United Food & Commercial Workers International Union Local 175 v. Suedon Foods Ltd., 1995 CanLII 10045

United Food & Commercial Workers International Union Local 175 v. Suedon Foods Ltd.

[1995] OLRB Rep. February 166

0167-94-R; 0442-94-R United Food & Commercial Workers International Union Local 175, Applicant v. Suedon Foods Ltd. c.o.b. as Elizabeth Street I.G.A., Responding Party; William Edmonds, Applicant v. United Food & Commercial Workers International Union, Local 175, Responding Party v. Suedon Foods Ltd. c.o.b. as Elizabeth Street I.G.A., Intervenor

BEFORE: Roman Stoykewych, Vice-Chair, and Board Members R. M. Sloan and H. Peacock.

APPEARANCES: Cynthia Watson, Michael Klug and Sharon Gall on behalf of the United Food & Commercial Workers International Union, Local 175; John M. Wigle and Laurel Downey on behalf of William Edmonds; John Mastoras, Margaret Gavins and Wayne Taylor on behalf of Sue-don Foods Ltd. c.o.b. as Elizabeth Street I.G.A.

DECISION OF ROMAN STOYKEWYCH, VICE-CHAIR, AND BOARD MEMBER, R. M. SLOAN; February 14, 1995

1. Board File No. 0167-94-R is an application pursuant to the provisions of section 7 of the Labour Relations Act for the combination of the full-time and part-time bargaining units of employees of Suedon Foods Ltd. c.o.b. as Elizabeth Street I.G.A. (referred in this decision as "the employer" or "Suedon Foods"). On April 15, 1994, the date that the combination application was filed with the Board, the applicant trade union was party to separate collective agreements for the full-time and the part-time staff at Suedon Foods. The terms of both collective agreements set their expiry dates as July 3, 1994.

2. Board File No. 0442-94-R is an application pursuant to the provisions of section 58 of the Act filed with the Board on May 6, 1994. The applicant William Edmonds, a full-time employee at Suedon Foods, seeks a declaration that the trade union no longer represents the employees of the full-time bargaining unit at Suedon Foods. It was common ground between the parties and we find that, subject to the considerations addressed in this decision, the termination application was filed in a timely manner.

3. The novel issue raised by the timing of the filing of these applications is the question of the appropriate order in which the applications ought to be considered and determined by the Board. This procedural choice entails substantial implications for both applications. Simply put, were the termination application to be considered first and a declaration terminating the union's bargaining rights with respect to the full-time unit to issue, there would, for all practical purposes, cease to be a basis for the trade union's combination application. Conversely, were the combina­tion application to be considered first and an order issue declaring the union to be the bargaining agent for a combined unit of full-time and part-time employees, there would be, at the least, some doubt as to whether the union's bargaining rights could then be defeated by way of an application seeking a termination of its rights only with respect to the "full-time unit". In this respect, it was common ground between the parties that the termination application lacked the requisite numeri­cal support to entitle the applicant to a representation vote were the combined unit to be consid­ered the relevant bargaining unit for purposes of the count.

4. In light of the potentially conflicting claims set out in the two applications, by decision of a differently constituted panel of this Board dated May 24, 1994, the two matters were set for hearing together for the purpose of determining whether either, and if so, which of the applications should be granted procedural priority by the Board. Having heard the parties' submissions with respect to the priority issue at a hearing held on June 6, 1994, the present panel reserved its deci­sion with respect to that matter and proceeded to hear the evidence and submissions relating to the merits of both applications subject, of course, to our determination of the procedural question. It should be noted that although the evidence relating to the termination application was hotly dis­puted over the course of numerous days of hearing, the parties were able to reduce the evidence relating to the combination application to an agreed statement of fact. The following is our deci­sion with respect to all outstanding issues relating to these matters.

5. The Board is empowered to order the combination of bargaining units by virtue of sec­tion 7 of the Act, which provides as follows:

7.-(1) On application by the employer or trade union, the Board may combine two or more bar­gaining units consisting of employees of an employer into a single bargaining unit if the employ­ees in each of the bargaining units are represented by the same trade union.

(2) On an application under subsection (1) that is considered together with an application for certification, the Board may do the following:

1. Combine the bargaining unit to which the certification application relates with one or more existing bargaining units if the certification application is made by the trade union that represents the employees in those existing bargaining units.

