Graphic Communications International Union Local N-1 v. Moore Corporation Limited, 1992 CanLII 6323

Graphic Communications International Union Local N-1 v. Moore Corporation Limited

[1992] OLRB Rep. May 614

1820-90-R Graphic Communications International Union Local N-1, Applicant v. Moore Corporation Limited, Respondent v. Group of Employees, Objectors

BEFORE: Susan Tacon, Vice-Chair, and Board Members W. H. Wightman and B. L. Armstrong.

APPEARANCES: Stephen Krashinksy, Joe Hann for the applicant; R. Dunsmore, E. Cooper and David Herle for the respondent; K. Coon for the objectors; G. Greenfield, E. Jewell, J. O'Donnell and B. Carroll on their own behalf on September 11, 1991 only.

DECISION OF THE BOARD; May 1, 1992

1This is an application for certification in which the Board ultimately dealt with two issues in "bottom tine" form. On September 13, 1991, the Board determined that four segregated ballots would not be unsealed and counted nor would the Board inquire further into the status or duties and responsibilities of the four individuals. On March 5, 1992, the Board certified the applicant, thereby refusing to dismiss the application outright as sought by the respondent and refusing to disregard the results of the representation vote.

2This decision, then, provides the reasons for the above. However, it is first necessary to outline the lengthy and complex chronology of events as, during the hearing process, several matters arose which were disposed of on a bottom line basis for which reasons are to be provided herein or which should be recorded in this decision.

3By decision dated November 5, 1990, the Board (differently constituted), inter alia, directed that a representation vote be held of the employees in the bargaining unit described in paragraph 4 of that decision. The parties had met with a Board Officer prior to the day scheduled for hearing of the matter, reached agreement on all matters in dispute between them and further agreed to waive their right to a formal hearing. Amongst those items resolved was an agreement of the parties on the voters' list.

4The representation vote was held on November 14 and 17, 1990. Of the 125 persons on the voters list, some 118 persons voted. The scrutineers for the applicant, the respondent and the employee objectors certified that the balloting was fairly conducted, that all eligible voters were given an opportunity to cast their ballots in secret and that the ballot box was protected in the interest of a fair and secret vote. Those same parties consented to an immediate counting of the ballots and waived any objection to the regularity and sufficiency of the balloting. The results of the vote were sixty ballots marked in favour of the applicant, fifty-seven votes marked against the applicant and one spoiled ballot. That is, on the results of the representation vote, the applicant had established majority support in order to entitle it to be certified as bargaining agent for the employees in the bargaining unit.

5Four persons who had not been on the voters' list did appear and wished to cast ballots. According to the Board's usual practice, the four (B. Carroll, E. Jewell, G. Greenfield, J. O'Donnel) were permitted to cast ballots and those ballots were segregated. Given the plurality of three in the vote result, the issue of whether the four segregated ballots should be counted was numerically relevant to the vote result. The four persons forthwith wrote individual letters to the Board requesting that their votes be counted.

6In addition, counsel for the employee objectors wrote to the Board on November 22, 1990 asserting that one employee, Mark Hylund, signed a membership card but did not pay the required one dollar membership fee. The Board's usual inquiry triggered by such an allegation resulted in the Board's decision that the matter be listed for hearing. In that regard, the Board summonsed three persons, M. Hylund, R. Pikulik (the card collector) and J. Hann (the Form 9 declarant).

7Further, the company raised several allegations in a letter dated November 26, 1990 as follows:

I am writing on behalf of the Company respecting the representation vote regarding the above-noted file. The Company objects to the vote for the following reasons:

(a) There are three persons whose names were on the voter's list whom the Company scrutineer came to know subsequent to the agreement between the Union and the Company on the voter's list at the Labour Board on November 2, were not entitled to vote because they had not regularly worked more than twenty-four (24) hours a week for the seven weeks preceding the vote. He intended to object to these persons at the time they came to vote.

When the first such employee presented himself to the officer, the employee stated that he did not work over twenty-four (24) hours a week and inquired as to whether or not he could vote. The Officer replied before any objection could be recorded and indicated that the employee could vote because his name was on the voter's list. No objection was then voiced since the Company scrutineer understood the Officer to have effectively ruled against his objection. For the same reason, no objection was raised to the two other employees who presented themselves and voted, notwithstanding that the scrutineer had information on which to object. As a consequence, all three votes were cast and counted. The employees in question were:

GABRIELLA CZERNU

CARL VALENTINE

HANNAH SCHOCH

When another opportunity to object should have taken place, before the vote count when the sufficiency form is signed by representatives of each party, the Officer delayed its presentation. Instead, he opened the ballot box and divided most of the ballots. Then, he presented the form. He did not explain it as an opportunity to object or as a waiver. Instead, he said it simply authorized him to count the ballots. In those circumstances, with most of the ballots on the table, all parties signed the form and the Officer completed sorting and then the ballots were counted.

For these reasons, the Company submits that the objections remain valid and that the Board should still inquire into the status of the three named employees. If they were not entitled to vote, then there should be another vote since it is now impossible to recover their ballots.

(b) The Company also objects to the vote since it has come to their attention that Union representative Hann offered to negotiate the exclusion of certain employees from the bargaining unit if spoiled ballots appeared. This offer was made on November 7, 1990, after the Union information meeting by Mr. Hann to employee Gordon Robinson. Employee Robinson voted. There was one spoiled ballot. Such an offer was an improper interference with the ability of employees to vote freely and therefore calls into question the legitimacy of the vote, itself.

(c) The carrying out of the vote by the Board Officer was further flawed by the fact that required forms signed by the scrutineers on the occasion of each scheduled vote were not signed by the scrutineers until all voting had been completed for that particular scheduled vote.

8Thus, when the hearing convened, there were three matters, broadly speaking, before the Board: the four segregated ballots, the non-pay allegation and the company's allegations. At the commencement of the proceedings, counsel for the company indicated that the company was withdrawing its allegations in (a) and (c) of the November 26, 1990 letter. It is useful to note at this juncture that, while evidence was led with respect to the allegation in (b), that matter was not pursued in final argument and the Board need not deal further with that question.

9Counsel for the union raised, as a preliminary matter, that the Board should not inquire into the non-pay allegation given that a representation vote had been held. Following submissions of the parties, the Board ruled, in part, as follows:

The Board is not persuaded that the non-pay allegation may be disregarded as the Board cannot be satisfied at this juncture that the only outcome of such an inquiry would be a Board directed vote.

The Board further ruled that it intended to hear evidence with respect to Hylund's card, including those witnesses summonsed by the Board and then to hear submissions and determine that issue. In those submissions, the parties were free to comment on what the Board should conclude from the evidence, including the context of the present case wherein a representation vote had already been conducted and the result known.

10It should be noted that, at the commencement of the hearing, counsel for the union properly notified the Board that, on the basis of its information, it was asserting that M. Hylund had paid the required one dollar membership fee but that money constituted a bona bona fide loan from the collector Pikulik to Hylund. That is, the allegation of a non-pay was more properly characterized as a bona fide loan by an in-plant organizer. Union counsel acknowledged that the loan had not been repaid. The characterization of the issue was affected yet again by the testimony of Hylund to the effect that his signature on the membership card in the receipt portion was forged, i.e., a non-sign as well as a non-pay. All those matters are dealt with in detail infra. At this point, it is appropriate to add that the Board's intention to hear and determine the "Hylund card" issue was interrupted when J. Hann, the Form 9 declarant and a witness summonsed by the Board, suffered a stroke before testifying. The impact upon the proceedings of that unfortunate event will likewise be discussed further. It is sufficient to here note that the Board proceeded in the interim to hear and determine the question of the four segregated ballots.

