Service Employees Union, Local 183 v. Transcor Inc., 1993 CanLII 7926

[1993] OLRB Rep. November 1233

1988-93-R Service Employees Union, Local 183, Applicant v. Transcor Inc., Responding Party

BEFORE: M. A. Nairn, Vice-Chair.

APPEARANCES: Mark Wright, Lorne Richmond, and Norman C. Dunlop for the applicant; David Cole, Brian Mc Lean, and Terry FitzPatrick for the responding party.

DECISION OF THE BOARD; November 25, 1993

1. The style of cause is hereby amended to reflect the correct name of the responding party: "Transcor Inc.".

2. This is an application for certification. The Board finds that the applicant is a trade union within the meaning of section 1(1) of the Labour Relations Act (the "Act").

3. The parties met with a Labour Relations Officer prior to the hearing of certain issues in dispute. The parties reached partial agreement with respect to the bargaining unit description. They are in dispute as to the appropriate geographic reference to be contained in the description. At the outset of the hearing the parties agreed to defer consideration of that issue pending resolu­tion of the responding party's objection to the membership evidence filed in support of this appli­cation.

4. We note that the Labour Relations Officer's Report identifies a number of challenges to the list of employees in the bargaining unit, although it does not specify the nature of the chal­lenges. Those matters are also deferred pending the resolution of the issue with respect to the membership evidence.

5. A hearing was convened before me to deal with the position of the responding party (the "company or the -'employer") that the Board cannot place any weight on the membership evidence filed by the applicant in this application and that the application ought therefore to be dismissed. The responding party further seeks the imposition of a bar to further applications for certification for a period of six months. It is the applicant's (or the "trade union) position that the membership evidence filed is reliable and, given the level of membership support disclosed, ought to cause the Board to issue a certificate.

6. This is the second application for certification filed by this trade union. An earlier appli­cation was filed on August 6, 1993 for this bargaining unit of employees. On September 1,1993 early in the meeting with a Labour Relations Officer the applicant sought leave of the Board to withdraw that application and by decision dated September 1, 1993 the first application was with­drawn with leave of the Board.

7. This application was filed on September 15, 1993 and in support of that application new membership evidence was filed. Briefly, it is the position of the responding party that as a result of events occurring up to the filing of this application for certification, the membership evidence filed cannot be free from doubt as to whether it represents the true wishes of the employees involved. That history can be summarized as follows.

8. I note at this stage that the responding party provides school bus services. In addition it charters buses for specific trips. The bargaining unit sought by the applicant is, essentially, one of drivers.

9. The applicant appears to have commenced its first organizing campaign in the spring of 1993. At that time Mr. Babcock, then an employee of the responding party, was the key union organizer. Mr. Sedore. another employee, was also involved in the collection of membership evi­dence.

10. On March 23, 1993, Mr. Babcock and Mr. Sedore met with representatives of the responding party including Mr. FitzPatrick, the company's Vice-President. It would appear that Mr. Sedore requested the meeting for the purpose of discussing with the company some of the drivers' safety concerns. Mr. FitzPatrick had the Manager of Fleet Services, the person responsible for the operation of the vehicles, present. According to Mr. Babcock, that meeting did not go as well as he had hoped and he concluded that the company representatives were not interested in what he was discussing. It seems that notwithstanding the company's express position that it would not discuss matters involving the union's attempt to organize, Mr. Babcock tried to make that the primary topic for discussion.

11. At the conclusion of that meeting Mr. Babcock handed a sealed envelope to Mr. FitzPatrick, marked confidential. Contained in that envelope was a one page document titled "Job Description (Dispatcher)". Under that heading six items were set out, apparently referable to the duties to be assigned to this position. Following that is a title "wages". Seven points are then set out including an annual salary of $45,000.00, a six percent annual increase, a company car equip­ped with cellular phone, credit card and other benefits. Points 6 and 7 of that list state:

12. No termination unless both parties agree or should the union gets [sici in.

13. All of the above

Must be under a legal contract witnessed and signed by both parties involved.

12. At that time Mr. Babcock was employed as a driver on a part-time basis earning approximately eight to nine thousand dollars per year. Upon receipt of this letter, the company concluded that it was an attempt by Mr. Babcock to extort promises from it, and was being done at the expense of the rights of the employees. By letter dated March 31, 1993 Mr. Babcock was informed that as a result of his action in delivering these demands, the company was terminating his employment.

