United Food and Commercial Workers International Union, AFL-CIO-CLC v. Oshawa Group Limited, 1995 CanLII 10061

United Food and Commercial Workers International Union, AFL-CIO-CLC v. Oshawa Group Limited

[1995] OLRB Rep. April 477

3071-94-R; 3072-94-R United Food and Commercial Workers International Union, AFL-CIO-CLC, Applicant v. Oshawa Group Limited, Responding Party; United Food and Commercial Workers International Union, AFL-CIO-CLC, Applicant v. Oshawa Group Limited, Responding Party v. Group of Objecting Employees, Intervenor

BEFORE: Lee Shouldice, Vice-Chair, and Board Members S. C. Laing and H. Peacock.

APPEARANCES: Michael A. Church, Micheil Russell and others for the applicant; F. G. Hamilton and Steve Mendelssohn for the responding party; Patricia Eby, Mark McKay and others for the objecting employees.

DECISION OF THE BOARD; April 5, 1995

I. Introduction

1. These are two separate applications for certification. The applicant has applied to become certified with respect to two grocery stores operated by the responding party in the Kitchener area. Board file 3071-94-R relates to a store operated by the responding party which is located on Margaret Avenue in Kitchener. Board file 3072-94-R relates to a store operated by the responding party on Westmount Road East in Kitchener. At times this decision will refer to the "Margaret Avenue" application and/or the "Westmount Road" application as denoting Board files 3071-94-R and 3072-94-R, respectively.

2. It is apparent from both of these files that the applicant (hereinafter "the union") has sufficient support, in the form of membership applications, to be certified outright in both locations pursuant to section 9.1(2) of the Labour Relations Act, save and except for the issues raised by the responding party (hereinafter referred to as "the employer") and, in the Westmount Road application, by a group of objecting employees. The issues raised by the employer can, in general terms, be viewed as issues central to the quality of the membership, evidence relied upon by the union. The nature of these issues will be outlined below. The group of objecting employees supports the employer's position on these issues, and has filed with the Board a petition and allegations of improprieties regarding the organizing campaign conducted by the union.

3. At the outset of the hearing of this matter, the Board heard evidence and argument regarding a number of discrete issues raised by the parties to these Board files. Oral rulings without reasons were provided on two of the issues, and the Board reserved its decision on the other issues which were argued before it. This award incorporates our reasons for the two oral decisions given at the hearing and our decision and reasons on the issues upon which we reserved for consideration. We note here that these issues were argued, for the most part, on the basis of facts which were agreed to by all of the parties.

4. Mrs. Patricia Eby and Mr. Mark McKay represented the Group of Objecting Employees at this hearing. At the outset of the hearing, the Board explained to Mrs. Eby and Mr. McKay that, although it was proper to appear before the Board without counsel, those parties who do so incur the risk of so doing. It was explained to them that the Board, as an adjudicative body, was unable to guide them in determining what evidence should be called to support their case. Mrs. Eby and Mr. McKay indicated that they understood these remarks. The Board outlined to Mrs. Eby and Mr. McKay that they would have the right to call witnesses, cross-examine any witnesses called by other parties, and the Board also explained the general order of proceeding to Mrs. Eby and Mr. McKay.

II. Preliminary Matters

(i) Petition Documents - Board File 3071-94-R

5. At the outset of the hearing, counsel for the employer raised as an issue the Board's response to an untimely petition document (in fact there had been filed with the Board two separate untimely petition documents) respecting the Margaret Avenue application. In order to appreciate the substance of counsel's argument, it is necessary to briefly outline the history of that application.

6. On October 21, 1994, the union first applied to the Board for a certificate to represent the employees of the employer's Margaret Avenue store. This application was dismissed by this panel of the Board by way of decision dated November 22, 1994 (reasons for the decision were released on January 3, 1995 - see Board file 2636-94-R). The basis for the dismissal is captured by the following excerpt from that decision:

10. In our view, the crux of this matter lies in the exercise of the Board's discretion under Rule 22 of the Board's Rules of Procedure. It is clear that the first fully completed Form A-4 filed with the Board was filed beyond the application date, in violation of the mandatory obligation imposed by Rule 43(c). The question to be considered, therefore, is whether it was appropriate to exercise our discretion under Rule 22 to relieve against this requirement.

11. As noted above, we ultimately determined that we would not exercise our discretion to relieve against Rule 43(c) in this case. As noted by the Board in Syndicated Capital Properties Inc., supra, the Board has, historically, accepted the Form A-4, and its predecessors, up to and including the date of the hearing, and there is nothing in section 8 (or elsewhere) in the Act which prohibits the Board from accepting the Form A-4 after the application date. However, in this particular case the Board was concerned with the reliability of the Form A-4 filed with the Board as a result of the number of the documents filed with the Board. In certification proceedings, the Board relies heavily on the membership evidence filed by the applicant. The membership evidence is not typically disclosed to the responding party employer, and accordingly the Board requires a high level of reliability in the nature and quality of the evidence filed with the Board. The Form A-4 filed by the applicant serves to bolster the Board's confidence in that membership evidence.

12. In this case, the sheer number of forms filed with the Board has weakened the credibility of the first fully completed Form A-4 filed with the Board. The Forms A-4 contained in the Board file reflect on their face, as well, numerous errors; that is, the name of the employer is on some of the forms described incorrectly and the "blanks" to be filled in are completed inappropriately. It is apparent to us that the Forms A-4 were completed in great haste and in error. As the number of documents filed with the Board and their patent errors led us to conclude that the credibility of the first fully completed document was significantly diminished, we were of the view that, even assuming that the errors were the result of inadvertence, we would not give the relevant Form A-4 any weight and, accordingly, would not exercise our discretion to accept that Form A-4 with the application for certification. Accordingly, we dismissed the application for certification. In the circumstances, there was no reason to apply a bar to the applicant and we therefore determined that we would not do so.

As a result of that decision, on November 22, 1994, the applicant applied once more for certification regarding the Margaret Avenue store, and requested that the Board transfer the membership evidence in Board file 2636-94-R to the new file (Board file 3071-94-R). At the same time, the applicant requested leave to withdraw its application which was then pending respecting the Westmount Road location (Board file 2784-94-R). This application was withdrawn by leave of the Board on November 22, 1994, and the applicant again applied for certification on November 23, 1994. Once again, the applicant requested that the membership evidence in Board file 2784-94-R be transferred to Board file 3072-94-R. This was in fact effected by the Board. It should be noted here that the applications were made by way of registered mail on the dates referred to above. Accordingly, pursuant to Rule 8 of the Board's Rules of Procedure, the applications were deemed to have been filed with the Board on those dates, notwithstanding that they were both received by the Board on November 28, 1994.

7. The two documents received by the Board as "petitions" were dated November 23, 1994 and November 26, 1994, and received by way of courier on November 25, 1994 and December 1, 1994, respectively. The Board corresponded with the sender of the petitions on November 30, 1994 and December 8, 1994, respectively, advising the individual that the documentation forwarded to the Board was untimely, having regard to section 8(4) of the Act, and that the Board would not consider the documents when dealing with the application for certification. It is to be noted that the Board had actual, physical custody of the first "petition" document prior to receipt of the application by the union regarding the Margaret Avenue store.

8. On the basis of the above facts, counsel for the employer submitted that the employees at the Margaret Avenue store had been disfranchised and not provided with "proper notice" by the Board. Counsel submitted that the Notice to Employees (Form B-4) which had accompanied the first application for certification contained express restrictions against the filing of a petition beyond October 21, 1994. The immediate filing of a fresh application for certification after the dismissal of the application in Board file 2636-94-R caused the employees to be "misinformed" as to their rights. Counsel submitted that the Board was obliged to advise employees of the dismissal of the application in Board file 2636-94-R, and that until they were so advised the time frame for filing a timely petition with the Board should be extended. Counsel urged the Board to provide the petitioners with status to participate in the hearing and to consider the petition documents filed as timely statements of desire.

9. The Board dismissed this preliminary motion on January 3, 1995. It is evident that the application for certification in Board file 3071-94-R was filed with the Board on November 22, 1994, as is stipulated by Rule 8 of the Board's Rules of Procedure. Rule 8 codifies the Board's long-standing practice that it will accept, as filed with the Board, those documents sent to the Board by way of registered mail. The purpose of this practice is, of course, obvious - to ensure that those documents filed by parties in areas beyond easy reach of the Board's offices in Toronto can be treated on an equal footing with those parties who are within easy reach of those same offices. It is also evident that the two petition documents delivered to the Board by the individual in question were "filed or presented" to the Board after the certification application date of November 22, 1994. Accordingly, pursuant to section 8(4) of the Act, the Board is not to consider these documents. The prohibition contained in section 8(4) of the Act is mandatory and cannot be waived by the Board. However, the Board does have the authority, pursuant to Rule 22 of the Board's Rules of Procedure, to relieve against Rule 8 and the effect of doing so would be to find the petition to be timely. The question is whether we should do so in these circumstances.

10. The Board dealt with that same question in the case of Lutheran Nursing Home (Owen Sound) [1994] OLRB Rep. Oct. 1362, where at subparagraphs 26 and 27 of paragraph 9 of the decision the Board stated as follows:

26. The Board accepts that it has the authority to find the petition here to be timely. However, for the Board to so find would not simply be relieving from the requirements of Rule 8 in the circumstances, but would effectively be to change the provisions of Rule 8. Relief from the requirements of the Rules is appropriate in a number of circumstances, including where the Rules themselves set a time for responding, but a party with reasonable cause is unable to comply with the set time periods. Here, however, it is the Labour Relations Act which demands that a petition be filed by the application date, not the Rules. Rule 8 only indicates that if anything is sent by registered mail, then the date of filing is when those materials are mailed.

