Ontario Labour Relations Board
[1985] OLRB Rep. January 59
2521-84-R International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, (U.A.W.), Applicant, v. Columbus McKinnon Limited, Respondent.
BEFORE: Harry Freedman, Vice-Chairman, and Board Members J. A. Ronson and B. L. Armstrong.
APPEARANCES: Lorna J. Moses and Howard Powers for the applicant; Peter J. Thorup. Peter A. Grant, Roger A. Williams, Dennis Good and Frank Meevis for the respondent.
DECISION OF VICE-CHAIRMAN HARRY FREEDMAN AND BOARD MEMBER B. L. ARMSTRONG; January 16, 1985
- At the hearing of this matter on January 4, 1985, the parties agreed that the Board should first deal with the respondent's submissions with respect to the documentary evidence filed by the applicant in support of its application. Following the evidence and the submissions of the parties, the Board with Board Member J. A. Ronson dissenting, delivered the following oral ruling:
ORAL RULING
In this application for certification, the applicant filed documentary evidence of membership that was comprised of a two-part application for membership card and a carbon copy of a receipt issued by the applicant to the employee who had applied for membership and paid a dollar to the applicant. The top portion or part of the card is the actual form of application signed by the employee who is applying for membership in the applicant. It also has a place for the date. The bottom portion or part of the card states that "$1.00 initiation fee received by" with a blank space and line under which is printed "signature of collector". Under that statement and signature of the collector is printed "I hereby certify that I paid the above amount'' with a space for the signature of the employee who had signed his or her name in the top part of the card. Each of the application for membership cards filed by the applicant were signed in two places by an employee and in one place by a collector.
The application for membership cards were signed between December 9 and December 12, 1984, inclusive. There was more than one collector shown on the application for membership cards although Mr. Howard Powers, an official of the applicant, signed all of the receipts dated December 12th that were issued by the applicant. He also was one of the collectors on the application for membership cards and signed the Form 9 Declaration which the applicant filed on December 19, 1984.
Counsel for the respondent wrote to the Board, by letter dated December 21, 1984, submitting that there were irregularities in the membership evidence, and requested the Board to appoint a Labour Relations Officer to conduct an investigation. That letter provided:
Mr. D. K. Aynsley
Registrar
Ontario Labour Relations Board
400 University Avenue
Toronto, Ontario
M7A 1V4
Dear Mr. Aynsley:
Re: U.A.W. and Columbus McKinnon
Limited
Board File No. 252 1-84-R
It has just come to the attention of the Respondent that there appears to have been a serious irregularity in the collection of membership evidence by the Applicant in this matter.
It is the Respondent's information that several days after the date of application for certification, Mr. Howard Powers, an International Representative of the U.A.W. and the signatory of the Application for Certification in this matter, wrote to employees of the Respondent. The gist of this letter was to request that any employee who had not yet paid their $1.00 membership fee, should proceed to do so. Apparently, Mr. Powers enclosed a self-addressed envelope for employees to use if they wished.
In light of the foregoing, we request the Board to conduct an investigation into this allegation.
The Respondent hereby reserves the right to submit that all of the Applicant's membership evidence ought to be disregarded and that the application ought to be dismissed, — particularly in light of the apparent knowledge and involvement of an International Representative of the Applicant. Moreover, the Respondent submits that the Applicant bears the onus of demonstrating before the Board why any of its membership evidence ought to receive any weight, in view of the apparent occurrence of a serious irregularity.
Yours very truly,
"P. J. Thorup"
Peter J. Thorup.
The Registrar of the Board did not assign a Labour Relations Officer to conduct an investigation, following the Board's normal practice not to do so in the absence of a specific allegation that an employee whose name appears on the membership evidence filed by the union did not sign a membership card or did not pay $1.00 to the union.
At the hearing of this matter, the respondent adduced evidence that established that a letter was sent from the applicant to at least one employee. The respondent did not have that letter in its possession, but introduced as an exhibit (exhibit #1) a copy of a letter which was identical in all material respects to that letter after counsel for the respondent asked the Board to direct the applicant to produce it.
That letter states:
December 14, 1984.
