Christi Costi, Patrick Grossett and Stella Zacharia v. Laundry & Linen Drivers and Industrial Workers Union, Teamsters Local 847, 1999 CanLII 20136

[1999] OLRB REP. JULY/AUGUST 640

3016-98-R; 4263-98-U Christi Costi, Patrick Grossett and Stella Zacharia, Applicants v. Laundry & Linen Drivers and Industrial Workers Union, Teamsters Local 847, Responding Party v. Metro Toronto Convention Centre, Labourers' International Union of North America, Local 506, Intervenors; Laundry & Linen Drivers and Industrial Workers Union, Teamsters Local 847, Applicant v. Christi Costi, Patrick Grossett and Stella Zacharia and Labourers' International Union of North America, Local 506, Responding Parties v. Metro Toronto Convention Centre Corporation, Intervenor

BEFORE: Christopher J. Albertyn, Vice-Chair.

APPEARANCES: Mike McCreary and Joelle Spadacini for Teamsters, Local 847; Ian Werker, Stella Zacharia, Christi Costi and Patrick Grossett for the employees; John Moszynski, Peter Treacey and George Nixon for the Labourers; Chuck R. Robertson, Clifford J. Hart, Mark Goldenberg and Joelle Orban for the Metro Toronto Convention Centre.

DECISION OF THE BOARD; July 6, 1999

1. Board File 3016-98-R is a termination application under section 63 of the Labour Relations Act, 1995 ("the Act"). Board File 4263-98-U is an unfair labour practice application brought by the Laundry & Linen Drivers and Industrial Workers Union, Teamsters Local 847 ("the Teamsters") against the applicants in the termination application ("the individuals") and the Labourers' International Union of North America, Local 506 ("the Labourers") alleging various violations of the Act.

2. A representation vote on the tennination application occurred on February 26 and 27, 1999. All ballots cast were individually segregated and the ballot box was sealed.

3. I issued a decision in these matters on May 11, 1999. As a result of that decision, the ballot box in the termination application was opened and the ballots of persons. on whose status as employees the individuals and the Teamsters could agree, were counted. Of the 481 persons who cast ballots, 191 voted in favour of the Teamsters continuing to be their bargaining agent, 258 voted against, there was 1 spoilt ballot and 31 ballots remained segregated and not counted. Certain matters were set down to be argued on June 4, 1999. They were the following:

• whether the Board can, and if so should, revisit the 40% issue (that the termination application did not reveal that 40% of the employees in the bargaining unit appeared to have expressed a wish not to be represented by the Teamsters) raised by the Teamsters in response to the termination application;

• whether the Teamsters have made out a prima facie case for any relief in Board file 4263-98-U and, if not, whether that application should be dismissed without a hearing;

• in the alternative, whether the Teamsters have made out a prima facie case for any relief which would have the effect of vitiating the representation vote taken, and counted, in Board File 3016-98-R, and if not, whether that portion of the Teamsters' unfair labour practice complaint should be struck out and the termination application granted.

4. This decision addresses these issues. It is common cause between the parties that if the Teamsters' unfair labour practice application does not disclose a prima facie case, or if it does, but cannot invalidate the representation vote, and the individuals have met, or are deemed to have met, the 40% threshold in their application, that the bargaining rights of the Teamsters should be terminated.

The threshold issue

5. In the Board's (differently constituted) decision of January 26, 1999, ordering a representa-tion vote on the termination application, the following was decided:

3.There is a dispute between the parties regarding whether 40% or more of the employees in the bargaining unit have expressed a wish not to be represented by the trade union at the time the application was filed. The Board requested and received submissions from the parties on the issue pursuant to section 63(7) of the Act. Under section 63(8) of the Act the Board is required to decide this issue without a hearing.

4.The primary issue is whether casual employees were, at the time of the application, employees in the bargaining unit. This is an issue because the employer utilizes a large number of such individuals for various functions which occur at the Convention Centre. Pursuant to the collective agreement between the responding party and the employer, the employer maintains a list of persons who are prepared to work on an as-needed basis. If all casuals on the list are employees in the bargaining unit, the applicant would not have the requisite support for this application.