2. Combine the bargaining unit to which the certification application relates with other proposed bargaining units if the certification application is made by the trade union applying for certification for the other proposed bargain­ing units.

3. Combine the bargaining unit to which the certification application relates with both existing and proposed bargaining units if the certification applica­tion is made by the trade union that represents the employees in those existing bargaining units and that has applied for certification for the other proposed bargaining units.

(3) The Board may take into account such factors as it considers appropriate and shall consider the extent to which combining the bargaining units,

(a) would facilitate viable and stable collective bargaining;

(b) would reduce fragmentation of bargaining units; or

(c) would cause serious labour relations problems.

(4) In the case of manufacturing operations, the Board shall not combine bargaining units of employees at two or more geographically separate places of operations if the Board considers that a combined bargaining unit is inappropriate because the employer has established that com­bining the units will interfere unduly with,

(a) the employer's ability to continue significantly different methods of opera­tion or production at each of those places; or

(b) the employer's ability to continue to operate those places as viable and independent businesses.

(5) In combining bargaining units, the Board may amend any certificate or any provision of a collective agreement and may make such other orders as it considers appropriate in the circum­stances.

(6) This section does not apply with respect to bargaining units in the construction industry.

6. The authority of the Board to terminate the bargaining rights of trade unions in circum­stances where there is a collective agreement in effect is described in section 58 of the Act:

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.

(2) Any of the employees in the bargaining unit defined in a collective agreement 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,

(a) in the case of a collective agreement for a term of not more than three years, only after the commencement of the last two months of its operation;

(b) in the case of a collective agreement for a term of more than three years, only after the commencement of the thirty-fifth month of its operation and before the commencement of the thirty-seventh month of its operation and during the two-month period immediately preceding the end of each year that the agreement continues to operate thereafter or after the commence­ment of the last two months of its operation, as the case may be;

(c) in the case of a collective agreement referred to in clause (a) or (b) that provides that it will continue to operate for any further term or successive terms if either party fails to give to the other notice of termination or of its desire to bargain with a view to the renewal, with or without modifications, of the agreement or to the making of a new agreement, only during the last two months of each year that it so continues to operate or after the com­mencement of the last two months of its operation, as the case may be.

(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 105(2)(j.l) 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.

(4) If on the taking of the representation vote more than 50 per cent of the ballots cast are cast in opposition to the trade union, the Board shall declare that the trade union that was certified or that was or is a party to the collective agreement, as the case may be, no longer represents the employees in the bargaining unit.

(5) Upon an application under subsection (1) or (2), where the trade union concerned informs the Board that it does not desire to continue to represent the employees in the bargaining unit, the Board may declare that the trade union no longer represents the employees in the bargain­ing unit.

(6) Upon the Board making a declaration under subsection (4) or (5), any collective agreement in operation between the trade union and the employer that is binding upon the employees in the bargaining unit ceases to operate forthwith.

Appropriate Order of Determination of the Applications

7. Both by bringing his application, and in subsequent correspondence to the Board, the applicant in the termination application has raised the objection that the Board's granting of a combination direction as requested by the trade union would significantly affect the rights of the employees in the full-time unit to have the question of their representation determined by the Board. Notwithstanding that the filing of the combination application preceded that of the termi­nation application by some three weeks, Mr. Edmonds requests that the Board defer the consider­ation of the combination application in order to preserve these representation rights.

8. Having carefully considered the matter, we are of the view that both statutory and broader labour relations considerations militate strongly in favour of granting the termination application procedural priority in the present circumstances. Underlying the detailed statutory pro­visions relating to the representation provisions of the Act is the clear legislative policy in favour of preserving the two month "open period" for the purpose of bringing representation applications. While it is not particularly helpful to ascribe, in the abstract, a "more fundamental" quality to ter­mination rights than to other rights under the Act when a conflict between such rights is at issue (see Venture Industries Canada Ltd., [1990] OLRB Rep. May 625), it is nonetheless clear that employees' ability periodically to choose whether or not to be represented by a trade union is an interest that has otherwise been scrupulously safeguarded by the provisions of the Act. In light of this, in order to give employees' representation rights practical effect, the Board has in other con­texts been careful to structure its discretion in such a manner as to prevent their derogation. (In particular, see The National Cash Register Co. of Canada, Ltd., [1967] OLRB Rep. Apr. 90; Ridgewood Industries, [1990] OLRB Rep. Mar. 331.)

