United Food and Commercial Workers International Union v. Highline Produce Limited, 1995 CanLII 9980

[1995] OLRB Rep. June 803

3995-94-R; 4262-94-U; 4583-94-U United Food and Commercial Workers Interna­tional Union, Applicant v. Highline Produce Limited, Responding Party v. Theresa Sarkis, Intervener; Highline Produce Limited, Applicant v. United Food and Commercial Workers International Union, Responding Party v. Theresa Sarkis, Intervener; United Food and Commercial Workers International Union, Applicant v. Highline Produce Limited, Responding Party

BEFORE: Judith McCormack, Chair, and Board Members W. H. Wightman and R. R. Montague.

APPEARANCES: Cynthia D. Watson, Georgina C. Watts, Sheri D. Price, John Forster, Rev. Luis Munoz and Vincent Gentile for UFCW; Brian Burkett, Doug Gilbert, Damhnait Monaghen, Dr. Murray O'Neil, Art Kainz and Harry Enns for the employer; Patrick F. Milloy and Theresa Sarkis for the intervener.

DECISION OF THE BOARD; June 26, 1995

1. These matters include the first application for certification filed pursuant to the provi­sions of the Agricultural Labour Relations Act, together with two complaints alleging violations of section 91 of the Labour Relations Act.

2. At the outset of the hearing, the company raised a preliminary objection to the jurisdic­tion of the Board to hear these matters. The essence of that objection was that an agriculture industry division of the Board had not been designated in the manner contemplated by the Agricultural Labour Relations Act. Counsel argued that both the language of that Act and a task force report which preceded it indicated that in designating the agriculture industry division, the Chair of the Board must consult with the Agricultural Labour Management Advisory Committee, that it was contemplated that this Committee would make recommendations to the Chair with respect to Board members sitting in the agriculture industry division, and that the division would not be restricted to current members of the Board.

3. The union opposed the company's objection on the basis that failing to seek the advice of a particular interest group was not a matter that went to the Board's legal jurisdiction. Counsel argued that the Board became fully vested as of June 23, 1994 when the Agricultural Labour Rela­tions Act came into force, that the Chair had proceeded to designate the agriculture industry divi­sion, that a number of the recommendations of the task force had not been incorporated into the Act and that there was nothing in the Act which reflected a requirement to consult with the Agri­cultural Labour Management Advisory Committee. The employee intervening in one of the sec­tion 91 complaints took no position with respect to this objection.

4. After carefully considering the parties' submissions, the Board dismissed the prelimi­nary objection with reasons to follow. We now provide those reasons.

5. The Agricultural Labour Relations Act is divided into eight parts. Part VI includes the following provisions:

6. (1) The Agricultural Labour Management Advisory Committee established by the Minister is continued under that name in English and under the name Comitd consultatif patronal­syndical sur le secteur agricole in French.

(2) It is the function of the Committee to advise the Minister on labour relations in the agricul­tural and horticultural industries, including the operation of this Act, the establishment of infor­mation resources for persons to whom this Act applies and the establishment of educational and training programs for them.

(3) The Committee shall consist of such co-chairs and of such number of other members as the Ministry may appoint.

(4) Employers and employees shall be equally represented on the Committee and the Minister may provide for government representation.

Part VIII includes the following provision amending the Labour Relations Act:

27. (4) Section 104 of the Act, as amended by the Statutes of Ontario, 1992, chapter 21, section

42, is further amended by adding the following subsection:

(5.1) One of the divisions of the Board shall be designated by the chair as the agricul­ture industry division, and only it shall exercise the powers of the Board under this Act in proceedings to which the Agricultural Labour Relations Act, 1994 applies.

6. There is nothing on the face of these provisions which suggests that there is a require­ment that the Chair consult with the Agricultural Labour Management Advisory Committee before designating the agriculture industry of the Board, nor that the division cannot be limited to the current members of the Board. Counsel for the company was of the view that the phrase "ad­vise the Minister on labour relations in the agricultural and horticultural industries including the operation of this Act" included the right to make recommendations with respect to the designation of the agriculture industry division. It is difficult not to notice, however, that the Committee is to advise the Minister, while it is the Chair of the Board who designates the division. There is no pro­vision for the Committee to advise the Chair, let alone any right of consultation, and the absence of any legal requirement in this regard is quite consistent with the Board's status as an indepen­dent, quasi-judicial tribunal.

