Laura Godin v. United Food & Commercial Workers Union, Local 409, 1986 CanLII 1666

Ontario Labour Relations Board

[1987] OLRB Rep. May 684

0901-86-R Laura Godin, Applicant V. United Food & Commercial Workers Union, Local 409, Respondent v. Current River Foods Ltd., Intervener

BEFORE: Robert J. Herman, Vice-Chair, and Board Members D. A. MacDonald and H. Kobryn.

APPEARANCES: William G. Shanks, Dave Krasnichuk and Laura Godin for the applicant; W. Dubinsky and Don Onichuk for the respondent; F. J. W. Bickford and Jim Bacarri for the intervener.

DECISION OF THE BOARD; May 1, 1987

1. The name of the respondent is amended to read: "United Food & Commercial Workers Union, Local 409".

2. This is an application for decertification filed pursuant to section 57 of the Labour Rela­tions Act. During the course of the first day of hearing into this matter, before the Board heard any evidence, counsel for the intervener employer made a motion to the Board to have both the pres­ent panel, and the entire Board, disqualified from continuing with this matter. This motion was fully argued before the panel, which reserved its decision, and subsequent to the hearing counsel for the intervener forwarded written submissions confirming and expanding upon his oral submis­sions. We must decide whether we should disqualify ourselves, on the grounds of bias or reason­able apprehension of bias, and whether in the interest of fairness to all parties, a differently consti­tuted panel of the Board should conduct this proceeding.

3. The intervener employer was found to be a successor employer, pursuant to section 63 of the Act, in a decision of the Board dated November 7, 1986 (Board File No. 1799-85-R). As that panel of the Board (differently constituted in its entirety) stated at paragraph 18 therein: "Therefore, Current River Foods Ltd. is the successor employer to Canada Safeway Limited respecting the Current River store and is bound to the collective agreement between Canada Safe-way Limited and United Food & Commercial Workers International Union, Local 409 which was in effect at the time of the sale." Current River Foods Ltd. applied for reconsideration of that deci­sion in a letter dated December 16, 1986. In a decision dated December 31, 1986, that panel of the Board dismissed the application for reconsideration.

4. The applicant Laura Godin, filed this application for decertification on July 2, 1986, before the Board had issued its decision declaring the intervener employer the successor employer to Canada Safeway Limited. This matter was originally scheduled to be heard on August 5, 1986 but was adjourned twice, at the request of the respondent union and with the agreement of the other parties. This matter came on for hearing on February 24, 1987. As the foundation of the alleged apprehension of bias lies in the events that occurred at the hearing, it is necessary to set them out in some detail.

5. The hearing commenced with counsel for each of the parties making brief opening com­ments. As part of his opening comments, counsel for the respondent union confirmed the two pre­liminary issues set out in the union's filed reply; the question of timeliness and the union's request for a direction that the employer provide certain information prior to commencement of a hearing on the merits. In turn, during his opening submissions, counsel for the applicant filed with the Board a notice to bargain, which the parties agreed had been received by the intervener employer on July 10, 1986. All counsel agreed the relevant collective agreement had expired on August 31, 1986.

6. The Board then asked whether the applicant was legally and properly an employee in the relevant bargaining unit, for purposes of the Labour Relations Act and the within application, and accordingly, whether she had status to bring this application. None of the pleadings indicated whether the applicant, or any employees who signed the petition in support of the application, had been employees of the predecessor employer or had been hired subsequent to the sale by the inter­vener employer. The Board asked the parties whether the applicant's status was at issue, and refer­red the parties to Emrick Plastics Inc. [1982] OLRB Rep. June 861 and April Waterproofing Limited, [1980] OLRB Rep. Nov. 1577. (Those cases suggest that the predecessor's employees have a right to continued employment in the bargaining unit and that, in some circumstances, employees hired contrary to the terms of the collective agreement would not be employees in the bargaining unit defined in the collective agreement. See also Culliton Brothers Limited [1983] OLRB Rep. March 339.) Counsel for the respondent thereupon stated he had intended to deal with that issue first, then turn to the timeliness issue, followed thirdly by the issue over whether the Board direct the employer to produce certain information. Counsel for the respondent pointed out he had with him copies of both cases referred to by the Board, together with other cases on the same point, and had extra copies of those cases to be handed to the Board and fellow counsel dur­ing his submissions on the status issue.

