United Steelworkers of America v. Ken Bodnar Enterprises Inc., 1994 CanLII 9954

[1994] OLRB Rep. June 688

2236-93-R United Steelworkers of America, Applicant v. Ken Bodnar Enterprises Inc., Responding Party v. Group of Employees, Objectors

BEFORE: Roman Stoykewych, Vice-Chair.

APPEARANCES: Marie Kelly and Alison Morgan-Coldrick for the applicant; Elizabeth Keenan, David C. Daniels and Ken H. Bodnar for the responding party; C. J. Abbass, Linda Morby, Shir­ley Martin, Stefan Kopacz and Rosemary Turner for the objectors.

DECISION OF THE BOARD; June 21, 1994

1. This is an application for certification, in which the applicant trade union sought to rep­resent employees of the responding party employer, which operates a "Canadian Tire" outlet in Collingwood, Ontario. Hearings in this matter commenced on November 1, 1993 and continued for numerous days until their completion on December 17, 1993. In a decision dated December 24, 1993, the Board granted the applicant a certificate. During the course of the proceedings, I issued "bottom line" rulings, with further reasons to follow, with respect to a number of issues raised both by the responding party and by the intervenor employees. The following are those further written reasons.

Constitutional Issues

2. The trade union filed its application for certification of the employees of the respondent on October 1, 1993. Some days after the application for certification was filed, a number of employees who had previously indicated their willingness to be represented by the applicant by signing union cards during the course of the trade union organizing campaign advised the Board in writing that they now sought to have their applications for membership in the trade union revoked. A number of reasons were advanced for doing so, some of which will be discussed below in the context of the allegations of defective membership evidence. However, for the purposes of the constitutional argument it was the basic thrust of the employees' representations that their "changes of heart" ought to be considered by the Board and that their previous indication of sup­port for the trade union ought to be ignored for the purpose of ascertaining the level of support for the trade union. The representations of each of the employees correctly assumed that, in the ordi­nary course, the Board would not consider such evidence by virtue of operation of section 8(4) of the Act. That section, which came into effect on January 1, 1993, provides as follows:

8(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 of a trade union or has otherwise expressed a desire to

to 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 who 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.

4. Counsel for the objecting employees took the position that the provisions of section 8(4) of the Act were inconsistent with the requirements of sections 2(b). 2(d) and 15 of the Canadian Charter of Rights and Freedoms. In particular, it was asserted that section 8(4), insofar as it precludes the Board from considering evidence expressing a desire by employees not to be repre­sented by a trade union submitted to the Board after the date upon which the trade union applies for certification, is violative of the freedoms of expression, association and the right to equal treat­ment as set out in the Charter. As indicated in my oral ruling rendered during the proceedings on November 3, 1993, I found the position of the employees on these issue to be without merit and declined to direct the remedies that they sought. The following are my reasons for doing so.

5. Regarding the issue of freedom of expression, Mr. Abbass argued that the effect of sec­tion 8(4) was to deny an effective method of expression concerning the issue of whether employees should be represented by a trade union. Prior to the amendment coming into effect, it was con­tended, expression had been facilitated by the Board's practise of setting a terminal date for receipt of expressions of desire to revoke union membership at a time subsequent to the applica­tion date. Notice would be provided to all employees and the employer, and because it remained open for employees to retract their support for the trade union, employees opposed to unioniza­tion were allowed the opportunity to convince those employees who had signed trade union mem­bership cards to retract their support for the trade union. The effect of the operation of section 8(4) is to remove what was characterized as a forum of expression. Although counsel conceded that employees were still able to discuss that issue irrespective of the operation of section 8(4), nonetheless, he stressed that the provision had the effect of rendering such speech essentially meaningless because employees could not address the issue of certification. Counsel relied primar­ily upon certain dicta set out in Attorney-General of Quebec v. Irwin Toy Ltd. et al. (1989), 1989 CanLII 87 (SCC), 58 D.L.R. (4th) 577 and the dissenting decision in Pinkerton's of Canada Ltd., [1990] OLRB Rep. Jun. 673 in support of the position that the freedom of expression must be meaningful in practical terms. As a remedy, counsel requested that the Board declare the provisions of section 8(4) to be without effect, and to extend the terminal date for receipt of evidence revoking union membership beyond the application date to permit employees wishing to withdraw their support for the trade union to be able to do so.

6. The scope of activity that is protected by the provisions of section 2(b) of the Charter is substantial, extending potentially to all activity that "attempts to convey meaning". (Irwin Toy, supra.) Under this broad formulation, it may well be that the restriction of an opportunity to express a point of view at a proceeding, even if that constraint is effected by procedural means, is sufficient to constitute a restriction of the expression rights under the Charter. (See, for example, Dairy Producers Co-operative Ltd. v. Teamsters, Dairy & Produce Workers, Local 834 (1992), 1992 CanLII 8044 (SK QB), 5 Admin. L.R. (2d) 212 (Sask. Q.B.)). However, having regard to the legislative objectives underly­ing the provisions of section 8(4) of the Act, and to the means chosen to achieve those objectives, it is not necessary for me to decide that difficult question since I am satisfied that any restrictions of expression rights are "reasonable limits" pursuant to section 1 of the Charter. (R. v. Qakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103; Irwin Toy, supra.) In this regard, I am satisfied that the legislative objective underlying the legislation is sufficiently pressing and substantial so as to justify a curtailment of the expres­sion rights at issue. As was extensively reviewed in Hemlo Gold Mines Inc. [1993] OLRB Rep. Mar. 158, the legislative changes set out in section 8(4) of the Act were responsive to the pro­tracted and divisive litigation arising from the Board's requirement to examine the voluntariness of post-application date petitions. Prior to the amendments coming into effect, employers and employees would be given notice of the union's application for certification at a point in the pro­cess in which the proportion of support for the union amongst the employees was a live issue. This had the effect of creating a substantial incentive and opportunity for illicit employer support for "petitioners" seeking to rescind their trade union membership. The Board's Reports are replete with cases in which the issue of the proportion of trade union support required a determination as to whether post-application date petitions were tainted by employer support, whether real or per­ceived. Almost invariably, the litigation of such issues involved the resolution of difficult questions of credibility framed in the context of mutual recrimination and allegations of misconduct. Not only did such litigation have the effect of making the otherwise simple administrative task of ascer­taining the proportion of trade union support amongst the employees into an arduous process extending over months and sometimes years, it also served to sour if not poison working relation­ships for years to come, regardless of the outcome of the proceeding. Bearing this in mind, I am satisfied that the legislative changes are responsive to a pressing labour relations problem.

