National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada) v. Polytech Coatings Limited, 1991 CanLII 6019

Ontario Labour Relations Board

Parties

2708-90-R National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada), Applicant v. Polytech Coatings Limited, Respondent v. Group of Employees, Objectors

BEFORE: Robert D. Howe, Vice-Chair, and Board Members D. G. Wozniak and P. V. Grasso.

APPEARANCES: Bertha Greenstein and Hassan Yussuff for the applicant; Andrew J. Roman, Charles R. Robertson, and Alan May for the respondent.

DECISION OF THE BOARD; October 29, 1991

Decision

1. On September 13, 1991, the respondent (also referred to in this decision as the "Company") sought the Board's consent, under section 72(4) of the Board's Rules of Procedure, to adduce evidence regarding incidents which allegedly occurred in January and February of 1991. That subsection provides as follows:

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 consents it may do so upon such terms and conditions as it considers advisable.

2. The January incidents involve threats allegedly made on January 18 and 29, 1991, by an in-plant organizer of the applicant (also referred to in this decision as the "Union") to an employee whose car had been damaged in the Company parking lot. It is alleged that on those two dates the in-plant organizer told the employee that he would not be able to guarantee that this would not happen again if the employee did not vote for the Union. Those threats (referred to in this decision as the "car threats") were reported to the respondent on January 30, 1991, and were raised in a somewhat less specific form by Charles R. Robertson of respondent's counsel in a letter dated February 4, 1991 to the Board's Registrar. (They were also referred to in greater detail in a letter to the Registrar dated February 13, 1991, from David S. Zimmer of counsel for the objectors.) Those allegations were to be heard by the Board (differently constituted) along with evidence regarding a petition, revocations, and various other allegations made by the objectors, the respondent, and the applicant, in respect of this certification application. However, during the afternoon of the first day of hearing (February 15, 1991), the parties agreed that their differences should be resolved by the taking of a representation vote. That vote was taken on February 28, 1991, and resulted in 55 ballots being marked in favour of the Union and 43 ballots being marked against it.

3. The other incident raised by the respondent on September 13, 1991 involves an allegation that sometime in February prior to the vote, an in-plant organizer backed an employee up against a wall and, while holding him there by the throat, told him that if he changed his mind and no longer supported the Union he would be stabbed with a knife. Respondent's counsel was unable to tell the Board when that incident (hereinafter referred to as the "throat incident") came to the attention of his client.

4. After the representation vote was taken, the following notice was furnished by the Board's Returning Officer to each of the parties, including the respondent (which also received copies thereof for posting on its premises in conspicuous places where they would most likely come to the attention of all of the employees who might be affected by the application):

FILE NO. 2708-90-R

Form 70

LABOUR RELATIONS ACT

NOTICE OF REPORT OF RETURNING OFFICER

BEFORE THE ONTARIO LABOUR RELATIONS BOARD

Between:

National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada)

Applicant

• and -

Polytech Coatings Limited

Respondent

• and -

Group of Employees

Intervener

TO: ALL THE PARTIES ON THE ATTACHED SCHEDULE "A"

1. Attached hereto is a copy of my report upon the representation vote herein held on the 28th day of February, 1991, under the direction of the Board dated the 15th day of February, 1991.

2. TAKE NOTICE that if you desire to make representations as to any matter relating to the representation vote, or as to the accuracy of the report, or as to the conclusions the Board should reach in view of the report, you shall send to the Board a statement of desire to make representations which shall,

(a) be in writing signed by the person making the statement or his representative;

(b) contain the names of the parties to the application;

(c) contain a return mailing address; and

(d) contain a statement as to whether you desire a hearing before the Board in connection with the report.

If you desire to make representations as to any matter relating to the representation vote, or as to the accuracy of the report, your statement of desire must contain a concise statement of your allegations concerning the representation vote or as to errors in or omissions from the report.

If you wish to make representations as to the conclusions the Board should reach in view of the report, your statement should contain a summary of the representations you wish the Board to consider in connection with the report.

3. A statement referred to in paragraph 2 shall be sent to the Board so that,

(a) it is received by the Board; or

(b) if it is mailed by registered mail addressed to the Board at its office, 400 University Ave., Toronto, Ontario, M7A W4, it is mailed;

not later than the 8th day of March 1991.

• IF NO STATEMENT OF DESIRE TO MAKE REPRESENTATIONS IS SENT TO THE BOARD IN ACCORDANCE WITH PARAGRAPHS 2 AND 3, THE BOARD MAY DISPOSE OF THE APPLICATION UPON THE MATERIAL BEFORE IT WITHOUT FURTHER NOTICE TO THE PARTIES OR THE EMPLOYEES.

DATED at Malton, Ontario, this 28th day of February, 1991.

5. That notice reflects the requirements of section 70(1) of the Board's Rules of Procedure, which reads:

Subject to subsection (3), where a representation vote is taken after the hearing of an application,

(a) a party; or

(b) any employee or representative of a group of employees,

who desires to make representations as to any matter relating to the representation vote, or as to the accuracy of the report of the returning officer, or as to the conclusions the Board should reach in view of the report, shall file a statement of desire as prescribed in Form 70 or 72, as the case may be, on or before the last day for the posting of the copies of the report and notices under subsection 69(3).

