United Food and Commercial Workers' International Union, Local 175 v. Canadian Pizza Co. Ltd., 1983 CanLII 872

United Food and Commercial Workers' International Union, Local 175 v. Canadian Pizza Co. Ltd.

[1983] OLRB Rep. June 872

0197-83-R; 0198-83-U United Food and Commercial Workers' International Union, Local 175, Applicant/Complainant, v. Canadian Pizza Co. Ltd., Respondent

BEFORE: Kevin M. Burkett, Alternate Chairman and Board Membeos W. H. Wightman and B. Lee.

APPEARANCES: Harold F Caley, Dave Watson Frank Kelly and John Hurley for the applicant complainant; C. M. McKeown, Q.C. and Annelli Jalvila for the respondent.

DECISION OF KEVIN M. BURKETT, VICE-CHAIRMAN, AND BOARD MEMBER B. LEE; June 15, 1983

1. This is an application for certification in which section 8 of the Act is relied upon and in addition a complaint under section 89 of the Act alleging violation of sections 3, 64, 66 and 70 of the Act.

2. The Board directs that the above application/complaint be and the same are hereby consolidated.

3. The parties were in dispute at the outset as to who should proceed first. The union, citing Dom tar Packaging, 11982] OLRB Rep. July 993, argued that the respondent should be directed to proceed first as it would in any complaint alleging a breach of the Labour Relations Act which triggers the reverse onus provisions of section 89(5) of the Act. The applicant union argues that where the primary issue in a section 8 application is the establishment of the breach of the Act, where the question as to whether the true wishes of the employees can be ascertained relates directly to the seriousness of that breach and where the evidence with respect to membership support is already before the Board in the form of membership documents, the Board should require the respondent, as the party bearing the onus with respect to the alleged violation of the Act, to proceed first. The respondent employer takes the position that where there is mixed onus, as on this case, and where the applicant has gained an expedited hearing with respect to the alleged violations of the Act by proceeding under section 8, it should be required to proceed first.

4. We state at the outset that regardless of who proceeds first the legal burden with respect to the different issues before us does not change. We are concerned here with a procedural matter. The Board has consistently required the applicant trade union to proceed first in an application for certification in which section 8 of the Act is relied upon. The Board has done so regardless of whether or not the application for certification is consolidated with a section 89 complaint and regardless of the substance of the section 89 complaint. This is the first time that the Board's practice in this regard has been challenged. As noted, the applicant relies on the Board's decision in Domtar, supra in making its challenge. The Domtar decision post dates the development of the Board's practice with respect to the order of proceeding in a section 8 complaint.

5. In the Domtar decision, supra, a case which deals with allegations involving the reverse onus and allegations which do not trigger the reverse onus under section 89(5), the Board took the position that it has a discretion as to who should proceed first and that it should exercise its discretion on the basis of its assessment as to what constitutes the essence of the section 89 complaint. In that case the Board determined that the complaint centered on alleged misconduct which triggered the reverse onus provisions of section 89(5) of the Act and, as is the Board's practice in complaints where the reverse onus applies, ordered the employer to proceed. The Board did so notwithstanding the fact that it had almost invariably ordered the union to proceed first in this type of case up to that time.

6. Just as the Board has a discretion with respect to who proceeds first in a mixed onus unfair labour practice 'complaint so also the Board has a discretion to determine who proceeds first in a consolidation of a section 89 complaint alleging discrimination with respect to employment, opportunity for employment or conditions of employment which triggers the reverse onus provisions of section 89(5), and an application for certification in which the Act is relied upon. In our view, there is no sound basis upon which to distinguish the Domtar decision, supra in its application to a section 8 complaint which has been consolidated with a section 89 complaint triggering the reverse onus provisions of section 89(5) of the Act. In these circumstances, the bulk of the evidence heard by the Board will be in respect of employer conduct which is alleged to be contrary to the Act as to the employment, opportunity for employment or conditions of employment of the employees affected. The employer bears the legal burden of establishing that he did not act contrary to the Act when this type of allegation is made. In addition the facts as to why the employer acted as he did lie peculiarly within the knowledge of the employer. It is to be observed as well that in a number of section 8 cases which have been consolidated with section 89 complaints triggering the reverse onus, where the union has proceeded first, the Board has found itself in the position of having to make some very difficult determinations as to the proper scope of reply evidence.

7. In this case the applicant union alleges that 11 employees of the respondent have been laid off because of their support for it. In addition, the applicant claims that a number of threats with respect to the continued employment of the trade union supporters have been made. Having regard to the nature of the section 89 complaint the employer bears the legal burden under section 89(5) of establishing that he did not act contrary to the Act. The bulk of the evidence in this case will be in respect of the section 89 allegations and these allegations are the central focus of this matter. In these circumstances, we have been convinced that we should direct the employer to proceed first.

8. Having regard to the foregoing, we hereby direct the respondent employer to proceed first in this matter.

DECISION OF BOARD MEMBER W. H. WIGHTMAN;

1. While recognizing that the long-standing practice of requiring the applicant to proceed first can result in "difficult determinations (for the Board) as to the proper scope of evidence", I believe this prospect was given full consideration when the practice was instituted and that the implications of certifying the union under conditions where it had not demonstrated majority support outweighed other considerations.

2. The fact that the practice may result in difficult determinations for the Board should not be determinative in my view. The legislative decision to reverse the onus in section 89(5) cases, and in so doing to make an exception to the natural justice concept of requiring the party who alleges to prove his case, must have been taken with some trepidation and in the expectation that the administrative tribunal would be watchful to ensure that the original intent was not broadened.

3. The avoidance of difficult determinations for the Board does not strike me as a worthy basis for broadening the reverse onus provision.

4. This new departure from Board practice is a clear step towards making it tactically advantageous for the union to link all manner of filings with a section 89(5) complaint on the chance that an exploitable weakness, real or inadvertent, will be revealed by the employer in the course of attempting to prove the negative involved in the Section 89(5) complaint.

5. Not only does this seem to me a denial of natural justice to the employer but, as well, it can become an invitation to fishing expeditions of a specious nature.

6. I would have held to the existing practice and required the union to proceed.