0239-01-R Geremiah Geldart, Applicant v. Labourers’ International Union of North America, Local 183, Responding Party v. Underground Service (1983) Ltd., Intervenor.
0241-01-R Brad Martin, Applicant v. Labourers’ International Union of North America, Local 183, Responding Party v. Underground Service (1983) Ltd., Intervenor.
1307-01-U Universal Workers Union, Labourers’ International Union of North America Local 183, Applicant v. Underground Services (1983) Ltd. and Geremiah Geldart, Responding Party.
1308-01-U Universal Workers Union, Labourers’ International Union of North America Local 183, Applicant v. Underground Services (1983) Ltd. and Brad Martin, Responding Party.
BEFORE: David A. McKee, Vice-Chair.
APPEARANCES: C. J. Abbass for Geremiah Geldart and Brad Martin; John Moszynski, Marcia Kredentser and Henry Perreira for Labourers, Local 183; Erin R. Kuzz, Kevin McMurdo and Genvieve Debane for Underground Services (1983) Ltd.
DECISION OF THE BOARD; October 24, 2001
1These are two applications for termination of bargaining rights brought pursuant to section 63 of the Labour Relations Act, 1995, R.S.O. 1995 ch. 1 (the “Act”) and two applications alleging unfair labour practices by Underground Service (1983) Ltd. (the “Employer”) to these proceedings, brought pursuant to section 96 of the Act. This matter came on for hearing to deal with certain preliminary issues that were raised by the applicants in the termination applications (the “Applicants”) and the Employer. Some background is necessary in order to understand the nature of these preliminary motions.
The Proceedings
2On April 20, 2001 Brad Martin and Geremiah Geldart (the applicants) filed applications under section 63 of the Act seeking to terminate the bargaining rights of Labourers’ International Union of North America, Local 183 (“the Union”) in respect of employees of Underground Service (1983) Ltd. (“Underground”). Two applications were filed to terminate bargaining rights under two collective agreements: the collective agreement between the Restoration Contractors Association (“the Restoration Agreement”), being Board File 0239-01-R brought by Geremiah Geldart, and the collective agreement between the Heavy Construction Association of Toronto and the Union (“the Heavy Engineering Agreement”), being Board File 0241-01-R brought by Brad Martin. Each application is timely.
3The Union responded to both applications. It sought dismissal of the application under section 63(16) and filed various allegations in support of that request. It also filed two applications under section 96 of the Act alleging some of the same and some further allegations of a violation of the Act by Underground (Board File Nos. 1307-01-U and 1308-01-U). Each section 96 complaint relates to one of the two termination applications. As well as seeking to bolster the Union’s case under section 63(16), each seeks other relief, including the alternative request for a second vote if the termination applications were not dismissed outright.
4At the vote, the Union challenged the right to cast a ballot of every person who appeared to vote. The allegations are two-fold: that the person was not at work on the application date or alternatively, the person was not performing bargaining unit work.
5On May 30, 2001 Underground wrote demanding further particulars of the unfair labour practice allegations and gave notice that it might seek to have the allegations struck if particulars were not forthcoming. The applicants adopted Underground’s position.
6On June 12 (the Union) and June 15 (Underground and the applicants) filed their submissions with respect to the outstanding issues in the two termination applications. These issues included the section 63(16) issue and the “status issues” (i.e. the right of each of the employees to cast a ballot). Underground made detailed submissions about where the employees on the list were working and what they were doing on the application date. The Union simply responded with its bald statement that the employees were not at work or were not performing bargaining unit work on the application date.
7On August 14, 2001 Underground gave notice to the Union that it would seek to have the Board refuse to entertain the Union’s challenges in the absence of any particulars to support the positions asserted by the Union. It relied on an August 8, 2001 decision of the Board in Midtown Enterprises Limited (Board File No. 0174-01-R). The Union did not respond to this letter.
8All four applications were scheduled for hearing on August 27, 2001. I was appointed by the Chair to sit alone and to hear and determine the matters in these applications pursuant to section 110(14). On that day I ruled that all four applications would be heard together by the same panel, though not necessarily by me. The purpose of the hearings on August 27, and continued to September 14, was to deal with the preliminary motions of Underground and the applicants.
