Ontario Labour Relations Board
[1986] OLRB Rep. January 51
1240-86-R Canadian Paperworkers Union, Applicant, v. Great West Timber Limited, Respondent, v. Lumber and Sawmill Workers Union, Local 2693 of the United Brotherhood of Carpenters and Joiners of America, Intervener
BEFORE: Patricia Hughes, Vice-Chairman, and Board Members G. 0. Shamanski and R. R. Montague.
APPEARANCES: Ian Roland and Michael Hunter for the applicant; Marlene Del Pino for the respondent; Laurence C. Arnold and Fred Miron for the intervener.
DECISION OF THE BOARD; January 12, 1987
By decision dated September 17, 1986, the Board certified the Canadian Paperworkers Union ("the CPU") as the bargaining agent for employees of the respondent Great West Timber Limited ("Great West Timber"). Certification followed a pre-hearing representation vote in which employees had had the opportunity to vote for the CPU or for the intervener Lumber and Sawmill Workers Union, Local 2693 of the United Brotherhood of Carpenters and Joiners of America ("Local 2693"), the incumbent bargaining agent. The CPU was successful in that vote. It received 101 of the unsegregated ballots cast, while Local 2693 received 65. There were three segregated ballots which were not counted.
Counsel for Local 2693 wrote to the Board on October 14, 1986 with respect to an allegation that a "false document" had been distributed by the CPU prior to the vote on August 28, 1986 and requested that the Board revoke the CPU's certificate under section 58 or section 106 of the Labour Relations Act. He also requested that the Board hold a hearing into this matter. The Board informed the parties that it would hold a hearing in a decision dated November 28, 1986. That hearing was held on December 12, 1986, in Thunder Bay.
In brief the facts are these. Shortly before the August 28th vote, the CPU distributed a leaflet, signed by John Mclnnes, national representative of the CPU, and entitled "You belong in the Canadian Paperworkers Union ..." with the slogan "Make Thursday, Independence Day" ("the Mclnnes leaflet"). In addition to emphasizing that the CPU is "all Canadian", the Mclnnes leaflet also referred to a leaflet which had previously been circulated by Local 2693 and which, the Mclnnes leaflet said, implied "that you may lose your collective agreement if you vote for the Canadian Paperworkers Union". The Mclnnes leaflet stated that this was a lie and that "[s]ome have asked for this in writing, so attached is a legal opinion confirming what we have told you all along". Randy Haapa, an employee at Great West Timber, and a former steward of Local 2693, now supporter of the CPU, testified that he had asked for a legal opinion to ease the minds of certain older employees, not completely familiar with the English language, who, he believed, were frightened that if the CPU won the campaign, they would lose certain seniority and vacation rights by virtue of the operation of the Act. Attached to the Mclnnes leaflet was a letter dated August 18, 1986, signed by Douglas J. Wray of the law firm of Caley & Wray, which set out the sections of the Act relevant to a displacement application and the effect of such an application on the employees (for reasons indicated below, this letter is referred to as "the Hunter letter"). It was conceded by counsel for Local 2693 that the content of the Hunter letter could not reasonably be the subject of complaint and, although certain aspects of its content were raised in the context of its intended effect, little more will be said about the contents of any of these documents.
It is the derivation of the Hunter letter which brought about the complaint articulated by counsel for Local 2693 in his letter of October 14, 1986. The letter appears to be a legal opinion written by Mr. Wray at the request of Mr. Hunter; in fact no such letter was written by Mr. Wray, as indicated not only by Mr. Wray in a letter to the Ontario Provincial Council, United Brotherhood of Carpenters and Joiners of America ("the OPC"), dated October 7, 1986, but also by Mr. Hunter's admission that he fabricated the letter. In 1982, the firm of Caley & Wray had undertaken to the OPC not to represent the CPU when it was involved in raids on the Lumber and Sawmill Workers Union ("Lumber and Sawmill"). Thus the Hunter letter made it appear that Mr. Wray had breached this undertaking; this breach was Local 2693's initial concern and it was not until the October 7th letter from Mr. Wray to the OPC in which he denied having written the letter that the possibility that the Hunter letter was fraudulent arose.
The Hunter letter is a somewhat revised version of a letter written by Harold F. Caley, of Caley & Wray, to Mr. Hunter on April 23, 1985, with respect to a displacement campaign by the CPU at Carlton Cards Limited ("the original letter"). Mr. Hunter explained that he retyped the ortginal letter, making some changes to "personalize" the letter to refer to the current dispute, removing certain sentences he considered irrelevant and placed that version on the letterhead from another letter from Caley & Wray which had been signed by Mr. Wray; that letter had been copied to Mr. Mclnnes (as "J. McGinnes"). He thought the original letterhead and signature were blurred, although we find that in appearance, the Hunter letterhead and the original letterhead are quite similar. The letter was prepared using the facilities of the Lakehead Labour Council Office; Mr. Hunter testified he obtained permission from Cecil Makowski, President of the Labour Council, to use the facilities, but that Mr. Makowski did not know why Mr. Hunter required them. The Hunter letter was then distributed among the employees as a letter written by Mr. Wray specifically for the dispute between the CPU and Local 2693 at Great West Timber Limited.
