Teamsters Local Union No. 938 v. McDonnell-Ronald Limousine Service Limited, 1988 CanLII 3742

Ontario Labour Relations Board

[1988] OLRB Rep. November 1135

1392-88-R Teamsters Local Union No. 938, affiliated with the International Broth­erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Applicant v. McDonnell-Ronald Limousine Service Limited operating as - Airline Limousine, Respondent

BEFORE: Owen V. Gray, Vice-Chair, and Board Members G. O. Shamanski and H. Peacock.

DECISION OF THE BOARD; November 17, 1988

1. This is an application for certification in which the applicant has requested that a pre­hearing vote be taken.

2. The conduct of pre-hearing representation votes is provided for in section 9 of the Labour Relations Act ("the Act"):

9.-(1) Upon an application for certification, the trade union may request that a pre-hearing rep­resentation vote be taken.

(2) Upon such a request being made, the Board may determine a voting constituency and, if it appears to the Board on an examination of the records of the trade union and the records of the employer that not less than 35 per cent of the employees in the voting constituency were mem­bers of the trade union at the time the application was made, the Board may direct that a repre­sentation vote be taken among the employees in the voting constituency.

(3) The Board may direct that the ballot box containing the ballots cast in a representation vote taken under subsection (2) shall be sealed and that the ballots shall not be counted until the par­ties have been given full opportunity to present their evidence and make their submissions.

(4) After a representation vote has been taken under subsection (2), the Board shall determine the unit of employees that is appropriate for collective bargaining and, if it is satisfied that not less than 35 per cent of the employees in such bargaining unit were members of the trade union at the time the application was made, the representation vote taken under subsection (2) has the same effect as a the representation vote taken under subsection 7(2).

At this stage, we are called upon to deal with the matters referred to in subsections (2) and (3) of section 9. In view of the positions taken by the applicant and respondent, it would be useful to begin with a review of the Board's approach to matters of this sort.

3. The purpose of the pre-hearing vote procedure provided for in section 9 was described in Emery Industries Limited, [19801 OLRB Rep. Mar. 316:

5. It is axiomatic that in labour relations matters "time is of the essence"; but this is especially the case in respect of representation votes. If the trade union's certification application, and its status as bargaining agent, are not resolved expeditiously (i.e., if it cannot engage in collective bargaining, or perform the other representational functions for which it was selected) there may be discontent among its supporters and a possible erosion of that support. This might not only make the union's certification more difficult, but could also complicate its collective bargaining task. The purpose of the pre-hearing, or "quick vote" procedure is to facilil ate a prompt resolu­tion of representation questions, by permitting the Board to test employee wishes as soon as possible following the application date. This avoids the potential prejudice which might arise if a representation vote had to await a decision following a formal certification hearing. Some delay is inevitable, but the pre-hearing vote procedure is a legislative attempt to remove some of the problems, and prejudice, associated with delay while, at the same time, ensuring that all of the parties will be given a full opportunity to make their submissions with respect to any matters in dispute.

4. It is critical to an understanding of the Board's function at this stage to recognize that the Board does not at this point determine any question of substance and there is not, therefore, any need for or right to a "hearing". As the Board observed in Ontario Hydro, [1987] OLRB Rep. Dec. 1589:

3. A quick vote will be a totally illusive ideal except in the most trivially simple of cases if the trade union status of the applicant, the description or composition of the appropriate bargaining unit, the list of persons employed in that unit on the application date, the qualitative and quanti­tative sufficiency of evidence of membership or any other issue of substance must be adjudicated before the vote is conducted. The provisions of section 9 recognize this. By describing the vote contemplated by section 9 as a "pre-hearing" vote, the Legislature recognized that the Board must be able to decide whether to conduct such a vote without having first to decide any issue in respect of which any person has the right to prior notice and the opportunity of a hearing. As the Board observed in Kenting Earth Sciences Limited, [1985] OLRB Rep. Feb. 292 at para­graph 8:

A "pre-hearing representation vote" is precisely that: a vote conducted before any hearing is held to determine whether and to what extent the result of that vote should affect the rights of the parties. The Board has repeatedly noted that the expedition contemplated and intended by section 9 of the Labour Relations Act would be lost if the vote had to await formal adjudication of some contested issue in the guise of a preliminary matter: The Board of Education for the City of North York, 11984] OLRB Rep. July 989; Satin Finish Hardwood Flooring (Ontario) Limited, [1984] OLRB Rep. Nov. 1602, and the decisions cited therein. A hearing is conducted after the vote to determine whether effect should be given to the result.

