United Steelworkers of America v. Royalguard Vinyl Co., 1994 CanLII 9875

[1994] OLRB Rep. August 1057

3579-92-R United Steelworkers of America, Applicant v. Royalguard Vinyl Co., A Division of Royplast Limited, Responding Party v. Samuel Ofosu Ansah, Intervenor

BEFORE: Laura Trachuk, Vice-Chair, and Board Members J. A. Rundle and C. McDonald.

APPEARANCES: Mark J. Lewis, Brando Paris and H. Desai for the applicant; Joseph Liberman, Dave Chondon, Doug Dunsmuir and Steve Cork for the responding party; Samuel Ofosu Ansah appearing on his own behalf.

DECISION OF VICE-CHAIR, LAURA TRACHUK, AND BOARD MEMBER C. McDONALD; August 26, 1994

Introduction

1. This is an application by the United Steelworkers of America (sometimes referred to in

this decision as "the union") to represent a bargaining unit of employees at Royalguard Vinyl Co.,

A Division of Royplast Limited (sometimes referred to in this decision as "the company").

2. This application for certification was received by the Board on March 9, 1993. The com­pany filed a response to the application which was eventually amended to include allegations that the union organizers had coerced employees with threats I to signing union cards prior to filing the application. Each of the parties also filed an application under section 91 of the Labour Relations Act alleging that the other had committed unfair labour practices. On the first day of hearing, the panel ruled that it would hear the unfair labour practice complaints subsequent to the application for certification. At this time, those applications have not yet been heard.

3. Mr. Samuel Ansah is an employee of the company. He filed a document with the Board prior to the terminal date alleging that he had been coerced into signing a union card. The Board failed to acknowledge or address this correspondence prior to the commencement of the hearing. On the first day of hearing, Mr. Ansah advised the Registrar that he would not be participating in the proceedings. However, on the second day, he attended at the Board and advised that he wished to participate and he was then granted standing to do so. Under the circumstances, Mr. Ansah was given standing to intervene in this matter in spite of having advised the Registrar on the first day that he did not wish to, because the Board was concerned that it had failed to communi­cate with him in a timely manner about his obligations with respect to filing particulars, etc., and because it was concerned that he had not understood the finality of the decision he was making the previous day. As Mr. Ansah was not represented by counsel, the Board explained its proceedings to him as is its practice when parties appear before it without representation. He was given full opportunity to call and to cross-examine witnesses, as well as to present argument throughout the hearing. Mr. Ansah was accompanied throughout the hearing by Mr. Stefano Pellizzari, another employee of the company.

4. The hearing of these matters took some forty days. The evidence was completed the first week of December, immediately before the Vice-Chair commenced her maternity leave. At that time, the parties were directed to file an outline of the facts upon which they were relying, and the Board reconvened on February 21 and 25 to hear the argument. At the conclusion of the argu­ment, the Board indicated that it would attempt to issue a "bottom-line" decision. None of the parties objected to that proposed course of action. As a general matter, it is the majority's view that a decision should issue as soon as possible in a certification application in order for the parties to either commence their new relationship, or in the event that a certificate is not granted, to return to their former status. In this case, due to the amount of evidence and the Vice-Chair's con­tinuing maternity leave, the Board did not render its bottom-line decision until June 6, 1994. In that decision the majority found that the company's allegations had not been substantiated and cer­tified the applicant. The following are the reasons for that decision.

Preliminary Issues and Interim Rulings

5. The Board made numerous rulings during the course of this extremely long proceeding. It indicated that it would include a number of these rulings in its written decision. This section con­tains the reasons for those rulings.

6. On the first day of hearing, the union made a motion to have a number of allegations contained in the company's response struck on the basis that they lacked the particularity required by the Board's Rules Nos. 14 and 16. The union also claimed that a number of allegations contained in the response referred to a time period subsequent to the filing of the application and therefore had no relevance to the issue before the Board which was the reliability of the member­ship evidence filed with that application by the union.

7. The company's response contained an allegation that flyers stating "No union — no jobs" had been found on car windshields in the company's parking lot on Sunday, March 7 during the "A" shift which began at 7:00 p.m. The response also included allegations that one of the union organizers had threatened a number of employees on March 11, 1993 that their employment would be terminated if they did not join the union. As indicated, the union's application for certifi­cation had been filed with the Board on March 9. The response also contained the following para­graph:

6. In addition to the particulars referred to above, the Respondent submits that the following employees were also told by Tai or Hittu or Tai and Hittu during the organizing drive that if they did not sign cards in favour of the Union they would lose their jobs.

This paragraph was followed by a list of eight names.

8. At the completion of the parties' preliminary arguments on April 5, the Board issued the following ruling:

We have considered the submissions of the parties. The Board has decided that it will hear the union's certification application first and subsequently will consolidate and hear both of the sec­tion 91 applications. We have decided to proceed in this manner because upon reviewing the employer's pleadings, we have concluded that most of the allegations which have been particu­larized relate to a period of time subsequent to the union's application and are therefore not admissible in that application. Furthermore, the Registrar has contacted the author of the March 25 letter and he has indicated that he does not wish to participate in this hearing and will be faxing the Board correspondence indicating that he wishes to withdraw his letter. As a result, it would appear that the evidence called with respect to the certification application will be lim­ited and there will be very little overlap with the evidence which will be called in the section 91 applications.

The author of the March 25 letter referred to in our ruling was Mr. Samuel Ansah, who attended at the Board the following day and was, in fact, permitted to participate fully in the proceedings.

9. In a certification application, the Board's focus is on the reliability of the membership evidence submitted by the union and upon which it is relying. Therefore, allegations of misconduct which relate to the collection of membership cards subsequent to the date of application, i.e., cards upon which the union is not relying, are not generally relevant to the issues in the certification application. However, allegations regarding the collection of membership evidence which is not relevant to the count for the certification application may nevertheless form the basis of an applica­tion under section 91 of the Act. The Board has been faced with allegations alleging intimidation and coercion of employees after the date the membership evidence was submitted in previous cases. In Innovative Wood Products, [1978] OLRB Rep. Feb. 161, it stated as follows:

18. Mr. Mancini's evidence about the threat made by Mr. DiStefan on Friday, December 2, 1977, is simply not relevant to impeach the quality of the membership evidence in the instant case. On this application for certification the question before the Board is whether the member­ship documents submitted by the union represent the voluntary wishes of the employees who signed them on November 18, 1877, the terminal date fixed for this application. In the instant case the threat against Mr. Mancini was made after the terminal date. Any threat or intimidation contrary to section 61 [now section 71] of the Act taking place after that date might well be the foundation for a complaint under section 79 [now 91] of the Act and be a possible ground for the granting by this Board of its consent for leave to prosecute. But it does not operate retroac­tively to cast doubt on the voluntariness of a membership document that stood as a free state­ment of an employee's will on the terminal date fixed in the application. There is nothing in the evidence to suggest that intimidation was used against Mr. Mancini in order to get him to sign the union membership document, nor is there any evidence to suggest that he was coerced or threatened to prevent him from filing a timely statement of objection to the instant application. A threat against Mr. Mancini made on December 2,1977, even if it were an actionable breach of the Act, could not cast doubt on the membership documents filed in these proceedings when those documents are taken as speaking as at November 18, 1977.

10. The Board finds the considerations expressed in Innovative Wood Products, supra, to be applicable in the circumstances of this case. Thus, allegations of threats made to employees to coerce them to sign cards after the date the membership evidence was submitted, i.e., the applica­tion date, were not relevant to the reliability of that evidence. There were no particularized allega­tions of threats made prior to the application date. The Board therefore ruled that evidence relat­ing to those allegations was not admissible in this proceeding.

11. The Board also ruled that evidence with respect to the allegations in paragraph 6 of the company's response quoted above was not admissible, as those allegations did not comply with the requirements of the Board's Rules Nos. 14 and 16. Those Rules state:

14. 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.

[emphasis added]

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.

The Board's Rule No. 20 states as follows:

20. No person will be allowed to present evidence or make any representations at any hearing about any material fact relied upon which the Board considers was not set out in the application or response and filed promptly in the way required by these Rules, except with the permission of the Board. If the Board gives such permission, it may do so on such terms as it considers advisable.