7. Furthermore, having regard to the criteria set out in Edwards Books & Art Ltd., 1986 CanLII 12 (SCC), [1986] 2 S.C.R. 713 and Irwin Toy, supra, I am satisfied that the means chosen by the Legislature are "proportional" to the government's objective in that the limiting measure has a rational connec­tion to the objective sought to be obtained, that the provision is the option least restrictive of those rights, and that the effect of the limitation does not trench upon expression rights so severely as to outweigh the legitimate government objective. First, I am satisfied that the legislation has a ratio­nal connection to the objective sought to be attained. The legislative response in Ontario was to restrict the development of the unfortunate labour relations dynamic described above by requiring the Board to ascertain both the number of employees in the bargaining unit and the number of employees who have applied to be members of the trade union seeking certification as of the date upon which the trade union filed its application for certification with the Board. The principal effect of this is to render numerically irrelevant changes in support for the trade union, be they retractions or increments, that occur after the application date. For this reason, I am satisfied that the legislation, as it is drafted, makes post-application anti-union campaigns superfluous to the count. It is to be noted that this legislative approach is in line with that already taken in several other jurisdictions in Canada, including the federal jurisdiction, Saskatchewan, Manitoba and Newfoundland. The experience of our sister tribunals with similar legislation confirms my view that the legislation in fact achieves its desired effect. In particular, the Board notes the comments of the Canada Labour Relations Board in Canadian Imperial Bank of Commerce, Sioux Lookout, [1979] Can. LRBR 18, that the choice of the application date as the relevant time of calculation of quantum of membership support both reduces the delays in the certification process attendant to the litigation of post-hearing petitions and reduces the opportunity for illicit employer interference in the certification process.

8. Furthermore, I find that the provisions of section 8(4) are not unduly restrictive of expression rights in the course of achieving their purpose. Notwithstanding the provisions of sec­tion 8(4), employees remain free to retract their support for the trade union and to have that retraction considered by the Board provided, of course, that they notify the Board of their decision prior to the time that the trade union files its application for certification at the Board. (Section 8(7)(c)) Employees also remain able to challenge the validity of membership evidence advanced in their name on the basis of fraud and misrepresentation. (Section 8(7)(a)). Moreover, the impugned provision does nothing to affect employees' legal rights to participate in any other aspect of the certification proceedings or to otherwise exercise any rights under the Labour Relations Act.

9. Lastly, I am satisfied that the provisions of the impugned section do not so seriously constrain expression rights as to outweigh the importance of the labour relations objectives sought to be attained. The changes effected by section 8(4) are essentially procedural ones that regulate the time and place, rather than the content, of the expressive activity and, as indicated above, the restriction of expression rights, if such is to be case, is minimal, since employees remain free to dis­cuss and consider the entire range of issues relating to union membership. Nor is there a question of employees who oppose the trade union being denied an opportunity to express their views since, by virtue of not signing an application for union membership, such employees are deemed to oppose the trade union for purposes of the count. Rather, the effect of the provision is merely to alter the date upon which trade union support is measured. In general, I am satisfied that the pro­visions of the section have little impact upon the expression rights at issue. It is possible, with suffi­cient ingenuity, to construe virtually any procedural change to be one that adversely affects expres­sion rights, particularly when great emphasis is placed upon the effectiveness of that speech forwarding other substantive interests. However, I am not convinced that the essentially proce­dural changes effected by section 8(4) detrimentally affect the freedom to meaningful expression to such an extent as as to outweigh the labour relations objectives sought to be attained. For these reasons, I dismissed the challenge to the validity of the section on the basis of freedom of expres­sion.

