IWA - Canada v. Shaw Industries Ltd., 1993 CanLII 7863

[1993] OLRB Rep. August 798

1003-93-R IWA - Canada, Applicant v. Shaw Industries Ltd. c.o.b. as Canusa (a Division of Shaw Industries Ltd.), Responding Party v. Group of Employees, Objectors

BEFORE: Laura Trachuk, Vice-Chair, and Board Members W. N. Fraser and B. L. Armstrong.

APPEARANCES: Rene Brixhe and Jim Fyshe for the applicant; Brian P. Smeenk, Dan Sharkey and Carmen Nelson for the responding party; C. J. Abbass, Norm Waters, A lyre Leclerc, John Ranger and David McGill for the group of employees.

DECISION OF THE BOARD; August 25, 1993

1. This is an application for certification. The style of cause is hereby amended to reflect the correct name of the responding party: "Shaw Industries Ltd. c.o.b. as Canusa (a Division of Shaw Industries Ltd.)." On the morning of the hearing, the applicant was represented by Mr. Rene Brixhe; in the afternoon it was represented by Mr. Jim Fyshe.

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 June 21, 1993 which thus became the application filing date by virtue of Rule 8. On June 21 the Board's Registrar sent notice of the application to the responding party Canusa (also referred to in this decision as "the company"), together with Form B-4, a Notice to Employees of Application for Certification and of Hearing for immediate posting. The Notice indicated that a terminal date had been set for this application of June 28, 1993. On or prior to that date, eleven pieces of correspondence were received from employees of the company. One piece of correspondence from an employee was received subsequent to that date.

3. The Board finds that the applicant is a trade union within the meaning of section 1(1) of the Labour Relations Act.

4. Representatives of the applicant (also referred to in this decision as the "union"), the responding party and the employees who had submitted correspondence to the Board (referred to in this decision as "the group of employees") met with a Labour Relations Officer on July 14, 1993. At that meeting, the parties agreed that the following, subject to the disputed positions, constitutes a unit of employees appropriate for collective bargaining:

all employees of Shaw Industries Ltd. c.o.b. as Canusa (a Division of Shaw Industries Ltd.) in the Town of Huntsville, save and except foremen, persons above the rank of foreman, office and sales staff, engineers employed in their professional capacity, students employed in a co-operative training program, students employed during the school vacation period and, pending resolution by the Board, excluding as well Quality Control Inspectors and the Shipper-Expeditor, and Lead-Hand/Foreman.

At that meeting the parties also agreed that a Labour Relations Officer should conduct examinations with respect to the disputed positions. Furthermore, at that meeting the Officer advised the parties that the union's membership evidence disclosed that it had support of more than fifty-five per cent of the employees in the proposed bargaining unit regardless of the final decision on the disputed positions. The union was therefore in a position to receive an interim certificate subject to the issues being raised by the group of employees. Those issues, as outlined in the report from that meeting, which was signed by all the parties, were as follows:

(1) Timeliness of petitions.

(2) Charter challenge:

(i) no notice to employees

(ii) denied both freedom of expression and freedom of association

(iii) Board breaching Charter as employees not being treated equally before the law in certification process.

(3) Right of employees to call evidence for consideration by the board in the exercising of their discretion.

Objectors will be addressing the Board into their right to inquire into the adequacy of the membership evidence.

A hearing was therefore convened by the Board to address the issues raised by the group of employees.

5. The correspondence submitted by the group of employees was of various types. Some of the notes and letters appear to be revocations of applications for union membership, others indicate concerns with respect to the union organizing drive, specifically that not all persons in potential bargaining unit had been informed of it. Most of the documents indicated a desire not to be unionized. A number of documents indicated a desire that a representation vote be held. One document indicated that the correspondent felt that he or she had been "pressured into signing" and requested that there be a representation vote. All of these documents were initially treated by the Board as "untimely statements of desire" and the Registrar wrote to all the correspondents indicating that the Board was unable to consider their documents in connection with this application.

6. At the beginning of the hearing on July 19 we asked counsel for the group of employees to outline the issues he would be raising. He indicated that he would be arguing that section 8(4) of the Labour Relations Act is unconstitutional as it contravenes the Canadian Charter of Rights and Freedoms (the "Charter"), and that the Board's interpretation of the "application date" in that section is incorrect and a denial of natural justice even if it were not found to be unconstitutional. He also advised that he was taking the position that the Board must consider viva voce evidence from the employees who had indicated a wish to participate in the proceedings in exercising our discretion as to whether or not to decide to order a vote in these circumstances. Copies of the correspondence from the group of employees with the names removed was provided to the union and the company at the hearing.