7. More conclusively, where the Legislature had intended there to be a right of consulta­tion, it said so expressly, for example, in section 26 which provides as follows:

8. (1) Within five years of the day Part v comes into force, the Lieutenant Governor in Coun­cil shall appoint a person to review that Part and its operation.

(2) The appointee shall prepare a report on his or her findings and submit it to the Minister.

(3) The appointee in conducting the review shall consult with the Agricultural Labour Manage­ment Advisory Committee.

(4) The Minister shall table the report before the Assembly if it is in session or, if not, at the next session.

(emphasis added)

This kind of language is notably absent with respect to the designation of the agriculture industry division.

8. We also find that the task force report is not particularly helpful in construing this legis­lation on the issue before us. We accept that it represents the recommendations of those who were on it, but it is quite clear from its contents that some of those recommendations made their way into the legislation in their original form and some did not. For example, the actual recommenda­tion in the task force report relied upon by counsel for the company is as follows:

Recommend that cases involving agricultural labour relations be adjudicated by an agricultural labour relations board whose personnel is drawn from the Ontario Labour Relations Board and appropriate agricultural organizations, such as the Farm Products Appeals Tribunal.

However, the legislation does not establish a separate agricultural labour relations board whose personnel is drawn from the Ontario Labour Relations Board and agricultural organizations such as the Farm Products Appeals Tribunal. Rather, it gives jurisdiction to a division of the Ontario Labour Relations Board. Similarly, there is a recommendation for the establishment of a pay research bureau which is not reflected in that form in the legislation. In other words, the existence and content of the task force report is equally consistent with the proposition that the Legislature decided not to include particular types of recommendations in the legislation. While background material such as the task force report may sometimes be of assistance to the Board in interpreting legislation, in this case its impact is simply ambiguous.

9. As a result, there is no legal basis for the company's objection. Since this panel is part of the Board's designated agriculture industry division, we determined that we had jurisdiction to hear these matters.

10. Parenthetically we note that the Board in its administrative capacity does endeavour to create and maintain a courteous, dynamic and professional relationship with its client community. In this regard the Chair took steps to contact the Agricultural Labour Management Advisory Com­mittee in early 1995 before these matters were filed to welcome the Committee's members to the Board's jurisdiction and provide them with information about the Board's role and operation. This was part of a normal administrative initiative in cordiality and goodwill, however, and not as a result of any legal requirement.

11. Turning next to the unfair labour practices complaint filed by the union, the parties agreed to leave that complaint together with the union's claim for an unfair labour practices certifi­cation under section 9.2 of the Labour Relations Act and the company's objection to that claim to the end of these proceedings, since it might not be necessary to deal with them depending on the outcome of the other matters. With respect to the complaint filed by the company, counsel with­drew paragraphs (a) to (f) of the pleadings. He also conceded that the remaining facts pleaded, even if they were assumed to be true, did not constitute intimidation, coercion or violations of the sections of the Labour Relations Act set out in the complaint. (This complaint was filed by former counsel to the company.) However, we were urged to consider the allegation with respect to the membership card of the intervening employee as going to the reliability of membership evidence in the certification application and to hear and determine it on that basis. The intervening employee did not comment on the complaint itself but also asked us to consider the remaining allegation in the context of the certification application, particularly since she had filed the same allegation in that application. The union argued that we should dismiss both the company's complaint and the allegation of the intervening employee which was repeated in the certification application for lack of a prima facie case.

12. We then ruled that in light of the company's concession that its complaint did not dis­close violations of the sections pleaded, the complaint would be dismissed. Because of the nature of the assertions with respect to the intervener's membership card, we were, however, prepared to hear and determine that allegation in the context of the certification application.

13. Moving now to that application, the parties were able to reach agreement with the assis­tance of a Labour Relations Officer on a number of issues involved in the certification application, including the status of the trade union and the description of the appropriate bargaining unit. The only remaining dispute that it was necessary to resolve was the membership allegation referred to above.

14. The parties called four witnesses in this regard. In assessing their evidence~ the Board applied the usual indicia of credibility, including the firmness of their memories, their ability to resist the influence of self-interest to modify their recollections, the consistency of their evidence and their demeanour. It is not necessary to recite all the conflicts in the evidence as described by these witnesses. After assessing the testimony before us, we concluded that the following sequence of events occurred.

