[1995] OLRB Rep. June 851

4543-94-R Communications, Energy & Paperworkers Union of Canada (CEP), Applicant v. R. J. Ralph Automotive Limited, Responding Party v. Group of Employees, Objectors

BEFORE: Christopher Albertyn, Vice-Chair, and Board Members J. A. Ronson and B. L. Arm­strong.

APPEARANCES: Michael Church, Kim Ginter, Oliver Coburn, Paul Caicco and Art Lovean for the applicant; A. P. Tarasuk and Ron Ralph for the responding party; Cyril Abbass and Paul His-cock for the objectors.

DECISION OF CHRISTOPHER ALBERTYN, VICE-CHAIR, AND BOARD MEMBER B. L. ARMSTRONG; June 22, 1995

1. This is an application for certification of the applicant as the collective bargaining agent of the employees of the responding party. The parties are agreed that, in the event of the applica­tion being granted, the appropriate bargaining unit is:

all employees of R. J. Ralph Automotive Limited in the Town of Espanola, save and except managers and persons above the rank of manager.

2. The applicant is a trade union within the meaning of section 1 (1) of the Labour Rela­tions Act.

3. For the purpose of simplicity we will use the terms "the applicant" and "the Union" interchangeably, and also the terms "the responding party", "the employer" and "the Company".

4. The Company carries on business as Canadian Tire in Espanola.

5. There are 54 employees in the bargaining unit.

6. During the period January 18 to 23, 1995 fourteen employees signed a petition, which reads, "We, the undersigned employees of the Canadian Tire Store at 801 Centre Street, Espa­nola, Ontario DO NOT WISH TO BE REPRESENTED by the Retail Wholesale Canada Division of the United Steelworkers of America and oppose any Application of this Union or any other Union to be certified as our bargaining agent at Canadian Tire." The applicant contends that the petition is irrelevant, alternatively, in the event of the Board finding the petition to be relevant, the applicant disputes its voluntariness.

7. Thirty-three employees signed what, at this stage, we refer to as "union cards" with the applicant between January 28, 1995 and the date of the certification application, March 21, 1995. We have used the term, "union card" rather than "membership application card" or "membership card" because the authenticity of the card is one of the preliminary issues in dispute between the parties. Hence, leaving aside the effect, if any, of the petition, 60% of the employees in the bar­gaining unit have expressed the desire to have the applicant as their bargaining agent.

8. There is no employee who signed the petition after signing a union card of the appli­cant. In other words, no union card was signed before the signing of the petition.

9. The application, submitted on March 21, 1995, was accompanied by 33 signed union cards which comply with Rule 47, a list of employees (in alphabetical order) corresponding with the union cards, and a completed Form A-4 Declaration Verifying The Membership Evidence. Ostensibly the application complies with the requirements of Rule 43 and 47. These rules read as follows:

10. An applicant for certification as bargaining agent must also file not later than the application filing date:

(a) any membership evidence relating to the application;

(b) a list of employees, in alphabetical order, corresponding with the member­ship evidence filed;

(c) a declaration verifying the membership evidence filed in the form set by the Board.

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. The responding party posted notice of the application on March 28, 1995.

49. The responding party has filed a list of employees in the bargaining unit, together with sample signatures for the employees on that list. Comparisons have been made between the sample signatures and those on the signed union cards and the Board is satisfied that the signed union cards are authentic.

50. The application came before the Board previously and a decision was issued on April 20, 1995 in terms of which the applicant was directed to provide copies to the Board and to the other parties of the blank form of membership document (the union card) which it filed in support of this application.

51. The applicant has complied with that decision. The application has again come before the Board and at the hearing during the period May 1 to May 3, 1995, several preliminary objec­tions were made to the application on behalf of the objecting employees. The responding party supported certain of those objections. Those objections were argued and what follows is our deci­sion on those objections. We have dealt with the objections seriatim, describing the argument and our decision in respect of each objection.

Expedited hearings

14. The Registrar's practice is to schedule certification proceedings for hearing on consecu­tive days, Monday to Thursday of each week. This application was scheduled for hearing in that manner.

Argument

15. Mr. Abbass, for the objecting employees, argued that the Board has no authority to treat certification applications as expedited proceedings in the absence of a regulation designating sections 5 to 10 as sections to which section 104(14) of the Labour Relations Act ("the Act") applies. Accordingly, Mr. Abbass argued that this application should not be scheduled for hearing on consecutive days, but rather scheduled in the normal course for hearing on dates convenient to the Board and to the parties.

16. Subsection 104(14) reads:

17. (14) The Board may make rules to expedite proceedings to which the following provisions apply:

18. Section 11.1 (rights of access), 73.1 (replacement workers), 73.2 (use of specified replacement workers) or 92.1 (interim orders).

19. Subsection 93(1.2) (jurisdictional disputes) or 108(2).

20. Sections 119 to 138.

21. Such other provisions as the Lieutenant Governor in Council by regulation may designate.

22. Mr. Abbass argued that the Registrar treats certification proceedings as expedited pro­ceedings when she has no authority to do so. He contended that certification proceedings are not expressly referred to in paragraphs 1, 2 or 3 of subsection 104(14) of the Act, and there is no regu­

lation by the Lieutenant Governor in Council, under paragraph 4, which designates certification proceedings as expedited. Hence, it is beyond the authority of the Registrar to stipulate that certi­fication proceedings be expedited.

18. Mr. Tarasuk, for the responding party, drew the distinction between the notion of expe­dition generally and expedited proceedings as referred to in subsection 104(14). The verb, "expe­dite", in that subsection has a special meaning and implication. It enables the Board to establish a special body of rules for particular types of proceedings (those listed in paragraph 1 to 4 of the sub­section). It does not contemplate the inclusion of certification proceedings, in the absence of a proper regulation to that effect. He argued that while the Registrar has the authority to ensure expedition generally in the processing of proceedings before the Board, she has no general author­ity to treat certification proceedings as if they fall within that subsection. He contended that the Registrar's practice of scheduling the hearing of certification proceedings on a day-by-day, continu­ous basis amounts to treating such proceedings as if they are expedited, as contemplated in subsec­tion 104(14). He argued the expressio unius est exclusio alterius principle, that the mention of spe­cific applications of expedited proceedings in subsection 104(14) should properly be interpreted to imply the deliberate exclusion of other proceedings, like certification, from the expedited process.

19. Mr. Church, for the applicant, argued that a certification proceeding is a matter which needs to be dealt with expeditiously by the Board. It is a time-sensitive matter and the Registrar has the authority, in terms of the normal Rules of the Board, to set it down for prompt hearing. He contended that certification applications are not considered under subsection 104(14). Rather, under the Board's general powers, certification proceedings are scheduled for hearing as expedi­tiously as possible within the applicable rules. Mr. Church accepted the distinction made by Mr. Tarasuk between expedition generally and expedited proceedings as contemplated in subsection 104(14). He argued that the Board is not only empowered to deal with certification proceedings on a generally expeditious basis, but that has been the Board's practice since prior to Bill 40.

Decision

20. We accept the distinction made by Mr. Tarasuk and Mr. Church. There is a difference between generally handling cases in an expeditious manner - to ensure that a suitable, relatively swift remedy is available to a party in a matter in which the passing of time is an important consid­eration - and the provisions of subsection 104(14) of the Act, which enable the Board to make spe­cial expedited rules for certain specified proceedings in which great urgency obtains. Subsection 104(14.2) qualifies the special expedited rules which may apply to the expedited proceedings described under subsection 104(14). Subsection 104(14.2) reads:

(14.2) Rules made under subsection (14).

