Retail, Wholesale and Department Store Union, AFL:CIO:CLC: v. T. Eaton Company Limited, 1984 CanLII 1047

[1984] OLRB Rep. July 1015

0159-84-R Retail, Wholesale and Department Store Union, AFL:CIO:CLC:, Applicant, v. T. Eaton Company Limited, Respondent, v. Group of Employees, Objectors

BEFORE: Robert D. Howe, Acting Chairman and Board Members W. G. Donnelly and S. Cooke.

DECISION OF ROBERT D. HOWE, ACTING CHAIRMAN AND BOARD MEMBER S. COOKE; July 6, 1984

1. In a decision dated May 4, 1984 in respect of this application for certification, the Board wrote as follows:

1. This is an application for certification in which representatives of the applicant and the respondent met with a Board Officer prior to the hearing scheduled in this matter, reached agreement on all matters in dispute between them, and agreed to waive their right to a formal hearing in the matter.

2. No one appeared on behalf of the objectors at the time set for the commencement of the hearing or within one half-hour thereafter. Therefore, the Board, pursuant to section 73(5) of its Rules of Procedure, will dispose of this application without considering the statements of desire filed by the objectors.

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

4. Having regard to the agreement of the parties, the Board further finds that the following constitute units of employees of the respondent appropriate for collective bargaining:

All employees of the respondent at its retail store at 3003 Danforth Avenue, Metropolitan Toronto, save and except Sales Managers, Mer­chandise Presentation Managers, Food Service Managers and Foremen, persons above the rank of Sales Manager, Merchandise Presentation Manager, Food Service Manager or Foreman, office and clerical staff, employees of Eaton Travel Ltd., management trainees, Personnel Su­pervisor, Security Staff, Medical Services Nurse, persons regularly employed for not more that twenty-four (24) hours per week, students employed during the school vacation period and students employed on a co-operative programme with a school, college or university ("bargain­ing unit #1");

all employees of the respondent regularly employed for not more than twenty-four (24) hours per week, and students employed during the school vacation period, at the respondent's retail store at 3003 Danforth Avenue, Metropolitan Toronto, save and except Sales Managers, Mer­chandise Presentation Managers, Food Service Managers and Foremen, persons above the rank of Sales Manager, Merchandise Presentation Manager, Food Service Manager or Foremen, office and clerical staff, employees of Eaton Travel Ltd., management trainees, Personnel Su­pervisor, Security Staff, Medical Services Nurse and students employed on a co-operative programme with a school, college or university ("bar­gaining unit #2").

5. For the purpose of clarity the Board notes the agreement of the parties that employees of the respondent headquartered or working out of other locations who work in 3003 Danforth Avenue, Metropolitan Toronto, are not within bargaining unit #1 or bargaining unit #2.

6. The Board is satisfied on the basis of all the material before it that more than fifty-five per cent of the employees of the respondent in each of bargaining units #1 and #2 at the time the application was made were members of the applicant on April 26, 1984, 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.

7. Certificates will issue to the applicant in respect of bargaining units #1 and #2.

2. By the following letter dated May 11, 1984, F. G. Hamilton of counsel for the respondent requested the Board to review and reconsider that decision:

It has come to our attention during other Labour Relations Board proceed­ings today, that the name of Rick Watson, Senior Displayperson, was not on the list of employees filed as Schedule "A" setting out the names of employees in the proposed full-time bargaining unit. It was confirmed today that Mr. Watson was understood by the Applicant and the Labour Relations Board to be included since both in the clarity note to the decision, which we have not yet seen, and in the records of the Labour Relations Board Officer, there is no reference to Mr. Watson's exclusion. In such circum­stances, Mr. Watson's name should be added to Schedule "A" and the Union membership evidence reassessed. It would appear that the Union has less than 55 percent of eligible employees and that a vote should be directed to ascertain the wishes of employees. We respectfully ask the Board to reconsider and vary its decision in this matter.

Alternatively, it has come to the attention of the Respondent employer that at least one or more of its employees who notified the Board of his or her instructions to the Union of withdrawal from membership, was not notified by the Board of any requirement of attendance at the Labour Relations Board Hearing on Friday, May 4th. We understand the employees' position in this regard has been communicated to the Board and ask for a copy of same and the Board's reply.

The Respondent employer was informed at the meeting conducted by the Officer that the status of one membership card was critical to the member­ship evidence of the Union and the decision of the Board since the withdraw­al from membership reduced the Union percentage to less than 55 percent in the full-time bargaining unit and would have required that a vote be conducted.

We have been instructed to make the following submissions to the Board for its review and reconsideration of its decision:

If the Board did not intend to give effect to such withdrawals from member­ship unless such persons attended the Hearing, the Board was, in our view, obliged to advise employees to this effect. By failing to do so, the Board offended the principles of natural justice which have been recognized by the Board and the Courts in interpreting the statute. [A passage quoted from pages 468 and 469 of the Divisional Court judgment in Re Fisher et al, and Hotels, Clubs, Restaurants, Tavern Employees' Union, Local 261 et al. (1980), 1980 CanLII 1882 (ON HCJ), 28 O.R. (2d) 462, has been omitted.]

