Ontario Labour Relations Board

1216-01-R Nino Dos Santos, Applicant v. United Brotherhood of Retail, Food, Industrial and Service Trades International Union, Responding Party v. 935772 Ontario Limited c.o.b. as Royal Taxi, Intervenor.

BEFORE: Mary Anne McKellar, Vice-Chair, and Board Members J. A. Rundle and H. Peacock.

DECISION OF THE BOARD; July 26, 2001

[1] The applicant has applied to the Board under section 63 of the Labour Relations Act, 1995 (“the Act”) for a declaration that the responding party no longer represents the employees in the bargaining unit for which it is the bargaining agent.

[2] The application was filed on July 23, 2001. The employees who are affected by this application are covered by a collective agreement between the responding party and the intervenor, with an effective date of October 1, 1998, until September 30, 2001. The bargaining unit description in that collective agreement is as follows:

All dependent Contractors and/or employees of 935772 Ontario Ltd. c.o.b. as Royal Taxi operating under a roof sign in Metropolitan Toronto, excluding supervisors and those above the rank of supervisor, dispatchers, call takers, maintenance staff, office and clerical staff, multi-plate/multi-car owners or lessees and inspectors.

Having regard to the provisions of section 63(2) of the Act, the Board finds that this application is timely.

[3] Pursuant to section 63(4) of the Act, the applicant must file with the Board “a list of the names of the employees in the bargaining unit who have expressed a wish not to be represented by the trade union and evidence of the wishes of those employees” (emphasis added).

[4] Rule 71 of the Board’s Rules of Procedure provides:

Evidence that employees do not wish to be represented by a trade union will not be considered by the Board unless the evidence is in writing and signed by each employee concerned. The evidence must also accompany the application and disclose the date upon which each signature was obtained.

[5] The applicant filed with the Board several copes of Schedule C to Board Form A-8, Intervention in Application for Termination of Bargaining Rights under Section 63, which is normally completed by an employer intervening in a termination application. The pre-printed text at the top of Schedule C begins:

List all employees who were in the bargaining unit for which the applicant seeks to terminate bargaining rights who had an employment relationship with the employer on the Date of Application.

[6] Each copy of Schedule C contained the names of several individuals, presumably employees in the bargaining unit. The majority of these names were printed, rather than signed, and all were, in any event, undated. The bottom of one of those pages bears the signature of someone other than the applicant, and the top of the page bears the notation “give to [employee name] ([name])”.

[7] The applicant also filed with the Board an affidavit, sworn July 23, 2001, which was stapled to the copies of Schedule C. It contains the following paragraphs:

2. I have had several discussions with the signatories that appear on the attached Schedule C regarding termination of the bargaining rights of the United Brotherhood of Retail, Food, Industrial and Service Trades International Union, (“the Union”).

3. On July 17, 18, 19, and 20, 2001, I collected the names and signatures of all the employees listed at Schedule C.

4. Prior to collecting this information I informed each employee that my purpose for collecting the information was to file an application with the Ontario Labour Relations Board for a Termination of the bargaining rights of the Union.

5. Each employee understood the reasons for signing the form; agreed that the Union should be removed; and gave his signature willingly and without coercion.

[8] In Michel’s Baguette, [1998] O.L.R.B. Rep. Sept./Oct. 846, the Board dismissed a timely application for termination of bargaining rights on the basis of defects in the evidence filed along with the application:

3. The applicant has filed twenty-six (26) separate pieces of membership evidence. Of those 26 documents, fourteen (14) were signed, dated and indicated that the person signing no longer wished to be represented by the trade union. Of the remaining twelve (12) documents filed as membership evidence, eleven (11) documents were undated and one was dated but did not indicate the intentions of the person signing the document. The Board’s practice is to require that membership evidence be dated so that the Board is in a position to determine whether or not the person signing the membership evidence does or does not wish to continue to be represented by the trade union. In these circumstances, we must conclude that less than forty per cent of the employees in the bargaining unit had expressed a wish not to be represented by the trade union at the time the application was filed.

[9] In St. Elizabeth Health Care, (unreported) (May 8, 2001), the Board dismissed a timely application for termination of bargaining rights on the basis of defects in the evidence filed along with the application:

5. The principal materials filed in support of the application consist of four pages stapled together.

6. The first page is headed with a preamble which clearly supports the conclusion that the signatures following it represent employees who have expressed a wish not to be represented by the union. A number of signatures (but clearly significantly less than 40 per cent of bargaining unit employees) follow bearing individual dates ranging from February 6, 2001 to April 26, 2001.

7. The next three pages each include the identical bare heading, namely “Petition (Page2)”. Apart from that heading, each of those three pages contains names and signatures bearing dates ranging from March 29, 2001 to April 29, 2001.

8. In view of the lack of any indication on any of those pages as to what it was the signatories were signing their names to and in view of the dates of the signatures (a number of which predate the last signature found on the first page), the Board is unable to conclude that these latter three pages constitute evidence that the signatories have expressed a wish not to be represented by the union.

[10] The assertions contained in the affidavit with respect to the information verbally conveyed to the employees whose names appear on Schedule C appear to be inconsistent with the pre-printed text on Schedule C identifying the purpose of that document, and with the note suggesting that the names on at least one page of Schedule C may have been collected by someone other than the affiant. Based on the material filed, it is unclear that those individuals do not desire to be represented by the trade union. Furthermore, they have not signed and dated the documents on which their names appear. In these circumstances, and having regard to the decisions cited above, we must conclude that less than forty per cent of the employees in the bargaining unit had expressed a wish not to be represented by the trade union at the time the application was filed. Accordingly, this application is dismissed without prejudice to the applicant’s ability to file a fresh, timely and properly supported application.

[11] Meeting and hearing dates, if any, set previously are herby cancelled.

[12] The employer is directed to post copies of this decision immediately, adjacent to all copies of the “Notice of Termination Application” posted previously. These copies must remain posted for a period of thirty (30) days.

“Mary Anne McKellar”

for the Board