7. The first issue considered by the Board was the group of employees' allegation that section 8(4) of the Labour Relations Act contravened sections 2 and 15 of the Canadian Charter of Rights and Freedoms. The group of employees failed to notify the Attorneys General of the Province of Ontario and of Canada that it would be bringing this challenge to the legislation, and we heard submissions as to whether we should hear the argument in the absence of such notice. Counsel for the group of employees argued that although he had put his mind to giving such notice, he had decided it was not necessary because in the Board's recent decision in Hemlo Gold Mines Inc., [1993] OLRB Rep. Mar. 158, the same section of the Labour Relations Act had been subject to a challenge under the Charter, the Attorney General had been notified and had not wanted to attend. Counsel for the group of employees indicated that he therefore felt it was not necessary to give the Attorneys General notice in these circumstances. Counsel for the company argued that under the Courts of Justice Act notice is not necessary when Charter arguments are made before an administrative tribunal.

8. The Board ruled unanimously that we would not hear the "Charter" argument in the absence of notice to the Attorney General. Whether or not it is strictly necessary under the Courts of Justice Act that notice be given before a tribunal can consider such argument, it has been the Board's practice to require such notice. (See F.D. V. Construction Limited, [1986] OLRB Rep. May 617; Dominion Paving, [1986] OLRB Rep. July 946; Arlington Crane Service Limited, [1987] OLRB Rep. Jan. 7; Connie Steel Products Limited, [1987] OLRB Rep. Oct. 1225; Bay Tower Homes Company Ltd., [1988] OLRB Rep. March 259; Cuddy Chicks Limited, [1988] OLRB Rep. May 468; Pinkerton's of Canada Ltd., [1988] OLRB Rep. June 613; Hemlo Gold Mines Inc., supra.) Furthermore, counsel for the group of employees acknowledged that he knew that such notice had been given in the past. We note that the Attorney General of Ontario in the Hemlo Gold Mines Inc. case, supra, did not express disinterest in the issue before the Board as suggested by counsel for the group of employees; rather, it indicated that it supported the constitutional validity of the impugned legislative provisions, but that it was not possible to intervene in the proceeding on only six days' notice. The Attorney General further indicated in that case that since it did not believe an adjournment of the proceedings was appropriate, it would not participate in that stage of the proceedings. We were unwilling to hear an argument which, if accepted by us, would result in us declaring section 8(4) of the Labour Relations Act ineffective, at least in the circumstances of this case and, potentially in other cases, without the Attorney General having been given an opportunity to participate. We therefore did not allow the group of employees to make the Charter argument and, under the circumstances, did not feel it was appropriate to permit an adjournment in order for notice to be given.

9. Subsequent to the completion of the hearing of this matter, the Board received correspondence from counsel for the group of employees advising that he has now provided Notice of Constitutional Question to the Attorneys General of Ontario and Canada. Counsel indicated in this correspondence that he understood that the Board would be reconvening to hear evidence and/or submissions regarding the exercise of the Board's discretion to order a vote in these circumstances. Counsel requested that he be permitted to make his submissions with respect to the Canadian Charter of Rights and Freedoms on the next day of the hearing.

10. We are satisfied that it was clear to all participants at the hearing of this matter that the hearing would only be reconvened in the event that we decided that we should hear viva voce evidence from the group of employees concerning the content of the documentation they submitted to the Board. The correspondence received from counsel is essentially a request to reconsider our oral ruling of July 12th. Counsel for the group of employees has not provided any reason which would meet the Board's test for reconsideration of our decision with respect to hearing the Charter arguments. The request by the group of employees to reconsider our oral decision of July 12th, is therefore denied.