Consistent with the principles of this and other precedents, the employees who notified the Board of their withdrawals from the Union were entitled to reach the understanding that nothing more was required of them regard­ing the withdrawals. The "Notice to Employees" (Form 6) refers to the steps to be followed by "any employee. . .desiring to make representations and that he or she may attend and be heard." However, the employees' with­drawals from membership would not be understood to fall within the Board Notice which refers to persons desiring to make representations. From the content of the enclosure, that was not the employees' intent. It would appear clear that they had already instructed the Union that their application for membership cards be withdrawn and they were not "desiring to make representations" to the Board.

[A further passage quoted from the Fisher case has also been omitted.]

Separate and apart from the addition of one employee to Schedule "A", referred to above and the entitlement to a vote on that ground alone, the record of the proceeding shows that the Application for Certification of a full-time employees unit was granted on the basis of there being one card in excess of the requisite 55 percent under section 7 of the Labour Relations Act. The Board apparently failed to take into account withdrawals from membership. All that appears to be contemplated by the Union's own constitution even in the case of a person fully accepted into membership is written notice of withdrawal (Article VIII, Section 12) provided there are no arrears of dues. This Union has already publicly waived any monetary payments from members prior to a collective agreement being signed.

Therefore, the Respondent respectfully submits that the Board should reconsider its decision, revoke any order certifying the Applicant Union and, to remedy the grave injustice done to such employees, direct that a secret ballot vote be conducted to determine the true wishes of all employees in the bargaining unit.

All of which is respectfully submitted.

3. James K. A. Hayes of counsel for the applicant responded as follows to those submissions, in a letter dated May 17, 1984:

We are now retained in this matter by the applicant trade union.

We refer to Mr. Hamilton's letter dated May 11th, 1984, which the union received on May 16th, 1984. There are two objections raised by the employer to which the union replies as follows:

1. Mr. R. Watson

It need hardly be stated that, if Mr. Watson's name did not appear on Schedule "A" this was so because the employer failed to list him. To say the least it is utterly inappropriate for the employer to rely upon its own failure and ask for reconsideration after the "count" in this case had been announced, a formal hearing waived, and when the certificate was about to be released.

On frequent occasions in the past the Board has refused to consider an alteration of position by a party after the "count" has [been] announced, in order to provide some finality to proceedings and to prevent obvious attempts by either party to gerrymander. We refer you to Santa Maria Foods [1981] O.L.R.B. Rep. November 1618 and cases cited therein.

In any event, we are advised that the question of Mr. Watson was raised at the meeting with the Labour Relations Officer. I am instructed that Mr. Dunsmore, counsel for the employer on that occasion, referred to Mr. Watson as performing the functions of a "display manager". While there was no real discussion about this matter, the union consented to the exclusion on the basis that Section l(3)(b) of the Act was applicable. That remains the understanding of the union.

For both of the reasons outlined above therefore, we would submit that there is no basis for re-opening this matter.

2. Statements of Desire

We have not been informed that any employee has complained that he or she has been aggrieved in any way or denied any common law or statutory rights in the processing of the instant application for certification by the Board. It is the position of the trade union that this jus tertii insofar as it relates to an alleged denial of natural justice, cannot be maintained by the employer. See Transair (1976) 1976 CanLII 170 (SCC), 67 D.L.R. (3d) 421 (S.C.C.) at p. 438; Alderbook Industries, [1981] O.L.R.B. Rep. October 1331.

In any event it is quite clear that the Board in this case has acted in a manner entirely consistent with its practice which has been established for many years. We can do no better than to refer the Board to its decision in DI-AL Construction Ltd. [1982] OLRB Rep. December 1822 at p. 1826 ...... [The passage quoted from that case has been omitted.]

It is noteworthy that the decisions of the Board in Baltimore Aircoil, supra and DI-AL Construction, supra followed the decision of the Divisional Court in Re Fisher relied upon the employer.

It is our submission that this established practice of the Board is entirely consistent with the rules of natural justice. It is difficult to see how the instructions contained in paragraphs 6 and 7 of Form 6 could be more clear. [The quotation of those two paragraphs has been omitted.]

The simple fact is that no persons appeared at the scheduled hearing of this application to support the documents filed before the terminal date despite the express admonitions and warnings contained in the posted Form 6.

We note that hundreds of persons every year do appear before the Board to give evidence and make representations with respect to statements of desire. In this case there is not even an allegation before the Board made by persons purportedly affected that they had not been given adequate notice.

For all of the foregoing reasons we respectfully submit that the request for reconsideration be denied.

4. By letter dated May 30, 1984, Mr. Hamilton replied to those submissions as follows:

Receipt is acknowledged of your letter of May 23rd enclosing a letter from the solicitors for the Applicant in this matter.

