United Steelworkers of America v. Hemlo Gold Mines Inc., 1993 CanLII 7830

[1993] OLRB Rep. March 158

3051-92-R United Steelworkers of America, Applicant v. Hemlo Gold Mines Inc., Responding Party v. Group of Employees, Intervenors

BEFORE: Robert D. Howe, Vice-Chair, and Board Members W. A. Correll and C. McDonald.

APPEARANCES: Marie Kelly, Wes Dowsett and Jerry Doucette for the applicant; William G. Shanks and John A. Keyes for the responding party; Janice Gillespie, LaRoy Mackenzie, Wayne Mackenzie and David Odorizzi for the intervenors.

DECISION OF THE BOARD; March 30, 1993

1. This is an application for certification.

2. Seven copies of the application (as required by Rule 7 of the Board's Rules of Procedure) were delivered to and received by the Board on January 25, 1993, which thus became the application filing date by virtue of Rule 8, which provides:

The date of filing is the date a document is received by the Board or, if it is mailed by registered mail addressed to the Board at its office at Toronto, the date on which it is mailed, as verified in writing by the Post Office. However, the date of filing in cases brought under sections 11.1,41, 731, 73.2, 92.1, 92.2, 93. 94. 95, 126 and 137 of the Act is the date the document is received by the Board.

Those seven copies were accompanied by 133 applications for membership (also referred to in this decision as the "Union cards", for ease of reference), a list of employees (in alphabetical order) corresponding with the Union cards, and a (Form A-4) Declaration Verifying Membership Evi­dence. Thus, the applicant (also referred to in this decision as the "Union") complied with the requirements of Rule 43, which provides:

An applicant for certification as bargaining agent must also file not later than the application fil­ing date:

(a) any membership evidence relating to the application;

(b) a list of employees, in alphabetical order, corresponding with the membership evi­dence filed;

(c) a declaration verifying the membership evidence filed in the form set by the Board.

3. On January 26 the Board's Registrar sent notice of the application (on Form B-5) to the responding party (also referred to in this decision as the "Company"), together with (Form B-4) Notices to Employees of Application for Certification and of Hearing, for immediate posting where they were most likely to come to the attention of all employees who might be affected by the application. The Form B-4 notices are printed on green paper and, accordingly, are often referred to as the "green sheets". Those materials were sent to the Company at the address provided by the Union (in paragraph 1(c) of its application): 4 King Street West, Suite 900, Toronto, Ontario, M5C 2Z9. Although that address was incorrect, the materials were received by the Company on Thursday January 28 in the late afternoon at its Head Office located at 1 Adelaide Street East, Toronto.

4. The Company's employees for whom the Union seeks bargaining rights work at the Company's mining claim site (the "site") which is located approximately 36.5 kilometers east of the town of Marathon. In order to have the Form B-4 notice posted at the site as quickly as possi­ble, a copy was faxed from the Company's Head Office to the site and the facsimile (on white paper) was posted at the site around noon on Friday January 29. The Company also arranged for the original "green sheets" to be couriered to the site and posted on Monday February 1.

5. The Form B-4 notices that were posted in the manner described above read as follows:

File No. 3051-92-R

Form B-4

LABOUR RELATIONS ACT

NOTICE TO EMPLOYEES OF APPLICATION FOR CERTIFICATION

AND OF HEARING

BEFORE THE ONTARIO LABOUR RELATIONS BOARD

Between:

United Steelworkers of America,

Applicant,

• and -

Hemlo Gold Mines Inc.,

Responding Party.

TO THE EMPLOYEES OF:

Hemlo Gold Mines Inc.

The applicant, applied on JANUARY 25, 1993 to the Ontario Labour Relations Board for certification as bargaining agent of employees of Hemlo Gold Mines Inc. in the following unit:

"All employees of the Responding Party at Hemlo (Highway 17, approxi­mately 36.5 kilometres east of the Town of Marathon), save and except Supervisors, persons above the rank of supervisor, offlce,* clerical,* techni­cal, sales and security staff and students employed during the school vaca­tion period."

*For Clarity, office and clerical staff includes employees employed in the warehouse.

Note: The Board may decide that the appropriate bargaining unit is different from the one proposed by the applicant.

2. The terminal date set for this application is FEBRUARY 2, 1993.

3. If you wish to participate in these proceedings, you must notify the Registrar in writ­ing by the terminal date, and include your name, address and telephone number and the Board file number.

4. If you filed evidence of objection or re-affirmation relevant to this application by the application date, you must appear at the hearing in person or by a representative and present evidence that includes testimony from your or their personal knowledge as to the circumstances of the written evidence, including how it was created and the way in which each signature on the document was obtained. The Board may decide an appli­cation without considering the evidence of objection or evidence of re-affirmation of any employee who does not appear as required. The Board will not consider oral membership evidence, or oral evidence of objection or re-affirmation, except to identify written evidence filed by the application date in the manner required by the Rules and the Labour Relations Act.

5. Other relevant statements, if any:

n/a

6. A meeting with a Labour Relations Officer will take place at the Icelandic Room, Val­halla Inn, 1 Valhalla Inn Road, Thunder Bay, Ontario, on WEDNESDAY, FEBRU­ARY 17, 1993, at 09:30 A. M. for the purpose of trying to settle all or part of this case If the case Is not already settled by that date.

7. The hearing of the application will take place at the "Board Room", 6th Floor, 400 University Avenue, Toronto, Ontario, ON MONDAY, FEBRUARY 22, 1993, AT 9:30 A.M. If the case. Is not already settled by that date, and It will continue on consec­utive days from Monday to Thursday, excluding Fridays and holidays until completed or as the Board otherwise directs.

THE PURPOSE OF THE HEARING is to hear the evidence and representations of the parties with respect to all matters relating to the application referred to in para­graph (1).

DATED January 26, 1993. -

T. A. Inniss

Registrar

Ontario Labour Relations Board

NOTE: All communications should be addressed to:

The Registrar

Ontario Labour Relations Board

4th Floor

400 University Avenue

Toronto, Ontario

M7A1V4

(416) 326-7500

IMPORTANT NOTE

IF YOU DO NOT FILE YOUR RESPONSE AND OTHER REQUIRED DOCUMENTATION IN THE WAY REQUIRED BY THE RULES, THE BOARD MAY NOT PROCESS YOUR RESPONSE AND DOCUMENTS, AND MAY DECIDE THE APPLICATION WITHOUT FUR­THER NOTICE TO YOU. FURTHERMORE, YOU MAY BE DEEMED TO HAVE ACCEPTED ALL THE FACTS STATED IN THE APPLICATION.

THE BOARD'S RULES OF PROCEDURE DESCRIBE HOW A RESPONSE (WHICH INCLUDES AN INTERVENTION) MUST BE FILED WITH THE BOARD, WHAT INFORMA­TION MUST BE PROVIDED AND THE TIME LIMITS THAT APPLY.

PLEASE CONSULT THE BOARD'S RULES OF PROCEDURE BEFORE COMPLETING YOUR RESPONSE. COPIES OF THE BOARD'S RULES MAY BE OBTAINED FROM THE BOARD'S OFFICE LOCATED ON THE 4TH FLOOR AT 400 UNIVERSITY AVENUE, TORONTO, ONTARIO (TEL. (416) 326-7500).

IF YOU DO NOT A'ITEND THE LABOUR RELATIONS OFFICER MEETING OR THE HEARING, THE BOARD MAY DECIDE THE APPLICATION WITHOUT FURTHER NOTICE TO YOU AND WITHOUT CONSIDERING ANY DOCUMENT YOU MAY HAVE FILED.

YOU HAVE THE RIGHT TO COMMUNICATE WITH AND RECEIVE AVAILABLE SERVICES FROM THE BOARD IN EITHER ENGLISH OR FRENCH.

PLEASE INDICATE WHETHER YOU WILL REQUIRE ANY SPECIFIC SERVICES, INCLUDING TRANSLATION SERVICES FOR WITNESSES, OR SERVICES FOR PERSONS WHO ARE HEARING OR VISION IMPAIRED OR OTHER SERVICES. THE BOARD WILL ATTEMPT TO ACCOMMODATE YOU, BUT MAY NOT BE ABLE TO MEET YOUR SPE­CIFIC REQUESTS(S).

6. A number of the employees found that notice difficult to understand. Some of them attempted to gain more information by calling the Board. Instrument Technician LaRoy MacKen­zie telephoned the Board on two occasions but encountered a busy signal each time he called. Another employee succeeded in reaching the Board but, after being switched to four different peo­ple, was told that the Board could not provide him with any legal advice concerning the applica­tion.

7. On the evening of January 29, a group of employees met at the home of one of the Company's miners and discussed signing a petition in opposition to the Union, with the intention of forwarding it to the Board. Petitions addressed to the Board's Registrar were drafted, and nine employees proceeded to sign up a total of 119 employees that evening and during the next three days. All but nine of those signatures are on petitions which read: "We the undersigned employees of Hemlo Gold Mines Inc., would like to file an official evidence of objection against the applica­tion for certification of the United Steelworkers of America. File No. 305 1-92-R." The other nine signatures are on petitions which have the following heading (below the name, address, and tele­phone number of the Board):

We the undersigned employees of Hemlo Gold Mines Inc. are giving written notification that we want our union cards revoked, we have tried on several occasions to get through at the above listed number to no avail. Please accept this as our notification that we do not support the United Steelworkers Of America in their attempt to unionize Hemlo Gold Mines Inc.

A committee was also formed and given the name "Employees of Hemlo Gold Mines for a Demo­cratic Choice". Mr. MacKenzie was elected Chairman of the Committee and was instructed to con­tact a labour lawyer. On the morning of Monday February 1, after attempting without success to telephone several labour lawyers in Thunder Bay, he reached one who, after making some initial inquiries, advised Mr. MacKenzie that he had a conflict of interest as he had previously repre­sented the Union. That lawyer gave Mr. MacKenzie the name of another lawyer, Peter T. Hol­linger. Mr. MacKenzie succeeded in contacting Mr. Hollinger later that day and made an appoint­ment to see him on the following day. Mr. MacKenzie travelled over 300 kilometres to reach Mr. Hollinger's office. As a result of the instructions which Mr. MacKenzie gave him, Mr. Hollinger filed an Intervention (on Form A-3) on behalf of Mr. MacKenzie and the other members of the aforementioned group of employees. That intervention was filed with the Board (by registered mail) on February 2, along with the aforementioned petitions, a notice of motion, and a supporting affidavit sworn by Mr. MacKenzie. The notice of motion requests the following orders:

1. [An order that the] Board extend the Application Filing Date to February 2, 1993 to allow the Employees to file the Statements of Desire prior to the Application date pursuant to Rule 27 of the Rules of Procedure of the Ontario Labour Relations Board. January, 1993.

