Ontario Labour Relations Board
[1982] OLRB Rep. November 1734
1162-82-R United Steelworkers of America, Applicant, v. Walbar of Canada Inc., Respondent, v. Group of Employees, Objectors.
BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members C. G. Bourne and W. F. Rutherford.
APPEARANCES: Brian Shell, Lorne Richmond, Michael Lynk, Gerry Barr and Marion Tobin for the applicant; D. N. Corbett, T E. Long, C. J. Wodar and D. F. Hunter for the respondent; Cyril J. Abbass, Michael Giguere and Brian Smith for the objectors.
DECISION OF THE BOARD; November 9, 1982
This is an application for certification.
The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act.
Having regard to the agreement of the parties, the Board further finds that all employees of the respondent company at its Aerowood Drive location in the Municipality of Mississauga, save and except foremen, persons above the rank of foreman, office and sales staff, persons regularly employed for not more than twenty-four (24) hours per week and students employed during the school vacation period, constitutes a unit of employees of the respondent appropriate for collective bargaining.
The Board at the hearing found there to be 342 employees in the bargaining unit at the time of the application. Of those 342 employees, 248 signed applications for membership in the trade union and paid their dollar prior to the terminal date fixed by the Board. There was also a timely statement in opposition to the application filed with the Board. This statement contained the signatures of 82 persons, 10 of whom were individuals who had also signed applications for membership in the trade union. Finally, the applicant trade union filed prior to the terminal date statements re-affirming support for the applicant and repudiating any signature on a petition, signed by 222 employees in the bargaining unit. Of these 222 signatures on the "counter- petition", 5 overlapped with signatures appearing on the "petition" or statement in opposition to the application.
From the foregoing, two things became apparent at the hearing. Firstly, the applicant had filed with the Board membership support representing some 72% of the bargaining unit, and significantly above the 55 per cent required by the Labour Relations Act for certification without a vote. Secondly, because of the limited number of overlaps between employees signing cards in the application and those signing the petition in opposition to the application, the petition, even if proven to be voluntary, could not reduce the applicant's unequivocal evidence of support anywhere near the 55 per cent level. Counsel for the objectors, however, sought to call evidence on the petition in order to show the Board that some 77 employees whom he represented desired the Board to order a vote in this matter. The parties thereupon agreed to have the Board accept counsel's statement as a fact, and further agreed that it would be unnecessary for any party to call evidence on either the petition or the counter-petition. The Board was accordingly not called upon to make any ruling in this regard.
The Form 9 "Declaration Concerning Membership Documents" filed by the applicant disclosed certain irregularities which the Board, in accordance with its usual practice, disclosed to the other parties at the hearing. It appeared that the applicant, because of the size of the campaign, had engaged the assistance of rank-and-file employees at both a primary and secondary collecting level. That is, certain individuals were engaged in collecting dollars directly from the employees themselves, while others collected the dollars from these "collectors" and remitted them to the applicant's organizing office. The Form 9 declarant indicated that the inquiries which it carried out prior to the execution of the Form disclosed that 33 of the cards submitted initially bore the signature of the secondary, rather than the primary collector. These cards were amended by having the primary collector sign, and new cards were made out and signed as well. A further irregularity disclosed in the Form 9 involved the signing of the receipt portion of an application for membership by both the member and the collector two weeks prior to the dollar actually being paid. With respect to the group of 33 cards, the Board, for the reasons given at the hearing, ruled that the discoveries and disclosures made by the Form 9 declarant in fact reinforced the declaration set out in that Form, and that the Board had nothing before it which would cause it to conduct any further inquiry behind the Form 9. The Board noted that even the irregularities discovered did not suggest any omissions which would go to the heart of the membership evidence required by the Act. With respect to the single card for which a receipt was signed at a time when no dollar was paid, the Board noted that that disclosure might prompt an inquiry at least into the circumstances and basis on which that occurred; but in view of the fact that that collector was involved with only two additional cards, no material purpose would be served by further inquiry in this case. Even if the Board were to conclude that all 3 cards signed by this collector were unworthy of weight, the applicant's membership level would not be significantly affected.
