[1984] OLRB Rep. January 28
1238-83-R International Association of Bridge, Structural and Ornamental Ironworkers, Local Union No. 834, Applicant, v. Frankel Steel Limited, Respondent, v. United Steelworkers of America, Intervener
BEFORE: Richard M. Brown, Vice-Chairman, and Board Members J. A. Ronson and W. F. Rutherford.
APPEARANCES: A. M. Minsky and M. Zigler for the applicant; no one appearing for the respondent; Brian Shell and Doug Hart for the intervener.
DECISION OF THE BOARD; January 11, 1984
[1]. By decision dated September 19, 1983, the Board directed that a pre-hearing representation vote be taken. The election was conducted on September 22nd, but the ballot box was sealed, because the intervener contended that the membership evidence, upon which the applicant relied in obtaining the vote, was flawed. In particular, the intervener alleged that not all of the employees who the applicant claimed as its members had paid one dollar.
[2]. To qualify for a pre-hearing vote, under section 9 of the Labour Relations Act, an applicant must demonstrate that not less than thirty-five per cent of the employees in the voting constituency were members at the time the application was made. The only issue is whether or not the applicant has met the threshold of thirty-five per cent membership. According to section l(l)(l) of the Act, a person who applies for membership in a union and pays one dollar thereby becomes a member.
To ensure that the necessary payment has been made, section 6 of the Rules of Procedure requires an applicant to file a declaration concerning membership documents in Form 9. A Form 9 declarant must attest that:
(Where the documentary evidence consists in part of receipts or other acknowledgements 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 money's 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:
The intervener contends that two employees, claimed by the applicant as members — Steven Hall and Max Colbourne - did not pay one dollar and that the Form 9 declarant failed to make the requisite inquiries.
[3]. According to Max Colbourne, he was given a union card by an employee collector, Gardener Beckles, on August 2, 1983. Colbourne signed the card at his locker and returned it to Beckles on the same day. Beckles asked for a dollar when he handed out the card and Colbourne replied that he did not have one. Beckles did not ask again when the card was handed back, saying that he would "catch" Colbourne later. At the hearing, Colbourne produced a blank receipt which he said he detached from the card before returning it to Beckles. The card is made up of three parts — an application for membership, a declaration by the employee attesting to the amount paid, and an acknowledgment by the collector of receipt of the money paid. Max Colbourne signed the first two parts of this card, and Beckles the third. Colbourne initially identified the first two signatures as his own. After his attention was drawn to a "swirl" that appears in one signature and not the other, he disclaimed the one containing the "swirl". He changed his mind again when a signature written by him shortly before the hearing, bearing the "swirl", was produced. All three portions of the card are dated June 2nd. During examination-in-chief, Colbourne said he thought the card was not dated when he saw it, but in cross-examination he said that he filled in the top date, which does appear to be in his handwriting. He said that the spaces on the card for indicating the amount of money paid and received were blank when he signed the card. Colbourne testified that he did not pay a dollar and that no one paid on his behalf. However, he conceded that, shortly before the hearing, he told a representative of the applicant that he did not know whether or not a friend paid a dollar for him. Colbourne also testified that, a few days after he returned his card to Beckles, he was given three or four additional cards by Beckies. Colbourne collected a dollar from another employee, who signed a card dated August 9th; Colbourne then gave the card and the dollar to Beckles. This card was not submitted with the application for certification, because the employee's signature was illegible and Colbourne was not able to identify the person who signed it.
[4]. According to Beckles, he gave Colbourne five cards several days before August 2nd. On that date, Colbourne handed back two dollars and two cards — one signed by Colbourne and the other bearing the illegible signature — accompanied by two dollars. Beckles saw Colbourne sign his card at this time, and later filled in the amount of one dollar on the card. Beckles also testified that he signed the receipt retained by Colbourne.