12. The Board ruled (Board Member Rundle dissenting) as follows:

We have considered the parties' submissions. Whether or not the response in question is gov­erned by Rule No. 14 or Rule No. 16, it is clear that a party is required to file "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".

Paragraph 6 of the response does not provide a detailed statement of material facts, including the circumstances, what happened, and when and where it happened. The paragraph provides the names of the people alleged to be subject to the threats, but does not indicate which of the two people is alleged to have made the threat to employees. If this were a complaint by a union alleging that foremen had threatened employees that if they signed cards they would lose their jobs, we would expect the union to advise the employer as to all of the material facts listed in Rule No. 12, for each and every person alleged to have been subject to the threat. The same standard should apply in this case. We do not believe that paragraph 6 provides the union with sufficient particulars to know the case it is required to meet.

There are no particulars pleaded with respect to the present witness, except for those which relate to a date after the certification application was submitted. The responding party will therefore not be permitted to call evidence from him which does not relate directly to the flyers. Yesterday, we exercised our discretion and permitted Mr. Vo to give testimony with respect to a conversation on March 8, because the question asked appeared to be related to the leaflets and counsel did not know what the witness would say. It did turn out that the evidence was unre­lated. However, we will not permit the responding party to embark on a whole area of evidence with several more witnesses which has not been sufficiently pleaded. The allegations against the union are serious ones and they should have been provided with more detail prior to the com­mencement of this hearing.

We will also not allow evidence to be called with respect to the flyer being found in the lunch­room. The responding party has not pleaded that it was found anywhere but the parking lot. We also note that the responding party does appear to have had prior contact with this witness about these matters, as it did plead detailed allegations about him with respect to a period of time after the certification application.

13. Although the Board's new Rules of Procedure came into effect in January 1993, and this was one of the first rulings under them, the Board has had long-standing requirements with respect to particulars. (See International Cooperage Company of Canada Limited, [1963] OLRB Rep. Apr. 47; Ellis Don, [1970] OLRB Rep. Aug. 587; The International Brotherhood of Painters and Allied Trades, Local 1891, [1974] OLRB Rep. Apr. 244; Racine, Robert and Gauthier Reg'd., [1978] OLRB Rep. June 559; Guaranteed Insulation '77 Ltd., [1981] OLRB Rep. Oct. 1394; International Association of Bridge, Structural and Ornamental Ironworkers, [1982] OLRB Rep. Feb. 233; Township of Lake of Bays, [1992] OLRB Rep. Aug. 970.) In these cases, the Board has noted that the purpose of the requirement for adequate particulars is of course to ensure that a party is well aware of the case that it has to meet. The company's paragraph 6 did not provide par­ticulars as to the circumstances or when and where the alleged threats occurred. Furthermore, the paragraph does not indicate which union organizer threatened which employee, although that information presumably was available from the employees claiming to have been threatened.

14. For similar reasons, the Board also excluded evidence with respect to the flyers being found in a location other than that particularized in the pleadings, i.e., in the parking lot.

15. Furthermore, the Board did not adjourn to allow the company to provide particulars, as it was the majority's view that this was a matter in which, given the time-sensitive nature of labour relations issues as seen in the context of a certification application, delay should be minimized. The thrust of a number of the amendments of the Labour Relations Act and the Board's revised Rules is to expedite the proceedings before the Board, and reduce the delays which sometimes attended Board hearings. Delay in certification proceedings particularly should be minimized. The Board notes that in its correspondence in reply to the response dated March 30, the union put the com­pany on notice that the response failed to provide sufficient particulars. The company had not pro­vided further particulars as of the first day of hearing, April 5.

16. On the next hearing day, the company requested that the Board reconsider its ruling. Essentially, it repeated its arguments. The Board rejected the request for reconsideration as it did not raise a significant issue of Board policy nor did the company indicate that it intended to raise new argument or adduce new evidence with respect to the issue which would not have been avail­able to it through the exercise of due diligence (see K-Mart Canada Limited (Peterborough), [1981] OLRB Rep. Feb. 185, and Cambridge Reporter, [1992] OLRB Rep. Oct. 1059, at para. 15).

17. After the Board's ruling with respect to the request for reconsideration, the hearing adjourned until April 25. In the meantime, on the parties' agreement, the Board provided a writ­ten notice in Punjabi and Vietnamese advising employees of their statutory rights. This notice was posted at the company's premises. Also during this hiatus, the Board received four pieces of corre­spondence from the company seeking to amend its response to include particularized allegations with respect to threats against employees which took place prior to March 9, 1993.

18. On April 25, 1993, the parties presented their arguments with respect to the company's request to amend its response. The company argued that it should be permitted to amend its response to include the new allegations because the circumstances had come to its attention subse­quent to the filing of its response. The union strenuously objected to the Board permitting the company to amend its pleadings.

19. The Board has the discretion to allow a party to amend its pleadings. Nevertheless, in the normal course the Board is reluctant to permit a party to amend pleadings to include new facts because of its interest in ensuring that parties know the case they have to meet at the commence­ment of a hearing. However, the Board did ultimately permit the company to amend its pleadings in light of the very particular circumstances of this case.

20. All of the employees alleged to have been threatened spoke little English and were rela­tively recent immigrants to the country. The company advised the Board that witnesses would tes­tify that they were too intimidated by the alleged threats of the union, coupled with their cultural and language barriers, to come forward sooner. Furthermore, they would testify that they had not understood the Board's "Notice to Employees of Application for Certification", commonly referred to as the "green sheet", which advises persons to file responses with the Board by the ter­minal date. The company also advised that some of the employees had come forward in response to the Board's notice posted in Vietnamese and Punjabi.

21. Out of concern that the Board be accessible to workers in the province, whatever their language and country of origin, we finally did permit the company to amend its pleadings. It was decided that the Board would hear the witnesses' evidence with respect to why they had not come forward with their allegations sooner together with their other testimony, as we were advised there would be significant overlap.

22. The Board was aware that permitting such extensive amendment to the response at that point in the proceeding would be prejudicial to the union. Under the circumstances however, the Board felt that the prejudice to the union was outweighed by the possibility that employees might have been deprived of their right to bring their concerns to the Board in a timely fashion by their language and cultural barriers. We ruled (Board Member McDonald dissenting) as follows:

We have considered the submissions of the parties. As we are all aware, the circumstances of this case are unique. In light of the submissions which we have heard today for the first time as to the responding party's ability to plead these facts in accordance with the time requirements of the Board's Rules, we are prepared to allow the response to be amended to include the allegations found in the respondent's correspondence of April 13, 19, 21 and 23. We will not permit any further amendments. The posting has been up at the workplace for six days which is suffi­cient time for any employees to come forward. 'We will not change our ruling not to join the sec­tion 91 complaints with the certification application.

However, after hearing the evidence, the majority does not find that the company's witnesses were unaware of the significance of the green sheet or were not able to determine that significance if they were concerned. The Board also does not find that these witnesses were too intimidated to come forward with their allegations in a timely fashion.

23. The Board also made an interim ruling with respect to questions the company wished to ask in cross-examination. During the course of the company's evidence, one of its witnesses (Wit­ness A) identified a union organizer (Witness B), who was alleged to have threatened him at the time he signed his membership card, by a particular name. Counsel for the company asked Witness B (who was waiting outside the hearing room) to come into the room, so that Witness A could physically identify him as the person alleged to have uttered the threat. The union agreed that the person in question (Witness B) was present at the time the alleged threat took place, and that he was the person who collected the union membership card from Witness A. However, when Wit­ness B testified before the Board, he did so under a different name from the one used by Witness A. Counsel for the company cross-examined him about the fact that he was known by a different name. Counsel also put to him that he had worked for the company on a previous occasion under the name used by Witness A. Witness B denied he had worked for the company under a different name. Counsel for the union objected to this line of questioning. The Board permitted the ques­tioning of Witness B on the grounds that the company should be permitted a wide range in cross-examination to test the credibility of the witness. At no time, however, was there any issue that Witness B was not, in fact, the person who Witness A alleged had uttered the threat. The only issue raised by the company's question was whether or not an employee or employees of the com­pany might refer to Witness B by a different name, and whether he had worked for the company previously under a different name.

