United Steelworkers of America v. Laidlaw Wire of Canada, Ltd., 1985 CanLII 1063

[1985] OLRB Rep. October 1479

0455-85-R United Steelworkers of America, v. Applicant, Laidlaw Wire of Canada, Ltd., Respondent, v. Group of Employees, Objectors

BEFORE: Robert D. Howe, Vice-Chairman, and Board Members A. Grant and 5. 0 'Flynn.

APPEARANCES: Brian Shell, John Harkins and Doug Hart for the applicant; William R. Watson, David 7'. A. Cote and Jalal Hadibhai for the respondent; Muezettie-Betty Bonomo, Kerry Lyn Hill and Edeltrand Falzon for the objectors.

DECISION OF THE BOARD; October 31, 1985

1. The name of the respondent is amended to "Laidlaw Wire of Canada, Ltd."

2. This is an application for certification.

3. The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act.

4. Having regard to the agreement of the parties, the Board further finds that all employees of the respondent in Mississauga, Ontario, save and except foremen, persons above the rank of foreman, office and sales staff, and students employed during the school vacation period, constitute a unit of employees of the respondent appropriate for collective bargaining.

5. There were seventeen employees in the bargaining unit at the time the application was made. The applicant filed membership evidence in respect of ten of those employees, in the form of combination applications for membership and receipts. The objectors filed with the Board a petition in opposition to the certification of the applicant, bearing the signatures of eight employees, one of whom had earlier signed a membership card in the applicant (and paid the required initiation fee). The applicant also filed with the Board two counter-petitions, signed by a total of ten employees, one of whom had earlier signed a petition after joining the applicant. The heading on the counter-petitions reads as follows:

The undersigned employees of LAIDLAW WIRE OF CANADA LTD hereby revoke our support for any petition against the United Steelworkers of America and hereby reaffirm our allegiance to the United Steelworkers of America and voluntarily express our desire that the United Steelworkers of America be certified as our bargaining agent.

6. As noted by the Board in Baltimore Aircoil Interamerican Corporation, [1982] OLRB Rep. Oct. 1387, at paragraph 38, the Board has entertained counter-petitions since at least 1957. Thus, the Board has a well established practice of recognizing such documents (which are also known as "revocations"), provided that they are filed in a timely fashion, and provided that there is sufficient evidence of the circumstances of their circulation that the Board can be satisfied that they represent a voluntary statement of employee wishes. If a person who has signed both a membership card and a petition subsequently voluntarily reaffirms his or her support for the union, the Board will generally disregard the effect which the appearance of his or her signature on a petition might otherwise have had, and will treat his or her last voluntary response to the Board prior to the terminal date as the best evidence of the employee's true wishes. In other words, where there is a properly signed and countersigned membership document which is supported by consideration and a properly completed statutory declaration, as well as a voluntary counter-petition which revokes any intervening statement in opposition to the union's certification, the Board will generally disregard the latter, and treat the membership document and the counter-petition as both sufficient evidence of membership within the meaning of section (1)(1)(l) and sufficient reason why the Board should not exercise its discretion to order a representation vote on the basis of the petition(s).

7. After hearing the evidence and submissions of the parties concerning the aforementioned counter-petitions, the Board made the following unanimous ruling on July 9, 1985:

Although Bimla Rai, one of the two circulators of the counter-petitions, may not have had a full understanding of the potential legal effect of the counter-petitions, having regard to all of the evidence, including the wording of the counter-petitions themselves and the circumstances in which they were signed, we are satisfied on the balance of probabilities that Ms. Rai and the other nine persons who signed the counter-petitions, including the individual who had earlier signed the petition, knew that they were signing a document in support of the applicant union and, in the case of the person who had earlier signed the petition, in opposition to that petition. We are also satisfied that the counter-petitions were voluntarily signed by the persons in question and that they reaffirm their desire that the applicant be certified as their bargaining agent. As indicated by the Board in Baltimore Aircoil Interamerican Corporation, [1982] OLRB Rep. Oct. 1387, the Board's experience in these matters suggests that a voluntary petition will generally not be sufficiently probative in the exercise of the Board's discretion under section 7(2) of the Labour Relations Act to merit an enquiry into the origination and circulation of a petition in the face of relevant, voluntary counter-petitions such as those before us in the present case. Accordingly, we do not propose to enquire into the voluntariness of the petition, but rather will assume it to be voluntary for the purposes of this case.