10. Counsel also raised the argument that the provisions of section 8(4) are violative of the Charter freedom of association. Little argument was directed to this matter other than the submis­sion that the Board's previous decision in Hemlo Gold Mines Inc. supra was incorrectly decided in holding that there was no such violation. Counsel asserted that the considerations of the panel in that decision over-emphasized the dangers of employer involvement in the certification process that the provision attempts to redress, and as a result, countenanced a system of forced associa­tion. Counsel relied upon Lavigne v. Ontario Public Service Employees Union et al. (1991), 1991 CanLII 68 (SCC), 4 C.R.R. (2d) 193 (S.C.C.) for the proposition that freedom of association includes a freedom from compelled association. As I indicated in my oral ruling, I am not persuaded that section 8(4) of the Act is violative of the freedom of association. Moreover, as I am wholly in agreement with the analysis and the conclusions of the Board in Hemlo, supra, it is unnecessary to review that deci­sion's careful description of the purposes of the new certification processes associated with the leg­islative amendments. It is sufficient to note that I am in agreement that the views expressed therein that the Lavigne, supra, decision does not stand for the general proposition that freedom of associ­ation includes a freedom from compelled association, nor am I persuaded that the broad interpre­tation of freedom of association adopted by the employees in the present application is consistent with the relatively narrow interpretation given to the term by the Supreme Court of Canada in such decisions as Professional Institute of the Public Service of Canada v. N. W. T. (Commissioner), (1990) 1990 CanLII 72 (SCC), 72 D.L.R. (4th) 1, Reference Re Public Service Labour Relations Act, Labour Relations Act and Public Officers' Collective Bargaining Act, (1987) 1987 CanLII 88 (SCC), 38 D.L.R. (4th) 161, Public Service Alliance of Canada et al. v. The Queen in Right of Canada, (1987) 1987 CanLII 89 (SCC), 38 D.L.R. (4th) 249, and Government of Saskatchewan et al v. Retail, Wholesale and Department Store Union, Locals 544, 496, 635, & 955 et al., (1987) 1987 CanLII 90 (SCC), 38 D.L.R. (4th) 277. Finally, I am in agreement with the Hemlo decision insofar as it determines that, in any event, certification does not infringe the freedom of association because it does not compel employees to become members of a union.

11. Finally, counsel argued that the provisions of section 8(4) had a discriminatory effect upon his clients, and therefore, he asserted, were violative of the equality rights set out in the Charter. Counsel argued that the provisions of the impugned section created far greater rights for those employees seeking to have a trade union represent them than for those who oppose it since the provision permits the trade union to select the deadline for the union organizing campaign. The effect of the statute is thus to prevent the exercise of what counsel characterized as the right to stage an anti-union campaign by those who oppose unionization to rally support for their views after the application date. Counsel described this an a wholly unreasonable imbalance of rights, and submitted that the actions of the Legislature were "overbroad" in its curtailment of such rights.

12. In my view, it is unnecessary to determine whether a particular disadvantage or inequal­ity is accorded to the group of employees, be they characterized as those persons seeking to oppose a trade union or as those persons seeking to retract their support for a trade union, because the basis of their claim to equality is not one that is recognized under the provisions of the Charter. Since the decision of the Supreme Court of Canada in Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143, it is abundantly clear that questions of inequality are addressed under the Charter only when the claim of unequal treatment is one that is based upon grounds spe­cifically set out in section 15, or when the claim is based on "analogous grounds". In respect of the latter, the Supreme Court has stated that the analogous grounds advanced must involve "immuta­ble personal characteristics." (Andrews, supra.) I am satisfied that the group seeking to invoke sec­tion 15 of the Charter in the present application, as characterized above, is neither one that is enu­merated under the Charter nor one that is analogous to such a group. I do not accept that opposition to a trade union or especially a wish to retract support for a trade union is an "immuta­ble characteristic" as understood in Andrews, supra. Accordingly, for these reasons, I find that the equality provisions of the Charter have no application to the present matter.

Alleged Defects in the Membership Evidence

12. By correspondence dated October 12, 1993 directed to the Board from counsel for sev­eral employees, it was alleged that the membership evidence submitted by the trade union in sup­port of the certification was defective in two basic respects. First, it was asserted that Linda Morby, who works for the responding party employer, and had signed a membership card during the trade union organizing drive, subsequently requested that her card be returned to her and not be used in the calculation of support for the trade union for the purposes of the certification application. It was alleged that such request was not honoured by the applicant. The trade union denied that Ms. Morby requested that her card be withdrawn, and sought to rely upon the membership evidence that it submitted bearing her name and signature. Secondly, in the same correspondence, it was asserted that Shirley Martin, Rosemary Turner and Stephan Kopacz, each of whom are employed by the responding party employer and had signed membership cards, were assured by a union organizer or organizers that a representation vote would be held irrespective of the number of cards that the trade union collected during its drive. Counsel for the employees sought as a remedy that the cards in question not be considered for the purposes of the count and that the Board order a representation vote. The union denied making any statements that would induce employees to believe that there would be a vote, and, subject to the establishment of support in excess of 55% of the employees in the bargaining unit, sought certification without the requirement of a vote.

13. After hearing several days of evidence and submissions, I ruled orally on December 9,

1993 that the objections with respect to the defective membership evidence were groundless and

that there was no reason for the membership evidence of the employees in question to be rejected

for the purposes of the count. The following are my reasons for so ruling.

14. Near the very commencement of the applicant's organizing drive, on September 9, 1993, Bill Keen, who is a mechanic with the employer and the principal "in-store organizer" of the applicant, approached Linda Morby, the respondent party employer's "Sports Manager", with respect to meeting with a trade union representative. Ms. Morby expressed interest in the cam­paign, and attended at a meeting the next day with Mr. Keen and Allison Morgan-Coldrick, a full-time organizer employed by the applicant trade union. It appears that the substantial majority of the conversation at the meeting took place between Ms. Morgan-Coldrick and Ms. Morby, during which they discussed the advantages of unionization and, more extensively, Ms. Morgan-Coldrick outlined the process by which the union's bargaining rights were to be obtained. Ms. Morgan­Coldrick, who is an experienced union organizer, testified that the presentation given to Ms. Morby was one that she routinely delivered to employees she meets during the course of organiz­ing drives (she referred to it as her "spiel"). For the present purposes, it is important to note that her "spiel" featured a review of the rudiments of the certification procedure, including a statement that it was the policy of the trade union, when organizing, to apply for "automatic certification", t.e., by applying when more than 55% of the cards were obtained and thereby avoiding the requirement of a representation vote. Ms. Morby expressed considerable interest in a trade union, particularly since she had not received a wage increase for what in her view was an inordinate amount of time, and agreed to sign an application for membership card. In addition, she agreed to identify for Ms. Morgan-Coldrick those employees of the respondent who in her view would be likely union supporters. Nevertheless, she advised Ms. Morgan-Coldrick that she did not wish to be identified publicly as a union supporter. She was duly provided an assurance that the trade union would not divulge her support to anyone, and left after obtaining several blank union mem­bership cards which, it appears, she had intended to distribute to other employees.

