United Steelworkers of America v. Plaza Fiberglas Manufacturing Limited

[1985] OLRB Rep. October 1503

1465-85-R; 1466-85-R; 1467-85-U United Steelworkers of America, Applicant/Complainant, Plaza Fiberglas Manufacturing Limited and Plaza Electro-Plating Limited, Respondents

BEFORE: Owen V. Gray, Vice-Chairman, and Board Members F. C. Burnet and W F. Rutherford.

APPEARANCES: Brian Shell and Brando Paris for the applicant/complainant; J. C. Murray and Peter Hatch for the respondents.

DECISION OF THE BOARD; October 22, 1985

1. These three matters are: an application for certification as exclusive bargaining agent for a bargaining unit consisting of all employees of the respondents in the Municipality of Metropolitan Toronto, with certain exceptions, an application under subsection 1(4) of the Labour Relations Act for a declaration that the respondents be treated as one employer for the purposes of the Act, and a complaint under section 89 of the Act alleging that members of the managements of the respondents reacted to the applicant/complainant's organizing campaign by interrogating and intimidating employees about union activities, engaging in surveillance of the site of a union meeting to which their employees had been invited and terminating a number of employees because of their suspected involvement in union activity.

2. When these matters came on for hearing before this panel on October 4, 1985, counsel for the respondents made several preliminary objections to our hearing them. Most of the objections focused on the way in which notice of these proceedings was given to the respondents' employees. We heard evidence and argument with respect to those objections on October 4 and October 10, 1985. We then reserved and now deliver our decision on the submissions made during those days of hearing.

3. When filed, the applications and complaint named three respondents: Plaza Fiberglas Manufacturing Limited ("Plaza Fiberglas"), Plaza Electro-Plating Limited ("Plaza Electro-Plating") and Citron Automotive Ltd. ("Citron"). Counsel for the trade union advised us, and it is apparent from reading the trade union's initial filings, that it was seeking to organize employees who worked in operations carried on at 4420 and 4440 Chesswood Drive, and nearby 70 Vanley Crescent, in Downsview, but was unsure which employees were employed by which of the corporate respondents. Joe Chelminsky is General Manager of both Plaza Fiberglas and Plaza Electro-Plating. He gave evidence for the respondents in connection with their preliminary objections. He testified that he is responsible for overlooking certain of the activities of Citron, and confirmed the representation of counsel for the respondents that Citron had no employees at any of the municipal addresses in question. Having heard that evidence, counsel for the applicant advised the Board that it would not pursue its applications and complaint against the respondent Citron. The titles of these proceedings have been amended accordingly.

4. The respondents' main preliminary objection is that this Board and every potential quorum of it has lost jurisdiction to entertain these applications because of actions of the Board's support staff in connection with the posting on the respondents' premises of notices to their employees of these proceedings. In particular, the respondents say that when they refused to comply with a direction to post such notices, the Board had no authority to enter their premises forcibly with the assistance of police or sheriff's officers to effect posting. Counsel for the respondents said he was prepared to lead evidence to establish that the Registrar and other Board officers threatened to and ultimately did enlist the assistance of police and sheriff's officers, and that a Board officer eventually used force to enter the respondents' premises and post notices in the company of a sheriff's officer who threatened to arrest anyone who interfered. There was no suggestion that the force used was in excess of that required to enter and post notices. Counsel's argument was that the Board had no jurisdiction to use any force at all, and its officers' having done so gave rise to a reasonable apprehension of bias because the Board was thereby made to appear the ally of the trade union. Counsel sought the applicant/complainant's agreement to these facts, but the applicant/complainant put the respondents to the strict proof of their allegations.

5. Before leading evidence, counsel for the respondents asked that this panel of the Board issue subpoenas directed to the Registrar, the Board Solicitor and the Board officers who had attended at the respondents' premises and, further, give its consent under section 109 of the Labour Relations Act to the giving of testimony by those persons in the proceedings before it. Counsel explained that he wished the Registrar's testimony to establish what took place in a telephone conversation he had with the respondents' General Manager, Mr. Chelminsky, on September 20th, the Board Solicitor's testimony to establish what took place in a telephone conversation he had with the respondents' solicitor on September 23rd and the testimony of the Board officers to establish what took place in their dealings with others during their attendances at the respondents' premises on September 20, 23 and 26, 1985. After considering the parties' submissions, we ruled orally that we would not consider compelling or consenting to the testimony of any Board officer or employee until after the respondents had led evidence of their own witnesses with respect to the matters about which testimony of Board officers and employees would be sought. Counsel for the respondent then called three witnesses and, at the conclusion of their evidence, declined the opportunity to renew his request with respect to the testimony of the Registrar, Board Solicitor and Board officers. Counsel for the trade union called no witnesses. Accordingly, the testimony of the respondents' three witnesses is the only evidence before us with respect to the behaviour complained of by the respondents. Before turning to that evidence and the preliminary issues themselves, it might be helpful to give a brief explanation of our ruling on the request to compel testimony of Board officers.

6. Section 109 of the Labour Relations Act provides:

109. Except with the consent of the Board, no member of the Board, nor its registrar, nor any of its other officers, nor any of its clerks or servants shall be required to give testimony in any civil suit or in any proceeding before the Board or in any proceeding before any other tribunal respecting information obtained in the discharge of their duties or while acting within the scope of their employment under this Act.

