National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada) v. Polytech Coatings Limited, 1992 CanLII 6758

[1992] OLRB Rep. March 362

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

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

APPEARANCES: Bertha Greenstein and Hassan Yussuff for the applicant; Andrew J. Roman, Charles R. Robertson, Clifford J. Hart, and Alan May for the respondent; David Zimmer and Samuel Owusu for the objectors.

DECISION OF ROBERT D. HOWE, VICE-CHAIR, AND BOARD MEMBER P. V. GRASSO; March 5, 1992

1. In a decision dated February 15, 1991 regarding this application for certification, another panel of the Board (the "Petryshen panel") wrote as follows:

1. The name of the respondent is amended to read: "Polytech Coatings Limited".

2. This is an application for certification.

3. The matter consists of a petition, revocations and various charges made by the applicant, the respondent and the objectors. During the afternoon of February 15, 1991, the scheduled hearing day, the parties agreed that the Board should direct the taking of a representation vote.

4. The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act.

5. Having regard to the agreement of the parties, the Board finds that all employees of the respondent in the City of Mississauga, save and except supervisors, persons above the rank of supervisor, office and sales staff, persons regularly employed for not more than twenty-four (24) hours per week and students employed during the school vacation period, constitute a unit of employees of the respondent appropriate for collective bargaining.

6. The Board is satisfied on the basis of all of the evidence before it that not less than forty-five per cent of the employees of the respondent in the bargaining unit, at the time the application was made~ were members of the applicant on January 29, 1991, the terminal date fixed for this application and the date which the Board determines, under section 103(2)(j) of the Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act.

7. A representation vote will be taken of the employees of the respondent in the bargaining unit described in paragraph 5 of this decision. All those employed in the bargaining unit on the date hereof, who are so employed on the date the vote is taken, will be eligible to vote.

8. Voters will be asked to indicate whether or not they wish to be represented by the applicant in their employment relations with the respondent. While making voting arrangements, the par­ties requested that the notices and ballots be in the Punjabi as well as the English language. Consistent with the Board's practice, the notices and the ballots will be in English.

9. The matter is referred to the Registrar.

2. The representation vote directed by that decision was conducted on February 28, 1991. Ballots were cast by 98 of the 101 employees whose names were included on the voters' list. Of those 98 ballots, 55 were marked in favour of the applicant (also referred to in this decision as the "Union"), with the remaining 43 ballots being marked against the applicant.

3. The following letter (also referred to in this decision as the "statement of desire") was delivered to the Board on March 8, 1991, which was the final day (under section 70(1) of the Board's Rules of Procedure) for filing a statement of desire with the Board in respect of the repre­sentation vote:

A representation vote was held on February 28, 1991 pursuant to the Direction of the Board dated February 15, 1991.

The Group of Employees as Interveners/Objectors desire to make representations regarding mis­conduct on the part of the applicant Union relating to the representation vote and the conclu­sions the Board should reach in view of the misconduct of the applicant Union. The Group of Employees Intervener/Objectors desire a Hearing before the Board in connection with these matters. This application is brought on behalf of the Group of Employees Interveners/Objectors by Samuel Owusu... and Amarjeet Grewal.... [The addresses of Mr. Owusu and Ms. Grewal are also included in this part of the letter.]

The following is a concise statement of allegations concerning the representation vote:

1. Many of the employees of the respondent employer are members of the Singh Sabha Gurudwara Temple located at Airport Road in Malton. Surin­der Gill and Qamar Ghiassud were in-plant organizers of the applicant Union and members of the Temple. They told various employees of the respondent Employer, in particular Amarjeet Grewal, Gurchran [sic] Dhil­Ion, Rajinder Dhillon and others, that the Temple expected all members of the Temple to support the Union at the representation vote and that those members who did not support the Union would be publicly identified by the Temple. This was a clear attempt to intimidate employees of the respondent Employer and interfere with their right to freely exercise their vote. Censure by the Temple is a matter of such serious religious conse­quence that this threat may well have coerced members of the Temple to vote in such a way as to avoid censure by the Temple.

2. The representation vote was held February 28, 1991 from 1:30 p.m. to 5:30 p.m. at the Malton Community Centre. A room was set aside in the gymna­sium and voters had to pass through a doorway into the gymnasium. On the door, notification was posted by the Ontario Labour Relations Board. In the official form of the Ontario Labour Relations Board there appeared a sample ballot. The ballot was marked with an "X" in the "yes" portion of the ballot box. Many employees of the respondent Employer are unable to effectively speak and read the English language. At the doorway through which the voters had to pass a group of in-plant organizers of the applicant Union were present during the entire five hour voting period and as voters passed through the doorway this group intimidated the voters and prevailed upon them to mark their ballots "yes". This activity was brought to the attention of the Ontario Labour Relations Board returning officer who removed the Ontario Labour Relations Board document with the marked ballot from the door and has kept it as an exhibit in his file. Many voters as a result of this activity felt intimidated and compelled to mark their ballots "yes". Some of the applicant Union in-plant organizers who formed the group at the doorway were Satpal Uppal, Kamar Ghiassud, Jaswainder [sicl Mann, Kewal Singh, Jaspaul Singh.

3. Gill International Travel is a travel agency located at 7162 Airport Road. It is owned and operated by Darshan Grewal and Lakhvinder Grewal who also have various relatives and family friends who are employed by the respondent Employer. Also Gill International Travel does a considerable volume of business arranging trips back and forth to India for members of the Temple and employees of the respondent Employer. Members of the Temple, employees of the respondent Employer and Gill International Travel were told by in-plant organizers of the applicant Union, in particu­lar, by Kamar Ghiassud, that if the Union was unsuccessful at the represen­tation vote the in-plant organizers of the applicant Union would arrange a boycott of Gill International Travel. This was a clear attempt to influence the outcome of the representation vote by attempting to coerce Gill Inter­national Travel to influence employees of the respondent Employer to vote "yes" in the representation vote.