15. On December 8, 1994, Reverend Luis Munoz and Vincent Gentile, two of the appli­cant's organizers, visited Theresa Sarkis and Tom Dunmore at Mr. Dunmore's house in Learning-ton. They introduced themselves to the two Highline employees who offered them tea, and then the four sat down to discuss the union's campaign to organize the company. The organizers reviewed material they had brought with them including a pamphlet on unionization, excerpts from the Labour Relations Act, several fact sheets on balancing work and family and labour law, and membership cards, and the Agricultural Labour Relations Act. They also explained the signifi­cance of membership cards and the percentage necessary for certification.

16. Ms. Sarkis asked a number of questions including what would happen if the company knew they were talking to a union, whether the union could protect them, whether the fact that they signed membership cards would be kept confidential, when the union would come in and so forth. She and Mr. Dunmore also complained about disciplinary warnings they had received from the company. The organizers asked them for the names, addresses and telephone numbers of other employees to build the campaign, and Ms. Sarkis provided some information in this regard and identified the areas in which a number of employees worked. Ms. Sarkis and Mr. Dunmore also described some of the working conditions at the farm and how they could be improved, their bene­fits, and the case of an employee who had died several years ago~ allegedly because of unsafe con­ditions.

17. Reverend Munoz then asked the two employees if they would like to sign membership cards. Ms. Sarkis agreed, and Reverend Munoz reviewed the information on the card with her. She then filled out the card and signed it. Her signature appears under this statement on the card: "I hereby request and accept membership in the United Food and Commercial Workers Interna­tional Union, and of my own free will hereby authorize the Union, its agents or representatives, to act for me as a collective bargaining agent in all matters including wages, hours and working condi­tions".

18. Reverend Munoz then signed both as a witness and to acknowledge receipt of the card, filled out a receipt and gave it to Ms. Sarkis. He put the card in his pocket, where it stayed for about twenty minutes. However he brought it out again as Mr. Gentile, who was completing Rev­erend Munoz's training as an organizer, wished to check it. Mr. Gentile asked Ms. Sarkis why she had put down her address as something other than Mr. Dunmore's, and Ms. Sarkis responded that it was her mailing address. Mr. Gentile put the card on the table and then asked Mr. Dunmore if he wanted to join as well. Mr. Dunmore responded that he would like to think about it a little more. Ms. Sarkis then got what the organizers referred to as "cold feet", and said that she wanted to think about it a little more, that maybe she would sign up other employees and use her card as a guide, and that she would give her card back with the others. Reverend Munoz returned the card to Ms. Sarkis.

19. The meeting last approximately two hours, after which Reverend Munoz and Mr. Gen­tile left. They concluded that Ms. Sarkis had changed her mind because Mr. Dunmore had not joined, and that she would give the card back to them when he did.

20. Subsequently, both Ms. Sarkis and Mr. Dunmore provided information to the union with respect to employees, their work departments and their addresses. About a week later, Mr. Gentile spoke to Ms. Sarkis by telephone and she provided the last names of some employees, and described a plant committee meeting where she said that the company was giving out free pizza and beer for the first time. Mr. Gentile asked whether she had been successful in signing up other employees and she said that some of the people were not ready to sign. Mr. Gentile responded that as long as they had their names and addresses, they could visit them. Reverend Munoz came back to Mr. Dunmore's house several more times to pick up Ms. Sarkis' card, but found no one home. On January 10th, he met Mr. Dunmore who told him that he had made up his mind, and signed a membership card. Reverend Munoz also asked Mr. Dunmore whether Ms. Sarkis was at home and whether she was ready to return the card to them. Mr. Dunmore told him that he should come back and get the card from Ms. Sarkis.

21. On January 17, 1995, Ms. Sarkis was suspended by the company for three days for swearing at another employee. Both she and Mr. Dunmore were angry about this and although the evidence at this point is somewhat confused, it appears she gave Mr. Dunmore her card, knowing that he would give it to the union but with some reservations on her part. Ms. Sarkis then went out to play bingo.

