United Cement Lime Gypsum and Allied Workers International Union, Applicant, v. Alderbrook Industries Limited, Respondent

File No.: 1069-81-R

BEFORE: M.G. Picher, Vice-Chairman and Board Members C.G. Bourne and M.J. Fenwick.

APPEARANCES: C.M. Mitchell and E. Mattocks for the applicant; Barbara G. Crosby, Charles W Parker, Ronald N. McKinnon and John H. Rice for the respondent.

DECISION OF THE BOARD; October 1, 1981

1. This is an application for certification. . . .

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

3. Having regard to the agreement of the parties, the Board further finds that all employees of the respondent in Metropolitan Toronto save and except foremen, persons above the rank of foreman, office and sales staff and students employed during the school vacation period, constitute a unit of employees of the respondent appropriate for collective bargaining.

4. The respondent has raised two preliminary issues. Firstly, it seeks to adduce evidence of misconduct in the collection of membership evidence which it alleges would justify the taking of a representation vote. Secondly, it requests an extension of the terminal date and a reposting of the Board's Form 5 Notice to Employees in Italian as well as English.

5. With respect to the first issue, counsel for the union submits that the Board should not entertain evidence relating to the employer's charges of misconduct in the collection of membership evidence, on the grounds that no particulars of such charges were provided either to the union or to the Board prior to the hearing. The only notice of charges given is a statement in the respondent's reply to the application:

The respondent alleges that the union organizers directed threats of loss of jobs and bodily harm to employees in the course of the organizing campaign. The respondent submits that in view of the applicant's coercion and intimidation of employees a secret ballot vote should be ordered.

7. The reply was filed on September 4, 1981. A copy of it didn't reach the union until September 10, 1981, the day before the hearing of this application. In the week between the filing of the reply and the hearing the respondent made no attempt to provide particulars of its charges. It is admitted, moreover, that the employer had knowledge of the events giving rise to its charges as early as July 29, 1981 and that the details of the incidents were available to its counsel on or about August 30, 1981. Counsel for the union submits that to entertain the charges at this time is to prejudice the applicant since it would necessitate an adjournment to permit the union to meet the case being alleged against it.

8. The need for expedition in certification proceedings is well recognized. (See Hotel & Restaurant Employees Union v. Nick Nasney Hotels Ltd. 70 CLLC ~ 14,020 1970 CanLII 478 (ON CA), [1970], 3 O.R. 461 (C.A.); Jordan v. York University Faculty Association 78 CLLC ¶ 14,132 (Div. Ct.).) In the interest of avoiding undue delay the Board's Rules of Procedure provide in part as follows:

47. (1) 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.

9. In this case the respondent made no attempt to bring the specific facts alleged to the attention of the applicant until the very day of the hearing. It did so notwithstanding its knowledge of the facts to be alleged for a number of weeks before that date. Neither the respondent nor its counsel have advanced any excuse to satisfactorily explain this apparent silence.

10. The facts of this case are similar to those before the Board in Cable Tech Wire Company Limited [1978] OLRB Rep. June 496. In that case counsel for the employer filed charges in a certification on Friday June 9, 1978, the last business day before the hearing. In that case the Board commented at pp 497-98:

In view of the fact, admitted by counsel for the respondent, that the respondent had knowledge of these allegations as early as May 26, 1978 and did nothing to advise either the Board or the applicant of the alleged misconduct until the last business day before the hearing, the Board did not allow the respondent to adduce evidence in respect of those allega­tions. The reason put forth by counsel for the respondent to explain the delay, namely that it did not know until the Friday prior to the Monday hearing that witnesses would be available to testify to the allegations, is not sufficient reason to have withheld them virtually until the eve of the hearing. The delaying of serious allegations operates to the obvious prejudice of an applicant for certification. It can have little or no op­portunity to investigate and prepare to meet the allegations made against it. The union is moreover prejudiced in that it might be required to seek an adjournment of its application to meet the case made against it, in the event that evidence is heard, thereby occasioning delay in the certifica­tion process that can itself cause serious harm to the applicant's position, regardless of the merits of the charges made.

