Ontario Labour Relations Board

[1984] OLRB Rep. January 138

1923-83-R International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, U.A.W., Applicant, v. Unlimited Textures Company Limited, Respondent, v. Group of Employees, Objectors

BEFORE: Owen V. Gray, Vice-Chairman and Board Members F. W. Murray and L. C. Collins.

APPEARANCES: Kenneth Simpson for the applicant; Leon Paroian, Q. C., Raymond Colautti and Paul Delaney for the respondent; Ross S. Valdis, Mary Cartier and Jenny Moellendoif for the objectors.

DECISION OF THE BOARD; January 25, 1984

1. This is an application for certification.

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

3. At the hearing of this application, the parties agreed upon the following description of a bargaining unit, which the Board finds is a unit appropriate for collective bargaining:

all employees of the respondent at its Industrial Platers (Windsor) Company Division in Windsor, Ontario, save and except foremen, those above the rank of foreman, office and sales staff, and persons regularly employed for not more than twenty-four hours per week.

5. The respondent employer filed a list of employees in the bargaining unit described by the applicant on the application date, with a total of 35 names. All of these employees fall within the bargaining unit determined in paragraph 4 of this decision.

6. On or before November 28, 1983, the terminal date fixed for this application and the date which the Board determines, under section 103(2)0) of the Act to be the time for ascertaining membership and objection, the applicant trade union filed 24 combination applications for membership and receipts, 23 of which bore signatures which coincided with names on the employer's list. Each document is appropriately dated, bears original signatures and indicates the payment and receipt of $1.00. The receipts have been countersigned. The documents were gathered by more than one collector. The applicant trade union also filed a Form 9 Declaration duly executed by a responsible official of that union, attesting to the authenticity of the membership evidence.

7. Three written statements of desire variously dated were filed with the Board on or before the terminal date. Together these contain 10 names, 2 of which coincide with names of those who signed membership applications. In accordance with its usual practice, the Board gave notice of receipt of these statements to the applicant and respondent, advising those parties of the dates and text of the statements, but not of the names of the persons who had signed them. One of the three documents reads as follows:

November 22, 1983

In the matter of Application for Certification between the applicant, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, U.A.W, and Industrial Platers (Windsor) Co., we the undersigned employees of the respondent do not wish to be certified as a bargaining unit.

(8 signatures)

Mary Cartier

Group Representative

1278 Windermere

Windsor, Ontario

N8Y 3F8

The second document reads as follows:

November 23

TO WHOM IT MAY CONCERN:

I, (name), herewith wish to withdraw my support for union certification

at Industrial Platers (Windsor) Co., division of Unlimited Textures Co. Ltd.

This is being done of my own free will.

(Signature)

The third document read as follows:

November 23, 1983

TO WHOM IT MAY CONCERN:

I, (name), herewith wish to withdraw my support for union certification at Industrial Platers (Windsor) Co., division of Unlimited Textures Co. Ltd. because I was not fully informed as to what the document was that I was signing and felt coerced into signing it. Now that I fully understand the impact of the situation, I freely withdraw my support.

(signature)

8. On the day of and prior to the hearing in this matter, representatives of the applicant union, respondent employer and employee objectors all met with a Labour Relations Officer. The Board customarily assigns Labour Relations Officers to meet with the parties to each certification application which comes before the Board for hearing, in an attempt to resolve the issues which are or might be in dispute between the parties in relation to the application. This frequently results in a resolution of all such issues and a waiver by the parties of the necessity of a formal hearing. It also often reduces the range of issues which remain for the Board to adjudicate in a formal hearing. The Officer in this case was able to obtain the agreement of the parties on a description of the appropriate bargaining unit. Although the description agreed to at that point was not the same as was ultimately agreed to at the hearing and approved by the Board, the employees covered were the same. The Officer then reviewed with the parties the balance of the matters set out earlier in this decision. The Officer advised the parties that of the 35 employees on the employer's list, membership evidence had been submitted on behalf of 23 employees. The Officer also advised the parties that only two of those 23 employees had signed the petition. The Officer explained to the parties that it appeared, subject to the Board's normal second check, that the applicant was in a certifiable position and that there was not sufficient petition overlap to cause the Board to inquire into the voluntariness of the petition. The parties were asked whether they felt it necessary to appear before the panel to make any further representations with respect to this application. Counsel for both the respondent and the objectors said they did.

9. At the beginning of the hearing in this matter, the Board indicated to the parties it wished to review with them in an informal way the matters which it understood would have been reviewed with them by the Officer. The Board then reviewed with the parties the matters referred to in the preceding paragraphs of this decision, and in the course of that review settled with the parties the description of the appropriate bargaining unit.