Although officers of the Board are regularly involved in settlement discussions, section 109 goes beyond merely protecting settlement discussions from disclosure; it is designed to ensure that participants in the settlement process are confident that the principle that disclosure of their conversations with the Board officers cannot be compelled is not hedged about with technical exceptions and legal definitions: see, Seven-Up Pure Spring Ottawa, [1984] OLRB Rep. Jan. 87 at paragraphs 12 to 17. Indeed, prohibition against disclosure imposed by section 109 extends beyond information which might be obtained in settlement discussions to information of any kind whatsoever which anyone connected with the Board might obtain in the discharge of his or her duties or while acting within the scope of his or her employment. One of the interests served by section 109 is the interest of the Ontario Labour Relations Board in protecting both the appearance and the fact of its impartiality. The Board's officers and employees should not lightly be placed in a position of appearing to take sides by testifying at the instance of one of the parties to a dispute about information which they may have gained in the course of their employment with the Board. This interest is the Board's interest as an institution, not the personal interest of the Board officer or employee whose testimony is sought. That is reflected in the fact that it is the Board's consent, not the consent of the potential witness, which is required before a Board officer or employee can be compelled to testify. The provision to the Board of a discretion to consent to testimony recognizes, obviously, that there may be some circumstances in which the interests of justice override the interests which the section is designed to protect. Such circumstances may arise where it is alleged that the Board officer or employee has acted improperly in the course of his duties. Where an issue of that sort becomes relevant in a hearing before the Board, the Board's interest in the fact and appearance of its impartiality may, together with the interests of the parties and of the officer or employee in question, all make it desirable to compel or permit the officer or employee to testify. Whether that is the issue at stake or not, however, when the applicant for consent has available to it some other means of proving the facts which it wishes to elicit by means of the testimony of Board officers or employees, the Board will not ordinarily be prepared to consider granting its consent under section 109 until the applicant for consent has exhausted those other means. This approach reflects two concerns. One is that the Board embark on a balancing of the aforementioned interests only when it appears necessary, not just convenient, to use Board-employed persons as witnesses. The other concern is that an inquiry into alleged misbehavior of Board officers or employees not be taken to the point of calling on the officer or employee to account for his or her actions when all the Board has before it are unsworn and untested allegations of misconduct.

7. These applications and complaint were filed with the Board on Friday, September 13, 1985, under cover of a letter which stated that the trade union would rely on the provisions of section 8 of the Labour Relations Act in connection with its application for certification and that the facts alleged in that connection were the facts alleged with its section 89 complaint, as set out in a six page Appendix. In that letter counsel asked that these matters be consolidated and that the Board set aside ten days for hearing.

8. The following Monday, September 16, 1985, the Registrar's office set about preparing the usual bundle of material for mailing to the respondent employers with respect to the certification application. Pursuant to section 2 of the Board's Rules of Procedure, the Registrar fixed a terminal date of September 24, 1985, for that application and scheduled the hearing of it for Friday, October 4, 1985. On September 17, 1985, each respondent was sent three envelopes (one to each of the three municipal addresses) by Priority Post. Each contained the following letter to the respondent from the Registrar:

United Steelworkers of America, and Plaza Fiberglas Manufacturing Limited, Plaza Electro-Plating Limited, and Citron Automotive Ltd. (Municipality of Metropolitan Toronto)

I am enclosing herewith the following documents:

(a) Form 4 Notice of Application for Certification and of Hearing) and a copy of Form I (Application for Certification),

(b) Form 6 (green) (Notice to Employees of Application for Certification and of Hearing),

(c) Form 74 (Return of Posting Card),

(d) Form 10 (blue) (Reply to Application for Certification) in blank, and

(e) Schedules to Form 4.

Please read these documents carefully.

I draw your attention to section 77 (1) of the Rules of Procedure of the Board which requires you to post immediately Form 6 (green) on your notice boards or in such conspicuous locations on your premises (including the boiler room) as may be necessary to bring this matter to the attention of your employees who may be affected by the application.

You are required to return to this office forthwith Form 74 (Return of Posting Card) duly completed.

Copies of the Labour Relations Act are available upon request.

You will note that the Board will commence its hearing of this case in its Board Room. 6th Floor, 400 University Avenue, Toronto, Ontario, M7A 1V4, at 9:30 AM. EDT, on Friday, October 4, 1985.

The letter of September 13, 1985, and the Appendix referred to in it were part of the certification application and copies of them accompanied each of these letters. The bundles of material sent by priority post to 70 Vanley Crescent were returned marked "unknown", but the respondents acknowledge that the other envelopes were received by them on September 18, 1985. Apart from an as yet unparticularized complaint about lack of particularity in the Appendix to the certification application and complaint, the respondents have not suggested that these materials were inadequate as notice to them of the trade union's certification application. The Form 4 notice they received required that the respondents file a reply, lists of employees and specimen employee signatures by the terminal date. The respondents have not filed any of the required materials, and did not post the green notices to employees as required by the Registrar's letter, the Form 4 notice and section 77(1) of the Board's Rules of Procedure.

9. The trade union's related employer application under subsection 1(4) and its complaint under section 89 of the Act were processed next. The Registrar fixed the terminal date for the application under subsection 1(4) as September 26, 1985, and scheduled the hearing of that application and of the section 89 complaint for October 4, 1985. The Registrar's office prepared standard form letters dated September 20, 1985, to the applicant and respondents and the material referred to in those letters. That material included notices to employees in Form 33, about which the Registrar's letter to the respondents in the related employer application said this:

It is my direction that the Notices to Employees of Application under Subsection 4 of Section 1 of the Act and of Hearing (green) be posted immediately by you, in conspicuous locations on your premises, to bring this matter to the attention of all employees who may be affected by the Application.

The respondents acknowledge receiving the letters of September 20th and enclosures in the related employer application and section 89 complaint. Except for the aforementioned complaint about lack of particularity in the Appendix to the section 89 complaint, the respondents have not suggested that these materials were inadequate as notice to them of the application and complaint. The respondents did not post the Form 33 notices to employees.

