Ontario Labour Relations Board
[1988] OLRB Rep. November 1167
1532-88-R Service Employees International Union Local 204, Affiliated with the S.E.I.U., A.F. of L., C.I.O., C.L.C., Applicant v. Estonian Relief Committee in Canada, Respondent v. Group of Employees, Objectors
BEFORE: Owen V. Gray, Vice-Chair, and Board Members M. Rozenberg and D. A. Patterson.
APPEARANCES: Steven Barrett and Allen Ferens for the applicant; Donald Francis, A. Kuuskne and A. Niitenberg for the respondent; Judith Christoforou, Meinhard Vabasalu and Aino Summa, employees, in person.
DECISION OF THE BOARD; November 15, 1988
1This is an application for certification. Having regard to the agreement of those who attended at the hearing of this matter ("the participants"), the title of this proceeding has been amended to describe the respondent as "Estonian Relief Committee in Canada".
2The Board finds that the applicant is a trade union within the meaning of clause l(l)(p) of the Labour Relations Act ("the Act").
3Having regard to the agreement of the participants, we find that
all employees of the respondent in the Municipality of Metropolitan Toronto save and except supervisors and persons above the rank of supervisor
constitute a unit of employees of the respondent appropriate for collective bargaining.
4The employees who attended at the hearing of this matter wish the Board to act on a document signed by two employees stating that they do not wish to be represented by the applicant. The document was filed with the Board on October 13, 1988. The terminal date fixed for this application was October 6, 1988. Subsection 73(1) of the Board's Rules of Procedure provides that "evidence of ... objection by employees to certification of a trade union... shall not be accepted by the Board on an application for certification ... unless the evidence is in writing, signed by the employee or each member of a group of employees, as the case may be, and ... is filed not later than the terminal date for the application." Form 6 notices were posted in the work place of these employees on October 3, 1988, notifying them of the application, the terminal date of October 6, 1988 and, among other things, the requirements of section 73 of the Board's Rules of Procedure with respect to the filing of evidence of employee objection to certification. The rule in section 73 is quite clear. It would require us not to take the subject document into account unless we were to extend the terminal date. We see no reason to do that in this case; accordingly, the document will not be taken into account.
5The respondent and the employees who attended at the hearing of this matter wish the Board to entertain certain allegations with respect to the circumstances in which membership evidence was obtained. The applicant argues that the Board should not entertain those allegations because they were not asserted in a timely fashion in accordance with section 72 of the Board's Rules of Procedure. Section 72 is also referred to in the Form 6 notice, in a note which says this:
If you attend at the Board's hearing and wish to make representations about something other than employee objection to certification of the applicant, paragraph 4 does not apply. However, your attention is directed to section 72 of the Board's Rules of Procedure which applies in such situations and provides, in part, as follows:
72.-(1) Where a person intends to allege at the hearing of an application or cemplaint, improper or irregular conduct by any person, he shall,
(b) file a notice of intention that shall contain, a concise statement of the material facts, actions and omissions upon which he intends to rely as constituting such improper or irregular conduct, including the time when and the place where the actions or omissions complained of occurred and the names of the persons who engaged in or committed them, but not the evidence by which the material facts, actions or omissions are to be proved, and, where he alleges that the improper or irregular conduct constitutes a violation of any provision of the Act, he shall include a reference to the section or sections of the Act containing such provision.
(4) No person shall adduce evidence at the hearing of an application or complaint of any material fact that has not been included ... in any document filed under these Rules in respect of the application or complaint, except with the consent of the Board and, if the Board deems it advisable to give such consent, it may do so upon such terms and conditions as it thinks advisable.
6The Form 6 notice and the notice that the employer received with respect to this application stated that the application would be heard on October 21, 1988. On October 19, 1988, counsel for the respondent employer delivered a letter to the Registrar to the following effect:
The Respondent Employer in the above-captioned matter has been advised by an employee that the in-house organizer(s) of the Union committed certain improprieties in connection with the solicitation of membership evidence.
specifically, the in-house organizers told the employee in issue that she must sign a Union card or she would lose her job when the Union acquired bargaining rights. The employee in issue understands that the same in-house organizers told other employee on whose behalf membership evidence has been submitted the same or similar things.