11. The group of employees then proceeded with the rest of its argument. Counsel argued that the Board's Notice to Employees of Application for Certification and of Hearing is not a notice of application but is only a notice of hearing, and that there is no provision in the Board's Rules as to how notice of application is to be given. Counsel argued that employees were entitled to notice of the application as they are entitled to an opportunity to exercise their democratic right to debate the union's organizing drive and to attempt to persuade those who had signed union cards to change their minds. Counsel argued that the Board's interpretation of "certification application date" in section 8(4) of the Labour Relations Act deprives employees of this opportunity and is therefore an incorrect interpretation of that section. Counsel for the group of employees argued that employees must be notified prior to the certification application date that a union organizing drive is in progress. Counsel also argued that it was unfair that, under the Board's interpretation, the determination as to the certification application date is effectively delegated to the union seeking to represent the employees. Counsel argued that the Board should set a certification application date which is different from the date that the application was filed by the union and that we can do so under section 8 of the Labour Relations Act.

12. Counsel for the company supported the submissions of the group of employees on this point. The company argued that the principle of audi alterem partem ought to apply and that it requires that notice of the application be given in advance so that employees have an opportunity to take steps to protect their right to participate. The company agreed with the group of employees that the Board was misinterpreting section 8(4) of the Labour Relations Act.

13. Counsel for the company also argued that the Board's Notice, Form B-4, is flawed in that paragraph 3 of that Form goes beyond the requirements of section 8(4) of the Labour Relations Act, and provides that "the Board will not consider evidence of objection to the union's certification or evidence of reaffirmation if it is filed or presented after the certification application date". Counsel stated that section 8(4) does not prohibit the Board from considering "evidence of objection to the union's certification". Counsel argued that as a result of its wording, the Board's Notice to Employees was flawed as it misled employees, and that natural justice required that the Notice should be re-posted with a new certification application date or that a vote should be held.

14. Counsel for the union argued that natural justice required only that notice be given to interested parties of a judicial proceeding and that such notice had been given in this case as required by section 6 of the Statutory Powers Procedures Act. Mr. Fyshe noted that there could be no question about the adequacy of the Notice or its language in these circumstances as eleven employees filed correspondence with the Board by the terminal date, retained counsel and appeared at the hearing. He argued that employees were obviously not misled into a belief that they had no right to file any correspondence with the Board.

15. Section 8 of the Labour Relations Act provides as follows:

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.

(5) The Board shall not consider evidence of a matter described in paragraph 1, 2 or 3 of subsection (4) that is filed on or before the certification application date unless it is in writing and signed by each employee concerned.

(6) The Board may consider evidence of a matter described in paragraph 2 or 3 of subsection (4) but only for the purpose of deciding whether to make a direction under subsection (3) and only if the evidence is filed or presented on or before the certification application date and is in writing and signed by each employee concerned.

(7) 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;

(b) requiring that evidence of a matter described in paragraph 2 or 3 of subsection (4) that is filed or presented on or before the certification application date and is in writing and signed by each employee concerned be proven to be a voluntary expression of the wishes of the employee; or

(c) considering, in relation to evidence of a matter described in paragraph 1, 2 or 3 of subsection (4) that is filed or presented on or before the certification application date and is in writing and signed by each employee concerned, further evidence identifying or substantiating that evidence.

The Board's Form B-4, Notice to Employees of Application for Certification and of Hearing, reads as follows:

File No. 1003-93-R

Form B-4

LABOUR RELATIONS ACT

NOTICE TO EMPLOYEES OF APPLICATION FOR CERTIFICATION AND OF HEARING

BEFORE THE ONTARIO LABOUR RELATIONS BOARD

Between:

IWA - Canada,

Applicant,

• and -

Canusa (A Division of Shaw Industries Ltd.),

Responding Party.

TO THE EMPLOYEES OF:

Canusa (A Division of Shaw Industries Ltd.)

1. The applicant, applied on JUNE 18, 1993 to the Ontario Labour Relations Board for certification as bargaining agent of employees of Canusa (a Division of Shaw Industries Ltd.) in the following unit:

"All employees of Canusa (a Division of Shaw Industries Ltd.) in the Town of Huntsville, save and except foremen, persons above the rank of foreman, office and sales staff and students employed during the school vacation period."

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 JUNE 28, 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. However, the Board will not consider evidence of objection to the union's certification or evidence of re-affirmation if it is filed or presented after the certification application date.

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 in the Board Offices, 3rd Floor, 400 University Avenue, Toronto, Ontario, on WEDNESDAY, JULY 14, 1993, at 9:30 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 in the "Board Room", 6th Floor, 400 University Avenue, Toronto, Ontario, on MONDAY, JULY 19, 1993, at 9:30A.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.

