[1982] OLRB Rep. April 567
2099-81-R United Food and Commercial Workers International Union, A.F.L.-C.I.O.-C.L.C., Applicant, v. Daltons (1834) Limited, Respondent, v. Group of Employees, Objectors
BEFORE: Kevin M. Burkett, Alternate Chairman and Board Members J. A. Ronson and O. Hodges.
APPEARANCES: James Hayes and Vincent Gentile for the applicant; R. C. Filion, D. Grierson, Glen Whyte, Bruce Moyle and Russ Plawink for the respondent; Thomas R MacInnis and Andy N. Purushuttam for the objectors.
DECISION OF KEVIN M. BURKETT, ALTERNATE CHAIRMAN AND BOARD MEMBER J. A. RONSON; April 13, 1982
This is an application for certification.
The respondent company filed a written allegation in this matter that Manuel Fernandes, an employee of the company presently on layoff, signed a membership card in the applicant union but failed to pay the required $1.00.
The payment of $1.00 by each person on whose behalf membership documents are filed by a union in support of an application for certification is required under the Act. The payment of $1.00 evidences the thoughtful intention of an employee to join the trade union. Section l(l)(l) of the Labour Relations Act defines a union member as follows:
"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.
Subject to a verification of the employee signatures shown on the membership documents and the filing of a Form 9 by a person who has inquired of those acting as collectors, confirming that $1.00 has been paid by each of the employees on whose behalf membership documents have been submitted, the Board, as directed by the statute, relies on the written evidence of membership. Because the written evidence is a form of documentary hearsay, and because the Board is making determinations on the basis of it which create important rights and trigger statutory duties and obligations, an investigation is undertaken in all cases where it is alleged that the membership evidence, as filed, is false. Because the Board is under a statutory direction to preserve the secrecy of union membership wherever possible, an officer of the Board is assigned in these cases to contact the employee who is alleged not to have signed a card or paid the $1.00 and to obtain from him a signed statement as to whether or not the dollar was paid. Where the employee states that he has not signed the card or paid the dollar, the matter is put on for a hearing.
The union filed a membership card on behalf of Mr. Fernandes indicating on its face that he had paid one dollar and submitted a Form 9 attesting to the collection of one dollar from Mr. Fernandes. When the allegation in respect of his failure to pay the one dollar was filed, therefore, an officer of the Board contacted Mr. Fernandes and made the necessary inquiries of him. Having regard to the report of the officer, the matter was put on for a hearing.
Mr. Fernandes testified that he was approached by Andy Purushuttam, a fellow bargaining unit employee, on December 31st in the company lunchroom and asked to sign a union membership card. He testified that he signed the card but was not asked to nor did he pay $1.00 to Mr. Purushuttam. It is his evidence that he was never asked to pay the $1.00 although Mr. Basil John, the company's shipper, the bargaining unit employee who acted as the chief in‑plant organizer and the person whose signature appears as the collector on the membership card filed on behalf of Mr. Fernandes, approached him two or three weeks after he signed and asked him if he had paid the $1.00. Mr. Andy Purushuttam, who appeared at the hearing representing a group of employees opposed to the application, testified that he was given two membership cards by Mr. Basil John and asked to sign into membership two employees. He maintains that he was never directed to collect $1.00 from those he signed. He did not collect $1.00 from Mr. Fernandes and testified that when he returned the signed card to Mr. John, Mr. John tore of the receipt portion of the card and threw it away. Mr. Purushuttam later advised the company that Mr. Fernandes had failed to pay the $1.00.
