moving party, the union has a degree of flexibility in deciding what unit to organize. As long as the unit it seeks does not generate serious labour relations difficulties for the employer, it will be granted the unit it applies for.

If there is one theme that has been constant in the Board's concerns, both before and after Hospital for Sick Children, it is the aversion to fragmentation: the sub-division of an employer's enterprise into a number of separate collective bargaining components - which become separate seniority districts, which can lead to jurisdiction or inter-employee rivalries, which can generate organizational problems if one or other fragment goes on strike, which can make work-sharing or technological change more difficult to accommodate, and so on. Accordingly, while smaller sub-divisions may be appropriate in the context of a particular case, and may be necessary to facilitate organizing (despite the collective bargaining "downside" described above), a broader, more comprehensive unit will also generally be appropriate. In other words, if a trade union seeks a more comprehensive bargaining unit, this larger unit will usually be appropriate, and will very likely be accepted on the Hospital for Sick Children test, unless there are serious labour relations problems with it which demonstrably overwhelm the difficulties associated with fragmentation, or unless the larger unit applied for seems idiosyncratic or perverse. Indeed, unless the labour relations context is quite unusual, one would expect the more comprehensive bargaining unit to be presumptively appropriate, if that is what the union has organized and applied for; and it serves no purpose to engage in the exercise mentioned in the emphasized portion of the Hospital for Sick Children case reproduced at paragraph 18.

17Counsel on behalf of the employer argued that the two divisions in this case were separate businesses and should be treated as such for the purposes of collective bargaining. In support of his position counsel referred the Board to Magna International Inc., [1981] OLRB Rep. Sept. 1260; Usarco Limited, [1967] OLRB Rep. Sept. 526; and K Mart Canada Limited, [1981] OLRB Rep. Sept. 1250. All of these cases define an approach to resolving bargaining unit issues which existed prior to Hospital for Sick Children, supra and they do not start with the assumption that as long as the bargaining unit sought by the union does not generate serious labour relations difficulties for the employer, it will be granted the unit it applies for. Within the context of serious labour relations problems, the Board considers such issues as community of interest, interchange of employees and fragmentation and these cases may still be relevant when the Board is considering such issues. However the facts of the case before us do not demonstrate that the granting of the bargaining unit applied for by the union would create serious labour relations problems for the employer. In fact, the reverse appears to be true. While the two divisions reflect separate businesses, there is no doubt that they are inter-connected and that the enterprise as a whole is one organization. The organizational structure reflects this as does the daily work flow and employee interchange.

18For all of the reasons outlined, the Board finds the following to be a unit of employees of the employer which is appropriate for collective bargaining:

Clarity Note: The parties further agree that office and clerical staff include the administrative staff and technical includes the Laboratory Technicians, Quality Assurance Technical Staff, Chemists and Production Scheduling Assistants which are all excluded from the Unit.

19The Board is satisfied that the union has filed membership evidence demonstrating that more than fifty-five per cent of the employees of the employer in the bargaining unit set out above were members of the union on November 26, 1993, the certification application date.

The Petitions Issue

20As already noted, the second issue before the Board in this case concerns the voluntariness of the individual petition documents which were filed in a timely manner with the Board. The Board's Rules of Procedure, Rule 50 provides as follows:

The Board may require that evidence of objection or evidence of re-affirmation be proven to be a voluntary expression of the wishes of the employees. The Board may decide an application without considering the evidence of objection or evidence of re-affirmation of any employee who does not appear at the hearing in person or by a representative and present evidence that includes testimony from his or her personal knowledge as to the circumstances of the written evidence, including how it was created and the way in which each signature on the document was obtained.

21Although the wording in the current Rules of Procedure is somewhat different from the wording of previous incarnations, the intent is the same. The onus lies with the objecting employees to prove, on the balance of probabilities, that the documents filed with the Board represent the true wishes of the employees who signed them. To meet this onus, the petitioners must present the Board with evidence based on first-hand knowledge as to the circumstances under which the petitions came to be created and the way in which each signature on the documents were obtained. In other words, prior to concluding that a petition or petitions are voluntary the Board must be satisfied concerning the origination, preparation and circulation of the documents. In Radio Shack, [1978] OLRB Rep. Nov. 1043 the Board outlined the reasoning behind this requirement:

The Board has long held that there is an onus on a party relying on a statement of desire in opposition to an application for certification to establish that the "sudden change of heart" by those who have signed for the union and shortly thereafter repudiated the union, represents a voluntary change of heart. The Board recognizes the delicate and responsive nature of employer-employee relationship and having regard to it, is circumspect in its assessment of the voluntariness of any statement of desire which bears the signatures of employees who have also signed cards in support of the union. The Board's approach to these matters is described in the leading Pigott Motors case, 63 CLLC 16,264 in the following terms:

"In view of the responsive nature of his relationship with his employer and of his natural desire to want to appear to identify himself with the interests and wishes of his employer, an employee is obviously peculiarly vulnerable to influences, obvious or devious, which may operate or impair or destroy the free exercise of his rights under the Act. It is precisely for this reason and because the Board has discovered in a not inconsiderable number of cases that management has improperly inhibited or interfered with the free exercise by employees of their rights under the Act, that the Board has required evidence of a form and of a nature which will provide some reasonable assurance that a document such as a petition signed by employees purporting to express opposition to the certification of a trade union, truly and accurately reflects the voluntary wishes of the signatories."

Having regard to the sensitive nature of the employer-employee relationship, the Board has consistently held that it must be governed by the overall environment in the work place in deciding whether or not the statement of desire represents a voluntary expression of those who signed it. If the evidence establishes that the hand of management has been actively involved in its origination, preparation or circulation, the Board will dismiss the statement. The Board will also, however, dismiss the statement if the evidence establishes that an employee might reasonably suspect the involvement of management and hence be concerned as to whether or not management might become aware of his decision to sign it or not to sign it. (See Morgan Adhesives of Canada Ltd. and Canadian Paperworkers Union, [1975] OLRB Rep. Nov. 813 and the cases cited therein.)

22It is also helpful to review the Boards comments in Conference Cup Company Limited, [1986] OLRB Rep. Jan. 72, at paragraphs 13 and 14:

The Board must be satisfied, however, that when these union supporters sign the document indicating an apparent change of heart, they were doing so voluntarily, and were not motivated by a perceived threat to their job security or a concern that their failure to sign would be communicated to their employer, or could result in reprisals. It must be clear that the circulation of the petition is free from the actual or perceived influence of management. Often, as in the present case, a statement of opposition will be signed by employees who have indicated their support for the union only a short time before, and a natural question arises as to what prompted the change of heart. Was it prompted by a reappraisal of the value of collective bargaining, or by a reluctance to identify oneself as a union supporter when presented with the opposition document? While an employee can be reasonably assured that his support for the union will not be communicated to his employer, he may have no such assurance concerning his refusal to sign a document opposing the union.

Frequently, as in the present case, such documents are openly circulated on or near the employer's premises, or during working hours, by employees who, in their opposition to the union, will be objectively aligned in interest with their employer and may be perceived to be acting on its behalf. In these circumstances, an employee may sign the document because he fears that refusal to do so will expose his support for the union and will be made known to his employer. Similarly, an employee may be motivated to sign because of conduct which suggests that continued support for the union will result in the loss of his job or other adverse employment consequences. In neither case can one regard his signing the petition as being truly voluntary - although, of course, the mere identity of interest between the employer and the objecting employees is obviously not sufficient in itself to link the petition with management in the minds of reasonable employees, or undermine the reliability of the signatures placed on it. There must be more than that, and each case must be considered on its own merits. But, in the Board's experience there are enough instances where employers have committed unfair labour practices, or have sponsored or supported anti-union petitions that these employee fears cannot be discounted as being patently unreasonable.

23In turning to the specifics of the case before us, we would observe that although much of the evidence placed before the Board was not in dispute, contradictory evidence was put before the Board with regard to some events. For the purposes of deciding this case, it is not helpful or necessary to resolve many of these conflicts. What follows, except as specifically noted, are our factual conclusions.

24The driving force behind the creation and collection of the individual petitions was Mr. Greg McDonald. Mr. McDonald is employed as a trainer and as such he organizes internal and external programs with regard to the company's products, the operation of machinery, testing procedures, standards and safety in both divisions. He works with employees from both divisions. Mr. McDonald heard of the union's organizing drive on Thursday, November 18, 1993, and signed a membership card the same day.