22. By that point, John Forster, an international representative for the union, had joined the campaign. Mr. Gentile thought that Mr. Dunmore and Ms. Sarkis would be good people for Mr. Forster to talk to about the organizing drive and to get a feel for the workplace. As a result, Reverend Munoz brought Mr. Forster to Mr. Dunmore's house to introduce him to Mr. Dunmore and Ms. Sarkis, to obtain information about the composition of the departments and to go over a list of employees and their classifications. He introduced Mr. Forster to Mr. Dunmore who was in the kitchen with two friends, and then left to work on other aspects of the campaign.

23. Mr. Forster joined Mr. Dunmore and his friends drinking beer, and they started to dis­cuss the workplace. A little while after Mr. Forster arrived, Mr. Dunmore handed him Ms. Sarkis' card. Mr. Forster asked him whose it was and Mr. Dunmore responded that it was Ms. Sarkis'. Since receipt had already been acknowledged on it and Mr. Forster was unaware of the earlier events, Mr. Forster asked him why he had it and Mr. Dunmore responded that it had been left there last time. Mr. Forster took the card but made a mental note to check with Reverend Munoz for more information since the latter had signed acknowledging receipt.

24. About an hour later, Ms. Sarkis arrived home. Mr. Forster overheard an exchange between herself and Mr. Dunmore which he thought was something to the effect that Mr. Forster should not have been there drinking. Mr. Forster and Ms. Sarkis said "hello", and about fifteen minutes later, Mr. Forster left. He did not ask Ms. Sarkis about her card at that point because he wanted to find out more about it first.

25. That evening he spoke to Reverend Munoz about the card, who explained that after Ms. Sarkis had signed it, she had asked for it back and had referred to using it to sign up other employees. The following day, Mr. Forster also spoke to Mr. Gentile about the card, and he con­firmed what Reverend Munoz had said. However, since Mr. Forster had received the card from Mr. Dunmore, Mr. Gentile asked him to go back and check with Ms. Sarkis, which Mr. Forster had already decided to do.

26. That night, January 18th, Mr. Forster and Mr. Gentile heard about Ms. Sarkis' suspen­sion from another employee. They were concerned that Ms. Sarkis might have been suspended because of her involvement in the union campaign, and Mr. Forster went to see her on January 20th, both to find out about the suspension and to check with her about her card. They discussed the suspension in some detail. Mr. Forster then said to her that he had her signed card and she replied that she knew this. He asked her why the card had been left originally, and she said that she wanted to keep it as a sample in case she signed someone up. He then asked her who was there when she signed her card, and she responded "the other two guys from the union referring to Mr. Gentile and Reverend Munoz. Mr. Forster said "Then you're okay with it, everything's all right?" and she replied in the affirmative. She was angry about her suspension and seemed satisfied that the union had her card at the time. She acknowledges that she did not ask for her card back, then or at any time after Mr. Dunmore gave it to Mr. Forster.

27. On the same day, but after this meeting, Ms. Sarkis approached Dr. Murray O'Neil, the company's president, about her suspension. Dr. O'Neil reduced the suspension to a one-day sus­pension.

28. On February 10, Mr. Gentile, Mr. Forster, and Reverend Munoz met to review the cards. Three days later, they also met with Walter Lumsden, the Form A4 declarant in this matter and reviewed them again. The only card that was out of the ordinary was that of Ms. Sarkis, and they discussed at some length whether they needed to list it on the A4 form. They decided that it did not need to be noted on the form.

29. The union filed the application for certification on February 15th, 1995, and notices to this effect were posted in the workplace. Ms. Sarkis told the Board that she was upset about the application, felt that it was her fault, and spoke to one of the company's part-time supervisors who is also a friend. He told her that she could write to the Labour Board. Subsequently a petition opposing the union was made available for employees to sign in the company's office. On February 21st, Ms. Sarkis wrote a letter to the Board making certain allegations about her card. She obtained the Board's address from one of the company's secretaries, and also provided the secre­tary with a copy of her letter.

30. On February 22nd, Mr. Forster visited Mr. Dunmore's house again to discuss the peti­tion. He knew that Ms. Sarkis had signed it, and since he understood that she was a solid union supporter, he thought she might feel badly about it. Accordingly, he told that if someone at work intimidated her into signing a petition, she should just "sign the damn thing". She told him that she did not feel intimidated, and that her card would not count as she had signed the petition. Mr. For­ster replied that it would count (the petition was untimely) but Ms. Sarkis did not accept this, and seemed convinced that it would not. She told the Board that she was angry at Mr. Dunmore at the time and left the house because he had "squealed" on the farm about the petition.