In view of these allegations and in view of the closeness of the representation vote the Objectors/Interveners desire to make representations to the Board relating to the rep­resentation vote and as to the conclusions the Board should reach.

Sincerely yours,

JONES POULTNEY ROGERS

"David Zimmer"

David Zimmer

4. At a hearing held on April 5, 1991, the Petryshen panel heard submissions in respect of a motion by the Union that the facts alleged in the statement of desire failed to disclose a prima facie case. In addition to Mr. Zimmer, the persons in attendance at that hearing on behalf of the objectors were Samuel Owusu, Amarjeet Grewal, and Rajinder Dhillon, the three employees whose concerns regarding the representation vote formed the basis of the statement of desire. The Petryshen panel disposed of the motion in the following decision dated May 8, 1991:

This is an application for certification

2. Pursuant to a direction of the Board, a representation vote in this matter was held on February 28, 1991. The majority of those employees who cast ballots voted in favour of the applicant. In a letter dated March 8, 1991, counsel for the objecting employees made certain allegations regarding the conduct of the applicant relating to the repre. sentation vote. Having regard to its allegations, the objecting employees request that the Board direct the taking of another representation vote. At a hearing held on April 5, 1991, the Board entertained submissions from the parties on a motion by the appli­cant that the Board should not entertain any evidence regarding the allegations made by the objecting employees since even if one assumed the alleged facts to be true, the objecting employees would not be entitled to the relief requested.

3. Having considered the nature of the allegations, the parties' submissions and the authorities cited to us~ the Board finds in the circumstances that it would not be appropriate to allow the applicant's motion. Accordingly, the Board will hear the evi­dence and representations of the parties concerning the allegations contained in the March 8, 1991 letter on June 10, 11, and 12, 1991.

5. When this application came on for hearing before the present panel on June 10, 1991, Mr. Zimmer appeared again as counsel for the objectors, along with Mr. Owusu, who served as his advisor. At the commencement of the hearing, Mr. Zimmer advised the Board that Ms. Grewal, who was to have been his other advisor, had instructed him not to proceed on her behalf. He fur­ther indicated that he was not at liberty to disclose the basis of Ms. Grewal's decision not to pro­ceed with the matters alleged in the statement of desire. Mr. Zimmer also initially stated that although Mr. Owusu wished to proceed, he was not in a position to offer anything other than hear­say evidence concerning the allegations contained in paragraphs 1 and 3 of the statement of desire, because his direct knowledge was confined to the matters set forth in paragraph 2. After clarifying his instructions from Mr. Owusu during the lunch recess, Mr. Zimmer advised the Board that Mr. Owusu had no evidence to offer in support of the matters raised in the statement of desire, and that he wished to withdraw on behalf of the objectors the allegations contained in that document.

6. It was the position of the respondent (also referred to in this decision as the "Company" and "Polytech", for ease of exposition) that the objectors should not be permitted to withdraw their allegations because they had been intimidated into seeking to do so. The respondent also sought to file for immediate hearing a complaint under section 91 (formerly section 89) of the Labour Relations Act, based upon the allegations contained in the objectors' statement of desire.

7. After hearing submissions on those and other related matters, the Board (with Board Member Grasso dissenting) ruled that it would "afford the respondent an opportunity to adduce evidence in support of its allegation that the objectors have been intimidated into seeking to with­draw the allegations contained in Mr. Zimmer's letter dated March 8, 1991". That phase of the hearing continued on June 11 and 12, July 29, and August 6, 1991, and culminated in the following decision dated August 16, 1991:

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

Although he did not take an active role, Mr. Zimmer remained in attendance at the hearing of this matter until July 29, 1991, after which he absented himself from the proceedings.

8. The hearing of the merits proceeded on September 6 and 13, October 30, November 8, and December 6, 1991, with final argument being heard on January 30 and 31, 1992. On Septem­ber 13, 1991, the respondent sought the Board's consent, under section 72(4) of the Board's Rules of Procedure, to adduce evidence regarding certain incidents which allegedly occurred in January and February of 1991. That request was denied by the Board in a decision dated September 20, 1991, for the reasons contained in the Board's decision dated October 29, 1991, in this matter (see Polytech Coatings Limited, [1991] OLRB Rep. Oct. 1193). In a decision dated November 4, 1991, the Board denied the respondent's request for reconsideration and reversal of that ruling. The Board's reasons for denying that request were subsequently provided in a decision dated Novem­ber 25, 1991.

9. During the course of the hearing of this matter, the Board heard testimony from six witnesses called by the Company and one witness called by the Union. In addition to Mr. Owusu, who is employed by Polytech as a painter, and Ms. Grewal, who is one of the Company's quality con­trol inspectors, the respondent called Richard Turner, the Company's Plant Manager; Satish Kumar, another of the Company's quality control inspectors; Dirk Van de Kamer, a Student-at-Law with the respondent's solicitors; and Dr. John W. Spellman, the Director of the Institute of Asian Cultures at the University of Windsor, whose areas of expertise include Sikh culture, reli­gion, and conflict resolution. The sole witness called by the Union was Jaswinder Mann, another of the Company's painters. In addition to their testimony, the Board has before it ten exhibits which were entered during the course of these proceedings. In making the findings and reaching the con­clusions set forth in this decision, the Board has carefully considered all of that oral and documen­tary evidence, the submissions of counsel, and the usual factors germane to credibility assessment, including the firmness of the witnesses' respective memories, their ability to resist the influence of self-interest to modify their recollections, the consistency of their evidence, and their demeanour. We have also assessed what is most probable in the circumstances of the case, and considered the inferences which may reasonably be drawn from the totality of the evidence.

10. For ease of exposition, the portions of Dr. Spellman's testimony most directly related to the various specific events to which these proceedings pertain will be quoted or summarized by the Board in paragraphs immediately following the Board's description of those events. However, in deciding this matter, the Board has duly considered not only those portions of his testimony, but also the balance of his evidence. Some parts of Dr. Spellman's evidence were of no assistance to us in these proceedings, as they were based upon the assumption that there had been a threat that persons who did not support the Union would be publicly censured or individually identified in the Temple. No such threat (or rumour of such threat) has been established by the evidence adduced before the Board in these proceedings. The value of other parts of his testimony will be com­mented upon later in this decision.