13. In response to that company action, the union filed a section 91 complaint on April 27,

1993 alleging that the company had terminated Mr. Babcock's employment by reason of his engag­ing in union activity. That complaint asserted that at the conclusion of the March 23 meeting Mr. Babcock provided Mr. FitzPatrick with a different list - one dated March 20, 1993 reflecting typical proposals that one would expect on behalf of the drivers (a copy of which was attached to the com­plaint). Mr. Babcock admitted that he led the union to believe that he had given Mr. FitzPatrick this list of demands as opposed to the list of personal demands and that in doing so he misled the union.

14. It is clear that Mr. Babcock was aware that the section 91 complaint did not accurately reflect events and that he allowed the complaint to be filed in any event. The union withdrew the section 91 complaint by letter dated May 5, 1993.

15. Mr. Babcock testified that he believed that he had told Mr. Dunlop, the union's staff representative, that he had given the company the list of personal demands at the time of his termination. That evidence was not challenged by Mr. Dunlop and the company asked that I draw the conclusion that the union was therefore aware prior to the filing of the section 91 complaint that Mr. Babcock had attempted to obtain these demands from the employer. It was the company's fur­ther position that the filing of the section 91 complaint by the trade union in those circumstances amounted to an attempt to deceive the Board and was characterized by the company as a fraud on the Board.

16. I am not persuaded that I ought to place much, if any weight on the evidence of Mr. Babcock as to whether or not Mr. Dunlop was aware of the false information forming the basis of the section 91 complaint. Mr. Babcock was at times unresponsive in his evidence and his answer with respect to the question of Mr. Dunlop's knowledge was in itself somewhat ambivalent and appears to contradict other of his evidence. While it is true that the evidence went uncontradicted. that occurred while Mr. Dunlop was acting on behalf of the union and I am not persuaded that it would have been apparent to Mr. Dunlop at the time that it was potentially a matter to be addressed by him. While I agree with counsel for the employer that a party must take responsibil­ity for the risks that may arise by choosing to appear without counsel, the allegation is serious and warrants a finding only on the basis of evidence that is both clearer and more cogent than Mr. Bab­cock's. I note as well that the section 91 complaint was withdrawn very soon after it was filed. I note there is no evidence to support a conclusion that Mr. Sedore was aware of the contents of the envelope.

17. The membership card used by the applicant reads as follows:

APPLICATION FOR MEMBERSHIP

Service Employees Union Local 183

I hereby request and accept membership in the Service Employees Union. Local 183 and hereby authorize such organization to be my exclusive collective bargaining agent. I agree to be bound by the Constitution and By-Laws of the International and the Local Union.

sign here

Signature of Applicant .................................................................................................

sign here

Signature of Witness ...................................................................................................

18. Mr. Babcock and Mr. Sedore acted as witnesses in the collection of cards for the first certification application. That application was withdrawn by the union on September 1, 1993 when it came to the union's attention that membership cards were "pre-witnessed", in the sense that the witness signed the card prior to the applicant for membership signing the card. The union acknowl­edged that on their face the membership cards purported to be something they were not, and that this affected the reliability of those cards. Therefore the application was withdrawn. There is no evidence from which it can be concluded that this was an intentional attempt to mislead the Board.

19. As set out earlier, the union then proceeded to have employees complete new member­ship cards. Mr. Sedore and Mr. Dunlop acted as witnesses in the collection of the membership evi­dence in respect of this, the second application for certification. There is no evidence to support the conclusion that Mr. Babcock had any involvement in the collection of membership evidence for this application, although he did continue to be involved as a union supporter in the campaign, even though he was no longer employed by the company.

20. There is no evidence of any improprieties of any sort in the collection of the member­ship evidence in this application for certification. Nor is there any evidence of intimidation or coer­cion or the like.