31. At the beginning of March, Ms. Sarkis approached Art Kainz, the company's personnel manager, because she had started receiving correspondence from the Board as a result of her let­ter. He advised that he could not help her, but he gave her a list of names of lawyers in the area who practice labour law for employers. She then retained a firm, although by the time of the hear­ing she did not seem to have any plan as to how she will be paying for their services. Finally, on March 9th, the union held a meeting and Ms. Sarkis attended, along with several other employees, including the part-time supervisor she had consulted previously.

32. The Board has addressed situations where employees have changed their minds subse­quent to applying for membership in a union on a number of occasions. In Havlik Technologies Inc., [1992] OLRB Rep. April 468, the Board said as follows in considering a case in which an employee had asked for his membership card back:

33. Finally, we turn to the allegation by Mr. Kelly that the applicant refused to return his card, and the exchange between Mr. Kelly and Mr. Grant at the entrance to the respondent's prop­erty. There was no dispute that when Mr. Kelly originally signed a card, he did so of his own free will and there was no suggestion of any technical defect or coercion in this regard. It was apparent from the evidence that after reading the respondent's letters of October 31st, Novem­ber 1st and November 2nd, which among other things refer to the possibility of employees returning their cards to the union, and after discussions with other employees, Mr. Kelly changed his mind about the benefits of unionization. We also accept that Mr. Kelly communi­cated his request to Mr. Grant to have his card returned when he visited the applicant's office. However, the Board does not treat a revocation, resignation or withdrawal of membership as cancelling out or invalidating that membership card for the purposes of the Board's assessment under section 7 of the Labour Relations Act. (See Caldwell Linen Mills Limited, [1967] OLRB Rep. Mar. 948 and Kraft Foods Limited, [1967] OLRB Rep. July 349) and for the Courts' view, see Re Royal Canadian Yacht Club and Hotel, Restaurant & Cafeteria Employees Union, Local 75 et al (1981), 1981 CanLII 2935 (ON HCJDC), 129 D.L.R. (3rd) 554 (Ontario High Court of Justice).

34. As the Board noted in DI-AL Construction Limited, [1982] OLRB Rep. Dec. 1822, the defi­nition of "member" in the Labour Relations Act is not affected by a purported resignation:

35. The respondent contends that since Mr. Faubert signed a resignation from mem­bership in the union, the Board cannot regard him as a union member for the purpose of determining the number of employees who are members of the union under section 6 of the Act. We do not agree. In determining who is a union member for the pur­poses of the Act, we are bound to apply the definition set out in section 1(1)(1). This section states that a member of a union includes someone who has signed an applica­tion for membership and paid a dollar to the union. Mr. Faubert performed both of these steps, and in our view the mere fact that he signed a purported resignation does not detract from this fact. This is not to say, however, that the Board will simply ignore a purported resignation from union membership. The Board's longstanding practice is to treat a purported resignation in the same manner as a statement of desire in opposition to a union's certification signed by a union member, namely, as an indication that the member has had a "change of heart" about union representa­tion. On the basis of such a change of heart the Board may direct the taking of a rep­resentation vote, notwithstanding the fact that the union would otherwise be entitled to automatic certification.

36. In other words, to be a member of a trade union under the Act for the purposes of our assessment under section 7, one need only have applied for membership in the manner stipu­lated by the Act and the Board's jurisprudence. Where an employee has applied but subse­quently changes his or her mind and wishes to revoke or withdraw that membership, it is treated by the Board like any other change of heart by an employee. It does not operate to somehow retroactively eliminate the fact of the original application. Rather, if it is filed with the Board in accordance with the Board's Rules, and if it is found to be voluntary, it may influence the exer­cise of the Board's discretion to direct a representation vote. As in the case of any other state­ment of desire in opposition to the union signed by union members, this is not because the revo­cation has any weakening or invalidating effect on a properly collected membership card which meets the requirements of the Act and the Board's jurisprudence. It is because a subsequent voluntary change of heart on the part of an employee casts sufficient doubt upon his or her continuing wish to be represented by a union that the Board often deems it advisable to direct a vote.

