Ontario Labour Relations Board

[1991] OLRB Rep. July 797

0922-90-R United Steelworkers of America, Applicant v. AluminArt Products Limited, Respondent v. Textile Processors, Service Trades, Health Care, Professional and Technical Employees International Union, Local 351, Intervener

BEFORE: M. G. Mitchnick, Chair, and Board Members M. Rozenberg and B. L. Armstrong.

APPEARANCES: Michael Gottheil, Jonathan Eaton and Brando Paris for the applicant; David C. Turner and Brian McLean for the respondent; L. Steinberg and F. Da Silva for the intervener.

DECISION OF THE BOARD; July 9, 1991

1. This is an application for certification in which the applicant, United Steelworkers of America, seeks to displace the intervener, Textile Processors, Service Trades, Health Care, Professional and Technical Employees International Union, Local 351, as bargaining agent for employees of the respondent AluminArt.

2. The application requested the taking of a "pre-hearing vote", and the Board accordingly proceeded to make the arrangements for a representation vote in which employees would be asked whether they wished to have the applicant or the intervener trade union represent them in their employment relations with the respondent. At the meeting convened by a Labour Relations Officer with the parties for that purpose, the intervener advised the Officer that as a large percentage of employees in the bargaining unit spoke either Spanish or Punjabi, it was requesting that the Board provide voting materials, being the Notice of the Taking of a Vote together with the ballots themselves, in those two languages, in addition to the normal languages of English and French. Upon being advised by the Officer that the current practice of the Board was to issue such documentation in English and French only, the intervener immediately wrote to the Board, by letter of July 20th, 1990, re-stating its request. The vote had been scheduled to take place on August 3, 1990, and the Board proceeded to conduct the vote on that day, without providing the additional material in Spanish and Punjabi requested by the intervener. At the same time, however, the Board directed that the ballot box be sealed, in order to protect the intervener's opportunity to make further submissions to the Board on the issue that it had raised. Following the taking of the vote, the intervener wrote to the Board (as did the respondent employer) expressing its concern over "widespread confusion" surrounding the taking of the vote, and requesting that the Board direct the holding of a new vote, to be held only after the Board had issued the documentation in Spanish and Punjabi that had been requested by the intervener at the outset. The Board thus scheduled a hearing to entertain the submissions of the parties as to whether the Board should consider disregarding the representation vote taken on August 3, 1990 in this matter on the basis that notices and ballots were provided by the Board in no language other than English or French.

3. At the hearing the intervener reaffirmed its position that the vote held on August 3, 1990 ought to be disregarded and the ballots not counted. The intervener noted that it was the incumbent bargaining agent, and that it had raised its concerns over language with the Board at the first opportunity, being the meeting with the Officer to make arrangements for the vote. Counsel indicated that it was his understanding that some 55 to 60 per cent of the bargaining unit have difficulty with the English language, and that their primary language is either Spanish or Punjabi. Counsel indicated that the intervener accordingly had made the request that it did so that there could subsequently be no issue, as counsel submits there now is, regarding possible confusion over the vote. In that connection counsel advised that the intervener was prepared to call the evidence of at least 10 to 15 people plus its own scrutineer to indicate that there was widespread confusion at the vote as to what was taking place, and as to what the ballots meant in terms of where to put the mark if an individual supported one union or another. Counsel acknowledged that there may be persons of other nationalities in the bargaining unit who might experience similar difficulty in dealing with the English language, but stressed that the intervener was not suggesting that the Board was required to provide a translation for each and every such group. Rather, the Board would be justified in limiting such assistance to instances "where the numbers warrant it", as reflected, for example, in the government's approach to the translation issue under the French Language Services Act, and as the Board itself has on occasion seen fit to do in the past (e.g., the Board's decision in the Ontario Bus Industries Inc. case, [1989] OLRB Rep. Nov. 1115, and the remedy granted therein). Asked whether such an approach would not require the Board to delay the outcome of the vote by scheduling a hearing each time parties failed to agree on the issue of "where the numbers warranted", counsel responded that the Board could avoid that by establishing a policy as to where it is the Board considered it appropriate to draw the line, and to make that policy widely known in advance. And in any event, counsel emphasized, the facts in the present case are "special", in that the parties in advance had identified for the Board the appropriate translations that were required, and the Board would have been entitled to rely upon the parties' assertions in that regard. Asked what the Board could be expected to do if subsequently faced with an objection from an individual of a nationality other than those identified by "the parties" in attendance at the vote-arrangements meeting, counsel replied that it was the job of the Board to "draw lines", and that that was something that Courts and tribunals are required to do all the time. In summary, counsel for the intervener again stressed that the intervener's position was not that the Board ought to assume the position of a "guarantor" of the language comfort of each and every employee in the bargaining unit, but rather that the present case simply involved a good-faith request put forward by the parties in advance of the vote on the basis of some obvious numbers, in the simple interest of avoiding the kind of confusion that the intervener says has arisen in the case at hand. While the intervener acknowledges that the parties themselves are able to take steps to assist employees to overcome any such confusion, that fact, in counsel's submission, does not remove the responsibility resting on the Board itself in a case such as the one now before us.