5. The respondent trade union and the employer argued that such casuals were clearly employees in the bargaining unit. They are covered by the collective agreement, as Article 2.01 of the current collective agreement states:

2.01 The Employer recognizes the Union as the exclusive bargaining agent for all employees of the Employer employed in the Municipality of Metropolitan Toronto save and except supervisors, persons above the rank of supervisor, office, clerical and sales staff and security staff.

The current clause compares with the collective agreement which was in place in the predecessor agreement where casuals were specifically excluded from the bargaining unit. In addition, casuals have access to the grievance procedure, and the collective agreement mandates casuals' pay rates.

6.The following provisions of the collective agreement are also relevant:

2.02 For the purposes of this agreement:

(a) "Full time employee" means an employee employed in the bargaining unit described in Article 2.01 who is regularly scheduled to work more than twenty-four (24) hours per week;

(b) "Part time employee" means an employee employed in the bargaining unit described in Article 2.01 who is regularly scheduled to work twenty-four (24) hours per week or less;

(c) For the purposes of Article 2.01, a "casual employee" is a person who works as needed on a call-in basis and is employed under an arrangement whereby he or she may elect to work or not for a temporary period when requested to do so. He or she shall be deemed to have been hired for each function worked and terminated at the end thereof.

2.05(a) This article only applies to casual employees and none of the other provisions of the collective agreement except as provided for herein apply to the employ-ment of casual employees;

(b) Where a casual employee on three occasions in a row refuses a call-in and/or is a no-show, his or her name shall be placed at the bottom of the call-in list;

(c) Any casual employee who has not worked within the 6 month period prior to January 1st of each year shall be terniinated and removed from the call-in list.

(d) Casual employees shall be entitled to be paid the rate for the job performed and their portion of any applicable gratuity;

(e) This article, 2.06, 2.02(c), F.0l(c) and 8 shall apply to the employment of casual employees.

2.06 All Casual and Part Time Employees shall pay Union dues once the Union provides for a percentage of earnings formula for such dues.

7.The union and the employer have entered an arrangement whereby, under Article 2.02(c) casuals are employed at the start of a function and cease employment at the conclusion of that function. The Board cannot interfere with that arrangement and should not define "employee" in a way inconsistent with the agreement. The Board therefore agrees that casual employees are covered by the collective agreement and are therefore in the bargaining unit. However, casual employees are only employees in the bargaining unit from the start of a function to the end of a function.

8. The fact that, as the union and employer assert, casual employees participated in collective agreement ratification votes and the union's bargaining committee does not affect their status for the purposes of this application given the clear meaning of the collective agreement.

9. In this case the application date was December 2, 1998. On that date, there were, according to the materials filed with the Board by the employer, 102 casual employees.

10. Accordingly, the number of employees in the bargaining unit is at most 267, including 140 full-time employees, 25 part-time employees and 102 casuals. Therefore, the applicant would appear to have the support of 40% or more employees in the bargaining unit.

11. The union also argued that the applicant does not have 40% support for the termination of the union's bargaining rights because the applicant's request to apply employee evidence of a desire to terminate bargaining rights from an earlier application was made prior to the Board's decision permitting the applicant to withdraw that application. We find the union's argument overly technical and without merit and we therefore reject it.

12. The union and the employer also have a number of other arguments as set out in submissions filed with the Board. However, none of them preclude the taking of the representation vote.

13. The Board directs that a representation vote be taken of the employees of Metro Toronto Convention Centre employed in the bargaining unit described in paragraph 2 above. The parties have not made submissions regarding voter eligibility among the casuals and therefore the Board has not decided this issue. Accordingly, all casual persons on the employer's call-in list will be permitted to cast a ballot. In order to avoid prejudicing the parties' positions, all ballots cast, whether by part-time, full-time or casuals, will be individually segregated and the ballot box sealed until the parties agree or the Board orders otherwise.

