United Steelworkers of America v. Tate Andale Canada Inc., 1993 CanLII 8032

3402-92-R United Steelworkers of America, Applicant v. Tate Andale Canada Inc., Responding Party v. Group of Employees, Objectors

BEFORE: S. Liang, Vice-Chair.

APPEARANCES: Robert Healey and Brando Paris for the applicant; Eric M. Roher and Brian

McBain for the responding party; Eric Power and Jim Cacouryotis for the objectors.

DECISION OF THE BOARD; April 22, 1993

This is an application for certification in which the United Steelworkers of America ("the Steelworkers" or "the union") seeks to be certified to represent the employees of Tate Andale Canada Inc. ("Tate" or "the company"). The parties have agreed to the following bargaining unit, which the Board finds appropriate for collective bargaining:

all employees of Tate Andale Canada Inc. in the City of Vaughan, save and except Supervisor, persons above the rank of Supervisor, office, clerical and sales staff.

As disclosed to the parties prior to the hearing, the union filed in support of this application documentary evidence of membership on behalf of 13 persons. A statement of desire (or "petition") was also filed with the Board, on the application date, February 19, 1993. This petition contains 13 signatures, all of which correspond to the list of persons employed in the bargaining unit on the application date. Of these 13 signatures, 8 coincide with the names of persons on whose behalf the union has submitted membership evidence. The union takes the position that this petition does not constitute a voluntary expression of the wishes of the employees signing it.
On the first day of hearing, Eric Power appeared on behalf of the employee objectors. Jim Cacouryotis is also a representative of the employee objectors. Mr. Cacouryotis wrote to the Board prior to the hearing asking that the matter be adjourned for the first day, since he would be unable to attend because he was attending to the real estate deal on a new home. The applicant did not consent to the adjournment request. At the hearing, Mr. Power indicated that he and Mr. Cacouryotis intended to give evidence in support of the petition, that Mr. Cacouryotis was unable to attend on the first day, but that he was prepared to commence the hearing without Mr. Cacouryotis.
In addition to the voluntariness of the petition, the list and composition of the bargaining unit on the date of the application is also in dispute. The parties disagree as to the status of Richard Grainger. The union asserts that Grainger is not an employee in the bargaining unit insofar as he is a member of the sales staff. Although prior to the hearing, there was an issue as to whether Heath Sweetman and Rodney Cake properly belong on the list of employees, by the time of the hearing, this was no longer an issue. The terminations of Sweetman and Cake prior to the date of application were the subject of separate proceedings before the Board, which resulted in an interim order dated March 2, 1993, reinstating them pending the disposition of further hearings, and a final order dated March 26, 1993. In this final order, the Board found Tate in contravention of the Labour Relations Act in, among other things, the discharge of Sweetman and Cake and ordered their reinstatement.
I was therefore satisfied that Sweetman and Cake belong on the list of employees employed for the purposes of this application, and so informed the parties at the hearing.
Another issue before me was raised by the company's response of March 1, in which it alleges that "inside organizers of the applicant, which we have been told were Heath Sweetman, Ken Relf, and Rod Cake, threatened at least one bargaining unit employee with harm if they did not sign a card for the applicant." The company states that a "bargaining unit employee, Cecil Persaud, recently complained to his immediate supervisor Brian Boucher about such threats."
By letter dated March 17, 1993, the company also requested the Board to investigate what it terms irregularities with respect to certain membership evidence. The union filed in this application a Declaration Verifying Membership Evidence. This Declaration discloses certain facts about some of the membership documents filed. For instance, the Declaration notes that some of the membership documents were signed by the employee on one date and subsequently given directly to the receiver on the next date, who then signed the document and attested to having received the card directly from the employee. The union filed a Supplementary Declaration on February 22 in which it disclosed, in addition to the facts contained in the original Declaration, that one application for membership was signed and dated February 5 and was signed by the receiver as having been received as well on February 5. In fact, the Supplementary Declaration states, the receiver incorrectly dated his signature and the application for membership was actually received on February 16. The company requested that the Board inquire into this membership evidence on the basis that there is no explanation for the eleven day hiatus between the signing of the card and the receipt of the card by the receiver.
At the hearing of this matter, the Board informed the parties that it saw no reason to inquire into the membership card. Unlike circumstances where the material before the Board casts doubt on whether a particular employee in fact signed a membership card, there was nothing in the material before me, including the statements made in the Declaration and Supplementary Declaration, which would cause the Board to conduct an inquiry into the validity of this evidence.
At the commencement of the hearing, since the objecting employees participating in this hearing were appearing without counsel, the Board outlined for Mr. Power's benefit the role of the Board, the nature of the proceedings and the nature of the issues to be determined. I explained that the Board's role is to decide the issues before it. The Board does not advise parties as to how to present their case, but relies on them to call evidence and present argument in support of their positions. Parties have the right to appear with or without counsel, but if they choose to appear without legal representation, they bear the risks associated with this choice, having regard to the fact that this is a legal proceeding conducted according to certain legal rules. I explained that the parties will have the right to call witnesses to give evidence based on their first-hand knowledge of the matters in issue, and that each side will have the right to cross-examine witnesses called by the other side.
I also outlined briefly the nature of the issues before the Board with respect to the petition. The Board looks to whether the petition represents the voluntary wishes of the employees who signed it. The Board is interested in hearing first hand evidence on this issue, such as evidence as to how the petition got started and prepared, how it got circulated, who had the petition at all times, and how each signature on the petition was obtained. I also explained how the Board in this inquiry maintains the confidentiality of signatories to the petition, by using "P" numbers to identify them.
As a final preliminary matter, the Board informed the parties prior to the commencement of the evidence that on close inspection, the petition appears to contain a sentence stating "P.S. this petition will be posted on the bulletin board in the shop." This line has been obscured with liquid paper, but is still visible held up to light. During the course of the hearing, the parties were given the opportunity to inspect the petition, after the Board made arrangements to cover the signatures, and verified the wording of the sentence for themselves.

