The International Ladies Garment Workers Union v. Josh Industries Incorporated, 1980 CanLII 975

The International Ladies Garment Workers Union v. Josh Industries Incorporated

[1980] OLRB Rep. December 1741

1607-80-R The International Ladies Garment Workers Union, Applicant, v. Josh Industries Incorporated, Respondent, v. Group of Employees, Objectors

BEFORE: R. D. Howe, Vice-Chairman, and Board Members F. W. Murray and O. Hodges.

APPEARANCES: S. B. D. WahI and L. Goguen for the applicant; Donald J. McKillop, Q. C.,

M. Mandel, and S. Himelfarb for the respondent; Adelina Discola, Anna Lazaratos and Leona MacNeil for the objectors.

DECISION OF R.D. HOWE, VICE-CHAIRMAN AND BOARD MEMBER F.W. MURRAY; December 5, 1980

1. This is an application for certification.

2. The Board finds that the applicant is a trade union within the meaning of section

1(1 )(n) of The Labour Relations A ct.

3. Having regard to the agreement of the parties, the Board further finds that all employees of the respondent in Mississauga, Ontario, save and except supervisors, persons, above the rank of supervisor, office and sales staff, designers, sample and pattern makers, persons regularly employed for not more than twenty-four hours per week and students employed during the school vacation period, constitute a unit of employees of the respondent appropriate for collective bargaining.

4. In accordance with the Rules of Practice respecting applications for certification, the respondent employer has filed a list of employees in the bargaining unit, together with specimen signatures for the employees on that list. Having regard to the list filed by the employer, and the agreement of the parties with respect to the bargaining unit description, the Board is satisfied that there are fifty-four employees in the unit.

5. In support of its application for certification, the applicant trade union filed documentary evidence of membership in the form of cards, which consist of a combination application for membership and an attached receipt. The union filed forty-six cards, thirty-seven of which coincide with the names of employees in the agreed unit. The membership cards are signed by the employees, and the receipts are countersigned and indicate that a payment of $1.00 has been made within the six month period immediately preceding the terminal date for this application. The money was collected by more than one collector and the membership evidence is supported by a duly completed Form 8 Statutory Declaration Concerning Membership Documents. Thus, the documentary evidence of membership filed by the applicant indicates that more than fifty-five per cent of the employees of the respondent in the bargaining unit at the time the application was made were members of the applicant on November 7, 1980, the terminal date fixed for this application and the date which the Board determines, under section 92(2)6) of The Labour Relations A ct, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act.

6. In addition to the applicant's documentary evidence of membership, there was also filed with the board a statement of desire purportedly signed by a number of employees in the bargaining unit, in opposition to the application. The Board generally takes such a statement of desire into account in deciding whether to exercise its discretion under section 7(2) of the Act to order a representation vote notwithstanding documentary evidence of membership which demonstrates that more than fifty-five per cent of the employees in the bargaining unit are "members" within the meaning of section 1(1)6) of the Act. In this case, however, even if the statement of desire is entirely voluntary, the applicant will still have the unequivocal membership support of more than fifty-five per cent of the employees in the bargaining unit. Thus, the statement of desire could not affect the result in this case. Accordingly, it was unnecessary to undertake the inquiry (into the origination of the statement of desire and the manner in which each signature on it was obtained) contemplated by Rule 48 of the Rules of Procedure.

7. There were also filed with the Board revocations purportedly signed by two employees who had previously signed the aforementioned statement of desire, by which the two signatories purported to draw their signatures from the statement of desire. However. since the statement of desire could not affect the result in this case, it was unnecessary for the Board to consider the revocations.

8. Prior to the hearing of this application on November 21, 1980 Board Officer C. Wheatley met with the parties in an attempt to resolve all issues in dispute. After the parties had agreed upon the aforementioned bargaining unit description, Mr. Wheatley provided them with the information set forth above and advised them that it appeared, subject to the Board's normal second check, that a certificate would issue. He then asked the parties if they felt the necessity to appear before a panel of the Board to make any further representations with respect to this application and received a negative response. However, as the parties were in the process of leaving the room, A. Discola, one of the objectors said: "Who won?" (Or words to that effect). Mr. Wheatley repeated that it appeared that the applicant would be certified. Ms. Discola then asked: "Does that mean that now I won't be able to work there?" When Mr. Wheatley and counsel for the applicant assured her that she would not be precluded from working for the respondent by the certification of the applicant, Ms. Discola pointed at Rona F. Moreau, the person who signed the Form 8 declaration (on which she is identified as being the 'organizer" of the applicant) and stated that Ms. Moreau had told her that she would not be permitted to work there unless she joined the union. At that point, Mr. Wheatley advised the parties that a hearing would be convened before a panel of the Board.

