Laundry & Linen Drivers and Industrial Workers Union, Local 847 v. 732571 Ontario Ltd., 1990 CanLII 5813

[1990] OLRB Rep. June 727

0720-89-R; 1008-89-U Laundry & Linen Drivers and Industrial Workers Union, Local 847, affiliated With the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Applicant v. 732571 Ontario Ltd. and 732570 Ontario Inc., c.o.b. in partnership as Roytec Vinyl Co., Respondents v. Group of Employees, Objectors; Laundry & Linen Drivers and Industrial Work­ers, Union, 847, Affiliated With the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Complainant v. Roytec Vinyl Limited, Respondent

BEFORE: Judith McCormack, Vice-Chair, and Board Members R. M. Sloan and R. R. Montague.

APPEARANCES: Murray Gold for the applicant/complainant; Joseph Liberman for the respon­dent; David Zimmer for the objectors.

DECISION OF THE BOARD; June 4, 1990

1. These matters are an application for certification and a complaint under section 89 of the Labour Relations Act. The application for certification was first scheduled for hearing on July 7th, 1989. On that day, the parties met with a Board officer and were able to narrow the disputes between them. An interim decision issued, making certain preliminary findings. The case was then relisted for hearing. The parties adjourned the first dates set, and when the matter came before us on October 25th, 1989, they confirmed that the following issues were outstanding:

(1) A dispute with respect to the inclusion in the bargaining unit of one employee whose name appeared on the list filed by the employer;

(2) the voluntariness of two statements of desire ("the petitions") filed by some employees in opposition to the union;

(3) a request that the applicant be certified pursuant to section 8 of the Labour Relations Act; and

(4) a complaint under section 89 of the Labour Relations Act alleging that the respondent had violated various sections of the Act.

2. The parties jointly requested that we consider the matter of the petitions first. In this regard we noted that the applicant trade union filed documentary evidence of membership on behalf of more than fifty-five per cent of the employees of the respondent in the bargaining unit. The Board found that the form and contents of the union's documentary evidence of membership were consistent with the requirements of section 1(1)(1) of the Act, and that this evidence, stand­ing by itself, demonstrated that the union had a level of membership support in excess of that required by section 7(2) of the Act for certification without a representation vote. However, the petitions were also filed with the Board in a timely manner and were signed by employees indicat­ing that they wished to oppose the certification of the applicant union. The petitions included the names of sufficient employees who had previously signed membership cards to make it advisable for the Board to inquire into the circumstances surrounding the origination, preparation and circu­lation of the petition. If the signatures represented a voluntary change of heart on the part of those employees, they would normally raise sufficient doubt about the continuing wishes of employees to cause the Board to exercise its discretion to order a representation vote. In the parlance of the Board and the labour relations community it serves, these are what are known as numerically "rel­evant" petitions.

3. In this case, the applicant had also filed reaffirmations in which certain employees who had signed both membership cards and petitions against the union subsequently reaffirmed their support for the union. If the Board was satisfied that sufficient numbers of those reaffirmations signed by those employees represented the most recent voluntary expression of their wishes, the effect would be to ameliorate the concerns about their continuing wishes raised by their signatures on the petitions, and the Board would not normally order a vote. In this case, however, even if the reaffirmations were voluntary, there were still sufficient signatures on the petitions of employees who signed membership cards which were unaffected by the reaffirmations. As a result, the peti­tions continued to be relevant, and the Board commenced an inquiry into their voluntariness.

4. John White testified first on behalf of the petitioners. In the course of his evidence, Mr. White told the Board that two signatures on one of the petitions should not be counted, because they had been withdrawn by the persons in question. When this was confirmed by Mr. White's counsel, we recessed and reviewed the count. Upon our return, we advised the parties that as a result of the two signatures being withdrawn, the petitions were no longer numerically relevant. Consequently, we would first inquire into the voluntariness of reaffirmations, rather than the petitions. If the reaffirmations were found to be voluntary, the parties would not usually present evi­dence with respect to the petitions because the numbers of those employees continuing to express opposition to the union were too low to affect the normal exercise of the Board's discretion.