14. The Board hereby directs that a Labour Relations Officer contact the parties to set vote arrangements.

6. On February 8, 1999 the Board (differently constituted) added the following to the Board's January 26 decision:

5. Pursuant to the decision of January 26, 1999 all casual persons on the employer's call in list will be permitted to cast a ballot. In order to avoid prejudicing the parties' positions, all ballots cast, whether by part-time, full-time or casuals, will be individually segregated and the ballot box sealed until the parties agree or the Board orders otherwise.

7. The Teamsters requested reconsideration of the Board's decision of January 26, and, on February 18, that request was considered by the panel of the Board which issued that decision and it was denied in an endorsement to the file record, which reads:

The responding party, supported by the intervenor, has filed a request for reconsideration of the Board's decision dated January 26, 1999. The Board is not persuaded by the request for reconsidera-tion or that the representation vote scheduled in this matter ought to be cancelled or postponed. Assertions of a practice or intentions without supporting detail do not alter the Board's decision that it appears that forty percent or more of employees in the bargaining unit at the application date have expressed a wish not to be represented by the trade union. The Board's decision does not prevent the applicant from making its argument before the panel hearing this matter.

8. The threshold issue comes before me because of the stipulation in the endorsement that the Teamsters may again argue the matter.

9. The Teamsters and the intervening employer in the termination application ("the employer") argue that the individuals had not established the 40% threshold in their application to warrant the ordering of a representation vote and, hence, the representation vote should be treated as invalid for want of a necessary precondition. The individuals and the Labourers argue that the matter had been decided, reconsidered and determined finally by the Board in its earlier decisions, and that I do not have jurisdiction to consider the matter afresh, particularly at a hearing, in light of the provisions of subsection 63(8) of the Act (set out below).

10. The Teamsters and the employer contend that I should reopen an inquiry (evidence and argument) on the actual bargaining unit which the Teamsters represent. They say that there are understandings between them which modify the composition of the unit from how it appears in their collective agreement. In order for the Board to determine whether the individuals had the requisite 40% threshold to bring the termination application and to obtain a representation vote, they argue, I should inquire into, and determine, the real composition of the bargaining unit. That, I am told, will be different from the bargaining unit which is described in the collective agreement and accepted by the Board in its decision of January 26.

11. The Labourers and the individuals argue that, for the purposes of a termination application, the parties to the collective agreement (in which the bargaining unit is described) are bound by the manifest description of that bargaining unit, exfacie the agreement. Were that not so, then parties to a collective agreement could manipulate their bargaining unit in such a way as to foreclose any possibility of a termination or displacement application. Third parties must, they say, be able to rely upon the manifest content of the parties' collective agreement, upon the document's written description of the bargaining unit, as the true description of that unit. Otherwise potential termination and displacement applicants would never know for certain what unit they were dealing with.

12. I now consider whether I have jurisdiction to make the inquiry into the threshold question.

13. Section 63 reads:

63. (1) If a trade union does not make a collective agreement with the employer within one year after its certification, any of the employees in the bargaining unit determined in the certificate may, subject to section 67, apply to the Board for a declaration that the trade union no longer represents the employees in the bargaining unit.

(2) Any of the employees in the bargaining unit defined in a collective agreement may, subject to section 67, apply to the Board for a declaration that the trade union no longer represents the employees in the bargaining unit,

(a) in the case of a collective agreement for a term of not more than three years, only after the commencement of the last two months of its operation;

(b) in the case of a collective agreement for a term of more than three years, only after the commencement of the 35th month of its operation and before the commencement of the 37th month of its operation and during the two-month period immediately preceding the end of each year that the agreement contin-ues to operate thereafter or after the commencement of the last two months of its operation, as the case may be;

(c) in the case of a collective agreement referred to in clause (a) or (b) that provides that it will continue to operate for any further term or successive terms if either party fails to give to the other notice of termination or of its desire to bargain with a view to the renewal, with or without modifications, of the agreement or to the making of a new agreement, only during the last two months of each year that it so continues to operate or after the commencement of the last two months of its operation, as the case may be.