The remaining matter to be dealt with by the Board were the charges filed by the respondent in connection with the applicant's organizing campaign. The charges developed before the Board involved various forms of threats; none of these threats, however, were attributed by the respondent to officials or even employee-collectors of the applicant; nor in the case of certain telephone calls and scribbling on a washroom wall, could the perpetrator of the threats be identified at all. The respondent made it clear that it was not alleging wrongdoing on the part of the applicant; rather, it wished the opportunity to persuade the Board that the "climate" existing in the plant during the organizing campaign was so obstructive of freedom of choice as to cause the Board to exercise its discretion under section 7(2) of the Act to order the confirmatory evidence of a representation vote. The respondent emphasized that it was very difficult for it to obtain particulars of such conduct, given the nature of the conduct as well as the delicate nature of an employer's role in an organizing campaign.
The applicant argued, in light of the absence of any charges levied specifically against it, and the lack of particularity in certain of the respondent's allegations, that the Board ought to refuse to receive the evidence tendered by the respondent, and effectively dismiss the charges without a hearing. Whether the Board will consider it appropriate to do so, however, depends on the overall circumstances of each case, and the majority ruled at the hearing that in light of the serious improprieties alleged, and the fact that he respondent had specifically identified some instances of attempted intimidation, and was prepared to lead evidence in support thereof, the Board would hear that evidence. While sensitive to the difficulty of probing the authenticity of such evidence, the Board was not prepared to state as a general rule that it would have no interest in inquiring into relevant conduct however serious, so long as such conduct was carried out anonymously, or by someone not specifically a party to the proceedings. With respect to both the limitations and relevance of such evidence, the Board noted its earlier comments in Alderbrook Industries Limited, [1981] OLRB Rep. Oct. 1331, at paragraph 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 union a verbal threat made to an employee's job security by an indiscreet 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.
In the present case the Board deemed it appropriate to hear the evidence of intimidation prior to making a determination of its impact.
The respondent's first witness was Mr. My Ngo. Mr. Ngo was born in Vietnam, and emigrated to Canada via a refugee camp some 11/2 years ago. Mr. Ngo testified that many people told him that if he didn't join the union, then once the union was established, he might be kicked out of the company. He indicated that he could not recall specifically who had said this to him, but that they were his friends and he did not take them seriously. More significantly, Mr. Ngo testified that after he signed the paper protesting against the establishment of the union, he received anonymous telephone calls at his home on five occasions, asking him why he was protesting against the establishment of the union, and warning him that he might be harmed or killed on the way to work. Mr. Ngo could only say that one of the callers was a male, another a female. Mr. Ngo reported these incidents to the police. Mr. Ngo was served with a summons by the company to appear before the Board, and indicated that he received a further anonymous telephone call telling him not to appear at the Board as a witness. The day before the first hearing he observed on a washroom wall at the workplace some words in Vietnamese which he translated as: "If you want a wage increase, contact the hunting dog Ngo Ngoc My". Mr. Ngo testified that the word "hunting dog" was not complimentary, and was another way of saying "company spy".
The respondent's next witness was Mr. Tran Van Long. Mr. Tran also emigrated to Canada from Vietnam by way of a refugee camp approximately 21/2 years ago. He is an employee at Walbar and was called into the office one day for the purpose of being interviewed by the company's lawyer. That night at home he received a telephone call asking him why he went to the office, whom he saw, and what he told them. Mr. Tran responded that he did not know who the caller was, nor why he was so concerned about the matter. The caller did not identify himself, but told Mr. Tran that if he did not tell him, he would kill Mr. Tran, his wife, and his children. The caller ended the conversation by saying that he would call the next day, but never did. Mr. Tran testified that he was so scared by all of this, because he thought that Canada was a peaceful country, and he reported the matter to the police and his employer. He said that he received a summons the next day from the company to testify before the Labour Relations Board, but was reluctant to do so because of his fear. He indicated that he also discussed the matter with Mr. My, who is a friend of his, and who had told him previously that he had been threatened as well. The applicant then disclosed in cross-examination that Mr. Tran was an employee who had signed an application for membership in the trade union. One of the charges pending before the Board involved an allegation that the non—English—speaking employees in this bargaining unit did not know what they were signing when they signed their membership cards, or did not appreciate the full significance of what they were doing. Accordingly, counsel for the objectors, following the applicant's questioning, cross—examined Mr. Tran extensively on this point. Mr. Tran indicated that he knew that he was signing a card in order to bring the union into the workplace, and that it was explained to him that if enough employees signed these cards, the union would be established. He said that there was no mention of a vote being held concerning the union, nor did anyone tell him how many other employees had signed cards. Asked if he really felt that he had a choice when presented with the card to sign, Mr. Tran responded: "Yes — it was my own freedom, my choice".