8. Following that ruling, counsel for the respondent requested and was given an opportunity to make submissions to the Board with respect to the matter of whether evidence concerning the origination and circulation of the petition should be received, notwithstanding the finding that the counter-petitions were voluntary. It was his position that the Board should nevertheless hear that evidence in the circumstances of this case. Ms. Bonomo, who was the employee who filed the petition with the Board and who served as the objectors' spokesperson at the hearing of this application, initially expressed agreement with the position asserted by respondent's counsel. However, after counsel for the applicant advised the Board and the other parties that the applicant was prepared to agree on the record that the petition was voluntary, Ms. Bonomo advised the Board that she did not see any need to call evidence concerning the petition and no longer wished to call such evidence because the union had agreed that the petition was voluntary. Accordingly, no evidence was heard concerning the origination and circulation of the petition.

9. Counsel for the respondent advised the Board that Rajinder Mangot, the twelfth employee listed on Schedule A of the list of employees filed with the Board by the respondent, left the respondent's premises on June 17, 1985 - two days before the terminal date fixed by the Registrar in respect of this application - and has not returned to work since then. Counsel further advised the Board that it is the respondent's position that Mr. Mangot quit his employment that day. He also contended that if the applicant had submitted a membership card in respect of Mr. Mangot, the Board should not give any weight to that membership card or certify the applicant without a representation vote on the basis of that membership card. Counsel for the applicant, on the other hand, after noting that Mr. Mangot would clearly be included for purposes of the count as he was an employee on the date of the application, submitted that, in the event that Mr. Mangot had signed a membership card prior to the terminal date, such card should be given full weight.

10. Counsel did not refer us to any case in which the Board has discounted a membership card, or directed that a representation vote be taken, on the ground that the employee left the employ of the employer after the date on which the card was signed, nor has our independent research revealed any such case. The Board has discounted membership evidence signed by an individual on or before the terminal date but after that person has been discharged or has quit his or her employment: see, for example, Hardman Industries Limited, [19821 OLRB Rep. March 388. However, it appears that the Board has never extended that approach to cover a card signed by an employee before the termination of his or her employment. Indeed, in the analogous context of determining eligibility to vote in a representation vote, the Board has rejected the contention that an employee who has indicated an intention to leave the work place should not be entitled to cast a ballot. In London District Crippled Children's Treatment Centre, [19801 OLRB Rep. Apr. 461, an employee in the voting constituency gave written notice to her employer on January 21, 1980 that she was terminating her employment at the conclusion of the working day on January 23, 1980. In ruling that the employee in question was eligible to vote in a representation vote held on January 22, 1980, the Board wrote, in part, as follows:

11. Certification is the primary process in The Labour Relations Act. It is the means by which the wishes of employees for representation are transformed into the affirmative right of a union to bargain collectively on their behalf with their employer. Generally, apart from exceptional cases involving extreme unfair labour practices, certification is accomplished by an application of majoritarian principles. A union can be certified by demonstrating support in excess of 55% of the bargaining unit through membership cards. It can also be certified by obtaining a simple majority of the ballots cast in a representation vote. These are the two normal routes to certification under the Act. Both of these procedures require the application of percentages to a defined number of employees. Because employees may continuously come and go through hiring, lay-offs, leaves of absence, quitting and discharge, the Board has had to devise some general rules to apply in order to fix a clear and stable figure of employees in a given bargaining unit for the purposes of an application for certification.

12. There are a number of ready illustrations of those rules. The Board has devised, for example, a 'terminal date" as a cut off point for assessing the number of membership cards filed by a union and statements in opposition to certification filed by employees. The Board refers to the date that an application is filed for assessing the number of employees in the bargaining unit. (See R. v. OLRB, Ex parte Hannigan, 1967 CanLII 205 (ON CA), [1967] 2 O.R. 469 (CA.)). And it has developed a "thirty day rule" to determine whether an employee absent on the date of application is to be counted within the bargaining unit for the purposes of the application (Amplifone Canada Ltd., [1967] OLRB Rep. Dec. 840). The Board has also evolved "a seven week rule" as a rule of thumb to assess which employees will be viewed as full-time and which as part-time for the purposes of an application. (Sydenham District Hospital, [1967] OLRB Rep. May 135.) These are procedural constructs whose application may mean victory or defeat for either party in any particular application. If all of the lines established by these rules were to be redrawn on a case by case basis the certification process would come to a standstill. These established principles are known to the labour relations community and parties coming before the Board can plan on the basis of them. While none of the above rules are entirely inflexible, there is a substantial onus on any party who seeks to have the Board depart from them in a particular case. (Trenton Memorial Hospital, [1980] OLRB Rep. Jan.)