(a) may provide that the Board is not required to hold a hearing;

(b) may limit the extent to which the Board is required to give full opportunity to the parties to present their evidence and to make their submissions; and

(c) may authorize the Board to make or cause to be made such examination of records and such other inquiries as it considers necessary in the circumstances.

The normal procedures in a hearing may be amended or truncated under subsection 104(14) - there need not even be a hearing; the matter could be decided only on pleadings and documents filed by the parties; there could be an urgent scheduling of a hearing, without the opportunity to reply in writing; and so on. These are the kinds of variations which might be made to the normal hearing process. That is what makes them distinctive from a normal hearing.

21. The early set down of an application for hearing, with a stipulation by the Registrar that the matter be heard on a continuous basis, day-by-day, does not make that application an exped­ited proceeding under subsection 104(14).

22. The Registrar endeavours, by setting down certification matters for prompt hearing to provide an effective, fair and expeditious method for resolving disputes over the status of a union within a particular workplace. A certification application necessarily creates a level of uncertainty within the workplace(s) within which certification is sought. Management and the employees are poised to discover whether their relationship will be significantly transformed by the participation of a trade union, or not. Their daily interactions and their long-term expectations are somewhat suspended until they know whether the applicant union is to become part of their transactions, or not. That state of limbo is enhanced by the operation of the statutory freeze in subsection 81(2) of the Act (the "freeze" section). There is necessarily an element of disruption within the workplace while a certification application is pending. That is a reason for it to be determined as speedily as possible.

23. There is a further consideration. A purpose of the Act is to encourage the process of collective bargaining. If a union seeks, in an application for certification, to acquire the right to represent a bargaining unit, then, to encourage the process of collective bargaining, the Board should ensure that the application is determined as speedily as possible. If the union qualifies to be certified, then that process should be delayed as little as possible so that collective bargaining may commence at the earliest opportunity.

24. We have described compelling reasons why certification proceedings should be sched­uled expeditiously, albeit without limiting the extent and nature of the hearing itself. That is not say that, in appropriate circumstances, for some extraordinary and persuasive reason, the usual certification scheduling should not be altered or modified to accommodate a particular hardship. The matter is discretionary, but, in the absence of good cause to vary the usual fast-track practice, there is no reason to schedule the application differently.

25. The Registrar, in consultation with the Chair and upon such guidelines as may be issued by the Chair, schedules time-sensitive cases, including certification applications, within the Board's fast-track scheduling systems. Scheduling is primarily an administrative decision of the Registrar, exercised in accordance with the Board's overall scheduling policy determined ultimately by the Chair of the Board. Nonetheless, we allowed the issue to be fully argued before us. In the result, we accept the distinction drawn between expedition generally and expedition under subsection 104(14). The prompt scheduling of certification cases does not fall under subsection 104(14), nor does the Registrar purport to do so. No persuasive reasons have been advanced to suggest that the usual, fast-track scheduling of certification cases should not apply in this case.

26. Thus, we dismiss the first objection raised by the objecting employees.

Choice of venue

Argument

27. Mr. Abbass submitted that the further hearing of this application occur in Espanola, the location of the responding party. He argued that it made sense to hold the hearing there because all the witnesses live and work there and it is costly and inconvenient to bring witnesses to Toronto. Mr. Abbass said that the objecting employees could not afford to bring witnesses to Toronto. The case of the objecting employees was being prejudiced because they did not have the resources to convey their witnesses to Toronto. He did not seek to lead evidence in support of his submissions.

28. Mr. Tarasuk suggested that the proper approach of the Board is to assess the facts and circumstances in each particular case to determine where the hearing should occur. In other words, the venue should be treated not so much as a matter of principle, but rather as a matter of conve­nience, subject to the balancing of interests. Subject to the objecting employees advancing reasons why the hearing should proceed in Espanola, Mr. Tarasuk was willing to support the motion that the hearing proceed in Espanola because that is where the interested parties are located and it would make sense to hold the hearing there.

29. Subject to his overall submission that no further hearing is necessary in this application, and that the conditions for the grant of certification to the applicant have been met, Mr. Church opposed the suggestion that any further hearing of this application proceeds in Espanola. He took a similar approach to that recommended by Mr. Tarasuk, viz, that the determination of venue is a matter of discretion, not a matter of principle. He argued that Toronto is the Board's usual venue and that it should remain so unless there were compelling reasons to alter the venue. He submitted that there were no such reasons in this case. He referred us to Hemlo Gold Mines Inc., [1993] OLRB Rep. March 158, at 164 para. 11, and to Northwest Merchants Ltd. Canada, [1983] OLRB Rep. July 1138, at pg. 1142 para. 8.

Decision

30. In light of our further decisions, which follow, no further hearing is required in this application. Hence it is not necessary for us to decide this issue.

31. However it may be said that the practice of the Board is for the Registrar, in consulta­tion with the Chair of the Board, to determine the venue for the hearing of a certification applica­tion. The Registrar exercises her discretion with due regard to the financial strictures on the Board and the availability of Vice-Chairs and Board members, so that, as far as possible, absent cogent reasons to the contrary, certification hearings are scheduled to proceed in Toronto. In the absence of compelling reasons to locate a certification application hearing other than in Toronto, the default position is that the hearings will occur at the Board's premises in Toronto.

32. In this regard the considerations referred to in the Frade's Fruit Ltd., [1995] OLRB Rep. February 122 at 123 are apposite:

33. The Board is not unsympathetic to parties who may feel themselves unable to participate, or participate adequately, in Board proceedings for financial reasons. However, the Board's own increasingly limited financial resources means that this may occur in some cases. Simply stated, the Board is not able to travel out of town in all, or even many, of those cases in which one or more of the parties may request it. The Board's current travel policy, arrived at after both inter­nal discussion and external consultation, is not to travel out of town for those time-sensitive cases that fall within its "fast-track" scheduling system. These cases include:

(i) Applications for interim relief under section 92.1;

(ii) Expedited unfair labour practice complaints under section 92.2 of the Act;

(iii) Complaints with respect to unlawful strikes or lock-outs under sections 94, 95 and 137 of the Act;

(iv) Expedited applications and complaints with respect to replacement workers under sections 73.1 and 73.2 of the Act;

(v) Applications and complaints with respect to organizing and picketing on private property under section 11.1 of the At;

(vi) Jurisdictional Dispute complaints under section 93 of the Act;

(vii) Applications for certification and for termination of bargaining rights;

(viii) Applications for first contract arbitration under section 41 of the Act;

(ix) Applications and complaints alleging unlawful termination of employment under the Occupational Health and Safety Act, the Environmental Protec­tion Act, the Smoking in the Workplace Act, the Colleges Collective Bar­gaining Act, and under sections 65, 67, 71, 81, 81.2 or 82 of the Labour Relations Act;

(x) Applications under sections 41.1, 81.1 and 138.1 to 138.6 of the Act.

5. The reasons for this policy were articulated by the Board in Hemlo Gold Mines Inc., [1993j OLRB Rep. Mar. 158, as follows:

…….Funding and personnel limitations render it impossible for the Board to schedule fast-track cases outside of Toronto, as the system involves having on standy for fast-track and other expedited cases a rotating pool of Vice-Chairs and Board Members who, as cases settle or finish being heard, are frequently re-assigned to other urgent matters, often on a rush basis which would not be possible if a fast-track pane] were in a location away from Toronto such as Thunder Bay..

This policy represents the Board's best effort at balancing the needs of its constituency with its own operational requirements and financial resources. As the present case falls within the fast-track and presented no unusual circumstances, the Board determined that it would hear this case in Toronto.

