Ontario Labour Relations Board
[1995] OLRB Rep. January 1
2424-94-R United Steelworkers of America, Applicant, v. A-1 Rent-A-Tool Ontario Ltd., Responding Party, v. Group of Employees, Objectors
BEFORE: Jerry Kovacs, Vice-Chair, and Board Members W. H. Wightman and K. Davies.
APPEARANCES: Mark Rowlinson, Mike Armstrong and Randy Ross for the applicant; Mike Failes, S. Shinoff and J. Elias for the responding party; M. Croteau for the objectors.
DECISION OF THE BOARD; January 25, 1995
1This is an application for certification. The name of the responding party is hereby amended to read: "A-1 Rent-A-Tool Ontario Ltd.".
2The Board finds that the applicant is a trade union within the meaning of section 1(1) of the Labour Relations Act.
3Having regard to the agreement of the parties, the Board finds that:
all employees of A-i Rent-A-Tool Ontario Ltd. in the Municipality of Metropolitan Toronto, save and except managers, persons above the rank of manager, persons regularly employed for not more than twenty-four (24) hours per week and students employed during the school vacation period,
constitute a unit of employees appropriate for collective bargaining.
4Having regard to the list of employees filed by the employer and the agreement of the parties, the Board finds that there were 56 employees in the unit on the certification application date. In support of its application, the applicant requested that the Board transfer membership evidence ("cards") from Board File No. 2102-94-R in respect of 31 employees. That file was a previous certification application by the same applicant as in this matter, filed September 14, 1994 and withdrawn with leave of the Board by decision dated October 6,1994. The instant application was filed on October 6, 1994 and included further membership evidence in respect of 3 additional employees. The 34 membership cards bear the names of employees in the bargaining unit.
5By undated facsimile correspondence received by the Board on October 13, 1994, Michael Crotean (representing the group of objecting employees) requested that the Board transfer "statements of desire" or "petitions" from Board File No. 2102-94-R to the instant file. The petitions, in respect of 33 employees, indicate opposition to the certification of the applicant. Those petitions had been filed subsequent to the certification application date in Board File No. 2102-94-R. In accordance with the provisions of subsection 8(4) of the Act, the petitions were untimely and could not be considered in the context of Board File No. 2102-94-R. Prior to the commencement of the hearing in this matter, two other employees also requested that petitions filed in the previous certification application be transferred to the instant file.
6Although originally forming part of a separate Board file, the petition evidence in respect of these 35 employees was filed before the certification application date in the current matter. In accordance with the provisions of sections 8(4) and 8(7)(b)-(c), the Board found that it should consider this evidence.
7A number of the employees who signed petitions had previously signed membership cards. If a sufficient number of these relevant petitions were found to be voluntary, they would raise sufficient doubt concerning membership evidence to lead the Board to exercise its discretion to order a representation vote to determine the degree of continued support for the applicant.
8Before proceeding in its inquiry into the voluntariness of the petitions, the Board entertained preliminary motions by the employer. Relying on the provisions of paragraph 105(3)(c) of the Act, the employer requested that the Board exercise its discretion to refuse to entertain the instant application. In counsel's submission the instant application was filed before the Board issued a final decision in the first certification application. The parties agreed on relevant facts:
(i) the applicant made written request to withdraw the prior certification application on October 6,1994;
(ii) the Board issued a decision dated October 6, 1994 granting leave to withdraw the prior application, and the decision was mailed to the parties by the Board by letter dated October 13, 1994.
(iii) the certification application date of the instant file is October 6, 1994.
The employer characterized the applicant's filings as an abuse of process. Counsel argued that the result of these overlapping applications was to prevent any window' of time within which employees might file a timely petition.