Voluntariness of the Petition

Eric Power and Jim Cacouryotis testified on behalf of the petitioners with respect to the origination, preparation and circulation of the petition. Russell Brown, Rodney Cake and Heath Sweetman were called by the union. In reconciling conflicts in their evidence, I have taken into account such factors as the consistency of their testimony and their demeanour and apparent ability to resist the influence of self-interest. In the final result, I also draw inferences from the evidence in order to assess what is most probable in the circumstances of this case.
The idea of a union had been discussed amongst some of the employees since about November of 1992. However, it was only after the first part of January that the idea received more serious consideration. On Monday, February 1, Heath Sweetman and Ken Relf met with Brando Paris, an organizer for the applicant. The impetus for this meeting came from Sweetman. Relf was in attendance because he drives Sweetman to work. On this date, Sweetman was given union membership cards and was instructed on how to begin organizing the employees and distributing cards. From this date forward, both Sweetman and Cake began their efforts to convince employees to sign cards. On February 15, Sweetman was fired and on February 16, Cake was fired. Both were reinstated on an interim basis by order of the Board dated March 2. This application and the petition were filed on February 19.
On the evening of February 16, while Cacouryotis was on night shift, he went into the office of one of the supervisors and typed the heading of the petition. He then showed the petition to two other employees on this shift, P11 and P12. At first, Cacouryotis stated that he typed the whole heading and showed the petition to P11 and P12. When confronted with the suggestion that P11 and P12 therefore read the "P.S." line on the petition, he then stated that he typed the heading first, showed the document to P11 and P12, then typed the "P.S." line, then decided to whiteout the "P.S." the next morning.
In any case Cacouryotis did not begin to circulate the petition for signatures on the night of February 16. Instead, two days later, on February 18, he came into work about 11:30 a.m., just before the lunch break. Since Cacouryotis was working night shift at this time, he was not on his work time during this visit. He approached Eric Power as well as one other employee on the shop floor. Cacouryotis, Power and this other employee signed the petition at this time.
At about 11:40 a.m., employees started their lunch break. About a dozen employees went into the lunchroom, which is located up a set of stairs from the shop floor, and has an open wall overlooking the shop. Cacouryotis addressed the employees and placed the petition on a table. Among other things, he stated that he intended to leave the petition on the table when he left so that everyone would have the chance to look at it.
It was the evidence of Russell Brown that the line "P.S. This petition will be posted on the bulletin board in the shop" was apparent on the petition during this meeting. He told Cacouryotis that it would be unfair to post the petition with signatures on it in the shop. Cacouryotis replied that he would copy the document and post only the typewritten portion. Brown also testified that during his remarks to the employees, Cacouryotis told them that one of the disadvantages of unionization would be that since the company was based in the United States, management might decide to move the shop to the U.S. as a result of the union.
Brown also testified that during this meeting, he stated that the only circumstance under which he might sign a petition were if Cake and Sweetman were reinstated. It was well known throughout the shop that they had been fired earlier in the week. As a result of this statement by Brown, Cacouryotis said that he would speak to Brian McBain, the General Manager, about Sweetman and Cake. He left the meeting. When he returned a few minutes later, he told the employees that MacBain had said he could not discuss the matter with Cacouryotis since the issue was before the Labour Board and his lawyers had advised him there was to be no discussion. Brown took this to mean that reinstatement was not negotiable. Brown left the meeting shortly afterwards, although some employees remained behind to sign the petition. P4, PS, P6 and P7 signed the petition in the lunchroom at this time.
The lunch break usually ends about 12:05 to 12:15 since it is supposed to be a half-hour in duration. This meeting lasted until about 12:30. At one point during this meeting, Brian Boucher, the shop foreman came partway up the stairs. Cacouryotis told him that the employees were having a meeting, and Boucher left.
Some of Brown's evidence regarding the events of this meeting was challenged by Power and Cacouryotis in their cross-examination of him. However, they called no evidence in reply. In any case, I choose to prefer Brown's evidence where it cannot be reconciled with that of the petitioners. The evidence of Cacouryotis, in particular, with respect to the typing of the petition and the whiting-out of the "P.S." line was somewhat incredible and casts some doubt in my mind on the reliability of the rest of his evidence, particularly where it is in conflict with that of Brown.