11. The respondent is in the business of performing top coat painting of plastic parts for the automotive industry. At the time of the vote, about 95% of the 101 employees on the voters' list were Sikhs, of whom only about 25% were sufficiently fluent in English to converse in it.

12. The aforementioned representation vote was held on February 28, 1991 from 1:30 to 5:30 p.m. at the Malton Community Centre (the "Centre"), which is about a ten minute drive from the respondent's plant. The voting area was located in an auditorium to which access was gained by proceeding through the lobby and along a hallway to the auditorium's double-door entrance. During the balloting, one of those doors was open and the other remained closed. The Board's (Form 69) Notice of Taking of Vote (the "Notice") was posted on the hallway side of the closed door. Mr. Owusu and Mr. Zimmer were the objectors' scrutineers at the vote. Mr. Owusu went in and out of the auditorium seven or eight times while the vote was being conducted. There was no mark on the Notice the first and second time he went out in the hallway. However, when he went out a third time, he noticed that someone had marked an "X" in the circle next to the "Yes" choice on the sample ballot included on that form. He immediately drew this to the atten­tion of Mr. Zimmer and the Board's Returning Officer, who removed the defaced notice forth­with.

13. After briefly describing the voting customs in India, in which marked ballots are com­monly circulated by political parties to their supporters to indicate for whom they are supposed to vote, and in which political leaders at the village or community level often hold up marked ballots to indicate to their followers how they are supposed to vote, Dr. Spellman replied as follows when asked how Sikh employees at Polytech who saw the aforementioned sample ballot might interpret the "X" marked on it:

The interpretation might be that this is either a directive from leadership as to the method, as to how you should vote. It might be that this is a consensus that has been reached, or this was the consensus that we reached at an earlier meeting, and remember to vote this way. Others might interpret it as a suggestion. In part, it would depend on other factors. It would depend, for example, on the recency of the arrival of the person. It would depend on the degree of literacy of the person. Persons who have been here a long time, used to Canadian electioneering, might see it that, you know, this is another electioneering pamphlet. So part of the issue, I think, would revolve around the recency of the immigrant's arrival and their acclimatization to the political system here. To the extent that they were seeing it as a reflection of Indian political patterns which they would recognise, then it would probably have a much stronger influence in governing or directing how they ought to vote as members of the group. But otherwise, I mean again, I cannot say and would not say that it would influence all persons to vote according to those instructions. But I think it is fair to say that it would probably influence some, depending on the degree to which they were influenced by Indian political voting patterns and behaviour.

However, Dr. Spellman's evidence on that matter is of little assistance to the Board in deciding this case, as the evidence adduced before us does not establish how many Sikhs saw that marked ballot, nor does it indicate the recency of their arrival or the extent of their acclimatization to the Canadian political system.

14. Mr. Owusu told the Board that in his opinion, Qamar Ghiassud, Satpal Uppal, Jaswin­der Mann, Jaspaul Singh, Kewal Singh, and Surinder Gill were in-plant organizers for the Union. It was initially his evidence that on the day of the vote those six people were standing in front of the auditorium doors along with two people who were not Company employees, calling Sikh employees over and talking to them for about ten to twenty minutes before the Sikh employees entered the auditorium to vote. However, during cross-examination he named only the first four of those six people as the ones who were in the hallway, along with the two non-employees who were unknown to him. Later in his cross-examination, he added that there was "one more guy" whose name he could not remember. He also told the Board that the in-plant organizers and the two non-employees were all there from about thirty minutes after the voting commenced until the time the voting concluded. Mr. Owusu further testified that he was unable to understand what they were saying because they were speaking in their native tongue. However, it seemed to him from the way they were using their hands that they were trying "to preach", "to convince", or "to say some­thing".

15. As one of the Company's two scrutineers, Mr. Turner was also present in the audito­rium during the vote. From his position at the scrutineers' table~ he was able to see part of the hall­way through the aforementioned open door. From that vantage point he observed that there were "a lot of people standing outside the door talking and just kind of hanging around the outside of the door", including three that he recognized: Jaswinder Mann, Satinderpal Singh, and a Sikh who had previously been a Company employee but was no longer working for Polytech.

16. Mr. Mann, who was the sole witness called by the Union in these proceedings, gave evi­dence that conflicted to some extent with that of Messrs. Owusu and Turner. The material portions of Mr. Mann's testimony may be summarized as follows. On the day of the vote, he was driven to the Centre around 1:45 p.m. by his friend and fellow employee Jaspal Rakkar. After arriving in the parking lot, Mr. Mann observed Mr. Owusu coming from the Centre. Mr. Mann was only in the Centre for two or three minutes, during which he saw some people in the lobby and a few other people in the hallway in front of the auditorium. None of those people were from Polytech and he did not know any of them. He waited outside the auditorium for twenty or thirty seconds, without talking to anyone, while Mr. Rakkar voted. They then left the Centre together prior to 2:00 p.m. and drove to the plant, arriving there in time for the commencement of their shift at 2:30 p.m.