[5]. How are we to choose between the two conflicting stories put before us? The reliability of Colbourne's testimony is weakened to some extent by the internal inconsistencies in his evidence concerning who signed and dated his card, and by his inability to identify the person from whom he obtained a card. On the other hand, two pieces of documentary evidence support the account offered by Colbourne and contradict Beckles' testimony. The card signed by the unknown employee is dated August 9th. This date is consistent with Colbourne's evidence that Beckles gave him the card in question after he returned his own card, dated August 2nd, to Beckles. The August 9th date appearing on the unknown employee's card directly contradicts Beckles' evidence that both cards were returned to him, together with two dollars, on August 2nd, immediately after Colbourne signed his card. In addition, the blank receipt produced by Colbourne supports his evidence that he detached the blank receipt from his card and contradicts Beckles' contention that he signed the receipt. Considering all of these factors, we prefer Colbourne's evidence to that given by Beckles, and we find, on the balance of probabilities, that Max Colbourne did not pay one dollar.
[6]. Steven Hall testified that he was first approached by Claude Morris, another employee collector, on August 11th. Morris asked Hall to sign a card and pay a dollar, but Hall did not comply, as he did not have a dollar. On Friday August 12th, at approximately 2:00 a.m., Morris met Hall in the front shop washroom. Hall signed a card in two places, applying for membership and acknowledging payment of one dollar, and Morris affixed his signature to acknowledge receipt of one dollar. According to Hall, he paid no money, because he still did not have a dollar, but he undertook to pay later. He knew that he was applying to join Local 834. Hall testified that Morris asked for payment on three or four occasions during the following week. The last time, near the stock room in the south shop, Hall paid seventy-five cents which was all the money he had. He had been carrying seventy-five cents in the pocket of his work clothes ever since he was called back from a eleven month layoff on August 2nd. He received his first pay cheque on August 10th, but did not put any more cash in his pocket; his practice is not to carry paper money at work.
[7]. According to Morris, he received one dollar from Hall in two installments — seventy-five cents on August 12th and the balance on August 15th. Morris testified that Hall paid seventy-five cents on Friday, August 12th, when the card was signed in the washroom at 2:00 a.m. According to Morris, the card was filled out before Hall announced that he did not have a dollar. Morris said the card could not be submitted until the dollar was paid. Morris testified that Hall was the only person who signed a card and did not pay a dollar at the same time. At some point after Hall signed the card, he said he had thought that he was joining Local 721 rather than the applicant, Local 834. On Monday, August 15th, Morris approached Hall who said he had no change; Morris replied he would return after their coffee break. When they met later that day, Hall paid twenty-five cents — in the form of two dimes and a nickel.
[8]. According to Morris, sometime on or before August 11th, Roy Sim, a district representative with the applicant's parent union, told him he would be at the Herigate Inn on August 12th and August 15th. Morris did not go to the Herigate on August 12th, because Hall had not yet paid in full. Morris testified that he met Sim after work on August 15th and gave him Hall's card, accompanied by a one dollar bill, along with three other cards and three dollars. Our review of the membership evidence disclosed that Claude Morris first solicited membership on August 11th, when six employees were enlisted. Morris recruited six more employees on August 12th, not counting Hall, and no others until August 23rd. This information lends some support to Morris' claim that he met Sim not long after Hall signed a card. On the other hand, this data suggests that if Morris did meet Sim on August 15th, but not August 12th, twelve cards would have been submitted. In addition to the July 15th meeting at the Herigate Inn, Morris met Sim there on other occasions, but Morris could not recall the dates. He could remember neither the deadline for handing in membership evidence, nor the first and last day upon which he solicited membership. However, he did recall when he had volunteered to be a collector, to whom this offer was made and when and where he first had met with a representative of the applicant. According to Morris, a week before the hearing, Hall said that he was "pretty sure" he didn't pay the other twenty-five cents, and that Morris almost had him convinced he paid this amount. These two statements were made on two successive days.