13. The line which the Board has traditionally drawn respecting the eligibility of employees to vote, namely that the employee be in the bargaining unit both on the date that the vote is ordered (or on the terminal date in a pre-hearing vote or as otherwise agreed by the parties) and on the date the vote is taken, is clear and well known through the Board's published decisions, its practice notes (see Practice Note No. 9, August 1964) and its layman's handbook. While originally the Board merely stated that employees in the bargaining unit would be entitled to vote (see e.g., The Borden Co. Ltd. (1946), 46 CLLC 16,461) it evolved the two-pronged eligibility rule to give greater clarity and certainty to voter's lists, as well as to eliminate the possibility of an employer influencing the outcome of a vote by hiring new employees. The Board's practice and the principles underlying it were well canvassed in J. McLeod & Sons Ltd., [1970] OLRB Rep. Feb. 1316.

14. In this case the respondent and the objecting employees invite the Board to adopt a different rule. They submit that if an employee has indicated an intention to leave the workplace he or she should not be permitted to influence the outcome of a representation vote. When pressed on the point, however, they are less than clear as to how that principle can be applied in any general way. Is an employee to be deprived of his franchise if, before a representation vote, he indicates an intention to leave his employment within three weeks of the vote? Or three months? Or six months? And is the result of a closely contested vote to be disturbed if an employee who voted is transferred, quits or is discharged within a day or two after the vote? The Board must obviously adhere to a rule that gives some certainty and finality to the granting of bargaining rights and which can be readily understood and applied by the parties.

15. The Board's rule respecting eligibility to vote has sought to strike a balance. On the one hand the Board recognizes the interest of employees with a stake in future collective bargaining having a controlling voice in the choice of a bargaining agent. On the other hand it faces the necessity of establishing a democratic process with some finality in situations where employees are subject to varying degrees of turnover....

16. The Board's voter eligibility rules are not intended and do not purport to achieve a standard to perfect decimal point democracy, assuming such a standard can ever be achieved. The rules seek nothing more than to establish a substantially representative group of employees with a minimum of employment continuity for the purposes of certification....

17. The Board has long recognized the right to vote of employees who are transitory, so long as they conform to the minimum requirement of the Board's two-pronged eligibility rule. If they are employed on the date the vote is ordered and continue to be employed to the date the vote is taken, they are entitled to vote. In J. McLeod & Sons, [1969] OLRB Rep. Dec. 1100, the Board confirmed the eligibility to vote of a group of employees who fell within the eligibility dates but who in fact had been hired temporarily. They were strikers from a nearby plant who expected to return to their normal employment at some indefinite future date. And in University of Toronto, [1974] OLRB Rep. May 267, the Board confirmed the right to vote of all teaching assistants and research assistants employed by the University even though the vote was conducted in May, at the end of the academic year, and a turnover rate of 25 per cent to 35 per cent of the bargaining unit was projected for the next academic year.

18. The selection of a bargaining agent under the Act cannot be conducted on the basis of an ongoing referendum geared to the daily, weekly or monthly changes in the people who make up a bargaining unit. But bargaining rights are not necessarily permanent, and the Act allows for shifts in the wishes of employees whether through the turnover of personnel or otherwise. Any changes in the sentiment of a majority of the employees about union representation over time can be dealt with through the provisions of the Act for the termination of bargaining rights.

19. Similar considerations, including the need for a "bright line" test which provides guidance and an element of certainty for all of the parties which appear before the Board, have led us to conclude that a membership card signed in an otherwise timely manner by an employee who subsequently quits, or is discharged or laid off, prior to the terminal date should not be rejected by the Board or given less weight than cards signed by other employees. Such an employee is an employee in the bargaining unit at the time the application is made and is also a member of the trade union at the time determined by the Board under section 103(2)0) for the purposes of calculating the percentage contemplated by section 7 of the Act. Moreover, we are not persuaded that the existence of such circumstance should prompt the Board to direct that a representation vote be taken in the exercise of the Board's discretion under section 7(2) of the Act.