2. An Order that the "Application Filing Date" be deemed to be the "Terminal Date" in the present application pursuant to Rule 43 of the Rules of Procedure.

3. An Order permitting the Intervenor Group of Employees to intervene in the Applica­tion for Certification pursuant to Rule 26 of the Rules of Procedure.

4. An Order directing the hearing of this application to be heard in the City of Thunder Bay at a time and place to be set by the Board.

5. Also filed by registered mail on February 2 was the Company's (Form A-2) response to the application. In that response the Company (through its counsel, William G. Shanks) requested the Board to dismiss the application on the following grounds, as set forth in paragraph 11 of the response:

11(a) This responding party denies the applicant has presented its application properly before the Board in that;

(i) it lacks the necessary employee support in the appropriate bargaining unit;

(ii) it has not filed proper and sufficient membership evidence relating to the application;

(iii) it has failed to comply with the Rules in setting out the section under which the application has been made;

(iv) the applicant is not a trade union the Board should recognize;

(v) the applicant failed to notify the necessary parties to this application in a timely fashion and in failing to do so is attempting to deny the employees of the responding party of their rights to be heard;

(vi) the applicant failed to comply with its own constitution, charter or prac­tices, in failing to obtain consideration when soliciting members, and that such constitution is contrary to Ontario and Federal Law; and

(vii) failed to file evidence of membership prior to this application being com­menced such that there is no membership evidence in support of this appli­cation.

11(b) This proceeding was commenced in 1992, prior to Bill 40 coming into force January 1, 1993 and accordingly, since the substantive law was changed this application should properly be determined using the law at the time of commencement of the applica­tion.

11(c) This responding party requires further details of the application, evidence and sup­port of the application, and documents before any greater particularity can be stated relative to its objection to the application and the facts on which it will rely at the hearing.

9. In a letter faxed to the Board on February 10, Mr. Hollinger reiterated his request that the hearing be held in Thunder Bay, advised the Board that an associate, Janet Gillespie, would be attending the hearings on his behalf due to his unavailability, and requested that a Court Reporter be present at the Board hearing so that a transcript of the proceedings could be made available. Mr. Hollinger's office was subsequently advised by the Board's Deputy Registrar that the hearing would be held in Toronto, that the Board does not provide Court Reporters or transcripts, and that he could bring anyone he wanted to the hearing to take notes.

10. The considerations which form the basis of the Board's practice of not using verbatim reporters or otherwise producing transcripts of its proceedings are set forth in John Kohut, [1990] OLRB Rep. Oct. 1042, at paragraphs 14 to 21, and need not be repeated in this decision. All that need be noted here is that the verbatim reporter who was in attendance at the hearing of this appli­cation on February 22, 23, and 24, 1993, was present through private arrangements between the reporter and intervenors' counsel, and was not transcribing the proceedings on behalf of the Board. Thus, any transcript prepared by the reporter does not constitute an official record of the proceedings.

11. As regards the request that the hearing be held in Thunder Bay, it should be noted that the location in which a Board hearing is to be held is an administrative matter for determination by the Registrar, in consultation with the Chair of the Board. In order to expedite the hearing of certi­fication applications and certain other highly time-sensitive matters, the Board has administra­tively extended the fast-track hearing system (which is mandatory for certain section 91 complaints by virtue of section 92.2 of the Labour Relations Act) to include certification cases and those other time-sensitive matters. Thus, certification cases (including the instant case) are scheduled to be heard on consecutive days, excluding Fridays, Saturdays, Sundays, and holidays, until the hearing is completed, or as otherwise directed by the Board (which, under Rule 34, may adjourn a case on such terms as it considers advisable if it considers that the adjournment is consistent with the pur­poses of the Act). Funding and personnel limitations render it impossible for the Board to schedule fast-track cases outside of Toronto, as the system involves having on standby for fast-track and other expedited cases a rotating pool of Vice-Chairs and Board Members who, as cases settle or finish being heard, are frequently re-assigned to other urgent matters, often on a rush basis which would not be possible if a fast-track panel were in a location away from Toronto such as Thunder Bay. (Within the limits of its resources, the Board accommodates the legitimate interests of parties in minimizing the time and cost of their involvement in certification proceedings by scheduling and holding Labour Relations Officer's settlement meetings (such as the one held in Thunder Bay on February 17, 1993, in respect of this application) in regional centres such as Windsor, Ottawa, and Thunder Bay.)

12. On or about February 16, Ms. Gillespie caused the following Notice of Constitutional Question to be served on the Attorney General of Ontario and the Attorney General of Canada (with copies to the Board, the Union, the Company, and Company counsel):

File No. 3051-92-R

LABOUR RELATIONS ACT

INTERVENTION

BEFORE THE ONTARIO LABOUR RELATIONS BOARD

BETWEEN:

UNITED STEELWORKERS OF AMERICA

Applicant,

• and -

HEMLO GOLD MINES INC.

Responding Party,

NOTICE OF CONSTITUTIONAL QUESTION

THE INTERVENOR, LaRoy MacKenzie, on behalf of a Group of Employees of the Respond­ing Party, intends to question the constitutional validity of Section 8(4) of the Ontario Labour Relations Act, 5.0. 1992, C. 21 and Rule 47 of the Rules of Procedure, January, 1993, in a motion to be heard on Monday, the 22nd day of February, 1993 at 9:30 a.m. at the "Board Room", 6th Floor, 400 University Avenue, Toronto, Ontario.

THE FOLLOWING are the material facts giving rise to the constitutional question:

1. On or about the 29th day of January, 1993, the employees at the Hemlo Golds Mines Inc. work place heard by word of mouth that a notice had been posted at the work place indicating that the United Steelworkers of America had applied to certify the work place. The notice indi­cated that the Terminal Date was February 2, 1993 and indicated that Employees could tile Statements of Desire with the Board. The Employees believed that they had until the Terminal Date to file Statements of Desire.

2. Upon the notice being posted at the work place, various Employees began to discuss it throughout Friday afternoon. Very few people understood the notice or understood what it meant or what the implications of it were. Employees became very upset over the uncertainty and several individuals attempted to telephone the Ontario Labour Relations Board telephone number indicated on the notice. LaRoy MacKenzie telephoned twice and kept getting a busy signal. Another individual, Toby Wilcot, phoned several times and was eventually successful in getting through. Toby Wilcot was switched to tour different employees of the Ontario Labour Relations Board before anyone was willing to explain anything to him. When he finally talked to an individual he was advised that there was an application by the Steelworkers and that the Board member could not offer him any legal advice and advised him to retain a lawyer. Toby Wilcot reported this to the other Employees.

3. On Friday evening of January 29, 1993, Katherin Knot, a miner held a meeting with a group of employees at her home and they discussed signing a Petition indicating their opposition to the union with the intention of forwarding it to the Ontario Labour Relations Board. Petitions were drafted and nine (9) Employees proceeded to sign up a total of 119 Employees on January 29, 30, 31 and February 1, 1993. A committee was formed and the following name was chosen "Em­ployees of Hemlo Gold Mines for a Democratic Choice". Chairman and Secretary-Treasurer were elected. Immediately on Monday morning the Chairman commenced telephoning labour lawyers in the City of Thunder Bay. After telephoning several lawyers and being unable to reach any of these lawyers, the Chairman was finally successful in contacting Bob Edwards who upon making initial inquiries advised the Chairman, LaRoy MacKenzie that he had a conflict of interest in that he had previously represented the Applicant. Mr. Edwards gave the Chairman the name of Peter T. Hollinger. Eventually, the Chairman was successful in contacting Mr. Hol­linger on the afternoon of February 1, 1993 and an appointment was scheduled to see Mr. Hol­linger on February 2, 1993.

4. A representative of the Employees had to travel over 300 kilometres to get to the lawyer's office. Given the late posting of the notice and the substantial geographic distance involved it is the position of the Employees that the notice was ineffective since it was insufficient. The notice to the Employees states that the Employees may tile evidence of objection to the Application with the Board. The Employees were not informed of their right to object to the Application until after it was too late to object. Accordingly, the notice has no meaning or effect whatso­ever.

THE FOLLOWING are the grounds for the constitutional question:

1. There is no definition of "Certification Application Date" in the Ontario Labour Relations Act.

2. Rule 29 of the Rules of Procedure, January, 1993, state:

"29. Where a hearing will be held in a case, written notice of the hearing will be given to all parties setting out the time, date and place of hearing."

3. Section 8 of the Ontario Labour Relations Act recognizes the right of Employees in the work place to tile a Statement of Desire indicating their opposition to an Applicant trade union.

4. It is the practise and procedure of the Board to include in the Notice of Hearing a written notification to the Employees in the work place that they have a right to file a Statement of Desire indicating their opposition to an applicant trade union.

5. The Board has the discretion to pick the application Date and chose January 25, 1993 in the present Application.

6. The Board has the discretion to choose when to give notice of the Application to the Employ­ees.

7. The Board chose to give notice to the Employees of both the hearing and their right to file a Statement of Desire indicating opposition to the union after the Application Date.

8. Pursuant to Section 8(4) of the Ontario Labour Relations Act, the Board cannot consider any Statements of Desire filed after the Application Date.

9. By giving notice to the Employees of their right to file a Statement of Desire after the Appli­cation Date, the Board has effectively eliminated the Employees right to file a Statement of Desire since the Employees' Statement of Desire cannot be considered by the Board.

10. The Board has effectively eliminated the right of the Employees at Hemlo Gold Mines Inc. to file a Statement of Desire by setting the Certification Application Date as the same date as the Application Filing Date referred to in Rule 43 of the Rules of Procedure.

11. By manipulating procedural rules the Board has denied the Employees at Hemlo Gold Mines Inc. a substantive right to participate in the certification process.

12. Certification of the Applicant affects the substantive legal rights of the Employee. Toronto Newspaper Guild, Local 87, American Newspaper Guild (C.I.O.) v. Globe Printing Co., 1953 CanLII 10 (SCC), [1953] 2 SCR. 18).

13. Failure to give Employees notice of the right to object or intervene in a timely fashion con­stitutes a denial of the Employees' right to fundamental justice. It contravenes those rights by denying the Employee an opportunity to participate fully and become a party in the certification process.

14. Failure to notify the Employee of a material and substantial alteration in his working condi­tions without prior notice is an infringement of the Employees right to life, liberty and security of person pursuant to Section 7 of the Charter of Rights, R.S.C. 1990 and is a denial of funda­mental justice.