Through his counsel, Mr. Hunter requested the protection of the Ontario Evidence Act and the Canada Evidence Act with respect to his testimony. Section 14 of the Statutory Powers Procedure Act protects Mr. Hunter with respect to the use of his testimony in a civil proceeding. He was further granted the protection of section 5 of the Canada Evidence Act. Section 13 of the Canadian Charter of Rights and Freedoms in any case guarantees to a witness testifying in "any proceedings" the right "not to have any incriminating evidence so given used to incriminate that witness in any other proceeding, except in a prosecution for perjury or for the giving of contradictory evidence". That protection applies to any subsequent civil or criminal proceedings regardless of whether the witness requests the protection of the Evidence Acts and whether such protection is explicitly granted.
Mr. Hunter testified that only he had typed and photocopied the Hunter letter. Mr. Mclnnes, who did not testify, was the only other person who knew the truth about the Hunter letter, according to Mr. Hunter. Mr. Hunter explained that he did not use the original letter because employees might think it did not apply to the Great West Timber situation; he did not reproduce some of its contents in a leaflet under his own name (or, presumably, that of Mr. Mclnnes) because that would not have the same impact as a legal opinion; he did not seek another opinion specifically relating to Great West Timber because he thought the CPU owned the original letter, it had paid for it and could do as it wished with it and because, he said (after slight prompting by counsel for the CPU), he and, we assume, Mr. Mclnnes "panicked" as the date of the vote approached. We find it hard to credit Mr. Hunter, who has had approximately sixteen years experience in union office at different levels, with such naivete. Mr. Hunter said that he did not think he was doing anything "wrong". He now appears to appreciate that what he did is indefensible from any ethical perspective.
Counsel for Local 2693 made much of the fact that the signature on the Hunter letter appeared to be that of Douglas Wray. Mr. Wray has connections both to the CPU and Local 2693. In 1985. the Ontario government appointed the Rosehart Commission to make inquiry into the closing of the Great Lakes Flake Board Plant in Thunder Bay. When it appeared that the unions involved would be unable to see certain confidential documents, it was proposed that a lawyer chosen by the unions represent them in connection with the Rosehart Commission. The CPU proposed Mr. Wray and Local 2693 agreed; Mr. Wray represented in addition the International Brotherhood of Electrical Workers. Mr. Wray had never acted for Local 2693 as legal counsel in other matters, but was the CPU's lawyer. Counsel for Local 2693 argued that the presence of Mr. Wray's name on the letter would have had the effect of making the employees believe Mr. Wray had taken sides in this dispute. Mr. Hunter explained that it was just chance that Mr. Wray's signature, and not someone else's from Caley and Wray, appeared on the letter he had fabricated. Mr. Haapa testified he did not know who Mr. Wray was. The important factor for him was that it was a lawyer's letter. We are not convinced that the fact that the signature on the Hunter letter was that of Mr. Wray was fortuitous. Nevertheless, we are also not convinced that it was as significant as Local 2693's counsel would have us believe. Fred Miron, President of Local 2693, explained that there was already a feeling among the employees that he had lied about the effect of a displacement of Local 2693 by the CPU as the bargaining agent of the employees at Great West Timber, and then there was a letter from a lawyer he had previously said he respected (in connection with the Rosehart Commission) which seemed to confirm that he was a liar. He himself "took the letter as gospel", but also said it was "beyond [him] why [Mr. Wray] had been so positive" (this relating to the omissions in the Hunter letter of material in the original letter which made the opinion in the Hunter letter incomplete). But there is no evidence Mr. Wray had the same effect on employees choosing between the CPU and Local 2693. The fact that the signature was that of Mr. Wray is therefore, in our view, merely one element of the entire fabrication and we do not consider that it had any particular effect in itself.
The Hunter letter is obviously a "forgery". Counsel for Local 2693 stressed that the Hunter letter constituted a forgery within the meaning of section 324 of the Criminal Code and a fraud within the meaning of section 355 of the Criminal Code. We are not required to make such a finding in order to determine whether this is a case to which section 58 or section 106 applies. The Board makes findings with respect to allegedly criminal matters only when it is necessary to do so to make decisions within the labour relations jurisdiction of this Board. Even a contravention of the Criminal Code does not extend the role of this Board as it has been defined in its jurisprudence. The issues before the Board, however, are whether the use of the letter constitutes fraud within the meaning of section 58 of the Act and whether it warrants our exercising our discretion to reconsider in such a manner that we revoke the CPU's certificate or, as alternatively requested by counsel for Local 2693, order a new vote in which the CPU would not participate.