TO: U.A.W. MEMBERS
COLUMBUS MCKINNON LTD.,
COBOURG, ONTARIO
Greetings: —
Our records show that you are an employee of Columbus McKinnon Limited, Cobourg, Ontario, and that you have signed an Application for Membership card in the International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, (U.A.W.), and paid one dollar ($1.00) to comply with the requirements of the Ontario Labour Relations Board.
[original emphasis]
IF FOR ANY REASON OUR RECORDS ARE INCORRECT, NOTIFY OUR OFFICE IMMEDIATELY IN WRITING. FOR YOUR CONVENIENCE, WE HAVE ENCLOSED A SELF-ADDRESSED ENVELOPE (NO POSTAGE NECESSARY).
UNLESS WE HEAR FROM YOU WITHIN SEVEN DAYS FROM THE DATE OF MAILING THIS LETTER, WE WILL ASSUME OUR RECORDS ARE CORRECT.
We have enclosed your Official Receipt for the $1.00 paid. This $1.00 is your initiation fee in full and dues in the U.A.W. do not start until such time as the U.A.W. is certified and your first U.A.W. agreement is signed.
The U.A.W. has applied for certification for the plant employees at
Columbus McKinnon Limited, and notices from the Department of
Labour should be posted by your employer.
Fraternally yours,
"HO WARD POWERS"
International Representative,
U.A.W. — Canada.
The applicant called no evidence.
Counsel for the respondent argued that the letter raises a suspicion as to the propriety of the membership evidence filed. He concedes that there was no direct evidence of a non-pay in respect of the documentary evidence of membership filed by the applicant, although he submitted that it was irregular for the receipts to be signed and dated after the money was paid to a collector who was not the person who signed the receipt. Counsel requested that the Board discount all of the membership evidence, or in the alternative, order a representation vote to confirm the wishes of the employees and to alleviate the suspicion raised by the applicant's letter. He also relies on the fact that the applicant called no evidence and asked us to draw an adverse inference from that.
The representative of the applicant submitted that its letter dated December 14, 1984 was merely an extra check on the documentary evidence that it had filed and that there was nothing before the Board to cause the Board to be suspicious of the propriety of that evidence.
It is well known that the Board places a high and strict standard on the documentary evidence of membership filed in support of an application for certification and on the statutory declaration (Form 9) that is filed to authenticate that evidence. (See Webster Air Equipment Company Ltd. (1958), 58 CLLC ¶18,110 where the Board stated:
It is obviously a practical impossibility for the Board to interview each employee on whose behalf documentary evidence of membership is filed in a certification proceeding, in order to ascertain whether he has personally signed the application for membership and whether he has paid on his own behalf the dues or fees which the receipt accompanying the application purports to acknowledge. In addition to comparing the signatures on the documentary evidence of membership filed by the union with facsimile signatures filed by the employer, the Board seeks from the representative of the union who appears at the hearing assurances that the payment of dues has conformed to the Board's policy in that regard, and it requires such assurances to be based on personal knowledge of the facts or on inquiries from the persons who themselves collected the money. In the normal course, the Board accepts such representations, at their face value. However, since the Board is compelled to rely to such an extent on evidence which, by the very nature of things, is not subject to examination by the parties to the proceedings (see section 72(1) of The Labour Relations Act), it must be very circumspect in accepting it and it must insist on the highest standards of integrity on the part of those who submit such evidence. Any attempt to mislead the Board or any failure to make full disclosure of all material facts must weigh heavily against an applicant.)
In this case the receipt signed by the applicant appears to be merely a confirmation of the bottom portion of the application for membership card. The application for membership cards and the receipts are consistent with one another. The signed application for membership and the collector's signature and the signed declaration by the employee that he or she paid at least $1.00 to the applicant is often the only form of membership evidence on which the Board relies. In this case, the receipt attached to the application for membership card is supportive of that payment.
With respect to the letter from the applicant dated December 14, 1984 (See Exhibit #1), although we are troubled that the applicant chose not to lead any evidence to explain the reason for the letter, we are not satisfied that the sending of the letter and its contents raises a suspicion about the membership evidence filed in this case. While it is open to draw different and opposing reasonable inferences from the fact of the sending of the letter and its contents, we find that the sending of the letter and the letter itself are consistent with a trade union taking extra precautions with respect to the accuracy of the membership evidence it has filed.