5. The employer and the petitioners then alleged both that the union had received employer support, and was thus not entitled to certification as a result of section 13 of Labour Relations Act, and that the union had discriminated against Mr. White by not giving him an oppor­tunity to join the union, ("the first set of allegations"). The union objected to the Board hearing these allegations on the basis that they were untimely, having regard to Rule 72 of the Board's Rules of Procedure, and did not make out a prima facie case under Rule 71. Since it was close to the end of the day, we heard the parties' submissions in this regard and reserved our decision until the following morning. On October 26th, the employer and the petitioners made a number of other allegations with respect to defects in the membership evidence ("the second set of allega­tions"). We directed that those allegations be filed in writing, a standard procedure used to facili­tate the Board's screening process described below. We then ruled that we would not entertain the first set of allegations, and advised the parties that reasons would follow.

6. The employer and petitioners subsequently filed the second set of allegations in writing. The union objected once again that these allegations were untimely, and that they constituted an abuse of process. Counsel also pointed out that they were vague and at the very least, requested certain specified particulars. We heard the parties' submissions and then a majority of the Board, Board Member Montague dissenting, decided that we would hear the allegations, advising the par­ties that our reasons would follow. However, we also ordered the employer and petitioners to file the particulars requested by the union by November 1,1989. Those particulars included identifying the cards alleged to be defective. The particulars were to be filed with the Board, and we would then determine what material would be released to the parties in light of section 111(1), which makes certain information confidential. The Board subsequently released the particulars to the parties with certain names omitted.

7. On December 15th, the next day of hearing, we advised the parties that two communi­cations had been received from employees. The first did not disclose any allegation. More specifi­cally, the letter stated that the employee in question had not signed a membership card. No mem­bership card was filed for that employee. The second letter was entirely in a language other than English and French. The parties were advised that the Board does not translate this kind of corre­spondence. No party took exception to this practice at that time.

8. The particulars filed by the petitioners were little different than the second set of allega­tions in their original form. The particulars filed by the employer referred to two specific cards. The union then argued that the Board should only pursue those allegations which complied with the Board's order with respect to particulars, that is, those identifying the defective cards. No rea­sons were given by the employer or the petitioners with respect to why the remainder of the partic­ulars did not conform to the Board's order. After hearing the parties' submissions, the Board ruled that it would entertain only those allegations that were particularized in accordance with its order, and advised the parties that reasons would follow.

9. All parties agreed that they wished the Board to inquire into the second set of allega­tions prior to entering into the inquiry with respect to the voluntariness of the reaffirmations. In light of this, and because it appeared to be the most expeditious way to proceed, we then com­menced hearing evidence with respect to the second set of allegations. At the end of that day, the petitioners requested access to one of the membership cards in question and a dollar bill signed by the card-signer for the purposes of having a handwriting analyst examine these two items before the next hearing date. Both items had been made available during the hearing to the parties. It was not in dispute that the card-signer had signed both the card and the dollar bill. The issue raised by the evidence was whether the dollar bill, which had been given to the card-signer by the collector, was a loan or a gift. We told counsel for the petitioners to review whether he wished to pursue this request and if so, to address the request to the Board in writing in the interim before the next hear­ing date. No request was received from the petitioners.

10. Five days later, counsel for the employer filed a letter with the Board which included the following:

(1) Asking for reconsideration of the Board's ruling that the Board would only pursue those allegations particularized in accordance with its order.

(2) Advising the Board that the employer believed thal: it knew what was in the letter written in a language other than English and French received by the Board, and asking to have it translated because it might relate to an ex-foreman being involved in the union's organiz­ing campaign.

(3) Asking for access to all the membership cards before the next day of hearing so that the respondent's handwriting analyst could examine both of them and dollar bills alleged to have been submitted with the membership evidence.

(4) Making two new non-pay allegations with respect to membership evi­dence.

The union objected to all these requests, arguing that the employer was abusing the Board's pro­cesses and that it was in contempt of the Board's previous order with respect to particulars. The Board heard the parties' submissions and reserved its decision on requests 1 and 4 above, dismis­sing requests 2 and 3, with reasons to follow.

11. Subsequently, the parties in this matter agreed that the application should be dismissed. Since we had already made the rulings described herein and promised reasons for them, we have provided those reasons. However, in light of the ultimate disposition of this case, we do not think it would serve any labour relations purpose for us to rule on the matters on which we had reserved. As a result, we do not propose to do so.

12. Turning to our reasons for refusing to entertain the first set of allegations, Rule 71 and

72 of the Board's Rules of Procedure provide as follows:

71.-(1) Where an application or complaint does not, in the opinion of the Board, make out a prima facie case for the remedy requested, the Board may dismiss the application or complaint without a hearing and it shall in its decision state the reason for the dismissal.