4. The Board's response under subsection 9(2) to a request that a pre-hearing vote be conducted involves a decision about procedure, not substance. The procedural question is whether to gather up additional information about the wishes of employees to be represented by the appli­cant. The employees whose wishes would be tested in this way collectively constitute one or more voting constituencies, which may very well not be coextensive with the bargaining unit or units ultimately found appropriate by the board. The voting procedure can be designed to ensure that a vote of employees in that bargaining unit or units can, in effect, be retrospectively reconstructed from ballots cast by persons in the voting constituency or constituencies. The Board's discretion in defining a voting constituency is fettered only by its own assessment of the possible utility of a pre-hearing vote conducted in that constituency. If it appears to the Board that not less than 35 per cent of the employees in a voting constituency were members of the applicant at the time the application was made, the Board may conduct such a vote before enter­taining the representations and evidence of the parties and other interested persons with respect to matters relevant to the disposition of the application and before determining whether and to what extent the results of that vote could or should be relied upon in dealing with the applica­tion.

5. Except in very simple cases, there will always be some risk that no use can ultimately be made of the results of a particular pre-hearing representation vote. Against that risk must be balanced the potential benefit of the quick vote, both in the case at hand and for the certification process generally. In the Board's view, the purpose described in the preamble to the Act is best served by making the section 9 quick vote procedure a real and workable option in the widest possible range of cases. As a matter of policy, the Board will not be quick to conclude that a pre-hearing vote should not be conducted because of a risk, however real, that no use could ultimately be made of the results. Generally, the Board would rather conduct a pre-hearing vote which might later prove useless than fail to conduct a pre-hearing vote which might have been useful.

5. Reference may also usefully be made to the Board's decision in Taiga Trucking (Ontario) 1980 Inc., [1987] OLRB Rep. Nov. 1433, at paragraphs 5 and 6:

5. Our function at this stage is to make the determinations contemplated by subsection 9(2) of the Act. We do not determine the appropriate bargaining unit or assess the weight to be given to the applicant's membership evidence. As appears from subsection 9(4) of the Act, those mat­ters are only decided after the vote is conducted, when all interested persons will be notified in Form 71 of the contents of the Returning Officer's report and of their opportunity to make rep­resentations and have a hearing before the Board with respect to any issue affecting the certifi­cation application or the pre-hearing representation vote. Indeed, at this stage the Board does not attempt to resolve any dispute about its constitutional jurisdiction (Kenting Earth Sciences Limited. [1985] OLRB Rep. Feb. 293) or the applicant's "trade union status" (Emery Industries Limited, supra) or the identity of persons employed in any proposed bargaining unit at any rele­vant time (The Board of Education for the City of North York, [1984] OLRB Rep. July 989), or the application of subsection 1(4) of the Act (Satin Finish Hardwood Flooring (Ontario) Limited), [1984] OLRB Rep. Nov. 1602). These and any other issues affecting whether and how the results of a pre-hearing vote should affect the disposition of the application for certification are only resolved after any such vote is conducted.

6. While we do not resolve such issues at this stage, we do need to know the immediate parties' positions on any issue which could affect the use to which the results of a pre-hearing represen­tation vote may later be put. This is so that a meaningful voting constituency or constituencies can be struck and appropriate directions made concerning segregation of ballots cast by individ­uals or groups whose inclusion in or exclusion from the appropriate unit or units is in dispute. A pre-hearing vote is of little use unless one can later reconstruct from it a vote of the employees in the unit ultimately found appropriate by the Board. Accordingly, when an applicant requests a pre-hearing vote, the Board's practice is to authorize one of its Labour Relations Officers to examine the records of the applicant and of the respondent and to confer with the parties as to the description and composition of the appropriate bargaining unit, the description and compo­sition of the voting constituency or constituencies, the list of employees as of the terminal date for the purposes of any vote which might be directed and all other matters relating to entitle­ment to and arrangements for such a vote, and to report to the Board thereon.