The final witness called by the respondent was Mr. Duson Gracanin. Mr. Gracanin is a native of Yugoslavia, and is employed as a machine operator at Walbar. He testified that a number of the employees were sitting around a table in the cafeteria one day discussing the pros and cons of joining the trade union. One employee in particular, Ilaja Djuric, he noted was strongly in favour of the union. About a half hour later, Mr. Djuric approached Mr. Gracanin at his work bench. Mr. Djuric asked Mr. Gracanin if he realize what would happen if the majority was not for the union. Mr. Gracanin asked him what he meant by that and Mr. Djuric responded only that Mr. Gracanin had better be careful, whether at work or in the car or at home, because Mr. Djuric was not sure what could happen to him from the Mafia. Mr. Gracanin said that he had nothing to do with the Mafia, and asked Mr. Djuric what Mafia he was talking about. Mr. Djuric replied that he did not know what could happen from the Chinese Mafia, the Vietnamese Mafia, the Portuguese Mafia, or the Italian Mafia. Mr. Gracanin responded that if anyone were to touch his finger, he would break their hand. Mr. Gracanin testified that he thought Mr. Djuric was "kibbutzing" at the time, but that he took it more seriously when he heard Mr. Djuric saying the same thing to others later. Mr. Djuric did not at any time offer Mr. Gracanin a membership card to sign. As for his own participation in discussions about the union, Mr. Gracanin indicated that he took part initially, but decided to stay out of it when things began to get "hot". On further questioning, he confirmed that the change in atmosphere took place after the green sheet was posted from the Labour Board.
Called by the applicant in reply, Mr. Djuric denied having this or any other conversation with Mr. Gracanin about the union. In fact, Mr. Djuric twice denied ever having a conversation with anyone about the subject of the union. He was then able to recall at least one occasion in the cafeteria in which he and a number of other employees, including Mr. Gracanin, were discussing the union, and in which Mr. Djuric asked a number of questions. On the whole, he testified, he "tried very strictly not to involve" himself in the union matter. Having considered the breadth of Mr. Djuric's denials, together with the course of his evidence, the Board finds that it has no reason to disbelieve the evidence of Mr. Gracanin.
The parties agreed to stipulate a number of additional facts before the Board, without the need to call evidence. Of the 342 employees in the bargaining unit, approximately 118 are of Vietnamese origin, and another 32 have emigrated from countries in Asia other than Vietnam. The majority of these 150 employees experience difficulty with the English language. The respondent proposed to call as an expert witness Professor David Wurfell of the University of Windsor. Mr. Wurfell was put forward as an expert on the Vietnamese community in Canada on the basis of his studies in the Far East, as well as his efforts in the re-settlement of Vietnamese refugees in Canada. The applicant objected to either the propriety or probative value of such evidence. However, solely for the purpose of expediting the proceedings, the applicant agreed to permit the respondent's counsel to stipulate as facts before the Board a series of points which the respondent sought to establish through its expert witness. As a result of this procedure agreed upon by the parties, the Board once again was not called upon to make a ruling on the admissibility of the tendered evidence. The agreed-upon statement of points provides:
Vietnamese refugees have come from a society which has suffered war for some forty years.
It was common in the war-torn society for people to threaten others and in the context of this society for these threats to be carried out.
Threats during union organizing campaigns in Vietnam were made by both union organizers and representatives of management.
The divisions in the Vietnamese community which existed in Vietnam have to some extent been transported to Canada.
Threats of violence made by a refugee from Vietnam to another refugee from Vietnam may come to the attention of persons not belonging to the Vietnamese community in Canada, but in many instances the people may be fearful of making any revelation to persons outside the Vietnamese community.
This completed the evidence and facts which the Board has before it.