27. It is not apparent what relief we could appropriately give here. If the application date was changed, then the petition would be timely. The Board could accomplish this by nullifying the Rule for the applicant, so that the application date is the date of actual receipt, and not when mailed registered. But this relief would be unwarranted. To do so would mean the petitioners would have effectively determined the application date of a certification application, rather than the union, and would mean that the union here, which reasonably relied upon Rule 8, would have its provisions rendered inapplicable for no reason attributable to its own conduct. This is not an appropriate result.

We agree with the reasoning of the Board in that decision, one in which the factual circumstances were quite similar to those of this matter.

11. Furthermore, we disagree with the submission made by counsel for the employer that the Board is under an obligation to provide the employees at a workplace with notice that an applicant has withdrawn an application, or that an application for certification has been dismissed. There is no statutory obligation imposed on the Board to do so, nor do the rules of natural justice impose such an obligation. In Hemlo Gold Mines Inc. [1993] OLRB Rep. Mar. 158, the Board dealt with a similar argument as follows:

24. Although section 113(2) of the Act was repealed by Bill 40, the Board is still required to treat certification applications as having been filed on the date they are received by the Board or, if they are mailed to the Board by registered mail, on the date on which they are mailed, by virtue of Rule 8 (as quoted in paragraph 2 of this decision). Reference may also usefully be made in this context to Rule 43 (as quoted in that same paragraph) and to Rule 47, which provides:

Membership evidence, evidence of objection and evidence of re-affirmation will not be considered by the Board unless the evidence is filed by the application filing date, is in writing, signed by each employee concerned, and is accompanied by the name of the employer and the name, address, telephone number and facsimile number, if any, of a contact person.

Those new rules, which parallel and are consistent with section 8 of the Act, confirm by necessary implication that the "certification application date" referred to in section 8 of the Act is one and the same as the "application filing date" referred to in the Rules, i.e., the date on which the certification application was received by the Board or, if it was mailed to the Board by registered mail, on the date on which it was mailed. We find no merit in Ms. Gillespie's contention that those rules derogate from section 8 of the Act and are, therefore, invalid,

25. Accordingly, for purposes of the instant case, the certification application date (and the application filing date) is January 25, 1993, which is the date on which the application was delivered to and received by the Board. There is no merit in the intervenors' contention that "by manipulating procedural rules", the Board has denied employees of the Company a substantive right to participate in the proceedings. Nor is there any merit in their contention that the Board was required by principles of natural justice or fairness to notify employees prior to the certification application date of the right to file a petition or statement of desire on or before that date. Indeed, that would be virtually impossible, as the Board would have no way of knowing of the application until such time as the Board received it. Thus, although we agree with the intervenors' contention that certification affects substantial legal rights of the employer and the employees, and that they are entitled to notice of the certification proceedings in accordance with the rules of natural justice, we are unanimously of the view that proper notice of these proceedings was given in compliance with the rules of natural justice, as codified for purposes of the Labour Relations Act by the provisions of the Act and the Rules. In this regard, we are satisfied that nothing turns on the fact that a faxed copy of the notice to employees was initially posted, pending couriered delivery of the actual "green sheets" provided by the Board. Although some of the employees had difficulty understanding the notice, it was clearly sufficient to prompt them to form the aforementioned committee, retain and instruct counsel, and file through counsel an intervention, notice of constitutional question, and the motions and other materials referred to above. Moreover, both the faxed and the original Form B-4 notices contained all of the information required by the notice requirements of the rules of natural justice, the Statutory Powers Procedure Act, the Labour Relations Act, and the Rules of Procedure.

26. There is also nothing in the Act which requires a trade union to give employees notice of its intention to file a certification application. ... If this puts employees at somewhat of a disadvantage in comparison with the union by virtue of the fact that it is the union's action of filing a certification application which determines what the certification application date will be, that disadvantage is inherent in the revised legislation and is not something which the Board is empowered to relieve against.

Once again, we concur. with these observations. We note that the Board's decision in Hemlo Gold Mines Inc. was confirmed by the Divisional Court (see [1993] OLRB Rep. May 471).

12. It is evident that the circumstances of this case highlight the "disadvantage" in which petitioners are placed by section 8(4) of the Act. However, the relative statutory advantages accruing to the participants in Board proceedings are determined by the Legislature and not by the Board. It was for the above reasons that the Board dismissed counsel's argument regarding the status of certain objecting employees and the timeliness of petition documents in Board file 3071-94-R.

(ii) Petition Document - Board File 3072-94-R

13. Subsequent to rendering the above decision, the Board entertained the argument of the parties on the issue of the timeliness of a petition document sponsored by Mrs. Eby. The facts upon which this argument was premised are as follows.

14. Board file 2784-94-R was the applicant's original application for certification relating to the employer's Westmount Road store. It was filed with the Board on November 2, 1994. The terminal date set by the Board was November 15, 1994. On November 15, 1994, the Board received a package from Ms. Eby enclosing a petition document, as well as a number of other letters from employees raising certain allegations regarding the union's organizing campaign. Shortly after receipt of these documents, the Registrar of the Board wrote to the parties, enclosing a copy of the statement of desire, edited for confidentiality. The letter from the Registrar indicated that, as a statement of desire relating to membership in the trade union, the documents were untimely, having been filed with the Board after the certification application date, in accordance with section 8(4) of the Act. However, the Registrar's letter noted that, as a statement of position with respect to allegations of improprieties in the collection of membership evidence, the materials forwarded by Mrs. Eby were timely, having been filed with the Board on or before the terminal date. The letter advised the parties that the material would be processed by the Board, and it was. We note here that a second statement of desire was filed with the Board three days later; that is, on November 18, 1995. The author of the covering letter accompanying that statement of desire was sent a letter from the Registrar of the Board advising that the petition and the statements of position regarding improprieties were filed beyond the application certification date and the terminal date, respectively, and that neither would be considered by the Board.

15. The Board had set December 5, 1994, as a hearing date in Board file 2784-94-R and November 30, 1994 as the date of the Labour Relations officer's meeting. Both of these dates were, ultimately, irrelevant, because the union withdrew its application for certification by leave of the Board on November 22, 1994, as earlier described. That decision was forwarded to the parties by way of covering letter dated November 28, 1994. However, Mrs. Eby had become aware of the applicant's withdrawal of the application for certification and contacted the Registrar's office on November 22, 1994. Mrs. Eby was curious as to why the applicant could withdraw its certification application and then reapply. During the course of her discussions with the Registrar's office Mrs. Eby was told that she could request that the previously-filed petition documents be transferred to the new certification application file.

16. Accordingly, by way of letter dated November 24, 1994, couriered to the Board and received on November 25, 1994, Mrs. Eby requested as follows:

"We the employees of 720 Westmount, Kitchener, Ontario, would like to request a transfer of the original petition file No. 2784-94-R Dated on Nov. 11.94, submitted on Nov.14. 94 to ask for it to be redated as of Nov.24.94. Enclosed is a photocopy of original petition to be resubmitted.

At that time Mrs. Eby enclosed a photocopy of the two original petition documents submitted to the Board in Board file 2784-94-R, with the supporting employee letters appended, and with the dates of the letters altered to read "November 24,1994".

17. As noted earlier, the certification application in Board file 3072-94-R was filed by the applicant on November 23, 1994, by way of registered letter.

18. It was on the basis of the above facts that the motion before the Board was argued. Counsel for the union submitted that the petition document was untimely in the circumstances. Counsel noted that the request to transfer the petition document was dated November 24, 1994, and was not received by the Board until the next day, which was two days after the certification application was deemed to have been filed with the Board. Counsel submitted that for a transfer of a petition to be valid or effective, the request to transfer must be made prior to the certification application date. It was also noted that Ms. Eby herself requested that the petition be "redated" for November 24, 1994. Counsel further submitted that the statement of desire pertained to the earlier application for certification and that it was not clear from the documents that the employees who signed the petition gave Mrs. Eby the authority to represent them in this Board file. Counsel suggested that Mrs. Eby ought to have written to the Registrar on November 22, 1994 to request a timely transfer of the petition documents.

19. Counsel for the employer submitted that the petition documents in question had, in fact, been "filed" with the Board by the certification application date. Counsel made reference to paragraphs 3 and 4 of Form B-4, the "Notice to Employees of Application for Certification and of Hearing" which were posted by the employer in the workplace, and submitted that the petitioners had satisfied the directions of the Registrar as contained therein. Counsel submitted that whether

or not the petition documents were filed with respect to a prior application they had been "filed" with the Board in a timely manner and satisfied section 8(4) of the Act. Counsel noted that the membership cards previously relied upon by the applicant were transferred to the new application and submitted that no distinction could be drawn between the membership cards and the petition documents.

20. Mrs. Eby, in her submissions, observed that the time frame provided to the petitioners was extremely short and stated that if the use of the original cards by the union is permitted, so should the use by the petitioners of the petitions originally filed with the Board.

21. After carefully considering the argument of all of the parties, the Board ruled orally at the hearing that the petition documents in this Board file (being the combined petition documents filed in Board file 2784-94-R) were filed with the Board in a timely manner and that the evidence regarding their voluntariness would be entertained by the Board. We did so for the following reasons.

22. The relevance of the petition documents in this Board file is determined, once again, by reference to section 8(4) of the Act, which reads 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 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.