After the meeting ended, Cacouryotis took the petition back to the shop floor with him. He approached P8, who was working on a screen machine. He then approached P9 and P10 on the shop floor. All three employees (who, incidentally, had attended the lunchroom meeting) signed at this time. Cacouryotis then left work, and returned later in the day for his shift, at which time P11 and P12 signed the petition. The next morning, about 7 a.m., Cacouryotis returned to the workplace. He went directly to the sewing room, where P13 was working, who signed the petition. Cacouryotis then took the petition to the Board personally.
During the course of the hearing, the objecting employees requested permission to file a number of statements signed by employees who were not present at the hearing. Some of the statements, the Board was informed, were similar to the petition which was filed on the date of application, signed by employees who were absent from work when the petition was circulated. The other statements were signed over the course of a few days after the application date by employees who had signed the petition, and indicated that their signing of the petition was voluntary.
I declined to receive the statements. In addition to constituting hearsay evidence, this type of evidence is of very limited assistance to the Board in determining the issue of the voluntariness of the petition. At the very least, it would involve the Board in a further level of inquiry, to determine whether the second set of statements are voluntary. In this case in particular, where the statements are made almost simultaneously with the petitions, I am reluctant to treat them as proof of employee wishes separate and apart from the petition itself. Finally, some of the statements are clearly inadmissible by virtue of section 8(4)2 of the Act, having been presented well after the certification application date.
On the issue of the voluntariness of the petition, counsel referred us to the following cases: Drillex International of Canada Inc., [1991] OLRB Rep. Feb. 169; Willow Manufacturing Company Limited, [1980] OLRB Rep. July 1131; Aluminum Reduction Company, [1985] OLRB Rep. Jan. 8; Blue Bell Canada Incorporated, [1990] OLRB Rep. Feb. 121.
In Drillex International of Canada Inc., the Board referred to the following quote from Chatham Concrete Forming as setting out the Board's approach in petition cases:
The system of certification prescribed in Ontario by the Labour Relations Act rests primarily upon an assessment of the union's membership support based upon an examination of its documentary evidence of membership. Upon showing the requisite membership support, the union is "certified" or granted a licence to bargain on behalf of a group of employees - subject, of course, to their right to file a timely application terminating bargaining rights. The Board does not solicit viva voce opinion about the virtues of trade union representation (see Rule 73(2)), nor, in this jurisdiction, is a representation vote the primary vehicle for achieving the right to represent employees. That right depends upon the solicitation of a sufficient number of membership cards authorizing the union to act as bargaining agent, and to protect employees from possible employer reprisals the anonymity of the union supporters is preserved. That is the way it has been for more than thirty years, ... Representation votes are a residual mechanism resorted to where the union cannot demonstrate a "clear majority" (i.e., more than fifty-five per cent) or where, in the Board's discretion, a representation vote should be held in the particular circumstances of a case. One of those circumstances is a purported change of heart by employees who have previously signed union membership cards.
The Board must be satisfied, however, that when these union supporters sign the petition indicating an apparent change of heart, they are doing so voluntarily, and are not motivated by a perceived threat to their job security or a concern that their failure to sign would be communicated to their employer, or could result in reprisals. It must be clear that the circulation of the petition is free from the actual or perceived influence of management. Often, as in the present case, a petition will be signed by employees who have indicated their support for the union only a short time before, and a natural question arises as to what prompted the change of heart. Was it prompted by a reappraisal of the value of collective bargaining, or by a reluctance to identify oneself as a union supporter when presented with the petition document? While an employee can be reasonably assured that his support for the union will not be communicated to his employer, he may have no such assurance concerning his refusal to sign a petition opposing the union. And lest it be thought that the identification of union supporters and opponents is neutral information, one must remember that the Legislature does not regard it that way. Section 111 of the Act is designed to preserve the secrecy of the employees' choice. The Legislature has recognized the employees' concerns and sensitivities.