Preliminary Motions
9The preliminary motions are as follows:
(1) The Union ought not to be able to litigate the “status issues” since it has filed no particulars of its allegations that persons were not at work or not performing bargaining unit work on the application date.
(2) The section 63(16) issue should be dismissed because there are no particulars.
(3) Certain portions of the section 96 application should be struck for failing to plead allegations with sufficient particularity.
(4) The Union should be ordered to proceed first on the section 96, and with respect to the section 63(16) issue if that is to be litigated.
I – Status Issues
10The present legislative regime with respect to representation applications (both applications for certification and applications for the termination of bargaining rights) has been in effect since November 1995. Issues such as the ones raised in this case have come up before, but the manner of handling them has not generated much discussion in the Board’s decisions, reported or otherwise. It is perhaps useful to examine these issues in some detail.
11The Union’s position is that they are entitled to raise an issue and, essentially, do nothing to pursue it, but rather to require others to produce evidence which the Union is entitled to “test” on status issues. It claims that once it asserts that a person was not at work or performing bargaining unit work on the application date, the onus shifts to the party or parties who want that person on the list to prove his or her entitlement to vote. The Union is not, or should not be required to file any further particulars, as this would essentially require the Union to prove a negative proposition.
12The Union relies most heavily on the Board’s Information Bulletin No. 10 dealing with status disputes in termination applications in the construction industry. Part of that Bulletin provides as follows:
The party that asserts that an individual should be on the voters’ list or in the bargaining unit has the responsibility for ensuring that individual’s attendance at the hearing, unless the Board orders otherwise.
The party that has the responsibility for ensuring an individual’s attendance at the hearing will be responsible for calling that individual as a witness. There may be circumstances in which a party calling a witness is allowed to cross-examine that individual. The Board may itself question a witness.
In the Union’s submission, that creates an expectation that disputes about the status of persons alleged to be entitled to vote will be resolved by the “usual manner”, i.e. litigation. Further, the Union argues that the requirement that the party seeking to add the person to the list produce him or her at the hearing indicates that there is an onus on that party, not only to produce the witness but to prove that he or she is entitled to vote.
13This analysis reads too much into the Information Bulletin. The Board’s practice, which is an administrative decision reflected in an “information bulletin” rather than in the Rules of Procedure or in the Act, is one of convenience only. The allocation of responsibility is designed to require the party most likely to be able to locate and produce that person to do so. Once the person is on the stand, that responsibility comes to an end. That is why the Bulletin states that the person calling the witness may be entitled to cross-examine that person. It is not necessary to prove that the witness is “hostile” in the legal sense.
14At one time, the Board’s practice was to take a much greater role in the examination of employees. The persons in question would be summonsed by the Board, examination would take place before an officer, and a transcript was made of the statements taken. The person was a “Board witness”. The officer conducted the examination and all parties were allowed to cross-examine.
15The Board no longer follows that practice. On a simple level, it does not have the resources to do so. Further what had started in the late 1950s or early 1960s as a relatively expeditious fact-finding process by a Board officer, had developed into a process where a large part of the litigation was conducted in front of persons other than the panel adjudicating the case. Questions of credibility were often impossible to argue on the basis of a transcript. In addition, the process often proceeded less expeditiously before the officer than it might have done before the Board.
16The Board changed its process. The litigation would take place before the panel hearing the application. The party most likely to be able to produce the witness was given that responsibility. That person was no longer a “Board witness” but the usual rules with respect to examination-in-chief and cross-examination did not necessarily apply. However, it should not be forgotten that the process is one of convenience only. It has nothing to do with legal onus.
