[1989] OLRB Rep. July 752
0191-89-R National Automobile, Aerospace and Agricultural Implement Worker's Union of Canada (C.A.W. Canada), Applicant v. Flo-Con Canada Inc., Respondent v. Group of Employees, Objectors
BEFORE: Robert Herman, Vice-Chair, and Board Members D. Patterson and G. 0. Shamanski.
APPEARANCES: Clare Meneghini and T. Heller for the applicant; W. J. Hayter and Karen Beisch for the respondent; J. Sebetovsky for the Employee objectors.
DECISION OF THE BOARD; July 17, 1989
- In a decision dated July 6, 1989, the Board directed that a certificate issue forthwith to
the applicant. We now provide our reasons.
This application for certification is the second application filed by the applicant with respect to the same employees of the respondent employer. The first application was filed on March 6, 1989. The employer filed a reply on March 23, 1989, alleging circumstances of non-pay with respect to one membership card collected by Ron Gorman, and numerous charges of intimidation, coercion, and misrepresentation with respect to the collection of the membership cards. The applicant union withdrew that first application on March 30, 1989, and filed the instant certification application on April 18, 1989, together with fresh membership evidence.
The respondent filed a reply in this application relying upon the charges asserted in the first application with respect to intimidation, coercion, and misrepresentation in the collection of the membership evidence and alleging additional impropriety of the applicant in the method of obtaining the membership cards. The respondent however filed no allegations of non-pay or non-sign with respect to any of the fresh cards, nor any allegations with respect to the Form 9 declaration before us. The Form 9 before us discloses no exceptions. The Form 9 declarant is the same person both in the instant application and the earlier certification application. The respondent submitted, in light of the withdrawal of the first application in the face of the allegations filed by the respondent, that the applicant union ought to be precluded from denying the truth of those allegations, and the Board must accept those allegations as factually correct.
The Form 9 declarant is a union organizer, and not an employee of the respondent. She testified earlier in this proceeding concerning a different matter (cf. the Board's decision of June 2, 1989), and in that testimony acknowledged that the first application was withdrawn because of the allegations filed by the employer. The applicant's counsel in submissions stated that upon investigation by the Form 9 declarant, she had discovered that Gorman had committed the non-pay error alleged by the employer, and accordingly she had withdrawn the first application. Gorman was not the collector of any of the fresh cards filed in this application, nor is there any evidence that he was involved in any aspect of the collection of these cards.
The Board indicated that it would not conduct its own Form 9 inquiry, as there were no allegations with respect to the instant Form 9 or membership cards, and the membership cards were newly collected. The Form 9 and cards appeared regular in all respects. The Board did not
accept the allegations of the respondent as factual, and it ruled that the union was not estopped or precluded from denying the allegations. The parties were directed to lead the evidence which they wished on any of the matters in issue.
Only the respondent led evidence. That evidence was quite limited. During the first organizing campaign employee organizers for the applicant approached fellow employees at work, during working hours, contrary to the stated wishes of the respondent employer. Two employees were given written warnings because of their solicitation during such working hours. Also during the first organizing campaign, Terry Belcher was a supervisor and was seen on numerous occasions speaking to three employees who were involved in the organizing campaign. There was no apparent work-related reason for Belcher to have been speaking to these individuals. When another supervisor or managerial individual approached this group, the group would dissipate. There was no evidence of what Belcher and the three employees discussed. Two of those three employees were the employees warned for organizing on work time. There is no evidence whether Belcher was ever warned or disciplined. An employee supervised by Belcher was concerned that Belcher might discriminate against her because of her opposition to the union. Finally, Ron Gorman kept a set of brass knuckles in his tool box, and those brass knuckles were seen in the top tray of his tool box by two different supervisors. There was no evidence that Gorman had ever used the brass knuckles, threatened to use them, or that any employee in the work place, other than managerial personnel, was aware that Gorman had these brass knuckles.
Based on this evidence, the respondent first argued that the fresh membership evidence remained under a cloud, given the non-pay and Form 9 problems in respect of the first application. The respondent submitted that the applicant had attempted a fraud upon the Board in the first application, and should not be allowed to escape the consequences of such behaviour by the artifice of withdrawing the first application and filing the instant application. This cloud or suspicion was such that the Board could not, as it ordinarily would, rely upon the membership cards and the Form 9. The Board therefore, submitted the respondent, ought to dismiss the instant application or at least direct a representation vote. Secondly, the respondent asserted that a series of acts or events with respect to the collection of the first membership cards was such that the Board ought to be seriously concerned about whether the documentary evidence before it in the instant application could be considered reliable. Particularly, the respondent pointed to: Belcher's unfair treatment of an employee she supervised because of that employee's known opposition to the union and Belcher's obvious support for the union, Belcher's speaking to employee organizers during working hours, the union conducted its campaign during company time on the company premises, Gorman intimidated employees with the use of brass knuckles, employees were repeatedly pressured into signing by union organizers, the fact of the non-pay with respect to the first application, the circumstances of and the reason for the withdrawal of the first application, and the uncontested fact that the union engaged in door-to-door soliciting at the employees' residences with respect to the collection of the fresh membership cards. In support of these submissions, counsel for the respondent relied upon the following decisions: Mathias Ouellette [1955] C.L.L.R. ¶16,026, Hydro Electric Commission of Hamilton [1958] CCH ¶18,120, Canadian Wire Brush Company [1976] OLRB Rep. Dec. 800, The Ontario Hospital Association [1979] OLRB Rep. March 243, St. Michael Shops of Canada Limited [1979] OLRB Rep. April 346, Leco Industries Limited [1979] OLRB Rep. May 404, The Bristol Place Hotel [1979] OLRB Rep. June 486, and Bennett Paving & Materials Limited [1980] OLRB Rep. Nov. 1579.