Notice to the United Steelworkers of America

Argument

33. The objecting employees contended that notice of the application ought to have been given to the United Steelworkers of America. Counsel's reasons for this submission were the fol­lowing: that union had been organizing the employees employed by the responding party and that union has an interest in these proceedings; the United Steelworkers of America is expressly referred to in the petition of the objecting employees; the applicant ought to have referred to the United Steelworkers of America when it completed its application, Form A-i, at paragraph 7, which reads in the standard form:

34. The name, telephone number and facsimile number (if any) of any trade union known to the applicant which claims to represent any employee(s) who may be affected by this application:

At that place on the form the applicant entered, "N/A". Mr. Abbass argued that that entry was inaccurate because the applicant must have been aware, at the time of its organizing campaign, of the previous presence there of the United Steelworkers of America.

34. Mr. Tarasuk, for the responding party, supported the submission that notice of the application ought to have been given to the United Steelworkers of America. He argued that knowledge does not equal notice. He submitted that the United Steelworkers of America is an interested party and therefore should have been given notice of the application by the applicant.

35. As regards the applicant's failure to mention the United Steelworkers of America in paragraph 7 of Form A-i of the application, Mr. Tarasuk submitted that that paragraph has wide reference. It is not restricted only to certified unions, otherwise the form would have said so, but to any union, known to the applicant, which may have an interest in the application. The applicant was aware of the earlier organizing campaign of the United Steelworkers of America and it ought, therefore, to have made reference to that union in the form.

36. Mr. Tarasuk posed the question whether the United Steelworkers of America would be

given standing if it sought to intervene in the proceedings. If, for example, the Steelworkers were able to adduce evidence which might cast doubt upon the applicant's membership evidence, it would, on his argument, be permitted to intervene in the application. On this argument, the same standard should apply in respect of the giving of notice. If it could notionally be given intervenor status, it should equally be entitled to receive notice of the application. The United Steelworkers of America are potentially an interested party within the meaning of Domtar Inc., [1992] OLRB Rep. November 1184.

37. Mr. Church submitted that Mr. Abbass should not be permitted to raise this objection because it was untimely. The objecting employees had an opportunity to file a response to the application by March 30, 1995 (the terminal date), but the complaint concerning notice to the United Steelworkers of America was not made until May 1, 1995, when it was raised for the first time. The failure to raise the complaint by the terminal date should result in our refusing to con­sider it now.

38. Mr. Church, for the applicant, referred to the facts before the Board. There is no evi­dence of any following for the Steelworkers among the responding party's employees, there is no certification application filed by the United Steelworkers of America, there is no evidence of any interest in the application by that union and there is no evidence that any employees in the bar­gaining unit want to be represented by the United Steelworkers of America. Given these facts there is no reason, in Mr. Church's submission, for notice to that union.

39. Mr. Church argued that the proper test to be applied as regards notice was whether a union had established representational rights. In that event it should be referred to in the Form A-

1 and it should receive notice of the application, but not otherwise. Those circumstances do not apply in this case because the United Steelworkers of America does not have representational rights.

40. Mr. Church submitted that an effect of Bill 40 is that the application date is determina­tive of objections to a certification application. If the United Steelworkers of America had repre­sentational rights, then it had an opportunity to assert those rights before the application date. By failing to do so, it effectively waived any entitlement to notice in the application. He referred to Domtar Inc., supra, at 1190, para. 13 in support of this submission.

Decision

41. We accept Mr. Tarasuk's argument that knowledge of an application does not equal notice thereof. In this case there is no evidence as to whether the United Steelworkers of America in fact has knowledge of the application. But that does not matter because that union does not have a legitimate, legal interest to be formally notified of these proceedings. Paragraph 7 in Form A-i applies to unions which have a direct, legal interest in the outcome of the proceedings, not to those which have a merely speculative interest. We follow the approach of the Board in the Domtar case. During any open period (when there is no certified union or when a statutory open period occurs, e.g. during the last days of a collective agreement) there is a free opportunity for competition between rival unions in their respective endeavours to organize the workers con­cerned. There is no obligation between the competing unions to look to each other's interests by giving notice of their separate endeavours. There is an exception to this general "free for all". An applicant union, seeking to displace a certified, incumbent union during the open period, must refer to that union in paragraph 7 and give it notice of its certification application. The incumbent union must have been certified for the bargaining unit concerned, or it must have acquired repre­sentational rights through voluntary recognition. In other words, a union with representational rights, established through certification or by voluntary recognition, is entitled to notice of a certifi­cation application by a rival union, and should be referred to in paragraph 7 in Form A-4.

42. The notional comparison made by Mr. Tarasuk between the right of a party, in appro­priate circumstances to seek intervenor status, and the right of a party to receive notice of proceed­ings does not persuade us. The standard to be applied for the admission of a party as an intervenor may be the same as that for the right of a party to receive notice, but that is not necessarily so. There are circumstances when a party may secure standing as an intervenor in particular proceed­ings, yet not be entitled in the ordinary course to receive notice of the proceedings. Had the United Steelworkers of America appeared at the hearing, purporting to represent an objecting employee in the bargaining unit in respect of which the applicant seeks to be certified, the consid­erations as to its admission to the proceedings would have been different from those here. The question we must now decide is whether that union has a right to receive notice of the proceedings, not whether it has a right, on the basis of hypothetical facts not before us, to be granted intervenor status.

43. Considering the facts of this case, we know that the United Steelworkers of America may have been organizing the employees of the responding party during the period up to the sign­ing of the petition in January 1995. We learn that from the petition, and from a letter to the Regis­trar from counsel for the applicant, dated March 31, 1995, at p. 2 para. 3, which reads,

It will be our evidence that employees were intimidated into signing the petition and in any event they told our collector that they had signed the petition because they were intimidated and because they were led to believe that the petition was limited to expressing their desire not to be represented by the United Steelworkers of America which had attempted to organize employees earlier; and…..

There is no other evidence. The earlier presence of the United Steelworkers of America among the responding party's employees is irrelevant to this application. That union is not an incumbent union and it has made no certification application. It has expressed no legal interest in this applica­tion. Thus, there is no evidence in this case to suggest that the United Steelworkers of America has any right to standing in these proceedings, or that it should be given notice thereof.

44. Accordingly we find that the applicant completed paragraph 7 of Form A-i properly and that there was no need, nor is there any need now, for the applicant to give notice of this appli­cation to the United Steelworkers of America.

The form of the membership evidence

Argument

45. Mr. Abbass had two related submissions regarding the applicant's proof of member­ship. He argued firstly that it is not apparent from the union cards signed by employees of the responding party whether they were applying to join the applicant, whether they were actually becoming members of the applicant by signing the cards, whether they were doing both, or whether, in light of the ambiguous nature of the card, they were doing neither. On this argument, the cards do not clearly express the true intentions of the signatories and we should conclude that there is sufficient confusion as to the true intentions of the signatories to warrant the exercise of our discretion to require a representation vote.

46. Mr. Abbass's second submission concerns the applicability of subsection 105(4). That subsection reads,

105(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.

Mr. Abbass argued that it is necessary for the applicant to produce a copy of its constitution to establish that the signing of a card by the employees and their consequent admission to member­ship of the applicant meet the eligibility requirements of the applicant's constitution. If the appli­cant cannot establish that by reference to its constitution, then it ought to be required to lead evi­dence to prove an established practice to admit employees to membership without regard to the eligibility requirements of its constitution.