Mr. John testified that he instructed Mr. Purushuttam to collect the $1.00. It is his evidence that he returned Mr. Fernandes' signed card to him in his office at about noon on January 4, 1982 and told him that he had not collected the $1.00. Mr. John testified that he knew he had to collect the $1.00 from Mr. Fernandes. It is his evidence that at about 3:30 p.m. that day he went to an adjacent building where Mr. Fernandes was working and, in the presence of Mr. Tadao Hoshi, another bargaining unit employee, asked him for the $1.00 he owed, was given it by Mr. Fernandes, gave him the receipt (which surprisingly he had already dated December 31st) and filled in the back of the membership card. Mr. Hoshi recalled that Mr. John asked for and received the $1.00 but, when asked in cross-examination, denied that Mr. John had given anything to Mr. Fernandes and answered in the negative when asked if Mr. John had written anything down. Mr. Fernandes recalled speaking with Mr. John and Mr. Hoshi at about 3:30 p.m. on January 4th but denied that the $1.00 was asked for or paid by him. The evidence establishes that the two of them were in Mr. John's office for two or three minutes before Mr. Fernandes commenced his shift at 3:30 p.m. on January 4th but that Mr. John did not ask him for the dollar at that time. Mr. John testified that he was too busy completing his bills to ask for the $1.00. However, he had earlier testified in explaining his decision to go to an adjacent building to ask Mr. Fernandes for his $1.00 that it was "very slow" that day.
Mr. John testified that he had been instructed at the outset by Mr. Vince Gentile, the full-time union organizer and the union official who signed the Form 9, that he must collect $1.00 from each employee signed into membership. When examined by the Board, he testified that he understood the instruction and that each employee paid the $1.00. It was later revealed in examination-in-chief, however, that Mr. John had not collected $1.00 from any of the employees he signed into membership prior to December 22, 1981. Mr. Gentile testified that there were 10 or 11 cards signed before December 22nd and that none of the employees who signed these cards had paid $1.00. It is his evidence that he and Mr. John visited the homes of these employees between Christmas and New Year's and either had them sign new cards and pay the $1.00 or simply pay the $1.00 owed in connection with the initial card which had already been signed. The evidence that some of the cards which had already been signed were filed with the application after the $1.00 had been collected between Christmas and New Year's is difficult to reconcile with the fact that all of the cards submitted in support of the application are dated on or after December 22nd.
Mr. John's signature appears as the collector on twenty of the twenty-nine cards filed with the application. Both Mr. John and Mr. Gentile testified that Mr. Gentile visited Mr. John's home on January 11, 1982 and asked him with respect to each individual card if the person whose signature was shown had actually signed and paid the $1.00. Mr. John answered in the affirmative with respect to each card. There is no evidence that Mr. Gentile personally knew any of the bargaining unit employees other than Mr. John. It is to be observed that Mr. John testified that he informed Mr. Gentile that Andy Purushuttam had signed Mr. Fernandes into membership, had failed to collect the $1.00 but that he had collected it at a later date. Mr. Gentile was unequivocal in his evidence that Mr. John said nothing about Andy Purushuttam signing anyone into membership. Indeed, Mr. Gentile testified that Mr. John had created the impression that he had signed Mr. Fernandes into membership.
When called upon to make findings of credibillity, the Board must consider the demeanor of the witnesses as they give their testimony, assess the testimony against what best accords with reason and the established facts, and consider any lapses of memory or obvious false statements which reflect on the truthfulness of the evidence tendered. The critical conflict in the evidence before us relates to whether or not Mr. Fernandes paid $1.00 in support of his application for membership in the union. Mr. Fernandes says that he did not. We start by observing that we found nothing in the demeanor of Mr. Fernandes which would suggest that he was not telling the truth. On the other hand, we found Mr. John to be evasive on occasion and unsure of himself under cross-examination. In addition, there are two less critical conflicts in the evidence that we would resolve against Mr. John. Firstly, Mr. John testified that he instructed Mr. Purushuttam to collect $1.00 when he signed an employee into membership. Mr. Purushuttam testified that he received no such instruction. We are not prepared to accept that Mr. John would have instructed Mr. Purushuttam to collect a dollar in every case when the evidence is that at the time he himself had not collected a dollar from any of the ten or eleven employees he had signed into membership. We are satisfied that Mr. Purushuttam who did not collect the $1.00 from Mr. Fernandes was not asked to do so. Secondly, Mr. John testified that he advised Mr. Gentile on January 11th that he had not signed Mr. Fernandes into membership. Mr. Gentile, who we believe, testified that he was not so advised but led to believe that the opposite was true. Furthermore, we find it very surprising, given the sequence of events recounted to us by Mr. John, that he would not have asked Mr. Fernandes for the $1.00 when the two of them were alone in Mr. John's office for two or three minutes shortly before 3:00 p.m. on January 4th. Mr. John maintains that he was too busy at the time but earlier in his testimony stated that January 4th was "very slow". It is his evidence that instead, he made a special trip to another building at 3:30 to collect the one dollar in the presence of Mr. Hoshi. While Mr. Hoshi and Mr. John corroborate each other's testimony with respect to the actual transfer of the dollar, their evidence is at variance with respect to whether or not a receipt was provided by Mr. John and whether or not Mr. John asked Mr. Fernandes his telephone number and completed the back of his membership card. Mr. John maintains that he did and Mr. Hoshi maintains that he did not. We reiterate that Mr. Fernandes, who gave his evidence in a convincing fashion, was unshaken in his testimony that he did not pay the $1.00.