37. In Caldwell Linen, supra, the Board observed that statements in opposition to the union take a variety of forms, including references to withdrawing or revoking membership. Indeed, in this particular case, the first Material Processing petition speaks of employees wishing to have their "votes reneged". Regardless of whether a petition is framed in these terms or expressed as a change of view, the Board will treat it in the same manner because it represents the same type of event with the same consequences. If, of course, the wording of the petition is not clear, this may have an impact on the Board's decision with respect to the weight to be assigned to it. Nonetheless, this is a different issue from that of how an employee's subsequent change of heart is expressed.

38. At the time Ms. Sarkis filled out her card, signed it, and gave it to Reverend Munoz, she had applied for membership in the union. This is all that section 8 of the Labour Relations Act requires for her card to be counted. It is clear from the evidence that when Mr. Dunmore decided not to sign at that point, Ms. Sarkis had second thoughts. As the Board noted in Havlik Technolo­gies Inc., supra, these second thoughts do not nullify the fact that she properly applied for mem­bership in the union in the first place. All they do is suggest some doubt about her continuing wishes with respect to the union. There is a process by which employees can register a change of heart in these circumstances which involves filing a voluntary written statement with the Board prior to or on the day of the application for certification. If the result of such statements means that there is no longer membership evidence for fifty-five per cent of employees unaffected by con­cern about their continuing wishes, the Board will normally order a vote. In this case, however, Ms. Sarkis did not follow this procedure.

39. On the basis of the Board's jurisprudence, the union was not required to return Ms. Sarkis' card to her on December 8, but could simply have submitted it with the application for cer­tification. Ms. Sarkis would then have been free at that point to register her change of views about the union by using the above process.

40. What is unusual about this case is that the union did return the card to her. Should that put the union in a worse position, or reflect more significantly on the membership evidence than if its organizers had declined to return the card? We do not find this a cogent proposition. In legal terms, the membership card was still valid, but the employee had had a change of heart. There is no doubt that the union now had a practical problem; that is, that it could not submit membership evidence that it did not have. Nonetheless, the membership card which had been the subject of a proper transaction in the first place was not rendered defective because it was returned to the member at her request. There is no question of the union not accepting her card, because under section 8 of the Labour Relations Act acceptance by the union is not a requirement. Similarly, even if her request could be construed as an attempt to revoke her membership, it did not vitiate the fact of her original application.

41. Indeed, it is clear that Ms. Sarkis actually changed her mind several times in the course of these events: once when Mr. Dunmore decided not to sign initially, again when she was sus­pended and Mr. Dunmore had signed a card, and yet again after her suspension was reduced and she signed the late petition in opposition to the union. The Board is not in a position to track or monitor these changes where Ms. Sarkis did not comply with the necessary procedures under the Labour Relations Act.

42. Should the fact that Ms. Sarkis' initial change of heart occurred so quickly alter this analysis? We do not think so. Otherwise, we would be faced with varying results obtaining after different periods of time for employee reflection, a proposition likely to be at the very least arbi­trary in its effect.

43. We also conclude that while Ms. Sarkis was smarting from her suspension, she gave the card to Mr. Dunmore whom she knew would give it to the union, that she was aware that the union had it, and that even on her own evidence, never asked for it back. Given the assistance Mr. Dunmore and Ms. Sarkis had provided to the campaign, the fact that the card was delivered to the union after Mr. Dunmore had signed which was precisely when Mr. Gentile and Reverend Munoz had predicted, and Ms. Sarkis' apparent satisfaction that the union had her card on January 20th, the union was justified in assuming that all was well.

44. There was a tentative quality to the union's inquiries of Ms. Sarkis, and it may well have been that greater directness would have been wiser in the circumstances. Nevertheless, the union officials did attempt to satisfy themselves that Ms. Sarkis wanted the union to have her card and we find that she confirmed this.

45. Nor was there any need for the union to recite the circumstances of Ms. Sarkis' card as one of the exceptions on the A4 form which reads, in part, as follows:

46. I, Walter Lumsden, the UFCW Executive Assistant to the Canadian Director of the appli­cant, declare that, to the best of my knowledge, information and belief:

47. The documents submitted in support of the application represent membership evi­dence on behalf of 137 persons who were employees of the responding party in the bargaining unit that the applicant claims to be appropriate for collective bargaining, on the application date.