47. Mr. Tarasuk supported the above submissions to the extent of suggesting that the appli­cant ought to comply with subsection 105(4) by establishing the constitutionality of its admission of the responding party's employees as its members, failing which, the applicant ought to lead evi­dence of its practice concerning membership eligibility.

48. Mr. Church submitted that the card signed by the responding party's employees com­plied with the Act. It was a valid card which has been accepted in several previous proceedings before the Board and it clearly evinces the employees' statement of desire to apply for, and become, members of the applicant. That is sufficient compliance with the Act and it is not neces­sary for any additional evidence to be led to prove the applicant's constitution or to explain the consistency of its recruitment practices. Counsel referred us to the Hemlo Gold Mines Inc., deci­sion, supra, particularly paragraphs 30 and 24, respectively at pages 174 and 177 of the OLRB Report. He referred us also to Zellers Inc., an unreported decision of the Board of April 7, 1995, and to Roy Ayranto Sales Limited, [1994] OLRB Rep. March 285 in which the forms of member­ship evidence filed by a union in those cases were considered and found to be sufficient.

Decision

49. The applicant's membership card reads:

COMMUNICATIONS, ENERGY AND PAPER

WORKERS UNION OF CANADA

APPLICATION FOR MEMBERSHIP

Date:_________________________________ 19 ________

NAME:

ADDRESS:

Telephone No.

I hereby accept membership in the COMMUNICATIONS, ENERGY AND PAPER WORKERS UNION OF CANADA and agree to be bound by the Constitution of the Union and Amendments thereto and by-laws in effect or subsequently enacted by the Union and/or the Local to which I am assigned. I authorize same to act on my behalf for the purpose of entering into a collective labour agreement with my employer.

XSIGNATURE OF APPLICANT

Time:

Company:

Work Address:

Department:

Job Title:

Signature of Witness:

MEMBERSHIP CARD

COMMUNICATIONS ENERGY AND PAPER WORKERS UNION OF CANADA

Name:

XSignature:

Date:

Date:__________________________ 19

Witness:

SYNDICAT CANADIEN

DES COMMUNICATIONS,

DE L’ENERGIE ET DU PAPIER

DEMANDE D’ADHESION

Date: ___________________________ 19

NOM:

ADRESSE:

No de Telephone:

J’accepte par les presentes de devenir member du Syndicat canadien des communications, de l’energie et due papier et je consens a etre lie par les Status du Syndicat et ses amendments, par les reglements presentement en vigeur ou subsequemment adoptes par le Syndicat et/ou la Section Locale a laquelle je suis assigne. J’authorise ce Syndicat d’agir en mon norm pour fins de negocier une convention collective avec mon employeur.

XSIGNATURE DU POSTULANT

Heure:

Employeur:

Adresse de travail:

Departement:

Occupation:

Signature de Temoin:

CARTE DE MEMBRE

SYNDICAT CANADIEN DES COMMUNICATIONS, DE L’ENERGIE ET DU PAPIER

Nom:

xSignature De Membre:

Date: _______________________________ 19

Signature Du Temoin:

50. We are mindful of the helpful comments in Hemlo Gold Mines Inc., above, at 178 para. 36, which read:

51. The Act, as revised by Bill 40, instructs the Board to ascertain, upon an application for certi­fication, the number of employees in the bargaining unit who are members of the trade union on the certification application date or who have applied to become members on or before that date. Under the new Rules, the evidence which must be filed by an applicant to establish either of those alternatives is generally referred to as "membership evidence", and is required to be in writing, to be signed by the employee, and to disclose the date on which the employee's signa­ture was obtained. It is unnecessary for purposes of these proceedings to determine whether the Union cards filed by the applicant establish that the employees who signed them are members of the applicant. It is sufficient for the Board to find, as we do, that those cards indicate that the employees whose signatures they bear have applied to become members of the applicant, and that the cards meet all of the other requirements of the Act and the Rules. While the Union's constitution might arguably be of some relevance (subject to section 105(4) and (4.1) of the Act) if the Board were called upon in these proceedings to determine whether or not employees were actually members of the Union on the certification application date, it is of no relevance in determining whether employees "have applied to become members on or before that date". Thus, the Board declined to direct the Union to produce a copy of its Constitution as the Board was (and remains) of the view that it was not of any relevance to the matters in issue before us in these proceedings.

52. We take the view that the Board should not prescribe fixed and rigid descriptions of the membership evidence. In our opinion the applicant's card is clearly both an application for mem­bership and proof of membership. In both respects it complies with the Act. Since we find that it is an application for membership, subsection 105(4) has no application to it. The Board's principal purpose, when considering a certification application, is to determine whether the minimum statu­tory number of employees are members of the applicant trade union, or have applied to become members or have otherwise expressed a desire to be represented by that trade union. The certifica­tion procedure is not intended as a general invitation for the Board to scrutinize the internal pro­cesses of the union concerned. In this case the union card is sufficiently clear and unambiguous, in our view, to establish proof of the requisite membership evidence and of the manifest wish of the responding party's employee to become members of the applicant. Accordingly, we reject this objection.

Form A-4 - Declaration Verifying Membership Evidence

52. The Form A-4 filed by the applicant reads as follows:

Form A-4

LABOUR RELATIONS ACT

DECLARATION VERIFYING MEMBERSHIP EVIDENCE

BEFORE THE ONTARIO LABOUR RELATIONS BOARD

Between:

Communications, Energy & Paperworkers Union of Canada

701 Evans Avenue, Suite 200

Etobicoke, Ontario, M9C 1A3

Applicant,

• and -

Canadian Tire Corp.

Associate Store #22

Ontario

Responding Party,

• and -

Intervenor.

I Kim Ginter the Organizer/Representative of the applicant declare that, to the best of my

(name) (office)

knowledge, information and belief:

1. The documents submitted in support of the application represent membership evi­dence on behalf of 38 persons who were employees of the responding party in (number)

the bargaining unit that the applicant claims to be appropriate for collective bargain­ing, on the application date.

2. There were 51 persons who were employees of the responding party (number)

in the bargaining unit that the applicant claims to be appropriate for collective bargain­ing on the application date.

3. On the basis of my personal knowledge or inquiries I have made, the documents were signed by the employees indicated on the documents, except in the following instances:

DATED March 21, 1995

“Kim Ginter”

(Signature)

53. The insertions made to the standard form are the names and addresses of the parties, the name of the deponent, his office, the date, the deponent's signature and the numbers of per­sons, as required in paragraphs 1 and 2 of the form. The form was signed with no exceptions.

Argument

54. Mr. Abbass contended that the form is defective for several reasons. Firstly, he argued, the deponent must distinguish in the last paragraph, despite what is contained in the form, as between what he knows from personal knowledge and what he knows from inquiries made. Although the references to "personal knowledge" and to "inquiries" are disjunctive, on this argument the deponent must make alterations or additions to the form to clarify the distinction. Mr. Abbass suggested further that, in respect of inquiries made by the deponent, details of the inqui­ries must be provided, e.g. from whom, in what circumstances, etc. The form A-4 is so crucial to an assessment of the veracity and reliability of the written hearsay evidence of the Union's mem­bership, "a sacred document which seals the evidence" to use Mr. Abbass's description, that the fullest and most accurate disclosure should be made. He recommended the Board's approach in Pebra Peterborough Inc., [1988] OLRB Rep. January 76, substantially confirmed in Oshawa Group Limited, [unreported Board decision of April 5,1995, at pp. 39-41] [now reported at [1995] OLRB Rep. April 477].