10. The Board's review of the items covered in the meeting with the Officer concluded with the observation that, having regard to the membership count, the overlap of petition signatures and membership evidence was not alone sufficient to cause the Board to exercise its discretion under section 7(2) of the Act in favour of directing a representation vote. The Board then invited parties' submissions with respect to these and any other matters they wish to raise.

11. Counsel for the respondent spoke first. He submitted that the Board had amended the Labour Relations Act by adopting the practice or policy normally followed by the Board in determining the effect petition signatures will have on the exercise of the Board's discretion under section 7(2) of the Act. Counsel favoured us with what he conceded was an argument often made to the Board, to the effect that the Board should be more liberal in directing representation votes in cases where the statute permits certification without a vote. Invited to indicate what facts and circumstances should lead the Board to order a vote in this case, counsel referred to evidence he said the employee objectors had to offer. This evidence, he said, was in the nature of allegations of intimidation and coercion. He argued that the Board was obliged to conduct its own investigation into those allegations.

12. Counsel for the employee objectors said that his client was concerned about the membership count which had been announced both by the Board and, earlier, by the labour relations officer. He said that in the course of circulating her petition against the union, his client had inquired of each of the employees whether he or she had signed a union card. On the basis of the answers received, he and his client had come to the hearing expecting that the applicant union could not establish sufficient membership support for certification without a vote. The announced membership count and petition overlap could only be explained, he claimed, if the Board had before it membership evidence purportedly signed by some of the persons who had told his client they had not signed cards and would not sign her petition. Counsel provided the Board with the names of eight persons, and alleged that any membership evidence submitted on behalf of those persons must be fraudulent.

13. The second matter raised on behalf of the objectors was the allegation of coercion contained in the third petition document referred to in paragraph 7 of this decision. The third matter raised was an allegation that threats had been made to an employee's job security by "union forces". In response to a request from the Board that he particularize this last allegation, counsel named one Steven Muzzin as the author of the threats which counsel said had been made on Friday, November 18, 1983. Counsel acknowledged that his client was immediately aware of the incident when it occurred. He also acknowledged that no notice of this allegation would be found in any material filed with the Board or provided to the union by the objectors. He conceded that no reference had been made to it before the count was announced by the labour relations officer. He explained that this last allegation had not been raised, and the previous allegation had not been particularized, prior to the hearing because he and his client had thought it was unnecessary to put these allegations in issue, having regard to the membership strength they thought the applicant union had. It was only after the count had been announced that he and his client decided to pursue the question of coercion alleged in the petition document and to raise for the first time the alleged threats by Mr. Muzzin.

14. The applicant's representative objected to the Board's entertaining any of the allegations made by the objectors. With respect to the allegations of fraudulent membership evidence, he argued that the Board should rely on the comparisons it had made between signatures on the membership evidence and specimen signatures provided by the respondent employer. With respect to the alleged threats and coercion, he said the Board should not hear those allegations because they had only been raised and particularized after the count was announced.

15. The object in certification proceedings is to determine whether a majority of employees in a unit appropriate for collective bargaining wish to be represented by the applicant trade union in their relationship with their employer. Important considerations underlie the Legislature's choice between membership evidence and the representation vote as the means of ascertaining majority wishes (see Weiler, P.C., Reconcilable Differences, (Carswell, 1980), at pp. 37-49 for a review of these considerations). The Legislature's choice of membership evidence as the primary basis for the certification decision recognizes the obvious correlation between a desire for trade union representation and the act of joining a trade union. Any uncertainty inherent in equating the two is balanced by striking a confidence level of fifty-five per cent membership at and below which the appearance of majority support for trade union representation must be confirmed by a representation vote. When there is satisfactory evidence that over fifty-five per cent of the employees in the unit are members of the applicant, the Act authorizes certification without a vote. In giving the Board a discretion to order a vote even when over fifty-five per cent membership is demonstrated, the Legislature recognized the possibility that circumstances other than the number of members in the unit might, in a particular case, make trade union membership seem less reliable as a measure of an employee's desire for trade union representation. That discretion should be exercised in a manner consistent with the balance struck by the Legislature in emphasizing membership evidence as the method of determining employee wishes when membership support exceeds fifty-five per cent (see Cleveland-Cae Metal Abrasive Limited, [1979] OLRB Rep. Feb. 81 at ¶8; Baltimore Aircoil Interamerica Corporation, [1982] OLRB Rep. Oct. 1387 at ¶49; Walbar of Canada, Inc., [1982] OLRB Rep. Nov. 1734 at ¶17.)