(2) The applicant or complainant may within ten days after he is served with the decision of the Board under subsection (1) request the Board to review its decision.

(3) A request for review under this section shall contain a concise statement of the facts and rea­sons upon which the applicant relies.

(4) Upon a request for review being filed, the Board may,

(a) direct that the application or complaint be re-opened and proceeded with by the Board in accordance with the provisions applicable thereto;

(b) direct the registrar to serve the applicant and any other person who in the opinion of the Board may be affected by the application or complaint with a notice of hearing to show cause why the application or complaint should be re-opened; or

(c) confirm its decision dismissing the application or complaint.

72.-(1) Where a person intends to allege, at the hearing of an application or complaint, improper or irregular conduct by any person, he shall,

(a) include in the application or complaint; or

(b) file a notice of intention that shall contain,

a concise statement of the material facts, actions and omissions upon which he intends to rely as constituting such improper or irregular conduct, including the time when and the place where the actions or omissions complained of occurred and the names of the persons who engaged in or committed them, but not the evidence by which the material facts, actions or omissions are to be proved, and, where he alleges that the improper or irregular conduct constitutes a violation of any provision of the Act, he shall include a reference to the section or sections of the Act con­taining such provision.

(2) Where, in the opinion of the Board, a person has not filed notice of intention promptly upon discovering the alleged improper or irregular conduct, he shall not adduce evidence at the hear­ing of the application of such facts, except with the consent of the Board and, if the Board deems it advisable to give such consent, it may do so upon such terms and conditions as it con­siders advisable.

(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.

(4) No person shall adduce evidence at the hearing of an application or complaint of any mate­rial fact that has not been included in the application or complaint or in any document filed under these Rules in respect of the application or complaint, except with the consent of the Board and, if the Board considers it advisable to give such consent, it may do so upon such terms and conditions as it considers advisable.

In addition, section 8 of the Statutory Powers Procedure Act includes the following provision:

Where the good character, propriety of conduct of competence of a party is an issue in any pro­ceedings, the party is entitled to be furnished prior to the hearing with reasonable information of any allegations with respect thereto.

13. The Board has said that Rule 72 has two purposes: to ensure that a party alleged to have engaged in wrongdoing has sufficient notice to meet the case against it, and to avoid prejudice and delay which may thwart the expedition which is critical in labour relations matters. In Trigiani Contracting Limited, [1979] OLRB Rep. Feb. 141, the Board described Rule 72 in the following terms:

14. That section has a twofold purpose grounded in both legal considerations and in industrial relations considerations. The legal consideration implicit in section 47 [now 72] of the Board's Rules of Procedure is a recognition of the rule of natural justice that anyone charged with wrongdoing should have sufficient notice of the charge against him. The labour relations consid­eration is a recognition that the realties of union organization are such that a delay of Board proceedings may serve to defeat the union. A union may successfully defend charges made against it only to discover, upon the late granting of a certificate, that its support among the employees has substantially eroded because, for reasons often not fully understood by rank and file employees, it has failed to get certified promptly and commence immediately to bargain on their behalf. For that reason section 47 [now 72] of the Board's Rules of Procedure seeks to strike a balance between natural justice and the avoidance of delay in certification proceedings or any other proceedings before the Board. In an application for certification both the interests of natural justice and industrial relations are best served when allegations of wrongdoing are made in sufficient time and with sufficient particularity that an applicant union is not prejudiced either by surprise or by being forced to seek adjournment and the delay of its own application. Therefore, where allegations against an applicant are not filed in a timely manner or with suffi­cient particularity the Board may refuse to entertain them. (Fleck Manufacturing Limited 62 CLLC ¶16,236; Cable Tech Wire Company Limited (as yet unreported) Board File No. 0297-78-R, June 21, 1978).

15. In Fleck Manufacturing Limited 62 CLLC ¶16,236 the Board refused to entertain allega­tions of wrongdoing which were known to the party raising them nine days previously, and said that it would not hear last minute allegations which with reasonable diligence could have been made earlier, except for good cause:

It is incumbent on all parties to proceedings before the Board to investigate matters relevant to their cases as early as possible and if they intend to make allegations of improper or irregular conduct against another party to do so promptly. The object of this requirement, which finds expression in section 47 [now 72] of the rules, is obviously to expedite and facilitate the hearing and processing of applications under the Act and to avoid prejudice, delay or embarrassment to the parties involved. Delayed and last-minute allegations, which lead to adjournments or cause prejudice, embarrassment or unnecessary expense to the other parties, and which with reason­able diligence could have been made at a more timely stage of the proceedings will not be enter­tained except for good and sufficient cause.