15. Failure to give Employees notice of their right to intervene or object until after the fact and refusing to accept statements of desire after the application filing date compels them to become a union member without an effective hearing and it is an infringement of the individual Employ­ee's freedom of association under Section 2(d) of the Canadian Charter of Rights and Free­doms, R.S.C. 1990. Lavigne v. Ontario Public Service Employees Union, et al. (1991), 1991 CanLII 68 (SCC), 4 C.R.R. (2d) 193.

16. Canadian Charter of Rights and Freedoms, R.S.C. 1990;

17. Ontario Labour Relations Act, 5. 0. 1991;

18. Rules of Procedure, January, 1993;

19. Rules of Civil Procedure; and

20. Courts of Justice Act, R.S.O. 1990, C. 43, as amended.

ebruary 16, 1993. JANICE M. GILLESPIE

13. The Ministry of the Attorney General of Ontario responded to that notice as follows on

February 19, 1993, in a letter (on the letterhead of its Constitutional Law & Policy Division) from

Robert E. Charney to intervenors' counsel:

Dear Ms. Gillespie:

Re: United Steelworkers of America v. Hemlo Gold Mines

We acknowledge receipt of your Notice of Constitutional Question dated February 16, 1993, indicating your intention to challenge the constitutional validity of s. 8(4) of the Ontario Labour Relations Act, SO. 1992, c. 21 and rule 47 of the Rules of Procedure, in a motion to be heard by the Labour Relations Board on February 22, 1993.

Please be advised that while the Attorney General supports the constitutional validity of the impugned legislative provisions, it is not possible for us to intervene in this proceeding on only six days' notice. Since we do not believe that an adjournment of this proceeding is appropriate, we will not participate in this matter at this stage of the proceedings.

We trust that counsel will bring the case of Professional Institute of the Public Service of Canada v. Northwest Territories, 1990 CanLII 72 (SCC), [1990] 2 SCR. 367 to the attention of the tribunal.

Please advise us of the outcome of this motion. Yours very truly, 'Robert E. Charney"

Robert E. Charney

Counsel

c.c. Brian Shell, United Steelworkers

14. When representatives of the parties met with Board Officer Fernando Da Silva on Feb­ruary 17 in Thunder Bay (at the meeting referred to in paragraph 6 of the "green sheets"), they reached agreement on some portions of the bargaining unit description (as detailed in paragraph 53 of this decision), and reviewed, finalized, and initialled the list of employees who were in the bar­gaining unit on January 25, 1993. During that meeting the Board Officer also advised the parties as to the form of the membership evidence filed by the applicant, advised them of the contents of the (Form A-4) Declaration Verifying Membership Evidence filed by the applicant, and provided the Company with an opportunity to examine that declaration. He further advised the parties' repre­sentatives that, subject to the Board's usual second check of the membership evidence, the Union appeared to be in an interim certifiable position. The Board Officer's written report of that meet­ing also indicates that both he and the parties recognized that a hearing would be required to deal with the following outstanding matters:

BARGAINING UNIT DESCRIPTION

ARTICLE 11 OF THE RESPONSE EXCLUDING 11(A)IV

PETITION/INTERVENTION

APPLICANT CHALLENGES THE STATUS OF THE INTERVENOR

The position adopted by the Union at that meeting was confirmed and detailed in a letter dated February 19 to the Registrar from Union counsel.

15. At the commencement of the hearing of this matter on February 22, the Board heard submissions from counsel for each of the parties concerning the last issue listed in the Board Offi­cer's report. After recessing to consider the matter, we made the following unanimous oral ruling:

Having had an opportunity to consider the submissions of counsel, we find it unnecessary to determine whether or not LaRoy MacKenzie has status to intervene in this matter, as we are unanimously of the view that the intervention has been filed on behalf of all of the persons who signed the petitions that were filed with the Board together with the intervention, a number of whom are included on the list of employees included in the bargaining unit. In this regard, we note that two of those persons, Wayne MacKenzie and David Odorizzi, are present in the hear­ing room today as advisors to Ms. Gillespie.

In view of that ruling, it was unnecessary for the Board to deal with Ms. Gillespie's motion for an amendment to the intervention to specifically include Allan Tomlinson, Roger Perron, and Wayne MacKenzie as intervenors. It was also unnecessary to deal with her request for a finding that LaRoy MacKenzie, as Chairman of the group of employees known as "Employees of Hemlo Gold Mines for a Democratic Choice", had status to intervene on their behalf.

16. The Board then proceeded to hear the submissions of counsel for each of the parties concerning the issues raised in the intervention and the intervenors' Notice of Constitutional Ques­tion. After hearing those submissions, the Board reserved its decision on those matters on Febru­ary 22 and proceeded to hear other aspects of the case. However, during the course of the continu­ation of hearing on February 23, the Board made the following oral ruling on those matters:

For the information and guidance of the intervenors and the other parties, we find it appropriate to give you a "bottom line" ruling at this time on the issues raised by the intervenors, concern­ing which we heard argument from counsel for each of the parties yesterday. For reasons which will issue at a later date, we are unanimously of the view that there is no merit in the Charter issues, the natural justice issues, or any of the other issues raised by the intervenors. It is clear to us that the certification application date referred to in section 8 of the Act is the date on which the application was filed with the Board, i.e., January 25, 1993. Since the petitions filed by the intervenors were not filed until after that date, section 8(4) of the Act precludes the Board from considering them. We have no power to modify or extend that date. We are also unanimously of the view that neither the Board nor the Union was required to provide the employees with any form of notice prior to the application being filed.

17. In providing our reasons for that ruling, we note that during the course of argument counsel referred the Board to a number of Court and Board decisions. Although we have duly con­sidered all of those cases, we have not found many of them to be of assistance in deciding this mat­ter, except to the extent indicated below.

18. The Labour Relations Act has recently been extensively amended by S.0. 1992, c. 21 (which for ease of reference will be referred to in this decision as "Bill 40"). Those amendments, which became effective January 1, 1993, include a number of changes to the certification process. Prior to those amendments, the Board was required by section 7(1) of the Act to "ascertain the number of employees in the bargaining unit at the time the application was made and the number of employees in the unit who were members of the trade union at such time as is determined under clause 103(2)(j)." The latter clause empowered the Board "to determine the form in which and the time as of which evidence of membership in a trade union or objection by employees to certifica­tion of a trade union ... shall be presented to the Board on an application for certification ...." As a matter of practice, the Board invariably determined that time to be the "terminal date", which under the Board's Rules of Procedure that were in force prior to January 1, 1993 (the "old Rules") was fixed by the Registrar pursuant to (old) Rule 2, which read:

When an application is made, the registrar shall fix a terminal date for the application which shall be not less than five and not more than ten days, as directed by the Board, after,

(a) the day on which the registrar serves the employer with the notice of appli­cation for posting, where they are served personally; or

(b) the day immediately following the day on which the registrar mails the notices of application to the employer for posting, where they are served by mail.

Under the old Rules, the terminal date was also the date by which membership evidence and evi­dence of objection by employees to certification (generally referred to as "petitions" or "state­ments of desire") had to be filed with the Board (see old Rule 73). Under old Rule 75, filing of a document was deemed to be made at the time it was received by the Board or, where it was mailed to the Board by registered mail, at the time it was mailed. Thus, prior to January 1, 1993, the (Form 6) Notice to Employees of Application for Certification and of Hearing notified employees affected by the application that any of them desiring to make representations to the Board in oppo­sition to the application were required to send a statement of desire to the Board in such manner that it was either received by the Board not later than the terminal date, or mailed to the Board by registered mail not later than the terminal date. Prior to the Bill 40 amendments, in determining (for purposes of section 7 of the Act) "the time the application was made", the Board was guided not only by old Rule 75, but also by section 113(2) of the Act, the material portion of which pro­vided that "[am application for certification ..., if sent by registered mail addressed to the Board at Toronto, shall be deemed to have been made on the date on which it was so mailed."

19. Thus, prior to the Bill 40 amendments, the Act and the (old) Rules required the Board to, in effect, consider a snapshot taken as of the date the application was filed in order to deter­mine the number of employees in the bargaining unit, and to consider a snapshot taken at a later date (which in practice was invariably the terminal date), in ascertaining the number of employees who were members of the union. The first snapshot was the denominator, and the second snapshot was the numerator of the fraction which when converted to a percentage (by multiplying the frac­tion by 100) constituted what is generally referred to in the labour relations community as the count". Under section 7(2) of the pre-1993 Act, the Board was required to direct that a represen­tation vote be taken if the count was not less than forty-five per cent and not more than fifty-five per cent. If the count was more than fifty-five per cent, that subsection gave the Board a discretion to either direct that a representation vote be taken or certify the union without a representation vote.

20. Under the pre-1993 Act, a petition or statement of desire filed by the terminal date did not rescind, cancel, or nullify any of the membership evidence, but if it was found to be voluntary and to cast doubt upon whether the trade union had the unequivocal support of more than fifty-five per cent of the employees in the bargaining unit, it would generally prompt the Board to exer­cise its discretion to direct that a representation vote be taken. The fact that such petitions could be and generally were circulated after the employer became aware that a certification application had been filed created a substantial opportunity for illicit employer support for the petition or involve­ment in the petition process. Board hearings held for the purpose of determining the voluntariness of such petitions in the context of union charges of employer involvement and support were often quite protracted and divisive.

21. The Bill 40 amendments changed the certification process in a number of ways which are of significance to the issues raised in these proceedings. The Board is now required (by section 8(1) of the Act) to ascertain upon an application for certification:

(a) the number of employees in the bargaining unit on the certification application date; and

(b) the number of those employees who are members of the trade union on that date or who have applied to become members on or before that date.

[Emphasis added]

Thus, instead of notionally considering snapshots taken on two different dates in order to determine the numerator and denominator of the fraction used to determine the count, the Board is now required to determine both of those numbers as of the "certification application date". That amendment legislatively mandates the Board to adopt an approach similar to that which has been applied federally by the Canada Labour Relations Board continually since 1974 (with the excep­tion of a brief interruption following a 1977 Federal Court of appeal decision, the effect of which was subsequently reversed in June of 1978 by an amendment to the Canada Labour Code): see Seafarers' International Union of Canada v. K. D. Marine Ltd., 83 CLLC ¶16,069. In commenting on the policy considerations supporting that approach, the Canada Labour Relations Board wrote, in part, as follows in Canadian Imperial Bank of Commerce, Sioux Lookout, [1979] 1 Can LRBR 18, at pages 19-20:

[Choosing the date of application as the date for determining employee wishes] renders certifi­cation a process that is more administratively efficient, thereby avoiding delays and making access to collective bargaining more meaningful for all employees under federal jurisdiction....