(3) The applicant shall deliver a copy of the application to the employer and the trade union by such time as is required under the rules made by the Board and, if there is no rule, not later than the day on which the application is filed with the Board.

(4) The application filed with the Board shall be accompanied by a list of the names of the employees in the bargaining unit who have expressed a wish not to be represented by the trade union and evidence of the wishes of those employees, but the applicant shall not give this information to the employer or trade union.

(5) If the Board determines that 40 per cent or more of the employees in the bargaining unit appear to have expressed a wish not to be represented by the trade union at the time the application was filed, the Board shall direct that a representation vote be taken among the employees in the bargaining unit.

(6) The number of employees in the bargaining unit who appear to have expressed a wish not to be represented by the trade union shall be determined with reference only to the information provided in the application and the accompanying information provided under subsection (4).

(7) The Board may consider such information as it considers appropriate to determine the number of employees in the bargaining unit.

(8) The Board shall not hold a hearing when making a decision under subsection (5).

(9) Unless the Board directs otherwise, the representation vote shall be held within five days (excluding Saturdays, Sundays and holidays) after the day on which the application is filed with the Board.

(10) The representation vote shall be by ballots cast in such a manner that individuals expressing their choice cannot be identified with the choice made.

(11) The Board may direct that one or more ballots be segregated and that the ballot box containing the ballots be sealed until such time as the Board directs.

(12) After the representation vote has been taken, the Board may hold a hearing if the Board considers it necessary in order to dispose of the application.

(13) When disposing of an application, the Board shall not consider any challenge to the information provided under subsection (4).

(14) If on the taking of the representation vote more than 50 per cent of the ballots cast are cast in opposition to the trade union, the Board shall declare that the trade union that was certified or that was or is a party to the collective agreement, as the case may be, no longer represents the employees in the bargaining unit.

(15) The Board shall dismiss the application unless more than 50 per cent of the ballots cast in the representation vote by the employees in the bargaining unit are cast in opposition to the trade union.

(16) Despite subsections (5) and (14), the Board may dismiss the application if the Board is satisfied that the employer or a person acting on behalf of the employer initiated the application or engaged in threats, coercion or intimidation in connection with the application.

(17) Upon an application under subsection (1) or (2), where the trade union concerned informs the Board that it does not desire to continue to represent the employees in the bargaining unit, the Board may declare that the trade union no longer represents the employees in the bargaining unit.

(18) Upon the Board making a declaration under subsection (14) or (17), any collective agreement in operation between the trade union and the employer that is binding upon the employees in the bargaining unit ceases to operate forthwith.

14. Prior to making its determination under subsection 63(5), the Board received submissions on the proper calculation of the denominator to be used in the calculation of whether or not the individuals had met the 40% threshold requirement in their termination application. Then, after consid-ering those submissions, the Board determined the matter under subsection 63(5) of the Act. In its decision of January 26, the Board made a finding that 40% or more of the employees in the bargaining unit appeared to have expressed a wish not to be represented by the Teamsters. The Board reconsidered that finding and, on February 18, reaffirmed its determination.

15. By reason of the provisions of subsection 63(8), the Board is obliged to make the determina-tion of the appearance of 40% support for the application without a hearing. It did that when it made its finding on the matter on January 26, which it reaffirmed on February 18. The Board would appear therefore to have determined the matter.