As set out in our letter to the Board dated May 11th, during a meeting conducted by Labour Board Officer C. Wheatley, on that day in certifica­tion proceedings involving the same parties regarding the Respondent's store at 2300 Yonge Street (Board File No. 0235-84-R), the status of Janice Rigbey, Senior Displayperson was raised. Reference was made to this proceeding involving the Shoppers' World Store conducted by Labour Board Officer A. Vigar on May 4th. Mr. Buchanan, the Applicant's repre­sentative denied having ever agreed to the exclusion from the bargaining unit of Rick Watson, Senior Displayperson. As a result, we requested Mr. Wheatley to review the Board record in this proceeding. After having made such a review, Mr. Wheatley advised that there is no reference to any agreement to exclude Mr. Watson from the bargaining unit nor is there any such reference to exclusion in the clarity note.

Union counsel indicated in his letter to the Board that the Union "con­sented" to the exclusion although "there was no real discussion about his matter". Such representation is in contradiction to the statement of Mr. Buchanan made on May 11th that Union had not agreed to Mr. Watson's exclusion.

The Board decision involving Santa Maria Foods concerned an alteration of a position taken regarding a bargaining unit description. Of far greater import to the facts at hand is the Board decision concerning BASF Canada Limited Inc., (Board File No. 0957-81 -R) dated September 18, 1981, a copy of which is enclosed. This case concerned the addition of names of employees left off the employees' list. Consistent with that decision, the Respondent does not seek to amend the bargaining unit description agreed to but, rather, to ensure that a proper determination be made of the number of employees within the bargaining unit.

Further, the previous Board decision referred to events at Hearings before the Board, rather than a pre-hearing Board Officer procedure which is less formal and structured. In these circumstances, whether through misunder­standing or inadvertence between the parties, the record does not, we are informed, set out an agreement to exclude Mr. Watson. Senior Display persons have in previous Board proceedings at other stores been included in the bargaining units. We submit, therefore, that Mr. Watson's name should be added to the schedule of employees and the Union's membership evidence be reassessed.

In connection with the second item raised by the Applicant as to a complaint by an employee, it continues to be our understanding that the employee's position in this regard has been communicated to the Board and we renew our request for a copy thereof and of the Board's reply.

In connection with the reference to the contents of Form 6 and the need for clear advice and information to employees, we rely upon our previous reference to the principles of natural justice set out in the Divisional Court decision in re Fisher et al, and Hotels, Clubs, Restaurants, Tavern Employ­ees' Union, Local 261 et al., 28 Ontario Reports, (2d) 462.

The Respondent, therefore, asks for a reconsideration by the Board of its decision and asks that there be a direction of a secret ballot vote to determine the true wishes of the employees in the bargaining unit.

5. A number of copies of the Board's (Form 6) Notice to Employees of Application for Certification and of Hearing (the "green sheet") were posted by the respondent at its premises affected by this application, in accordance with the requirements of section 77 of the Board's Rules of Procedure. That form, which is prescribed by Regulation 546 under the Labour Relations Act, notified the respondent's employees of the following information:

1. TAKE NOTICE that the applicant, on April 13, 1984, made an applica­tion to the Ontario Labour Relations Board for certification as bargaining agent of employees of T. Eaton Company Limited in the following bargaining unit claimed by the applicant to be appropriate: "All employees of the respondent at its retail store at 3003 Danforth Avenue, Toronto, save and except sales managers, merchandise presentation managers, food services managers, foremen, persons above the rank of sales manager, merchandise presentation manager, food services manager and foremen, office and cleri­cal staff, employees at Eaton Travel Ltd., management trainees, personnel supervisors, security staff and medical services nurse.

2. The terminal date fixed for this application as directed by the Board is the 26th day of April, 1984.

3. Any employee or group of employees affected by the application and desiring to make representations to the Board in opposition to this applica­tion must send to the Board a statement in writing of such desire, which shall,

(a) contain the return mailing address of the employee or representative of a group of employees;

(b) contain the name of the employer concerned; and

(c) be signed by the employee or each member of a group of employees.

5. The statement of desire must be,

(a) received by the Board not later than the terminal date shown in paragraph 3; or

(b) if it is mailed by registered mail, addressed to the Board at its office, 400 University Ave., Toronto, Ontario, M7A 1V4, mailed not later than the terminal date shown in paragraph 3.

6. A statement of desire that does not comply with paragraphs 4 and 5 will not be accepted by the Board.

7. Any employee, or group of employees, who has informed the Board in writing of his or their desire in accordance with paragraphs 4 and 5 may attend and be heard at the hearing in person or by a representative. Any employee or representative who appears at the hearing will be required to testify or produce a witness or witnesses who will be able to testify from his or their personal knowledge and observation, as to (a) the circumstances concerning the origination of the material filed, and (b) the manner in which each of the signatures was obtained.

THE BOARD MAY DISPOSE OF THE APPLICATION WITHOUT FUR THER NOTICE AND WITHOUT CONSIDERING THE STATE­MENT OF DESIRE OF ANY PERSON WHO FAILS TO ATTEND.*

8. No oral evidence of membership in a trade union, or of objection by employees to certification of the applicant will be accepted by the Board except to identify and substantiate such written evidence.

