[1996] OLRB REP. FEBRUARY 106

4078-94-U; 4106-94-R United Food & Commercial Workers International Union, Local 175 v. Vic Murai Holdings Ltd., Vic Murai, Robert M. Heenan Sales Ltd., and Robert M. Heenan, Responding Parties; United Food & Commercial Work­ers International Union v. Robert M. Heenan Sales Ltd., Responding Party v. Group of Objecting Employees

BEFORE: Lee Shouldice, Vice-Chair.

APPEARANCES: John Stout, Kelvin Kucey, Bill Kalka and Greg Logue for applicants; Arthur P. Tarasuk, Diane Hodder and Robert M. Heenan for responding parties Robert Heenan and Robert M. Heenan Sales Ltd.; no one appearing for Vic Murai and Vic Murai Holdings Ltd.; Cyril J. Abbass for group of objecting employees.

DECISION OF THE BOARD; February 20, 1996

I. Introduction

1These Board files are, first, an unfair labour practice complaint alleging a breach by the responding parties of section 65 of the Labour Relations Act ("the Act") and, secondly, an applica­tion for certification. A panel of the Board (differently constituted) ordered that these matters be heard together by way of decision dated March 9, 1995. These proceedings consumed 20 hearing days. As it is of relevance, I propose to outline the history of these proceedings at the outset of these reasons for decision. These two proceedings were commenced prior to October 4, 1995, and therefore the certification application was determined pursuant to the terms of the Act~ and not the Labour Relations Act, 1995.

II. Substantive Matters

(a) Background Facts

2It is important at the outset to outline, at the very least, a general overview of the back­ground facts to these Board files. On January 12, 1995, the United Food and Commercial Workers International Union, Local 175 (hereinafter "Local 175") applied for a certificate to represent cer­tain employees of a Canadian Tire franchise store located at 1000 King's Highway, Fort Frances, Ontario. At the time of that application the corporate entity which operated the franchise was Vic Murai Holdings Ltd. (hereinafter "Murai Holdings"). Murai Holdings filed a response to the application. Furthermore, one Mr. Niles Landherr filed, through his solicitor, Mr. Cyril J. Abbass, a document styled "Wish to Participate", prior to the expiry of the terminal date. This application was given Board file number 3606-94-R. The matter was to come on for hearing on February 13, 1995.

3On February 10, 1995, Mr. Abbass wrote to the Board and alleged that the membership evidence filed in support of the application made by Local 175 was, in fact, membership in the United Food and Commercial Workers International Union (hereinafter "the International"). In accordance with long-standing Board jurisprudence, counsel submitted that an application in the name of Local 175 could not be successful and urged the Board to dismiss the application. On Feb­ruary 13, 1995, this letter was forwarded by the Board to Mr. Kucey, on behalf of the Interna­tional. Furthermore, by way of letter dated February 8,1995, counsel for Murai Holdings (Mr. Tarasuk) wrote to the Board and, amongst other things, advised the Board that one Mr. Robert M. Heenan was in the process of purchasing the Canadian Tire franchise store in question, and that, accordingly, notice of the proceedings ought to be provided to Mr. Heenan. At the time, counsel for Murai Holdings was not acting for Mr. Heenan or Robert M. Heenan Sales Ltd. (the latter entity hereinafter referred to as "the employer").

4As noted above, Board File 3606-94-R was scheduled to come on for hearing on Febru­ary 13, 1995. On Friday, February 10, 1995, after 6:00 p.m., Mr. Kucey left a telephone message for Mr. Tarasuk at his office indicating that Local 175 had filed with the Board an unfair labour practice complaint (ultimately Board File 4078-94-U, which is before this panel of the Board). At the outset of the hearing on February 13, 1995, before a different panel of the Board, some discus­sion ensued regarding the proper course of the proceeding. Mr. Kucey, on behalf of Local 175, proposed that the unfair labour practice complaint filed on the previous Friday be heard with the application for certification then before the Board, and that it be heard immediately. For obvious reasons, that proposal was not acceptable to the Board.

5Ultimately, it was decided to adjourn the certification application to February 20, 1995. At that time, the parties proceeded with argument on what the parties agreed was the strongest argument raised by the group of objecting employees, namely the nature of the membership evi­dence filed by Local 175. Full argument was heard on the issue, and the Vice-Chair seized of the matter reserved his decision at the end of argument until 9:30 a.m. the next day. At that time, when the parties had reconvened, the Board indicated that a decision had not been reached. The Vice-Chair spoke with the parties and queried as to whether a third option was available rather than an "all or nothing" result. Local 175 was aware that a withdrawal request at that point would almost certainly result in dismissal, having regard to the point in time that the request would be made.

6Ultimately, Local 175 sought leave to withdraw its application, and the application was dismissed. (No decision was ever rendered on the issue of the nature of the membership evidence). However, at the same time that it was preparing to withdraw its certification application, the International filed an application for certification with the Board relating to this workplace (Board File 4106-94-R, with which this panel of the Board is seized). A request was made to transfer the membership evidence from Board File 3606-94-R to the new Board file, and that was subsequently effected by the Board. The matter was processed, and the employer responded to the application. Mr. Niles Landherr once again filed a "Wish to Participate". The application for certification and the unfair labour practice complaint came on for hearing before this Vice-Chair of the Board on Monday, March 20, 1995, the hearings to continue from day-to-day until completed or otherwise disposed of.

7At the outset of the hearing of these matters, counsel for the employer and counsel for the group of objecting employees raised a number of motions to be dealt with by the Board. These matters were dealt with in an order that made sense to the Board and oral rulings with or without reasons were delivered at appropriate times during the course of the proceedings. This decision records those rulings and contains the reasons for the rulings made.

(b) Notice to Vic Murai and Vic Murai Holdings Ltd.

8The first issue dealt with by the Board was whether proper notice of the unfair labour practice complaint had been served on Mr. Vic Murai and Murai Holdings. The Board file indi­cates that the appropriate documentation, including a Notice of Hearing, was sent to Mr. Tarasuk, as counsel, and to Mr. Murai and Murai Holdings on February 27, 1995 by way of first class mail. At the hearing, Mr. Tarasuk raised the issue of notice (as he had done in a letter to the Board pre­viously). Mr. Tarasuk, in response to a question from the Board, advised that his retainer with Mr. Murai had ended on February 13, 1995 once Mr. Murai had sold his business, and that his final account to Mr. Murai had been sent on February 14, 1995. He also stated that he had been retained by Mr. Heenan, on his personal behalf and on behalf of the employer, on February 16 or 17, 1995. He stated that he had not spoken to Mr. Murai since February 13, 1995 and that Mr. Murai had left the province, and currently resides in Manitoba. Accordingly, when served on behalf of Mr. Murai and Murai Holdings on February 27, 1995, he no longer acted for these two persons and it was not otherwise evident that notice had been served.

9Mr. Heenan, who was present at the hearing that day, advised the Board that his store had received materials from the Board, addressed to Mr. Murai and Murai Holdings, and that administrative staff in his offices had put the materials, unopened, with other correspondence into larger envelopes and mailed them to Mr. Murai at his personal address in Dauphin, Manitoba.

10After entertaining argument from the parties, the Board ruled that proper notice of the unfair labour practice proceeding had been provided to Mr. Murai and Murai Holdings. Section 115(1) of the Act provides as follows:

115.-(1) For the purposes of this Act and of any proceedings taken under it, any notice or com­munication sent through Her Majesty's mails shall be presumed, unless the contrary is proved, to have been received by the addressee in the ordinary course of mail.

A plain reading of this provision, when applied to the facts of this case, leads to the conclusion that Mr. Murai and Murai Holdings have, presumptively, received notice of the hearing scheduled for Board file 4078-94-U. There is no other evidence before the Board to suggest that notice was not received by these two parties. Therefore, in accordance with the provisions of section 115(1) of the Act, the Board ruled that notice of the hearing had been received by Mr. Murai and Murai Hold­ings, and that the proceeding would continue.

(c) Composition of the Panel

11Counsel for the employer and counsel for the group of objecting employees submitted in argument that this panel of the Board was not composed appropriately, having regard to the requirements of the Act, and in particular section 104(12) 2(i) of the Act, which reads as follows:

104.(12) Despite subsections (9), (10) and (11), the chair may sit alone or may authorize a vice-chair to sit alone in any of the following circumstances to hear and determine a matter and to exercise all the powers of the Board when doing so:

2. In the case of any other proceeding,

(f)the chair considers that the possibility of undue delay or other prejudice to a party makes it appropriate to do so.

This Vice-Chair of the Board was assigned to hear this matter alone by the Chair of the Board, by way of written authorization dated March 20, 1995. In this case, the reason for the authorization was that the Chair considered it appropriate for a Vice-Chair to hear these matters alone in light of the possibility of undue delay due to the large number of days anticipated to complete the hearing.

12The issue raised by counsel has been dealt with by the Board on at least three separate occasions. In Robert Dumeah, [1994] OLRB Rep. June 655, the Board made the following obser­vations:

7. The statutory scheme set out in subsections 104(12) and (12.1) of the Act grants to the Chair (or Alternate Chair) a discretion in determining the composition of the Board in a particular proceeding. The exercise of this discretion is an executive act, made on a purely administrative basis.

8. The instant complaint relies upon numerous sections of the Act, which fall under different parts of section 104(12). Under section 104(12)1, applicable to proceedings brought in respect of sections 69 and 70, amongst others, the Chair is given the authority to sit a Vice-Chair alone where the Chair considers it advisable to do so, or if the parties consent. In the case of any other proceeding (section 104(12)(2)), the Chair's discretion can be exercised where the Chair consid­ers that the possibility of undue delay or other prejudice to a party makes it appropriate to do so, or if the parties consent. It is common ground that the parties did not here consent.

9. There may be occasions where scheduling problems or other difficulties in constituting a tri­partite panel can lead to undue delay or other prejudice to a party. One purpose of these new legislative provisions was to deal with this problem, to provide the Chair with the ability to ensure that Board hearings proceeded expeditiously, consistent with the truism that "labour relations delayed is labour relations denied". It would be inconsistent with that purpose if the Chair had to afford an opportunity to parties to a proceeding to participate in the decision as to whether a single Vice-Chair sits alone or not. Parties would have to be given adequate notice of the decision of the Chair that she might exercise her discretion, a meaningful opportunity to par­ticipate in the process, and arguably, reasons for the Chair's eventual decision. To read the stat­utory scheme as requiring such a process would undermine the very purpose of the scheme. Hearings would inevitably be further delayed if the Chair considered exercising her powers to reduce delay.

10. Section 104(12)1 limits the Chair's discretion to where the "Chair considers it advisable". This is a general, unrestricted discretion which in essence depends upon the Chair's opinion. And it is only the "possibility" of undue delay or prejudice which need be present under section 104(12)2. The powers in this subsection are thus dependent, if at all, upon the opinion of the Chair as to whether a possibility of undue delay or other prejudice is present. It is the mere pos­sibility that triggers section 104(12)2, and it is solely the Chair who is to consider this possibility.

11. When the particular language is considered, in the context of the overall scheme for consti­tuting panels, and in light of the purpose of the Board and of section 104(12), the decision exer­cised by the Chair, pursuant to section 104(12), is properly characterized as purely administra­tive in nature. The Chair need not provide an opportunity to the parties to the proceeding to participate in this decision, nor is the Chair required to issue written reasons justifying the exer­cise of her discretion. To require either of these actions would effectively defeat the very pur­pose of the statutory amendment. Accordingly, I ruled at the hearing that the case would pro­ceed before me.

Subsequently, in Consumers' Distributing Company Limited, [1995] OLRB Rep. Mar. 250 (appli­cations for judicial review dismissed on May 24,1995), the Board stated the following in response to a similar argument:

6. At the stage of proceedings at which the Chair's decision was made, the parties were contemplating calling as many as 15-20 witnesses over almost as many hearing days. Given the prior commitment of Board Members to other proceedings, and the usual exigencies of the scheduling process, assembling a three-member panel in these circumstances could have meant a hearing that would take months, rather than weeks, to complete. In labour relations matters, that kind of delay, occasioned solely by the scheduling process, is undesirable; in the context of certifica­tion proceedings, it is untenable.

7. In Dayco (Canada) Ltd. v. National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada) et al [1993] 2 5CR. 230, Cory J. recently com­mented (at pp.306 and 307] on the importance of expedition in the resolution of labour relations disputes, as follows:

Unresolved disputes fester and spread the infection of discontent. They cry out for resolution. Disputes in the field of labour relations are particularly sensitive. Work is an essential ingredient in the lives of most Canadians. Labour disputes deal with a wide variety of work related problems. They pertain to wages and benefits, to work­ing conditions, hours of work, overtime, job classification and seniority. Many of the issues are emotional and volatile. If these disputes are not resolved quickly and finally they can lead to frustration, hostility and violence. Both the members of the work force and management have every right to expect that their differences will be, as they should, settled expeditiously. Further, the provision of goods and services in our complex society can be seriously disrupted by long running labour disputes and strikes. Thus society as a whole, as well as the parties, has an interest in their prompt resolution.

Legislators have recognized the importance of speedy determination of labour dis­putes. By the enactment of labour codes they have sought to provide a mechanism for a fair, just and speedy conclusion of the issues. The legislators have gone further and attempted to insulate the decisions of the various labour boards, tribunals and arbitra­tors from review by the courts. In earlier times, the courts resisted legislative attempts to restrict their ability to review the decisions of various labour boards. However, over a period of time they have accepted the vital importance of labour tribunals and adopted a more restrained approach in reviewing their decisions.

Expressed in the context of arbitral proceedings, these comments apply with even greater force to certification applications where the very right to representation hangs in the balance.

8. It is an unhappy fact of our system of labour relations that organizing campaigns are fre­quently divisive affairs, pitting not only employer against union but employee against employee. Persons who have exercised their statutory rights by expressing their wishes in favour of unioni­zation fear retaliation from the employer, and employees who have opted not to do so may be ostracized, or worse, by their colleagues. In the short run at least, the result is an often patho­logically divided workplace which is sharply at odds with certain of the purposes of the Act (e.g. the promotion of "harmonious labour relations" set out in section 2.1). It is for reasons such as these that the Legislature made a number of recent amendments to the Act which are designed to ensure expedition in the resolution of disputes (see e.g. sections 92.2 and 104(14)), and which include section 104(12).

Finally, the comments of the Board in Bannerman Enterprises Inc., (unreported, Board File 0262-94-R, April 18, 1995), at paragraphs 6 and 7 should also be noted:

6. It is said that the Board was without jurisdiction to hear and determine this application as there was not a quorum as required by section 104(9) of the Labour Relations Act. This matter was heard by a Vice-Chair sitting alone pursuant to a designation by the Chair of the Board dated May 24, 1994.

7. This matter was fully argued prior to the commencement of the merits of this matter and the motion to reconstitute the panel was dismissed. Since January 1, 1993, section 104(1) has been subject to section 104(12) which gives the Chair the discretion to sit Vice-Chairs alone in certain circumstances. We are not of the view that section 104(12) requires that the Board seek submis­sions or consent of the parties prior to the Chair's exercising her discretion in a particular case. I adopt the reasons set out in Robert Dumeah, [1994] OLRB Rep. June 655 on this issue, and agree that to read the statutory scheme as requiring such a process would undermine the very purpose of the scheme: expedition.

This panel of the Board is in agreement with the views contained in these decisions.

13Counsel for the employer and counsel for the group of objecting employees made cer­tain other submissions which ought to be specifically dealt with. Mr. Abbass, who had written to the Board regarding many issues, including the composition of the panel, asserted that he was enti­tled to a hearing before the Chair of the Board, in order to make submissions on the issue of "undue delay or other prejudice", the criteria contained in section 104(12)2(i) of the Act. He requested on numerous occasions that the Board advise him when the Chair would be delivering reasons for her decision. Mr. Tarasuk also asserted that he was entitled to a hearing before the Chair. He went so far as to state that the hearing should be one of judicial style, in which testi­mony would be given and argument made. Alternatively, Mr. Tarasuk submitted that a Labour Relations Officer could be utilized to record the evidence (and, presumably, a prepared transcript would be provided to the parties and argument would follow before the Chair).

14These arguments must fail. As noted in the above three decisions of the Board, the authority vested in the Chair which is contained in section 104(12) of the Act is authority of a purely administrative nature, and is one that is exercised at the sole discretion of the Chair. Cer­tainly, parties who wish to make representations prior to any decision made by the Chair are enti­tled to make same by way of correspondence addressed to the Chair. However, the decision as to the composition of a panel of the Board is one for the Chair to make, and it is unnecessary for a hearing of any kind to be held prior to his or her decision. Nor is it necessary that "reasons" for his or her decision be provided to the parties. This approach is entirely consistent with the concept of "fairness" relied upon by counsel for the employer, as reflected by the case of Nicholson v. Regional Municipality of Haldimand Norfolk (1975), 1978 CanLII 24 (SCC), 88 D.L.R. (3d) 671 (S.C.C.). To satisfy the requirement of "fairness", it is not necessary to afford the parties an oral hearing on the matter. One of the criteria which is expressly contained in the subsection for consideration by the Chair is that of "undue delay". The "trial type" structure asserted by counsel would be utterly contradic­tory to the purpose of the section of the Act. It is, quite simply, manifest from the legislation that the structure proposed by counsel is inappropriate.

15For these reasons, this motion was dismissed by the Board.