11The Board first provides its reasons for its ruling that the four segregated ballots not be counted and then proceeds to the "Hylund card" question.

12The employer, as required, filed a schedule of employees who, in its view, were in the bargaining unit the union sought to represent. B. Carroll and G. Greenfield were not included on the schedule as, in the employers view, they did not fall within the bargaining unit description. Neither the union nor the employee objectors sought to add those names to the list of employees in the bargaining unit ultimately agreed upon. E. Jewell and J. O'Donnell were initially included on the schedule of employees but the three parties agreed that those names should be struck off as not properly included in the bargaining unit. As mentioned, none of the four were on the voters' list agreed to but all were permitted to cast ballots which were then segregated.

13Shortly following the vote, each wrote to the Board asserting they should be entitled to have their ballots counted. It is useful to set out the those letters:

Barbara Carroll:

Although I was not on the voter's list, I exercised my right to vote, but my ballot was segregated. I feel that my vote should be counted. In my position as end user support, I deal directly with other employees that are included on the voters list. In fact I work very closely with the four technical support analysts, that are included on the voter's list, and I feel that I should have the same right as my fellow co-workers. I would like my vote to count, so that I have a say as to whether or not I would like to be represented by a union, and which union I would like.

G. M. Greenfield:

I feel that my segregated ballot should be counted. My name was not on the voters list, but I feel that it should have been included. In my position as a customers service representative I deal directly with other employees that are included on the voters list. I feel that I should have the same right as my co-workers, and that I should have a say as to whether or not I would like to be represented by a union, and which union.

Elaine Jewell:

I feel that my segregated ballot should be considered along with the other votes. My name was excluded from the voters list despite the fact that as a production co-ordinator, I work directly with production staff that are included on the list. I also am aware that there are other co-ordinators like myself that were allowed to vote. I feel that I should have the same right as my co-workers in the decision to bring a union in to represent my needs. Please reconsider and include my name in the vote.

Janet O'Donnell:

I feel that my segregated ballot should be counted. My name was not on the voters list but I feel that it should have been included. My job is a production clerk. This job deals directly with various departments that were on the voters list such as data entry and operations. As a production clerk I deal with preparing all publications for Ontario and Quebec. As an employee of Moore I should have the same right as my co-workers to have a say as to whether or not I wish to be represented by a union.

14The Board heard submissions for counsel for the union, the company and the employee objectors as well as from the four individuals concerned. Those representations are next summarized.

15Union counsel submitted that the Board's process in certification applications wherein the parties meet with a Board Officer to seek to resolve matters in dispute without a hearing on agreement of the parties would be undermined if, following that agreement, the parties or individual employees were subsequently permitted to challenge that agreement. In that regard, counsel did not differentiate between the parties actually signing the agreement and the individual employees. It was argued that the Board should not go behind the parties' agreement particularly to reopen the question of the bargaining unit description and the voters' list once the union had won the vote. Counsel contended that the four persons could have appeared at the Board Officer meeting and, having chosen not to attend, could not now complain about their exclusion from the bargaining unit and the voters' list. Further, counsel added that, if the Board ascertained that the four had signed the petition filed in opposition to the application, the Board should conclude that the four were represented at the Board Officer meeting by counsel for the employee objectors and, hence, were expressly bound by the parties' agreement.

16Counsel for the employee objectors disagreed with the last proposition, asserting that the signing of the petition did not constitute an agreement to be represented by counsel for the employee objectors, at least for all purposes connected with the certification application. Counsel acknowledged that there were "tradeoffs" between parties in reaching agreements but submitted that individual rights were not always considered in striking those deals. In the instant case, the four took the first opportunity at the vote to preserve their rights and should be able to litigate whether they fell within the office and clerical exclusion and, if not, they should be allowed to vote. It is also useful to set out the following letter dated November 23, 1990 from counsel regarding this issue:

We act as counsel for the objector in the above referenced matter.

We are now in receipt of the Returning Officer's Report of Vote and make the following representations regarding the four segregated ballots:

• the four employees whose ballots were segregated, although not on the list, share the same community of interest as those on the list and therefore are

properly within the bargaining unit.

• as members of the bargaining unit the four employees are proper parties to this application and have an independent right to vote.

• the four employees have demonstrated that they wish to make the representation that they have the right to vote by showing up and voting.

• as parties in this matter, the employees cannot be denied their right to be heard as to their right to vote.

17Counsel for the company agreed that the company was bound by the parties' agreement to exclude the four persons from the bargaining unit. Counsel further agreed that the Board controlled its own processes and that the concern for finality was important. Counsel submitted that the individual employees could challenge the bargaining unit description and could seek to have litigated whether or not they fell within the exclusion although there was no absolute right, under the statute, of individuals to have their duties and responsibilities fully litigated in regard to their exclusion from or inclusion in the bargaining unit. It was argued that the Board had to determine whether there was adequate notice to the individuals, prior to the vote, that their rights might be affected so that they were precluded from raising their concerns at this point. However, counsel added that, in the circumstances, it would be difficult to conclude that the four had not made reasonable efforts subsequent to the vote to raise their concerns.

18All four individuals asserted that the bargaining unit description itself was not being challenged. Rather, the challenge was whether they should be excluded as "office, clerical and sale staff'. Each reiterated the views expressed in their letters set out above with respect to their opinion that each worked sufficiently closely with bargaining unit employees to be included in the bargaining unit. B. Carroll commented that she had assumed she would be in the bargaining unit as "technical support" rather than "office, clerical and sales". It was not until the voters' list was posted that she realized she had been excluded. G. Greenfield concurred with the submissions of B. Carroll. E. Jewell stated that, had she understood what was going on at the Board Officer meeting, she still would have assumed she was included in the bargaining unit given her duties and responsibilities. It was only when she appeared to vote that she had the opportunity to express her position that she should have been included in the bargaining unit all along. J. O'Donnell indicated that the first time she could express her view that she should be included in the bargaining unit was when she realized her name was deleted from the voters' list and she did so at the vote by seeking to cast her ballot.

19In reply, counsel for the union argued that a fundamental issue in the agreement reached between the parties was the composition of the bargaining unit and the voters' list. It was submitted there was clear notice that the Board Officer meeting could affect individual employees and the four chose not to attend. To open up the parties' agreement at this stage after the vote results were known would preclude the likelihood of future agreements as, in effect, any individual employee could veto such agreements after the fact. Counsel added that the employee objector(s) appearing at the hearing or the Board Officer meeting was traditionally held to represent all employee objectors, in the instant case, including the four persons now seeking to have their vote counted. In any event, counsel submitted that the four had been afforded the opportunity to make full submissions to the Board on the issue.

20The Board has an established practice in certification applications of the parties meeting with a Board Officer to seek agreement on the issues relevant to a certification application, including such matters as the bargaining unit description, composition of the bargaining unit, trade union status, form and level of membership support filed by the applicant, the Form 9 Declaration, and any petitions filed in opposition to the application. For many years, that Board Officer meeting occurred on the morning of the day scheduled for the hearing. Currently, in the interest of expeditious resolution of certification applications, the Board schedules the Officer's meeting one week prior to the scheduled hearing date. In many instances, as here, the parties are able to resolve all matters concerning the certification application and expressly waive their right to a hearing. Where there are issues remaining in dispute, the Board convenes the hearing as scheduled, unless the parties have agreed the matter may be resolved in some other fashion, such as a Board Officer appointment to conduct the examination appropriate to the circumstances. The current practice ensures full discussion of the matters at the Board Officer meeting and, where issues remain outstanding, the commencement of a Board hearing the following week. The former approach generally resulted in the parties utilizing a considerable portion of the hearing day in the Officer's meeting so that the remaining hearing time could not dispose of the issues in dispute. This resulted in difficulties in scheduling continuation dates with concomitant delay in dealing with the certification application and increased costs to the parties. The institutional interests of the Board and concern for the labour relations impact of considerable delay in dealing with certification applications underpin the present Board practice. The Board must be sensitive to the effect on the current practice in considering whether to permit challenges to parties' agreements at the Board Officer meeting, which concerns are raised subsequent to that agreement, and, in the instant case, subsequent to the representation vote and the counting of the ballots.