As this passage indicates, the Board's determination of the matters contemplated by subsections (2) and (3) of section 9 is not made in a vacuum. In addition to the examination contemplated by subsection 9(2), one (or more) of the Board's Labour Relations Officers ("LROs") confers with the applicant, respondent and any incumbent trade union (as well as any other interested party who seeks to participate) with respect to their positions on issues in the application. While these are not all of the persons who would be affected by the ultimate outcome of the application, it must be recognized that this is not a fact-finding or adjudicative mission but, rather, an attempt to flesh out and pin down the positions of these particular parties with respect to those matters which may or may not later be in issue in the application. Experience teaches that any issues or positions which might later be raised or taken by other interested parties - employees, for example - will almost always fall within the range of issues raised by the applicant, respondent and any incum­bent. Accordingly, a pre-hearing vote which is conducted in such a manner as to be potentially use­ful on any outcome of the range of issues revealed at the conference with the LRO is most likely to remain potentially useful after the vote is conducted and all interested persons are given the oppor­tunity to be heard on the issues referred to in subsection 9(4) and any issues relevant to the disposi­tion of the application.

6. The importance of full disclosure of their positions by those who do participate in the pre-vote conference with the Labour Relations Officer was addressed in Simpsons Limited, (Board File No. 1876-84-R, decision dated October 28, 1985, unreported):

14. ... The objective in determining voting constituencies and otherwise making arrangements for a pre-hearing representation vote is to gather information in a form in which it may later be used to determine what the wishes were at the time of the vote of those employees found, in hearings conducted after the vote, to fall within the appropriate bargaining unit or units. It is not necessary for the Board to adjudicate the parties' disputes over the appropriate bargaining unit before striking a voting constituency and otherwise making directions for the conduct of a pre-hearing representation vote. It is necessary for the Board to know the positions of the par­ties and the nature of the dispute between them with respect to the appropriate bargaining unit, so that a meaningful voting constituency or constituencies can be struck and appropriate direc­tions made concerning segregation of ballots cast by individuals or groups whose inclusion in or exclusion from the appropriate unit or units is in dispute. One of the important objects of a Labour Relations Officer's preliminary meeting with the parties in these cases is to ascertain their position on the appropriate bargaining unit issue and define (and narrow, if possible) the nature of any disagreement on that issue. The pre-hearing vote process would be subverted if a respondent or intervener could advance for the first time at hearing a position or allegation which would, if accepted, render meaningless a pre-hearing vote which could have been con­ducted in a meaningful way if that position or allegation had been disclosed in an appropriate and timely fashion before the vote was conducted. Accordingly, if a respondent or intervener proposes later to argue that the bargaining unit proposed by the applicant is inappropriate, it must give full particulars of its challenge, and of the description of the unit it considers appropri­ate, before the Officer's meeting with the parties concludes.

The implication, of course, is that a party who was a participant in the conference with the LRO may not in some circumstances be permitted to advance a position which it did not articulate at the time of that conference. The same point was made in Kenting Earth Sciences Limited, [1985]OLRB Rep. Feb. 293, where an employer had suggested to the LRO conducting the conference that a particular date for conduct of a pre-hearing representation vote was inappropriate:

9. As for the matter of the vote arrangements, these will be determined in this case, as in every case in which a pre-hearing vote is requested, on the basis of the material flied prior to the ter­minal date and officer's meeting with the parties, the submissions made to the officer appointed by the Board to confer with the parties on that and other matters affecting the application, and any subsequent written submissions to the Board which the officer may have invited (as in this case) or directed. The respondent has not provided information on the number of employees who may be unable to vote on February 28th or any other potential vote date. It has not pro­posed any other time or method of conducting a vote. Instead, it has asked that we schedule a hearing to receive unspecified submissions which it has declined to make either to the officer appointed by the Board or in its letter to the Board. We see no reason to make pre-hearing rep­resentation vote arrangements the subject of a pre-vote hearing and thereby delay what is intended to be an expeditious process. The adequacy of the vote is a matter which can be addressed, after the vote is conducted, on any ground which may fairly be raised at that time, bear­ing in mind the opportunity the parties have already had to make representations both through the Board's labour Relations Officer and otherwise.

[emphasis added]

The question whether a party will be permitted at hearing to introduce allegations or issues it did not raise at the pre-vote conference or to resile from positions it took at that conference is a matter for determination by the panel which deals with the merits of the application at the post-vote hear­ing contemplated by subsection 9(4) of the Act.

7. If there is to be a pre-hearing representation vote in this case, the voting constituency or constituencies must be designed to take into account the positions of the applicant and respondent with respect to the appropriate bargaining unit. The applicant would have the Board describe that unit as:

All dependent contractors of the respondent in its limousine service working in and out of the Municipality of Metropolitan Toronto and the Regional Municipalities of York and Peel, save and except dispatchers, office and sales staff, supervisors and those above the rank of supervisor.