The in-house organizers may well have made other statements to the employee in issue and other employees which fundamentally misrepresented the nature of the application and the significance of signing a Union card.
The letter went on to identify the employee by her initials and home address and to request that the Board inquire into the allegation. The Registrar caused a copy of this letter to be delivered to the applicant trade union, which says it received its copy late in the afternoon on October 20th.
7Judith Christoforou, the employee referred to in the respondent's letter, was one of the employees in attendance at the hearing on October 21, 1988. She told the Board that the employees in attendance at the hearing wish to raise the following allegations:
The person who collected her application for membership told her at the time she signed that everyone else had joined and that "probably if you don't sign, when the union comes in, because it will come in, if you don't have a card you won't be in it, you'll be fired."
She later went to a union meeting at which she asked Allen Ferens, the organizer of the applicant, what would happen to people if they did not sign a card, whether they could be fired and what would happen to people who refused to join. She alleges he said that she had nothing to worry about if she had joined the union; others who had not signed would have to worry about being fired more than those who had signed, because those who had signed are protected by the union from being fired. She alleges that she and others understood from that that those who did not sign a card before the union came in would be fired if the union did come in.
During a time when the petition document was being circulated, other workers told her in a threatening tone "don't you dare take your name off."
Ms. Christoforou and her fellow employees say that these allegations, if proved, should lead us to direct that a representation vote be conducted even if the applicant has filed sufficient membership evidence to permit certification without a vote. Except to the extent that they coincide with the allegations in the letter referred to earlier, these allegations were nor the subject of any written notice prior to the hearing of October 21, 1988.
8Subsection (2) of section 72 of the Board's Rules of Procedure provides:
Where, in the opinion of the Board, a person has not filed notice of intention promptly upon discovering the alleged improper or irregular conduct, he shall not adduce evidence at the hearing of the application of such facts, except with the consent of the Board and, if the Board deems it advisable to give such consent, it may do so upon such terms and conditions as it considers advisable.
With respect to the question of promptness in filing a statement of intention, counsel for the employer asserted that it had only learned on October 17th of the allegation set out in his letter. It had spoken to Ms. Christoforou on the 18th, and had then taken the position that it would not act on the information she provided unless Ms. Christoforou consented that it do so. She had withheld her consent until mid-day on October 19th, following which counsel's letter was promptly delivered to the Board.
9On the subject of her delay in advising the Board of the allegations she wished it to entertain, Ms. Christoforou made a number of assertions. She said that when the Form 6 notice and accompanying notice to employees was first posted, she only glanced at them. She had not read them thoroughly until the week of October 17th. She had been afraid to write to the OLRB because "they kept saying 'don't you dare take your name off'." At some point after the terminal date, however, she had contacted the Board by telephone to see if it was too late to do anything. The receptionist who answered the phone told her that no one at the Board could advise her what to do and suggested that she contact a lawyer. She chose not to do that. She told the receptionist that she did not want to know what she should do but, rather, what she could do. She was then advised that she could speak to the Deputy Registrar, Mr. Bowman. Ar. Bowman was not then available to speak to her. She made no other attempt to speak to him. She also told us she had been afraid to raise these matters on her own, that she "didn't want to be alone on it", and had only recently realized that she was not alone.