17It is true that the Bulletin deals with the manner in which disputes over status will be resolved, that is, by litigation before a panel of the Board. However, that begs the question of what constitutes a genuine dispute that requires resolution. The Bulletin is quite clear that the process described therein is a process to be undertaken only if the Board decides that there is a matter to be litigated. It does not contain any form of guarantee or representation to the parties that all disputes alleged to exist will be litigated. On the contrary, the Bulletin makes it clear that the Board retains the right to determine if a hearing will be held at all. It provides:
III WHAT HAPPENS IF STATUS ISSUES REMAIN IN DISPUTE AFTER SETTLEMENT DISCUSSIONS ARE EXHAUSTED
a) Settlement Discussions and Submissions with Respect to Procedural Aspects of Hearing
After the Regional Meeting, the Board Officer reports to the Board. The Board may decide the remaining issues on the basis of the written material (including the submissions described in paragraph (b) below), or may schedule the application for hearing. …
b) Parties File and Deliver Submissions on the Substantive Issues
Each party that asserts that an individual or individuals should not be on the voters’ list or in the bargaining unit must file with the Board and deliver to the other party written submissions providing the reasons for each of their challenges and a summary of the material facts upon which they intend to rely by 5:00 p.m. on the Tuesday following the Regional Meeting. Each party that resists a challenge to the status of an individual must file with the Board and deliver to the other party its response to each of the challenges, summarizing the material facts upon which they intend to rely by 5:00 p.m. on the following day.
IV. THE HEARING
If the Board determines that a hearing is necessary, the hearing will ordinarily take place in Toronto on a date set by the Registrar. The hearing may begin on any day of the week. (emphasis added)
When will the Board decide that a hearing should be held? That is not a question that can be answered easily and inevitably involves the exercise of judgement on the part of the panel deciding whether to set a matter down for hearing. Some general principles can be enunciated, however.
18The Board has frequently refused to hold a hearing where the matters alleged by one party do not raise a legally relevant issue (see, for example, B. Maskell Limited, [1989] OLRB Rep. April 319). Similarly the Board has not held a hearing where the material facts are not in dispute, and the issue can be dealt with by the Board on the basis of essentially agreed facts, with or without submissions by the parties.
19In the case of status disputes of the type raised in this application, at least insofar as they arise in certification and termination applications in construction industry, the following are considerations that would apply to most such disputes.
20First, the test applied is not the same as the one applied to whether pleadings make out a prima facie case. To set that standard would be unfair. There are simply too many occasions on which the knowledge of one party will be limited, partial, and based on inferential reasoning. (That can apply as easily to an employer who has a genuine issue about whether persons are independent contractors as it can to a union about the number of employees on a job site.)
21As well, in this context, the Board will have to make some allowances for the positions that parties making the allegations find themselves in. In this case, the Union was presumably not expecting the termination application to be filed, was not watching job sites on the application date, and unlike the employer, has no access to daily records kept for business purposes. A Union’s knowledge of what occurred on a job site on an application date should be higher in an application for certification than a termination application. On the other hand, a union with a collective agreement has some relationship with the employer and employees in the bargaining unit and should have some knowledge of the people involved. A union will likely be more able to uncover any evidence of improper activity by an employer or by some other party in a termination application.
22Even taking those facts into consideration, however, a party raising an issue has some obligation to demonstrate that there is some level of substance to the issue. It is not enough to say simply that no one was at work on the application date. Why does the Union say that? Was the weather such that no one could have been at work that day? Did a business representative check out the alleged site upon receipt of the application and find that there was no appearance of work done in the recent past? The Union has filed detailed allegations about what Underground did, at least after the application was filed, and alleges that these actions were intimidatory. Even if intimidatory statements were made, some employees have clearly supplied some information to the Union which is of assistance to the Union. Is it too much to ask those employees about what they were doing on the application date?
23In status disputes in representation applications, the Board expects all parties to exercise a level of due diligence to demonstrate that there is a real issue to be litigated. This is not a high standard; it is not the same as pleading a prima facie case. It does require the disputing party to raise some factual issue that will persuade the Board that there is a matter worth inquiring into. In the examples given above, the Union would have no direct information about who is at work on the application date (particularly if known union supporters had been laid off shortly before that date), but the circumstances surrounding physical appearance of the site may raise questions worth inquiring into. Other examples may be illustrative. If the Union were to allege that two persons on a list of ten were not at work on the one site where work was being performed on the application date, that assertion might be enough. That is, the Board might infer that some of the other eight employees were the source of that information. If the source of information is an organizer or business representative who was watching a site, that should be pleaded. However, if the Union appears, for example, to have “missed” one of three sites in a certification application, the Board expects to see some quick investigation by the Union and some basis for asserting that no one was at work on the site.
