[1986] OLRB Rep. February 295
2237-85-R International Association of Machinists and Aerospace Workers, Applicant, v. Westinghouse Canada Inc., Respondent, v. Group of Employees, Objectors
BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members W. G. Donnelly and L.C. Collins.
APPEARANCES: G. Charney, Thomas Steele, Cindy Wilkey, Thomas Lee and David Ritchie for the applicant; Paul Jarvis, R. Darwin and R. Wilson for the respondent; M. G. Ho ran and Bruce Reid for the objectors.
DECISION OF THE BOARD; February 7, 1986
This is an application for certification.
The name of the respondent is amended to read: "Westinghouse Canada Inc.".
At the conclusion of their meeting with a Labour Relations Officer of the Board, the parties were aware that the applicant was in a certifiable position, and that the statement filed by employees in opposition to the application was numerically not relevant. Subsequently, however, the Board disclosed to all parties that the objecting employees had filed an allegation of a "non-pay", and that the Board had determined that a prima facie case existed for carrying out a formal inquiry into the allegation.
At that inquiry, both the employee involved, Ms. Pat Bochert, and the union's collector, Mr. Ted Kewley, testified under summons from the Board, and gave their account of what transpired with respect to the application for membership. The two accounts amounted to flat contradictions with respect to what was done and said on the evening in question, and on the days that followed that event. Ms. Bochert testified that Mr. Kewley had "put the dollar" in for her, as she had no money at the time, and that he contacted her on several occasions thereafter in an attempt to recover the loan. Mr. Kewley testified that at the end of their conversation Ms. Bochert took a dollar from her purse and paid him, and that there was no further discussion subsequent to that. The two versions are obviously irreconcilable. Yet there was nothing in the demeanour of either witness to indicate to the Board that he or she was not telling the truth.
It might also be noted that the Board in this case would not have as a last resort the objective evidence of the employee having signed a document acknowledging payment of one dollar, in the event the Board were to find the credibility of the testimony evenly balanced. Compare The Watson Manufacturing Company of Paris Limited, [1967] OLRB Rep. Dec. 862; Sterling Packers Ltd., [1972] OLRB Rep. July 705; Lilo-Rail of Canada, [1983] OLRB Rep. May 672. Here the space on the receipt indicating "$1 .00" as being paid by the employee was, according to Mr. Kewley, blank at the time he received his cards, and neither he nor Ms. Bochert filled it in. It was in fact filled in in a different ink from the rest of the card, and the inference from Mr. Kewley's evidence is that it must have been filled in at some later point after he turned the card in to the union. The use of a different pen to fill in the "$1.00" space, we might add, was, as we advised the parties, true of a number of Mr. Kewley's cards, as well as a number of the cards collected by others. The evidence of Tom Steele, who received the cards, however, was that no cards were completed in that fashion after receipt by the union office, and that the collectors must have been using cards that had been partially filled out as "demo's" in the meetings preparatory to the campaign. That explanation, of course, would not square with Mr. Kewley's account of having begun with blank cards.
With respect to the non-pay itself, we would incline toward the evidence of the employee Pat Bochert, on the basis of its internal consistency and overall credibility as an account. In particular, while we recognize that Ms. Bochert eventually became an active "petitioner" opposed to the union (whom she felt had lied to her about the percentage of employees already signed up and who was therefore far from a disinterested witness, we are struck by the fact that she readily admitted that she regarded Mr. Kewley "putting the dollar in for her" as a loan, that she and Mr. Kewley frequently loaned each other small amounts of money for food, etc. at work, and that she felt obliged and intended to repay Mr. Kewley at the time.) There is some question as to whether this even amounts to a "non-pay", on the basis of the Board's current jurisprudence; see Shaw Festival Theatre Foundation, [1983] OLRB Sept. 1579; and especially, Laidlaw Wire, [1985] OLRB Rep. Oct. 1479.) If an employee opposed to the union decided to conjure up an entire story covering several days for the purpose of impugning the union's membership evidence, or even of indicating that she never really intended to become a member, such acknowledgements of the bona fide "loan" nature of the transaction seem less than likely. We do not have to decide, however, whether what ultimately occurred in this case was a "non-pay"~ as we have dealt with this issue only as a prelude to the problems which have arisen over the Form 9, and the reasons why the Form 9 is designed as it is.
Mr. Kewley was one of the leading co-ordinators of the organizing campaign, all of which was carried out by in-plant organizers. Mr. Kewley actually collected the largest number of cards amongst the organizers, and it was he who received the cards from the other collectors and delivered them to Tom Steele, the Ottawa-area business representative in charge of the campaign for the applicant. Mr. Kewley testified that Mr. Steele had emphasized several times with the organizing committee the importance of getting the dollar, as he had had cases thrown out in the past over it. Mr. Steele did not, however, instruct Mr. Kewley to make any inquiries of the other collectors for the purposes of the Form 9 Declaration Concerning Membership Documents, and Mr. Kewley made none. Neither did Mr. Steele make any inquiries of Mr. Kewley when he turned over the bundle of cards at the end of the campaign. Rather, both men clearly assumed that, because the number of cards and the number of dollars matched, no further inquiries were called for.