The respondent argues that the evidence of intimidation should cause the Board sufficient doubt and concern as to seek the confirmatory evidence of a representation vote as to the true wishes of the employees in the proposed bargaining unit. Counsel points in particular to the nature and timing of some of the threats, being designed to thwart communication of the incidents of intimidation, even with respect to the proceedings before the Board itself. While conceding that the evidence disclosed somewhat isolated incidents of intimidation, counsel argues that the issue which the Board must address is: Is there a pattern? For that pattern, counsel argues that one can look to the long history of intimidation characteristic of organizing campaigns in Vietnam itself, as set out in point #3 of the stipulation of facts. Counsel points further to the fact that at least two incidents of intimidation have come to light, and to the stipulated fact (#5) that incidents of this nature may not be communicated beyond the Vietnamese community itself, and asks the question: How many more incidents are there that we do not know about? In summary, counsel argues that it is simply contrary to common sense for the Board to treat refugees from this war-torn nation in the same way as any other employee in Canada. Counsel submits therefore that the only reliable means of testing the wishes of employees in a bargaining unit with so high a content of Vietnamese refugees is a secret-ballot vote. The respondent asks that a quick vote be taken of all employees in the unit, and undertakes not to campaign in the election. The respondent asks only that the Board make it clear that employees have a choice whether to vote for or against the trade union, and that no one will ever be permitted to know which way any individual employee has voted.
Counsel for the objecting employees takes a somewhat different tack. He argues that the Board's Form 6 "Notice to Employees~~ is misleading, in that it does not make clear to employees that the only evidence of opposition to certification which the Board considers relevant is a statement in opposition signed by employees who previously signed cards in the applicant. Nor, in counsel's view, did the interval between posting of the form and the terminal date allow sufficient opportunity for objecting employees to figure out what the form meant, retain competent counsel, and collect written evidence of opposition for filing with the Board by the terminal date prescribed. Counsel therefore argues not for a quick vote, but for a vote delayed long enough for objecting employees to campaign effectively against the certification of the applicant. In further support of his request for a vote, counsel argues that the present case is unique, in that the Board normally does not have before it the stipulated fact that employees who signed the statement in opposition actually were seeking a representation vote from the Board.
The applicant in response to the other parties' submissions points out that no objection was taken at any point in the proceedings to the Form 6 posting, or the fixing
of the terminal date, all of which was done wholly in accordance with the Board's rules and practice. Counsel points out that there is not one iota of evidence of misrepresentation, intimidation or coercion in connection with the securing of membership evidence in this case. The evidence, rather, related to a time period subsequent to the gathering of the applicant's membership cards, and is not even alleged to have involved persons who performed a collecting function in the applicant's organizing campaign. With respect to the existence of a "pattern", the applicant points out that only three employees have given evidence that they were in any way the victims of attempted intimidation, out of a bargaining unit of 342. While the applicant vigorously denounced and abhorred the existence of any such conduct or threats, it argued that their magnitude in the present case fell markedly short of the "widespread threats" contemplated by the Board in Alderbrook Industries, cited above ([19811 OLRB Rep. Oct. 1331). Counsel argued that it is wholly improper for the Board to make assumptions as to what "might" have happened based on a particular class of employees, as the Board itself made clear in its decision in Dylex Limited, [1977] OLRB Rep. July 357. To attempt to make such generalized distinctions as is urged in this case would engage the Board in a never-ending comparison of different societies around the world, depending upon the makeup of the particular bargaining unit in question. Counsel pointed out that it had demonstrated membership support for some 72% of the bargaining unit of 342 employees, which is itself composed of not more than 118 employees of Vietnamese origin. Finally, counsel pointed to the scheme of the legislation in this province which makes cards, and not representation votes, the starting point as evidence of employee wishes, and cited the recently released decision of the Board in Baltimore Aircoil Interamerican Corporation, [1982] OLRB Rep. Oct. 1387 in support.
- The Board agrees with the arguments put forward by the applicant in this case. The scheme of the Act in place in this province clearly establishes that, as a starting point, evidence of membership in excess of 55% of the bargaining unit will normally entitle an applicant to certification without the additional step of a representation vote. Section 7 provides:
7.—(l) Upon an application for certification, the Board shall ascertain the number of employees in the bargaining unit at the time the application was made and the number of employees in the unit who were members of the trade union at such time as is determined under clause 103(2)(j).
