Teamster Local Union 132 v. P.R.C. Chemical Corporation of Canada Ltd.

[1980] OLRB Rep. May 749

2204-79-R Teamster Local Union 132, Chemical Energy and Allied Workers Affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehouse & Helpers of America, (Applicant), v. P.R.C. Chemical Corporation of Canada Ltd., (Respondent), v. Group of Employees, (Objectors).

BEFORE: M. G. Picher, Vice-Chairman, and Board Members J. A. Ronson and D. B. Archer.

APPEARANCES: Douglas J. Wray and Dennis Phillips for the Applicant; Brian W. Burkett, R. E. Henson, and W. Dorey for the Respondent; C. J. Abbass and J. Ryan for the Objectors.

DECISION OF VICE-CHAIRMAN, M. G. PICHER, AND BOARD MEMBER J. A. RONSON; May 26, 1980

1. This is an application for certification.

2. A group of employees has appeared as objectors to the application. Because of the possible overlap between the union's membership evidence and the list of objecting em­ployees, it is necessary for the Board to determine the exact number of valid membership cards filed by the union.

3. There are 36 employees in the bargaining unit. The union filed 25 membership ap­plication cards with the Board. Three of those cards do not indicate that the employee paid an initiation fee of at least one dollar. The cards contain a space for the amount of the initia­tion fee to be noted; but in each case it was left blank.

4. At the hearing the union requested the opportunity to adduce oral evidence to establish that the employees in question each paid a one dollar initiation fee. Counsel for the respondent and Counsel for the group of employees objecting to the application opposed that request. The issue, therefore, is whether oral evidence is admissible to establish that the employees paid a minimum one dollar initiation fee when that does not appear on the face of the membership evidence filed.

5. In an application for certification the Board must, pursuant to section 7(1) of the Act, determine the number of employees in the bargaining unit who were members of the applicant union. Section 1(1)(j) of the Act provides the following definition:

"'member', when used with reference to a trade union, includes a person who,

(i) has applied for membership in the trade union, and

(ii) has paid to the trade union on his own behalf an amount of at least $1 in respect of initiation fees or monthly dues of the trade union,

and 'membership' has a corresponding meaning;

6. Section 92(2)(j) of the Act provides that the Board has exclusive power,

"to determine the form in which... evidence of membership in a trade union union.., shall be presented to the Board on an application for certification.. ., and to refuse to accept any evidence of membership.. .that is not presented in the form.. .determined."

7. The Board is also empowered under section 91(12) of the Act to determine its own practice and procedure, to make rules governing its practice and procedure and to pre­scribe such forms as it considers advisable. Pursuant to those powers Rule 48 provides for certain requirements which must be met before evidence of membership in a trade union will be accepted by the Board. Rule 48 provides:

"48(1) Evidence of membership in a trade union.., shall not be accepted by the Board.. .unless the evidence is in writing, signed by the employee or each member of a group of employees.. .and, is filed not later than the terminal date for the application.

(2) No oral evidence of membership in a trade union... shall be accepted by the Board except to identify and substantiate the written evidence re­ferred to in subsection 1."

8. Rule 48 does not prescribe the actual words or form to be used in the documentary evidence of membership. It requires that such evidence, whatever its form, be in writing and be signed by the employee.

9. Rules of 48(1) and 48(2) appeared for the first time in the Board's Rules of Proce­dure in 1960 as section 50(1) and 50(2). Those rules then provided for the first time that no oral evidence of membership would be accepted by the Board except to identify and sub­stantiate written evidence filed in a timely fashion.

10. Before the regulations to The Labour Relations Act were extensively amended by O.R. 268/60, paragraph 7a of the then Form 2 Application for Certification read:

"The applicant submits with this application documentary evidence of com­pliance by employees of the standard of the Board respecting membership in the applicant for the purposes of certification, as follows:

(a) individual applications for membership signed by the employees of the respondent, and

(b) (i) individual receipts or duplicate receipts for payment of at least one dollar by employees of the respondent on ac­- count of the prescribed initiation fee or monthly dues of the applicant, signed by the payee or countersigned by the payor, or

(b) (ii) evidence that the employees of the respondent have pre­- sented themselves for initiation, have taken the mem­- bers' obligation or have done some other act consistent with membership in the applicant as follows:

11. The Board's early cases used that paragraph as the starting point to define what was required in the way of documentary evidence. It was then made clear that the applica­tions for membership signed by the employee must contain or be accompanied by a written receipt for the payment of at least one dollar. The applicant in the instant case would argue, in effect, that that requirement no longer obtains or, if it does, it is only a technical require­ment the failure of which can be overcome by the use of oral evidence at the hearing.