A second purpose was to meet the concerns and adopt the policy expressed in ... earlier Board decisions.... One of the principal concerns was the inviting opportunity for employers to aban­don a neutral posture in the employees' exercise of their freedom and seek to use its special position and relationship to the employees to interfere with their freedom. The use of the appli­cation date reduced this opportunity.

In that decision, the Canada Labour Relations Board also made the following observations regard­ing notice to employees:

The Board still posts notice of application to which employees may reply, but in most cases replies contradicting previous membership evidence, which will postdate the application, will be given no weight unless they allege some impropriety.

That section 8 of the Act similarly does not preclude the Ontario Labour Relations Board from considering such improprieties is clear from section 8(7) which provides:

Subsections (4) and (5) do not prevent the Board from,

(a) considering whether, on or before the certification application date, section 65, 67 or 71 has been contravened or there has been fraud or

misrepresentation;

The application date is also the relevant time for assessing employee support for union representa­tion in Saskatchewan, Manitoba, Quebec, and Newfoundland.

22. Section 8(4) of the Act also refers to the "certification application date" in specifying various types of evidence which cannot be considered by the Board unless filed on or before that date. That subsection provides as follows:

The Board shall not consider the following evidence if it is filed or presented after the certifica­tion application date:

1. Evidence that an employee is a member of a trade union, has applied to become a member or has otherwise expressed a desire to be represented by

a trade union.

2. Evidence that an employee who had become or had applied to become a member of a trade union has cancelled, revoked or resigned his or her membership or application for membership or has otherwise expressed a desire not to be represented by a trade union.

3. Evidence that an employee who had become or had applied to become a member of a trade union has done anything described in paragraph 2 but has subsequently changed his or her mind by becoming a member again, by reapplying for membership or by otherwise expressing a desire to be repre­sented by a trade union.

Thus, not only membership evidence, but also petitions and other expressions of desire not to be represented by a trade union (as well as what are sometimes referred to as "counter-petitions") must be filed with the Board by the "certification application date" if they are to be considered by the Board.

23. It is the position of counsel for the intervenors (and counsel for the responding party) that the Board has a discretion to pick the certification application date, and that it should deem that date to be the "terminal date" of February 2, 1993 for purposes of this application. However, we do not find that position to be tenable. When the certification provisions of the amended Act are read as a whole against the background of the pre-1993 Act, and in conjunction with the new Rules, it is clear to us that a fair, large and liberal reading of them (as required by section 10 of the Interpretation Act) leads firmly to the conclusion that the certification application date is the date on which the certification application was filed with the Board. If the Board were to construe that phrase to be a reference to a date subsequent to the date on which the application was filed (such as the terminal date set by the Registrar under Rule 28), an employer could be in a position to ger­rymander the denominator of the count fraction by hiring, recalling, discharging, or laying off employees. Moreover, to construe the phrase in that manner would be to effectively negate the effect of the aforementioned amendments on petitions and membership evidence, thereby resur­recting the situation which existed prior to January 1, 1993, and subverting the intent of the Legis­lature.

24. Although section 113(2) of the Act was repealed by Bill 40, the Board is still required to treat certification applications as having been filed on the date they are received by the Board or, if they are mailed to the Board by registered mail, on the date on which they are mailed, by virtue of Rule 8 (as quoted in paragraph 2 of this decision). Reference may also usefully be made in this context to Rule 43 (as quoted in that same paragraph) and to Rule 47, which provides:

Membership evidence, evidence of objection and evidence of re-affirmation will not be consid­ered by the Board unless the evidence is filed by the application filing date, is in writing, signed by each employee concerned, and is accompanied by the name of the employer and the name, address, telephone number and facsimile number, if any, of a contact person.

Those new rules, which parallel and are consistent with section 8 of the Act, confirm by necessary implication that the "certification application date" referred to in section 8 of the Act is one and the same as the "application filing date" referred to in the Rules, i.e., the date on which the certifi­cation application was received by the Board or, if it was mailed to the Board by registered mail, the date on which it was mailed. We find no merit in Ms. Gillespie's contention that those rules derogate from section 8 of the Act and are, therefore, invalid.

25. Accordingly, for purposes of the instant case, the certification application date (and the application filing date) is January 25, 1993, which is the date on which the application was deliv­ered to and received by the Board. There is no merit in the intervenors' contention that "by manipulating procedural rules", the Board has denied employees of the Company a substantive right to participate in the proceedings. Nor is there any merit in their contention that the Board was required by principles of natural justice or fairness to notify employees prior to the certifica­tion application date of the right to file a petition or statement of desire on or before that date. Indeed, that would be virtually impossible, as the Board would have no way of knowing of the application until such time as the Board received it. Thus, although we agree with the intervenors' contention that certification affects substantial legal rights of the employer and the employees, and that they are entitled to notice of the certification proceedings in accordance with the rules of natu­ral justice, we are unanimously of the view that proper notice of these proceedings was given in compliance with the rules of natural justice, as codified for purposes of the Labour Relations Act by the provisions of the Act and the Rules. In this regard, we are satisfied that nothing turns on the fact that a faxed copy of the notice to employees was initially posted, pending couriered delivery of the actual "green sheets" provided by the Board. Although some of the employees had difficulty understanding the notice, it was clearly sufficient to prompt them to form the aforementioned com­mittee, retain and instruct counsel, and file through counsel an intervention, notice of constitu­tional question, and the motions and other materials referred to above. Moreover, both the faxed and the original Form B-4 notices contained all of the information required by the notice require­ments of the rules of natural justice, the Statutory Powers Procedure Act, the Labour Relations Act, and the Rules of Procedure.

26. There is also nothing in the Act which requires a trade union to give employees notice of its intention to file a certification application. Although the intervenors submitted in paragraph 21 of their intervention that the Union had an obligation under section 69 of the Act to give employees in the bargaining unit advance notification of the application date, at the hearing of this matter Ms. Gillespie indicated that the intervenors were no longer advancing section 69 as a basis for that obligation (presumably because it is clear from the wording of that provision that the duty imposed by section 69 only applies to a union "entitled to represent employees in a bargaining unit", i.e., a trade union which has bargaining rights for the employees by virtue of having been certified or voluntary recognized as their bargaining agent). We were not referred to any provision of the Act or applicable legal principle which would require the applicant to give advance notice to the employees (or to the Board) of its intention to file a certification application. Unions fre­quently organize through contact with some but not all of the employees of an employer. If it is to obtain certification without a representation vote (in the absence of contraventions of the Act mak­ing certification appropriate under section 9.2) a union will have to gain the support of over fifty-five per cent of the employees. However, it is under no obligation to contact all of the employees. A union may be unable to contact employees for whom it does not have an address or telephone number, or who are away on vacation or absent due to illness. Moreover, it may choose to inten­tionally avoid contacting employees who are known to be strongly opposed to unionization, or who are thought likely to notify the employer of any such contact. Employees who are not contacted by the union are treated by the Act (and the Board) as being opposed to unionization (by virtue of being included in the denominator but not in the numerator of the fraction used to determine the count). The same is true of employees contacted by the union who decline to sign a union card. Whether contacted by a union or not, employees opposed to unionization are free to campaign against unionization at any time (with the possible exception of during working hours if their employer has a prohibition against such activities)~ just as employees who support unionization are free to express their pro-union views at any time (subject to the same limitation, which is implicitly authorized by section 72 of the Act). Whether the expression of such views will be effective depends not only upon the receptiveness of the listeners, but also upon whether any actions taken by the speakers or listeners are taken within the time frames specified in the Act. For example, an employee in a bargaining unit represented by one union is free to attempt to persuade other employees (during non-working hours) to join another union. However, whether joining the other union will enable it to displace the first union at that time depends upon whether it can avail itself of one of the windows of opportunity provided by the "open periods" specified in section 5 of the Act. The same is true of petitions or statements of desire signed by employees in a bargaining unit who wish to terminate a union's bargaining rights (see section 58 of the Act). Petitions or state­ments of desire signed by employees who are not represented by a union and who wish to remain unrepresented may be filed with the Board at any time (and, in accordance with Rule 51, will be kept on file by the Board for six months before being returned to the sender or disposed of if no relevant application for certification is filed within that time). However, section 8(4) precludes the Board from considering them unless they are filed on or before the certification application date which, as noted above, is the date on which the certification application is filed with the Board. If this puts employees at somewhat of a disadvantage in comparison with the union by virtue of the fact that it is the union's action of filing a certification application which determines what the certi­fication application date will be, that disadvantage is inherent in the revised legislation and is not something which the Board is empowered to relieve against.

27. As indicated above, it was also contended on behalf of the intervenors that section 8(4) of the Act and Rule 47 of the Rules of Procedure are constitutionally invalid by virtue of sections 2(d) and 7 of the Canadian Charter of Rights and Freedoms (the "Charter"). In her very brief sub­missions on the Charter issues, Ms. Gillespie argued that the impugned provisions compel employ­ees to become members of the Union and, therefore, infringe upon their section 2(d) freedom of association. In support of that contention, she cited Lavigne v. Ontario Public Service Employees Union et al (1991), 1991 CanLII 68 (SCC), 4 C.R.R. (2d) 193 (S.C.C.) as authority for the proposition that freedom of association includes a freedom from compelled association. However, we do not read that case as authority for that proposition. Although three of the seven members of the Supreme Court of Canada who heard the appeal expressed that view (namely La Forest, Sopinka, and Gonthier JJ.), three others (Wilson, L'Heureux-Dubé, and Cory JJ.) took the opposite view, and the remaining member of the Court (McLachlin J.), while suggesting in obiter dictum that "[i]n some circum­stances, forced association is arguably as dissonant with self-actualization through associational activity as is forced expression", found it unnecessary to conclusively resolve that issue as, in her view, freedom from association, whatever its ambit, could not extend to union dues payments mandatorily deducted from the appellant's wages pursuant to a Rand formula check-off provision in the applicable collective agreement. Moreover, even if it is assumed (without deciding) that freedom of association does include freedom from compelled association, certification does not infringe that freedom, because it does not compel employees to become members of a union. What it does is give the union bargaining rights for all of the employees in the bargaining unit, whether or not they are members of the union. Although section 44(1) of the Act imposes a requirement (except in the construction industry and subject to the Act's section 48 religious exemption provi­sion) that a mandatory union dues check-off provision be included in a collective agreement where a union that is the bargaining agent for employees in a bargaining unit so requests, that provision does not require the employees to become members of the union. A clause requiring membership in a union as a condition of employment will only be included in a collective agreement if the union and the employer agree to its inclusion (or if a board of arbitration is persuaded that such a clause should be included in a collective agreement settled by first agreement (interest) arbitration), and if it is so included, its enforcement will be subject to the significant limitations set forth in section 47(2) of the Act.