25On Saturday, November 20, 1993, Mr. McDonald went to the Aurora Public Library to do some research on unions and certification applications. It was in the course of this research that Mr. McDonald learned about petitions, what needed to be included in a petition, the possibility of a vote, and specifically that it was the Board's practice to white out the names and any other identifying information from the petitions it received and to then send a copy of this altered document to the parties. According to Mr. McDonald, he obtained this information from a labour law text although he could not remember the author's name. In response to a question concerning whether he obtained information from the Board directly, Mr. McDonald indicated, as he put it, "Yes, they have many pre-recorded lines with answers". Mr. McDonald did not obtain a copy of the Guide to the Act available through the Board. Mr. McDonald also obtained information from his room-mate and, in his words, "various people". When pressed in cross-examination to reveal who these people were, Mr. McDonald was quite evasive and vague. As a result of his research and conversations with others, Mr. McDonald changed his mind concerning the union.

26The following week Mr. McDonald organized opposition to the union's membership application. He organized two meetings of employees of the company, one in each division. None of the witnesses who testified could remember the exact date of these meetings, but it appears that they took place on either November 22, 23 or 24, 1993. Mr. McDonald normally works the day shift from 7:30 a.m. to 4:00 p.m., although due to his duties, Mr. McDonald's hours are somewhat flexible. On the day of the meetings, Mr. McDonald reported to work and around 8:30 a.m. began to approach employees in the Unipac division at their work stations or machines to discuss the union and his opposition to the union. These discussions took place during working hours.

27Mr. Scott Rew, the receiver in the Unipac division, was also circulating amongst the employees in the Unipac division in the morning. It appears that he was collecting signatures on a list which he had on a clipboard. Mr. Rew's evidence was extremely vague with regard to this list. For example, he could not remember if there was a heading on the list although he thought he might have put the heading "We the people are against the Union". Mr. Rew also seemed confused concerning why people were signing the list. He indicated at one point that people were to sign the list "who didn't know about the union and at another point that he was "asking people to sign if they were opposed to the union, if they wanted nothing to do with it". He indicated that he didn't know what he intended to do with the list and at another point that he didn't intend to do anything with the list. In addition to collecting signatures Mr. Rew testified that he was also approaching employees to find the source of a rumour that he had signed a union membership card.

28At approximately 10:15 the same morning, Ms. Lorraine Dalrymple, a bargaining unit employee, was assisting a machine operator, Van T. Duong. Another employee, Mr. Robert Schaefer, was packing for Mr. Duong. Scott Rew came over to speak to Mr. Duong and Mr. Schaefer went to the shipping area, where he spoke to Mr. McDonald. Mr. Duong then joined Mr. McDonald and Mr. Schaefer. While both men were away from the machine, Mr. Bill Townsend, the supervisor on that shift, came over to it. Ms. Dairymple pointed to the shipping area where the three men were talking and indicated that until the packer, Mr. Schaefer, returned the machine couldn't run as there was material that needed to be packaged. Ms. Dairymple requested that Mr. Townsend go get Mr. Schaefer, and in her words Mr. Townsend replied that "he didn't want to know about it and couldn't get involved and walked away".

29A few minutes later Mr. McDonald utilized the internal paging system to invite employees to attend a meeting in a central area of the Unipac plant. Machines were shut down and all of the Unipac bargaining unit employees attended the meeting. It is not necessary to review in detail what took place at the meeting. Mr. McDonald with Mr. Rew at his side, addressed the employees and told them of his concerns with regard to the union and his opposition to the union. Mr. McDonald was quite upset and admitted that he was screaming and yelling at the employees. Mr. McDonald indicated to the employees that if they wanted to change their minds with regard to the union, he knew of a way that they could do this. He indicated that they could speak to him about it.

30Shortly after this meeting in the Unipac division, Mr. McDonald and Mr. Rew walked over to the Insulec division. As there are fewer employees in that division, Mr. McDonald approached each of them individually and asked them to attend a meeting. All of the employees attended the meeting and all of the machines except for two were shut down. The second meeting was held on the premises in a room referred to as the tower room and Mr. McDonald gave his speech again. Once again, he was angry and upset and indicated to the employees that if they wished to change their minds about the union he could assist them. Several employees who had signed union cards spoke to him at the end of the meeting.