9. Furthermore, it is noteworthy that the statute elsewhere makes express provision for procedural priority in circumstances in which applications of a different nature are made concur­rently with representation applications. In subsection 105(3) of the Act, the Board is given express power to, among other things, postpone or altogether refuse consideration of a termination appli­cation where it is filed prior to the Board having determined other pending applications for certifi­cation or termination. To similar effect, by virtue of subsection 41(22) of the Act, the Board has been granted a discretion to decide the order of determination of an otherwise timely termination application filed during the course of a pending application for a direction of settlement of a first contract by arbitration. As well, subsection 41(23) of the Act deems a timely termination applica­tion to be of "no effect" when it is filed after first contract arbitration has been initiated. (See, for example, Northfleld Metal Products, [1990] OLRB Rep. Mar. 302, Venture Industries, supra.)

10. The Act makes no similar provision with respect to termination applications filed during the course of pending combination applications, and in this respect we cannot agree that the prac­tice of the Board in these other areas is sufficiently analogous to be of assistance to the trade union in its endeavour to have the combination application determined first. If anything, the inference is to the contrary in that the absence of such "priority" provisions with respect to combination appli­cations suggests that it was not the Legislature's intention that the Board's determination of termi­nation applications be affected merely by the filing of a combination application affecting one of the units whose representation rights are put into question.

11. While the union's proposal for granting the combination application priority does not fit well within the framework of labour relations values articulated by the Act, we are, on the other hand, satisfied that an otherwise timely termination application filed prior to the commencement of the Board's deliberations with respect to a combination application is both a factor that the Board may properly consider and, for purposes of establishing procedural priority, a factor of par­ticular relevance. In contrast to the detailed provisions of section 58, the Act sets out little in the way of specific procedure for the determination of combination applications. Provided that the necessary statutory criteria are met, an application for combination of bargaining rights can be filed at any time, and the Act does not prescribe a terminal date for the consideration of evidence. (Cf., sections 8(4) and 58(3) of the Act.) Moreover, the powers that are granted to the Board in respect of combination applications are considerably more open-ended than is the case in termina­tion applications. The Act provides only that the Board "may combine" units upon receipt of an application, and although subsection 7(3) sets out the labour relations considerations that the Board is required to entertain in the course of its determinations, it is nonetheless made clear that it "may take into account such factors as it considers appropriate" in the course of doing so.

12. In our view, the filing of an otherwise timely termination application with respect to one of the units sought to be combined prior to the commencement of hearings with respect to the combination application is a factor of considerable importance to the Board for the purposes of determining whether the making of a combination order is appropriate. The effect of proceeding with the hearing and determination of the combination application without reference to the repre­sentation issue would be to significantly abridge, if not to entirely eliminate, the rights of the employees in the full-time unit to seek a declaration terminating the trade union's bargaining rights. In the present circumstances, we see no statutory basis nor compelling labour relations rationale to support such a result.

13. In this respect, we are not satisfied that we would be giving practical effect to the repre­sentation rights of the full-time employees were the termination application required to await the outcome of the combination application. More particularly, we find no merit in the argument of union counsel that the statutory rights of the employees would be equally preserved in these cir­cumstances were the Board to consider the bargaining unit sought to be terminated as the pro­posed combined unit. It is notable that there is a considerable disparity in the size of the two units being sought to be combined, there being approximately seven employees in the full-time unit whereas the unit of part-timers includes approximately 28 employees. On the basis of numbers alone, we do not take this proposal to contain within it an equivalent right. Whatever else might be the case, on May 6, 1994, the date of filing of the termination application, the statutory prerequi­sites for the Board's processing of the termination application with respect to the full-time unit at Suedon Foods were present. In the absence of any statutory direction or compelling labour rela­tions rationale to the contrary, we are not satisfied that the mere filing of a combination applica­tion should cause the Board either to defer its inquiry into the voluntariness of the statement of desire filed by Mr. Edmonds, or to read the provisions of section 58 as subject to the trade union's application.