24As the Board said in Midtown Enterprises:
The Board concludes that the union has not complied with Information Bulletin #10. The union has not provided a “summary of the material facts on which they intend to rely”. Moreover, the union is not correct in assuming that it can wait until the hearing and make out its case on the evidence of the other parties. Typically, the Board seeks to resolve some or all of the status issue without a hearing. Information Bulletin #10 indicates what will follow “If the Board determines that a hearing is necessary…” which is certainly fair warning that a hearing may not be convened.
In this case, the Board had also ordered the employer to produce to the union documents that would establish what work the persons were performing on the application date. I have reviewed those documents and they establish a prima facie case that all 4 of the individuals were performing work in the bargaining unit for the majority (if not the totality) of the application date. The documents also establish that the employer had been remitting dues and other benefit payments to the union on behalf of those persons in the period preceding the application.
25Underground argued in this case that since it had filed extensive documentary materials, the Board was entitled to accept them as accurate and decide the case on that basis. It relies on paragraph 7 of Midtown Enterprises quoted above. That assertion is something of an overstatement. First, the Board’s comments in Midtown Enterprises were made in the context of seeking further information and particulars from the union. In many cases, the union is unlikely to be able to comment on the business records of the employer, records to which it rarely or never will be given access. It is all so too easy to create documents that look convincing, particularly in photocopied form. The Board will not routinely accept photocopied documents as an accurate record of fact where there is a dispute about their accuracy, completeness or authenticity. However, the Board does expect that the union will be able to respond to the facts which the records purport to demonstrate. Does employee “X” appear on a time card when she or he was not referred from a hiring hall (or was not provided with a clearance slip) and has never appeared on a remittance report before? Is there some reason to doubt the information recorded on the documents?
26In this case the Union has raised no factual issue at all. It simply takes the position that it is entitled to sit back and “put the applicant to the strict proof of its assertions”. It has raised no factual issue itself. It has failed to demonstrate any due diligence (even when the opportunity to obtain that evidence from supporters of the Union in the bargaining unit obviously exists) in raising the issue. In these circumstances, the Board will accept the voluminous written materials and documents filed by Underground (which appear to be as complete a set of business records as one could imagine being kept by an employer) as accurate statements of the facts contained therein. I conclude that all of the employees in both applications were at work on the application date. The Union has not raised the ghost of an issue which would make a hearing necessary.
27The same analysis applies to the issue of whether employees were performing bargaining unit work or not. Unlike the issue of whether employees were at work on the application date, this does not require the proving of a negative. If they were not doing bargaining unit work, what were they doing? Again, the Board does not expect the Union’s knowledge to be perfect. However, the Board expects that if a party raises an issue, it must have some idea why it is raising it. If the bargaining unit in question is that of a trade, it may be enough simply to allege that there was work other than that of the trade being done on the site and that the disputed persons were doing it. Even dealing with employees of a “single trade contractor”, some persons may simply be assisting tradespersons in a manner that does not bring them within the trade bargaining unit. If a particular application were made in respect of, for example, plumbers and pipefitters, it might be enough to identify certain work as the only plumbing work being done that day, to state that to the Union’s knowledge only four employees were performing that plumbing work, and the challenged employees were not among those four. Again, it is not necessary to plead a prima facie case. It is necessary to do more than produce boilerplate pleadings. Some real factual issue must be raised.
28In this case, the nature of the work which was being performed (about which there is no challenge) suggests that if an employee was at work, he was likely performing work falling within the scope of one or other collective agreement. The Union has alleged no fact, no issue, and made no suggestion that it might have been otherwise. There is nothing which makes a hearing necessary, and none will be held. The Board finds that all of the individuals listed as employees in the two applications were employed in the bargaining unit and were entitled to cast a ballot.