55. Secondly, Mr. Abbass argued, the Form A-4 is defective because it fails to give any details of the procedure followed by the applicant in the signing of minors. The responding party employs several minors, who are part of the proposed bargaining unit. For the purpose of argu­ment the parties accepted that at least 12 persons under 18 years of age are employed by the Com­pany. Mr. Abbass suggested that a contract concluded by a minor, without parental approval, is voidable, and, if penal sanctions apply to the contract, possibly void ab initio. In such circum­stances it was incumbent on the applicant to declare~ in the Form A-4, what steps were taken to obtain informed and parental consent in respect of the minors who signed union cards. In the absence of any reference to such steps the form is inherently defective. Mr. Abbass referred us to the Age of Majority and Accountability Act. Furthermore, Mr. Abbass argued that it was incum­bent upon the applicant to produce its constitution in order to establish that there are no penal sanctions which might be enforceable against a member, because, if there were, then the member­ship of a minor may not only be voidable at the instance of the minor, but may in fact be void ab initio. Reference to the constitution and to the absence/presence of any potential penal sanctions against members ought to have been made in the applicant's Form A-4.

56. Mr. Tarasuk made the point that 12 minors of a bargaining unit consisting of 54 employ­ees is not an insignificant number. He argued that, out of an abundance of caution, a union should err on the side of the fullest disclosure, rather than the relatively minimal disclosure expressly required in the form A-4. The Union should have disclosed any potential problem in its applica­tion, including details of minors and any other potential difficulty with the application. The failure by the applicant to make such full and proper disclosure may render the whole application void, alternatively it may require that evidence be led to enable the applicant to explain the failure to make the appropriate disclosures on the form. The applicant needs to satisfy the Board that the membership of the minors employed by the Company has been properly procured.

57. Mr. Church, for the applicant, submitted that the Form A-4 filed by the applicant was entirely proper and that it was not necessary for the deponent to have made any fuller or better disclosure than was done. There is no obligation upon a deponent to disclose what inquiries s/he made for the good reason that such disclosure may breach the confidentiality of the process of obtaining and proving membership. The Form A-4 filed by the applicant makes no reference to any exceptions, in paragraph 3 thereof, because there are no exceptions.

58. Mr. Church argued that the objecting employees merely speculate that there may be problems which the A-4 form ought to account for, when there is no claim by the objecting employees as to the existence of any actual problems. There is no particularity by the objecting employees of any dissatisfaction by any minor with his/her signing of the Union's membership card, nor is there any suggestion that any minor employee of the Company did not understand the implications of what s/he was signing, nor any hint that a minor did not have parental consent to do so. No minor has come forward to challenge his/her membership of the applicant. There is nothing in the Act to suggest that a minor cannot become a member of a union, nor any suggestion that a minor's joining of a union is in any manner deficient, or different from that of any other employee. There is no provision of the Act, as regards union membership, which requires any special treat­ment of minors who are employees under the Act. In such circumstances, Mr. Church submitted, the validity and credibility of the form should not be doubted. He recommended the Board's deci­sion in Jones Wood Industries Inc., File Nos. 2454-94-R and 2838-94-U [unreported OLRB deci­sion of February 2, 1995] [now reported at [1995] OLRB Rep. Feb. 134], particularly paragraph 13 thereof, and Zellers Inc., File Nos. 4207-94-R and 4208-94-R [unreported OLRB decision of April 7, 1995]. The Board does not make its decision on the basis of suspicion, only on the basis of fact (International Chinese Restaurant, [1977] OLRB Rep. October 688, at 690, paragraph 7).

Decision

59. We find that there is no requirement in the Act, nor in the Rules, nor in the Form A-4 for the deponent to draw a distinction between that information which is known to him/her person­ally and that which is received by him/her through diligent inquiries which s/he may make. The form is sufficient in its unaltered form for reference to both types of information. If it were other­wise, then the form would indicate that details of inquiries ought to be made and such detail would then have to be furnished. That is not the case and it is not so for a good reason: it would be virtu­ally impossible to retain the confidentiality of membership information if the deponent to the dec­laration were obliged to reveal details of the person(s) from whom s/he obtained the relevant infor­mation. In the absence of unusual circumstances which must be brought to the Board's attention, the form is sufficiently completed if the vacant portions are filled and if the declaration is signed unaltered.

60. As regards the applicant's non-disclosure of minors within the bargaining unit and among its members, we accept the approach adopted by the Board in the Jones Wood Industries Inc., case, supra, which follows the Board's decision in Radio Shack, [1978] OLRB Rep. Novem­ber 1043, paragraph 30, namely, that the Board will accept the Form A-4 attestation "on its face unless allegations are made which, if proven, would cause the Board to find that the statements attested to therein are false." The Board would then conduct an inquiry into the bona fides of the form. In other words, there must be "facts alleged which, if proven, would cause the Board to find that the statements attested to therein are false" Jones Wood Industries Inc., case, supra, para­graph 13.

61. There are no factual allegations which, if proved, would lead us to believe that the Form A-4 is defective or false. There are no allegations, for example, of any minor wishing to resile from his/her union membership. (We do not intend to suggest, by offering this example, that a declarant must make reference to any minor who might wish to resile or who might have had a change of heart.) There are no particulars which might lead us to doubt the authenticity and valid­ity of the A-4 form submitted by the Union in support of this application. What has been suggested as a potential problem by the objecting employees is speculative and insubstantial.

62. Leaving aside any argument that might be made by a union faced with a challenge by a minor as to the validity of his/her membership, if such membership were voidable, then, in all like­lihood, the affected minor would have sufficient interest to make that submission. But the object­ing employees have no such interest. They have no entitlement to challenge the validity of a con­tract (if that is what membership, or an application for membership, of a union constitutes) which might be voidable at the instance of a minor or his/her parent.

63. If we take the objecting employees' position at its strongest, viz, that the applicant's constitution is so excessively onerous that a court would regard a minor's membership as void ab initio (rather than that the application of offending provisions should be severed from the remain-

ing provisions, or that the minor's membership with the applicant is voidable, but not void, or one of several further alternatives), then there ought to be some material basis for us to reach that fac­tual conclusion. But there is no fact alleged in the submissions of the objecting employees which might lead us to that conclusion.

64. In response to this approach the objecting employees contend that they do not have the means of proving the possibly oppressive portions of the applicant's constitution because they do not have a copy thereof, and they can obtain a copy only by order of the Board. The objecting employees seek such an order so that they may possibly show how the constitution might render the membership of a minor void. If they could do so, they argue, then the veracity of the Form A-4 would be in jeopardy.

65. To order production of the applicant's constitution for the speculative hope of the objecting employees to try to prove that minor employees of the responding party might be subject to unduly onerous terms of union membership would, in our view, be an inappropriate use of the production powers of the Board. The purpose of litigation before the Board is to establish whether particular facts and circumstances justify particular relief. It is not the Board's function to aid a party by speculatively eliciting information which that party might use to defeat its opponent's case (International Chinese Restaurant, supra, at 690, paragraph 7). The Board will order production of documents in circumstances when there are material facts pleaded which suggest that the docu­ments will be relevant to determine a question of fact or law. But the Board will not order produc­tion of a document on an entirely speculative basis, purely to enable a party to investigate whether or not a case can be made by reference to that document.

66. In the circumstances we find no substance to the objection. The applicant's Form A-4 is proper in its current form and we have no reason to doubt its veracity or its reliability. There is no need for the applicant to provide any testimony to amplify its content. It is sufficient in its current form to establish the requisite membership evidence.