9. When the parties appeared before this panel of the Board, they related what had occurred at the meeting with Board Officer Wheatley and then made their submissions with respect to the acting which should be taken by the Board.

10. Counsel for the respondent, after noting that he was not making any allegations of misconduct on behalf of his client, submitted that the Board should either appoint a Board Officer to investigate the circumstances surrounding the signing of the membership cards submitted in support of this application, or exercise its discretion under section 7(2) of the Act to direct that a representation vote be taken.

11. Ms. Discola, who was not represented by counsel, also made submissions to the Board. Unfortunately, the absence of an Italian translator made it somewhat difficult for the Board to completely understand all of her submissions. Many of her submissions appeared to relate to what she considers to be the undesirable effects which the union organizing campaign has allegedly had upon the interpersonal relationships among employees in the plant. However, as the Board attempted to explain at the hearing, we do not in any event take such matters into account in deciding certification applications. Ms. Discola did not make any specific submissions concerning the action which the Board should take in view of the statement allegedly made to her by Ms. Moreau other than the contention (implicit in her submissions) that the application should be dismissed.

12. Counsel for the applicant submitted that the Board should not consider any potential allegations by Ms. Discola since she had failed to comply with the provisions of Rule 47 with respect to particulars of alleged misconduct. He referred to a number of Board decisions and contended that the Board jurisprudence clearly indicates that Rule 47 is to be interpreted very strictly in certification cases. It was his position that the applicant would be substantially prejudiced in collective bargaining by the delay which would result from the particularization and hearing of Ms. Discola's allegations. He contended that any such delay would inevitably erode employee support for the trade union to the detriment of the appli­cant. It was also his position that if there was any doubt concerning the membership evidence, it was incumbent upon the respondent and the objectors to make all reasonable inquiries in an expeditious manner to determine if there were any improprieties. Accordingly, he sub­mitted that the Board "must dismiss any potential allegations" and issue a certificate to the applicant.

13. In response to those submissions, counsel for the respondent contended that the present case is distinguishable from the jurisprudence cited by counsel for the applicant on the basis that no charges or allegations had been made herein by any party. He contrasted a situation involving charges or allegations with the present situation in which what is before the Board is information provided spontaneously by an objecting employee to a Board Officer engaged in an attempt to resolve matters in dispute among the parties without a formal hearing before a panel of the Board. He further contended that section 50 might be applicable if Ms. Moreau did in fact make the statement attributed to her, since obtaining a certificate on the basis of her Form 8 declaration would, in his submission, be tantamount to a fraud upon the Board.

14. It is the well known practice of the Board to conduct its own investigation into allegations of non-sign or non-pay, i.e. into charges that an employee has not signed an application for membership in the trade union or has not paid any money on its own account in respect of initiation fees (see International Nickel Company of Canada Limited, 65 CLLC ¶ 16,066). In such cases, the Board appoints a Board Officer to question those involved. The Board Officer interviews the employee (or employees) involved and obtains a signed statement. The Board's initial investigation is carried out in that manner so as to maintain the secrecy of the membership evidence in accordance with the policy set forth in section 100 of the Act (see Remington Rand Limited, 63 CLLC ¶1 16,288). If the inquiry by the Board Officer does not indicate that a non-sign or non-pay has occurred, the Board does not proceed further. However, if the inquiry does indicate such irregularity, the Board will schedule a hearing and subpoena witnesses, including the Form 8 declarant. At the hearing, the Board examines the witnesses in the first instance and then makes them available to the other parties for cross-examination (see Suburban Lathing & Accoustics Limited, [1965] OLRB Rep. Apr. 17).

15. In the Kendall Company (Canada)Limited, [1975] OLRB Rep. Aug.61 I, the Board stated, at page 625:

"32. It should be noted that the Board will not undertake an inquiry of its own in the absence of charges alleging defective membership evidence. Further, it is well known the Board will only undertake its own inquiry when the allegations involve non-pay or non-sign — situations that immediately suggest a potential fraud upon the Board. Such conduct, if proven, is viewed as so contrary to the Board's processes that the Board will undertake its own inquiry at any time. (See Alcan Colony [1963] OLRB Rep. June 159; Acu Forming, [1970] OLRB Rep. July 480.) And in such inquiries the Board will subpoena the Form 8 declarant in order to ascertain why such improper activity was not revealed. On the other hand, charges of undue influence or misrepresentation must be alleged and proven by the party making the charge. (See Alcan Colony, sup ra.)" [emphasis added]

The Board also noted in the Kendall case that other defects in membership evidence which raise questions about the accuracy of Form 8 (such as an allegation of "indirect pay", i.e. an allegation that the initiation fee was collected on behalf of the trade union by a person other than the individual whose name appears as a collector on the card), may also prompt the Board to conduct its own inquiry; at pages 625 and 626, the Board stated:

“…. The issue of when the Board will conduct its own inquiry in the face of evidence or allegations raising these other 'irregularities' exclusively has been dealt with on a case by case basis and no general rule is possible. However, one important factor in the determination is the apparent extent of the irregularity."