9At the hearing the Board ruled that it would not exercise its discretion to refuse to entertain the subsequent application. We do not find that subsection 105(3) applies to this sequence of filings. The provision applies where "a final decision... has not been issued by the Board [in respect of a prior application] at the time a subsequent application" is made. For the purposes of determining the timing of the final decision, the Act focuses our attention on the issuance of decision rather than on its release. In the case before us, the Board issued a decision dated October 6, 1994 that dismissed the first certification application. On the same date - and thus at the same "time" - a subsequent certification application was made. Neither the Act nor the Board's Rules of Procedure suggest that we ought to attempt to distinguish hours within the same date. Indeed, the Board's Rules and the Act have always suggested otherwise (e.g., current Rule 8 governing deemed date of filing for documents received by registered mail; recently repealed subsection 115(2) governing the same; subsection 115(3) governing deemed time of release of decisions, etc.). Accordingly, a final decision on the first application had been issued at the time the subsequent application was made, rendering subsection 105(3) inapplicable.
10Even if subsection 105(3) were applicable, we would not exercise our discretion to dismiss this subsequent application. As counsel for the employer noted, the Board's practice in applying this provision is set out in Mor-Alice Construction Limited [1977] OLRB Rep. Oct. 668 at paragraphs 6-8. In considering exercise of the discretion to dismiss a subsequent application, the Board looks for substantial prejudice to the employer or the employees. In the instant case, the employer suggested that the employees would be deprived of the opportunity to make representations of opposition to the trade union, since the simultaneous withdrawal of the first application and filing of the second would block timely petitions. This argument is undermined by the existence of the timely petitions presently before the Board. As the applicant noted, the filing of the subsequent application opened the window' to these petitions and the employees have opportunity to make representations of opposition to the trade union. Therefore, we find no substantial prejudice to the employees or the employer.
11In a separate preliminary motion, the employer requested that the Board disclose whether any of the 3 additional membership cards filed with the current application were signed by persons who had previously signed a petition. In the employer's submission, those circumstances would change the nature of the membership card evidence. Counsel proposed that the cards would represent a "flip-flop" of employee wishes and should be given no more weight than a petition. Counsel suggested that these cards would be akin to reaffirmation evidence and that the applicant union bore an evidentiary onus to establish the voluntariness of the signatures on those cards.
12The Board ruled orally that it would not disclose whether there were subsequent membership cards that overlapped with prior petitions. Although petitions may reflect on membership evidence, the reverse is not true. Membership cards do not serve the mere purpose of casting doubt on petitions. Rather, they stand as independent evidence of employee wishes and are accorded a higher status under the Act. As the Board observed in Custom Foam Specialties Limited [1986] OLRB Rep. Dec. 1680 at parag. 8:
8... .The Labour Relations Act provides that the certification of trade unions in this Province is based primarily upon an assessment of the trade union's membership support as evidenced by membership records filed in support of an application. The Board does not inquire into opinions about the virtues of union membership except as evidenced by that documentary membership evidence and any timely petitions filed with respect to an application. In Ontario, as in most Canadian jurisdictions, the representation vote exists as a residual mechanism for ascertaining the wishes of bargaining unit employees in cases where either the applicant union does not have the support of more than fifty-five percent of the bargaining unit employees which is necessary for outright certification under section 7(2) of the Act (but does have the support of not less than forty-five percent of them) and where the circumstances are such that the Board sees fit to require such a vote to be held notwithstanding that there is documentary evidence showing membership support in excess of fifty-five percent. The Board's discretion in that respect must be exercised in the manner that is consistent with the Legislative primacy of the membership evidence as the means by which employee wishes with respect to certification are determined.
13The primacy of membership evidence is unaffected by recent amendments to the Act through Bill 40. Indeed, the current structure of the Act's certification rules - in particular, the requirement that petition evidence be filed before the certification application date - means that it will always be possible for there to be membership cards that post-date a timely petition. The employer's proposal of a shift in evidentiary burden in such circumstances contradicts the continued "Legislative primacy of the membership evidence".