21The Board, as well, has always had a profound interest in respecting the agreements of the parties which resolve some or all of the issues initially in dispute. A significant percentage of the Board's caseload is resolved through the parties' agreement. Indeed, it may fairly be said that the continued functioning of the Board depends upon fostering such settlements. The Board's concerns in this regard go well beyond the administrative. Rather, the Board has consistently viewed settlements reached by the parties themselves, with the assistance of a Board Officer if necessary, as the preferred means of resolving labour relations disputes. The Board need not here reiterate at length its view that, in the context of a collective bargaining relationship, matters resolved by the parties on a mutually acceptable basis enhance the relationship, in furtherance of the goals of the statute as expressed in the preamble. For these reasons, as well as the interest of finality in resolving disputes, the Board has been extremely reluctant to do other than uphold and recognize parties' agreements as binding and dispositive of those issues. To this end, the Board has refused to permit parties to resile from agreements except in truly extraordinary circumstances. Further, the Board has not sought to inquire into the reasons which motivated each party to strike the agreement reached, i.e. to go behind the deal. Absent highly unusual circumstances, and none are raised in the instant case, the motivation of the parties, their "tradeoffs", have not been of concern to the Board. Rather, the Board has focused on the settlement reached by mutual agreement.

22In the instant case, there is no dispute that the company, the union and the employee objectors were represented at the Board Officer meeting, reached agreement on the relevant matters and signified that agreement, including the waiver of a formal hearing, in writing. Given that, the Board is not prepared to permit any of those parties to resile from that agreement which included agreement on the bargaining unit description and the voters' list. (See generally, C. E. Jamieson Co. (Dominion) Limited, [1987] OLRB Rep. July 953; Union of Canadian Transport Employees, [1985] OLRB Rep. Oct. 1541; Laurent Lamoureux Co. Ltd., [1985] OLRB Rep. Nov. 1618; Fonthill Lumber Ltd., (1964), 64 CLLC ¶16,305; Warner Brothers Distributing (Canada) Limited, [1974] OLRB Rep. Dec. 883; JJ's Restaurants Limited, [1977] OLRB Rep. July 465.

23The issue for the Board is whether the four individuals are likewise bound by that agreement and cannot now raise their concern that their votes, which were segregated, should be counted. The Board need not deal with the assertion of union counsel that the four were represented by counsel for the employee objectors either generally or, at least, if the four signed the petition opposing the certification application. Nor need the Board deal with the question as to whether an employee in a certification proceeding has an absolute right to have his or her duties and responsibilities litigated to determine whether he/she is included in the bargaining unit, notwithstanding and contrary to the agreement of the company and the union (and employee objectors, if any) on the exclusion or inclusion of that individual. Rather, in the Board's view, the issue turns on the process and the adequacy of notice to employees, including the four persons now before the Board, of that process.

24It was not disputed that employees are potentially affected by an application for certification and, thus, are entitled to notice of the proceedings. Further, it was not seriously disputed that employees are entitled to make submissions with respect to relevant matters, such as, the bargaining unit description and composition of the bargaining unit. The Board's practice, as required by the Regulations, is to have notices posted in the workplace informing employees of the application and of the process which will determine the outcome of that certification application. In the instant case the notice read as follows:

File No. 1820-90-R

Form

Labour Relations Act

NOTICE TO EMPLOYEES OF APPLICATION FOR CERTIFICATION

AND OF HEARING

BEFORE THE ONTARIO LABOUR RELATIONS BOARD

Between:

Graphic Communications International Union Local N-1,

Applicant,

• and -

Moore Data Management Services Division,

Respondent.

TO THE EMPLOYEES OF Moore Data Management Services Division

1. TAKE NOTICE that the applicant, on October 12, 1990, made application to the Ontario Labour Relations Board for certification as bargaining agent of employees of Moore Data Management Services Division in the following unit claimed by the applicant to be appropriate:

"All employees in the employ of the respondent in the City of Scarborough, save and except forepersons, persons above the rank of forepersons, office, sales & clerical staff, students employed during the school vacation period and persons employed for not more than 24 hours per week."

2. AND TAKE NOTICE that the hearing of the application by the Board will take place at the Board Room, 400 University Avenue, Toronto, Ontario on the 9th day of November 1990, at 9:30 a.m. (Local time)

THE PURPOSE OF THE HEARING is to hear the evidence and representation of the parties with respect to all matters arising out of and incidental to the application referred to in paragraph 1.

3. The Board has fixed Wednesday, the 24th day of October, 1990, as the TERMINAL DATE for this application.

4. -(1) The Board will not hear evidence or representations of employees objecting to certification of the applicant unless one or more documents, sometimes referred to as petitions, expressing objection to the certification of the applicant are filed with the Board.

(2) A document referred to in subsection (1),

(a) must be signed by the objecting employee or employees;

(b) must be,

(i) received by the terminal date if sent other than by registered mail, or

(ii) mailed to the Board by the terminal date shown in paragraph 3 if sent by registered mail; and

(c) must be accompanied by the name of the employer concerned and the return mailing address of the employee or employees filing the document or of the representative of the employee or employees.

(3) The objecting employee or employees or a representative of the objecting employee or employees MUST ATTEND THE BOARD'S HEARING AND PRODUCE A WITNESS OR WITNESSES who, from personal knowledge and observation, can describe the circumstances in which each document was prepared, circulated and signed, and verify each signature.

No oral evidence of employee objection to certification of the applicant will be accepted by the Board except to identify and substantiate written evidence which complies with these requirements.

5. IF, YOU DO NOT ATTEND AT THE HEARING, THE BOARD MAY PROCEED IN YOUR ABSENCE AND YOU WILL NOT BE ENTITLED TO ANY FURTHER NOTICE IN ThE PROCEEDINGS.

6. Other relevant statements, if any: - N/A

YOUR ATTENTION IS DIRECTED TO THE ACCOMPANYING EXPLANATORY NOTICE TO EMPLOYEES.

Please be advised that a Board Officer from the Ontario Labour Relations Board will convene a meeting of the parties to this Application for Certification in its Board Room, 6th Floor, 400 University Avenue, Toronto, Ontario on November 2, 1990 at 9:30 a.m. (Local time)

The purpose in attending the officer's meeting will be to address all questions that may be raised in connection with the appropriateness for collective bargaining purposes of the unit(s) proposed in the application and any reply, the membership support for the union, and such other issues as may arise as a result of the application filed. This meeting may result in the Board issuing a decision in this matter without an oral hearing, taking into consideration agreements reached between those attending the meeting.

DATED this 15th day of October, 1990.

T. A. Inniss

Registrar

Ontario Labour Relations Board

NOTES

I. Any communication with respect to this application should be addressed to:

The Registrar

Ontario Labour Relations Board

400 University Avenue

Toronto, Ontario

M7A 1V4

II. The requirements set out in paragraph 4 of this notice relate only to evidence of employee objection to certification of the applicant trade union. If you attend at the Board's hearing and wish to make representations about something other than employee objection to certification of the applicant, paragraph 4 does not apply. However, your attention is directed to section 72 Rule of the Board's Rules of Procedure which applies in such situations and provides, in part, as follows:

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

(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.