For these reasons the Board has in the past declined to hear evidence of allegations filed in certification proceedings virtually at the hearing room door where it appears that there was no sufficient reason for the with­holding of the allegations (see Fleck Manufacturing Limited 62 CLLC ¶ 16,236), and for these reasons it did so in this case.

The circumstances of this case are virtually on all fours with those in Cable Tech, supra. Absent an acceptable explanation for the respondent's failure to provide particulars in a timely manner, we see no reason to draw any different conclusion in this case. The Board therefore declines to entertain the charges contained in the respondent's reply.

11. We should add that, in the alternative, having obtained from counsel for the respondent a full statement of the wrongdoing alleged, if we did admit the allegations and accept them as proved, the respondent's request for a representation vote would not succeed.

12. The acts of intimidation alleged concern conversations between one employee and two other rank-and-file employees sympathetic to the union. One of the union sympathizers is alleged to have told the employee that she might lose her job if she didn’t join the union. The second union supporter, also a female, is alleged to have told the same employee that if she should hear that she had "told someone" (presumably referring to telling management about the union) "I'm going to kill you." When the employee in question was subsequently in the process of seeking out a member of management it is alleged that the same two employees approached her together and said "Please don't tell the front office."

13. Unfortunate as it may be, it is not uncommon for antagonism to be generated between employees who line up on opposite sides of a campaign for union representation. Statements by any person amounting to intimidation or coercion of an employee, whether they are made for or against a union, are clearly contrary to section 70 of the Labour Relations Act and are grounds for a complaint under section 89 of the Act. They may also form the basis for criminal charges. It does not follow, however, that the indiscretions of employees, whether they favour a union or sympathize with their employer, are to be held against the principal parties to an application for certification. The Board can no more hold against a union a verbal threat made to an employee's job security by an indiscrete employee who is neither a union officer nor a collector of union membership cards than it can hold against an employer similar threats made by a fervently anti-union employee acting on his own. Evidence of widespread threats which are made by neither the employer nor the union might, of course, cause the Board to resort to the further evidence of a representation vote.

14. In the instant case there are 117 employees in the bargaining unit. Sixty-seven have signed union membership applications. There is no suggestion in the allegations nor did the respondent seek to prove that any union officer or agent nor any employee acting as a collector of membership evidence engaged in any conduct contrary to the Act. It appears that the facts relating to the one employee, if proved, would establish an isolated instance, and would not substantiate the existence of a widespread climate of fear that might reasonable call into question the true wishes of the employees. In these circumstances the allegations, if proved, would not have caused the Board to order the taking of a representation vote.

15. We turn to consider the second preliminary submission of the respondent. It states that because some fifty per cent of its employees are functionally illiterate in English, being primarily of Italian background, the Board's notice to employees of the application should be posted in Italian as well as English. No employee has appeared or intervened to endorse that request. Moreover, there was nothing to prevent the respondent from providing its own translation of the Board's notice. By its own admission the employer frequently translates its own notices to employees in Italian.

16. The facts of this case are similar to those in Federated Building Maintenance Co. [1979] OLRB Rep. Oct. 974 The Board in that case stated the facts and its conclusions as follows:

The employer has raised an objection to these proceedings. It submits that the employees were given insufficient notice of the union's applica­tion for certification and of the hearing before this Board.

There are some 125 employees in the bargaining unit, comprising the cleaning staff of the First Canadian Place in Toronto. Following the Board's normal practice copies of the Board's Notice to Employees of Applica­tion for Certification and of Hearing (Form 5) were posted in various locations in their workplace. It is common ground that 80 per cent of the employees are of Portuguese origin and cannot read English. They could not, in other words, understand the meaning of Form 5 without assistance.