16. The employer and Teamsters argue that I am not precluded by the provisions of subsection 63(8) from determining the proper or actual composition of the bargaining unit for the purposes of determining the threshold. Their argument is the following: subsection 63(8) has reference only to subsection 63(5) - it is only the determination of the numerator (not the denominator) which the Board must determine without a hearing; the denominator is dealt with under subsection 63(7) and there is no preclusion of a hearing into that issue in subsection 63(8); therefore, it is quite appropriate for the Board to inquire into the proper calculation of the denominator by hearing evidence and argument as to what that figure truly is; such a hearing is contemplated by the provisions of subsection 63(12). In summary, the employer's and Teamsters' argument is that the Board is precluded from holding a hearing into the determination of the numerator (the number of employees who express a wish not to be represented by the incumbent trade union), but it is perfectly entitled to hold a hearing into the denominator (the number of employees in the affected bargaining unit). On this argument, when determinating the true calculation of the denominator, the Board is no longer concerned with appearances (as it was when it decided to order the representation vote), it is now concerned with disposing of the application (as envisaged in subsection 63(12)). It may therefore properly hold a hearing into the matter. Therefore, on this argument, if the parties to the collective agreement (the employer and Teamsters) administered their collective agreement differently from its manifest content, such that the bargaining unit that existed between them was different from what appears in the collective agreement, then, under subsection 63(7), as read with subsection 63(12), I am obliged to inquire into the matter so as to determination the actual denominator for the purposes of the threshold count.

17. I am not persuaded by this argument. It is a valiant, though flawed, attempt to avoid the implications of subsection 63(8). Subsection 63(5) does not deal only with the appearance of the numerator, as the employer and the Teamsters urge. It deals with the determination of the appearance of 40% or more of the employees in the bargaining unit. In order for the Board to make that determination it must take account of the numerator and of the denominator. To determine the denomi-nator it has regard to subsection 63(7). That is a necessary step before the determination is made under subsection 63(5). Hence, when the determination is made under subsection 63(5) - which must be done without a hearing - the Board has considered the denominator, just as it has considered the numerator. Thus, the suggestion by the employer and the Teamsters that the denominator is open for later consideration (in fact, reconsideration) at a hearing misses the fact that the determination of the denominator is integral or essential to the determination which the Board makes under subsection 63(5) before it orders a representation vote. The Board cannot revisit that issue. It is determined (i.e. decided finally and for all purposes) under subsection 63(5).

18. The scheme of the Act is that representation votes should occur quickly and that all concerned should abide the will of the employees as expressed in the votes. That scheme is designed to bring early finality and certainty to certification and termination applications because such applications necessarily disturb the status quo and all affected by them should know as soon as possible in what relationship they stand to each other. The Board makes a determination at an early stage as to whether the applicant has sufficient support for the application. That is done on an appearance of 40% of the employees in the bargaining unit. In termination applications the Board makes a determination of the bargaining unit in respect of which the application is brought. In this case the Board did so on January 26, when it concluded that there appeared to be 40% support for the application. The threshold issue is no longer alive. It was resolved by the Board on January 26, finally and for all purposes.

19. What the Board referred to me for consideration, in its reconsideration decision of February 18, was whether particular casual employees are to be treated as employees for the purposes of the representation vote, in the event the parties were unable to agree upon their status. The Board was not seeking to have me reconsider the very matter it had itself refused to reconsider. The threshold issue which Teamsters and the employer seek me to determine is the issue which has been decided (and not altered in reconsideration) by the Board. I will not (nor can I) re-open the matter for further consider-ation. I am satisfied that the representation vote was properly ordered and, barring consideration of the Teamsters' unfair labour practice application (which follows), its outcome should be recognized and given effect to. I have no jurisdiction to review or reconsider the threshold question, particularly as, to do so, would violate the provisions of subsection 63(8).

20. For these reasons I will not interfere with the Board's determination of the threshold issue. That matter is over.

Have the Teamsters established a prima facie case in their unfair labour practice complaint?

21. The Teamsters' unfair labour practice application alleges various acts of malevolence which it says are violations of the Act. It suggests that the acts are so egregious that the outcome of the representation vote is tainted to such an extent that it does not truly reflect the wishes of the employees in the bargaining unit. It contends that the representation vote should be treated as void by reason of the improper conduct particularized in its application and a new vote should be ordered, among other relief.

22. The sections of the Act upon which the Teamsters rely are the following:

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

6. (2) No trade union, council of trade unions or person acting on behalf of a trade union or council of trade unions shall, so long as another trade union continues to be entitled to represent the employees in a bargaining unit, bargain with or enter into a collective agreement with an employer or an employers' organization on behalf of or purporting, designed or intended to be binding upon the employees in the bargaining unit or any of them.