Section 58 of the Act provides as follows:
If a trade union has obtained a certificate by fraud, the Board may at any time declare that the trade union no longer represents the employees in the bargaining unit and, upon the making of such a declaration, the trade union is not entitled to claim any rights or privileges flowing from certification and, if it has made a collective agreement binding upon the employees in the bargaining unit, the collective agreement is void.
Fraud within the meaning of section 58 has consistently been interpreted to mean "fraud upon the Board": "it must be demonstrated that a false representation was made to the Board which the Board relied on and also that the representation was known, or ought reasonably to have been known by the purveyor thereof to be false" (Ontario Taxi Association 1688, [1981] OLRB Rep. Sept. 1280, at paragraph 19). The "representation" in the case before us is that the Hunter letter was written by Mr. Wray, or, at least, by a lawyer and had been written for the Great West Timber situation. Mr. Hunter knew that was not the case. However, the Hunter letter was not before the Board when it certified the CPU; it played no part at all in the Board's decision to certify the CPU, a decision based entirely on the outcome of the vote held on August 28, 1986. In our view, section 58 does not apply to the circumstances of this case.
We turn now to our power to reconsider our decision to certify the CPU. Counsel for the CPU submitted that Local 2693's allegation is, and should be treated as, a delayed representation under section 70(2) of the Board's Rules and Procedures. Since Local 2693 did not know about the "forgery" until sometime after the vote, it could not make an objection in the normal course, but made it subsequently as a request for reconsideration. We believe this characterization is correct and therefore apply the general principles applied in cases in which there has been an objection to a vote (in the case of a pre-hearing representation vote, under section 70(2)).
The Board has often made it clear that it will not involve itself in certification campaigns, except under limited circumstances. In Cara Operations Limited, [1985] OLRB Rep. Feb. 222, the Board stated at paragraph 17 that "it is not our function to assess whether the statements are false, misleading, unfair, defamatory or whether the propaganda campaign has been conducted fairly by both sides. Rather, we must decide whether the letter in this case has deprived the employees of the ability to exercise their 'critical faculties' in assessing whether the respondent should continue to represent them in collective bargaining". (Also see Carlton Cards Ltd., [1985] OLRB Rep. Sept. 1352; Stauffer-Dobbie Manufacturing, 59 CLLC ¶18,147.) In Crock & Block Restaurant, [19841 OLRB Rep. Jan. 19, the Board indicated at paragraph 8 that it "does not normally interfere with a vote preceded by propaganda which is speculative, exaggerated, misleading or even false".
The Board recognizes that "[i]n determining the impact on the voters of the literature complained of, it is of course obvious that it is rarely, and perhaps never, possible to determine objectively what effect it has actually had" (Stauffer-Dobbie Manufacturing, supra). In this case, the fact that the letter was forged or fabricated was not known by any employees until after the vote. Mr. Haapa testified that he first heard about it on television after the vote. The contents of the Hunter letter, which were before the employees, or some of them, prior to the vote, are not in issue. Local 2693 did not file a desire to make representations with respect to the conduct of the vote as a consequence of the distribution of the letter; and its counsel admits the contents do not constitute a ground for complaint or objection. As Mr. Miron said, "a campaign is a campaign". The contents of the letter by themselves, even over Mr. Wray's signature, were not considered by Local 2693 to be of a sort which would prevent the free desires of the employees being determined in a secret vote (Stauffer-Dobbie Manufacturing, supra) or which would deprive the employees of the ability to exercise their critical faculties (Cara Operations Limited, supra).
Counsel for Local 2693 is really asking the Board to "punish" the CPU for the forgery perpetrated by one of its representatives. Indeed, he urged the Board to depart from its normal practice to do just that. In Radio Shack, [1979] OLRB Rep. Dec. 1220, at paragraph 94, the Board made it clear that its role is not to penalize parties: "By implication, [from the language of then section 85, now section 96] and by the absence of punitive language elsewhere in the statute, it is reasonable to conclude that the Board should not fashion its remedies under section [89] with the primary view of penalizing parties. This is not to deny that effective remedies will likely have a deterrent effect, but the primary purpose of a remedy should not be punishment". We have not found a violation of the Act. Even if we had, regardless of how poorly we might look upon Mr. Hunter (and by inference~ the CPU) for distributing a letter, a professional opinion, without the permission of the individual whose name appears as signatory an individual who did not write the letter even in its original form, we do not have the discretion to punish any party before us.
For the foregoing reasons, we decline to revoke the CPU's certificate or to order another vote, with or without the participation of the CPU.