28. The broad interpretation of "freedom of association" advocated by intervenors' counsel is also inconsistent with the relatively narrow interpretation which the Supreme Court of Canada has given to that freedom in the context of certification applications, collective bargaining, and other labour relations matters such as the right to strike. See, for example, Professional Institute of the Public Service of Canada v. N.W. T. (Commissioner), 1990 CanLII 72 (SCC), [1990] 72 D.L.R. (4th) 1; Reference Re Public Service Employee Relations Act, Labour Relations Act and Public Officers Collective Bar­gaining Act (1987), 1987 CanLII 88 (SCC), 38 D.L.R. (4th) 161; Public Service Alliance of Canada et al. v. The Queen in Right of Canada et al (1987), 1987 CanLII 89 (SCC), 38 D.L.R. (4th) 249; and Government of Saskatchewan et al. v. Retail, Wholesale & Department Store Union, Locals 544, 496, 635, & 955 et al. (1987), 1987 CanLII 90 (SCC), 38 D.L.R. (4th) 277. The intervenors' case also does not derive any assistance from section 7 of the Charter, as the "right to life, liberty and security of the person" does not protect economic rights such as the terms and conditions of the individual employment contracts between the Company and its employees. See Home Orderly Services v. Government of Manitoba (1987), 1987 CanLII 5313 (MB CA), 43 D.L.R. (4th) 300, leave to appeal refused [1988] 1 S.C.R. ix.

29. At the February 22 hearing, after the Board reserved its decision on the issues can­vassed in paragraphs 16 to 28 of this decision, Company counsel requested the Board to direct the Union to produce its Constitution, and to make it available to himself and the Board. He also requested the following information concerning the aforementioned Union cards which the appli­cant filed with the Board in support of the application:

30. the number of collectors;

31. the range of the dates between which the Union cards were col­lected, and in particular, whether any of them were collected before January 1, 1993;

32. whether any consideration was given to the collectors at the time the Union cards were collected, and if so, how much; and

33. whether some employees gave consideration and others did not and, if so, the number of employees in each of those two categories.

34. Union counsel opposed those requests, but during the course of her submissions did provide opposing counsel with a blank Union card which, with the exception of the signatures, dates, and other information filled in on the cards filed with the Board, is identical to the cards which the Union filed in support of this application. The front of each of those cards has an insig­nia in the upper left corner (with two maple leafs and the words "STEELWORKERS DISTRICT 6" outlined by an outer circular band of blue, and five steelworkers depicted in an orange inner cir­cle) and reads as follows:

UNITED STEELWORKERS

Membership — Ontario

YES, I apply for and accept membership in the United Steelworkers of America.

______________________________________ Date: ____________

SIGNATURE OF APPLICANT

The words "STRICTLY CONFIDENTIAL" are printed diagonally across the "YES, I apply..." sentence on the front of each card. The top portion of the back of each card reads as follows:

I received this card directly from the person whose signature appears on the other side.

____________________________________ ___________19.

SIGNATURE OF RECEIVER

The lower portion contains spaces for the applicant employee's name, home address, postal code, telephone number, employer, and job. It also contains a direction to circle "YES" or "NO" in response to the following question: "DO YOU WORK MORE THAN 24 HOURS PER WEEK?" During the course of argument concerning these issues, Company counsel was also advised that all of the Union cards were signed after January 1, 1993, and that they were collected by more than one receiver.

31. After recessing to consider the submissions of counsel concerning those matters, the Board made the following unanimous oral ruling:

Assuming without deciding that the Board might, in some circumstances, direct a party to produce a document to another party even if the other party had not taken the usual step of serving a summons duces tecum in respect of it, we are not prepared to direct the applicant to produce a copy of its Constitution, as we are not persuaded that it is of any relevance to the matters in issue before us in these proceedings, in view of the provisions of sections 8(1)(b) and 105(4.1) of the Act. For reasons which will issue in writing at a later date, we are satisfied that the cards which have been filed by the applicant in this case meet the requirements of the Act. As regards the other information requested by Company counsel, we note that Union counsel has already provided him with a blank copy of the card, and that he has already been advised that the cards were collected by more than one receiver and that they were all signed in 1993. We are not persuaded that it is either necessary or appropriate to disclose or direct the disclo­sure of any further information to the Company regarding the cards.

32. We now provide our reasons for that ruling. The requirements concerning what is referred to in the (new) Rules (and in the usual parlance of the labour relations community) as membership evidence" were also changed by Bill 40. Prior to the Bill 40 amendments, the Act defined "member" as follows:

1(1) In this Act,

(1) member", when used with reference to a trade union, includes a person who,

(i) has applied for membership in the trade union, and

(ii) has paid to the trade union on his own behalf an amount of at least $1 in respect of initiation fees or monthly dues of the trade union,

and "membership" has a corresponding meaning;

Also potentially germane to resolving issues concerning union membership was section 105(4) of the Act, which provided:

Where the Board is satisfied that a trade union has an established practice of admitting persons to membership without regard to the eligibility requirements of its charter, constitution or by­laws, the Board, in determining whether a person is a member of a trade union, need not have regard for the eligibility requirements.

Both of those provisions were added to the Act in order to codify the Board's longstanding prac­tice (dating back to at least the early 1950's) of determining union membership in that fashion. That statutory codification was necessitated by the case of Metropolitan Life Insurance Company v. International Union of Operating Engineers, Local 796 (1970), 1970 CanLII 803 (AB SCTD), 11 D.L.R. (3d) 366, in which the Supreme court of Canada found that the Board had stepped outside of its jurisdiction by asking itself the wrong question (i.e., whether the employees had applied for membership, paid at least a dollar, etc.), and failing to deal with the question remitted to it (i.e., whether the employees in question were members of the union at the relevant date).

33. The payment of a dollar in respect of initiation fees or monthly dues was initially viewed as involving "some financial sacrifice" on the part of the employee seeking to join a union. How­ever, over the ensuing years that characterization became increasingly artificial as a result of infla­tion. Thus, in 1988 the Board (through its Alternate Chair) wrote as follows in Calvano Lumber & Trim Co. Ltd., [1988] OLRB Rep. Aug. 735:

34. Whatever may have been the case 35 years ago when RCA Victor was decided (when, it might be noted, there was no provision in the Labour Relations Act equivalent to section 1(1)(l)), it is obvious, today, that a payment of one dollar cannot realistically be considered to be much of a "financial sacrifice". Its purpose is symbolic, and to provide a simple statutory formula for determining union membership without, in each case, an inquiry into the terms of the union constitution defining initiation requirements, membership obligations and so on. In order to facilitate the processing of certification applications (which now number well over a thousand each year), the Legislature has established a simple standard of "membership" for statutory purposes. It is important that trade unions relying on that formula adhere to the prescribed stan­dard. Ordinarily, the membership evidence is not revealed to the employer (see section 111 of the Act and Grand & Toy Limited, [1986] OLRB Rep. Sept. 1223), and against that background the Board is entitled to demand strict compliance with the statutory requirements. Failure to collect the $1.00 payment contemplated by the Act, or to conduct the inquiries necessary to complete the Form 80 declaration, can result in the rejection of the union's membership evi­dence and a dismissal of the application.

35. On the other hand, there comes a point when technical adherence to alleged "rules" drifts into artificiality and becomes increasingly remote from the real life experience of employees in the work place, whose interests must also be considered if the Board is to faithfully fulfill its statutory mandate. Does the ordinary employee in a plant, or on a construction site, seriously distinguish between a "bona fide" loan of a dollar which s/he "solemnly" undertakes to repay, or an outright gift of what, today, is a nominal amount? Does a dollar received by an employee in this way cease to be "his own", to use as s/he wishes, because it may be a gift, or there may be no undertaking or real concern about its repayment? We do not think so; moreover, as early as 1958 in Webster Air Equipment Co. Ltd., 58 CLLC ¶18,110 the Board indicated that it was "not greatly concerned about isolated instances of money being advanced by one employee to another". The Board recognized that these cash transfers were a natural incident of an estab­lished relationship between fellow employees who accommodate each other, from time to time, when they are short of funds. Usually there is an expectation of reciprocity, but no one keeps a ledger cataloguing the number of cups of coffee, soft drinks, muffins, chocolate bars or small sums owed to, or by, a fellow employee.

36. What the Board was suggesting in Webster Air Equipment, and what we here confirm, is that the Board will not ordinarily be concerned about the advance of small sums of money from one rank-and-file employee to another whether by way of "gift" or "loan", nor will they be the sub­ject of Board scrutiny, unless the evidence suggests that a union official or the "collector" or perhaps some fervent union supporter was, in effect, "buying memberships". In such cases the Board might well disregard the membership documents altogether or seek the confirmatory evi­dence of a representation vote. However, it is totally artificial and unrealistic to focus upon the expressed or presumed "intent to repay" of an individual employee in respect of the relatively trivial sum necessary to meet a statutory requirement which today is merely symbolic.

Nevertheless, it remained necessary for the Board to devote some of its limited resources to inves­tigating and, where warranted, conducting inquiries into "non-pay" (and "non-sign") allegations, in accordance with the procedures described as follows in Estonian Relief Committee in Canada, [1988] OLRB Rep. Nov. 1167:

16. The first step in that "usual investigation" is to see whether any membership evidence has been submitted in the name of the employee who it is alleged did not sign a card or make the payment referred to on the receipt or other documentary evidence of payment accompanying the card. The concern raised by a "non-sign" or "non-pay" allegation is that the Board has been invited to act on documentary evidence which may not reflect the truth about whether the per­son said to be a member has actually applied for membership or paid to the union on his own behalf the amount shown. If there is no document, there is no such concern. If there is a docu­ment purporting to be evidence of membership of the subject employee, a labour relations offi­cer will interview that employee in private. If the interview discloses any matter which is cause for concern, either standing alone or in light of the contents of the Form 9 declaration filed by the union, the Board will schedule the matter for hearing, summon those persons who may have knowledge of the matters in issue and, at the hearing, conduct its own inquiry....

See also Roytec Vinyl Co., [1990] OLRB Rep. June 727.

34. The Bill 40 amendments concerning "membership evidence" included the repeal of the definition of "member" and the enactment of the following provisions:

8.- (1) Upon an application for certification, the Board shall ascertain,

(a) the number of employees in the bargaining unit on the certifica­tion application date; and

(b) the number of those employees who are members of the trade union on that date or who have applied to become members on

or before that date.