21. It was the position of the responding party that the Board could not be satisfied as to the reliability of the membership evidence filed in this application based on two categories of irregularities. The employer relies on the conduct of Mr. Babcock in respect of the section 91 com­plaint, and secondly, the fact of the improperly witnessed cards having been collected by the union in the first application. It is the position of the employer that in addition to obtaining new member­ship evidence, the only way for the union to have purged these historical problems was to ensure that different individuals acted as witnesses on behalf of the union. It was the company's position that it was incumbent on the union to assure the Board that it had instituted safeguards in its pro­cedures for the collection of membership evidence in this application given the earlier conduct. The company argued that it was incumbent on the union not only to keep Mr. Babcock away from the collection of new membership evidence but to keep him out of the organizing campaign in all respects. In support of its position the responding party relies on Grand and Toy, [1986] OLRB Rep. Sept. 1223, Hydro Electric Commission of Hamilton, (1958), 58 CLLC 1738, The Ontario Hospital Association, [1979] OLRB Rep. Mar. 243, Flo-Con Canada Inc., [1989] OLRB Rep. July 752, Crock and Block Restaurant and Tavern, [1980] OLRB Rep. Apr. 424, Emanuel Products Limited, [1977] OLRB Rep. Feb. 37 and Reimer Express, [1981] 1 Can. LRBR 336, a decision of the Canada Labour Relations Board, and the cases cited in those decisions.

22. In response, the union did not take great issue with the cases referred to. It argued how­ever that in light of there being no evidence of any impropriety of any kind concerning the collec­tion of the membership evidence in this application in circumstances where that evidence had been newly obtained, no "taint" could attach to the reliability of this membership evidence from the his­torical events. It was the union's position that Mr. Babcock's earlier conduct, which it did not con­done, could not affect the issue of whether or not the Board could rely on the membership cards filed in this application. To the extent there had been a problem with the collection of the member­ship evidence in the first campaign, it had been conduct of rank and file organizers as opposed to any union official or staff representative.

23. The union asked me to consider the fact that the old Form 9 under the old legislation has been amended to become Form A-4 and that there is no longer any requirement on the part of the union to conduct inquiries of those persons collecting the membership evidence. In response the employer noted that that only strengthened its argument and required the Board to be even more vigilant in its review of the membership evidence.

24. Although the employer urged me to impugn the membership evidence filed in this application on the basis that Mr. Babcock had continued to participate in the organizing campaign even in light of his earlier conduct, I am not persuaded that that is appropriate. The fact of his mere participation in the second certification application is insufficient in the absence of any allega­tions of any impropriety to raise any doubt with respect to membership evidence filed, in circum­stances where he did not witness any of that membership evidence. Mr. Babcock's conduct throughout the organizing campaign cannot in the circumstances, reflect on the reliability of the membership evidence filed.

25. To the extent that there is any connection whatsoever between the membership evi­dence filed in the second application for certification to any prior conduct on the part of the union is the fact that Mr. Sedore was a witness in respect of cards signed in both applications. It was acknowledged by the union that in the first application for certification, through the use of "pre­witnessed" cards, membership evidence was filed with the Board that purported to be something that it was not. On that basis the first application for certification was withdrawn. There is no evi­dence that in the first application for certification Mr. Sedore intended to mislead the Board. There is no suggestion that the union used "pre-witnessed" cards in this application. There is no evidence of any impropriety or irregularity regarding these new membership documents.

26. In Hydro Electric Commission of Hamilton, supra a first certification application was made by the local union. That short decision discloses that at the hearing the union representative assured the Board as to the regularity of the payment of dues in connection with the applications for membership that had been filed. This would correspond to the requirement under the old Form 9. Subsequently, two non-pay allegations came to the attention of the Board and following its usual investigation a further hearing was held. At that time counsel for the union advised the Board of certain circumstances (which are not disclosed in the decision) concerning the allegations of non­pay, and requested leave to withdraw the application. The Board dismissed the application, noting that in doing so it was following its usual practice and noting that the Board would, should another application be filed, entertain any representations of the parties with regard to the "timeliness" of that application.

27. Some three months later a second application for certification was filed although this

time it was brought by the parent international union. At the hearing the union representative gave assurances to the Board as to the regularity of the payment of dues in connection with the member­ship documents filed. The membership evidence submitted was new. The union did not rely on any of the documents filed in the earlier application.

