Ontario Labour Relations Board

[1984] OLRB Rep. October 1474

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 W. F. Rutherford and W. H. Wightman.

APPEARANCES: Daniel Ublansky for the applicant;' Robert A. Madeley for the respondent; Ken Petryshen and Ray Rock for the intervener.

DECISION OF THE BOARD; October 18, 1984

1. This is an application for certification, in which the applicant requested that a pre-hearing representation vote be taken. In a decision dated July 16, 1984, (reported at [1984] OLRB Rep. July 986) the Board directed that a pre-hearing representation vote be taken. In view of apparent defects in the membership evidence submitted with the application, the Board also directed that the ballot box be sealed pending further Board order.

2. The difficulty with the membership evidence originally submitted with the application is noted in the following extracts from the Board's decision of July 16, 1984:

1... . 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:

3. (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 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 aspects 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.

2. By 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.

The Board then noted that when a pre-hearing representation vote is requested, the relevant time for ascertaining trade union membership is the date of the application, not the later terminal date. The Board also noted that while a pre-hearing representation vote may be directed when the relevant records provide an appearance that not less than thirty-five per cent of the employees in the voting constituency were members of the applicant on the application date, the vote itself will not have any effect, whatever its outcome, unless the Board is "satisfied" that not less than thirty-five per cent of the employees in the appropriate bargaining unit were members of the applicant at the relevant time. The Board acknowledged the possibility that documents sufficient to provide the "appearance" requisite to the directing of a representation vote might not, in the end, be sufficient to "satisfy" the Board that the applicant had the level of membership required in order to give any meaning to that vote. The Board then noted:

5. The 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 ..." where 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.

As noted earlier, the Board then directed that a pre-hearing representation vote be taken and that the ballot box be sealed. A pre-hearing representation vote was so taken; none of the parties objected to the conduct of the vote. This application was listed for hearing however in order to deal with the matters referred to in the Board's earlier decision.

3. Counsel for the applicant called as witnesses the Form 9 Declarant and the two employees who, between them, had been responsible for collecting all of the "cards" submitted with the application. These cards were in the form of an application for membership and attached receipt or acknowledgement of payment. In every case, the application for membership was duly dated and signed by the applicant. The "receipt" portion was in this form:

$5.00 Initiation Fee Received by

I confirm payment of the Initiation Fee

(Applicant Member's Signature)

In each case, this receipt portion bears the applicant member's signature in the space provided for it, but nothing appears in the space provided for the signature of the collector. The cards were numbered for the purpose of receiving the testimony of the collectors; the collectors were directed to and did refer to each card only by number, so as to preserve the confidentiality of membership evidence. Each collector identified the cards which he had collected and, with respect to each card, confirmed that he was the person who had received the $5.00 initiation fee referred to in the card. Each of the collectors testified that the cards and related initiation fees were collected from him by the Form 9 Declarant, David Pretty. Each collector testified that when he handed over the cards and the money to Pretty, Pretty asked him whether he had collected the $5.00 from, and provided a receipt to, each applicant for membership; each collector said that he had responded to that inquiry in the affirmative.

4. David F. Pretty testified that he had been associated with the applicant trade union for over fifteen years. Although his responsibilities included organizing new units when possible, most of his time was spent in servicing existing bargaining units, and he had not had much exposure to organizing. In this case, however, he did take responsibility for an organizing campaign. He gave blank cards to the employee collectors and instructed them both with respect to the completion of the cards and the requirement that the $5.00 initiation fee be paid directly by the applicant. Mr. Pretty also testified about his meetings with the collectors, and confirmed their evidence that he had made the appropriate inquiries and, as a result, knew that the collectors had actually collected the amounts referred to in the cards from the persons whose acknowledgments of payment appear on those cards. After gathering the cards from the collectors, Pretty examined each of them to see if the signature corresponded to the printed name, and determined whether there was on each card a signed acknowledgment of payment of the initiation fee. He failed to check for the collector's signature on the receipt portion of the cards. When preparing to submit this application, Pretty was aware that a Form 9 Declaration was required. He candidly acknowledged that he did not examine it in detail, nor did he consider all of its implications. He says it was his understanding that this form was a declaration as to the number of cards the union believed were legitimate and in respect of which the appropriate fee had been collected. When he prepared the application, Pretty says, he merely took out an Application for Certification form and a Form 9, signed both in blank, and handed them to his secretary along with the cards and instructions about filling out the forms. The secretary completed the forms and put them in the mail later that day. Pretty is not sure whether he saw the completed certification application before it went in the mail; Pretty is sure that he did not see the completed Form 9 before it went in the mail. Subsequent events led the secretary to wonder whether the cards in question had borne collectors' signatures. She examined the photostats she had made of the cards at the time the application was submitted. She saw that the collectors had not signed the cards and drew this to the attention of Mr. Pretty, who then wrote the letter of June 28th referred to in paragraph 2 of this decision.