(2) The Board shall direct that a representation vote be taken if it is satisfied that at least 40 per cent and not more than 55 per cent of the employees in the bargaining unit are members of the trade union on the certification application date or have applied to become members on or before that date.

(3) The Board may direct that a representation vote be taken if it is satisfied that more than 55 per cent of the employees in the bargaining unit are members of the trade union on the certifica­tion application date or have applied to become members on or before that date.

(4) The Board shall not consider the following evidence if it is filed or presented after the certifi­cation application date:

1. Evidence that an employee is a member of a trade union, has applied to become a member or has otherwise expressed a desire to be represented by

a trade union.

2. Evidence that an employee who had become. or had applied to become a member of a trade union has cancelled, revoked or resigned his or her membership or application for membership or has otherwise expressed a desire not to be represented by a trade union.

3. Evidence that an employee who had become or had applied to become a member of a trade union has done anything described in paragraph 2 but has subsequently changed his or her mind by becoming a member again, by reapplying for membership or by otherwise expressing a desire to be repre­sented by a trade union.

9.1 (2) If no representation vote is taken, the Board shall certify the trade union as the bargain­ing agent of the employees in the bargaining unit if it is satisfied that more than 55 per cent of the employees are members of the trade union on the certification application date or have applied to become members on or before that date.

Section 105(4) was not amended by Bill 40 and thus remains in the Act exactly as quoted above. However, Bill 40 added the following new provision as section 105(4.1):

In determining whether a person is a member of a trade union or has applied for membership, the Board shall not consider whether the person has made any payment that the trade union may require.

35. It is abundantly clear from those revisions to the Act that the Legislature has eliminated any need for the Board to consider or determine whether or not any employee has paid a dollar or any other monetary sum to the Union. Nor do we find any merit in Company counsel's suggestion that although the matter of whether a payment has actually been made need not be constdered, the Board must still be concerned about whether the employees agreed to pay anything to the Union, and about whether the employees have applied to become members in accordance with the requirements of the Union's constitution. To adopt that strained interpretation of the revised Act would be to attribute to the Legislature an intention to have the Board adopt an approach similar to that described by the Supreme Court of Canada in Metropolitan Life, supra, which approach has long been recognized by the Board and the Legislature to be unnecessary, impractical, and unworkable in the context of certification applications. The revised provisions are clearly intended to further streamline the certification process by eliminating the need for the Board to devote any of its limited resources to considering whether employees who have applied to become members of a union have made the symbolic gesture of paying the relatively trivial sum that was previously necessary to meet one of the pre-Bill 40 statutory requirements of membership.

36. The Act, as revised by Bill 40, instructs the Board to ascertain, upon an application for certification, the number of employees in the bargaining unit who are members of the trade union on the certification application date or who have applied to become members on or before that date. Under the new Rules, the evidence which must be filed by an applicant to establish either of those alternatives is generally referred to as "membership evidence", and is required to be in writing, to be signed by the employee, and to disclose the date on which the employee's signature was obtained. It is unnecessary for purposes of these proceedings to determine whether the Union cards filed by the applicant establish that the employees who signed them are members of the applicant. It is sufficient for the Board to find, as we do, that those cards indicate that the employ­ees whose signatures they bear have applied to become members of the applicant, and that the cards meet all of the other requirements of the Act and the Rules. While the Union's constitution might arguably be of some relevance (subject to section 105(4) and (4.1) of the Act) if the Board were called upon in these proceedings to determine whether or not employees were actually mem­bers of the Union on the certification application date, it is of no relevance in determining whether employees "have applied to become members on or before that date". Thus, the Board declined to direct the Union to produce a copy of its Constitution as the Board was (and remains) of the view that it was not of any relevance to the matters in issue before us in these proceedings.

37. As noted above, Company counsel was provided with a blank Union card, was advised that all of the cards were signed after January 1, 1993, and was further advised that they were col­lected by more than one receiver. He was also advised that all of the cards were filed with the Board on the January 25, 1993 certification application date. After receiving that information and the Board's oral ruling quoted in paragraph 31 of this decision, he did not further pursue the mat­ters set forth in paragraph 11 of the Company's response. He also did not indicate any legitimate basis for obtaining disclosure of any additional information concerning the membership evidence filed by the Union. In view of its obvious sensitivity in the labour relations context, information about whether a person does or does not desire to be represented by a union must remain confi­dential unless there are compelling reasons for its disclosure. In this regard, section 113(1) of the Act provides as follows:

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

That provision protects from disclosure (except with the consent of the Board) not only the iden­tity of persons who sign union cards as applicants for membership, but also the identity of persons who sign them as collectors (or receivers), because serving in that capacity generally indicates a desire to be represented by the union. While information concerning the precise number of per­sons who collected cards might seem relatively innocuous at first blush, providing it could place them in jeopardy in some circumstances. For example, in a case in which there were only two col­lectors, an employer who had previously learned "through the grapevine" that employees A and B had each collected some cards would become cognizant that those two employees had collected all of the cards if the Board were to disclose the precise number of collectors. Although the disclosure of that information may be warranted in some circumstances, there is nothing in the circumstances of the instant case which makes it appropriate for the Board to depart from its usual practice of merely indicating either that there was one collector or that there was more than one collector.

38. Information concerning whether any consideration passed from employees to the collec­tors of the cards is of no relevance in these proceedings, for the reasons set forth above. Moreover, by providing Company counsel with the aforementioned blank Union card, the Union effectively informed Company counsel that there was no evidence before the Board that any such consider­ation was requested or paid (as the wording of the card makes no mention of consideration).

39. On February 23, 1993, immediately after the Board gave the oral ruling quoted in para­graph 16 of this decision, Ms. Gillespie moved that the application for certification be dismissed on the grounds that her clients had a reasonable apprehension of bias on the part of the Board. She initially sought to call witnesses in support of that request, but subsequently agreed to argue it on the basis of agreed facts. In addition to the facts set forth above in respect of the address to which the (Form B-4) "green sheets" were sent, the (faxed) form in which that notice was initially posted before the actual "green sheets" were couriered to the site, the denial of the intervenors' request that the hearing be held in Thunder Bay, the Board Officer's indicating to the parties that (subject to the Board's usual second check of the membership evidence) the Union appeared to be in an interim certifiable position, and the Board's ruling that the intervenors' petitions could not be con­sidered because they were filed after the certification application date, intervenors' counsel relied upon the following additional facts in support of her motion:

40. During the course of the hearing of this application on February 22, a Board employee entered the hearing room while the Board was in session and handed a telephone message slip to the Vice-Chair. The Vice-Chair then passed that slip to Union counsel without comment.

41. On February 22 at a time when neither the panel nor anyone else from the Board was present in the hearing room, a courier delivered to Union counsel documents which did not relate to this application for certification.

42. The letter dated February 19, 1993 (quoted in paragraph 13 of this decision) from Robert E. Charney to counsel for the intervenors was copied to the applicant's general counsel but was not copied to Com­pany counsel.

43. Although counsel for the Company did not indicate disagreement with any of the facts

stipulated by intervenors' counsel in support of her motion (and agreed to by Union counsel), and did not stipulate any additional specific or material facts on which the Company sought to rely, Company counsel nevertheless asserted that the Board should hear the evidence which the interve­nors would have adduced if the Union had not agreed to the facts stipulated by intervenors' coun­sel, in order to afford him an opportunity for cross-examination. After hearing and recessing to consider submissions on that matter, the Board made the following unanimous oral ruling:

Having duly considered the submissions of counsel regarding the procedure which should be adopted by the Board in respect of the intervenors' motion that the application for certification be dismissed by reason of [a reasonable] apprehension of bias, we have concluded that it is now appropriate to hear argument on that motion. The Union, through its counsel, has agreed to all of the facts which the intervenors, through their counsel, have indicated that they rely upon in support of the motion. The Company has taken no position on the validity of the motion and has not indicated any disagreement with the facts stipulated by intervenors' counsel and agreed to by Union counsel, nor has it stipulated any additional specific facts on which the Company seeks to rely. Nevertheless, Company counsel asserts that the Board should hear the evidence which the intervenors would have adduced if the Union had not agreed to the facts stipulated by intervenors' counsel, in order to afford him an opportunity for cross-examination. It is clear to us from the totality of his submissions that Company counsel seeks to have the Board permit him to engage in a fishing expedition. We are not prepared to do so. It is well established in the jurisprudence of the Board and the Courts that labour relations delayed are labour relations defeated and denied. The provision of "effective, fair and expeditious methods of dispute reso­lution" is one of the express purposes set forth in section 2.1 of the Act. Company counsel also asserted that the Board should hear viva voce evidence because the Union has not admitted the inferences which Company counsel apparently wishes to assert should be drawn from the admit­ted facts. We see no merit in that assertion. Each counsel is entitled during the course of argu­ment to argue that the Board should draw inferences from the facts stipulated by the intervenors and admitted by the Union. We also find no merit in Company counsel's assertion that the Board should hear evidence concerning whether or not the intervenors have a subjective appre­hension of bias, as it is well established that the test for bias is an objective one.

41. The Board then proceeded to hear the submissions of counsel regarding the intervenors' motion and, after a brief recess, made the following oral ruling:

For reasons which will issue at a later date, the intervenors' motion that the Union's application for certification be dismissed on the basis of a reasonable apprehension of bias is hereby unani­mously denied.

Although counsel did not refer the Board to any cases, they each argued that motion on the basis of the applicable test being that of a "reasonable apprehension of bias". That language appears in a number of administrative law cases such as Re Marques et al. v. Dylex Ltd. et al. (1977), 1977 CanLII 1157 (ON HCJ), 81 D.L.R. (3d) 554 (Ont. Div. Ct.); Committee for Justice and Liberty et al. v. National Energy Board (1976), 1976 CanLII 2 (SCC), 68 D.L.R. (3d) 716 (S.C.C.); and R. v. British Columbia Labour Relations Board, ex parte International Union of Mine, Mill and Smelter Workers (1964), 1964 CanLII 644 (BC CA), 45 D.L.R. (2d) 27 (B.C.C.A.). In Reid and David, Administrative Law and Practice (2nd Ed., 1978), at page 259, it is described as "the usual formulation". Other cases have referred to the applicable test as being a "real likeli­hood" of bias: see, for example, R. v. Ontario Labour Relations Board, ex parte Hull (1963), 1963 CanLII 189 (ON HCJ), 39 D.L.R. (2d) 113 (O.H.C.) and Re Glassman and Council of the College of Physicians and Surgeons, 1966 CanLII 236 (ON CA), [1966] 2 OR. 81 (C.A.). See also Mullen, Administrative Law (1973), at paragraph 48, in which it is stated a "common test used by the courts is to ask whether a reasonable man in the applicant's position, conversant with all of the facts, would have considered that there was a real likelihood that the decision-maker was biased." Regardless of how the test is articulated, it is clear that actual bias need not be proven. All such tests depend upon the appearance of bias and not its actuality, as the concern is not only that justice should be done but also that it should be seen to be done. However, it is also clear that the test is an objective one, and that despite their actual state of knowledge, persons asserting that they have a reasonable apprehension of bias are treated as having knowledge of readily ascertainable and easily verifiable facts: 1 C.E.D. (Ont. 3rd) ¶53.