24. The union then called another witness (Witness C). The first questions put to Witness C in cross-examination by the company's counsel were whether he had known Witness B by another name, and whether Witness B had previously worked at the company under a different name. Counsel for the union objected to this line of questioning on the basis that it related to issues col­lateral to those before the Board. The union argued that the company was stuck with the answers given by Witness B on cross-examination and was not permitted to call evidence to contradict that testimony. The Board permitted the parties to defer argument on the matter until after the lunch break so that they would have an opportunity to review and present case law.

25. Counsel for the company argued that he should be permitted to put the questions to Witness C as they dealt with a substantive issue for the Board, specifically the identity of Witness B. As we have stated, the identity of Witness B, i.e., whether or not he was the person alleged to have made the threat, was not in issue. He had been personally identified by Witness A. The issue that had arisen as a result of the company's questions was whether or not Witness B was known by two different names at the company because he had worked there previously under a different name. Therefore, the only reason the questions were being put to Witness C was to impeach the credibility of Witness B. The majority, therefore, ruled the questions inadmissible.

26. The collateral fact rule has been articulated in Sopinka & Lederman, The Law of Evi­dence in Canada, as follows:

B. The Collateral Fact Rule

There is a general rule that answers given by a witness to questions put to him or her on cross-examination concerning collateral facts are treated as final, and cannot be contradicted by extrinsic evidence. Without such a rule, there is the danger that litigation will otherwise be pro­longed and become sidetracked and involved in numerous subsidiary issues. The rule does not permit the use of extrinsic evidence to contradict a witness who has made a statement in cross-examination which is relevant to the substantive issue; but, with respect to questions which are directed solely to impeaching a witness' credibility, the answers must, save for certain common law and statutory exceptions, be accepted as final. Difficulties have arisen, however, because of uncertainty as to whether a question merely goes to a collateral issue or whether it goes to a sub­stantive one. Pollock C.B. attempted to articulate the distinction in A. G. v. Hitchcock, as fol­lows:

……the test, whether the matter is collateral or not, is this: if the answer of a witness is a matter which you would be allowed on your part to prove in evidence - if it has such a connection with the issue, that you would be allowed to give it in evidence - then it is a matter on which you may contradict him.

The company would not have been permitted to prove in evidence that Witness B had worked pre­viously under a different name, or even that he was known by two different names at the work­place, unless there was uncertainty as to whether or not he was the person that Witness A alleged had threatened him. There was no such uncertainty. The evidence would therefore not be admissi­ble as it is collateral to the substantive issues before the Board.

27. The Board, although not bound by the common law rules of evidence, has acknowl­edged the applicability of the "collateral fact" rule in certain cases and allowed counsel to cross-ex­amine a witness on matters that are not relevant to the issues before it, except to the extent that they relate to that witness's credibility. Under the collateral fact rule, however, the corollary for being permitted to cross-examine a witness on a collateral issue is that the party cross-examining cannot introduce evidence to contradict the witness's answer. The collateral fact rule does not apply only to limit evidence called in reply, but to any rebuttal evidence, including any evidence called through cross-examination from a subsequent witness. The purpose of the collateral fact rule is as applicable to cross-examining other witnesses as to calling reply evidence. To allow cross-ex­amination of a subsequent witness on the collateral issue if it is not related to that witness's credi­bility, would open up a whole new area of inquiry which would require the original witness to call evidence to prove his version of the facts. This is the very situation that the collateral fact rule is designed to avoid. The need for such limitations is abundantly clear when one considers the present matter which required more than forty days of hearing. The rationale for this rule of evi­dence is outlined in The Attorney General v. Hitchcock, (1847) 1 Ex. 91, 154 E.R. 38 at 43.

But, with these exceptions, I am not aware that you can with propriety permit a witness to be examined first, and contradicted afterwards, on a point which is merely and purely collateral, as for instance as to his personal character, and as to his having committed any particular act. The inadmissibility of such a contradiction depends, indeed, upon another principle altogether. Per­haps it ought to be received, but for the inconvenience that would arise from the witness being called upon to answer to particular acts of his life, which he might have been able to explain, if he had had reasonable notice to do so, and to have shown that all the acts of his life had been perfectly correct and pure, although other witnesses were called to prove the contrary. The rea­son why a party is obliged to take the answer of a witness is, that if he were permitted to go into it, it is only justice to allow the witness to call other evidence in support of the testimony he has given, and as those witnesses might be cross-examined as to their conduct, such a course would be productive of endless collateral issues. Suppose, for instance, witness A. is accused of having committed some offence; witness B. is called to prove it, when, on witness B.'s cross-examina­tion, he is asked whether he has not made some statement, to prove which witness C. is called, so that it would be necessary to try all those issues, before one step could be obtained towards the adjudication of the particular case before the Court. On the contrary, if the answer be taken as given, if the witness speaks falsely he may be indicted for perjury. That is the proper rem­edy.

The majority of the Board finds the concerns articulated in the above decision particularly perti­nent in these circumstances, and we therefore did not permit the company to cross-examine Wit­ness C or any of the union's subsequent witnesses with respect to whether or not Witness B was known by more than one name at the workplace, or whether he had worked there previously under a different name. This line of questioning was merely collateral and not helpful to the reso­lution of the substantive issues before the Board. In any event, a number of other witnesses testi­fied with respect to the circumstances in which the threat against Witness A was alleged to have taken place, and we were therefore not required to rely solely on the evidence of Witness B.

28. The company immediately requested that we reconsider the above ruling. In the inter­ests of expedition and finality, the situations in which the Board will reconsider its decisions have been limited to those in which evidence has come to the attention of a party which could not have come to its attention previously by the exercise of due diligence or those situations in which a sig­nificant issue of Board policy has been raised. The Board found that neither of those circumstances existed with respect to this evidentiary ruling, and the request for reconsideration was denied.

Decision

29. Although the Board was required to make a number of legal and procedural rulings as outlined above, fundamentally this matter rested upon the factual determination of the following disputed allegations.

30. The company alleged that flyers which stated: "No union = no jobs" were found on car windshields in its parking lot on the night shift of March 7. It suggested that employees may have signed cards out of fear that they would lose their jobs in the event that the union was not certified because they had seen those flyers. The union denied that there were flyers in the parking lot stat­ing: "No union = no jobs" on the night of April 7. However, it claimed that there was a flyer which stated: "Union = no jobs" on that evening.

31. It was alleged in the amended response that nine employees had been threatened by in-house union organizers that if they did not sign a union card they would lose their jobs. There was one allegation that an employee had been threatened with physical harm if he did not sign a card. There was also an allegation that an employee had been intimidated in the month of April, as a result of his participation in the dispute before the Board. The union denied that any employee had been threatened by union organizers.

32. Mr. Ansah alleged in oral particulars that he had been forced to sign a union card by one of the in-house union organizers, Mr. Hittu Desai. Mr. Ansah alleged that Mr. Desai told him that he would lose his job if he did not sign a card. The union denied that Mr. Desai threatened Mr. Ansah and claimed that, in fact, Mr. Ansah had been an enthusiastic supporter of the union.

33. Sixteen people testified for the company. Mr. Ansah testified on his own behalf, but called no other witnesses. Eleven people testified on behalf of the union. The company called four witnesses to give reply evidence.

34. The Board's decision in this matter was determined by its findings with respect to the credibility of the various witnesses. The Board was repeatedly required to ask itself whether it

believed a company witness who claimed that he had been threatened, or a union witness who denied doing so.

35. English was the first language of only three of the witnesses who testified in this matter. The majority of the witnesses testified through interpreters. The receipt of evidence through inter­preters presents a special challenge to the Board. The receipt of evidence through an interpreter often deprives the trier of fact of the ability to use nuance in its assessment of credibility. Further­more, the Board can never be confident that the translation is completely accurate, particularly when it becomes apparent, as it did in this case~ that some languages seem to lend themselves more to literal translation into English than others. The complexity of this situation was increased by the fact that many of the witnesses had immigrated to this country in the last few years. The Board must evaluate the presentation of evidence from such witnesses with sensitivity to the possible effects of cultural differences. Nevertheless, these are challenges that the Board must and does face on an almost daily basis. (See CMP Group (1985) Ltd., [1993] OLRB Rep. Dec. 1247.) In this case, the Board has taken into account the difficulties of receiving evidence through an interpreter and has also considered the effect cultural differences may have on the presentation of evidence, particularly upon such factors as the demeanour of witnesses when giving their evidence. In these circumstances, the Board has placed greater but not exclusive emphasis on the other factors used to assess credibility, specifically the clarity and consistency of the evidence (taking into account any differences in answers which might be attributable to translation difficulties), the witnesses' ability to recall events and resist the tug of self-interest in shaping their answers and what seems most probable in all the circumstances.