16. Rule 73 of the Board's Rules of Practice makes provision for the filing by employees of evidence of their objection to certification. As with membership evidence, evidence of objection must be in writing, signed by the employee(s) and filed not later than the terminal date for the application (which is ordinarily the date set by the Board under section 103(2)(j) of the Act as the date as of which employee wishes are to be ascertained). Form 6, the Notice to Employees of Application for Certification, refers to such written evidence as a "statement of desire"; such documents are also commonly referred to as "petitions". Subsection 5 of Rule 73 sets out the Board's requirement that viva voce evidence be introduced at hearing as to the circumstances concerning the origination and circulation of the petition and the manner in which each signature thereon was obtained. The object of that inquiry is to determine whether the petition is a voluntary expression of the wishes of its signatories (see Baltimore Aircoil Interamerica Corporation, supra, ¶40.)

17. If a petition is shown to be the voluntary expression of the wishes of its signatories, the effect then given to it depends on the extent to which it casts doubt on the significance of membership in the applicant as evidence of the employees' desire for representation by the applicant. In the use of membership evidence to test employee wishes, an employee for whom no membership evidence has been filed is treated as though he or she opposes representation by the applicant. Therefore, a non-member's signature on the petition adds nothing to the assessment of support for representation by the applicant. However, the signature on the petition of an employee who is a union member casts doubt not on that employee's status as a member, but on the otherwise reasonable inference that the employee's membership in the trade union reflects a desire for representation by that trade union in collective bargaining with his employer. The evidence of an employee's membership, that is to say, the inference which otherwise reasonably follows from proof that the employee is a member, is "clouded" in that sense by that employee's subsequent signature on a voluntary petition. If the membership evidence which remains unclouded would not alone be sufficient to support certification without a vote, then the Board ordinarily exercises its discretion under section 7(2) by ordering a representation vote. However, the petition speaks only to the desires of those who sign it; its existence casts no doubt on the desires of those who did not sign. One employee's change of heart cannot logically be given any more weight than another's consistent opposition. If the membership evidence which remains unaffected by the petition is itself otherwise qualitatively satisfactory and its quantity establishes that more than fifty-five per cent of the bargaining unit employees are members of the applicant, then faithfulness to the scheme of section 7 of the Act requires that the application be treated no differently than if the Board had received neither the petition nor the membership evidence thereby affected. In other words, such a petition is not considered "relevant" to the exercise of the Board's discretion under section 7(2) because it will not alone warrant a decision ordering a vote. If a petition is not relevant, it is unnecessary to determine whether it is voluntary. To take any other approach would be to ignore the Legislature's determination that satisfactory evidence of membership of over fifty-five per cent of the employees in a bargaining unit is evidence of majority support for trade union representation sufficient to permit certification without a vote. The approach described has been applied by the Board openly and consistently for well over twenty-five years. The Labour Relations Act has been amended many times in that period. Although amendments to the Act from time to time have altered the levels of membership required for certification with and without a vote, none has been directed at this consistent exercise of the Board's discretion to order a vote. By continuing to apply that test of the relevance of and weight given to petition signatures when exercising its discretion, the Board does not "amend the Act" — it avoids doing so.

18. A voluntary petition is not the only factor the Board can and will consider in deciding whether to order a representation vote despite evidence that over fifty-five per cent of the employees in the bargaining unit are members of an applicant trade union. The age of the evidence of membership as of the date of filing may weaken the assumption that it represents the present wishes of the employees on whose behalf it is filed; the Board may conclude that such "stale" evidence requires confirmation in a representation vote: Primo Importing and Distributing Co. Ltd., [1981] OLRB Rep. July 953. A vote may be ordered where the applicant has led applicants for membership to believe that certification would not take place without a representation vote: Carleton University, [1975] OLRB Rep. Apr. 308. Where the circulation of a petition in opposition to certification is impeded by intimidation or coercion, the Board may exercise its discretion under section 7(2) to order a vote in order to ensure that employee wishes are ascertained: St. Michael Shops of Canada Limited, [1979] OLRB Rep. April 346. It will not do so, however, unless the impugned behaviour is of such a nature that it would deter a reasonable employee, a test which is not likely to be satisfied if the person at whom such behaviour is directed is undeterred: The Kendall Company (Canada) Limited, [1975] OLRB Rep. Aug. 611 at paragraphs 16 and 20; Dupont of Canada Ltd., [1961] OLRB Rep. Jan. 360. These examples are illustrative, not exhaustive, of the circumstances in which the Board might order a vote.