10. On September 20, 1985, the Registrar received a letter from the applicant advising that it had been unable to confirm for the Board the posting by the respondent of notices to employees of the certification application, as the Registrar requests in his standard form letter to applicants for certification. Late that afternoon, a Labour Relations Officer attended at the offices of Plaza Fiberglas and spoke to Mr. Chelminsky.

11. Mr. Chelminsky testified that a woman came to his office that afternoon, told him she was with the Ontario Labour Relations Board and handed him a new set of materials in an envelope. She told him the Board was not sure whether the respondents had received the original mailing and that she wanted to enter the premises to post notices to employees. Mr. Chelminsky replied that Ms. Sabina Citron had that day written to the Registrar to say that the respondents had not yet obtained legal counsel and to request that the hearing of October 4, 1985, be postponed. He refused to let the Labour Relations Officer enter and post the notices. She asked if she could telephone the Registrar. He dialed the number and handed her the telephone. After speaking for a while, she handed Chelminsky the receiver and told him the Registrar wished to speak to him. The Registrar introduced himself, and said that he wanted Mr. Chelminsky to post the notices right away. Mr. Chelminsky mentioned Ms. Citron's letter and said he wanted to get legal advice. The Registrar responded in what Mr. Chelminsky at first described as a "very angry voice" and, as Chelminsky put it, "practically ordered" Chelminsky to post the notice or he would get the sheriff to make him do it. Pressed by respondents' counsel about the Registrar's tone of voice, Chelminsky described it as "very loud" and, after a pause, said "he was screaming at me".

12. When Mr. Chelminsky's telephone conversation with the Registrar came to an end, he returned the receiver to the Labour Relations Officer, who once again spoke to the Registrar and then hung up. She then told Chelminsky that her instructions were to return to the office, and that the Board would send the sheriff. She left a number of envelopes with Mr. Chelminsky.

13. On the following Monday, September 23, 1985, a solicitor engaged by the respondents wrote this letter to the Board's Solicitor:

I have considered the matters raised in our telephone conversation of this morning. I have read Section 103(2)(d)(e) which does not appear to allow for the forcing of any conduct by the Board prior to a hearing. While that may well have been your practice it appears to me to be without jurisdiction. Accordingly, it is my view that there is no power to force the posting of notices prior to a hearing.

It also is my view, that if your new revised Form either strikes out paragraph 2 in Form Six, or states that it is not applicable, you would have exceeded your authority and are without jurisdiction to issue such a form.

Regulation 546 provides that Form Six be set out in a particular way. Without information from the application, employees who desire to oppose Union Certification would have no

information upon which to base their decision. If the objective of the Form is to give employees an opportunity of replying to an Application for Certification then they must have a meaningful opportunity to consider the matter. I take the position that Form Six as set out in the regulation must be filled out in a way that would direct the attention of the employee to information contained in the Application.

Any attempt to force the posting of a form which is not in accordance with the Regulations would surely be detrimental to the employees and a denial of their rights.

It seems to me that your notifying the police department to accompany your officer will only exacerbate the situation. Your officer has the right to enter into the premises only for the purpose of delivering a proper notice for posting. If the notice is not posted, then you have your remedy.

It seems to me that the Ontario Labour Relations Board should not be getting involved in calling the police to aid one side of an application when the Board itself is to be sitting as an impartial arbiter to determine the merits of that application. You have shown by this conduct that you are siding with one side and have pre-determined the matter, notwithstanding the attempted delivery of a form which does not comply with the regulations.

I would ask you to first tell your officer not to deliver this defective form until you have had an opportunity to further consider my remarks; and second, to discuss the same with me.

I have not as yet been informed of the terminal date fixed for the Application pursuant to paragraph 3. As you indicated, that date would definitely not be September 24, 1985.

I would be pleased to discuss the above matters with you at our mutual convenience.

The respondents' solicitor also wrote to the Registrar that day, asking that the Registrar adjourn the scheduled hearing and contact his (the solicitor's) office to arrange a "mutually agreeable date" for hearing. The Registrar replied by letter dated September 24, 1985, which advised that the matter of an adjournment would have to be raised before a panel on the scheduled hearing date unless the requested adjournment was on consent of all parties.

14. On September 23, 1985, the Board directed the extension to September 27, 1985, of the terminal dates in both the certification application and the related employer application, and authorized a Senior Labour Relations Officer to attend at the respondent's premises and post the Form 6 Notice to Employees of the Certification Application and the Form 33 Notices to Employees of the Application under subsection 1(4) of the Act. Fresh notices were prepared to reflect the new terminal date. That afternoon, the Senior Labour Relations Officer named in the Board's authorization attended on Mr. Chelminsky and gave him copies of the authorization. He sald he proposed to enter and post the notices. After the officer spoke by telephone to the respondents' solicitor at Mr. Chelminsky's request, Mr. Chelminsky advised the officer that the form he proposed to post was not complete as it did not give enough information to employees. The officer persisted; Chelminsky resisted. The officer did not attempt to use force, but said he would call the sheriff or the police. Chelminsky let the officer use his telephone to do so. After making the call, the Senior Labour Relations Officer left the premises and waited outside. He returned twenty minutes later and said that since the police had not arrived he would make a further attempt to effect the posting. Chelminsky physically prevented him from doing so. Two police officers arrived somewhat later. There was further discussion with Mr. Chelminsky, and a telephone conversation between Ms. Citron and one of the police officers, but the notices were not posted.