The petition documents in question are clearly evidence that a number of employees "who had become or had applied to become a member of a trade union [have] cancelled, revoked or resigned his or her membership or application for membership or [have] otherwise expressed a desire not to be represented by a trade union", as defined by section 8(4)2 of the Act. The question to be answered, therefore, is whether the documents, as they relate to Board file 3072-94-R, were "filed or presented" to the Board after the certification application date. If they were, the Board would be precluded by section 8(4) of the Act from considering them.

23. We are of the view that the petition documents were clearly "filed or presented" prior to the certification application date. By its terms section 8(4) of the Act contemplates that some petitions or statements of desire will be properly considered by the Board during the course of determining an application for certification - those that are "filed or presented" to the Board prior to or on the certification application date. Applications for certification are not provided with an identifiable Board file number until the application is received by the Board. At the time an application is received, it is entered into the Board's computerized records and a file number is assigned to the matter. Soon after, an actual file is prepared into which the application and any other documents relevant to the application are physically placed. The physical file is numbered to accord with the application and the appropriate notices are prepared by the Registrar's office for delivery to the parties.

24. As a practical matter, petitioners who wish to properly express a desire not to be represented by a trade union must "file or present" their petitions to the Board prior to or on the certification application date. It is, of course, the choice of the applicant trade union as to when the application for certification will be filed with the Board. In these circumstances, it is not surprising that petitioners have written to the Board requesting that the Board hold "on file" petition documents relating to their workplace in the expectation that a particular trade union will apply for certification. As a matter of practice, the Board does hold these petition documents in its records for a maximum time period of six months, at which time the documents are returned to the sender. Should an application for certification be made to the Board which causes a petition document filed with the Board to become pertinent, it will be transferred to the Board file and the parties will be made aware of the document's existence.

25. It is with this background that the Board considered the issue before it. Clearly, the actual physical transfer of the original petition documents from Board file 2784-94-R to Board file 3072-94-R occurred after the certification application date, for two obvious reasons - the certification application date was November 23, 1994, and the request to transfer the documents from Board file 2784-94-R was not received by the Board until November 25, 1994 and, secondly, the Board file 3072-94-R was not physically created until the application document and supporting material were received by the Board. It is obvious that the actual physical transfer of the document into the Board file cannot be the "defining act" as to when a petition was "filed or presented", as it would be impossible to "file" a timely petition with the Board in advance of the filing of the application for certification.

26. Similarly, we are of the view that the date of the letter requesting transfer of a petition document from one Board file to another Board file is of no importance in this case. In circumstances where a trade union applies by way of registered mail for certification, such as this case, a petitioner, in the normal course, may well have "filed or presented" to the Board a petition document which is kept on file with the Board. In that situation, the Board typically applies the petition to the file when it is opened. It is usually unnecessary for a further letter to be sent to the Board. Should the petitioner correspond with the Board to have the petition applied to the newly opened Board file, (and to do so would only help ensure that the petition is applied to the file) there would seem to be little reason to ascribe any relevance to the date of the letter requesting such a transfer, at least where the letter requesting the transfer was filed with the Board prior to the terminal date, such as in this case.

27. As a matter of practice, it would only be in a case such as the one before us that there would be a request to transfer a petition from one Board file to another. To place any significance on the date of the transfer request would open up the process for potential abuse. Consider, for example, a variation of the facts of this case. If the petition in Board file 2784-94-R had been timely, to place any weight on the date of a letter requesting transfer would permit an applicant to withdraw its application and re-apply simultaneously or soon thereafter (perhaps with further membership evidence, or perhaps not). Notice of the Board's disposition of the withdrawal request (which is typically to grant leave to withdraw at such an early stage of the proceedings) would not reach the petitioner until the fresh application had been made. Any subsequent letter requesting transfer of the petition to the "new" file would, according to the theory espousing significance to the date of request to transfer, be untimely. The unfairness of such a rule is evident.

28. In our view, the answer to this issue is obtained by considering the plain words of section 8(4) of the Act. On the facts before us, the two petition documents which were physically located in Board file 2784-94-R had been, at the very least, "presented" to the Board prior to the certification application date. The two documents, when first filed with the Board, were clearly untimely, insofar as they related to Board file 2784-94-R. However, in relation to Board file 3072-94-R, the documents were at the Board well in advance of the certification application date of November 23, 1994. There would appear to be no reason to treat the documents differently than the other petition documents kept "on file" with the Board. Accordingly we ruled that the petition document in Board file 3072-94-R was timely. (For a subsequent decision reaching the same conclusion, see A-1 Rent-A-Tool Ontario Ltd. Board file 2424-94-R, dated January 25, 1995).

(iii) Communication of Group of Objecting Employees

29. The Board made the ruling immediately above on January 4, 1995, at approximately 10:00 a.m. Prior to the announcement of that ruling, the panel of the Board was provided with a note addressed to the Vice-Chair of this panel that was left by Mr. McKay and Mrs. Eby at the Board's reception desk. After the Board provided the parties with the above ruling, it distributed a copy of the two page letter to all of the parties. Amongst other things, the letter explained why a fresh petition had not been prepared during the applicant's organizing drive. Mr. McKay advised the Board that he and Mrs. Eby merely wanted the Board to understand why the petitioners' petition had been filed so late with the Board (presumably in Board file 2784-94-R). Counsel for the union and the employer were provided with an opportunity to obtain instructions from their clients regarding what, if anything, should result from this communication. Counsel were both advised by the Board that the decision read to the parties earlier that morning had been reached by the full panel prior to receipt and review of the note.

30. After a brief recess both counsel stated that it had no concerns that the note had improperly affected the deliberations of the Board, and counsel for the applicant requested that the petitioners be cautioned as to the impropriety of such communication with the Board. The Board did, at that time, advise the representatives of the petitioners that no such communications should be sent to the panel, and that any such representations must be made at the open hearing, and, if necessary, under oath. Both Mrs. Eby and Mr. McKay acknowledged their understanding of this limitation.

III. The Facts

31. At the request of the Board, the parties agreed to most of the facts required to argue a number of discrete issues raised by the employer. A number of facts agreed to are set out above in paragraphs 6, 7 and 14-17, inclusive. As well, the Board heard the testimony of Mr. Robert Armbruster, the union's chief organizer responsible for these applications. A summary of the facts as determined by the Board is set out immediately below.

32. On October 24, 1994, after the applicant had applied to represent employees of the employer at its Margaret Avenue location (Board file 2636-94-R), the union, through Mr. Armbruster, distributed to employees of the four Dutch Boy stores in Kitchener certain campaign material and a membership card with a self-addressed, stamped envelope. The materials were distributed to approximately 25 individuals at each of the four Dutch Boy stores in Kitchener, including the Margaret Avenue and Westmount Road stores. These letters were sent to those employees who had not, at that point, signed a membership application in the union. The content of the card, envelope and written material is of significance and, accordingly, we reproduce the entire package in the same form below. The main piece of literature reads as follows:

United Food & Commercial Workers Local 1977

"Important Information"

Dear Friend:

What you have now as your conditions of employment is not necessarily what you will have tomorrow. Without a Union Agreement, without an application to become unionized before the Ontario Labour Relations Board, there is nothing to prevent your employer from eroding your wages and working conditions. It is only through the collective bargaining process that you have the right to bargain with your employer.

Please be informed that on October 21, 1994, the United Food and Commercial Workers Union has made application to represent all the Dutch Boy employees at a store in Kitchener. If you have not signed an application card for membership in the union, please do so now. We have enclosed an application card for you to sign and return to us in the enclosed envelope. Failure to sign and return this card could result in your store not having bargaining rights. Join the hundreds that have chosen UFCW.

Application is very easy. Simply fill out your name, address, and phone number on the front of the card. This will enable us to keep you informed of current information that relates to you. Sign and date the back of the card. Please do not forget to do this. Failure to sign the back will result in an invalid application card. Enclose the card in the envelope provided and drop into the mailbox. The card you sign is never seen by your Employer, only by an official at the Labour Board of Ontario.

If you are still hesitant to sign a card, read on.

WHY DO PEOPLE JOIN UNIONS?!

• Statistics Canada reports that Union members earn 35% more in wage and benefits.

• Unions balance the power between management and workers.

• Discipline must be for just cause. The right not to be fired without a clear-cut and very strong reason is the most basic and most important right which Unions provide.

• Democratically elected committees Health & safety, Pay Equity, Negotiations and Grievances.

• Education and Training to enhance personal working life; thereby relieving stress on the job.

• Grievance Procedure that will provide professional union representation that get results.

• Hours scheduled according to seniority.

• Job promotions and transfers offered by seniority.

• Union provided Educational Scholarships for you and your family.

• Improved Vacation Entitlement.

• Retirement with good Pension Benefits for financial security.

• Improved Sick Plan.

Now is the time for YOU to join the Union that is organizing Dutch Boy Employees. If you have any questions, please do not hesitate to call our office and an organizer will be glad to see you.

The United food and Commercial Workers is a strong, progressive union which represents thousands of retail food workers across Ontario and 1.3 million members across North America!

The Law Protects You!

The Government of Ontario believes that unions are good for employees. They help ensure equitable, and fair treatment, help raise the standards of living for members and ensure safer working conditions. These goals, which unions strive to achieve, help reduce the strain on our already struggling social system.

We have enclosed the portion of "The Ontario Labour Relations Act" that pertains to union certification to show you the law is truly on your side!

If you have any questions, please contact our office at (519) 658-0252, or 1-800-267-1977.

In solidarity,

UFCW Local 1977.

The attached summary of the Act reads as follows:

THE ONTARIO LABOUR RELATIONS ACT

CERTIFICATION

SECTION 3 - FREEDOMS: Every person is free to join a Trade Union of the person's own choice and to participate in its lawful activities.