Having made the necessary assessments with respect to credibility, we are satisfied that Mr. Fernandes did not pay the $1.00 and further, that Mr. John misled Mr. Gentile, the Form 9 signatory, in this regard.
Mr. John acted as the collector on 20 of the 29 membership cards tendered in support of the application. The Form 9 attesting to the fact that each of the employees on whose behalf membership cards were submitted had signed and paid the $1.00 was signed by Mr. Gentile on the basis of the card by card inquiry he made of Mr. John on January 11th. Mr. Gentile did not personally know the bargaining unit employees who had to be approached because of the failure of Mr. John to collect the $1.00 from those who signed prior to December 22nd and accordingly he relied upon Mr. John to identify these employees and to guarantee that the persons who paid the dollar were the same as those whose signatures appear on the membership cards. It must be presumed that this is why he went through a card by card check with Mr. John on January 11, 1982. The evidence establishes that Mr. John misled Mr. Gentile with respect to who signed Mr. Fernandes into membership but more importantly, he misled Mr. Gentile with respect to the failure of Mr. Fernandes to pay the required $1.00. We have also found that he attempted to mislead this Board. In these circumstances, and following the approach taken by the Board in re Webster Air Equipment Co. Ltd. 58 CLLC ¶1 18,110; Inco Limited [1966] OLRB Rep. Jan. 698; Emanuel Forest Products [1977] OLRB Rep. Feb. 37 and Crock & Block Restaurant and Tavern [1980] OLRB Rep. April 424, we are not prepared to put any weight on any of the twenty cards filed by the applicant which show the signature of Mr. John as collector.
The union has applied under section 8 in this matter. The section provides:
Where an employer or employers' organization contravenes this Act so that the true wishes of the employees of the employer or of a member of the employer's organization are not likely to be ascertained, and, in the opinion of the Board, a trade union has membership support adequate for the purposes of collective bargaining in a bargaining unit found by the Board pursuant to section 6 to be appropriate for collective bargaining, the Board may, on the application of the trade union, certify the trade union as the bargaining agent of the employees in the bargaining unit.
If the cards which bear the signature of Mr. John as collector are disregarded, as we have found they must be, the union membership support, depending on the ultimate resolution of the bargaining unit disputes which are before us, rests at between 12.5 and 16.5 percent. While the percentage of membership support enjoyed by the applicant appears to be marginal on its face, we are of the view that it is nevertheless premature to make a finding as to whether or not the applicant enjoys membership support adequate for collective bargaining. The point at which the Board will determine whether there is support adequate in any given case will depend, in part, on both the timing and nature of the unfair labour practice violation. The unfair labour practice allegations are still to be heard in this matter and accordingly, we hereby reserve our decision with respect to whether or not section 8 should be applied until we have heard all of the relevant evidence.
DECISION OF BOARD MEMBER OLIVER HODGES;
I dissent.
The evidence adduced with regard to the allegation of fraud made by the respondent in its letter dated January 27, 1982 to the Board is equivocal. The letter also erred in the plurality of the allegation - only one person was named as a "non-pay", a Mr. N. Fernandes.
Manuel N. Fernandes signed a union card on 31st December, 1981 when it was presented to him by Andy N. Purushuttam ("Andy"). No money was paid at that time. My understanding of the evidence-in-chief given by Andy is that he asked for the dollar payment as he had been instructed. However, in response to further questions by counsel he said "John only told me to get the card signed".