7. Counsel for the applicant, Mr. Shanks, indicated he was taken by surprise by the raising of the status issue and would need a recess in order to review the matter. Mr. Bickford, counsel for the intervener employer, indicated he also was caught by surprise, both because the Board was raising the issue and because he had received no prior notice from counsel for the respondent. He also noted that the evidence before the panel of the Board which heard the section 63 matter had indicated that all employees in the bargaining unit employed by Safeway, the predecessor employ­er, had been absorbed elsewhere into the operations of Safeway and none of those employees had transferred over to or were at any time working for Current River Foods Ltd. On that basis, coun­sel submitted there could be no concern over whether the applicant had status to bring this appli­cation. The Board recessed to allow both counsel to consider their positions and advise whether they were prepared to deal with the applicant's status forthwith, or whether they required an adjournment in order to properly address the matter.

8. After the recess, Mr. Shanks and Mr. Bickford agreed that none of the current employ­ees for the intervener were employees of the intervener at the time of the sale. They further agreed the respondent union was entitled to represent employees of the intervener subsequent to the sale. With respect to the status of the applicant to bring this application, both counsel submitted the onus was on the respondent union. Mr. Bickford further submitted that the intervener employer could in no way be faulted for not hiring individuals who had been absorbed by the predecessor employer, and that this fact was a complete answer to the status question, for the intervener employer must therefore have been entitled to hire employees other than those who had worked for the predecessor. He also submitted that consideration of the "status" issue was contrary to the principles of natural justice. In response to the Board asking how consideration of this issue might violate those principles, he did not respond. Mr. Bickford also stated that the Board protracting the proceeding was a serious disservice to all parties.

9. The Board reserved on the question of which party had the onus with respect to the sta­tus of the applicant to bring this proceeding. The Board noted, however, that the order in which parties would be asked to lead evidence was not the same question as where the onus lay, and the Board directed the intervener employer to first lead evidence with respect to the circumstances of hiring of the applicant, and other employees at work as of the application date, with respect to such matters as the names of those who had been hired, when they had been hired and whether union dues had been deducted on their behalf, as required by the collective agreement. After cross-examination, the intervener would be afforded the opportunity of liberal redirect. After the employer evidence concerning the hiring and employment circumstances of the employees in ques­tion, the union would lead its evidence, followed by the applicant's evidence. During its evidence, the union was to lead evidence of any alleged violations of the collective agreement in the hiring of the employees in question. The employer was thereafter to have a liberal right of reply evidence, to ensure it had an opportunity to lead its own evidence with respect to any alleged violations of the collective agreement, and to ensure it did not have to lead such evidence until the union had first led evidence in support of its allegations. The Board indicated an adjournment would be granted, if requested. Finally, the Board declined to issue a direction to the intervener requiring it to provide to the respondent union the information requested by the respondent. In response to a question from Mr. Bickford, the Board stated the employer was to go first and lead evidence only with respect to the circumstances of hiring, and not evidence with respect to any alleged breach of the collective agreement.

10. Mr. Bickford forthwith asked for reconsideration of this decision. He submitted there was something procedurally wrong with the Board's direction that the employer proceed first to lead evidence, when the Board had not ruled on the question of onus. In his submission it was an extraordinary decision by the Board and it was incumbent upon the Board to first deal with the question of onus. He also submitted that a party making an objection must call evidence first with respect to the basis of the objection. The Board asked what was unfair about asking the intervener to lead evidence first, with respect only to the circumstances of hiring. Counsel's response did not suggest any aspect of the direction which might be unfair. Counsel also submitted the Board's direction with respect to the order of proceeding was against natural justice, against fairness, and against recognized procedures for making objections before adjudicative bodies.

11. After recessing, the Board reaffirmed its decision. The issues to be considered by the Board were at that stage the status of the applicant to bring the application and the status of those who signed the petition to be counted as employees within the bargaining unit. In order to prop­erly consider these issues, the Board (and the parties) needed to be aware of the circumstances of the hiring of the employees in question, and evidence of this was within the possession of the employer. It therefore made sense that the employer lead evidence first, with respect to those cir­cumstances of hiring. The Board reaffirmed that evidence in chief and cross-examination would be restricted to matters concerning the general employment circumstances of those individuals. The union would then lead its evidence in support of alleged breaches of the collective agreement and in the hiring of the employees in question, and therefore in support of its submission that the appli­cant had no status to bring the application. The Board affirmed that the union witnesses would first be cross-examined by the employer, and then by the applicant. After the union evidence, the employer was to have the opportunity to lead its evidence with respect to the status issue, followed finally by the evidence of the applicant on the status issue.

12. After the Board delivered its decision denying reconsideration and reaffirming its prior decision, Mr. Bickford indicated his client was concerned with the course of the hearing to date, and had formed a perception of bias. Accordingly, he moved that another panel of the Board be constituted to hear any further matters. Counsel also requested an adjournment to deal with the status issue.