Mr. Terry Chartrand's role

67. In the written submission of the objecting employees, entitled WISH TO PARTICI­PATE, filed on March 30, 1995, the terminal date for this application, the following appears at paragraph 9 thereof:

The membership evidence is not a clear indication of the employees wishes as it was obtained with the active assistance of Terry Chartrand, a supervisor who is or is perceived to be a mem­ber of management who could adversely affect the terms and conditions of employment of those he was encouraging to sign union cards.

68. In response to thereto, on April 6, 1995, the applicant's counsel wrote a letter to the objecting employee's counsel, in which, at paragraph 9 thereof, is contained the following request:

The Applicant denies that any of the membership evidence was obtained with the active assis­tance of the employee Terry Chartrand, and requests particulars as to when, where, what, how the petitioner alleges such misconduct occurred.

69. No particulars have been provided by the objecting employees.

70. The applicant and the responding party are agreed that Mr. Chartrand falls within the bargaining unit and that he is not a manager.

71. The applicant denies any involvement by Mr. Chartrand in its organizing campaign, and it specifically denies the content of the objecting employees' said paragraph 9, but, purely for the purpose of argument, paragraph 9 is accepted at face value.

72. Mr. Abbass submitted that certain limited particulars can be provided, if required by the Board, which suggest that Mr. Chartrand had some influence over one particular employee's decision to sign a union card. He did not suggest any undue influence, coercion or intimidation, merely that Mr. Chartrand had some influence over one employee's decision to join the Union.

73. The issues to be decided are whether, particularized or not, the objecting employees' allegation concerning Mr. Chartrand is such as to require this application to go to a hearing to enable the parties to adduce evidence in respect thereof and, if so, whether or not the Board should require, or permit, the objecting employees to file the particulars requested by the appli­cant's attorneys.

Argument

74. The responding party did not engage in the argument of this issue, expressly disavowing any interest in it.

75. Mr. Abbass argued that the crux of the objecting employees' allegation is that Mr. Chartrand is perceived to be a member of management. Assuming that to be the case, any effort by him to recruit employees into the Union must taint the voluntariness of the process. What is crucial is not so much whether Mr. Chartrand actually falls within management or within the bar­gaining unit, but rather where he is perceived to be by the employees. If they perceive him to be part of management, then his involvement taints the voluntariness of the process of recruitment into the Union.

76. Mr. Church argued that the objecting employees should be precluded from proceeding with the averment concerning Mr. Chartrand because the particulars requested by his office had not yet been supplied by Mr. Abbass. We reserved our decision on this request, pending argument on the general merits, if any, of the averment.

77. In the alternative, and reserving the right, if necessary, to challenge the allegation that there was involvement by Mr. Chartrand in the applicant's organizing campaign, Mr. Church sub­mitted that as a member of the bargaining unit, albeit in a supervisory position, Mr. Chartrand was entitled to engage in the Union's organizing campaign provided he was not guilty of any conduct which amounted to coercion, undue influence or intimidation. No such conduct is alleged in the objecting employees' averment. The averment goes no further than to suggest the possibility that Mr. Chartrand could conceivably adversely affect the terms and conditions of employment of those he encouraged to join the Union. That on its own, Mr. Church contended, is not sufficient to establish that Mr. Chartrand's involvement was unlawful. As a member of the bargaining unit, and ostensibly not acting on the instructions of management, Mr. Chartrand could lawfully encourage his fellow employees to sign union cards. In the absence of any allegation that Mr. Chartrand did in fact threaten to prejudice any employee who did not join the Union, he acted lawfully in encour­aging employees to join. Mr. Church referred us to the decision in Bannerman Enterprise Inc., [1994] OLRB Rep. November 1489, which describes an analogous case, and to Versa Services Ltd., [1995] OLRB Rep. January 79.

78. Mr. Church submitted that, short of threats, intimidation or coercion, a member of the bargaining unit, regardless of seniority, was entitled to encourage employees to join a union, pro­vided the provisions of Section 13 of the Act are not violated. That section reads:

79. The Board shall not certify a trade union if any employer or any employers' organization has participated in its formation or other administration or has contributed financial or other sup­port to it or if it discriminates against any person because of any ground of discrimination pro­hibited by the Human Rights Code or the Canadian Charter of Rights and Freedoms.

Decision

79. There is no suggestion in this case that the responding party has in any manner breached the provisions of section 13 of the Act, whether through Mr. Chartrand or anyone else.

80. A principal purpose of the Act is to ensure that workers can freely exercise rights to organize, and to join and be represented by a trade union. Mr. Chartrand possessed that right, as did every other employee within the bargaining unit.

81. The allegation by the objecting employees against Mr. Chartrand is that he might have been perceived to be a member of management and hence some employees might have considered that they would be disadvantaged if they did not join the Union. The allegation in its present gen­eral form is not sufficient, in our view, to constitute a violation of the Act or to cast doubt upon the applicant's membership evidence. There must be detailed pleading of a threat of prejudice, of intimidation or of coercion to taint the membership evidence. Mere risk of a perception, without particularity, does not meet the threshold beyond which organizing activity becomes unlawful. Alternatively, material facts should be alleged that, as a member of management, Mr. Chartrand violated the provisions of section 13 of the Act. That is not alleged, nor is there any allegation that the Company is supportive of the applicant's organizing drive. In the absence of such direct plead­ings of misconduct or of official managerial support, organizing activity by a person perceived to be a member of management is not unlawful.

82. The allegation of Mr. Chartrand's influence lacks any specificity. The objecting employ­ees were expressly requested to supply particulars which might give substance to their bald accusa­tion against Mr. Chartrand. The applicant informed the objecting employees that the allegation of Mr. Chartrand's involvement in the union's organizing campaign was denied. The allegation was put in issue and, had the objecting employees wanted to pursue it, they ought to have furnished the particulars sought so that some substance and detail were given to their allegation. They failed to provide such particularity within the approximately three weeks period between the request for particulars being made and the hearing.

83. Mr. Abbass could provide no convincing reason as to why the particulars had not been filed prior to the hearing. He sought a further opportunity to do so. While we do not take the view that the particulars ought to have been furnished when the objecting employees first joined these proceedings, we are satisfied that when the broad allegation against Mr. Chartrand was contested by the Union, and when particulars thereto were sought, the objecting employees should have fur­nished those particulars. They chose not to do so and they incurred the risk that the application would proceed on the pleadings as filed.

84. We have not been given any reason to persuade us that the objecting employees should have a further opportunity to file particulars. Hence the allegation against Mr. Chartrand is decided on the bald allegation referred to above. That allegation is insufficient to suggest any vio­lation of the Act by Mr. Chartrand or the Union, nor are material facts pleaded (as opposed to mere allegations) which would even arguably suggest that any of the membership evidence filed by the union is not reliable. Accordingly, we are not persuaded that evidence on this aspect of the case is necessary, and this objection to the application is dismissed.

The relevance of the objecting employees' petition

Argument

85. For ease of reference we repeat the evidence concerning the petition. 14 employees (of a bargaining unit of 54) signed a petition against being represented by the Retail Wholesale Canada Division of the United Steelworkers of America and against that union, "or any other Union", being certified. Thereafter 33 employees in the bargaining unit signed the applicant's union card.

86. Mr. Church argued that the objecting employees' petition, signed in January 1995, did not expressly refer to the Union, except generically. It was plainly directed primarily against the United Steelworkers of America. Furthermore, the petition was signed wholly before the signing of the applicant's membership evidence. For that reason, given the Board's substantial line of authority on the question (Minnova Inc., [1991] OLRB Rep. May 644 paragraph 35; Filsinger Lumber Ltd. c. o. b. as Beaver Lumber, (unreported) OLRB decision of January 14, 1993 in cases 0906-92-R and 1131-92-U; Meaford Beaver Valley Community Support Services, [1994] OLRB Rep. October 1375; Wendy's Restaurants of Canada Inc., [1994] OLRB Rep. December 1708; R.