9. AND FURTHER TAKE NOTICE that the hearing of the application by the Board will take place at the Board Room, 400 University Ave., Toronto, Ontario, on Friday the 4th day of May 1984, at 9:30 o'clock in the forenoon. EDT.

10. THE PURPOSE OF THE HEARING is to hear the evidence and representations of the parties with respect to all matters arising out of and incidental to, the application referred to in paragraph 1.

11. If you do not attend at the hearing, the Board may proceed in your absence and you will not be entitled to any further notice in the proceedings. DATED this 15th day of April, 1984.

D.K. Aynsley

Registrar

Ontario Labour Relations Board

NOTE: Any communication with respect to this application should be addressed to:

The Registrar,

Ontario Labour Relations Board,

400 University Ave.

Toronto, Ontario

M7A 1V4

*EXPLANATORY NOTE: Where employees fail to attend in person or by a representative or to testify or produce witnesses to testify as provided in paragraph 7 above, the Board normally does not accept the statement of desire as casting doubt on the evidence of membership filed by the applicant.

[The underlined portions of the notice appear in bold faced type on the Board's printed Form 6.]

6. The information concerning statements of desire that is contained in the "green sheet" serves to notify employees of the requirements of section 73 of the Board's Rules of Procedure, which provides as follows:

73. (1) Evidence of membership in a trade union or of objection by employees to certification of a trade union or of signification by employees that they no longer wish to be represented by a trade union shall not be accepted by the Board on an application for certification or for a declaration terminating bargaining rights unless the evidence is in writing, signed by the employee or each member of a group of employees, as the case may be, and,

(a) is accompanied by,

(i) the return mailing address of the person who files the evidence, objection or signification, and

(ii) the name of the employer; and

(b) is filed not later than the terminal date for the application.

(2) No oral evidence of membership in a trade union or of objection by employees to certification of a trade union or of signification by employees that they no longer wish to be represented by a trade union shall be accepted by the Board except to identify and substantiate the written evidence referred to in subsection (1).

(3) Any employee or group of employees affected by an application for certification or by a declaration of termination of bargaining rights and desiring to make representations to the Board in opposition to the application may file a statement in writing of such desire in the form prescribed by subsection (1) not later than the terminal date for the application, but this subsection does not apply where the Board grants a request that a pre­hearing representation vote be taken.

(4) An employee or group of employees who has filed a statement of desire in the form and manner required by this section may appear and be heard at the hearing or, in the case of an application to which sections 87 and 99 apply, at any hearing directed by the Board, in person or by a representative.

(5) The Board may dispose of the application without considering the statement of desire of any employee who fails to appear in person or by a representative and adduce evidence that includes testimony in the personal knowledge and observation of the witness as to,

(a) the circumstances concerning the origination of the statement of desire; and

(b) the manner in which each signature on the statement of desire was obtained.

7. Two persons purporting to be employees of the respondent availed themselves of the opportunity provided by the "green sheet" by sending to the Board's Registrar duplicate originals of letters apparently sent to an official of the applicant trade union. One of those letters reads as follows:

T. Eaton Co. Ltd.

3003 Danforth Ave.

Toronto, Ont.

26.04.84

Dear [named union official]:

I have decided that I no longer wish to be a member of Retail Wholesale & Department Store Union Local 414 AFL-CIO-CLC.

Therefore this letter is to instruct you to remove my signed union card from

your files.

Yours sincerely,

[signature of employee]

c.c. Ministry of Labour

The wording of the other letter is identical in all material respects. That the employees in question wished to have their letters treated as statements of desire of the type contemplated by the "green sheet" is evident from the fact that they were mailed to the Board's Registrar by registered mail on April 26, 1984, the terminal date specified in that notice.

8. The Registrar, on behalf of the Board, acknowledged receipt of those letters by writing to each of the two employees as follows:

Receipt is acknowledged of your handwritten statement of desire dated April 25, 1984, signed by yourself a person purporting to be an employee of the respondent in the above matter.

Any doubt which the employees may have had concerning whether the Board would treat their letters as statements of desire of the type contemplated by the Board's "green sheet" would clearly have been eliminated by the wording of the Registrar's letter to each of them.

9. As indicated in paragraph 2 of the Board's decision of May 4, 1984 (as quoted above), no one appeared on behalf of either of the objectors at the time set for the commencement of the hearing of this matter (i.e., 9:30 a.m. on Friday May 4, 1984, as indicated in paragraph 9 of the "green sheet") or within one half-hour thereafter. Accordingly, the Board, pursuant to section 73(5) of its Rules of Procedure, disposed of this application without considering those statements of desire, and proceeded to issue the decision quoted above.

10. On May 10, 1984, one of the two aforementioned employees sent the following letter to the Registrar by registered mail:

Dear Mr. Aynsley:

On April 26th 1984 I sent you a copy of a registered letter that I sent to Local 414 of the Retail, Wholesale and Department Store Union AFL, CIO, CLC telling them that I was resigning from their union.

