[1985] OLRB Rep. October 1498
0758-85-R Canadian Union of Restaurant and Related Employees Hotel Employees and Restaurant Employees Union Local 88 (AFL-CIO-CLC), Applicant, v. 574037 Ontario Ltd. (c.o.b. O'Tooles Road House Restaurant), Respondent, v. Group of Employees, Objectors
BEFORE: Harry Freedman, Vice-Chairman, and Board Members J. A. Ronson and L. C. Collins.
APPEARANCES: Linda Rothstein, William Whyte and Tom Rees Jr. for the applicant; S. A.
Bernofsky, Dan O 'Toole and Michael Matron for the respondent; Paul Cridland, Doug
Anderson and Allan Gray for the objectors.
DECISION OF HARRY FREEDMAN, VICE-CHAIRMAN, AND BOARD MEMBER L.
C. COLLINS; October 7, 1985
At the continuation of the hearing into this application for certification, the Board ruled that it would receive evidence and argument relevant to the allegation that the applicant had filed membership evidence indicating that one dollar had been paid to the applicant by persons who had applied to join the applicant when in fact those persons had not paid one dollar to the applicant. That allegation, if substantiated, and depending on the circumstances, may well affect the integrity and reliability of all of the membership evidence filed by the applicant in support of this application.
The Board, upon receiving the specific allegations of "non-pay", followed its normal practice and conducted an investigation into the allegations. As a result of that investigation, it summonsed four persons, 3 employees of the respondent who had signed membership cards and the union official who had signed the Declaration Concerning Membership Documents (Form 9). Paul Cridland, an employee of the respondent and a person who allegedly did not pay one dollar to the applicant was also the collector of the membership card signed by Allan Gray, another employee of the respondent. Thomas Rees Jr., the union official who signed the Declaration Concerning Membership Documents, was also the collector of the membership cards signed by Doug Anderson and Mr. Cridland.
Mr. Anderson testified that when Mr. Rees obtained his signature on his membership card, he also gave Mr. Rees one dollar. Mr. Rees also told Mr. Anderson that everyone had paid one dollar.
Mr. Gray testified that Mr. Cridland approached him about joining the union. After some discussions about it, Mr. Gray signed the union membership card. Mr. Gray did not give Mr. Cridland one dollar. Mr. Gray testified that Mr. Cridland told him that everybody had to pay one dollar, but not to worry about it because he would get it later.
Mr. Cridland testified that Mr. Rees first approached him about the union while Mr. Cridland was working at the respondent's restaurant. Mr. Cridland and Mr. Rees also spoke several times on the telephone. Mr. Rees later went to Mr. Cridland's home. At the meeting at Mr. Cridland's home, they discussed the union and the union's organizing campaign. At that time, Mr. Cridland was quite interested in the union and Mr. Rees mentioned to Mr. Cridland that there might be a job with the union organizing in other restaurants. Mr. Cridland signed a union card in Mr. Rees' presence. Mr. Rees asked Mr. Cridland for one dollar, but Mr. Cridland did not have it. Mr. Rees told Mr. Cridland that he would get it from him later. Mr. Rees signed the acknowledgement of receipt of one dollar portion of the card and Mr. Cridland signed the confirmation of payment portion of the card at that time although no money was given to Mr. Rees by Mr. Cridland. Later that same day, Mr. Cridland obtained the card from Mr. Gray, but did not collect one dollar from Mr. Gray. A few days later Mr. Cridland also obtained signed membership cards from two other employees, but did not collect any money from them.
Mr. Rees testified that when Mr. Cridland signed a membership card, he asked Mr. Cridland for one dollar. Mr. Cridland looked for some money, but could not find any. Mr. Rees admitted signing the acknowledgement of receipt portion of the membership card at Mr. Cridland's home before collecting any money from Mr. Cridland. Mr. Rees told Mr. Cridland the importance of collecting the dollar and the procedure to be used when signing cards. Mr. Cridland and Mr. Rees agreed to meet at Mr. Rees' home that evening. Mr. Rees told Mr. Cridland that he would get the money from him at that time.