15. On September 24, 1985, another panel of the Board directed that the terminal date in each of two applications be further extended to September 30, 1985, and further authorized the aforesaid Senior Labour Relations Officer to enter the premises to post the Form 6 and Form 33 Notices to Employees of those applications. The Board's administrative staff prepared revised Form 6 and Form 33 Notices reflecting the extended terminal date, and on September 26th the Senior Labour Relations Officer re-attended at the offices of Plaza Fiberglas, this time in the company of a gentleman who Mr. Chelminsky said introduced himself as "Deputy Sheriff" and displayed a badge. The Senior Labour Relations Officer told Mr. Chelminsky he was there to post fresh notices. Mr. Chelminsky reiterated the respondents' position that the notices were not complete. The Senior Labour Relations Officer said he would be entering to post the notices any way. Chelminsky asked the Sheriff's officer whether the Board's officer could force himself into the plant. The sheriff's officer answered that he was there to make sure that the Board's officer was not disturbed, that the Board's officer had the authority to enter and that he, the sheriff's officer, was prepared to arrest Chelminsky if he prevented the Board's officer from doing so. Chelminsky was shown a piece of paper which gave the Senior Labour Relations Officer authority to enter. As a result of calls placed by Chelminsky, both Ms. Citron and the respondents' solicitor spoke by telephone to the sheriff's officer. Thereafter, the Board's officer proceeded with the sheriff's officer to the door between the office area and the plant. Chelminsky blocked the door. The Board's officer physically moved Chelminsky away from the door with his hand. The sheriff's officer told Chelminsky not to touch the Board's officer. The Board's officer and the sheriff's officer proceeded into the plant and posted two notices, a notice in Form 6 and a notice in Form 33. While the title of proceeding on both forms named all three respondents, the space on Form 6 beside the words "To The Employees of:" immediately below the title was filled in with the name "Plaza Fiberglas Manufacturing Limited" only, and the corresponding space on the Form 33 was filled in only with the name "Citron Automotive Ltd."

16. After effecting posting at 4420 Chesswood, the Senior Labour Relations Officer and sheriff's officer proceeded to 4440 Chesswood. Evidence of their activities there was given by Roman Flicker, an office clerk employed by Plaza Electro-Plating, and Ken Berry, the Plant Manager at Plaza Electro-Plating. Mr. Flicker testified that two men walked into the office area at 4420 Chesswood Drive sometime between nine and ten o'clock in the morning on September 26th. He followed them through the office area into the plant, where he saw them standing beside the time clock in the plant area. One of them started to take papers and scotch tape out of a brief case. Flicker went up to him, touched him on his shoulder and told him he was not allowed to do any thing without the permission of the plant manager. The other man, who later displayed a badge, took Flicker by the arm, moved him to the wall and told him not to touch the first gentleman because he, the man with the badge, could arrest him. The man with the badge had something in his hand that looked to Flicker like a pair of handcuffs. Flicker held out his arms and invited arrest. Mr. Berry then came over and touched the man with the badge, who responded by saying "don't touch me" and displayed his badge. Flicker then went to Mr. Chelminsky's office.

17. Berry testified that after he touched the man who later displayed the badge, that man turned around and said not to touch him, that he would be charged with assault. Berry had his hands up, unconsciously pointing, and the sheriff's officer told him not to point his finger, that that was another assault. At this point the sheriff's officer had displayed his badge, and there was a discussion between the sheriff's officer and Berry about whether Berry had any rights. Berry asked to see the badge again. The officer was co-operative, he brought out his badge and showed it to Berry. The Senior Labour Relations Officer finished posting two notices and the two officers went out again through the office area.

18. As we noted earlier, the respondents' major argument is that the Board has no authority to enter on premises by force to post notices, and its having done so in this case creates a "reasonable apprehension of bias" because it gives the appearance that the Board has sided with the applicant trade union. While it is not suggested, nor is it the case, that any member of this panel participated in any decision or gave any instruction in connection with the preparation or posting of notices before our hearings commenced October 4, 1985, it is the respondents' position that the actions complained of disqualify any quorum of the Board, including this panel, from hearing the trade union's complaint and applications.

19. In the alternative, counsel said that if the Board has the authority to enter premises forcibly in order to post notices, it can only do so if the notices to be posted are authorized by and completed in accordance with the Regulations under the Labour Relations Act. He argued that the Form 6 notices to employees which the Board attempted to and ultimately did post were not proper, as nothing was inserted after the printed words "Your attention is directed to the following information contained in the application:" in paragraph 2 of the notices which the Board sent by mail and sought to post September 20th and 23rd and only the word "None" appeared after those words in the notices actually posted on the 26th. Counsel argued that all the information in the application for certification and the Appendix of allegations filled in support of certification under section 8 of the Act should have been inserted in or accompanied each notice. As the notices were not proper, he submitted, the Board could not authorize entry of premises to post them or the use of force in doing so and, as forcible entry did occur, the Board appears to be the ally of the trade union, with the same jurisdictional result as follows from his main argument.

20. If any panel of the Board could have jurisdiction to hear these matters, counsel argued in the further alternative that this panel is without jurisdiction because of the inclusion in the material before this panel of the detailed allegations in the Appendix to the trade union's certification application and section 89 complaint. Counsel described the allegations contained in the Appendix as "inflammatory", and argued that a reasonable apprehension that we would be unable to make a fair assessment arises from the fact that we will have read these allegations before commencing to hear evidence.

21. Even if no reasonable apprehension of bias arises from the matters complained of, counsel says that notice to the employees of the certification and related employer applications was defective, both because of the way paragraph 2 was completed in the Form 6 notices and because when notices were posted there were no Form 6 notices addressed to employees of Plaza Electro-plating and Citron and no Form 33 notices addressed to employees of Plaza Fiberglas and Plaza Electro-plating. Because of these defects, counsel would have us require the trade union to abandon those applications and file fresh ones.

