[1985] OLRB Rep. July 1187
0451-85-R International Union, United Automobile, Aerospace & Agricultural Implement Workers, of America, (U.A.W.), Applicant, v. D.G.M. - Dominion General Manufacturing Limited, Respondent
BEFORE: S. A. Ta con, Vice-Chairman, and Board Members I. M. Stamp and S. O 'Flynn.
APPEARANCES: Louis Gottheil, Clare Meneghini, Ken Hunter and Mohinder Singh for the applicant; Scott Thompson, Devin Sidhu and Gail Langley for the respondent.
DECISION OF THE BOARD: August 12, 1985
By decision of the Board (differently constituted) dated July 12, 1985, the Board determined that there should be a further hearing, as a result of the initial investigation by a Board Officer, with respect to a non-pay allegation pertaining to John Helm.
Accordingly, the Board heard evidence from the three persons noted in the July 12 decision, namely, John Helm, Ken Hunter and Clare Meneghini. At the conclusion of the testimony and the representations of the parties, the Board ruled orally that, inter alia, the Board was prepared to at least count the membership cards collected by Hunter other than Helm's card. That ruling is set out in full infra. The Board intends to first set out the findings of fact and submissions of the parties in somewhat more detail.
Having weighed and assessed the testimony of the witnesses, including their relative credibility, the Board makes the following findings of fact. Meneghini, an experienced full-time union organizer, followed his usual procedure with respect to the organizing drive at the respondent company. On Wednesday, May 22, 1985, Meneghini met with the two in-plant organizers (Hunter and one other), explained the procedures involved in certification, including specific details as to the proper method of collecting membership cards. The necessity of collecting one dollar payment from each employee wishing to join the union was stressed. A target number of cards was set. In fact, that target was reached the next day. A second meeting was held between Meneghini and the organizers that Thursday. Meneghini checked that the money corresponded with the number of cards and that the cards themselves were properly completed. Meneghini closely questioned the organizers as to where and how the cards were collected. Both organizers replied to the questions and assured Meneghini that the one dollar payment had been collected from each member. Meneghini also conducted a spot check of cards, i.e., specifically querying the in-plant organizers about the exact details respecting randomly selected cards. Meneghini delivered the certification application to the Board by hand on May 24; the Form 9 was filed on the terminal date.
When the no-pay allegations were raised in the respondent's reply, Meneghini immediately insisted on another meeting of the organizers. This time, Meneghini went through each name on the membership list seeking a precise account of where and when the card was signed and whether the one dollar was collected. Meneghini continued to receive positive assurances. Meneghini repeatedly stressed the seriousness of the non-pay allegations. He then asked if the one dollar payment had been borrowed in any case. Finally, Hunter, one of the two in-plant organizers, although not the chief organizer, acknowledged that in one instance, namely Helm's card, he had loaned the one dollar to Helm. Hunter recounted the details of that transaction. Meneghini instructed Hunter to get the one dollar immediately and promptly inform Meneghini that the one dollar had been collected. On June 13, Thursday, Hunter telephoned Meneghini confirming that the one dollar had been repaid. Meneghini then filed the amended Form 9 setting out the details of the one dollar loan and repayment.
The details of the Helm's card were as follows. Hunter approached Helm in the company cafeteria on Thursday, May 23, shortly before the 8:00 shift start. Hunter asked if Helm was interested in joining the union. Helm agreed but stated that he didn't have the one dollar. Hunter replied that, if Helm didn't tell anyone, Hunter would lend him the one dollar. Hunter then handed over one dollar and Helm returned the one dollar and signed the membership card. In fact, two one dollar bills crumpled together were handed over and returned although both Helm and Hunter intended the loan to be one dollar. Helm testified that he felt obligated to repay the one dollar as he regarded the money as a loan. Hunter, too, regarded the one dollar as a loan to be paid back. The loan was actually repaid, as noted, on June 13 when Hunter stated that he needed the money and Helm handed over the one dollar. Hunter acknowledged that he had been told not to lend the one dollar but considered the loan to be a private matter between himself and Helm. Hunter said he did not regard what happened as illegal or underhanded although he now realized that his action was a serious impropriety. Finally, Hunter stated the Helm transaction was the only occasion on which he lent the one dollar payment and that this was his first organizing campaign.