Local 414 — Shoppers World has now been certified and since I have not heard from them or you, I would like confirmation that my name was not on the list of 18 (eighteen) full-time staff submitted by the union.

That letter was referred to the Board's Senior Solicitor for reply. On May 15, 1984 he wrote to the employee as follows:

Your letter of May 9th, 1984, addressed to the Registrar of the Ontario Labour Relations Board has been referred to my office for reply.

Your letter indicates that you had sent the Board a copy of a letter advising the union that you were resigning from union membership. It also states that you did not receive any reply from the Board or from the union and asks for confirmation that your name "was not on the list of 18 (eighteen) full time staff submitted by the union."

Your letter of April 26th, addressed to [the aforementioned union official] was sent to the Ontario Labour Relations Board's Registrar by registered mail. The Board acknowledged receipt of your letter and addressed it to the return address shown on your April 26th, 1984 letter. For your informa­tion, I am enclosing a photocopy of your letter to the Board and the Board's response to it.

I am not in a position to confirm that your name was not on the membership evidence submitted by the union and relied upon by it to establish entitle­ment to certification. The union was entitled to rely upon the proper documentary membership evidence it had submitted in accordance with the Board's Rules of Procedure. Since there were no employees present at the scheduled Board hearing who objected to the use of any of the membership documents that had been signed by employees and filed with the Board, the Board did not disregard such membership documents.

To this end, I direct your attention to paragraphs 7 and 11 and the explanato­ry note on Form 6, Notice to Employees to Application for Certification which was posted at your employer's premises. I have enclosed a copy of the Form 6 which was posted for your information.

11. On May 28, 1984, the employee in question, who had received from the Registrar a copy of Mr. Hamilton's letter of May 11, 1984, wrote to the Registrar as follows:

I'm writing in response to your letter of May 16, 1984.

This is to confirm that I indeed was not aware of the need for my attendance at the hearing on May 4, 1984.

At the time I wrote the letter requesting my resignation from Union Mem­bership (Retail, Wholesale and Department Store Union — AFL-CIO­CLC), I was under the impression that the letter was all that was required to delete my name from the list of employees signed for Union Membership.

If you require any further information, please do not hesitate to contact me.

12. Section l(1)(l) of the Act defines "member" as follows:

In this Act,

"member", when used with reference to a trade union, includes a person who,

(i) has applied for membership in the trade union, and

(ii) has paid to the trade union on his own behalf an amount of at least $1 in respect of initiation fees or monthly dues of the trade union,

and "membership" has a corresponding meaning....

Neither the provisions of the Act nor the Regulations made pursuant to it provide for or contemplate resignations from membership. Provision is made solely for written objection to certification of a trade union (that is, a "statement of desire") to be filed with the Board in the manner specified in section 73 of the Board's Rules of Procedure, as reflected in the "green sheet". As noted above, section 7 3(5) specifically empowers the Board to dispose of a certifica­tion application without considering the statement of desire of an employee who fails to appear (in person or by a representative) and adduce evidence of the type specified in that subsection. The sound labour relations policy considerations which underlie this aspect of the Act and Regulations, and the Board's practice in administering it, are described in the following passage from Baltimore Aircoil Interamerican Corporation, [19821 OLRB Rep. Oct. 1387:

36. We are satisfied, having regard to the initial evidence of membership filed by the applicant, that more than 55% of the employees in the bargaining unit were members of the applicant trade union as of October 23rd, 1980, the date set by the Board pursuant to section 103(2)(j) for determining evidence of membership in a trade union. However, even where the Board is satisfied that more than 55% of the employees in the bargaining unit are members of an applicant trade union the Board may direct that a representa­tion vote be taken pursuant to section 7(2). It is in the exercise of this discretion that the Board considers "evidence of objection by employees to certification of a trade union or of signification by employees that they no longer wish to be represented by a trade union", filed with the Board in compliance with Rule 73 of the Board's Rules of Procedure. Stated another way, evidence of objection by employees to certification or of signification by employees that they no longer wish to be represented by a trade union is not, having regard to the scheme of the Act, evidence relating to member­ship in a trade union for the purposes of an application for certification and for this reason a statement of desire, no matter what the actual wording, does not cancel out or revoke membership evidence submitted by an appli­cant trade union in the form prescribed by section 1(1)(l) of the Labour Relations Act. See Caldwell Linen Mills Limited, [1967] OLRB Rep. March 948 at paragraph 10; Diebold Company of Canada Limited, [1976] OLRB Rep. May 237 at paragraph 10; and Re Royal Canadian Yacht Club and Hotel, Restaurant and Cafeteria Employees' Union, Local 75 et al., (1981), 1981 CanLII 2935 (ON HCJDC), 129 D.L.R. (3d) 554 at 558. Rather, relevant "overlapping" evi­dence of objection by employees to certification of a trade union or of signification by employees that they no longer wish to be represented by a trade union, filed not later than the terminal date for the application, and where accepted by the Board as a voluntary expression of the wishes of the employee signatories, will generally cast a doubt on the evidence of member­ship filed by an applicant (to use the words of the explanatory note found in Form 6) such as to cause the Board to exercise its discretion under section 7(2) and direct the taking of a representation vote. It would be somewhat anomalous if evidence of membership, which must withstand the require­ments laid down in the Act together with its related rules and forms, could be "revoked" by a much less formal and essentially unregulated course of conduct which usually follows on the heels of an employee having joined a trade union. By making a representation vote the maximum effect of an opposing petition the legislation both accommodates the resiling nature of petition evidence and recognizes that trade union organizing campaigns often require considerable investment of time and monies. Once an employee has signed a membership application form and submitted to the cautionary test of the payment of $1.00, a trade union is entitled to rely on that commitment for the purposes of an application for certification to the extent that it is assured its application will not be dismissed on the basis of insufficient threshold membership support (i.e. 45 percent) by the mere filing of a "second thoughts" prior to the terminal date. If this was not the approach taken, a trade union would never know when to cease organizing. It is this relationship between membership and petition evidence which constitutes part of the policy behind permitting this board to direct a representation vote even when the trade union files membership evidence on behalf of more than 55 per cent in the bargaining unit. It is also the reason why the statute distinguishes between an application date and a terminal date.