(4) No person shall adduce evidence at the hearing of an application or complaint of any material fact that has not been included ... 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 deems it advisable to give such consent, it may do so upon such terms and conditions as it thinks advisable.

25The employees of the company were informed that the bargaining unit sought was an all employee unit save and except several exclusions and, for the Board's purposes herein, excluding office, sales and clerical staff. The hearing date was scheduled for November 9, 1990 to hear "the evidence and representations of the parties with respect to all matters arising out of and incidental to the application". Employees are expressly cautioned that "if you do' not attend at the hearing, the Board may proceed in your absence and you will not be entitled to any further notice in the proceedings". The employees' attention is expressly directed to notice of a Board Officer meeting of the parties to the certification application on November 2, 1990 at a specified time and place.

The purpose of the Officer meeting is clearly stated as addressing all questions in connection with the bargaining unit description, membership support for the union and "such other issues as may arise as a result of the application filed". [emphasis added]. The consequences of the Board Officer meeting for the employees is also expressly stated and bears repeating: "This meeting may result in the Board issuing a decision in this matter without an oral hearing on the basis of agreements reached between those attending the meeting." [emphasis added]

26In the instant case, there is no suggestion that the posting was not specific or was otherwise defective nor was posted for an unreasonably short period. Nor was it suggested the agreement of the parties at the Board Officer meeting was tainted in any way. The thrust of the representations of the four persons was that they assumed they would be included in the bargaining unit and did not fall within the "office, clerical and sales" exclusion. Once the voters' list issued and they realized they were not on the list, they decided to pursue their interests by appearing at the representation vote and seeking to cast ballots. In the Board's opinion, it was too late at that point to challenge, on the grounds asserted and in the circumstances of this case, the agreement of the parties reached at the Board Officer meeting.

27In an organizing driye and certification application, some employees will support the union while others may actively or passively oppose the applicant. Some may well be neutral or disinterested. The Board provides notice to all employees through the posting of relevant information, including the process to be followed by the Board. It is for employees to decide whether and to what extent to become involved. Those who support the union are likely content to have their interests in the application represented by the union applicant. Those against may actively oppose the union through filing a petition with the Board expressing their views. Such employee objectors are entitled to appear as parties, through a representative, at the Board Officer meeting and the Board hearing, if one is held. Other employees may well be content with whatever results from the process, including agreements between the union, the company and employee objectors, if any. However, employees not content to have their interests represented by the union or an employee objectors' representative ignore the Board Officer meeting (and any subsequent Board hearing) at their peril. The process is structured to provide persons whose rights may be affected with an opportunity to be heard at the Board Officer meeting. The overwhelming number of employees, in the Board's experience, will not seek to participate at that meeting, for the reasons given. Those affected employees whose interests may not coincide with those of the other parties should not be permitted to undermine the agreements properly reached by those other parties and subvert the process by which certification applications are resolved by raising their personal concerns subsequent to the reaching of those agreements. The Board need not repeat here its earlier comments about the importance of parties' agreements and the institutional interests of the Board in that regard or the rationale for the Board's practice in certification applications. It is sufficient to reiterate the Board's conclusion, for the foregoing reasons, that the Board will not unseal and count the segregated ballots of the four individuals nor further inquire into their status or duties and responsibilities.

28The Board next turns to the question of Mark Hylund's membership card. Before setting out the Board's factual findings, it is necessary to address several matters which arose during the litigation of the Hylund card issue. There are not dealt with in chronological order.

29The Board, as is usual, summonsed the Form 9 declarant, J. Hann to testify with respect to the "non-pay" allegation. Prior to Hann's testifying, counsel for the union informed the Board that J. Hann had suffered a stroke and submitted medical reports attesting to Hann's medical condition and prognosis. The reports were disclosed to the other parties who understood the sensitive and confidential nature of the material to which they were being granted access. The gist of the assessments was that Hann was not able to testify at that point. Counsel for the union submitted that J. Hann's testimony was not critical and the Board could deviate from its usual process of hearing from the Form 9 declarant. Following representations from all parties, the Board ruled that the appropriate balancing of the various interests was to proceed to hear the evidence of R. Pikulik and any other evidence the parties wished to call with respect to the non-pay issue and direct a further assessment in three months; union counsel was to assist in obtaining the reports as he had done initially. The reports were to be filed with the Board and copied to the other parties. The Board, then, would reassess the situation and, if J. Hann was still unable to testify, the Board would hear further submissions from the parties with respect to the appropriate method of determining the non-pay issue. The Board was provided with the appropriate medical reports in February 1992. At that point, J.Hann did testify.

30M. Hylund testified that he did not pay the one dollar membership fee nor did he sign his name on the receipt portion of the membership card. He did identify his signature on two other places on the card but maintained his position that the third signature purporting to be his was a forgery. Counsel for the union then sought to put to Hylund the preliminary reports of two forensic experts in handwriting analysis and ultimately to call those two persons and/or file their final reports with the Board. Counsel argued strenuously that the allegation of forgery by a union official or organizer was very serious and the union had the right to defend itself against that allegation. Evidence of handwriting experts was clearly relevant to the issue and it was argued that, if the Board precluded such evidence, that would constitute a denial of natural justice. Opinion evidence by experts was admissible and had been received by the Board in the past; the appropriate tests were whether such evidence may properly be characterized as relevant and probative of the issue in dispute. Although conceding that the calling of such evidence, and the time needed to prepare the final reports, would delay the adjudication of the non-pay allegation, counsel contended that must be balanced against affording a party against whom a serious allegation of impropriety is made with the opportunity to mount a full defence. Counsel assured the Board any concomitant delay would not be regarded by the applicant as the Board's responsibility.

31Counsel for the company acknowledged that the Board could receive opinion evidence from experts but the issue was really one of who should be permitted to call such evidence. If the union was permitted to call such witnesses, the same right should be accorded to the other parties. Counsel argued that, where the issue was an non-pay allegation, i.e., where the concern with the reliability of the membership cards was the Board's and it was the Board which conducted the initial inquiry and summonsed witnesses, it was appropriate for the Board to determine whether expert evidence was needed and to call that evidence itself. Counsel for the employee objectors concurred with those representations.

32Cases referred to in the submissions of the parties included: Wallace Barnes, [1965] OLRB Rep. July 282; Heart Construction Co. Ltd., [1983] OLRB Rep. Jan. 84; Roytec Vinyl Co., [1990] OLRB Rep. June 720.

33The Board gave its ruling orally with reasons to follow. That ruling, in part, is herein summarized.

The Board has considered the parties' submissions and gives its ruling in point form with reasons to follow.

1. Pursuant to section 102(13) [now section 104(13)] of the Labour Relations Act, the Board has the authority to determine its practice and procedure provided that full opportunity is given to the parties to present evidence and make submissions.

2. In determining this issue, the Board has balanced consideration of such matters as procedural fairness, expeditious resolution of labour disputes

and such like.

3. The Board does not disagree with the comments regarding handwriting expert evidence in Roytec, supra, in the context of that case.

4. In the context of this case, the Board is not prepared to call handwriting experts as the Board's own witnesses.

5. The Board is prepared to permit the union to call opinion evidence from handwriting experts as part of its defence to the issue before the Board with respect to Hylund's card.

6. The Board is of the view it is appropriate and useful that the union put the following to the witness at this juncture:

"I have preliminary reports from two persons whom the union intends to prove are handwriting experts. That preliminary report, based on an examination of the membership card, is that, in their respective opinions, the signatures are so similar as to lead them to conclude the three signatures were made by the same person. The two experts are prepared to give a final report of their assessment and to testify in these proceedings. Given what I have now told you do you still maintain the third signature is not yours?"

7. If the witness changes his testimony and states that the third signature is his, that ends the issue with respect to expert evidence.