36. After applying these factors to the witnesses in this case, the Board found that almost every one of them had significant inconsistencies in their evidence and appeared to have been affected by self-interest. However, in the circumstances of this case, the Board sees no advantage to anyone or to any party in embarking on an extensive and painstaking comparison of the testi­mony of over thirty witnesses outlining why we prefer the evidence of one over another. These employees must continue to work together and we expect that this decision will be widely circu­lated and discussed. We have however carefully considered the evidence of each and every witness.

37. With respect to the allegations of threats by union organizers, the areas in which the union witnesses showed most inconsistency were those related to times and dates. Such inconsis­tencies may be attributable to the delay between the time that the union organizing drive was tak­ing place and when they testified. The inconsistencies in the evidence of the company witnesses, on the other hand, were more difficult to explain. On balance, we preferred the evidence of the union witnesses to those of the company on the central issue which was before us, specifically whether or not the company witnesses had been subjected to threats by union organizers that they would be fired by the union if they did not sign cards. The company witnesses appeared to be most deeply affected by their own interest in shaping their answers and, for the most part, the union witnesses' version of events seemed more probable in the circumstances. The company, for example, called two witnesses who, according to the pleadings, alleged that they had signed cards at the same time and under the same threat by two union organizers. However, when the witnesses testified, they gave significantly different versions of events. One of the witnesses claimed for the first time that he had not even signed a card although a card had been submitted to the Board bearing his signa­ture which matched that provided by the company. This was not an allegation that was in any way supported or substantiated by the other witness who was supposed to have been present at the time, nor by the union witnesses.

38. We also found that the company witnesses' explanations as to why they had not come forward with their allegations earlier did not make sense in the circumstances and were not other-

wise credible. The witnesses' delay in making their allegations until after these proceedings had begun and the Board had issued its initial ruling, contributed to the determination that they ought not to be believed where their evidence conflicted with that of the union witnesses on the issue of the alleged threats.

39. We also assessed the evidence of Mr. Samuel Ansah, according to the usual factors and the majority found that it lacked credibility. Mr. Ansah did testify in English. On April 6, 1993, Mr. Ansah was requested to verbally provide the particulars of his allegations so that the union would know the case it had to meet. He stated to the Board and the parties that he had been forced to sign a union card by Hittu Desai, who had said he would lose his job if he did not sign. He said he did not remember when this took place, but that it was on the "A" shift, and it was midnight in the compound department. He indicated that he signed the card when that conversa­tion took place, and that no one else was present. The evidence that he gave under oath however, was significantly different. He testified that Mr. Desai had approached him and said that if he did not sign a card he would lose his job, but that three days later, a different union organizer brought the card to him and that he signed it. In light of these inconsistent accounts, the majority finds that it cannot accept his version of events.

40. The Board does, however, find that there were flyers in the parking lot sometime in the middle of the night on March 7-8 which said: "No union = no jobs". However, there was no evi­dence that the flyers were on the cars at the beginning of the shift or at the end of the shift. In fact, the evidence was to the contrary. As the flyers were only on the cars in the middle of the night, it is unlikely that more than a few people saw them. In any case, there was no evidence to tie the flyers to any union organizer. A union which is party to an application for certification cannot be held responsible for the actions of employees who are not union organizers (Alderbrook Industries Limited, [1981] OLRB Rep. Oct. 1331, at 1333; Walbar of Canada Inc., [1982] OLRB Rep. Nov. 1734). Further, reading such a flyer is not likely to intimidate an employee into signing a card that he or she otherwise would not have signed. The existence of such flyers in a workplace is not suffi­cient to cause the Board to question the validity of the membership evidence filed by the union and to order a vote.

41. The union alleged that there was a flyer in the parking lot on March 7-8 but that it said "Union = no jobs". This flyer appears to be exactly the same handwritten flyer as that submitted in evidence by the company, except that the word "No" was removed. It is possible that someone found the flyer that night and photocopied it, with the word "No" removed as a countermeasure to the pro-union propaganda. However, it is not necessary for us to make a factual ruling with respect to the existence or origin of this second flyer, as the issue before this Board is whether or not the union organizers misconducted themselves so as to taint the membership evidence that was submit­ted.

42. During the cross-examination of one of the union organizers, the company alleged that he had been threatened by the union and had so advised management. The witness emphatically denied that he had been threatened by the union and claimed instead that he had been threatened by management. On the basis of the evidence presented, the majority does not find that a threat was made to the union organizer as claimed by the company.

43. Section 8 of the 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.

Thus, the Act provides that the Board may certify a union without holding a vote if it submits evi­dence that more than fifty-five per cent of a bargaining unit are members of the trade union or have applied to become members of the trade union. However, the Board retains a discretion to order a vote even when the union represents more than fifty-five per cent of the employees. Never­theless, it has not done so unless improper actions on the part of the union cast sufficient doubt upon the reliability of the membership evidence to persuade the Board that a representation vote is warranted to determine the true wishes of the employees. The Board does not embark on a gen­eral inquiry as to the circumstances in which membership evidence was collected in the normal course, nor does it do so every time a responding party or employees allege that threats of intimida­tion and coercion have occurred. In such circumstances, the Board follows its usual process of comparing the employee signatures on the membership evidence submitted by the union with those provided by the company. Independent inquiries are made into any signatures that appear questionable. (See Billow's Raceway Auto Parts Inc., [1993] OLRB Rep. May 397.) The Board will also hold a hearing into the specific allegations of misconduct. If the misconduct is not substan­tiated by evidence presented at the hearing, the Board accepts the membership evidence presented by the union.

44. The Board has outlined the scheme for certification in situations where the union sub­mits evidence that it represents more than fifty-five per cent of the employees in previous cases. For example, in Shaw Industries Ltd., [1993] OLRB Rep. Aug. 798, the Board stated as follows:

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 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., 11980] OLRB Rep. Oct. 1437).

45. In a situation such as this, where the union submits evidence of support of more than fifty-five per cent of the employees in the bargaining unit, the Board will not exercise its discretion to order a vote unless that evidence is tainted, usually by misconduct on the part of the union. The scheme of the Act does not contemplate the Board falling back on the vote mechanism because it is faced with contradictory evidence which make it difficult to make factual determinations. It is the Board's responsibility to make factual determinations when faced with allegations of improper conduct in an organizing drive. Unless the Board makes such a finding, the union is entitled to rely on the membership evidence it has submitted. In these circumstances the majority finds that, on the balance of probabilities, the alleged threats were not made to the company's witnesses or to Mr. Ansah. The Board is confident that the signed cards presented in the union's application rep­resent the true wishes of the employees who signed them at the time that they were submitted. It is noted that the only allegation that a card was not signed by the person whose name was on it was raised for the first time in the middle of one witness's testimony. As explained above, the Board finds it must discount that testimony.

46. For the above reasons, the Board certified the union in its decision of June 6, 1994.

47. On June 16, 1994, the Board received a request for reconsideration of its June 6 deci­sion from the company. The company was objecting to the fact that a bottom-line decision was issued, as well as to the content of that decision.

48. It is common practice for the Board to issue bottom-line decisions in circumstances where it is of the view that the expeditiousness of such a course is warranted. In these circum­stances, a bottom-line decision was warranted because more than a year had passed since the appli­cation had been filed, and it was important for the parties to commence their new relationship with its attendant rights and obligations as soon as possible. Furthermore, at the time the bottom-line decision was issued, the Vice-Chair was still on maternity leave and it was therefore unclear when a decision with full reasons would be issued. It is also noted that the Board issued a bottom-line decision in a separate dispute that arose between these parties while the certification matter was being litigated without any objection on the part of either party. Furthermore, at the conclusion of the argument in this matter, the Board indicated that it would attempt to issue a bottom-line deci­sion and no objection was made at that time. In its decision, the Board advised that it would be issuing fuller reasons in due course, which it is now doing.