17. In the circumstances of this case we find it unnecessary to resolve those evidentiary conflicts. Even if Mr. Owusu (and Mr. Turner) were mistaken about the length of time that Mr. Mann was present in the hallway, the remainder of their evidence concerning the presence and activities of other persons in the area immediately outside the auditorium remains uncontradicted. During her cross-examination of Mr. Owusu, Union counsel specifically challenged the credibility of his evidence concerning Mr. Ghiassud by telling him that Mr. Ghiassud would testify that he (Mr. Ghiassud) arrived at the vote at 3:45 p.m., went to the auditorium, observed Mr. Owusu to be the only person standing at the door, went into the auditorium to vote, and then sat in the lobby for the rest of the afternoon. Mr. Ghiassud was present at the Board throughout much of the hearing. However, he was not called as a witness, despite the fact that Mr. Owusu remained steadfast in his aforementioned assertions, and stated firmly and unequivocally that what Union counsel was put­ting to him was not true. Union counsel also told Mr. Owusu during cross-examination that Jag­roop Singh Dhaliwal would testify that when he arrived at the vote a little after 2:00 p.m., Mr. Owusu was the only person standing at the door. Mr. Owusu's response to that assertion was, "That isn't correct". Union counsel also put a number of other suggestions to Mr. Owusu, presum­ably on the basis of evidence which she anticipated Mr. Dhaliwal would provide to the Board, including the following:

Q. Well if I suggested to you that you brought him into the production office, and you again asked him to come and testify, and you said to him, "If you want to keep your job, you should come and testify that Qamar said, 'Respect your turban and vote for the union."' Just answer the question, please.

A. No. Absolutely no.

Q. And did you not say to him or remind him that Rick Turner and Steve Turner had told him that if the union got in, the plant would be closed and the work would be moved to the plant at Plasicoat, Dixon and Meyerside. Do you remember saying those words to him?

A. I never ever. I neverever.

Mr. Dhaliwal was not called to contradict any of Mr. Owusu's adamant denials of those sugges­tions (nor is there any other evidence before the Board that a member of management (or anyone else) made the assertions suggested in the above-quoted questions).

18. Having regard to all of the evidence, we are satisfied on the balance of probabilities that a group of Union supporters, including some of the in-plant organizers, stood immediately outside the auditorium throughout much of the time that the vote was being conducted and spoke at some length to many of the Company's Sikh employees before they entered the auditorium to vote. Although there is no direct evidence of what they said to those employees, it may reasonably be inferred from all of the circumstances, including the time, location, and manner of speaking described by Mr. Owusu, that they were attempting to convince them to vote in favour of the Union.

19. In commenting on the possible effect upon voters of what Mr. Owusu described in his evidence as having occurred in the hallway outside the auditorium on the afternoon of the vote, Dr. Spellman said there is a "reasonable likelihood" that it might have affected voter behaviour, but that he could not "say that it is a certainty or that it is very likely" without knowing what was said. Thus, Dr. Spellman's evidence is also of little assistance in respect of this aspect of the case.

20. During the course of the Union's organizing campaign, Ms. Grewal was invited to attend a Union meeting at the Singh Sabha Temple (the "Temple") on Airport Road in Malton. Ms. Grewal testified that although she is not opposed to unionization in all situations, she has been opposed to having a union at Polytech "from the start" because she is of the opinion that it is a good employer which provides satisfactory benefits to all of its employees. Mr. Kumar was also invited to attend a Union meeting at the Temple in February of 1991. That invitation was extended to him in a telephone call from Surinder Gill, another Polytech employee. Mr. Kumar, who is a Hindu, declined to attend that meeting because he thought that the "holy Sikh Temple" was not an appropriate place for a meeting of that type. In this regard he also told the Board, "I think that is not the proper place. That is a religious place, and [a] man can say anything or feel better to [do so] away from there, because that is a religious place."

21. Although neither Ms. Grewal nor Mr. Kumar attended that meeting, it appears proba­ble from the totality of the evidence that a Union meeting was held at the Temple sometime in February of 1991, and that a number of Polytech employees attended. The only evidence before the Board concerning what occurred at that meeting is hearsay evidence given by Mr. Owusu, who was told that Mr. Ghiassud, who is a Muslim, went to the Temple with some of the other in-plant organizers, put on a turban, and said, "In front of your God, respect your turban and vote for the union."

22. In attempting to obtain direct evidence of what occurred at that meeting, Mr. Van de Kamer and Mr. Hart (of counsel for Polytech) attended at the respondent's plant and met with forty-one of the Company's Sikh employees in groups of five to eleven employees to ask them, through a Punjabi interpreter, whether they attended a Union meeting at the Temple and, if so, whether they would be willing to speak with Mr. Hart privately about what happened at the meet­ing. None of them indicated that they had attended such a meeting, although some stated that they had attended or knew of a social function at which the Union had been discussed at the Temple. Some of them said that this social function took place in January or February of 1991, while others indicated that it took place in March of 1991, after the representation vote. The only employee who said anything to Messrs. Hart and Van de Kamer about a Union meeting at the Temple was Mr. Kumar, who advised them that he had been invited to a Union organizing meeting at the Tem­ple in January or February of 1991, but that he had chosen not to attend because he felt that it was not a proper location in which to hold such a meeting.

23. Part of the evidence which the respondent adduced through Dr. Spellman pertained to the significance of the Sikh Temple or "Gurdwara". He indicated that although it is essentially and fundamentally a religious centre, the Gurdwara is also the centre of the Sikh community. He expressed the opinion that for most Sikhs, the community is generally far more significant than the individual. He further indicated that the lives of practising Sikhs revolve around the Gurdwara, which is the paramount guide for Sikh activities, standards, and conduct. It was his evidence that unless a union meeting was understood to be a Sikh community event, it would not normally be the type of meeting that takes place in a Gurdwara. Thus, he testified that the holding of a union meet­ing at the Gurdwara "lends towards" the view that union organizing in respect of Polytech was a Sikh community issue, "but does not absolutely cement it". In commenting on the influence which merely knowing of a union meeting at the Gurdwara might have on Sikh employees at Polytech, Dr. Spellman said, "The fact that the meeting is held in the Gurdwara rather than in a cafeteria or in a hotel room or something like that could be influential and significant to some Sikhs but not necessarily to all Sikhs." When asked what influence attending such a meeting might have upon the voting behaviour of Sikhs in a vote about whether to have a union at Polytech, Dr. Spellman said, "If the understanding of those persons was that the decision made in the Gurdwara was essentially a community decision, a decision of the Sikh community, then they would very likely, probably, but not certainly feel bound to support the consensus of the community." After clarify­ing that by "decision" he did not mean a formal decision put to a vote but rather a general sense of agreement or consensus, he stated that "the fact of it being in the Gurdwara [and] the fact of it being understood to be a community decision of the Sikh community could be significantly influential in some Sikhs deciding they have a responsibility, an obligation, to not upset that pattern", and went on to say, "But I also add that it does not mean that all Sikhs at that meeting would take a position that they have an obligation. That would not be the case."