Andy claims that he delivered the signed card to Basil John at John's house that same afternoon. John testified that the card was delivered to him by Andy in the warehouse shipping office at noon on Monday, January 4, 1982. No dollar accompanied the card. Fernandes testified in cross-examination that his first knowledge of a non-pay allegation came on 26th February when interviewed by a Board Officer. At that time he signed a declaration that he had not paid the dollar.
Andy testified that he asked Fernandes more than once whether he had paid his dollar “just to check to see if he had paid in the meantime,” and was told "no". One of these occasions was about the time Andy started to circulate a petition against the union, 2 or 3 days after the green sheet went up.
John testified that the first knowledge he had of the non-pay allegation was a week before the Board hearing, and that it was only on the afternoon of the day preceding the hearing that he was told by counsel for the union that it was the Fernandes card which was in question.
Fernandes, in my opinion, was either mistaken or he deliberately told a lie when he testified in cross-examination that John asked him in the third week in January if he had paid the dollar. Andy testified in chief that he had asked Fernandes in the New Year if he had paid the dollar. John testified he collected the dollar on Monday, 4th January. Asked in chief whether Fernandes would be lying if he denied the circumstances under which he paid the dollar, John's emphatic response was "yes". Obviously, John would have no reason to question Fernandes about the dollar at a later date.
The testimony of John with regard to the collection of the dollar from Fernandes at 3:30 p.m. on Monday, 4th January has the merit of eyewitness "Tad" Hoshi. John holds the responsibility of head shipper and receiver for the company. Hoshi has nine years of service as a fork lift operator in the company warehouse. I find little probative value in the question as to why John did not ask for the dollar at 3:00 p.m. when Fernandes was in his office, as opposed to his getting it at 3:30 p.m. during a work break in the warehouse where there was some flooding because of a clogged drain. This would obviously make things busy for Fernandes, who cleans the warehouse as part of his duty, and probably slower for a fork lift operator. That John testified he was busy writing bills in his office at 3:00 p.m. does not strike me as unusual or contradictory.
Fernandes did not deny that he signed the union card in the two places indicated on the face of the card; one signature to authorize the union to represent him in collective bargaining and the other signature to certify that he paid the dollar initiation fee required. Andy testified that Fernandes "signed twice" and that "I did not get the dollar." Fernandes also dated the card when he signed it. The date written on the back of the card by Basil John is the same as the date written by Fernandes. The contradiction in the evidence on this point is plain and there is no satisfactory explanation for it. However, the testimony concerning the crucial question, was the dollar paid to the person signing as collector, does carry the weight of corroboration by an eyewitness. Furthermore, the testimony of John and Hoshi is given by men who hold responsible jobs. Fernandes, on the other hand, was employed for only eight months before being laid off on 11th February, some two weeks before making a declaration to a Board Officer that he had not paid the dollar in question.
John indicated that he had given blank cards to Andy because "he wanted to help". The evidence of Andy is that John and Gentile came to his house one night between Christmas and New Year's to collect the dollar for his own card, which is dated 22nd December, 1981. That Andy knew the importance of the dollar payment when he signed Fernandes is quite clear. Andy's interest in the organizing campaign is evident from the uncontradicted testimony of John that Andy came to his house between Christmas and New Year's and asked to see the cards of those who had signed. When questioned about this by counsel for the applicant, Andy said he was 'just curious". However, it as not long after he signed Fernandes that he decided to actively oppose the union and told a supervisor, Pat Feeney, that Fernandes had told him that he never paid a dollar.
Given the adversarial interest of the respondent in bringing this very serious charge to the attention of the Board, and considering the equivocal evidence adduced in support of the non-pay allegation, I am persuaded that the union has made a true and convincing explanation of the actual collection of the Fernandes dollar. I cannot accept the majority finding that the dollar was not paid. I would therefore dismiss the allegation brought by the respondent company as not having been proven.
This unfortunate matter could have been avoided by insisting upon a simple rule which every organizer can easily follow: "Accept application cards only when accompanied by the initiation fee". Collective bargaining is a very serious proceeding. The responsibility for organizing one's fellow workers to acquire bargaining rights requires careful and sincere attention to a few quite simple but important rules. Otherwise, as evident here, the benefits of collective bargaining are delayed and employees lose temporarily the advantages so clearly evident in a collective bargaining agreement.