49. In the request for reconsideration, the company also referred to a "petition" submitted to the Board subsequent to its decision. The Board did receive a number of hand-written docu­ments purporting to be signed by employees of the company objecting to its decision. These docu­ments appear to be an attempt by unknown persons to lobby the Ontario Labour Relations Board after it has rendered a decision, and are therefore not evidence that may considered. The majority denies the company's request for reconsideration.

50. The company also submitted a request that the Board's decision be stayed on an interim basis. It claimed that it should not be required to commence collective agreement negotiations with the union until it had received the Board's reasons. In a decision dated June 30, 1994, a different panel of the Board denied the request for a stay.

51. This was a lengthy and complicated hearing, involving many witnesses who were subject to extensive cross-examination. The Board was required to make numerous rulings throughout the proceedings, many of which resulted in reconsideration requests from the company. The Board carefully considered the evidence of all of the witnesses and the submissions and arguments, both written and oral, of the parties. The majority has determined that the intimidation and coercion alleged by the responding party and the intervenor was not supported by the evidence they pre­sented and that the existence of the flyers did not affect the reliability of the membership evidence. The Board therefore issued a decision certifying the union on June 6, 1994.

DECISION OF BOARD MEMBER J. A. RUNDLE; August 26, 1994

1. In writing my dissent I have followed the format of the majority decision therefore I will address the preliminary rulings first followed by my comments on the merits.

Preliminary Rulings

2. The Board made two preliminary rulings which in my view raise issues of natural jus­tice. The majority of the Board, in a ruling made April 6, 1993, would not permit the Responding party to present evidence directly related to the material facts in dispute in the proceedings. Specif­ically the Board would not permit the Responding party to call a number of employees to testify as to the threats they were subjected to during the organzing drive, or where an employee may have seen the flyer ("No Union - No Jobs") if not seen in the parking lot. The majority of the Board made this ruling based on an alleged lack of particulars in the response filed by Royalguard. The response did provide the names of the employees who were threatened, the name(s) of the union organizers who carried out the threats (Tai Hynh or Hitendre Desai) the timing of the threats (dur­ing the organzing drive), and the nature of the threats (if they did not sign cards in favour of the union they would lose their jobs).

3. In my view Royalguard's response was sufficiently particularized to allow in the evi­dence of the flyers appearing in the lunchroom. The Board has developed principles and standards regarding the sufficiency of particulars. Guaranteed Insulation, [1981] OLRB Rep. Oct. 1394 pro­vides a basic overview of these principles, and a review of the purpose of particulars. The Board noted that sufficient particulars were required for the following reasons; to avoid prejudice, delay, or embarrassment to the opposing party; or to enable parties to know in advance what case they have to meet; to reduce surprise; to enable parties to prepare for cross-examination, and to deter­mine what parties to call in rebuttal.

4. There are several grounds on which to argue that the particulars in the response were indeed sufficient to allow the responding party to call evidence about the flyer. Firstly in Racine, Robert and Gauthier Reg'd., [1978] OLRB Rep. June 559, the Board stated that its rules prohib­ited admission of evidence that was unsupported by sufficient particulars. However, the Board also stated that the rules were not rigid, nor were they "an inflexible rule of law" (p. 566). I would find that in this instant case as the Board's rules do not flow from the Statute, the exclusion by the majority of the flyer evidence was a rigid, inflexible application of the Board's rules. The Board has never had a policy of hiding behind the rules in this fashion, in doing so now the Board does itself a disservice.

5. Secondly the Board has commented on what constitutes sufficient particulars in several cases. In International Association of Bridge, Structural and Ornamental Iron Workers, [1982] OLRB Rep. Feb. 233 the Board found that its rules require only a concise statement of the mate­rial facts upon which the party intends to rely. Similarly in Racine, the Board found that as in General Freezer (65 CLLC ¶16,019) it was appropriate to consider whether particulars "substan­tially identify and describe the offences alleged" in gauging their sufficiency. Royalguard's response did refer to the flyer being found at the workplace on March 7, 1993. This reference focused on the flyers being found in the parking lot, and also referred to employees taking the fly­ers from the parking lot into the workplace. With respect, the reference to the workplace was in my view sufficient pleading to allow the responding party to call evidence relating to the cafeteria as the pleading need only be concise and it substantially identified the issue being alleged. In Ellis Don Limited, [1970] OLRB Rep. Aug. 587 the Board stated that pleadings must:

…..sufficiently describe the actions or omissions complained of so that the responding party may direct his attention to such matters in order to properly prepare his case.

Royalguard's response did refer to flyers being found at the workplace on March 7, 1993. The response mentions the parking lot, and that employees carried the flyers from the parking lot into the workplace. With respect, these pleadings are sufficient to direct the union's attention to the issue of flyers appearing at various locations within the workplace, even including the lunchroom.

6. The Board has further stated that it will hear evidence that was not sufficiently particu­larized if this does not prejudice other parties, Speedex Co., [1981] OLRB Rep. Dec. 1829. Even if Royalguard's pleadings were not sufficiently particularized, what was the prejudice to the other parties particularly as the response did provide notice that the issue of the flyers would be raised, and given that only two witnesses were being called regarding the flyers in the lunchroom. There was no prejudice to the other parties given the early stage of the proceedings (this hearing took over 40 days in total to complete).

7. The Board could have, as was done in Luciano D'Allesandro, [1984] OLRB Rep. June 805, decided to hear the contested evidence but grant an adjournment to the other parties so they could prepare a response. The Board allowed this, even though there had already been lengthy proceedings, unlike the Royalguard case where this issue was raised in the very early stages of the proceedings.

8. The Board has granted adjournments to allow parties to amend their insufficient partic­ulars. In Ontario Hydro, [1992] OLRB Rep. Jan. 47, the Board granted an adjournment and stated the criteria it would consider in such cases, including; the stage of the proceedings; the prej­udice to another party; whether the amendment could be dealt with in a separate proceeding; rea­sons for failure to plead initially; and the extent that amendments would raise new issues and par­ticulars. With respect, Royalguard more than satisfied these criteria and should have in the alternative been granted an adjournment to amend its pleadings.

9. In summary the evidence regarding the flyer in the lunchroom should have been allowed for the following reasons; the Board's evidence rules are not inflexible; and that the partic­ulars were sufficient as they are only required to be concise, to substantially describe facts and to direct a parties attention to an issue. The evidence should be heard even if the particulars were insufficient as there would be no prejudice to the union. Or, the evidence could have been heard under one of the following conditions; that the union be allowed to argue after the evidence was heard that the particulars were insufficient; that the union be granted an adjournment to prepare its response; or that Royalguard be granted an adjournment to amend it's pleadings. To not allow in this evidence in my view constitutes a denial of natural justice.

10. The second preliminary issue is the majority ruling of July 12, 1993 in respect of alleged collateral matters being put to the Applicant's witness Tai Hunyh. Mr. Hunyh was asked whether one of the applicant's organizers named Pandher was also known by some employees in the plant as Dhaliwal. Previously one of Royalguard's witnesses, Kuljeet Benipal, identified Pandher as being Dhaliwal. This identification was not objected to by the union. It was only when it became apparent the impact this evidence would have on Mr. Pandher's credibility that the Applicant raised it's objection. The majority of the Board applied the collateral fact rule of evidence in ruling that the respondent was not permitted to ask any of the Applicant's witnesses if they knew an employee by the name of Dhaliwal or similar name. With respect, I think the majority made an error in law by finding that this was a collateral fact, that the question of names was not at issue, and was irrelevant to the charges of intimidation. The Board therefore found that this evidence was inadmissible under the collateral fact rule. This evidence in my view was admissible for two reasons; the Board is not bound by common law evidence rules and the question of the names was not collateral but was substantive as it related to Mr. Pandher's credibility as an organizer and a witness.