14The Board proceeded to hear the evidence offered by the objecting employees in support of the 34 petitions. In measuring the evidence the Board must determine whether the objecting employees have met the onus of establishing that the petition is voluntary. The details of that test were summarized by the Board in Custom Foam Specialties Limited, supra, at para. 11:
11.... The onus of establishing that a petition is voluntary is on the employees objecting to certification. To do so, they must 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. The cases are legion in which a failure to appear and give satisfactory firsthand evidence regarding the origination and circulation of a petition has resulted in its rejection. Each and every signature on a petition must be identified and the circumstances under which it was obtained must be recounted by a person having personal knowledge thereof. Where such evidence is not presented, the signature may, and likely will, be discounted. 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.
15Beyond testing the evidence for any actual employer support, the Board also considers the overall environment of the workplace when assessing the voluntariness of the petition. Even in the absence of any actual employer support, the Board must decide whether reasonable employees would perceive management involvement. Moreover, the Board must consider whether reasonable employees would perceive that management might learn who did or did not sign the petition. As the Board observed in Baltimore Aircoil Interamerican Corporation, [1982] OLRB Rep. Oct. 1387 at para. 41:
…..actions by the petitioners without support of the employer can equally destroy the reliability of a statement of desire. Circulating a document in the presence of foremen or representations clearly indicating support by the employer can produce the same anxiety in the minds of employees whose signatures are solicited and thus prompt the Board to respond in a similar fashion.
The Board stated the test in another way in Benoma Metal Products Limited, [1990] OLRB Rep. Sept. 917 at para. 6:
…..But even if management is not involved, the Board will still give the petition no weight where the evidence demonstrates that the manner in which the document was prepared or circulated would lead reasonable employees to conclude that management was involved in the petition or might become aware of who did or did not sign the document.
16In addition, the objecting employees must provide detailed evidence of the custody of the petition. For example, the Board must be satisfied that "the petition was not being so loosely displayed that employees would fear its contents were likely to come to the attention of management, and feel themselves compelled to sign as a result" (see Data Security Limited, [1985] OLRB Rep. Aug. 1183 at para. 15).
17Before hearing the evidence in support of the petitions, the Board provided information concerning the condition of the petition documents. This information was provided in a manner that maintained the secrecy of the identity of persons who signed the documents. In accordance with the Board's practice, names or signatures were described by "P numbers". We advised that the Board had identified what appeared to be 37 "P numbers", and that there were 23 documents. We described the general physical condition of the documents, including details of which documents appeared to be original hand-written documents and which appeared to be photocopied.
18The petition documents fell into two categories. First, there were nineteen "individual petitions", i.e., each was signed by a single person. Second, there were two "list petitions", i.e., each with a number of names and/or signatures. We explained to the parties that we were uncertain of the exact number of signatories on the list petitions.
19The first list petition included four signatures, plus one further name that had been crossed out with the hand-written comment "signed on other". As his oral evidence later disclosed, the crossed-out name was that of Scott Oldham who, indeed, had signed a number of other documents.
20The second list petition was especially confusing. Although the Board clerks had marked the document to include P22 - P35, we indicated that we believed there was duplication in these "P numbers". The document showed two columns titled "Sign" and "Print". Most signatories had both printed and signed their names. Most "P numbers" appeared by names under the "Sign" column. However, the Board clerks had assigned numbers P34 and P35 to names appearing under the "Print" column.
21We advised that our review of the Board file - including specimen signatures provided by the employer - suggested that P28 (under the "Sign" column) and P35 (under the "Print" column) were duplicates, i.e., they appeared to indicate the same person. We also clarified that the representative of the objecting employees, Mr. Croteau, took a different position in respect of duplication of P28. His position was that P34 (not P35) was the signature version of P28, i.e., that P28 and P34 were the same person.
22The Board advised of other apparent duplication in the P numbers. As eventually clarified by Scott Oldham's testimony, he appeared twice in the "P numbers": P36 was his individual petition and his signature also appeared on the second list petition as P32. Similarly, Robert Kelloway testified that P37 was his individual petition, and that P22 (on the second list petition) was his signature.