19. The Board may also direct a representation vote despite evidence of over fifty-five per cent membership if intimidation or coercion has been employed in obtaining that evidence:

Wilcolator (Canada) Ltd. 59 CLLC ¶ 18,146; PRC Chemical Corporation of Canada Ltd., [1980] OLRB Rep. Dec. 1805. Intimidation or coercion in this context means something more than social pressure: Dupont of Canada Ltd., supra. This subject was reviewed in the Kendall Company (Canada) Limited, supra, in the following terms:

In all cases alleging improper trade union conduct the Board first begins by assessing the nature of the conduct — the test being would it deter the reasonable employee? If the answer to this question is in the affirmative the Board must go on to assess the possible significance of the conduct and in this regard the identities of those persons involved are very important. Where the action impugned is that of a responsible official of the trade union a single indiscretion may cause the Board to conclude that it cannot place reliance on any of the evidence of membership submitted by the union. Where the irregularity relates to evidence of membership procured by a person of lesser rank in the union organization, the actual cards involved may be disallowed and the weight to be given to the remaining evidence of membership will depend on the nature of the irregularity and the extent to which the objectionable practice was resorted to in the signing up of members. (See Webster Air Equipment Company Ltd. 58 CLLC para. 18,110; Walter E. Selck of Canada Ltd. [1964] OLRB Rep. June p. 138; Linhaven Home for the Aged [1962] OLRB Rep. May 66.)

After reviewing a number of cases in this area, the Board in the Kendall case observed:

A reading of these cases demonstrates the Board's sensitivity to the realities of organizational activity. Improper conduct on the part of union officials may be symptomatic of much broader unlawful actions. Moreover, threats by trade union officials have a ring of malice that is qualitatively different from the disfavour of a fellow employee caught up in the "heat" of campaign activity. A fellow employee's threat is likely to be recognized for what it is — "an isolated outburst by a hot-headed partisan". Further, such persons are seldom capable of carrying out their threats and for this reason men and women of ordinary convictions are not likely to be inhibited from exercising rights under the Act.

Improper behaviour by rank and file employees who have no responsibility for or in connection with an organizing campaign is not normally regarded by the Board as casting doubt on membership evidence: Alderbrook Industries Limited, [1981] OLRB Rep. Oct. 1331, where the Board observed 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 mo 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.

20. A party proposing to rely on allegations of intimidation, coercion or other improper conduct is obliged to give notice and full particulars of the allegations at the earliest opportunity. Rule 72 of the Board's Rules of Procedure provides:

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

(a) include in the application or complaint; or

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

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

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

(3) Where a statement in an application or complaint or in any document filed under these Rules in respect of the application or complaint is so indefinite or incomplete as to hamper any person in the preparation of his case, the Board may, upon the request of the person made promptly upon receipt of the application, complaint or document, direct that the information stated be made specific or complete and, if the person so directed fails to comply with the direction, the Board may strike the statement from the application, complaint or document.

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

The purpose of this Rule was explained in Thigiani Contracting Limited [1979] OLRB Rep. Feb. 141:

"7. That section was a twofold purpose grounded in both legal considerations and in industrial relations considerations. The legal consideration implicit in section 47 [now 72] of the Board's Rules of Procedure is a recognition of the rule of natural justice that anyone charged with wrongdoing should have sufficient notice of the charge against him. The labour relations consideration is a recognition that the realities of union organization are such that a delay of Board proceedings may serve to defeat the union. A union may successfully defend charges made against it only to discover, upon the late granting of a certificate, that its support among the employees has substantially eroded because, for reasons often not fully understood by rank and file employees, it has failed to get certified promptly and commence immediately to bargain on their behalf. For that reason section 47 [now 72] of the Board's Rules of Procedures seeks to strike a balance between natural justice and the avoidance of delay in certification proceedings or any other proceedings before the Board. In an application for certification both the interests of natural justice and industrial relations are best served when allegations of wrongdoing are made in sufficient time and with sufficient particularity that an applicant union is not prejudiced either by surprise or by being forced to seek adjournment and the delay of its own application. Therefore, where allegations against an applicant are not filed in a timely manner or with sufficient particularity the Board may refuse to entertain them. (Fleck Manufacturing Limited 62 CLLC ¶ 16,236; Cable Tech Wire Company Limited (as yet unreported) Board File No. 0297-78-R, June 21, 1978)."