10The purpose of section 72 of the Board's Rules of Procedure was explained in Trigiani Contracting Limited, [1979] OLRB Rep. Feb. 141:
- That section was a twofold purpose grounded in both legal considerations and in industrial relations considerations. The legal consideration implicit in section 47 [now 72] of the Board's rules of Procedure is a recognition of the rule of naturals justice that anyone charged with wrongdoing should have sufficient notice of the charge against him. The labour relations consideration is a recognition that the realities of union organization are such that a delay of Board proceedings may serve to defeat the union. A union may successfully defend charges made against it only to discover, upon the late granting of a certificate, that its support among the employees has substantially eroded because, for reasons often not fully understood by rank and file employees, it has failed to get certified promptly and commence immediately to bargain on their behalf. For that reason section 47 [now 72] of the Board's Rules of Procedures seeks to strike a balance between natural justice and the avoidance of delay in certification proceedings or any other proceedings before the Board. In an application for certification both the interests of natural justice and industrial relations are best served when allegations of wrongdoing are made in sufficient time and with sufficient particularity that an applicant union is not prejudiced eithe1 by surprise or by being forced to seek adjournment and the delay of its own application. Therefore, where allegations against an applicant are not filed in a timely manner or with sufficient particularity the Board may refuse to entertain them. (Fleck Manufacturing Limited 62
CLLC ¶16,236; Cable Tech Wire Company Limited (as yet unreported) Board File No. 0297-78-R, June 21, 1978).
As the Board observed in Unlimited Textures Company Limited, [19841 OLRB Rep. Jan. 138 at paragraph 20:
The need for expedition in labour relations matters is well recognized: Hotel and Restaurant Employees Union v. Nick Masney Hotels Ltd., 1970 CanLII 478 (ON CA), [1970] 3 O.R. 461 (C.A.); Jordon v. York University Faculty Association (1978) CLLC ¶14,132 (Div. Ct.); Re Flamboro Downs Holdings Ltd. and Teamsters Local 879, (1979) 24 O.R. (2d) '400 (Div. Ct.); and, Journal Publishing Company of Canada Ltd. et al v. The Ottawa Newspaper Guild, Local 204 et al, (unreported, Ontario Court of Appeal, March 31, 1977) wherein Estey, C.J.O. (as he then was) observed:
In the law which has grown up around labour relations in this province, and indeed elsewhere where the common law is pursued, the overriding principle invariably applied is that labour relations delayed are are [sic] labour relations defeated and denied.
Rule 72 applies to all parties to the process. In Cable Tech Wire Company Limited, [1978] OLRB Rep. June 496 (judicial review denied November 10, 1978, unreported) the Board refused to entertain allegations known to the employer for two weeks before notice thereof was finally given on the last business day before the Board's hearing. Counsel's excuse that he had until then been unaware that witnesses were available to prove the allegations was not considered sufficient reason for having withheld them. In Gignac, Sutts, Nosanchuk, [1973] OLRB Rep. Aug. 438, the Board refused to entertain union charges advanced in support of certification without a vote when the events alleged were known to the union for as much as a month before notice was given. In Fleck Manufacturing Limited, 62 CLLC ¶16,236, the Board refused to entertain objectors allegations of impropriety in the union's collection of membership evidence, when the allegations were first raised at the hearing of the union's certification application although known to counsel for the objectors for nine days prior. In Fleck the Board said:
It is incumbent on all parties to proceedings before the Board to investigate matters relevant to their cases as early as possible and if they intend too make allegations of improper or irregular conduct against another party to do so promptly. The object of this requirement, which finds expression in section 48 [now 72] of the rules, is obviously to expedite and facilitate the hearing and processing of applications under the Act and to avoid prejudice, delay or embarrassment to the parties involved. Delayed and last-minute allegations, which lead to adjournments or cause prejudice, embarassment [sic] or unnecessary expense to the other parties, and which with reasonable diligence could have been made at a more timely stage of the proceedings will not be entertained except for good and sufficient cause.
11The applicant did not admit the truth of any of the assertions made by Ms. Christoforou in the course of the explanation she gave for her delay in asserting the allegations set out in paragraph 7 above. In view of the lateness of the hour, we undertook to consider whether, assuming her explanation to be true, we should entertain the allegations referred to in paragraph 7. At the end of the participants' argument on that point we reserved our decision and adjourned the hearing.