We turn first to the allegations of misconduct of the applicant with respect to the collection of the membership cards filed in the instant application. Notwithstanding the numerous allegations of the employer, there was no evidence which would suggest that there was anything improper in the collection of any of the cards filed in support of this application. Membership cards do not become unreliable merely because a union obtains them by approaching employees at their residences or because a union obtains them at the place of employment. They do not become unreliable because a supervisor is seen at work talking to employees who are involved in the organizing campaign. Nor do they become unreliable because some previously signed cards, not relied upon by the union, were collected by an employee who owns brass knuckles and keeps them in his tool box, where others at work happen to see them. We find there has been no misconduct by the applicant nor other events that would cast any doubt on the reliability of the memberships.
Secondly, the respondent alleged that the applicant union committed a fraud upon the Board with respect to the first application, and ought not to be allowed to benefit from such fraudulent behaviour by the mechanism of withdrawing the first application. No bar was imposed upon any subsequent application at the time the first application was withdrawn. Nor do the facts suggest that the Board ought to have imposed a bar with respect to the first application. (See, for example, The Watson Manufacturing Company of Paris Limited, [1968] OLRB Rep. Aug. 441, Amarcord Carpenters Ltd., [1989] OLRB Rep. June 531. Consequent upon that withdrawal, the applicant filed a new certification application, together with entirely new membership evidence. None of these new cards involved the activities of Gorman, the person who had been responsible for the non-pay of a card in the first application. No allegations were filed with respect to any of this membership evidence nor with respect to the Form 9 declaration. This new membership evidence is satisfactory in all respects, and demonstrates support for the applicant in excess of fifty-five per cent of the employees in the bargaining unit.
The Board stated in Leco Industries Limited, supra:
- The argument made by the respondents in the present case is virtually identical to that considered, and rejected, by the Board in the very recent decision in the Ontario Hospital Association (Board File No. 1772-78-R), decision dated March 14th, 1979 - as yet unreported. There, too, the respondent argued that, because of certain allegations which had been made in a previous application, the Board should exercise its discretion to order a representation vote in a subsequent application. At paragraphs 9 and 10 of the Ontario Hospital Association decision the Board summarized the argument as follows:
The respondent argued that the Board relies upon Form 8[now Form 9], Declaration concerning Membership Documents, and the evidence of membership filed by the applicant. The respondent stressed that Form 8 is to be completed on the basis of knowledge (including inquiries), information and belief and argued that Form 8 had been signed negligently and erroneously. On this basis the Form 8 filed in File No. 0718-78-R was characterized as inaccurate, false and misleading. In these circumstances, the respondent argued that there is a cloud on the evidence in the instant application (even if new evidence of membership has been filed) which may only be dissipated by a representation vote in the instant application.
The central question to be considered by the Board is whether the conduct of the applicant with respect to evidence of membership in one application may cause the Board to seek the confirmatory evidence of a representation vote in a subsequent application for certification which involved the same employer, the same trade union and, to all intents and purposes, the same bargaining unit.
- In view of this very recent Board decision, which contains a review of the authorities, it is unnecessary for the Board to repeat that review in the present case. Suffice to say that the Board adopts the reasoning and analysis of the panel in the Ontario Hospital Association case, as well as its conclusion that no representation vote should be ordered in these circumstances. Whether or not the Board can resort to evidence given before it at previous certification hearings when the panel was differently constituted (in this regard see R. v. OLRB, ex pane Trenton Construction Workers Assoc., 1963 CanLII 117 (ON HCJ), [1963] 2 O.R. 376 and, more recently, Radio Shack [1978] OLRB Rep. Nov. 1043) we are not persuaded that the allegations in the present application are of such kind or character as to prompt the exercise of our discretion to impose a bar or order a representation vote. There is no allegation before the Board in the present case with respect to any impropriety in the evidence presently before us. Nor, as we have already pointed out, is there any evidence of irregularity or misconduct in the previous application. In the circumstances, therefore, the Board is satisfied, on the basis of all the evidence before it, that more than fifty-five per cent of the employees of the respondent in the bargaining unit, at the time the application was made, were members of the applicant on 9th April, 1979, the terminal date fixed for this application and the date which the Board determines, under section 92(2)(j) of The Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act.