The need for expedition in labour relations matters is well recognized: Hotel and Restaurant Employees Union v. Nick Masney Hotels Ltd., [1970] 3 0. R. 461 (C. A.); Jordon v. York University Faculty Association (1978) CLLC ¶14,132 (Div. Ct.); Re Flamboro Downs Holdings Ltd. and Teamsters Local 879, 1979 CanLII 1669 (ON HCJ), 24 O.R. (2d) 400 (Div. Ct.); and, Journal Publishing Company of Canada Ltd. et al v. The Ottawa Newspaper Guild, Local 204 et al, (unreported, Ontario Court of Appeal, March 31, 1977) wherein Estey, C.J.O. (as he then was) observed:

In the law which has grown up around labour relations in this province, and indeed elsewhere where the common law is pursued, the overriding principle invariably applied is that labour relations delayed are labour relations defeated and denied.

Rule 72 applies to all parties to the process. In Cable Tech Wire Company Limited, [1978]OLRB Rep. June 496 (judicial review denied November 10, 1978, unreported) the Board refused to entertain allegations known to the employer for two weeks before notice thereof was finally given on the last business day before the Board's hearing. Counsel's excuse that he had until then been unaware that witnesses were available to prove the allegations was not considered sufficient reason for having withheld them. In Gignac, Sutts, Nosanchuk, [1973] OLRB Rep. Aug. 438, the Board refused to entertain union charges advanced in support of certification without a vote when the events alleged were known to the union for as much as a month before notice was given. In Fleck Manufacturing Limited, 62 CLLC ¶16,236, the Board refused to entertain objectors' allegations of impropriety in the union's collection of membership evidence, when the allegations were first raised at the hearing of the union's certification application although known to counsel for the objectors for nine days prior. In Fleck the Board said:

It is incumbent on all parties to proceedings before the Board to investigate matters relevant to their cases as early as possible and if they intend to make allegations of improper or irregular conduct against another party to do so promptly. The object of this requirement, which finds expression in section 48 [now 72] of the rules, is obviously to expedite and facilitate the hearing and processing of applications under the Act and to avoid prejudice, delay or embarrassment to the parties involved. Delayed and last-minute allegations, which lead to adjournments or cause prejudice, embarrassment or unnecessary expense to the other parties, and which with reasonable diligence could have been made at a more timely stage of the proceedings will not be entertained except for good and sufficient cause.

21. It is not the Board's practice to initiate or conduct its own investigation into allegations of intimidation or coercion in the solicitation of membership evidence; these must be alleged and proven by the party making the charge: Alcan-Colony Limited, [1963] OLRB Rep. June 159; The Kendall Company (Canada) Limited, supra; Josh lndustries Incorporated, [1980] OLRB Rep. Dec. 1741, ¶16; Northern Plastics Ltd., [1983] OLRB Rep. July 1133. The Board will, however, investigate allegations that membership evidence is defective either because the employee on whose half it is submitted did not make the payment referred to therein or did not sign the card at all. The Board's approach to such allegations was described by its first Chairman, J. Finkelman, in The Ontario Labour Relations Board and Natural Justice, (Industrial Relations Centre, Queen's University, 1965) at page 33:

.....[A]ny party to the proceedings or any employee concerned may inform the Board that certain named persons, on whose behalf there is reason to believe membership cards were submitted to the Board in support of the application, did not sign the membership cards purporting to bear their signatures or did not pay the dues which the receipts submitted on their behalf purported to acknowledge. The names so furnished to the Board by an opposing party are checked against the membership cards filed by the union, and, if any person, whose names is so furnished is claimed by the union as a member, that person will be interviewed by an examiner.

Where a person is interviewed by an examiner in the circumstances just outlined, he is requested to complete a questionnaire as to whether he signed the card or paid the requisite dues, as the case may be. Where the person interviewed states to the examiner that he did sign the card and did pay the requisite amount of dues, no further action is taken .... If the person interviewed states to the examiner that he did not sign the card or did not pay the requisite fee, the Board conducts a formal inquiry into the matter. All parties are advised of the Board's intention to hold such an inquiry and they are given information as to the nature of the matters that will be inquired into. The name of the employee involved and the names of any other persons who, to the knowledge of the Board, may be able to cast light on the situation — any person who purported to witness the employee's signature, the collector of the dues, any person who may have been present during the transaction — will be revealed to all parties before the hearing takes place. These persons are summoned by the Board itself. At the hearing, the Board examines the witnesses in the first instance and then makes them available to the other parties for cross-examination. The other parties are of course entitled to present rebuttal testimony if they see fit to do so. ... [T]he Board is so dependent upon documentary evidence filed by the union that, where there is an allegation of forgery or fraud, the Board must look into the matter ...