20. In a letter dated July 5, 1985, Cheryl Elliott of counsel for the respondent wrote to the Board as follows:

Further to our letter of today's date, it has come to our attention that one or more of the employees who signed Membership Cards in support of the application, dated May 24, 1985, did not pay a dollar as required by the Board's Rules of Procedure.

The employer alleges that the above constitutes a “no pay" and therefore pursuant to the Board's practice, the employer respectfully requests that a Labour Relations Officer be appointed at the earliest possible convenience to investigate this allegation.

Counsel for the respondent also sent a copy of that letter to counsel for the applicant. In an addendum which (quite properly) was not copied to the applicant, Ms. Elliott named the three persons whom she had been advised had not paid a dollar membership fee.

13. At the July 9, 1985 hearing, counsel for the applicant asked the Board to call upon the respondent to adduce at that time evidence in support of its non-pay allegations. However, the Board declined to depart from its usual practice of having a Board Officer conduct a preliminary investigation into the non-pay allegations. (Under that well established practice, which has been adopted by the Board to protect, insofar as possible, the secrecy of membership evidence, the Board will not generally proceed further with respect to a non-pay allegation if the signed statement which the Board officer obtains from the employee in question confirms the information contained on the signed and witnessed membership card submitted by the applicant in respect of that employee. If the signed statement obtained by the Board officer contradicts the information contained on the membership card, then the Board will summon the employee, the collector, and the Form 9 declarant to a hearing in respect of the non-pay allegation, and will conduct a formal inquiry into the matter by questioning each of those persons, and affording each of the parties an opportunity to question them, adduce other pertinent evidence, and make submissions to the Board.)

14. On September 13, 1985, the Board heard the submissions of the parties concerning the procedure to be adopted in respect of a non-pay allegation which had not been resolved by means of the Board Officer's preliminary investigation. After recessing to consider those submissions, the Board made the following unanimous oral ruling:

We have decided in the circumstances of this case to call the two employees involved in the transaction, the collector, and the Form 9 declarant, as the Board's witnesses. Although Mr. Shell has eliminated the need to subpoena those individuals by arranging to have them present, we wish to make it clear that they are being ordered to testify by the Board and are not being called to testify by the applicant. We also feel that it is appropriate to draw to the attention of all persons present the provisions of section 80 of the Labour Relations Act, which make it illegal for an employer, trade union, or person acting on behalf of an employer or trade union, to discriminate against or in any way penalize a person because he or she has testified or otherwise participated in a proceeding under the Act.

15. Although the testimony given by those witnesses contains some minor discrepancies of the type which often result from the passage of time, we are satisfied that all of the witnesses were sincerely attempting to provide the Board with a full and accurate description of the events as they recalled them. Having carefully reviewed their evidence and the submissions of counsel, we find the material facts to be as follows. On May 6, 1985 the applicant filed an earlier certification application (Board File No. 0294-85-R) in respect of the respondent's employees. After the respondent had raised certain non-pay allegations concerning the membership evidence, the applicant sought leave to withdraw the application upon discovering that it had been misled by a rank and file collector. However, in a decision dated May 24, 1985, the Board, differently constituted, wrote as follows in dismissing that application:

When this application came on for hearing, the applicant informed the Board that it wished to withdraw this application for certification. Having regard to the stage in the proceedings at which the applicant's request was made, the application is dismissed.

16. The applicant filed the present application that same day (May 24, 1985), and proceeded to collect fresh membership evidence. In an attempt to avoid any problems of the type which had been encountered in the previous application as a result of using rank and file employees to collect membership evidence, the applicant arranged for John Harkins to be the collector on all of the membership cards submitted in support of the present application. Mr. Harkins is a full-time organizer employed by the applicant. During the course of his organizational activities on behalf of the applicant, he has served as a collector on hundreds of membership cards.