- In Duracon Precast Industries Ltd., [1981] OLRB Rep. Jan. 22, the Board wrote:
As the Board pointed out in The Ontario Hospital Association case, [1979] OLRB Rep. March, p.243, in the circumstances of the instant application, the central question to be considered by the Board is whether the conduct of the applicant with respect to evidence of membership in an earlier application may cause the Board to seek the confirmatory evidence of a representation vote in a subsequent application for certification which invokes the same employer, the same trade union and, to all intents and purposes, the same bargaining unit.
The applicant has disclosed to the Board the nature of the irregularity with respect to the evidence of membership in Board File No. 0997-80-R. The nature of the irregularity arose because of the conduct of an employee which subsequently became known to the applicant. There is nothing to indicate that the applicant attempted to mislead the Board. The respondent relied on decisions of the Board in the Hydro Electric Commission of Hamilton case, 58 CLLC ¶18,120, and in the Echlin United of Canada Limited case, [1965] OLRB Rep. May, p.91, in support of its proposition that a representation vote should be conducted by the Board. Those two cases involved attempts to mislead the Board and the Board directed a representation vote in each case. These two cases are distinguishable from the instant application in that there has not been a finding by the Board of any intention to mislead the Board. In addition, on the representations before it, the Board is not prepared to find that the applicant had any intention of misleading the Board in the earlier application for certification in Board File No. 0997-80-R.
The respondent has stated that there is a heavy onus on the applicant to satisfy the Board that the membership evidence is fresh and entirely without irregularity. The applicant has filed fresh evidence of membership in the instant application. The respondent has not suggested how the applicant would satisfy the requirement of being "entirely" without irregularity" having regard to the provisions of section 100 of the Act. The respondent has not alleged, and the Board's examination does not disclose, any irregularity in the evidence of membership filed by the applicant. The Board is not prepared to find in the circumstances of the instant application either that there has been an abuse of the Board's procedures by the applicant or that there is a taint in the evidence of membership in the instant application.
The applicant has filed a duly completed Form 8, Declaration Concerning Membership Documents. This declaration has been completed on the basis of fresh evidence of membership and there is no indication before the Board that the declarant either in the earlier application or in the instant application did not complete the declaration to the best of his knowledge, information and belief.
Having regard to the foregoing, the Board is satisfied that it is not necessary for the Board to seek the confirmatory evidence of a representation vote in this application. The Board notes that the applicant has withdrawn its request that the Board invoke its powers pursuant to section 7a of the Act.
- And in Barouh Eaton (Canada) Ltd., unreported, March 4, 1985, Board File #2883-
84-R, the Board wrote:
- Counsel for the respondent argued that the Board should order a representation vote in the circumstances of this case because the applicant had sought leave to withdraw an earlier application for certification in respect of this respondent during the course of the hearing in that proceeding in which testimony about certain improprieties in the membership evidence filed in that case had been led. The Board in that case had dismissed the application for certification. There were allegations filed by the respondent about harassment of employees in both that earlier proceeding and in the instant matter. The application in the first proceeding had been dismissed before the allegations of harassment could be considered by the Board. Counsel for the respondent did not attempt to lead any evidence of harassment at the hearing in this matter, but had requested that the Board appoint a Labour Relations Officer to investigate those allegations, and, depending on the result of that investigation and report of the officer, schedule another hearing to deal with the allegations. The Board, following its usual practice, did not appoint an officer to conduct the requested investigation. The Board received detailed submissions from counsel for the respondent and from counsel for the applicant as to whether the Board should order a representation vote in these circumstances. The representatives of the group of objecting employees were given the opportunity to make submissions, but chose not to do so. After hearing the submissions, the Board recessed and then returned to issue the following oral ruling:
The Board is not satisfied that the circumstances existing in this case should cause the Board to depart from its normal practice of requiring a party making allegations of improper conduct to particularize those allegations and call evidence at the Board's hearing.
Since the membership evidence filed in support of this application is fresh membership evidence, we find that the principles discussed by the Board in the Ontario Hospital Association case, [1979] OLRB Rep. March 243 and the Leco Industries Limited case [1979] OLRB Rep. May 404 are applicable here, and that there is no cloud on that membership evidence.
Thus, we are not persuaded that we should order a representation vote in this matter.
We adopt the approach taken by the Board in these and numerous other decisions of the Board. The only irregularity or misconduct of which we either have evidence or a concession by the applicant is with respect to one card filed in support of the first application: the employee who had signed the card had not paid a dollar as the card suggested he or she did. This does not clearly point to any impropriety or attempted fraud on behalf of the union or the Form 9 declarant nor does it cast a cloud on the fresh membership evidence. We are not disposed to exercise our discretion and either dismiss this application or order a representation vote simply because one card in an earlier application involved a non-pay.
For these reasons the Board was satisfied, on the basis of all the evidence before it, that more than fifty-five per cent of the employees of the respondent in the bargaining unit, at the time the application was made, were members of the applicant on May 4, 1989, the terminal date fixed for this application and the date which the Board determines, under section 103(2)(j) of the Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act.
Accordingly, the Board issued its decision of July 6, 1989, indicating that the applicant was to be certified and directing that a formal certificate issue forthwith.