2983-99-R L. Krish Sankar, Applicant v. Industrial Wood and Allied Workers Union of Canada (IWA-Canada), Responding Party v. Triac Industries Inc., Intervenor.
3168-99-U Industrial Wood & Allied Workers of Canada (IWA-Canada); Industrial Wood & Allied Workers of Canada, Local 700 (IWA-Canada Local 700), Applicants v. Triac Industries Inc., Responding Party.
BEFORE: Christopher J. Albertyn, Vice-Chair.
APPEARANCES: Michael L. Powell and Krish Sankar for Krish Sankar; S.B.D. Wahl and M. Hunter for I.W.A. - Canada; S.B.D. Wahl and R. Diotte for I.W.A. - Canada Local 700; Lorenzo Lisi and Bob Coghill for Triac Industries Inc.; Shawn Halliday appearing on his own behalf.
DECISION OF THE BOARD; March 17, 2000
1Board File No. 2983-99-R is a termination application filed pursuant to the Labour Relations Act, 1995 (“the Act”). Board File No. 3168-99-U is an unfair labour practice application brought by the responding party (“Local 700”) and by the intervenor (“I.W.A. Canada” or “the national union”) in the termination application against the intervenor (“the employer”). Shawn Halliday is joined as an interested employee.
2A representation vote was held on the termination application and the ballot box was sealed pending disposition of the issues in dispute between the parties.
3A hearing was held on February 14, 2000. Various preliminary matters were addressed. This decision concerns the following matters which were argued at the hearing: (1) whether the applications should be consolidated; (2) what should be done as regards the citation of the responding party in the termination application; (3) the production of documents; and (4) which party should adduce evidence first.
Consolidation of the hearing
4At the hearing I ruled that it made sense to have these applications consolidated. The national union’s intervention in the termination application alleges that subsection 63(16) of the Act applies to the application. It contends that the application should be dismissed because the employer initiated the application or engaged in threats, coercion or intimidation in connection with the application. The unfair labour practice application makes many of the same allegations and it is pled in almost identical terms. If the applications were not consolidated, then two separate hearings would deal with virtually the same anticipated evidence. That would be a waste of time and resources. While the test is not the same in the two applications and the result might be different, the parties will be better served to have the applications consolidated with a single hearing to receive the evidence which will be largely common to both matters.
The citation of the responding party
5Local 700 was cited as the responding party in the termination application. The applicant in the termination application (“Sankar”) contends that the union bargaining rights affected by the application are held by Local 700. However, ostensibly the bargaining agent for the employees in the affected bargaining unit (“the bargaining unit”) appears to be the national union, and not Local 700. That is because the national union was certified as the bargaining agent for the bargaining unit and the collective agreement with the employer was concluded in the name of the national union.
6The unions’ counsel contended that the termination application was defective because of the incorrect citation of the bargaining agent. The matter was argued. Sankar’s counsel presented two alternative arguments. He said that the Board could allow for the amendment of the citation of the responding party in the termination application under section 112 of the Act. It reads:
- Where in any proceeding before the Board the Board is satisfied that a mistake has been made in good faith with the result that the proper person or trade union has not been named as a party or has been incorrectly named, the Board may order the proper person or trade union to be substituted or added as a party to the proceedings or to be correctly named upon such terms as appear to the Board to be just.
7Sankar’s counsel’s alternative argument was that Local 700 had succeeded the national union as the bargaining agent of the employees as envisaged by section 68 of the Act and that it is, in fact, properly cited. He contended that there was much to suggest that Local 700 had acquired the bargaining rights from the national union: all dealings with the employees and with the employer on behalf of the bargaining agent were done by Mr. Diotte, who is the President of Local 700; grievances pursued by the bargaining agent were all done in the name of Local 700; Minutes of Settlement of grievances were concluded in the name of Local 700; a proposed collective agreement sent by the bargaining agent to the employer at the start of the bargaining process was in the name of Local 700; the union cards issued to employees made them members of Local 700 (and the national union). Sankar’s counsel contended that, if he failed in his bid to have the name of the responding party amended, then Sankar could, through evidence, establish that Local 700 had acquired the bargaining rights which were originally granted to the national union when it was certified in respect of the bargaining unit.
8The unions’ counsel responded by suggesting that the issue was not merely one involving an incorrect citation. The union with the bargaining rights - the national union - did not have notice of the termination application and it did not receive notice until after the application was filed with the Board. The national union is a separate legal entity and what occurred was not a mistake in the citation of a party (e.g. a spelling error, or the omission of a particular part of the responding party’s name), but the citation of a different legal entity. In other words, there was no mistake in the name; the wrong party was cited. Thus, in relation to the national union, which the unions say is the real bargaining agent of the affected bargaining unit, Sankar did not comply with the provisions of subsection 63(3). That subsection reads:
(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.
The unions’ counsel pointed out that there is no capacity on the part of the Board to condone non-compliance with the peremptory nature of the statutory notice requirement. Questions of prejudice are not relevant. Thus, according to the unions’ counsel, if there is non-compliance with the notice requirement, the application is fatally defective and should be dismissed.