28. In concluding that it was necessary to order a representation vote in the second applica­tion the Board stated:

……although the applicant in the instant case is the International itself, whereas the applicant in the earlier case was Local 138 of the International, and although the evidence of membership submitted in the instant case is fresh evidence and not merely a refiling of the evidence submit­ted in the earlier case, nevertheless, in view of the circumstances in which the request for with­drawal in the earlier case was made, there is a cloud on the documentary evidence in this case.

29. Although not entirely clear from the decision, it would appear that those circumstances included concerns about two non-pays and their effect on both the documentary evidence filed and on the assurances made to the Board by the union at the hearing (or what could later be described as a problem with the Form 9 Declaration).

30. Apart from the Hydro Electric Commission of Hamilton case there is reference to a decision in Echlin United of Canada Limited, 1965) OLRB Rep. May 91 where the Board ordered a vote because of a "cloud" on the membership evidence filed in a second application. In that case there had been an earlier application for certification that had been withdrawn in the face of an indication of deficiencies in the completion of the Form 9 Declaration. Shortly afterward the trade union filed a second application, filing evidence of membership in the form of resigned application cards in blank. These new cards did not indicate any payment of money. The original membership cards were the only membership documents to so indicate any payment of money. It is clear that in that case the union was attempting to rely on both sets of membership evidence, notwithstanding that the earlier evidence had been found to be deficient. As a result, the Board ordered a representation vote.

31. In the Ontario Hospital Association, supra, again, alleged irregularities in membership evidence in a first application were dealt with in the context of later submitting a new application with new membership evidence. In that case rank and file organizers had apparently signed as col­lectors of the one dollar payment although they had not in fact been the actual person receiving the dollar. There was no suggestion that a dollar had not been collected from the employee applying for membership. In effect the card purported to reflect that the person signing as collector of the dollar payment had in fact actually received the dollar, when another person on behalf of the union had done so. Allegations had initially been raised in the company's reply to the application for cer­tification, and upon investigation by the union, it sought leave to withdraw the application. The employer opposed the request to withdraw and sought the imposition of a bar. In dismissing the application without a bar the Board again stated that the dismissal would not preclude the employer from raising relevant allegations of improprieties in the future. Approximately four months later a second application was filed with fresh membership evidence.

32. The Board distinguished the Hydro Electric Commission case on the basis that it had involved some evidence of fraud being practised on the Board. The Board stated:

33. ... Instances of non-sign and non-pay with respect to evidence of membership have always been regarded by the Board as a fraud practised against the Board. Such instances of fraud have always been regarded by the Board as more serious than other conduct with respect to evidence of membership. Clearly in the Hydro Electric Commission of Hamilton case, the Board, as a result of the fraud which had apparently been practised on it, determined that a cloud remained

on fresh evidence of membership which was submitted by an international trade union rather than one of its local trade unions. In the instant application the Board is asked to consider the effect of allegations with respect to evidence of membership which had been filed in a previous application. The admissions by the applicant in the previous application do not amount to fraud.

(emphasis added)

33. I note the Board's last comment. In the Ontario Hospital Association case the Board did not consider as amounting to a fraud on the Board, circumstances where the membership evidence disclosed that a dollar had been paid and received by a particular individual when, although the dollar had been received, it had been by another individual. The primary concern of the Board in those circumstances was the assurance that the dollar payment was in fact made by the employee applying for membership.

34. The characterization of conduct as fraud in the Board's caselaw, has referred to non-pay and non-sign allegations, which fraud may or may not have been be carried through to taint the old Form 9 Declaration. For example, in Crock and Block, supra, even though the Board concluded that a non-pay allegation had been made out, it specifically noted that no Form 9 problem arose as the union organizer had made the necessary inquiries prior to signing the Form 9. It was the con­duct of the individual in failing to collect a dollar from the applicant for membership that troubled the Board and caused it to order a representation vote.

35. The collection of the dollar payment is no longer required. It continues to be the case, as the Board has said in the past, that it is prudent for a trade union to provide an independent confirmation of an employee's signature to a membership card through the use of a witness attest­ing to that signature on the card.