(2) If the Board is satisfied that not less than 45 per cent and not more than 55 per cent of the employees in the bargaining unit are members of the trade union, the Board shall, and if the Board is satisfied that more than 55 per cent of such employees are members of the trade union, the Board may direct that a representation vote be taken.
(3) If on the taking of a representation vote more than 50 per cent of the ballots cast are cast in favour of the trade union, and in other cases, if the Board is satisfied that more than 55 per cent of the employees in the bargaining unit are members of the trade union, the Board shall certify the trade union as the bargaining agent of the employees in the bargaining unit.
The discretion entrusted to the Board under section 7(2) is an important safeguard for employee wishes; but the Board has always made it clear that it will be exercised only for compelling reasons, and on the basis of cogent evidence. See, e.g. Cleveland-Cae Metal Abrasive Limited, [1979] OLRB Rep. Feb. 81; General Motors of Canada, [1980] OLRB Rep. Oct. 1437; and compare, Thames Steel, [1981] OLRB Rep. April 545. Most recently in Baltimore Aircoil, supra, the Board reflected on its normal response to the presence of both a voluntary petition and counter-petition, and at paragraph 49 wrote:
... The apparent rapid changing of minds on the part of three employees can be explained as a protective response in signing the petition (and, thus, the voluntary execution of the counter-petition when that document was made available to them), as a product of peer pressure (a condition which afflicts all campaigning), or as a product of true confusion or indecisiveness. Given the concern of the statute for confidentiality, it is seldom possible to ascertain if the last factor exists and is the principal cause for the petition and counter-petition. To order, as a general matter, a representation vote in such circumstances would give undue weight to this possibility and ignore the emphasis the statute places on membership cards as the method of determining employee wishes where this support is in excess of fifty-five per cent.
(emphasis added)
On the other hand, it is not true, as the objectors and respondent argued, that the Board will exercise its discretion only on the ground that a sufficient number of employees who had signed membership cards voluntarily signify in writing that they have changed their mind. The Board's discretion under section 7(2) is an unfettered one, and the Board has never placed arbitrary limits on the type of relevant evidence which it will be disposed to consider. See, e.g. Primo Importing and Distributing Co. Ltd., [1981] OLRB Rep. July 953, at paragraph 16. It has, for example, on a number of occasions, resorted to the confirmatory evidence of a representation vote even in the case of wholly isolated incidents of intimidation or other impropriety, so long as the conduct complained of involved someone connected to the membership drive in a significant way, and related to the manner in which cards were sought to be obtained. See PRC Chemicals, [1980] OLRB Rep. Dec. 1805; Crock and Block Restaurants, [1980] OLRB Rep. April 424, and the cases cited therein.
The type of conduct complained of here is clearly objectionable, as the Board observed in Alderbrook Industries, supra. And as the Board also observed in Alderbrook Industries, while no basis would exist on which to "punish" an applicant trade union for acts that are not its own, the inability to control one's supporters could conceivably lead to conditions in which the Board simply could not repose full confidence in signed cards as the only evidence of employee wishes. But the Board must have hard evidence to cause it to arrive at that conclusion.
What does the Board have before it in the present case? One employee received serious threats by telephone discouraging him from continuing to oppose the union, and a message was scrawled upon a washroom wall disparaging that individual's relationship to the company. A second employee was interrogated anonymously as to his disclosures to the company, and then threatened as well. And a third employee was warned to beware of the Mafia, by a fellow employee appearing to be a strenuous supporter of the union. Does this disclose a "pattern" — and in particular, a pattern from which the Board can draw inferences on the manner in which membership evidence was obtained? The Board finds that it does not.