7. No person, trade union or employers' organization shall seek by intimidation or coercion to compel any person to become or refrain from becoming or to continue to be or to cease to be a member of a trade union or of an employers' organization or to refrain from exercising any other rights under this Act or from performing any obligations under this Act.

8. Nothing in this Act authorizes any person to attempt at the place at which an employee works to persuade the employee during the employee's working hours to become or refrain from becoming or continuing to be a member of a trade union.

9. (1) No employer, employers' organization or person acting on behalf of an employer or employers' organization shall,

(a) refuse to employ or continue to employ a person;

(b) threaten dismissal or otherwise threaten a person;

(c) discriminate against a person in regard to employment or a term or condition of employment; or

(d) intimidate or coerce or impose a pecuniary or other penalty on a person,

because of a belief that the person may testify in a proceeding under this Act or because the person has made or is about to make a disclosure that may be required in a proceeding under this Act or because the person has made an application or filed a complaint under this Act or has participated in or is about to participate in a proceeding under this Act.

(2) No trade union, council of trade unions or person acting on behalf of a trade union or council of trade unions shall,

(a) discriminate against a person in regard to employment or a term or condition of employment; or

(b) intimidate or coerce or impose a pecuniary or other penalty on a person,

because of a belief that the person may testify in a proceeding under this Act or because the person has made or is about to make a disclosure that may be required in a proceeding under this Act or because the person has made an application or filed a complaint under this Act or has participated in or is about to participate in a proceeding under this Act.

23. This portion of the decision deals with whether, if the Teamsters' allegations are true and provable, they are sufficient for me to conclude that the representation vote was so tainted by impropri-ety that it should be vitiated, and a new vote ordered. In addition, I will address whether, prima facie, the Teamsters are entitled to any relief other than the vitiation of the representation vote.

24. In reviewing the Teamsters' allegations I will not reiterate them all; I will refer only to those which may have a bearing on the questions being addressed. The Teamsters make various allegations concerning the gathering of signatures for the petition which was used in support of the termination application. The first of these allegations concerns the inclusion of agency workers among those who signed the petition. When ordering the representation vote, the Board reviewed the list of names provided by the applicants, pursuant to the provisions of section 63(4) of the Act and, under section 63(5), the Board determined that "40 percent or more of the employees in the bargaining unit" had expressed a wish not to be represented by the Teamsters. Hence the inclusion, or non-inclusion, of agency workers and the list of names provided by the applicants is a matter which the Board has already addressed. It is not a matter which I will re-open for consideration.

25. The Teamsters suggest that one of the applicants, Stella Zacharia, was a Relief Captain and therefore a member of management and that she was active in soliciting signatures for the petition. However, the Teamsters expressly disavow any suggestion of management initiation of the petition and they do not claim any relief under section 63(16). In the circumstances, it is not open to the Teamsters to argue that the petition is tainted by reason of Ms. Zacharia's involvement in its circulation when, at the same time, the Teamsters refuse to take the requisite next step and suggest that management was involved in the gathering of the petition. Without the suggestion of management's involvement in the circulation of the petition there is no basis to argue that the petition is, in some way, tainted by reason of Ms. Zacharia's involvement. Accordingly Ms. Zacharia status and involvement in the gathering of the petition and the termination application cannot affect the validity of the representation vote.

26. A similar allegation is that the petition was circulated on the employer's premises during working hours. However, the Teamsters do not suggest any involvement by the employer in the initiation of the petition. Hence, subject to my comments in paragraph 35 below, while it may have been wrongful for those circulating the petition to have done so at work and during working hours, that did not constitute a violation of the Act in the absence of employer initiation.