29This kind of analysis may seem to weigh more heavily on unions in a representation application than on other parties. As a matter of practice, this is probably true. However, it may apply to others. The Board has seen an increasing tendency in responses to applications for certification (especially in the residential sector) for a responding party to allege that all of the persons working for it are independent contractors. That bald allegation is not sufficient. It contains within it an admission that persons performed work at the request of and for the benefit of the responding party and received money in exchange. That is equally true of an employment relationship. An invoice reflecting payment of a fixed price for a defined amount of work is equally consistent with dependent contractor status as it is with independent contractor status. The responding party in that type of application has a great deal of detailed knowledge about its relations with different people and likely knows the identity of, or at least the numbers of, persons in the “crews” who work for it. If a responding party wants to raise that issue, the Board expects detailed submissions and documents. A high degree of factual and documentary detail will be required in that case.
30Finally, something should be said about procedure. Issues must be pleaded early and challenges to voters must be made at the time of the vote. However, the Board does not expect parties to plead the full details or supply all of their documents until formal submissions are made following the regional certification meeting. At that point, the Board expects to see from each party the full details of all of the issues that each party asserts make a hearing necessary. In this case the question of the sufficiency of the Union’s pleadings is being made after two days of argument. Generally speaking, the decision of whether or not a hearing is necessary will be made by the Board on the basis of the submissions made following the regional certification meeting without a hearing, and without further submissions from the parties, unless the Board seeks them.
31In argument, the Union asked the Board if it did not accept the Union’s position, to give it the opportunity to file further particulars as was done by the Board in Midtown Enterprises, supra. That case was decided when the Board was reviewing the submissions filed following the regional certification meeting, and the issue of the sufficiency of the union’s pleadings was raised for the first time by the responding party. In this case, the issue was raised by Underground and the applicant on June 15, on August 14 with a copy of Midtown Enterprises attached, and at the first and the second days of hearing. The Union has been on notice for some time of the position of the other parties to this litigation. If the Union had any particulars, the Board expects that it would have heard about them long before now. This is particularly so since there were two days of argument of this point; any issues about the sufficiency of any further particulars (assuming there are any to be filed) could have been dealt with on the second day rather than running the risk of yet further argument on the issue. Accordingly, there is no reason to delay this process any further. There will be no hearing with respect to the status issues raised by the Union in this case. The Board finds that all persons who cast ballots in the two termination applications were entitled to do so as members of the bargaining units on the application dates.
II – The Section 63 (16) issue
32Underground asked that the allegations under section 63 (16) be dismissed for failing to make out a prima facie case. The pleadings in this regard are, admittedly, slender. However, one allegation is as follows:
“At the vote at the Airport site, Brent Martin was approached by two Union Business Representatives who asked Martin who his lawyer was that was representing him in his s. 63 Application. Martin responded that he did not know who his lawyer was. Martin's lack of knowledge with regard to his legal counsel was because Underground, and not Martin, had arranged for the lawyer to act as Martin’s agent in filing the Application.”
If those facts were proved, and no other evidence were called on this point, those facts could be the basis of a finding that there was employer initiation of the application. Obviously if the applicant has no knowledge of who his lawyer is, and that lawyer signed the application (as he did in this case) one might conclude that someone other than and Mr. Martin had retained counsel acting for him. Since Underground is the only other party with a motivation to initiate the application, the inference that it did so might be drawn by a panel of the Board. Therefore the allegations under section 63 (16) will not be dismissed.
33There is an issue of certain facts that were pleaded with respect to a previous settlement that the parties had entered into. Underground alleges that one of the terms of this agreement was that it would not be referred to in future litigation. The admissibility of that evidence will be dealt with by the panel hearing these applications.
34Paragraph 5 of the section 96 applications state as follows:
“Since or about January 1, 2001 and continuing to date, Representatives of Underground, including its owner Brad Tozer (“Tozer”) have informed its employees that the Collective Agreement with the Union has affected Underground’s flexibility and has affected its ability to get contracts. In addition, representatives of Underground, including Tozer informed its employees that it would be more flexible and obtain more contracts if it was no longer bound to the collective agreement with the Union.”