8. 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).

9. If you do not attend 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.

DATED July 21, 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

M7A 1V4

(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).

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 REQUEST(S).

16. The arguments made by the group of employees and the company with respect to the Board's interpretation of the certification application date in section 8(4) of the Labour Relations Act have already been considered and rejected by the Board in Hemlo Gold Mines Inc., supra. That decision was upheld by the Divisional Court (Ontario Court (General Division)) in an unreported decision on May 31, 1993 [now reported at [1993] OLRB Rep. May 471]. In the Hemlo decision the Board ruled as follows:

17. 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.

18. 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. We agree with the interpretation of the Board in Hemlo Gold Mines Inc., supra. We therefore dismiss the arguments of the group of employees and the company that the certification application date referred to in section 8(4) of the Labour Relations Act should be a date other than the date upon which the application was filed by the union. We also reject the arguments that not to so find is a denial of natural justice. We note that that argument was specifically addressed and dismissed by the Court. We also reject the submissions that the union has an obligation to inform all employees of the union organizing drive prior to filing the certification application. An identical argument was also rejected by the Board in Hemlo Gold Mines Inc.

28. We also dismiss the company's argument that the Form B-4, Notice to Employees, was inadequate and fatally flawed. While it is true that the Notice does not directly incorporate the language of section 8(4) of the Labour Relations Act, it does substantially reflect that section albeit in language which attempts to make it more comprehensible to employees. We note that in this case there does not appear to have been any misapprehension on the part of these employees as to their rights, eleven of whom filed correspondence with the Board prior to the terminal date, retained counsel to come and make representations on their behalf and participated in the meeting with the Labour Relations Officer. We therefore dismiss the request from counsel for the company that the Notice be revised and re-posted or that a vote be held.

29. The group of employees also argued that they have a right to participate and present viva voce evidence to the Board which we must consider in determining whether to exercise our discretion to order a vote. The group of employees argued that they had the right to participate and present evidence regardless of our interpretation of section 8(4). Counsel for the group of employees argued that the documents we received from these employees were in themselves requests to participate in the proceeding. It was submitted that the employees wished to testify as to the contents of the correspondence they forwarded to the Board and that the contents of that correspondence was relevant to the exercise of the Board's discretion in determining whether to order a vote in these circumstances.

30. Counsel for the company again supported the arguments of the objecting employees and argued that natural justice required that the group of employees be permitted to testify before the Board with respect to their views on the union. The company argued that evidence which might be pertinent to the Board's exercise of discretion would be~ evidence with respect to the union's conduct during the collection of membership cards, and that there were statements in the documentation forwarded to the Board suggesting that pressure had been exerted by the union and we should therefore hear the evidence. Counsel also argued that employees who had not been asked to sign cards would not have had any prior opportunity to participate in the union organizing drive and we should therefore hear evidence from them. The company argued further that any requests by employees for a vote was also relevant to the Board's discretion and that we should therefore hear evidence from those requesting a vote.

31. Counsel for the union argued that the correspondence submitted by the group of employees does not on its face indicate a wish to participate in the proceeding and that, in any case, Rules 13 and 14 of the Board's Rules of Procedure outline the requirements of the documentation which must be submitted by someone who wishes to respond to an application. The union noted that those Rules were not complied with in the circumstances. Counsel agreed that the Board had the discretion to consider whether a vote should be ordered, even where the union had filed membership evidence of more than fifty-five per cent of employees in the proposed bargaining unit. The union also agreed that there are circumstances in which the Board would permit the participation of employees and consider their evidence in determining whether to exercise our discretion to order a vote. However, the union argued that in order for us to hear evidence from employees, those employees would have to make allegations which would be relevant to the exercise of our discretion; for example, allegations with respect to fraud or illegal or improper conduct on behalf of the union. If such an allegation were made it was argued, the employees would have to comply with the Board's Rule No. 16. In any case, counsel for the union argued there are no such allegations in the correspondence submitted by this group of employees. The union did not agree that employees had an absolute right to testify before the Board with respect to their views on the union or the appropriateness of ordering a vote. Counsel for the union disputed that the one piece of correspondence which indicated that the writer had felt pressured was an allegation of impropriety, as there was no allegation of unlawful or illegal pressure, and that in any case, if there had been an allegation of impropriety, the employee would have had to comply with the Board's Rules 13, 14 and 16 which read as follows:

32. A person receiving notice of an application who wants to participate in any way in the case, must file a response with the Board by the terminal date, if any. If there is no terminal date, he or she must file the response not later than twelve (12) days after the Registrar sent the notice.