15. According to Ms. Morby's testimony, she reconsidered her involvement in the trade union virtually immediately. It appears that within a day of her first meeting with Ms. Morgan­Coldrick, Ms. Morby was advised by the employer that she was being considered for a promotion to a higher level position that, in her view, was managerial. Accordingly, it was claimed, she asked Bill Keen on September 12 to withdraw her card for purposes of the certification application. How­ever, the evidence surrounding this alleged transaction, especially Ms. Morby's own testimony, does little to support such an assertion. On September 12, 1993, Ms. Morby was visited at her home by Bill Keen. Mr. Keen had arrived at her home in order to sign up Stephan Kopacz, with whom Ms. Morby was living as a partner. According to Ms. Morby, she at that point advised Mr. Keen that she "doesn't want to be involved in the union anymore" and that Mr. Keen responded by saying "Fine, I'll take care of it". She claims that in so advising Mr. Keen, she intended him to return her card or at least ensure that her name would not be used by the union for the purposes of the certification process. Mr. Keen denies both that Ms. Morby made the statement she claims to have made or that he intimated to her that he would "take care" of anything. By his account, there was a general conversation about the trade union drive. By contrast to both these versions of events, it was the evidence of Mr. Kopacz, who at the time of the conversation was rushing to get ready for work and was present for only a small portion of the conversation between Ms. Morby and Mr. Keen, that Ms. Morby not only advised Mr. Keen that she no longer wanted to support the union but also specifically asked that her card be returned. As noted, Ms. Morby made no such claim in her evidence, and indeed, in cross-examination, expressly denied asking for her card back.

16. It was Mr. Kopacz's evidence that, given that he was in a great rush to get to work, he was able to speak with Mr. Keen only briefly. He testified that, despite hearing from Ms. Morby that she no longer wished to support the union, he nonetheless agreed to sign a union card. Mr. Kopacz claims that he signed a card only after Mr. Keen assured him that there would be a vote amongst the employees on the issue of certification. In his testimony, Mr. Kopacz claimed that he signed the card on that specific understanding. Mr. Keen denied informing Mr. Kopacz that there would be a vote. It was his evidence that although he engaged in general conversation about what he felt were the merits of unionization at the workplace, it was apparent to everyone, not the least to himself, that he knew very little of the specifics of the certification process. As he somewhat sar­donically noted in his evidence: "I'm a great mechanic, but I don't know anything about the law". Given his manifest limitations in this latter respect, it was his practice to advise all employees whom he encountered in the context of his organizing to contact Ms. Morgan-Coldrick in order that she may be able to answer any questions they might have. It was his evidence that he so advised Mr. Kopacz. In any event, he assumed, quite understandably, that Mr. Kopacz had spoken to Ms. Morby about the organizing campaign and its procedures and would therefore be familiar with the union's strategy. Mr. Keen left the Morby-Kopacz residence shortly after obtaining Mr. Kopacz's signature.

17. Ms. Morgan-Coldrick further contacted Ms. Morby by telephone on the evening of Sep­tember 15, 1993. At the hearing, submissions were made by Ms. Morby's counsel that, once again, she requested that her card be returned to her. However, Ms. Morby's evidence, even if it were to be believed in its entirety, does not support that position. The telephone conversation was extremely short, since at the time, Ms. Morby was at home entertaining several persons that, in her view, were managerial personnel at the store. Although there was some disagreement as to the exact words that were used in the telephone conversation, there is no dispute that Ms. Morby advised Ms. Morgan-Coldrick that she no longer wished to be involved in the trade union drive. Similarly, there .is no real dispute that Ms. Morby did not specifically ask that her card be returned or that it not be relied upon by the trade union during this conversation or at any other time. Nev­ertheless, Ms. Morby insisted that, under the circumstances, it was plain that she was asking the union to withdraw her card.

18. The Board also heard the evidence of Shirley Martin, who has the title of "Manager, Hardware" at the Collingwood store. Ms. Martin testified that she was approached at her home by Bill Keen on September 27, 1993, at which time he asked her to sign a union membership card. She claimed that Mr. Keen indicated to her that he had already signed 75% of the employees in the store and that her card in this respect was "just gravy". She also asserted that Mr. Keen pro­vided her with certain information as to the process by which certification was to be obtained, which, she maintains, included a statement that there was to be a vote amongst the employees. Although it was her evidence that, at the end of the conversation it was her belief that there would be a vote, she candidly stated that what impressed her most was how little Mr. Keen appeared to know about the process. Mr. Keen admitted as much during the course of their conversation, and, as was his practise, encouraged her to speak with Ms. Morgan-Coldrick by telephone. He provided Ms. Martin with Ms. Morgan-Coldrick's telephone number. Ms. Martin immediately contacted Ms. Morgan-Coldrick, discussed the union organizing drive, and then signed a union card provided to her by Mr. Keen. It was Ms. Martin's evidence that although she asked Ms. Morgan-Coldrick questions about the drive and the process, she neither asked about a vote nor was advised that the union was planning to proceed without a vote amongst the employees. Ms. Morgan-Coldrick, on the other hand, testified that during her telephone conversation with Ms. Martin she provided her usual "spiel" that, as discussed above, included reference to the union's strategy to proceed by way of automatic certification.

