Ontario Labour Relations Board
File No.: 0272-87-R Date: July 28, 1987 Citation: [1987] OLRB Rep. July 994
Between: Charlene Banwait, Balbir Kler, Sarbjit Sidhu, et al, Applicants v. Laundry and Linen Drivers and Industrial Workers Union, Teamsters Local 847 affiliated With the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Respondent v. Easy Enterprises Inc., Intervener
Before: Patricia Hughes, Vice-Chair, and Board Members D. A. MacDonald and J. Sarra.
Appearances: Charlene Banwait, Balbir Kler and S. Virk for the applicants; Bernard Fishbein, Richard McNaughton and Fernando da Silva for the respondent; S. A. Bernofsky and D. H. Peirce for the intervener.
DECISION OF THE BOARD
1The applicants herein seek a declaration under section 58 of the Labour Relations Act ("the Act") that the respondent union no longer represents the employees in the bargaining unit.
2The applicants allege that a supervisor of the intervener employer was involved in the union's organizing drive and was a collector of membership cards. Employees, they say, were intimidated into signing cards. The applicants' representative says she both trusted the supervisor and his negative comments about the employer, because he was a supervisor, and, at the same time, was intimidated by him and fearful of losing her job if she did not sign a card.
3Counsel for the respondent argues that those allegations do not constitute fraud under section 58 of the Act and therefore seeks to have the application dismissed without an inquiry into the merits. He adds, further, that these allegations, if they constitute a breach of the Act, belong more properly under section 13 of the Act as alleging employer involvement in the union. As such, he continues, they are untimely since the union was certified on September 5, 1986 and the events being alleged were known to the applicants' representative at that time. Counsel notes that the allegations concern an individual who had been included by the employer on Schedule A of the list of employees the employer believed to be in the bargaining unit proposed by the union in its certification application. Moreover, the intervener employer had brought similar charges against the union on December 19, 1986, although they were subsequently withdrawn in a settlement with the union. Counsel for the respondent suggests that these similar allegations are now clothed as allegations of 'fraud' under section 58 because a termination application brought under any other termination section would be untimely by virtue of subsection 57(1) and section 61 of the Act.
4Section 58 states 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.
It is clear that "an alleged fraud leading to a Board certificate can be raised at any time": Ontario Taxi Association 1688, [1981] OLRB Rep. Sept. 1280. Thus no question of timeliness arises here (and is not raised by the respondent insofar as the section 58 application is concerned).
5The meaning of "fraud" under section 58 involves evidence, documentary or oral, before the Board at the time of certification: "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, supra. For example, a representation that a card was signed by "A", an employee thus claimed to be a member of the union, when it was not signed by "A", if known to the person making the representation to the Board, constitutes "fraud" within the meaning of section 58.
6We are satisfied that even if proved, the allegations raised by the applicants would not constitute fraud within the meaning of section 58. The Board indicated as much in 229704 Contracting Ltd., [1971] OLRB Rep. June 337 which involved similar allegations:
- The respondent [employer] alleged that its allegations constituted fraud and could therefore be raised at any time. The allegations referred to various alleged incidents wherein an officer of the applicant is said to have told the respondent's employees that the respondent wanted them to join the union and that those who did not would lose their jobs. In our opinion such conduct is covered by the term "improper or irregular conduct" in section [72] of the Board's Rules of Procedure and does not constitute fraud.
7We agree with counsel for the respondent that the meaning of fraud in section 58 should not be expanded to include charges which can be filed under other sections of the Act. Allegations of employer involvement in the formation of a trade union or its administration and of intimidation and coercion in the collection of membership evidence can clearly be filed under other sections of the Act, section 13 and section 70 respectively. We emphasize that we make no findings on the merits of these allegations under either of those sections; we do note, however, that any such charges brought now would raise concerns of timeliness.
8Accordingly, we ruled orally that the application fails to make out a prima facie case under section 58 of the Act. In our oral decision, we explained to the applicants' representative, who was not familiar with procedure before the Board, that we would not hear the merits of the application because even if we found her complaints and allegations to be substantiated or "true" (and we stated that we are making no such finding one way or the other), they would not satisfy the test of fraud under section 58 of the Act, the section under which the application had been brought. We explained, further, that the Board will dismiss a case without considering the merits when considering the merits cannot result in a finding that the case has been proved, since there is no advantage to requiring the parties to expend time, money and effort in a hearing which cannot possibly have a successful result for the applicants, as here.
9For the above reasons, we dismissed this application at the hearing.