8. If the witness maintains the third signature is not his, the Board directs the union to complete the remainder of its cross-examination and counsel for the company and counsel for the employee objectors to likewise complete their "reply" subject to the following.

(a) The witness will be recalled if any party so requests following receipt of the final reports (such request is to be made forthwith in writing to the Board following receipt of those reports). This will ensure that all parties have the opportunity, if so desired, to further question the witness with respect to reports.

(b) Union counsel is directed to have the final reports completed as soon as possible and copied to the other parties forthwith upon

their receipt by him.

(c) In the interim, the other parties will be provided with access to the original card to permit either or both to consult expert(s). The Board expects the other parties to have their handwriting experts' reports, if any, produced as soon as possible and copied to the others as the Board has directed the union.

The remainder of the ruling essentially dealt with the production of specimen signatures which is further addressed below.

34The Board next provides the reasons for its ruling. The Board commences its analysis with the reiteration of the commonlaw rule that a witness may give evidence solely with respect to facts within his/her personal knowledge. That said, the commonlaw has also long recognized an exception to that stricture in regard to experts who, once it is established that the individual is qualified to render an opinion on the matter in question, is permitted to give what is referred to as "opinion evidence". The courts, the Board and arbitrators have often heard from expert witnesses on various subjects. Medical practitioners and handwriting specialists are but two examples of expert evidence which had been recognized and admitted in adjudicative proceedings. As noted earlier, medical opinion evidence in the form of written medical assessments was admitted with respect to the ability of J. Hann to testify. Counsel for the union sought to have admitted expert evidence, in the form of written reports and, if necessary, oral testimony, from two forensic handwriting experts. As mentioned, there is no dispute that the persons in question possess the necessary qualifications and skill to entitle them to give opinion testimony.

35The issue for this Board is whether counsel should be permitted to lead that evidence and/or whether the Board should do so in the instant case. There can be little doubt that, had the impugned signature not been on a membership card, that is, had the alleged forgery concerned a document which was arguably relevant to the issue in dispute, the testimony of handwriting specialists would be admissible. The admissibility of the evidence is to be distinguished from the weight accorded such evidence and it is understood that the receiving of expert testimony in no way decides the issue nor relieves the adjudicator of responsibility for the ultimate determination. Expert evidence - and it is not uncommon for each party to call its own experts who may well give conflicting opinions - does no more than assist the adjudicator in resolving the question.

36The Board's authority to control its practice and procedure is found in section 104(13) [formerly section 102(13)] of the Act. In so doing, the Board shall give full opportunity to the parties to any proceedings to present their evidence and to make their submissions. The somewhat broad statement of the admissibility of evidence from handwriting specialists in the preceding paragraph does not mean that such evidence must be admitted in every case. The Board would also consider factors such as the length of the delay in concluding the proceedings which would be occasioned by the request to introduce such evidence, the possible prejudice to the parties not seeking to lead such evidence, the identity of the party desiring to introduce such evidence in the context of the nature of their interest in the proceeding and the issue in question, the potential consequences for the party wishing to have admitted such evidence if such evidence is precluded by the Board and the point at which a party seeks to introduce such evidence in relation to the point at which the issue crystallized. This list is not exhaustive but illustrative of relevant considerations.

37In the instant case, it is the applicant against whom the the allegation of forgery is made (given Hylund's testimony) which wishes to introduce the evidence of handwriting specialists as part of its defence. Counsel for the applicant union assured the Board that the applicant was prepared to bear whatever hardships were generated by the delay in concluding the proceedings in order to introduce such evidence. Moreover, counsel for the applicant put to Hylund, in cross-examination and without delay to the proceedings, the preliminary reports of the handwriting experts. As noted in the oral ruling, the issue of the formal introduction of expert evidence would only be pursued if the witness maintained the signature in question was a forgery. There can be no dispute that the applicant has a direct and immediate interest in the precise issue before the Board, namely, whether the union, through its officials or organizers, forged Hylund's signature on the membership card filed in support of the certification application. It was not contended that the delay by the preparation of the report of the handwriting experts would prejudice the other parties. The potential consequences for the applicant of the Board's determination of the forgery issue are draconian: the Board, if it concludes that the signature was forged by union officials or organizers, could well dismiss the application outright, notwithstanding the results of the representation vote.

38Consideration of each of these factors would support a conclusion that the union should be permitted to introduce the evidence of handwriting specialists in the instant case. Should the conclusion be different because it is a membership card which is the document in question? The Board has rarely been called upon to canvas this type of issue. In Wallace Barnes, supra, the applicant apparently had a handwriting expert inspect, at the Board's offices, certain membership cards and compared the signatures with the specimen signatures provided by the respondent. The applicant conceded the signatures in question had been forged but asserted the perpetrator was not an officer or agent of the applicant. The applicant sought to lead the evidence of handwriting experts to establish that fact. It is simplest to quote the following passage from that case:

The applicant further alleged that it had suspicions as to the identity of the guilty person and requested the Board's assistance to aid the applicant in determining his identity. The applicant requested the Board to compel some ten or twelve persons to submit specimen signatures which would be used by the applicant's handwriting expert for the purpose of attempting to ascertain if one of the ten or twelve persons had fabricated the signatures on the five cards. This request was strongly opposed by the other parties.

The membership cards in question constitute part of the documentary evidence of membership submitted by the applicant. It is therefore incumbent upon the applicant to support, qualify or explain its evidence of membership. For this purpose the applicant will be permitted, following the Board's inquiry of the Board's witnesses into the non-pay allegations, to call as a witness, any person whom the applicant believes will assist the applicant.

None of the ten or twelve persons from whom the applicant has requested specimen signatures are parties or witnesses before the Board, therefore the Board is not prepared at this time to grant the request made by the applicant.

At some point thereafter, the applicant requested leave to withdraw the application; leave was granted subject, as would be the Board's practice in the circumstances of the case, to the imposition of a six month bar. Thus, the matter was not further considered by the Board.

39The question of handwriting analysis in connection with membership cards also arose in Roytec Vinyl, supra. It is appropriate to set out the Board's reasoning in that case.

35. The request to have access to the membership evidence for the purpose of having the employers' 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 persons 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] 2 1947 CanLII 336 (ON HCJ), 5CR. 18 (5CC.) 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 employee's wishes:

The object of certification proceedings before the Board is to ascertion 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 of 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.

40The Board, in its oral ruling, indicated its concurrence with the reasoning in Roytec Vinyl, supra, in the context of that case. The Board has, over the years, assiduously protected the secrecy of the membership cards themselves to guarantee the names of persons signing cards are kept confidential as far as possible in accordance with the wording and purpose of section 113(1) [formerly section 111(1)]. To that end, the Board has developed its practice of checking membership cards, as described in paragraph 39 of the Roytec decision. However, in that case, there were no allegations that signatures on specific cards had been forged. The issues before the Board was restricted to allegations that certain employees had failed to pay one dollar on their own behalf when joining the union. The admission of evidence from handwriting experts would not likely assist in resolving that issue. Moreover, the employer's request was essentially for wholesale access to the membership evidence by the employer's handwriting expert. The Board agrees with the reasoning in Roytec that such access "flies in the face of section 111(1) and its purpose" and that all parties would have to be provided with such access if that right was granted to one.

41The instant case starkly contrasts with the circumstances in Roytec, supra, in several critical respects. The allegation of forgery is expressly raised and in respect of an identified employee, Hylund. The allegation comes from the mouth of Hylund himself. The evidence which the union counsel seeks to introduce concerns only Hylund's card. Hylund's identity has already been revealed given the non-pay allegation and the decision of the Board to set the matter down for hearing following the Board's initial inquiry. There is no longer any "confidentiality" to protect in regard to Hylund's card. This is not an instance wherein wholesale access to membership evidence is sought or there are wholesale concerns about the authenticity of the signatures on the membership cards in general. The Board need not repeat here, but affirms, its specific analysis in paragraphs 36 and 37 above.