31Mr. McDonald indicated that he did not notify anyone in management that he would be conducting these meetings and did not obtain permission from anyone to tell the employees to shut down their equipment during working hours to attend the meetings. While the meetings were going on, no one from management was around to observe the meetings. All of the witnesses agreed that it was unusual to shut down the machinery such as was done in this situation, in the middle of the shift to facilitate attendance at a meeting. In cross-examination Mr. Hogarth admitted that he could not recall an instance where all of the machines were shut down for a meeting. He indicated that normally the machines are shut off individually to enable repairs to be performed or to allow for maintenance or in the event of production difficulties.

32Mr. McDonald prepared sample draft petition documents for employees to review and use as a guideline in the preparation of a petition. With the exception of his own petition, all of the individual petitions were prepared, signed and collected on the company's premises. Three were prepared and signed in the lunchroom, one in the washroom, two in Mr. McDonald's office and two while employees were operating their machines. With the exception of Mr. McDonald's petition and the one petition prepared in the washroom all were prepared and signed during working hours.

33The Board heard evidence from the two individuals who prepared and signed their petition documents in Mr. McDonald's office, from one of the employees who prepared and signed a document while operating his machine and from the employee who prepared and signed a document in the washroom. Mr. McDonald was not actually with the latter three individuals when they prepared the petition documents, nor did he actually witness their signatures. The two individuals who signed in Mr. McDonald's office were approached by him while they were working. This occurred immediately after the lunch break. After the two individuals indicated a desire to execute a petition he told them he would get permission from their supervisor for them to shut off their machines and come to his office. In examination- in-chief, Mr. McDonald indicated that he told the supervisor that he was conducting a brief training seminar on the position held by one of the individual's and needed to speak to the two men in his office. In cross-examination he indicated that he told the supervisor that he needed to talk to the two individuals for fifteen minutes concerning "up and coming" training on a particular topic. In any event, after speaking to the supervisor, he returned to the two employees and asked them to come to his office. They shut down their machines and accompanied him to his office where they prepared and signed petition documents.

34The Board heard conflicting evidence concerning the possible involvement of Mr. Hogarth in the events surrounding the collection of names by Mr. Rew, the collection of statements of desire by Mr. McDonald and a conversation with a particular bargaining unit employee. It is neither necessary to set out this evidence nor to assess the credibility of the various witnesses on these matters to reach a conclusion concerning the voluntariness of the petition documents currently before the Board, therefore we decline to do so.

35Whether members of management actually knew about the origination and circulation of these statements in opposition to the union is not the issue that concerns the Board in this case. What is of concern is whether a reasonable employee, based on the events which occurred on either November 22, 23 or 24, 1993, could have concluded that whether he/she signed a petition would come to the attention of management.

36We have concerns in this case with regard to Mr. McDonald's evidence that he obtained detailed information concerning the Board's practices and procedures from an unidentified labour law text in the Aurora Public Library and from pre-recorded information lines at the Ontario Labour Relations Board. No such information lines exist, therefore it is highly unlikely that Mr. McDonald obtained detailed information in the manner he suggests. In addition, we have reservations about: the evidence of Mr. Scott Rew, especially with regard to the purpose of the document prepared and circulated by him; the fact that Mr. Rew and Mr. McDonald approached employees at their work stations early in the workday and then later, after virtually shutting down operations, held meetings with staff on company time; the unchallenged evidence of Ms. Dalrymple regarding Mr. Townsend's turning of a blind eye to the activities of Mr. McDonald; and the manner in which the statements of desired were prepared and signed. In assessing the evidence we have looked at the internal inconsistencies in some of Mr. McDonald's and Mr. Rew's evidence, the self-serving nature of some of the evidence, the witnesses' ability to recall what happened and what is reasonably probable in all of the circumstances.

37After carefully reviewing the evidence before us we cannot conclude that the statements of desire filed with the Board reflect the voluntary wishes of the employees who signed them.

38The only remaining issue concerns whether Mr. Joe DaSilva was an employee of the company at the relevant time and therefore properly included on the list of employees that make up the bargaining unit. However, the Board has determined that the applicant's right to certification cannot be affected by the Board's ultimate decision as to the inclusion or exclusion of Mr. DaSilva from the list of employees. Therefore, in accordance with the Board's decision in Robin Hood Multifoods Inc., [1985] OLRB Rep. July 1159 it is appropriate for the Board to issue a final certificate for the following bargaining unit:

Bargaining Unit #1