13. Counsel indicated he would be filing written submissions in further support of his motion but he made extensive oral submissions. Counsel began by reviewing the chronology of events leading up to the decertification application, and he then reviewed the events and comments which had occurred in front of the panel. We do not intend to repeat those oral submissions, since many of them are reflected in the written submissions subsequently forwarded. However, it is appropriate to note a few of the oral submissions made by Mr. Bickford in support of his motion.

14. Counsel alleged four grounds as a basis for the bias allegation and the motion that the Board disqualify itself. First, the chronology of the hearing before the Board during the day, as outlined in his oral submissions, "spoke for themselves". Second, the Board had raised the status issue of its own volition, after counsel for the union had clearly identified two preliminary issues and indicated that he would only be dealing with those two preliminary issues. As Mr. Bickford stated, "the timing of the raising of the status issue on its own, after finding out that the application itself was indeed timely" raised a reasonable apprehension of bias. Third, the decision of the Board to defer reaching a decision on the onus issue really amounted to deciding the issue without deciding it, because the Board nevertheless directed that the company take the stand. Fourth, the procedure the Board proposed to adopt, in directing the employer to testify, was inconsistent with procedures that have been established in administrative law. Those procedures had been grounded to procedural fairness and natural justice, and demanded that a party raising an objection must be the party to adduce evidence in support of the objection. Mr. Bickford did not indicate how the Board's ruling in this respect might be supportive of the bias allegation.

15. Counsel for the intervener then summarized the perception of his client. In counsel's submission, the order of proceeding during the morning had left his client with no other conclusion but that this panel, and perhaps the Board itself, is biased in favour of the respondent union and against the intervener employer. Counsel submitted any reasonable man would come to the same conclusions as his client. Further, the damage occasioned by the Board's biased approach might well be irreparable, for it was clear counsel for the respondent union had no intention of ever rais­ing the status issue, and the issue was only now raised because of the Board's improper interven­tion. Mr. Bickford expressed the concern that if the proceedings continued, in front of another panel, the issue of status would be raised by the respondent union, and given the circumstances as to how it was first raised, that would be unfair. In light of the allegation of bias against the entire Board, not only this panel, the Board inquired of counsel what remedy he was seeking if this panel should agree with his submissions. Mr. Bickford responded that his comments were really directed only to this panel.

16. With respect to rectifying the damage caused by the biased intervention and directions of the Board, the only way to remedy the problem, submitted counsel, "without destroying justice, is to proceed on the basis that the parties were originally proceeding on"; that is, constitute a new panel to hear the matter and preclude the union from raising the status issue.

17. Counsel for the applicant made no submissions with respect to the motion. It is unnec­essary to set out the submissions made by counsel for the respondent union, except to note that counsel indicated he had been going to raise the status issue, had researched it, and had copies of the relevant jurisprudence with him. Counsel further noted that at the time the matter had first been discussed, earlier in the day, he had distributed copies of the relevant cases on point to fellow counsel, confirmatory of his intention to raise the issue. Counsel for the respondent also strenu­ously objected to Mr. Bickford's submission that there had been a finding that the application was timely.

18. After reserving and adjourning, the Board received written submissions from Mr. Bick­ford as noted above. We turn now to consider all the submissions, oral and written and whether fairness demands that this motion be granted.

19. We first comment on some of counsel's characterizations of what occurred at the hear­ing. At paragraphs 8 and 9 of the written submissions Mr. Bickford maintains that at the beginning of the hearing counsel for the respondent indicated that he had only two preliminary issues to raise. Further, in paragraph 17 of the submissions, he notes that "the union's position throughout has been that the only two preliminary issues were timeliness and the failure to produce employees names". We cannot agree that that is either what occurred or a reasonable interpretation to be placed upon events. Mr. Dubinsky, for the union, reaffirmed or noted the two preliminary issues set out in the pleadings. He did not indicate that these were the only matters he intended to raise. Further, when the Board asked whether there was a "status" issue, Mr. Dubinsky responded that he had intended to raise that matter as well, and had with him the cases on point, and indeed sev­eral of those cases were then distributed to fellow counsel. The reply filed by the union only noted two preliminary matters and both the applicant and intervener would have been caught by surprise at the hearing by the status issue. It was because of this surprise factor that the Board indicated an adjournment would be granted should the parties so request it, and indeed granted such a request.