[9]. The documentary evidence is of no assistance in determining whether or not Steven Hall paid a dollar. Although both he and Morris signed Hall's card to indicate a dollar was paid on August 12th, they are agreed that a dollar was not paid at this time. Counsel for the intervener urged us to reject Morris' evidence on the theory that his recall of receiving two dimes and a nickel, rather than a quarter, was so specific as not to be credible, given the two months that elapsed between this event and when he testified. But Hall's recollection of carrying precisely seventy-five cents in his pocket for a period of two weeks was no less detailed. In these circumstances, we are not prepared to reject one witnesses’ testimony because it was excessively specific. But we are concerned by the contrast between Morris' sharp recall of the events surrounding the dollar in question and his less vivid recollection of other contemporaneous occurrences. However, in our view, Hall's recent statements, expressing doubt as to whether or not he eventually paid an additional twenty-five cents, tip the scales in favour of Morris, who was certain that he did not give Halls's card to Sim until a full dollar had been collected.
[10]. Roy Sim is the Form 9 declarant in this proceeding. Sim and Sam Perry, a representative of the applicant, are named as collectors on several cards, but the vast majority of employees who signed cards were enlisted by five employee collectors, including Beckles and Morris. Sim testified that all collectors were instructed that they must obtain a dollar from each employee who signed a card. Beckles confirmed that he received this instruction from Sim; Morris testified that he was told by Perry. According to Sim, each time he was given cards by a collector, he inquired if the collector had obtained a dollar from every applicant for membership. When a card was passed to Sim by a person other than the collector, Sim inquired whether or not that person had asked the collector if the employee in question had paid a dollar. These inquiries disclosed no irregularities. Sim received cards from Morris three or four times and from another collector on possibly as many as twelve to fifteen occasions. At the hearing, held some months later, Sim could not recall any particular conversation with a collector, but he was sure that he had followed his normal practice, as described above. Once again, Beckles and Morris confirmed Sim's testimony. Beckles testified that Sim always asked if a dollar had been collected from each person and that, when Beckles submitted the unknown employer's card, which showed Colbourne as collector, Sim inquired if Colbourne got a dollar from the individual in question. According to Morris, every time he passed in cards, Sim asked if he had obtained a dollar from each person who signed a card. On the night that Morris turned in Hall's card among others, he told Sim that all of the employees who signed these cards had paid a dollar. Morris did not say that Hall paid in two installments, or that any payment was made on a date other than that shown on the card.
[11]. Counsel for the intervener urged us to discount all of the applicant's membership evidence, because those in charge of the organizing drive did not properly discharge their responsibilities. In this regard, we were referred to RCA Victor Company, 53 CLLC ¶17,067:
In dealing with the quality of the evidence submitted by a trade union in support of its claim to be certified, a number of situations may be distinguished and we propose to examine some of them without in any way suggesting that the examination is comprehensive and exhaustive. Some of the evidence submitted may be patently forged or fraudulent, i.e., cards or receipt may be submitted bearing signatures which are not those of persons who purport to sign them or receipts may be submitted in respect of persons who have paid no money. Where it is established that even a single card or receipt submitted by an applicant union is affected by such vice, and the card or receipt is submitted with the knowledge of a responsible officer or official of the union, the Board may come to the conclusion that it cannot place reliance on any of the evidence of membership submitted by the union. An example of such a situation is to be found in the Upper Canada Mines Case, (1953) C.L.S. 76,385, CCH Canadian Labour Law Reports 13,095, where the Board made the following findings:
(a) One membership card filed with the Board by the applicant has been forged.
(b) Eight of the employees examined by the Board did not pay the union fee set out in the receipts filed.
(c) The dates on several receipts are not correct.
(d) None of the employees examined by the Board ever did receive from the applicant a receipt for money payments.
(e) The receipts filed by the applicant were not, in most cases, signed by the individual who actually received money from the employees.