SECTION 9.1(2) - AUTOMATIC CERTIFICATION: The Union can be certified as the bargaining agent of full time and part time employees in the bargaining unit if it is satisfied that more than 55% of employees have signed Union membership cards.

SECTION 9.2 - CERTIFICATION WHEN ACT CONTRAVENED: The Union can be certified also if the Labour Board is satisfied that the true wishes of employees can not be determined because their employer violated the Labour Relations Act.

SECTION 113 - SECRECY OF THE UNION CARD: Employees are guaranteed secrecy as to their Union membership and their Employer never has an opportunity to see the application cards.

SECTION 65 - EMPLOYERS NOT TO INTERFERE: No Employer or person acting on behalf of an Employer shall participate in or interfere with the formation, selection or administration of a Trade Union. The Employer may express views so long as the employer does not use coercion, intimidation, threats, promises or undue influence.

SECTION 67 - EMPLOYERS NOT TO INTERFERE WITH EMPLOYEES RIGHTS: No employee shall discriminate against any person for exercising their rights under the Act. Employer of Employees not to intimidate or use coercion.

SECTION 71 - INTIMIDATION AND COERCION: No person shall seek by intimidation or coercion to compel any person to become or refrain from becoming a Union member.

SECTION 73.1(9) - BURDEN OF PROOF: Any Employer that violates the Labour Relations Act shall carry the Burden of Proof that they did not act Contrary to the Law.

SECTION 72 - PERSUASION DURING WORKING HOURS: Nothing in this Act authorizes any person to attempt at the place at which an employee works to persuade the employee during the employees working hours to become or refrain from becoming or continuing to be a member of a Trade Union.

SECTION 41 - FIRST CONTRACT ARBITRATION: In the event the parties fail to reach a first Collective Agreement, either party may make application to the Labour Relations Board. The arbitration board hears the arguments of both parties then awards a Collective Agreement that is binding.

SECTION 43.1 [sic] - JUST CAUSE PROVISION: No Employer shall discipline or discharge any employee without just cause.

SECTION 44.1 - CONSULTATION PROVISION: Collective Agreement must contain a process that the parties consult on a regular basis about issues related to work place and the employees.

SECTION 45 - GRIEVANCE AND ARBITRATION: Every Collective Agreement shall provide for the Final and Binding settlement by Arbitration, without work stoppage of work, of all differences between the parties.

SECTION 81.2 [sic] - WORKING CONDITIONS MAY NOT BE ALTERED: When a Trade Union has applied for certification and notice has been received by the Employer, the Employer may not alter the rates of wages, any other term or condition of employment or any right, privilege or duty of the Employer without the consent of the Trade Union.

This information may be confirmed by contacting: Ontario Labour Relations Board Officer at (416) 326-7514

Finally, the membership application card enclosed in the package read as follows:

UNITED FOOD AND COMMERCIAL WORKERS

INTERNATIONAL UNION, LOCAL 1977

I hereby request and accept membership in the United Food and Commercial Workers International Union, and of my own free will hereby authorise the Union, its agents or representatives, to act for me as a collective bargaining agent in all matters including wages, hours, and working conditions.

Date ___________ ,19 ____ __________________________________

Signature of Applicant

I received this card from the person whose signature appears on the other side.

“illegible signature” Date: __________ 19 ________

Applicant Employee’s Name & Address

LAST NAME

FIRST NAME

HOME ADDRESS ________________________________________________________

Street Apt. Number

CITY_______________________ PCODE ____________ PHONE _________________

EMPLOYER/CO ________________________________ JOB _____________________

DO YOU WORK MORE THAN 24 HRS PER WEEK? YES / NO

(Circle one)

It will be noted that Mr. Armbruster "pre-signed" as receiver each of the membership application cards which were enclosed with the campaign material. It is also of significance to note that the phone number listed at the bottom of the summary of the Act which is part of the campaign material is that of a Board member appointed on behalf of labour. There is no dispute that the applicant did not intend to reproduce the Board member's phone number but rather that it intended to reproduce that of the Board's Field Services Department.

33. In both Board files 3071-94-R and 3072-94-R, the applicant filed, as required by Rule 43(c) of the Board's Rules of Procedure, a Form A-4. In light of the difficulties which were incurred as a result of the dismissal of Board file 2636-94-R, the applicant's A-4 in both applications identified no exceptions, but made reference to an "Appendix E", which reads as follows in Board file 3071-94-R:

APPENDIX "E"

On the basis of my personal knowledge or inquiries I have made, the documents were signed by the employees indicated on the documents. I have not been made aware nor am I aware of any exceptions. Without prejudice to the above-noted comments and in the alternative, I am aware that in the case of one (1) employee the said employee is unable to write his or her name in a manner which renders the name easily identifiable. Rather this employee utilizes a mark to denote his or her signature. However, I am able to verify based on my personal knowledge or inquiries that the membership application submitted on behalf of this employee was signed by the employee as indicated.

The vast majority of the membership evidence was collected between July 1994 and before October 21, 1994 which was the date of the original application for certification (reference may be made to Board File No. 2639-94-R) [sic].

Subsequent to that date I sent a package out to, inter alia, employees of the Margaret Avenue store (subject of the application in Board File No. 2639-94-R) [sic]. This package has been reproduced as "A", "B", "C" and "D" attached hereto. The envelopes were addressed individually. This package was sent to approximately twenty-five (25) Margaret Avenue store employees. We made no secret of this mailing.

We received some returns which were not delivered but I can not say for sure how many returns came back for employees we thought worked at the Margaret Avenue store. We had no intention of filing any membership application obtained by this method with the Board in the original application. In fact only a few membership applications were returned in the mail. These membership applications were not (nor would they be) included in the original application. However, I subsequently personally spoke to the two (2) applicants and confirmed that they had in fact signed the cards. I asked a number of other questions to satisfy myself that they understood the nature of the application. I identified myself and the fact I was a union representative. None of these cards were utilized in the original application. They made no difference in respect to Board File No: 2639-94-R [sic].

I did pre-sign the membership applications sent out in the mail on or after October 24, 1994. In some earlier cases, I personally witnessed Applicants sign both sides of the card which I dealt with in the presence of the Applicant. I did not date these cards by day, month or year. Since these cards were expected to be returned via the ordinary mail, if at all, I intended to act as the receiver of any such cards. In fact, in respect to the Margaret Avenue Store there were not nor are there any exceptions as contemplated by the Form A-4 declaration, I did receive (as noted above two (2) cards from Margaret Avenue Store employees who worked within our proposed bargaining unit). I did receive those two (2) cards as planned. I did contact the two (2) individuals as planned. However, I did not utilize or file these cards with the Board.

Since there are no exceptions, I do not believe that this Appendix "E" or this detail (these particulars) are necessary. However, I have prepared this Appendix out of an overabundance of caution.

and as follows in Board file 3072-94-R;

APPENDIX "E"

On the basis of my personal knowledge or inquiries I have made, the documents were signed by the employees indicated on the documents. I have not been made aware nor am I aware of any exceptions. Without prejudice to the above-noted comments and in the alternative, I can state that the vast majority of the membership evidence was collected between July 1994 and before October 21, 1994 which was the date of the original Application for certification in respect to the first of the Responding Party's stores for which we applied - the Margaret Avenue store (reference may be made to Board File No. 2639-94-R [sic]).

Subsequent to that date I sent a package out to, inter alia, employees of the Westmount Road East store (subject of the original application in Board File No. 2784-94-R). This package has been reproduced as "A, "B", "C" and "D" and "E" attached hereto. The envelopes were addressed individually. This package was sent to approximately twenty-five (25) Westmount Road East store employees. We made no secret of this mailing.

We received some returns which were not delivered but I can not say for sure how many returns came back for employees we thought worked at the Westmount Road East store. In fact only a few membership applications were returned in the mail. However, I subsequently personally spoke to the two (2) applicants and confirmed that they had in fact signed the cards. I asked a number of other questions to satisfy myself that they understood the nature of the application. I identified myself and the fact I was a union representative. I also arranged for an organizer to visit each of these individuals. The organizer did meet with each of these two (2) people separately. The organizer spoke to each of these individuals and satisfied himself or herself as to the following: that the person's name on the card is the person who signed the card and is the person who the card represents; that this person understood exactly what it was that they were authorizing the Union to do; that the person signed the card of his or her own free will and that it was that person who signed the authorization card and mailed such to the Union's office in the self addressed envelope which had been sent directly to the Applicant by the Union. The envelopes were received and reviewed by me at the Union's office at the address as set out on the envelope, respectively.

As noted above, I also spoke with each of these persons who returned cards via the mall. I spoke with these persons to confirm all of the above-noted information as well. I was one of the Union's representatives who also made the normal inquiries associated with the membership evidence. In fact, I inquired in respect to each and every card submitted with the original application. I have inquired in respect to each and every card submitted with this new application.

Although the Union believes that it has the right to rely upon the two (2) cards returned in the mail from the Westmount Road East store employees in respect to either the original or this new application, the Applicant has decided, without prejudice and out of an overabundance of caution, not to rely upon these two (2) cards in these circumstances. Accordingly, we are relying only on membership applications received via hand.

I did pre-sign the membership applications sent out in the mail on or after October 24, 1994. I did not date these cards by day, month or year. Since these cards were expected to be returned via the ordinary mail, if at all, I intended to act as the receiver of any such cards. In some earlier cases, I personally witnessed Applicants sign both sides of the card which I dealt with in the presence of the Applicant. In fact, in respect to the Westmount Road East store there were not nor are there any exceptions as contemplated by the Form A-4 declaration. I did receive (as noted above) two (2) cards returned in the mail from Westmount Road East store employees who worked within our proposed bargaining unit. I did receive those two (2) cards as planned. I did contact the two (2) individuals as planned. since there are no exceptions, I do not believe that this Appendix" E" or this detail (these particulars) are necessary. However, I have prepared this Appendix out of an overabundance of caution.

