United Steelworkers of America v. Grand & Toy Limited, 1986 CanLII 1374

Ontario Labour Relations Board

Parties and Appearances

[1986] OLRB Rep. September 1223

0746-86-R United Steelworkers of America, Applicant, v. Grand & Toy Limited, Respondent, v. Graphic Communications International Union, Local 500-M, Intervener, v. Group of Employees, Objectors

B IFORE: G. T. Surdykowski, Vice-Chairman, and Board Members J. Wilson and R. Montague.

APPEARANCES: Keith Oleksiak and Brando Paris for the applicant; R. C. Filion, R. C. Boulton

and R. J. Slater for the respondent; M. A. Church and Robert Rusk for the intervener; Peter M.

Whalen and George Ldos for the objectors.

DECISION OF THE BOARD; September 4, 1986

Decision

1. This is an application for certification.

2. The Board finds that the applicant is a trade union within the meaning of section 1(1)(p) of the Labour Relations Act.

3. Immediately prior to the scheduled hearing of this matter on July 4, 1986, representa­tives of the parties met with a Labour Relations Officer. The Board customarily assigns an Officer to meet with the parties to a certification application in an attempt to facilitate a resolution of the iss~.1es in dispute between them, either in whole or in part. Often all issues are resolved and the parties waive the necessity of a formal hearing. In almost every other case, this process at least reduces the number of issues which remain for the Board to adjudicate. In this instance, the parties were able to come to a partial agreement on the description of the appropriate bargaining unit. The bargaining unit under discussion is as follows:

All employees of the respondent at 33 Greenbelt Drive in the Regional Municipality of Metropolitan Toronto, save and except assistant supervisors, persons above the rank of assistant supervisor, office, clerical and sales staff, night drivers, building maintenance staff, persons regularly employed for not more than twenty-four hours per week and students employed during the school vacation period.

Clarity Notes:

(1) Mail room staff, messengers, stock counters and warehouse clerical staff, are included in the "office and clerical group" and are therefore excluded from the unit.

(2) Persons currently classified as dispatcher and shipper, and any persons who in the future have similar duties and responsibilities including super­visor responsibility shall be deemed to be supervisors and so are excluded from the bargaining unit.

The emphasized positions are in dispute between the parties. In each case, the applicant asserts that employees in those positions should be included in the bargaining unit while the respondent takes the contrary view. In each case there is an issue as to whether or not the employees in those positions share a community of interest with those employees whom the parties agree ought to be included in the bargaining unit. In addition, the respondent asserts that assistant supervisors, of which there is presently one, exercise managerial functions and are therefore to be excluded from the bargaining unit pursuant to section 1(3)(b) of the Act' There are 21 persons employed in the positions that are in dispute.

4. In view of the matters in dispute between the parties, the Board hereby appoints a Labour Relations Officer to enquire into and report to the Board on the status, duties and respon­sibilities of Alex Jardim, classified by the respondent as an assistant supervisor; and with respect to the community of interest, if any, between (i) S. A. Carroll, Peter Cherry, Raphael Gomez, Doug MacQuarrie, M. Rawji, all of whom are classified by the respondent as night drivers; (ii) R. A. Gardner, B. A. Jivraj, P. E. Kasala, C. C. Luong, C. Mercure, K. E. Ogden, S. Raykha, G. Theocharis, M. M. Yung, all of whom are classified by the respondent as building maintenance staff; and (iii) G. A. Lobs, B. C. Connaughton, B. C. Coluns, R. Jaigobin, S. Scattarelli and T. Shields, all of whom are classified by the respondent as warehouse clerical; and the other employ­ees in the bargaining unit as aforesaid.

5. The respondent employer filed a list of employees in the bargaining unit described by the applicant in the application which contains a total of 132 names. Because of the difference in the bargaining unit described in the application and that which is set out above, the 21 employees whose inclusion in the bargaining unit is presently in dispute were not included in the employer's list. Including them increases the list number to 153. By June 25, 1986, the terminal date fixed for this application and the date which the Board determines, under section 103(2)(j) to be the time for ascertaining membership in or opposition to the trade union, the applicant had filed 93 combi­nation applications for membership and receipts, 87 of which cards bore signatures which coin­cided with names on the employer's list. Once the 21 employees whose status is in issue are includ­ed, the applicant has 91 cards. A question arose with respect to reliability of the union's membership evidence. This issue arises out of the filing by the applicant of the requisite Form 9 Declaration Concerning Membership Evidence duly executed by one Michael Gottheil, a stu­dent-at-law employed in the applicant's Legal Department. This document attests to the authentic­ity of the membership evidence filed and, in an appendix attached thereto, sets out certain discre­pancies in the cards. (We will return to this issue and the Form 9 below.)

