Ontario Labour Relations Board
[1988] OLRB Rep. August 807
0823-88-R International Brotherhood of Painters and Allied Trades Local 1891, Applicant v. Image Painters L.M. Inc., Respondent
BEFORE: N. B. Satterfield, Vice-Chair, and Board Members W. Gibson and H. Kobryn.
DECISION OF THE BOARD; August 11, 1988
Reasons for Decision
1The name of the respondent is amended to read: "Image Painters L.M. Inc.".
2This is an application for certification made under the construction industry provisions of the Labour Relations Act. Subsection 102(14) of the Act gives the Board the discretion to dispose of applications for certification in the construction industry without the need to hold a hearing. The reply filed by the respondent has been completed so as to request a hearing of the application by the Board. The respondent's reasons for requesting a hearing are set out in the reply as follows:
The Respondent is requesting a hearing by the board due to the fact that 50% of the employees do not speak or understand English [sic] and can not work nor communicate self sufficiently without a translator.
It is also our opinion that the following employees do not understand the purpose and nature of certification.
(five persons named)
3The Board understands the respondent to be requesting a hearing because five employees affected by the application do not understand the purpose and nature of the certification process as a result of their inability to understand the English language. If the Board's understanding is correct, whether or not it was the respondent's intention to do so, its request amounts to a plea on behalf of its employees. As a general rule, the Board does not permit an employer to speak for employees in an application for certification absent allegations of fraud, intimidation or coercion in the obtaining of membership evidence. See Federated Building Maintenance Company Limited, [1979] OLRB Rep. Oct. 974, at para. 9. Even were the Board to take the respondent's allegations as inferring that the employees have not had proper notice of this application because the Board's notices to employees were in the English language which they are incapable of understanding without the assistance of a translator, that is a matter for the employees to raise. While it might be argued that the employees could not know to raise the matter if they do not understand the language of the notice, that has not been the Board's experience. In Federated Building, supra, the respondent employer had alleged that, for the Board to process the application for certification, would be to deny the employer's employees natural justice because they had not received proper notice of the application. The allegation was founded on the acknowledged fact that eighty per cent of the employees affected by the application could not read English and the Board's notices of the application had been posted in the English language only. The Board concluded that the employer had no standing to make that plea on behalf if its employees and, in so doing, commented as follows:
- Obviously there are numbers of employees in the Canadian workplace who, by reason of their national origin, are not able to read or write either English or French. They are nevertheless usually quite able to function within the mainstream of everyday life in Canada. Whether they deal with commercial interests or with their government, they generally expect to do so in one of the two official languages of Canada. The same is true in their dealings with the courts or with public administrative tribunals. Immigrant Canadians generally obtain, and can reasonably be expected to obtain, the assistance necessary to enable them to respond to process issuing from a court or tribunal. In this case, all 125 of the employees were able to respond to the Board's subpoena, written in English, issued to them by the employer. In the Board's experience employees who are not fluent or literate in English do not fall within a special class of disadvantaged workers. While the Board has always made use of translations in the receiving of evidence, it does not presume that immigrant Canadian employees are less able then others to inform themselves and assert their rights under The Labour Relations Act. (lisco of Canada Ltd., [1973] OLRB Rep. May 221; International Chinese Restaurant, [1977] OLRB Rep. Oct. 688; Dylex Ltd., [1977] OLRB Rep. June 357.)
4In the instant case, therefore, having regard to all of the foregoing, even were the Board to accept as true everything which the respondent has said in support of its request for a hearing, the respondent's allegations do not raise grounds which would cause the Board to hold a hearing into this application.
5In this application for certification the applicant filed eight combination applications for membership and receipts. The combination applications for membership are signed by the employees and the receipts are countersigned and indicate that a payment of $1.00 has been made within the six-month period immediately preceding the terminal date of the application. The money was collected by more than one person. The applicant also filed a duly completed Form 80, Declaration Concerning Membership Documents, Construction Industry.
6The respondent filed a reply, a list of employees containing ten names on Schedule "A" and one name on Schedule "B" and specimen signatures within the time fixed in accordance with the Labour Relations Act and the Board's Rules of Procedure.
7The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act and is an affiliated bargaining agent of a designated employee bargaining agency. Pursuant to the designation issued by the Minister under section 139(1) of the Act on April 12, 1978, the designated employee bargaining agency is the International Brotherhood of Painters and Allied Trades and the Ontario Council of the International Brotherhood of Painters and Allied Trades.
8The Board further finds that this is an application for certification within the meaning of section 119 of the Labour Relations Act and is an application made pursuant to section 144(1) of the Act which provides that:
An application for certification as bargaining agent which relates to the industrial, commercial and institutional sector of the construction industry referred to in clause 117(e) shall be brought by either,
(a) an employee bargaining agency; or
(b) one or more affiliated bargaining agents of the employee bargaining agency,
on behalf of all affiliated bargaining agents of the employee bargaining agency and the unit of employees shall include all employees who would be bound by a provincial agreement together with all other employees in at least one appropriate geographic area unless bargaining rights for such geographic area have already been acquired under subsection 3 or by voluntary recognition.
9The Board further finds, pursuant to section 144(