17. All of the membership cards filed by the applicant in support of the present application were signed in the three-day period from May 26 to May 28, 1985. One of those cards was signed by Jaswinder Manak on May 26 in Mr. Harkins' car. At that time Mr. Manak attempted to give Mr. Harkins eight quarters to cover a $1.00 initiation fee for himself and a $1.00 initiation fee for his sister Manjit Krod, who was standing outside the car. In doing so, Mr. Manak explained that his sister did not have any money with her. Mr. Harkins accepted four of the quarters, but returned the other four to Mr. Manak and told him that he could not accept payment from him on behalf of his sister. After signing a membership card, Mr. Manak left the car and handed the remaining four quarters to his sister, on the understanding that she would repay him at home later that day. Ms. Krod then entered the car, paid the four quarters to Mr. Harkins as an initiation fee, and signed a membership card. Although Mr. Harkins did not see Mr. Manak hand the four quarters to Ms. Krod, he assumed that Mr. Manak had done so. After Ms. Krod had signed a membership card and left the vehicle, Mr. Harkins went over to where she was standing with her brother and told them to be sure that the loan was repaid.

18. Mr. Harkins subsequently apprised David Nicholson of those events. Mr. Nicholson, who was a student-at-law in the employ of the applicant at the time he signed the Form 9 Declaration Concerning Membership Documents (dated June 18, 1985) which has been filed by the Board in support of this application, made no reference to that loan in the Form 9 Declaration, as he was of the opinion that it did not constitute an exception in that Ms. Krod had, in his view, paid a dollar (on account of dues or initiation fees) to Mr. Harkins on her own behalf. Neither Mr. Harkins nor Mr. Nicholson contacted Mr. Manak or Ms. Krod on or before the date the Form 9 Declaration was forwarded to the Board, to confirm that the loan had been repaid. However, we are satisfied on the basis of the testimony of Ms. Krod and Mr. Manak that it had in fact been repaid on May 26, in accordance with their understanding at the time of the loan.

19. In his submissions on behalf of the respondent, Mr. Watson contended that the failure to disclose the transaction in question on the Form 9 Declaration was a serious breach of the Board's practice and procedure. It was his position that the circumstances did constitute an "exception" that should have been disclosed in the Form 9 Declaration. In this regard, it was Mr. Watson's contention that Ms. Krod had not made a payment "on her own behalf'. He also urged the Board to look at the present application in the light of the previous application to find a pattern of substantial irregularities. It was his position that the present application should be dismissed with a bar on further applications "for an appropriate period of time", or that, in the alternative, a representation vote should be ordered.

20. Counsel for the applicant submitted that anon-pay had not been established. It was his position that Ms. Krod had paid a one dollar initiation fee to Mr. Harkins on her own behalf, and that the source of that dollar should be of no concern to the collector or to the Board, so long as it did not come from the applicant. Moreover, he noted that the loan had been properly repaid by Ms. Krod to her brother in any event. It was his position that while it might have been more prudent for the applicant to have mentioned this matter in the Form 9 Declaration out of an abundance of caution, there was no obligation to do so as it did not constitute an exception to the information set forth in paragraph 3 of that document. It was also his contention that no pattern of substantial irregularities existed. In this regard, he noted that as soon as the applicant had become aware that it had been misled by a rank and file collector in relation to part of the membership evidence submitted in support of its previous application, the applicant had sought leave to withdraw that application and had filed a new application supported by fresh, untainted membership evidence collected by a full-time organizer employed by the applicant.

21. The Form 9 Declaration filed by the union in support of this application reads as follows:

File No. 0455-85-R

Form 9

LABOUR RELATIONS ACT

DECLARATION CONCERNING MEMBERSHIP DOCUMENTS

BEFORE THE ONTARIO LABOUR RELATIONS BOARD

Between:

United Steelworkers of America,

Applicant,

• and -

Laidlaw wire of Canada Limited,

Respondent,

• and -

Intervener

I, DAVID NICHOLSON, the Student-at-Law of the applicant herein of my knowledge, information and belief:

declare that, to the best

1. The documents submitted in support of the application represent documentary evidence of membership on behalf of 10 persons who were employees of the respondent in the bargaining unit that the applicant herein claims to be appropriate for collective bargaining, on the date of the making of the application.

2. There were 17 persons who were employees of the respondent in the bargaining unit that the applicant herein claims to be appropriate for collective bargaining on the date of the making of the application.

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 of 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 the receipt or acknowledgment of payment as collector, EXCEPT IN THE FOLLOWING INSTANCES:

DATED at TORONTO, this 18th day of June, 1985.