6. In addition, four statements of desire (otherwise known as petitions) were filed with the Board on or before the terminal date. In all, these contain the signatures of 21 persons, two of whom had also signed applications for membership in the trade union. Finally, the applicant filed six "counter-petitions", signed by 31 employees and reaffirming support for the applicant and repudiating any signature on a petition, by the terminal date. Of the 31 signatures on these counter-petitions, none overlapped with the signatures shown on the petitions.

7. Setting aside the issues relating to the Form 9, a number of things are readily apparent. First, the applicant has, on the basis of the documentary evidence, membership support represent­ing between 59.5 and 66 per cent of employees in the bargaining unit (depending upon the disposi­tion of the dispute regarding the bargaining unit), which is significantly above the 55 per cent required by section 7(2) of the Act for certification without a representation vote. Second, because of the very limited overlap between the employees signing membership cards, and those signing in opposition to the application, the petitions, even if proved voluntary, would not prompt the Board to exercise its discretion to direct that there be a representation vote. Consequently, for purposes of the Board's considerations the petitions are not relevant (see Unlimited Textures Company Limited [1984] OLRB Rep. Jan. 138 at paras 15-17). Similarly, the counter-petitions are not rele­vant either. In the result, the applicant would normally be in a position such that an interim certifi­cate would issue pursuant to section 6(2) of the Act, pending final resolution of the composition of the bargaining unit.

8. This then returns us to the Form 9 filed in this matter. The contents of this document were not disclosed to the other parties until late in the afternoon on the day of the hearing. The third paragraph of the Form 9 filed reads as follows:

9. (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 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 acknowledgement of payment as collector, except in the following instances:

SEE APPENDIX "A".

I turn, the attached Appendix "A" reads as follows:

APPENDIX "A"

1. With respect to the cards of:

(3 names)

in each case the applicant for membership signed his card on May 28, 1986. However, in each case the applicant gave his card and paid $1 directly to the respective collector on May 29, 1986 as indicated by the collector.

2. With respect to the card of (name), the applicant for membership signed his card on June 9, 1986. However, he gave his card to the collector, and paid the $1 directly to the collector on June 10, 1986 as indicated by the collector.

3. With respect to the cards of:

(four names)

in each case the collector initially indicated an incorrect date as the date the dollars were collected. In each case the collector corrected these errors and initialled [sic] the change.

4. With respect to the cards of (name) and (name), in each case the applicants for mem­bership signed in the space reserved for the collector. In each case the collector struck out the applicant's signature and signed as collector below.

5. With respect to the card of (name), the applicant signed in the space reserved for the collector. The collector struck out the applicant's signature and signed below. In addi­tion, the collector initially indicated the incorrect date he collected the $1. The collec­tor corrected the error and initialled the correction.

6. Upon seeing the Form 9 (absent the names appearing in the one actually filed), the res­pondent sought an adjournment of the hearing in order to consider its position with respect to the discrepancies revealed on the face of the document and, if it saw fit to do so, to make written rep­resentations with respect thereto. In view of the circumstances, and there being no cogent reasons suggested as to why the request ought not be granted, the Board gave the respondent until noon on July 9, 1986 (which amount of time was agreeable to it) to deliver any written submissions it saw fit to make. The applicant was to have the right to respond, also in writing. We note that the interven­er, the objectors, and their respective counsel, had departed prior to the Board hearing from the applicant and the respondent on this issue.

7. There was no further communication from the intervener. Nothing was heard from the objectors until the Board received a letter dated August 11, 1986 from their counsel in which he makes no representations other than to state as follows:

Should the Board consider representations regarding the issues raised in the Company's letter to the Board dated July 9, 1986 or schedule a hearing regarding same, would you kindly advise your writer.

The group of objecting employees request the right to participate should the Board inquire fur­ther into the matter.