12We agree with counsel for the applicant that Ms. Christoforou and her fellow employees had clear and adequate notice of the requirements of section 72 of the Board's Rules of Procedure. The applicant should not be made to suffer any significant delay in the disposition of these proceedings as a result of an employee's delay in reading the notices posted by the Board or an employee's failure to promptly seek advice or otherwise pursue the matter if he or she does not understand the contents of the notices.
13Ms. Christoforou's delay is not excused by the fact that some fellow employee or employees told her "don't you dare take your name off." Those words are not exactly paralytic; they did not paralyze even Ms. Christoforou. She was still able to make her enquiries of the Board. In this connection we note also that the explanatory Notice to Employees which was posted with the Form 6 Notices has something to say to employees who feel they have been threatened in connection with their opposition to an application for certification. That Notice includes the following information:
In order to foster healthy collective bargaining, the Labour Relations Act gives a number of rights to employers, employees and trade unions covered by the Act. Conduct that violates those rights is prohibited. The Ontario Labour Relations Board, established by the Labour Relations Act, is a tribunal that has the authority to provide remedies for such violations.
What are the rights of an employee?
An employee has the right to oppose a trade union, or subject to the union security clause in the collective agreement with his or her employer, refuse to join a trade union.
It is illegal for employees to be fired or in any way penalized for the exercise of these rights. If this happens, a complaint may be filed with the Ontario Labour Relations Board.
14It would appear to us from what Ms. Christoforou said that her delay in asserting her allegations had to do in large part with her unwillingness to oppose the trade union unless there were other employees prepared to give her moral support. Understatidable as that feeling is, it does not justify a failure to comply with rules designed to ensure that certification and other Board proceedings are dealt with expeditiously. In these circumstances, the interest of expeditious disposition of matters involving certification outweighs Ms. Christoforou's interest in having these allegations heard if there is any conflict between the two. We would not entertain Ms. Christoforou 's allegations if our doing so would entail any appreciable delay in the disposition of this application.
15In the course of her recital of the matters which she wished to bring to the attention of the Board, Ms. Christoforou also alleged that the employee who collected cards from other employees in the unit had given another employee money to join the union. That allegation fell within the very narrow range of allegations into which the Board will conduct its own inquiry if it determines there is cause to do so: see Unlimited Textures Company Limited, supra, at paragraph 21 and Laidlaw Wire of Canada, Ltd., [1985] OLRB Rep. Oct. 1479, at paragraph 22. Ms. Christoforou indicated that she could identify the collector and employee involved by name. At our request, she wrote those names on a piece of paper and handed it to the panel. Counsel for the applicant advised the Board that he was aware of the particulars of this allegation and prepared to deal with it by way of evidence at that time. We declined, however, to depart from the Board's usual practice of first conducting the "usual investigation" into any non-pay allegation.
16The first step in that "usual investigation" is to see whether any membership evidence has been submitted in the name of the employee who it is alleged did not sign a card or make the payment referred to on the receipt or other documentary evidence of payment accompanying the card. The concern raised by a "non-sign" or "non-pay" allegation is that the Board has been invited to act on documentary evidence which may not reflect the truth about whether the person said to be a member has actually applied for membership or paid to the union on his own behalf the amount shown. If there is no document, there is no such concern. If there is a document purporting to be evidence of membership of the subject employee, a labour relations officer will interview that employee in private. If the interview discloses any matter which is cause for concern, either standing alone or in light of the contents of the Form 9 declaration filed by the union, the Board will schedule the matter for hearing, summon those persons who may have knowledge of the matters in issue and, at the hearing, conduct its own inquiry. If a "non-pay" or "non-sign" allegation does not result in the Board's scheduling a hearing, that is either because no membership evidence was filed with respect to the employee identified in the allegation or because the results of an interview with that employee raised no cause for concern. When it follows the "usual investigation", a decision not to conduct an enquiry at hearing with respect to a "non-sign" or "non-pay" allegation reveals nothing about whether a card was or was not received with respect to the individual named in the allegation.