19. Having reviewed the evidence, I am satisfied that none of the employees' claims with respect to the defective membership are of sufficient weight so as to cause the Board to disregard or question such evidence or to otherwise exercise its discretion to order a vote. It should be noted that with respect to Ms. Morby, the applicant conceded that it was its practice to return cards upon request and that, were she to have requested the return of her card, it would not be appropriate for the Board to consider her card for the purposes of the count. However, the evidence does not sup­port the allegation that she requested the union to return her card or to otherwise not use her card for the purposes of the application for certification. As indicated above, it was conceded by Ms. Morby that she never specifically asked that either Ms. Morgan-Coldrick or Mr. Keen return her card. Similarly, the evidence that Ms. Morby alluded to the possible withdrawal of her support for the purposes of the membership count is exceedingly weak. As for Mr. Kopacz's claim that she did so, this evidence is directly contradicted by Ms. Morby herself. At its highest, then, the evidence of her alleged statements that she no longer wished to be involved in the union is ambiguous, and under the circumstances, could be reasonably interpreted by both Ms. Morgan-Coldrick and Mr. Keen to mean that she no longer wished to pursue her previously active role in the organizing drive. It is important to note that the purpose of the membership evidence was made clear to Ms. Morby, and that consequently, she would be aware of the significance of the formality involved in the requirement that the card be signed. In this respect, it is reasonable to expect that a request for revocation would be correspondingly formal, and certainly would take more substantial a form than the statement that she no longer wished to be further involved in the union. Accordingly, even if Ms. Morby's evidence is to be believed in its entirety, I am satisfied that she did not make her intentions known with sufficient clarity to require the trade union to act upon them.

20. There is, in any event, substantial reason to doubt that Ms. Morby intended to request the return of her card prior to the October 1, 1993 application date. Ms. Morby attempted no fur­ther contact with trade union representatives after her telephone conversation of September 15, 1993 with Ms. Morgan-Coldrick. She claims that she was under the impression that she had advised the trade union to withdraw her card and that the trade union had acceded to her request. In this vein, it was her evidence that she was surprised to receive promotional literature from the trade union dated October 15, 1993, in which it was made clear that the trade union considered her a member. However, her actions are not consistent with her profession of surprise. The evidence is clear that, prior to October 15, 1993, she found it appropriate to approach Mr. Abbass, at which time he was instructed to take the position that Ms. Morby was "concerned" that her card was still being used. More generally, Ms. Morby's evidence was inconsistent on many points, and in partic­ular, by her counsel's own admission, attempted to deceive the Board when questioned about receiving payments from the employer for her hotel accommodations during the course of these proceedings. Under these circumstances, I have little hesitation in rejecting Ms. Morby's assertions that she intended to instruct representatives of the union to return her card, or that she took any action in that respect and, to the extent that her evidence differs from that of Mr. Keen and Ms. Morgan-Coldrick, I prefer the evidence of the latter two witnesses.

21. Both Mr. Kopacz and Ms. Martin assert that they were misinformed by the union with respect to its intention to pursue the certification application on an "automatic" basis. In this respect they rely, in whole or in part, upon the statements allegedly made to them by Bill Keen, an "in-store", volunteer organizer characterized by Ms. Martin as conspicuously ill-informed as to the basics of the certification process. Mr. Keen offered both Mr. Kopacz and Ms. Martin the assts­tance of Ms. Morgan-Coldrick. Mr. Kopacz declined to inquire further, while Ms. Martin asserts that, despite contacting the union organizer, the topic of the vote was not raised. Assuming, but by no means deciding, that Mr. Keen made the statements as alleged, I am satisfied that under the cir­cumstances any reliance placed such statements would be entirely unreasonable. The Board has made it clear in numerous decisions that although it may question or disregard membership eVi­dence induced by the misrepresentations of responsible trade union officials (Carleton University, [1976] OLRB Rep. Aug. 450), it will carefully scrutinize the claims of reliance placed upon the statements made by unpaid, "rank-and-file" organizers. Thus, in the absence of evidence of physi­cal intimidation or threats to job security, alleged misrepresentations made by rank-and-file organ­izers will not normally affect the validity of the membership evidence. (Leon's Furniture, [1982] OLRB Rep. Mar. 404; General Motors, [1980] OLRB Rep. Oct. 1437). For example, in General Motors, supra, the Board found that unequivocal and unfounded representations made by rank-and-file organizers that the union would proceed by way of a representation vote was insufficient to invalidate the membership evidence put forward by the union. In coming to that conclusion, the Board declined to place great weight upon statements made by one employee to another, on a sub­ject in which neither of them was expert, particularly when the recipient of the statement had every opportunity to check the statement's accuracy.

22. The considerations in General Motors, supra, are particularly pertinent to the present application. Mr. Kopacz had ample opportunity to inquire further with respect to the union's intentions, both from Ms. Morgan-Coldrick, and from Ms. Morby, but declined to do so. Instead, if his evidence is to be believed, he relied upon the statement of a fellow worker, in a hasty conver­sation whose details are not otherwise recalled, concerning a matter about which both of them were obviously ill-informed. Ms. Martin, for her part, took the further step of contacting Ms. Mor­gan-Coldrick, but claims that the issue of the vote did not arise in that latter conversation. It appears that, notwithstanding her contention that the issue of the representation vote was funda­mental to her decision to sign the card, she nonetheless declined to inquire about it with the abun­dantly knowledgeable union representative but chose instead to rely upon the statement of a fel­low-employee whom she recognized as unenlightened as to the workings of the certification process. In neither case is the reliance upon Mr. Keen's alleged statement a reasonable one. Accordingly, I am satisfied that the statements allegedly made by Mr. Keen do not affect the weight to be given to the membership evidence and thus, I find that the cards submitted by the trade union on their behalf constitutes valid membership evidence for the purposes of the count.