11. The Board is not bound by the common law rules of evidence. Section l05(2)(C) of the Ontario Labour Relations Act allows the Board to admit evidence that may be inadmissible in court. This authority was organized by the court in S. McCord and Co. Ltd. and OLRB et al (1956) 4 OLR (2) 455. As well the Board has found in the past that it was not bound by other common law evidence, such as the rules prohibiting opinion evidence in Dufferin Construction Company, [1991] OLRB Rep. Oct. 1493, so long as the evidence was relevant and had probative value or cogency in law. While the Board may have applied the common law evidence rules in some cases or recognized them in others, it does not appear to be bound by them. The Board was not com­pelled to apply the collateral fact rule in this case, and was therefore not compelled to refuse to admit this evidence under it.

12. In my view the collateral fact rule was improperly applied. It is my position that the question of Mr. Pandher's two names is not collateral but, with respect, substantive. The credibil­ity of organizers is always a substantive issue in a certification application. The majority agrees at paragraph 9 by stating:

“In a certification application, the Board's focus is on the reliability of the membership evidence submitted by the union and upon which it is relying".

(emphasis added)

The Board has recognized that certifications require membership evidence in the form of cards. As this evidence is confidential and is not usually subjected to cross-examination, the Board requires unions "to be scrupulous in the manner in which they conduct their organzing campaigns and obtain membership evidence". Can-Eng Metal Treating Ltd., [1988] OLRB Rep. May 444 at 447; T and F Construction Equipment Rental Limited, [1983] OLRB Rep. Dec. 2116 and Alex Henry and Son Ltd.,[1977] OLRB Rep. May 288. The credibility of the organizers who gather the mem­bership evidence is a central substantive issue in any certification application. The "credibility" of the membership evidence is only as good as the credibility of the people who gather it. Therefore as the question of the two names relate to Mr. Pandher's credibility, it is not a collateral issue but actually central to the application. The majority decision of the Board in the present case clearly states there are significant inconsistencies with the credibility of almost every one of the witnesses evidence, and at paragraph 34 the majority acknowledges that its decision was determined:

……by its findings with respect to the credibility of the various witnesses.

As the majority itself clearly stated that witness credibility was a central issue, one must therefore conclude that this evidence as it related to Mr. Pandher's credibility as a witness is a substantive not a collateral issue and should have been heard.

13. Therefore the evidence of Mr. Pandher's being known by two names should have been admitted on two grounds. Firstly, the Board is not bound by the common law evidence rules, and did not have to concern itself with the collateral fact rule. But more importantly, this issue is sub­stantive and not collateral; the credibility of union organizers is always a substantive issue in certifi­cation applications; and the majority itself identified credibility as a central issue in this case.

The Merits

14. A finding by the majority that the Responding party's allegations have not been sub­stantiated is in my view not dispositive of the matter before us. As the majority states at paragraph 9:

"In a certification application, the Board's focus is on the reliability of the membership evidence submitted by the union and upon which it is relying.

(emphasis added)

After considering all of the evidence in this case it is my view that the Board cannot rely on the membership evidence submitted by the Applicant due to the lack of credibility on the part of the Applicant's witnesses. The credibility of those witnesses is crucial as it relates to the membership evidence. As I stated in my June 6, 1994 dissent:

"Under the current Ontario law, employees have no right to a secret ballot vote to select or reject a trade union. A trade union can be certified solely on the basis of cards, which purport to show the employees' wishes, and ordinarily the Board has no information about the manner in which those cards were obtained. We do not know what was said or done to persuade the employee to sign a card, but once the card is signed there is little practical opportunity for an employee to change his or her mind or to bring irregularities to the Board's attention. This doc­umentary hearsay is kept secret, and is not subject to scrutiny by the employer or anyone else. Yet it can lead to certification, which fundamentally affects the rights of the employees and the employer.

In a system such as this, the Board must have complete confidence in the integrity of the persons who collected those cards because they are the only link to the employees, and the only real guarantee that the card was obtained in a proper manner. However in this case, those collectors lied under oath again and again".

(emphasis added)

15. The majority in paragraph 34 acknowledges that:

"the Board's decision in this matter was determined by its findings with respect to the credibility of the various witnesses".

Therefore the credibility of the Applicant's witnesses goes to the very focus of the certification application - "the reliability of the membership evidence submitted by the union". In assessing the witnesses credibility the majority refers in paragraph 35 to the factors they considered. The assess­ing of evidence poses many challenges even if the witness is speaking English. I am however unclear as to what relevance the fact that:

…many of the witnesses had immigrated to this country in the last few years....

has in assessing the credibility of a witness. Furthermore I am unclear as to what "cultural differ­ences" the majority is referring to, and again what relevance this has in assessing a witnesses' cred­ibility. I do not propose to delve further into these specific factors as they did not form part of the evidence or argument before us and accordingly are irrelevant and should not be a consideration in resolving the issues before the Board.

16. The majority after applying the factors outlined in paragraph 35 equally to all witnesses makes the following finding at paragraph 36:

"After applying these factors to the witnesses in this case, the Board found that almost everyone of them had significant inconsistencies in their evidence and appeared to have been affected by self-interest".

(emphasis added)

The Board having found significant inconsistencies in the credibility of the Applicant's witnesses must with respect recognize the impact those inconsistencies have on the reliability of the member­ship evidence. However, the majority goes on in paragraph 37 to find that:

... the areas in which the union witnesses show the most inconsistency were those related to times and dates.

The majority then goes on to justify these inconsistencies by finding:

"Such inconsistencies may be attributable to the delay between the time that the union organzing drive was taking place and when they testified".

17. Attributing the Applicants witnesses inconsistencies to delay between the time of the occurrence of the organzing drive and the time they testified is a factor that must also be consid­ered in weighing the evidence of the Respondent's witnesses and the evidence of Mr. Ansah. Fur­ther there were, to use the majorities finding "significant inconsistencies" in the applicant's wit­nesses that go well beyond inconsistencies over dates and times. The majority also in paragraph 39 finds that because Mr. Ansah's testimony differed from his initial allegations then:

…..in light of these inconsistent accounts the majority finds it cannot accept his version of events.

Again if this is another standard the Board is applying in assessing the credibility of the witness, this standard must then be applied equally to all of the witnesses. With respect, by applying this standard none of the applicant's witnesses version of events can be accepted.

18. The hearing in this matter took place over a period of forty days and involved hearing the evidence of some thirty-two witnesses. The only way we can obtain a sense of the dynamics of this case is through the evidence and with respect, a thorough review of all the evidence discloses that the inconsistencies of the applicant's witnesses went well beyond those related to dates and times. The evidence of the union on all central issues is lacking in credibility and corroboration. It was almost as if each of the union's witnesses was doing his best to discredit the previous union wit­ness or witnesses. What we have in the applicant's witnesses is not a mere collation of inconsisten­cies, rather we have entirely different stories from each of the witnesses. Those who were supposed to be together at the same time are not. Those who were supposed to have travelled together do not. People who have known each other for lengthy periods of time cannot remember being in the same car together for up to thirteen (13) hours in one day. Documents which allegedly were seen by various union witnesses are never shown to one another. The document known as Exhibit #13 ("Union = No Jobs") in fact, is never referred to for some three weeks after it allegedly appears, and then no original is produced even though this document according to Hitendre Desai was pro­duced by management to "scare" the employees. George Adomah and Nana Frempah who alleg­edly saw Exhibit #13 at the same time contradict one another as to where it was found, who found it, what was done with it and what was said about it and to whom. A review of the evidence of Rashpal Narewal differs in every issue from the other witnesses who were allegedly together on that day. The evidence of Hitendre Desai in relation to the critical issue of the sign, Sam Ansah's involvement in the organzing campaign, Tai's involvement as an organizer, the alleged conversa­tion with John Haddon and Stephen Cork are clearly not believable. The evidence on the same events given by Kuldeep Pannu and Pandher Mukhand differ from each other. The evidence of Cheema Vanderjit on any issue is unbelievable. The evidence of Tai Hynh on all of the critical issues contradicts the evidence of Hitendre Desai.