'David Nicholson"

Student-at-Law

22. Section l(l)(l) of the Act defines "member", when used in reference to a trade union, to include a person who has applied for membership in a trade union and has paid to the trade union on his own behalf an amount of at least $1.00 in respect of initiation fees or monthly dues of the trade union. That provision, which was added to the Act in 1970 (as section l(1)(ga) by The Labour Relations Amendment Act, 1970, S.O. 1970, c. 3), codified a well established Board policy. The purpose of the requirement that the person pay at least $1.00 on his own behalf was described as follows in R.C.A. Victor Company Ltd., 53 CLLC

17,067, at pages 1469-50:

………..it need hardly be pointed out that the Board cannot accept as evidence of payment anything in the nature of a monetary contribution from a person other than an applicant for membership. The money payment constitutes confirmatory evidence of the desire of the payer to become a member of the trade union. If no financial sacrifice is made by the person himself, the only evidence submitted on his behalf is a signature on an application card which the Board has long since held to be inadequate to establish membership. On the other hand, not every loan to a prospective member, especially where the money is repaid, will be fatal to an applicant's case. Thus, in Sportswear Union and Beauty Form Lingerie Limited (1951), and Sportswear Union and Style Rite Blouse Company (1951), both unreported, there was evidence of a loan being made, in each instance to a single employee. ln each of these cases, the Board found on the evidence before it that the applicant had not endeavoured to mislead the Board, and full weight was given to the evidence of membership submitted by the union.

For a number of years, the Board tended to treat such transactions as being tantamount to "non-pays", particularly where the money was advanced by a trade union official and where the "loans" were not repaid prior to the filing of the membership cards with the Board: see, for example, Webster Air Equipment Company Ltd., 58 CLLC 1810; Hershey Chocolate of Canada, Limited, [1963] OLRB Rep May 73; and Tillsonburg Shoe Co., [1964] OLRB Rep. June 142. However, as early as 1958 (in the Webster Air Equipment case, supra) the Board indicated that it was "not greatly concerned about isolated instances of money being advanced by one employee to another"~ in recognition of the fact that such a transaction might well be an incident in an established relationship between two employees where one, knowing and trusting the other, accommodated him by lending him a dollar during a period when he was short of funds. Nevertheless, the Board went on to note in that case that a union acts at its peril in failing to make full disclosure of all material facts where "a loan is made by [a responsible] officer or official [of the union] and the money is not repaid before the hearing, or where there is a pattern of loans having been made, whether by such a person or by rank and file employees, and whether repaid or not".

23. More recent cases have tended to focus on whether the impugned transaction constituted a bona fide loan which the borrower sincerely intended to repay. In Sandercock Construction Limited, [1970] OLRB Rep. Apr. 147, the Board discounted membership cards submitted in respect of two employees who had each "borrowed" a $10.00 initiation fee from another employee without any real intention to repay the "loans", and had only repaid them "because of further proceedings before the Board". In St. Thomas Sanitary Collection Service Limited, [19721 OLRB Rep. June 600, the Board wrote, in part, as follows:

24. In this case there were certain allegations of non-pay made. The Board accordingly conducted its usual investigation and subsequently a hearing was ordered. The evidence revealed that at the time Clarence Earhart signed an application for membership in the applicant union he did not have a dollar and requested a fellow employee to loan him a dollar and indicated that he would repay the dollar. The collector was another fellow employee. Mr. Earhart intended to repay the money that was loaned to him; however, he stated that when he saw the fellow employee he did not have the money, but when he had the money he did not see him. He further indicated that he felt he was obligated to repay the dollar.

25. It further appeared that the person who signed the form on behalf of the union made the appropriate inquiries of the employee collector and accordingly there is nothing improper about the filing of the Form 8 [now Form 91 in this matter.

26. We are satisfied in the circumstances of this case that a bona fide loan was made by one employee to another employee, and we do not find anything improper in the evidence of membership submitted; Skene Cartage Company Limited [19661 OLRB Rep. 30.

In N. A. Construction, [1982] OLRB Rep. Jan. 77, the Board gave no weight to membership evidence filed on behalf of two employees who, in the presence of the collector, each "borrowed" a dollar from a third employee without any intention of repaying him. In reaching that conclusion, the Board took into account "the fact that the 'so-called' loans were made in an informal manner in front of the collector who made no attempt to ascertain whether in fact there was a true intent to repay the money". (The Board also took into account the fact that the collector actually received the money from the third employee.) In Shaw Festival Theatre Foundation, Canada, [19831 OLRB Rep. Sept. 1579, the Board was called upon to determine the membership status of an employee who borrowed $25.00 from the secretary of the local because the employee did not have enough money to pay the required initiation fee at the time he was approached by that union official and asked to join the local. In finding that employee to be a member of the local for the purposes of the local's certification application even though the loan had not been repaid as of the date of the hearing, the Board accepted the employee's testimony that he was obligated to repay the loan and intended to do so. Thus, the Board found the loan to be "a bona fide transaction".