We note that the Form 6 Notice to Employees of Application for Certification and of Hearing that was posted by the respondent as directed by the Board states, at paragraph 11, that:

If you do not attend at the hearing, the Board may proceed in your absence and you will not be entitled to any further notice in the proceedings.

Notwithstanding that, the disclosure to the objectors and their counsel of the contents of the Form 9, and the knowledge of the respondent's intention to seek an adjournment of the proceedings for purposes as aforesaid, they took no position on the issue, gave no indication of any desire to make any representations of any kind, and, as we have already noted, voluntarily left the hearing prior to the Board hearing from the parties on the issue of the adjournment. In addition, the Board sent copies of the written submissions of the respondent and applicant to both the individual represent­atives of the objectors and their counsel immediately upon the receipt thereof. In the first para­graph of his letter of July 9, 1986 counsel for the respondent states:

At the hearing of this matter on July 4th, 1986, the Board granted the Respondent leave to file written representations concerning the irregularities in the membership evidence disclosed by the Union on Appendix "A" of its Form 9 Declaration. Our submissions are as follows.

[emphasis added]

The objectors must have been aware that the Board was, to use the words of their counsel "consid­er(ing) representations" with respect to the Form 9. We are of the view that the objectors chose to absent themselves from the proceedings. They have nevertheless had adequate notice of the sub­missions of the parties and have had ample opportunity to make representations with respect to the matters in issue. They have failed to do so in a timely manner or at all. Under the circumstances we are not prepared to consider any request by the objectors for a further opportunity to make representations and thereby delay the matter, to the possible prejudice of the applicant, further.

11. The Board received a six-page submission dated July 9, 1986 from counsel for the res­pondent, a three-page statement of the applicant's position by letter dated July 16, 1986, and a three-page reply dated July 24, 1986, again from the respondent. The employer's position is sum­marized at pages 5 to 6 of its July 9, 1986 letter as follows:

12. The Board should review its policy of not allowing the respondent to inspect the membership evidence and allow the Respondent to properly inspect the membership evidence in this case.

13. Failing the Respondent's opportunity to review the membership evidence, the Board should disregard any membership cards which contains irregularities declare them unreliable and order a representative vote.

14. In the alternative and at the very least, the Board should schedule a hearing to inquiry [sic] into the circumstances surrounding the irregularities and discrepancies which have been disclosed.

12 In response, the applicant submits that the discrepancies set out as "exceptions" in Appendix "A" to the Form 9 are really in the nature of clarifications and that they in no way cloud or bring into question the quality of the documentary evidence filed. The union submits that the respondent's requests should be dismissed without a hearing and that a certificate should issue. In the respondent's reply, counsel states that the applicant's representations are factual in nature and submits that, at the very least, the applicant should be required to call evidence at a hearing before the Board with respect thereto and so provide the employer an opportunity to cross-examine on the matters in issue. The employer reiterates its request that it be permitted to inspect all the mem­bership evidence filed.

13 Pursuant to the provisions of the Labour Relations Act, the certification of trade unions in this province is based primarily upon an assessment of the trade union's membership support as evidenced by membership records filed in support of an application. The Board does not enquire mm opinions about the virtues of union representation except as evidenced by the documentary membership evidence and any timely petitions filed in opposition to the application. The repre­sentation vote exists as a mechanism for ascertaining the wishes of the bargaining unit employees in cases where either the applicant union does not have the requisite support of fifty-five per cent of the bargaining unit employees which is necessary for outright certification under section 7(2) of the Act or the circumstances are such that the Board sees fit to exercise its discretion to require such a vote to be held notwithstanding that there is documentary evidence showing membership support in excess of fifty-five per cent. In certification proceedings the Board places heavy reliance upon the membership evidence filed by the union. Because of the consequences of the reliance that the Board places on what is a form of hearsay evidence which is not disclosed to the employer and is not subject to cross-examination, the Board requires a high standard of integrity in the nature and quality of the membership evidence filed. It is for an applicant trade union to satisfy the Board that every membership card upon which it relies was signed by the employee on whose be half it is tendered and that each employee has paid the initiation fee that accompanies it. It is for this purpose that the Board requires (pursuant to Rule 6) a Form 9 declaration concerning mem­bership documents to be filed in every application for certification.