4. The respondent employer supported the position taken in this matter by the intervener trade union, reiterating the point that the language issue had in fact been identified for the Board well in advance of the vote, and that it appeared from its own observations that a substantial amount of confusion arose at the vote as a result of the Board's failure to act upon the request of the intervener. Counsel for the respondent in addition argued that the matter had to be looked at from the point of view of a fundamental human-rights issue, and that the failure to provide the translations requested amounted to a violation of several sections of the Ontario Human Rights Code. In particular counsel pointed to section 3 of the Code, which reads:

Every person having legal capacity has a right to contract on equal terms without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or handicap.

and submitted that the vote in question represented a kind of "contract" with the employees affected, being a vote which would determine their collective-bargaining relationships into the future. Counsel referred also to section 4 of the Code, which reads:

4.-(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or handicap.

(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or handicap.

noting that the section specifically refers to "employment". Counsel cited section 5 of the Code as well, which reads:

Every person has a right to equal treatment with respect to membership in any trade union, trade or occupational association or self-governing profession without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or handicap.

submitting that "membership in a trade union" is exactly what the current matter is all about. Finally, counsel referred to section 10:

10. -(1) A right of a person under Part Ils infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,

(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or

(li) it is declared in this Act, other than in section 16, that to discriminate because of such ground is not an infringement of a right.

(2) The Commission, a board of inquiry or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

(3) The Commission, a board of inquiry or a court shall consider any standards prescribed by the regulations for assessing what is undue hardship.

submitting that this is a case of at least "constructive" discrimination, and to section 46:

46.-(1) This Act binds the Crown and every agency of the Crown.

(2) Where a provision in an Act or regulation purports to require or authorize conduct that is a contravention of Part I, this Act applies and prevails unless the Act or regulation specifically provides that it is to apply notwithstanding this Act.

(3) Subsection (2) does not apply to an Act or regulation heretofore enacted or made until two years after this Act comes into force.

as establishing the paramouncy of the Human Rights Code's provisions. Counsel noted that in none of the earlier cases decided by the Board was this human-rights issue under the Code put before it, and that the Board would now be considering it for the first time. Counsel conceded that the kind of translation assistance being sought from the Board did not form the practice in either provincial or federal general elections, but submitted, firstly, that the "contract" with employees in a Board representation vote was a more fundamentally and immediately affecting one for employees than in a general election, and secondly, that provincial and federal election practices may simply be in violation of human-rights legislation as well.

5. Dealing with the argument made by the respondent employer first, the applicant union commented that if the practice of the Board to provide notice of the taking of a vote and ballots in English and French only was a violation of the Human Rights Code, then presumably a posting of any notices to employees solely in that form would be a violation of the Code as well. And, counsel noted, there is nothing in the Code to limit its protection to large or "predominant" groups, but rather the protections, if they were to apply at all, would presumably apply to every individual whose native language was not English or French on an equal basis. In summary, counsel submitted, the logical extension of the employer's argument was that every individual is entitled to receive every document from every government agency in his or her own native language, and that, counsel submitted, simply could not be the case - particularly since the agency in many instances would not even know what the full extent of the language requirements might be until after the event. Apart from those practical considerations, however, counsel for the applicant submitted that the taking of a representation vote could not in any event be stretched into being a "contract" with employee voters. Rather, what the representation vote does is to determine on the basis of employee wishes who the "bargaining agent" will be, and that bargaining agent is thus given the authority to enter into a "contract", or collective agreement. Applicant counsel added that he found it interesting, in light of the argument the respondent employer was now making, that neither the respondent nor the intervener had ever seen fit to translate the terms of their actual collective agreement, or of its dental plan, etc., into Spanish or Punjabi - nor the paycheques or pay stubs emanating from the employer thereunder.