14. Moreover, we cannot agree that the "first in first out" principle operative in the context of concurrent certification applications (see The Carleton Board of Education, [1993] OLRB Rep. Feb. 102), and urged upon us by the trade union, adequately addresses the statutory interests at play in these circumstances. In any event, we have some concerns as to whether the equities of the foot race inherent in "F.I.F.O." are present where only one of two competing applicants is required to file its application within strict time limits. While we are conscious that the question of whether a combination application is merely pending or actually determined is a matter potentially subject both to the vicissitudes of the litigation process and to the manipulation of interested par­ties, we are satisfied that in the present circumstances, that concern is unfounded. The period of approximately three weeks between the filing of the two applications is not of the sort in which the trade union could reasonably have expected to have its combination application determined and, in any event, we are satisfied that any delays encountered thereafter affecting the processing of the application by the Board were entirely bona fide.

15. Accordingly, having carefully considered the evidence and the submissions of the par­ties, the statutory provisions relating to the respective applications, and to the labour relations pol­icies inhering in the statutory framework, we are satisfied that it would be appropriate for the Board to consider and to determine the application seeking a declaration of the trade union's bar­gaining rights in the full-time unit prior to entertaining the trade union's application for the combi­nation of the part-time and full-time units. We will therefore defer our consideration of the combi­nation application until such time as we make a final determination with respect to the termination application.

Termination Application

16. In his application, the applicant submitted a petition seeking the termination of the trade union's bargaining rights bearing the names and signatures of six persons purporting to be employees of the full-time bargaining unit at Suedon Foods. Each name and signature corres­ponded to a name and signature on the list of employees filed by the intervenor employer. Accord­ing to both the applicant and the intervenor employer, there were eight employees in the full-time bargaining unit on the date of the application, May 6, 1994.

17. The trade union took the position that there were only seven employees in the bargain­ing unit, asserting that Rebecca Taylor should not be considered an employee for the purposes of the count because she was not present at work on the date of application and did not return to work thereafter. Upon carefully considering the evidence adduced at the hearing, we are satisfied that although Ms. Taylor was indeed absent from work on the date of the application, she attended at work and performed work within the bargaining unit in her grocery clerk position both in the last week of April, 1994 and on May 9 and 10, 1994.

18. Furthermore, we do not find that there is sufficient evidence to support the trade union's allegation that Rebecca Taylor was hired for the purpose of "stacking" the count in favour of the termination application. We note in this respect that the grocery clerk position was awarded to Ms. Taylor on April 25, 1994 as a result of a posting initiated almost two months earlier, and that she was the sole applicant for that position. Although we have some concerns with respect to her apparent inability to perform certain aspects of the job, her hiring is not inconsistent with the provisions of the collective agreement (and, it should be noted, no grievance was filed by the trade union alleging a breach), with the hiring practises of the present employer, nor with the conduct of "family" businesses in general. On balance, we are satisfied that the hiring was not undertaken in bad faith. Accordingly, having regard to the Board's well-known "30/30 rule" that the parties agree is applicable in the present circumstances, we find that Rebecca Taylor is properly included in the list of employees and that, therefore, there are eight employees in the full-time bargaining unit for the purposes of this application.

19. Having so found, and having earlier found that the application is timely with respect to the provisions of section 58, it would appear that the applicant has demonstrated the requisite sup­port for the application subject to the requirement of establishing that the petition represents the voluntary wishes of the employees concerned. In order to ascertain the voluntariness of that evi­dence, which was challenged by the trade union, the Board heard testimony from numerous wit­nesses as to the circumstances concerning the origination of the petition, the manner in which each of the signatures on it was obtained, as well as evidence relating to the conduct of the employer.

20. The employer Suedon Foods is an "I.G.A." supermarket in Burlington, Ontario owned and operated by Wayne and Sue Taylor. The Taylors have operated the supermarket at that loca­tion only since the summer of 1992, at which time they purchased the business from a competing supermarket chain. By virtue of that transaction, it appears that Suedon Foods became a "succes­sor employer" within the meaning of section 64 of the Act, with the result that the collective bar­gaining obligations of the previous employer with respect to the employees working in the store transferred to Suedon Foods. The trade union has held the bargaining rights relating to these employees for over twenty years, representing both the full-time and part-time employees in sepa­rate bargaining units with separate collective agreements. In addition to the eight full-time employ­ees, there are approximately 27 part-time employees engaged at Suedon Foods.