42In summary, for the reasons given, the Board ruled that the union would be permitted to call opinion evidence from handwriting experts as part of its defence to the forgery allegation. A similar right was accorded to the other parties if they so wished. The process was structured to maximize the use of hearing time available and facilitate production of the expert's reports as expeditiously as possible. Access by all parties to the specimen signatures and original membership card was ensured while maintaining the integrity of the documentation. In essence, the material was released to counsel (or his designated agent) and then returned to the Board to ensure the material was not tampered with prior to its re-release.

43The Board, in its oral ruling, declined to call a handwriting expert as its own witness. That need be dealt with only briefly. It is accurate to note that non-pay/non-sign inquiries are unusual and a departure from the Board's normal matter of proceeding in that the Board summonses those persons who, in the Board's view, are necessary to the Board's determination of the issue. Generally, those include the individual employee, the collector of the card and the Form 9 declarant. The Board first questions those witnesses summonsed by the Board before permitting the other parties the opportunity to question the witnesses. However, following the testimony of the persons summonsed by the Board, the other parties are permitted to adduce relevant evidence with respect to the non-sign/non-pay allegations. The Board's practice has been to depart from the adversarial model as little as possible given the rationale for the adversarial model of litigation but taking into account as well the Board's concerns with the confidentiality of membership evidence and the fact that non-sign/non-pay allegations go to the heart of the reliability of membership evidence which~ as hearsay evidence, requires additional assurances of its reliability through Form 9 declarations. The Board is not persuaded that there is a sound basis for departing from the Board's established practice of summonsing the usual persons and leaving it to the parties to adduce whatever other evidence they see fit, subject to questions of relevance, probative value, etc. which might arise with respect to specific evidence which one party wished to lead.

44Counsel for the union also requested that the Board direct Hylund to produce or create, if necessary, twenty specimen signatures. The basis for that request was that the handwriting experts needed that number of signatures for comparison purposes and analysis. That request raised issues of the compulsion to produce existing specimen signatures versus a direction to create new specimen signatures and the rights of the witness to retain his own counsel, to be cautioned by the Board with respect to the implications and consequences of that request and the impact, if any, of the Charter of Rights and Freedoms. Given the novelty of the matter, the parties wished time to consider their positions prior to making submissions. It was agreed that written representations would be received by the Board.

45The Board ruled as follows in writing on May 22, 1991:

2. The parties filed written representations with the Board by the dates specified. As directed by the the Board without objection, Mark Hylund received copies from the panics of those representations. Given the last date for representations and the date the hearing is scheduled for continuation, the Board gives its ruling with brief reasons. The Board does not regard it as necessary to set out the parties' submissions.

3. The questions on which the Board received representations may be stated as follows:

(a) whether Mark Hylund may consult with and be advised by counsel during the course of his testimony;

(b) whether the Board has the authority and/or should compel Mark Hylund to create twenty specimen signatures as requested by union counsel for use by an expert witness in comparing those specimen signatures with those on the application for membership, given Mark Hylund's testimony that the third signature which appears on that membership application is not his;

(c) whether the Board has the authority and/or should direct Mark Hylund to produce, at the next hearing, documents in his possession or control containing twenty original signatures which he acknowledges are his, again, as requested by and for the use stated in (b).

4. With respect to (a), union counsel conceded that section 11(1) of the Statutory Powers Procedure Act permits a witness to consult with and be advised by counsel during the course of his testimony. The Board agrees that the Statutory Powers Procedure Act disposes of this question in the affirmative. Mark Hylund, as noted, has received copies of the parties' submissions and is directed to be served with a copy of the Board's decision so that he may, if he so chooses, take advantage of that right prior to the next day scheduled for hearing.

5. With respect to (b), assuming (without deciding) that the Board has the authority to give the direction sought, the Board declines to do so given its disposition of (c).

6. With respect to (c), the Board considers that the Board has the authority to grant the direction sought and that it would be appropriate to do so at this time to facilitate the hearing and avoid unnecessary delay. Accordingly, the Board directs Mark Hylund to produce, at the next hearing, documents in his position or control which contain twenty original signatures which he acknowledges are his and which documents are of a nature which could be filed with the Board for the purpose sought by counsel for the union.

7. This matter is referred to the Registrar in accordance with the foregoing. As noted in paragraph 4, a copy of this decision is to be served on Mark Hylund.

46When the hearing reconvened, Hylund did not, in fact, produce the number of specimen signatures directed, stating that, beyond items like his driver's license which could not be filed with the Board and three items which could be left, he was not in possession of other examples of his signature. The Board did not have to deal further with this point given an undertaking of company counsel to obtain, from the firm employed to handle the company's payroll, sufficient numbers of Hylund's cancelled payroll cheques to accommodate union counsel's request. There were, already, two specimen signatures on the membership card itself and signatures on several other company documents, all of which had been acknowledged by Hylund to be his.

47Ultimately, the reports of the forensic experts retained by union counsel were filed with the Board and copied to the other parties. There was no dispute that the two, D. Kruger and D. Isherwood, were qualified as experts and the Board so found. Further, the Board noted the position of the other two parties that neither sought to cross-examine the experts on their reports. Accordingly, those reports were tendered in evidence. It should also be noted that no party sought to have Hylund recalled, as the Board in its oral ruling indicated would be permitted, to question him with respect to the final reports.

48The Board now turns to the evidence, submissions and its decision with respect to the "non-pay" allegation regarding Hylund's membership card. As mentioned earlier, the "non-pay" assumed the added character of an alleged "non-sign" given Hylund's testimony and was, in the union's view, actually a case of a bona fide loan from Pikulik to Hylund.

49The Board has assessed the credibility of the witnesses according to the usual factors. The Board has some specific comments about credibility in the instant case. The Board regards J. Hann as a credible witness who gave his testimony in a straight-forward manner. Likewise, the Board considers R. Pikulik credible. While he was not the most articulate witness, the Board is satisfied he was sincerely trying to recall events occurring months previously. The discrepancies between the testimony of Hann and Pikulik are no more than would be expected given the passage of time and, while the Board may have concluded one was more accurate on some details than the other, any inconsistencies in their testimony do not warrant a wholesale rejection of their evidence as unreliable or untruthful. In contrast, the Board has no hesitation in concluding that Hylund deliberately did not tell the truth with respect to his testimony that the signature on the receipt portion of the membership card was not his. Because of the Board's view of Hylund's credibility, Hylund's testimony is disregarded wherever it conflicts with Pikulik.

50Having weighed and assessed the testimony, in the context of the relative credibility of the witnesses, the documentary material, the parties' submissions and what is reasonably probably in the circumstances, the Board makes the following findings of fact.

51J. Hann was the full-time union official in charge of the organizing drive at the respondent's plant. At an initial meeting with some employees at a local pizza shop, Hann reviewed the card collection process stressing that, with each card, the one dollar application fee must be collected. Hann told the individuals that, whether or not that figure seemed like a joke, the collection of the one dollar was a necessity. Hann also asked the employees present if there was a responsible, reliable long-term employee at the plant who might be interested in assisting the organizing campaign. The name of R. Pikulik surfaced; Hann established contact and met with Pikulik at the union office. At that meeting, Hann reviewed the card collection process with Pikulik explaining the necessity of collecting the one dollar application fee from each card signer. Hann informed Pikulik that this requirement of one dollar was put in place a long time ago and had continued to the present. Hann also said that discretion should be used in approaching employees, that employees should not be intimidated into signing union cards. Cards were returned over a period of time; with respect to each card, Hann reviewed the card and collected the one dollar application fee. On the terminal date, Hann personally delivered those cards in his possession to the Board and filed a Form 9 declaration dated October 24, 1990.