Mr. Rees and Mr. Cridland both testified that Mr. Cridland went to Mr. Rees' home and that William Whyte, the business manager of the applicant was there. Mr. Cridland testified that when he arrived, Mr. Rees and Mr. Whyte asked "how it went", in reference to getting Mr. Gray signed up. Mr. Cridland testified that he had no money with him and simply gave Mr. Rees the card that Mr. Gray had signed. He also testified that Mr. Rees did not ask him for any money.
Mr. Rees and Mr. Whyte both testified that when Mr. Cridland arrived, he gave Mr. Gray's membership card to Mr. Rees together with one dollar. Mr. Rees asked about Mr. Gray's membership card and asked whether Mr. Gray had paid one dollar to Mr. Cridland. Mr. Rees then said to Mr. Cridland that he had to collect one dollar from him. Mr. Cridland took a five dollar bill from his wallet. Neither Mr. Rees nor Mr. Whyte had change on them. They went into the house, and Mr. Whyte, who came out first, gave Mr. Cridland $4.00 change. Mr. Cridland stayed with Mr. Rees and Mr. Whyte about 20 minutes and then left.
It is clear to the Board that Mr. Gray did not pay one dollar to the applicant and therefore his membership card cannot be relied on as evidence of membership in this proceeding. Mr. Gray's card is the only card that shows Mr. Cridland as a collector. The other two cards that Mr. Cridland collected and delivered to Mr. Rees at a time after Mr. Cridland's meeting at Mr. Rees' home were not filed with the Board. Mr. Rees remembered receiving those cards that Mr. Cridland had obtained, but no money was with them and the cards had not been filled out properly. One of the two employees who signed the cards Mr. Cridland collected had left the respondent's employment. Mr. Rees collected a new card and one dollar from the other employee.
Mr. Rees was the collector of all of the remaining cards but one. The collector of that card was another employee of the respondent who had obtained it early in the organizing campaign. Mr. Rees testified that when that card and one dollar had been received from that collector, he questioned the collector as to whether the employee had signed the card and had paid one dollar.
The sole factual issue before us at this point in this proceeding is whether Mr. Cridland paid one dollar to Mr. Rees when Mr. Cridland went to Mr. Rees' home that evening. In order to determine that factual issue, we must decide whether we accept Mr. Cridland's evidence over the evidence of Mr. Rees and Mr. Whyte. We are satisfied that both Mr. Gray and Mr. Anderson were credible witnesses whose testimony did not conflict with any of the other evidence we received and their testimony can be used by us in assessing the evidence of Messrs. Cridland, Rees and Whyte.
Mr. Cridland testified that Mr. Rees, when telling him about signing up employees, did not make very much of collecting one dollar from employees. Mr. Cridland said that he did not think collecting a dollar from employees who signed membership cards was too significant at that time. However, Mr. Gray was quite specific in recalling that Mr. Cridland told him that everyone had to pay one dollar. Under cross-examination, Mr. Cridland, when asked about the conversation with Mr. Gray, thought that Mr. Gray had mentioned it first, then was not sure who mentioned the dollar first, and then conceded that he might have told Mr. Gray that he would cover Mr. Gray's dollar payment to the union. Mr. Cridland also said that Mr. Rees did not stress the dollar payment, yet agreed further in cross-examination that he had told Mr. Gray that everyone had to pay one dollar and that he would get it later.
Mr. Cridland, when asked by the applicant's counsel in cross-examination about when he realized the dollar payment was important, also gave inconsistent answers. He initially said that he first knew about its importance when he came to the Board for the first hearing of this matter in July, yet when confronted with his own evidence that he had talked to other employees about whether they had paid money to the union well before that hearing, said that he thought of it on his own. Mr. Cridland did not deny counsel's suggestion that when he was at Mr. Rees' home with Mr. Whyte, Mr. Whyte had told him about the importance of the dollar payment.
Mr. Whyte testified that he advised Mr. Cridland about the importance of the dollar payment and what effect a "non-pay" could have on the applicant's organizing campaign. Mr. Cridland did not recall that conversation. Mr. Whyte also testified that Mr. Cridland and Mr. Rees spoke about Mr. Cridland getting a job with the union as an organizer.