16. Having regard to the representations of the parties, the Board is of the view that this is not an appropriate case in which to appoint a Board Officer. The information provided to Board Officer Wheatley by Ms. Discola in the present case does not raise questions about the accuracy of the Form 8 signed by Ms. Moreau, which reads as follows:

"I, RONA F. MOREAU, the ORGANIZER of the applicant herein declare that, to the best of my knowledge, information and belief:

I. The documents submitted in support of the application represent documentary evidence of membership on behalf of 46 persons who were employees of the respondent in the bargaining unit that the applicant herein claims to be appropriate for collective bargaining, on the date of the making of the application.

2. There were approximately 60 persons who were employees of the respondent in the bargaining unit that the applicant herein claims to be appropriate for collective bargaining on the date of the making of the application.

3. (Where the documentary evidence consists in part of receipts or other acknowledgments of the payment on account of dues or initiation fees.) On the basis of my personal knowledge and inquiries that I have made, I state that the persons whose names appear on the receipts or other acknowledgments of payment on account of dues or initiation fees are the persons who actually collected the moneys paid on account of dues or initiation fees and that each member, on whose behalf a receipt or an acknowledgment of pay­ment is submitted has personally paid in money the amount shown thereon on his own behalf to the person whose name appears on his receipt or acknowledgment of payment as collector, EXCEPT IN THE FOLLOWING INSTANCES:

[no exceptions]

Dated at Toronto, this 7th day of November, J980.

(signed) R. Moreau"

Ms. Discola's information does not constitute an allegation of potential fraud as is present in the non-sign and non-pay cases; rather it is information concerning alleged intimidation or coercion of the type which must be proved by the party making the allegation (see 229704 Contracting Limited, [1971] OLRB Rep. June 337). Accordingly, the Board is of the view that this is not an appropriate case in which to appoint a Board Officer to investigate the circumstances surrounding the signing of the membership cards.

17. The Board is also of the view that it would not be appropriate to exercise its discretion to direct a representation vote under section 7(2) on the basis of the aforementioned unsworn and no particularized representation made by Ms. Discola with respect to the words alleged to have been spoken by Ms. Moreau. Nevertheless, the Board must determine whether it would be appropriate to afford Ms. Discola an opportunity to particularize and attempt to prove before the Board her aforementioned allegation. That determination requires consideration of the Board jurisprudence concerning the application of Rule 47 in the context of allegations of intimidation or coercion in the obtaining of membership evidence.

18. Rule 47 provides, in part, as follows:

"47.-(l) Where a person intends to allege, at the hearing of an application or complaint, improper or irregular conduct by any person, he shall,

(a) include in the application or complaint; or

(b) file a notice of intention that shall contain,

a concise statement of the material facts, actions and omissions upon which he intends to rely as constituting such improper or irregular conduct, including the time when and the place where the actions or omissions complained of occurred and the names of the persons who engaged in or committed them, but not the evidence by which the material facts, actions or omissions are to be proved, and, where he alleges that the improper or irregular conduct constitutes a violation of any provision of the Act, he shall include a reference to the section or sections of the Act containing such provision.

(2) Where, in the opinion of the Board, a person has not filed notice of intention promptly upon discovering the alleged improper or irregular conduct, he shall not adduce evidence at the hearing of the application of such facts, except with the consent of the Board and, if the Board deems it advisable to give such consent, it may do so upon such terms and conditions as it considers advisable.

(4) No person shall adduce evidence at the hearing of an application or complaint of any material fact that has not been included in the application or complaint or in any document filed under these Rules in respect of the application or complaint, except with the consent of the Board and, if the Board considers is advisable to give such consent, it may do so upon such terms and conditions as it considers advisable."