(d) Nature of the Proceedings and Venue

16Counsel for the employer and counsel for the group of objecting employees next brought a motion in which it was asserted that the Board was without jurisdiction to sit on these matters on a Monday to Thursday, "day-to-day" basis. In substance, counsels' argument went thusly: The Board, in the decision of Hemlo Gold Mines Inc., [1993] OLRB Rep. Mar. 158, described the Board's practice concerning the location and nature of its hearings regarding applica­tions for certification as follows:

11. As regards the request that the hearing be held in Thunder Bay, it should be noted that the location in which a Board hearing is to be held is an administrative matter for determination by the Registrar, in consultation with the Chair of the Board. In order to expedite the hearing of certification applications and certain other highly time-sensitive matters, the Board has adminis­tratively extended the fast-track hearing system (which is mandatory for certain section 91 com­plaints by virtue of section 92.2 of the Labour Relations Act) to include certification cases and those other time-sensitive matters. Thus, certification cases (including the instant case) are scheduled to be heard on consecutive days, excluding Fridays, Saturdays, Sundays and holidays, until the hearing is completed, or as otherwise directed by the Board (which, under Rule 34, may adjourn a case on such terms as it considers advisable if it considers that the adjournment is consistent with the purposes of the Act). Funding and personnel limitations render it impossible for the Board to schedule fast-track cases outside of Toronto, as the system involves having on standby 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 panel were in a location away from Toronto such as Thunder Bay. (Within the limits of its resources, the Board accom­modates the legitimate interests of parties in minimizing the time and cost of their involvement in certification proceedings by scheduling and holding Labour Relations Officer's settlement meetings (such as the one held in Thunder Bay on February 17, 1993, in respect of this applica­tion) in regional centres such as Windsor, Ottawa, and Thunder Bay.

Furthermore, section 104(14) of the Act, clauses 1-4, provide for expedited hearings as follows:

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

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

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

107. Sections 119 to 138.

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

Counsel submits that it is apparent that the sections of the Act relating to applications for certifica­tion, being sections 6 to 10, are not found in section 104(14) of the Act. Accordingly, applications for certification are not capable of being subjected to the expedited hearing process unless a regu­lation is passed designating sections 6 to 10 of the Act as being subject to the expedited hearing rules. No such regulation having been passed, the expedited hearing process is "null and void" and the Board cannot continue to hear this proceeding on a "day-to-day" basis.

17In the Board's view, this argument must fail, and it was so ruled during the hearing. Any consideration of the scheduling of Board proceedings must commence by referring to sections 104(13) and 104(13.1) of the Act, which read as follows:

(13) The Board shall determine its own practice and procedure but shall give full opportunity to the parties to any proceeding to present their evidence and to make their submissions.

(13.1) The Board may make rules governing its practice and procedure and the exercise of its powers and prescribing such forms as it considers advisable.

There is no doubt that the Board has a great deal of latitude respecting the governance of its own practice and procedure, including the scheduling of hearings. There is nothing contained in section 104(14) of the Act which detracts from that. Section 104(14) of the Act merely provides that the Board may make special rules respecting the hearing of certain stipulated proceedings before the Board. In point of fact, the Board's Rules of Procedure contain particular rules respecting applica­tions relating to replacement workers, rights of access, and interim orders, amongst other things (see Rules 94 to 108). Subsection 104(14) of the Act does not speak at all to the ability of the Reg­istrar of the Board to schedule matters for hearing, be it on a "day-to-day" basis, or otherwise. In that regard, with the exception of matters which are specifically directed by the Act to be heard within a fixed number of days of the application (see, for example, statutorily expedited proceed­ings pursuant to s. 92.2 of the Act, and construction industry grievance arbitrations pursuant to section 126 of the Act), the Registrar is free to schedule proceedings before the Board in the man­ner that she feels is appropriate in all of the circumstances.

18No "rule" has been passed by the Board requiring that matters such as those before this panel of the Board be heard on an "expedited" basis, as is clear from a cursory glance of the Board's Rules of Procedure. However, the Board recognizes, as has the Supreme Court of Canada in Dayco (Canada) Ltd., supra (cited at paragraph 7 of the Consumers Distributing Company Limited decision, supra) , that it is critical for particularly divisive labour relations matters (such as applications for certification) to be dealt with as quickly as is reasonably possible. Accordingly, the Board has typically scheduled applications for certification to be heard on a "day to day" basis. As noted above, there is nothing in the Act precluding such scheduling by the Board. Merely because this proceeding is scheduled from day-to-day does not make it an "expedited" proceeding as defined by the Act.

19With respect to the venue of the Board hearing, that decision is an administrative one for the Registrar of the Board, to be made in consultation with the Chair of the Board. In this par­ticular case, the matter was scheduled to be heard in Toronto, and the parties, in correspondence, requested that the Board direct that the matter be moved to Fort Frances. The Registrar of the Board determined, with the input of the Chair, that it was appropriate to maintain these proceed­ings in Toronto. This panel of the Board subsequently entertained argument on this issue when it was raised by the parties during the hearing. There was no significant reason raised to suggest that the proceeding necessarily had to be heard in Fort Frances, except for the question of the atten­dance of two particular witnesses, which is discussed in greater detail below. (In point of fact, the hearing proceeded for ten hearing dates without viva voce evidence on the matters in dispute). Accordingly, this motion was dismissed.

20At this point in the proceedings, Mr. Abbass requested that the Board adjourn the pro­ceedings in order to provide reasons for the "bottom line" decisions reached to that date. The Board indicated to Mr. Abbass that, in accordance with Board jurisprudence (see, for example, Royalguard Vinyl Co., [1994] OLRB Rep. June 775), it was not inclined to do so. Mr. Abbass con­tinued to press for an adjournment and it was ruled at that point that the proceedings would not be adjourned. Immediately thereafter, Mr. Tarasuk repeated Mr. Abbass' request. Mr. Tarasuk asserted during this discussion that the Board had prejudged the argument made because of a com­ment made by the Vice-Chair regarding the "day-to-day" scheduling of this matter, and demanded reasons for the decision. Once again, Mr. Tarasuk was advised that the reasons would follow, as they have, in accordance with section 17 of the Statutory Powers Procedure Act and the above authority, which reflects the Board's general practice.

(e) Abuse of Process

21Subsequent to the above-noted ruling, the Board indicated that it wished to deal next with a number of issues relating to the unfair labour practice complaint. Mr. Kucey, on behalf of Local 175, advised the Board that he had received instructions from his client to seek a withdrawal of the unfair labour practice complaint. This, he asserted, was to expedite the disposition of the certification application.

22Not surprisingly, counsel for both the employer and the group of objecting employees strongly opposed this request. Each asked that the application be dismissed, with costs. The Board ultimately reserved on this decision, and requested counsel to provide written submissions regard­ing the issues of abuse of process and that of costs. At that time, counsels' attention was directed to the decision of Bellai Brothers Ltd., [1994] OLRB Rep. Jan. 2, regarding the jurisdiction of the Board to award costs. Subsequently, all counsel agreed to argue the abuse of process matter in conjunction with other allegations of abuse of process which had been made by counsel for the employer. Counsel withdrew their request for costs.

23Accordingly, the parties agreed to deal with the allegations of abuse of process. The Board inquired as to whether it would be possible, in light of the highly detailed pleadings filed by counsel for the employer, to reach an agreed statement of facts which could be utilized for the pur­poses of this motion. Although counsel could not do so on their own, after a great deal of discus­sion with the Board a large core of agreed-to-facts were established. Shortly before a brief recess, the Board asked Mr. Abbass and Mr. Tarasuk to enumerate any further facts for agreement by the applicant that each would want to assert on behalf of his respective client or clients for the pur­poses of this motion. A number of facts were identified by counsel. Eventually each clearly indi­cated that he had completed this exercise, and had no further facts that he wished to rely upon. Mr. Kucey, on behalf of the applicants, indicated that he had difficulty agreeing to many of these further allegations of fact asserted by counsel.

24Upon resumption of the hearing after the recess, the parties were asked to argue the abuse of process allegations on the basis of the agreed-to facts, and on the basis that the disputed facts put forth by Messrs. Tarasuk and Abbass were true and provable. The Board indicated to the parties that, if any of the "disputed facts" had a bearing on the Board's decision, one way or the other, then evidence would necessarily be required to be called to establish those facts. Otherwise, the decision would be rendered on the basis of those facts which were agreed to and those which reflected the "best case scenario" for the employer and the group of objecting employees. Mr. Kucey and Mr. Tarasuk, on behalf of their respective clients, agreed to this procedure. Mr. Abbass did not. He asserted that this process was "ludicrous". Counsel were nevertheless directed by the Board to make their arguments commencing on the next day of hearing.

25During the course of argument on this motion Mr. Abbass, on numerous occasions, alleged that he had been denied natural justice and/or the right to establish facts through cross-ex­amination. Such an assertion cannot be sustained. At one point during argument, Mr. Abbass asserted unfairness because during the establishment of the "agreed and assumed" facts he was not finished when the Board had stopped him from talking. Mr. Abbass was advised at the time that that was not the case. Prior to the recess referred to above, the Board continually asked both Mr. Abbass and Mr. Tarasuk if either had any further factual assertions he wanted to make in support of the motion. Each offered a number of factual assertions and then advised the Board that he was finished. There is no doubt that this matter was argued on the facts that Mr. Abbass specifically advised the parties and the Board that he wished to assert, and that he would have been satisfied with had the applicants agreed to stipulate them. It was only during argument when he wished to assert a new fact that he felt might be helpful that his protestations were made. Many of the facts asserted by Mr. Abbass were not pleaded by any party and could therefore have been (but were not) rejected by the Board pursuant to Rules 14 and 20 of the Board's Rules of Procedure.

26Finally, before outlining the argument and reasons for ruling on this motion, it should be noted here that the parties were advised that the Board would not rely on any facts raised by the parties that were not agreed to or assumed true as a result of the process referred to above. That approach has been maintained, except to the extent specifically noted. All counsel relied on the existence or omission of certain factual assertions during argument, but then on occasion urged the Board to take "judicial notice" of certain facts supportable of their own case. To the extent that certain facts are notoriously true, the Board was willing to take notice of them.

27The facts which were agreed to for the purposes of this motion are largely taken from the employer's pleadings and read as follows:

• The United Food & Commercial Workers International Union, Local 175 applied for certification with respect to the same employ­ees prior to the sale of the business to the Respondent. Said Applica­tion being processed as Board File No.: 3606-94-R.

• The Applicant, United Food & Commercial Workers International Union, Local 175 and the Applicant in the instant Application were formally apprised of the preliminary objection by letter from the objectors dated February 10, 1995.

• The said Application was scheduled for Hearing on February 13, 1995.

• At the February 13, 1995 Hearing the Board asked the parties to clearly identify a number of preliminary objections that had been raised with respect to said Application.

• In response to the Board's request the objections identified were inter alia an objection that the Applicant, United Food & Commer­cial Workers International, Local 175, was relying on membership evidence in the name of United Food & Commercial Workers Inter­national Union.

• At that time the Applicant resisted the objection on the grounds that the membership evidence was in fact in the name of the Applicant, United Food & Commercial Workers International Union, Local 175.

• The Hearing was adjourned for unrelated reasons and was resche­duled for Hearing on February 20, 1995.

• At the February 20, 1995 Hearing the Board asked the parties to make submissions with respect to the objection that the Applicant, United Food & Commercial Workers International, Local 175, was relying on membership evidence of the United Food & Commercial Workers International Union.

• In the course of these submissions with respect to this preliminary objection counsel on behalf of the Applicant, United Food & Com­mercial Workers International Union, Local 175, opposed the sub­stance of the objection and all assertions or notions that the member­ship evidence with respect to the Application Board File No.: 3606-94-R was membership evidence with respect to United Food & Com­mercial Workers International Union. He further asserted on behalf of the Applicant that the membership relied on in that Application was membership evidence in United Food & Commercial Workers International Union, Local 175.

• Representatives of the objectors and the Respondent Employer agreed to the holding of a "Representation Vote" however, the Applicant rejected resolution of the said Application and then argued preliminary objection by way of a "Representation Vote".

• The Applicant, United Food & Commercial Workers International Union, Local 175, further agreed that a sale of the business had occurred between Vic Murai Holdings Ltd., the Employer and Respondent, with respect to Application Board File No.: 3606-94-R and Robert M. Heenan Sales Ltd., the Respondent with respect to the instant Application.

• The Applicant, United Food & Commercial Workers International Union, Local 175, did not attempt to amend the Application nor did the Applicant request to amend the Application, nor did the Appli­cant in the instant Application seek intervention status even though the Applicant, United Food & Commercial Workers International Union, Local 175, with respect to Board File No. 3606-94-R [sic].

• The instant Applicant and/or the Applicant, United Food & Com­mercial Workers International Union, Local 175 Application Board File No.: 3606-94-R elected to reject a proposed "Representation Vote", elected to accept dismissal of the Application Board File No. 3606-94-R and has subsequent to the dismissal of the Application Board File No. 3606-94-R elected to apply the membership evidence that had originally relied on in Board File No. 3606-94-R in the instant Application, evidence of the membership that the Applicant categorized as evidence of membership in United Food & Commer­cial Workers International Union, Local 175.

• Board File 4016-94-R was filed with the Board on February 21, 1995 at 11:44 a.m.

The facts that were assumed to be true, for the purposes of this motion, are the following:

• At the beginning of a break on 21 February, 1995, an L.R.O. was involved in the process. Through the officer, it was agreed that a vote be ordered, but the union was to get instructions on section 91 only. Mr. Abbass was led to believe this.

• The union was not considering the vote, merely repreparing and refiling an application and representations were made to the Board that they were considering a vote.

• It was the union's position in Board file 3606-94-R that the cards were memberships in the Local. They argued they were not ambigu­ous, or memberships in both the Local and International, and that they were Local cards.

• Mr. Kucey did not limit his comments to this being a Local card at the hearing. His position was, at least, that it was a Local card and not ambiguous that it was a Local card. That was made in response to assertions that it was an International card. At no time did Mr. Kucey assert that the membership card stood for both Local and International membership.

• Mr. Kucey argued his case on one card but it turned out there were 2 cards. One was different.

• The receipt portion of a card was not produced, at the outset of the proceeding.

28After hearing argument on the above agreed facts, and the facts assumed true for the purposes of the motion, the Board recessed and, upon resumption of the hearing, provided the parties with the following decisions and reasons for the decisions:

Before me is a motion to dismiss Board file 4106-94-R, an application for certification. The employer and the group of objecting employees assert that the applicant, because of its conduct, and the conduct of its solicitor, ought to be precluded from automatic certification, at the very least, or have the application dismissed. I note here that some of the submissions regarding abuse of process have been taken into account with respect to the disposition of Board file 4078-94-U in which the applicant in that file has requested leave of the Board to withdraw the com­plaint.

I have, after a thorough review of my notes of argument, identified 22 separate assertions of conduct which constitute an abuse of the Board's processes. They range from quite serious alle­gations of misconduct on the part of the applicant, to more insignificant allegations such as the proposition that counsel's submissions on a particular assertion is, itself, an abuse of process.

Counsel placed before me a number of judicial and Board authorities which provide examples of conduct which constitute abuses of process in the civil and criminal courts and, of course, before the Board. I have reviewed all of the decisions; each is helpful in its own way as a description of what type of conduct can constitute an abuse of the Board's processes. It is evi­dent from the Board's jurisprudence that no one definition has ever been established - each case is determined by reference to the facts before the Board. Counsel referred me to the following authorities: Central Hospital [1971] OLRB Rep. Feb. 93; Repac Construction & Materials Limited [1976] OLRB Rep. Oct. 610; Canron Ltd., Eastern Structural Division [1977] OLRB Rep. Jan. 34; Southern Express Lines of Ontario Limited [1988] OLRB Rep. Oct. .1107; Fitzhenry & Whiteside Limited [1987] OLRB Rep. April 504; Toronto Housing Labour Bureau [1987] OLRB Rep. Sept. 1178; Amarcord Carpenters Ltd. [1989] OLRB Rep. June 531; R v. Osborn 1968 CanLII 384 (ON CA), [1969] 1 OR. 152 (C.A.); R v. Miles Music Ltd. (1989), 1989 CanLII 255 (ON CA), 48 C.C.C. (3d) 96 (OCA.); R v. Power (1994), 1994 CanLII 126 (SCC), 89 C.C.C. (3d) 1 (S.C.C.); and Sterzik v. Beattie (1985) 1985 CanLII 1890 (AB KB), 16 Admin. L.R. 75 (Alta.O.B.).

I will not be making reference to each of the allegations of abuse of the Board's processes made by counsel during argument. At this point, it suffices to say that the allegations centre around three separate events; first, the preparation, timing, filing, substance and carriage of Board file 4078-94-R. Secondly, counsel's conduct during the proceedings in Board file 3606-94-R, in as much as counsel for the applicant is asserted to have misled both the Board and the parties to that proceeding regarding the applicant's intentions regarding certain discussions respecting a possible representation vote. Thirdly, issue is taken with certain aspects of the refiling of the application for certification before me; that is, Board file 4106-94-R. I note here that the allega­tions of abuse respecting Board file 4078-94-U were made in lieu of written submissions previ­ously directed by the Board respecting the proper disposition of that Board file - that is, to per­mit leave to withdraw the complaint, or to dismiss it.

In reaching the decisions I have, I have taken into account all of the facts agreed to by the par­ties, as well as those facts which were assumed to be true for the purposes of the motion. In that regard, the moving parties' have had this motion argued on its "best case". In fact, I will go fur­ther and state that much of what was argued went beyond the "best case", and I have consid­ered those assertions which were made by counsel for the moving parties which were provable by reference to the Board files, or which were not controversial.

With respect to the first matter, that being the circumstances relating to Board file 4078-94-U, I must say that I am troubled by some aspects of the applicant's conduct. The complaint was, by all indications, filed without counsel's having had an opportunity to speak to a witness, was pro­vided to the solicitors for the parties on the first day of the hearing in Board file 3606-94-R (it was also formally filed that same morning), and, not surprisingly, contained very few material facts supporting what counsel conceded were serious allegations regarding the conduct of the responding parties and, indirectly, their counsel, as well as the counsel for the group of object­ing employees. A review of the transcript [of that hearing made by counsel for the employer which all parties conceded was an accurate reflection of the proceedings] makes it quite evident that, notwithstanding counsel's reservation of his client's right to file further particulars, and an indication (though not an undertaking) that further particulars would be filed "in a timely man­ner", no such particulars were ever delivered. Moreover, when the matter came before me on March 20, 1995, and in the face of a number of motions scheduled to be argued respecting the complaint, counsel did not seek leave to withdraw the matter until the Board indicated a desire to proceed with the various pending motions.

