Ontario Labour Relations Board

[1983] OLRB Rep. May 672

0504-82-R United Steelworkers of America, Applicant, v. Lio-Rail of Canada Limited and Modern Plating Company Limited, Respondent, v. Group of Employees, Objectors.

BEFORE: N. B. Satterfield, Vice-Chairman and Board Members W. F. Wightman and B. Armstrong.

APPEARANCES: Brian Shell, Gerry Barr and George Teal for the applicant; R. A. Werry for the respondent; no one appearing for the objectors.

DECISION OF THE BOARD; May 2, 1983

1. The applicant herein was certified by the Board on July 26th, 1982. The Board was advised by letter from the respondent's solicitors that an employee of the respondent, Ian Bradley, had informed the respondent that he had joined the applicant without paying the $1.00 membership fee. The Board made its customary initial inquiry into the allegation and determined that a hearing should be held for the purpose of receiving the evidence and representations of the parties with respect to that allegation.

2. A hearing for that purpose was held on April 11th, 1983, at which the Board inquired into the circumstances surrounding the allegation that Ian Bradley had not made any payment in respect of his application for membership in the applicant. Bradley's application for membership was amongst the membership documents filed by the applicant in support of its application. The name of the collector appearing on the card is D. McMullen. Bradley, Donald McMullen and Gerry Barr, a staff representative for the applicant testified at the hearing. Neither Bradley nor McMullen were employees of the respondent at the time of this hearing.

3. The Board's findings of fact herein reflect its assessment of the demeanor of the witnesses, the consistency of their evidence, their ability to recall the events about which they were testifying, the firmness of their recall and their ability to resist the influence of self-interest to modify their recollections.

4. Bradley recalls the union campaign as having taken place in the second week of June 1982, about one week after his employment began. He told the Board that he was approached at his work bench by McMullen on a Thursday. He did not remember the date, but thought it was June 11th. After talking with McMullen, he agreed to sign a card and was told that he would have to pay $1.00. He signed the card but states that he did not pay the dollar then or later.

5. He gave that testimony without seeing his membership application card. When he was shown the card which purported to bear his signature, he identified it as the one he had signed. The obverse of the card is divided horizontally into three sections: the top section is the application for membership; the middle section is the acknowledgment of the person applying for membership that he has paid '~... $1.00 on account of initiation fees in the United Steel Workers of America."; and the bottom section is for the certification of the collector that he received $1.00 from the person whose signature appears above.". At the bottom of each section there is space to the left for the date and to the right for a signature. Bradley signed and dated the top and middle sections; that is the application for membership and the acknowledgement that he paid $1.00. The date spaces are filled in as “06/11" for the month and day and "82" for the year. Bradley said that meant June 11, 1982. The third date space is completed in the same manner, but Bradley was uncertain if it was his writing. The style of the date, the writing and McMullen's testimony that all three dates were on the card when he first noticed the dates and that the writing was not his own, satisfies the Board that the third date was also written in by Bradley. He later acknowledged that June 11th, 1982 was a Friday but he still recalled that it was a Thursday when he signed the card because at the time he was attending religious classes on Thursday evenings and also meeting with his religious mentor. He testified that he discussed the union with his mentor on the evening of the same day that he signed the card. As a result of that discussion, he claims that he concluded that he had acted contrary to his religion when he signed the card. He testified that he atoned fully for his error by signing a petition in opposition when he was asked to do so.

6. Bradley learned during the latter part of July that his membership card had been used to support the union's application. He testified that he was quite disturbed by that realization because he had not paid the dollar and he had signed a petition against the union as well. He told the Board that he eventually spoke to three management officials of the respondent. He thought that he had spoken to one of them in January 1983, another in February and the third one a few weeks before the Board's hearing of the instant issue. He could not remember what he told them or just when the conversations took place. Nor could he remember when he was served with a summons from the Board to attend at the hearing. The summons to witness was issued by the Board on March 18th.

7. McMullen's recollection of events is similar to Bradley's with respect to the fact that he did approach Bradley at his work bench about signing a union card on a Thursday; he did give Bradley a blank card when he indicated that he was prepared to sign one and McMullen did tell Bradley that it was necessary for him to pay $1.00. The similarity ends there. McMullen claims that, when he informed Bradley of the requirement to pay $1.00, Bradley told him that he had need that evening for the money which he had with him and would give him the dollar the next day. At this point McMullen retrieved the card. By then Bradley had filled in the information on the reverse of the card and had signed the obverse in the two places but had not filled in the dates. McMullen told the Board that he noticed the absence of dates because he had been advised by staff representatives of the applicant that one of the common faults with membership cards is the absence of dates. McMullen went back to his own work place and put the card into his tool box where he kept his supply of cards.