The employer submits that because the notices were not posted in Portuguese the employees have been denied natural justice. It requests that the application be delayed by the extension of the terminal date and a reposting of Form 5 in Portuguese. Alternatively it submits that the Board should order the taking of a representation vote with notices and ballots in both English and Portuguese.

In effect the employer seeks to protest on behalf of a group of employees when in fact the employees themselves have raised no objection. ...

The first issue is whether the employer has standing to make procedural objections on behalf of employees who have not themselves sought to do so. Generally this Board's experience has led it to respect the ability of employees to represent their interest in applications before the Board. The Board does not, as a general rule, permit an employer to speak for the employees in certification proceedings. The Board will entertain the evidence and representations of an employer respecting allegations of fraud, intimidation or coercion in the gathering of membership evidence. In those cases the employer is entitled to object, firstly, because it has a direct interest not to be party to a collective bargaining relationship based on bargaining rights illegally obtained; and, secondly, because the very unlawfulness alleged would tend to deprive the employees of the ability to freely represent their wishes. Apart from those extreme cir­cumstances amounting to fraud upon its own procedures, the Board does not place the employer in the position of spokesman for its employees.

The Board's practice in that regard is consistent with a number of decisions of the Supreme Court of Canada. In Quebec Labour Relations Board v. Cimon Ltee, [1971] S.C.R.; 1971 CanLII 143 (SCC), 21 D.L.R. (3d) 506 on an applica­tion for certification an employer sought to set aside an order of the Quebec Labour Relations Board directing a representation vote among its employees on the grounds that a second union had not been given notice of the application. The Court upheld the ruling of the board, finding that the company was unlawfully pleading on another's behalf an objection in which it had no legal interest. A case more closely re­sembling this one is Cunningham Drug Stores Ltd. v. B. C. Labour Relations Board1972 CanLII 143 (SCC), [1973] S.C.R. 256; 31 D.L.R. (3d) 459. In that case the Court found that during an application for certification an employer was without standing to object to the sufficiency of notice to employees affected by a ruling of the British Columbia Labour Relations Board altering the composition of the bargaining unit.

A more recent decision of the Supreme Court of Canada demonstrates even more forcefully the Court's appreciation of the concerns that labour boards have whenever employers purport to invoke the rights of their employees in certification proceedings. In Re Canada Labour Relations Board and Transair Ltd. (1976), 1976 CanLII 170 (SCC), 67 D.L.R. (3d) 421 the employerargued before the Court that the Canada Labour Relations Board had erred in refusing to entertain a petition against certification by a group of employees. The petition, tendered late in the certification proceedings, was found by the Board to be untimely. The employees who sponsored the petition did not seek judicial review of the ruling against them and the employer did not seek to make them a party to its own application for judicial review under section 28 of the Federal Court Act. The Court concluded that the employer was without standing to invoke an alleged error of law in which it had no legal interest. Laskin, C.J.C., speaking for the majority, said at p. 438:

"If there is any policy in the Canada Labour Code and comparable provincial legislation which is pre-eminent it is that it is the wishes of the employees without intercession of the employer (apart from fraud), that are alone to be considered vis-a-vis a bargaining agent that seeks to represent them. The employer cannot invoke what is a jus tert ii, especially when those whose position is asserted by the employer are not before the Court."

The foregoing reasoning is manifestly applicable in this case. Any objection that the employees have had insufficient notice of this applica­tion or are in a state of confusion about their rights, there being no fraud or impropriety alleged, is a matter for the employees themselves to raise. The employer is without standing to plead the objection which it makes. Its motion is therefore dismissed.

17. In the circumstances of this case we see no reason to depart from the Board's reasoning and conclusions in Federal Building Maintenance Ltd., supra. The respondent's request that the Board post its Notice to Employees in Italian is therefore denied.

18. The Board is satisfied on the basis of all the evidence before it 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 September 4, 1981, the terminal date fixed for this application and the date which the Board determines under 103(2)(j) of the Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act.

19. A certificate will issue to the applicant.