Frequently, as in the present case, anti-union petitions are openly circulated on or near the employer's premises, or during working hours, by employees who, in their opposition to the union, will be objectively aligned in interest with their employer and may be perceived to be acting on its behalf. In these circumstances, an employee may sign a petition because he fears that a refusal to do so will expose his support for the union and will be made known to his employer. Similarly, an employee may be motivated to sign because of conduct which suggests that continued support for the union will result in the loss of his job or other adverse employment consequences. In neither case can one regard his signing the petition as being truly voluntary -although, of course, the mere identity of interest between the employer and the objecting employees is obviously not sufficient in itself to link the petition with management in the minds of reasonable employees, or undermine the reliability of the signatures placed on it. There must be more than that, and each case must be considered on its own merits. On the other hand, in the Board's experience there are enough instances where employers have committed unfair labour practices, or have sponsored or supported anti-union petitions that these employee fears cannot be discounted as being patently unreasonable. Again, that is why the Act preserves the secrecy of union membership.
It is for this reason that the Board undertakes the inquiry contemplated by Rule 73(5) of the Rules of Practice, in order to satisfy itself from the circumstances of the origination, preparation, and circulation of the petition, that the document truly represents the voluntary wishes of those who signed it....
I am not satisfied on the facts of this case that the petition, on the balance of probabilities, represents the voluntary expression of the wishes of those who signed it. The petition originated almost contemporaneously with the firings of two key union supporters. It was circulated without much attempt at secrecy on the shop floor, during working hours. It was also discussed and put before employees during a lunch break. In the midst of this discussion, Cacouryotis left for a few moments to speak to the General Manager with respect to an issue raised during the meeting. The shop foreman was aware that a meeting of employees was taking place. Although the meeting (which was called at the instance of an employee who was visiting the shop outside of his normal working hours) extended beyond the normal lunch break, the foreman made no attempt to have employees return to work.
I find that the petition which was circulated for signature bore the statement that it would be posted in the shop. Although Cacouryotis told the employees in the lunchroom that he intended to post only the typewritten portion, I am not satisfied that this would have been sufficient to dispel the impression that this statement would leave. The statement only reinforces the relatively casual manner in which the petitioners treated the confidentiality of the petition. Adding to this impression is the fact that employees signing in the lunchroom understood that the petition would be left on the table. Although Cacouryotis stated that he changed his mind about this and took it with him at the end of the lunch break, he did not tell the employees this, and they again would have reason to doubt the security of the identity of those who had or had not signed the petition.
As stated by the Board in Chatham Concrete Forming, it is natural to wonder what prompts a change in heart by employees who had recently signed union membership cards. The change of heart may well be genuine, but there is an onus on the party seeking to rely on petition to show that it is a voluntary change of heart: see also, Radio Shack [1978] OLRB Rep. Nov. 1043. The petitioners fall short of that onus in this case. I am unable to accept that the decision to sign this petition could have been unaffected by the combined effect of the well-known dismissal of the two key union organizers and the appearance of tacit management approval of the petition, resulting from the departure of Cacouryotis to speak to MacBain during the meeting in an effort to "negotiate" the reinstatement of Sweetman and Cake, and from the uninterrupted time, extending beyond the usual lunch break, given to the employees to have this meeting. In addition is the perception of management approval that would be left by Cacouryotis' unhindered access to employees at work, while he was not on shift, for the purpose of obtaining signatures on the petition. In the circumstances, there is considerable doubt as to whether the reasonable employee could have been assured that his or her failure to sign the petition would not become known to management or result in reprisals.
My conclusion that these various factors played a part in the "success" of the petition is reinforced by the apparent lack of much discussion amongst the employees about the issue. From the evidence, it appears that with almost no effort, the petitioners succeeded in convincing the majority of employees, the majority of which had been to this time supporters of the union, to sign the petition. In the result, I conclude that this petition is not a voluntary expression of employee wishes.