21. The applicant William Edmonds is a full-time produce clerk at Suedon Foods. He was hired by Wayne Taylor in the summer of 1992 upon his taking over the operation of the supermar­ket. The evidence revealed that the idea of terminating the trade union's bargaining rights origi­nated with Mr. Edmonds and Laurel Downey, the full-time bakery shop operator, although it appears that, throughout the process, Edmonds was the driving force. According to both Mr. Edmonds and Ms. Downey, their dissatisfaction with the trade union originated in its conduct of the previous round of negotiations with the employer, and was exacerbated by the circumstances of the strike in early 1994 at the Miracle Food Mart chain, to which the present trade union was a party. Underlying these concerns was what both Mr. Edmonds and Ms. Downey perceived to be the lack of attention accorded by the trade union to the interests of the full-time employees relative to the part-time employees.

22. Although they intermittently discussed the possibility of terminating the trade union's bargaining rights since late 1992, the first concrete steps in that respect were taken by them in the early spring of 1994, when they contacted the Board in order to obtain the appropriate materials and related information concerning the termination of bargaining rights. Upon obtaining these materials, they testified, it became clear to them that they required legal assistance and, ultimately, retained their present counsel, Mr. Wigle. Mr. Wigle advised them of the steps they were required to take to attain their purposes and also drafted the wording of the petition ultimately submitted to the Board.

23. Mr. Edmonds and Ms. Downey were provided a copy of the petition in early April, 1994. Due to an apparent misapprehension on their part as to the precise duration and effect of the statutory open period, Mr. Edmonds and Ms. Downey were under the impression that it was incumbent upon them to initiate the signing process immediately, and commenced making the req­uisite arrangements upon learning that the petition had been drafted. It was their intention to hold a meeting at a restaurant near the workplace with the members of the full-time complement in order to advise their co-workers of their intention to terminate the trade union's bargaining rights and to solicit their support. Both Ms. Downey and Mr. Edmonds were greatly impressed by the advice of their counsel that they were to ensure that the process in which the signatures for the petition were obtained not give the appearance of employer support or knowledge, and took a number of steps to prevent that appearance from arising. Thus, on April 5, 1994, employees were approached individually by either Mr. Edmonds or Ms. Downey and asked to attend a meeting on April 8 whose subject-matter, the employees were told, would be disclosed only at the meeting. According to Mr. Edmonds, this was done in order to ensure that, as far as was possible, discus­sions of the termination process would occur during the employees' lunch breaks and other off-hours.

24. Out of this latter requirement and the need to accommodate the schedules of the employees arose the somewhat awkward procedure of holding two separate, but consecutive meet­ings on April 8, one at 11:30 am, the other commencing at 12:00. The 11:30 am meeting was attended by Mr. Edmonds, Ms. Downey, and two other employees. One of these employees (re­ferred to in the hearing, in the effort to preserve the confidentiality of employee wishes regarding representation, as "P3") had his usual lunch break from 11:30 to noon , while the other ("P4"), had his day off that day. At the outset of the meeting, the two employees were advised by Ms. Downey, who had prepared a written statement for that purpose, that the objective of the meeting was to seek support for the termination of the trade union's bargaining rights. Ms. Downey also stated that the choice was to be the employees' alone, and that they should not feel pressured to give or refrain from giving their support. A wide-ranging discussion of the pros and cons of union representation ensued, during which time such matters as the retention of benefits, salaries, and other perquisites were discussed in response to questions from P4. Mr. Edmonds and Ms. Downey then signed the petition. According to both Ms. Downey and Mr. Edmonds, P3, whose anti-union sentiments were long-standing, wished to sign immediately upon learning of the petition. P4, by contrast, agreed to sign the petition only after the discussion had satisfied his concerns. Before the meeting concluded, the employees were once again told that the choice was to be theirs alone and that, to that end, they were to refrain from discussing the matter with anyone from management.

