[1988] OLRB Rep. September 914
0532-88-R; 0533-88-U National Automobile, Aerospace and Agricultural Implement Workers Union of Canada, (CAW-Canada), Applicant v. Ontario Bus Industries Inc., Respondent v. Group of Employees, Objectors; National Automobile, Aerospace and Agricultural Implement Workers Union of Canada, (CAW-Canada), Complainant v. Ontario Bus Industries Inc., Respondent
BEFORE: Robert D. Howe, Vice-Chair, and Board Members R. W. Pirrie and H. Peacock.
APPEARANCES: D. Harris, Clare Meneghini and Hassan Yussuff for the applicant/complainant; R. C. Filion and D. K. Sheardown for the respondent; Dale Sharp, Jeff King and Dave Heppolette for the objectors.
DECISION OF THE BOARD; September 15, 1988
File No. 0532-88-R is an application for certification in which the applicant (also referred to in this decision as the "Union") seeks to be certified under section 8 of the Labour Relations Act. File No. 0533-88-U is a complaint under section 89 of the Act in which the Union alleges that it has been dealt with by the respondent (also referred to in this decision as the "Company") contrary to the provisions of sections 3, 64, 66, and 70 of the Act. The Union also relies upon those allegations in support of its application for certification under section 8.
At the commencement of the hearing on August 9, 1988, counsel advised the Board that they had agreed to argue a number of preliminary issues and to request the Board to issue a decision regarding those issues before proceeding further. Thus, this decision is confined to those preliminary issues.
I
On June 24, 1988, representatives of the parties met with a Board Officer and reached agreement on all aspects of the bargaining unit description, with the exception of the issue of whether persons regularly employed for not more than twenty-four hours per week ("part-time employees") should be excluded from the unit, as contended by the respondent and the objectors, or included in the unit, as contended by the Union. (The language on which the parties are agreed is: all employees of the respondent in Mississauga, save and except foremen, persons above the rank of foreman, office and sales staff, and students employed during the school vacation period.") If the parties are unable to resolve that issue, it will be dealt with during the course of these proceedings. However, the resolution of that issue will not affect the count., as the respondent had no part-time employees at the time the application was made.
It is common ground among the parties that there were 331 employees in the bargaining unit at the time the application was made. The Union has filed membership evidence in respect of 67 (20.2%) of those employees. Counsel for the respondent requests that the Union's application for certification under section 8 be dismissed without a hearing on the merits, on the basis that the Union does not have "membership support adequate for the purposes of collective bargaining" within the meaning of section 8 of the Act. Counsel for the Union opposes that request, and contends that the determination of that matter should not be made until after the Board has heard the application on its merits. The objectors made no submissions on that matter or on any of the other issues covered by this decision.
Having duly considered the submissions of counsel, we are not prepared to dismiss the Union's section 8 application without a hearing on the merits. The issue of whether a trade union has "membership support adequate for the purposes of collective bargaining" is not simply a question of numbers or percentages. It is a matter on which the Board forms an opinion in each case on the basis of all of the circumstances of that case, including the stage at which the impugned employer conduct occurred, the severity of that conduct, and the circumstances surrounding the signing of cards prior to the impugned employer conduct: see, for example, Manor Cleaners Limited, [1982] OLRB Rep. Dec. 1848, and Viceroy Construction Company Limited, [1977] OLRB Rep. Sept. 562. Thus, we will not be in a position to make an informed decision on that issue until after we have heard the Union's section 8 application on its merits. We would also observe that it may ultimately be unnecessary to decide that issue at all, if the evidence does not support the Union's contention that the respondent, by contravening the Act, has created a situation in which the true wishes of the employees are not likely to be ascertained. It may also be noted that the allegations on which the Union relies in support of its section 8 application are identical to the allegations on which it relies in support of its section 89 complaint. Thus, it will be necessary to hear evidence and argument regarding those allegations regardless of whether the section 8 application proceeds or is dismissed.