J. Chartrand Holdings Limited, [1994] OLRB Rep. October 1407; Davis Distributing Limited, [1994] OLRB Rep. September 1190), the petition should be treated as having no bearing whatever upon the authenticity and reliability of the applicant's membership evidence. The petition should be regarded accordingly as irrelevant and no further consideration should be given to it. Alterna­tively, in the event that we find that the petition has some possible relevance (which, on submis­sion, we should not), then the Union contests its voluntariness.

87. Mr. Church submitted that membership evidence is treated by the Board as being of greater significance as an expression of employee intent than is a petition. Membership evidence -the signing of union membership cards - is treated as a more powerful expression of intent than is a petition (A-i Rent-A-Tool Ontario Ltd., [1995 (incorrectly appearing as 1994)] OLRB Rep. Janu­ary 1 at 3, paragraphs 12 and 13). Given that in this case the petition was signed wholly prior to the signing of the union cards, Mr. Church contended that the membership evidence is unassailable.

88. Mr. Abbass referred to the line of cases, mentioned above, which take the position, when the Board is faced with proof of membership evidence and a prior petition, that the last free expression of intention by the employees is to be treated as their actual intention. He argued that that position was appropriate before the passing of Bill 40 because, at that time, petitioners had an opportunity to file their opposition to a union's certification between the date of application and the terminal date. Workers received notice of the certification application and they could then object by way of a petition. In those circumstances, on this argument, it was reasonable of the Board, when faced with membership evidence, petitions and counter-petitions, to have regard to the most recent expression of intention. But the avenue of opposition formerly open to petitioners, between the application and the terminal dates, has been closed to them. Hence the approach of the Board should change. Given that the presumptions, upon which the jurisprudence developed, have changed, the jurisprudence itself should change.

89. Mr. Abbass submitted that Bill 40 has had the effect of enormously favouring an appli­cant union. The date of the certification application is entirely within the union's control, and hence favours it. Employees, who might wish to oppose a union s certification, may have no knowledge of the certification application until notice thereof is posted in their workplace, by which time it is too late for them to express their opposition. They can file a petition only if they get wind of an organizing drive and are lucky enough to time the filing of their petition prior to the date of the union's certification application. Only then will their petition have any bearing upon the Board's proceedings. Even then the applicant union has an advantage because it can plan its application when it chooses, perhaps ensuring the signing of additional union cards to suit its appli­cation date. Bill 40 has had the effect, on this argument, of turning an open and transparent pro­cess into one that is closed and opaque. An important safeguard of the process, the right to file petitions after the application date, has been removed. Hence the true intentions of the employees are no longer readily determined from what they have signed most recently prior to the hearing of the application.

90. Mr. Abbass and Mr. Tarasuk suggested, given these circumstances, that the Board should counter-balance the excessive advantage which unions have been given in certification applications by Bill 40. The only reasonable method of ensuring that the true intentions of the affected employees are ascertained is by a representation vote, alternatively by treating a petition, signed prior to the membership evidence, as being relevant. The old jurisprudence, appropriate before the passage of Bill 40, is no longer appropriate. If it is applied mechanically, without regard to the changed statutory circumstances, then an injustice is done to those employees who are opposed to certification. Their efforts to require an open, democratic assessment of the union's actual support are vitiated. Hence, counsel stressed, we should take a different view from that of the Board in the pre-Bill 40 period. We should not regard the last written expression of the employees' intent as being the most plausible indication of whether or not they want to be repre­sented by a union. The existence of a prior petition should necessarily cast doubt upon the subse­quent membership evidence.

91. On these submissions, Mr. Abbass argued that the petition signed in January 1995 should not be disregarded, nor dismissed, but taken into account in the overall assessment by the Board as to whether we should exercise our discretion to require a representation vote. Given that the applicant has disputed the voluntariness of the petition (in the alternative to the applicant's argument that the petition be treated as irrelevant), Mr. Abbass argued that we should hear evi­dence on the circumstances of the signing of the petition to determine whether or not it was freely signed. Only once we have that information can we properly exercise our discretion to decide whether or not a representation vote should be ordered. He argued, on the authority of the Re Fisher and Hotels, etc. Union, Local 261 case, Divisional Court 28 0. R. (2d) 462 ("the Fuller's Restaurant case"), that it would be an irregularity for us to overlook the prior petition and to treat it as irrelevant. In the interests of a fair hearing, we should permit the objecting employees to produce evidence of their petition, whereafter we will be in a position properly to assess whether to exercise our discretion to order a vote. In the absence of that evidence we will be deprived of an opportunity to gauge the mood of the employees and their attitude to the application.

Decision

92. The well-established approach of the Board in certification proceedings is that the last voluntary statement of intention will stand for the purpose of determining the level of a union's membership support (Minnova Inc., above, paragraph 35). That approach was adopted in Filsinger Lumber Ltd. c. o. b. as Beaver Lumber, above, at paragraph 22 in which the Board determined that an earlier petition is of little or no relevance in relation to a later expression of support for the applicant union:

93. . . . If an employee signs an anti-union statement but later repudiates that position, or later signs a new union membership card, the earlier document may be accorded little or no weight.

The same point is made in paragraph 31 thereof, when the Board states that "any doubt that the petition might cast on the wishes of these union members was dispelled by their subsequent confirmation of support for the union, either by signing a reaffirmation document, or signing a new membership card".

93. The facts in R. J. Chartrand Holdings Limited, above, are, to all intents, akin to those in this case. There the Board decided that "[s]ince the membership cards were signed subsequent to the petition, the petition cannot cast doubt on the wishes of those employees who signed cards" (paragraph 10 at 1409) and (at paragraph 12) the Board decided to give no weight to the prior peti­tion.

94. If we were to adopt the approach recommended by Mr. Abbass and Mr. Tarasuk, viz. that we reverse the long pattern of Board decisions which have regard only to the last free state­ment of the employees' intention, we would defeat the purpose of the Bill 40 amendments. The amendments removed the opportunity that existed after the application date to obtain and file fur­ther expressions of employee support or opposition. Those amendments were made in light of the Board's well established jurisprudence and, in relation to the certification process, were intended to limit the competition for union support and opposition to the period prior to the certification application date. What Mr. Abbass and Mr. Tarasuk ask of us is to reverse the clear intention of the Legislature in promulgating the amendments. If we were to disregard the unassailed member­ship evidence and to order a vote, as Mr. Abbass contends, we would counteract a direct purpose of the Act. Hence we are not willing to accord greater regard to the early petition than has been done by the Board in similar cases previously. We accept the Board's jurisprudence and we decide that the subsequent membership evidence has the effect of discounting or disqualifying the prior petition. We will not permit evidence of the circumstances of the signing of the petition because, even at its best as a voluntary expression of those employees who signed it, it does not cast doubt on the applicant's membership evidence.

95. The argument advanced by Mr. Abbass that the Board should alter its pre-Bill 40 approach to membership evidence and the calling of a representation vote was, in substance, advanced by him previously and unsuccessfully in Bannerman Enterprises Inc., [1994] OLRB Rep. November 1489, particularly at 1503 paragraph 75. The argument was rejected there (at paragraph 77), as here.