It is clear to me, from the transcript relied upon by the parties, that counsel for the applicant in Board file 4078-94-U was aware that the complaint required significant particulars before it would become a properly pleaded complaint. None were given. I note here that, in my view, the subject matter alleged by the complaint is not, per se, an abuse of process to plead. However, on the balance of probabilities, and on the basis of the pleading and the transcript admitted into evidence by the parties, I am satisfied that the complaint was brought to misuse the Board's pro­cesses to gain a tactical advantage in the pursuance of the applications for certification (first in Board file 3606-94-R, and then in Board file 4106-94-R). It is evident from the pleading that the pursuance of the complaint would likely have required one or both of Mr. Tarasuk or Mr. Abbass to retain legal counsel, thereby creating a needless expense to these solicitors. Keeping in mind that both counsel have, on behalf of their respective clients, raised a large number of "defences" to the applications for certification, I am satisfied that the unfair labour practice complaint was initiated solely for tactical reasons. It is evident to me that the applicant in that Board file never intended to pursue the complaint before me. Accordingly, I find that the prep­aration, timing and filing of Board file 4078-94-U is an abuse of the Board's processes. It is, accordingly, dismissed. As both counsel bringing this motion indicated that costs were no longer being requested, I need not deal with that issue.

As noted earlier, the moving parties also allege that certain aspects of the carriage of the unfair labour practice complaint constitute an abuse of the Board's processes. Although I have certain concerns regarding the conduct of the union, assuming that the "assumed facts" are true, and provable, I do not think that they can constitute an abuse of the Board's processes. Assuming, for the purposes of this motion that the "assumed facts" are factually provable, in light of the transcript which the parties agreed would reflect what was, in fact, stated before the Board, it is not evident to me that the presiding Vice-Chair in Board file 3606-94-R was, as was alleged in the pleadings "charging" the union to consider a representation vote. My reading of the tran­scripts suggests that the presiding Vice-Chair inquired as to whether, as a remedial response to a finding by him contrary to the union's position taken at the hearing, a representation vote would be appropriate (see, in particular, pp.164 and 165, and especially 166 and 167). The presiding Vice-Chair specifically stated that he had had difficulty with the issue and that he had not made any decision as at that time. Ultimately the parties did address the Board regarding the potenti­ality of such a vote. However, I don't believe that the Vice-Chair, at anytime, put the union "to the election" of a representation vote. Accordingly, even assuming that no such consideration of the vote concept was undertaken by the union, it can hardly be said that such inaction is an abuse of the Board's processes.

It was further submitted that withdrawing the application in Board file 3606-94-R (or, more properly, requesting leave to withdraw) while at the same time refiling a further application in the name of the International Union, and counsel's silence in this regard at the hearing also con­stituted an abuse of the Board's processes. I disagree. Counsel need not, and in fact ought not, disclose his client's strategic decisions, unless his or her client so authorizes. Parties before the Board regularly withdraw applications and refile new ones (though typically in different circum­stances as here) and this is not, in itself, an abuse of the Board's processes. I note here that it was asserted in argument that I could infer or "read between the lines" of the transcript to con­clude that the presiding Vice-Chair was telegraphing to the applicant that it was going to lose. In all fairness, I don't find that the message asserted is as clear as is submitted, especially in light of my comments earlier - that is, that the presiding Vice-Chair's request was remedial in nature, not in the nature of a charge. I further note that I do not agree that it was an "abuse of process" to refile rather than to "amend" the identity of the applicant. The union had that option, but it was not the only option available to it. Whether it has chosen the correct one is yet to be seen.

I noted earlier that I did have some concerns regarding the conduct of counsel respecting the carriage of this matter. It is evident from the transcript and the Board time stamp on the appli­cation for certification that counsel for the applicant did, in fact, advise the presiding Vice-Chair that his client was seeking instructions regarding the possibility of a representation vote when, in fact, the current application for certification before me had been filed. The transcript makes it clear that all in attendance at the hearing would have been reasonably led to believe that a rep­resentation vote was an option then being considered. In light of the refiling (and the request that the membership evidence in Board file 3606-94-R be transferred to the new file) it is an inescapable conclusion that a misrepresentation was being made at that time. I should note, however, that at the same time counsel suggested that instructions were also being sought to withdraw the application (which he conceded was tantamount to a dismissal in the circum­stances). The subsequent Board file may well have been anticipated by that comment; that is, the possibility of refiling was not entirely masked by counsel's comments.

In my view, even if I were to assume that counsel's entire motivation for his comments regard­ing the vote was to mislead the Board and counsel present, such conduct does not constitute an abuse of the Board's processes. It is clearly something which is improper to do; it is also on an entirely different level, ill-advised, as, in the labour relations community, one's word is only as good as his or her reputation as being a "straight shooter". Conduct of this sort lowers counsel's reputation throughout the community. However, it is not, in my view, an "abuse of process" in circumstances such as these to mislead the Board or others at a hearing. Nor, as it was sug­gested, is it an abuse of the Board's processes to make counsel wait for two hours while the refil­ing of the application was being effected.

Accordingly, I am of the view that the carriage of Board file 4078-94-U does not evidence an abuse of the Board's processes, and I so find.

Finally, I deal with the submissions that certain aspects of the refiled application for certification (Board file 4106-94-R) evidence an abuse of the Board's processes. In my view, these can all be dealt with in short order, as none of them truly reflects an abuse of process, though certain argu­ments may well be of more substance later in the hearing. For example, it was submitted that the filing of two forms A-4 (one in each certification file) reflects an abuse of process because one is clearly in error. Assuming that this latter conclusion is accurate, the argument is prema­ture, and is more properly made as a substantive claim during the hearing. It is not an "abuse of process" to argue that "membership evidence" is a Local card in one hearing and an Interna­tional card in another, particularly where no determination has yet been made on the issue. I find it hard to equate advocacy of alternative positions to constitute "abuse of process"; it would certainly inhibit free speech as amongst the legal profession. I note here that counsel for the union did not assert the proposition made by the moving parties during his argument…….that he was asserting that the membership cards were International cards. However, until there is a determination made, any assertion can be made before me.

It is not an abuse of the Board's processes to require by one's conduct the same arguments to be made in two different Board files. Nor is it an abuse of the Board's processes to refile an appli­cation for certification without advising or seeking the consent of applicants for membership. Finally, it is not an abuse of process to err in the production of materials ordered produced prior to the hearing, or to improperly name the responding party, even if the union had become aware of the employer's name earlier in the week. In that regard, the substance of the applica­tion form makes it clear that the employer was identified and that there was no intent to deceive anyone at all.

Accordingly, I am of the view that there is nothing inherently abusive of the Board's processes in the filing, substance or carriage of Board file 4106-94-R, and I so find. I dismiss the motion brought by the employer and the group of objecting employees, in that regard.

I have read to the parties these reasons for decision as I am of the view that some guidance may be gleaned from them. I do, however, want to record one further reason why I would have dismissed this motion in its entirety, even if the preparation, filing and timing of the unfair labour practice were to have had some bearing on the application for certification. The conduct com­plained of by the employer and the group of objecting employees is that of the United Food & Commercial Workers' International Union, Local 175, which is the applicant in the unfair labour practice complaint and in the original application for certification, Board file 3606-94-R. The entity which would be affected by the requested relief is the United Food and Commercial Workers International Union, an entirely separate and distinct entity (although both are clearly affiliated). The authorities provided by counsel do not support the proposition that an abuse of the court's or the Board's processes committed by one entity can affect the rights of a totally separate entity - whether they share legal counsel, or otherwise. In light of the seriousness of the concept of abuse of process - and, of course, its consequences - the limitation that the conse­quences of that improper conduct fall on the shoulders of the entity that acts in an improper manner is hardly challengeable. Accordingly, even if each and every fact assumed were true and provable in its entirety, and even if I were to assume that those facts established abuses of the Board's processes, the conduct complained of does not emanate from the applicant in Board file 4106-94-R, and, accordingly, I would have dismissed the motion on that account.

(I) Imposition of a Bar/Refusal to Entertain

29Both counsel for the employer and counsel for the group of objecting employees asserted that the Board ought to bar the applicant from bringing this application, or refuse to entertain the application, on various grounds. Reliance was placed on section 105(2)(i) of the Act, which reads as follows:

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

(i) to bar an unsuccessful applicant for any period not exceeding ten months from the date of the dismissal of the unsuccessful application, or to refuse to entertain a new application by an unsuccessful applicant or by any of the employees affected by an unsuccessful application or by any person or trade union representing the employees within any period not exceeding ten months from the date of the dismissal of the unsuccessful application.

30There was no evidence called in support of this motion. At the outset of his argument, Mr. Abbass indicated that he would assume, for the purposes of argument, that none of the evi­dence before the Board on the abuse of process motion would be before the Board on this motion. Mr. Tarasuk, at the outset of his argument, asked that the Board's interim decision of March 9, 1995 be considered by the Board. There was no objection by opposing counsel to this request. Mr. Abbass took from the interim decision that a finding of fact had previously been made by the Board that this application was in respect of the "same employer" and covered the "same group of employees" as was involved in Board file 3606-94-R. At the request of Mr. Tarasuk, the parties agreed that, during the course of the second hearing date on Board File 3606-94-R, the responding party and the group of objecting employees were willing to drop all of their claims regarding the propriety of the membership evidence filed with the Board for the purpose of agreeing to a repre­sentation vote. It was also agreed that the applicant in that Board file was given the opportunity to describe itself on any ballot to be used in a representation vote as either Local 175 or as the Inter­national.

31Strictly speaking, there was no other evidence before the Board for the purposes of this motion. However, both counsel for the employer and counsel for the group of objecting employees often made reference to facts which had earlier been agreed to for the purposes of the abuse of process motion - for example, it was assumed throughout this motion that all of the membership evidence in the file before this panel of the Board was the same membership evidence that was before the Board in Board File 3606-94-R, which was a fact agreed to in the "abuse of process" motion. Where it has been necessary to do so, therefore, the Board has not ignored, as Mr. Abbass referred to in argument, "the entire fact situation".

32In essence, counsel for the employer and counsel for the group of objecting employees assert that the Board should bar the International from applying for certification or that it should refuse to entertain this application for certification for the following reasons:

(a) the application relates to the "same employees" and the "same employer" as in Board File 3606-94-R;

(b) the applicant in Board File 3606-94-R, Local 175, ought to have amended its application rather than having requested a withdrawal;

(c) Local 175 and the International, together, chose to apply in the name of Local 175 in Board File 3606-94-R;

(d) a "period of stability" ought to be afforded to the employees;

(e) the Board cannot "close its eyes" to the full day of argument made on the membership evidence issue in Board File 3606-94-R, and to order a representation vote would limit any further waste of time and expedite the proceedings;

(f) an abuse of process was found in Board File 4078-94-U, which was heard together with this matter, and the linkage between the Inter­national and Local 175 is just too close to ignore;

(g) Local 175's request for withdrawal in Board File 3606-94-R was merely an attempt by it to avoid certain defeat on a representation vote that would have been ordered by the presiding Vice-Chair in that file; and

(h) the same membership cards are being used in this proceeding as in Board file 3606-94-R. Membership evidence cannot be utilized in this fashion.

33Counsel for the International submitted that the employer and the group of objecting employees were attempting to use section 105(2)(i) of the Act in a punitive manner, and that because the applicant in this Board File was a different entity than that in Board File 3606-94-R, the Board's jurisprudence permitted the International to reapply and to have the Board entertain the application.

34Counsel for the applicant, in argument, relied upon Repla Limited, [1990] OLRB Rep. May 612; Elm Tree Nursing Home, [1978] OLRB Rep. Nov. 984; and The Clorox Company of Canada Ltd., [1980] OLRB Rep. Feb. 184. The employer and the group of objecting employees relied upon Ontario Hospital Association (Blue Cross), [1981] OLRB Rep. Apr. 468; Browning-Ferris Industries Ltd., [1982] OLRB Rep. Sept. 1253; The Children's Aid Society of Owen Sound and the County of Grey, [1984] OLRB Rep. July 995; Amarcord Carpenters Ltd., [1989] OLRB Rep. June 531; and Goodfellow Inc., (Board File 3003-94-R, January 6, 1994, unre­ported).

35The Board's jurisprudence on the issue of the application of a bar and the refusal to entertain subsequent applications for certification establishes that there is no legitimate reason for

the Board to apply a bar to this applicant or to refuse to entertain this application for certification. In point of fact, the case authorities relied upon by counsel for the employer and by counsel for the group of objecting employees, to the extent that they were in fact relevant, support such a conclu­sion. Mr. Abbass, during argument, referred chiefly to cases involving applications for termination of bargaining rights, and extracted concepts and principles applicable in that context, asserting that they were equally relevant to the application of section 105(2)(i) of the Act. The Board does not agree. The context of a termination application, particularly a displacement application, reflects an entirely different dynamic than the situation before the Board. The principles relied upon just do not apply as easily as was asserted during argument.

36The Board's earlier decision in Repla Limited, supra, accurately reflects the Board's practice with respect to the application of a bar and the refusal to entertain an application for certi­fication. In that case, a local trade union affiliated with the United Brotherhood of Carpenters and Joiners of America brought an application for certification before the Board. A representation vote was ordered by the Board and the vote lost by the local union. The application for certifica­tion was, therefore, dismissed. In accordance with the Board's general practice, the local union was barred from any further application for certification respecting that same employer for a period of six months. Shortly thereafter, the parent union brought an application for certification before the Board respecting the same group of employees. The responding party urged the Board to not entertain the parent union's application.

37As was noted by the Board in Repla Limited, supra, section 105(2)(i) of the Act confers two distinct powers on the Board. One is the power to bar an "unsuccessful applicant" from mak­ing a subsequent application for certification for a period of up to ten months from the date of dis­missal of its application. That power is typically exercised upon the dismissal of an application, and only affects the rights of the unsuccessful applicant. No bar was requested by the responding party or the group of objecting employees in Board File 3606-94-R. That file is not before the Board, nor is Local 175 a party to this proceeding. Accordingly, section 105(2)(i), to the extent that it permits the Board to bar an entity from applying for certification of the employer's employees, does not permit me to bar the International from applying, as it was not an "unsuccessful applicant" in Board File 3606-94-R.

38With respect to the argument that the Board should refuse to entertain an application for certification by the International, the following excerpt from Repla Limited, supra, is applica­ble to these circumstances:

9. Unions whose constitutions provide for creation of subordinate "local" unions are often referred to as "parent" unions. The Board has said it will treat a parent union as a "trade union" within the meaning of clause l(l)(p) where employees are members of the parent union: Metal Textile Corporation of Canada Limited, (1955), 55 CLLC ¶18,016; Carleton Co-operative Milk Transport, [1970] OLRB Rep. June 305. The Board has also said that evidence of member­ship in a local union is (Cochrane-Dunlop Hardware Ltd., 63 CLLC ¶16,268) or may be (Lincoln Graphics Ltd.. [1969] OLRB Rep. Nov. 983) evidence of membership in the parent union. A bar imposed on a local union under clause 103(2)(i) has not been treated as a bar to application by its parent union, nor has the Board refused to consider a subsequent application by the parent of an unsuccessful applicant in circumstances in which a subsequent application by an unrelated trade union would have been entertained: Elm Tree Nursing Home, [1978] OLRB Rep. Nov. 984, (See also The Clorox Company of Canada Ltd. 11980] OLRB Rep. Feb. 184, where an application by a local was entertained during period of bar on applications by parent and Creeds Storage Ltd., [1984] OLRB Rep. May 712, where an application was entertained during period of bar imposed on the applicant's sister local.) The Board has treated a parent union and one of its locals as distinct trade union entities for other purposes, such as a succes­sorship application under section 62: The Hydro-Electric Commission of the City of Hamilton, 62 CLLC ¶16,261.

The critical observation made by the Board in Repla Limited, for the purposes of this case, is that the Board has not refused to consider a subsequent application for certification by the parent of an unsuccessful applicant in circumstances in which a subsequent application by an unrelated trade union would have been entertained. The Board has always treated a parent union and one of its affiliated local unions as separate entities.

39In that respect, the Board did not have before it during the course of argument either the International's Constitution or the By-Laws of Local 175. However, counsel for both moving parties did not dispute, during argument, that the International and Local 175 were a parent union and an affiliated local union, respectively. It is clear from past Board jurisprudence that Local 175 is, in fact, a local affiliated union of the applicant (see, for example, Knob Hill Farms Limited, [19891 OLRB Rep. Feb. 149). In fact, during argument it was suggested that the close relationship between the two separate entities ought to be a factor in favour of the motion. Furthermore, coun­sel did not suggest that the International or Local 175 had not previously established trade union status before the Board. During the course of subsequent argument the Constitution of the Inter­national and the By-Laws of Local 175 were entered into evidence as agreed-to exhibits. These documents confirm the above status of the two entities, and make it evident that members of Local 175 also hold membership in the International. Although these constitutional documents were not before the Board during this motion, they clearly confirm the relationship between the two trade unions which was assumed by the parties.

40The ultimate disposition of this motion can be dealt with by reference to the principles set out in Repla Limited, above. Assuming that the instant application relates to the "same employer" and the "same employees" as in Board File 3606-94-R, such a fact is of no relevance to this application for certification, in light of the different identity of the applicants in both Board files. Likewise, the finding of an abuse of process by Local 175 in Board File 4078-94-U can hardly affect the rights of the International in the certification proceeding. Assuming that the membership evidence is of a nature that properly supports a parent union's application for certification, it is not improper for membership applications to be utilized in a subsequent application brought by a local union's parent.