36. The Board in the Ontario Hospital Association case, supra, concluded that:

37. ... There is no evidence of any intention to mislead the Board. The admissions of the appli­cant in counsel's letter dated September 8, 1978, relate to irregularities caused by persons who are not representative of the applicant. There is nothing in the material before the Board which indicated fraud on the Board. In our view, there is nothing in the nature of a cloud on the fresh evidence of membership filed in the instant application. No allegations of improper or irregular conduct have been filed with respect to the fresh evidence of membership and the Board does not find it necessary to seek the confirmatory evidence of a representation vote.

The Board certified the applicant in that case based on the cards filed.

37. The most recent decision of the Board dealing with the issue of the filing of a second application for certification containing fresh membership evidence is Flo-Con Canada Inc., supra. In that case the union had withdrawn its first application for certification following allegations of one non-pay and numerous charges of intimidation, coercion, and misrepresentation with respect to the collection of the membership cards. Approximately three weeks later the union filed a sec­ond application for certification, together with fresh membership evidence.

38. The employer sought to rely on the allegations made in the first application both with respect to intimidation, coercion, and misrepresentation in the collection of the membership evt­dence and additional allegations of impropriety in obtaining the membership cards. There were no allegations of non-pay or non-sign with respect to any of the fresh cards nor any allegations with respect to the Form 9 Declaration before the Board. The Form 9 declarant was the same person in both applications.

39. In the first application an individual named Gorman had committed a non-pay, follow-

ing which the application had been withdrawn. Gorman was not a collector of any of the fresh cards in the second application nor was there any evidence that he was involved in any aspect of the collection of the new cards.

40. The Board heard evidence concerning certain alleged improprieties. The employer argued that the fresh membership evidence remained under a cloud, given the non-pay and Form 9 problems in respect of the first application. The employer argued that the applicant had committed a fraud on the Board in the first application and should not be allowed to escape the consequences of such behaviour by withdrawing it and filing a second application. In support of its position, the employer in that case also relied on the Hydro Electric Commission of Hamilton decision and the Ontario Hospital Association decision referred to earlier.

41. In concluding that it would not exercise the discretion to either dismiss the application or order a representation vote based on the earlier application involving a non-pay, the Board reviewed some of the cases following the Ontario Hospital Association decision as follows:

42. Secondly, the respondent alleged that the applicant union committed a fraud upon the Board with respect to the first application, and ought not to be allowed to benefit from such fraudulent behaviour by the mechanism of withdrawing the first application. No bar was imposed upon any subsequent application at the time the first application was withdrawn. Nor do the facts suggest that the Board ought to have imposed a bar with respect to the first application. (See, for exam­ple, The Watson Manufacturing Company of Paris Limited, [1968] OLRB Rep. Aug. 441, Amarcord Carpenters Ltd., [1989] OLRB Rep. June 531. Consequent upon that withdrawal, the applicant filed a new certification application, together with entirely new membership evidence. None of these cards involved the activities of Gorman, the person who had been responsible for the non-pay of a card in the first application. No allegations were filed with respect to any of this membership evidence nor with respect to the Form 9 declaration. This new membership evi­dence is satisfactory in all respects, and demonstrates support for the applicant in excess of fifty-five per cent of the employees in the bargaining unit.

43. The Board stated in Leco Industries Limited, supra:

44. The argument made by the respondents in the present case is virtually identical to that considered, and rejected, by the Board in the very recent decision in the Ontario Hospital Association (Board File No. 1772-78-R), decision dated March 14th, 1979 -as yet unreported. There, too, the respondent argued that, because of certain allega­tions which had been made in a previous application, the Board should exercise its discretion to order a representation vote in a subsequent application. At paragraphs 9 and 10 of the Ontario Hospital Association decision the Board summarized the argu­ment as follows:

45. The respondent argued that the Board relies upon Form 8 [now Form 9], Declaration concerning Membership Documents, and the evidence of membership filed by the applicant. The respondent stressed that Form 8 is to be completed on the basis of knowledge (including inquiries), informa­tion and belief and argued that Form 8 had been signed negligently and erroneously. On this basis the Form 8 filed in File No. 0718-78-R was char­acterized as inaccurate, false and misleading. In these circumstances, the respondent argued that there is a cloud on the evidence in the instant appli­cation (even if new evidence of membership has been filed) which may only be dissipated by a representation vote in the instant application.