Having heard the evidence and observed the demeanor of the witnesses, we are satisfied that we should accept the evidence of Mr. Rees and Mr. Whyte where it conflicts with Mr. Cridland's evidence. Mr. Cridland was quite sure that Mr. Rees had not stressed the importance of collecting the dollar payment from employees, yet the same afternoon that he had met Mr. Rees, Mr. Gray was told by Mr. Cridland that everyone had to pay one dollar and further that Mr. Cridland would cover Mr. Gray's payment for him. We find that Mr. Cridland was interested in securing Mr. Gray's name to a membership card and was reluctant to ask Mr. Gray for one dollar, lest Mr. Gray refuse. Mr. Cridland's comment in testifying about his conversation with Mr. Whyte and Mr. Rees is most illuminating in this regard. Mr. Cridland, in explaining why Mr. Rees did not ask him for one dollar said that in his opinion, it would not be good practice to bring money up when trying to sign people up.
Mr. Cridland, who was quite interested in the union at the time, wanted to sign other employees into the union. We are satisfied that he knew that one dollar had to be collected but that he did not want to do so because he thought it would make it more difficult to get employees to join the union.
We are therefore satisfied that when Mr. Cridland arrived at Mr. Rees' home he advised Mr. Rees that Mr. Gray had paid one dollar to the union. We are also satisfied that Mr. Rees asked Mr. Cridland for a dollar for his own card, as he said he would do earlier that afternoon, and that Mr. Cridland paid it out of a five dollar bill he had in his wallet.
We are reinforced in this view by the evidence of both Mr. Whyte and Mr. Rees who gave their evidence in a straightforward fashion. Mr. Rees was quite candid in saying that he had made a mistake by signing the acknowledgement of receipt portion of Mr. Cridland's card without having first received a dollar from him. However, he said that he expected to get the dollar from Mr. Cridland that evening. Mr. Whyte was also quite candid in his evidence. Indeed, in response to a question from Board Member Ronson, he indicated that he saw no problem with what Mr. Rees had done in respect of Mr. Cridland's card as long as the money was collected.
The Board has indicated on numerous occasions that unions must meet a high standard in collecting membership cards and submitting membership evidence to the Board. While we are very concerned by both Mr. Rees' willingness to sign an acknowledgement of payment without first receiving money from the employee who signed a membership card in the union, and Mr. Whyte's apparent lack of concern over the process so long as the money is collected, we are satisfied that in this case, Mr. Rees collected a dollar from Mr. Cridland and further made the proper inquiries of both of the collectors. Nevertheless, if Mr. Rees had precisely followed the correct procedure, that is, not acknowledging receipt of money before the money was paid, and if Mr. Whyte had been more concerned about union officials following the correct procedure, the applicant may not have faced the problem that we dealt with here.
Our factual determination must lead to a finding that the Declaration Concerning Membership Documents (Form 9) that was filed by the applicant is not accurate. However, we are satisfied that its inaccuracy is attributable to the misinformation conveyed to Mr. Rees from Mr. Cridland. Because Mr. Rees collected almost all of the cards submitted, he relied on personal knowledge and the inquiry he had made of the other collector in making the declaration. Therefore, in all of the circumstances, the Board is satisfied that all of the membership documents except the one filed on behalf of Mr. Gray can be relied on by the Board as evidence of membership in the applicant.
This matter is hereby relisted for continuation of hearing before this panel of the Board on October 18, November 1, November 12 and November 22, 1985.
DECISION OF BOARD MEMBER JAMES A. RONSON;
I make no effort to prefer the evidence of any of the witnesses to the issue before us. The evidence is a mess of contradictory self-interest combined with vagueness whenever the going got tough.
In the normal course the complaint would be dismissed because there was no proof on the balance of probabilities. But this is an inquiry by the Board into the reliance that can be placed on hearsay evidence. And one fact is clear; membership cards were collected and no dollars were paid.
The evidence of all the witnesses was so unsatisfactory that I do not feel that the membership evidence should be accepted on its face. Nor should it be disregarded. I would exercise our discretion under the Act and order a vote.