23. Finally, there was reference in the evidence that Rosemary Turner, who also works at the Canadian Tire Store, was advised by Ms. Morgan-Coldrick that a vote would be held prior to certification. Ms. Turner did not appear as a witness in the present proceeding. It was the evidence of Ms. Morgan-Coldrick that she spoke to Ms. Turner by telephone during which time she deliv­ered her "spiel" that, as was her practice, included reference to the trade union's intention to pro­ceed by way of automatic certification. At that point, according to Ms. Morgan-Coldrick, Ms. Turner told her that she had already made up her mind and that she was going to sign a union card. In light of the evidence of Ms. Morgan-Coldrick, whom I find to be a credible witness, and noting the failure of Ms. Turner to appear as a witness, I find that Rosemary Turner was advised that the trade union was intending to proceed by way of automatic certification and was not otherwise misinformed with respect to its intention as to a representation vote.

24. Accordingly, for these reasons, I dismissed the employees' objections to the validity of the trade union's membership evidence.

Appropriateness of the Bargaining Unit

25. In its application the trade union sought certification for the following unit of employ­ees:

All employees of the responding party carrying on business as Canadian Tire Associate Store in the Town of Collingwood, save and except Store Manager, Service Manager, persons above the rank of Store Manager, Service Manager, head cashier, bookkeeper and gas bar attendants.

The responding party employer took the position that the proposed "all employee unit" was inap­propriate. It was asserted in this respect that the functions and operation of the two aspects of the employer's business, namely, the retail and service components, were so distinct that the employ­ees within those components would not share a sufficient community of interest so as to form a coherent grouping for the purposes of collective bargaining. It was contended that this would ren­der the proposed all employee unit inappropriate.

26. Although the parties had agreed upon a substantial portion of the facts relating to the bargaining unit issue, a number of factual questions remained unresolved. However, in light of the respective positions of the parties, as put before me in their submissions, I determined that it was unnecessary to resolve any of the remaining factual issues since I was persuaded that the unit was appropriate even if the employer's assertions of fact were accepted in their totality. The following are my reasons for so ruling.

27. It was at the core of the employer's position that the approximately six mechanics employed in the respondent's service department performed their duties in a substantially indepen­dent and unrelated manner to those employees who worked as clerks in the retail section of the "Canadian Tire Store" and for this reason, should be required to bargain separately. In this respect, it was asserted that the employees worked under distinct supervision, performed work which required different skills, received payment upon a different basis, had different arrange­ments with respect to the company's profit sharing, and that a greater amount of part-time work was performed in the service department. Moreover it was asserted that there was little inter­change amongst the respective groups of employees, although here it was conceded that, on occa­sion, minor maintenance work and other similar functions were performed by maintenance employees in the retail section of the store, that certain "parts" functions were performed by the same personnel for both sections of the store, and that certain employees working in the retail sec­tion of the store work as service advisors on a relief basis. Finally, it was asserted that the two aspects of the operation, although housed in the same building and appearing to the public as a stn­gle "Canadian Tire", were administered separately from an accounting perspective, and that, for example, services performed by the mechanics would be charged against the accounts of the retail section were they to be required to be performed there.

28. In applications for certification, the Board is required to determine whether the unit sought by the applicant constitutes "an appropriate unit" for collective bargaining purposes. The Board has made it clear that the discretion accorded it in this respect does not require it to find a uniquely appropriate unit but that instead, a plurality of bargaining units are potentially appropri­ate. The Board has held that the range of potential appropriate units is broad, and particularly in recent years, has placed considerably less reliance upon alleged divergences in interest amongst employees in the course of bargaining unit determination. As a result, the Board has frequently certified groups of employees with widely divergent education, skills and employment conditions. Its experience in this regard is that such groups can bargain together collectively in a satisfactory manner. Indeed, the Board in recent years has rarely, if ever, rejected a bargaining unit proposed by the applicant solely on the basis that the employees within it did not share a sufficient commu­nity of interest but has focused instead on the potential of labour relations problems that might be encountered by the employer. With that in mind, the "simple question" the Board now asks in the course of determining the appropriateness of a bargaining unit is:

does the unit which the union seeks to represent encompass a group of employees with a suffi­ciently coherent community of interest that they can bargain together on a viable basis without at the same time causing serious labour relations problems for the employer. (Hospital for Sick Children, [19851 OLRB Rep. Feb. 266.)

29. One of the principal considerations of the Board in its inquiries over the last decade is the extent to which the unit proposed by the union would facilitate bargaining structures that are likely to be effective and stable in the long-term. In this respect, subject to the requirement that bargaining units be such that they would not impede the ability of trade unions to organize, the Board has expressed a decided preference for broader-based bargaining structures that minimize the fragmentation entailed by a multiplicity of bargaining units. (Board of Governors of Ryerson Polytechnical Institute, [1984] OLRB Rep. Feb. 371, Kidd Creek Mines Ltd., [1984] OLRB Rep. March 481 and Hospital for Sick Children, supra.) This preference, moreover, is fortified by the recent amendments to the Act, which can be seen to articulate a legislative policy favouring more inclusive, broadly-based bargaining units that, at the same time, do not adversely affect employees' right to organization and participation in collective bargaining. Thus, section 6(2.1) of the Act has the effect of reversing the Board's policy of separate bargaining units for full-time and part-time workers in favour of the more inclusive, mixed units. Similarly, Section 7 of the Act now permits the Board to combine two or more bargaining units consisting of employees of the same employer and represented by the same trade union into a single, comprehensive unit.