27. There is another aspect to the Teamsters' allegations concerning Ms. Zacharia's circulation of the petition. The Teamsters contend that the evidence upon which the Board relied when it made its determination under section 63(4) is fraudulent because it was obtained by Ms. Zacharia in her capacity as a member of management. This argument is a variant of the argument that the petition was tainted by managerial involvement. It adds nothing, it merely re-frames the same proposition. The allegations do not begin to support an assertion that the petition was obtained fraudulently.

28. The Teamsters next suggest that some who signed the petition signed a blank form and they were not advised what would be added to the form. Even if this were true, which, although doubtful, for the purposes of a prima facie consideration of the application I assume to be so and provable, there is no allegation as to the number of employees who were affected in this way. There is also no suggestion as to which employees were so affected. The absence of these details makes the allegations vague and lacking in sufficient particularity for them to be seriously entertained by the Board. Furthermore, as stated in The Corporation of the City of Toronto, [1996] O.L.R.B. Rep July/August 552 at 576, 91133:

133. Under Bill 7, however, the focus shifts to a representation vote rather than findings based solely on documentary evidence. The vote becomes the final arbiter, and the quality of the membership documents signed some days or weeks before, becomes much less significant. Em-ployee wishes, collectively expressed, become the critical factor for granting certification.

The panel of the Board which considered the termination application evaluated the evidence provided with the application under section 63(4) and it appeared to the Board that there was sufficient evidence to order the representation vote. That decision should not be revisited unless there is compelling, specific evidence to warrant doing so. In the circumstances the Teamsters have not provided sufficient particularity, nor, in light of the result of the representation vote, does the irregularity, were it proved, suggest that the representation vote was anything other than the true wishes of the employees.

29. A shop steward of the Teamsters found some insulting words scratched onto her locker. An official of the Labourers was introduced to some employees as "the agent for the new union". The Labourers had approximately 60 representatives walking around the employer's premises, canvassing employees in the bargaining unit during working hours in an effort to convince them to vote against the Teamsters. This occurred in the lengthy period of more than 3 months from the date of filing of the termination application to the date on which the representation vote was held. None of these allegations could constitute a violation of the Act sufficient to vitiate the validity of the representation vote. There is also no likelihood of the allegations providing a basis for any of the other relief sought by the Teamsters.

30. On February 25, 1999, the day before the representation vote, a Business Agent of the Labourers sat in the employee cafeteria and stared "in an intimidating fashion at various bargaining unit employees". When asked to leave, the Business Agent refused. There are no details in the application as to how many employees were in the cafeteria at the time, nor is there any information as to the identity of those employees. This allegation, like others, lacks sufficient particularity for it to the addressed seriously by the Board.

31. On the same day a Business Agent of the Labourers acted in an intimidating matter towards Ms. Joelle Spadacini, a Business Agent of the Teamsters. This occurred away from the employer's premises. Ms. Spadacini was insulted and some lewd and offensive suggestions were made to her. The Labourers' Business Agent stood close to her in an aggressive and threatening manner.

32. The incident described involving Ms. Spadacini must have been most unpleasant for her. Although the Board does not condone offensive conduct such as is described in the Teamsters' particulars, the Board does not generally involve itself in the regulation of the personal interactions between the officials of rival trade unions. I accept that the conduct attributed by the Teamsters to the business agent of the Labourers exceeded the robustness which is customary in relationships between two rival trade unions. Having said that though, I am not persuaded that the Teamsters could establish that the conduct of the Labourers' business agent amounted to a violation of the Act. For there to be an arguable case that there has been a violation of the prohibition against intimidation or coercion contained in sections 76, there must have been some force or some significant threat of force or other undue and improper pressure. The action complained of does not meet this standard (Atlas Specialty Steels, [1991] O.L.R.B. Rep June 728, at 731 ¶12). It is even more remote to suggest that the offensive conduct had any impact on the outcome of the representation vote. Like the other allegations made by the Teamsters, the allegations involving reprehensible conduct by officials of the Labourers towards Ms. Spadacini do not entail intimidation or coercion of employees who had an entitlement to participate in the representation vote. In the circumstances, the allegations of odious behaviour towards Ms. Spadacini, although disturbing and troublesome, are not such as to have had any impact upon the representation vote.