41With respect to the argument regarding the "wasting" of a full day's argument before the panel that heard Board File 3606-94-R, the inefficient use of Board resources is of course, an unfortunate matter but is not something which, if relevant at all, can be detrimental to the Interna­tional, which is an entirely different entity than the applicant in Board File 3606-94-R. There is absolutely no evidence before the Board to suggest that Local 175 and the International, together, chose to apply for certification in Board File 3606-94-R in the name of Local 175. And with respect to the submission that Local 175 ought to have merely amended its application in Board File 3606-94-R, rather than requesting a withdrawal of its application, the local union may well have had such an option, but if so it was not the only option open to it.

42With regard to the submission that a "period of stability" be afforded to the employees, this is one of the considerations taken into account by the Board in displacement applications that counsel for the group of objecting employees asserted ought to be applicable to certification appli­cations. In point of fact, the case authorities suggest that "disruption" is not a factor to be taken into account by the Board when considering the applicability of section 105(2)(i) of the Act. In Amarcord Carpenters Limited, supra, the Board notes, at paragraph 12, the following:

12. If a major objective of the Board in exercising its power under clause 103(2)(i) [as it then was] were to minimize disruption caused by votes, however, one would expect the Board to refuse to entertain any trade union's application if it were filed soon after the post-vote dismissal of another trade union's application. That has not been the Board's practice when there is no incumbent trade union. The Board's willingness to entertain one trade union's application immediately after another's has been dismissed following a vote cannot be explained by focusing on the first applicant's having caused the disruption, as that explanation would have the Board exercising the discretion under clause 103(2)(ii) [as it then was] in a punitive fashion, contrary to the approach described by the Board in Hydro Electric Commission of Hamilton, [1958] 58 CLLC ¶18,120, and The Watson Manufacturing Company of Paris Limited, supra.

It is to be noted that the above comment is referable to the situation where a representation vote had been ordered by the Board, and had been taken. The degree of "disruption" in that context is far greater than could be expected by a two-day Board hearing, resulting in a dismissal of a certifi­cation application, and a subsequent application for certification.

43Finally, regarding the suggestion that the applicant in Board File 3606-94-R was "antici­pating defeat" and, therefore, withdrew the application for certification, as noted earlier the Board does not understand the comments made by the presiding Vice-Chair in Board File 3606-94-R in the same manner as do counsel for the moving parties. Assuming, solely for this argument, that Local 175 did "see the writing on the wall", that it anticipated that the Vice-Chair would deter­mine the issue argued against it, and that it would be required to participate in a representation vote that it would subsequently lose, there are two separate observations to be made. First, as noted above, Local 175 was the applicant in Board File 3606-94-R. It would be inappropriate to attribute the decisions of the guiding minds of Local 175 during that proceeding to the Interna­tional. Just as importantly, it is evident from the Board's long-standing jurisprudence that the Board may refuse to entertain a subsequent application only where the applicant seeks to avoid an unfavourable vote result by withdrawing its application following the ordering of a vote. Here, no such order was ever made.

44Accordingly, for these reasons, the motion was dismissed at the hearing.

(g) Propriety of the Form A-4

45Mr. Abbass next brought a motion in which it was asserted that the Form A-4 filed in this proceeding was deficient and, accordingly, could not be relied upon by the Board.

46In support of the motion, certain facts were agreed to by the parties. The Form A-4 filed in Board File 3606-94-R and the Form A-4 filed in the instant application were made exhibits, as were the International's Constitution and the By-Laws of Local 175. After Mr. Abbass and Mr. Tarasuk argued this motion, the Board advised counsel for the applicant that it would be unneces­sary to hear from him, and provided the parties with the following oral decision:

In my view, this motion must be dismissed. In my view, the argument made by counsel for the group of objecting employees singularly lacks any substance or merit. Absolutely none of the itemized matters in paragraphs 10A to 10G [of the objecting employees' pleadings] belong in a Form A-4. I am also not satisfied that the argument made by Mr. Tarasuk should be successful. The two Forms A-4 are not inherently contradictory. The A-4 declares that the documents rep­resent "membership evidence" on behalf of a stipulated number of employees in the applied for bargaining unit. Nothing is required by the Form A-4 regarding a stipulation as to the nature of the cards - whether the cards are "Local" or "International" cards. Those matters need not be disclosed in the Form A-4, nor does the nature or extent of the organizing drive be detailed.

Finally, with respect to the argument that the Form A-4 refers only to "membership evidence", I refer counsel to Rule 43(c)[of the Board's Rules of Practice], which requires the filing with the application for certification of what is the Form A-4, and Rule 1(j), which defines "membership evidence" to include "written and signed evidence that an employee is a member of a trade union, has applied to become a member or has otherwise expressed a desire to be represented by a trade union." Accordingly, this motion is dismissed. Fuller reasons will follow.

Those reasons are set out below.

47Mr. Abbass commenced his argument by discussing the significance that the Board places on the Form A-4. It was described by counsel as the "cornerstone" of the Board's certifica­tion process. The Board was referred to three cases by counsel: 599207 Ontario Inc., [1990] OLRB Rep. Dec. 1205; Kitchener News Company Limited, [1980] OLRB Rep. Nov. 1656; and Guelph Paper Box Company Limited, [1985] OLRB Rep. May 673. Reference was also made to the deci­sion of Pebra Peterborough Inc., [1988] OLRB Rep. Jan. 76, which was quoted at length in the decision of 599207 Ontario Inc., supra.

48There is no doubt that the Form A-4 is a "cornerstone" of the Board's certification pro­cess. If there is any legitimate question established as to the validity of the declaration made by the individual who signs the Form A-4 the success of the application for certification that it supports will be jeopardized. The following comments from Pebra Peterborough Inc., supra, are reflective of the Board's approach to this most critical document:

31. Paragraph 3 of Form 9 is the critical paragraph and it is important to understand what it does not require as well as what it does require. It requires that the declarant, in this case the appli­cant's President, be able to make certain declarations, based either on the declarant's personal knowledge or the inquiries that s/he has made. If the declarant signs the Form based on personal knowledge, then that knowledge must be sufficient to allow the declarant to make the declara­tion in paragraph 3. It must also be sufficient to ensure that the declarant is aware of any excep­tions to the standard declaration. Alternatively, if inquiries are made of collectors and these inquiries form the basis upon which the declarant is possessed of the necessary knowledge, then the inquiries must be made prior to signing the Form and they must be reasonable. The declar­ant need not inquire with respect to every conceivable event or possibility, but s/he must have made reasonable attempts and reasonable inquiries. What is reasonable will depend on the cir­cumstances and context, but it is clear that an inquiry must be made, whether in a question and answer or a less structured format. . . . [T]he declarant will not possess sufficient knowledge if s/he merely looks at documents, and (for example) compares each card with a receipt. The declarant must also know personally of the circumstances of the collection or make inquiries about them.

49In this case, however, Mr. Abbass asserted that a number of different statements ought properly to have been included in the Form A-4. It was submitted that the Form A-4 was deficient and could not be relied upon by the Board unless it contained the following "facts":

• the basis for the knowledge of the declarant; is it personal or from the two union organizers?;

• that the membership card had the name of Local 175 on it's heading in bold print, but in fact it was an application to join the applicant;

• that the two organizers were in the Red Dog Inn in January when a number of cards were signed but they did not actually witness each signing of the cards.

• that the employees were advised that the documents they were sign­ing were only applications for membership and that they would only become members of the union if and when the union was certified and that these applications were only valid for six months and gave the employees no membership rights under the union's constitution nor imposed any membership duties.

• that the material sections of the applicant's Constitution were explained to the employees prior to the signing of the membership documents, namely:

Articles 4A (B.1) (I)

Article SA

Articles 8 D, B & F

Article 18

• that the employees who originally signed the membership evidence (if it is the same as the evidence in Board file 3606-94-R) were advised of the problems with the use of the evidence in that case and reaffirmed their understanding and desire to join the applicant.

• that the confusion on the part of the two organizers and the applicant was explained to the employees.

• that the applicant has a practice of admitting employees to member­ship without regard to the eligibility requirements of its constitution, charter and by-laws.

During his argument, Mr. Abbass read to the Board, verbatim, large portions of the Internation­al's Constitution and the By-Laws of Local 175. Mr. Abbass asserted that numerous matters con­tained in these documents ought to have been included by the declarant in the Form A-4, including such things as the six different types of membership offered by the applicant, whether the employ­ees were eligible to hold an office on behalf of the International, whether the employees could be charged and tried by an International tribunal, and whether copies of the applications for member­ship had been forwarded to the International Secretary-Treasurer as required by the Constitutton. Mr. Abbass further argued that the identity of the trade union organizing the employees ought to be included in the Form A-4, as should a statement indicating whether all of the employees are paying dues, or initiation fees, and, if not, by what authority. Mr. Abbass asserted that dozens of other matters contained in the applicant's constitutional documents ought to have been disclosed on the face of the Form A-4. No authority was put before the Board to support these assertions. Instead, Mr. Abbass merely stated that the policy of the Board is reflected by key words such as "disclosure, personal integrity", "disclosure, explain, set out or "integrity, disclosure, accuracy which words he repeated over and over on numerous occasions.

50Mr. Abbass also submitted during argument that the Form A-4 declarant in this Board proceeding could not have made the proper inquiries required by the Board in light of the fact that the application and the Form A-4 were filed at 11:44 a.m. on February 21, 1995, during the hearing of Board File 3606-94-R; that is, that none of the individuals who had received the cards on behalf of the applicant could possibly have been canvassed prior to the execution of the Form A-4. Fur­thermore, Mr. Abbass submitted that there had been a material misrepresentation made in the Form A-4 because the cards "were solicited as and put forth as" Local 175 cards. Also, Mr. Abbass asserted that it is critical to note in the Form A-4 whether the documents filed in support of the application are applications for membership or actual memberships in the union. Mr. Abbass asserted that, in the face of the Board's jurisprudence, it was "almost impossible" to find the Forms A-4 filed in either Board File 3606-94-R or the instant proceeding to be satisfactory.

51Counsel for the employer limited his argument to two different propositions. First, counsel asserted that there had been an organizing drive related to the employer by Local 175, and that the International was not involved. Local 175, it was asserted, had no expectation that its ini­tial certification application would run into difficulty. Counsel submitted that the By-Laws of Local 175 preclude an employee from having memberships in both the International and Local 175 at the same time, and that, therefore, the memberships were only in Local 175 when signed. Counsel noted that Local 175 had earlier asserted that the membership evidence submitted in support of its application in Board File 3606-94-R was evidence of membership in Local 175. In light of this, counsel asserted that if it were subsequently asserted that the membership evidence was in the name of the International, the applicant had an obligation to make this clear in the Form A-4. Counsel stated that it is not sufficient, in his view, for the applicant to unilaterally change the use of the membership cards filed with the Board. Any such change of use must be referred to on the Form A-4 in this proceeding. Furthermore, counsel submitted that the two Forms A-4 were incon­sistent because they were filed in two different applications, state the same thing, and the applicant asserts that the membership evidence is a different thing in the instant Board File than it did in Board File 3606-94-R. Counsel's second proposition was that the Form A-4 did not (but ought to) distinguish between "applications for membership" and "membership", a proposition which was also argued by Mr. Abbass.

52Before dealing with counsels' arguments, it should be noted here that the two Forms A-4 filed in the respective certification applications were executed by Mr. Daniel Onichuk. The form utilized is that provided by the Board. No exceptions are noted. In Board File 3606-94-R, Mr. Oni­chuk is described in the Form A-4 as a "Regional Director"; in the instant application, he is described in the Form A-4 as a "Representative".

53Dealing first with Mr. Tarasuk's argument, it fails for a number of reasons. At the out­set, the Board disagrees that the By-Laws of Local 175 preclude an employee from holding both membership in Local 175 and the International at the same time. The article of the By-Law referred to in argument by counsel states only that an individual cannot hold memberships of a dif­ferent classification at the same time; for example, "active" and "inactive" membership could not be held by one person at the same time. In point of fact, the By-Laws of Local 175 and the Consti­tution of the International make it quite evident that membership in Local 175 is also membership in the International (see, in the International Constitution, Articles 4(A) and 4(1), and in the By­Laws of Local 175, Article IV. A. and IV. B).

54More fundamentally, however, the difficulty with counsel's argument is that, as noted earlier, the Forms A-4 were executed by Mr. Onichuk with respect to different applicants. In both Forms A-4 Mr. Onichuk asserts that, "to the best of [his] knowledge, information and belief' the documents submitted in support of the application represent "membership evidence" on behalf of a certain number of employees, and that "on the basis of [his] personal knowledge or inquiries [he has] made, the documents were signed by the employees indicated on the documents". Nothing is asserted by the declarant as to the nature or legal meaning of the membership evidence; that is, whether they are "International" memberships or "Local 175" memberships. Nor is such a state­ment required or expected of the A-4 declarant. But the documents are "membership evidence" no matter which entity or entities the documents relate to. Obviously, in light of the Board juris­prudence, if the membership evidence reflects membership in the International, then the applica­tion will be dismissed if brought in the name of an affiliated local. However, the determination of the legal status of the membership evidence is one for the Board to determine, should the issue be raised; it is not expected that laypersons opine as to the legal effect of the membership evidence filed when completing a Form A-4. For that same reason, there can be no legitimate challenge to the Form A-4 filed in the present application. The International, as a separate trade union, may now well assert that the membership evidence is evidence of membership in the International. It may or may not be correct. For the purposes of completing the Form A-4, that is of no importance. The critical matter for the Board is the assertion on the face of the Form A-4 that, because of the declarant's personal knowledge or because of inquiries made by the declarant, the membership documents were signed by the employees indicated on the documents. In that regard, the two Forms A-4 are entirely consistent and unchallenged.

55With regard to the argument made by both counsel respecting the lack of distinction made on the Form A-4 between those cards reflecting "membership" status in the applicant, and those cards reflecting only "application for membership" status, that argument is answered quite readily by reference to Rule 43(c) of the Board's Rules of Procedure, which requires the filing of "a declaration . . . in the form set by the Board" with an application for certification, and Rule 1(j), which defines "membership evidence" to include both "membership" in a trade union and "applications for membership" in a trade union.

56Mr. Abbass' arguments set out above were entirely without merit. Mr. Abbass put forth no authority in support of the propositions asserted by him, except general comments or "buzz­words" of the nature referred to above. Taken to its logical conclusion, his argument would sug­gest that the Form A-4 would be a document of almost infinite length, including information regarding each and every aspect of the applicant's inner workings and the organizing drive. Quite simply, that proposition is patently untenable, and the Board does not believe, keeping in mind Mr. Abbass' self-described experience at the Board (including representation of trade unions: see Long Lake Forest Products Inc. (Board file 2952-93-R, unreported decisions dated December 14, 1994 and March 8, 1995)), that his assertions were made in good faith. This observation is made because there were, at times, allegations made by each party to this proceeding regarding the intention of one or more of the other parties to delay the proceeding. Some of the arguments made during this proceeding had, at least, some basic semblance of legitimacy, and accordingly they were entertained on their merits. These submissions by Mr. Abbass lacked any legitimacy, and in the view of the Board were put forth solely to delay the timely disposition of these proceedings. In fact, as a general observation, many of the arguments put forward by Mr. Abbass were, in my view, argued solely to delay the proceedings. This became quite obvious as the hearing progressed.

(h) Discrimination

57Mr. Abbass also asserted that the union, because it did not approach each and every employee in the bargaining unit to sign a membership application, violated sections 2.1, 3 and 13 of the Act, and that, accordingly, the application ought to be dismissed. No material facts in sup­port of this allegation were contained in the pleading filed by Mr. Abbass on behalf of his client. When requested by the Board to outline the material facts replied upon, Mr. Abbass indicated he had none and was not prepared to proceed at that time on the allegation. When Mr. Abbass was advised by the Board that this particular motion would be dismissed if no material facts were immediately provided, Mr. Abbass asserted that the Board was "biased". Such an assertion was entirely unwarranted. The Board and the other parties are entitled to be informed of the material facts to be relied upon. After a great deal of discussion, the parties agreed upon a set of facts for the argument of the motion.

58The parties agreed to stipulate as fact that not all employees of the employer were approached by the union (nor did all of the employees approach the union) during the organizing drive. It was also agreed that the union had produced certain literature during the organizing cam­paign, a copy of which was made an exhibit to the proceedings. Finally, it was agreed that, between the time that Local 175 contemplated leave to withdraw Board File 3606-94-R, and the time that the International filed the instant Board File, no bargaining unit employee was made aware of Local 175's decision to ask the Board for leave to withdraw, and the International's deci­sion to file, the two respective applications. All counsel agreed that the two Forms A-4 and the membership evidence in the instant application could be referred to during argument.

59The statutory provisions referred to by the parties during argument are as follows:

2.1 The following are the purposes of this Act.

1. To ensure that workers can freely exercise the right to organize by protect­ing the right of employees to choose, join and be represented by a trade union of their choice and to participate in the lawful activities of the trade union.

2. To encourage the process of collective bargaining so as to enhance,

i. the ability of employees to negotiate terms and conditions of employment with their employer.

ii. the extension of co-operative approaches between employers and trade unions in adapting to changes in the economy, developing

work force skills and promoting workplace productivity, and

iii. increased employee participation in the workplace.

3. To promote harmonious labour relations, industrial stability and the ongo­ing settlement of differences between employers and trade unions.

4. To provide for effective, fair and expeditious methods of dispute resolu­tion.

5. Every person is free to join a trade union of the person's own choice and to participate in its lawful activities.

6. Every person is free to join an employers' organization of the person's own choice and to par­ticipate in its lawful activities.

7. 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.