34. It is not in dispute that, prior to the passage of Bill 40 effective in January, 1993, the union utilized membership application cards of a form different than that reproduced above. When the application was brought in the name of the United Food and Commercial Workers International Union ("the International"), the following card was utilized during an organization campaign:

“illegible card”

During that same time frame, if the application were to be brought in the name of a Local affiliate of the International, the following card was utilized during an organization campaign:

“illegible card”

Both of these cards have been approved for use by the Secretary-Treasurer of the International. Likewise, the form of the card utilized in this application (identical in form to that reproduced above in paragraph 32) was approved for use by the Secretary-Treasurer of the International.

35. A further membership application card was entered into evidence, which is reproduced

“illegible card”

This document, too, has been approved by the Secretary-Treasurer of the International Union for use. It is not a card but a carbon-type document and is intended for use when individuals become members of the union for various particular reasons - the negotiation, for example, of a closed shop agreement. The card is to ensure that proper tracking of dues money is effected and is not used for certification applications at the Board. A carbon from this document is sent to the International but no copies of the other membership application cards are sent to the International, in accordance with the union s interpretation of Article 4(H) of its Constitution, which will be outlined in more detail below.

36. It was agreed between the parties that written communications to employees from both the union and the employer were sent during the summer and fall of 1994.

37. The Board also heard the evidence of Robert Armbruster on the narrow issue of whether any "pre-received" membership cards had been filed with the Board, as the parties could not agree on this fact. Mr. Armbruster is a meat cutter employed by Zehrs, who is currently on a leave of absence to work with the United Food and Commercial Workers International Union, Local 1977 ("Local 1977"). His role with Local 1977 is predominately one of servicing existing bargaining units, but he was chiefly responsible for the organizing of these particular workplaces. Mr. Armbruster's testimony established that, prior to sending out the 100 "pre-received" membership cards on October 24, 1994, he had never "pre-received" other membership cards, nor, to his knowledge, had any other organizer involved with the campaign. With respect to the application relating to the Margaret Avenue store, .Mr. Armbruster stated that there were no cards filed with the Board that had been "pre-received". Mr. Armbruster testified to the same effect with respect to the Westmount Road application. On the basis of inquiries made by him, he was unaware of any other cards that had been "pre-received".

38. As a result of the mail campaign, Mr. Armbruster did receive, with respect to each of the two stores subject to these applications, two membership applications. With respect to the membership applications relating to the Margaret Avenue location, Mr. Armbruster testified in detail as to the steps he took to confirm that the person purporting to have signed the card was, in fact, the person identified. Furthermore, Mr. Armbruster stated that these two cards were not filed with the Board in support of the application for certification. With respect to the Westmount Road application, Mr. Armbruster confirmed that he had received two "pre-received" cards from the mass mailing, and testified as to the steps he took to confirm the identity of the persons who signed the cards. Mr. Armbruster advised the Board that the cards received by him were not before us; however, he did send another organizer out to speak to these individuals and to have them each sign a further, fresh application for membership. These cards were before the Board as membership evidence. Mr. Armbruster also advised the Board that the original two "pre-received" cards which had been received by him in the mail had been filed in the prior (now withdrawn) application respecting the Westmount Road store.

39. Mr. Armbruster advised the Board that he signed the membership cards in advance as having been received by him because on several occasions employees had signed the applications for membership in the space reserved for the receiver. He believed that, if he mailed cards without a signature in the receiver's line, further errors would occur. Accordingly, he signed his name in that place so no one else would. Mr. Armbruster conceded that other organizers, should they have observed him doing this, may have believed that it was acceptable to "pre-receive" membership application cards. However, he reiterated that, on the basis of his inquiries, no organizer had, in fact, "pre-received" any membership card. He also conceded that once a membership card that had been "pre-received" is signed by an employee, it is impossible by looking at it to determine whether it had been, in fact, "pre-received". Mr. Armbruster further testified that, in his view, it was (and still is) acceptable to create "pre-received" membership application cards, as he had always expected to be the receiver of the membership cards that would be returned through the mail. Mr. Armbruster also noted in his testimony that the "pre-receipt" of cards expedited the gathering of membership evidence.

40. It was on the basis of the above facts that the parties proceeded to argument on the following issues.

(i) Name of the Responding Party

41. The parties disagreed on the proper name of the responding party. The applicant took the position that the responding party should be described as "Oshawa Group Limited, c.o.b. as Dutch Boy Food Markets", and the responding party asserted that the description of itself should be "Dutch Boy Food Markets, Oshawa Foods Division of Oshawa Group Limited". Little argument was entertained on this issue. However, the applicant referred the Board to the recent decision of Hemlo Gold Mines Inc., supra, and the cases cited therein.

42. In Hemlo Gold Mines Inc., the Board dealt with a similar issue in the context of an application for certification. The employer requested that "c.o.b. as Golden Giant Mine Division" be added to the bargaining unit description. In rejecting this request, the Board made reference to a prior decision of the Board in Beatrice Foods (Ontario) Limited [1982] OLRB Rep. June 815, in which the following observations were made:

3. Having considered the respondent's request, the Board is of the view that it would not be appropriate to amend the style of cause in the manner requested by the respondent. While a corporation may be subdivided into a number of divisions for operational, marketing and other purposes, the creation of such internal divisions does not change the fact that the legal entity which is the employer remains the corporation itself, which must have "Limited", Incorporated", "Corporation", "Ltd"., "Inc." or "Corp." as the last word in its name (see Business Corporations Act, R.S.O. 1980, c.54, s. 8 and Canada Corporations Act, R.S.C. 1970, c. C-32. s. 25). To forestall various difficulties that might otherwise arise with respect to such matters as enforcement of Board decisions and orders, it is preferable (although it has not, to date, been the Board's unvarying practice) to include only the corporate name of an (incorporated) employer in the style of cause of an application or complaint. If, as in the present case, it is appropriate to restrict the applicant's bargaining rights to employees who work in a particular division that has been established by their corporate employer, this can be accomplished by referring to that division in the description of the bargaining unit, as was done in the aforementioned decision dated May 31, 1982 in which the unit was described as "all employees of the respondent in its Model Dairy Division at Sault Ste. Marie ..." (emphasis added).

43. For the reasons identified in the decision of Beatrice Foods (Ontario) Limited, supra, we are of the view that it is inappropriate to describe the responding party in the style of cause as requested by either the applicant or the responding party. Accordingly, the style of cause is amended to read "Oshawa Group Limited". As is noted by the Board in the Beatrice Foods (Ontario) Limited decision, the appropriate place to restrict the applicant's bargaining rights to employees of Dutch Boy Food Markets is in the bargaining unit description. In these two Board files, the parties have, in fact, agreed to limit the bargaining rights of the applicant to the respective street addresses of the two stores. In those circumstances, it is unnecessary to further emphasize the restriction in the style of cause.

(ii) Sufficiency of the Membership Evidence filed with the Board

44. Counsel for the employer asserted that the membership evidence filed in support of this application ought to be rejected by the Board as insufficient on the following four (independent) grounds:

(a) that the membership evidence filed with the Board failed to reflect a witness to the signature on the card;

(b) that a copy of the membership evidence was not forwarded to the International as required by the union's constitution;

(c) that the membership applications failed to contain language showing a commitment to be bound to the constitution and/or by-laws of the union; and

(d) that the membership applications were confusing to employees because they refer on their face to both Local 1977 and the International.

45. Counsel submitted that the form and content of the membership evidence filed with the Board was insufficient to support automatic certification. It was argued that an application for membership in a trade union requires verification of authenticity by way of a witnesses signature. Counsel observed that prior to the passage of Bill 40, the applicant's completed membership applications contained a number of signatures on their face, and that the Board acted on the signatures as verifying certain facts - the payment, for example, of $1.00. Counsel noted that the membership application form utilized in these two Board files had a space only for the receiver of the application card, which was significantly different from the pre-Bill 40 situation. Counsel could cite no authority for his assertion that a witnesses signature was necessary to constitute a valid membership application, except Board practice, which counsel asserted was established by a Labour Relations Officer's disclosure to the parties in a typical certification application of whether "one or more witnesses" were identified on the membership evidence filed with the Board. Counsel characterized the submission as being one of first impression and asserted that the advent of Bill 40 ought to have an effect on the Board's current practice respecting the validity of membership evidence.

46. With respect to the employer's argument that the applicant had not complied with its Constitution, counsel for the employer referred to Article 4(H) of the Constitution of the United Food and Commercial Workers International Union (as amended and revised, July, 1993), which reads as follows:

All applications for membership in this International Union shall be made on forms furnished or approved by the International Secretary-Treasurer. Copies of such applications for membership shall be immediately forwarded to the International Secretary-Treasurer.

and Article IV, Section F of the Bylaws of Local 1977 which reads as follows:

All applications for membership, by either new members, reinstated members, transferred members or those entering the Local Union on withdrawal cards, shall be made on forms furnished or approved by the International Union. Copies of such applications shall be forwarded to the International Secretary Treasurer. No person who has been expelled from the International Union shall be accepted to membership.

Counsel observed that the evidence disclosed that copies of only certain applications for membership were forwarded to the International Secretary-Treasurer as required by the union's Constitution and the Bylaws of Local 1977, and that copies of the membership applications relied upon by the union in these two Board files were not forwarded to the International Secretary-Treasurer as required.