8. The next morning before McMullen had started his first job he encountered Bradley who told him that he had the dollar. McMullen was on his way to look at a job and did not have Bradley's card with him so he told Bradley that he would see him later in the day. After lunch, McMullen went to Bradley's work place, asked Bradley if he was sure he wanted to pay his dollar. When Bradley affirmed that he did, McMullen put the card with receipt attached on Bradley's bench, made out and signed the receipt portion, collected the dollar from Bradley, gave him the receipt and kept the card. He did not see Bradley fill in the dates on the card. McMullen put the dollar with another dollar he had collected earlier from another employee and put the card in his tool box. Later that evening, he turned over to Gerry Barr the cards and money which he had collected that day.

9. Barr asked McMullen two questions with respect to each card. First, did McMullen personally receive $1.00 from the person who had signed the card? Second, was he aware of any irregularity with any of the cards? McMullen answered the first question affirmatively and the second negatively. He did not disclose to Barr the fact that he had collected the dollar from Bradley that day, while Bradley had signed the card the day prior. Bradley's was the only case in which McMullen had not collected a dollar at the same time as the employee signed a card. He canvassed employees on two days only, June 10th and 11th, the only days on which the campaign was carried out. The application was made on June 11th, 1982.

10. The payment of at least $1.00 in respect of initiation fees or monthly dues of the trade union is one of the two criteria established by section l(l)(l) of the Labour Relations Act for defining a member of that trade union. The section provides as follows:

1.-(1) In this Act,

(1) "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.

The payment of at least $1.00, being a statutory requirement, is critical to the authenticity of the membership document. The Board rejects cards which fail to disclose on their face payment of at least $1.00 and will not accept viva voce evidence to correct such deficiencies because of the great reliance which the Board places on the membership cards, which strictly speaking are documentary hearsay, and, therefore, the requirement that such payment be shown on the face of the document is a substantive matter which goes to the very question of membership in the trade union. See the Board's decision in Cooper-Weeks Limited, [1969] OLRB Rep. No. 974. The showing of $1.00 on the face of the card when it has not been paid, on the other hand, is an absolute untruth on its face and a serious fraud on the Board.

11. When the Board enquires into such alleged fraud and, as so often happens, finds itself faced with diametrically opposed evidence on the one hand from the collector and on the other hand from the person who signed the card, so that credibility is the only issue and there is nothing to choose between their evidence, the Board will usually give effect to the signed statement appearing on the membership and receipt card acknowledging payment of the dollar. See The Watson Manufacturing Company of Paris Limited, [1967] OLRB Rep. Dec. 862. McMullen testified in a very candid and forthright manner and there is nothing either in his evidence or demeanor as a witness which would cause the Board to disbelieve his evidence, including his evidence about when and how he collected $1.00 from Bradley. Bradley's evidence that he did not pay the $1.00 at the time he signed the card or at any time thereafter is diametrically opposite to McMullen's. Therefore, were the Board also to find Bradley's evidence credible, the Board would accept the documentary evidence of Bradley's card and find no doubt to be cast on the union's membership evidence.

12. In assessing the demeanor of the witnesses however, the Board prefers McMullen's evidence. While Bradley appeared to recall and recite with clarity the events surrounding his signing of the membership card, he had considerable difficulty recalling more recent events of equal importance to him. He told the Board that he was quite upset when he learned in July 1982 that the applicant had used his card, yet he could not recall the elementary details of what he told his employer's officials or when he spoke to them, the most recent of these events being, by his own account, a few weeks before the hearing. He could not remember when he was served with the summons to witness which was issued March 18th, less than four weeks before the hearing into the allegation raised by his statements to the respondent.

13. Consequently, the Board finds that the evidence does not support the allegation that Bradley did not pay $1.00 on his own behalf in respect of an initiation fee of the United Steel Workers of America. in the result, the Board is satisfied that Bradley paid on his own behalf at least $1.00 in respect of an initiation fee of the applicant trade union within the meaning of section l(l)(l) of the Labour Relations Act and that the union's documentary evidence complies with the Act in all respects.