46. The central question to be considered by the Board is whether the con­duct of the applicant with respect to evidence of membership in one appli­cation may cause the Board to seek the confirmatory evidence of a repre­sentation vote in a subsequent application for certification which involved the same employer, the same trade union and, to all intents and purposes, the same bargaining unit.

47. In view of this very recent Board decision, which contains a review of the authori­ties, it is unnecessary for the Board to repeat that review in the present case. Suffice to say that the Board adopts the reasoning and analysis of the panel in the Ontario Hospital Association case, as well as its conclusion that no representation vote should be ordered in these circumstances. Whether or not the Board can resort to evidence given before it at previous certification hearings when the panel was differently consti­tuted (in this regard see R. v. OLRB, ex parte Trenton Construction Workers Assoc., 1963 CanLII 117 (ON HCJ), [1963] 2 OR. 376 and, more recently, Radio Shack [1978] OLRB Rep. No. 1043) we are not persuaded that the allegations in the present application are of such kind or character as to prompt the exercise of our discretion to impose a bar or order a repre­sentation vote. There is no allegation before the Board in the present case with respect to any impropriety in the evidence presently before us. Nor, as we have already pointed out, is there any evidence of irregularity or misconduct in the previous application. In the circumstances, therefore, the Board is satisfied, on the basis of all the evidence before it, that more than fifty-five per cent of the employees of the respondent in the bargaining unit, at the time the application was made, were mem­bers of the applicant on the 9th April, 1979, the terminal date fixed for this applica­tion and the date which the Board determines, under section 92(2)(j) of the The labour Relations Act, to be the time for purpose of ascertaining membership under section 7(1) of the said Act.

48. In Duracon Precast Industries Ltd., [1981] OLRB Rep. Jan. 22, the Board wrote:

49. As the Board pointed out in the Ontario Hospital Association, case, [1979] OLRB Rep. March, p. 243, in the circumstances of the instant application, the central ques­tion to be considered by the Board is whether the conduct of the applicant with respect to evidence of membership in an earlier application may cause the Board to seek the confirmatory evidence of a representation vote in a subsequent application for certification which invokes the same employer, the same trade union and, to all intents and purposes, the same bargaining unit.

50. The applicant has disclosed to the Board the nature of the irregularity with respect to the evidence of membership in Board File No. 0997-80-R. The nature of the irregu­larity arose because of the conduct of an employee which subsequently became known to the applicant. There is nothing to indicate that the applicant attempted to mislead the Board. The respondent relied on decisions of the Board in the Hydro Electric Commission of Hamilton case, 58 CLLC ¶18,120, and in the Echlin United of Canada Limited case, [1965] OLRB Rep. May, p.91, in support of its proposition that a representation vote should be conducted by the Board. Those two cases involved attempts to mislead the Board and the Board directed a representation vote in each case. These two cases are distinguishable from the instant application in that there has not been a finding by the Board of any intention to mislead the Board. In addition, on the representations before it, the Board is not prepared to find that the applicant had any intention of misleading the Board in the earlier application for certification in Board File No. 0997-80-R.

51. The respondent has stated that there is a heavy onus on the applicant to satisfy the Board that the membership evidence is fresh and entirely without irregularity. The applicant has filed fresh evidence of membership in the instant application. The respondent has not suggested how the applicant would satisfy the requirement of being "entirely" without irregularity" having regard to the provisions of section 100 of the Act. The respondent has not alleged, and the Board's examination does not dis­close, any irregularity in the evidence of membership filed by the applicant. The Board is not prepared to find in the circumstances of the instant application either that there has been an abuse of the Board's procedures by the applicant or that there is a taint in the evidence of membership in the instant application.

52. The applicant has filed a duly completed Form 8, Declaration concerning Mem­bership Documents. This declaration has been completed on the basis of fresh evi­dence of membership and there is no indication before the Board that the declarant [sic] either in the earlier application or in the instant application did not complete the declaration to the best of his knowledge, information and belief.

53. Having regard to the foregoing, the Board is satisfied that it is not necessary for the Board to seek the confirmatory evidence of a representation vote in this applica­tion. The Board notes that the applicant has withdrawn its request that the Board invoke its powers pursuant to section 7a of the Act.