19. In Fleck Manufacturing Limited, 62 CLLC ¶1 16,236, the Board was presented with

a situation somewhat similar to the instant case. That decision contains the following passage

(at page 1047 of CLLC Vol. 2):

"At the hearing, counsel for the objectors indicated without parti­cularizing the nature thereof, that he wished to make certain allegations of impropriety against the union concerning the manner in which the union had obtained the applications and receipts which it filed in this case. Up to the time of the hearing on January 25th, however, no notice as required by section 48 of the Board's Rules of Procedure had been filed on behalf of the objectors of any intention to allege improper or irregular conduct on the part of the union. Counsel admitted that the information upon which he proposed to base these allegations had come to his knowledge as early as January 16. His only explanation for his failure to give timely notice and particulars of these allegations was that he was not familiar with section 48 of the Board's Rules of Procedure. The relevant parts of this section read as follows:­48.-( I) Where, at the hearing of an application other than an applica­tion,

(a) for a declaration that strike or lockout is unlawful; or

(b) for consent to institute a prosecution,

a person intends to allege improper or irregular conduct by any person, he shall file a notice of such intention which shall contain a concise statement of the material facts upon which he intends to rely in support of the allegation but not the evidence by which the material facts are to be proved.

(2) Where, in the opinion of the Board, a person has not filed notice of intention promptly upon discovering the conduct alleged, he shall not, without the consent of the Board upon such terms and conditions as the Board thinks advisable, adduce evidence at the hearing of the application of such facts.

It is incumbent on all parties to proceedings before the Board to in­vestigate matters relevant to their cases as early as possible and if they intend to make allegations of improper or irregular conduct against another party to do so promptly. The object of this requirement, which finds expression in section 48 of the rules, is obviously to expedite and facilitate the hearing and processing of applications under the Act and to avoid prejudice, delay or embarrassment to the parties involved. Delayed and last-minute allegations, which lead to adjournments or cause prejudice, embarrassment or unnecessary expense to the other parties, and which with reasonable diligence could have been made at a more timely stage of the proceedings will not be enternained except for good and sufficient cause.

Having regard to the untimely nature of the allegations, and the reason given for not advancing them earlier, and to the fact that copies of the Board's Rules of Procedure containing section 48 are circulated to the public and are readily available to counsel, and to the obvious and unnecessary prejudice which would inevitably have resulted to the applicant if such allegations had been allowed for the first time at the hearing, the Board ruled that it would not entertain them. Indeed, it is to be observed that the Registrar of the Board sent a copy of the Board's Rules of Procedure to counsel for the objectors on January 17th."

By way of contrast, Ms. Discola was not represented by counsel in the present case and there is no indication that she had access to the Board's Rules of Procedures. Although the green sheet (Form 5) alerts employees to a number of the Board's requirements with respect to statements of desire, it does not notify them of the need to promptly file duly particularized allegations of improper or irregular conduct. While ignorance of the law is not a defense to misconduct, it may nevertheless be a relevant matter for the Board to consider in exercising its discretion under Rule 47 where a party appearing before the Board is a lay person who appears to have earnestly attempted to duly comply with all of the procedures of which she had notice prior to the hearing.

20. The purpose of Rule 47 were explained by the Board as follows in Trigiani Contracting Limited, [1979] OLRB Rep. Feb. 141:

"7. That section has a twofold purpose grounded in both legal considerations and in industrial relations considerations. The legal consideration implicit in section 47 of the Board's Rules of Procedure is a recognition of the rule of natural justice that anyone charged with wrong­doing should have sufficient notice of the charge against him. The labour relations consideration is a recognition that the realities of union organi­zation are such that a delay of Board proceedings may serve to defeat the union. A union may successfully defend charges made against it only to discover, upon the late granting of a certificate, that its support among the employees has substantially eroded because, for reasons often not fully understood by rank and file employees, it has failed to get certified promptly and commence immediately to bargain on their behalf. for that reason section 47 of the Board's Rules of Procedures seeks to strike a balance between natural justice and the avoidance of delay in certifica­tion proceedings or any other proceedings before the Board. In an application for certification both the interests of natural justice and industrial relations are best served when allegations of wrongdoing are made in sufficient time and with sufficient particularity that an applica­tion union is not prejudiced either by surprise or by being forced to seek adjournment and the delay of its own application. Therefore, where allegations against an applicant are not filed in a timely manner or with sufficient particularity the Board may refuse to entertain them. (Fleck Manufacturing Limited 62 CLLC ¶ 16,236; Cable Tech Wire Company Limited (as yet unreported) Board File No. 0297-78-R, June21, 1978)."

However, that case also involved an attempt by counsel to file untimely charges (as did the Cable Tech Wire case referred to therein).