24. Having carefully considered the submissions of the parties in the light of the applicable jurisprudence, the Board has concluded that Manjit Krod was a "member" of the applicant within the meaning of section 1(1)(l) of the Act, at the pertinent time for purposes of this application. Under the circumstances, there can be no doubt that the loan which she received from her brother was a bona fide transaction. In this regard, we note that at the time of the transaction, there was a clear understanding between Ms. Krod and her brother that she would repay the dollar to him at home later that day. Having quite properly refused to accept payment from Jaswinder Manak on behalf of his sister, Mr. Harkins, who correctly assumed that the money which Ms. Krod paid to him had been loaned to her by her brother, told Ms. Krod and Mr. Manak to be sure that the loan was repaid. Thus, unlike the collector in N. A. Construction, supra, Mr. Harkins did take steps to assure himself that Ms. Krod intended to repay the loan to her brother. Moreover, the loan was in fact repaid later that day in accordance with the arrangements which had been made at the time of the transaction.

25. As conceded by counsel for the applicant, it would have been prudent to have mentioned in the Form 9 Declaration the loan from Jaswinder Manak to Manjit Krod. Inclusion of that information in the Declaration might have obviated the need for a formal inquiry into the transaction, or at least have enabled the Board to investigate it more quickly. However, Mr. Nicholson's decision to not include that information in the Declaration was, at most, an error in judgment which was not intended to, and did not in fact constitute a fraud or misrepresentation, since, in view of the bona fide loan described above, Ms. Krod had in fact paid, on her own behalf, an amount of one dollar to Mr. Harkins in respect of initiation fees. Thus, the transaction did not constitute an exception to the statement contained in paragraph 3 of the Declaration. Nor is there anything in those circumstances, or in any of the other circumstances of this case, which in our view makes it appropriate to direct that a representation vote be taken pursuant to our discretion under section 7(2) of the Act. In this regard, we note that there is no evidence of a pattern of irregularities, as submitted by counsel for the respondent. There was nothing improper about the applicant seeking to withdraw its earlier application upon discovering that it had been misled by a rank and file collector in relation to part of the membership evidence submitted by the applicant in support of that application. In this regard, we note that there is no evidence (or admission) before us of any irregularity in respect of the Form 9 Declaration submitted by the applicant in support of that earlier application, or of any attempt by the applicant to mislead the Board in connection with that application. After that application had been dismissed and a new application filed, the applicant assigned Mr. Harkins to collect fresh membership evidence. As indicated above, no irregularity or attempt to mislead the Board has been established in respect of that fresh membership evidence or the Form 9 Declaration submitted by the applicant in support of the present application. Although there is some indication in the Board's early jurisprudence that irregularities in membership evidence submitted in support of an earlier application may give rise to a "cloud" on fresh membership evidence submitted in support of a new application, which can only be removed by a representation vote (see, for example, Hydro Electric Commission of Hamilton, 58 CLLC 18,120), more recent decisions have declined to apply that approach where, as in the present case, there is no evidence that the applicant intended to mislead the Board in the earlier application for certification: see, for example, Duracon Precast Industries Ltd., [1981] OLRB Rep. Jan. 22; Leco Industries Limited, 11979] OLRB Rep. May 404; and The Ontario Hospital Association, [1979] OLRB Rep. March 243.

26. By letters dated June 21 and July 5, 1985, counsel notified the Board and applicant's counsel of several allegations of intimidation, coercion, and threats, on which the respondent intended to rely in these proceedings. However, at the continuation of hearing of this application on September 27, 1985, the respondent, through its counsel, withdrew all of those allegations and requested the Board to dispose of the application without regard to those allegations. Ms. Bonomo concurred with that withdrawal, and advised the Board that the objectors did not wish to call any evidence.

27. Having regard to all of the evidence and the submissions of the parties, the Board is satisfied 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 19, 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 Act.

28. For the reasons set forth above, the Board, in the exercise of its discretion under section 7(2) of the Act, declines to direct that a representation vote be taken in respect of this application.

29. A certificate will issue to the applicant.