The Board's discretion to order a representation vote

Argument

96. Mr. Abbass's principal argument, underpinning the objections referred to above, is that given the above matters, particularly the petition signed within a short period of the gathering of the Union's membership evidence, the most democratic and efficacious method to determine the true intentions of the employees within the bargaining unit will be to permit them to have a repre­sentation vote. Not only should we have some doubt as to the true intentions of the employees, given the facts and factors referred to above, but in the interests of transparency and fairness to all concerned, we ought to order a vote in terms of our discretion under subsection 8(3) of the Act.

97. Mr. Abbass reiterated his argument as to the effect of Bill 40. He suggested that, since the window of opportunity between the application and the terminal dates for employees to change their minds had been removed by Bill 40, the Board should step in and reverse the Bill's adverse effects. On this argument, a free representation vote is the proper means of determining the true feelings of the employees.

98. Mr. Tarasuk argued inter alia that the Board's approach, which is to have regard to the employees' last expression of intention, creates a legal nightmare. That nightmare is readily over-

come by our ordering a vote. He suggested that the force of his argument was enhanced by the Bill 40 changes to the Act because those change mean that employees have been deprived of the opportunity to alter their views after the application date. He suggested that when the employees had expressed conflicting views on support for an applicant union, as in this case by petition and membership evidence, the confusion necessarily created thereby should be resolved by a represen­tation vote.

99. Mr. Church submitted that the approach of the Board to the ordering of a petition has been to do so only if there is a real reason to doubt the membership evidence. That doubt will be created if there is clear and cogent evidence of coercion, intimidation or undue influence. For a vote to be required there must be some significant taint of the membership evidence. There must be serious doubt cast upon the membership evidence; an untimely petition is not sufficient to exert such doubt. He argued that in this case there are no irregularities in the Union's membership evi­dence. Mr. Church referred us to several authorities in support of his argument, including International Chinese Restaurant, [1977] OLRB Rep. October 688; Lutheran Nursing Home (Owen Sound), [1994] OLRB Rep. October 1362; General Signal Limited, [1994] OLRB Rep. March 242; Reynolds-Lemmerz Industries, [1994] OLRB Rep. September 1242.

Decision

100. There are no irregularities in the membership evidence suggested by the objecting employees or by the responding party. As stated in International Chinese Restaurant, supra, at 690 paragraph 7:

101. The Board in this regard simply cannot be motivated by "suspicions" of a party to our pro­ceedings in dealing with the propriety or otherwise of membership evidence. . . . For the Board to conduct a judicial inquiry into the circumstances upon which membership signatures were secured, and without any allegation of wrongdoing, would necessarily entail the disclosure of the identities of persons who signed cards and, thereby, would cause a breach of the trust extended to us by the Legislature (section 100 of the Act.) In short, in absence of any allegation of wrongdoing, there must be a presumption in favour of the validity of the membership cards notwithstanding the particular national origin or mode of expression by the signatory thereto.

We adopt the same approach. There is no particularity of any irregularity which might lead us to doubt the Union's membership evidence. There is no absence of adequate disclosure by the appli­cant. Hence we have no doubts as to the validity of the membership evidence.

101. Mr. Abbass argued, in the alternative, that even if we did not have any doubt as to the authenticity or veracity of the membership evidence, we should still order a vote because that would transparently and accurately reveal the extent of the applicant's support in the bargaining unit. The argument lacks due consideration of the structure of certification required by the Act. The Act contemplates that a representation vote will be called only in circumstances of real doubt as to the true level of support among the employees who fall within the bargaining unit. That doubt may be created by insufficient membership evidence, by defective membership evidence or by evi­dence of a significant irregularity, such as coercion, intimidation or undue influence. The Act aims to expedite the process of certification. The problems of delaying a decision on certification are described above. The Act seeks therefore to enable representative unions to be certified upon the ready proof of their membership support, without the uncertainty and pressure which a representa­tion vote might have upon the affected employees. The logic of the Act as regards certification is aptly stated in Can-Eng Metal Treating Ltd., [1988] OLRB Rep. May 444 at paragraph 11:

102. The object in certification proceedings is to determine whether a majority of the employees in the bargaining unit found by the Board to be appropriate for collective bargaining wish to be represented by the applicant trade union in their employment dealing with their employer. The Labour Relations Act is structured so that, except where a pre-hearing vote is requested, the certification of trade unions in this Province is based primarily upon an assessment of the trade union's membership support as evidenced by membership records filed in support of the appli­cation. The Board does not inquire into opinions of the virtues of trade union representations except as evidenced by the applicant's documentary evidence and any timely petitions filed in opposition to the application. In Ontario, as in most Canadian jurisdictions, the representation vote exists as a residual mechanism for ascertaining the wishes of the bargaining unit employees in cases where either the applicant trade union does not have the support of more than fifty-five percent [now 40%] of the bargaining unit employees, which is necessary for outright certifica­tion under section 7(2) of the Act (but does have the support of not less than forty-five percent of them), or where the circumstances are such that the Board sees fit to direct that a vote be taken notwithstanding that there is documentary evidence showing membership support in excess of fifty-five percent. The Board's discretion in that respect must be exercised in a manner which is consistent with the legislated primacy of membership evidence as the means by which employee wishes are to be ascertained.

103. Similarly the Board expressed its view of the Act's scheme as regards certification in Lutheran Nursing Home (Owen Sound), above, at paragraph 13:

104. The Board orally ruled that it would not direct such a representation vote in the circum­stances. The scheme of acquiring rights under the Labour Relations Act is through the collection of and filing of membership cards (or applications for membership) in a union. While the Board may have a discretion to direct that a representation vote be held, it should exercise that discre­tion in a manner consistent with the intent and purpose of the Act, where the predominant scheme is to refer to and rely upon the filing of membership cards. Whatever the arguments in favour or a representation vote in every proceeding, in Ontario there need not be a representa­tion vote in each case, but only in certain narrow circumstances.

105. As stated in Reynolds-Lemmerz Industries, above, at 1246 paragraph 18, "the Board will only direct a vote . . . for compelling reasons and on the basis of cogent evidence", neither or which existed in that case, or in this.

106. We adopt the approach set out in those decisions. The Board must accept the primacy of the membership evidence unless there is good reason to doubt its authenticity or voluntariness. That approach obtains unless the level of support of the union, as evidence by the cards filed, is not sufficient to warrant certification without a vote, or if there is evidence which casts sufficient doubt upon such proof to warrant a vote. In the absence of such doubt, the Board accepts the membership evidence and grants certification without a representation vote. We follow that approach and we decline to order a representation vote.

107. Given all of the above conclusions reached by us, we find that the applicant is entitled to be certified.

108. Having regard to the agreement of the parties, the Board finds that:

all employees of R. J. Ralph Automotive Limited in the town of Espanola, save and except managers and persons above the rank of manager,

constitute a unit of employees of the responding party appropriate for collective bargaining.

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

108. 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 March 21, 1995, the certification application date, had applied to become members of the applicant on or before that date.

109. A certificate will issue to the applicant.

DECISION OF BOARD MEMBER J. A. RONSON; June 22, 1995

1. Those who savour the seasoning effect of Bill 40 on Board jurisprudence will have a sat­isfying time with the majority decision in this case.

2. For my part, and without saying more in these unsettled times, I would:

(a) Give notice of the proceedings to the United Steelworkers, who clearly have a provable interest in these proceedings;

(b) The notice would schedule a hearing for Espanola where we would hear from the employee petitioners who find themselves caught up in this case. (Those that have money can always come to Toronto - those that don't have money deserve our consideration.)

(c) The objecting employees should be allowed to give any further particu­lars that they wish about the conduct of Mr. Chartrand. In any event, they have already made an allegation which is complete on its face.

3. And I would so order.