(see also Genaire Ltd. 59 CLLC ¶18,140; Alcan-Colony Limited, supra; The Kendall Company (Canada) Limited, supra; and, The Georgian Building Corporation, [1981] OLRB Rep. Mar. 275.)

22. It was against the background of this jurisprudence that the Board considered the parties' submissions. The Board ruled that it would respond to the objectors' "no-sign" allegations by conducting its usual investigation. It explained the Board's procedure in such cases and emphasized to the parties that no hearing would be called to further enquire into those allegations if the Board's initial investigations failed to disclose any impropriety. Counsel for the objectors was asked whether he wished to lead any evidence of his own with respect to those allegations. He said he did not.

23. The petition document making reference coercion did not identify the person whose behaviour the petitioner felt was coercive, nor did it describe that behavior or specify the time and place at which it occurred. As the allegation had not been the subject of a separate, particularized charge, the trade union upon receipt of the text of this document might have interpreted the reference to coercion as a merely colourful statement of the petitioner's reasons for executing the petition. The document would not necessarily put the trade union on notice that it must meet a charge that it has engaged in unfair labour practices, nor was this document sufficiently particular to comply with Rule 72(1). It was at least arguable, however, that it fell within subparagraph (3) of the Rule, which would have put an onus on the trade union to request particulars. By contrast with that allegation, which was at least the subject of an insufficiently particular reference in a document received by the union prior to the hearing, the allegations against Mr. Muzzin had been neither raised nor particularized until the day of the hearing. The Board's first ruling with respect to these two allegations was that it would hear the evidence-in-chief of the objectors with respect to the coercion referred to in the petition document, reserving the applicant's right to argue thereafter with respect to the failure to provide timely and full particulars and the consequences that should have for the reception of that evidence and for the continuation of the hearing. The Board further ruled that when it heard that argument it would also hear argument on the question whether it should entertain any evidence of the alleged threats by Mr. Muzzin.

24. Counsel for the objectors then called Mary Margaret Cartier, an employee of the respondent, as its first and only witness with respect to the coercion alleged in the petition document. Ms. Cartier testified she was the representative of the group who had put together the petitions filed with the Board in this case. She was the witness to the signature on the petition document in which coercion is alleged. She said she had approached that signatory, whom she identified by name. We shall refer to him simply as "the petitioner". Ms. Cartier described the petitioner as "slow". She said he does not understand everything he is told. She approached him and asked if he had signed a union card. He told her he had, but had not known what he was signing. A "union person" had driven him home one day and, at the end of the ride, had asked him to sign a card and pay a $1.00, which he had done. Ms. Cartier asked him if he understood what a union was about. He said no. She then asked him to go home and ask his father about what he done. Ms. Cartier explained that she did this because she did not feel schooled enough to explain the matter herself. The next day, the petitioner told Ms. Cartier he had spoken to his father, who told him not to sign for a union. He later signed the petition document saying he had felt "coerced". Ms. Cartier testified that the petitioner in question is 22 years old. She named the person whom the petitioner told her had obtained his signature and received his dollar. She testified that that person is a full-time employee of the respondent.

25. When this evidence was introduced, the applicant's representative objected that it was hearsay evidence of what had taken place between the petitioner and collector. In the ensuing argument we were told that no attempt had been made to subpoena the petitioner. The Board ruled at that point that it would hear the evidence and determine later what weight, if any, would be given to it. When the evidence-in-chief of Ms. Cartier was completed, the applicant's representative argued again that the Board should not give any weight to this hearsay evidence. He submitted that what had been described did not amount to coercion, and noted that the petitioner had, in any event, exercised his option to withdraw his support.

26. Counsel for the objectors argued that we should accept this hearsay evidence. He said it demonstrated that coercion was used in obtained membership evidence and that potential members were not fully informed with respect to the union when their membership was solicited. He argued the evidence would lead the Board to speculate that there might have been other incidents with other people who might have had language problems, for example. Counsel for the respondent argued that we should accept this hearsay evidence on a policy basis. Membership cards are hearsay, he said. The acceptance of Mrs. Cartiers' hearsay could only lead to a vote and not a complete denial of the right to represent employees, he argued, and we should therefore accept the hearsay and "err on the side of the democratic process." Neither counsel for the objectors nor counsel for the respondent offered any evidence that there were any other "slow" employees, any other allegedly misinformed or uninformed employees or any other employees who had been approached by the person who collected the card from the petitioner described in Ms. Cartier's evidence. That collector's signature does not appear on any card filed with the Board on behalf of any employee other than the petitioner.