II
- In view of their congruity, these two files should clearly be heard together to save expense and avoid a multiplicity of proceedings. (Consolidation is not appropriate as there is not an identity of parties: see Dresser Canada, Inc., [1987] OLRB Rep. Oct. 1243, at paragraph 8.) Having considered the parties' submissions concerning the order of proceeding, we have decided that the Union should proceed first on all aspects of the case, followed by the respondent and the objectors. The Union will then be afforded an opportunity to adduce reply evidence. Argument will proceed in the same order. In reaching this decision we have taken into account a number of factors. Although the section 89(5) "reverse onus" applies to some of the Union's allegations, such as the discharge of Momcilo Trajkovic and the suspension of Stanislaw Pietras, it is questionable whether it applies to a number of the Union's other allegations (including those concerning "captive audience" meetings and the questioning of individual employees by members of management) which appear to form an important part of the Union's case (see, generally, Canadian Pizza Co. Ltd., [1983] OLRB Rep. June 872, and Domtar Packaging, [1982] OLRB Rep. July 993). Moreover, the Union has the burden of establishing the elements of section 8, including the aforementioned matter of whether it has membership support adequate for the purposes of collective bargaining in the circumstances of this case. In a case such as the present one in which the Union has filed relatively few membership cards, evidence concerning the Union's organizing campaign before and after the impugned employer conduct may well also be of central importance. Under the circumstances, it appears to us that calling upon the Union to proceed first with its evidence on all aspects of the case will be the fairest and most expeditious manner of proceeding.
III
- Hassan Yussuff, a National Representative of the Union, signed the Form 9 Declaration Concerning Membership Documents (the "Declaration") which was filed by the Union in accordance with the requirements of section 6 of the Board's Rules of Procedure. In an accompanying letter which is referred to in paragraph 3 of the Declaration, Mr. Yussuff wrote to the Board's Registrar as follows:
With reference to the enclosed Form 9 (paragraph 3), please be advised that seven (7) Application for Membership Cards, as per the attached list, were received by mail at the CAW office in North York.
Each of the applicants listed were contacted to confirm their application, signature and membership fee.
Trusting you will find the enclosed in order.
Company counsel submits that he should be permitted to cross-examine Mr. Yussuff because seven of the membership cards were mailed to the Union, and because Momcilo Trajkovic may have been the collector on some or all of the seven mailed cards. Mr. Trajkovic is one of the grievors named in the Union's section 89 complaint. The Union alleges that Mr. Trajkovic's employment was terminated by the Company on or about May 2, 1988, in contravention of the Act. The Company denies any violation of the Act, and contends that Mr. Trajkovic was terminated for fabricating the facts of an incident in which he was allegedly injured in the plant as a result of two objects having been thrown at him. Counsel for the Union opposes Company counsel's request to cross-examine Mr. Yussuff.
Although the use of mailed membership evidence can make it difficult for a union to refute "non-sign" or "non-pay" allegations (see, for example, Wallace Barnes Co. Ltd., [1965] OLRB Rep. July 282), the Board has for many years accepted mailed membership evidence where the union's reliance on such membership evidence is duly noted in the Form 9, or in material which accompanies the Form 9 or the mailed membership evidence filed with the Board: see, for example, Fotomat Canada Limited, [1979] OLRB Rep. Apr. 306; E. B. Eddy Forest Products Ltd., [1977] OLRB Rep. Oct. 694; and Canadian Gypsum Company Limited, [1961] OLRB Rep. Nov. 280. In the instant case, Hassan Yussuff, the Form 9 declarant, advised the Board (in the above quoted letter which accompanied the Declaration) that seven membership cards had been received by mail at the Union office. Mr. Yussuff also advised the Board in that letter that each of the seven persons in respect of whom the Union had received mailed membership evidence had been contacted to confirm their application, signature, and membership fee. By means of a list attached to that letter, the Union provided the Board with the names and addresses of those seven persons. The seven envelopes in which the mailed cards were received by the Union were also filed with the Board, along with the Union's membership cards and Declaration. Mr. Yussuff is the collector whose signature appears on each of the seven cards. In view of the information which the Union has provided to the Board in the manner described above, we are satisfied that, subject to the Board's usual "second check", the seven membership cards in question meet the Board's requirements with respect to mailed membership evidence.