See also Pebra Peterborough Inc., [1987] OLRB Rep. Mar. 421; Collant Painting, [1987] OLRB Rep. Mar. 367; and The Coalition of Laid-off Workers, [1990] OLRB Rep. Feb. 129 in this regard.

15. The importance of expedition in labour litigation was emphasized by the Board in con­sidering Rule 72 in Unlimited Textures Company Limited, [1984] OLRB Rep. Jan. 138:

The need for expedition in labour relations matters is well recognized: Hotel and Restaurant Employees Union v. Nick Masney Hotels Ltd., 1970 CanLII 478 (ON CA), [1970] 3 OR. 461 (CA.); Jordan v. York Uni­versity Faculty Association (1978) CLLC ¶14,132 (Div. Ci.); Re Flamboro Downs Holdings Ltd. and Teamsters Local 879, (1979) 1979 CanLII 1669 (ON HCJ), 24 O.R. (2d) 400 (Div. Ct.); and, Journal Publishing Company of Canada Ltd. et al v. The Ottawa Newspaper Guild, Local 204 et al, (unreported, Ontario Court of Appeal, March 31, 1977) wherein Estey, C.J.O. (as he then was) observed:

In the law which has grown up around labour relations in this province, and indeed elsewhere where the common law is pursued, the overriding principle invariably applied is that labour relations delayed are are [sic] labour relations defeated and denied.

Rule 72 applies to all parties to the process. In Cable Tech Wire Company Limited, [1978] OLRB Rep. June 496 (judicial review denied November 10, 1978, unreported) the Board refused to entertain allegations known to the employer for two weeks before notice thereof was finally given on the last business day before the Board's hearing. Counsel's excuse that he had until then been unaware that witnesses were available to prove the allegations was not consid­ered sufficient reason for having withheld them. In Gignac, Sutts, Nosanchuk, [1973] OLRB Rep. Aug. 438, the Board refused to entertain union charges advanced in support of certifica­tion without a vote when the events alleged were known to the union for as much as a month before notice was given. In Fleck Manufacturing Limited, 62 CLLC ¶16,236, the Board refused to entertain objectors allegations of impropriety in the union's collection of membership evi­dence, when the allegations were first raised at the hearing of the union's certification applica­tion although known to counsel for the objectors for nine days prior.

Thus the Board must balance the importance of ensuring that all the relevant facts of any particu­lar matter are before it, with considerations of natural justice and the special problems delay poses in labour relations.

16. In this case, the first set of allegations were gleaned by the employer from a somewhat ambiguous letter written by Mr. White which was attached to the petitions filed with the Board in June of 1989. This letter was circulated to the parties with the text of the petitions in June, although certain names were omitted to protect confidentiality pursuant to section 111(1) of the Act. From that time until October 25, 1989, no party mentioned the letter. The previous panel listed the outstanding issues in the case without describing the letter, and this panel confirmed them with the parties. There was no objection or suggestion at that time that there were other out­standing allegations.

17. Counsel for the petitioners argued that Mr. White had raised the first set of allegations through his letter and that he was entitled to rely on the Board pursuing them after that point, without doing anything more himself. As we noted earlier, the letter is ambiguous and it is not apparent that Mr. White is making allegations of violations, as opposed to explaining how he came to file the accompanying petitions. In any event, if the letter was meant to raise allegations, these are not the kind of allegations that the Board pursues of its own accord. They do not fall into the limited category of membership allegations on which the Board will commence its own inquiry. Rather, they are the sort of charge that a party must itself pursue and establish in evidence. Although the letter refers to matters taking place in June and the parties were aware of the letter shortly thereafter, it was not until October 25th that Mr. White's letter was characterized as allega­tions of violations which the employer and petitioners intended to pursue. In these circumstances we could not accept that the allegations were made in a timely manner under Rule 72.

18. The employer argued that it was only after Mr. White's initial testimony that it became aware of the name of the ex-foreman in question which had been omitted in the circulated mate­rial. At that point it made its allegations, and thus, counsel argues, it made them as soon as possi­ble. It is not apparent to us that the name of the ex-foreman would make a significant difference in terms of putting the employer on notice of Mr. White's views. Having regard to the contents of Mr. White's letter even without the name in question, in our view the employer fell short of its obligations under Rule 72 by waiting until four months had passed before raising the matter in any form.