60Mr. Abbass observed during argument that section 2.1.1 of the Act, as well as section 3 of the Act, clearly address the issue of "choice", and that the concept of "choice" requires a clear choice between various options. Counsel submitted that the deprivation of something as significant as an employee's right to contract individually with his employer regarding the terms and condi­tions of his employment (a right that was described somewhat melodramatically by Mr. Abbass as being "fought for at Dunkirk" and "enshrined in the Charter of Rights") requires that a clear choice be provided. Mr. Abbass submitted that the employee, first, has to know what it is that he or she is choosing, and, secondly, has to have an opportunity to participate in the process. In that regard, counsel asserted that during the organizing drive the employees were only provided with an opportunity to choose "Local 175", and not the current applicant, the International. Furthermore, it was asserted that, by not approaching all of the employees, Local 175 had purposely avoided those who would oppose it. Counsel submitted that this precluded those opposed to the union from actively opposing the drive, contrary to the Act. As a remedy, counsel asked the Board to order a representation vote. Counsel read to the Board excerpts from The Great Atlantic & Pacific Com­pany of Canada, Limited, [1993] OLRB Rep. Sept. 885 in support of his assertions.

61Counsel also asserted that section 13 of the Act had been violated by the applicant. Counsel queried during argument how the Board could be satisfied that the reason that some of the employees in the bargaining unit were not approached to sign cards was not based on a prohib­ited ground of discrimination contained in the Human Rights Code. When the Board questioned Mr. Abbass regarding the absence of any evidence of such discrimination and suggested that evi­dence supporting his assertions ought to have been adduced, Mr. Abbass asserted that it is the Board's responsibility to ensure that section 13 is satisfied. He subsequently asserted that the Board could "infer" that the individuals not approached by Local 175 were not approached because they were opposed to a union. The Board notes that opposition to a trade union is not a prohibited ground of discrimination contained in either the Human Rights Code or the Charter of Rights.

62Counsel for the employer took a slightly different approach to this preliminary motion. Mr. Tarasuk asserted in argument that, because sections 2.1, 3 and 4 of the Act all were incorpo­rated into the Act at the same time that the Bill 40 amendments were made removing the prior rel­evance of the terminal date for representation purposes, it could be inferred that the provisions were intended to balance off each other. Accordingly, to balance off the restriction imposed on when employees can make a choice to join a trade union, there now has to be meaning given to the choice made by employees. Counsel acknowledged that actual notice to each and every employee of an organizing drive is unnecessary, but asserted that, as a minimum, the employees must be made aware (by, perhaps, a posted notice) that the "choice process" is before them; that is, that a trade union is organizing. It is then, according to counsel, that the choice of each employee to join, support or oppose the trade union can be properly made. Counsel noted that the current applicant had applied without providing any notice to the employees, and questioned how it could be said that all of the employees had a choice at all, especially when it is clear that some individuals in the bargaining unit were not even known to the applicant at the time the application was filed.

63After entertaining this argument from counsel, the Board recessed briefly and returned to dismiss the motion without hearing from counsel for the applicant. Having regard to the agreed-upon facts, the argument of counsel, and the Board's jurisprudence on this matter, the Board was of the view that the motion ought to be dismissed. In Hemlo Gold Mines Inc., [1993] OLRB Rep. Mar. 158, the Board made the following observations regarding a similar argument:

26. There is also nothing in the Act which requires a trade union to give employees notice of its intention to file a certification application. Although the intervenors submitted in paragraph 21 of their intervention that the Union had an obligation under section 69 of the Act to give employees in the bargaining unit advance notification of the application date, at the hearing of this matter Ms. Gillespie indicated that the intervenors were no longer advancing section 69 as a basis for that obligation (presumably because it is clear from the wording of that provision that the duty imposed by section 69 only applies to a union "entitled to represent employees in a bar­gaining unit", i.e., a trade union which has bargaining rights for the employees by virtue of hav­ing been certified or voluntary recognized as their bargaining agent). We were not referred to any provision of the Act or applicable legal principle which would require the applicant to give advance notice to the employees (or to the Board) of its intention to file a certification applica­tion. Unions frequently organize through contact with some but not all of the employees of an employer. If it is to obtain certification without a representation vote (in the absence of contra­ventions of the Act making certification appropriate under section 9.2) a union will have to gain the support of over fifty-five per cent of the employees. However, it is under no obligation to contact all of the employees. A union may be unable to contact employees for whom it does not have an address or telephone number, or who are away on vacation or absent due to illness. Moreover, it may choose to intentionally avoid contacting employees who are known to be strongly opposed to unionization, or who are thought likely to notify the employer of any such contact. Employees who are not contacted by the union are treated by the Act (and the Board) as being opposed to unionization (by virtue of being included in the denominator but not in the numerator of the fraction used to determine the count). The same is true of employees con­tacted by the union who decline to sign a union card. .

Subsequently, the Board reached the same conclusion in Bannerman Enterprises Inc., [1994] OLRB Rep. Nov. 1489:

64. The Board dismissed a number of allegations as disclosing no prima facie case at the outset of the hearing with brief oral reasons. They included the allegation that the union had not con­tacted everyone in the proposed bargaining unit. The union is not required to contact everyone; there is no requirement for full debate in the Act.

These observations were expanded upon in the Board's decision on reconsideration (unreported, dated April 18, 1995), at para. 9:

It can be seen that the freedom protected in these sections [sections 2.1 and 3 of the Act] is the right to join a trade union of one's choice and to participate in its lawful activities not "to partic­ipate in the choice of a trade union", as suggested in counsel's submissions. To the extent that counsel is suggesting that these sections require a longer campaign to allow every employee to be consulted and participate in the debate, we do not find support for that in the language of either section 2.1 or section 3.

I agree with all of these observations. Those employees in the bargaining unit who signed member­ship application cards exercised their "choice" to join or not to join a trade union prior to the ini­tial application brought by Local 175. Assuming, for the purposes of this argument, that the employees believed that they were executing membership cards in support of Local 175, as a mat­ter of law, the cards can be used by either that local union or by the International in support of an application for certification. Whether the employees knew of that state of affairs at the time they signed an application for membership is irrelevant; it is a legal incident of executing a local union's membership application that membership may also be held in the local union's parent, thus sup­porting a parent union's certification application. Accordingly, I dismissed the motion.

(i) Constitutional Matters

64Mr. Abbass next indicated that he wished to make a further motion based upon a request for production contained in his client's pleading. At paragraph 14 of the pleading, counsel had requested from the applicant production of certain documents and information, including:

"a detailed statement of the material facts as to any practice the Applicant has of admitting employees to membership without regard to its Constitution, Charter and by-laws".

Reliance during argument was placed upon section 105(4) of the Act, which provides as follows:

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.

There was no assertion in the body of the "Wish to Participate" alleging that the existence or non­existence of a practice by the applicant of allowing individual's memberships in the applicant with­out regard to its eligibility requirements had any relevance to this proceeding. When this matter was initially discussed at the hearing Mr. Abbass referred the Board to the decision of Municipality of Metropolitan Toronto, [1994] OLRB Rep. July 938, in support of his allegation. Subsequently, when this preliminary motion was put squarely into issue by Mr. Abbass, the Board heard the sub­missions of the parties regarding whether the allegations ought to be entertained, in light of the fact that it was not pleaded, and in light of the absence of even the barest of material facts in the "Wish to Participate".

65Mr. Abbass stated that it was up to the applicant to establish its practice respecting the admission of persons to membership, and stated that his assertion was "clear" on the face of the pleading. Subsequently during argument, Mr. Abbass suggested that it was the Board's responsi­bility to ensure that this matter was properly placed before it. Mr. Abbass submitted that, without knowledge of the existence of or the lack of existence of the union's practice, he could not raise the matter in his pleading. Mr. Abbass indicated that his "best case" would be if the applicant were to acknowledge that it had no practice of admitting people to membership without reference to the eligibility requirements contained in its Constitution.

66Counsel for the applicant, Mr. Stout, observed, amongst other things, that the pleading filed on behalf of the objecting employees did not assert that the applicant had conducted itself in a manner which was contrary to the provisions of its Constitution. Counsel for the employer asserted that section 105(4) of the Act requires the Board to be satisfied that the applicant observes its con­stitutional provisions before it is certified, and that the union was not merely finding an expedient manner of having membership evidence placed before the Board. In response, Mr. Abbass asserted that the necessity to plead the matter would require him to make inquiries of individual employees in the workplace regarding the internal practices of the applicant, which he submitted could well constitute an unfair labour practice.

67After hearing argument on this matter, the Board reserved its decision. After a brief recess later that day, various rulings were provided. At that time, the Board determined that evi­dence would not be entertained with respect to this motion, on the basis that these matters had not been sufficiently pleaded. It is clear from the face of the pleading that the allegations raised by Mr. Abbass at the hearing were not specifically (or even generally) pleaded. There are clearly no mate­rial facts pleaded in support of any preliminary motion regarding this matter, and, in accordance with the provisions of Board Rules 14 and 20, the Board determined that it would not, at that late date, allow counsel to, in effect, raise an entirely new matter without having even pleaded it in general terms.

68The Board notes here (although it is, strictly speaking, unnecessary to do so) that both Mr. Abbass and Mr. Tarasuk appear to fundamentally misunderstand the purpose of section 105(4) of the Act. As is reflected by a plain reading of the Board's decision in Municipality of Met­ropolitan Toronto, supra,the provision is one which is intended to ameliorate the strict provisions of a union's constitution. In that case, the applicant, the Ontario Liquor Board Employees' Union, was constitutionally limited to the representation of Crown employees, employees of Crown agen­cies, and employees of "private sector" employers. That union applied to represent certatn employees of Metro Toronto. An intervening trade union to the application asserted, ultimately correctly, that Metro Toronto was neither the Crown, an agent of the Crown, or a private sector employer. The applicant in that case asserted that section 105(4) of the Act could facilitate its application, inasmuch as it could establish that it had a practice 'of admitting into membership employees without regard to the eligibility requirements of its Constitution. Ultimately, it failed to establish that assertion, and the application for certification was dismissed.

69In the case before the Board, whether the International does or does not have such a practice is unimportant until it is asserted and proved (by the party making the allegation) that the applicant cannot admit into membership certain individuals who have signed applications for mem­bership, because of the provisions of its Constitution. No such assertion has ever been made, not­withstanding that Mr. Abbass did not dispute that he had, well in advance of the hearing, a copy of the applicant's Constitution (albeit one that was outdated). Even if the applicant were to acknowl­edge that it had no practice of admitting individuals to membership without reference to its eligibil­ity requirements, the moving party would still be required to assert and prove that some of the individuals applying for membership could not be made a member of the applicant because of the International's Constitution. It would not be necessary to speak to each employee to properly plead such as allegation. All that would be required would be for counsel to review the Constitu­tion and to both assert and establish that certain classes of employees of the employer would not be eligible for membership in the applicant because of a constitutional provision. If this is in fact proved, the union would then be required to establish facts to satisfy section 105(4) of the Act should it wish to rely upon the membership applications submitted on behalf of those employees.

(j) Substantial Change in the Workplace

70After the Board reserved on the above-noted matter, the parties addressed a further matter raised in the "Wish to Participate" filed by the group of objecting employees. That docu­ment asserts that the applicant ought to be barred from applying for certification with the same membership evidence utilized in Board File 3606-94-R on the grounds that "there has been a sub­stantial change in the workplace".. No material facts were pleaded by the group of objecting employees. Mr. Abbass, at the request of the Board, was asked to outline those facts relied upon in support of the motion. After doing so, counsel for the applicant indicated that he could not agree to all of the facts asserted so as to permit argument on the basis of agreed facts, and the Board asked Mr. Abbass to address the issue of whether he ought to be permitted to proceed in light of Rules 14 and 20 of the Board's Rules of Procedure.

71Mr. Abbass asserted that the Board should not be "over technical" regarding pleadings, that the material facts were "evident", and stated that the Board had a "problem" if the facts were not clear to it; he further claimed that the material facts he was relying upon were "known to everybody". Counsel for the employer had no submissions on this issue. Counsel for the applicant indicated that he desired the party bringing this motion to call evidence supporting the allegations in light of the fact that he could not agree to a number of the assertions raised by Mr. Abbass. In response, Mr. Abbass indicated that if it were necessary for him to call evidence, he would be pre­pared to do so at the start of the next hearing day. Ultimately, after recessing, the Board ruled that the moving party would be allowed to rely upon the material facts asserted earlier that day, and, if necessary, would be required to call evidence to support the assertions. However, it appeared to the Board that most, if not all, of the facts relied upon could be subject to agreement, and the hearing was recessed at that time to allow counsel to discuss that possibility. Eventually, facts were agreed upon by the parties for the purposes of the motion.

72During argument on the issue of whether the moving party ought to be able to assert material facts for the purposes of this motion, Mr. Tarasuk somewhat abruptly asserted, for the first time, another theory regarding the abuse of process committed by Local 175 in Board File 4078-94-U. Counsel asserted that either Local 175 or the International may well have brought the instant certification application for the sole purpose of denying the employer the opportunity to operate without the existence of a "statutory freeze" in place. Mr. Tarasuk was asked if he was requesting that the Board reconsider its earlier decision; he indicated that he was not. However, he did question whether the Board ought to be considering a further "abuse of process" argument at that point. He also asserted that the Board ought to have raised the matter on its own motion, and that the parties were not required to. Eventually, after entertaining argument from other counsel, the Board indicated that the abuse of process issues were well behind the parties and that the Board would not hear further submissions on the matter. Mr. Tarasuk thereupon indicated he would withdraw his submission, if the Board were indicating that it was "not concerned" about the allegation. After a subsequent recess, the parties were advised that the Board is always concerned about possible abuses of its processes. However, allegations of such a nature cannot be made frivo­lously. They must be properly pleaded, in a timely manner, and new theories relating to a previ­ously argued matter cannot merely be "sprung" upon the other parties (and the Board) during the middle of a hearing.

73The agreed-upon facts referred to above were filed with the Board. It was agreed that the franchise in question had changed ownership, by way of asset transaction, from Murai Hold­ings to the employer, and that Vic Murai no longer had anything to do with the operation of the business. It was also agreed that employees at the business have different lengths of service. It was agreed that the parties' agreement regarding the scope of the bargaining unit in Board file 3606-94-R (in which it was agreed that the Head Cashier was excluded from the bargaining unit) could be referred to during argument. On these agreed facts, the above-noted motion was argued.

74In essence, it was Mr. Abbass' argument that because the workplace was now "substan­tially different" than it was when the membership application cards were signed, the Board ought not to entertain this application. Counsel asserted that the workplace was different in a number of ways: a new employer had purchased assets of the former employer, Murai Holdings; accordingly, the common law contracts of employment had been terminated upon the sale and new contracts of employment now governed the relationships of the employees with the employer. Furthermore, the principal of the new employer was a different individual than the predecessor employer. Coun­sel asserted that the International's request that the Head Cashier be included in the bargaining unit in this application reflected a "change in management structure". A further difference was asserted because of the lack of knowledge the employees had regarding the certification process prior to Local 175's application, which did not now hold true; counsel asserted that the employees ought to have been given an opportunity to consider whether they wanted an international union to represent them. Mr. Abbass further asserted that the work force is now "treated" in a different way and has different "seniority". Finally, it was Mr. Abbass' assertion that, as the Act addresses successor employers in section 64, it would have been acceptable if the employer were a different entity for the purposes of this proceeding. However, when both the applicant and the responding party are different entities, there is reflected "a real substantial change" in the workplace.

75Counsel for the employer had no submissions on this motion. After recessing, the Board advised counsel for the applicant that it did not need to hear from him on this motion. The parties were provided with the following oral ruling:

The group of objecting employees assert that I ought to refuse to entertain this application on the grounds that there has been a substantial change in the workplace. I do not believe that any substantial change in the workplace has been established, assuming, for the purposes of this motion, that even if such a change had been established, it would be a relevant factor in the exercise of the Board's discretion.

There is no evidence before me that there has been a substantial change in the workplace, as between the group of employees governed or affected by Board File 3606-94-R and Board File 4106-94-R - in point of fact, counsel, during a prior motion, relied upon the Board's interim decision of March 9, 1995 to assert that the Board had found as a fact that this application gov­erned "the same employees" and "the same employer". It is evident that the same group of employees will be affected by the application before me. There is no suggestion or evidence that the nature of the workplace has changed; and the fact that this applicant has suggested that the Head Cashier be included in the unit is hardly indicative of a "substantial change in the work­place". Nor are the legal consequences of an asset sale relevant when considering the concept of "substantial change in the workplace", at least on the facts of this case where there is no evi­dence that any employee's employment was not "picked up" by the current employer.

It was argued that, in light of section 64 of the Act, it would not have been fatal for the appli­cant if it had applied to represent the employees of Vic Murai Holdings Ltd., on the basis that section 64 would apply to reflect the new name of the employer. It was asserted that, with a new applicant, though, this was a different matter. Oddly enough, the transcript filed in evidence and the argument of counsel on a previous motion suggests that (a) it was clear at the outset of Board File 3606-94-R that the employer's name had changed to Robert M. Heenan Sales Ltd. and (b) that counsel asserted that Local 175 ought to have amended its application to reflect the "International" as applicant in Board File 3606-94-R. The consequences of both (of these) facts would be that it would be satisfactory for the (application in) Board File 3606-94-R to be amended to read identically to Board File 4106-94-R, but it is not satisfactory if the application (in Board file 3606-94-R) is withdrawn by Local 175 and a new application is then filed by the International. I fail to understand the distinction. Accordingly, this motion is dismissed.

(k) Nature of the Membership Evidence

76At this juncture, it was agreed that the Board would hear argument on the issue raised by both the employer and the group of objecting employees respecting the nature of the member­ship evidence relied upon by the applicant in Board File 4106-94-R. This is a matter which had pre­viously been argued by counsel for the employer and counsel for the group of objecting employees before the panel seized with Board File 3606-94-R. A transcript of argument on that issue that the parties agreed reflected the argument made at that time had earlier been placed before the Board by the parties. Accordingly, counsel agreed that the Board should refer to that argument, aug­mented by their submissions. Counsel for the International made full submissions before the Board at the hearing. The Board has reviewed all of the above materials, the submissions of counsel, and has carefully read all of the cases referred to before it and referred to in the transcript.