We are also satisfied that there is nothing in the circumstances of this case which warrants permitting counsel for the respondent to cross-examine the Form Q declarant. No allegations have been filed with the Board alleging that any of the individuals in respect of whom the Union has filed membership evidence did not sign a membership card or pay an initiation fee of one dollar, as indicated by the membership evidence and confirmed by the Declaration. Employee signatures on the membership cards have been compared with employee signatures filed with the Board by the respondent, and have been found to be identical. (That comparison will be repeated, as part of the Board's usual "second check", before a final decision issues in respect of the Union's certification application.) Moreover, no allegations have been made which, if proven, would cause the Board to find any of the statements made by Mr. Yussuff in the Declaration (or in the material which accompanied it) to be false. In Radio Shack, [1978] OLRB Rep. Nov. 1043, the Board refused to permit an employer to cross-examine the Form 9 (then Form 8) declarant in circumstances which are not materially different from those of the instant case. In doing so, the Board noted (in paragraph 30) that the Board "accepts the Form 8 [now Form 9] attestation on its face unless allegations are made which, if proven, would cause the Board to find that the statements attested to therein are false". In dismissing an application for judicial review of that decision, the Divisional Court held that the refusal to permit such cross-examination was not a denial of natural justice (Re Tandy Electronics Ltd. and United Steelworkers of America et al. (1979), 26 0. R. (2d) 68). See also Grand & Toy Limited, [1986] OLRB Rep. Sept. 1223.
IV
The final matter which remains to be decided at this time is the Company's request that the Board order the Union to produce any tape recordings (and transcripts thereof, if they exist) which it has of statements made to employees by Company officials during the period covered by the complaint. In making that request, Company counsel noted that the detailed particulars filed by the Union contain numerous quotations of statements allegedly made by Company representatives, which quotations lead the Company to believe that some or all of the statements may have been tape recorded. It was his position that the order should be made in order to prevent "trial by ambush" and "procedural trickery" designed to "blind side" an opponent. He also noted that advance production of such tapes could significantly reduce the time required to complete the hearing of these matters because the respondent, after reviewing the tapes and transcripts, would probably be in a position to have their contents placed before the Board as an agreed statement regarding what was in fact said. Respondent's counsel further asserted that the production of the tapes should be ordered irrespective of whether the Union intends to introduce them into evidence. However, he also stated that if counsel for the Union indicated that there were no such tapes, that would end the matter.
In responding to the Company's request, counsel for the Union declined to indicate whether or not the Union has any such tape recordings or transcripts in its possession, and asserted that it was "none of [the Company's] business". He noted that section 72(1) of the Board's Rules of Procedure requires a party to provide a concise statement of the material facts, actions and omissions upon which the party intends to rely, "but not the evidence by which the material facts, actions or omissions are to be proved". It was his position that neither the Act nor the Rules contemplate pre-hearing production. Moreover, he contended that the Board should not adopt such a procedure as it could result in the Board becoming "bogged down in pre-hearing production". He further submitted that if the Company wished to have any such tapes and transcripts which may be in the Union's possession introduced into evidence, it should utilize the Board's summons duces tecum process.
In recent years the Board has taken a number of steps to foster advance production of documents, with a view to promoting settlement discussions and expediting the hearing process by narrowing the issues in dispute and minimizing the need for document related adjournments. Practice Note No. 18 (dated May 27, 1986) requires that an application requesting the Board to direct that a first collective agreement be settled by arbitration include a copy of all documents in the applicant's possession on which it intends to rely, and further requires the applicant to deliver a duly completed copy of the application (including those documents) to the respondent prior to filing the application with the Board. Similarly, that Practice Note requires that the respondent's reply (which must be filed within ten days from the day the application was delivered to the respondent) include a copy of all documents in the respondent's possession on which it intends to rely, and further requires that the respondent deliver a duly completed copy of the reply (including those documents) to the applicant prior to filing the reply with the Board. Practice Note No. 19 (dated June 6, 1986) requires each party to arbitration proceedings before the Board in respect of the settlement of a first collective agreement to file with the Board and with each other party, no later than nine days from the date on which the notice initiating the proceedings was filed with the Board, all documentation (as well as the information and submissions) on which it relies in support of each bargaining matter that remains in dispute. Practice Note No. 15 (dated August 2, 1988), in conjunction with section 60 of the Board's Rules of Procedure, requires a complainant to file, together with its jurisdictional dispute complaint, a copy of all documents relating to the work in dispute which may be in its possession and upon which it proposes to rely in support of its claim for relief. That Practice Note also stipulates that prior to filing its complaint with the Board, a complainant must serve copies of the complaint and documents on each respondent and each person named in the complaint as someone who may be affected by the complaint.