6. In accordance with the directions contained in that notice, counsel for the objectors caused to be delivered to the Board on March 8, 1991 a letter (bearing that same date) containing three allegations concerning the representation vote. The hearing of those allegations was scheduled to commence on June 10, 1991. However, after the objectors sought leave to withdraw those allegations and the respondent alleged that the objectors had been intimidated into doing so, the Board proceeded to hear evidence and argument concerning that allegation by the respondent on June 11 and 12, July 29, and August 6, 1991.

7. In a decision dated August 16, 1991, the Board wrote as follows:

Having duly considered all of the evidence and the parties' submissions, the majority of this panel of the Board, with Board Member Grasso dissenting, have concluded that, in the circumstances of this case, the interests of justice would be best served by affording each of the parties an opportunity to call evidence regarding the allegations set forth in David Zimmer's letter dated March 8, 1991. Accordingly, the hearing will proceed on September 6 and 13, 1991, as previously scheduled.

The hearing proceeded as scheduled on those two days, during which the Board heard evidence from three witnesses called by the respondent. At the conclusion of the testimony of the third witness, the respondent raised the matters described in the first three paragraphs of this decision. The respondent's request for the Board's consent to adduce evidence concerning those allegations was vigorously opposed by the applicant. In ruling on that request, the Board wrote as follows in a decision dated September 20, 1991:

For reasons which will issue at a later date, the Board hereby denies the respondent's request for consent (under section 72(4) of the Board's Rules of Procedure) to adduce evidence regarding the incidents described by its counsel on September 13, 1991 in his submissions to the Board.

8. The purpose of section 72 of the Board's Rules of Procedure was described as follows in Unlimited Textures Company Limited, [1984] OLRB Rep. Jan. 138:

20. A party proposing to rely on allegations of intimidation, coercion or other improper conduct is obliged to give notice and full particulars of the allegations at the earliest opportunity. Rule 72 of the Board's Rules of Procedure provides:

(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 be 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.

The purpose of this Rule was explained in Trigiani Contracting Limited [1979] OLRB Rep. Feb. 141:

"7. 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 realities 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 Procedures 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)."

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.); Jordon v. York University Faculty Association (1978) CLLC ¶14,132 (Div. Ct.); Re Flamboro Downs Holdings Ltd. and Teamsters Local 879, 1979 CanLII 1669 (ON HCJ), 24 OR. (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 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. In Fleck the Board said:

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 48 [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.

9. As indicated above, the car threats came to the respondent's attention on January 30, 1991, and were the subject of allegations made by both the respondent and the objectors in February of 1991. Evidence concerning those allegations and other matters then in dispute among the parties would have been heard by the Board (differently constituted) commencing on February 15, 1991 but for the agreement of the parties that their differences be resolved by the taking of a representation vote. Having agreed to that vote with full knowledge of the car threats, the respondent cannot legitimately be permitted to resurrect those allegations after the vote has been taken and has yielded a result which is not to its liking.

10. Moreover, even if the alleged existence of intimidatory conduct following the Board's direction that a representation vote be taken were to be treated as an extenuating circumstance which permitted the respondent to resile from its decision to forgo litigating the car threats, the respondent would still not be permitted to do so at this belated juncture. As indicated in section 70(1) of the Rules and in the (Form 70) Notice of Report of Returning Officer, a party desiring to make representations as to any matter relating to the representation vote must send to the Board, within the time frame specified in that notice, a statement of desire containing a concise statement of the party's allegations. No legitimate explanation has been offered for the respondent's failure to file its allegations with the Board by March 8, 1991, which was the deadline specified in the above quoted (Form 70) notice. By that date the respondent had been aware of the car threats for five weeks. Although it is unclear when the respondent first learned of the throat incident, there is nothing to suggest that if it had proceeded with due diligence to investigate matters relevant to its case, it could not have become aware of that incident in time to fulfil the requirements of Rule 70(1) and Form 70.

11. The Board certainly does not condone conduct of the type described by respondent's counsel in respect of his client's allegations concerning the car threats and the throat incident. However, while the seriousness of the conduct forming the subject matter of the allegations is a factor which may be considered by the Board, it is not the only factor. The well recognized need for expedition in labour relations proceedings in general, and in certification proceedings in particular, is a factor which is at least equally important. In the instant case, the respondent chose to rely upon the allegations filed by the objectors and to file none of its own within the time frame provided for doing so. It was not until more than five months after the deadline specified in the Form 70 notice that the Company sought to raise additional allegations which, if heard, would in all probability extend beyond January of 1992 the hearing of this application, which was filed on January 16, 1991. Having regard to all of the circumstances, we are unanimously of the view that the respondent should not be permitted to expand these already protracted proceedings by belatedly filing additional allegations.

12. Thus, for the foregoing reasons, the Board, having duly considered the submissions of counsel in light of all of the material circumstances, denied the respondent's request for consent (under section 72(4) of the Board's Rules of Procedure) to adduce evidence regarding the allegations described above.