22. Finally, if we reject any of these arguments counsel asks that we take no further action in these proceedings until the respondents can have a judicial review application heard. As for the scheduling of the hearing of these proceedings on the merits, counsel for the respondents estimates that twenty days of hearing would be required, twice the number estimated by counsel for the trade union. He asks that these days of hearing be arranged to suit the convenience of another lawyer whom the respondents wish to represent them and who is available for only one day in December 1985 and six days in February 1986 out of the 39 days which counsel were told were available to this panel of the Board between December 2, 1985, and February 28, 1986.

23. Since the primary focus of the respondents' submissions is on the alleged existence of a reasonable apprehension of bias, we should first take note of the legal test which is used to determine whether such an argument succeeds. From the decisions of the Ontario Court of Appeal in Re Evans and Milton et al. (1979), 1979 CanLII 1820 (ON CA), 24 O.R. (2d) 181 and Regina v. Valente (No. 2) (1983), 1983 CanLII 1901 (ON CA), 41 O.R. (2d) 187 it seems clear that the test in Ontario is as set forth by Mr. Justice de Grandpre in Committee for Justice and Liberty et al. v. National Energy Board et al., 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369 at p. 394:

the apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is . 'what would an informed person, viewing the matter realistically and practically - and having thought the matter through -conclude."

In applying themselves to the question in this case and obtaining thereon the necessary information, the reasonable and right-minded persons Mr. Justice de Grandpre had in mind would turn first to the Labour Relations Act.

24. The Legislature's objective in enacting the Labour Relations Act ("the Act") is reflected in the preamble to the Act, which reads:

WHEREAS it is in the public interest of the Province of Ontario to further harmonious relations between employers and employees by encouraging the practice and procedure of collective bargaining between employers and trade unions as the freely designated representatives of employees.

Therefore, Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:

The Act requires an employer to recognize and bargain in good faith with a trade union which is certified as the exclusive bargaining agent for a unit of its employees. Unless their ability to express their wishes has been interfered with, the wishes of a majority of the employees in the appropriate unit will determine whether a trade union will be certified to represent all employees in that unit. Certification alters the legal rights and obligations of the trade union, the employees and the employer. Some employers have difficulty understanding that their right to act or speak as they wish has been limited in order to give effect to that policy and that it is their employees' wishes, and not their own, which determine whether they will become obliged to engage in collective bargaining with a trade union. The persons contemplated by Mr. Justice de Grandpre's test would not have that difficulty.

25. The Act permits a trade union to apply to this Board for certification. The Board then determines the trade union's entitlement to certification in accordance with the Act's provisions. The process by which it makes that determination is governed by the rules of natural justice and the provisions of the Statutory Powers Procedure Act, R.S.O. 1980, c.484. Subsection 102(13) of the Labour Relations Act provides that:

(13) The Board shall determine its own practice and procedure but shall give full opportunity to the parties to any proceedings to present their evidence and to make their submissions, and the Board may, subject to the approval of the Lieutenant Governor in Council, make rules governing its practice and procedure and the exercise of its powers and prescribing such forms as are considered advisable.

The regulations referred to by respondents' counsel in argument, and by their solicitor in his letter of September 23rd, are Rules of Procedure made by the Board pursuant to this subsection.

26. In determining its procedure, both generally and in individual cases, the Board is guided by the need for expedition in labour relations matters generally and especially in certification proceedings. In Journal Publishing Co. of Ottawa Ltd. et al. v. Ottawa Newspaper Guild, Local 205 et al., March 31, 1977 (Ont. C.A.), unreported, Estey, C.J.O. as he then was, said:

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.

Laskin, J.A., as he then was, made a similar observation in Hotel and Restaurant Employees

and Bartenders International Union, Local 197 et al. v. Nick Masney Hotels Ltd., [1970] 3

O.R. 461 (Ont C.A.) at page 465:

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.

27. While certification proceedings are initiated by a trade union's application, they are the Board's proceedings. It is the Board's obligation to give notice of its hearing to those whose rights may be affected: Statutory Powers Procedure Act, subsection 6(1). The employees whose rights are affected are those who might fall within the bargaining unit which the Board finds appropriate for collective bargaining, but this finding is not made until after interested parties, including employees, have the opportunity of a hearing. Accordingly, notice should be given to the employees who fall within the bargaining unit described in the trade union's application and to any other employees who work in the same work place or work places with them. The ideal way to give such notice is by a posting in the work place or work places of the affected employees. Because the respondent employer can best identify the affected employees, Rule 77(1) of the Board's Rules of Procedure provides:

77.-(l) Where the registrar serves an employer with notices of application for posting, the employer shall post the notices immediately upon their receipt and keep them posted upon his premises in conspicuous places where they are more likely to come to the attention of all employees who may be affected by the application until the expiration of the terminal date for the application.

The authority for such a rule is found in paragraphs (d) and (g) of subsection 103(2) of the Labour Relations Act, which provide:

(2) Without limiting the generality of subsection (1), the Board has power,

(d) to require persons or trade unions, whether or not they are parties to proceedings before the Board, to post and to keep posted upon their premises in a conspicuous place or places, where they are most likely to come to the attention of all persons concerned, any notices that the Board considers necessary to bring to the attention of such persons in connection with any proceedings before the Board;

(g) to authorize any person to do anything that the Board may do under clauses (a) to (f) and to report to the Board thereon;

The current language of paragraph (d) results from the generalization in 1966 of the corresponding provision of the predecessor legislation (R.S.O. 1950, c.194, s.67(2)(d)), which read:

(d) to require employers to post and to keep posted upon their premises in a conspicuous place or places where they are most likely to come to the attention of all employees concerned, any notices that the Board deems necessary to bring to the attention of such employees in connection with any proceedings before the Board;

