[1989] OLRB Rep. February 90
2618-88-R Textile Processors, Service Trades, Health Care, Professional and Technical Employees, International Union Local 351, Applicant v. Admiral Linen Supply Limited, Respondent
BEFORE: Robert D. Howe, Vice-Chair, and Board Members R. M. Sloan and H. Peacock.
APPEARANCES: Fernando Da Silva and Curbs Aedo for the applicant; W. R. Herridge and L. B. Rose for the respondent.
DECISION OF THE BOARD; February 20, 1989
The name of the respondent is amended to read: "Admiral Linen Supply Limited".
This is an application for certification.
The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act.
Having regard to the agreement of the parties, the Board finds that all employees of the respondent in the Municipality of Metropolitan Toronto, save and except supervisors, persons above the rank of supervisor, drivers, office and sales staff, persons regularly employed for not more than twenty-four (24) hours per week and students employed during the school vacation period, constitute a unit of employees of the respondent appropriate for collective bargaining.
After hearing and recessing to consider submissions regarding a matter raised by the respondent in its reply, the Board unanimously ruled as follows at the hearing of this application on Friday, February 17, 1989:
In his able submissions on behalf of the respondent, Mr. Herridge has asked the Board to either appoint a Board Officer to inquire into the validity of the membership evidence or to direct that a representation vote be taken, on the basis that 16 of the 36 employees whose names appear on Schedule "A" of the employer's list have Panjabi as their native language and do not know English. For purposes of this ruling, we are prepared to presume that the respondent would be in a position to call evidence to establish the truth of that factual assertion and of the other factual assertions made by respondent's counsel during the course of his submissions.
Counsel for the respondent acknowledged that the Board jurisprudence does not support his client's position, but urged the Board to reconsider or decline to follow that jurisprudence in light of Ontario's present multilingual and multicultural fabric.
The Board has heard and rejected similar arguments on a number of occasions over the years. In Olympia Home Bakery, [1966] OLRB Rep. March 901, employer's counsel submitted that "none of the employees concerned could speak English and that this raised a doubt as to whether they understood the import of their actions in signing membership cards". In a brief decision, the Board indicated that it was "not prepared to find that the submission in any way affects the evidence of membership submitted by the applicant." In International Chinese Restaurant, [1977] OLRB Rep. Oct. 688, the Board wrote, in part, as follows in rejecting an argument which is not materially different from that made on behalf of the respondent in the instant case:
- The Board in this regard simply cannot be motivated by ~'suspicions" of a party to our proceedings in dealing with the propriety or otherwise of membership evidence. Allegations must be based on sound particulars, supported by fact. It may very well be that members of the bargaining unit may not comprehend the English language. Nevertheless, it does not follow that an applicant for membership did not comprehend the significance of writing his signature on his membership card. For example, he may have had a bilingual person who acted as collector, or a colleague in the bargaining unit, explain the nature and purpose of the applicant's organizational campaign. This may or may not have been the case in the instant application. But for the Board to be motivated by suspicions on the basis of language alone would cause us to destroy and undermine the efficacy of a trade union's attempts to organize employees. The Labour Relations Act protects, at the Board's discretion, the identify of employees who have expressed, by their signatures, a desire to be represented by an applicant trade union. For the Board to conduct a judicial inquiry into the circumstances upon which membership signatures were secured, and without any allegation of wrongdoing, would necessarily entail the disclosure of the identities of persons who signed cards and, thereby, would cause a breach of the trust extended to us by the Legislature (section 100 [now section 1111 of the Act.) In short, in absence of any allegation of wrongdoing, there must be a presumption in favour of the validity of the membership cards notwithstanding the particular national origin or mode of expression by the signatory thereto.
The Board has adopted a similar approach to the analogous issue of the ability of employees to understand Board notices in certification proceedings. In both Javid Construction Management, [1988] OLRB Rep. Sept. 906, and Image Painters L. M. Inc., [1988] OLRB Rep. Aug. 807, the Board quoted with approval the following passage from Federated Building Maintenance Company Limited, [1979] OLRB Rep. Oct. 974:
- 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 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 than others to inform themselves and assert their rights under The Labour Relations Act. (Ilsco of Canada Ltd., [1973] OLRB Rep. May 221; International Chinese Restaurant, [1977] OLRB Rep. Oct. 688; Dylex Ltd., [1977] OLRB Rep. June 357.)
In the present case, the respondent has not made any allegations of wrongdoing on the part of the applicant, nor has it asserted that any particular individual who signed a membership card did not know what he was signing. Moreover, none of the employees has come forward to oppose the application or to suggest that there was anything untoward about the manner in which the applicant collected its membership evidence. Under the circumstances and having regard to the considerations set forth in the aforementioned cases, we are not persuaded that we should have a Board Officer inquire into the validity of the membership evidence or that we should direct that a representation vote be conducted. Subject to the Board's usual second check of the membership evidence, a certificate will issue to the applicant.
The Board is satisfied, on the basis of all of 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 February 2, 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 Act.
A certificate will issue to the applicant.