This statement is singularly lacking in particulars. I will not strike this pleading, for reasons given below. However if further particulars are not provided the Union may well find its ability to lead evidence or cross examine on the basis of this paragraph restricted by the panel hearing the case.
III – The Section 96 Application: Particulars
35Underground conceded that there were some portions of the section 96 application which were sufficiently particularized to constitute a valid claim as pleaded. However, with respect to certain other portions of the pleadings, Underground argued that there were insufficient particulars. Counsel argued that rather than give the Union the chance to file further particulars, the offending paragraphs should be struck.
36While counsel cited a number of decisions, the basic rationale is concisely set out in an unreported decision, Drexler Construction Limited (Board File No. 0798-97-R, November 28, 1997) where the Board stated as follows:
The intent of the Board's Rules both then and now, is to require a party which is alleging improper conduct to give appropriate particulars of its allegations in a timely manner. This requirement is based on both legal and labour relations considerations; namely, that a party which is alleged to have acted improperly have adequate notice of what exactly is being alleged and the case it must answer (or make in a reverse onus situation) and sufficient time to prepare its case, and also to reduce the likelihood of delay in an area of law (labour relations) in which it is well‑established that delay is inherently prejudicial (so much so that more than 20 years ago the Ontario Court of Appeal commented that "labour relations delayed are labour relations defeated and denied": Re Journal Publishing Co. of Ottawa Ltd., [1977] 1 A.C.W.S 817).
Nor is there anything particularly onerous in any of this. It is reasonable to expect that an aggrieved party will know why and what it is complaining about, and will be able to say so.
Where it is asserted that a complaint is not properly particularized, the Board may either strike it out or direct further particulars, as the Board considers appropriate. Evidence of facts or circumstances that have been omitted or improperly particularized may not be led without leave of the Board, and then only upon such terms as the Board considers appropriate.
The Board's approach to "pleading" tends to be less technical than that of the Courts. The Board will generally not strike out a pleading unless it is so lacking in particularity or, so untimely that it is inappropriate to entertain it, or if providing an opportunity to provide further particulars will cause inordinate or unjustifiable delay. Bald pleadings are not jumping off points for fishing expeditions. A party which is making a complaint should be able to plead the basis for it. A party cannot make bald allegations or plead conclusions and thereby obtain an opportunity to discover whether or not it has a case. It must be able to demonstrate an arguable case on its pleadings, before the hearing begins.
Accordingly, it is no answer to a demand for particulars that the responding party "knows" the particulars, or that it will know the case it has to meet once the evidence is led, particularly in a reverse onus situation.
In considering this sufficiency of pleadings, the Board will consider whether the allegations substantially identify and describe the offences alleged and the acts or omissions complained of; the nature of the allegations and the party which bears the onus of proof; whether the party complaining that particulars are lacking really requires additional information; the knowledge or availability of knowledge as between the parties; whether what is being requested is evidence or particulars; and the apparent "real" purpose of the demand for particulars.
37In this case, the following factors are relevant. There will be a hearing into the section 96 complaint. That is, the responding party now acknowledges that there is some case to be met. It is therefore not a question of deciding whether a hearing should be held at all. Second, the Board should be reluctant to strike pleadings where some allegation of unlawful behaviour has been made, but not sufficiently particularized, and where there is sufficient time before the case is scheduled to begin to permit the filing of particulars. That is, there is no prejudice to the responding party if the Union is permitted to file additional particulars before any hearing date. Unparticularized allegations made on the eve of a hearing, without reasonable excuse, which might otherwise entitle another party to an adjournment, will likely be rejected. That is not the case here. If the Union files particulars as required in the timeframe set out below, Underground will be able to know and prepare to meet the case alleged by the Union.
