Ontario Labour Relations Board
[1980] OLRB Rep. November 1656
1482-79-R Retail Clerks Union, Local 206, Chartered by the United Food and Commercial Workers International Union, Applicant, v. Kitchener News Company Limited, Respondent, v. Group of Employees, Objectors
BEFORE: R. 0. MacDowell, Vice-Chairman and Board Members F. W. Murray and B. K. Lee.
APPEARANCES: Ted Wohl, Randy Levinson and Betty Henry for the applicant; W. Challis and R. McKecg for the respondent; No one appearing for the objectors.
DECISION OF THE BOARD; November 1, 1980
This is an application for certification in which there are a number of issues in dispute between the parties; however, we have found it necessary to deal with only one.
In support of its application for certification the applicant union filed documentary evidence of membership in the form of cards, each of which consists of a combination application for membership and an attached receipt. A prospective member is required to sign both portions so that the membership document will properly meet the requirements of section 1(1)6) of The Labour Relations Act. There is also a space where the "collector" must sign to confirm both the employee's signature, and the receipt by the "collector" of the union's initiation fee. The union filed 11 such membership documents. The documents were solicited by more than one "collector". This membership evidence was supported by a duly completed Form 8 statutory Declaration Concerning Membership Documents signed by Betty Henry a trade union official. Paragraph 3 of this statutory declaration provides as follows:
"(Where the documentary evidence consists in part of receipts or other acknowledgements of the payment on account of dues or initiation 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:" [emphasis added]
A potential problem with the Form 8 Declaration surfaced during an examination of the circumstances surrounding the solicitation of the membership card of Joe Solazzo. Mr. Solazzo's membership card is signed in the two places as required, and the confirming collector's signature is that of Wendy Woods. Ms. Woods, however, was not the person who witnessed Solazzo's signature or collected a dollar from him. Ms. Woods apparently pre-signed the membership card, which was subsequently given to Pat Lichty. It was Ms. Lichty who actually solicited Mr. Solazzo's support and, it appears, collected the required dollar payment from him some days later. Ms. Lichty returned the card to Ms. Woods with a dollar of her own. Ms. Woods, in turn, gave the card to Betty Henry, so that it could be included with the other cards supporting the union's certification application. There is no evidence of any inquiry by Ms. Woods of Ms. Lichty concerning the manner in which Solazzo's card was solicited, nor is there evidence of any inquiry by Ms. Henry with respect to this matter. None of the witnesses could recall such inquiries being made.
Betty Henry was called to give evidence concerning the extent of her inquiries prior to signing the Form 8 Declaration. It should be noted, moreover, that Ms. Henry was "collector" for only seven of the cards tendered in evidence. There were other collectors for the other cards, and consequently in order to fulfill the requirements of paragraph 3 of Form 8 it would have been necessary for Ms. Henry either to have been present when the other cards were signed, or to have made the inquiries concerning the circumstances in which they were signed. The evidence before the Board disclosed neither.
Ms. Henry testified that she had no recollection of making inquiries concerning the Solazzo card, nor was it her practice to make such inquiries in every case prior to signing the Form 8 Declaration. She indicated that she made efforts to train employees, and impressed upon them the necessity of soliciting membership evidence properly; but, having done so, she relied on this training rather than on her own inquiries when she signed the Form 8 verifying that the membership evidence was proper. As the case of the Solazzo card indicates, this was not necessarily the case, and this irregularity might well have been revealed had Ms. Henry undertaken the inquiry contemplated by paragraph 3 of the Form 8 declaration.
The knowledge which is required as a precondition to signing the Form 8 Declaration was outlined by the Board in National Steel Car Corporation Limited, [19661 OLRB Rep. Jan. 738 at paragraph 13:
"It is readily apparent that a person completing Form 9 (now Form 8) must be seized with some type of knowledge in order to satisfy the requirements of item 3 cited above. This knowledge may be personal knowledge (i.e.) knowledge gained by either acting as the actual collector or knowledge gained by being personally present and actually witnessing the transaction between the collector and the member wherein the membership card was signed and payment of money made by the member to the collector.
The other type of knowledge which is acceptable is that knowledge gained from inquiries made of the persons who actually acted as collectors, or the persons who made the necessary inquiries of the actual collectors.