47. Counsel also addressed the substance of the membership applications before the Board in comparison to those previously utilized by the International and affiliated Locals. Counsel submitted that the current membership application card is a substantially less significant document than the prior application card because there is not, on its face, any undertaking or commitment to abide by the Bylaws or Constitution of the union, nor is there any language to authorize the company to deduct and remit to the union the monthly dues established by the union. Counsel submitted that the current application membership card contained merely a request for membership, and that that language was insufficient to support automatic certification. Counsel disputed that the Act, as amended by Bill 40, permitted such membership evidence to be relied upon by the Board and relied principally on the Board's decision in Ontario Hydro [1989] OLRB Rep. Feb. 185, and the case of Astgen et al v. Smith et al 1969 CanLII 488 (ON CA), [1970] 1 O.R. 129 (C.A.), cited therein. In essence, counsel's submission was that the application for membership must reflect a commitment by the signer to contract with others in a mutual manner. Reference was also made to Windsor Raceway Holdings Limited [1979] OLRB Rep. Feb. 154.

48. Finally, counsel submitted that the application for membership utilized by the applicant was unclear, insofar as a plain reading of the card raises the question of which of Local 1977 or the International the signer is applying to join. Counsel compared the prior membership applications utilized by the International and affiliated Locals and submitted that the confusion caused by the card ought to dictate that the application for certification not be granted automatically.

49. In support of each of these arguments, counsel relied on the case authority referred to above, and made reference to section 1(1)(l) of the Labour Relations Act, R.S.O. 1990, c. L-2; that is, to the definition of the word "member" previously contained in the Act. Reference was also made in argument to various provisions of the current legislation; in particular, sections 8, 105(2)(j), 105(4), and 105(4.1) of the Act. Counsel asserted that, unless the Act specifically excepted it, the legislation implicitly requires the union to satisfy its Constitution and Bylaws. Counsel noted that the certification process is a public one, with public consequences, and in that light certain standards reflected by his argument were necessarily required to be set by the Board. Counsel submitted that none of the statutory amendments to the Act effected by Bill 40 "authorized" or gave "clearance" to the union to make the changes to the applicant's membership application cards.

50. Having carefully considered the argument of the employer, we are of the view that each of the above arguments is without merit. We have reached this result for the following reasons.

51. Section 8(1) of the Act governs the obligation of the Board upon an application for certification. Section 8(1) reads 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.

Also of significance are sections 105(2)(j) and 105(4.1) of the Act:

105.-(2) Without limiting the generality of subsection (1), the Board has power,

(j) to determine the form in which evidence of membership or application for membership or of objection to certification of a trade union shall be filed or presented on an application for certification and to refuse to accept any evidence not filed or presented in that form;

(4) Where the Board is satisfied that a union has an established practice of admitting, persons to membership without regard to the eligibility requirements of its charter, constitution or by-laws, the Board, in determining whether a person is a member of a trade union, need not have regard for the eligibility requirements.

(4.1) In determining whether a person is a member of a trade union or has applied for membership, the Board shall not consider whether the person has made any payment that the trade union may require.

Finally, reference should also be made to Rules 47 and 48 of the Board's Rules of Procedure, which provide as follows:

47. Membership evidence, evidence of objection and evidence of re-affirmation will not be considered by the Board unless the evidence is filed by the application filing date, is in writing, signed by each employee concerned, and is accompanied by the name of the employer and the name, address, telephone number and facsimile number, if any, of a contact person.

48. Membership evidence, evidence of objection and evidence of re-affirmation must disclose the date upon which each signature was obtained and must be accompanied by the name of the union, if known.

52. Upon an application for certification, section 8(1)(b) of the Act requires the Board to ascertain, as part of its process of determining an application, the number of the employees in the bargaining unit who are members of the trade union on the date of application, or who have applied to become members on or before that date. As was noted by employer counsel, the definition of the word "member" no longer is included in section 1 of the Act, having been deleted by the provisions of Bill 40. Accordingly, the Board is left with the requirement that it determine who is a member of or has applied for membership in the applicant, having regard to any parameters respecting the form of the evidence of membership set by the Board pursuant to section 105(2)(j) of the Act. In that regard the Board has, by way of Rules 47 and 48, imposed certain requirements on the form of the membership evidence that must be submitted in support of an application for certification - a membership application must be in writing, signed by the employee concerned, and disclose the date upon which the signature was obtained. There is no dispute that the applications for membership before the Board establish these prerequisites.

53. The question before the Board is whether further formalities should also be reflected by applications for membership in a trade union which are filed with the Board in support of an application for certification. It is evident that section 105(2)(j) of the Act provides the Board with the authority to establish, for example, that a witness must endorse his or her signature on each application for membership. We are satisfied, however, that it is not necessary to do so. It is true that, prior to the amendments to the Act respecting the payment of $1.00 to the union in respect of monthly dues or initiation fees, membership application cards before the Board typically consisted of "combination" style cards in which the signature of the collector of the $1.00 (or more) payment was endorsed on their face. However, the individuals identified as "collectors" were not necessarily witnesses to the signature on the membership card; as is apparent from the "pre-Bill 40" membership cards reproduced above, all that the collector's signature certified was that he or she had received the fee. The fee could have been paid to the collector at a time quite distinct from that when the application card was signed. In our view, the existence of collector signatures on "pre-Bill 40" membership application cards does not advance the employer's assertions.

54. Furthermore, counsel's submission that it is the Board's "practice" to require the signatures of witnesses (on the basis that Board officers typically advise parties of the "number of witnesses" when meeting with the parties) does not advance the employer's case either. Administratively, Board clerks do include in each Board file a file summary sheet which identifies whether the names of one or more "witnesses" appear on the card. In the two Board files before us, for example, such multiple witnesses were identified. In point of fact, the identification of these "witnesses" merely identifies the existence of signatures other than the applicant for membership on the membership application cards filed with the Board. This "practice" does not reflect any reliance by the Board on the signatures of "witnesses" as was asserted by counsel for the employer.

55. In our view, the amendments to the Act effected by Bill 40 have no bearing on the determination as to whether the signature of a "witness" is or is not required on an application for membership. The Act requires the Board to ascertain, as at the certification application date, the number of the employees in the bargaining unit who are members of the union, or who have applied to become members on or before that date. The Board performs this obligation by reviewing membership evidence filed with it. The employer is required by the Board to file specimen signatures of the employees in the proposed bargaining unit, and the Board thereafter completes two separate checks of the membership evidence; any potential "non-signs" are brought to the attention of the Board, which then investigates the matter through a Labour Relations Officer. In these circumstances, the Board does not believe it necessary to establish pursuant to section 105(2)(j) of the Act that membership evidence is invalid without the endorsement of a witness.

56. With respect to counsel's argument touching on the need to ensure compliance with the International Constitution, we simply state that, whether the union's interpretation of Article 4(H) of the Constitution and Article IV, Section F of the By-laws of Local 1977 is or is not correct, the union's adherence to the Constitution or By-laws is of no importance to the Board in this case. Section 105(4) of the Act, which speaks to the Board's inquiry in certain circumstances, is not applicable to the fact situation before us. Section 8(1)(b) of the Act requires the Board to ascertain whether employees are members of a trade union or have applied for trade union membership upon an application for certification. Whether certain employees are members or have applied to become members of the union is unaffected by the requirement to forward photocopies of membership applications to the International Secretary-Treasurer which is contained in the International Constitution and the Local's By-laws. Quite simply, the lack of compliance with the above two Articles, assuming that there has been a lack of compliance, is irrelevant to the Board's inquiry in this case.

57. Similarly, it is of no significance that the applications for membership utilized by the union omit certain language previously contained in membership applications of the union in which the applicant promises to abide by the union's Constitution and/or Bylaws of the union. Again, the critical consideration for the purposes of the Board is that the card clearly establish that the individual signing the card desires to apply for membership in the union. Obviously, once inducted as a member of the union, individuals will be bound by certain rules contained in the union's Constitution and/or Bylaws - and that is all that the decision of Astgen v. Smith, supra, relied upon by the employer, establishes for the purposes of this case. The Act does not require applicants to indicate on their application for membership anything more than a request to join the union, nor that applicants indicate that they understand the various contractual obligations inter se that will be imposed upon them by common law once they are inducted as members of the Union.

58. Counsel relied in argument upon a "Statement of Policy" which is reproduced in Windsor Raceway Holdings Limited, supra, at paragraph 8 and which reads as follows:

STATEMENT OF POLICY

by

Ontario Labour Relations Board

Application for Certification - Members

Upon an application for certification the Board will require the applicant to submit evidence that each employee said to be a member of the applicant has

(1) applied for membership in the applicant, and

(2) indicated his acceptance of membership and his assumption of the responsibilities of membership

(a) by paying to the applicant, on his own behalf, an amount of at least $1.00 in respect of the prescribed initiation fee or monthly dues of the applicant, or

(b) by presenting himself for initiation or by taking the members' obligation, or by doing some other act which, in the opinion of the Board, is consistent

with membership in the applicant.