24. When Dr. Spellman was referred to the evidence about what Mr. Owusu had been told Mr. Ghiassud said at that meeting, ("In front of your God, respect your turban and vote for the Union"), he testified that this was "a religious appeal of a very high order because the turban, which is one of the five K's of Amritdhari Sikhs - of baptised Sikhs - is a very high order of appeal." He also stated: "It, in my judgment, would have a meaningful significance. When I say it would have a meaningful significance, I don't mean to say that it would be a governing signifi­cance. There might be some Sikhs there who could respond by saying, well, that is your opinion, in terms of the turban. But to all Sikhs an appeal through the turban is a high form of an appeal." When asked by respondent's counsel to more specifically relate his answer to whether or not that could have any influence on a vote in relation to the Union, Dr. Spellman said, "You have asked me if it could have an influence, and my answer is yes, it could have an appeal. It might have, but I could not say and would not say that it certainly in all cases would have." He also indicated that his answer would not differ if the person making the statement was a Muslim rather than a Sikh "be­cause the appeal is to a Sikh religious object or article of faith" and because "amongst Muslims also the turban has a very high significance".

25. Gill International Travel ("Gill Travel") is a travel agency owned by Ms. Grewal's hus­band, Darshan Grewal, and his brother, Lakhvinder Grewal. Gill Travel sells tickets to and from India and other locations. The only evidence adduced before the Board in respect of the above-quoted allegation regarding a threatened boycott of that travel agency is also entirely hearsay. Ms. Grewal testified that she was told by someone that someone else had told other people that if they did not support the Union, that individual would go to the Temple and tell everyone not to buy a ticket from Gill Travel. Ms. Grewal did not indicate who told her that, nor did she name or other­wise identify the person who supposedly made that threat or any of the people to whom it was sup­posedly made. She did, however, indicate that it had no effect on Gill Travel. After the Union won the vote, Ms. Grewal went to Mr. Zimmer's office along with Gurcharan Dhillon (who is her brother) and Mr. Owusu, to tell Mr. Zimmer what she had heard. Although Ms. Grewal did not know what Mr. Zimmer was going to do with that information, it may reasonably be inferred that she, her brother, and Mr. Owusu hoped that Mr. Zimmer would be able to use it (and the other information provided to him) for the purpose of getting the results of the vote set aside.

26. Dr. Spellman's evidence concerning the possible effect of that rumour was that it could cause considerable alarm to a person who had a relationship to the travel agency. He also testified that the existence of this rumour could evoke a similar response of alarm, apprehension, and anxi­ety on the part of other people concerned about that person's welfare. In commenting on the possi­bility of someone using the Gurdwara as a forum for announcing an intended boycott of a business, Mr. Spellman told the Board that "one is certainly capable of doing this in the Gurdwara either during the Langar or before the Langar, after Ardas, which is the final prayer which closes the for­mal part of the Sikhs' ceremony." After indicating that the Langar is "the community kitchen", he went on to say:

After the formal ceremonies are over, people generally will stand around having discussions and women will generally talk with women, men with men. There is also an opportunity at that time for various persons to get up and make public statements or statements that they would like people to know as a general matter of interest to the Sikh community. Now, if they were to make that kind of a statement in the Gurdwara at that time, for one thing I think people in the Gurdwara, if the statement was made formally and officially from the lectern, would find it a pretty low blow to be making that. I mean that is a personal attack, but if it were simply as a part of the gossip and chatting and rumour that goes on, a person knows that that would have impact. Not everyone would agree with it, not everyone would decide that because they did not support the Union they would not buy tickets. Those who were solicitors of the family and the family business might urge them to change their attitudes in their own interest and support the Union because it is now tied to their family, and families. Sikh families are not just nuclear they are extended....

27. During cross-examination, Dr. Spellman confirmed that it has never been his position that all Sikhs are going to act in a "monolithic way" on every issue. When Union counsel asked him if it was his evidence that "not every Sikh would see a sample ballot, the presence of the in-plant organisers, and the rumour about the travel agency as a browbeating and direct act of coer­cion", he replied:

No. That is not my evidence. My evidence is, it might still be considered as browbeating and coercion, but that does not mean that every Sikh is going to be governed by that and that there may well be some who, in spite of browbeating and threats and so forth, are still going to stand up to that and vote independently. What I am saying is that the balance of probabilities, given the Sikh community and culture values and so forth, is that some will be.

28. The instant case was argued very thoroughly and ably by counsel for the respondent and counsel for the applicant. It is unnecessary to detail in this decision their submissions which, as indicated above~ occupied two days of hearing. The essence of the respondent's position is that a coercive "climate of fear" has been created in which it is unlikely that the true wishes of the employees have been revealed by the representation vote. The orders sought by the respondent include a negation of the vote, a six-month bar, a three-year prohibition of campaigning or office holding by Messrs. Ghiassud and Mann (and other individuals named in the statement of desire) in respect of any union which may be certified at Polytech, and a posting (in English and Punjabi). In the alternative, the respondent asks the Board to negate the vote, order a "cooling off period" of six months during which the Union would be prohibited from organizing at Polytech, prohibit Mr. Ghiassud, Mr. Mann, and other organizers from campaigning or holding Union office to the extent described above, order that a new representation vote be held some time after the cooling off period, and order a posting immediately after the end of that period. Counsel for the Union, on the other hand, contends that the allegations contained in the statement of desire have not been proven, submits that the representation vote does provide a reliable indication of the true wishes of the employees, and asks the Board to certify the applicant on the basis of that vote. Counsel also requested the Board to depart (in conflicting ways) from its normal practice concerning voter eligi­bility, in the event that a new vote was ordered.