42. In assessing the validity of Ms. Gillespie's contention that the aforementioned facts give rise to a reasonable apprehension of bias on the part of the Board, we duly considered all of the material circumstances. As indicated above, the Union's failure to provide the Board with the Company's correct address led to the Company initially posting a faxed copy of the Form B-4 notice to employees until the actual "green sheets" arrived at the site by courier. However, the faxed copy provided employees with all of the information which would have been available to them if the original "green sheets" had been the first notice posted. Moreover, as noted above, both the faxed and original "green sheets" contained all of the information required by the notice require­ments of the rules of natural justice, the Statutory Powers Procedure Act, the Labour Rela­tions Act, and the Rules of Procedure.

43. Although it is unfortunate that some employees experienced difficulties in contacting the Board and were dissatisfied with the Board's declining to provide them with additional infor­mation and legal advice, if the Board had done so it could well have created a reasonable appre­hension of bias assertable by another party, such as the Union, in that the Board, which is required to hear and impartially decide the matters which come before it, would have been improperly advising a party in relation to a matter on which that party could subsequently be appearing before the Board.

44. When representatives of the parties met with the Board Officer on February 17, they went through the usual matters covered at such a meeting, including the bargaining unit descrip­tion, the list of employees, the form of the membership evidence, and the contents of the Form A-4 declaration. Although he advised them that, subject to the Board's usual second check of the membership evidence, the Union appeared to be in an interim certifiable position, his written report also indicates that both he and the parties recognized that a hearing would be required to deal with the five outstanding matters listed in that report, including the "petition/intervention". Thus, we are satisfied that nothing which occurred at that meeting gave rise to a reasonable appre­hension of bias on the part of the Board or the Board Officer.

45. As regards the intervenors' request that the hearing be held in Thunder Bay, the rea­sons why that request could not be accommodated are set forth in paragraph 11 of this decision and need not be repeated. We would also note that the intervening employees were duly represented by counsel at the hearing of this matter in Toronto and participated in the hearing, through their counsel, to the full extent permitted by the Act and the Rules. While the intervenors undoubtedly wish to have the Board consider their petitions in hearing and deciding this application, the fact that the Act precludes the Board from doing so cannot legitimately be said to give rise to a reason­able apprehension of bias on the part of the Board.

46. In her motion and supporting submissions on behalf of the intervenors, Ms. Gillespie asserted that facts number 1 and 2 (as set forth in paragraph 39 of this decision) created a reason­able appearance that the applicant is using the Board's offices to conduct its business, and that the Board has permitted its employees to become agents of the applicant for the purpose of facilitating the business of the applicant. We find no merit whatsoever in that assertion. As an administrative tribunal, the Board operates somewhat more informally than a Court. If someone had telephoned the Board's office and left a message for Ms. Gillespie, the Board, as a matter of courtesy, would have relayed that message to her in precisely the same manner in which it relayed the aforemen­tioned message to Ms. Kelly. That the Board's action in doing so was not viewed by counsel as being in any way improper is evident from the fact that no objection was taken to it at the time. If

Ms. Gillespie, Mr. Shanks, or their respective advisors had expressed any concern about the mat­ter, the Board would have immediately alleviated that concern by confirming precisely what had occurred. In assessing whether that matter (and the matter described in the next paragraph) would give rise to a reasonable apprehension of bias, it must be remembered that the intervenors were represented by counsel and, therefore, had the opportunity to obtain her professionally informed assessment of what was occurring.

47. Similar comments are applicable to the courier's delivery of documents to Union coun­sel in the hearing room at a time when neither the panel nor anyone else from the Board was present. Except in relatively rare cases in which parts of a hearing may be conducted in camera (in accordance with section 9(1) of the Statutory Powers Procedure Act), the Board's hearings and, therefore, the hearing rooms in which they are conducted, are open to the public. Thus, members of the public, including couriers, are generally at liberty to enter the Board's hearing rooms. Although the Board, as master of its own procedure, can undoubtedly make such orders and give such directions as it considers necessary for maintenance of order at a hearing, it is difficult to see what legitimate interest would be advanced by precluding counsel from receiving couriered docu­ments in a hearing room while the Board is not in session. Indeed, the delivery of documents to counsel during the course of a hearing is not unusual (and often assists in avoiding delay). While we appreciate that employees such as the intervenors would not likely be familiar with Board pro­cesses and procedures, we do not believe that the circumstances described above could cause such employees to reasonably conclude that the applicant was improperly using the Board's offices to conduct its business, or that the Board has permitted its employees to become agents of the appli­cant for the purpose of facilitating the business of the Union.

48. We also find no merit in the submission that a reasonable apprehension of bias was cre­ated by the fact that the above-quoted letter dated February 19, 1993 from counsel for the Attor­ney General of Ontario to Ms. Gillespie was copied to counsel for the Union but not to Company counsel. The Board is an independent tribunal, completely separate from the Attorney General's office. Moreover, it is difficult to imagine how counsel for the Attorney General could possibly create a reasonable apprehension of bias on the part of his office, much less the Board, by merely forwarding to counsel for the party opposite in interest a copy of his letter to intervenors' counsel indicating that he would not be participating in the hearing for the reasons described in that letter (and noting a leading case which counsel, in any event, would be under a professional duty to draw to the attention of the Board).

49. Thus, for all of the foregoing reasons, the Board concluded that the circumstances described above, whether considered individually or cumulatively, did not give rise to a reasonable apprehension of bias on the part of the Board (or any of its personnel), and that reasonable per­sons in the intervenors' position, conversant with all of the facts, would not consider that there was a real likelihood of bias.

50. After the Board had given its "bottom line" oral ruling on that matter, counsel for the intervenors requested that the hearing of this application be adjourned, pending an application for judicial review. Submissions concerning that matter were heard by the Board on the following morning at the request of Company counsel who, at approximately 4:00 p.m. on February 23, advised the Board that he wished to be given an opportunity to research the issue that evening. Although the Company did not expressly join in the intervenors' request that the hearing of this application be adjourned pending an application for judicial review, its counsel made submissions in support of the intervenors' request, with the proviso that the adjournment be limited to a period of three months. Union counsel, on the other hand, opposed the granting of any adjournment.

51. On February 24, after hearing and recessing to consider the submissions of counsel, the Board unanimously ruled that the requested adjournment would not be granted for the following reasons:

The Courts have made it clear that the Board, as master of its own procedure, is entitled to pro­ceed with the hearing of a matter notwithstanding a pending or anticipated application for judi­cial review: see, for example, Cedarvale Tree Services Ltd. v. Labourers' International Union of North America, Local 183 (1971), 71 CLLC ¶14,087 (Ont. C.A.). As noted in an earlier ruling which we made in these proceedings, the Courts and the Board have also recognized that labour relations delayed are labour relations defeated and denied, and that expedition is particularly important in the context of certification applications. The Board does not generally adjourn a hearing to permit a party to file an application for judicial review, and we see nothing in the cir­cumstances of the instant case that would warrant a departure from the Board's usual practice in that regard. Indeed, both [Ms. Gillespie and Mr. Shanks] have acknowledged that it would be useful for the Board to proceed to at least hear submissions on the Company's contention that the Board should exercise its discretion to order a representation vote in this matter. Moreover, it appears to us that an application for judicial review might well be premature at this juncture, as the Board has not yet determined whether the applicant will be certified. Thus, having regard to all of the circumstances, the Board denies the requested adjournment.

52. The Board then proceeded to hear submissions concerning the Company's request that a representation vote be taken, and regarding the aspects of the bargaining unit description which remained in dispute between the Company and the Union. Intervenors' counsel supported the request for a representation vote, but took no position on the description of the bargaining unit. Argument concerning the bargaining unit description proceeded on the basis that if the Board found it necessary to resolve any of the facts in dispute between the Union and the Company in order to determine the appropriate bargaining unit, a Board Officer would be appointed to inquire into and report to the Board concerning the disputed facts. However, the Board has not found it necessary to do so, as nothing turns on the disputed facts in the circumstances of this case.

53. As indicated earlier in this decision, agreement was reached on some portions of the bargaining unit description on February 17, when the parties representatives met with a Board Officer. They agreed to the following description, with the exception of the underlined portions whose addition is proposed by the Company but opposed by the Union:

ALL EMPLOYEES OF HEMLO GOLD MINES INC. COB. AS GOLDEN GIANT MINE DIVISION INVOLVED IN MINING AND MILLING LOCATED APPROXIMATELY 36.5 KILOMETRES EAST OF THE TOWN OF MARATHON, EXCLUDING THE QUARRY OPERATION, SAVE AND EXCEPT SUPERVISORS, PERSONS ABOVE THE RANK OF SUPERVISOR, OFFICE, CLERICAL, TECHNICAL, SALES, SECURITY STAFF AND STUDENTS EMPLOYED DURING THE SCHOOL VACATION PERIOD.

54. In support of his client's request that "c.o.b. as Golden Giant Mine Division" be added to the bargaining unit description, Company counsel referred the Board to Beatrice Foods (Ontario) Limited, [1982] OLRB Rep. June 815. That decision pertained to a request by Beatrice Foods (Ontario) Limited that the Board amend the style of cause in those proceedings to show its name as "Beatrice Foods (Ontario) Limited, Model Dairy Division". In denying that request, the Board wrote:

55. Having considered the respondent's request, the Board is of the view that it would not be appropriate to amend the style of cause in the manner requested by the respondent. While a corporation may be subdivided into a number of divisions for operational, marketing and other purposes, the creation of such internal divisions does not change the fact that the legal entity which is the employer remains the corporation itself, which must have "Limited", "Incorpo­rated", "Corporation", "Ltd.", "Inc." or “Corp." as the last word in its name (see Business Corporations Act, R.S.O. 1980, c. 54, s. 8, and Canada Corporations Act, R.S.C. 1970, c. C-32,

s. 25). To forestall various difficulties that might otherwise arise with respect to such matters as enforcement of Board decisions and orders, it is preferable (although it has not, to date, been the Board's unvarying practice) to include only the corporate name of an (incorporated) employer in the style of cause of an application or complaint. If, as in the present case, it is appropriate to restrict the applicant's bargaining rights to employees who work in a particular division that has been established by their corporate employer, this can be accomplished by referring to that division in the description of the bargaining unit, as was done in the aforemen­tioned decision dated May 31, 1982 in which the unit was described as "all employees of the respondent in its Model Dairy Division at Sault Ste. Marie..." (emphasis added).