25. At approximately 12:00, two other employees, who commenced their lunch break at that time, attended at the restaurant, while P3 returned to his work. P4, being on his day off, remained in the restaurant. Ms. Downey and Mr. Edmonds in effect repeated the procedure from the first meeting, with Ms. Downey once again reading her prepared statement. The second group of employees was far more favourably disposed to the idea of continued union representation than the first, and a rather tense silence following the introductory statements was punctuated only by questions from P4. Although it was asserted by the union at the hearing that the Board should infer from P4's continued questioning that P4 had not yet signed the petition and that, therefore, the petitioners' account of the circulation of the petition was lacking in a fundamental respect, we are not of the view that the evidence supports that proposition. On balance we are satisfied that, in fact, P4 signed the petition document during the first meeting in the manner described by Mr. Edmonds and Ms. Downey.

26. The two employees at the second meeting refused to sign the petition, and the meeting concluded after only a brief discussion. Only at this time did Mr. Edmonds and Ms. Downey seek the signature of the remaining bargaining unit member, Adam Taylor, the son of Wayne and Sue Taylor. (It should be noted that, at this time, Rebecca Taylor had not yet been hired into the full-time unit and remained a part-time employee of Suedon Foods.) According to Mr. Edmonds, Adam Taylor had not been advised of the efforts to decertify the trade union until that time, nor was he asked to attend the meeting at the restaurant with the other full-time employees because of the "pressure" that a family-member's participation in the petition process might engender. He approached Adam Taylor at work that same day, and, once again declining to discuss the topic of termination on company premises, asked him to meet at a parking lot of an adjacent business dur­

ing the break. In the parking lot, Ms. Downey read her prepared statement, Mr. Edmonds explained to him the nature of his efforts and requested that he refrain from discussing the matter with his father and mother. Taylor then signed the petition. His name appears on the bottom of the petition and, Mr. Edmonds testified, he made no effort to obscure the identity of the other employees who had already signed.

27. According to Mr. Edmonds, it was only after the signatures had been collected in the manner described that he discovered that the "open period" for the filing of the termination appli­cation commenced on May 3, and not April 3. From this he concluded, incorrectly, that it was nec­essary for him to recirculate the petition and to obtain signatures at a time closer to the open period. He obtained another copy of the petition from Mr. Wigle for that purpose, and on April 28, 1994 he again approached employees for the purpose of obtaining their support for the termi­nation application. The process of circulation of this second petition involved considerably less for­mality than the first, and, rather than reading a prepared "purpose statement", Mr. Edmonds sim­ply asked the employees he approached to resign the petition. Each of the employees who had signed the earlier petition readily agreed to sign the second one. Nevertheless, in each case, he refrained from discussing the termination application at work, and asked each of the employees to sign the petition off company premises, once again in the parking lot of an adjacent business. Mr. Edmonds testified that he did not bother approaching the two employees that had earlier refused to sign the petition because they had made their views known in rather categorical terms.

28. In the case of Rebecca Taylor, who was by this time working in a full-time capacity, Mr. Edmonds took considerable care to outline the nature of the application, and also advised her not to speak to her parents about the matter. Mr. Edmonds testified, and we accept, that at no time did he bring the petition onto company property nor did he or Ms. Downey discuss the matter of termination with members of management. However, as in the case of the first petition, no efforts were made by Mr. Edmonds to obscure the signatures of other employees before the petition was shown to Adam Taylor and, in the case of the second petition, Rebecca Taylor.

29. Upon obtaining these signatures, Mr. Edmonds and Ms. Downey immediately for­warded the second petition document to Mr. Wigle, who then promptly filed it with the Board. The first petition document was not submitted as part of the application.

30. Finally, it is important to note that the relationships between the members in the Taylor family were not only exceptionally close, but were also known to be such by the employees in the full-time bargaining unit. Both of the Taylor children, aged 20 and 21, still lived at home, and the family vacationed as a group. The evidence was that Rebecca continued to refer to her parents as "Mommy" and "Daddy", in front of her co-workers. Mr. Taylor took considerable pride in the closeness of the family relationship at work both because of its undeniable intrinsic value, and because it was consistent with the "family business" image that he sought to affect. He conceded that, generally, there were no secrets between the members of his family, particularly with respect to work matters.