30. Bearing in mind this policy preference, the Board has recently stated that, where there is a dispute as to the appropriateness of the bargaining unit, the broader, more comprehensive unit is "presumptively appropriate" where the union applies for that unit:

In other words, if a trade union seeks a more comprehensive bargaining unit, this larger unit will usually be appropriate, and will very likely be accepted on the Hospital for Sick Children test, unless there are serious labour relations problems which demonstrably overwhelm the difficul­ties associated with fragmentation, or unless the larger unit applied for seems idiosyncratic or perverse. Indeed, unless the labour relations context is quite unusual, one would expect the more comprehensive unit to be presumptively appropriate, if that is what the union has orga­nized and applied for... (The Governing Council of the Salvation Army in Canada and Bermuda, [1994] OLRB Rep. Jan. 85.)

The Board in that case concluded that absent the exceptional circumstances it described in the pas­sage cited above, it served no purpose to engage in the elaborate, time-consuming and expensive litigation involved in a bargaining unit determination where the applicant had proposed the more comprehensive unit. (Salvation Army, supra, para. 21.)

31. The "all employees" unit sought by the applicant in the present application, aside from being the most inclusive unit available, is a basic labour relations concept within the framework of the legislation. Furthermore, the labour relations context in the present application is entirely unexceptional. Under these circumstances, it is difficult to see what possible labour relations pur­pose could be pursued by further litigating the bargaining unit issue. The employer's evidence, even were it to be accepted in its totality, exhibits nothing in the way of unusual labour relations circumstances. As indicated above, the Board has found that groups of employees with substantial differences in working conditions and skill levels can bargain together successfully, and certainly nothing in the proposed evidence of the responding party would lead the Board to the conclusion that such would not be the case in the present circumstances. Moreover, the proposed evidence falls far short of demonstrating that the fragmentation that would ensue from the bargaining struc­ture proposed by the employer would be outweighed by potential labour relations problems. The employer is proposing a bargaining structure along what are in effect "craft" lines, and would require a separate bargaining unit for six employees. The problems involved in such fragmentation are apparent. In the face of this, the employer did not seriously argue that labour relations difficul­ties, other than a projected increase in the bargaining power of the union would ensue from an acceptance of the more comprehensive unit. Accordingly, I am satisfied that nothing that the employer asserts would cause the Board to question the appropriateness of the bargaining unit advanced by the applicant. For these reasons, I found that the "all employees" unit sought by the applicant is appropriate for the purposes of collective bargaining.

Employee Status Issues

32. Evidence and submissions were entertained concerning the duties and responsibilities of Shirley Martin, who bears the title of "Manager, Hardware Department" at the Collingwood store. It was the employer's position that Ms. Martin performed duties of a managerial nature, and as such, could not be considered an "employee" for the purposes of the Act, and, more particu­larly, the membership evidence submitted on her behalf by the trade union ought not to be consid­ered in assessing the proportion of the union's membership support. Given that the employee sta­tus of several persons, including Ms. Martin, were relevant to the trade union being able to establish its right to certification without a vote, I determined that it would be appropriate to hear and determine the status of these persons until such time as the question of the union's right to automatic certification was resolved.

33. At the conclusion of the evidence and submissions concerning Ms. Martin's employee status, I ruled orally that her duties were not such as to exclude her from the definition of "em­ployee" in section 1(3) of the Act. Thereafter, the parties were able to reach further agreement with respect to outstanding issues such that a certificate issued on December 24, 1993. The follow­ing are the reasons for my ruling with respect to the "employee" status of Ms. Martin.

34. Ms. Martin has worked at the store for 12 years, the last two years in a position that bore the tile "Manager, Hardware". Previously, she had worked as a clerk in the Hardware Department. As her title suggests, her responsibilities generally extend to ensure the smooth func­tioning of the hardware department of the store, and includes the performance of supervisory duties over four full-time employees. There is no question that the work she performs is of a more responsible nature than the work performed by the clerks she supervises, that she operates with considerable autonomy, and she is paid at a commensurately higher hourly rate and enjoys a greater return in the employer's profit sharing scheme than do the clerks she supervises. However, the question before the Board is not whether the duties performed are distinct or even qualitatively more important from those performed by other persons at the workplace, but rather, whether the duties that are actually performed are of such a nature as to preclude a person from enjoying "em­ployee" status under the Act.

35. In its determinations regarding "employee" status, the Board pays particular attention to the challenged person's authority to make decisions which may impact adversely upon other employees' wages, benefits, or job security. Underlying this scrutiny is the concern that persons exercising substantial economic power over employees not be placed in a position where the exer­cise of that power would create a conflict of interest amongst the members of the bargaining unit. (Transit Windsor, [1991] OLRB Rep. April 565; Hydro-Electric Commission of the Borough of Etobicoke, [1981] OLRB Rep. Jan. 38.) In this respect, evidence of a person's role in the process of hiring, firing, and disciplining employees is of especial significance to a determination whether a person is exercising functions so as not to be considered an "employee" for the purposes of the Act. Central to this analysis is whether the individual in question actually makes decisions or other­wise exercises an independent discretion with respect to matters relating to earnings levels or job security, and that in the process of doing so, the person exercises an "effective control" over employees. For this reason, the Board has long held that the mere conveyance of information to or from the employer, the routine performance of tasks requiring little in the way of independent exercise of discretion, or the coordination of efforts of other employees is not per se a "managerial function" as contemplated under section 1(3) of the Act. (Borough of Etobicoke, supra; Oakwood Park Lodge, [1982] OLRB Rep. Jan. 84.) Similarly, the making of recommendations with respect to decisions on such matters as hiring, firing, discipline and promotion are significant only if effec­tively followed by the person's superiors. (Oakwood Park Lodge, supra.)