Counsel focused on the Board's requirement that the applicant for membership show that he or she indicated an "assumption of the responsibilities of membership" in the trade union, and urged the Board to impose a similar requirement in the "post-Bill 40" world. We are of the view that it is inappropriate to do so, for the reasons set out above; that is, subsequent to the 'Statement of Policy' referred to above, the Act has been amended, numerous times, to reflect the appropriate inquiry which must now be made by the Board upon receipt of an application for certification. The statute does not mandate an inquiry into the individual membership applicant's "assumption of responsibilities" in the trade union; nor do we believe it to be appropriate to require such inquiries pursuant to the Board's authority under section 105(2)(j). In this regard, the membership application cards filed in support of this application are perfectly acceptable -

59. Finally, we reject counsel's argument that the membership evidence should be rejected on the basis that the membership cards used by the applicant may have confused employees because they refer to both Local 1977 and the International. In Chapleau Forest Products Limited [1990] OLRB Rep. Dec. 1243, the Board was faced with a similar argument by the responding party in circumstances, such as those before us, where the top of the membership application identified the Local Union but the body of the card identified the International. At paragraph 11, the Board observed as follows:

11. Since Local 1-2995 is the applicant, it is re(luired to support the application with applications for membership in Local 1-2995. Applications for membership in IWA-Canada will not suffice. In effect, counsel for the respondent argues that the application for membership cards filed with the application only relate to IWA-Canada, or are at least so ambiguous that effect should be given to the bar imposed as a result of the previous application. The Board was satisfied that the documentary evidence filed with the application relates to the applicant and that reasonable employees would not have been confused by it. As in Menkes Developments Inc., supra, the cards before us are applications for membership. In contrast to the cards used in the previous application, which referred only to IWA-Canada, the cards supporting this application refer clearly to Local 1-2995, the applicant. When one examines the membership cards as a whole, it is clearly an application for membership in both IWA-Canada and its Local 1-2995. It is for these reasons that the majority ruled that the applicant's documentary evidence of membership relates to employees who applied to become members of the applicant.

We agree with the test contained in the excerpt above; that is, would a reasonable employee have been confused by the membership application card. In the case before us, we think that a reasonable employee would have expected that he or she was, at the very least, applying for membership in the Local. The Local's name is bold faced on the card, and we are satisfied that reasonable employees would not have been confused by the card.

60. As the law has developed before this Board, evidence of membership in a local union is sufficient to support an application for certification brought by an international or parent union (see, for example, Canada Valve Ltd. [1980] OLRB Rep. Dec. 1727, and Chapleau Forest Products Limited, sup ra). Here the International has brought the application and can utilize the membership evidence relating to its Local affiliate.

(iii) Propriety of the Union's Correspondence of October, 1994

61. Counsel for the employer addressed a portion of his argument to allegations of impropriety regarding the correspondence and enclosures contained in the package dated October 24, 1994, which were forwarded to approximately 25 employees at each of the employer's four stores in Kitchener. It was submitted that the membership evidence submitted to the Board is tainted as a result of certain comments in the letter and erlclosures which, counsel asserts, would have led a reasonable employee to have believed that the Board lacked partiality when dealing with applications for certification.

62. Attention was focused on the paragraphs on page 2 of the material entitled "The Law Protects You!". Counsel focused on the first line in the first paragraph, which states "The Government of Ontario believes that unions are good for employees". The third page of the material was also referred to by counsel, in particular the numerous references to the Board, and the reference at the bottom of the page to the "Ontario Labour Relations Board Officer" and the accompanying phone number, which, as was noted earlier, is that of a Board member. Counsel submitted that a reasonable employee would conclude, from reviewing this material, that the Board and its Officers favour trade unions, and that that conclusion may well have affected the decisions of individuals to sign membership application cards after October 24, 1994. Counsel submitted that the conduct of the union in preparing and sending this material was unacceptable, disrespectful, scandalous and arrogant. Counsel could not locate any case in which a similar situation had arisen. However, counsel did review, in argument, the case of Cuddy Chicks Ltd. v. Ontario Labour Relations Board et al (1991), 1991 CanLII 57 (SCC), 81 D.L.R. (4th) 121 (S.C.C.), which emphasized, amongst other things, the high calibre of the Board and its members.

63. At the outset, we state that we accept the underlying principle of the employer's argument; that is, that the Board, as a neutral decision maker, cannot be "drawn into" an organizing campaign, either on the "side" of the trade union movement or on the "side" of the employer involved. This does not, of course, preclude anyone from making reference to the Board during the course of an organizing campaign, in campaign literature distributed to employees, or otherwise. However, it is, in our view, entirely inappropriate for a trade union or any of its agents to persuade an individual to sign a union membership application by suggesting that the Board is predisposed to a certain result. Quite simply, it is impermissible to improperly trade on the name or the reputation of the Board. Apart from the undermining of the Board's integrity, the nature of such a misrepresentation may well lead the Board to question whether membership cards signed after such an inducement reflected the true expression of the wishes of the employees. In those circumstances the Board would remedy the situation as it saw fit to do so, having regard to all of the circumstances of the case.

64. The document in dispute was circulated after the first application at the Margaret Avenue store had been made to the Board. There were a modest number of cards signed after the letter circulated which are before the Board in the two Board files in issue. Accordingly, the portions of the letter objected to by the employer could potentially have affected those individuals who signed those cards. There is, however, no such evidence before us and, in our view, a reasonable employee would not have read the letter in question as was submitted by counsel. The Board is of the view that the materials before us do not establish that the union has "crossed the line" as was suggested by employer's counsel.

65. It is noteworthy to observe that, when referring to the Board, the letter refers in its text to the "Ontario Labour Relations Board" or the "Labour Board of Ontario" rather than to "the Government"; that is, the letter clearly distinguishes between "the Government of Ontario" and the Board. The letter asserts only that the former has the beliefs attributed in the document, and not the latter. In our view, the reasonable employee would not, having read the letter, be confused between the concept of the Government of Ontario and the Board.

66. The information sheet attached to the initial letter which contains reference to the phone number of a Board member concerns us. There is nothing improper during an organizing campaign if either "side" advertises to employees the Board's general telephone line in an attempt to encourage employees to call the Board and obtain general information packages regarding their rights as contained in the Act. We would be concerned should there be on such a letter the phone number of a Labour Relations Officer or the general Field Services telephone number. Field Services is a division of the Board which actively assists employers, unions and employees during the course of Board proceedings. A call to Field Services would most likely have been referred to the operators monitoring the general telephone line at the time. However, the Board would be concerned if the credibility and effectiveness of these critical Board personnel were affected by a party to an organizing drive "pulling them" into the fray. This could, inadvertently, occur if either a Labour Relations Officer's or the general Field Services telephone number is included on literature which is distributed to employees. The inclusion of the name and/or phone number of a Board member, who sits as a decision maker on the Board (though obviously as an appointee on behalf of a particular community) approaches the line of impropriety.

67. In this case, however, we are of the view that the particular reference made by the union does not go beyond the line. We accept the union's evidence that the inclusion of the Board member's telephone line on the material was inadvertent. Of course, the lack of improper intent does not remedy the effect of the error, and can be of little relevance to the Board panel dealing with an objection raised by the opposing party. However, there is no evidence before the Board suggesting that any employee telephoned that number or made a decision to sign a union membership application because of the identity of the individual at the Board who is assigned the particular number printed on the page. In fact, the material refers only to an "officer" of the Board; the specific identity of the individual assigned the telephone number does not appear on the page. In all of the circumstances, we are not satisfied that the facts of this case support the assertion that the membership cards contained in the file which post-date the letter and enclosures of October 24, 1994 do not reflect the true wishes of those who signed them. Accordingly, we dismiss this part of the employer's motion.

(iv) Propriety of the Form A-4

68. As noted above in paragraph 33, the applicant filed with the Board a Form A-4 for each of the two applications before us. They each contained a detailed Appendix "E" in which no exceptions to the general statements contained in paragraphs 1, 2 and 3 of the Form are set out. Counsel for the employer asserted that, in light of numerous considerations, the Board could not accept either Form A-4 as reliable and must, accordingly, dismiss these applications.

69. Counsel for the employer submitted that the Form A-4's utilized in these two Board files must be considered by the Board in the context of the events that had transpired as outlined above; that is, in light of Mr. Armbruster's letter dated October 24, 1994, the "pre-received" cards, the prior proceeding in Board file 2636-94-R, and the decision of the Board which issued regarding that file. Counsel noted that Mr. Armbruster had signed the Forms A-4 in both the prior proceedings and in the files before this panel. It was observed that the Forms A-4 were more properly characterized as "legal argument", explained nothing about the "events" that had occurred, and lacked an "apology" for the contents of the October 24, 1994 letter.

70. Counsel also reviewed the testimony of Mr. Armbruster. He submitted that, taken in its totality, the evidence casts doubt on the validity of the membership evidence submitted in support of the applications for certification. Counsel submitted that Mr. Armbruster's rationale for "pre-receiving" the membership evidence on those cards enclosed with the October 24, 1994 letter was incredible and unworthy of belief. Counsel highlighted Mr. Armbruster's current belief that it is acceptable to "pre-receive" membership evidence, and questioned whether other organizers became aware of Mr. Armbruster's opinion during the campaign themselves and "pre-received" membership applications. Counsel submitted that, on the facts of this case, the Forms A-4 lack integrity, and that the Board could not fairly rely on the documents.

