[1982] OLRB Rep. January 77
1739-81-R Labourers' International Union of North America, Local 506, Applicant, v. North American Canadian Developments Ltd. carrying on business as N. A. Constructions, Respondent, v. Group of Employees, Objectors.
BEFORE: Ian Springate, Vice-Chairman, and Board Members J. Wilson and H. Kobryn.
APPEARANCES: Ian Roland, Peter Hitchen and Mike Mihajlovic for the applicant; I. W. Fefergrad and Ken Waldinan for the respondent; Michael Horan for the objectors.
DECISION OF THE BOARD; January 11, 1982
This is an application filed pursuant to the construction industry provisions of the Labour Relations Act.
To date the Board has dealt only with an allegation that two employees who applied for membership in the applicant trade union, namely, Mr. Dan Homer and Mr. George Robitaille, did not pay a dollar on their own behalf in connection with their applications. Mr. Mike Mihajlovic, a business agent with the applicant trade union, signed the receipt portion of the relevant membership documents indicating that he had received a dollar from both of the employees in connection with their membership applications.
Mr. Mihajlovic attended at one of the respondent's job sites on November 10, 1981 and talked to four employees about joining the applicant. At least three of these employees indicated a desire to become members of the applicant, namely, Mr. Homer, Mr. Robitaille and Mr. Tim Young. Mr. Mihajlovic then handed out applications for membership for them to sign, and also advised them that they would each have to pay one dollar in connection with their application. Mr. Mihajlovic also indicated to the employees that if they did not have the money on them, they could borrow it from a fellow employee.
Mr. Robitaille testified that at the relevant time he had only two dollars on him which he intended to use for lunch, and accordingly he asked Mr. Young to lend him a dollar. Mr. Young then handed one dollar to Mr. Mihajlovic on Mr. Robitaille's behalf. It should be noted that Mr. Mihajlovic testified that he was certain that the money had first been given to Mr. Robitaille, who had then handed it over. The weight of the evidence, however, supports Mr. Robitaille's contention that the money was actually handed directly to Mr. Mihajlovic by Mr. Young. Mr. Robitaille testified that at the time in question he did not actually intend to repay Mr. Young and, further, did not believe that Mr. Young expected to be repaid. Mr. Robitaille stated that he regarded the transaction as involving the type of "loan" which employees sometimes make to one another without the expectation that it would be repaid. Mr. Robitaille noted that on previous occasions. Mr. Young had "borrowed" money from him and not paid it back. Mr. Robitaille and Mr. Young did not later discuss the repayment of the dollar, and Mr. Robitaille never did repay the amount to Mr. Young.
Mr. Homer testified that when Mr. Mihajlovic asked him for a dollar, he had no money on him. According to Mr. Homer, Mr. Young then volunteered to cover the amount. On this point, however, we prefer the evidence of Mr. Robitaille, who stated that he heard Mr. Homer ask Mr. Young to lend him a dollar, in response to which Mr. Young said "here's a dollar" and passed the money over to Mr. Mihajlovic. Mr. Homer testified that he never intended to repay Mr. Young, that the two of them had not subsequently discussed the matter, and that the dollar had never been repaid. Mr. Homer also stated that if he did have a dollar at the relevant time, he likely would not have given it to Mr. Mihajlovic, but instead saved it to buy himself a drink.
Mr. Mihajlovic testified that he assumed that any money borrowed by the employees would be repaid. It is clear, however, that Mr. Mihajlovic made no inquiries to ascertain whether Mr. Robitaille and Mr. Homer actually regarded themselves as indebted to Mr. Young and intended to repay him.
Section l(l)(l) of the Act defines a"member" of a trade union as including a person who has both applied for membership in the trade union and also paid to the trade union on his own behalf at least one dollar. What is now section 1(l)(l) was first enacted by The Labour Relations Amendment Act 1970. This section gave statutory force to what was already a well established Board policy. Indeed, as early as February 16, 1951, the Board issued a statement of policy which stipulated that for the Board to regard an employee as a member of a trade union, the employee must not only have applied to become a member of the union, but also have paid to the union, on his own behalf, at least one dollar. The purpose of the requirement of the money payment was discussed as follows in the R.C.A. Victor Company Ltd. case 53 CLLC 9117, 067 at pp. 1469-70:
It need hardly be pointed out that the Board cannot accept as evidence of payment anything in the nature of a monetary contribution from a person other than an applicant for membership. The money payment constitutes confirmatory evidence of the desire of the payer to become a member of the trade union. If no financial sacrifice is made by the person himself, the only evidence submitted on his behalf is a signature on an application card which the Board has long since held to be inadequate to establish membership. On the other hand, not every loan to a prospective member, especially where the money is repaid, will be fatal to an applicant's case.
We are satisfied that at the time they signed their applications for membership, neither Mr. Homer nor Mr. Robitaille had any intention of repaying Mr. Young, and that they in fact did not do so. Accordingly, we are led to the conclusion that there was no real financial sacrifice on their part. See: Sandercock Construction Limited, [1970] OLRB Rep. April 147. In these circumstances, and taking into account the fact that the so-called "loans" were made in an informal manner in front of the collector who made no attempt to ascertain whether in fact there was a true intent to repay the money, as well as the fact that the collector actually received the money from another employee, we are satisfied that the Board should give no weight to the membership evidence filed on behalf of either Mr. Homer or Mr. Robitaille.
At the hearing, counsel for the group of objectors contended that the Board should decline to give weight to any of the membership evidence which Mr. Mihajlovic signed as the collector. Were we of the view that Mr. Mihajlovic had been aware of the lack of intent on the part of Mr. Homer and Mr. Robtaille to repay Mr. Young, we might well view such a course of action as justified. As it is, however, we are satisfied that Mr. Mihajlovic believed that a bona fide loan had in fact been made to the two employees. Further, it was not alleged that any other membership evidence collected by Mr. Mihajlovic involved the loaning of money. In these circumstances, we are not prepared to set aside the remaining membership evidence collected by Mr. Mihajlovic.
II. It was also contended by counsel for the objectors that the Board should reject all of the evidence of membership filed by the applicant on the grounds that Mr. Peter Hitchen, who signed the Form 8 Declaration Concerning Membership Documents, had not made sufficient inquiries of Mr. Mihajlovic prior to signing the declaration. This contention was rejected orally at the hearing in that the evidence revealed that Mr. Hitchen had made reasonable inquiries of Mr. Mihajlovic concerning both the signing of the cards and the payment of money but that Mr. Mihajlovic did not advise him of the "loans" made by Mr. Young.
- This application for certification is to be re-listed for hearing to hear the evidence and the representations of the parties with respect to all outstanding issues. The matter is referred to the Registrar.