The submissions of the respondent in this case are analogous to the submissions made in a situation where a union has withdrawn an application for certification in the face of charges filed against its membership evidence, and then re-files a new application shortly thereafter. It has been argued in those cases that there is a cloud of suspicion over the membership evidence in the second application because of the withdrawal of the first application. The Board rejected that argument in Leco Industries Ltd., [1979] OLRB Rep. May 404 at page 407 where the Board stated:
"The Board notes that this new documentary evidence of membership is satisfactory in all respects and again indicates that well in excess of fifty-five per cent of the employees in the agreed bargaining unit support the applicant. Nevertheless, the respondents contend that the Board should either dismiss the application, impose a bar to the present application (which presumably would involve a reconsideration of the original application in which no bar was imposed) or, in the alternative, exercise its discretion to order a representation vote — a discretion which the Board has even though the union has demonstrated sufficient support for certification without a representation vote. The respondents contend that since, in the previous application there might have been evidence to sustain their allegations of evidentiary irregularities, or there might have been evidence from which the Board might infer fraud or negligence on the part of the trade union representative, there is a "cloud" over the applicant's present application, and the Board should seek the confirmatory evidence of a representation vote before issuing a certificate.
The argument made by the respondents in the present case is virtually identical to that considered, and rejected, by the Board in the very recent decision in the Ontario Hospital Association, [1979] OLRB Rep. March 243. There, too, the respondent argued that, because of certain allegations which had been made in a previous application, the Board should exercise its discretion to order a representation vote in a subsequent application. At pages 245-46 the Ontario Hospital Association decision the Board summarized the argument as follows:
The respondent argued that the Board relies upon Form 8, Declaration Concerning Membership Documents, and the evidence of membership filed by the applicant. The respondent stressed that Form 8 is to be completed on the basis of knowledge (including inquiries), information and belief and argued that Form 8 had been signed negligently and erroneously. On this basis the Form 8 filed in File No. 0718-78-R was characterized as inaccurate, false and misleading. In these circumstances, the respondent argued that there is a cloud on the evidence in the instant application (even if new evidence of membership has been filed) which may only be dissipated by a representation vote in the instant application.
The central question to be considered by the Board is whether the conduct of the applicant with respect to evidence of membership in one application may cause the Board to seek the confirmatory evidence of a representation vote in a subsequent application for certification which involved the same employer, the same trade union and, to all intents and purposes, the same bargaining unit.
In view of this very recent Board decision, which contains a review of the authorities, it is unnecessary for the Board to repeat that review in the present case. Suffice to say that the Board adopts the reasoning and analysis of the panel in the Ontario Hospital Association case, as well as its conclusion that no representation vote should be ordered in these circumstances.
... we are not persuaded that the allegations in the present application are of such kind or character as to prompt the exercise of our discretion to impose a bar or order a representation vote. There is no allegation before the Board in the present case with respect to any impropriety in the evidence of irregularity of misconduct in the previous application.
See also Walbar of Canada Ltd., [1982] OLRB Rep. Nov. 1734 at page 1735.
In our view, the evidence of membership and the Form 9 Declaration that the applicant has filed in this case is clear evidence of the wishes of the employees. The letter sent by the applicant does not, in our opinion, raise the suspicion contended for by counsel for the respondent. Thus, the Board will rely on that evidence, and further, is not satisfied that it should direct a representation vote.
After the Board orally rendered its majority and minority rulings in this matter, the parties advised the Board that they had met with a Labour Relations Officer and had resolved all of the other outstanding issues, and agreed that the Board should deal with the matter based on its ruling with respect to the membership evidence and on the report of the Labour Relations Officer.
Having regard to the agreement of the parties, the Board further finds that all employees of the respondent in Cobourg, save and except foremen, persons above the rank of foreman, office and sales staff, persons regularly employed for not more than twenty-four (24) hours per week and students employed during the school vacation period, constitute a unit of employees of the respondent appropriate for collective bargaining.
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 December 20, 1984, 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.
A certificate will issue to the applicant.
DECISION OF BOARD MEMBER JAMES A. RONSON;
- The following oral ruling was delivered by Board Member J.A. Ronson at the hearing of this matter:
ORAL RULING
This application for certification was filed on December 12, 1984. By letter dated December 21, 1984 the Respondent Employer provided the following information to the Board and requested an investigation.