17Having regard to subsection 111(1) of the Act, the Board is concerned that its process not reveal whether a card has or has not been signed by an employee or filed with respect to that employee unless it is persuaded that there is some genuine cause for concern which outweighs the concern addressed by subsection 111(1). The risk of unnecessarily revealing membership information is minimized by invariably responding to a "non-pay"/"non-sign" allegation by first conducting the "usual investigation" and by refusing to make the allegation the subject of a hearing unless the result of the investigation warrants one. If it were otherwise, employees could be made to testify about whether they had or had not taken steps to join a union merely because they had been named in a non-sign or non-pay allegation; pursuit by those opposed to certification of "scatter gun" allegations of "non-pay" or "non-sign" could essentially neutralize the protection afforded by subsection 111(1).
18The "usual investigation" having since been conducted, we have determined that we should conduct a hearing with respect to the matter raised by Ms. Christoforou and, accordingly, it is appropriate to reveal the particulars of the transaction in question. The person who collected the card in question (and other cards) is Riya Kokko. The person whom Ms. Christoforou identified as having been given money by Ms. Kokko was Lydia Ender. Ms. Ender was interviewed by a Labour Relations Officer. She was shown a card submitted to the Board and apparently signed by her, on which Ms. Kokko is shown as the recipient of a payment of $1.00 on account of membership fees. Ms. Ender acknowledged signing this card in the presence of Ms. Kokko. She indicated that after she signed the card, she and Ms. Kokko entered a restaurant where Ms. Ender "borrowed" a dollar from a co-worker and gave it to Ms. Kokko. She further stated that she repaid the co-worker the following day.
19There is no reference to this loan in paragraph 3 of the Form 9 declaration filed in support of this application. As a result, we do not know whether the collector knew that Ms. Ender's transaction with her co-worker was a loan rather than a gift, nor do we know whether the collector, and through her the Form 9 declarant, knew that the money would be or had been repaid the following day. The question whether the absence of any reference to this transaction in the Form 9 declaration casts doubt on the reliability of that declaration and of the membership evidence to which it refers may depend on the state of knowledge of the collector and Form 9 declarant. See generally Laidlaw Wire of Canada Ltd., [1985] OLRB Rep. Oct. 1479 and Calvano Lumber & Trim Co. Ltd., [1988] OLRB Rep. Aug. 735. That question cannot be resolved without the Board's conducting an inquiry and hearing what the collector and Form 9 declarant have to say about the collector's knowledge of the transaction and the nature of the inquiries made by the Form 9 declarant. The only question which we need to decide at this point is whether to conduct an inquiry. In the present state of the Board's jurisprudence, we consider it prudent to do so. Accordingly, there will be a further hearing in this matter to which the following persons will be summoned:
Lydia Ender
Riya Kokko
Allen Ferens
20In the result, this is an application for certification the hearing of which would not in any event have been completed on the first scheduled hearing date. The necessary further hearing can be so scheduled as to permit the hearing also of the allegations referred to in paragraph 7 without in any significant respect delaying the disposition of the application. We have found that Ms. Christoforou did fail to comply with the requirements of section 72 of the Board's Rules of Procedure. We have a discretion under subsection (2) of that section to nevertheless hear evidence with respect to the allegations referred to in paragraph 7. In our view, that is not a discretion which should be so exercised as to punish any party for failure to comply with subsection (1) of the section. Rather, the discretion should be exercised with regard to the prejudice, if any, which may be caused to other parties by entertaining the evidence notwithstanding of the failure to comply with subsection (1). The only prejudice asserted here is the prejudice of delay. In the circumstances, there will be no significant delay. That is so whether the reasons given by Ms. Christoforou for her delay are true or not. Accordingly, the Board does consent to the introduction of evidence with respect to the allegations outlined in paragraph 7 when the hearing of this matter resumes.
21Accordingly, the Registrar is directed to list this matter for two days of hearing before this panel.