31. There was little dispute as to the applicable general principles to be utilized by the Board in the course of determining the present application. In applications for terminating bar­gaining rights, there is an onus on the applicant to establish on a balance of probabilities that a petition filed in favour of terminating the trade union's bargaining rights represents a "voluntary" expression of the employees' wishes. The function of the Board in this respect is to protect the rights of employees to make their own decision with respect to the question of union representa­tion, as distinct from the decision of the employer. In this respect, the Board is sensitive to the fact that in the employment relationship, the employer has a preponderance of power to influence the destiny of the employees working for it and that the issue of voluntariness of employee desire must be understood in that context. Although Piggott Motors (1961) Limited, 62 CLLC par. 16,264, cited by counsel for the trade union, was written with respect to a petition filed in an application for certification, the reasoning in it is equally applicable to the circumstances surrounding an appli­cation for termination:

In view of the responsive nature of his relationship with the employer, and his natural desire to appear to identify with the interests and wishes of his employer, an employee is obviously vul­nerable to influence, obvious or devious, which may operate to impair or destroy the 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 in a form or a nature which will provide some reasonable assurance that a document such as a petition, signed by employees purporting to express opposition to a trade union truly and accurately reflects the voluntary wishes of the signatories.

32. Conscious of these factors, the Board will carefully examine the overall circumstances of the origination, preparation, and circulation of the petition to satisfy itself that the choices indi­cated in the petition are truly those of the signatories. Of particular concern in this respect is the perception by employees of employer involvement in the termination application since it is the appearance, which may or may not coincide with reality, that will influence the wishes of the employees. For this reason, the Board will not normally accept petitions as voluntary when the process of their origination and circulation is such that would cause employees to believe that man­agement personnel may be involved even if, in fact, there was no such involvement established. Similarly, petitions may be rejected as involuntary in circumstances in which it would appear to an employee that the fact of his or her signing or not signing would become a matter known to man­agement, even if, in fact, management had no knowledge of the petition.

33. The trade union attacked the voluntariness of the petition in the present circumstances on a number of grounds, mostly related to what it characterized as the employer's involvement in the origination and the circulation of the petition. Although we have considered these arguments and the evidence led in support of them, it is unnecessary to detail them here. It is sufficient to note that the evidence simply does not support the general allegation that the employer was, in fact, "behind" the present application, nor that, as noted above, it attempted to "stack" the bar­gaining unit with family members. Similarly, we are satisfied that neither Mr. Edmonds nor Ms. Downey were in positions of sufficient managerial authority in the workplace nor otherwise so manifestly "close" to the Taylors such as to give rise to the reasonable apprehension by members of the full-time unit that the fact of their signing or not signing would become known to members of management.

34. Of considerably more concern to the Board with respect to the voluntariness of the peti­tion are the issues arising out of the presence in the bargaining unit of what the trade union charac­terized as the two "dependent" Taylor children and their participation in the petition process. The concerns in this respect raised by the trade union are twofold. First, given the highly dependent and close nature of the relationship between the children and their parents described above, there is reason to doubt that the Taylor children formulated the kind of voluntary expression of desire the Board normally requires of "employee wishes". In this respect, the parties carefully reviewed the Board's practise with respect to the voluntariness of statements of desire made by "dependent family members", including Otto's Deli, [1980] OLRB Rep. Nov. 1673, King George Hotel, [1988] OLRB Rep. Dec. 1278, and Alan Reitzel, [1990] OLRB Rep. Aug. 881. Second, in light of the fact that the close relationships in the Taylor family were obvious to members of the bargaining unit, the voluntariness of the signatures of the non-family member employees was seriously jeopardized where, as in the present case, no precautions were taken to ensure that the Taylor children would not see who had signed the petition and, more particularly, where the employees were given no assurance that such would be the case. In the absence of such measures, it was submitted, the employees other than the Taylor children would reasonably believe that the fact of their signing the petition would become known to the employer.

35. Turning first to the second argument advanced by the trade union, there is no question that the procedure chosen by the applicant and Ms. Downey to collect signatures for the petition was less than optimal, and that the Board would be more confident of the voluntariness of the sig­natures on the petition were they to be obtained in a manner in which the Taylor children were not to be permitted to see the signatures of the other employees. Under the circumstances, we feel, this would not be an unreasonable burden to place upon an applicant and could be accomplished through the simple expedient of a separate petition document for the family members. Most signi­ficantly, however, the other employees could have been advised that such a procedure would be followed. In the absence of any such assurance, the possibility that employees signed the petition at least in part out of fear that their employers would learn of their decision regarding union repre­sentation is not far-fetched. The question is, however, whether such a possibility, in the present case, in fact affected the voluntariness of the signatures.