14 The Form 9 declaration is so important that if one is not filed, the Board will give no weight to the union's membership evidence (see for example Pietrangelo Masonry [1981] OLRB Rep. Feb. 218). If a Form 9 is filed but it is subsequently revealed either that no inquiry was in fact made by the declarant, or that the declarant failed to indicate in it discrepancies in the membership evidence of which he was aware, the Board may dismiss the application on the basis that no weight can be given to the declaration (see Bond Place Hotel [1983] OLRB Rep. Feb. 202). Where there are irregularities or discrepancies noted in the Form 9, the Board's practice is to concern itself with the acceptability of only the cards to which these apply. In addition, where a party has information that the union or anyone on its behalf has either attempted to perpetrate a fraud on the Board with respect to the membership evidence, or have otherwise acted improperly, that party can make those allegations and again the appropriate enquiry can be conducted.

15. It is this process, and particularly the secrecy of the union membership records, which has been in effect for over thirty years, which the respondent now challenges.

16. The practice of not allowing a respondent employer to inspect membership evidence filed in support of an application for certification is more than a policy of the Board. Section 111(1)of the Act provides that:

The records of a trade union relating to membership or any records that may disclose whether a person is or is not a member of a trade union or does or does not desire to be represented by a trade union produced in a proceeding before the Board is for the exclusive use of the Board and its officers and shall not, except with the consent of the Board, be disclosed, and no person shall, except with the consent of the Board, be compelled to disclose whether a person is or is not a member of a trade union or does or does not desire to be represented by a trade union.

17. Approximately 35 years ago, the Courts had occasion to review the Board's practice relating to the secrecy of a union's membership evidence in applications for certification and the right to cross-examine with respect thereto. The issue came before the Courts in Re Ontario Labour Relations Board; Re Toronto Newspaper Guild, Local 87 and American Newspaper Guild (CIO) and Globe Printing Co., 1951 CanLII 145 (ON HCJ), [1951] 3 D.L.R. 162 (High Ct.); aff'd at 1952 CanLII 59 (ON CA), [1952] 2 D.L.R. 302 (C.A.)' affd at 1953 CanLII 10 (SCC), [1953] 2 S.C.R. 18 (S.C.C.) and arose out of a decision of the Board made pur­suant to the provisions of the Labour Relations Act, 1948. In the course of those proceedings before the Board, the respondent employer submitted that while it recognized that the Board's practice precluded it from directly examining the union's membership evidence, it had a right to cross-examine the deponent of the affidavit filed by the union to confirm the membership evidence. In support of its position, the employer asserted that it had information that the documen­tary evidence filed by the union in support of its application was not representative of the support that it in fact enjoyed at the date of the hearing. The Board rejected this submission, refused to enquire further into the membership evidence filed, and issued a certificate. At that time, the legis­lation did not contain any provision equivalent to what is now section 111(1) of the Act. The employer then applied to the High Court, by way of certiorari, to quash the certificate. In quashing the certificate, Gale J., agreed that the employer had been denied natural justice. For reasons expanded upon later in his decision, Gale J. stated (at p. 178 of the report) as follows:

It is my view that the Company did not receive a proper hearing in this instance in that it was not allowed to see the documents filed by the Union or to cross-examine the person who made a statement as to their effect and thus it was denied a reasonable opportunity of meeting the case which was made against it.

The Court of Appeal and the Supreme Court of Canada upheld this decision for essentially the same reasons. As a result, it became necessary to give the employer access to the union's member­ship records or to allow the employer an opportunity to cross-examine with respect thereto. It was at this time that the Legislature enacted what has become, with only very minor changes in the wording, what is now section 111(1) of the Act.

18. It is abundantly clear that this provision was inserted into the legislation in response to the judicial pronouncements in the Globe Printing Co decisions, so that, whatever may be required at common law, the respondent employer in an application for certification has no "right" to review the trade union's membership evidence, or to cross-examine with respect thereto. The sec­recy of the membership records and evidence is therefore enshrined in the Labour Relations Act. The legislation does entrust the Board with the discretion to disclose such records, but given the primacy of the secrecy of such evidence, that discretion must be exercised only for compelling rea­sons in circumstances where such disclosure would further the purposes of the Act.