Counsel for the applicant conceded that the one dollar payment had not actually been collected on the date the membership card was signed. However, counsel submitted the one dollar loan was bona fide, was repaid and constituted an isolated instance. Further, counsel argued Hunter was not a paid union official but an inexperienced in-plant organizer. Meneghini, it was submitted, had conducted proper enquiries prior to filing the first Form 9 and, when the non-pay allegations were raised, investigated further, disclosing his findings on the amended Form 9. Counsel submitted that, according to the Board's jurisprudence, even Helm's card could be counted in the circumstances but, at least, the remaining membership cards collected by Hunter need not be disregarded. Finally, counsel argued that if all Hunter's cards were not counted and a representation vote ordered, the ballot box should be sealed pending resolution of the section 8 application. A number of cases were referred to in support: Frankel Steel Limited, [1984] OLRB Rep. Jan. 28; Tillsonburg Shoe Co., [1964] OLRB Rep. June 142; Webpax Limited, [1967] OLRB Rep. Jan. 792; Federal Bolt & Nut Corporation Limited, [1966] OLRB Rep. May 108; St. Thomas Sanitary Collection Service Limited, [1972] OLRB Rep. June 600; Skene Cartage Company Limited, [1966] OLRB Rep. April 30; William H. Rorer (Canada) Limited, [1973] OLRB Rep. Sept. 483; Robert Cruikshank Cleaning Contractors Limited, [1972] OLRB Rep. Oct. 891; and Webster Air Equipment Company Ltd., 58 CLLC 18,110.
Counsel for the respondent submitted the applicant bore the onus with respect to verifying its membership evidence. Counsel argued, firstly, that whether the Helm's transaction was a loan or a gift was not free from doubt. Even if that transaction was viewed as a loan, counsel asserted that the Board had the discretion as to whether to count the other cards collected by Hunter. It was contended those cards should be disregarded as Hunter had intentionally concealed the "loan" initially, had repeatedly given false assurances to Meneghmi about the one dollar payment and had been less than fully candid with the Board. In summary, counsel asserted a representation vote should be directed.
The Board made the following oral ruling:
The Board has considered the submissions of the parties and reviewed the evidence. The Board is satisfied that the one dollar payment with respect to Helm's membership card was a bona fide loan from Hunter to Helm. That is, Hunter intended the one dollar as a loan to be repaid, Helm was clearly personally known to Hunter, Helm acknowledged the one dollar as a loan to be repaid and did, in fact, repay Hunter. Further, the Board notes that Hunter was not a union official or an experienced organizer. Indeed, this was Hunter's first organizing campaign. The Board is satisfied that Meneghini, as signatory to Form 9, conducted the appropriate, even, extensive inquiries, with respect to the cards. Moreover, those inquiries had followed a detailed explanation of the organizing process. On balance, then, the Board finds that the loan to Helm was an isolated case. The Board has the discretion to determine the precise effect of its finding of a bona fide loan regarding Helm's membership card. In the circumstances, the Board need not resolve the issue as to whether Helm's card itself should be counted or disregarded. That is, the Board is not prepared to discount the other membership cards gathered by Hunter. And, therefore, the Board is satisfied that the applicant has filed membership evidence in excess of fifty-five per cent of the employees in the bargaining unit. In view of this finding, the Board need not deal with the applicant's submissions with respect to the sealing of the ballot box should a vote be directed.
To recapitulate the finding of the Board in the July 12 decision, the Board is satisfied on the basis of all the evidence before it that more than fifty-five per cent of the employees of the respondent in the bargaining unit at the time the application was made were members of the applicant on June 4, 1985, the terminal date fixed for this application and the date which the Board determines~ under section 103(2)(j) of the Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act in respect of a bargaining unit described as all employees of the respondent in Metropolitan Toronto, save and except foremen, persons above the rank of foreman, quality control manager and office and sales staff.
Accordingly, a formal certificate shall issue to the applicant.