71. The Form A-4, and its purpose, was recently considered by the Board in Syndicated Capital Properties Inc. (unreported, Board file 3665-92-R, April 20, 1993). At paragraph 8 of the decision, the following observations were made about the purpose of the Form A-4:

8. The Ontario Labour Relations Act provided., and still provides, that the certification of trade unions in this Province is based primarily upon an assessment of employee support for an applicant as evidenced by membership records filed in support of an application for certification. The Board does not inquire into opinions of the virtues of trade union representation except as evidenced by documentary membership evidence and any timely statements filed in opposition to an application. The representation vote exists as a mechanism to ascertain employee wishes in cases in which the applicant union enjoys something less than the support necessary for outright certification (but more than the level under which the application would be dismissed), or in circumstances in which the Board finds it appropriate to exercise its discretion to order a vote notwithstanding that the membership evidence, standing alone, would normally entitle a union to a certificate. Accordingly, in certification proceedings, the Board relies heavily upon the membership evidence filed. Because of the consequences of the reliance by the Board upon what is a form of hearsay evidence which is not generally disclosed to a responding employer (or anyone other than the applicant trade union itself) and which is not subject to cross-examination, the Board requires a high degree of integrity in the nature and quality of such membership evidence. The Board must be able to have confidence that every piece of membership evidence filed has been signed by the employee with respect to whom it is tendered. The purpose of Form A-4 (formally [sic] Form 9) is to raise the Board's level of confidence in that respect.

We concur with this view of the purpose of the Form A-4.

72. Quite simply, there is no evidence before the Board that leads us to conclude that the Form A-4 filed in either the Margaret Avenue location or the Westmount Road location does not provide us with the requisite level of confidence which is required by the Board.

73. There is no doubt that it is inappropriate to "pre-receive" applications for membership as was done by Mr. Armbruster in this case. From a review of the membership evidence filed with the Board it is apparent that employees initially signed membership applications in the receiver's line in approximately 1 in 10 instances. Although we accept Mr. Armbruster's rationale for "pre-receiving" the cards, he is mistaken if he continues to believe the practice to be a proper one. It is unnecessary for the applicant to have a "receiver” of cards indicated on the face of the card. That is done for its convenience, and presumably is meant to, at the very least, bolster the confidence in any particular card filed with the Board. "Pre-received" membership evidence is inappropriate because it purports to be something which it may not be. It causes the Board to question whether other information contained on the card is likewise not what it purports to be. The establishment of a practice of "pre-receiving" membership evidence may well cause the Board to enquire into the circumstances surrounding the practice to ensure that the cards filed with the Board are reliable evidence of membership. On the facts of this case, however, we are not satisfied that the existence of "pre-received" cards should have an effect on the acceptance of the Form A-4 or the confidence the Board has in the membership evidence before it.

74. With respect to Board file 3071-94-R, the evidence before the Board from Mr. Armbruster established that there were no membership application cards before the Board which had been "pre-received" by Mr. Armbruster or, for that matter, by anyone involved in the organization campaign. There was no reason to disbelieve the testimony provided by Mr. Armbruster; that he had not, himself, "pre-received" membership evidence which was before the Board, and that, based on the inquiries he had made with other receivers of membership applications, that his organizers had not "pre-received" membership evidence. We are satisfied, on the basis of the evidence before us, that the membership evidence filed with the Board in Board file 3071-94-R does not include any "pre-received" membership evidence.

75. More importantly, though, we are satisfied that the membership application cards contained in Board file 3071-94-R were signed by the employees indicated on the documents themselves. It is, of course, that fact that the Form A-4 is intended to "certify" by way of paragraph 3. There is nothing in the Form A-4, the Appendix to the Form A-4, or the evidence of Mr. Armbruster that leads us to conclude that the signatures on the membership evidence do not correspond with the identity of the person purporting to have signed. There was no suggestion that any third party had signed a membership application on behalf of an employee of the employer. Furthermore, there is no need for the union to utilize the Form A-4 to "apologize" for the contents of its correspondence to employees, even if we had concluded that the contents of the correspondence were improper. Any apology that the union would see fit to circulate would hardly be properly placed in a Form A-4. Accordingly, we dismiss this branch of the employer's argument.

76. The same conclusions follow with respect to Board file 3072-94-R. The evidence suggests that Mr. Armbruster made significant inquiries with respect to the individuals who received membership application cards on behalf of the union. With regard to the two individuals who forwarded "pre-received" membership cards to the union, the appropriate level of inquiry has been made by Mr. Armbruster and other officials of the union. Furthermore, the "pre-received" cards are not before the Board. There is no suggestion of any substance that the Form A-4 filed in that Board file is in any way deficient.

77. For these reasons, we dismiss the employer's motion based on the sufficiency of the Forms A-4.

IV. Disposition

(a) Board File 3071-94-R

78. There exists one matter still in dispute as between the parties. The applicant asserts that the six department managers employed by the employer at the Westmount Road location are "employees" for the purposes of the Act and should be included in the bargaining unit. The employer asserts that the department managers exercise managerial functions and ought to be excluded from the bargaining unit on the basis of section 1(3) of the Act.

79. A Labour Relations Officer is hereby appointed to inquire into and report to the Board concerning the duties and responsibilities of the department managers.

80. In accordance with the Rules of Procedure respecting applications for certification, the employer has filed a list of employees in the bargaining unit, together with sample signatures for the employees on that list.

81. In support of its application for certification, the applicant union filed documentary evidence in the form of membership application cards. The cards are signed by each employee concerned, are dated within the six-month period immediately preceding the certification application date, and are supported by a properly completed Declaration Verifying Membership Evidence.

82. The Board has determined that the applicant's right to certification cannot be affected by the Board's ultimate decision as to the inclusion or exclusion of the disputed individuals.

83. The Board is satisfied, on the basis of all of the evidence before it, that more than fifty-five per cent of the employees of the responding party in the bargaining unit on November 22, 1994, the certification application date, had applied to become members of the applicant on or before that date.

84. Accordingly, the Board, pursuant to its discretion under section 6(2) of the Act, and having regard to the agreement of the parties, certifies the applicant as the bargaining agent for:

all employees of Oshawa Foods Limited at 351 Margaret Avenue in the City of Kitchener. save and except assistant store managers and persons above the rank of assistant store manager.

The Board further notes that, pending resolution of the matters remaining in dispute between the parties, the department managers are excluded from the bargaining unit.

85. A final certificate must await the final determination of the matters remaining in dispute.

(b) Board File 3072-94-R

86. There exist a number of matters still in dispute as between the parties. Seven individuals are still in issue; five of the disputed individuals are department managers, and the parties take positions that mirror those above in Board file 3071-94-R. In addition, the Group of Objecting Employees challenges one of the department managers on the basis of the Board's "30/30" rule. Two other individuals are challenged by the applicant on the same basis. Of course, the voluntariness of the petition and the substance of the improprieties raised by the statements of desire are also still in issue.

87. This matter has been listed for hearing for 10 further days, commencing on April 18, 1995. At that time, the Group of Objecting Employees should be prepared to call its evidence on the voluntariness of the petition document. It appears to the Board that it would be helpful for the parties if a Labour Relations Officer were to meet with them prior to the hearing, in an effort to reduce the number of issues to be entertained at the hearing. Accordingly, the Board hereby appoints Labour Relations Officer Ms. Pauline Ryan to confer with the parties prior to April 18, 1995.

88. This panel is seized of this matter.

DECISION OF BOARD MEMBER S. C. LAING; April 5, 1995

1. I dissent from the decision of the majority. I am unable to agree with the analysis and conclusions respecting the propriety of the union's correspondence and the filed Form A-4.

2. The Board has consistently held that it must have the highest level of confidence in the membership evidence filed in support of the certification application.

3. In the case of Alex Henry & Son Ltd., [1977] OLRB Rep. May 288, the Board made the following observations:

8. In the application for certification the Board's concern with the nature of acts and representations made in the course of soliciting union membership is twofold. Firstly, the Board must be satisfied that the applicant has avoided any conduct proscribed by the Labour Relations Act, including section 61. Secondly, the Board must be satisfied that any signed membership applications that the union submits in support of its request for certification are an accurate representation of the wishes of each employee and were not obtained in circumstances tainted by any procedural irregularity or misrepresentation.

(emphasis added)

4. In these cases, the documents circulated by the union were clearly manufactured for the purpose of obtaining support. With respect to my colleagues, the representations and alleged inadvertence in these documents cannot simply be dismissed as insufficient to cause the Board concern. Typically, one would not include falsehoods and negligence as part of the anticipated salesmanship during an organizing campaign. The reliance the Board can then place upon membership evidence solicited in such a manner is severely diminished.

5. I turn now to the issue of the pre-signed cards and the Forms A-4 filed with the Board.

6. The Board's further comments at paragraph 11 of the Alex Henry & Sons Ltd., supra, decision are relevant to the issues here.

11. The Board's consistent policy in certification proceedings has been to require the highest standard of integrity on the part of union officers in the soliciting, gathering and presentation to the Board of documentary evidence in support of their application. Since that evidence remains confidential, is not subject to cross-examination and is the principal evidence on which the Board must rely in certification proceedings, it must be free of any cloud or taint. If, in view of the circumstances touching the soliciting and collecting of the membership evidence, the Board is left in doubt it may use its discretion to order a representation vote to resolve that doubt.

7. In these cases, the union organizer, Mr. Armbruster, dismissed his pre-signing of mem-

bership cards as convenient and beyond reproach. The majority's comments respecting this practice are noted. Those receiving the cards in the mail would reasonably expect the cards to be blank. Given that this is not the case, how then can the Board determine which cards before it were or were not pre-signed? Clearly, this reduces the reliability of the membership evidence before the Board.

8. In my view, the Board cannot be persuaded that the true expression of the wishes of the employees have been obtained, when the process relied upon is one which undermines the validity and assurances the Form A-4 is intended to provide.

9. The events surrounding these certification applications include the dismissal of a previous application for Form A-4 irregularities; the soliciting of membership by way of malingering propaganda; and the pre-signing of cards such that properly obtained membership cannot be distinguished from that which was improperly obtained.

10. It is precisely these circumstances (when much cloud is cast over the membership evidence before the Board) which might best be remedied by the taking of a representation vote, and I would have so ordered.