International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers v. Consolidated Maintenance Services Limited, 1983 CanLII 822

[1983] OLRB Rep. July 1022

2717-82-R International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Applicant, v. Consolidated Maintenance Services Limited, Respondent

BEFORE: N. B. Satterfield. Vice-Chairman and Board Members J. A. Ronson and H. Kobryn.

APPEARANCES: Stan Petronski and Mutt Bukker for the applicant: Richard Nixon. Bill Robertson, Tom Brown, John Grey and Donald F.O. Hersey for the respondent.

DECISION OF THE BOARD; July 4. 1983

1. This is an application for certification made pursuant to the construction industry provisions of the Labour Relations Act. At the hearing into the application on June 20th, 1983, the Board refused the applicant's request for an adjournment and dismissed the application. This decision sets out the Board's reasons for so doing.

2. The application was originally scheduled for hearing on May 20th, 1983 and was adjourned at the request of the parties. Notice of that hearing in the Board's customary form for applications for certification in the construction industry was sent to the applicant and respondent on April 5th, 1983. That notice contained the following statement with respect to the purpose of the hearing.

The purpose of this hearing is to hear the evidence and the representations of the parties with respect to all matters arising out of and incidental to the application, including:

(a) the acceptability of the applicant's membership evidence. The applicant filed "confirmation documents" signed by members of the applicant which state: "I have been and still am paying dues to said organization, but (10 not state the amount of the dues or the most recent time period for which they were paid.

(b) the failure of the applicant to file a completed Form 80, Declaration Concerning Membership Documents, Construction Industry.

(c) the claim by the respondent that it is performing maintenance rather than construction work, and,

(d) the claim by the respondent that it is party to a "General Presidents" agreement.

The notices sent to the parties with respect to the June 20th hearing contained the same statement of purpose as the original notice.

3. The applicant was not represented by counsel at the hearing. At the commence of the hearing, the applicant asked the Board's consent to an adjournment so that it could engage counsel. The applicant told the Board that it had been expecting to engage in discussions with the respondent in order to settle the issues between them and as late as the Friday prior to the hearing had anticipated such a meeting. Consequently it was not prepared for the hearing and had not sought to engage legal counsel on the expectation that the hearing would not be proceeding. Counsel for the respondent was opposed to an adjournment of the hearing. In answer to a query from the Board as to the nature of the evidence which the applicant would be seeking to call with respect to item (a) of paragraph 3 of the Board's notice, the applicant advised the Board that it wished to call oral evidence with respect to the amounts of dues paid and the time period for which they had been paid by those employees whom the applicant was seeking to represent and claiming as its members. With respect to item (b), the applicant advised the Board that it had not filed with the Board a completed Form 80, "Declaration Concerning Membership Documents, Construction Industry" since the adjournment of the hearing which had been scheduled for May 20th. Nor did the applicant seek to file the declaration at the hearing on June 20th. Counsel for the respondent was opposed to the applicant being permitted to call evidence with respect to the amounts of union dues or initiation fees on the grounds that it was specifically prohibited by section 73(2) of the Board's Rules of Procedure and by the Board's jurisprudence with respect to the application of that section.

4. The Board requires membership evidence from an applicant for certification in order to satisfy the Board's mandate under section 7(1) of the Act to determine the number of employees in the bargaining unit who were members of the applicant at the time the application was made. The terms "member" and "membership" with respect to a trade union are defined in section 1(1)(1) of the Act as follows:

1.-U) In this Act

I) "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.

Section 103(2)(j) of the Act empowers the Board exclusively "to determine the form in which ... evidence of membership in a trade 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 ... so determined;".

The Board is further empowered by section 102(13) of the Act to determine its own practices and procedures, to make rules governing its practice and procedure and to prescribe such forms as it considers advisable. In accordance with those powers, the Board has provided in section 73 of its Rules of Procedure certain requirements which must be met before evidence of membership in a trade union will be accepted by the Board. In that respect, section 73(1) of the Rules of Procedure provides as follows:

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

and section 73(2) 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 referred to in subsection (1).".

See the Board's decision in PR.C. Chemical Corporation of Canada Ltd., [1980] OLRB Rep. May 749 for a thorough review of the historical development and the application of the statutory provisions referred to above and of section 73 of the Board's Rules of Procedure.

6. Applicants for certification are advised of the requirements of section 73 of the Rules of Procedures by means of the Board's notice setting the terminal date for the application and advising the parties of the hearing into the application. This notice is sent to an applicant immediately upon receipt of its application. In the instant application, being an application for certification in the construction industry, the relevant form is Form 76, "Notice of Fixing Terminal Date, Construction Industry and Hearing Before the Ontario Labour Relations Board" and that form quotes verbatim subsections 1 and 2 of section 73 of the Rules of Procedure. This notice was sent to the applicant herein on April 5th, 1983.

7. Pursuant to section 73(2) of the Rules of Procedure, the Board has consistently refused to allow an applicant to adduce evidence with respect to the fact of membership in the applicant trade union; in other words, evidence going to whether the employee has applied in writing and whether the employee has paid not less than one dollar with respect to membership dues or initiation fees. The Board has done so for reasons of certainty so that applicant's will know what standards must be met with respect to membership evidence; and to avoid litigation, thus protecting the identity of the trade union supporters pursuant to section 111(1) of the Act and expediting the processing of the application for certification. See PR.C. Chemical Corporation, supra, and the cases referred to therein.

8. The form of membership evidence filed by the applicant herein failed to reveal whether the persons whom it was seeking to represent had paid at least one dollar with respect to union dues or initiation fees. That is a question of material fact as to whether the persons were members of the applicant within the meaning of s.l(1)(l) of the Act. The exception provided by s.73(2) of the Rules of Procedure with respect to oral evidence is that it may be accepted to identify and substantiate the written evidence. The evidence which the applicant is seeking to call is evidence going directly to the fact of membership and is not merely to identify and substantiate the written evidence. For the reasons given in the Board's decision in PR.C. Chemical Corporation, supra, the Board has consistently declined to hear such oral evidence. There is nothing in the representations before the Board herein to cause it to depart from such application of the exception with respect to oral evidence in section 73(2 of the Rules. That being the case, no purpose would be served by consenting to the applicant's request for adjournment. Accordingly the Board withheld its consent to adjournment of the hearing.

9. Having regard for the membership evidence before the Board and the absence therefrom of any evidence that the employees whom the applicant is claiming as members have paid at least one dollar in respect of initiation fees or monthly dues of the applicant, the Board finds that the employees were not members of the applicant within the meaning of the Act on the date of this application. Therefore the Board is not satisfied that any of the employees of the respondent in the bargaining unit sought by the applicant were its members on the date of this application.

10. In the result, the application is dismissed.