19. The respondent in this case has not alleged that it has any evidence upon which it relies in support of the assertion that it ought to be permitted to review the membership evidence filed in this application other than what appears on the face of the Form 9 declaration. As reasons, it sug­gests; first, that the provisions of the Labour Relations Act are such that to identify an employee as a supporter of a trade union in effect provides a benefit to that person by reason that such a person would then be afforded greater protection under the Act than an employee whose sentiments are unknown; and second, the respondent submits that to refuse it access to the membership evidence would amount to failure to treat it fairly, a denial of natural justice, and a breach of section 10(c) of the Statutory Powers Procedure Act.

20. The Board is the master of its own procedure subject only to the requirements of the legislation, fairness, and natural justice. Section 103 of the Act sets out powers of the Board that are relevant to the issues raised by the respondent with respect to the Form 9 declaration. It pro­vides as follows:

103.-(1) The Board shall exercise such powers and perform such duties as are conferred or imposed upon it by or under this Act.

(2) Without limiting the generality of subsection (1)' the Board has power,

(a) to summon and enforce the attendance of witnesses and compel them to give oral or written evidence on oath, and to produce such documents and things as the Board considers requisite to the full investigation and consid­eration of matters within its jurisdiction in the same manner as a court of record in civil cases;

(c) to accept such oral or written evidence as it in its discretion considers prop­er, whether admissible in a court of law or not;

(j) to determine the form in which and the time as of which evidence of mem­bership in a trade union or of objection by employees to certification of a trade union or of signification by employees that they no longer wish to be represented by a trade union shall be presented to the Board on an appli­cation for certification or for a declaration terminating bargaining rights, and to refuse to accept any evidence of membership or objection or signifi­cation that is not presented in the form and as of the time so determined.

21. It is no easy task to determine a dividing line between natural justice and the duty of fairness. Insofar as both have the same goal perhaps it is unnecessary to do so. It does appear that the duty to act fairly is a less precise and more flexible concept than natural justice. In addition, it seems that fairness involves something less than the procedural protections of the rules of natural justice. In any case, neither fairness nor natural justice is made up of rigid norms with an unchang­ing content. What is required to satisfy them will depend upon the context of the particular case, including any applicable statutory proscriptions (see DeSmith, Judicial Review of Administrative Action, 4th ed. 1980 pages 156-277; Nicholson v. Haldimand-Norfolk Regional Board of Commis­sioners of Police, 1978 CanLII 24 (SCC), [1979] 1 S.C.R. 311.). In general, it can be said that both concepts require that a tribunal subject to them provide the parties to a proceeding before it with an adequate opportunity to be heard and to present their case. In addition, they oblige the tribunal to reach a decision untainted by bias. It is readily apparent both from the literature and the case law that neither the duty to act fairly nor the rules of natural justice necessarily entitle a party to either an oral hearing or to cross-examination.

22. We find the respondent's submission that there is a significant risk of unreliable mem­bership evidence being accepted by the Board in the absence of an opportunity for the respondent to scrutinize that evidence to be without merit. It is true that the Board erred in issuing a certificate in Bay-Tower Homes (Board File No. 3123-85-R). It is regrettable that that error, since corrected upon reconsideration, was made. However, such errors are extremely rare as a result of the careful scrutiny which is given to membership evidence filed with the Board. We are of the view that the Board's method of dealing with membership evidence is a reliable one. Nor do we see any merit in the respondent's suggestion that employees who sign union membership cards no longer require the protection of anonymity. It is true that the Labour Relations Act provides such employees with certain protections. Of course, the Act provides protections to all persons to whom it applies whether they be in favour of, neutral to, or opposed to union representation. And while these pro­tections are both important and necessary (as evidenced by the number of unfair labour practice complaints that come before and are sustained by this Board) the respondent misses the point. The object of certification proceedings before the Board is to ascertain the true wishes of the bargain­ing unit employees with respect to trade union representation. The Board's experience has been that secrecy with respect to trade union membership is essential if the true wishes of employees are in fact to be ascertained. The lack of anonymity tends to have a significant chilling effect upon both legitimate activities of trade unions and the exercise by employees of their rights under the Act, whether or not unfair labour practices are perpetrated by unscrupulous employers (and we do not suggest that this respondent is such an employer). Finally, we must have regard to section 111(1) of the Act. The Legislature has directed that records that may disclose whether a person is/is not a member of a union or does/does not desire representation by a union shall not be disclosed except with leave of the Board. This can only mean that such records, which include the membership evi­dence filed in support of an application for certification, are not to be revealed except in excep­tional circumstances where the Board finds that there are compelling reasons to do so. Conse­quently, to accede to the respondent's request would be to, in effect, amend the Act. To refuse the respondent's request is to apply and give effect to the Act. It is the latter which we are bound to do. In the result, we find that, as a general matter, there is neither a breach of any duty of fairness nor any denial of natural justice to maintain the secrecy of union membership evidence.