36. In making such an assessment, it is necessary to do so in the context of the overall cir­cumstances in which the petition was signed. While, as noted, the procedure chosen by the appli­cant may leave open the possibility of management knowledge, in other respects the method of collection of the signatures can be seen to be sending quite a different message. Somewhat elabo­rate efforts were taken by the applicant and Ms. Downey to ensure that any communications regarding the petition were to take place off company premises and not during working hours. Fur­ther, the employees who signed the petition were expressly told that the decision whether or not to sign was theirs alone and, more significantly, were told that they were not to disclose the existence of their decertification efforts to members of management. In our view, the significance of these measures would not have been lost upon the employees and, although falling short of an assurance that members of management would not be privy to their decisions, nonetheless provided them some indication that the confidentiality of their choices was an interest of some value.

37. Further, the Board heard considerable evidence with respect to the process of decision-making undertaken by each of the non-family member employees who signed the petition. In each case, it appeared that the decision to sign the petition was not affected by the possibility that the employer may have become aware of the contents of the petition. The instances of Ms. Downey and Mr. Edmonds are relatively simple in this respect: it is abundantly clear that their decision to seek the termination of the trade union's bargaining rights was made long before the petition pro­cess commenced, and we are therefore confident that their decision to sign the petition was not substantially affected by the possibility that the Taylors might become privy to the document. To similar effect, in light of the evidence of employee P3's long-standing hostility toward the union, and his eagerness to sign the petition immediately upon it being presented to him, we are satisfied that the possibility that the Taylors may become aware of his choice was not an operative factor in his decision to sign.

38. The situation with respect to employee P4 is somewhat more difficult, there being no evidence with respect to his intentions prior to the April 8, 1994 meeting at which the petition was produced. There was, however, considerable evidence from Mr. Edmonds and Ms. Downey with respect to the nature of the considerations he entertained during the course of that meeting. Hav­ing regard to those considerations, we are satisfied that employee P4 engaged in a reasoned and independent assessment of the consequences of his choice, and, on balance, the evidence does not suggest that an apprehension that the employer may become aware of his choice through the con­duit of the Taylor children was a factor in his decision.

39. Having regard to all of the circumstances, then, we are satisfied that the collection of signatures in a single petition document is not fatal to the voluntariness of the signatures of the non-family member employees. While the procedure chosen by the applicant leaves the possibility of employer knowledge open, in the present case, the evidence supports the proposition that this possibility did not have an operative effect upon the decision of the employees to sign the petition. Thus, although our decision in this respect is "close to the line", we are nonetheless satisfied on the basis of the evidence presented that the four "non-family" employees decided to sign the peti­tion in a voluntary manner.

40. In light of this finding, it is unnecessary for us to determine whether the signatures of Adam and Rebecca Taylor were voluntarily obtained since a finding adverse to the applicant in this regard could not affect his having established that more than forty-five per cent of the employ­ees in the bargaining unit voluntarily signified that they no longer wished to be represented by the trade union.

41. Accordingly, the matter will be put to a representation vote, and all employees can express their wishes by secret ballot. Voters will be asked to indicate whether or not they wish to continue to be represented by the responding party trade union. All employees in the bargaining unit on the date of this decision who do not voluntarily terminate their employment or who are not discharged for cause between the date of this decision and the date the vote is taken shall be eligi­ble to vote.

42. The matter is referred to the Registrar.

DECISION OF BOARD MEMBER H. PEACOCK; February 14, 1995

1. I dissent from the decision of the majority in regard to the issue of voluntariness.

2. Given the circumstances of the presence of the owner's son and daughter as employees in the bargaining unit, and their opportunity to observe the names of those who had signed the sec­ond petition as described in paragraphs 26, 27, and 28, I find that employees considering whether to support this application to terminate bargaining rights would have had a reasonable apprehen­sion that their decision would become known to management.

3. Accordingly, the petition lacks the necessary element of voluntariness for the applica­tion to succeed and I would dismiss it.