Ontario Labour Relations Board
Parties and Appearances
[1995] OLRB Rep. February 134
2454-94-R; 2838-94-U United Brotherhood of Carpenters and Joiners of America Local 1072, Applicant v. Jones Wood Industries Inc., Responding Party v. Group of Employees, Objectors
BEFORE: S. Liang, Vice-Chair, and Board Members R. M. Sloan (dissenting in part) and K. Davies (dissenting in part).
APPEARANCES: Marisa Pollock and Joe Almeida for the applicant; Bill Anderson and Reinhard Zank for the responding party; Daniel J. McKeown, Daniel Stoikoff, Ghansham Maharaj and Kiem Lam Nghiem for the objectors.
DECISION OF THE BOARD; February 2, 1995
Decision
1This is an application for certification which has been combined for hearing with a complaint of unfair labour practices. The Board commenced hearing this case on December 13, 1994.
2In the certification application, there are outstanding disputes with respect to the description of the bargaining unit, the composition of the bargaining unit, and allegations that the union's organizers intimidated employees into joining the union. The union asks the Board to invoke section 9.2 of the Act if it is not entitled to automatic certification.
3The parties agreed to defer the bargaining unit issues pending the resolution of the other issues. The Board directed the parties to lead all of their evidence on all the issues relating to the allegations of union misconduct and the union's complaint of unfair labour practice. The objecting employees agreed to proceed first, followed by the employer and then the union.
4On December 15th, after hearing the evidence of Kiem Lam Nghiem, the Board brought certain facts to the parties' attention. Mr. Lam testified that he signed a membership card in the union at home. He testified that he brought the card to work the next day, gave it to another employee and asked that employee to give the card to Jimmy Smith. The Board reviewed the membership card submitted on Mr. Lam's behalf (which had not been disclosed to any of the parties other than the union). The card bears a line which is preprinted in the following manner: "Signature of Applicant X____". Immediately below this, the card bears a line which is preprinted in the following manner: "Witness X____". The "Applicant" portion is signed by Mr. Lam. The "Witness" portion is also signed. Because of Mr. Lam's evidence, it was not apparent that the person who signed as a "Witness" actually saw Mr. Lam signing his card. The Board brought all of this to the attention of the parties, indicating that by doing so, the Board did not intend to state that these circumstances have a bearing on the application. The Board invited the parties to consider the matter in order to determine their respective positions.
5At the conclusion of the hearing on December 15th, the Board set continuation dates for this matter, starting on January 30th. The parties were asked whether they intended to take any position with respect to the facts disclosed. Counsel for the responding party indicated that he definitely intended to raise an issue with respect to those facts. The parties were directed to place the matter in writing as soon as possible.
6The Board received correspondence from the responding party and from the objecting employees in relation to this issue dated January 19 and 23, 1995. In this correspondence, among other things, it is alleged that by signing as "Witness", the card collector at issue has represented to the Board that he knows by direct evidence that the employee has signed the card, which is false. It is submitted that any membership evidence submitted by this collector should be given no weight.
7The hearing re-convened on January 30th. It should be noted that the union has supplied opposing counsel with blank forms of its membership cards. At the outset of the hearing on January 30th, the union also agreed to disclose the identity of the person whose name appears as the "Witness" on Mr. Lam's card, and the fact that the same person appears as the "Witness" on twenty-five cards submitted by the union. The employer and objecting employees reiterated their positions regarding the effect of the circumstances surrounding Mr. Lam's card. In the course of their submissions, they also appeared to take the position that the Form A-4 submitted with this application is defective, because its declarant cannot know who actually signed the membership evidence. For its part, the union made a motion that the Board ought not inquire further into this matter, since it raises no prima facie case of misconduct or irregularity which would have a bearing on the application.
8After hearing the submissions of the parties, the Board made the following oral ruling, which has been edited for clarity:
The Board declines the union's request to not inquire further into the issue of the witnessing of the union's membership evidence. The potential effect of these circumstances is a determination that the Board prefers to make having all of the evidence before it.
Having said that, the Board (R. M. Sloan reserving his decision) does not see a prima facie case that would warrant inquiring into the Form A-4. There is no reason to believe on the basis of the material and evidence before us, that there are any non-sign problems with the membership evidence.
There is no reason to believe on what we have before us that the declaration was not made with the requisite inquiry and information. It is important to be clear about the issues. There is a difference between flawed membership evidence which may have an effect on the application because of the Board's rejection of those cards themselves or the weight to be given to the cards, and flawed membership evidence which may have an effect on the application because they call into question the very specific declaration which is contained on the A-4.
The Board sees a basis for proceeding to hear the issue of the manner in which these cards were witnessed. However, we will not permit this hearing to turn into a free-ranging inquiry into the collection of the cards in general and the completion of the A-4.
With respect to the manner of hearing this issue, we cannot rule out that at the end of the day the Board's discretion may be called upon. We do not therefore find it appropriate in the circumstances to separate out this issue from the other issues in the hearing before us. The parties are expected to lead all their evidence on all issues which are before the Board in this stage of proceedings.