23After giving the parties opportunity to consider this information, we invited Mr. Crotean to lead evidence in support of the petitions. In general, the evidence disclosed that Mr. Croteau was the originator of the petitions bearing the names of P1-P35. Mr. Oldham and Mr. Kelloway each prepared and delivered individual petitions marked by the Board as P36 and P37. Mr. Kelloway used one of the petition documents prepared by Mr. Croteau (intended for a single signature) to collect names on the second list petition, after which he returned the document to Mr. Croteau. With the exception of P36 and P37, Mr. Croteau was responsible for delivery of the petitions to the Board.
24Mr. Croteau decided to prepare a petition after reading the "green sheet" (notice of certification application) posted in the shop on September 19, 1994. He was also influenced by "listening to the guys talk" about filing a petition. Although he understood that the petition would not be timely and could not be considered by the Board in the context of the original certification application, he decided to proceed. He believed that the union had insufficient support in that application and knew that his petition might be relevant in a subsequent application. By listening to 'shop talk', he "got an idea of who was not signing" and was able to conclude that the union lacked majority support. Similar evidence of prevalent 'shop-talk' emerged in the testimony of Scott Oldham, who admitted that there had been much talk about the union during work hours. For instance, Mr. Oldham's manager was able to learn of Mr. Oldham's opposition to the union simply by overhearing employees' discussions.
25After hand-writing the petition, Mr. Croteau made an undetermined number of copies at a copy shop. He eventually made more copies - twenty, he guessed. He was unsure of how many copies he distributed and of how many extra copies he had at the end of his efforts.
26On September 20, he obtained signatures in the morning just before working hours, and then during the lunch break in the area around where the lunch truck parked. At the end of the work day he distributed copies of the petition to employees as they exited through the company gate. The evidence of all witnesses indicated that, as a general rule, some of the managers might appear at the lunch truck area during lunch break. Further, some managers might leave by the same gate where Mr. Crotean (and, later, Mr. Kelloway) distributed petitions and gathered signatures. The evidence also indicated that managers move around the shop floor throughout the workday. Nonetheless, neither Mr. Croteau nor Mr. Kelloway saw any manager during the time of any of the signatures.
27No one refused to take a copy of the petition. Some people signed immediately but most took the documents away. In fact, Mr. Croteau asked employees to take the document home and to consider whether they wished to sign. He told employees that their choice was "strictly confidential between myself and them, or of course, between them and anyone they could trust; if they wanted someone to know that was their business if they did it on their own."
28A number of employees who had taken copies away with them returned signed copies to Mr. Croteau at the shop on the morning of September 21. In the case of P3, the employee took a petition away from Mr. Croteau in the shop and returned the document later. There was no evidence of the circumstances in which these documents were signed, nor of what these employees did with the petitions while in their custody.
29Mr. Croteau gave inconsistent testimony about what happened to the documents that were not signed. At one point he admitted that he could not know the number of those documents since he was unaware of how many documents he had distributed and had no record of recipients. As he put it, "I gave them to people; I don't know what they did with them". At another point, he claimed that P19, P20 and four other unidentified persons were the only recipients who had not returned the documents.
30Aside from the individual petitions, Mr. Croteau was also responsible for the preparation and circulation of the first list petition. His evidence was inconsistent in explaining the circumstances that led to the preparation of this petition. Mr. Crotean initially said that he prepared this first list petition because P19 did not understand the wording of the individual petition. At another point in his testimony Mr. Croteau explained that he prepared this version of the petition because P18 and P20 were unhappy with the wording of the individual petition. In any event, it was not only P18, P19 and P20 who signed the first list petition. Mr. Croteau also offered this document for signature when he was approached by P21 and, at another point, by Scott Oldham.
31Mr. Croteau explained that he prepared the first list petition during his lunch break. He wrote the text of the petition outside the shop, near a large generator parked against a fence. At about the same time, Mr. Oldham approached and indicated that he wished to sign a petition against the union. However, Mr. Oldham gave a contradictory version of the circumstances of his signature of the first list petition. According to Mr. Oldham, it was Mr. Croteau who approached and initiated discussion of the petition. Further, this did not occur outside the shop but, rather, in the "lock-up" area within the shop.