55. There is a dispute between the applicant and the responding party concerning whether or not the Company actually has any divisions. However, it is common ground between them that it does not carry on business in more than one division at the site to which this application pertains. In dismissing a request similar to that which has been made by the Company in the instant case, the Board wrote as follows in Hunter Douglas Canada Limited, [1985] OLRB Rep. Apr. 535:

56. The parties are in agreement on the description of the bargaining unit appropriate for collec­tive bargaining with the exception of a difference on whether the bargaining unit ought to be described with reference to in the City of Mississauga or with reference to in its Architectural and Window Covering Products Division in the City of Mississauga. It is the position of the applicant that the bargaining unit ought to be defined with reference to the City of Mississauga. It is the position of the respondent that the bargaining unit ought to be defined with reference to the named Division.

57. At the present time the respondent has only one facility in Mississauga. However, the respon­dent stated that while it had no plans to put in a new division in Mississauga, it could put another division in Mississauga. The respondent is a large Canadian organization which has three other divisions in addition to the division which is affected by this application. Other divi­sions of the respondent have operations in the greater Metropolitan Toronto area.

58. The Board's practice with respect to defining the geographic boundaries of appropriate bar­gaining units and ensuring the stability of bargaining rights was set forth in York Steel Construc­tion Limited, [1980] OLRB Rep. Feb. 293 at page 295, where the Board stated:

59. The Board in Wix Corp Ltd., [1975] OLRB Rep. Aug. 637 canvassed in some detail the Board's practice with respect to defining geographic limitations in the appropriate bargaining unit. Apart from the construction and perhaps certain service industries, the Board's policy, where the employer has employees at only one location within a municipal area, is to describe the bargaining unit in terms of the municipality itself (Perimeter Industries Limited, [1973] OLRB Rep. March 174). On occasion the Board will expand its definition of the bargaining unit to encompass an area greater than a single municipality (see The Board of Health of the York-Oshawa District Health Unit, [1969] OLRB Rep. Feb. 1178; The Adams Furniture Company Limited, [1975] OLRB Rep. June 491; and note as well the Board's normal unit of the Munici­pality of Metropolitan Toronto), but is reluctant to do so in the absence of compelling reasons (Wittich's Bread Limited, [1969] OLRB Rep. Jan. 1019; Del Zotto, [1972] OLRB Rep. June 637 and Canada Safeway Limited, [1972] OLRB Rep. Mar. 262). The primary reason for this policy of municipality-wide bargaining units is the Board's concern for stability of bargaining rights; i.e. the union's bargaining rights will not be affected by a subsequent move of the employer's operation to some other location within the same municipality. On the other hand, actual accretions to the employer's operations within the municipality, such as a second or third plant, will automatically be covered by the union's certificate. To this latter extent the right of self-determina­tion of a bargaining agent by the employees at these new locations is compromised, in favour of the over-riding concern for stability of bargaining rights.

60. In the instant application the respondent has one facility in Mississauga and has no plans for any subsequent facilities in Mississauga. The arguments of the respondent based upon any future facilities in Mississauga are based upon hypothetical facts and are therefore purely specu­lative in nature. While section 3 of the Act does state that every person is free to join a trade union of his own choice and to participate in its lawful activities, it ought not to be read in isola­tion. Section 3 is to be applied to the facts in this application. On the one hand the interests of present employees who have indicated they wish to be represented by the applicant are to be considered and on the other hand there are the highly speculative interests of future persons who may or who may not become employees of the respondent in Mississauga. As the Board stated in K-Mart Canada Limited, [1981] OLRB Rep. Sept., 1250, nowhere is the balancing of the statutory objectives more evident than in the Board's normal practice of circumscribing the geographic scope of bargaining rights by reference to the municipal boundary within which an employer operates.

61. In balancing the interests of present employees against the possible interests of unforeseen future employees, the balance is struck in favour of addressing the interests of present employ­ees in the stability of their bargaining relationship with the respondent. With respect to the respondent's arguments that the appropriate bargaining unit be defined with respect to one of its divisions, the Board is not persuaded that its arguments have any merit. The respondent acknowledges that the bargaining unit ought to be described without reference to a municipal address in the interests of stability of bargaining rights while arguing for the reference to one of its divisions in defining the appropriate bargaining unit.

62. In our view, the arguments of the respondent must fail. The inclusion of a reference to a divi­sion of the respondent in the appropriate bargaining unit is a destabilizing factor in bargaining rights. It is arguably open to the respondent to change its internal corporate structure and change and/or substitute a different division in its present premises in Mississauga. It is arguably even easier to effect a change in the internal corporate structure of the respondent than it is to relocate to a new address in Mississauga. For these reasons the appropriate bargaining unit is to be described without reference to a division of the respondent in the City of Mississauga.

See also Belkin Inc., [1986] OLRB Rep. Aug. 1050. We agree with the reasoning contained in those decisions and find the labour relations policy considerations described therein to be equally applicable in the present case. Thus, the Company's request that "c.o.b. as Golden Giant Mine Division" be added to the bargaining unit description is denied.

56. As noted above, the Company also seeks the addition of "involved in mining and mill­ing", and "excluding the quarry operation". The rationale advanced for the addition of "mining and milling" is that since the site is not located in a municipality, it is desirable to further tie down the location by reference to what Company counsel characterized as "the significant geographical structures located on the property". The exclusion of the "quarry operation" was also asserted by Company counsel to be warranted on the basis of a need for greater geographical precision, as well as on the basis that the persons who work there do not share a community of interest with the Company's employees engaged in mining and milling. It is common ground between the applicant and the responding party that within the scope of the bargaining unit sought by the Union, the Company has no employees involved in anything other than mining and milling. The work of the quarry operation is contracted out to another company, whose employees are already represented by the Union. The quarry operation is situated about a quarter mile from the mine. All of the pro­duction from the quarry operation is used to backfill the mine.

57. Having duly considered all of the submissions of counsel, we have concluded that the geographical description to which the parties have agreed (i.e., "located approximately 36.5 kilo-metres east of the town of Marathon") adequately describes the location of the site and should not be further qualified by adding "involved in mining or milling" and/or "excluding the quarry opera­tion". As submitted by Union counsel, issues pertaining to the contracting out of the work at the quarry operation are properly matters for collective bargaining. We do not find it appropriate to inhibit or preclude such bargaining by artificially narrowing the geographic scope of the bargaining unit to exclude an area in which the Company currently has no employees, but which is clearly a functionally related part of the Company's mining claim site to which this application pertains.

Accordingly, the Board, in the exercise of its discretion under section 6(1) of the Labour Relations Act, hereby determines that the following constitutes a unit of employees that is appropriate for collective bargaining:

all employees of Hemlo Gold Mines Inc. located approximately 36.5 kilometres east of the town of Marathon, save and except supervisors, persons above the rank of supervisor, office, clerical, technical, sales, security staff and students employed during the school vacation period.

58. As noted earlier in this decision, the Company has withdrawn its position (set forth in paragraph 11(a)(iv) of its response) that the applicant is not a trade union the Board should recog­nize. Moreover, section 107 of the Act provides:

Where in any proceeding under this Act the Board has found or finds that an organization of employees is a trade union within the meaning of subsection 1(1), such finding is proof, in the absence of evidence to the contrary, in any subsequent proceeding under this Act that the orga­nization of employees is a trade union for the purposes of this Act.

The applicant has been found to be a trade union in a number of earlier proceedings under the Labour Relations Act. Thus, in the absence of any evidence to the contrary, the Board, in accor­dance with section 107, finds that the applicant is a trade union within the meaning of section 1(1) of the Act.

59. The Board further finds that on or before the certification application date of January 25, 1993, 126 of the 216 employees in the bargaining unit on that date had applied to become mem­bers of the applicant. As noted above, section 8 of the Act includes the following provisions con­cerning representation votes:

(2) The Board shall direct that a representation vote be taken if it is satisfied that at least 40 per cent and not more than 55 per cent of the employees in the bargaining unit are members of the trade union on the certification application date or have applied to become members on or before that date.

(3) The Board may direct that a representation vote be taken if it is satisfied that more than 55 per cent of the employees in the bargaining unit are members of the trade union on the certifica­tion application date or have applied to become members on or before that date.

Company counsel requested the Board to exercise its discretion under section 8(3) to direct that a representation vote be taken in this case. He based that request upon a variety of circumstances, including the delayed posting of the original "green sheets", the isolated location of the worksite, the difficulty which some employees experienced in attempting to understand and obtain advice about their legal position, the intervenors' filing of the aforementioned petitions, the Board's refusal to change the venue of the hearing to Thunder Bay, the approximately 58% level of employee support for the Union (which Company counsel characterized as "not overwhelming"), the possibility that some employees who signed Union cards may have had a "change of heart", and the desirability of permitting employees, whom he described as being quite conversant with the democratic process, to express their true wishes through a representation vote. That request was supported by counsel for the intervenors but opposed by counsel for the applicant.

60. It would be inappropriate for the Board to direct that a representation vote be taken on the basis of the petitions filed by the intervenors because, as noted above, section 8(4) of the Act precludes the Board from considering them. As regards the othet bases put forward in support of the requested vote, we note that despite the isolated location of the worksite, the intervenors were able to retain counsel, file an intervention and notice of constitutional question, and make exten­sive submissions to the Board on the matters raised through their counsel. While employee support for the Union is clearly not unanimous, the cards which were duly filed by the Union in accordance with the requirements of the Act and the Rules demonstrate that the Union had the support of over 55% of the employees in the bargaining unit at the material time. Having duly considered the submissions of counsel and all of the circumstances of this case, we are unanimously of the view that there are no circumstances present which warrant the exercise of the Board's discretion under section 8(3) of the Act to direct that a representation vote be taken.

61. Section 9.1(2) of the Act provides:

If no representation vote is taken, the Board shall certify the trade union as the bargaining agent of the employees in the bargaining unit if it is satisfied that more than 55 per cent of the employ­ees are members of the trade union on the certification application date or have applied to become members on or before that date.

62. For the foregoing reasons, a certificate will issue to the applicant, pursuant to section 9.1(2) of the Act, for the bargaining unit described in paragraph 57 of this decision.