20. In paragraph 21(4) of his submissions, Mr. Bickford submits "the Board only raised the 'status' issue after finding out the application was timely". We have difficulty in understanding the factual basis for this submission. As Mr. Bickford's own submissions indicate, in paragraph 21(3)immediately preceding 21(4), the union was raising a preliminary issue which went to the timeliness of the application. It was agreed that evidence and submissions with respect to that objection were to be entertained at a later time by the Board. The Board has difficulty in under­standing how it could have "[found] out the application was timely", when that was the very mat­ter before us and when the Board had not yet embarked upon an inquiry into that issue.

21. The grounds in support of the motion are contained in paragraph 21 of the submissions. Counsel notes, as the first ground, "the chronology of the hearing on February 24, 1987". He does not expand on this bald assertion, and we are unable to therefore assess how the chronology might have given rise to a reasonable apprehension of bias.

22. Counsel for the intervener next relies on the assertion that the Board raised the status issue, after it had previously defined the preliminary issues as being timeliness of the application and the request the employer provide employees' names. While the Board did note the two prelim­inary issues set out in the reply of the union, the Board did not characterize them as the only pre­liminary issues before it. Additionally, under section 57 of the Labour Relations Act, the Board must satisfy itself in a decertification application that the applicant has status to bring the appli­cation, and that the signatures contained on any petition represent the voluntary expression of the employees so signing. Even if the Board had raised this issue and the respondent union would not have, in raising it the Board would have been fulfilling its statutory mandate. Parties must, of course, be treated fairly, and afforded full opportunity to present their cases, but inquiring about an issue about which the Board is required to satisfy itself does not indicate bias on the part of the panel.

23. Mr. Bickford asks by way of remedy, should we accede to his motion, that any hearing before a differently constituted panel be restricted to the two preliminary issues noted in the plead­ings by the respondent union, and that the issue of status be specifically excised from any subse­quent inquiry. It appears to us that, by means of this motion, counsel in effect seeks to restrict the issues another panel might entertain in this application, and further, to preclude that panel from complying with its express statutory mandate. Were we to disqualify ourselves, we could not and would not so restrict another panel's inquiry.

24. The third and fourth grounds raised in paragraph 21 of the submissions have been dealt with previously. As earlier noted, the Board considers both submissions based on an inaccurate portrayal of what occurred at the hearing. The fifth ground alleges that the Board initially described the status issue in a certain manner and "only after finding out that all Safeway employ­ees had continued their employment with Safeway and after hearing submissions from counsel for the union regarding alleged violations of the Collective Agreement after hiring employees, then broadening the scope of the status issue as originally defined by the Board to include an inquiry into the 'employment circumstances' after the present work force was hired." At the hearing, it appeared to the Board that counsel for the intervener did not understand why or how any issue could remain as to the status of the applicant. More particularly, Mr. Bickford vigorously main­tained that the fact "that all Safeway employees had continued their employment with Safeway" provided a full and complete answer to the question of the status of the applicant to bring this application, and it was unnecessary to hear anything further on the matter. The Board explained to counsel that such a fact or finding would not necessarily resolve the issue to be considered by the Board. Specifically, and as the Board indicated at the hearing, that employees of the predecessor had been absorbed into other Safeway operations did not necessarily answer whether the provi­sions of the collective agreement or the statute had been violated by the intervener in the hiring of the applicant and other employees as of the application date, and in turn, whether the current employees were properly within the bargaining unit. The issue for the Board is the status of the applicant and the employees who signed the petition in support of the application, and not the sta­tus of the employees of the predecessor. The Board cannot agree that attempts to clarify this to counsel reasonably raised perceptions of bias.

25. The sixth ground raised by Mr. Bickford is that the Board, "without deciding the appli­cant's submissions that the onus was on the respondent union to establish the basis for the status issue ... directed the intervener company to give evidence ... which placed counsel for the inter­vener in a position of having to conduct an examination in chief of a representative of the inter­vener

26. As indicated at the hearing, the question of legal onus or burden of proof is a different matter from the question of the order of leading evidence. (See for example, Shaw-Almex Indus­tries Limited, [1986] OLRB Rep. Dec. 1800, and Canadian Pizza Co. Ltd. [1983] OLRB Rep. June 872.) We see nothing unfair or inappropriate in reserving on the question of onus, while at the same time directing that the employer proceed first with respect to the delineated matters. The burden of proof, or onus, comes into play only when all the evidence has been heard, should the Board be evenly balanced as to the conclusion it ought to draw from the evidence. In deciding which party should lead evidence first, the Board is guided primarily by a concern that the hearing proceed in as expeditious and as fair a manner as possible. Where it appears to the Board that cer­tain evidence is uniquely or primarily within the possession or knowledge of one party, it may well make sense for that party to be asked to lead its evidence first. These factors led the Board to direct that the employer proceed first with evidence of the circumstances of hiring of the employ­ees in question.