19. We were also of the view that neither allegation made out a prima facie case. Mr. White's letter suggests that an ex-foreman was involved in the union's organizing campaign, which the employer and petitioners now claim amounts to employer support for the union under section 13. In our view, this simple statement by itself does not support such a claim. In the absence of any other details, we would be reluctant to presume that the involvement of someone who is described as no longer employed by the employer at the time in question amounts to employer support. This is particularly so when the context of the case and all the circumstances of the litigation tend to negate an inference of the mischief at which section 13 is directed, that is, that the employer and the union are not at arm's length or that the union is an employer-sponsored entity.

20. With respect to the allegation of discrimination, Mr. White did not suggest that he had been refused membership in the union, but only that he had not been approached, and that conse­quently his feelings were hurt. Although the preamble to the Labour Relations Act encourages col­lective bargaining, the Board does not generally provide financial or other assistance for the orga­nizing campaigns which bring collective bargaining into existence in a particular workplace. Rather, it relies on unions and employees themselves to provide these initiatives. An effective organizing campaign may take a wide variety of forms, depending on the employees involved, the resources and organizing style of the union and the particular circumstances of the workplace. In these circumstances, unions are allowed considerable latitude in how they conduct their cam­paigns, short, of course, of conduct violating the Labour Relations Act.

21. For the most part, a campaign will also be a clandestine effort, at least initially, because of the apprehension that an employer who gets wind of the campaign will attempt to interfere with it one way or another. As a result, organizers will typically approach those employees they con­sider most likely to be interested in becoming members, and avoid those whom they think will not be interested or who may advise the employer of the campaign. Nothing in the Act prohibits this style of organizing or requires a union to approach each and every employee to give him or her the opportunity to join in the weeks preceding the certification application. In these circumstances, we determined that this allegation as well did not on its face make out a case for the remedy requested.

22. For these reasons, we refused to hear the first set of allegations.

23. The second set of allegations presented different problems. The essence of these allega­tions was that certain named employees had countersigned other unspecified employees' names on membership cards, and that they had supplied missing dollars which had not been paid by unspe­cified employees when they joined the union. These allegations fall into a category of "non-pay" or "non-sign" charges with respect to defects in membership evidence that the Board has usually treated with greater latitude on the question of timeliness. Indeed, in some cases where non-pay or non-sign allegations can be characterized as allegations of fraud under section 58, the Board has entertained them even after the proceedings have been completed and a certificate issued.

24. In addition, because hearing and determining such allegations will usually reveal the identity of union members, the Board will initiate its own screening process when such allegations are filed, to protect the confidentiality of employees' wishes mandated under section 111(1) to the extent possible. The Board described this process in Estonian Relief Committee in Canada, [1988] OLRB Rep. Nov. 1167:

25. The first step in that "usual investigation" is to see whether any membership evidence has been submitted in the name of the employee who it is alleged did not sign a card or make the payment referred to on the receipt or other documentary evidence of payment accompanying the card. The concern raised by a "non-sign" or "non-pay" allegation is that the Board has been invited to act on documentary evidence which may not reflect the truth about whether the per­son said to be a member has actually applied for membership or paid to the union on his own behalf the amount shown. If there is no document, there is no such concern. If there is a docu­ment purporting to be evidence of membership of the subject employee, a labour relations offi­cer will interview that employee in private. If the interview discloses any matter which is cause for concern, either standing alone or in light of the contents of the Form 9 declaration filed by the union, the Board will schedule the matter for hearing, summon those persons who may have knowledge of the matters in issue and, at the hearing, conduct its own inquiry. If a "non-pay" or "non-sign" allegation does not result in the Board's scheduling a hearing, that is either because no membership evidence was filed with respect to the employee identified in the allegation or because the results of an interview with that employee raised no cause for concern. When it fol­lows the "usual investigation"~ a decision not to conduct an enquiry at hearing with respect to a "non-sign" or "non-pay" allegation reveals nothing about whether a card was or was not received with respect to the individual named in the allegation.