38In addition, whether the pleadings were sufficiently particularized was a live issue with the parties until this decision. The Union argued that the pleadings were in fact sufficiently particularized. Until the first day of hearing, Underground’s position was that the application was so unparticularized that it did not make out a prima facie case and should therefore be dismissed. It was only in the middle of argument that counsel accepted that there were some allegations that were sufficiently particularized and that the application would not be dismissed. At that point she directed her criticisms at only some of the pleadings. Finally, the Board did not accept all of Underground’s submissions as to lack of particularity.
39Therefore, it is appropriate to set out clearly where the Union’s pleadings are deficient and to give them time to file proper particulars. The Union is directed to file within 10 days of the date of this decision the following particulars with respect to the paragraphs in Schedule “A” in Board File 1308-01-U (and the corresponding paragraphs in 1307-01-U):
(a) Paragraphs 3 and 4: these are general introductions which do not set out any facts. If the Union intends to rely on facts that are set out in this very general introduction, they will need to be particularized. However, as the Board reads these pleadings, that was not the purpose of these paragraphs.
(b) Paragraph 5: The Union is directed to name the other persons who made such statements on behalf of Underground (if any) and the times when and places where such statements were made.
(c) Paragraph 9, the Union is directed to file particulars as to what facts it relies on for the assertion that Underground knew or believed Scot Chedore was a supporter of the Union. Further, the Union is directed to particularize who told him to go to another job site, where that other job site was, and why he was unable to attend at the vote.
(d) The last sentence of paragraph 12 is a conclusion of law rather than a factual pleading. While it is unnecessary, and sometimes unhelpful, counsel are entitled to the occasional rhetorical flourish in their pleadings.
The Registrar is directed to schedule these matters for two days of hearing on a date not earlier than 20 days from the date of this decision.
IV – Order of Proceeding
40The union will proceed first on both the section 96 application and the section 63(16) issues.
41The union argued that section 63(16) does not say anything about onus or burden of proof. Counsel argued that the conclusion that the onus of proof lay on the union in such a case is merely a “construct” of the Board A detailed rationale of this “construct” is found in Elirpa Construction & Materials Limited, [1996] OLRB Rep. Jan. 4 at paragraphs 7-18. The reasoning therein is sound. It is true that section 63(16) says nothing about the onus or burden of proof. The unfair labour practice sections of the Act do not do so either. It is a fairly basic principle of law that the person who alleges must prove the case alleged. It is a principle with somewhat greater antiquity than any principle laid down by this Board. In certain instances, this proposition is reversed by statute. Section 96(5) provides:
- (5) On an inquiry by the Board into a complaint under subsection (4) that a person has been refused employment, discharged, discriminated against, threatened, coerced, intimidated or otherwise dealt with contrary to this Act as to the person's employment, opportunity for employment or conditions of employment, the burden of proof that any employer or employers' organization did not act contrary to this Act lies upon the employer or employers' organization.
42Nothing in section 96(5) is applicable to the unlawful initiation of a termination application by an employer. The Union points out, however, that the section does refer to threats, coercion and intimidation, words also found in section 63(16). However, there is nothing in these pleadings, if proved, which could constitute a threat, coercion or intimidation, particularly in regards to employment. There are allegations of inducements and rewards, which are not the same thing. The Union argues that a threat may be implicitly found in every offer of an inducement. It argues that an employee who is offered the inducement may be implicitly threatened (with discharge presumably) if he does not accept the proffered reward. That implicit threat may well be found in many contexts. It cannot be found in the facts as pleaded by the Union in these applications. Not only are there no facts pleaded with respect to any subjective perception of an employee, but there are no facts pleaded which would allow the Board to come to the conclusion that any reasonable employee would conclude that he or she would suffer adverse employment consequences if she or he did not accept the inducement. Thus, section 96(5) does not apply to any allegation made in the section 63(16) issue. Similarly, nothing that is pleaded in the section 96 application brings section 96(5) into play.
43Accordingly, the Union will proceed to call its evidence first. While the panel hearing this matter will determine its own procedure, it seems most appropriate to hear the evidence with respect to both the section 96 application and the section 63(16) issue simultaneously.
44I am not seized of these applications.
“David A. McKee”
for the Board