Firstly, the very limited number of incidents alone, in a bargaining unit this size, speaks against the finding of a pattern. Secondly, none of the incidents involve the collection of membership evidence, or even persons directly involved in the collection of membership evidence. The "threat" from another employee to Mr. Gracanin about the various "Mafia" appears to be one to which a reasonable employee could attach the appropriate little weight, and Mr. Gracanin appears to have done so in his response to Mr. Djuric. As far as the Vietnamese community is concerned, only two incidents, neither relating to the collection of cards, have come to light. There is simply no probative evidence before the Board on which to speculate what other incidents "might" have occurred, about which we have no knowledge. To do so solely on the basis of general characteristics attributed to a particular society by expert evidence would, apart from anything else, necessarily lead the Board to conduct similar analyses of all societies outside of Canada, or perhaps even outside the industrial norm of this province, whenever the origin of particular employees was placed in issue. One cannot simply state at the outset, as the respondent has suggested, that this is a problem which could arise only in connection with the unique and unfortunate history which is Vietnam's. Indeed, one can, with only a moment's reflection, call to mind any number of countries in the world for whom violence and intimidation have formed an all too prominent part of their recent past. The Board would presumably not be entitled to decide which other societies fall within the same "class" as Vietnam without permitting the same kind of inquiry as was urged upon the Board in the present case. And in each case the Board would be required to form its conclusions in a most dangerous and unsatisfactory way, not on the basis of the first-hand knowledge and experience in labour relations for which its members are appointed, but on the advice and opinions (conceivably competing) of expert witnesses on questions of cultural characteristics in foreign places.
With respect to the stipulated cultural facts, the conclusion which the respondent asks the Board to reach with respect to the society of Vietnam would cause the Board to effectively amend the Labour Relations Act of the province to provide for no possibility of certification without a vote in cases where a particular class of employees is involved (e.g. Vietnamese), but rather to call for a vote in every such case, because of cultural characteristics. The two isolated incidents of threats, unrelated to the collection of cards, present in this case are insufficient to allay what the Board sees would be the real effect of the respondent's argument; the Board, in the final analysis, would be ordering a vote only because the employees in question are Vietnamese. Nor is it at all clear how significant a number of "foreign" employees, be they Vietnamese or otherwise, are to be deemed sufficient to cause the Board to engage in the kind of inquiry put forward by the respondent. Here the Vietnamese immigrants constitute about a third of the work force. Would the same inquiry have to be engaged in by the Board if the foreign component were only, say, 5 per cent, but the applicant's membership component were closer to the level of 55 per cent?
All of these considerations are adverted not to demonstrate how difficult a task the respondent would be urging upon the Board (for difficulty alone would be no basis for refusing to exercise our discretion), but rather to point out how arbitrary, speculative and devoid of probative value would be that kind of inquiry. In that sense, the issue is not wholly unlike that in the Dylex case cited by the applicant ([1977] OLRB Rep. July 357), where the Board observed:
It is apparent from the evidence that many of the employees in the bargaining unit are fairly recent immigrants to Canada who possess only minimal knowledge of the English language. During the course of the hearing counsel for the applicant called as a witness Mr. Franco Savoia. Mr. Savoia, who is a native of Italy, holds degrees in psychology and theology and has for some nine years been involved in the formation and operation of various programs aimed at providing assistance to ethnic communities in the Toronto area. Mr. Savoia is currently the regional director of the Young Men's Christian Association in West Toronto. It was the contention of the applicant's counsel that Mr. Savoia should be allowed to testify as an expert witness so as to permit him to give his opinion as to how immigrants might be affected by certain pieces of literature distributed by the respondent prior to the taking of the representation vote. The Board, however, declined to allow Mr. Savoia to give opinion evidence in this regard on the grounds that the subject matter was not a proper one for expert testimony. It was the Board's ruling that although the Board itself might be required to draw certain conclusions as to how employees in the bargaining unit would likely be affected by the respondent's pre-vote propaganda, those conclusions would be based only upon the objectives evidence before it and upon the Board's own experience in such matters. (In this regard see Adam v. Campbell, [1950] DLR 449 wherein Cartwright J. in delivering the majority judgment of the Supreme Court of Canada adopted (at page 458) a statement from the 8th edition of "Phipson on Evidence" to the effect that neither experts nor ordinary witnesses may give their opinion on the manner in which persons would probably act or be influenced.)