26. Having regard to subsection 111(1) of the Act, the Board is concerned that its process not reveal whether a card has or has not been signed by an employee or filed with respect to that employee unless it is persuaded that there is some genuine cause for concern which outweighs the concern addressed by subsection 111(1). The risk of unnecessarily revealing membership information is minimized by invariably responding to a "non-pay' '/"non-sign" allegation by first conducting the "usual investigation" and by refusing to make the allegation the subject of a hearing unless the result of the investigation warrants one. If it were otherwise, employees could be made to testify about whether they had or had not taken steps to join a union merely because they had been named in a non-sign or non-pay allegation; pursuit by those opposed to certifica­tion of "scatter gun" allegations of "non-pay" or "non-sign" could essentially neutralize the protection afforded by subsection 111(1).

27. Although the Board has formulated this specialized approach to non-pay and non-sign allegations, we reject the employer's argument that they are so unique that Rule 72 does not apply to them at all. It cannot seriously be argued that an allegation, for example, of forging signatures on membership cards does not amount to "improper or irregular conduct" within the meaning of Rule 72, and the purposes of the rule in preventing delay, prejudice and disruption and ensuring natural justice, are as cogent with respect to these allegations as with any other. The difference is that because of the importance of membership evidence in the certification process, the Board in its discretion under Rule 72 has traditionally struck a balance in non-pay and non-sign cases in which the reliability of the membership evidence has often taken precedence over other interests.

28. In this case, we had some serious concerns about the manner in which the second set of allegations was raised. It appeared that at least one of the petitioners, who was the source of the allegations, had been in possession of the relevant information for approximately four months before they were raised. For approximately three of those months, he was represented by counsel. Again, no mention was made of these allegations when the Board reviewed the outstanding issues and they were only raised when it appeared that the petitions were not numerically relevant.

29. On the other hand, it appeared that the employer had only become aware of the infor­mation in the allegations the day before they were made, and because certain hearing days had been adjourned at the request of the parties, the allegations were made at a relatively early point in the case. As the next hearing day had been assigned some six weeks later to accommodate the parties' schedules, it appeared that it would be possible to receive the particulars, screen them and subpoena any necessary witnesses in the interim. In other words, by an accident of scheduling, any delay or disruption could be minimized at that point. In addition, the screening process would pro­vide at least some degree of protection against vexatious allegations. Having regard to the Board's jurisprudence in this area and the specific circumstances of this case, a majority of the Board dis­missed the union's objections. We did not, however, preclude the very real possibility that the Board might decide differently in other circumstances where delay and prejudice could not be min­imized in this fashion.

30. Turning next to our decision not to hear those allegations which did not comply with our order, we observe firstly that our order was not a general direction to provide particulars. Rather, the union had listed precisely what information it required to enable it to meet the case against it, and we directed the employer and petitioners to provide all the information requested by a certain deadline. As noted earlier, that information included specifically identifying cards which were the subject of the allegations.

31. Counsel for the employer argued that Rule 72 did not require the cards to be identified because it only specifies the name of those persons who are engaged in the improper or irregular conduct. In this case, counsel argued, that meant the names of those alleged to have countersigned other employees' signatures and those collectors alleged to have put in dollars to make up a deficiency in the number of dollars. As a result, it was asserted, the particulars filed complied with Rule 72.

32. We note that the Board has commented previously that full particulars must be filed with respect to membership allegations (see, for example, Lonco Construction Limited, [1989] OLRB Rep. Mar. 274 and Grant Construction, [1989] OLRB Rep. July 766). It is not necessary for us to decide whether a card-signer who fails to pay a dollar is himself or herself engaged in irregu­lar conduct because the language of Rule 72 is inclusive. In the first instance, a person is required to file a concise statement of the material facts, actions and omissions upon which he or she intends to rely. This is described as "including" the time, place and names of persons engaged in the con­duct. In other words, this brief listing is not exhaustive of the material facts required, but rather provides some general guidance. In the case of a non-pay or a non-sign allegation, there can be no more material fact than the identification of the card which is alleged to be defective. Keeping in mind the twofold purpose of Rule 72, we observe that the union would find it very difficult to pre­pare to meet this kind of allegation without knowing the card involved. (We emphasize that this information is only released to the union after the screening process has indicated it is necessary to hold an inquiry.) In some cases, the only alternative would be for the union to call each and every card-signer as a witness to refute the allegation. This would make a mockery of section 111(1), and would result in precisely the kind of delay and prejudice Rule 72 was designed to prevent.