Mr. D. K. Aynsley
Registrar
Ontario Labour Relations Board
400 University Avenue
Toronto, Ontario
M7A 1V4
Dear Mr. Aynsley:
Re: U.A.W. and Columbus McKinnon
Limited
Board File No. 252 l-84-R
It has just come to the attention of the Respondent that there appears to have been a serious irregularity in the collection of membership evidence by the Applicant in this matter.
It is the Respondent's information that several days after the date of application for certification, Mr. Howard Powers, an International Representative of the U.A.W. and the signatory of the Application for Certification in this matter, wrote to employees of the Respondent. The gist of this letter was to request that any employee who had not yet paid their $1.00 membership fee, should proceed to do so. Apparently, Mr. Powers enclosed a self-addressed envelope for employees to use if they wished.
In light of the foregoing, we request the Board to conduct an investigation into this allegation.
The Respondent hereby reserves the right to submit that all of the Applicant's membership evidence ought to be disregarded and that the application ought to be dismissed, — particularly in light of the apparent knowledge and involvement of an International Representative of the Applicant. Moreover, the Respondent submits that the Applicant bears the onus of demonstrating before the Board why any of its membership evidence ought to receive any weight, in view of the apparent occurrence of a serious irregularity.
Yours very truly,
"P. J. Thorup"
Peter J. Thorup.
The Board declined to conduct its own investigation into the allegations concerning the hearsay evidence filed with it.
At the hearing the Union admitted that a letter had been mailed as alleged but refused to provide a copy to the Company or to the Board when requested to do so. One really wonders why?
In any event the Company led evidence to prove the existence of such a letter and then requested an order that the letter be produced. At that point the Union agreed to produce it. The letter produced is not the same as the letter we heard evidence about. The evidence of the Company witness was that the name of an employee of the Company was typed in at some place near the top of the letter. The letter reads as follows:
December 14, 1984.
TO: U.A.W. MEMBERS
COLUMBUS MCKINNON LTD., COBOURG,
ONTARIO
Greetings: —
Our records show that you are an employee of Columbus McKinnon Limited, Cobourg, Ontario, and that you have signed an Application for Membership card in the International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, (U.A.W.), and paid one dollar ($1.00) to comply with the requirements of the Ontario Labour Relations Board.
IF FOR ANY REASON OUR RECORDS ARE INCORRECT, NOTIFY OUR OFFICE IMMEDIATELY IN WRITING. FOR YOUR CONVENIENCE, WE HAVE ENCLOSED A SELF-ADDRESSED ENVELOPE (NO POSTAGE NECESSARY).
UNLESS WE HEAR FROM YOU WITHIN SEVEN DAYS FROM THE DATE OF MAILING THIS LETTER, WE WILL ASSUME OUR RECORDS ARE CORRECT.
We have enclosed your Official Receipt for the $1.00 paid. This $1.00 is your initiation fee in full and dues in the U.A.W. do not start until such time as the U.A.W. is certified and your first U.A.W. agreement is signed.
The U.A.W. has applied for certification for the plant employees at Columbus McKinnon Limited, and notices from the Department of Labour should be posted by your employer.
Fraternally yours,
'Howard Powers"
HOWARD POWERS,
International Representative,
U.A.W. — Canada.
Now there are many reasons why such a letter could have been written. It may be that it was a simple double check of records according to standard procedure. To those more suspicious than my colleagues, it may be that the Union was aware of defects in its membership evidence and was trying to ferret them out. Unfortunately we don't know why the letter was written as the Union called no evidence. And more specifically, we don't know if one or more employees mailed a dollar back in the envelope provided. That happening, of course, would require an amended Form 9 to be filed. Form 9 was not amended.
This Board has always been rigid in its approach to allegations made against the truth of documentary hearsay membership evidence. The Applicant Union is not entitled to the benefit of doubt. If its membership evidence is called into question the onus is on it to answer the question. In this case it has not done so.
It is reasonable to infer from the Union letter that there were defects in its evidence known to the union. That inference is re-inforced and becomes that only acceptable one when the Union chooses to call no evidence to rebut it.
Unlike my colleagues, who give the Union the benefit of doubt when it has not met the onus upon it, I would order a vote to clear the air of any and all suspicion.