9At the hearing I was persuaded by the unions’ counsel that section 112 of the Act could not be of assistance to Sankar because his application cites the wrong responding party. I indicated to his counsel that Sankar would have to establish the alternative position advanced, viz. that Local 700 was the successor of the national union in respect of the bargaining unit. As a consequence Sankar applied for a declaration under section 68 of the Act that Local 700 became the successor trade union of the national union in respect of the bargaining unit. The parties then agreed to dispense with the filing of a written successor application. I directed that the application for a successor declaration would be dealt with first in the hearing.
10I have reconsidered the direction I issued at the hearing. I am no longer satisfied that Sankar cannot avail himself of the facility offered by section 112 of the Act. Sankar’s counsel explained, for the reasons given above, that he was under the impression, on reasonable grounds, that Local 700 possessed the bargaining rights in respect of the bargaining unit. That was a reasonable and bona fide supposition to make in the circumstances. It appears to have been erroneous because, strictly speaking, the national union was nominally the bargaining agent, from the certificate issued to it by the Board and under the collective agreement concluded with the employer. I am satisfied that Sankar’s error was bona fide. It is clear what he intended by the application - he wanted to end the bargaining rights of the union which represented the bargaining unit. He did not get its description exactly right, and he made a mistake in the citation of the responding party. It is in order for an employee bringing a termination application to cite the manifest bargaining agent, provided there is no prejudice to the true bargaining agent. Sankar’s mistake can be corrected under section 112 of the Act.
11No prejudice was asserted by the unions.
12Accordingly, under section 112 of the Act, I order that the Industrial Wood and Allied Workers Union of Canada (IWA-Canada) be substituted as the responding party in the termination application. It is therefore not necessary for Sankar to pursue his application under section 68 of the Act to have Local 700 declared the successor bargaining agent. No evidence need be led in respect of this aspect of the applications.
The production of documents
13There will be an exchange of documents between the parties so as to enable them to prepare for the successorship application. Reasonable requests for production will be made, but should there be disagreement as to whether a particular document should be produced, the aggrieved party may request, in writing, that I make a ruling on the matter, which I will do prior to the next hearing of these matters on the basis of brief written submissions from the parties.
Who should proceed first
14The parties disagreed as to which of them should proceed. They presented argument. The parties accept that whichever party is required to proceed first must present all of its evidence on all aspects of the case in respect of the termination application and the unions’ unfair labour practice complaint. For whoever begins, there will not be a splitting of the case being presented.
15The unions’ counsel relied upon several Board decisions as authority for the proposition that where a reverse onus applies, as in subsection 96(5) of the Act, as he argued it does in the unions’ unfair labour practice application (and, by analogy, in the national union’s subsection 63(16) averments), or where there is a mixed onus (a reverse onus in subsection 96(5) and arguably a different onus in subsection 63(16)) and the facts alleged in the application in which the reverse onus applies are integrally related to the facts in the application in which it does not, then the employer, bearing the reverse onus, is obliged to proceed first, even if the effect of its doing so is to permit the unions to make their case through cross-examination of the employer’s witnesses. (See Domtar Packaging, [1982] OLRB Rep. July 993; Wilco-Canada Inc., [1983] OLRB Rep. Jan. 165; Canadian Pizza Co. Ltd., [1983] OLRB Rep. June 872; The Essex County Board of Education, [1993] OLRB Rep. July 687; Fort William Clinic, [1997] O.L.R.D. No. 895, April 11, 1997).
16It is perhaps useful to consider where the onus lies in these matters. As stated in Bytown Electrical Services Ltd., [1996] O.L.R.D. No. 3449, September 30, 1996 an effect of the Bill 7 amendments to the termination provisions of the Act has been to shift the onus in cases in which employer initiation or interference is alleged. Prior to Bill 7 employees bringing a termination application bore the onus of proving that the petition which supported the application was voluntarily signed by employees. After Bill 7 the onus has shifted to the responding trade union. It must establish that there was employer initiation of the termination application if the Board is to act under subsection 63(16) of the Act. Hence the onus of establishing the national union’s allegation of employer initiation of the termination application rests with the union. No reverse onus applies.
17What of the unions’ unfair labour practice complaint? A reverse onus applies to some unfair labour practice complaints because of the provisions of subsection 96(5) of the Act. The reverse onus does not apply to all unfair labour practice complaints. It applies in circumstances when allegations have been made that a “person has been refused employment, discharged, discriminated against, threatened, coerced, intimidated or otherwise dealt with contrary to the Act as to the person’s employment, opportunity for employment or conditions of employment”. For the purposes of argument, without making a finding, I will assume that one or more of these elements fall within the ambit of the unions’ unfair labour practice allegations. I will assume, therefore, without finding, that the unions’ section 96 complaint contains elements which place a reverse onus upon the employer. That would mean that there is a mixed onus in this case: the national union bears the onus of establishing its allegations under subsection 63(16) of the Act and the employer has the reverse onus of proving that it did not act contrary to the Act in the ways alleged by the unions in their unfair labour practice application.