52Pikulik collected twelve membership cards, including that of Hylund. Pikulik was a long-service employee who became involved with the organizing drive but who was not a main card collector; Pikulik had never before participated in an organizing campaign. Pikulik discussed the union drive with Hylund and asked if Hylund was interested in joining. The discussion was positive. Hylund was a probationary employee at the time. Shortly prior to October 24, 1990, Hylund received a card from Pikulik to complete and return. The necessity of the one dollar application fee was raised. When Hylund returned the card, Pikulik noticed certain information was omitted and other parts of the card were incorrectly or sloppily completed. Pikulik decided the card was unsuitable in its current form to be submitted; the card was ripped up and tossed out. On the afternoon of the terminal date, Pikulik saw Hylund again, asked if Hylund was still interested in joining the union and gave him another card. Pikulik told Hylund that, if he wished to participate in the drive, the card should be completed and returned without delay. In Pikulik's view, Hylund understood what the card represented and was aware the 24th was the terminal date. Pikulik marked with "X" the places on the card where Hylund's signature was required.

53Hylund did return the card that afternoon. Pikulik added the information "press feeder" where Hylund had not filled in that data. On the receipt portion, Pikulik inserted Hylund's name in printed form, the figure one dollar and signed as collector. Hylund had affixed his signature on all three points shown on the card, including the receipt portion. Pikulik asked Hylund for the one dollar application fee. Hylund understood that one dollar was needed with the card but responded that he did not have one dollar at the time. Pikulik told Hylund he would look after the one dollar fee for now and would "hit (Hylund) later" for the money. Pikulik testified that he understood the importance of the one dollar, that Hylund had to pay the one dollar himself, but believed that Hylund would pay him back. Pikulik testified he simply forgot to specifically ask Hylund for the money later given the minuscule amount involved. Pikulik added that he regarded the situation like that where one employee gets coffee and another returns the favour on another occasion.

54As Hylund's card was collected on the terminal date, Pikulik contacted the union for advice and was told to forward the card directly to the Board by registered mail dated October 24. Pikulik did so and the card was included in the membership evidence filed in support of the certification application.

55Hann spoke to Pikulik by telephone in the late afternoon of October 24, 1990, the terminal date. Pikulik informed Hann that a card had been signed that afternoon and that he (Pikulik) had been advised by the union to forward that card directly to the Board by registered mail and had done so. Pikulik told Hann he received the one dollar fee from Hylund as he (Pikulik) knew the one dollar was important but regarded the one dollar he paid on Hylund's behalf as a matter just between the two of them and that Hylund would pay back the one dollar. Arrangements were made for Hann and Pikulik to meet to collect the one dollar and a photocopy of the card. That meeting occurred a few days later at approximated 5:30 a.m. at a doughnut shop near the plant. The conversation was brief. Hann thanked Pikulik for mailing the card to the Board. Pikulik was asked for the photocopy of the card and the one dollar application fee for that card. By this point, Hann was aware that the card in question was that of Hylund and, to his knowledge, the one dollar was Hylund's. Pikulik did not disclose the one dollar was his own, that Hylund had not paid the fee on his own behalf nor yet repaid the loan. To the best of Hann's recollection, the one dollar was in the form of looney, as it was his usual practice to write the employee's name on the dollar bill if a dollar bill was submitted.

56Subsequently, Hann filed a second Form 9 with the Board with respect to that one membership card. While Hann could not recall precisely which date the meeting at the doughnut shop occurred, he was certain that the meeting preceded the filing of the Form 9 declaration. Hann testified that the Form 9 declaration attested to the fact the declarant had conducted the necessary checks of the cards and collected the one dollar application fee. In his words, the Form 9 declarant is "putting (his) name on the line", it's evidence that what "you're turning in is true".

57A first Form 9 was filed with the Board in respect of membership evidence on behalf of sixty-five employees. That Form 9 expressly noted the following items with respect to five of those cards: an error as to the month signed (the 10th not the 9th) on one card; a month and year but no date on one card; and error by the collector as to the date on the receipt on one card; the difference between the dates of application and receipt on one card which had been taken home, filled out and returned the next day; no date on the receipt portion of one card overlooked by the collector. Both Form 9's were disclosed by the Board to the parties although the names of the person signing the five cards referred to were concealed.

58The Board intends to only briefly summarize the submissions of counsel, particularly since company counsel filed written representations in addition to the cases cited. It should also be mentioned at this point that counsel for the employee objectors informed the Board by letter dated February 11, 1992 that, as his only contact had left the company and the city, counsel did not plan on attending any further hearing dates or on making further submissions. Counsel did not appear when J. Hann testified nor did he make final submissions in these proceedings.

59Counsel for the union acknowledged that the delays in hearing the instant case were unpredictable, unusual and not attributable to the Board. Counsel emphasized that a representation vote had been conducted and the union won the vote: only subsequent to the vote result were the various allegations and issues raised. In counsel's view, the vote conclusively demonstrated that the employees wanted to be represented by the applicant and dispersed any cloud over the membership evidence filed in support of the application. Counsel reviewed the chronology of events and the evidence in some detail with respect to Hylund's card, including the reports of the handwriting experts, and the Form 9 declaration regarding that card. Counsel submitted that Hylund's evidence should be entirely disregarded and that the Board should conclude that Hylund indeed signed the receipt portion of the card and the one dollar was a bona fide loan from Pikulik to Hylund. That is, Hylund's card should still be counted. In the alternative, only that one card collected by Pikulik need be discounted. In the further alternative, even if all of Pikulik's were disregarded, the union would still be in a vote position and, as a representation vote had already been held, that result should stand and the union should be certified. Counsel argued that there was no basis upon which the reliability of the Form 9 declaration regarding Hylund's card was called into question. In reply, counsel contended that the status of the first Form 9 was never an issue in these proceedings and that document should not be impugned. Cases cited in support: Frankel Steel Limited, [1984] OLRB Rep. Jan. 28; Crock & Block Restaurant and Tavern, [1980] OLRB Rep. April 424; N.A. Construction, [1982] OLRB Rep. Jan. 77; Trent Metals Limited, [1976] OLRB Rep. Dec. 840; Calvano Lumber & Trim Co. Ltd., [1988] OLRB Rep. Aug. 735; Sterling Packers Ltd., [1972] OLRB Rep. July 705; Echlin-United of Canada Limited, [1965] OLRB Rep. May 91; Dominion General Manufacturing Limited, [1985] OLRB Rep. Aug. 1187.

60Counsel for the company asserted that the representation vote had been directed on misinformation, that is, on the assumption of the integrity and honesty of the conduct of the union officials which assumption, it was submitted, was incorrect. Counsel argued that the contradictions between the testimony of Hann and Pikulik meant that one or other was not credible. In either event, the membership evidence was so seriously compromised that the certification application should be dismissed. It was submitted that, in this context, the credibility of Hylund was irrelevant. The testimony was reviewed in considerable detail in support of counsel's fundamental proposition that, in the circumstances, the membership and both Form 9 declarations could not be relied on, and thus, the union was not entitled to a representation vote. Far from cleansing any difficulty with the membership evidence, the vote and its outcome was irrelevant and should be disregarded. In short, the certification application should be dismissed outright. Cases referred to included: Valley Transportation Company Limited, [1963] OLRB Rep. Nov. 448; National Steel Car Corporation Limited, [1966] OLRB Rep. Jan. 738; Estonian Relief Committee in Canada, [1989] OLRB Rep. May 440; Laidlaw Wire of Canada Ltd., (1958), 58 CLLC ¶18,110; N. A. Construction, supra; Laidlaw Wire of Canada Ltd., [1985] OLRB Rep. Oct. 1479; Daltons (1834) Limited, [1982] OLRB Rep. April 567; Dough Delight Ltd.,[1986] OLRB Rep. May 603.

