[1993] OLRB REP. MAY 397

3292-92-R United Food & Commercial Workers International Union, Local 175, Applicant v. Bilow's Raceway Auto Parts Inc., Responding Party

BEFORE: Louisa M. Davie, Vice-Chair, and Board Members W. A. Correll and G. McMenemy.

DECISION OF THE BOARD; May 6, 1993

1. By decision of the Board dated March 22nd, 1993 the applicant trade union ("UFCW" or "the union") was certified to represent certain employees of the respondent employer. That decision was issued after a hearing in this matter had been waived by the parties. During the course of the Board's usual waiver process the Board officer advised the parties of "the count" that is to say the number of employees in the agreed upon bargaining unit and the number of those employ­ees on whose behalf the union had filed documentary evidence of membership. That count was subsequently confirmed in the Board officer's letter to the parties dated March 23rd, 1993.

2. By letter dated March 25th, 1993 the employer's representative wrote to the Registrar as follows:

Following receipt of notification from Ms. B. Wild on March 24, my client, Bilow's Raceway Auto Parts Inc., posted Appendix B on its notice board. After posting, the employer was approached by five employees who insisted that they did not sign membership cards. The five employees are: Tom Burnett, Marc Bennett, Derek Bennett, Barton Atkins, and Doug Day. I am writing to request that the Board conduct a very thorough investigation into the union's evi­dences of membership since we now believe that signatures for the above-named employees may be improper. This request is being submitted by me on behalf of the employer and each of the employees who have signed in a space provided below.

Thank you for your assistance in dealing with this matter.

The letter is signed by the employer's representative and four of the employees named in the let­ter.

3. As a result of these "non-sign" allegations the Board conducted its usual investigation. By letter from the Registrar dated April 14th, 1993 the Board advised the respondent employer that it had conducted its investigations into the allegations raised in the March 25th letter and that the Board saw no basis for proceeding further.

4. By letter dated April 20th, 1993 the employer's representative wrote as follows:

I have received your letter of April 14th and have concerns about the Board's response. The purpose of this letter is to request reasons for the Boafd's decision.

The allegations of fraud, raised in my letter of March 25, are very serious and I believe that, as a matter of natural justice, the employer and the employees are entitled to know the reasons for the Board's decision not to proceed any further. I am also writing to request information concerning the nature of the Board's investigation into this matter. For example, did it con­tact all of the employees who claimed that they did not sign cards and deter­mine conclusively whether or not they had done so?

I look forward to your early response in this matter.

5. In the circumstances, the Board considers it appropriate to provide these written rea­sons for its decision not to proceed.

6. Subsection 113(1) of the Labour Relations Act protects the identity of persons who are members of a union or desire to be represented by a union. It also protects the identity of persons who are not members of a trade union or who do not wish to be represented by a trade union. The statutory direction is to maintain the secrecy of the wishes of the employees with respect to union representation and the Board goes to significant lengths to protect the confidentiality of the employees' wishes in accordance with the wording and purpose of subsection 113(1). (See, for example, Roytec Vinyl Company, [19901 OLRB Rep. June 720 and the cases referred to therein).

7. Subsection 113(1) states as follows:

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

8. The Board however must also be satisfied that an applicant trade union enjoys the sup­port of the majority of the employees in the bargaining unit. The primary method of ascertaining that support is the level of union membership. Under the Act the Board must be satisfied that more than fifty-five per cent of the employees in the bargaining unit are members of the trade union on the application date or have applied to become members on or before that date. (See Unlimited Textures Company, [1984] OLRB Rep. Jan. 138). As membership evidence is the pri­mary basis for its certification decisions, the Board has developed a number of safeguards in assess­ing membership evidence. Those safeguards are referred to in the Board's decision in Roytec Vinyl, supra, as follows:

9. In addition, there are a number of safeguards integrated into the process­ing and assessment of membership evidence by the Board. Every single membership card is painstakingly checked to insure that it complies with the Board's requirements for membership evidence. As well, the signature of each employee on each card is checked against a sample signature for that employee provided by the employer. This process is performed at least twice and sometimes more often on each application by Board clerks who are spe­cially trained to this end. Any discrepancies noted by them are brought to the attention of the panel deciding the case. Not infrequently, the panel will utilize the Board officer screening process to further check on a so-called "doubtful" signature and, as described in the Board's jurisprudence, mem­bership evidence is held to strict standards (see Grand & Toy, supra). While no process for assessing employee wishes or membership is absolutely fool­proof, generally speaking it is fair to say that this rigorous procedure has served the labour relations community well for many years. And as the Board noted in Grand & Toy, supra, errors in this process are extremely rare.

We note that in the present case, at the time the Board issued its written decision certifying the trade union, the signatures on the membership cards had already been checked against the speci­men signatures.

9. In addition to these safeguards the Board also has its well-established procedure with respect to conducting non-sign or "doubtful" signature investigations. Where an allegation of non-sign is raised (as in this case) or where the Board itself has identified a "doubtful" signature the Board will investigate. Although the Board investigates allegations of non-sign whenever they are raised, the allegation will not be heard by a panel of the Board unless the Board is satisfied that there is a prima facie case that the evidence of membership was not signed by the employee whose signature purports to be on the evidence of membership.

10. The investigation is initially carried out by a Board officer. The involvement or inter­vention of the Board officer is a necessary step in the Board's investigation of any non-sign or doubtful signature allegation in order to maintain the secrecy of the employee's wishes with respect to union representation as set out in subsection 113(1) of the Act. It would be inconsistent with the statutory intent of subsection 113(1) of the Act if the Board were to conduct a hearing that would have the effect of disclosing the identity of persons and their wishes with respect to union represen­tation merely because a non-sign allegation is made. Thus where a non-sign allegation is made the disclosure of the identity of the person alleged not to have signed and his/her wishes about union representation are protected to the extent possible until the officer's inquiry and investigation indi­cates there is a prima facie case. Only where there is a prima facie case will an employee's identity and wishes about union representation be revealed more extensively and a hearing conducted.

11. The Board officer's inquiry and investigation may reveal that the union did not file membership evidence on behalf of the person alleged not to have signed any membership evi­dence. If that is the case the investigation is concluded and further action is generally unnecessary. If membership evidence has been filed on behalf of persons alleged not to have signed evidence of membership the Board officer makes inquiries of that person. It is on the basis of these types of investigation that the Board determines if there is a prima facie case.

12. If it is determined that there is not a prima facie case the matter will not proceed any further. It may be that there is no prima facie case because the union did not file membership evi­dence on behalf of the person alleged not to have signed or it may be because the person admitted to the Board officer that he or she incorrectly or mistakenly told someone that he or she did not sign a card. (In this latter case we note that the Board officer's report is also signed by the employee, thus in effect providing the Board with yet another specimen signature for purposes of comparison).

13. Regardless of which of these reasons applies the Board's practice is to merely advise the party raising the non-sign allegation that there is no basis for proceeding further. It would be inconsistent with the confidentiality provisions of the Act for the Board to reveal that the matter will not proceed further either because a card was not in fact submitted on behalf of a particular person alleged not to have signed a card or because a person has admitted that he/she in fact signed the card submitted by the trade union.

14. In this case each of these steps to ensure the veracity of the membership evidence was followed. The result of these various steps, inquiries and investigations have caused the Board to conclude that there is no basis for proceeding further.