19. The following examples from the Applicant's witnesses disclose significant inconsisten­cies that go well beyond those related to dates and times and disclose inconsistent accounts of the evidence between witnesses who were presumably giving evidence about the same event.

a) In reviewing the evidence of Nana Frempah and George Adomah with respect to Exhibit #13, we note the following inconsistencies. Mr. Adomah says he found the sign on the floor in front of the company and waited for Mr. Frempah who was parking the car, to show it to him. Mr. Frempah says as they were parking the car, Mr. Adomah grabbed the paper off a car next to Mr. Frempah. Mr. Frempah says that he threw Exhibit #13 into the gar­bage. However in direct examination, George Adomah says he folded it, went into the plant and put it into the garbage chute. Mr. Adomah in cross-examination contrary to Mr. Frempah's testimony says that when he found Exhibit #13 on the ground, Mr. Frempah was not there. Mr. Frempah was the only witness who testified the sign was found in the back of a car - all the others said it was found on the windshield. Mr. Frempah said the sign was not wet, yet Mr. Adomah in cross-examination said it was a little wet as there had been showers.

b) The evidence of Mukhand Pandher who was by his own account one of the chief organizers and collectors, as well as Mr. Pannu and Mr. Sirai also organizers and collectors, is full of inconsistencies. On February 27 when Kingsley was selected as an organizer, Mr. Pandher said that Mr. Paris was not at the meeting. Hitendre Desai said Mr. Paris was. While this may not be critical in terms of that meeting it is critical in terms of what the evidence given by Mr. Mukhand purports to substantiate. Mr. Mukhand while recall­ing, he claims, the details surrounding the visit to the Chhina's cannot recall who was with him in the car that night. Mr. Mukhand's evidence is that he saw the cards that Mr. Sirai and Mr. Pannu are alleged to have had before they went up to the Chhina brother's apartment. The evidence of Kuldeep Pannu and Satnam Singh Sirai is that Mr. Pandher couldn't have seen the cards because they were in their pockets. Mr. Pandher says that he was together with the same five people most of the day, save for Mr. Sirai who left to go on personal business. Mr. Sirai could not have been with them dur­ing the day as he was at work - this is established through the time cards and the evidence of Mr. Sirai himself. Mr. Pandher says Cheema Varinderjit was not with them that day yet Mr. Sirai says Mr. Varinderjit was with them. Mr. Pandher was asked in cross-examination if he recalls the Chhina's cards being different when they were returned. He responded that he couldn't remember and that others checked the cards then gave them to him. The other witnesses however said there was a conversation in the car about the addresses. One witness said Mr. Pandher instigated the conversation and another witness said Mr. Pannu instigated the conversation. In fact Mr. Pannu said that Mr. Pandher told him whose address was on the card.

c) Next we have the evidence of another chief organizer and collector Hiten­dre Desai. The Board at the commencement of the hearing made an order excluding witnesses. The Applicant chose Hitendre Desai as its advisor. The rules of evidence strongly suggest that where there has been an exclusion of witnesses and the advisor is to be a witness~ he should be called to give evi­dence first. Mr. Desai was called by the applicant as its second to last wit­ness. Mr. Desai was present during the full proceeding through examination and cross-examination of each and every witness, heard and viewed each wit­ness and had every opportunity to tailor his testimony to the needs of the applicant's case at the time he gave evidence. In Black v Besse, [1886] 12 O.R. 522 (H.C.) pg. 309 the courts cautioned "the evidence of such a wit­ness should be received, but with great care". And why is this? In the Law of Evidence in Canada, Sopinka states at page 826:

"The purpose of excluding witnesses is to preserve a witness' testimony, in its original state. A witness listening to the evidence given by another may be influenced by the latter's testimony and accordingly change his evidence to conform with it. Also, by being present in the court room and listening to testimony prior to giving his evi­dence, he or she may be able to anticipate and thereby reduce the effectiveness of, the cross-examination that will ultimately be faced. It may also facilitate collusion by allowing a witness to tailor the evidence to fit that of another".

The applicant could have called Mr. Desai as its first witness, it chose not to, therefore the Board can do no less than draw every adverse inference. Where Mr. Desai's evidence recalling he is a collector and organizer conflicts with another, Mr. Desai's evidence cannot be believed. Mr. Desai by his own evidence was not present in the computer room when Mr. Ansah and Mr. Pokhan signed their membership cards. He has no knowledge of what information was conveyed to either party at the time of signing. Mr. Desai returned to sign his name as collector and date the card. Mr. Pokhan and Mr. Desai's recollections of the signing of John Ramsunahi differ. Mr. Shaf­fee's evidence was that again Mr. Desai as the collector was not present in the computer room when Mr. Ramsunahi signed his membership card, while Mr. Desai's evidence is he was in the computer room when Mr. Ramsunahi signed his card. Mr. Desai further states that Mr. Samuel Ansah was his "left and right hand" when it came to the organzing campaign. He spoke to Sam "everyday" about the organzing campaign, yet when it came time to choose organizers Mr. Desai did not select his close friend Sam Ansah. He chose instead Tai Hynh, someone he barely knew and Satnam Singh Sirai, some­one with whom he had never discussed the organzing campaign. Why didn't he chose Mr. Ansah - Mr. Ansah lived with Charles a foreman at the plant and Mr. Desai was afraid that Sam would discuss the organzing campaign with him. This was the rationale behind not making Sam Ansah an organ­izer. Mr. Desai apparently felt no fear of discovery in discussing the organzing campaign daily with his "right and left hand" Mr. Ansah, yet when it came to choosing organizers, Mr. Ansah could not be one because of his relationship with Charles.

A review of Mr. Desai's evidence with regard to John Hadden is equally revealing. Mr. Desai speaks with conviction of what he understood Mr. Had-den's position to be vis a vis the union, yet Mr. Desai never spoke directly to Mr. Hadden. His information comes from a third person who was never called as a witness. Further the majority in paragraph 41 dismisses the evi­dence about Exhibit #13 (Union = No Jobs) as it is of little assistance in their determination. With respect this evidence goes directly to the credibil­ity of Mr. Desai and Mr. Hunyh. The union first alleged that Exhibit #13 was seen by employees on march 30, 1993 at approximately 10:30 pm. The subsequent section 91 complaint alleges that Exhibit #13 was seen in the parking lot between 9:00 and 10:00 on April 1, 1993. If these allegations are true then Tai Hunyh, a union organizer who punched in that evening at 10:48 pm. would have seen it. In Mr. Hunyh's testimony he confirms that he arrived at 10:48 pm. and further confirms that he did not see any paper, in fact nothing. Mr. Desai was at work the night Exhibit #13 was seen. His evi­dence is he never saw Rob Pham with Exhibit #13 as Tai Hunyh alleges. He does however say that Tai told him of the incident with Rob Pham a few days later, yet it was Tai Hunyh's evidence that he never told anyone about this incident prior to coming to the hearing. Mr. Desai alleges he took Exhibit #13 off of his car, read it, folded it and put it in his pocket and does not look at it for the rest of the evening even though he felt that it was put there by management to scare employees. Mr. Desai then confirms that he told Brando Paris, a union official about Exhibit #13 prior to Mr. Paris send­ing the company a letter dated March 9. This sign however is not mentioned by the union until March 30 and even then the allegations are inconsistent with the evidence. Mr. Hunyh threw his copy of Exhibit #13 out - therefore the only copy would have to come from Mr. Desai to Mr. Brando. To date the Board has not seen the original of Exhibit #13.

d) Kuldeep Pannu's (another collector) evidence regarding the signing of Kuljeet Benipal again discloses significant inconsistencies. Mr. Pannu says that he and Mr. Sirai went into the Eurocollections factory and met an employee who paged Kuljeet Benipal and then went inside and called him. Mr. Sirai however who was present at the time recalled that the employee did not call Kuljeet and he was sure of this. Mr. Pannu in his evidence how­ever has specific recall of the conversation including who made what state­ments. Yet he is seemingly unable to remember who was with him in the car that night, whether they went to see other employees, when they went to see other employees and how many cards he might have signed that day. With respect, all Mr. Pannu is doing is parroting what their witnesses have said previously and will say after him in relation to union benefits, signatures on cards and the fact that the employee was happy. Mr. Pannu cannot recall whether he had a blank union card when he went in to obtain Kuljeet's sig­nature. Nor did he recall whether Mr. Sirai had a union card. Why then were they going to obtain Mr. Benipal's signature if they did not between them, both being union organizers, have a membership card with them particularly as it was the evidence of Mr. Pandher and Mr. Desai that they were in a hurry to get membership applications. One can only conclude it was the intention of these collectors to place Mr. Benipal in the intimidating position of having to sign his card in front of four or five other employees.