61Turning first to the "non-sign" allegation, the Board has no hesitation in concluding that Hylund did sign the receipt portion of the card. Nothing further need be said about this question.

62With respect to the non-pay allegation, the Board intends to sketch the Board's approach to such matters as expressed in the jurisprudence. Given that the Board must rely on the membership cards, a form of hearsay evidence, the Board has consistently demanded the process of card collection and disclosure to the Board in the Form 9 declaration be conducted with integrity and care: Valley Transportation, supra, Webster Air Equipment, supra. Where no Form 9 inquiries were made or such inquiries were regarded as fundamentally flawed, the Board has dismissed the application on the basis that the membership cards were entirely unreliable: National Steel Car, supra; Estonian Relief Committee, supra. Likewise, where the overwhelming majority of the cards were collected by two in-plant organizers who deliberately mislead the Form 9 declarant, the Board was not satisfied any of the cards filed by those collectors were reliable and the application was dismissed: Dough Delight, supra.

63Not all "irregularities" have resulted in the outright dismissal of the certification application. The Board has traditionally had regard to factors such as the nature of the irregularity, the identity of the offender, whether the matter was isolated or reflected a pattern of misconduct and whether the irregularity was a simple error or deliberate. The fundamental issue for the Board in each case is whether the memberships cards are a reliable indicator of employee support for the applicant. The Board's response in each case reflects the Board's assessment of the degree of impropriety and the consequent impact upon the reliability of the membership cards. Where the Form 9 declaration was untainted but the one dollar membership fee was paid by another person to the collector's knowledge and without any intention to repay the money, those specific cards were disregarded: N.A. Construction, supra; Sandercock Construction Limited, [1970] OLRB Rep. April 147. In contrast, where the one dollar payment was properly characterized as a "bona fide loan" and an isolated occurrence by an inexperienced in-plant organizer, the card has counted: Dominion General Manufacturing, supra. The occasional borrowing of one dollar from a fellow employee has generally not been of great concern to the Board: Calvano Lumber, supra and the cases cited therein: Laidlaw Wire, supra. The Board has regarded more seriously an irregularity committed by a union official than that of an in-plant organizer and a pattern of misconduct more seriously than an isolated occurrence: Frankel Steel, supra; Laidlaw Wire, supra. The debate for the Board has sometimes focused on whether the irregularity is such that only the specific tainted card or all cards of a collector should be disregarded and, in resolving that, the Board has considered whether the collector sought deliberately to mislead the Form 9 declarant or the Board: Daltons (1834) Limited, supra. Where the Board concludes that the membership evidence should not be entirely discounted but is "under a cloud", the Board has directed a representation vote to dispel any lingering suspicion about the level of membership support enjoyed by the applicant: Crock & Block Restaurant, supra, Echlin-United, supra; Hydro-Electric Commission of Hamilton, 58 CLLC ¶18,120. The Board throughout is motivated, not by an intention to punish, but by concern with the reliability or otherwise of the membership evidence: Crock & Block, supra; Inco Limited, [1966] OLRB Rep. Jan. 698.

64What are the circumstances in the instant case? Pikulik was a rank and file, in-plant organizer without any prior experience in organizing campaigns. He was not one of the primary organizers and collected only twelve cards (of sixty-six). Pikulik acknowledged he knew the importance of collecting the one dollar application fee from each card signer. Pikulik gave his testimony in a candid, straightforward manner and there is no cogent evidence suggesting the payment on behalf of Hylund was other than a single, isolated occurrence. Pikulik testified that he believed that Hylund would repay the one dollar but forgot about the matter afterwards because of the minimal amount of money involved. The Board accepts that explanation as truthful. In this regard, the Board echoes the sentiments expressed in Calvano Lumber, supra. Pikulik did not disclose the one dollar "loan" to Hann because that was viewed as a private matter between him and Pikulik and Hylund would repay the money. It cannot be said that Pikulik took his duties as a collector lightly. Pikulik destroyed Hylund's first card as incomplete and sloppy. That conduct is not consistent with a casual, non-caring attitude or the "buying of memberships". In short, the Board sees no reason to regard Pikulik's loan as other than bona fide; that card, and the rest of Pikulik's cards, should not be disregarded. The Board is not condoning the "loan" between Pikulik and Hylund. Each departure from the "straight and narrow" may well subject the applicant to costly and lengthy litigation and carries the risk that the application may be dismissed in its entirety. In the instant case, the Board is satisfied the card is reliable.

65The Board would note that, even if Hylund's card was discounted, the applicant would still have sufficient membership support to be entitled to a representation vote. There is nothing in the instant case which would persuade the Board that the remaining cards collected by Pikulik should be disregarded. A vote has already been held and the union established majority support amongst the members of the bargaining unit. That is an event to which the Board returns infra. The Form 9 declaration, nonetheless, must also be scrutinized in these circumstances.

66Is Hann's conduct culpable so as to discredit the Form 9 declarations on which the Board relies? In the Board's view, no. Hann reviewed the organizing process with all the collectors, including Pikulik, at the commencement of the organizing drive and emphasized the importance of the one dollar application fee notwithstanding its minimal monetary value. As the cards were returned, Hann checked the cards and reviewed the cards and the one dollar with the collector. In a telephone conversation, Pikulik told Hann he collected the one dollar from Hylund; at their subsequent meeting, Hann obtained the money and the photocopy of the card (the original had already been sent to the Board). In the circumstances, the Board is satisfied Hann made the proper inquiries. Hann testified that he understood the importance of the Form 9, that he was "putting (his) name on the line" in attesting to the integrity of the membership cards. In this instance, there were two "Form 9's", both signed by Hann. The first dealt with all the cards but Hylund's; the second with Hylund's alone. There were no allegations of impropriety raised against any of the cards addressed by that first Form 9. Further, the first Form 9 expressly commented with respect to minor errors on a total of five cards. In the Board's view, there is no cogent evidence in the circumstances to impugn the first Form 9 declaration. Moreover, the detail of the first disclosures also lend support to the Board's view that the second Form 9 is not tainted. The second Form 9 was completed following Hann's meeting and phone conversation with Pikulik. Taken together, the Board is satisfied Hann made the proper inquiries of Pikulik; Pikulik simply did not disclose the loan.

67The instant case is unusual because of the various events and issues which could not have been anticipated but, even more so, because this lengthy and costly litigation has been conducted in the shadow of a representation vote wherein the applicant established the majority support needed for certification. The Board has already mentioned instances where, when the membership evidence was held to be "under a cloud", a representation vote was seen as the appropriate mechanism to "clear the air". In its reasoning thus far, the Board has focused on the various issues themselves and has ignored, in that analysis, the over-arching fact that a representation vote was conducted and won by the applicant. In the Board's view, where a representation vote has been directed, particularly where the vote was agreed to by the parties, it is implicit that the parties would ordinarily be bound by the results of that vote, apart from situations wherein improprieties are alleged with respect to the vote itself. Where non-pay or non-sign allegations are raised subsequent to the vote, and the Board's usual inquiry triggered by such allegations would otherwise result in the Board's decision to list the matter for hearing that, the Board may well insist that it be satisfied in a show cause hearing, in all the circumstances, the inquiry ought to proceed further.

68For the foregoing reasons, the Board, in its decision dated March 5,1992 certified the applicant as bargaining agent for the employees of the respondent in the bargaining unit described therein.