12. The requirement that a minimum payment of one dollar be made and be shown in writing on union membership evidence accepted by the Board has been the subject of con­siderable comment in previous Board decisions. That requirement has traditionally been imposed as a safety device to enhance the reliability of documents that are, of necessity, hearsay evidence. In Leon’s Furniture Limited, [1976] OLRB Rep. Feb. 8 at page 9 the Board expressed the rationale for the Board's membership evidence requirements as fol­lows:

“…This notion of financial sacrifice seems to have been discussed first in RCA Victor Ltd., 53 CLLC ¶17,067 (OLRB) wherein it was expressed that a money payment was necessary to constitute confirmatory evidence of the de­sire of the payer to become a member of the trade union. In other words, the Board was saying that it wants to be assured that the employees who are al­leged to have become members have directed their minds and given careful thought to the implications of such a step. Moreover, the Board has time and time again emphasized that it must exact and protect stringent standards with respect to membership evidence in that other parties to a certification proceeding do not have the opportunity to examine the membership evi­dence nor in the usual case do parties have the opportunity to cross-examine the witnesses with respect to membership evidence. (See Zehr's Markets Ltd., [1972] OLRB Rep. June 635.)

5. These requirements of the Board are clear and well known and we are loathe to deviate from them. Despite the apparent arbitrary nature of such rules they fulfill three important functions — cautionary, evidentiary, and channelling.

The RCA Victor case outlines the cautionary nature of the requirement and Zehr's Markets Ltd. is representative of the evidentiary perspective. The third function — that of telling employees and trade unions how membership in a trade union can be obtained for the purposes of the Act — is important to both the Board and the parties. Clear and unequivocal rules in this im­portant area provide the kind of predictability and certainty that is required for organizational purposes and minimizes the amount of "litigation" before the Board. Thus the certification process is expedited and the secrecy as to union membership provided under section 100 is accomplished. In other words, the more the Board deviates from its accepted practice the more par­ties will be encouraged to litigate the question of membership evidence with all the attendant costs of such disputes."

13. While it is true that the Application for Certification (Form 1) no longer contains paragraph 7a nor any equivalent description of the requirements of documentary evidence, applicants are, nevertheless, on notice as to what the Board will require. That becomes clear by a review of the forms used in certification proceedings, the Board's published decisions and the interpretation of the explicit requirements of membership evidence in section 1(1)(j) of the Act.

14. It is a well settled rule of statutory interpretation, generally referred to as the "mischief rule" or the rule in Heydon's Case, that a tribunal interpreting a statute should look to four things to construe its meaning,

1. the common law before the legislation was enacted;

2. the problem or defect which the common law did not cure;

3. the legislative remedy prescribed by Parliament;

4. the reasons for the statutory remedy.

(See Heydon's Case (1584), 3 Co. Rep. 7a; Re Mayfair Property Co. [1898] 2 Ch. D. 28 and see, generally, Langan (ed) Maxwell on The Interpretation of Statutes 12th ed (London, Sweet & Maxwell, 1969) pp. 40-43.)