23. Nor do we find it appropriate to open the membership evidence filed by the union in this particular application to the scrutiny of the respondent employer. The facts relevant to the Board's considerations in this respect are found in the Form 9. It is instructive to examine these more closely. Are the matters referred to in Appendix "A" true "irregularities" in the sense that they should cause the Board to question the applicant's membership evidence? As the respondent points out, there are two kinds of discrepancies noted as "exceptions" in the Form 9 filed in this proceeding. The first affects nine cards and reveals that in each case the application for member­ship was executed on one day and the one dollar fee was collected and receipted the next. This fact situation is unlike that in any of the cases cited by the respondent in support of its submission that this makes the applicant's membership evidence unreliable in whole or in part.

24. In Watson Manufacturing Company of Paris Limited, [1967] OLRB Rep. Dec. 862 at paragraph 12 (page 864) the Board stated as follows:

The practice of signing cards in the manner followed in the case of Mrs. Spence is obviously a dangerous practice and is open to abuse and error. A union representative who engages in such practice runs a great risk. In a prolonged campaign involving a large number of people, the memory of the collector is not always reliable for the purpose of completing Form 8 (now Form 9) or for the purpose of testifying concerning the circumstances in which a card was signed and the initiation fee paid. Where a collector engages in the practice of signing and dating member­ship cards without collecting money at the time of signing, he runs the risk of having his practice challenged. Since his memory is not infallible, the dangerous practice is very suspect and his declaration concerning membership documents is unreliable unless full disclosure of all facts is made.

In that case, however, the respondent employer had alleged a "non-pay"; that is, that an employee said by the applicant union in the documentary evidence submitted, to have both signed a member­ship application and paid the initiation fee, had not in fact done so. The card in question purported to how that the employee had both signed this membership application and paid the fee on the same day. The union's viva voce evidence, at the hearing convened to enquire into the non-pay allegation was that the fee had been collected, not at the time of signing, but approximately one week later, even though this was not disclosed in the declaration concerning membership evidence that had been filed. In fact, as found by the Board, the fee had never been paid. It was this and the fact that the same thing had occurred with respect to other cards filed by that applicant that caused the Board in that case to dismiss the application for certification to which that membership evidence related. (There were applications by two unions in that case.) In addition, at paragraph 14 (page 864) of its decision in the Watson case, the Board said:

Lest we be misunderstood, we wish to point out that if we had found that Mrs. Spence had sub­sequently paid one dollar after March 3, 1967, the fact that the receipt is dated March 3, 1967 would not have itself been necessarily fatal to the application. Since such facts should only be disclosed in Form 8 (now Form 9) their non-disclosure cast doubt upon the reliability of other evidence of the union concerning challenged cards. In this case we have the additional discrepancies appearing in Mr. Dallorto's evidence which contributed greatly to the final result.

[emphasis added]

This suggests not only that such discrepancies should be noted in the Form 9, but that the "danger­ous practice" referred to does not necessarily go to the heart of the membership evidence. Further­more, the "dangerous practice" disapproved of by the Board is not the signing of cards on one day and collecting the fee on another, but rather refers to the completion of the card, that is, the appli­cati9 n and the receipt, at the same time but without collection of the requisite fee at the time of signing.

25. Similarly, Olympia and York Developments Limited [1977] OLRB Rep. Dec. 852 also involved a non-pay allegation by the respondent employer. Just as in Watson, both the application and receipt were signed and dated the same day, notwithstanding that the fee was not in fact paid at U e time. Again, the collector testified that he had collected the fee some time later and again the J3oard found, on the evidence before it, that he had not collected payment at all. In dismissing the application as a result of this, the Board cited paragraph 12 of the Watson decision that is set out above. Again, the practice so strongly disapproved of by the Board (in addition to the non-pay itself was the signing and dating of both the application and receipt without payment being made at the same time. Further, in both Watson and Olympia and York, the reason for the Board's con­cern was that the membership evidence filed by the applicant union did not reflect what had in fact occurred and it is that which rendered the membership evidence unreliable.