13. There was (and still is) nothing in the circumstances of the present case which would make it appropriate to depart from that approach. Accordingly, having regard to the pertinent provisions of the Act and Regulations, the applicable Board jurisprudence and the labour relations policy considerations which underlie it, the Board treated the aforementioned letters as statements of desire in opposition to the applicant's certification application. As noted above, it is apparent that the employees wished to have them so treated in that they sent them to the Board's Registrar by registered mail on the terminal date, in accordance with the directions specified on the "green sheet". Moreover, as further noted above, the Registrar, in acknowledg­ing receipt of those letters, specifically referred to them as statements of desire. The "green sheet" makes it quite clear to employees who send such statements to the Board that if they fail to attend the hearing, or to testify or produce the necessary witnesses, "the Board normally does not accept the statement of desire as casting doubt on the evidence of membership filed by the applicant". This information is highlighted by the use of bold faced type and block letters (in paragraph 7) and the inclusion of an "EXPLANATORY NOTE" which is also printed in bold faced type for emphasis. By failing to appear in person or by a representative, and adduce evidence as to the circumstances concerning the origination and signing of their letters, the employees created a situation in which it was quite appropriate for the Board to dispose of the application without considering their statements of desire. Moreover, there is nothing in the submissions subsequently sent to the Board by the employee in question, or by respondent's counsel, which persuades us to reconsider, vary, or revoke that decision. In this regard, we find no merit in counsel for the respondent's submission that the Board has offended the principles of natural justice. The Fisher case (supra) , upon which counsel for the respondent relies heavily in his written submissions, is clearly distinguishable from the present case. In that judgment, the Ontario Divisional Court quashed a certification decision by the Board in which the Board declined, at the hearing of the matter, to give any weight to a "petition" which read: "The undersigned people are petitioning the Hotels, Clubs, Restaurant, Taverns Employees Union Local 261". The Board also declined to permit any evidence to be adduced concerning the meaning of those ambiguous words, despite the fact that the objectors attended at the hearing and sought leave to adduce such evidence. By way of contrast, neither of the employees who mailed the aforementioned statements of desire to the Board in the present case attended at the location and time set for the commencement of the hearing of this application (or within one half-hour thereafter). Accordingly, as indicated in paragraph 1 of the Board's aforemen­tioned decision of May 4, 1984 in this matter, representatives of the applicant and the respon­dent met with a Board officer, reached agreement on all matters in dispute between them, and agreed to waive their right to a formal hearing in the matter. Under the circumstances we are not prepared to permit an objecting employee, who failed to comply with the instructions set forth on the green sheet, to belatedly upset that waiver and the Board's certification of the applicant.

14. We are also of the view that the omission of Rick Watson from Schedule "A" of the list of employees does not constitute a proper ground for reconsidering or revoking our decision of May 4th. The Board's practice concerning amendment of employers' lists of employees is also well established in the Board's jurisprudence and well known to the labour relations community. See, for example, Santa Maria Foods, [1981] OLRB Rep. Nov. 1618:

7. The Board's Rules and the certification hearing are ordered precisely to avoid the mischief of either party gerrymandering the employee list or the structure of the bargaining unit in such a way as to avoid or favour certification, as the case may be. Pursuant to Form 3 [now Form 4] of the Board's Regulations an employer is required to provide to the Board, not later than the terminal date, complete lists of employees in the bargaining unit proposed by the union on the date of application. The late filing of lists or the amendment of lists filed can be only by leave of the Board pursuant to its discretion under section 58 [now section 83] of the Rules of Procedure.