6. With respect to the main ground of argument put forward by the intervener and joined in by the respondent, the applicant took the position that the Board had made a decision with respect to what its practice would be in this regard, and that the Board had a statutory right to determine such matters affecting its own process. With respect to the observations of "widespread confusion" now asserted before the Board by the employer, the applicant noted that the "Waiver of Objection" form was signed by the employer's scrutineer without reference to any problems concerning the taking of the vote. The applicant noted that even if the intervener's estimates on the numbers of Spanish and Punjabi-speaking employees in this bargaining unit were assumed to be correct, there were, to the applicant's own knowledge, groups, albeit of a lesser number, of Vietnamese and Portuguese-speaking employees in the bargaining unit as well, and that an indeterminate number of individuals from other backgrounds than these mentioned might be found to exist as well. None of that, applicant counsel points out, means that those employees are unable to function in English as well, and notes that the Board's processes would grind to a halt if it were to be said that the Board had an obligation in every case to inquire into the background and language facility of every employee in the workplace, so that translation of Board documents could be provided accordingly. And quite apart from the question of national background, counsel adds, there are in fact a regrettable number of people born in Canada who nonetheless have difficulty with literacy in the English language. But that, once again, does not mean that such persons are incapable of understanding what is going on. Indeed, while the intervener asserts that it is in a position to bring 10 to 15 people before the Board to say that there was "widespread confusion" as to what was taking place, the applicant noted that the Board had received from it in advance of the hearing a "petition" signed by approximately 25 of the employees of Spanish or Punjabi background who assert that they knew exactly what was going on. So where, counsel asked rhetorically, after all the evidence was heard, would that leave the Board?

7. Recognizing all of that, counsel submits, the Board has made it clear in the past that it is simply not prepared to enter into that kind of an inquiry. See Image Painters L. M. Inc., [1988] OLRB Rep. Aug. 807; Northfield Metal Products Ltd., [1989] OLRB Rep. Jan. 57. Rather, the Board for many years has, for sound practical reasons, made it clear that informing one's self of the meaning of Board documents is simply one of the ways in which individuals not conversant with the English language are required to adjust to or cope with the demands of everyday life. See Ilsco of Canada Limited, [1973] OLRB Rep. May 221; Javid Construction Management Limited, [1988] OLRB Rep. Sept. 906; and in particular the Federated Building Maintenance Company Limited case, [1979] OLRB Rep. Oct. 974, at paragraph 13. Such persons, counsel submits, simply have to find ways to inform themselves, and the applicant, for example, being aware of that just as the other parties in the present case were, took the steps it itself considered appropriate to provide assistance if required. As for the intervener's reference to the French Language Services Act as a "guide" to what the Board should do on the broader issue, the applicant submits on the contrary that what that Act represents is the Legislature of the province having put its mind to the question of language rights specifically, and having decided, based on whatever considerations, that the right to be served in a language other than English in this province will extend only to the language of French. Indeed, given the inherent potential for delay in proceedings before this Board that a different approach to the language issue would obviously involve, the applicant queries why any trade union, like the intervener, would take the position that the intervener has before the Board in the present case. As a corollary to that, counsel notes with interest that in the recent Board case of Admiral Linen Supply Limited, [1989] OLRB Rep. Feb. 90, this same union (the intervener) took exception to the complaint of the employer that membership cards being used in the application for certification (for a multinational workplace) were printed only in English, with the employer arguing that the Board had to find some means to satisfy itself that all of the employees who signed cards in the case would have understood what it was they were doing. That, the applicant submitted, is what the present case effectively comes down to as well, and in summary the applicant asserts that no more reason exists to question the validity of the representation election conducted amongst the employees in this bargaining unit on August 3rd, than it does to question the results of the general election which was held in the province at large on September 6th of this year.