26. In Walbar of Canada Inc., [1982] OLRB Rep. Nov. 1734, the Form 9 filed disclosed that the receipt portion of an application for membership had been signed by both the member and the collector two weeks prior to the money being paid. In that case the circumstances were such that the Board concluded that no material purpose would be served by enquiring further into the matter but it did note that that kind of irregularity did not go to the heart of the membership evi­dence and would at most affect the cards signed by that particular collector. The real point, how­ever is that, once again, the practice that draws the criticism of the Board is the failure to collect the requisite payment at the same time as the card is signed and dated by the collector.

27. The applicant in this case is not guilty of indulging in the practice criticised by this Board in Watson, Olympia and York, Walbar, or any other decision. Indeed, the applicant by hav­ing the employee applying for membership the actual date that he signed and then dating the receipt portion on the actual date of collection and payment has followed the procedure contem­plated in the Board's earlier decisions. The Board finds nothing improper in the actions of the applicant.

28. The second category of discrepancy identified by the respondent affects three cards and relates to a situation where an applicant for membership has mistakenly signed in the space reserved for the collector, as well as in the places where he was to sign. Rather than completing another card in its entirety, the collector struck out the signature that appeared in the wrong place and signed below it. We do not wonder why the respondent was unable to find any decision of the Board dealing with this kind of situation in support of its suggestion that this is unacceptable. Not only is there nothing improper in this procedure, but it seems to us to be a sensible and practical manner in which to proceed.

29. In addition, we note that in Radio Shack, [1978] OLRB Rep. Nov. 1043, the Board refused to permit the employer to cross-examine a witness called to the witness stand by the union with respect to the Form 9 (then Form 8) declaration. In that case, unlike the situation here, the employer had alleged that the membership evidence filed in support of the application for certifica­tion had been obtained improperly and called evidence in support of its charges. At paragraph 30 (page 1051) of its decision, the Board stated as follows:

30. The Board accepts the Form 8 (now Form 9) attestation on its face unless allegations are made which, if proven, would cause the Board to find that the statements attested to therein are false. Is such an allegation is made the Board will conduct an inquiry into the bona fides of the Form 8. Counsel for the company relies on evidence given before the Board which he maintains establishes that Mrs. Lamb accepted cards between April 17 and April 24, 1978, thanked the person submitting the cards, said nothing further and mingled these cards with other cards such that she could not identify the individual cards submitted to her at the time. Even if these alleged facts were to be proven in the course of a Form 8 inquiry, they would not of themselves support a finding that the Form 8 filed in this matter constitutes a false declaration. A Form 8 is not defective merely because inquiries were not made of the collector(s) at the time cards are submitted and neither is it defective if the inquiry is not on a card by card basis. It is sufficient that each collector be asked at a time prior to the signing of the Form 8, whether or not he received one dollar or other suitable payment from each of those he signed into membership and on whose behalf he submitted membership cards. There is no allegation that any of the per­sons who signed membership documents did not in fact sign them or pay the required member­ship fee. All of these documents were properly witnessed and countersigned and there is no evi­dence before us of any irregularity or impropriety which would cast doubt on the membership documents themselves. There is no allegation before the Board that the necessary inquiries were not made by Mrs. Lamb and relayed to Mr. Ingle (the Form 8 declarant) or that they were not made by Mr. Ingle himself prior to the signing of the Form 8. In the result, the Board does not have before it allegations which, if proven, would support a finding that the Form 8 declaration filed in this matter constituted a false declaration. Accordingly, the Board must decline to undertake a formal inquiry in respect of the accuracy of the Form 8 declaration.

In dismissing an application for judicial review of the Board's decision, the Divisional Court held that the refusal of the right of cross-examination was not a denial of natural justice (Re Tandy Elec­tronics Ltd. and United Steelworkers of America et al., (1979) 1979 CanLII 1914 (ON HCJ), 26 O,R, (2d) 68).