9In Radio Shack, [1978] OLRB Rep. Nov. 1043, to which we were referred, a similar situation arose where the Board was asked to inquire into the completion of the Form 8 [now Form A-4]. The Board stated in that decision:
- The Board accepts the Form 8 attestation on its face unless allegations are made which, if proven, would cause the Board to find that the statements attested to therein are false. If such an allegation is made the Board will conduct an inquiry into the bona tides of the Form 8. Counsel for the company relies on evidence given before the Board which he maintains establishes that Mrs. Lamb accepted cards between April 17 and April 24, 1978, thanked the person submitting the cards, said nothing further and mingled these cards with other cards such that she could not identify the individual cards submitted to her at the time. Even if these alleged facts were to be proven in the course of a Form 8 inquiry, they would not of themselves support a finding that the Form 8 filed in this matter constitutes a false declaration. A Form 8 is not defective merely because inquiries were not made of the collector(s) at the time cards are submitted and neither is it defective if the inquiry is not on a card by card basis. It is sufficient that each collector be asked at a time prior to the signing of the Form 8, whether or not he received one dollar or other suitable payment from each of those he signed into membership and on whose behalf he submitted membership cards....
10With respect to this last statement, the Form A-4 states on its face that a declarant may obtain the information necessary to the completion of the Form either from personal knowledge or inquires made. In Can-Eng Metal Treating Ltd., [1988] OLRB Rep. May 444, attached to the submissions of the objecting employees, the Board had occasion to review the nature of the requisite inquiries, stating:
- In this case, McKay, the Form 9 declarant, had no personal knowledge of any of the facts material to his declaration. He obtained all of his information in that regard from White. White had personal knowledge of the membership evidence he had himself collected and passed that on to McKay, together with information he received from Savard about the cards and money collected by Savard and Schwartz. This may not be an ideal way for a Form 9 declarant to inform her/himself. But it is acceptable. There is no suggestion in the evidence that any of McKay, White, or Schwartz conducted themselves improperly or that anyone in the chain passed on incorrect information. On the contrary, we are satisfied that, on the evidence before the Board, McKay made reasonable and sufficient inquiries for the purpose of making the Form 9 declaration and we therefore decline to reject it.
11In the above case, the Board was faced with an allegation, which was ultimately found to be proven, that one employee had not paid dues or fees on his own behalf.
12Since Radio Shack and Can Eng Metal, the Board's forms have been amended to reflect changes in the governing statute. There is no longer any requirement to attest to the collection of dues or initiation fees or the identity of the collector. Form A-4 now requires its declarant to attest to the fact that the documents submitted in support of the application and which represent membership evidence on behalf of persons who were employees of the responding party in the bargaining unit on the application date, were signed by those employees.
13In the case before us, just as in Radio Shack, there are no facts alleged which, if proven, would cause the Board to find that the statements attested to therein are false.
14As the Board noted in Grand & Toy Limited, [1986] OLRB Rep. Sept. 1223, the practice of not allowing a respondent employer to inspect membership evidence filed in support of an application for certification is more than a policy of the Board, it is enshrined in the provisions of section 113 of the Labour Relations Act. Although the legislation does permit the Board discretion to disclose this evidence, as the Board stated in Grand & Toy Limited, "given the primacy of the secrecy of such evidence, that discretion must be exercised only for compelling reasons in circumstances where such disclosure would further the purposes of the Act".
15It is reasonably clear that if the Board were to permit a broad-ranging inquiry into the circumstances of the completion of the Form A-4 and the nature of the inquiries made, it will be very difficult to maintain the secrecy of the membership evidence. The baring of details as to the collection of the membership evidence, the persons who were involved, the time and place and the other persons present leads inevitably to the direct or indirect identification of union supporters and renders section 113 meaningless. Although there have been and will continue to be cases where such disclosure is necessary, in this case we see no basis for it.
16At the January 30th hearing, the Board was also required to rule on the admissibility of certain evidence which the objecting employees proposed to lead. This evidence related to three employees, Dhanraj Singh, Gary Doobay and Doug Hinks. Although some of the particulars of this proposed evidence were disclosed to the union on January 30th, it was not until the morning of January 31st, when this evidence was to commence, that the names of these three individuals were made known to the union and further particulars supplied. In essence, the proposed evidence is similar to the evidence which Mr. Lam has given, in the sense that these three individuals are alleged to have signed cards without the ultimate "Witness" present.
17After hearing the submissions of the parties, the Board ruled, with K. Davies dissenting, to permit the evidence. We did so with some serious reservations as to the timeliness of the disclosure of particulars to the union. As indicated above, the Board first identified the potential issue on which these employees will give evidence on December 14th, inviting the parties to determine whether they would take a position on it. On December 15, counsel agreed to place their positions in writing as soon as possible. Yet only on January 30th and 31st did the union learn of these new allegations, which are related to a pre-existing issue.
18There is not only an obligation on counsel to disclose particulars of allegations of wrongdoing as soon as they become known to them, there is also an obligation to investigate in a timely way once events become known which may give rise to concern. Having ruled that this evidence is admissible, the Board should not be taken to condone a manner of proceeding with a case where new allegations may be raised which should have been disclosed earlier. The Board should also not be taken to suggest that further allegations may be raised at any point in these proceedings. Each issue will be determined as it arises.
19In determining that this evidence is admissible, the Board considered the fact that the new particulars are not significantly different from those that are already before the Board. In a general way, therefore, the union has known about the nature of the issue and has had an opportunity to canvass it with the persons involved. Further, the Board found it unlikely that there would be any significant delay in proceeding with this case, even after providing the union with an opportunity to investigate these new particulars.
20The Board therefore ruled the evidence admissible, although it declined to hear the evidence on this day, so that the union could have time to prepare to meet these new allegations.