29. Although during the course of argument counsel referred the Board to a number of dif­ferent sections of the Act (including sections 3, 7, 8, 48 (formerly section 47), 59 (formerly section 58), and 71 (formerly section 70)), the principal issue before the Board in these proceedings is not whether any particular section of the Act has been contravened, but whether the Board should set aside the representation vote conducted on February 28, 1991, and direct that a further representa­tion vote be held. The discretion to do so is given to the Board by section 105(5) (formerly section 103(5)) of the Act, which provides:

Where the Board determines that a representation vote is to be taken amongst the employees in a bargaining unit or voting constituency, the Board may hold the additional representation votes as it considers necessary to determine the true wishes of the employees.

30. The approach which the Board has generally adopted in dealing with requests for the setting aside of representation votes is described as follows in Greb Industries Limited, [1979] OLRB Rep. Feb. 89:

14. In evaluating conduct which leads up to the holding of a representation vote so as to determine whether that vote ought to be set aside, the Board has sought to establish whether the employees were capable of freely expressing their wishes in that representation vote. The party which seeks to set aside a representation vote is required to establish that the impugned conduct has deprived the employees of the ability to freely express their true wishes. See the Alcan Building Products Limited case, [1971] OLRB Rep. Dec. 806. The effect of impugned conduct upon the employees is determined by looking at the objective facts of what has occurred and drawing reasonable inferences as to what is the more probable effect of such conduct upon the employees in all the circumstances, see the Wolverine Tube Division of Calumet & Hecla of Canada Ltd., case 63 CLLC ¶16,296. This is an objective test. The Board's approach is to deter­mine the likely effect of the impugned conduct upon an employee of average intelligence and fortitude.

31. Reference may also usefully be made to Atlas Specialty Steels, [1991] OLRB Rep. June 728, in which the Board wrote, in part, as follows:

18. In Concorde Metal Stampings [1987] LRB Rep. Jan. 34, the Board made the following comments:

30. ... Where the applicant union, as an institution, suggests that employees will be penalized because of the free exercise of their franchise, the Board may also be inclined to intervene. However, where the allegations concern friction between rank and file employees, the effective administration of the Act and the achievement of its objectives requires a recognition of the fact that for some employees, union represen­tation can be a volatile and emotional issue. Debate may degenerate into bad feel­ings, ruined friendship and recriminations. While the Board always has the authority to set aside a representation vote and order a new one, that is not a neutral decision, nor one which should be lightly taken and in our view should not be taken unless the occurrences are so serious and pervasive as to render improbable a reliable expression of employee wishes despite the sanctity of the ballot box.

19. And finally in Northfleld Metal Products Ltd. [1989] OLRB Rep. Jan. 57, the Board set out the oral decision it had given at the hearing as follows:

3……The Board is of the unanimous view that no evidence need be heard as the alle­gations,' on the assumption they are true, would not lead us to grant a new vote. The test as applied by the Board is whether or not the actions complained of are coercive or destroy the secrecy of the ballot. The test is not based on the most gullible or the most firm voter, but the reasonable voter who is possessed of critical faculties and the ability to assess issues and inquire on his or her own behalf.

20. Whichever phrasing one prefers, the essential approach and concern remain the same. A new representation vote will not be directed unless the circumstances were such that the Board concludes that, despite the secrecy and reliability of the ballot box, the vote was not likely to have been a reliable expression of the employees' wishes....

See also Allied Signal Automotive of Canada Inc., [1989] OLRB Sept. 927, and United Plastic Components Ltd., [1984] OLRB Rep. Nov. 1636.

32. Some of the Board's earlier decisions in this area, including a number of those cited by respondent's counsel during the course of his submissions, are of limited assistance, as they were decided during an era in which it was the practice of the Board's Registrar to invariably impose a "silent period" prior to the vote, by directing all interested persons to refrain and desist from pro­paganda and electioneering during the day the vote was taken and for seventy-two hours before that day, pursuant to section 68(j) the Board's Rules of Procedure. (See, for example, Anderson Metal Industries Inc., [1981] OLRB Rep. Apr. 415; X D G Limited, [1975] OLRB Rep. Dec. 936; and Wackenhut of Canada Limited, [1975] OLRB Rep. Oct. 738.) On the basis of many years of experience, the Board gradually came to be of the view that such directions created more problems than they solved. (See, for example, the concurring opinion of Board Members Wightman and Cooke in Tops Food Market, [1982] OLRB Dec. 1951.) Thus, the policy of imposing a "silent period" in every case was altered on a trial basis in July of 1983. On November 29, 1984, the Board notified the labour relations community, by means of the following policy statement, that it had decided to adopt as its regular practice the policy of not imposing a "silent period":

BOARD POLICY RELATING TO THE SILENT PERIOD

In July of 1983, the Board reviewed its policy relating to the normal 72 hour "silent period" pre­ceding a representation vote and was of the opinion that litigation over alleged breaches of the "silent period" often prolonged certification proceedings unnecessarily. The Board concluded that the imposition f a "silent period" before a representation vote should be dispensed with, but considered it advisable to implement this change of policy for a trial period of one year. Having closely monitored the impact of the change during this trial period, the Board has decided to adopt the policy of not imposing a "silent period", as its regular practice. The Regis­trar of the Board, nevertheless, retains the right under section 68(j) of the Board's Rules of Pro­cedure to impose a "silent period" in particular cases.

The Board reiterates that the dispensation of the "silent period" should not be seen as permit­ting "wide open" campaigns by parties to a vote. Rather, it is intended to eliminate litigation over technical violations. The Board will, of course, continue to deal with any submissions or complaints alleging that a representation vote has been improperly affected by the conduct of the parties or other persons.

No such direction was requested or made in respect of the vote held on February 28, 1991 in the instant case.