33. Any response filed with the Board must include the following details:

(a) the full name, address, telephone number and facsimile number (if any) of the responding party, of a contact person for the responding party and of any other person who may be affected by the application;

(b) a statement of agreement or disagreement with each fact or allegation in the application;

(c) a statement of the responding party's position with respect to the orders or remedies requested by the other parties;

(d) where the responding party relies on a version of the facts different from the applicant's, a detailed statement of all material facts on which the responding party relies, including the circumstances, what happened, when and where it happened, and the names of any persons said to have acted improperly.

16. Where a party in a case intends to allege improper conduct by any person, he or she must do so promptly after finding out about the alleged improper conduct and provide a detailed statement of all material facts relied upon, including the circumstances, what happened, and when and where it happened, and the names of any persons said to have acted improperly.

Counsel for the union argued finally that it would not be appropriate to order a vote in this case as there are no allegations that there was any impropriety in the gathering and collection of the membership evidence, and that even if all of the correspondence received from the employees was considered to be revocations, the union still had more than fifty-five per cent support of the employees in the relevant bargaining unit.

22. The Board has the discretion under section 8(3) of the Labour Relations Act to order a representation vote even when it is satisfied that more than fifty-five 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. It is also clear that employees may submit documentation indicating their wish to participate in the certification application proceedings on or prior to the terminal date, although the Board shall not consider any of the evidence outlined in section 8(4) of the Labour Relations Act. However, the extent of the employees' participation as well as the extent of any other party's is not unlimited. The Board will only hear evidence that is relevant to those issues before it. In these circumstances the Board may limit evidence to matters which would be relevant to the exercise of our discretion to order a vote in the circumstances.

23. Although section 8(3) of the Labour Relations Act confers on the Board a discretion to order a representation vote even where the applicant union has demonstrated membership of more than fifty-five per cent, the Act contemplates automatic certification to a union that has demonstrated this level of support except in exceptional circumstances.

24. Generally, once satisfied that the applicant union has more than fifty-five per cent support, the Board will not exercise its discretion to order a vote unless there are compelling reasons to do so and on the basis of cogent evidence. (See Walbar of Canada Inc., [1982] OLRB Rep. Nov. 1734; Gruyich Services Inc., [1986] OLRB Rep. Aug. 1092; Unlimited Textures Company Limited, [1984] OLRB Rep. Jan. 138; Cleveland-Cae Metal Abrasive Limited, [1979] OLRB Rep. Feb. 81; Baltimore Aircoil Interamerican Corporation, [1982] OLRB Rep. Oct. 1387, and Shrader Canada Limited, [1993] OLRB Rep. Mar. 246.) The Board has found in a number of cases that its discretion under section 8(3) should be exercised in a way that recognizes that the statutory scheme is based primarily on documentary evidence of membership. In P. J. Wallbank Manufacturing Co. Limited, [1988] OLRB Rep. Mar. 319, at 321, the Board stated:

"In this jurisdiction representation votes remain a residual mechanism resorted to only when the union is unable to establish a "clear majority" (i.e. more than fifty-five per cent), there is some reason to doubt the reliability of the membership evidence as an indicator of employee wishes, or there is some policy reason or special circumstance warranting the additional evidence of a representation vote. The Statute is quite clear that where the union has established the requisite "clear majority", votes are to be the exception, not the rule".

25. In Gruyich Services inc., supra, at 1095, the Board had this to say:

"The scheme of the Labour Relations Act makes the documentary evidence filed by a trade union in support of an application for certification the primary basis upon which the wishes of the affected employees are gauged. The Board does not solicit viva voce opinions regarding the virtue, or lack of virtue, in union representation. Representation votes are a residual mechanism for use in circumstances where the trade union either cannot demonstrate clear majority support (i.e. more than 55%) or where the circumstances and the particular application call for one".

