Energy and Chemical Workers Union v. Maple Leaf Mills Limited, Master Feeds Division
[1984] OLRB Rep. July 986
0836-84-R Energy and Chemical Workers Union, Applicant, v. Maple Leaf Mills Limited, Master Feeds Division, Respondent, v. Teamsters, Local Union 879, Intervener
BEFORE: Owen V. Gray, Vice-Chairman, and Board Members I. M. Stamp and C. A. Ballentine.
DECISION OF THE BOARD; July 16, 1984
1This is an application for certification, in which the applicant has requested that a pre-hearing representation vote be taken. The application was filed by registered mail on June 22, 1984. It was accompanied by what purported to be documentary evidence of membership of 28 persons claimed to be employees of the respondent. The membership evidence was accompanied by a Form 9 Declaration of David F. Pretty, a National Representative of the applicant. Paragraph three of that document reads as follows:
- (Where the documentary evidence consists in part of receipts or other acknowledgments of the payment on account of dues or initiation fees.) On the basis of my personal knowledge and inquiries that I have made, I state that the persons whose names appear on the receipts or other acknowledgments of the payment on account of dues or initiation fees are the persons who actually collected the moneys paid on account of dues or initiation fees and that each member, on whose behalf a receipt or an acknowledgment of payment is submitted has personally paid in money the amount shown thereon on his own behalf to the person whose name appears on his receipt or acknowledgment of payment as collector, EXCEPT IN THE FOLLOWING INSTANCES:
(emphasis added)
No exceptions are noted on the form. The membership evidence consisted of combination applications for membership and receipts which were, on their face, regular in all respects but one: none of the receipts have been countersigned by the collector of the card, and the name of the collector of the $5.00 payment referred to therein is nowhere shown on any of the cards.
2By letter dated June 29, 1984, Mr. Pretty wrote to the Registrar of this Board, saying:
Inadvertently, 28 of the previously filed membership cards, had not been countersigned by the witness as having received the initiation fee payment. Proper receipts were however provided to the applicants and the monies were paid and are being held by myself.
Resultantly we have repeated the process and enclose herewith 22 properly countersigned applications for membership to supplement or substitute for the earlier filing.
In addition to the 22 combination application-receipts referred to in that letter, eight additional combination application-receipts were later obtained and forwarded to the Board. Obviously, all of these membership applications were signed after the application date.
3The parties met with a Labour Relations Officer on July 6, 1984, and agreed that the unit of employees appropriate for collective bargaining in this case should be described as follows:
All employees of the company working in the Feed and Pet Food Plant at Guelph, Ontario, save and except foremen, those above the rank of foreman, office and sales staff.
The Board determines that that unit shall constitute the voting constituency for the purpose of any vote in this application.
4The threshold issue, however, is the adequacy of the membership evidence filed in connection with this application. Section 9(2) of the Act requires us to determine whether:
.it appears. . .on an examination of the records of the trade union and the records of the employer that not less than 35 per cent of the employees in the voting constituency were members of the trade union at the time the application was made...
[emphasis added]
The only evidence of membership in the applicant "at the time the application was made" is the membership evidence submitted with the application. Applications for membership signed after the application date can be of no assistance to the applicant in meeting the test set out in section 9(2). The question we must consider is whether the "records" submitted with the application are sufficient to meet that test. We must also consider the provisions of section 9(4) of the Act, which provides that the Board must be satisfied, after a pre-hearing representation vote has been taken, that not less than 35 per cent of the employees in the appropriate bargaining unit were members of the trade union at the time the application was made. If the Board is so satisfied, the pre-hearing representation vote may then have the same effect as a representation vote taken under section 7(2) of the Act. By necessary implication, if the membership evidence submitted with the application, together with any evidence which might be admitted at the post-vote hearing, is not sufficient to satisfy the Board that the applicant had the requisite level of support among employees in the bargaining unit as of the date of application, then the pre-hearing vote can have no effect, no matter how many votes are cast in the applicant's favour. Even if the applicant's membership evidence is sufficient to create an "appearance" of support which satisfies the test under section 9(2), there would be no point in exercising our discretion to direct a representation vote if the absence of countersignatures on the receipt portions of the membership evidence is a defect which could not be cured.
5The Board has considered a number of previous Board decisions, including: Williams Machines Limited, [1972] OLRB Rep. Oct. 879, Leon's Furniture Limited, [1977] OLRB Rep. Jan. 25, Emanuel Products Limited, [1977] OLRB Rep. Feb. 37, Diplock Durable Floor Co. Ltd., [1978] OLRB Rep. July 613. It appears from these authorities that while there is grave doubt that the Board could be "satisfied" under section 9(4) on the basis alone of the material filed with the application, it is at least open to argument that the defects in the evidence can be cured by appropriate viva voce evidence. This would necessarily include evidence of the Form 9 Declarant, who would be obliged to explain how he could sign a declaration that "the persons whose names appear on the receipts... are the persons who actually collected the moneys paid.. ." when there are no names of collectors on the documentary evidence filed. We conclude that the evidence submitted with the application is qualitatively sufficient to support the appearance required by section 9(2), and that it is a matter for further argument whether the evidence is qualitatively sufficient to satisfy the Board under section 9(4) of the Act.
6Accordingly, and having examined the records of the applicant and the respondent, it appears to the Board that not less than 35 per cent of the employees of the respondent in the voting constituency hereinbefore described were members of the applicant at the time the application was made.
7The Board therefore directs that a pre-hearing representation vote be taken of the employees of the respondent in the aforesaid voting constituency. All employees of the respondent in the voting constituency on July 4, 1984, who have not voluntarily terminated their employment or who have not been discharged for cause between July 4, 1984, and the date of the vote will be eligible to cast ballots.
8Voters will be asked to indicate whether they wish to be represented by the applicant or the intervener in their employment relations with the respondent.
9Having regard to the matters referred to earlier in this decision, and to ensure that none of the parties is prejudiced in this matter, the Board directs that the ballot box be sealed and the ballots not counted until further order of the Board.
10The matter is referred to the Registrar.