33. The Board has consistently refused to apply a different standard for employees of dif­ferent ethnic backgrounds in evaluating evidence related to membership evidence and participation in Board processes such as representation votes. In Dylex Limited, [1977] OLRB Rep. June 357 (application for judicial review dismissed: Re Marques et al. v. Dylex Ltd. et al. (1977), 1977 CanLII 1157 (ON HCJ), 81 D.L.R. (3d) 554 (Div. Ct.)), the Board wrote as follows in rejecting an argument that, in determining (among other things) whether or not the true wishes of the employees were likely to be ascertained by a representation vote, the Board should take into account that many of the bargaining unit employees were immigrants:

5 The Board is called upon with ever increasing frequency to concern itself with bargaining units comprised to a greater or lesser extent of fairly recent immigrants to Canada and it is not uncommon to have such persons testify for one reason or another before the Board. Our experi­ence in this regard has taught us that employees who are immigrants are not, only because they are immigrants, somehow more easily influenced or more incapable of making their own deci­sions than are other employees. Some individuals appear to be possessed of greater fortitude than do others. Similarly there are some individuals who by their very nature may be easily influenced and who tend to perceive threats in circumstances where most others would not. However, these are reactions which appear to be based on individual temperament and charac­ter rather than on any general characteristics of language or former country of residence. This being the case we are of the view that no inferences can be drawn as to the possible susceptibil­ity to influence of employees in the bargaining unit on the grounds only that many of them immigrants from abroad.

See also Northfleld Metal Products Ltd., [1989] OLRB Rep. Jan. 57, and the other decisions cited in paragraph S thereof.

34. We respectfully agree with those decisions and find nothing in the instant case that war­rants a departure from that approach. A majority of the panel (with Board Member Grasso dis­senting) decided to permit the respondent to call Dr. Spellman as an expert witness because we were persuaded that at least some of the evidence which respondent's counsel sought to adduce through him was of arguable relevance to matters in issue in these proceedings. Although Dr. Spellman is obviously quite knowledgeable regarding Sikh culture, religion, and dispute resolution, and gave his evidence in a very professional, thorough, and fair- minded manner, the Board has found it to be of little assistance in deciding this matter for the reasons indicated in paragraphs 10, 13, and 19 of this decision, and for the following further reasons. Dr. Spellman's evidence regard­ing the significance of a union meeting being held in the Temple, was merely that it "could be" influential and significant to "some" Sikhs. Moreover, his suggestion that some Sikhs might feel that they had a responsibility or obligation to vote for the Union was premised on there having developed a consensus within the Sikh community that the Sikhs employed at Polytech should sup­port the Union. We are not satisfied on the evidence adduced before us that any such community consensus did in fact develop. Moreover, even if it did, such consensus would really amount to nothing more than a somewhat heightened form of peer pressure. The Board has long recognized that peer pressure is operative, to a lesser or greater extent, in most union organizing campaigns, and has generally found it to be irrelevant to the reliability of membership evidence or the results of a representation vote: see, for example, National News Company Limited, [1990] OLRB Rep. Aug. 870, at paragraph 16, and Baltimore Aircoil Interamerican Corporation, [1982] OLRB Rep. Oct. 1387, at paragraph 49. Nothing in the circumstances of this case warrants the adoption of a different approach by the Board.

35. As noted above, the only evidence adduced before the Board in support of the allega­tions contained in paragraph 3 of the statement of desire was the hearsay evidence of Ms. Grewal that an unidentified person told her that another unidentified individual told other unidentified people that if they did not support the Union, that individual would go to the Temple and tell everyone not to buy a ticket from Gill Travel. Although the Board has a discretion (under section 15(1) of the Statutory Powers Procedures Act) to act upon hearsay evidence (and other evidence inadmissible in a court), the Board generally declines to do so in the absence of compelling reasons (such as the statutorily recognized desirability of protecting the identity of persons who sign mem­bership cards, petitions, or counter-petitions: see section 113(1) of the Labour Relations Act). The unidentified person who told Ms. Grewal about what another unidentified individual supposedly said has not been placed under oath nor subjected to cross-examination to test such pertinent mat­ters as his or her perception, memory, and credibility. Thus, giving probative weight to such evi­dence would create an obvious unfairness to the opposing party, which cannot meaningfully cross-examine upon it and thereby test its accuracy and reliability. Nothing in the circumstances of the instant case persuades the Board to depart from its usual practice in that regard. Moreover, even if we were to rely upon Ms. Grewal's hearsay evidence as establishing that someone had made a threat of that type, there is no evidence linking that threat to any Union official or in-plant organ­izer, nor is there anything before the Board which would warrant a finding that the existence of such threat likely affected the vote in a material way.

36. If the making of such threat had been duly proven, Dr. Spellman's evidence concerning the manner in which it could be carried out in the Temple might have been of some assistance to the Board in assessing the potential impact of such threat, although most of his evidence concern­ing its potential effect is simply the equivalent of what one would reasonably presume or infer in any event.

37. Our comments concerning the alleged Gill Travel boycott threat are equally applicable to what Mr. Owusu testified he had been told Mr. Ghaissud said at the Union meeting held in the Gurdwara. The Board is not prepared to give any weight to that hearsay evidence in the circum­stances of this case. Moreover, in the absence of any evidence concerning such material matters as the identity of the person or persons to whom the statement was directed, the number of Sikh employees in attendance at the meeting, the seriousness with which the statement was made, and the reaction, if any, which it elicited from employees at the meeting, the Board would not be in a position to meaningfully assess the probable impact of such statement in any event. Although parts of Dr. Spellman's evidence could potentially have been of some assistance in understanding the significance of the statement in the context of Sikh religion and culture, his opinion that it "could" or "might" have an appeal is of no real assistance. Indeed, that response and the other similar ones described above reflect the inherent weakness of expert testimony of this type, which must of necessity be confined to largely unhelpful generalizations.