Clause 103(2)(d) is the foundation for the obligation to post found in section 77(1) of the Rules, referred to in the Form 4 notice and explained in the Registrar's standard form letter. The concluding words of paragraph (e) of subsection 103(2) of the Act were added to its predecessor in 1961 to ensure that the Board's notices could and would be posted in the work place despite any failure or refusal by an employer or occupant to discharge its obligation to post. That paragraph gives the Board the power:

(e) to enter any premises where work is being or has been done by the employees or in which the employer carries on business, whether or not the premises are those of the employer, and inspect and view any work, material, machinery, appliance or article therein, and interrogate any person respecting any matter and post therein any notice referred to in clause (d);

28. The Board's power to authorize persons to enter premises to post the Board's notices would be singularly ineffective for its intended purpose if, as the respondents argue, that power could be exercised only with the occupant's consent. Respondents' counsel argued that the power to use force is not necessary to the effective use of the power to enter conferred by subsection 103(2)(e) of the Labour Relations Act because that Act gives the Board "alternatives" to the use of force. When asked, he refused to say what those "alternatives" were because, he said, it was the Board solicitor's function to advise it, not his. We see no need to guess at an argument counsel refuses to elaborate. We are not satisfied that there is any more practical or effective alternative to posting as a means of giving notice to employees whose number and identity are unascertained, and no effective alternative to the use of reasonable force, where necessary, to ensure that adequate notice of an expeditious hearing and imminent terminal date are given effectively and without delay. Section 27(b) of the Interpretation Act R.S.O. 1980. c.219, provides:

27. In every Act, unless the contrary intention appears,

(b) where power is given to a person, officer or functionary to do or to enforce the doing of an act or thing, all such powers shall be understood to be also given as are necessary to enable the person, officer or functionary to do or enforce the doing of the act or thing;

With the assistance of that provision, having regard to the purpose and statutory context of subsection 103(2)(e) of the Act, we conclude that the power to enter conferred by that subsection includes the authority to use reasonable force to effect entry. We are supported in that conclusion by the opinion of the Ontario Law Reform Commission expressed at page 7 of its 1983 Report on Powers of Entry:

Although there is, apparently, an absence of authority in Ontario precisely on this issue, conferral of a power to enter premises would seem to grant authority to use appropriate force to effect entry in the event of recalcitrance on the part of the occupier. .... Grove v. Eastern Gas Board, [19521 1 K.B. 77 at 82, [1951] 2 All E.R. 1051 at 1053 ........ ]. This proposition may be supported by section 27(b) of the Interpretation Act. Indeed, if the position were otherwise, an entry could be effected only with the consent of the occupier, and in such a case no statutory authorization would be required". [Fowler v. Taylor, [1957] V.R. 593 (S.C.) at 596. See, also Egg Marketing Board (N.S.W.) v. Cassar, [1978] 1 N.S.W.L.R. 90 (S.C.)]

29. Subsection 102(3) of the Act provides that the Board "shall" determine its own practice and procedure and "may" make rules on that subject. The Board is not required to make any rules; it can determine procedure on a case by case basis, and certainly does with respect to matters not covered by the present rules. The Board's Rules of Procedure do not make provision for every question which might come before it. No rules or forms are prescribed for an application under subsection 52(3) of the Act for consent to early termination of a collective agreement, for example. No one would seriously suggest that the absence of such rules deprives the Board of jurisdiction to entertain such an application. Similarly, the Board is not limited to the forms of notice provided for in its general rules. The Board can and does from time to time devise and require the posting of notices which differ in form or subject matter from those provided for in the Board's rules: see A. G. Simpson Company Limited, [1985] OLRB Rep. Sept. 1341, at paragraphs 9 to 11, and The Hospital for Sick Children, [1984] OLRB Rep. Feb. 281 at paragraph 9; and see paragraph 27(d) of the Interpretation Act.

30. While the Board is not required to make rules in order to have procedures, without rules every procedural question, including the content of notices of hearing, would have to be determined by a quorum of the Board for each case on an ad hoc basis. What a rule does is make prior adjudicative determination of procedure unnecessary with respect to the subject matter of the rule. Rule 4, for example, deals with the notices to be given when a certification application is filed with the Board. The rule tells the Registrar to serve the respondent with a copy of the application, a notice in Form 4 or 5 and "an appropriate number of notices of application in Form 6 or 7, as the case may be, for posting." This confers on the Registrar the authority to fill out these forms without reference to a quorum of the Board for approval of his draftsmanship.

31. The Registrar is not required to set out in paragraph 2 of Form 6 all of the information contained in the application for certification. If the Board had intended that the notice to be posted include all the information in the certification application, its Rules would have required that employers post a copy of the application along with the Form 6. Paragraph 2 is included in Form 6 so that the Registrar can include additional information in those cases in which he considers that desirable. Such cases are rare; paragraph 2 of Form 6 is almost always left blank. It is no more necessary for the Registrar to insert something in paragraph 2 than it is for an applicant trade union to insert something in paragraph 7 of its Form 1 application after the words "Other relevant statements (attach additional pages if necessary):" or for a respondent employer to insert something after the same words in paragraph 10 of a Form 10 reply.

32. Whether or not it is factually or legally adequate as notice of the proceedings to which it refers, a notice in Form 6 completed as he sees fit and signed by the Registrar is in a form authorized by the Board's Rules of Procedure. Thus, even on the respondents' misreading of paragraphs (d) and (e) of subsection 103(2) of the Act, these were notices the Board was entitled to post on the respondents' premises. However, it is important to correct that misreading.