Intimidation AIlegation

Section 71 of the Act states:
No person, trade union or employers' organization shall seek by intimidation or coercion to compel any person to become or refrain from becoming or to continue to be or to cease to be a member of a trade union or of an employers' organization or to refrain from exercising any other rights under this Act or from performing any obligations under this Act.
Cecil Persaud, a shop employee, testified that on a Friday afternoon, in the first week of February, just as employees were getting ready to leave work, he was given a card by Heath Sweetman in the lunchroom (which also serves as a locker room). Persaud testified that right after Sweetman gave him the card, as he left the lunchroom and came downstairs onto the shop floor, Cake and Ken Relf were having a conversation at the bottom of the stairs. As he reached the floor, Cake looked at Persaud and stated "anyone who says anything about the union will have their legs broken". Nothing more was said, Persaud proceeded to punch out, and then left for home. After the weekend, Persaud was approached again by Sweetman who asked if he had signed the card yet. After the second approach, Persaud returned the signed card to Sweetman.
Persaud stated that a few weeks later, he reported to management that he had been threatened by Cake, in the presence of Relf. Persaud also testified that he had a conversation with Cake after Cake was reinstated to the workplace. At this point, Persaud was receiving workers' compensation benefits and was returning to work to pick up his tools. While he was in the shop, Cake approached him. According to Persaud, Cake had heard of the allegations being made against him. Cake admitted to Persaud that he had threatened him and told him not to take it so seriously.
The evidence of Rod Cake is in vivid contrast to that of Persaud. Cake has no recollection of any conversation with Persaud like the one described by Persaud. However, he vigorously denies ever making such a threat. The only conversation he recalls having with Persaud with respect to the union occurred in January, before Sweetman received the cards from Brando Paris. In this conversation, Persaud responded positively to the idea of a union and indicated that when they got the membership cards, he would sign one. Cake does recall having a conversation with Persaud after Cake's reinstatement. In his evidence, he approached Persaud because he was disturbed to hear about the allegations made against him. Persaud told him that he was afraid for his job if the union came in and there were layoffs, since he was near the bottom of the seniority list. Persaud stated that Cake had made a comment to him to the effect that if anyone told management about the organizing drive, that person would get a stiff kick in the rear. In Cake's evidence, Persaud stated he told management that he was afraid and did not want to get hurt or have his legs broken. Persaud told Cake during this conversation that he had not made an allegation that Cake had threatened to have Persaud's legs broken.
According to Cake and Sweetman, Persaud had responded only positively to discussions about the union. Cake and Sweetman were both clear in their testimony that they gave membership cards out to employees only once that employee had indicated his or her support for the union. According to Sweetman, he gave a blank card to Persaud on Thursday, February 4, Persaud signed the card on the same date and returned it to Sweetman later on the same date. Persaud was one of the first employees to join. This is consistent with the evidence that Sweetman received the membership cards from the union on Monday, February 1 and with the fact that Persaud's card bears the date of February 4.
On balance, compelled to choose between the evidence of Persaud and the evidence of Cake on the incidents in question, I choose the evidence of Cake. On the whole, I find it more plausible, internally consistent, and consistent with the evidence as a whole surrounding this organizing drive. Five separate witnesses, some of whom clearly opposed the organizing drive, testified as to events during and around the organizing drive. In all of this evidence, other than the statement that Persaud claims was made by Cake, there was no hint of any intimidation, threats, coercion or improper activity by the union's inside organizers. The only other suggestion of a complaint related to the organizers' undue persistence. Even on Persaud's own evidence, the only other conversation he had with Cake about the union was when Cake asked him if Sweetman had spoken to him about the union. In the context of this organizing drive as described by these witnesses, the allegation that Cake threatened Persaud with broken legs if he said anything about the union is quite simply incredible.