77The membership application before me reads thusly:

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

_________________________________________________________________________________ Date: ____________ 19____

SIGNATURE OF RECEIVER

Applicant Employee's Name & Home Address

PRINT

LAST NAME

FIRST NAME

ADDRESS _________TEL.

Apt. Number/Street

CITY _______P/CODE _____

EMPLOYER/O. ______JOB ________

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

UNITED FOOD AND COMMERCIAL WORKERS INTERNATIONAL UNION, LOCAL 175

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.

Date _______,19 X ________________________

Signature of Applicant

The issue to be determined is the nature of the membership application - is it one which is a mem­bership application for the International, as was asserted in argument by counsel for the employer and counsel for the group of objecting employees, or is it one which is an application for member­ship in both Local 175 and the International, as was asserted by Mr. Stout, on behalf of the Inter­national. Alternatively, the document could be considered to be a membership application for Local 175.

78At this point it is appropriate to address a certain submission made by both Mr. Abbass and Mr. Tarasuk during argument. When this same issue was argued before the panel seized with Board file 3606-94-R, counsel for Local 175, Mr. Kucey, argued that the same document was clearly an application for membership in Local 175. Both Mr. Abbass and Mr. Tarasuk asserted that Mr. Stout, on behalf of the current applicant, could not now argue otherwise, and that the Board should not allow Mr. Stout to argue that the membership application is one for membership in both the International and Local 175. This submission is entirely without merit. Both counsel asserting this proposition conceded that the International and Local 175 were separate trade unions. In light of that concession, it is difficult to understand how it could be legitimately argued that counsel for the International should not be allowed to make different submissions on this issue than did counsel for Local 175 previously. Accordingly, counsel were advised that the Board would entertain Mr. Stout's argument.

79The nature of the membership application card is critical in this proceeding. As was noted above, the Board's jurisprudence establishes that an application for certification brought by an international or parent trade union can be supported by membership applications in an affili­ated local trade union. Such an application for certification may also be supported by applications for membership in the international or parent trade union, if the Constitution of the applicant per­mits for such membership. In this particular case, it is evident from the Constitution of the Interna­tional and the By-Laws of Local 175 that membership in the International is obtained, for "active members" at least (and there is no dispute that the employees in question would be admitted to membership in the applicant as "active members"), through Local 175; that is, that there is no such thing as an International membership application that would support an application for certi­fication brought by the International.

80Having reviewed the membership application card, the relevant Board jurisprudence, the exhibits before the Board, and having considered the argument of counsel, the Board is of the view that the application card in dispute is one which evidences an application for membership in both Local 175 and the International.

81This is not the first time that the Board has considered the nature of a similar member­ship card. In Oshawa Food Group Ltd., [1995] OLRB Rep. Apr. 477 the Board (differently consti­tuted) made the following comments regarding an identical card (with the exception that the local union in question was Local 1977):

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

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

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

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

A similar conclusion was reached by the Board in Zellers Ltd. (unreported, Board Files 4207-94-R and 4208-94-R, April 7, 1995). It was unnecessary, in the Oshawa Food Group Ltd. decision, for the Board to address the question of whether almost identical membership evidence went beyond an application for membership in the local union. In this case, the exact legal nature of the mem­bership application has been put into issue.

82A number of Board decisions were cited during argument. The case which most closely mirrors this one on its facts is Chapleau Forest Products Limited [1990] OLRB Rep. Dec. 1243 (ju­dicial review to Divisional Court dismissed April 25, 1991; leave to appeal to the Court of Appeal denied September 23, 1991) where the membership application card in issue read as follows:

APPLICATION FOR MEMBERSHIP

IWA-CANADA, LOCAL 1-2995

Affiliated with CLC

(Please Print)

NAME

ADDRESS

CITY

Employee of

Birth Date ____________________________________ Phone __________

I hereby request and accept membership in the IWA-CANADA and of my own free will thereby authorize this union to act for me as the collective bargaining agency in all matters pertaining to rates of pay, wages, hours of employment or other conditions of employment. I hereby certify that the amount shown below, was paid by me to be applied to initiation fees or monthly dues of the Union, and as evidence of good faith in my application for membership.

Amount — ONE—X/100 Dollars Date

Signature of

Applicant

Signature of Receiver

of above money

The Board made the following observations regarding the nature of that membership application card:

10. The majority of the panel, with W. H. Wightman dissenting, orally ruled at the hearing that it could find no basis for dismissing the application, having regard to the membership evidence filed by Local 1-2995. In circumstances virtually identical to those before us, the Board in Menkes Developments Inc., supra, determined that the form of the membership evidence was a reliable indication that the employees who signed those cards were members of the applicant. The membership card in that case was different only to the extent that it had a receipt portion which specified the local union. In the majority's view, this is not a material difference. In response to an argument that the cards were ambiguous and were not sufficient to support certi­fication without a vote, the Board wrote the following:

11. Evidence of membership in an International Union is not generally accepted by the Board as evidence of membership in a local thereof. (See for example Bernard in of Canada Limited, [1975] OLRB Rep. Oct. 737). However, membership in a local is accepted as evidence of membership in the parent international (see for example The Explorer Inns, Limited, [1978] OLRB Rep. June 541). In every case, however, the Board will examine the material facts and an apparent ambiguity in the documentary evidence will not be fatal provided that, as a whole, it points unequivocally to mem­bership in the applicant (see for example Wallaceburg Hydro Electric Systems, [1975] OLRB Rep. Oct. 783; Union Electric Supply Co. Limited, [1983] OLRB Rep. May 829; General Motors of Canada Limited, unreported decision of the Board dated December 28, 1984 in Board File No. 2418-94-R). It was the Board's view that the documentary evidence filed in support of this application is sufficiently unambiguous for the Board to be satisfied that it relates to the applicant and that no reasonable employee would have been confused by it. The cards are clearly applications for membership. Further, both the application and receipt portions refer clearly to the applicant. The cards are clearly applications for membership in both the Labourers' International Union of North America and its Local 506. Accordingly, the Board ruled orally that the applicant's documentary evidence of membership is a reliable indication that the employees to whom it relates were members of the applicant.

(See also the excerpts above at para. 81). It should be observed here that the Board, in Chapleau Forest Products, makes reference in its decision to both Menkes Developments Inc., [1987] OLRB Rep. Oct. 1290 and Union Electric Supply Co. Limited, [1983] OLRB Rep. May 829. These cases were also referred to by counsel before this panel of the Board.

83Counsel for the employer distinguished the Chapleau Forest Products decision on the ground that the membership application card in question was entitled, at the top, "Application for Membership", and thus clearly was an application for membership in the local trade union referred to immediately beneath it. Counsel submitted that the absence of such a title on the card in ques­tion in this proceeding was fatal. With that one exception, there are no substantial differences between the card before the Board in the Chapleau Forest Products decision and the one before this panel of the Board. In both cases, the text of the card quite clearly evidences a request by the individual signing the card that he or she be admitted to membership in the parent trade union, rather than the local trade union referred to at the top of the card.

84In the Board's view, the absence of the words "Application for Membership" at the top of the membership application card does not have the significance that counsel for the employer suggested during argument. Individuals faced with such a card would reasonably be aware that it was an "application for membership"; the presence or absence of those three words could hardly have a meaningful effect on the nature of the document signed. It is notable that the Board in Chapleau Forest Products did not specifically state that those three words were in any way determi­native of the issue before it. Accordingly, the Board can see little, if any, distinction between the membership application card before the Board in Chapleau Forest Products and that before the Board in this proceeding. It is evident that the signer of the card could, quite reasonably, expect membership in both Local 175 and the International. Such a conclusion is consistent with the prin­ciple that Board decisions should themselves be consistent, in order to permit the labour relations community to guide itself by Board jurisprudence.

85During argument both Mr. Tarasuk and Mr. Abbass submitted that "Board jurispru­dence" established that only "the body" of the membership application card was relevant when considering the nature of the membership application. No cases were presented to the Board establishing that principle; in fact, the argument of counsel went well beyond "the body" of the membership application card to consider other factors. In the view of the Board, the entire card ought to be taken into account by the Board when considering the nature of the document and whether a reasonable employee would be confused by the card when reading it. It is unnecessary in this case to determine whether other materials, such as the campaign materials and the organizer's business cards (which in this case pointed towards membership in Local 175) are relevant, as the Board is of the view that the membership application cards, when considered in their entirety, evi­dence a desire to apply for membership in both Local 175 and the International. It should be noted here that the "receipt" portion of the membership card in this case pointed towards the conclusion that International membership was also being requested; it did not, however, detract from the con­clusion that membership in Local 175 was also being requested by the signer of the card.

86Accordingly, the Board is of the view that the membership application cards relied upon by the applicant in Board file 4106-94-R are membership applications in both Local 175 and the International.

(1) Misdated Membership Evidence

87During deliberations on the issue of the nature of the membership evidence, it came to the attention of the Board that one piece of membership evidence before it was dated "December 9, 1995", 10 months subsequent to the certification application date. This misdated card was brought to the attention of the parties on April 10, 1995. The card is said to have been witnessed on January 9, 1995, and otherwise appears to be properly completed. The Form A-4 filed with the Board does not, in paragraph 3, disclose this card as an exception. Counsel were requested to sub­mit written argument on what, if any, consequences ought to occur as a result of these facts. Sub­missions from the applicant were received on April 13, 1995 and April 18, 1995; submissions from the other parties were received on April 13, 1995.

88On May 9, 1995, the parties were provided with the following decision and reasons for decision:

I have considered all of the written submissions made by counsel in this proceeding, and I have read all of the authorities referred to and enclosed with the correspondence.

In my view, the error which is evident on the face of the card ought to have been disclosed in paragraph 3 of the Form A-4 filed with the Board. Although the Form A-4 does not specifically require the declarant to verify the dates upon which each membership application card is signed, the declaration does require that the declarant verify that the cards filed in support of the appli­cation are "membership evidence"; implicitly, this requires that the cards be properly dated. No matter how the card in question is interpreted (and there are, as Mr. Abbass noted, a number of possible interpretations of the card) it is not properly dated as required by Rule 48 of the Board's Rules of Procedure. There is no allegation before the Board that the omission of this discrepancy in the Form A-4 is anything more than an oversight. That being said, the discrep­ancy ought to have been disclosed in the Form A-4.

The parties have addressed the consequences which ought to result from the omission of the error on the membership card in the Form A-4. Counsel for the employer asserts that the appli­cation must be immediately dismissed. Counsel for the group of objecting employees concurs, but offers as an alternative that the Board order a representation vote. Counsel for the union wishes, if necessary, to call evidence on the issue of the proper date of the card.

Counsel for both the employer and the group of objecting employees have relied upon the deci­sion of Guelph Paper Box Company Limited [1985] OLRB Rep. May 673 to support their posi­tion. In my view, a full reading of that decision supports the applicant's proposition. In that decision, 3 cards before the Board were defective and/or suffered from difficulties; two were incorrectly dated (one stale dated, one without a date but with the month and year) and one did not disclose the $1.00 payment then required by the Act. These errors were not reflected by the Form 9 (as it then was) filed with the Board. Referring first to the card which did not disclose the $1.00 payment, and, secondly, to the two improperly dated cards, the Board stated, as fol­lows, at paragraph 2:

Having regard to the requirements of Rule 73 of the Board's Rules of Procedure, the defect was not one which could have been cured by oral evidence of payment: see P.R. C. Chemical Corporation of Canada Ltd., [1980] OLRB Rep. May 749. The problem with the other two cards concerned their dates. Difficulties with dates can be cured with oral evidence: Campbell Soup Company Limited, [1966] OLRB Rep. Mar. 883; P.R.C. Chemical Corporation of Canada Ltd., supra, at paras. 20-23.

Earlier, in Maple Leaf Mills Limited [1984] OLRB Rep. Oct. 1474, the Board, citing P.R.C. Chemical Corporation of Canada Ltd., supra, observed the distinction between defects in docu­mentary evidence which are "substantive" in nature, and those which are "merely formal or technical". It was expressly stated that the absence of information such as the date of the appli­cation for membership in a trade union is a "formal or technical" defect because it did not go to the substantive elements of proof of membership. The Board went on to note that it can enter­tain viva voce evidence in order to establish the date (in that case, on which payment of $1.00 was made). I note that in Maple Leaf Mills Limited the defects were not disclosed in the Form 9 declaration and the Board did entertain evidence from the declarant and two collectors of the membership evidence. Likewise, in Guelph Paper Box Company, supra, the business agent of the applicant who received the two improperly dated cards testified as to the dates that ought to have been reflected on the cards filed with the Board.

In my view, the Form A-4 filed with the Board is not fatally flawed because it omits to note the improperly dated card. However, the error on the card means that, at this point at least, no weight can be given to the particular card. Should the applicant determine that it wishes to adduce viva voce testimony before the Board to cure the difficulty apparent from the face of the card, it should advise the Board (and counsel for the other parties) and a hearing date will be set to entertain such evidence.

Ultimately, testimony was adduced by the applicant which established that the membership appli­cation card was in fact executed on January 9, 1995.

(in) Status of Head Cashier

89One of the outstanding issues between the parties was the "employee" status of the Head Cashier; the applicant asserted that the Head Cashier, Ms. Diane Hodder, was an employee for the purposes of the Act and ought to be included on the list of employees. Both the employer and the group of objecting employees asserted that the Head Cashier was a managerial position, and ought to be excluded from collective bargaining pursuant to section 1(3) of the Act.

90The Board heard the evidence of Ms. Elaine Oster, a computer operator for the employer. Prior to assuming her current position, Ms. Oster filled many roles, including that of Store Manager and Head Cashier. Ms. Oster testified regarding the duties and responsibilities of the Head Cashier position during her tenure, which ended on or about December 29, 1994 (at which time Ms. Hodder was promoted to the position). After hearing the testimony of Ms. Oster, the applicant advised the Board that it was prepared to acknowledge that, as at February 21, 1995, the certification application date, Ms. Hodder was not an "employee" for the purposes of the Labour Relations Act, and therefore that her name ought not to be included on the list of employ­ees.

(a) Ms. Hodder's Involvement in the Applicant's Organizing Drive

91An issue related to the above issue is the effect of Ms. Hodder's involvement in the organizing drive relating to the employees of this store. There is no dispute amongst the parties that Ms. Hodder, the employer's Head Cashier, became involved in the organizing drive which for all intents and purposes commenced on January 9, 1995. There is, however, a divergence of views regarding the legal effect of that involvement. At the same juncture the Board entertained evi­dence and argument respecting an issue raised by the group of objecting employees, namely that there was some confusion created during the organizing drive because the entity that was organiz­ing the employees was Local 175 and not the current applicant, the International. The group of objecting employees asserts that the International ought not to be able to bring this application as it was not the entity organizing the employees.

92The Board heard the testimony of three witnesses regarding these issues. Mr. Tim Ryan and Mr. Bill Kalka testified on behalf of the applicant. Messrs. Ryan and Kalka were the two indi­viduals who organized the employees of the employer during January, 1995. Neither was, at the time, a full-time organizer for either the International or Local 175, but both were acting in that capacity at all relevant times. The Board also heard the testimony of Ms. Hodder, who testified on behalf of the employer.

93Although many of the facts relating to these two issues are not in dispute, the parties do not agree on the conclusions that ought to be drawn regarding particular events alleged in the pleadings. In this case, as in many others, it has been necessary for the Board to consider the credi­bility of the witnesses who testified. Each party to this proceeding urged the Board to accept the testimony of the witness or witnesses who testified on its behalf, and to reject the testimony of those who testified on behalf of the other parties. At times, the testimony of each witness was trou­blesome. Mr. Ryan, in the Board's view, testified to the best of his recollection but could not recall in sufficient detail many of the events in dispute. Mr. Kalka had a similar difficulty recalling details and often was clearly speculating as to what may well have occurred, rather than testifying as to what he could definitely recall. Furthermore, at times Mr. Kalka could not resist the tug of self-in­terest, initially denying, and then acknowledging, the most reasonable of propositions which were put to him in cross-examination. Just as troublesome was the testimony of Ms. Hodder. Ms. Hod­der was, at times, inconsistent in her testimony and, in the view of the Board, did not, at times, testify in a frank manner. Where it is necessary to do so the Board will comment on the specific testimony of these witnesses.

94What follows are the factual findings that are made by the Board with respect to these two issues.

95On December 28, 1994, Ms. Hodder met with Mr. Vic Murai, then the owner of the franchise subject to this application, and Ms. Elaine Oster, the Store Manager and Head Cashier. During that meeting, Ms. Hodder was offered the position of Head Cashier, effective, for all intents and purposes, immediately. The offer was accepted by Ms. Hodder and she was provided with a letter dated December 29, 1994, confirming her acceptance of this position and outlining the duties and responsibilities inherent in the position of Head Cashier. The duties include the hiring, training and termination of cashiers, the enforcement of store policies and regulations, and the scheduling of hours for cashiers. Ms. Hodder would also be responsible, on occasion, to act in the role of "duty manager", in which role she would be responsible for the entire store. As noted above, it is agreed by the parties that by February 21, 1995, the certification application date, Ms. Hodder had exercised managerial functions to such a degree that she ought to be excluded from the bargaining unit. However, as will become evident shortly, what is pertinent for the purposes of this particular issue is the knowledge and perceptions of employees of the authority held by the Head Cashier as at January 10, 1995.

96The Board is satisfied that shortly after Ms. Hodder's promotion to the position of Head Cashier all cashiers became aware of the appointment. There is no dispute that shortly after the appointment a notice was posted to the effect that Ms. Hodder had been awarded the position, and that a number of the cashiers reacted to the promotion (most congratulating Ms. Hodder, but one employee resigning). As this notice was posted on a bulletin board in a coffee room for employees, it would also seem reasonable to conclude that other employees became aware of the promotion soon after it was effected.