33. Paragraphs (d) and (e) of subsection 103(2) of the Act speak about "any notices the Board considers necessary." The Board is not limited to the forms it may have prescribed in the exercise of its rule-making power. The Board may require or effect posting of any notice it considers necessary. It is implicit in the other panels' decisions of September 23rd and 24th that they considered it necessary to effect posting of the very notices in question here. There is nothing about the manner in which the Form 6 notices were filled out which deprived the Board of its jurisdiction to authorize entry to effect their posting.

34. In summary, we conclude that the orders of September 23rd and 24th were within the jurisdiction of the Board. The Board's officer was thereby authorized to enter the respondent's premises without their consent and to use reasonable force in so doing. The fact that the Labour Relations Officer entered without the respondents' permission pursuant to the order of September 24th and used reasonable force in so doing does not give rise to a reasonable apprehension that any panel of this Board would be biased in its adjudication of the matters in issue between the respondents and the applicant. Indeed, it seems to us that would be the proper conclusion even if a Board officer had gone beyond his or her legal authority in attempting to post these notices. After all, these are the Board's notices, notices the Board is under an obligation to bring to the attention of employees without delay. The persons contemplated by Mr. Justice de Grandpre's test would have no difficulty comprehending that each action complained of by the respondents was consistent with a bona fide intention in the actor to ensure the proper functioning of the Board's own processes and assist the Board in discharging its statutory duties with the expedition of which Justices Laskin and Estey spoke in the passages quoted above. They would not conclude that the actors or the Board had allied with the applicant trade union.

35. We turn to the argument that a reasonable apprehension that this panel will be biased arises from the fact that the trade union's detailed allegations of wrongdoing by the respondents are among the materials before us.

36. Rule 72 of the Board's Rules of Practice requires a party to file with the Board particulars of the material facts on which he will rely if he intends to allege at hearing that another person has engaged in improper or irregular conduct. Material filed pursuant to this rule is served on the opposite party by the Board in the discharge of its obligation under section 8 of the Statutory Powers Procedure Act. It is also put before the panel which is to conduct the hearing in which the allegations will be made, along with any other forms or correspondence filed by the parties which outline their positions on the matters in issue between the parties. In short, particulars of alleged improper conduct form part of the "pleadings" from which the parties and the panel hearing the matter ascertain, both before and during the hearing, what case each party intends to make or has to meet. The allegations here are not unlike those with which the Board deals regularly. The most exceptional thing about them is counsel's complaint that they say too much. The argument we usually hear is that the particulars filed with a complaint do not say enough.

37. The basic premise of the respondents' argument on this point is that the members of this panel lack the capacity to distinguish between allegations and evidence and would fail to base their decisions only on the latter. Indeed, in the respondents' submission our capacity to perform that most basic adjudicative function is so limited that even our hearing counsel make a full opening statement in a case of this kind would raise an apprehension of bias. We can see no merit in this argument.

38. As we turn finally to the adequacy of the notice the employees did ultimately receive, we should first make it clear that we do so because the Board is always concerned to satisfy itself that adequate notice of its proceedings has been given to interested persons, and not because we regard the respondents as having any legal right to complain about the alleged inadequacy of notice to employees or to avoid their own obligations in these proceedings on that ground (as to the respondents' having no right to do either see Cunningham Drug Stores Ltd. v. Labour Relations Board, 1972 CanLII 143 (SCC), [1973] S.C.R. 256 at pages 264-265 and Canada Labour Relations Board v. Transair Limited et al., [1976] 1 S.C.R. 722 at pages 743-745).

39. We have already dealt with and rejected the respondents' argument that all the information in the certification application, including the allegations on which the claim for certification under section 8 is based, must be included in or accompany the notice of hearing in order for it to be a notice in Form 6. Turning from form to substance, we are equally satisfied that it is neither necessary nor desirable to include such information in the Board's notice of the application for certification. Subsection 6(2) of the Statutory Powers Procedure Act speaks to what is necessary in a notice of hearing. It does not require that a notice of hearing set out a detailed outline of the pleadings or the names of other interested parties or the address and telephone number of the applicant. Its requirements would be met by a completed Form 6 notice addressed to all the affected employees, with paragraph 2 left blank. As to what may be desirable in a notice beyond the bare legal requirements, brevity is the most desirable characteristic in a notice to be posted in the work place. The object is to ensure that the essential points are conveyed and not lost in a sea of detail. The existing Form 6 covers the essential points, and employees can ascertain details of the parties' filings by contacting the Board at the address indicted on the Form or simply by attending at the hearing.

40. The respondents argued that the notice of hearing should give notice of the fact that the trade union is asking to be certified pursuant to section 8 of the Act, which permits certification without a representation vote in certain circumstances without requiring that the union demonstrate the level of membership required to support an application under either section 7 or section 9. Counsel argued that an employee with knowledge of the law might be misled into thinking this is an application in which the union will not be certified without a vote unless it demonstrates that more than fifty-five per cent of the employees in the bargaining unit are members of the union. The difficulty with this argument is that an employee who knew the law would know there is more than one basis on which certification without a vote can be granted. Nothing in the Form 6 notice would suggest to that employee that the application for certification is based on one section of the Act rather than another.