The Board in that case dismissed the application on the ground that there had been "a flagrant and deliberate attempt by the applicant to evoke an effective scheme of conspiracy to defraud the Board". A similar result may follow even in a case where it is impossible to establish that an officer or official of the union had knowledge of the impropriety, but where it is evident that he was so lax in regard to the way in which documentary evidence of payment was obtained that he may reasonably be taken to have shut his eyes to the facts.
In Webster Air Equipment Company, 58 CLLC ¶18,110, the Board said:
In dealing with this situation, the Board has made a distinction between two types of cases: (1) where the action impugned is that of a responsible officer or official of a union, and (ii) where the action is that of a supporter or canvasser on behalf of an applicant who occupies an inferior office or no office in the union. In so far as the first of these is concerned, the Board said in the RCA Victor Company Case, (1953) CCH Canadian Labour Law Reporter, Transfer Binder, ¶17,067, C.L.S. 76-412, that, even where only a single card is defective and it is submitted with the knowledge of such responsible officer or official, "the Board may come to the conclusion that it cannot place reliance on any of the evidence of membership submitted, by the union". Where the irregularity relates to evidence of membership procured by a person of lesser rank in the union organization, the Board has taken the position that the card in respect of which the irregularity is established is disallowed and the weight to be given to the remaining evidence of membership will depend
on the nature of the irregularity and the extent to which the objectionable
practice was resorted to in the signing up of members.
The distinction drawn in these cases between responsible union officials and other individuals was later modified. In Olympia & York Developments Limited, [1977] OLRB Rep. Dec. 852, the Board distinguished between those who have charge of an organizing campaign and those who play a lesser role:
- The Board has observed a distinction between the actions of union officials and those of rank and file employees in dealing with questions of conduct related to membership evidence. In the former situation, the Board has discounted all of the membership evidence where its requirements are not met, while in the latter, the Board has discounted, except in the circumstances set out below, only that portion of the membership evidence dealt with by the rank and file employee. Where, however, the fact is that even though the organizer is not a union official he is responsible for the entire organizational campaign, the Board has applied the same standards and made the same disposition as it would in the case of a union officer. (See Byers Oil Burner Service, [1969] OLRB Rep.Aug. 595; Slough Estates Ltd., [1965] OLRB Rep. June 173; Walter E.Selck of Canada Ltd., [1964] OLRB Rep. June 138.)
[12]. We conclude that Roy Sim made the requisite inquiries. The testimony of Sim, Morris and Beckles points to this conclusion, and there is no evidence to the contrary. We digress to note that the practice followed by Sim, of not recording the inquiries made, might in another case, where the evidence was less clear cut, lead the Board to doubt a bold assertion, made months after a lengthy organizing campaign, that the appropriate questions were asked on each of the numerous occasions that membership evidence was submitted to a Form 9 declarant. Considering the full inquiries made by Sim, his ignorance of Colbourne's failure to pay a dollar, and the instructions given by Sim and Perry to all employee collectors, we see no ground to impugne the conduct of Sim and Perry, the two people responsible for the conduct of the applicant's campaign. Moreover, no deficiencies in the cards collected by anyone other than Beckles has been established. Consequently, we find all the membership evidence, except that submitted by Beckles, to be reliable. This case is clearly distinguishable from others in which those in charge of an organizing campaign either have been so lax that numerous irregularities have gone undetected or have failed to disclose known irregularities. In these circumstances, the Board has rejected all of the membership evidence put before it. See The Watson Manufacturing Company of Paris Limited, [1967] OLRB Rep. Dec. 862; Consumers Distributing Company, [1974] OLRB Rep. June 350; Olympia & York Developments Limited, supra; and Diplock Durable Floor Co., [1978] OLRB Rep. July 613.
[13]. Colbourne's card must be disregarded, because we have found that Beckles did not collect a dollar from Colbourne. If we were to reject twenty or more of the thirty cards on which Beckles appears as the collector, the applicant would fall below the thirty-five per cent threshold.