On the evidence, I find it more plausible that Cake made a statement that anyone who told management about the organizing drive would get a stiff kick in the rear and that this statement was not directed particularly at Persaud. In its context, such a statement does not in itself offend section 71 of the Act. I also find it more plausible that Persaud initially agreed to support the union, for reasons unconnected to the "threat" he felt had been made against him, and later changed his mind. I find that at the time Persaud was given and signed the membership card, he had decided to support the organizing drive. If he was indeed disturbed by Cake's comment that anyone telling management about the union would get a kick in the rear, he did not find it sufficiently disturbing to report it to management until several weeks later. Incidentally, I also note that by the time he decided to report the incident, both Cake and Sweetman had been unlawfully fired.
In assessing the evidence, I also have regard to the fact that Persaud, in his own evidence, appears to be as perturbed by what he characterizes as "lies" by the union, as by any alleged threat. More than a few times in his evidence he expressed his anger that the union had lied to him. According to Persaud, he had been told that most employees in the shop had signed membership cards, in an effort to convince him to sign. Whether or not this was technically true at the time that Persaud signed his card, I do not find such a comment to be misrepresentation that would cast doubt on the membership evidence.
I thus find that there has been no intimidation, coercion or other improper conduct by the union which casts doubt on or gives me any reason to reject the membership evidence relating either to Mr. Persaud or to any other employee.
Before continuing, I find it appropriate at this point to set out an evidentiary ruling made in the course of this hearing, in response to the stated intention by counsel for the company to call reply evidence. At the outset of the hearing, the Board ruled that it would hear all of the parties' evidence and submissions on all of the issues in dispute. The issues remaining to be determined were understood by the Board and by all the parties to be: the voluntariness of the petition, the allegation of intimidation against the union and the status of Richard Grainger. The petitioners proceeded first. The company then called Persaud and Grainger to give evidence. The union called Brown, Sweetman and Cake. The petitioners indicated that they had no evidence to call in reply. Counsel for the company indicated that the company wished to call Ken Relf as a reply witness. This was objected to by the union.
Counsel for the company indicated that the evidence of Relf related directly to the issue of whether Cake made the statements as alleged by the company. His evidence, it was submitted, would be that Cake had indeed made the statements alleged. Counsel stated that until Cake testifled, the company was unaware of what the precise details of Cake's evidence would be, and was unaware that the union would deny that Cake had made the statements. Counsel accepted that Relfs testimony could not go beyond the statement itself, but on the issue of whether Cake made a threat to Persaud and what the threat was, the company had the right to call reply evidence.
I ruled that the evidence of Relf was not proper reply evidence and declined to hear it. From the beginning of these proceedings, one of the very issues in dispute between the parties, raised by the company, has been the alleged threat from Rod Cake to Cecil Persaud. It is the responsibility of a party putting in its case, to put in all of the evidence that it can adduce through reasonable diligence, in support of its case. The evidence of Mr. Relf is not in response to anything new in the union's case, but goes to the heart of the issues which have been in dispute from the beginning. I note that if it was not so apparent earlier, it also became abundantly apparent during the union's detailed cross-examination of Mr. Persaud what the nature of Mr. Cake's testimony would be.
Counsel should be well aware of the restricted scope of reply evidence and the dominant policy reason for it: quite simply, a party responding to a case is entitled to know the entire case that it must meet, because it will have no further opportunity to call evidence. The Board's decision in Luciano D'Alessandro and Donato Marinaro, [1985] OLRB Rep. Feb. 241, to which I was referred, provides a useful summary of the principles of reply evidence:

2....

Since the majority of the Board's hearing time yesterday was taken up by submissions of counsel concerning whether or not certain evidence could properly be adduced as reply evidence, it may be useful for the for the Board to rule not only on the specific point which has been argued (most recently), but also to provide a more general indication of what we perceive to be the proper scope of reply evidence. During his submissions in support of his contention that evidence concerning the Union meeting of May 12, 1983 may properly be called in reply, counsel for the complainants contended that he could call certain witnesses to testify about that meeting as part of his case in chief and hold another witness in reserve to be called in reply in the event that the respondents called witnesses to contradict evidence on that point given by the complainants' witnesses in chief. Apart from a general reference to Phipson on Evidence, without referring the Board to any particular page or passage in that text, counsel cited no authority for that proposition.

It is well established in the law of evidence and in the Board's jurisprudence that a plaintiff or complainant cannot split his case in the manner suggested by counsel for the complainants. As noted in Phipson on Evidence (12th Ed. 1976) at paragraph 616, "[e]vidence in reply ... must, as a general rule, be strictly confined to rebutting the defendant's case, and must not merely confirm that of the plaintiff. See also Wilco-Canada Inc., [1983] OLRB Rep. Jan. 165, in which the Board wrote as follows at paragraph 13:

The normal scope of reply evidence is aptly described in the following passage from Sopinka and Lederman, The Law of Evidence in Civil Cases (Toronto: Butterworths, 1974) at page 517:

"At the close of the defendant's case, the plaintiff has a right to adduce rebuttal evidence to contradict or qualify new facts or issues raised in defence. As a general rule, however, matters which might properly be considered to form part of the plaintiff's case in chief are to be excluded. A plaintiff is therefore precluded from dividing his evidence between his case in chief and reply, for two very practical reasons:

‘…first, the possible unfairness of an opponent who has justly supposed that the case in chief was the entire case [he] had to meet, and, secondly, the interminable confusion that would be created by an unending alternation of successive fragments of each case which could have been put in at once in the beginning' [6 Wigmore on Evidence, s. 1873, p. 511].

