[1986] OLRB Rep. May 603
2183-85-R Bakery, Confectionary and Tobacco Workers International Union, Local 181, Applicant, v. Dough Delight Ltd., Respondent, v. Group of Employees, Objectors
BEFORE: Owen V. Gray, Vice-Chairman, and Board Members P. J. 0 'Keeffe and
R. W Pirrie.
APPEARANCES: James Hayes, Roman Stoykewych, Domenic Ricci and Sean Kelly for the applicant; R. C. Filion, Paul Young, D. Daniels, and S. Ajmera for the respondent; Richard Morrow for the objectors.
DECISION OF THE BOARD; May 20, 1986
- This is an application for certification in which a question arose whether certain employees had paid a dollar as stated in membership documents filed with the Board in support of the application. Each of those documents is in form of a card with two distinct parts: an application for membership signed by the applicant and a receipt and acknowledgement of payment signed by the collector and the applicant. The latter part of the card is in this form:
$1.00 Initiation Fee
Received by ______________________ Signature of Collector
I hereby certify that
I paid the above amount
Date ————-, 19 _________________________
Signature of Applicant
As the Board's Rules of Procedure require, the applicant filed a declaration concerning membership documents in Form 9, the third paragraph of which reads:
"(Where the documentary evidence consists in part of receipts or other acknowledgments of the payment on a 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:"
No exceptions are noted below this paragraph. The declaration is signed by Joe Potok, the President of the applicant.
Mr. Potok did not solicit cards himself. All of the cards were collected by employees of the respondent. The major collectors were S. Singh and M. Bains - between them they collected over four-fifths of the cards submitted by the applicant.
One of the cards Bains collected was signed by A. Assoweh. Assoweh did not pay a dollar; another employee paid a dollar for him. When Bains handed in this card he told Potok that he had not received a dollar directly from Assoweh. Potok then told Bains that he should not have collected the card in that manner. Bains says Potok gave him no further instructions, however, and kept the card. Potok says he gave the Assoweh card and accompanying dollar back to Bains and instructed him to go back and collect a dollar directly from Assoweh. In either event, Bains did not go back and collect a dollar from Assoweh, and the Assoweh card was among those filed with the Board. On either version of the transaction, there can be no doubt that Bains and Potok both knew that the circumstances of the collecting of the Assoweh card were improper, and the presence of that card among cards submitted to the Board was the result of a deliberate attempt to mislead by either Bains or Potok. If Bains' evidence of this transaction with Potok were correct, that would indicate that Potok deliberately misled the Board by submitting a card knowing it had been collected in a manner inconsistent with the representation he made by signing the Form 9 declaration without noting exceptions in paragraph 3. If Potok's version of the transaction is correct, then Bains must have resubmitted the card to Potok on a subsequent occasion and lied to Potok when Potok then asked whether a dollar had been collected directly from each of the persons whose cards were then being submitted. We accept Potok's version, since it makes little sense for Potok to have told Bains that the card was collected improperly and then to have done nothing about it.
One of the cards Singh collected was signed by A. Salad. Salad did not pay Singh a dollar. The dollar Singh put with Salad's card came from another employee who was present at the time Salad handed his signed card to Singh. When Singh later handed this and other cards to Potok, Potok asked him whether he had collected a dollar from each of the signers. Singh answered "yes", knowing that this was not true with respect to Salad's card. There is no explanation whatsoever of Singh's failure to do as Bains did and bring the circumstances of his collection of the Salad card to the attention of Potok.
This is an application for certification to which section 7 of the Labour Relations Act ("the Act") applies. That section requires the Board to determine what percentage of persons employed in the appropriate bargaining unit were members of the applicant trade union on December 9, 1985, the terminal date fixed for this application, which the Board determines under section 103(2)(j) to be the time for ascertaining membership under subsection 7(1). The Board's Rules require that evidence of membership be filed in documentary form, and section 111 of the Act provides that such membership documents are for the exclusive use of the Board and cannot be disclosed without the Board's consent. Because of the weight which it will ordinarily give to membership documents, the Board requires assurances that they are reliable evidence of their contents, and this is the purpose of the Form 9 Declaration. The Board's standards with respect to disclosure of irregularities have been expressed in any number of decisions, of which the following passage from Valley Transportation Company Limited, [1963] OLRB Rep. Nov. 448, is representative:
It need hardly be pointed out, that it would be impossible for the Board to interview each and every employee in respect of whom evidence of membership is filed in applications for certification. Further, 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 are, except in the special circumstances where the Board consents to their disclosure, matters which are protected from disclosure by the provisions of section 83 [now 111] of the Act. By the very nature of things, therefore, the Board must rely heavily and almost entirely on documentary evidence when considering the facts relied on as constituting proof of the union's membership. As the documents submitted as evidence or membership are not subject to any examination by the other parties to the proceedings, the Board must be most circumspect and meticulous in its examination and acceptance of them. 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.