21. The Board has reviewed each of the cases cited by counsel for the applicant as well as a number of other cases concerning Rule 47. None of those cases appears to be on all fours with the instant case in which an employee, who has some difficulty with the English language, appeared before the Board in support of a statement of desire without assistance of counsel and apprised the Board of an alleged impropriety by the Form 8 declarant (identified therein as the "organizer" of the applicant) who is the collector on twenty-one of the forty-six cards submitted by the applicant in support of the application. (Sixteen of the names on the said twenty-one cards coincide with names on the list of employees in the bargaining unit.) It should also be noted that Ms. Moreau is apparently not an employee of the respondent (as her name is not included on the list of employees submitted by the respondent). Thus, the case involves alleged misconduct by a person who may well have been perceived to have been an official or representative of the applicant.

22. Having regard to all of the circumstances, the Board is of the opinion that this is an appropriate case in which to exercise its discretion under Rule 47 in such manner as to afford Ms. Discola an opportunity to particularize her allegation and adduce evidence before the Board (with the assistance of a translator) in support of such allegation if she wishes to do so. Although the Board is sensitive to the possible prejudice which the applicant may suffer through the effluxion of time as a result of this disposition of the matter, the Board has weighed that interest against the interest of ensuring that the documentary evidence of membership upon which the Board is asked to rely as a basis for granting bargaining rights to the applicant, reflects the true wishes of the employees who signed them and was not procured by use of intimidation or threats proscribed by section 61 of the Act. The Board is of the view that the proper balancing of those two legitimate interests in the circumstances of this case supports the conclusion that Ms. Discola should be afforded such opportunity.

23. Accordingly, if Ms. Discola files with the Board on or before Wednesday, December 17, 1980 a notice of intention which contains a concise statement of the material facts upon which she intends to rely including the time when and the place where Ms. Moreau is alleged to have spoken the words in question, the Registrar is directed to list this matter for further hearing for the purpose of hearing (with the assistance of an Italian translator) the evidence and submissions of the parties with respect to the aforementioned allegation. Other­wise, the Board will dispose of this application on the basis of the material presently before it.

24. This matter is referred to the Registrar.

DISSENT OF BOARD MEMBER O. HODGES:

1. In the circumstances of this case natural justice requires a balancing of the parties' interests. On the one hand the objector may be entitled to have her allegation of coercive statements by the union investigated by the Board; on the other hand the interests of two-thirds of the employees in the agreed upon bargaining unit who have chosen the union to be their bargaining agent will suffer because bargaining to make a collective agreement with their employer will be delayed if an additional hearing is held.

2. The allegation of the coercive statement made to the objector by the signatory to the Form 8 came only after the Labour Relations Officer had met with the parties and indicated that the union would probably be certified. There are three possibilities why the objector did not complain earlier:

(1) The objector may not have mentioned the incident before because the alleged threat (that she would not be able to keep her job unless she joined the union) did not appear serious until it became apparent (as it did at this point) that the union would be certified.

(2) She may have been uncertain as to when she should speak during the meeting with the Board Officer.

(3) It could also be that the allegation at the last minute was part of a scheme to delay certification and so to undermine support for the union during bargaining.

3. There is further doubt cast upon the alleged threat because of the language difficulty. The objector's problem with English was evident at the Board hearing. What was the language spoken when the objector says she was told she could not work unless she joined the union and in what context was the alleged remark made? Obviously it would not be im­proper to explain the effect of a union shop upon employees who refuse to comply with the requirements of a union shop agreement, or the effect of a refusal to pay dues as required by law.

4. It is to be noted that the objector did not sign a union membership card, nor was she one of the first to sign the statement of desire. Her name appears as number 14 on the list of seventeen names filed in opposition to the union, only two of which had signed union cards. At the hearing in this matter the objector herein referred to, Adelina Discola, made her opposition to the union very clear and expressed her concern for the problems she saw for the management of the business if the union were certified. It is also very significant that no complaint was made by any person who had signed a union card.

5. In my opinion the objector Discola complained without sufficient grounds to cause a delay in certification proceedings. Any employee who signed a union card could have written to the Board or attended at the hearing if they felt in any way intimidated by the union. None did so.

6. The applicant union is one of the most experienced in organizational protocol. It is unthinkable that one of their organizers would threaten a worker in any way whatsoever. The statements made by Discola at the hearing of the Board satisfy me that her language difficulty and her clear management orientation are the basis for her objection, and nothing more.

7. In all of the circumstances of this case and in consideration of the testimony and statements made at the Board hearing, I would certify the union without further delay so that collective bargaining could proceed in the interest of all of the employees including the objector Discola.