32Robert Kelloway gave evidence about the "second list petition, which began as a copy of the "individual petition" prepared by Mr. Crotean. Mr. Croteau testified that he gave the petition to Mr. Kelloway at the end of the work day as he "was headed out the door". Both witnesses claimed that there was no discussion about what Mr. Kelloway should do with the petition. Mr. Croteau claimed that he had no expectation that Mr. Kelloway would obtain other signatures. Mr. Kelloway repeatedly asserted that the two men had no discussion about what should be done with the document.
33Most of Mr. Kelloway's testimony concerned the signatures on the second list petition. He identified himself as P22. The signatures of P23-P28 were obtained on a lunch break in the area around the company gate. He collected the remaining signatures at the end of the work-day at the company gate. Mr. Kelloway also testified that in displaying the document, he covered the signatures with his hand so that other signatories' names could not be seen.
34In reviewing the original document, with "P number" notations inscribed by Board clerks, Mr. Kelloway initially said, "I don't understand P34 and P35." When the Board asked him if either was a printed version of a signature in the other column, he replied: "no, they're signed". P35, he asserted, signed before P30. He could not recall when P34 signed. When asked whether he could recall the identity of the first person that he saw during the after-work session of signature collection, he said, "I think it was P35". When asked whether P35 might have signed before P34, he replied, "yes, I think so".
35There are obvious problems in this testimony about the second list petition. P34 and P35 were the sixth and seventh of the twelve names in the right-hand "print" column. P35 was below P34, and P30 was below both P34 and P35. Given Mr. Kelloway's description of the manner in which he presented the document to signatories, one would expect that the names would appear in a column in the order in which they were obtained. Yet Mr. Kelloway's evidence suggests that both P34 and P35 found spaces between other signatures in which they inserted their names. If this is so, we cannot understand how Mr. Kelloway managed to cover the other names with his hand. (Did P34 and P35 sign between his fingers?) We cannot conclude that Mr. Kelloway kept the names of all signatories hidden as each person signed the second list petition.
36More importantly, the objecting employees never addressed the Board's concern regarding the duplication of names between either P28 and P34 or between P28 and P35. As we explained to the parties at the outset of the hearing, our review of specimen signatures led us to conclude that P35 duplicated P28; in particular, it appeared that P35 was the printed version of the signature appearing as P28. Nonetheless, Mr. Croteau, as representative of the group of objecting employees, took the position that P34 was the printed version of P28. The Board's review of the specimen signatures did not support that position since the specimen signature for P34 bore no resemblance to the signature appearing as P28. Mr. Croteau never offered evidence to support his position. Indeed, the evidence of his witness, Mr. Kelloway, contradicted his position. In Mr. Kelloway's story, P28 and P34 and P35 were three separate signatures representing three different employees.
37We also find it improbable that Mr. Croteau and Mr. Kelloway had no conversation about the document. Mr. Croteau testified that he gave a standard line' about confidentiality and voluntariness to the other recipients of the individual petitions. All of these employees received the document at the shop gate. Yet Mr. Kelloway received the petition in unique circumstances. Mr. Croteau gave it to him elsewhere, and did not give his usual caution about the confidentiality of the document.
38In summary, there are numerous contradictions and inconsistencies in the evidence of Mr. Crotean and Mr. Kelloway. This is troubling given that a simple count of "P numbers" leads inescapably to the conclusion that Mr. Kelloway's participation was critical in ensuring a numerically successful petition. Both admitted that Mr. Crotean knew relatively few of the employees, whereas Mr. Kelloway regular contact with most of the employees.
39Our review of these salient facts leads us to conclude that the objecting employees have failed to establish the voluntariness of the petitions. We find no evidence of any direct involvement of the employer, but we conclude that the manner in which the petitions were circulated would lead reasonable employees in this workplace to conclude that management might become aware of who did or did not sign the petition. Indeed, Mr. Oldham's manager was aware that a number of employees were opposed to the union, including Mr. Oldham. The testimony of Mr. Croteau and Mr. Oldham disclosed that there was open discussion in the shop about opposition to the union and, more importantly, about the fact that Mr. Croteau was circulating a petition. In this environment, the key circulators of the petition openly sought the support of fellow employees on or at the edges of company property at times when managers might have appeared.