The respondent takes the position that dependent contractors who are "regularly employed for not more than twenty-four (24) hours per week" ("part-timers") or "students employed during the school vacation period" ("students") should not be included in a unit with other dependent con­tractors but, rather, should constitute a separate appropriate bargaining unit (a "part-time unit"). The respondent also proposes the following clarity note:

CLARITY NOTE: The term "dependent contractors" means drivers, les­see-drivers and broker-drivers.

The applicant agrees to the use of this clarity note.

8. The employer was required to file lists of those persons whom it claims were employed on the application date in the unit proposed by the applicant. Persons regularly employed for not more than 24 hours per week were to be listed on a separate schedule (Schedule "B") and persons whom in any other respect the employer felt should not be included in the appropriate bargaining unit were to be identified on the list. The lists filed by the employer do not identify any employee as a student. No part-timer has been identified by name on Schedule "B"; the employer has simply written "unknown" on that schedule. When invited at the LRO's conference to state its position with respect to the part-time unit proposed by the respondent, the applicant chose to say only that a second unit is not appropriate because the employer has not provided the names of any part-timers or students. We observe in passing that the failure to assert the existence of part-timers or students employed as at the application date would not, on the Board's jurisprudence, be entirely dispositive of the question whether division of the dependent contractors into two units would be appropriate. The applicant has chosen not to assert that there were any part-timers or students employed on the application date in the bargaining unit it proposes. If it and the employer are later held to the proposition that there were no such persons on that date and the Board ultimately accepts the respondent's contention that there are two appropriate units, the applicant could not be certified as bargaining agent of the one unit in which no persons were employed on the applica­tion date. Again, we emphasize that the question whether either party will be held accountable for the positions they asserted or failed to assert in the conference with the LRO is a matter which will be entirely in the hands of the panel which deals with this application on its merits after any vote is conducted. The significance of the applicant's position at this stage is simply that in these circum­stances we cannot provide for a separate voting constituency for part-timers and students.

9. We determine that the voting constituency for the purpose of any pre-hearing vote in this application shall consist of:

All dependent contractors of the respondent in its limousine service working in and out of the Municipality of Metropolitan Toronto and the Regional Municipalities of York and Peel, save and except dispatchers, office and sales staff, supervisors and those above the rank of supervisor.

CLARITY NOTE: The term "dependent contractors" means drivers, les­see-drivers and broker-drivers.

In order to take the respondent's position into account, the ballot of any part-timer or student would be segregated and not counted pending the Board's determination of the bargaining unit issue on its merits.

10. According to the applicant's records, 108 of its members were employed in the voting constituency on the application date. In the list of employees it filed in this application, the respon­dent asserted that 339 named persons were employed in that voting constituency on the application date. The names of 101 of those persons correspond with the names of persons who, on the appli­cant's records, were members of the applicant at the relevant time. This is less than 35 per cent of the number of persons on the employer's list. The applicant challenges the accuracy of the lists filed by the employer, asserting that well over 100 of the persons named on the list were not employed in the voting constituency at the relevant time, while 4 unnamed persons were so employed. If the applicant is correct in this, then not less than thirty-five per cent of the employees in the voting constituency were members of the trade union at the time the application was made.

11. The Board's approach in circumstances of this kind was explained in The Board of Edu­cation for the City of North York, [1984] OLRB Rep. July 989, at paragraph 7:

7. The purpose of the pre-hearing vote procedure is to test the question cf representation as quickly as possible after the application date. This avoids the prejudice which inevitably occurs when the conduct of a representation vote must await the determination of factual and legal issues which can only be resolved after a hearing in which each of the affected parties can partic­ipate. Often those disputed issues include the appropriate description of tri e bargaining unit, vote eligibility and employee status of challenged individuals. If the existence of such disputes could stand in the way of a pre-hearing vote, the procedure's efficacy would be destroyed. That is why the Legislature required only that the Board strike a voting constituency and prescribed as the vote prerequisite only that the applicant have the the appearance of the requisite support within the voting constituency. (See generally Emery Industries Limited, [1980] OLRB Rep. March 316 at paragraphs 5, 6 and 7.) Where determination of the actual prerequisite level of support depends on a resolution of contested factual or legal issues, the Board assesses the appearance of support on the assumption that the union's position on the matters in dispute is correct. A pre-hearing vote is normally directed if, on that assumption, the requisite appearance of support is present. The contested issues are dealt with after the vote is held. However, the results of a pre-hearing vote are of no effect unless it is later demonstrated that not less than 35 per cent of the persons ultimately found to have been employees in the appropriate bargaining unit on the application date were members of the applicant on that date. If that demonstration depends on contested issues being later resolved in the applicant's favour, the Board will nor­mally defer counting any ballots until it can resolve those issues which bear on the propriety of counting all, or any, of the ballots.