15. These principles apply with particular force in the interpretation of section 1(1)(j) of the Act. That provision, defining "member of a trade union" for the purposes of the Act as including a person who has applied for membership and has paid an initiation fee or dues of not less that one dollar was enacted following the decision of the Supreme Court of Can­ada in Metropolitan Life Insurance Co. (1970), 1970 CanLII 7 (SCC), 11 D.L.R. (3d) 336. In that case the Court ruled that by not assessing the membership status of employees according to all of the terms of the union's constitution and looking instead only to whether the employees had made a written application for membership and paid not less that one dollar as an initiation fee, ac­cording to its longstanding practice, the Board was asking itself the wrong question. The law as stated by the Court effectively struck down the Board's requirement that generally a union must file written evidence of an application for membership and the payment of one dollar as proof of an employee's union membership in an application for certification. Standing alone the Metropolitan Life Co. case threatened the introduction into the Board's proceedings of technical and legalistic considerations that could bring the certification proc­ess to a standstill. The Legislature, therefore, amended the Act by enacting section 1(1)(j), (The Labour Relations Amendment Actl 97O, S.O. 1970, c. 3, s. 1). There can be little doubt that by so doing the Legislature intended to restore the status quo. By writing the provisions of that section into the Act, the Legislature effectively confirmed the Board's prior practice and made the twin conditions of an application for membership and the payment of at least one dollar substantive requirements to establish union membership in an application for certification. That view has been consistently reflected in the Board's practice.

16. Upon receipt of an application for certification, the Board's procedure now is to immediately send to the applicant union the Board's Form 2 Notice of Fixing of Terminal Date and Hearing before the Ontario Labour Relations Board. Paragraph 2 of that form di­rects the applicant's attention to subsections (1) and (2) of section 48 of the Board's Rules and reproduces them verbatim. That form was sent to the union in due course in the instant case. It accompanied a letter from the Registrar to the applicant dated February 26, 1980 in which the union was advised that March 4, 1980 was the terminal date.

17. The same letter, following standard practice, advised the applicant that it must also complete and return Form 8, the Board's Declaration Concerning Membership Docu­ments. That form must be signed by an officer of the union with direct knowledge of the ap­plication for certification. The union's officer is required to confirm that:

"3. (Where the documentary evidence consists in part of receipts or other acknowledgements of the payment on account of dues or initiations fees) On the basis of my personal knowledge and inquiries that I have made, I state that the persons whose names appear on the receipts or other acknowledgements of the payment on account of dues or initia­tion fees are the persons who actually collected the moneys paid on ac­count of dues or initiation fees and that each member, on whose behalf a receipt or an acknowledgement of payment is submitted has person­ally paid in money the amount shown thereon on his own behalf to the person whose name appears on his receipt or acknowledgement of pay­ment as collector, EXCEPT IN THE FOLLOWING INSTANCES:"

18. There are numerous cases where the Board has rejected documentary member­ship evidence which did not indicate that the employees who had joined the applicant union had paid one dollar. In Wheatley Manufacturing Limited, [1964] OLRB Rep. Dec. 457, an issue arose as to whether the membership evidence submitted by the applicant union con­formed to the requirements of the Board. In particular, there was some question as to whether there had been any initiation fee payments made by the employees to the union. The Board in summarizing its membership evidence requirements stated at page 457:

"The Board has certain well established requirements as to evidence of membership submitted in support of applications for certification. These re­quirements include.., that applications for membership be made in writing, signed by the person said to be a member of the applicant; that each person said to be a member of the applicant pay to the applicant, on his own behalf, an amount of at least $1.00 in respect of the prescribed initiation fee or monthly dues of the applicant; that this money payment be confirmed by a written receipt signed by the person who collected the money and counter-signed by the person who paid the money, and that this evidence be sup­ported by a declaration in Form 9 [now Form 8] with respect to the collection of the money. By section 50(1) [now 48(1)] of the Board's Rules of Proce­dure evidence as to representation must be in writing and by section 50(2) [now 48(2)] of the Rules, the Board is prohibited from accepting oral evi­dence of membership except to identify and substantiate the written evi­dence.

In the instant case the only written evidence of membership consists of the "memorandum of articles of association" referred to above. By that docu­ment the signatories declare themselves to be associated in a joint and com­mon venture and agreed to be and to become members of the applicant. There was no written evidence or any money payment by any person alleged to be a member of the applicant.. . it is clear that this evidence does not meet the standards which the Board has consistently required to be met and ac­cordingly this application must be dismissed."