40Mr. Croteau's loose distribution of the individual petition documents also causes us concern. Mr. Croteau was unable to account for the distribution of the documents. He did not know how many documents he distributed, nor what became of the documents not returned to him. Furthermore, he invited employees to discuss the petition with anyone they trusted. Given the circumstances of distribution (whether at the shop gate, or in the vicinity of the lunch truck, or in the shop itself during working hours), we conclude that employees were aware that most or all fellow employees had seen a copy of the document. Further, many employees were aware that those who chose to take away the document might show it to anyone they trusted. Since any one of those who took away documents and who was interested in supporting Mr. Croteau's efforts was required to return the document to him the next day at work, it is reasonable to conclude that employees might surmise that anyone who spoke with Mr. Croteau the next day opposed the union. We also conclude that those who were approached by Mr. Croteau on or near company property would similarly have reason to believe that others would be aware of whether they signed or did not sign. These conclusions are supported by Mr. Croteau's and Mr. Kelloway's evidence that Mr. Croteau did not generally interact with many of the employees in the shop.
41As for those petitions which were signed elsewhere and later returned to Mr. Croteau, we cannot accept those as voluntary expressions of the employees' wishes since we have no evidence whatsoever of the circumstances in which those employees signed.
42In the case of the first list petition circulated by Mr. Croteau, there was inconsistent and contradictory testimony regarding its origination, preparation and circulation. Accordingly, the objecting employees failed to provide sufficient evidence to discharge the onus of establishing the voluntariness of that petition.
43In the case of the second list petition, Mr. Kelloway's evidence left us with unanswered questions about the number and identity of persons who actually signed. Furthermore, we must conclude that a number of persons were able to review the signatures of others when signing the document. Combined with a workplace environment characterized by open discussion of the union, we find it likely that employees would perceive that others (including managers) might learn whether they signed this petition.
44As a result we find that, except for each of their individual petition letters and that of Mr. Oldham, the petition evidence presented by Mr. Croteau and Mr. Kelloway does not satisfy the onus of establishing that the petitions were voluntary. We find it unnecessary to determine whether the familial relationship between Mr. Kelloway and two managers and Mr. Croteau's purported special relationship with managers would undermine the voluntariness of signatures obtained by either of them.
45The Board is satisfied on the basis of all the evidence before it that more than fifty-five percent of the employees of the respondent in the bargaining unit described in paragraph 3 were members of the applicant on the certification application date.
46A certificate will issue to the applicant.
CONCURRING OPINION OF BOARD MEMBER W. H. WIGHTMAN; January 25, 1995
I cannot deny that the decision conforms with the Labour Relations Act and existing case law.
However, neither can I associate myself with the general characterization of findings based on the evidence concerning the organization, circulation, and custody of the petitions, nor the overall environment of the workplace.
My colleagues found "no evidence of any direct involvement of the employer". Nor did the union allege any impropriety on the part of the employer.
The decision describes the activities of the objectors and their evidence offered as proof of the voluntariness of the statements of desire not to have the union certified. Their efforts are found wanting not because of any proven, or even alleged, involvement of the employer but, rather, because of a perception on the part of the Board that reasonable employees would have been led to conclude that management might become aware of who did or did not sign the petition.
Persons familiar with case law and errors of omission or commission the Board deems prejudicial to petitioners might be hard put to conceive of any mistakes these objectors failed to make. Indeed, using case law as criteria, the objectors left themselves vulnerable on so many counts it would be totally illogical to conclude that anyone with a sense of organization, let alone even a rudimentary knowledge of labour law, was behind the scenes.
Having said all of the foregoing, and acknowledging the observation of the majority as to "the Legislative primacy of the membership evidence as the means by which employee wishes are to be determined" I cannot disagree with the resulting decision.