[14]. When a collector, who is not in charge of a campaign, is shown to have accepted one card without proper payment, how has the Board treated the remaining membership evidence solicited by that person? In Webster Air Equipment Company, supra, the proper response was said to "depend upon the nature of the irregular conduct and the extent to which the objectionable practice was resorted to in the signing up of members". The Board disregarded all of the cards solicited by a collector who told one applicant for membership not to worry about paying a dollar, in Crock & Block Restaurant and Tavern, [1980] OLRB Rep. Apr. 424. Deliberate flaunting of the legal criteria for union membership cannot be tolerated. But innocent errors have been treated differently. Where a collector was aware that the dollar submitted with a card had been loaned to the applicant for membership, but not that he did not intend to repay the loan, the Board has rejected only that one card: N A Constructions 11982] OLRB Rep. Jan. 77. See also Federal Bolt & Nut Corporation, [1966] OLRB Rep. May 108.
[15]. The distinction between innocent errors and deliberate misconduct is not always easily drawn. In Trent Metals Limited, [1976] OLRB Rep. Dec. 840, an employee who did not make any payment undertook, when signing a card, to pay a dollar the following day. The money was never paid and the collector either forgot or consciously overlooked this irregularity. As there was a possibility that other cards were similarly tainted, they too were rejected. But the only result of this ruling was to prevent the applicant from being certified on the basis of membership evidence. The resulting election resolved any uncertainty, arising out of the cards, as to the wishes of employees. In Sterling Packers Ltd., [1972] OLRB Rep. June 705, a collector's evidence that he had received a dollar was found to be as credible as the claim of an employee that he undertook to pay but never did, and the Board resolved the issue by holding that the applicant union had not discharged the burden of demonstrating the validity of its membership evidence. No finding was made as to whether the collector initially made an innocent error or consciously failed to follow proper procedures, nor as to whether the collector's testimony was the product of honest confusion or deliberate subeteruge. If all of the cards submitted by this collector had been rejected, the application would have been dismissed. Instead of following this course, the Board disregarded only one card and ordered a vote. Here too an election would remove any doubts about the membership evidence.
[16]. Viewed together, these two cases pose a sharp contrast between two contexts in which a single card collected by an employee is proven to be tainted by an innocent mistake. In one setting, how the other cards collected by this person are treated determines whether a certificate will be issued without a vote or an election held. Faced with this issue, we would be inclined to order a vote, unless the nature of the irregularity was such that one could say with confidence that it was an isolated occurrence. The existence of one flawed card will often give rise to the possibility of other irregularities, and an election is the best way to resolve this doubt. Section 7(2) gives the Board ample authority to direct that a representation vote be taken — even when the applicant proves, on a balance of probabilities, that it has crossed the fifty-five per cent threshold. In the other context, the way the Board treats the remaining cards determines whether an election is held or the application dismissed. Even when the exact level of union membership is not absolutely certain, because one card is proven to be tainted, the Board may conclude, on the balance of probabilities — depending on the likelihood that the innocent error was repeated — the applicant has a sufficient number of members to be entitled to a vote, under either section 7(2) or 9(2). The resulting election will resolve any remaining uncertainty.
[17]. Turning to the facts of this case, we are not convinced that Beckles either deliberately disregarded the need to collect a dollar from Colbourne, or lied to the Board about this matter. In this regard, we rely upon Colbourne's testimony that, when the card was signed, he was asked for a dollar and, as he did not then have one, was told he would have to pay later. In the midst of collecting thirty cards, Beckles probably became confused as to whether or not Colbourne had paid. Beckles is not likely to have repeated this mistake twenty times. Given the setting, we find, on the balance of probabilities, that a sufficient number of the employees whose cards were submitted by Beckles were members of the applicant to entitle it to a pre-hearing vote.
[18]. We are satisfied that not less than thirty-five per cent of the employees of the respondent in the voting constituency were members of the applicant at the time the application was made. We direct that the ballots be counted. The matter is referred to the Registrar.