30. In each instance in this case, the documentary evidence shows that the employee signed an application for membership in the union and made the required payment. There is no sugges­tion that any employee purported to have signed and paid and failed to do either of these things. Nor are we persuaded that any of the "exceptions" noted in the applicant's Form 9 declaration casts any doubt upon the reliability of the membership evidence filed. In our view, the corrected cards constitute acceptable evidence of membership. In addition, the manner in which the appli­cant dealt with them causes us not to be concerned with the propriety of the remaining cards.

Indeed, the disclosures by the union tend to reinforce the declaration made. There is nothing before the Board which would cause us to conduct any further inquiry into or behind the Form 9. We note that in the course of his submissions, counsel for the respondent stated that the union "should not be given a medal" for revealing these discrepancies. The Board does not award medals but perhaps the applicant should be commended for being so scrupulous in the preparation of its Form 9 declaration.

31. It is noteworthy that the respondent has made no express allegations of impropriety with respect to the payment of the initiation fee, the validity of the signatures on the membership cards, or the truth of the Form 9 declaration. Nor has there been any allegation, express or implied, that the membership evidence was obtained through coercion or intimidation. There has been ample opportunity to raise any such matters. In addition, as we have already found, the discrepancies noted in the Form 9 casts no cloud over the membership evidence. Why then does the respondent seek an oral hearing and cross-examination? The only purpose of such an exercise can lie to permit the respondent to troll the waters in an attempt to land "a big one" or to delay the matter. Neither the duty of fairness nor the rules of natural justice contemplate such fishing expe­ditions. In this case there is no reason whatsoever to conduct any further hearing or other enquiry into the matter.

32. The respondent requested and was given the opportunity to make written submissions. This was a sensible way to proceed and in making its submissions, it has had a full opportunity to state and argue its case.

There is not even a hint that it has anything further to say on the matter which, in combination with the Board's conclusions with respect to the effect of the discrepancies, brings us to a point where it is clear that no useful purpose would be served by holding any further oral hearing.

33. We note that the situation here is much different from that in Baltimore Aircoil Inter­merican Corporation v. Ontario Labour Relations Board and United Steelworkers of America, 1981) CLLC 14,130 where the Divisional Court held that the Board erred in refusing to hear evi­dence that a party wished to adduce. There is no suggestion here that the respondent has any evi­dence that it wishes to place before the Board. Nor, in the circumstances of this case, do fairness, natural justice, per section 10(c) of the Statutory Powers Procedure Act give the respondent any right to require witnesses to be called for the purposes of cross-examination (with respect to sec­tion 10(c) of the Statutory Powers Procedure Act, see Re Ellis and Ministry of Community and Social Services, (1980) 28 0. R. (2d) 385 Div. Ct.).

34. In the result and having considered the documentary evidence filed, the Form 9 Decla­ration, and the representations of the parties, the requests of the respondent are dismissed. In view )f the fact that the ultimate determination of the matters in dispute with respect to the bargaining unit cannot materially affect the Board's determination in this regard, we are satisfied that more than fifty-five per cent of the employees of the respondent in the bargaining unit at the time that he application was made, were members of the applicant on June 25, 1986, the terminal date fixed or the application and the date which the Board determines under section 103(2)(j) of the Act, to e the time for the purpose of ascertaining membership under section 7(l) of the Act.

35. Accordingly, the Board pursuant to its discretion under section 6(2) of the Act and )ending the final resolution of the composition of the bargaining unit, hereby certifies the appli­cant as bargaining agent for all employees of the respondent at the 33 Greenbelt Drive in the Regional Municipality of Metropolitan Toronto, save and except assistant supervisors, persons above the rank of assistant supervisor, office, clerical and sales staff, night drivers, building maintenance staff, persons regularly employed for not more than twenty-four hours per week and stu­dents employed during the school vacation period.

CLARITY NOTES:

(1) Mail room staff, messengers, stock counters and warehouse clerical staff, are included in the "office and clerical group" and are therefore excluded from the unit, and

(2) persons currently classified as dispatcher and shipper, and any persons who in the future have similar duties and responsibilities including super­visory responsibilities shall be deemed to be supervisors and so are excluded from the bargaining unit.

36. A formal certificate must await the final determination of the bargaining unit.