33. In addition, the Board cannot conduct its usual screening unless the card alleged to be defective is identified. This process is not a full-blown investigation, but a fast, informal procedure carried on in the absence of the parties to assist the Board in protecting the confidentiality of employee wishes, and yet ensure that allegations are scheduled for hearing in the appropriate cases. It is not suited to anything more than a brief confirmation or denial of the allegation by the card-signer. The failure to identify the cards in question thus results in the procedure being circum­vented, with the attendant likelihood that employee wishes will be unnecessarily exposed. Having regard then to the language and purpose of Rule 72 in this context, the Board's practice has been to require that parties making non-sign or non-pay allegations identify the cards involved.

34. In any event, in this case we specifically directed that this information be provided. Our authority for making such a direction lies both in section 72(3) cited earlier, and in section 102(13) which provides 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, and the Board may. subject to the approval of the Lieutenant Governor in Council, make rules gov­erning its practice and procedure and the exercise of its powers and prescribing such forms as are considered advisable.

33. Our order was made for the same reasons we have outlined above, that is, to prevent delay and prejudice and to ensure that the other parties knew the case they must meet. By Decem­ber 15, 1989, the employer and the petitioners had already received the benefit of considerable lati­tude from the Board with respect to these allegations, and had been given what amounted to spe­cific directions with respect to the particulars necessary. We were not persuaded that we should entertain that part of the allegations which did not comply with our order, particularly when no reasons were advanced for that non-compliance.

34. Turning lastly to the employer's requests of December 20. 1989, we note that the only reason given for the request to translate the letter received in language other than English or French was that the employer believed it might relate to an ex-foreman being involved in the union's campaign. Since we had already ruled that we would not hear that particular allegation, this assertion did not move us to reconsider our original decision about the letter.

35. The request to have access to the membership evidence for the purpose of having the employer's handwriting analyst review it is a little more complicated. As noted earlier, section 111(1) of the Act protects the confidentiality of certain information:

111.-(1) The records of a trade union relating to membership or any records that may disclose whether a person is or is not a member of a trade union or does or does not desire to be repre­sented by a trade union produced in a proceeding before the Board is for the exclusive use of the Board and its officers and shall not, except with the consent of the Board, be disclosed, and no person shall, except with the consent of the Board, be compelled to disclose whether a per­son is or is not a member of a trade union or does or does not desire to be represented by a trade union.

36. In Grand & Toy Limited, [1986] OLRB Rep. Sept. 1223, the Board commented that this provision was enacted in response to Re Ontario Labour Relations Board; Re Toronto Newspa­per Guild, Local 87 and American Newspaper Guild (CIO) and Globe Printing Co. 1953 CanLII 10 (SCC), [1953] 2 S.C.R. 18 (S.C.C.) in which the Courts overturned a Board decision preventing an employer from cross-examining the deponent of an affidavit filed confirming the membership evidence. The Board went on to emphasize the importance of secrecy with respect to membership records in ascertaining employees' wishes:

The object of certification proceedings before the Board is to ascertain the true wishes of the bargaining unit employees with respect to trade union representation. The Board's experience has been that secrecy with respect to trade union membership is essential if the true wishes of employees are in fact to be ascertained. The lack of anonymity tends to have a significant chill­ing effect upon both legitimate activities of trade unions and the exercise by employees of their rights under the Act, whether or not unfair labour practices are perpetrated by unscrupulous employers (and we do not suggest that this respondent is such an employer).

37. In Brian Chevrolet Oldsmobile Ltd., [1989] OLRB Rep. April 324, the Board also said that section 111 preserves the anonymity of union supporters to protect them from possible employer reprisals. In the Board's experience, employees are often concerned that they may be subject to such reprisals by their employer for union activity. The Board's jurisprudence is replete with examples of employees who were discharged or penalized in some way, at least in part, because of their support for unionization. For an employee who fears that joining a union will lead to a discharge or other penalty, the result he or she contemplates can be a loss of economic secu­rity, the loss of the social milieu of the workplace, a concomitant loss of self-esteem, identity or social standing, the uncertainty of finding another job and the possibility of a slide onto social benefits. Of course, in most cases such a bleak picture will not come to pass; nevertheless, the mere possibility of any of these consequences may exert a powerful influence on an employee con­templating collective bargaining, a regime frequently not welcomed by employers. And those opposing the union may be concerned that if it is ultimately certified to represent employees, their working conditions or job security may be adversely affected because of their views. As a result, section 111(1) provides a critical component in the process of union organization contemplated by the Labour Relations Act.