27. With respect to the onus, having reserved on this question, we are satisfied the onus lies with the applicant to establish that she has status to bring these proceedings, and that those who signed the petition in support were properly employees within the bargaining unit. This onus exists regardless of whether a preliminary objection had been raised, for the statute requires that the Board be satisfied an applicant has the requisite status to bring the decertification application. If, after all the evidence on this issue has been heard and after the parties' submissions have been entertained, we are evenly balanced and uncertain as to whether the applicant has established she has status to bring this application, then reliance on the onus would lead us to dismiss this appli­cation. That onus however, does not cause us to change our prior direction that it is more appro­priate, more expeditious, and fair, to ask that the intervener employer proceed first with its evi­dence with respect to the circumstances of hiring.

28. As part of this sixth ground (paragraph 21(6) of the submissions), counsel notes that the Board direction that the intervener company give evidence first "placed counsel for the intervener in a position of having to conduct an examination-in-chief of a representative of the intervener, after which counsel for the respondent union would be allowed to cross-examine such witness". While we agree that this would be the effect of our direction, we cannot see in it anything improp­er, inappropriate, and more important for the issue at hand, anything demonstrative of an appre­hension or reality of bias. Cross-examination was to be restricted to the circumstances of hiring. It is tautological to say that the effect of directing the intervener to lead its evidence first would be to place counsel for the intervener in a position of having to conduct an examination-in-chief of his witness. If the employer is a proper party to these proceedings, albeit as intervener, it is a party with full rights to participation and full obligations of participation. Those obligations include the obligation that it is bound by the rulings of the Board and by any decision which the Board might ultimately issue. Mr. Bickford has not taken the position that the employer is not a proper inter­vener in these proceedings.

29. The seventh ground is that the Board direction that the intervener give evidence "is inconsistent with, and does violence to, normal procedures founded on procedural fairness and natural justice that the party making an objection must adduce any evidence which that party con­siders necessary so that the objection can be adjudicated". Neither at the hearing (see paragraph 10 above), nor now in the written submissions, has counsel indicated how natural justice might be violated, nor has he indicated how our direction in this respect might give rise to a reasonable apprehension of bias.

30. The eighth ground suggests that the Board "by its actions, appears not only to have descended into the arena as a party, but also has given the appearance that the Board is deter­mined to avoid having to consider the merits of the termination application". Our comments above, and particularly in paragraph 22, are sufficient to dispose of this ground. Additionally, no comments or questions were made during the hearing that might have indicated such a descent or an apprehension of bias, nor does counsel refer to any in his thorough submissions. Neither does counsel allege he was not given full and complete opportunity to address all issues.

31. With respect to the allegation that the Board has given the "appearance that [it] is determined to avoid having to consider the merits of the termination application", we will assume Mr. Bickford is suggesting the Board is intent on dismissing this application on a preliminary mat­ter, and therefore is biased against the intervener employer. Counsel further submits "that this appearance would be a reasonable inference from the proceedings as described above, culminating in the action of the Board in directing counsel for the intervenor to conduct an examination-in-chief of a representative of the Intervenor". We fail to see how a decision directing which party should proceed first in a proceeding is in any way demonstrative of a determination to avoid con­sidering the merits of the application or of an apprehension of bias.

32. The ninth and last ground suggests that the Board's actions considered in their entirety "leave the inescapable conclusion that the Board has concluded that the employees have no status to bring the application and have [sic] indeed decided the case even before it has begun." Again, we note the absence of reference to any comment made by any member of the panel which might arguably be indicative of predisposition or bias. We have concluded that none of the actions refer­red to individually by counsel in the first eight grounds support a reasonable apprehension or per­ception of bias, and we have reached a similar conclusion with respect to the cumulative effect of the conduct of the Board. We see nothing in the events which could raise an apprehension of bias, only an apprehension that the Board was not persuaded by Mr. Bickford's submissions.

33. Although counsel did allege in oral submissions that the entire Board was biased, that point was not raised in written submissions and accordingly we have not further considered it.

34. Accordingly, for all the above reasons, the motion is denied and this panel will not dis­qualify itself on the grounds of bias or reasonable apprehension of bias.

35. This matter is remitted to the Registrar, to be rescheduled for further hearings in Thun­der Bay, upon the agreement of counsel as to availability of dates.