41. The Form 6 notice of hearing does not purport to set out any details of the grounds on which the applicant claims certification, or of the detailed questions of fact which may have to be determined in order to adjudicate that claim. It would be impracticable, if not impossible, to do so. The union can continue to gather relevant membership evidence up to the terminal date. The employer's position on the scope of the appropriate unit and the specific identity of employees in that and the union's proposed unit are not known until after the terminal date. It is not always possible to say, at the time notice of hearing is given, whether section 8 will be invoked by the union; not infrequently, the facts on which a claim under section 8 comes to be grounded arise after the respondent employer gets notice of the application, and sometimes after hearings commence. The fluid nature of the issues is a basic characteristic of certification matters. The only certainty when the notice of hearing is prepared and posted is that the applicant trade union is asking to be certified as exclusive bargaining agent for employees of the respondent; the matters which will be put in issue with respect to that claim are not fully ascertainable before the hearing. It is important to note that, with one exception, an interested employee is not obliged to take a position on these issues prior to the hearing, when she or he will be entitled to participate and speak to and lead relevant evidence about any issue raised by other parties. The one exception is that if evidence of employee opposition to representation by the applicant will be relied upon it must be in writing and filed by the terminal date, as the Form 6 notice states. In this context, it would be misleading to start including reference to particular issues in the notice of hearing rather than continue the Board's existing practice, which is what we find preferable.

42. The respondents' counsel also suggested that the Board should post its notices in a number of languages, including two East Indian languages whose names he had not ascertained. We are not satisfied that this is necessary, for reasons set out in Federated Building Maintenance Co. Ltd., [1979] OLRB Rep. Oct. 974 at paragraphs 12 and 13.

43. The only concern we have about the notice given to the respondents' employees is that the Form 6 notice was specifically addressed only to employees of Plaza Fiberglas and the Form 33 notice was specifically addressed only to the employees of Citron. It is not hard to understand how that happened, but we have to deal with the fact that it did. It is unnecessary and would be quite inappropriate to require the filing of fresh applications. The interests of the unnotified employees will be fully protected if the terminal dates in these applications are extended and fresh notices to all affected employees posted in the respondents' premises.

44. We are under no obligation to delay our proceedings pending disposition of an application for judicial review: Cedarvale Tree Services Ltd. v. Labourers' International Union of North America, Local 183, 1971 CanLII 341 (ON CA), [1971] 3 OR. 832 (Ont. C.A.). We see no reason to do so in this case. Accordingly, we will deal here with the scheduling of the hearing of our hearing of the merits of these applications and complaint.

45. As we noted earlier, counsel who appeared for the respondents asked that hearing dates be scheduled to suit the convenience of the lawyer whom the respondents wished to represent them. The dates available from the Board begin in December, 1985. A number of dates are available in January and February 1986, but dates in the last week of February are no longer available and this panel's availability in March is in doubt. In any event, a hearing schedule which ended later than February, 1986, would delay disposition to an extent which is unacceptable in matters of this kind. Counsel advised that the lawyer in question was completely unavailable, for reasons not known to counsel, throughout the first six weeks of 1986. It appears, therefore, that his convenience cannot be accommodated without doing violence to the principle of expedition referred to by Justices Laskin and Estey in the passages quoted earlier.

46. We direct that these matters be scheduled for hearing on the following dates:

December 19, 1985

January 10, 13, 14, 15

January 27, 28, 29

February 7, 10, 11, 12

February 17, 18, 19

In addition, the Registrar shall schedule a pre-hearing conference with another Vice-Chairman at some time prior to December 19, 1985. The time between the first and second hearing dates will accommodate the disposition of any remaining preliminary issues and compliance with any order which may result. The blocks of dates in January and February provide hearing dates which are as contiguous and continuous as the Board's resources and caseload can permit. If counsel preferred by the parties are not available on these dates and cannot agree on any other equally expeditious series of available dates, then other counsel will have to be engaged: Re Cockings and University Hospital Board, (1975), 1975 CanLII 1183 (SK QB), 54 D.L.R. (3d) 581 at pp. 596-597 (Sask).

47. We direct that the terminal date in Board Files 1465-85-R and 1466-85-R be extended to that date which is two weeks from the date of this decision and that fresh Form 6 and Form 33 notices be prepared under the amended titles of proceeding in those files, as follows:

a) below the title of proceeding, each notice shall be addressed as follows:

TO THE EMPLOYEES OF PLAZA FIBERGLAS MANUFACTURING LIMITED AND TO THE EMPLOYEES OF PLAZA ELECTRO-PLATING LIMITED

b) the blank in the second and third lines of paragraph 1 shall be completed with the words "employees of Plaza Fiberglas Manufacturing Limited and Plaza Electro-Plating Limited";

c) paragraph 2 of Form 6 shall be left blank;

d) the terminal date shown shall be as directed above;

e) the hearing date shall be shown as December 19, 1985; and,

f) in all other respects except their date, the notices shall be in the same form as those posted September 26, 1985.

Three copies of each form shall be sent to each of Plaza Fiberglas and Plaza Electro-plating at their respective addresses: 4420 Chesswood Drive and 4440 Chesswood Drive.

48. We further direct that the respondents post the notices which accompany this decision immediately upon their receipt and keep them posted upon their respective premises at 4420 and 4440 Chesswood Drive and 70 Vanley Crescent, in conspicuous places where they are most likely to come to the attention of all employees who may be affected by the applications referred to therein, until the expiration of the terminal date for the applications.

49. Stuart Netherton and James Bowman, Labour Relations Officers, are each hereby severally authorized to enter the respondents' said premises from time to time during the normal business hours to view all documents posted therein and interrogate any person found in the premises to determine whether the Board's aforesaid notices have been and remain posted and, if those notices have not been or do not remain posted, to post further copies thereof, and to continue to do as authorized hereby until the expiration of the terminal date in the applications to which the notices relate~ and to report to the Board on the results of their attendances. The authority of either of the two aforesaid persons to do as he has been hereby authorized does not require that he be accompanied by the other of the two.

50. We further direct that the respondents complete and file by the aforesaid terminal date the Schedules to the Form 4 Notices they received September 18, 1985, and the specimen signatures required by Form 4.

51. In the event any interested person files a statement of desire to make representations in connection with any of these matters, the Registrar shall advise that person of the additional dates scheduled for the hearing of these matters.