8. On the narrower ground put forward by counsel for the intervener that the present case involves the special circumstance of an "agreed" request by the parties, applicant counsel notes, to begin with, that the intervener's characterization is not accurate. Applicant counsel asserts that the intervener at the Officer's meeting simply stated its desire that the voting materials be provided to the parties in Spanish and Punjabi as well, and on being advised by the Officer of Board practice in that regard, the parties at that stage did not pursue the matter further. In fact, if the matter had been pursued further, the applicant notes, it would at the very least have argued that it was appropriate to have the ballots translated into Vietnamese and Portuguese as well, and were that to have been the case, the applicant queries what the level of confusion might have been at the polls with a ballot containing a version of the Board's instructions in six languages rather than the standard two. And even then, counsel adds, the Board would not have thereby been guaranteed that all possible persons who might raise a claim over the language issue would necessarily have been covered, so that the Board might still have found itself faced with precisely the same kind of issue subsequent to the vote as it is now. And what, counsel asked, would the Board be expected then to do with the case had, for example, the two unions been separated in the balloting by a single vote, and two employees, of, for example, Armenian background, come forward to advise the Board that, because of their difficulty with English, there was some confusion in their minds as to what they were doing when they cast their ballots. Having said all of the foregoing, however, counsel for the applicant reminded the Board that the representation vote of August 3, 1990 had been carried out in accordance with the preceding decisions and directions of the Board, and that the only issue that the Board now had to determine was whether there was anything before it which would cause the Board to refuse to accept that vote as a valid one.

9. After considering the aforesaid submissions of the parties, the Board on September 4,

1990 issued a direction to the Registrar by way of endorsement which read as follows:

The representation vote of August 3rd was conducted by the Board in accordance with its current practices respecting the translation of Board documents. All parties were aware that that would be the case in advance of the holding of the vote. The request for a re-taking of the vote is denied, and the Registrar is directed to make the necessary arrangements forthwith for the unsealing of the ballot box and the counting of the ballots.

Full written reasons will issue in this matter.

The Board did, nonetheless, consider this to be an appropriate case in which to review its current practice on the issue, and has now had a full opportunity to do so.

10. The Board has received requests for translations of forms, notices, etc. on a number of prior occasions. For example, in ILSCO of Canada Limited, [1973] OLRB Rep. May 221, the employer requested that notices for the taking of a representation vote be printed in Portuguese in addition to English. At paragraph 9, the Board stated:

The Board is not prepared to accede to the respondent's request in this regard. The parties will have to assume the responsibility of explaining the nature of these proceedings and the vote arrangements to the employees who are unable to understand the notices published in the form of ballot used pursuant to the Board's Rules of Procedure and Regulations. The Board cannot accept responsibility for the inability of any person who is entitled to vote to read and understand the English language any more than the Board can accept responsibility for employees who are illiterate and are unable to read in any language whatsoever. The Board is required to follow the form of notices and ballots which are set out in the Board's Rules of Procedure and Regulations, all of which documents are in the English language. If the parties have any real concern about the ability of employees to understand the nature and intent of such documents they are at liberty to agree to publish an appropriate translation of the documents or otherwise explain to the employees the nature and procedure of the representation vote. It has been the Board's experience over a great many years that no real hardship is created by the use of the English language in the publication of the Board's notices or in representation votes and the Board is satisfied that the use of the English language has permitted the Board to ascertain the true wishes of employees in all such representation votes.

11. In Federated Building Maintenance Co. Ltd., [1979] OLRB Rep. Oct. 974, the employer alleged employees were denied natural justice because the notice of representation vote was not printed in Portuguese, which was the common language of the workplace. Notwithstanding whether it could properly be raised by the employer the Board examined the issue. The Board repeated its conclusion that there had been no apparent hardship suffered by employees through its historical practice. At paragraph 13 the Board stated:

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.

12. In Image Painters L.M. Incorporated, [1988] OLRB Rep. Aug. 807, the employer had sought a hearing regarding certification on the basis that some employees did not understand the nature of the certification process as a result of their inability to understand English. The Board followed the decision in Federated Building Maintenance Company Limited, supra, in determining that the employer did not raise grounds which would cause the Board to hold a hearing into the application rather than certify the union without a hearing in accordance with section 102(14) of the Act.