18As stated in Canadian Pizza Co. Ltd. at page 873, paragraph 6, the Board “has a discretion as to who should proceed first and … it should exercise its discretion on the basis of its assessment as to what constitutes the essence of the section 89 [now 96] complaint.” The test recommended in The Essex County Board of Education at page 695, paragraph 37, for the exercise of the Board’s discretion to determine the order of proceeding, or the procedural onus, is the following:
- Although the Board was initially reluctant to order an employer to proceed first in circumstances where all of the allegations did not attract the reverse onus provisions (Craftline, supra), nevertheless, the law is clear since Domtar, supra, that the Board possesses a discretion to order its proceedings in this respect. The considerations that the Board has utilized in making such a determination include the proportion of the overall evidence that will be related to employer conduct alleged to be contrary to the Act as stipulated in section 91(5); the extent to which the allegations that do not attract the reverse onus provisions are integrally related to those that do so attract the provisions of section 91(5); and whether the facts alleged by the applicant are peculiarly within the knowledge of the employer; whether procedural difficulties, including substantial embarrassment to the employer, would arise were the employer to be required to proceed first. (See for example Domtar, supra; Canadian Pizza, supra.)
19The Board’s proper focus in determining the duty to begin is the factual basis of the allegations which give rise to the reverse onus. That is a practical question, not dependent upon where the overall onus in the case lies. The Board will usually wish to hear first from the party which has the knowledge of the facts which give rise to the allegations in the complaint (or the subsection 63(16) averments). The cases referred to by the unions’ counsel are instructive because of the factual foundation which underpinned the Board’s decision in each case to require the employer to proceed first. In Domtar Packaging the employer had seven plants. Layoffs had occurred at the six unionized plants and none had occurred at the one non-unionized plant. The union alleged that the employees at the non-unionized plant had been told they would not be laid off so long as there was no union. The union complained the employer had committed an unfair labour practice. The Board placed the duty to begin on the employer. That made practical sense because the employer’s reason for treating the unionized and the non-unionized employees differently was peculiarly within the employer’s knowledge. In Canadian Pizza Co. Ltd. employees had been laid off allegedly because of their support for the union, and a number of threats to continued employment were alleged to have been made to employees who were supporters of the union. The Board found these issues to be peculiarly within the employer’s knowledge and required the employer to proceed first. In The Essex County Board of Education the employer was alleged to have changed the status quo shortly after the union’s certification. In the words of the Board (at page 697, paragraph 44) “the employer is in a peculiarly advantageous position to address, assess and present such evidence”. In all of these cases the employer took some definite action - laying off employees, altering terms of employment - which created a foundation for the union’s unfair labour practice accusation. The Board wanted the employer to explain why it had done what it did. The Board’s approach in all of the cases has been to look first to the party which has some special or peculiar knowledge of a core fact which is acknowledged to have occurred.
20I apply this approach to the allegations made by the unions in their unfair labour practice application and in the national union’s subsection 63(16) allegations. The principal allegations are that an employee, Ms. Gale Halliday, was instructed by the employer in November 1999 to solicit signatures from bargaining unit employees on a termination petition; she was given free access to the plant apparently during working hours; she was then told by a fellow employee to stop circulating the petition because the employer had arranged to have Sankar do so in January 2000; Sankar was given a printed list of all employees and access to all areas of the plant by the employer during working hours to have employees sign the anti-union petition and he told each employee that if the employees signed the petition and got rid of the union the employer would give them more money; on January 12, following the filing of the termination application, a union steward was refused time off to attend to union business; on January 18 and 19 there were incidents involving the employer’s President and union representatives who were handing out flyers at the plant. Of these allegations the most serious, particularly for the purposes of the subsection 63(16) challenge to the termination application, are those involving Ms. Halliday and Sankar. The allegations in respect of them are denied by the employer and Sankar. If the employer were required to proceed first it would have to deal with a number of allegations of which it denies any knowledge. Its witnesses would go virtually straight into cross-examination. While it is acceptable for a union to be able to build its case through cross-examination when a reverse onus applies (as explained in The Essex County Board of Education at page 697, paragraph 45), there must be some acknowledged factual foundation to oblige the employer to proceed first. Approaching this matter practically, in order for me to get a clear grasp of the facts in the case, I would like to hear the unions’ witnesses first, particularly Ms. Halliday’s evidence. That will set the scene for the national union’s subsection 63(16) challenge and for the unions’ unfair labour practice complaint.
21In the circumstances, without making any comment as to where the overall onus in the section 96 complaint lies, the unions’ bear the duty to begin adducing evidence in respect of the termination application and their unfair labour practice application. At a later stage, unless agreed by the parties, I will determine which of Sankar and the employer should follow.
22The hearing will continue on July 11, 12, 13 and 17, 2000, commencing at 9:30 a.m. in the “Board Room”, 2nd Floor, 505 University Avenue, Toronto, Ontario.
23I am seized.
“Christopher J. Albertyn”
for the Board