The critical paragraph of Form 9, paragraph 3, reads:
(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 acknowledgment of payment as collector, EXCEPT IN THE FOLLOWING INSTANCES:
Mr. Steele testified that he had been working for the union for the past 20 years. Until recently, however, he had been in the Toronto office, which employed a full-time organizer, so that this campaign in Renfrew was the first one that he had had the responsibility for in years, and the first occasion to become involved once again with the Board's procedures for authenticating and filing membership evidence. Mr. Steele testified that he and others went over and over the cards to make sure they were not deficient in any way, and when he discovered that some of the "signatures" had been printed, he sent the cards back to be re-signed. Mr. Steele also testified that he had exhorted the in-plant committee at their one and only organizing meeting to delay the campaign until more training sessions could be held, but the committee was adamant about starting at once. Mr. Steele accordingly drilled them on what spaces had to be filled out on the card, and the importance of getting the dollar in every case.
Mr. Steele was a crushingly candid witness, and it was obvious that even at the point of giving his evidence, he was not aware of the necessity, for the purposes of the Form 9 declaration, of making inquiries of the persons who actually collected the dollar. Indeed, when asked in cross-examination whether he had read the Form 9 before he signed it, he responded: "Probably".
Counsel for the applicant acknowledges the problems that the evidence has disclosed on the Form 9 inquiries, but argues that the Board should order a vote (the same result as would flow if the Board considered it appropriate to discount all of the cards collected by Mr. Kewley) on the grounds that:
(1) the applicant filed cards for such a large percentage of the bargaining unit;
(2) diligent efforts were made by Mr. Steele, in his own way, to ensure that a dollar was collected in each case; and
(3) there clearly has been no attempt by the Form 9 declarant to mislead the Board.
It is difficult to talk about the level of membership evidence when the reliability of that very evidence has been placed in doubt however. And the present case bears remarkable similarities to another case of the Board decided not long ago, in Kitchener News Company Limited, [1980] OLRB Rep. Nov. 1656. That case is worth referring to at length, both for its facts and for its review of the law.
A potential problem with the Form 8 [now 9] Declaration surfaced during an examination of the circumstances surrounding the solicitation of the membership card of Joe Solazzo. Mr. Solazzo's membership card is signed in the two places as required, and the confirming collector's signature is that of Wendy Woods. Ms. Woods, however, was not the person who witnessed Solazzo's signature or collected a dollar from hini. Ms. Woods apparently pre-signed the membership card, which was subsequently given to Pat Lichty. It was Ms. Lichty who actually solicited Mr. Solazzo's support and, it appears, collected the required dollar payment from him some days later. Ms. Lichty returned the card to Ms. Woods with a dollar of her own. Ms. Woods, in turn, gave the card to Betty Henry, so that it could be included with the other cards supporting the union's certification application. There is no evidence of any inquiry by Ms. Woods of Ms. Lichty concerning the manner in which Solazzo's card was solicited, nor is there evidence of any inquiry by Ms. Henry with respect to this matter. None of the witnesses could recall such inquiries being made.
Betty Henry was called to give evidence concerning the extent of her inquiries prior to signing the Form 8 Declaration. It should be noted, moreover, that Ms. Henry was "collector" for only seven of the cards tendered in evidence. There were other collectors for the other cards, and consequently in order to fulfill the requirements of paragraph 3 of Form 8 it would have been necessary for Ms. Henry either to have been present when the other cards were signed, or to have made the inquiries concerning the circumstances in which they were signed. The evidence before the Board disclosed neither.
Ms. Henry testified that she had no recollection of malring inquiries concerning the Solazzo card, nor was it her practice to make such inquiries in every case prior to signing the Form 8 Declaration. She indicated that she made efforts to train employees, and impressed upon them the necessity of soliciting membership evidence properly; but, having done so, she relied on this training rather than on her own inquiries when she signed the Form 8 verifying that the membership evidence was proper. As the case of the Solazzo card indicates, this was not necessarily the case, and this irregularity might well have been revealed had Ms. Henry undertaken the inquiry contemplated by paragraph 3 of the Form 8 declaration.
The knowledge which is required as a precondition to signing the Form 8 Declaration was outlined by the Board in National Steel Car Corporation Limited, [1966] OLRB Rep. Jan. 738 at paragraph 13:
"It is readily apparent that a person completing Form 9 must be seized with some type of knowledge in order to satisfy the requirements of item 3 cited above. This knowledge may be personal knowledge (i.e.) knowledge gained by either acting as the actual collector or knowledge gained by being personally present and actually witnessing the transaction between the collector and the member wherein the membership card was signed and payment of money made by the member to the collector.