5. The state of the membership evidence and Form 9 Declaration at the time the application was filed raised two questions. The first was whether membership evidence in the form submitted could be satisfactory when neither the signature nor the name of the collector of the initiation fee was shown on the document. The second question concerned the effect of a trade union official signing a Form 9 Declaration which, in the circumstances, is patently meaningless, if not untrue. After hearing the evidence referred to, there is the further issue whether that evidence changes the result in either of the first two questions.

6. In Leons Furniture Limited, [1977] OLRB Rep. Jan. 25, the membership evidence in question was similar in form to the documentation before us: there was no collector's signature. In that case, however, the name of the collector had been printed in the space where the collector's signature would ordinarily be found. The Board reviewed its earlier jurispru­dence. It was unable to find a case which addressed the absence of a collector's signature on a combination application and receipt or acknowledgment of payment. While it was clear from the jurisprudence that the Board preferred to see a collector's signature on membership evidence in that form, there was no clear policy statement (as there had been with respect to certificates of membership) that a receipt or other acknowledgment of payment must be signed on behalf of the trade union. In its analysis, the Board treated the collector's signature as an evidentiary safeguard rather than as an essential or constituant element of proof of membership. It took the view that a proper response to the absence of such a safeguard did not require that an application be dismissed, although the defect might well "weigh heavily" against the applicant when all the surrounding circumstances were examined. It is important to note, in considering the decision in Leons Furniture Limited, that the Form 9 (then Form 8) Declaration which accompanied the membership evidence under consideration in that case was not made meaning­less by the substitution of a printed name for a signature, because a collector's name did still appear on each card.

7. In Williams Machines Limited, [1972] OLRB Rep. Oct. 879, the applicant had filed certificates of membership by which the signatory certified that he was a member of the applicant and had paid the $1.00 initiation fee. No official of the applicant trade union had countersigned these documents, nor did the signature of the collector of the initiation fee appear on any of them. The Board made reference to the language of what now appears as paragraph 3 in Form 9, and to the statutory definition of trade union membership which now appears in clause l(l)(l) of the Labour Relations Act. The Board noted that the documentation submitted did not fit the statutory definition and that "since the name of the collector does not appear on the face of the documentary evidence filed by the applicant, the statement contained in Item 3 of Form 8 submitted by the applicant, if not meaningless, is patently untrue." The Board went on to find that the membership evidence submitted by the applicant was entirely unsatisfactory and would not be accepted as proof of membership in the applicant. The result and analysis in Williams Machines Limited was distinguished in Leons Furniture Limited on two bases. One was that, on the facts in the Leons case, the Form 9 Declaration was not made meaningless. The other was that Williams dealt with certificates of membership, with respect to which there were clear Board policy statements requiring official counter signatures, while Leons dealt combination membership application and receipt cards, in respect of which there had been no such policy statements. Focusing just on the effect of absence of the collector's signature, and setting aside for the moment the effect this has on the Form 9 Declaration, we are satisfied that the approach adopted by the Board in Leons Furniture Limited is equally applicable here, even though the names of the collectors have not been printed on the cards before us. The absence of the collector's signature is an irregularity which may affect the weight to be given to the documentary evidence, but does not by itself require rejection of the evidence out of hand.