27. The Board then announced the following ruling:

Having considered the submissions of counsel, we are satisfied that we should not give any weight to hearsay evidence tendered for the purpose of showing that an employee was coerced into signing a union card. To do so would be to deny the union and the person allegedly responsible for the coercion the right to confront and cross-examine his accuser. Further, we are satisfied that the evidence, if accepted, would not amount to such coercion as would lead us to give that evidence any more effect than we would give to evidence that the employee in question voluntarily changed his mind and signed a petition.

Accordingly, the applicant need not respond to that evidence.

28. The Board then heard argument on the question whether it should entertain evidence with respect to the alleged threats by Mr. Muzzin. By way of amplification of his earlier submissions, counsel for the objectors stated the evidence would be that Mr. Muzzin approached his witness during the work period at a time when signatures were being collected. In what began as a friendly discussion of the advantages and disadvantages of the union, Mr. Muzzin made threats as to what would happen to the witness if the union got in. Counsel argued that this incident, if proved, would taint the "entire picture" of how the union went about collecting signatures. He said this was more serious than the coercion earlier alleged. It would, he said, be direct evidence, not hearsay evidence, of a threat to the witness' livelihood. Counsel for the objectors repeated again the explanation that this allegation had not earlier been raised because its importance was not apparent until the count was announced. Counsel for the respondent argued that the Board would readily entertain similar allegations if made by a trade union against an employer, and that such allegations would lead to automatic certification without a vote, citing Larain Products (Canada) Ltd., 78 CLLC ¶16,118 as authority for those propositions. The applicant's representative argued that the person allegedly threatened had not signed a card and did not respond to the alleged incident by filing charges at the time. There had been ample opportunity to process charges, he said, and the allegations had not been filed or particularized in a timely manner. The applicant's representative took great exception to the fact that these charges were not raised until after the card count had been announced. He questioned the relevance of the Larain Products case, and argued that the Board should not hear the evidence.

29. A majority of this panel of the Board ruled that it would reserve the question whether the evidence would be entertained until after it had heard the evidence-in-chief of the witness herself. Mr. Collins, dissenting, would have ruled against hearing any part of the evidence, on the basis of the objectors' failure to raise the allegations at any time prior to the announcement of the count.

30. The witness offered in support of these allegations was, again, Mary Margaret Cartier. She testified that she works alone in the respondent's hard chrome department. While at work there between the 9 and 10 a.m. on the morning of November 18, 1983, she was approached by Steve Muzzin, a fellow employee who works in another part of the plant. They started talking about the pros and cons of the union. The discussion changed to a discussion of the different jobs in the shop. Mr. Muzzin asked Mrs. Cartier whether she was the only one who could do her job. She replied that she was the only one who could do it as well as she did. He then said that when the union came in he would come over and take her job away from her, and she would be out on the street looking for a job. Asked whether the union was then in the process of collecting signatures, she said she thought so. She had not started her petition by then; she started it the following Monday. In response to questions from the Board, Mrs. Cartier said she could not recall which of the two of them had first mentioned the union in this discussion. She did not know how Mr. Muzzin could go about getting the union to take her job from her. She thought he would "get help somewhere". Mr. Muzzin did not ask her to sign a union card, nor did he suggest that her job would be safe from him if she did sign a card. No one else had been involved in this conversation. Only one other employee had been within hearing distance. She had later spoken to that employee, who said that he had not heard what she and Mr. Muzzin had discussed. Not surprisingly, her response to this incident was to commence the circulation of her petition on the Monday following, which was the day Notice of this application was posted in the respondent's plant. After the Board had completed its questions, counsel for the objectors advised the Board he had completed the evidence-in-chief in support of the allegations against Mr. Muzzin. Counsel further advised the Board that his clients were not aware of, nor did they intend to tender evidence of, any approaches by Mr. Muzzin to any other employees.

31. Nothing in Mrs. Cartier's evidence supported counsel's earlier allegation that Mr. Muzzin was an employee organizer for the union. His name does not appear as collector on any of the membership evidence filed with the Board. The alleged threat was not connected with the obtaining of membership evidence. Mrs. Cartier did not sign a card as a result of the threat. There was no suggestion she was in any way deterred from exercising her rights as a result of the alleged threats. Nothing in Mrs. Cartier's testimony persuaded us that any of the membership evidence before us could in any way be considered "clouded" by the alleged behaviour of Mr. Muzzin. The petition documents affected only two cards, one of which was the card signed by the petitioner whose story had been described in Mrs. Cartier's earlier evidence. 21 membership cards were, in our view, entirely unaffected by any of the matters raised either by the objectors or by the respondent. As that level of membership evidence satisfied the criteria in the Act for certification without vote, the Board ruled orally as follows:

Assuming, without deciding, that the petitions are voluntary, we are satisfied that the evidence of Mrs. Cartier, if accepted in its entirety, would not itself or in combination with the hearsay evidence rejected earlier lead us to exercise our discretion to order a vote in this case.