In accordance with the principles set out in that passage, it appears to us on an examination of the records of the trade union and the records of the employer that not less than thirty-five per cent of the employees in the voting constituency were members of the trade union at the time that the application was made.

12. The respondent takes the position that the Board should not proceed with this applica­tion at this time as "non-driving brokers" have not been given notice of these proceedings. The respondent has filed an application under subsection 1(4) of the Act for a declaration that it and 21 named "non-driving brokers" "carry on associated or related activities or business [sic] under com­mon control or direction and are [sic] one employer for the purposes of the Labour Relations Act". The assertion in the application is that those "non-driving brokers" have entered into agreements with persons defined as "dependent contractors" in this application and that they exercise employer-like functions" under those agreements. That application has not yet reached the stage at which any reply has been received from any of the "non-driving brokers" affected. The trade union had not received notice of that application at the time of the conference with the labour rela­tions officer, but took the position that this application should be dealt with by the Board without delay.

13. There is no suggestion by the respondent, and no reason to suppose from any of the material, that any outcome of the respondent's application under subsection 1(4) would affect the composition of the appropriate bargaining unit or the number or identify of persons employed in that bargaining unit at any time material to the disposition of this application. It is not suggested, and there is no reason for us to suppose, that consideration of the possible outcomes of the subsec­tion 1(4) application would or could affect the composition of the voting constituency or the way in which a vote of those employed in that constituency should be conducted. The only thing the respondent points to is that the "non-driving brokers" affected by the application under subsection 1(4) do not have notice of this application. Those "non-driving brokers" who receive notice of the application under subsection 1(4) will also receive notice of this certification application before any hearing is conducted under subsection 9(4) with respect to the merits of this application. Having not been invited to participate in the conference with the LRO, they will not be prevented from raising any relevant issue or taking any appropriate position merely because the issue or position was not raised at the conference with the LRO. If they raise and succeed on an issue which renders the results of the pre-hearing representation vote unusable, then those results will be unusable. The fact that the "non-driving brokers" do not now have notice of this application will in no way prejudice their position with respect to it. We do not accept that our determination under subsec­tions (2) and (3) of section 9 should be delayed until after the non-driving brokers have been given notice of these proceedings.

14. Accordingly, we direct that a pre-hearing representation vote be conducted among employees in the voting constituency described in paragraph 9 hereof. All those employed in that voting constituency on October 31, 1988 who are so employed on the date the vote is conducted shall be eligible to vote. If a person seeking to cast a ballot is alleged to be a person regularly employed for not more than 24 hours per week or a student employed during the school vacation period, as of either October 31, 1988 or the date on which the vote is conducted, his or her ballot shall be segregated and not counted pending determination by the Board of the matters referred to in subsection 9(4) of the Act. Having regard to the matters discussed in paragraphs 10 and 11 above, the ballot box shall be sealed and none of the ballots cast therein shall be counted pending resolution of the issue referred to therein.

15. The report of the LROs on their conference with representatives of the applicant and respondent indicates that a number of issues arose with respect to the preparation of voters lists and other matters concerning the conduct of any pre-hearing representation vote. Insofar as those issues relate to the conduct of the vote itself, the determination of those matters is referred to the Registrar under section 68 of the Board's Rules of Procedure. Insofar as those issues concern the right of the employer to assert that the persons employed in the voting constituency as of October 31, 1988 were other than as indicated in the document prepared at the conference with the LROs, that is an issue for determination by the panel which hears the application on its merits should there be any remaining dispute in that regard at that time. Insofar as the conduct of the vote is con­cerned, the voters lists will contain the usual notation that persons not named in them who con­sider themselves eligible to vote should present themselves to the Returning Officer at the time of the vote. As would be the case in the absence of any Board direction to the contrary, anyone asserting the right to vote will be allowed to mark a ballot, and the ballot of anyone whose eligibil­ity to vote is challenged will be segregated and not counted pending resolution of the dispute over their eligibility.