Related to the question of the admissibility of expert testimony concerning the possible influence of the respondent's pre-vote propaganda on immigrant employees was the applicant's strongly argued contention that in determining whether or not the respondent used undue influence contrary to section 56 of the Act, and as to whether or not the applicant should be certified pursuant to section 7a, the Board should take into account the fact that many of the bargaining unit's employees are immigrants to Canada. It was counsel's contention that such persons were more likely to have been influenced by the respondent's propaganda than would non-immigrant employees. This is a proposition with which we are unable to agree. The Board is called upon with ever increasing frequency to concern itself with bargaining units comprised to a greater or lesser extent of fairly recent immigrants to Canada and it is not uncommon to have such persons testify for one reason or another before the Board. Our experience in this regard has taught us that employees who are immigrants are not, only because they are immigrants, somehow more easily influenced or more incapable of making their own decisions than are other employees. Some individuals appear to be possessed of greater fortitude than do others. Similarly there are some individuals who by their very nature may be easily influenced and who tend to perceive threats in circumstances where most others would not. However, these are reactions which appear to be based on individual temperament and character rather than on any general characteristics of language or former country of residence. This being the case we are of the view that no inferences can be drawn as to the possible susceptibility to influence of employees in the bargaining unit on the grounds only that many of them are immigrants from abroad.
Here the evidence of specific acts of intimidation is very much limited, and there is no evidence whatever of wrongdoing in connection with the collection of any membership cards. Indeed, what evidence there is was elicited from the respondent's witness, Mr. Tran, and is directly to the contrary. To ignore the applicant's 72 per cent membership strength and now order a vote on the basis of surmise as to what else might have happened, or of some generally-stated characteristics of one segment of society, is just not fair.
As to the arguments of the objectors, the Board notes, as did the applicant, that the posting of the "Notice to Employees" and fixing of a terminal date were done in accordance with the Board's rules and practice, and that no objection in that regard was made by any employees at the outset. The form itself advises employees of their right to file any objection to the application, and cannot be said to be misleading in this regard. It remains the duty of the Board, of course, to determine the relevance and effect of any objection so filed. To the extent that the Notice contemplates the collection of signatures in opposition to the application, the objectors did that, and some of the signatures they obtained corresponded with individuals who previously had evidenced a desire to be represented by the trade union. As it turns out, however, there were not enough of such employees changing their mind to overcome the initial success of the applicant's campaign. On the evidence before it, the Board does not conclude anything other than that the objectors are on the short end of the count with respect to employee wishes.
Nor does the agreed-upon stipulation that the petitioning employees really wanted a vote alter the situation. The Board has actually been faced with such submissions on the face of petitions themselves, and noted that in those particular cases, the submissions did not amount to a "statement in opposition" to the union. For example, in Crown Cork & Seal Company Ltd., [1977] OLRB Rep. Sept. 606, the Board observed:
- It cannot be inferred from the preamble that the employees who placed their signature under it categorically oppose certification of the trade union. ... Seen in that light the petition is essentially an expression of disagreement with certification procedures under the existing legislation. It is not a categorical statement of opposition to the certification of the applicant union.
See also The Diebold Company of Canada, [1976] OLRB Rep. May 237. Whether the petition is viewed as categorical opposition to the application, or simply a request for a vote, the fact remains that it is only the expression of a minority in this case. As the Board noted earlier:
..... The majority principle is a cornerstone of the labour relations system which operates in this jurisdiction. The Board confers bargaining rights covering all of the employees in the bargaining unit found appropriate for collective bargaining when satisfied that the applicant trade union represents a majority of the employees. Having regard to the principle of majoritarianism as rooted in the Act, it is the [normal] practice of the Board to certify without a vote when satisfied that membership evidence within the meaning of the Act has been submitted on behalf of more than fifty-five per cent of the employees in the unit." Cleveland-Cae Metal Abrasive Limited, [1979] OLRB Rep. Feb. 81.
Even if all of the cards signed by employees who allowed their signatures to stand on the petition, or those collected by the employee found to have issued a receipt in advance of payment, were discounted, the applicant would still have before the Board unequivocal evidence of membership support on behalf of nearly 70 per cent of the bargaining unit. The Board has nothing of probative value before it which would cause it to deny the applicant a certificate.
Based on all of the material before it, the Board is satisfied 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 29, 1982, the terminal date fixed for this application and the date which the Board determines, under section 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.
A certificate will issue to the applicant.