54. And in Barouh Eaton (Canada) Ltd., unreported, March 4, 1985, Board File #2883-84-R, the Board wrote:

55. Counsel for the respondent argued that the Board should order a representation vote in the circumstances of this case because the applicant had sought leave to with­draw an earlier application for certification in respect of this respondent during the course of the hearing in that proceeding in which testimony about certain improprie­ties in the membership evidence filed in that case had been led. The Board in that case had dismissed the application for certification. There were allegations filed by the respondent about harassment of employees in both that earlier proceeding and in the instant matter. The application in the first proceeding had been dismissed before the allegations of harassment could be considered by the Board. Counsel for the respondent did not attempt to lead any evidence of harassment at the hearing in this matter, but had requested that the Board appoint a Labour Relations Officer to investigate those allegations, and, depending on the result of that investigation and report of the officer, schedule another hearing to deal with the allegations. The Board, following its usual practice, did not appoint an officer to conduct the requested investigation. The Board received detailed submissions from counsel for the respondent and from counsel for the applicant as to whether the Board should order a representation vote in these circumstances. The representatives of the group of objecting employees were given the opportunity to make submissions, but chose not to do so. After hearing the submissions, the Board recessed and then returned to issue the following oral ruling:

The Board is not satisfied that the circumstances existing in this case should cause the Board to depart from its normal practice of requiring a party making allegations of improper conduct to particularize those allegations and call evidence at the Board's hearing.

Since the membership evidence filed in support of this application is fresh member­ship evidence, we find that the principles discussed by the Board in the Ontario Hos­pital Association case, [1979] OLRB Rep. March 243 and the Leco Industries Limited case [1979] OLRB Rep. May 404 are applicable here, and that there is no cloud on that membership evidence.

Thus, we are not persuaded that we should order a representation vote in this matter.

42. In Flo-Con Canada Inc. the Board accepted the new membership evidence filed even though the first application had been withdrawn because of a non-pay. The employer here argues that the Board's conclusion in Flo-Con Canada Inc. is based on the fact that the union used differ­ent individuals to collect the new membership cards thereby reassuring the Board of its veracity. While that was a fact that the Board considered the decision concludes:

43. We adopt the approach taken by the Board in these and numerous other decisions of the Board. The only irregularity or misconduct of which we either have evidence or a concession by the applicant is with respect to one card filed in support of the first application: the employee who had signed the card had not paid a dollar as the card suggested he or she did. This does not clearly point to any impropriety or attempted fraud on behalf of the union or the Form 9 declar­ant nor does it cast a cloud on the fresh membership evidence. We are not disposed to exercise our discretion and either dismiss this application or order a representation vote simply because one card in an earlier application involved a non-pay.

[emphasis added]

43. This case can also be contrasted with the Hydro Electric Commission case or the deci­sion in Flo-Con Canada Inc. where the first applications had been withdrawn because of non-sign or non-pay concerns. There is no evidence of any improper conduct on the part of the union in the collection of this fresh membership evidence. Nor did the conduct in the prior application amount to non-sign or non-pay issues. (I note that based on this latter distinction the decision in Flo-Con Canada Inc. does not follow the Hydro Electric Commission decision).

44. The circumstances here most closely resemble those in the Ontario Hospital Association case. The "pre-witnessing" of cards is conduct similar in nature to attesting to the receipt of the dollar payment although not collected by that person. As indicated earlier, the Board in the Ontario Hospital Association case did not consider that conduct to amount to a fraud on the Board. More to the point, it did not view the conduct in the first application as having any effect on the membership documents filed in the second application in circumstances where that new evi­dence was itself not impugned in any way.

45. In assessing the reliability of the cards filed the Board need be confident that the person whose name is reflected on the card actually signed the document and has thereby indicated their wishes with respect to union representation. The signature of a Witness provides at best, confirma­tory evidence. In the absence of any impropriety of any nature with respect to the new member­ship evidence filed there is no basis for exercising the discretion to order a representation vote or to dismiss the application and I decline to do so.

46. There remains to be determined the issues noted at paragraphs 3 and 4 of this decision. The parties are hereby directed to meet forthwith with a Labour Relations Officer for the purpose of attempting to resolve any and all remaining issues in dispute in this application, in light of the documentary evidence of membership filed, failing which the matter will be set down for hearing on an expedited basis.

47. This matter is referred to the Manager of Field Services.