The requirement that inquiries be made is obviously not an onerous one or one that imposes an undue burden on the applicant; however, the requirement is that inquiries be made.
In order that inquiries be meaningful it is obvious that they must be made after the event. Instruction given to collectors prior to the signing of members may be helpful or necessary in the carrying out of an organizing campaign; however, such instructions do not obviate the necessity of making the inquiries required for the proper completion of Form 9 (now Form 8). (See Dominion Stores Limited case, [1964] OLRB Rep. Dec. 447)
In the instant case, Mr. Storey, prior to completing Form 9 (now Form 8) made inquiries of Mr. Cooke. However, Mr. Cooke had made no inquiries of Mr. Griffin and in turn Mr. Griffin had made no inquiries of other persons who had acted as collectors. It is readily apparent that the inquiries made by Mr. Storey were made of a person who had no direct knowledge of the collectors and the failure of Mr. Cooke and Mr. Griffin to make inquiries frustrated the purpose of Mr. Storey's inquiries. Where the officers of an applicant trade union have themselves frustrated the inquiries made by the person who completes Form 9 (now Form 8) and by their failure to follow through with their own inquiries, render the inquiries made by such persons meaningless, we must find that Form 9 (now Form 8) in such circumstances cannot serve the purpose for which it was intended and in such circumstances is a nullity. In arriving at this conclusion, the Board has noted with approval the Valley Transportation Company Limited case, [1963] OLRB Rep. Nov. 448, wherein the Board said at p. 452:
'The Board must expect and insist that persons who file applications for membership cards and receipts and Form 9 (now Form 8) as evidence of membership, take all necessary precautions and care to ensure that the information contained therein is true and accurate. The Board is entitled to demand the highest standards of integrity, disclosure, and accuracy on the part of those who submit such evidence and where undisclosed inaccuracies of material facts are later brought to its attention, to take a strict view of them."' [emphasis added].
The standard enunciated by the Board in National Steel Car, supra, has been consistently applied in other cases in which the same issue arose. It is a standard which is well known in the labour relations community, and the cases on point are legion (see for example: Puretox Limited, [1972] OLRB Rep. June 676 and cases cited therein; Stanley Steel Company Limited, [1972] OLRB Rep. Feb. 181; and N. D. Supermarket Limited, [1976] OLRB Rep. March 112; Triad Triumph Limited, [1976] OLRB Rep. March 115; Country Village, [1976] OLRB Rep. July 373; The Alexandra Hotel Limited, [1972] OLRB Rep. Nov. 963; and more recently Trent Valley Lodge Limited, [1980] OLRB Rep. June 926). The purpose of the Form 8 inquiry (and the "second check" that it builds into the system) is equally clear. The Board must place total reliance on documentary evidence—written hearsay, often solicited by inexperienced laymen, yet not revealed to the employer or subject to cross-examination (see section 100 of the Act). On the basis of that evidence, a trade union may be certified as the employees' bargaining agent without recourse to a representation vote. Indeed, unless some specific irregularity is brought to the Board's attention, the Board will normally place total reliance on the Form 8 Declaration and will not undertake any formal inquiry concerning membership documents which appear to be regular on their face. In the present case, for example, the Form 8 problem would never have come to light had it not been for the disclosure of an irregularity which would not have been apparent on the face of either the Form 8 Declaration or the membership card itself. To avoid such problems, the Board has always held that the person signing the Form 8 must be meticulous and comply strictly with its requirements.
Ms. Henry's evidence amounts to this: that she has no specific recollection of making any inquiry concerning a card which is clearly irregular, and that it was her practice to rely on proper training of employee collectors rather than, in each case, making specific inquiries of them, after the fact, concerning the manner in which their cards were collected. In other words, the evidence indicates that the required inquiries were not made, and accordingly the Form 8 Declaration can only support those membership documents which Ms. Henry solicited herself. This conclusion is not intended to impugn Ms. Henry's integrity, or suggest that she has intentionally sought to mislead the Board. We believe that she merely misconstrued the nature and extent of the inquiry required of her. The Board must find in the circumstances of this case, however, that the membership evidence solicited by persons other than Ms. Henry herself is not supported by the Form 8, does not meet the strict standard required by the Board, and consequently, should not be considered.
The application is dismissed.