97Ms. Hodder testified as to the exercise of her duties up to January 10, 1995. Having regard to all of the evidence, the Board is satisfied that Ms. Hodder exercised many of the duties and responsibilities of the position of Head Cashier prior to January 10, 1995. These included scheduling cashiers, directing cashiers on a day-to-day basis, and disciplining cashiers when neces­sary. As Ms. Hodder had only been in the position for just over a week as at January 10, 1995, it is not surprising that she had not hired or fired individuals by that date. Nor had she acted in the role of duty manager by that date. However, there is no doubt that she did carry out, on a daily basis, many of the duties inherent in the job of Head Cashier prior to January 10, 1995. Just as impor­tantly, if not more importantly, the Board is satisfied that it would not have been lost on the cash­iers that Ms. Hodder was their immediate boss as at the time of her appointment, and that she would have the authority to hire, discipline and terminate the employment of cashiers, and to schedule their work. The letter of December 29, 1994 outlining the scope of Ms. Hodder's author­ity was not posted beside the announcement of Ms. Hodder's promotion. Nonetheless, Ms. Oster, the previous Head Cashier, definitely held that authority and although any particular exercise of that authority by Ms. Oster could have been made in the role of Store Manager rather than that of Head Cashier, the Board is satisfied, on balance, that the cashiers would have been under the belief that as Head Cashier Ms. Hodder had the power to direct and, if necessary, discipline them.

98The significance of this becomes apparent once one considers the events of January 10, 1995. That evening, Mr. Kalka, Mr. Ryan and one Mr. Lyle Smith, all acting on behalf of Local 175, met with approximately 18 to 20 employees of the then employer, Murai Holdings. Ms. Hod­der, who had been invited to this meeting by Mr. Greg Logue, an employee, drove herself and four other employees to the Red Dog Inn to meet with Mr. Kalka. Shortly after her arrival, she raised with Mr. Kalka a concern she had regarding her attendance at the meeting. It is unclear from the evidence how many of those present heard the discussion between Ms. Hodder and Mr. Kalka. Ms. Hodder's testimony ranged from stating that "everyone" heard her to the statement that some of the people could have heard her: In any event, Mr. Kalka, after briefly speaking with Ms. Hodder, and contacting his Regional Director, Mr. Onichuk, satisfied himself that Ms. Hod­der could remain at the meeting and sign a membership card if she so desired. Accordingly, Ms. Hodder remained in the room.

99Subsequently, Mr. Kalka spoke to the employees present and asked them to sign mem­bership cards which were distributed. The Board is satisfied that during his presentation to those present Mr. Kalka indicated that Local 175 is a trade union which is affiliated with the Interna­tional. Ms. Hodder immediately read the card given to her, completed it (noting on the face of the card that she was a "cashier"), and signed it. Later in the meeting she confirmed to Mr. Kalka that she had signed the card. Certain other employees signed membership cards at that time, including one cashier who works under the direction of Ms. Hodder. There is no doubt that Ms. Hodder was in the position to view other individuals executing their membership cards, and that other employ­ees would have been aware of Ms. Hodder's presence in the room.

100Prior to Ms. Hodder's testimony, the Board determined that the membership applica­tion card relied upon by the applicant was both a Local membership card and an International membership card. During her testimony, Ms. Hodder stated that the card she signed referred only to Local 175 in the body of the card, and that, had she known that she was executing a membership card in favour of both the Local and the International, she would have raised some questions about the consequences of doing so, in particular the possibility of paying double dues, and concerns about dues money being sent to the United States. The Board rejects this testimony in its entirety. In the view of the Board, Ms. Hodder did not testify in a frank or honest manner when describing her "concerns" about becoming a member of the International. After testifying that she had read her card thoroughly before signing it, and that she was certain that it only made reference to Local 175, her card was put before her and, as noted above (in paragraph 77), it became quite apparent that the body of the card refers to the International. During re-examination, Ms. Hodder revised her testimony to say that she had only "browsed" over the card, rather than having read it. Quite simply, Ms. Hodder was not credible on this point. She acknowledged having been a member of Local 175 previously while employed in Kenora, Ontario, and also acknowledged that she went to the meeting and signed a card primarily to force Mr. Murai, whom she disliked, out of the busi­ness. In the view of the Board, on January 10, 1995 Ms. Hodder was quite willing to join either or both the International or Local 175, and at no time had a concern about "double dues" or the pos­sible flight of dues money to the United States.

101After the employees at the meeting of January 10, 1995 had signed membership cards, a fellow employee came up to Ms. Hodder and indicated that an insufficient number of applications for membership had been signed. Ms. Hodder was asked by this employee to call some cashiers not then present in order to obtain more applications for membership. Using the phone in the room, Ms. Hodder called a part-time cashier and asked her to attend at the hotel room to sign a card because "we needed her". Ultimately, that cashier did so and advised Ms. Hodder the next day that she had signed a card. On that same day, Ms. Hodder called a second part-time cashier from work, told her that an insufficient number of people had signed cards, and told her to "get her butt down" to the hotel room to sign a card in favour of the union. Again, that employee did so on the way into work and advised Ms. Hodder the same day that she had executed a card as requested.

102On these facts, the Board must determine what result is appropriate. In a nutshell, Mr. Tarasuk asserts that the facts establish a violation of section 13 of the Act, and requests that the application be dismissed. Alternatively, Mr. Tarasuk states that, at the very least, the Board cannot be satisfied that the membership application cards represent the true wishes of the employees because of the potential influence that Ms. Hodder would have had on the willingness of those present at the meeting, and those whom she called, to execute membership cards. In such a case, Mr. Tarasuk urges the Board to direct the taking of a representation vote pursuant to section 8(3) of the Act. Mr. Abbass, on behalf of the group of objecting employees, focused his argument pri­marily on the issue of "confusion" and asserted that Local 175 was the organizer, and that it is inappropriate to permit the International to apply for certification because the employees would have been under the impression that Local 175 was the entity it had authorized to apply for certifi­cation. Authorities cited by Mr. Tarasuk and Mr. Abbass in support of their positions are Shaw Industries Ltd., [1993] OLRB Rep. Aug. 798; Ontario Hydro, [1989] OLRB Rep. Feb. 185; Addidas Textile (Canada) Ltd., [1980] OLRB Rep. May 639; Elk Lake Planing Mill Limited, [1981] OLRB Rep. Apr. 446; Waldorf-Astonia Hotel, [1981] OLRB Rep. Sept. 1308; and IATSE, [1995] OLRB Rep. July 954.

103Mr. Stout argues, on behalf of the applicant, that section 13 of the Act has not been vio­lated, focusing on Ms. Hodder's admission that she participated in this organizing drive on her own accord, contrary to the wishes of Mr. Murai. In such circumstances, the purpose underlying section 13 of the Act is not satisfied by dismissing the application. With regard to the potential influence of Ms. Hodder on those who signed membership applications, Mr. Stout focuses on the testimony of Ms. Hodder who stated that she considered these cashiers friends and never overtly threatened anyone. Further, Mr. Stout argues that the organising drive was employee-driven and therefore the Board can be more comfortable regarding the voluntariness of the cards submitted. Further­more, counsel submitted that the cashiers asked by Ms. Hodder to sign applications for member­ship themselves had some potential information to provide Mr. Murai (i.e. that Ms. Hodder was a union supporter) and that holding such information would lead them to believe that Ms. Hodder would not retaliate against them in any way. As well, Mr. Stout asserted that Ms. Hodder was not the collector of the cards and submitted that in those circumstances her influence was negligible. Ultimately, Mr. Stout asserted that there was no clear or cogent evidence that anyone was intimi­dated or coerced into signing a membership application. With regard to Mr. Abbass' arguments relating to confusion, Mr. Stout asserted that the evidence established that both Local 175 and the International was identified by Mr. Kalka, and that as a matter of law the International can utilize a local union affiliate's membership application in any event. Authorities cited by Mr. Stout were Consumers Distributing, [1995] OLRB Rep. Mar. 250; Ontario Hydro, supra; Menkes Develop­ments Inc., [1981] OLRB Rep. Sept. 1290; Children's Aid Society of Metropolitan Toronto, [1976] OLRB Rep. Nov. 651; Japamco Company Limited, [1979] OLRB Rep. Feb. 106; Davis Distribut­ing Ltd., [1994] OLRB Rep. Sept. 1190; Bond Structural Steel (1965) Ltd., [1979] OLRB Rep. Dec. 1137; and Versa Services Ltd., [1995] OLRB Rep. Jan. 79.

104The argument that the conduct of Ms. Hodder establishes a breach of section 13 of the Act cannot be sustained. Section 13 of the Act provides, in part, as follows:

The Board shall not certify a trade union if any employer or any employer's organization has participated in its formation or administration or has contributed financial or other sup­port to it

The Board was referred to a number of decisions respecting the scope of section 13 of the Act, and its predecessors. In Ontario Hydro, [1989] OLRB Rep. Feb. 185, the Board made the following observations regarding the involvement of persons who exercise managerial functions in a trade union's organizing campaign:

75. The Board has on several occasions addressed the proposition that involvement in a trade union's affairs or organizing campaign by persons who exercise managerial functions within the meaning of subsection 1(3)(b) amounts to employer support within the meaning of section 13. Some older decisions suggested that it did: Federal Packaging and Partition Company Limited, [1972] OLRB Rep. Apr. 316; Kelly Funeral Homes Limited, [1973] OLRB Rep. Feb. 87; Leamington District Memorial Hospital, [1973] OLRB Rep. June 376. Later decisions, however, rejected the automatic application of section 13 in these circumstances, as the Board noted in Addidas Textile (Canada) Ltd., [1980] OLRB Rep. May 639, where (at paragraph 6) it said this about what is now section 13:

The purpose of this section, in keeping with the scheme of the Act, is to maintain the necessary arm's length relationship between employees on the one hand, and trade unions, as representatives of employees, on the other. In applying section 12[now 13], the Board has drawn a distinction between support tendered by the employer, either directly or through persons holding managerial positions within his organization, and support tendered by persons who occupy management positions within his organiza­tion, and support tendered by persons who occupy management positions but act on their initiative against the employer's interest in support of the interests of the employees. Although a question may arise in these latter circumstances as to the voluntariness of the membership evidence, the necessary arm's length relationship between employer and trade union may not be undermined in a manner which requires the automatic application of the section 12 bar. In rejecting the automatic application of section 12 in these circumstances (as in the Leamington Hospital case, [1973] OLRB Rep. June 376) the Board stated at para. 14 of the Children's Aid Society case, supra:

“…….The Board recognizes that in the modern organizational setting interests of indi­vidual persons deemed to be managerial are not necessarily coincidental with those of the employer. If the evidence establishes that such persons acted on behalf or in the interests of the employer then undoubtedly the section 12 bar would apply. If, how­ever, the evidence establishes that the persons were acting not on behalf of the employer but contrary to the wishes and interests of the employer (see Air Liquide case (1964) CLLC 16,002) then it cannot be said that the employer has participated contrary to section 12, or section 56 for that matter. Similarly if the evidence estab­lishes that the disputed persons have been acting in their self interest rather than on behalf of or in the interest of the employer, then again section 12 should not be acti­vated."

(See also Edwards and Edwards Ltd. 52 CLLC ¶17,027, Municipality of Casimir, Jennings and Appleby, supra, Japamco Company Limited, supra and York Steel Construction Limited, deci­sion dated January 24, 1980, unreported, Board File No. 1501-79-R.) The purpose of the section is to prevent the certification of a trade union which is party to a "sweetheart deal" with an employer or is the recipient of employer support so that it does not owe its sole allegiance [sic] to those whom it is certified to represent. The Board has consistently applied the section having regard to its underlying purpose.

Applying the principles set out in Ontario Hydro, supra, and the cases cited therein, no violation of section 13 of the Act has been established. Persons such as Ms. Hodder, who hold a managerial position, and act on their own initiative against the employer's interest, such as in this case, do not in any way undermine the "necessary arm's length relationship" between the employer and the trade union which is required by the Act. It cannot be disputed that both the International and Local 175 are trade unions with arm's length relationships from the employer in this proceeding, and Murai Holdings in the prior Board file. Accordingly, this argument must be dismissed.

105However, as noted in the excerpt from Addidas Textile (Canada) Ltd., [1980] OLRB Rep. May 639, quoted in Ontario Hydro, supra, the involvement of an individual who exercises managerial functions in the trade union's organizing campaign may raise a question regarding the voluntariness of the membership evidence. Such a question is raised in this case. The majority of membership application cards filed in support of this application were signed by employees in the presence of a manager excluded from bargaining pursuant to section 1(3) of the Act. One of those

employees was a cashier who reported to Ms. Hodder. Other membership application cards were obtained as a direct result of Ms. Hodder's personal request to two other cashiers who reported to her. Although it is apparent that the organizers did not intend for a person exercising managerial functions to remain at the initial meeting of employees (or perhaps to become involved in the recruitment of members), the fact is that a manager was present and visible at that meeting, was one of the first to execute a membership application, was in a position to view other employees who executed membership applications subsequent to her, and contacted cashiers who reported to her and asked them to sign membership applications.

106Section 8(3) of the Labour Relations Act provides as follows:

(3) The Board may direct that a representation vote be taken if it is satisfied that more than 55 per cent of the employees in the bargaining unit are members of the trade union on the certifica­tion application date or have applied to become members on or before that date.

As was observed by the Board in Shaw Industries Ltd., [1993] OLRB Rep. Aug. 798, at para­graphs 22 to 26, the scheme of the Labour Relations Act (prior to the advent of the Labour Rela­tions Act, 1995 in November, 1995) recognizes documentary evidence of membership or applica­tion for membership in a trade union as the primary basis upon which a certificate will issue. Upon satisfying the Board through the vehicle of the membership card or an application for membership that it represented more than 55% of the employees in an appropriate bargaining unit, a trade union would in the normal course be provided a certificate entitling it to represent, for employ­ment purposes, all of the employees of an employer in that bargaining unit. The utilization of a confirmatory representation vote is a residual mechanism to be resorted to only in exceptional cir­cumstances. In Shaw Industries Ltd., supra, the Board (at paragraph 28) described certain situa­tions where such a confirmatory representation vote may be appropriate:

Over time, the Board has developed a non-exhaustive list of what may be "compelling reasons" to order a vote in the circumstances where the union has otherwise filed evidence of sufficient membership support. A vote may be required where one of the following intervening factors arises and call the evidence into question: . . unreliable membership evidence (Gruyich Ser­vices, supra) .

107At the outset, it is appropriate to consider the reliability of the membership applications signed by the three cashiers who report to Ms. Hodder. Ms. Hodder's attendance at the meeting of employees, in which she sat within inches of a cashier reporting to her, and her subsequent involvement in contacting two of her direct reports to sign membership application cards, raises legitimate questions respecting whether the cards of any of those three employees reflects the vol­untary wishes of those individuals. During argument counsel for the applicant noted that Ms. Hod­der conceded during testimony that she had not coerced anyone into signing membership cards. He also asserted that the potential consequences to Ms. Hodder of participating in the organizing cam­paign would be a significant inducement to her to ensure that no one who chose to not join the union was negatively affected. These consequences would, he asserted, be anticipated by employ­ees who would be willing to reject the union confident that in doing so they were not putting their employment (or their current terms of employment) at risk.

108Neither of these observations cures the fundamental flaw represented by Ms. Hodder's involvement in the organizing campaign. Ms. Hodder's good faith and lack of intent to intimidate, coerce or influence the signing of membership application cards is not the issue. What is the issue is the reasonable perception of employees who are directly managed by Ms. Hodder, and in particu­lar whether they may have felt an obligation to support the manager's desire to unionize in order to ensure that their employment, or terms of employment, were not negatively affected. The Board cannot be satisfied, in the circumstances described above, that such an obligation was not felt by the three cashiers who signed membership applications on January 10 and 11, 1995. The "balance of consequences" scenario relied upon by counsel during argument seems to the Board to be some­what artificial and unrealistic. It is unlikely that a part-time employee whose hours of work depend on Ms. Hodder's scheduling authority would consider as a lever the fact that he or she could advise Mr. Murai that Ms. Hodder had participated in the organization of a union, as it could raise con­cerns regarding that employee's involvement as well. And as Mr. Murai may not properly disci­pline Ms. Hodder for her involvement, the cashiers would be left in the position of having to work under Ms. Hodder who would know that one or more of them had disclosed her participation in the union.

109None of Mr. Stout's other arguments satisfy the Board that these three membership cards were not signed in the shadow of Ms. Hodder's influence. The evidence before the Board does not establish that the organizing drive was "employee driven". In fact it establishes only that one employee contacted the offices of Local 175 regarding unionization. Furthermore, although Ms. Hodder did not collect the membership applications of the two cashiers whom she telephoned, she clearly induced the two to sign the cards, and it is significant that both, after signing, confirmed to Ms. Hodder their having done so. In all the circumstances, the Board is not satisfied of the voluntariness of the three cards signed by the cashiers.

110Argument was heard respecting the effect of Ms. Hodder's presence at the meeting on other cards signed that night. It is necessary to address that issue as the membership evidence filed by the applicant, excluding the three membership applications referred to above, establishes sup­port of 55.8% of the individuals in the bargaining unit. In this regard, the Board has accepted as valid the one card which was improperly dated. The evidence called by the applicant established quite clearly that the card was executed on January 9, 1995.

111Having considered the evidence and the submissions of the parties, I am convinced that the membership evidence signed by employees other than the three cashiers ought to be given full weight. It is true that Ms. Hodder was present in the room when most of the employees who signed membership application cards did so. It is also true that at that time she would eventually be assigned (on a rotating basis) the role of "duty manager", responsible for the operation of the store in the absence of the owner or store manager. Accordingly, there is potentially some merit to the argument that one or more of those in the room on January 10, 1995 may have felt compelled to sign applications for membership because of Ms. Hodder's presence.