13. Similarly, in Javid Construction Management Limited [1988] OLRB Rep. Sept. 906, where the objecting employees requested notices for representation votes to be printed in Italian and Portuguese, the Board declined to issue such notices. The Board stated at paragraph 6 that "... it has not been the practice of the Board to post such notices in these languages. It has not been the experience of the Board that employees who are proficient in neither English nor French have been unable to exercise their rights under the Act".

14. In Admiral Linen Supply Limited, [1989] OLRB Rep. Feb. 90, (the case involving the intervener referred to by the applicant) the employer argued against certification without a vote despite the fact more than fifty-five percent of its employees in the bargaining unit were members of the applicant union, on the ground that the employees did not understand English but rather Portuguese. The Board declined to order a representation vote on the grounds given in Javid, supra, and Federated Building Maintenance, supra, as articulated, for example, in International Chinese Restaurant [1977] OLRB Rep. Oct. 688 at 690:

It may 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 a collector, or a colleague in the bargaining unit, explain the nature and purpose of the applicant's organization campaign.

15. This review indicates that the Board has drawn a number of conclusions concerning the use of languages other than Canada's official languages. First, employees who are not proficient in the English language are still required and able to function in society, including the processes of the Board. Second, the responsibility to ensure such employees understand the certification procedure where someone feels there may be a problem, is that of the parties. The arguments presented by counsel for the respondent and intervener do not justify a repudiation of the Board's conclusions.

16. The Board is not insensitive to the difficulties persons not literate in English may experience in Canadian society, nor do we wish to see employees' rights to meaningfully participate in processes that affect them unnecessarily impeded. But there are other concerns the Board must balance in carrying out its mandate under the Act, and in certification proceedings in particular parties in the community are well aware that very often "justice delayed is justice denied". The positions here advanced by the intervener, and the employer presumably on behalf of its employees, would mean that (quite apart from "translation time" itself) no certification process could proceed without either the Board exhaustively determining in advance what languages are required (or claimed to be required) in a given case, or having the result subject to challenge and litigation on "language" issues after the processing and determination of the application have been completed. In response to the intervener's suggestion of a "bright-line" test whereby the Board would simply establish in advance a numerical "cut-off' point to be applied to all cases, once one moves beyond the specific mandate of the French Language Services Act, it is not obvious where the Board would derive the authority to decide what number or proportion of employees in a workplace asserting a right to accommodation of alleged language difficulties is "sufficient" to warrant such accommodation.

17. It should be noted that the Board does now publish general information on the rights of employees in a number of languages, and is constantly monitoring the requests for assistance in making decisions as to when and into what languages that list ought to be expanded. On the more narrow point of the casting of ballots in a Board-directed vote, the Board well in advance of the "election" day distributes for posting in the workplace not only its detailed "Notice of Employees of the Taking of a Vote", but also a sample of the actual ballot as well, with the appropriate party names filled in. In the present case, for example, the ballot that was posted in advance provided:

Thus any employee who requires assistance with interpreting or understanding the choice he or she is going to be called upon to indicate, has ample time in advance to make whatever inquiries he or she feels are necessary. In this regard, we might note as an aside, the Board's processes would appear to compare favourably with election procedures at the various levels of government as a whole.

18. With respect to the employer's arguments advanced on behalf of the employees under Ontario's Human Rights Code, we do not accept (nor, as noted in the cases quoted earlier, does our experience bear out) the simple equation the employer seeks to draw between language disability and "ethnic origin". But even if we did, we are not persuaded that the matter at issue here would fall within the Code's intended meaning of "contract", of "membership in a trade union", or even of "employment" itself, as argued by the employer. Indeed, it appears to us that the whole line of argument developed by the employer under the Code in this case would dramatically affect the status of linguistic disability in society generally, and we are not prepared to embrace such a change without specific legislative guidance to do so.

19. Having reviewed the Board's long-standing policy with regard to the translation of its documents, therefore, the Board has concluded that neither its experience with that policy nor the arguments advanced by the intervener and employer in this case are such as to cause it to balance the competing considerations under the Act in a different way than it has found it necessary and appropriate to do in the past, and the Board accordingly here reaffirms its policy in that regard.