48. There were 200 persons who were employees of the responding party in the bargain­ing unit that the applicant claims to be appropriate for collective bargaining on the application date.

49. 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:

Since Ms. Sarkis did in fact sign her card, her signature was observed by Reverend Munoz and Mr. Gentile, and Mr. Lumsden was aware of this as a result of the meeting on February 13, 1995, the Form A4 is accurate and it was not necessary to list her card as an exception.

41. Finally, we did not find Ms. Sarkis' evidence to be credible, and her allegations were not borne out by the evidence. For all these reasons, we dismissed the allegations about Ms. Sarkis' card.

42. Following our ruling in this regard, the union withdrew its section 91 complaint and its request for certification under section 9.2 of the Labour Relations Act.

43. The material before us indicates that the applicant is a trade union within the meaning of section 1(1) of the Labour Relations Act.

44. In light of the parties' agreement, we also concluded that the following constituted a unit of employees of the responding party appropriate for collective bargaining:

all employees of Highline Produce Limited in the Town of Leamington save and except supervi­sors, persons above the rank of supervisor, mushroom biochemist, office and sales staff and per­sons employed on a seasonal basis.

45. In accordance with the Board's Rules of Procedure respecting applications for certifica­tion, the responding party filed a list of employees in the bargaining unit, together with sample sig­natures for the employees on that list.

46. In support of its application for certification, the applicant union filed documentary evi­dence of membership in the form of cards. The cards were signed by each employee concerned and indicated a date within the six month period immediately preceding the application date. The membership evidence was supported by a duly completed Declaration Verifying Membership Evi­dence. While a number of statements in opposition to the union were also filed with the Board, they were filed after the application date. As a result, the Board was precluded from considering them by section 8(4) of the Labour Relations Act.

47. The Board was satisfied on the basis of all the evidence before it that regardless of the three list disputes, more than fifty-five per cent of the employees of the responding party in the bargaining unit on February 15, 1995, the certification application date, had applied to become members of the applicant on or before that date.

48. As a result, we advised the parties at the hearing that a certificate would issue.

CONCURRING OPINION OF W. H. WIGHTMAN; June 26, 1995

1. I believe this decision is correct at law in terms of the Agricultural Labour Relations Act.

2. I do not wish to comment on the obiter with respect to the jurisdiction of this panel. I do wish to comment on paragraphs 11 through 41 which deal with Theresa Sarkis, the membership card she signed and its effect on the application of certification.

3. I think it is worthy of note that any ill-feelings generated by this part of the litigation relates to a single piece of hearsay evidence, albeit an important type of hearsay evidence because, when produced in sufficient quantity, it results in a trade union winning rights as the sole and exclusive bargaining agent without its support being tested by a vote.

4. When the Board grants bargaining rights, the expectation is that a collective agreement and an ongoing collective bargaining relationship will result. One hopes that that relationship, if not amicable, will at the least stand the chance of being accommodative.

5. In this case the harm may be minimal. Perhaps only Theresa Sarkis goes away angered and the employer somewhat querulous as to the actual extent of union support. In many cases, however, substantial numbers of employees seek to have a more direct say in the certification and to tell us of complaints real or imagined, founded or baseless, but redressable in their view only by a secret ballot vote. Their prayer is that the Board, acting within its discretionary power, grant such a vote.

6. It is my impression that, too often, certifications issued on the basis of membership evi­dence alone leave all three parties angry. Objecting employees feel angry because their voices have not been heard, employers because they feel the hearsay evidence does not reveal the true wishes of their employees, and the union because it suspects nefarious conduct by the employer in the face of their organizing efforts.

7. In such cases it seems to me a vote would be of great help in clearing the air. An employer faced with a clear majority of votes for the union would be more likely to approach nego­tiations with an accommodative attitude. Objecting employees would have had their say and might at least resign themselves to the wishes of the majority. The union would have a better assessment of its own support at the bargaining table. The Board would not be seen as part of the problem.

8. I can but wish we would exercise our discretionary power to order votes more fre­quently and in particular when we would have reason to believe the result might be to calm waters roiled during an organizing campaign.