33. There are further allegations involving conversations between representatives of the Labour-ers and Ms. Spadacini. Again extremely abusive and insulting comments were made to her. Those comments may constitute insult or defamation, but they do not amount to a violation of any of the provisions of the Act referred to by the Teamsters in their application. Hence, although the comments were lewd, rude, unprovoked and deeply offensive, they did not amount to a violation of the Act. They certainly had no impact whatsoever upon the outcome of the representation vote.

34. Officials of the Labourers were present on the employer's premises on the day of the representation vote. This, in and of itself, does not amount to a violation of the Act, nor does it suggest that the vote was somehow tainted. The Teamsters rely upon section 77 of the Act to suggest that the presence of officials of the Labourers on the employer's premises was in violation of the Act.

35. Section 77 is intended to make clear that other provisions of the Act do not create an entitlement to organize workers while they are at work. It does not have the reverse implication, which the Teamsters contend for, that organizing workers while they are at work is unlawful. Hence, there is no arguable case made by the Teamsters to support a finding that section 77 of the Act has been violated (Atlas Specialty Steels ¶15).

36. The relief sought by the Teamsters is the following: various declarations of violations of various sections of the Act; setting aside of the representation vote; dismissal of the termination application; and the award of damages for large amounts of money payable by officials of the Labourers and/or the Labourers themselves.

37. The Teamsters' damages claims are founded upon the notion that the Labourers have acted in such a manner as to cause the Teamsters to lose their bargaining rights with the employer. The basis of the Teamsters' claim is that the assistance provided by officials of the Labourers to the individuals who brought the termination application constitutes an improper and wrongful violation of the Team-sters' right to non-interference in the exercise of their bargaining rights. The Teamsters rely upon section 73(2) of the Act as the basis for this submission. The Teamsters suggest that the Labourers should not be entitled to make use of the individuals as their proxies in order to achieve the displacement of the Teamsters as the employees' bargaining agent. The Teamsters argue that the Labourers must either make the displacement application themselves or they must play no role in the individuals' termination application.

38. Section 73(2) of the Act does not protect a trade union from a displacement challenge by another union. There is no suggestion by the Teamsters that the Labourers have entered into a collective agreement with the employer, or bargained with the employer, as contemplated in section 73(2). Accordingly, on the information contained in the Teamsters' unfair labour practice application, there is no basis for the claim that the Labourers have violated that section. The Labourers were entitled to bring a displacement application in their own name or, as they have done, through the proxy of the individuals. That conduct may offend the political relationship between the Labourers and the Team-sters, but it does not violate the provisions of the Act.

39. The Labourers' alleged assistance to the individuals is not unlawful. Even assuming it to be true that the Labourers have caused the Teamsters to lose their bargaining rights with the employer, that loss cannot constitute an actionable wrong under the Act.

40. They are other wrongs alleged by the Teamsters against the individuals and/or the Labourers which have occurred after the representation vote. Those allegations do not advance the Teamsters' claims. When the claims are treated as a whole, there is little to suggest that the conduct complained of had any impact upon the representation vote.

41. From the above I have concluded that the Teamsters have not established a prima facie case for any of the relief sought. In the circumstances, I make the following declarations, orders and directions:

a) the Teamsters' unfair labour practice application in Board File 4263-98-U is dismissed for failing to disclose a prima facie case;

b) the individuals' termination application in Board File 3016-98-R is granted;

c) the Teamsters no longer represent the employees of the Metro Toronto Convention Centre for whom they have held bargaining rights hitherto;

d) the Registrar will destroy the ballots cast in the representation vote following the expiration of 30 days from the date of this decision unless a statement requiring that the ballots should not be destroyed is received by the Board from one of the parties before the expiration of such 30 day period;

e) the employer is directed to post copies of these declarations and orders on employee notice boards to ensure that they come to the attention of the employees affected by these applications and such copies are to remain posted for a period of 30 days from the date of this decision.