The other type of knowledge which is acceptable is that knowledge gained from inquiries made of the persons who actually acted as collectors, or the persons who made the necessary inquiries of the actual collectors.
The requirement that inquiries be made is obviously not an onerous one or one that imposes an undue burden on the applicant; however, the requirement is that inquiries be made.
In order that inquiries be meaningful it is obvious that they must be made after the event. Instruction given to collectors prior to the signing of members may be helpful or necessary in the carrying out of an organizing campaign, however, such instructions do not obviate the necessity of making the inquiries required for the proper completion of Form 9. (See Dominion Stores Limited case, [1964] OLRB Rep. Dec. 447).
In the instant case, Mr. Storey, prior to completing Form 9 made inquiries of Mr. Cooke. However, Mr. Cooke had made no inquiries of Mr. Griffin and in turn Mr. Griffin had made no inquiries of other persons who had acted as collectors. It is readily apparent that the inquiries made by Mr. Storey were made of a person who had no direct knowledge of the collectors and the failure of Mr. Cooke and Mr. Griffin to make inquiries frustrated the purpose of Mr. Storey's inquiries. Where the officers of an applicant trade union have themselves frustrated the inquires made by the person who completes Form 9 and by their failure to follow through with their own inquiries, render the inquiries made by such persons meaningless, we must find that Form 9 in such circumstances cannot serve the purpose for which it was intended and in such circumstances is a nullity. In arriving at this conclusion, the Board has noted with approval the Valley Transportation Company Limited case, [1963] OLRB Rep. Nov. 448, wherein the Board said at p. 452:
'The Board must expect and insist that persons who file applications for membership cards and receipts and Form 9 as evidence of membership, take all necessary precautions and care to ensure that the information contained therein is true and accurate. The Board is entitled to demand the highest standards of integrity, disclosure, and accuracy on the part of those who submit such evidence and where undisclosed inaccuracies of material facts are later brought to its attention, to take a strict view of them."'
[emphasis added]
The standard enunciated by the Board in National Steel Car, supra, has been consistently applied in other cases in which the same issue arose. It is a standard which is well known in the labour relations community, and the cases on point are legion (see for example: Puretex Limited, [1972] OLRB Rep. June 676 and cases cited therein; Stanley Steel Company Limited, [1972] OLRB Rep. Feb. 181; and N. D. Supermarket Limited, [1976] OLRB Rep. March 112; Triad Triumph Limited, [1976] OLRB Rep. March 115; Country Village, [19761 OLRB Rep. July 373; The Alexandra Hotel Limited, [19721 OLRB Rep. Nov. 963; and more recently Trent Valley Lodge Limited, [1980] OLRB Rep. June 926). The purpose of the Form 8 inquiry (and the "second check" that it builds into the system) is equally clear. The Board must place total reliance on documentary evidence - written hearsay, often solicited by inexperienced laymen, yet not revealed to the employer or subject to cross-examination (see section 100 of the Act). On the basis of that evidence, a trade union may be certified as the employees' bargaining agent without recourse to a representation vote. Indeed, uniess some specific irregularity is brought to the Board's attention, the Board will normally place total reliance on the Form 8 Declaration and will not undertake any formal inquiry concerning membership documents which appear to be regular on their face. In the present case, for example, the Form 8 problem would never have come to light had it not been for the disclosure of an irregularity which would not have been apparent on the face of either the Form 8 Declaration or the membership card itself. To avoid such problems, the Board has always held that the person signing the Form 8 must be meticulous and comply strictly with its requirements.
Ms. Henry's evidence amounts to this: that she has no specific recollection of making any inquiry concerning a card which is clearly irregular, and that it was her practice to rely on proper training of employee collectors rather than, in each case, making specific inquiries of them, after the fact, concerning the manner in which their cards were collected. In other words, the evidence indicates that the required inquiries were not made, and accordingly the Form 8 Declaration can only support those membership documents which Ms. Henry solicited herself. This conclusion is not intended to impugn Ms. Henry's integrity, or suggest that she has intentionally sought to mislead the Board. We believe that she merely misconstrued the nature and extent of the inquiry required of her. The Board must find in the circumstances of this case, however, that the membership evidence solicited by persons other than Ms. Henry herself is not supported by the Form 8, does not meet the strict standard required by the Board, and consequently, should not be considered.
The application is dismissed.
We find the present applicant to be in a similar position. While this approach by the Board may appear to be somewhat "technical" - and in fact, we acknowledge that it is - there is a process at stake here which is very much in the interest of trade unions generally. And with that process must come acceptance and recognition of the normal safeguards. The present application is accordingly dismissed.