8. Turning to the question of the Form 9 Declaration, we note that the Board has always placed a heavy onus on an applicant trade union to make the inquiries contemplated by the Form 9 Declaration and to fully declare any discrepancies. In Zehr's Markets Limited, [1972] OLRB Rep. June 635, the Board noted:

4. There are a number of cases before this Board dealing with Form 8 [now Form 9]. Those cases indicate that the Board has exacted very stringent standards from applicants who submit membership evidence. These stringent requirements are necessary because the membership evi­dence or records of trade unions relating to membership fall within the secrecy requirements of section 100 [now section 111] of the Labour Rela­tions Act. Other parties to a certification proceeding do not have the opportunity to examine the membership evidence nor in the usual case do the parties have the opportunity to cross-examine witnesses with respect to the membership evidence. It is in those circumstances that the Board approaches its statutory responsibility under section 7 of the Act and accordingly is extremely vigilant in ensuring the propriety of membership evidence. Since the Board in turn must rely on the evidence of membership tendered by the applicant trade union the Board has exacted strict require­ments from applicant trade unions with respect to that membership evidence and particularly with the declaration concerning membership documents (Form 8).

5. The Declaration, Form 8, "goes to the very root of the membership evidence submitted by the applicant". Canadian Union of Operating Engi­neers. v. The Stanley Steel Company Limited v. United Steelworkers of America [1972] OLRB Rep. 181; and the cases before this Board have indicated that there must be compliance with the requirements of Form 8 and complete disclosure must be made. See e.g., Stanley Steel Company Limited, supra,' United Steelworkers of America v. National Steel Car Corporation Limited [1966] OLRB Rep. 738; Valley Transportation Com­pany Limited [1963] OLRB Rep. 448; Retail, Wholesale and Department Store Union, AFL.'CIO:CLC v. Dominion Stores Limited [1964] OLRB Rep. 447; International Association of Machinists v. Essex Wire Corpora­tion Limited v. Teamsters, Chauffeurs, Warehousemen and Helpers, Local Union 141, Affiliated with the I.B. of T.C.W. & HofA. [1965] OLRB Rep. 490; and where compliance with the directions of Form 8 and the standards of accuracy and disclosure contained therein were not met the Board has invariably found that there is not sufficiently reliable evidence concerning membership documents.

As the Board noted in Emanuel Products Limited, [1977] OLRB Rep. Feb. 37:

11. The Form 8 declaration plays a central role in the certification process. It serves a dual purpose, in that it provides the Board with further evidence in support of the cards filed other than viva voce evidence of a union officer that was required prior to the introduction of the form in 1960, and forces a measure of responsible supervision upon the sponsor of the applica­tion. A deficiency in the Form 8 declaration is therefore seen as going to the root of the application and may result in its dismissal. Collingwood Shipyards supra, 67 CLLC ¶ 16,017.

The Board's concern in requiring a Form 9 Declaration is to have confirmation that the membership documents referred to in the Declaration are reliable as evidence of the facts stated in them: namely, that each persons whose signature purports to appear on the document did apply for membership in the trade union and did personally pay the initiation or other fee, receipt of which is ordinarily evidenced by the collector's signature and payment is ordinarily acknowl­edged by the applicant's counter signature. The concern, for the most part, is about the possibility of defects not apparent on the face of the documentation tendered. Where such defects are discovered otherwise than through disclosure in the Form 9 Declaration, the Board's treatment of other membership evidence submitted with the same declaration comes into question, and the thoroughness and propriety of the declarant's investigations will be of critical relevance in answering that question. In this case, however, the defect which concerned the Board is a defect apparent on the face of the documents. Indeed, it is a defect acknowledged and disclosed in Mr. Pretty's letter to the Board of June 28th. The Board does ordinarily permit the amendment of From 9 Declarations before the hearing (see, for example, Continental Can Company of Canada Limited, [1971] OLRB Rep. Apr. 216 at paragraph 5), and it might fairly be said that Mr. Pretty's letter of June 28th made the disclosure which ought to have been noted originally in his Form 9 Declaration, and did so at a time at which, and in circumstances in which, the Board would ordinarily have permitted amendment of the Form 9 Declaration. While the Board is concerned about the cavalier approach Mr. Pretty took to signing the Form 9 Declaration, the greater concern in any particular case is whether there has been a cavalier attitude to conducting the inquiries contemplated by that form. This takes us back to the evidence of the collectors and Mr. Pretty and to the final question of the extent to which such evidence should be entertained.