38. For the foregoing reasons, the Board has concluded that nothing has been established by cogent evidence as having occurred prior to the day of the vote which would prompt the Board to direct a new vote. We turn next to a consideration of the events which occurred on the day of the vote. The fact that the sample ballot was defaced in the manner described above does not war­rant the holding of a new vote. It appears from the evidence that the defaced ballot only remained on the auditorium door for a relatively short period of time and there is no evidence that any of the voters other than Mr. Owusu (who was clearly not affected by it) saw it, much less that they were in any way influenced by it. As soon as he observed the defaced ballot during his third of seven or eight trips out into the hallway, Mr. Owusu drew it to the attention of Mr. Zimmer and the Board's Returning Officer, who removed it forthwith. Although it may reasonably be inferred that the sample ballot was defaced in that manner by a Union supporter, there is no evidence before us that it was done by a Union official or in-plant organizer. Moreover, although it was a breach of the defacement prohibition included in the Notice, we are of the view that the defacement of the sample ballot was not coercive and did not create a situation in which the vote was unlikely to have been a reliable expression of the employees' wishes. (For a case in which the Board declined to direct a new representation vote on the basis of a similar defacement, see Northfield Metal Products, [1989] OLRB Rep. Jan. 57, at paragraph 6.)

39. We are, however, somewhat troubled by the other impugned occurrence on the day of the vote. As indicated above, we are satisfied on the balance of probabilities that a group of Union supporters, including some of the in-plant organizers, stood immediately outside the auditorium throughout most of the time that the vote was being conducted and spoke at some length to many of the Company's Sikh employees before they entered the auditorium to vote. As further indicated above, although there is no direct evidence of what they said to those employees, it may reason­ably be inferred from all of the circumstances, including the time, location, and manner of speak­ing described by Mr. Owusu, that they were attempting to convince them to vote in favour of the Union. During the aforementioned era in which the Board (through its Registrar) imposed a "si­lent period", conduct of his type would undoubtedly have prompted the Board to direct a new vote. (For an example in which the Board did so in a somewhat similar situation, see Anderson Metal Industries, [1981] OLRB Rep. April 415.) However, in the absence of a direction prohibiting it, a union and its supporters are at liberty to engage in propagandising and electioneering on the day of the vote, so long as their activities are not intimidatory, coercive, or otherwise destructive of the employees' freedom to vote as they wish on the matter of union representation.

40. The circumstances of the instant case fall close to the line. A union which permits its organizers or supporters to congregate immediately outside the voting area while the vote is in pro­gress and to engage in electioneering or propagandising at that time and location risks not only lengthy proceedings before the Board, but also the possibility of a new vote if the statements made to the employees are intimidatory, coercive, or otherwise destructive of their freedom of choice. It is not beyond the realm of possibility that intimidatory or coercive statements were made to Sikh voters by one or more members of the aforementioned group in the instant case. However, it is at least equally likely that they merely discussed with them what they perceived to be the advantages of unionization. On balance, we have concluded that the evidence adduced before us does not war­rant a finding that their conduct was intimidatory, coercive, or otherwise preclusive of the vote being a reliable expression of the employees' true wishes.

41. For the foregoing reasons, the request for a new representation vote (and the other relief described above) is hereby denied.

42. A certificate will issue to the applicant for the following bargaining unit:

all employees of the respondent in the City of Mississauga. save and except supervisors, persons above the rank of supervisor, office and sales staff, persons regularly employed for not more than twenty-four (24) hours per week and students employed during the school vacation period.

DECISION OF BOARD MEMBER D. G. WOZNIAK; March 5, 1992

1. I dissent from the majority decision.

2. The majority decision contains an excellent, detailed and fair exposition of the facts in this matter and therefore, it is not necessary to repeat them in this dissent except to record that I give greater weight and reach different conclusions concerning certain events.

3. In my opinion, there was intimidation and coercion of the Polytech employees in a number of instances cited in the evidence, but there were two major events which illustrate the conclusion I have reached:

i) The events surrounding the vote and in particular the marked sample ballot, the congregating of union in-plant organizers and the accost­ing of voters at the entrance to the polling area during most of the time that the vote was conducted. I have inferred that these activities were intended to influence Sikhs to vote in favour of the union. As an aside, I would add that the mere fact that there were at least six (6) individuals at the entrance by itself would be intimidating;

ii) The union meeting held at the Gurdwara. Dr. John W. Spellman, the expert witness, who gave the Board an excellent understanding of the complexities of Sikh culture and religion, testified that holding a union meeting in the Gurdwara could influence some Sikhs to vote in favour of the union. While the majority of the Board did not give weight to this event or Dr. Spellman's testimony on this issue, I feel it has been underrated as it relates to the "climate" which prevailed during the union organization drive up to and including the vote. In matters of this nature, when dealing with such notions as culture, individuals' responses to cultural pressures, etc., it is impossible to be specific. Even though Dr. Spellman's testimony was couched in conditional terms, I would give it greater weight.

4. The evidence is, in my opinion, sufficiently strong to justify a finding of intimidation or coercion which contravened section 71 [formerly section 70] of the Labour Relations Act, and which resulted in the true wishes of the Polytech employees not being determined by the represen­tation vote conducted on February 28, 1991.

5. Accordingly, I would exercise the discretion in section 105(5) [formerly section 103(5)] and order a new vote to be conducted. Legal counsel for the respondent requested that the Board order a "cooling-off' period before a vote should the Board order one. I do not agree that a "cool­ing-off' period is necessary as this matter has been pending now for over a year and in effect there has already been a "cooling-off' period. I would order that the new representation vote be con­ducted as expeditiously as possible.

6. Legal counsel for the respondent also requested an order barring the in-plant union organizers from campaigning or holding union office for a period of time. I do not agree with this request; I believe it is unprecedented in labour jurisprudence and I do not see sufficient reason for changing the practice of the Board.

7. With respect to the question of who should be eligible to vote, I would hear representa­tions from the parties as no doubt the labour force at Polytech has changed, perhaps significantly, since the original vote.