20. In response to the finding in paragraph, the Board at the request of all the parties posted notices in the workplace in the languages requested by the parties. The Board notices outlined for the employees the rights which are protected by law in Ontario; specifically the right to join or not to join a trade union and the right to do so in an environment free of threats, intimidation and coercion. The request for the posting was made subsequent to the commencement of the hearing and in response to concerns expressed in the workplace. The subject matter of the notices addressed those concerns obviously to the satisfaction of the parties. Therefore it is clearly plausi­ble and believable that employees who have been advised in writing by the Board of their rights under the law would then come forward to speak of their concerns.

21. As stated in my June 6, 1994 dissent I would have found this an appropriate case in which to order a secret ballot vote in order to determine the true wishes of the employees. The Board has stated that it can consider a broad range of circumstances when considering whether to order a vote under section 8(3). In Gruyich Services inc., [1986] OLRB Rep. Aug. 1092, he Board did not know whether the employees had received all of the Board's notices. Subsequently, the Board ordered a vote despite the union's sufficient membership evidence. In Gruyich, the Board stated that:

The legislation accommodates the possibility that circumstances other than the membership ~'count" may, in a particular case, make trade membership evidence less reliable as a measure of the employees' desire to be represented by a trade union.

The Board went on to say that it:

….must take into account, not only the membership evidence filed, but all of the relevant circumstances in determining whether or not to exercise its discretion to order a representation vote.

(emphasis added)

22. In my view the credibility of the Applicants employee organizers constitutes a relevant circumstance the Board must take into account to order a vote.

23. Firstly, the credibility of the union's employee organizers constitutes a relevant circum­stance. This argument is reinforced by the extent that the Board must rely on the credibility of membership evidence. The Board has stated on numerous occasions that, because of the confiden­tial nature of membership evidence, and because it is not usually subject to cross-examination, the credibility of membership evidence is crucial. The Board has said that unions must be "scrupulous in the manner in which they conduct their organzing campaigns and obtain membership evi­dence". (Can-Eng Metal Treating Lt., sup ra, see also T & F Construction Equipment Rental Limited, sup ra, and Alex Henry and Son Ltd., sup ra)

24. Because of the extent that the Board relies on the credibility of the membership evi­dence, the Board must also rely on the credibility of the people who collect it. If the credibility of the employee organizers who gathered the membership is at all questionable, then a representation vote should be ordered. Such is the case in Royalguard where the evidence clearly discloses the lack of credibility of those responsible for the collection of the membership evidence.

25. The Board has stated that any attempt to mislead the Board regarding membership evi­dence will weigh against an Applicant in a certification application. In Webster Air Equipment Company Ltd., (1958) 58 CLLC 18,110) the Board was concerned that the Applicant union had failed to disclose that a union official had loaned an employee the one dollar membership fee. The Board stated that "any attempt to mislead the Board or any failure to make full disclose of all material facts must weigh heavily against an applicant". In that case because a union official was involved, the Board dismissed the application. The credibility problems of the Applicants employee organizers in the present case are serious enough to constitute an attempt to mislead the Board.

26. The applicants witnesses through their evidence attempted to have us believe Mr. Ansah was an integral part and supporter of the union and its organzing campaign - indeed a tre­mendous supporter. A review of the evidence does not support this theory. Nana Frempah said that he found out about the union organzing drive from Mr. Ansah. Mr. Ansah it is alleged, tells Mr. Frempah about the benefits of the union but then tells him to see a co-worker, Kingsley, who is later revealed in evidence as being an organizer. With all due respect to Mr. Ansah and with no slight intended, it is hard to believe that Mr. Ansah would or could solicit support for the union or explain union benefits to other employees. Further it was Mr. Frempah's evidence that he did not tell Mr. Ansah about Exhibit #13 (Union = No Jobs) because Mr. Ansah told him the union activities were secret. Remember Mr. Ansah is not a union organizer. In cross-examination Mr. Frempah could not confirm the dates or times that the alleged conversations took place. Mr. Frem­pah states that he never spoke of specific dates with the Applicant's counsel nor did he mention March 3rd or 4th even though those are the dates that appear in the Applicant's counsels corre­spondence to the Board as the dates on which the alleged conversations took place. Mr. Frempah is unsure as to who else was there, first saying that he and Mr. Ansah were present and then indi­cating that a fellow employee George Adomah was also present. Even assuming his memory was not exact as to dates and times, he says when he spoke to him, Sam was leaving. The time cards however established that when Mr. Ansah was working during the week that Mr. Frempah alleg­edly spoke to him, Mr. Frempah was not on the same shift. Mr. Frempah further confirms that he did not tell union counsel about this conversation after having said it would not be a surprise or unusual for Mr. Ansah to come and talk to him about the union yet he says he spoke to Kingsley on the 4th because he thought it was a trick on Mr. Ansah's part, it was so strange to him. With respect, this whole line of testimony is a fabrication. Mr. Frempah alleges this conversation took place March 3 on production line 8 in the presence of Mr. Adomah even though the evidence dis­closes that Mr. Frempah worked as the packer on production line 5 that day. Mr. Frempah's testi­mony is replete with contradictions and changes in testimony. Everytime he is challenged his stan­dard response is "I know Sam came and talked to me". Finally recognizing his contradictions, he says "the conversation could have taken place in February" after previously asserting the alleged conversations took place on March 3,4,and 5. The union witnesses have attempted through their testimony to discredit Mr. Ansah and have undertaken a campaign of retribution against Mr. Ansah for exercising his legal right to oppose the trade union. All of the Applicant's witnesses' tes­timony relative to Mr. Ansah is replete with significant inconsistencies directed at misleading the Board as to the role Mr. Ansah did play in this organzing campaign.

27. The Board has ordered a vote in circumstances that included merely the possibility of

intimidation. In Waldorf-Astoria Hotel, [1981] OLRB Rep. Sept. 1308, the Board stated that it was uncertain whether threats of job loss may have been made by the union's employee organizer. The Board was also concerned that the employee may have misrepresented himself. The employee was not available to testify before the Board. In the absence of this testimony the Board held that the possibility of the threat and the misrepresentation was sufficient to warrant a representation vote. The evidence in the Royalguard case is certainly sufficient to raise the possibility of intimidation to the extent that the membership evidence is unreliable. The company, in it's cross-examination of the Applicant's employee organizers, disclosed as the majority found, significant inconsistencies in their testimony. This testimony impacts directly on the reliability of the membership evidence and I would have found that the credibility of the Applicant's witnesses was such that one cannot rely on their evidence in support of the membership evidence, therefore the evidence of the Applicant's witnesses was not sufficient to rebut the Respondent's allegations.

28. In challenging the membership evidence the Respondent assumed the onus of proving the membership evidence was unreliable on its face. By reason of the testimony of the Applicant's witnesses that onus has been met and serious doubt cast on the reliability of the membership evi­dence. When witnesses treat the integrity of the Board in such a cavalier manner as these witnesses did - by lying under oath day after day - it does not behoove this Board to reward such conduct. I would have allowed the employees at Royalguard to decide by secret ballot whether or not they want a union to represent them.

29. My dissent that accompanied the majority decision issued June 6, 1994 fully canvassed my concerns regarding the issuance of a "bottom-line" decision in this particular case, therefore I do not propose to reproduce them here. However in paragraph 48 the majority comments:

"It is also noted that the Board issued a bottom-line decision in a separate dispute that arose between the parties while the certification matter was being litigated without any objection on the part of either party".

30. The Board did during the course of the litigation on the merits hear a separate dispute between the parties involving an alleged violation of section 81 of the Act. Following that "hearing within a hearing" the Board issued a bottom-line decision, then continued to hear the merits of the main case. The majority comment, noted above, proposes that failure to object to the issuance of a "bottom-line" decision on one matter precludes a party from objecting to the issuance of a "bot­tom-line" decision on another matter raised during the course of the same litigation. This proposi­tion is not supported by the Board's practice or rules and is therefore inappropriate and prejudi­cial.

31. I would have granted the Respondent's request for reconsideration.