9. Section 73 of the Board's Rules of Procedure addresses the subject of evidence of membership in the trade union. Subsection 1 of that section requires, inter alia, such evidence be in writing and signed by the employee. Subsection 2 provides:

(2) 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).

The extent to which oral evidence can be introduced to "identify and substantiate" written evidence of membership has been the subject of a number of Board decisions, many of which are reviewed in PRC Chemical Corporation of Canada Ltd., [1980] OLRB Rep. May. 749. In that case the Board observed that a distinction had been drawn between defects in documen­tary membership evidence which are "substantive" and those which are "merely formal or technical". In the case of proof of membership within the statutory definition, the fact of application for membership and payment of at least $1.00 are each substantive matters, and the failure of documentary evidence to address either element would be a substantive defect. The absence of other information, such as the date of the application for membership, is said to be a "formal or technical defect" because it does not go to the substantive elements of proof of membership. The Board's decision in PRC Chemical Corporation of Canada Ltd., (at paragraphs 23 and 26) puts the absence of a collector's signature in the latter category. Although those statements were obiter dicta, we accept them as correct. It follows that although the Board cannot entertain viva voce evidence that the payment was made in order to establish that it was, it can entertain that evidence in order to identify the person to whom the payment was made, just as it can entertain such evidence in order to establish the date on which the payment was made.

10. The cards filed with this application are, with respect to each employee signatory, written evidence that he or she meets the statutory definition of "member" set out in section 1(1 )(l) of the Labour Relations Act. The oral evidence tendered by the applicant satisfies us that the procedures and inquiries required by Form 9 were carried out. There is no suggestion of any impropriety in the solicitation of membership in the applicant, not the slightest hint of any defect in any of the applicant's membership evidence other than the one with which we have been concerned to this point.

11. Counsel for the applicant acknowledged that Mr. Pretty had not treated the From 9 Declaration with proper respect, and that no excuse could be made for him in that regard. Having heard Mr. Pretty's evidence, we would add to his counsel's acknowledgment the observation that Mr. Pretty adopted a cavalier attitude to documentation generally. We find it completely unacceptable that a trade union official would sign documents in blank, and leave it to someone else to complete them. The issue with which we have been faced, however, was not whether Mr. Pretty's behaviour or approach was acceptable, but whether the applicant's membership evidence was satisfactory. After hearing the evidence and the submissions of counsel, we determined that the evidence was satisfactory. Having found that the applicant was a trade union within the meaning of section 1(1 )(p) of the Labour Relations Act, we ruled orally at the hearing, and endorsed the record, as follows:

For reasons to be delivered at a later date, we are satisfied that not less than thirty-five per cent of the employees in the bargaining unit referred to in paragraph 3 of the Board's decision herein dated July 16, 1984, which the Board determines is the unit of employees of the respondent appropriate for collective bargaining, were members of the applicant on the date this application was made. We therefore direct that the ballot box herein be unsealed and that the ballots therein be counted.

12. The ballots were then counted, and notice of the result was given in accordance with the Board's Rules of Procedure. No statement desire to make representations with respect thereto has been filed with the Board within the time fixed under subsection 2 of section 70 of the Board's Rules of Procedure following the taking of the pre-hearing representation vote pursuant to the Board's direction of July 16, 1984, in this matter.

13. On the taking of the pre-hearing representation vote directed by the Board more than fifty per cent of the ballots cast were cast in favour of the applicant.

14. A certificate will issue to the applicant.

15. The Registrar will destroy the ballots cast in the pre-hearing representation vote taken in this matter following the expiration of thirty days from the date of this decision unless a statement requesting that the ballots should not be destroyed is received by the Board from one of the parties before the expiration of such thirty day period.