8. At the outset of the hearing the Board will generally allow the employer to amend the lists filed to reflect any new information not previous­ly available or to correct any error. During the hearing the Board does not announce the count of employees or any union membership until the descrip­tion of the bargaining unit is settled. Similarly it does not announce the membership count until the count of employees in the unit is determined, subject, of course, to such outstanding challenges to the list as may have been made to that point in the hearing. These are rules well known to the parties and articulated in the Board's jurisprudence. (See, Gwell Invest­ments Ltd., [1971] OLRB Rep. Oct. 675; The Corporation of the Township of Kingston, [1975] OLRB Rep. Apr. 370; Inter City Food Services Inc., [1976] OLRB Rep. July 388; Greater Windsor Investments Ltd. Windsor Nursing Home, [1976] OLRB Rep. Sept. 515. Without these general rules certification hearings would be endless meanderings without map or compass, each turn in the journey being dictated by changing perceptions of the parties as to what best serves their own interests. That is why, absent extraordinary circumstances, the Board does not entertain submissions on the structure of bargaining unit or list of employees in the unit after the point in the hearing when the count has been given.

15. Similar considerations apply to certification applications such as the present one in which the parties meet with a Board Officer, reach agreement on all matters in dispute between them, and agree to waive their right to a formal hearing in the matter. Although the proceedings before the Board Officer are conducted somewhat more informally than a Board hearing, the approach enunciated in Santa Maria Foods remains applicable. A party is no more entitled to gerrymander the list of employees after the membership count has been announced by a Board Officer than after the Board has done so in a formal hearing. Knowing that the Board will rely upon the information provided on the four schedules that constitute the employer's list (subject to any challenges which may be raised by another party), an employer must prepare those schedules with great care. The need for accuracy is emphasized by paragraph 7 of the Form 4 Notice (to the respondent) of Application for Certification and of Hearing, which directs the respondent as follows:

7. You shall verify the list of employees by adding thereto the following the statement:

This list has been prepared by me or under my instruction and I hereby confirm the accuracy thereof."

Signature

Pursuant to that direction, that statement was typed on each of the four schedules filed with the Board in the instant case, and signed by "R. Hubert" on behalf of the respondent. At the time when Mr. Watson's name arose in the meeting with the Board Officer, the respondent's representatives knew or should have known that his name was not on the list of employees filed with the Board by the respondent. They also knew or should have known that a person classified as a "Senior Displayperson" who was referred to by respondent's counsel (Mr. Dunsmore) in that meeting as performing the functions of a "Display Manager" would be presumed to be excluded from the bargaining units as a person "above the rank of Sales Manager, Merchandise Presentation Manager, Food Service Manager or Foreman", unless his name was added to the list. That no such addition was made would or should have been obvious to the respondent's representatives from the fact that the denominator of the count (that is, the number of union members in the bargaining unit divided by the number of employees in the bargaining unit for purposes of the count) in neither bargaining unit #1 nor bargaining unit #2 reflected the addition of a further employee above and beyond the number of employees on the list as originally filed by the respondent, less the employees not included for purposes of the count by virtue of the Board's "30-30" rule (as described in Brewers Nursing Home, [1981] OLRB Rep. July 852). Thus, any ambiguity in the minds of the respondent's representatives concerning Mr. Watson's exclusion from the bargaining units would or should have been eliminated by the Officer's announcement of the count for each unit.

16. We have reviewed the Board's unreported decision dated September 1 8~ 1981 in BASF Canada Inc. (File No. 0957-81-R) referred to in Mr. Hamilton's letter of May 30, 1984, and have concluded that it does not support the requested amendment to the respondent's list in the present circumstances. In that case the parties reached agreement on the description of the bargaining unit and the count was announced, "leaving the applicant just shy of the level of support required for certification without a vote". The applicant trade union then challenged one of the eight laboratory technologists on the employer's list on the basis of community of interest. That challenge affected the count in such a way that the applicant would have been in a certifiable position if the challenge succeeded. By decision dated August 18, 1981, the Board appointed a Board Officer to enquire into and report to the Board on that issue. Pursuant to that appointment, the Officer set a meeting with the parties for September 21, 1981. Prior to that meeting, the employer wrote to the Board to indicate that, by oversight, it had omitted from the list of employees the names of two additional laboratory technologists. In permitting further enquiry into the list of employees by expanding the scope of the Board Officer's appointment, the Board wrote, in part, as follows:

2. .... The applicant objects to any amendment to the employee list at this late date, relying in particular on Greater Windsor Investments Limited [1963] OLRB Rep. Sept. 515 as setting out the Board's practice in these matters. That case, however, dealt not with amendments to the list of employees, but to the description of the bargaining unit. The Board stated:

"4. In an application for certification the applicant trade union and the respondent employer are each invited in their initial filings with the Board to set out the description of the bargaining unit which it claims to be appropriate for collective bargaining, (see Form I ,Application for Certification and Form 9: Reply to Application for Certification.) The parties, however, are not held to their initial proposals and as a general rule they are permitted to amend their proposals up to and even during the hearing (see Hashman Construction — Division of Tristar Western Ltd. [1973] OLRB Rep. Dec. 630.) However, once the Board at the hearing has disclosed the number of persons in the bargaining unit as indicated on the schedules filed by the respondent, as well as the membership position of the trade union, the Board's well established practice is not to allow one party to unilaterally alter its proposal for the bargaining unit (see The Corporation of the Township of Kingston [1975] OLRB Rep. April 370). This is done in part to ensure that a party cannot modify its proposed bargaining unit solely to take advan­tage of the union's membership position (see Gwell Investments Ltd. [1971] OLRB Rep. Oct. 675.) However, a second purpose is to ensure that the certification process is not allowed to drag on indefinitely. The Board's procedure is such as to ensure that at the hearing the parties will either reach agreement as to the appropriate bargaining unit (which agreement the Board will usually, though not necessarily adopt) or at least clearly delineate the differences between them."

It is because of the recognized distinction between the description of the bargaining unit and the list of employees purportedly employed in the unit on the date of the application that a trade union is permitted to challenge the employer's list after the count is announced, as the applicant did here.

3. It is, however, the employer who prepares the list and has access to the employment records on which it is based, and the two parties are hardly in the same position vis-a-vis that list. While the number of employees employed in the bargaining unit on the date of the application is a question of fact which the Board must ascertain, the Board retains a discretion over its procedure to ensure that no abuse of process, or indefinite prolongation of an application, takes place. Where an omission on the part of the respondent in submitting its list of employees has resulted in either a clear tactical advantage to the respondent, or clear delay that could have been avoided, the principles of estoppel may well operate to prevent the respon­dent from altering its own position before the Board.

4. The Board is not satisfied in the present case that sufficient grounds for estoppel exist so as to prevent further inquiry into the list of employees. In reaching this conclusion, the Board takes into account the fact that the meeting with the officer over Mr. Pan has not yet taken place. The Board accordingly directs the officer, Mr. Wheatley, to also inquire by record-check into the list of employees, as the respondent seeks to amend it, and, if necessary, to any challenge forthcoming from the applicant, on the basis of community of interest, to the additional persons the respondent is seeking to include. The Board further directs the respondent to have its employment records for the date of June 23, 1981 immediately available and in such a state as will permit the officer to inquire into this matter without delay.

17. Having carefully considered the matter, we have concluded that the present situation does not fall within the relatively narrow scope of the BASF case, but rather within the more generally applicable parameters of Santa Maria Foods, supra. Unlike the BASF case in which the union, at the time the additions to the list were requested by the employer, had not established any entitlement to certification without a vote, the respondent did not seek to amend its list in the instant case until after the Board had issued two certificates to the applicant on the basis of the material filed with it by the applicant and the respondent, including the aforementioned list of employees and the aforementioned waiver of hearing. Permitting the respondent to amend its list in this belated fashion would result in clear delay and prejudice to the applicant, which could easily have been avoided by due diligence on the part of the respondent. In regard to the respondent's belated attempt to have Mr. Watson added to the list and also in regard to the aforementioned objecting employee's attempt to upset the certification of the applicant, we note that the need for expedition in the processing of labour relations matters in general, and certification matters in particular, and the prejudice which can otherwise result to an applicant union, have long been recognized by this Board and by the Courts. See, for example, Nick Masney Hotels Ltd. (1970), 70 CLLC ¶ 14,020 (Ont. C.A.), at page 101 (per Laskin J.A.):

... The Ontario Labour Relations Board deals in certification matters with fluid situations which cannot be judged by the more leisurely standards that operate in the prosecution of a claim for damages for a tort or for a breach of contract where the situation is fairly well frozen when the tort or the breach of contract has occurred. Expedition is important to a union, to employees and to an employer since the certification is merely the first step in an often laborious collective bargaining process....

See also Canada Dry Bottling Company (Kingston) Ltd., [1978] OLRB Rep. Nov. 976, at paragraph 8, in which the Board wrote:

.In certification matters it is particularly important that all parties be prepared to prove their case on the date fixed for the hearing. Delays can often cause serious and irreparable prejudice to the applicant. As Estey, C.J.O. (as he then was) noted in Journal Publishing Co. of Ottawa Ltd. et al v. Ottawa. Newspaper Guild Local 205, OLRB et al (unreported) March 31, 1977 (C.A.) "labour relations delayed are labour relations defeated and denied". (See also Komo Construction Incorporated v. Quebec Labour Relations Board et al, 68 CLLC ¶ 14,108 (SCC)).

18. For the foregoing reasons, the Board, in the exercise of its discretion under section 106(1) of the Labour Relations Act, hereby declines to reconsider, vary or revoke its decision dated May 4, 1984 in this matter.

19. The decision of Board Member W. G. Donnelly will issue at a later date.

DECISION OF BOARD MEMBER W. G. DONNELLY;

In the interest of industrial democracy I would have ordered that a secret ballot be taken in view of the uncertainty about union membership and lack of notice of hearing to those who resigned from the union.