19. The reasoning in the Wheatley case turns, in part, upon the requirement then ex­pressed in paragraph 7a of the Form 2 Application for Certification that there be signed re­ceipts for the payment of at least one dollar submitted with the membership documents. In the Wheatley case the Board addressed itself specifically to the prohibition to accepting oral evidence of membership, but did not decide the point since the oral evidence showed the payments to have been conditional on the success of the application, a condition which the Board has always found to be in breach of the requirement of absolute payment of the initia­tion fee.

20. The question raised in the Wheatley case was, in effect, the extent to which oral evidence can be adduced pursuant to section 48(2) of the Rules of Procedure to "identify and substantiate" the written documentary evidence previously filed with the Board. That issue was further explored in Campbell Soup Company Limited, [1966] OLRB Rep. Mar. 883. In that case there were filed with the Board membership cards which appeared to be de­fective with respect to the dates on which the membership documents were signed and re­ceipted. Oral evidence was called going to the collection of the membership evidence. The employer and the objecting employees argued that the Board should not consider the oral testimony with respect to the documentary evidence and that such extrinsic evidence should be treated as inadmissible. The Board, after referring to section 50 of the Board's Rules of Procedure [now section 48] stated at page 886:

In this case the provisions of subsection 1 of section 50 with respect to the filing of the documentary evidence of membership have been complied with. The question remains as to whether or not the oral evidence heard by the Board in this case concerning the documentary evidence of membership falls within the exception provided by section 50(2). Since the oral evidence heard by the Board did not deal with the fact that the members joined the ap­plicant union but rather was concerned with the time at which such persons joined the union, the Board finds that such oral evidence identifies and sub­stantiates the written evidence and accordingly falls within the exception provided by section 50(2) of the Board's Rules of Procedure and is accord­ingly admissible.

21. In effect, the Board in Campbell Soup acknowledged that certain aspects of docu­mentary membership evidence such as the dates on which union membership applications were signed and receipted are not substantiative requirements of membership evidence and can therefore be the subject of oral evidence within the exception of section 48(2) of the Rules of Procedure. The Board has in other cases acknowledged that certain parts of mem­bership documents, while desirable, are not strictly required. For example, in Leon’s Furni­ture Limited, [1977] OLRB Rep. Jan. 25 the Board found that membership cards were not invalid merely because they did not contain the signature of the person who collected the one dollar initiation payment. The signature of the collector, albeit an advisable precaution, is not a substantive requirement of membership evidence.

22. The question left unanswered in the Wheatley case was finally disposed of by the Board in a later decision which again focused on the difference between substantive and merely formal or technical defects in documentary membership evidence. In Cooper-Weeks Limited, [1969] OLRB Rep. Nov. 974, the membership evidence in support of an applica­tion for certification was defective in as much as there was no monetary payment shown on the face of the document. Counsel for the union requested leave to call oral evidence with respect to the payment of a one dollar initiation fee. The Board stated:

The Chairman of the panel cited section 48(2) of the Board's Rules of Proce­dure and Regulations which provides that no oral evidence of membership in a trade union shall be accepted by the Board except to identify and substanti­ate the written evidence of membership. The Board ruled that the evidence of membership as filed by the applicant by the terminal date of the applica­tion did not meet the Board's requirements in that it did not show that any of the persons who signed application for membership cards in the applicant paid at least one dollar on his own behalf... The Board further ruled that this was a substantive defect in the evidence of membership and not one which could be corrected by oral evidence under the limitations imposed by section 48(2) of the Rules.

23. In the Cooper Weeks case, the Board drew a critical distinction, emphasizing that a minimum one dollar payment is a substantive condition going to membership in the trade union. It cannot, therefore, be established by oral evidence. Oral evidence can, on the other hand, be adduced, as it was in the Campbell Soup Company case, to substantiate the docu­ment in some formal or technical way. It can, for example, be admitted to clarify the date upon which a membership card was signed. That information, like other technical data in­cluding the signature of a collector, does not reflect on the question of membership in the trade union, but merely goes to when an employee became a member and it is, therefore, admissible.

