[1982] OLRB Rep. October 1413
1047-82-R Norman Marsden, Applicant, v. International Association of Machinists & Aerospace Workers, District Lodge 717, Respondent, v. Byers-Bush (1977) Ltd.., Intervener
BEFORE: D. E. Franks, Vice-Chairman, and Board Members J. Wilson and S. Cooke.
APPEARANCES: Norman Marsden and Cecil F. McPherson for the applicant; Joseph Atkinson for the respondent; J. Ramsay and H. Byers for the intervener.
DECISION OF THE BOARD; October 20, 1982
This is an application for termination of bargaining rights made under section 57 of the Labour Relations Act.
The respondent and intervener are party to a collective agreement which expires on October 25, 1982 in respect of the following unit of employees:
"all employees of Byers-Bush (1977) Limited at Mississauga, Ontario, save and except foremen, persons above the rank of foreman, office and sales staff, persons regularly employed for not more than twenty-four (24) hours per week and students employed during the school vacation period."
This application having been made on August 31, 1982, the Board, therefore, finds this is a timely application for termination of bargaining rights.
- Accompanying the application in Form 17 was a photocopy of a petition headed as follows:
"The following people do not want to continue as members of the union at Byers-Bush (1977) Ltd."
The petition was circulated by Mr. Norman Marsden who witnessed the other nine signatures on the petition, and who circulated the document in the short period before work began on August 12th and August 13th, 1982. His evidence is that he did not discuss the petition with any representative of the employer and that the various employees were in the shop area before work began and that there was no foreman or any other managerial person present when the document was circulated.
Mr. Marsden's evidence, which we are prepared to believe is that the heading on the document was written by his girlfriend (because, as he put it, his handwriting is not very legible). His girlfriend does not work for the intervener or have any connection with the intervener and his evidence is that she is the only other person who at any time was in possession of the petition. Indeed, Mr. Marsden's explanation about how the petition came to be in the form of a photocopy is that his girlfriend took the original of the petition to her place of employment and made photocopies of the petition. A photocopy was attached to each of the Form 17's filed in quadruplicate. When questioned about the other photocopies, Mr. Marsden's evidence was that the remaining photocopies and the original were at home. He failed to realize any necessity to bring them to the present hearing.
His evidence, however, was quite clear that apart from the photocopies sent to the Board, the original and all other photocopies remain at home and have not been seen by anyone other than himself and his girlfriend.
We are of the view that the petition filed with the Board in this matter represents the true wishes of the employees. A question that remains is whether the Board should accept such a petition in the form of a photocopy or whether the Board should require such a document to be the original document. Accepting photocopy evidence obviously involves certain inherent dangers. Thus, an original might be altered and such alteration not be apparent on a photocopy. The Board has, for instance, in the case of evidence of membership filed by a trade union, refused to accept such documentary evidence as acceptable evidence because of such concerns. Thus, in the Norfolk County Board of Education case [1974] OLRB Rep. March 182 at 183 the Board noted as follows:
"4. The Board has examined with some concern the evidence of membership filed by the applicant in support of its claim for bargaining rights. They are photocopies of documents that purport to indicate that the undersigned in each case is an office employee in the employ of the respondent, that each is a member of the applicant trade union, and that the required initiation fee was paid. Save in two circumstances, the signatures purport to reflect copies of the counter-signature of the treasurer of the applicant and a date appears on each of the documents described herein. In the case of two documents, the signature of the treasurer seems to have been penned in after the photocopies were taken.
The Board usually relies on the "best evidence" in accepting documents indicating the voluntary wishes of employees to be members of a trade union. The Board relies heavily on such evidence and normally accepts documents indicating membership in a trade union at face value. In this regard such reliance is usually predicated upon the filing of the authentic, original membership cards. The Board imposes such strict standards with respect to the acceptability of such evidence in order to avoid the onerous task of requiring oral testimony of each and every person who purports to be a member of a trade union pursuant to an application for certification. In short, the practice of the Board in satisfying itself of the true and voluntary wishes of employees who desire to be members of a trade union is to rely on "the best evidence" available.
The hazard of accepting photocopy evidence is indicated in the two instances referred to in paragraph #4 herein. In those instances, the signature of the treasurer is handwritten on two cards. That is to say, in those examples the photocopies are not a true replica of the original cards. It is noted that this matter was not disclosed in the Form 8, Declaration Concerning Membership Documents. It follows, therefore, that for the Board to accept the membership evidence filed by the applicant we would have to condone an obvious (whether intended or not) misrepresentation. The Board, therefore, does not hesitate to set aside all of the applicant's evidence of membership.
In order that the Board's decision be not misunderstood, it wishes to add the following for the applicant's benefit. The Board in most circumstances, will require that documents purporting to be membership cards be filed in their original form. Nevertheless, there may very well be circumstances where photocopy evidence may be the only evidence available for purposes of establishing a claim to representive rights. In such instances, the Board is of the opinion that the matter of the photocopy evidence should be disclosed in advance and that the applicant be prepared, at the hearing, to establish the authenticity of such evidence."
On the other hand, in the International Woodworkers of America case [1975] OLRB Rep. Aug. 631, the Board was able to satisfy itself that the photostat was free from such concerns and accepted a petition in a termination case notwithstanding the fact that the petition which was filed was a photostat.
In the present case, like the International Woodworkers of America case referred to above, we are satisfied that the document presented to the Board is a true copy of the original document, and that custody of the original document and the copies was at all times in the hands of the applicant throughout the relevant period of time.
Accordingly, the Board finds that not less than forty-five per cent of the employees of Byers-Bush (1977) Ltd. in the bargaining unit at the time the application was made have voluntarily signified in writing that they no longer wish to be represented by the respondent union as of September 13, 1982, the terminal date fixed for this application and the date which the Board determines under section 103(2)(j) of the Labour Relations Act, to be the time for the purpose of ascertaining the number of persons who have voluntarily signified in writing that the no longer wish to be represented by the respondent under section 57(2) of the Act.
The Board directs that a representation vote be taken of the employees of the intervener in the voting constituency set out above. Those employees eligible to vote are all employees of the intervener in the voting constituency on the date hereof who do not voluntarily terminate their employment or who are not discharged for cause between the date hereof and the date the vote is taken.
Voters will be asked to indicate whether or not they wish to be represented by the respondent in their employment relations with Byers-Bush (1977) Ltd.
The matter is referred to the Registrar.