16. During the LROs' conference, the applicant's representatives naturally were given the opportunity to review the list of employees filed by the employer, so that they could advise the LROs of their position with respect to the list of employees in the appropriate bargaining unit or units as of the application date and the list of employees in the voting constituency as of the termi­nal date (which is the date as of which, as in this case, initial voter eligibility is ordinarily determined). In the course of that conference, the applicant asked for a copy of the employee list filed by the employer as well as a copy of the voters list which was compiled in the course of the confer­ence. The respondent objected to the applicant's being given a copy of either list. The LROs then indicated that the request would be addressed by a panel of the Board, and invited the parties to file written submissions setting out the basis of their respective positions within two days of the conference.

17. The question whether a trade union applicant for certification should be given copies of the lists of employees filed by the respondent employer has been addressed in several reported decisions in recent years. One is a decision involving this very respondent: Airline Limousine, [19851 OLRB Rep. Jan. 1. The Board there concluded that the trade union ought to be given a copy of the list, bearing in mind not only policy considerations having to do with the expeditious and efficacious disposition of certification applications but also the right of the trade union, as a matter of natural justice, to be informed of the information on which an opposite party is seeking to have the Board determine its rights. The Board's conclusion in that case that a trade union is entitled to the information in such a list as a matter of law was approved and adopted by the Nova Scotia Supreme Court in Nova Scotia Michelin Tire Employees' Local 1~599 v. Nova Scotia Labour Relations Board, 86 CLLC ¶14,009. The Board again addressed the issue in Metropolitan Separate School Board, [1986] OLRB Rep. Dec. 1733 in a unanimous decision which identified the legal, policy and administrative considerations which require that applicant trade unions be given the information on the lists and favour the giving of that information in the form of copies at an early stage in the proceedings.

18. The Board is sensitive to the fact that some employers are uncomfortable at the pros­pect that trade unions will in any circumstances and for any purpose be given copies of the list of employees which they prepare in connection with Board proceedings. Of course, some employers are uncomfortable with the idea that they can in any circumstances be compelled to deal with a trade union as exclusive bargaining agent of their employees under the strictures of the Labour Relations Act. Discomfort can only guide the Board's approach to the administration of the Act to the extent it translates into persuasive legal or policy reasons for taking a particular approach to that administration. As regards employer discomfort with the disclosure of employee lists, the Board has on several occasions had the opportunity to consider the legal and policy reasons advanced by certain employers in support of the proposition that, in their circumstances, there should be restrictions placed on the timing and circumstances of disclosure to the applicant trade union of the employee lists which they have filed with the Board. The Board was not persuaded in those cases that the trade union should be denied a copy of what is in essence a pleading of fact concerning an outstanding issue.

19. The Board's current administrative approach to the pre-hearing handling of lists accom­modates the possibility that there may be some legal or policy consideration or factual circum­stance not argued or dealt with in previous decisions which might warrant limiting a trade union to viewing the list in the presence of a labour relations officer without giving the union a copy of the list "to keep." To accommodate this possibility, the Board's LROs do not give the union copies of the lists "to keep" if the employer objects; instead, the union's request is referred to a panel of the Board, so that the Board can consider the legal, policy and factual grounds on which the employer bases its objection. If the objection cannot be dealt with by a panel immediately, as will be the case when the issue arises at an LRO's conference in a pre-hearing vote application, the union is in the meantime given sight of the lists in the company of a labour relations officer. While this approach affords employers an opportunity to argue that legal or policy considerations or factual circum­stances warrant departure in their case from the principles and approach adopted in the decisions to which we have referred, the existence of such considerations or circumstances will not be assumed: they must be advanced and articulated by the employer who opposes the disclosure. It is not enough simply to say that the request is opposed. Unless a respondent employer articulates some credible legal, policy or factual reason for doing otherwise, the Board will give the applicant trade union copies of the lists.

20. Here, the respondent objected at the LROs' conference to the applicant's being given copies of the lists it filed. It did not offer any reason for its objection at that time. With respect to that and several other issues which arose during the conference, the applicant and respondent were told that any written submissions they wished the Board to consider would have to be filed with the Board within two (business) days after the meeting. Counsel for the respondent has since filed three and one-half single-spaced typewritten pages of representations with respect to various mat­ters. Not one word of those submissions addresses the respondent's objection to the union's being given copies of the lists or the reasons for the objection.

21. The respondent having offered no reason why the union should not be given copies of the lists, we direct that such copies be sent to the union with this decision.

22. The matter is referred to the Registrar.