24. In a case similar, although converse, to the instant case, Canadian Underwriters' Association, [1974] OLRB Rep. Feb. 111, the membership evidence submitted to the Board prior to the terminal date consisted solely of receipts on account of membership fees. There were no applications for membership filed with the receipts, nor was there any other docu­mentary evidence before the Board indicating that the persons on whose behalf the receipts were submitted had applied to join the applicant trade union. At the hearing the union re­quested leave to file additional membership evidence by an extension of the terminal date, or in the alternative, to adduce oral evidence of membership applications pursuant to Rule 48(2) of the Rules of Procedure. The Board, in rejecting the evidence and dismissing the ap­plications stated:

Section 48(2) refers.. .to oral evidence of membership, and, even if the evi­dence of membership which the applicant desired to file with the Board were oral evidence, it would not merely identify and substantiate the written evi­dence respecting membership referred to.. .but would rather supplement the evidence respecting membership previously filed by the applicant.

25. In Bernardin of Canada Limited, [1975] OLRB Rep. Oct. 737 an application for certification was filed by Local 1590 of the IBEW. The membership cards filed in support of the application had reference only to the IBEW. The local number was left blank on each of the membership cards filed. The Board held that evidence of membership in the interna­tional may not be used as evidence of membership in the local. Counsel for the union in that case sought leave to introduce oral evidence in order to establish that the membership evi­dence filed in support of the application referred in fact to the local union. The Board, in re­jecting that submission stated at page 738:

The Board furthermore is not prepared to permit oral evidence to be ad­duced in support of clarifying the intent of the applicant for membership in signing a card. We are of the opinion that it was not the intent of section 48(2) of The Board's Rules of Practice And Procedure to permit oral evi­dence "to identify and substantiate" the written evidence of membership with a view of perfecting inadequate evidence. If that were the case, the Board would be constantly waiving the privilege of the secrecy of member­ship evidence in order to permit trade unions to cure inadequate documen­tary evidence... We do not agree that an indiscriminate application of sec­tion 48(2) of the Board's Rules for the purposes cited by the applicant would necessarily dissipate "the cloud" on the documentary evidence or facilitate the disposition of the applicant's claim for bargaining rights."

(See also Explorer Inns Limited, [1978] OLRB Rep. June 541.)

26. The foregoing cases reflect a consistent thread in the Board's treatment of docu­mentary evidence of union membership. The Board has found that oral evidence is admissible if it goes to supportive information such as the date when the membership evidence was obtained or the counter-signature of a collector. By virtue of section 48 of the Board's Rules and the policy reasons that underlie the rule, the Board has not permitted viva voce evi­dence to establish the two substantive conditions of membership as defined by the Act, namely, the application for membership and the payment of the one dollar initiation fee.

27. Counsel for the union submits that the foregoing cases and the Board's past prac­tice must be reconsidered in the light of the decision of the Supreme Court of Ontario in Fuller's Restaurant Limited, 80 CLLC 14021, quashing the decision of the Board granting a certificate, [1979] OLRB Rep. May 395. In that case a group of employees filed a petition which they submitted was in opposition to the application for certification. The Board found that the wording of the petition was ambiguous and that it did not on its face constitute a statement in opposition to the union. Relying upon Rule 48, the Board declined to admit oral evidence which in the employees' submission would have clarified the true meaning of the petition and the wishes of the employees who signed it. In so doing the Board departed from the less restrictive approach which it has taken in the past towards the wording of peti­tions drafted by rank and file employees, (See Gen wood Industries Limited, [1976] OLRB Rep. Aug. 417; Armbro Materials and Construction Limited, [1976] OLRB Rep. Nov. 743.)

28. The Court found that the Board's decision too narrowly construed the require­ments of section 48 of the Rules of Procedure. Reid, J., for the Court, concluded that the term "substantiate" in subsection 2 of section 48 must at least be broad enough to allow oral evidence to explain the meaning of a petition signed by employees, particularly where a let­ter accompanying the petition indicated that the employees opposed the union. According to the Court to conclude otherwise was improper, especially where the employees had been given no specific notice of the provisions of section 48 of the Rules of Procedure.

29. Counsel for the union submits that this case is analogous. He argues that what ap­pears on the face of the union's cards is merely a technical defect, an ambiguity to be re­solved by oral evidence.