26. Thus, rather than ensuring majority employee support in every case by requiring a representation vote, the legislation in Ontario (and most jurisdictions in Canada) ensures that there is majority support for the union by certifying without a vote in cases where the union has support of more than fifty-five per cent of the members. Once an applicant union has demonstrated more than fifty-five per cent support in the form of membership documentation, it is only in exceptional circumstances that the Board will exercise its discretion to order a representation vote. This practice generates certainty for all parties involved and ensures that the certification process is as expeditious as possible. At the same time, the integrity of the certification process is protected by allowing the Board some discretion to order a representation vote only in cases where warranted.

27. Requiring compelling reasons before ordering a representation vote is justified by the fact that the Legislature has set the threshold for automatic certification at more than a simple majority. In Unlimited Textures Company Limited, supra, at 142, the Board said:

"The Legislature's choice of membership evidence as the primary basis for the certification decision recognizes the obvious correlation between a desire for trade union representation and the act of joining a trade union. Any uncertainty inherent in equating the two is balanced by striking a confidence level of fifty-five per cent

28. Over time, the Board has developed a non-exhaustive list of what may be "compelling reasons" to order a vote in circumstances where the union has otherwise filed evidence of sufficient membership support. A vote may be required where one of the following intervening factors arises and calls the evidence into question: build-up or build-down of the bargaining unit (Cobi Foods Inc., [1987] OLRB Rep. June 815; Simpsons Limited, [1985] OLRB Rep. May 731); stale membership evidence (Primo Importing & Distributing Co. Ltd., [1981] OLRB Rep. July 953); unreliable membership evidence (Gruyich Services, supra); intimidation or coercion (PRC Chemical Corp. of Canada, [1980] OLRB Rep. Dec. 1805; St. Michael Shops of Canada Ltd., [1979] OLRB Rep. Apr. 346); misrepresentation or fraud (Carleton University, [1975] OLRB Rep. Apr. 308; General Motors of Canada Ltd., [1980], OLRB Rep. Oct. 1437).

29. The Board is prepared to accept for the purposes of this decision that the eleven pieces of correspondence received by the Board on or prior to the terminal date represent requests to participate in the certification application proceedings.

30. Mr. Abbass twice confirmed for the Board that the viva voce evidence which the group of employees wished to present was contained in the correspondence it filed with the Board. Those who wished to testify that they wanted a vote would, he indicated, advise the Board that they wished a vote, either because they were opposed to unionization or because they believed in the democratic process of a vote. None of the correspondence received by the Board from the employees makes any allegation or raises any issue which the Board might consider a sufficiently compelling reason to order a vote in circumstances where it is satisfied that more than fifty-five per cent of the employees in the bargaining unit have applied to become members of the trade union on or before the application certification date. We do not find that an allegation that an employee felt pressured into signing a union card is an allegation of an impropriety which should compel the Board to hear evidence. Furthermore, if the allegation of pressure was an allegation of union impropriety, the person making the allegation would have had to comply with Rule 16 of the Board's Rules of Procedure. No impropriety was particularized. Allowing the employees who filed correspondence with the Board to testify with respect to the content of that correspondence would unnecessarily delay the certification application in order to hear evidence which, on the face of the documentation provided, would not affect the Board's exercise of discretion in these circumstances.

31. The Board does not accept the argument that the amendments to the Act in section 8(4) should result in the Board exercising greater latitude in the evidence which employees may present to it in these circumstances. There is nothing in the amendments to the Act which suggest that the Board's discretion in ordering a representation vote in circumstances where it is satisfied that more than fifty-five per cent of 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 should be exercised any differently than it has been in the past. On the contrary, the amendments to the Act appear to have been designed to further reduce delay in the certification application process.

32. There was nothing in the representations of the group of employees or in the submissions of the company which would lead the Board to conclude that holding a representation vote would be appropriate in these circumstances.

33. The Board, pursuant to its discretion under section 6(2) of the Act, and having regard to the agreement of the parties, certifies the applicant as the bargaining agent for:

all employees of Shaw Industries Ltd. c.o.b. as Canusa (a Division of Shaw Industries Ltd.) in the Town of Huntsville, save and except foremen, persons above the rank of foreman, office and sales staff, engineers employed in their professional capacity, students employed in a co-operative training program, students employed during the school vacation period and, pending resolution by the Board, excluding as well Quality Control Inspectors and the Shipper-Expeditor, and Lead-Hand/Foreman.

34. The Board hereby directs that a Labour Relations Officer conduct an examination into the duties and responsibilities of the disputed positions.

35. A final certificate must await the resolution of the remaining dispute.