Subject to the Board's usual second checks and to the outcome of its customary investigation into the "no-sign" allegations, a certificate will issue.

32. Counsel for the respondent then asked that the Board stay any further steps in these proceedings pending his filing of an application for judicial review on behalf of his client, on the ground that the Board allegedly declined to address the exercise of a statutory discretion. Assuming, without deciding, that we had a discretion to "stay" the proceedings at the point we had by then reached, we ruled we would not do so.

33. Following the hearing in this matter, the Board investigated the "no-sign" allegations referred to earlier, to which the objectors had, during the hearing, added another name, for a total of nine names. Each of these names was reviewed against the membership evidence submitted by the applicant. Those of them for whom membership evidence had been filed were interviewed by a Labour Relations Officer. Each of those persons verified that they had signed the cards submitted on their behalf. The investigation revealed no basis for any further inquiry.

34. Accordingly, we are satisfied that more than fifty-five per cent of the employees in the bargaining unit as of the application date were members of the applicant trade union on the date determined under section 103(2)(j) of the Act, as set out in paragraph 6 of this decision. We confirm our decision not to order a representation vote in these circumstances.

35. A certificate will therefore issue to the applicant trade union with respect to the bargaining unit described in paragraph 4 hereof.

CONCURRING OPINION OF BOARD MEMBER L.C. COLLINS;

1. While I concur in this panel's decision dated January 25th, 1984, I wish to comment further on the reasons for my dissent from the ruling referred to in paragraph 29 of that decision.

2. I objected to hearing evidence from Mrs. Cartier of threats she alleged were made against her by Mr. Muzzin on November 18, 1983, because the charges were first raised on the day of the hearing, about three weeks after the alleged incident. There was plenty of time available before the hearing to have notified the Board of the charge and to have furnished the applicant with particulars of the charge. I considered that the charges were untimely and could have resulted in a needless further delay in these certification proceedings. I, therefore, would have ruled that we would not hear any of her evidence, and would have based my ruling on the authorities recited in paragraph 20 of the main decision in this case.

3. Although I concurred in the decision to launch the Board's usual investigation into allegations of "no-sign", I wish to record here my concern about the events which prompted us to do so. As noted in paragraph 12 of this panel's decision, the "no-sign" allegations sprang from what was, effectively, a survey conducted by the main petitioner while she was circulating her petition. It seems she asked every employee she approached whether he or she had signed a union card. This was information to which she was not entitled. Both the letter and the spirit of the Labour Relations Act treat membership decisions as confidential. Indeed, that is one of the supposed benefits of representation votes for which petitioners often clamour. Yet here the petitioner wanted every employee to give up his or her right to keep that decision confidential. It is not surprising that some employees chose not to do so, and protected the confidentiality of their decision in the only way they could: they denied having signed cards when in fact they had signed.

4. I was not surprised at the result of the investigation by the Board Officer. It is standard operating procedure in a union organizing campaign to advise employees of the possibility of a petition and explain to them the option of avoiding argument by pretending to be neutral, by refusing to sign the petition and claiming not to have signed a card. From the applicant's point of view, this strategy was certainly successful in this case. However, I am concerned at the appearance that nothing more than a survey of this kind is needed to prompt the sort of investigation described in paragraph 21 of the panel's decision in this case. The approach of the Labour Relations Officer can be an embarrassing and disconcerting experience for a recently joined trade union member, even if he is forewarned of the possibility as the employees here may well have been. I was and am satisfied that the petitioner genuinely, and incorrectly, thought the results of her survey revealed some fraud on the Board. I am concerned, however, about the potential for abuse of this type of procedure by parties who may well know that some employees disguise their allegiance and who, even so, conduct the survey and then invoke the Board's aid to complete it in the hope of identifying union supporters or creating an atmosphere in which support for the union is chilled by the need to verify intentions in an interview with a government representative.

5. If a "no-sign" allegation comes before the Board again on the basis of this type of survey, the Board will have to consider carefully whether this will be treated in the future as an adequate basis on which to launch a Board investigation.