See also Webster Air Equipment Company Ltd., (1958) 58 CLLC ¶18,110; National Steel Car Corporation Limited, [1966] OLRB Rep. Jan 738; and, Collingwood Shipyards, [1967] OLRB Rep. June 246. Although the Board's decisions in this area are often couched in admonitory language, it is important to remember that the Board's object in any inquiry into undisclosed irregularities is not to punish non-disclosure but to determine what weight can be given to the impugned membership documents and, in light of the non-disclosure, to the other membership documents filed with them and the supporting Form 9 declaration, as evidence of membership.
Here we have two collectors who, together, collected over 80% of the membership evidence submitted with this application. Both knew it was important that a dollar be collected directly from the applicant. Both knew that this is what the Form 9 declarant was asking them when he made his inquiries, and it is clear that each of them deliberately misled the Form 9 declarant with respect to at least one card.
The Board has no jurisdiction to grant outright certification unless it "is satisfied that more than 55% of the employees in the bargaining unit are members of the trade union" at the relevant time. It has no jurisdiction to order a representation vote for the purpose of resolving an application for certification unless it "is satisfied that not less than 45% ... of the employees in the bargaining unit are members of the trade union" at the relevant time. Although the percentage requirements are different, the requirement that the Board be satisfied with the evidence of membership is the same for a vote as for outright certification. In both cases, the evidence relied upon must be supported by a reliable Form 9. In its application to the membership evidence collected by Singh and Bains, the reliability of the Form 9 declaration depends entirely on the reliability of the reports they made to Potok. In view of their prominent roles in the organizing campaign and their having knowingly and deliberately misled Potok on at least one occasion each, we are not prepared to find that their reports to him were sufficiently reliable or trustworthy as to satisfy us that the pieces of paper they signed as collectors constitute evidence of membership which complies with the statutory definition in clause l(l)(l) of the Act. Accordingly, because most of the cards were collected by one or other of those 2 collectors, we are unable to find that not less than forty-five percent of the employees in the unit were members of the applicant at the relevant time.
The instances of "non-pay" ultimately established by the Board's inquiry came to light as a result of the actions of a person acting on behalf of the employer - actions which counsel for the applicant says constitute an unfair labour practice. He says this should be taken into account, and that anything short of outright certification would amount to a reward to the employer for these unfair labour practices. We note that the alleged unfair labour practices occurred after the membership evidence in question had been collected and submitted to the Board. The Act clearly defines in section 8 the circumstances in which the occurrence of employer unfair labour practices can diminish the standard or quantity of membership evidence which an applicant trade union must otherwise establish in order to be granted either a representation vote or outright certification. The applicant has not invoked that section. We are focusing solely on the reliability of membership evidence, and not on the punishment or reward either of the trade union or of the employer. We cannot ignore facts relevant to a matter which we have a statutory duty to decide merely because of the way their existence was discovered and brought to our attention. We are not satisfied that there is reliable membership evidence in sufficient quantity to grant outright certification or order a vote and so have jurisdiction to do neither. If the respondent or someone acting on its behalf has committed some unfair labour practice, a question we are not called upon to decide, then the appropriate response may be sought from the Board and, if the applicant is so advised and receives Board consent, the court.
Our decision to reject membership evidence collected by Singh and Bains is dispositive of this application and makes it unnecessary to consider the adequacy of Potok's inquiries with respect to sub-collectors and the weight which would have been given to the other membership evidence submitted, because even if it were given full weight, that other evidence was quantitatively insufficient. We do wish to note, however, that nothing in the evidence we heard leads us to conclude that the applicant or its President, Joe Potok, has made any conscious attempt to mislead the Board.
Accordingly, this application is dismissed without a bar and without prejudice to any subsequent application based on fresh membership evidence.