30. We cannot agree. Firstly, the facts and considerations underlying the decision of the Court in the Fuller's Restaurant case are to be distinguished from the case at hand. In that case the substantive requirement of a statement of opposition to a union was already before the Board in written form, as required by section 48(1) of the Rules. The employees were entitled to call oral evidence to clarify written evidence that was already before the Board. In the instant case, the payment of at least one dollar is a substantive requirement going to proof of membership. Evidence that that amount has been paid is evidence of mem­bership within the meaning of section 1(1)(j) of the Act. By the terms of section 48(1) of the Rules of Procedure that evidence can only be admitted if it is in writing and is received on or prior to the terminal date. For the reasons elaborated above, that rule is critical if the Board is to maintain the secrecy of employees' wishes and insure the integrity of confidential docu­ments that are the key to certification.

31. There is a further distinction to be drawn between this case and Fuller's. The Board's adherence to the requirements of section 48 of the Regulations in this case raises no element of unfairness or surprise to the union. the substantive requirements of membership and the need for those requirements to be evidenced in writing before the terminal date is long standing and is well known to unions through the publication of the Board's decisions. Moreover, the applicant, itself a union well experienced before this Board, received from the Registrar a notice bringing to the applicant's attention the full text of subsections (1) and (2) of section 48 of the Board's Rules of Procedure. Further, the union's representative signed the Form 8 Declaration Concerning Membership Documents with its explicit refer­ence to the payment of initiation fees shown on the documentary evidence filed. In all of these circumstances the union can scarcely be heard to say that it was surprised or unaware that it must satisfy the substantive elements of union membership in writing before the ter­minal date. The union knew, or should have known, what is required. This is, therefore, not a case where the Board should either extend the terminal date or, what would amount to the same thing, hear oral evidence either at the hearing or through one of the Board's field offi­cers respecting the payment of the initiation fee by the three employees concerned. The Board is satisfied that there is nothing in that conclusions inconsistent with the decision of the Court in Fuller's Restaurant Limited.

32. The Board must always be mindful of the need for expediency, for secrecy and for integrity in the admission of membership evidence. Its rules may at times seem onerous, but they must be preserved if in the end litigation is to be minimized so that the process of certifi­cation can go forward with certainty and efficiency, to the ultimate benefit of all applicants for certification. For all of the foregoing reasons, therefore, the Board declines to hear oral evidence going to the payment of the initiation fee in respect of these membership applica­tion cards. Since the cards do not constitute satisfactory membership evidence within the meaning of the Act and Regulations, they must be discounted.

33. The Registrar is instructed to list this matter for continuation of hearing. The pur­pose of the hearing will be to hear evidence and representations in relation to the petition, the charges filed, and any other matter that might be outstanding.

DECISION OF BOARD MEMBER D.B. ARCHER:

1. The Applicant Union in this case was careless in submitting its membership evi­dence. Three of the membership cards did not show that at least one dollar had been paid by the person who signed the card. The Union, at the hearing, wanted to lead oral evidence to establish that these persons did, in fact, pay at least one dollar to the Union. The majority of the Board has refused to hear this evidence.

2. In my opinion, the majority is being unduly technical in its approach to member­ship evidence in this case. Where there is an allegation of "non-pay" or "non-sign", the Board, as a preliminary matter, will appoint an officer to investigate. I appreciate that in the "non-pay" case, there is documentary evidence of payment to support an allegation of fraud, the situations are similar. To preserve the secrecy of the membership evidence, and to establish whether a payment was made, the Board could appoint an officer to investigate whether any money was paid to the Union.

3. The majority has relied upon the legal difference between a technical irregularity, such as a missing date, and a substantive defect in membership evidence. I am not per­suaded that there really is a difference between the two types of defects. A date missing from a card is usually a failure by the collector to fill in the blank space on the card left for the date; similarly, the amount of money paid is a similar type of omission, that is, the failure to fill in a blank space on the card. Since the Board will receive oral evidence with respect to the former, I believe that it should also receive oral evidence to cure the latter defect.

4. The Board in this case is, in my view, being unduly technical in the application of its rules. I would have admitted the oral evidence sought to be introduced by the Union.