36. The evidence concerning Ms. Martin's participation in the hiring process prior to the application date was not substantial. Although she claimed to have "hired" Rob Petropoulos some two years ago, from a review of the evidence taken as a whole it is clear that Mr. Petropoulos had previously worked in the store in a different capacity and that the process in which Ms. Martin was involved is more accurately characterized as a lateral transfer. In any event, from the evidence of her participation in that process, it seems more reasonable to infer that, notwithstanding the fact that Ms. Martin expressed an opinion as to whether Mr. Petropoulos should work in the Hardware Department, the actual decision to do so was taken by Ms. Martin's superiors. Ms. Martin was not involved in the process of deciding whether to fill the position, she had no input into the level of wages that would be paid, the level of her consultation was at a relatively low level, and her subse­quent attendance at a portion of the job interview appeared to consist only of informing Mr. Petro­poulos of what his duties would be. Significant in this respect is that Ms. Martin made no evalua­tion of Mr. Petropoulos' appropriateness for the position, in that it appears that she was not aware whether he had performed satisfactorily in his previous position. Accordingly, I find that her role in the hiring process, if such it was, was so minimal, and the degree of discretion exercised so slight, as not to constitute a managerial function.

37. The only other evidence regarding her participation in a hiring decision was with respect to events occurring after the application date. Although I heard that evidence on the basis that it might be relevant to duties performed prior to that date, I am satisfied that no such basis of rele­vance has been established in the evidence. It was not seriously disputed by either counsel that the relevant date for establishing whether a person is performing the duties of an "employee" is the date of the trade union filing the application for certification, in this case, October 1, 1993, and that, as a result, the Board will normally look only to evidence of events taking place up to that date. (see, e.g., Research Foods (1976) Limited [1981] OLRB Rep. Mar. 309..) However, counsel for the employer argued that the evidence of Ms. Martin's participation in the post-application hir­ing process ought to be received by the Board in that it constituted evidence of a "trend" of an increasing authority that, although not required to be exercised prior to the application date, was equally real. However, the evidence does not support the inference of a "trend." As indicated above, Ms. Martin's sole participation in the "hiring process" during the two years prior to the application date consisted of a recommendation in the context of a lateral transfer, and a highly limited role in the resulting interview process. By contrast, the evidence of Ms. Martin's role with respect to the post-application hiring process was somewhat greater, and in particular, involved her conspicuously in the job interview procedure. While not deciding that her latter duties involved her in the performance of managerial functions, it is nonetheless clear that Ms. Martin was performing functions of a qualitatively different nature after the application date, and as such, it is not fair to infer that the work is illustrative either of a trend in that respect or of her purported "unexercised" managerial authority prior to the application date.

38. While Ms. Martin's job clearly gave her the responsibility of ensuring the smooth opera­tion of the Hardware Department, and that this necessarily involved a supervisory function over the employees there, her role in the disciplinary process is negligible. Although the job description that claimed to represent her job duties appears to provide her ample authority over disciplinary matters, in fact, over the course of two years, her activities in this regard consisted of a single ver­bal warning given to an employee for consistent lateness and a direction to an employee to go home to "cool off" after an emotional flare up at work. In neither case did her actions have signifi­cant impact upon the employees' overall work situations. No formal records were kept of the ver­bal warning, and indeed, the employee's performance evaluation for that year, filled out by Ms. Martin, makes no reference to any such problem. Of even less effect was the direction to go home: it appears that the employee chose to ignore Ms. Martin's direction, and did his cooling off while at work. Similarly, Ms. Martin's role in the completion of performance reviews of the clerks over whom she exercised a supervisory capacity appeared to have little impact upon the employees con­cerned. The substantial majority of the evaluation form consists of a self-appraisal by the employee, and what little room for discretion there was allocated to Ms. Martin appears not to be exercised: as noted, despite complaining about an employee's performance, that concern did not find its way onto the formal performance evaluation. Moreover, it is far from clear what effect, if any, an adverse report might have upon an employee's profit sharing apportionment, and beyond the handing of the completed forms to her superiors, Ms. Martin was unaware of what further pro­cesses transpired in this respect.

39. Finally, evidence was led with respect to scheduling functions performed by Ms. Martin. The evidence, which was not disputed, indicated that Ms. Martin was involved in the scheduling of work hours, vacations, and overtime opportunities, and that such scheduling was performed with­out considerable input from her superiors. In general, I find that the exercise of these functions, although involving some degree of discretion, was nonetheless performed within the rather narrow parameters of function required by the operation of the store, and as such, is more appropriately characterized as the coordination of function rather than the exercise of managerial authority.

40. In summary, then, the duties performed by Ms. Martin do not involve her in the exer­cise of managerial functions in that her role in the hiring, disciplinary and evaluation processes is minimal and has no substantial effect upon important job interests of the employees she super­vises. Furthermore, I have found that the scheduling functions that she performs are primarily co­ordinative, rather than managerial. For these reasons, I found that Ms. Martin was an "employee" for the purposes of the Act.