112On balance, though, I am satisfied that, considered objectively, such a conclusion can­not be reached on the facts of this case. Ms. Hodder had not exercised any responsibilities as duty manager prior to January 10, 1995. There is, as well, no evidence to suggest that the employees of the store were aware on January 10, 1996 that Ms. Hodder would be assigned duty manager tasks in the future. Ms. Oster agreed when testifying that nothing was given to employees outlining the duties of the head cashier. The duty manager tasks are not included in Ms. Hodder's job descrip­tion which was filed with the Board as an exhibit. Ms. Hodder testified that she understood her job to be defined as contained in the job description, as that it reflected the discussion that she initially had with Ms. Oster and Mr. Murai. In that regard, Ms. Oster confirmed that she told Ms. Hodder that the Head Cashier's position consisted of the tasks contained in her job description. Ms. Hod­der also conceded in cross-examination that an employee who was not a cashier would have no rea­son to think that she was his or her boss because of the duty manager role which was occasionally performed by her. Ms. Oster confirmed that the department managers, when acting as "duty man­ager", would be expected to "handle problems" at the time they arise, but qualified her testimony, noting that managers are expected to handle their own staff and that duty managers had the "op­tion" to refer the situation to the department manager in question. Finally, Ms. Oster conceded that she could not recall disciplining anyone beyond her own department while acting in the role of duty manager.

113In all of these circumstances, I am satisfied that the employees in attendance at the meeting of January 10, 1995 who were not cashiers would not have been influenced by Ms. Hod­der's presence into signing a membership application card. The employees could have had no legit­imate fear of retribution from Ms. Hodder for refusing to do so.

114Accordingly, except as otherwise noted above, I am unwilling to conclude that the membership evidence before me is unreliable, and it is not necessary to order a representation vote pursuant to section 8(3) of the Act.

115With respect to the issue of "confusion", argued primarily by Mr. Abbass, that argu­ment cannot succeed. As noted above, I am satisfied that the membership application form utilized in this proceeding is a card which is dual in nature, in which the applicant requests membership in both Local 175 and the International. On the evidence before me, it is apparent that the campaign was carried out by individuals representing Local 175, but that the relationship between Local 175 and the International was made clear to those in attendance. Most importantly, I reject the evi­dence of Ms. Hodder respecting the "concerns" she alleges she now has regarding the conse­quences of signing a membership application for both Local 175 and the International. Ms. Hod­der's testimony was unpersuasive. There is absolutely no credible evidence before me that anyone was confused or could have been confused by the organizing drive. Accordingly, I reject this argu­ment.

III. The Conduct of Counsel During These Proceedings

116It is a trite observation that certain litigation can bring out the worst in legal counsel. This was one such matter in which the behaviour of counsel was so disruptive to the proper con­duct of the hearing that the Board feels compelled to make several comments regarding the behav­iour of counsel. During the first week of hearings in these proceedings counsel for the applicants was Mr. Kucey. Appearing for the employer and for the group of objecting employees were, respectively, Mr. Tarasuk and Mr. Abbass. After the first week of hearings, Mr. Stout acted for the applicant in the certification application. It should be stressed here that none of the comments which follow are directed towards Mr. Stout, who represented his client before the Board in an entirely professional manner throughout the course of his participation in this proceeding.

117Mr. Tarasuk and Mr. Abbass were, on numerous occasions, rude, interruptive, and dis­respectful of other counsel appearing at the hearing, of me, as the Vice-Chair of the Board assigned to hear this matter, and of the Ontario Labour Relations Board, as an institution. Mr. Abbass, in particular, seemed to take pleasure in continually disrupting the course of this proceed­ing. Both Mr. Abbass and Mr. Tarasuk appear to hold the view that each has the unqualified right to interject personal opinions or snide commentary at will during opposing counsel's argument. On innumerable occasions I directed each of Mr. Abbass and Mr. Tarasuk to refrain from such con­duct. Each was advised that he would have an opportunity, at the appropriate time, to respond to opposing counsel's argument. However, my directions were regularly ignored or challenged by counsel and more often than not caused Mr. Abbass and Mr. Tarasuk to more vigorously interject, resulting, on occasion, in the need for me to raise my voice above theirs in order to maintain some semblance of order in the hearing room.

118At the end of the first week of hearing, in the presence of Mr. Tarasuk and Mr. Kucey, but not Mr. Abbass (who had left the hearing room early with the permission of the Board), I advised counsel in the most certain of terms that the conduct exhibited by them during that week

was entirely inappropriate and would not be tolerated any further. As noted above, it was at this point that Mr. Kucey was replaced as counsel for the union by Mr. Stout, who acted professionally throughout the remainder of the hearing. It was, however, unfortunate that Mr. Abbass was absent, for, although I repeated my comments for his benefit at the start of the next hearing date, Mr. Abbass' inappropriate conduct continued throughout the remainder of the hearing dates.

119As noted above, Mr. Abbass was, throughout this proceeding, rude, interruptive, and disrespectful towards both me as the adjudicator in this case, and of the Ontario Labour Relations Board itself, as an institution. On one occasion, for example, Mr. Abbass was asked by me to pro­vide full copies of case authorities rather than selected pages of the decisions, which had been his practice to that date. In the most certain of terms Mr. Abbass informed me that he would not do so, and that if I wished to read the entire case I could go to the Board's library to do so. Ulti­mately, in order to ensure that copies of case authorities were provided in their entirety, it was nec­essary to issue a written decision dated May 12, 1995 directing Mr. Abbass to provide full copies of his case authorities.

120On a further occasion, Mr. Abbass was directed to cease making interjections during the submissions of opposing counsel; his comments were quite audible and clearly inappropriate. Shortly after being directed to refrain from making such comments, Mr. Abbass, without having said anything audible, once again interrupted Mr. Kucey's argument to advise all present of some­thing that he asserted he had just then said under his breath. This further interruption, he stated, was necessary to ensure that I did not think that he was saying anything under his breath. His inter­jection led to a somewhat sharp discussion regarding the questionable utility of making such inter­ruptions.

121On a later hearing date, during Mr. Stout's submissions on a procedural objection, Mr. Abbass interrupted him (for the purpose of making his own observations) on four separate occa­sions, notwithstanding that he had been directed to refrain from doing so after each earlier occa­sion. When I asked Mr. Abbass why he continued to interrupt Mr. Stout, in contravention of my directions to the contrary, he stated, on one occasion, that if I had more "experience", I would be aware that such interruptions are commonplace during hearings of the Board. Mr. Abbass then stated that if I did not want to hear his interjections, then that was "tough". On a later occasion on that same hearing date, he asserted that he would not abide by my directions to cease the interrup­tions of other counsel because my directions were "improper". No basis for the impropriety of my directions was asserted by Mr. Abbass.

122Near the conclusion of evidence, on two separate occasions, Mr. Stout objected to Mr. Abbass' cross-examination of a witness on the grounds of relevance. On each occasion I asked Mr. Abbass to explain the relevance of his questions. On the first occasion, Mr. Abbass stated that he did not have to explain his theory of the relevance of the question to me. On the other occasion, I asked Mr. Abbass to explain the relevance of his question at least three times. Mr. Abbass' response, each time, was to say, in an insolent manner, "you tell me". He ended his submissions by stating that he had thought that I would help him because I helped applicant's counsel. Mr. Abbass' assertion that I helped Mr. Stout is entirely without substance. Ultimately, I ruled the questions to be entirely irrelevant to the issues in dispute.

123On no less than thirty separate occasions during the course of this hearing Mr. Abbass asserted or implied that I had "closed my mind" to his submissions, or that I was "biased" towards him. These allegations ranged from repeated snide remarks regarding the need to keep an "open mind" to his arguments, to blunt statements that I was biased. In fact, the suggestion of bias was made by Mr. Abbass so often that it is evident that he does not fully appreciate the gravity or sig­

nificance of making such an allegation, or was making the assertions in an unsuccessful attempt to intimidate the Board. The following examples reflect the general tenor of Mr. Abbass' assertions that I was biased. During the course of argument on one particular motion I asked Mr. Abbass a question regarding the substance of his submissions. Mr. Abbass asserted that by merely asking him questions I had showed that I had closed my mind to his argument. Mr. Abbass asserted that a quasi-judicial tribunal which was not investigatory in nature ought not to ask him any questions respecting his argument. Later during the proceeding, when I indicated to counsel that I had previ­ously read the decision of the Board in Bannerman Enterprises Inc.,[1994] OLRB Rep. Nov. 1489, in which a similar argument to that then being argued had been made (and rejected), Mr. Abbass asserted that by merely reading the case I had closed my mind to his argument. At least once dur­ing the case Mr. Abbass asserted that my delivering a "bottom line" decision on a pending motion, with reasons to follow, gave weight to his earlier claims that I was biased against his argument.

124In my view, the assertions of bias made by Mr. Abbass were groundless and made for the purpose of disrupting the hearing and intimidating the Board. On at least four separate occa­sions during this proceeding Mr. Abbass was invited by me to bring a motion to have me removed from hearing these matters, if he was of the view that I had, through my conduct, demonstrated a reasonable apprehension of bias towards his client. In fact, a specific date was set to hear Mr. Abbass' argument respecting my "appearance of bias" alleged in his correspondence dated May 3, 1995. Shortly before the hearing Mr. Abbass advised the Board that he would not formally pursue the allegations. On none of these occasions did Mr. Abbass accept the invitation to bring such a motion; on each occasion Mr. Abbass specifically declined to bring such a motion. During the course of the hearing, Mr. Abbass was directed more than once to either bring such a motion or to refrain from making comments to the effect that the Board had demonstrated a reasonable appre­hension of bias for the remainder of the hearing. Mr. Abbass continued to make these assertions of bias throughout the hearing, notwithstanding the Board's directions.

125Mr. Tarasuk's conduct at times rivalled that of Mr. Abbass. On more than one occa­sion, Mr. Tarasuk demanded that the proceedings be adjourned in order for reasons for a "bottom line" decision to be delivered. Upon my rejection of that request, Mr. Tarasuk would rudely reinstitute the "request", clearly giving no weight to the ruling previously made. While Mr. Kucey was in attendance, Mr. Tarasuk insisted on numerous occasions that he had the right to comment immediately upon any critical observations made by Mr. Kucey. When I advised Mr. Tarasuk on numerous occasions that the observations of Mr. Kucey were of no particular relevance to the issues at hand, and therefore unnecessary to respond to, Mr. Tarasuk would not accept that assess­ment and would demand to immediately rebut the observation made. On one such occasion, Mr. Tarasuk asserted a denial of the right to make submissions and, upon being provided an opportu­nity to make his argument, promptly and inexplicably refused to do so.

126Notwithstanding that Mr. Tarasuk was present during my admonition during the first week of the hearing, his conduct did not significantly change during the course of the hearing. Close to the completion of the evidence, and during Mr. Tarasuk's questioning of one of Mr. Stout's witnesses, Mr. Stout unsuccessfully objected to a question partially asked by Mr. Tarasuk. At that time I advised Mr. Stout to wait until the question had been fully asked before objecting. Mr. Abbass, characteristically, interjected a comment to the effect that Mr. Stout was objecting too often. I noted that Mr. Abbass had earlier made such an objection during his cross-examina­tion of the witness, and that I had earlier noted that Mr. Stout's high success rate on his objections suggested that the objections were hardly unreasonable or intended to disrupt the hearing. This observation caused Mr. Tarasuk to explode into a tirade, accusing me of "tarring" him with Mr. Abbass' "record", and having "made up [my] mind" on the objection. It is difficult to explain this reaction by Mr. Tarasuk, particularly since it was not Mr. Tarasuk who complained about the rate

of Mr. Stout's objections in the first place, and since I had denied the objection of Mr. Stout. This type of explosive response by Mr. Tarasuk was an oft-repeated event during the course of the hear­ing.

127Many of Mr. Abbass' and Mr. Tarasuk's complaints focused on what was stated by them to be my favouritism towards Mr. Kucey and Mr. Stout during the hearing. It was asserted on numerous occasions that I treated Mr. Kucey better than I had treated either of them. That was, in fact, not the case. Quite simply, although Mr. Kucey on occasion felt it necessary to make com­ments of an inappropriate nature directed towards opposing counsel, his comments were numeri­cally rare in comparison to the frequency of the inappropriate comments made by Mr. Abbass and Mr. Tarasuk. Although Mr. Kucey was directed to cease making such comments, it would not be difficult for Mr. Abbass or Mr. Tarasuk to perceive that they were being singled out in light of the large number of times that I was required to direct each of them to cease making their offensive comments. In light of the fact that it was the inappropriate conduct of Mr. Abbass (and, to a lesser extent, Mr. Tarasuk) that resulted in my repeated directions to cease such conduct, it can hardly lie in their mouths to assert "bias" as a result of good faith attempts to keep the proceedings on track.

128The type of conduct exhibited by Mr. Abbass and Mr. Tarasuk during the course of this proceeding is unacceptable before the Board. Their conduct seriously distracted from the legiti­mate issues before the Board, serving to prolong the hearing grossly beyond what was reasonable in the circumstances, and certainly resulted in needless expense to the taxpayers of this Province and their own clients. Worse yet, their conduct may well have negative long-term consequences to the parties which are now embarking on a new relationship.

129On occasion,the Board has written decisions in which the conduct of a party has been criticized (see, for example, Bemar Construction (Ontario) Inc., [1992] OLRB Rep. May 565); however, such cases typically involve unrepresented parties and have not focused on the conduct of senior members of the bar of Ontario, who are presumed to be aware of the proper behaviour before the Board in litigation of this nature. In particular, it is my view that Mr. Abbass' conduct was intended by him to be disrespectful of the Board. On the last day of the hearing, Mr. Abbass made a somewhat lame attempt to justify his conduct as being the result of his "frustration" with certain aspects of Mr. Stout's argument. Such a justification for his conduct is just not available on the facts of this case. It is not necessary to speculate why Mr. Abbass conducted himself in the manner that he did, because there is simply no excuse for his behaviour. It suffices to say that whatever the cause, be it opposing counsel's argument or Mr. Abbass' belief in the significance of his self-described "experience" at the Board, his frustrations or difficulties should be dealt with beyond the hearing rooms of the Board and ought not to manifest themselves in the manner that they did during the course of this proceeding.

130During the course of this hearing the Law Society of Upper Canada published in the September, 1995 edition of "The Advisor" (delivered to all members of the bar of Ontario) the following note under the heading "Courtesy, respect should guide conduct of lawyers before tribu­nals":

The Law Society, from time to time, receives complaints about lawyers from judges and mem­bers of administrative tribunals and boards.

Members of the profession are reminded of their obligation to treat both courts and tribunals with respect and courtesy. This includes, but is not limited to, behaviour relating to lateness, lack of preparation, non-attendance and double-booking.

The Professional Conduct Committee notes that most administrative tribunals lack the extensive power of the courts, such as the power to make findings of contempt, to deal with these situa­tions when they occur.

However, flagrant breaches of the duties of courtesy and respect by members appearing before or having dealings with such bodies could, upon investigation, result in disciplinary action.

Neither Mr. Abbass nor Mr. Tarasuk treated this tribunal with the requisite degree of courtesy and respect expected of lawyers in this province. In light of the contentious nature of the proceedings typically before the Board, a certain level of vigour is not unexpected from legal counsel that appear. During these proceedings, the conduct of Mr. Abbass and Mr. Tarasuk went well beyond the duty owed to their clients to raise any arguments available, and to represent their interests with vigour.

131During the course of arguing one of the many issues raised for determination, Mr. Abbass asserted that there could be no question that the Board has the power and responsibility to ensure that those who attend before it respect the proceedings of the Board. He is quite correct. The Board does have certain avenues available to it to control conduct of the nature described herein, including the referral of the incident or incidents to the Law Society of Upper Canada and/or a stated case of contempt to Divisional Court (see section 13 of the Statutory Powers Proce­dure Act). It is evident from my comments that I am extremely troubled by the conduct of both Mr. Abbass and Mr. Tarasuk during the course of these proceedings. Their conduct may well have been a violation of one or more of the Rules of Professional Conduct which govern members of the Law Society of Upper Canada. In addition, their conduct may well constitute contempt of this Board.

132In all of the circumstances, it is my view that Mr. Abbass and Mr. Tarasuk ought to attend before the Board to show cause why the Board ought not to state a case of contempt to Divisional Court or report their conduct to the Law Society of Upper Canada. Once the Board has had an opportunity to hear the evidence and submissions on behalf of Mr. Abbass and Mr. Tara­suk, it will be in a position to determine what action ought to be taken. Counsel should be pre­pared to address the possibility that the Board could state a case to Divisional Court of either civil or criminal contempt. In light of the nature of the inquiry, counsel should consider whether they ought to be represented by counsel at the hearing.

133Mr. Abbass and Mr. Tarasuk should attend at the hearing with any evidence, documen­tary or otherwise, which may help to explain their conduct. Each will be provided an opportunity to call any relevant evidence and to make any submissions to the Board.

134This is, without a doubt, an extraordinary and unprecedented action of the Board. I have not reached the conclusion that this is the appropriate response without a great degree of reflection. However, the conduct of Mr. Abbass and Mr. Tarasuk was intentionally disrespectful of the Board. In such circumstances, counsel must appreciate that their conduct has consequences.

IV. Disposition

135In accordance with the determinations made above, a certificate will issue to the appli­cant as bargaining agent for the employees in the following bargaining unit:

All employees of Robert M. Heenan Sales Ltd., in the Town of Fort Frances, save and except Head Cashier and persons above the rank of Head Cashier, office and clerical staff.

136Mr. Cyril J. Abbass and Mr. Arthur P. Tarasuk are directed to attend before the Board to show cause why the Board ought not to state a case of contempt to Divisional Court or report their conduct to the Law Society of Upper Canada. The Registrar is directed to schedule one or more hearing dates before this panel of the Board for the show cause hearing. A Notice of Hearing is to be forwarded to the parties to these proceedings to advise them of the date, time, and place of the hearing.

137I am seized of these proceedings.