38. That process features the assessment of the level of union membership among employ­ees as the primary method set out in the Act for certification of a bargaining agent. (See Grand & Toy Limited, supra, and Brian Chevrolet, supra). As the Board observed in Unlimited Textures Company, supra, "[i]mportant considerations underlie the Legislature's choice between member­ship evidence and the representation vote as the means of ascertaining majority wishes (see Weiler, P. C. Reconcilable Differences, (Carswell, 1980), pp 37-49 for a review of these considerations)". The membership assessment is made on the basis of written membership evidence sub­mitted in the proper form by the union (see section 73 of the Board's Rules of Procedure). There are a number of requirements attached to that evidence which are provided for both in the Act (see section 1(1)), and in the Board's jurisprudence. For example, in Can-Eng Metal Treating Ltd., [1988] OLRB Rep. 444 sets out the following:

In an application for certification, the Board must be satisfied that every membership card upon which an applicant trade union relies was signed by the employee on whose behalf it has been tendered and that each employee has paid the initiation fee or dues that must accompany it on his own behalf. This is accomplished by ensuring that documentary evidence of membership shows, on its face, that the employees to whom it relates have applied for membership in the applicant, and have paid to it, on their own behalf, at least $1.00 in respect of initiation fees for monthly dues in it, and that the appropriate declaration attesting to the regularity and suffici­ency of that membership evidence is filed. It is also desirable that the documents show the date on which any person to whom the application and payment was made, although this can be established using viva voce evidence.

39. In addition, there are a number of safeguards integrated into the processing and assess­ment of membership evidence by the Board. Every single membership card is painstakingly checked to insure that it complies with the Board's requirements for membership evidence. As well, the signature of each employee on each card is checked against a sample signature for that employee provided by the employer. This process is performed at least twice and sometimes more often on each application by Board clerks who are specially trained to this end. Any discrepancies noted by them are brought to the attention of the panel deciding the case. Not infrequently, the panel will utilize the Board officer screening process to further check on a so-called "doubtful" sig­nature and, as described in the Board's jurisprudence, membership evidence is held to strict stan­dards (see Grand & Toy, supra). While no process for assessing employee wishes or membership is absolutely foolproof, generally speaking it is fair to say that this rigorous procedure has served the labour relations community well for many years. And as the Board noted in Grand & Toy, supra, errors in this process are extremely rare.

40. In this context, we had a number of concerns with respect to the employer's request. Firstly, the only outstanding allegations involved assertions that certain employees failed to pay $1.00 on their own behalf when they became members of the union. The employer was unable to point to any cards on which it claimed employees' countersignatures had been forged. In addition, and presumably unknown to the employer, no signed dollar bills were filed with the membership evidence, so there was no question of comparing signatures on membership cards with such dollar bills. The only dollar bills submitted were two which were entered by the union as exhibits relating to non-pay, rather than non-sign allegations. In these circumstances, we were concerned that the employer's request was not likely to yield evidence which would be of any use in resolving the dis­putes before us.

41. Secondly, we were not convinced that the introduction of partisan experts would add any additional safeguards to the process already in place, and in particular provide any assistance in disposing of this certification application. If we permitted one party's expert to examine the membership evidence, we would be hard-pressed to refuse another party's request in the same case, or even in other cases. The result might well be that the Board's effective and expeditious processes would be supplanted by a battle of experts, with the likely result of delay and expense. There is nothing in the Act or the Board's Rules which contemplates this. Indeed, the Board's mandate to resolve labour relations disputes in an informal and expeditious manner militates against it.

42. Thirdly, and most importantly, providing access to the membership evidence by the employer's handwriting expert flies in the face of section 111(1) and its purpose. The cloak of secrecy provided by section 111(1) would be meaningless if the Board was prepared to provide access to the membership evidence to the parties or their agents on the basis requested by the employer. No employee is likely to be encouraged by section 111(1) to freely express his or her views on unionization through the membership process if the employer or the union could subse­quently ascertain those views by making this kind of request. In other words, access to the mem­bership evidence for this purpose would seriously undermine the purpose of section 111(1), while yielding little likely benefit in terms of the stringency or effectiveness of the Board's processes.

43. Section 111(1) provides the Board with a discretion with respect to revealing records such as membership evidence. However, the Board has said that this discretion is only exercised in exceptional circumstances for compelling reasons where such disclosure would further the purposes of the Act (Grand & Toy, supra). The request before us was not such a case and as a result, we dis­missed it.