Having considered the submissions of the parties, we are not satisfied that the evidence concerning the meeting of September 8, 1983 which complainant's counsel seeks to adduce as reply evidence through Gerry Varrichio could not, through the exercise of due diligence, have been adduced as part of their case in chief, as was done through the testimony of Frank Garrett on October 18, 1984, particularly in view of the fact that Mr. Minsky notified Mr. Garrett during cross- examination that he intended to call Dan D'Andrea to contradict Mr. Garrett's evidence in respect of that matter. Failing that, we are not satisfied that through the exercise of due diligence, in preparing for his cross-examination of Dan D'Andrea, complainant's counsel could not have placed himself in a position to satisfy the requirements of the rule of Browne v. Dunn in respect of that evidence. In this regard, we note that at the request of complainant's counsel, the hearing was recessed on December 12, 1984 one and one half hours in advance of the time to which the Board had earlier indicated it was prepared to sit, in order to afford complainant's counsel time to prepare for his cross-examination of Dan D'Andrea. When the hearing resumed on the following morning, complainants' counsel made no suggestion that he had not had sufficient time to prepare for the cross-examination or to explore any appropriate avenues of investigation with respect to it. Accordingly, we are of the view that this evidence cannot properly be called in reply, either on the basis of the rule which precludes a complainant from splitting his case, or on the basis of the rule in Browne v. Dunn, as explained in our earlier ruling today. Accordingly, Mr. Minsky's objection is upheld.

The facts of this case and my ruling are very similar to those in the case above, and the governing principles the same. I saw no reason in the circumstances of this case to permit the company to split its case by calling one witness to the events in dispute during its case in chief, and the other witness during reply.

Status of Richard Grainaer

From the evidence adduced, I have little difficulty in finding that Richard Grainger is an employee within the bargaining unit. Although he has considerable experience in the industry prior to joining Tate,and thus brings to his job at Tate the benefit of his experience, knowledge and contacts, in essence Grainger is a screen machine operator. He spends the vast majority of his working day at his screen machine, manufacturing screen. On occasion, he may speak to customers of Tate who telephone for him. These customers may inquire about the possibility of having certain work done, in which case Grainger directs them to Brian MacBain. Other times, customers call to find out how work is progressing on their orders, and Grainger will give them an update.
As stated above, Grainger has considerable experience in this field of work. Prior to joining Tate, he worked for 25 years for a competitor of Tate which closed its shop in Canada and moved to the United States. Because of his expertise, knowledge and contacts, Grainger requested and was given certain terms of employment when he joined Tate which are different from those of other employees. For instance, he is paid on a salary instead of per hour. He also does not punch a time clock, although he appears to work the same hours as other employees.
Outside of receiving telephone calls from customers, some of whom are former customers of Grainger's former employer, he does not have responsibilities which bring him into regular contact with customers. The extent of his contact with these former customers is the telephone calls which he receives from time to time. He is not involved in sales, outside promotion or business development. He does not receive a commission. Grainger stated that he has signed a non-solicitation agreement with his former employee so that he is not permitted to solicit work from their former customers.
There is no doubt that Grainger was hired by Tate because of his prior experience, and there is probably no doubt that Tate hoped that it could benefit from his contacts and acquire some of the business of his former employer. However, this was not achieved by giving Grainger any special duties or status beyond those described above. I do not consider the differences between his duties and those of other machine operators to be so significant as to take him out of the bargaining unit.
Having regard to the determinations above, the material before me and the agreements of the parties, the Board makes the following findings.
The Board finds that the applicant is a trade union within the meaning of section 1(1) of the Labour Relations Act.
In accordance with the Rules of Procedure respecting applications for certification, the named employer has filed a list of employees in the bargaining unit, together with sample signatures for the employees on that list. The Board is satisfied that there were 22 employees in the unit at the time the application was made.
In support of its application for certification, the applicant union filed documentary evidence of membership in the form of 13 cards, all of which coincide with the names of the employees in the bargaining unit. The cards are signed by each employee concerned and indicate a date within the six-month period immediately preceding the application date. The membership evidence is supported by a duly completed Declaration Verifying Membership Evidence.
The Board is satisfied on the basis of all of the evidence before it, that more than fifty-five per cent of the employees of the responding party in the bargaining unit on February 19, 1993, the certification application date, had applied to become members of the applicant on or before that date.
A certificate will issue to the applicant.