The Board has also from time to time directed pre-hearing production of documents in
particular cases. See, for example, Canada Cement Lafarge Ltd., [19811 OLRB Rep. Dec. 1722, at
1732:
In a number of recent cases involving claims for substantial damages the Board has entertained pre-hearing motions requesting production of documents and greater particularity. In granting these requests, in whole or in part, the Board has relied upon section 103(2)(a) which provides:
103.-(2) Without limiting the generality of subsection (1), the Board has power,
(a) to summon and enforce the attendance of witnesses and compel them to give oral or written evidence on oath, and to produce such documents and things as the Board considers requisite to the full investigation and consideration of matters within its jurisdiction in the same manner as a court of record in civil cases;
Reliance has also been placed on rule 47(3) of the Board's Rules of Practice which provides:
47.-(3) Where a statement in an application or complaint or in any document filed under these Rules in respect of the application or complaint is so indefinite or incomplete as to hamper any person in the preparation of his case, the Board may, upon the request of the person made promptly upon receipt of the application, complaint or document direct that the information stated be made specific or complete and, if the person so directed fails to comply with the direction, the Board may strike the statement from the application, complaint or document.
And, in some of these cases, a labour relations officer has been appointed by the Board to facilitate the exchange of material between the parties and to assist in settlement efforts. Clearly, it such cases are to be litigated fairly and, particularly, if there is to be any chance of settlement, full and frank disclosure by the parties of both the detailed particulars of a damage claim and the documentary evidence that will be relied upon must occur prior to a hearing before the Board.
There are also some recent decisions, made during the course of ongoing hearings, in which the Board has directed that documents be filed with the Registrar, to be made available for inspection by a party's authorized representative in advance of hearing continuation dates, in order to expedite the hearing process and avoid unnecessary adjournments: see, for example, Forintek Canada Corp., [1985] OLRB Rep. July 1050, and Shaw-Almex Industries Limited, [1984] OLRB Rep. Apr. 659. Advance production of documents has also been fostered by means of pre-hearing conferences convened by the Board.
- It has been the Board's experience that, in appropriate cases, advance production of documents has promoted settlement discussions and expedited the hearing process by minimizing the need for document related adjournments and by enabling parties to narrow the issues in dispute. However, we are also cognizant of the possibility that hearing and deciding issues concerning the proper scope of advance production may delay the disposition of a case. It is clear that the instant case will take a substantial amount of time to adjudicate. Indeed, counsel for the Union has suggested that as many as twenty days of hearing may be required. Although we are not prepared at this juncture to direct production of tape recordings (and transcripts) on which the Union does not intend to rely, we are of the view that it is appropriate in the circumstances of this case to require the Union to produce any tape recordings and transcripts thereof in its possession on which it does intend to rely in these proceedings. This approach will expedite the hearing of this matter without giving rise to problems concerning the adequacy or completeness of production (as it is self-enforcing, in that the Union will be precluded from relying upon any tape recordings and transcripts in its possession which it has not produced). We are satisfied that the Board has the power to direct such production as master of its own practice and procedure under section 102(13) of the Act, which provides, in part, as follows:
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....
Moreover, as indicated above, section 103(2)(a) gives the Board the express power to compel production of "such documents and things as the Board considers requisite to the full investigation and consideration of matters within its jurisdiction".
For the foregoing reasons, the Board hereby orders and directs the Union to produce to respondent's counsel, on or before September 30, 1988, any tape recordings and existing transcripts thereof in its possession on which it intends to rely in these proceedings.
The hearing of these matters will continue before this panel of the Board on the dates which have been scheduled by the Board.