[1986] OLRB Rep. January 148
1636-85-R Labourers' International Union of North America, Local 1081, Applicant, v. Rowad Pipeline Company Ltd., Respondent
BEFORE: N. B. Satterfield, Vice-Chairman, and Board Members I. M. Stamp and H. Kobryn.
APPEARANCES: D. Chiasson for the applicant; Louisa Davie and Keith Mills for the respondent.
DECISION OF THE BOARD; January 21, 1986
1In this application for certification the applicant filed 4 combination applications for membership and receipts. The combination applications for membership are signed by the employees and the receipts are countersigned and indicate that a payment of $1.00 has been made within the six month period immediately preceding the terminal date of the application. The money was collected by more than one person. The applicant also filed a duly completed Form 80, Declaration Concerning Membership Documents, Construction Industry.
2The respondent filed a reply, a list of employees containing four names on schedule "X' and specimen signatures within the time fixed in accordance with the Labour Relations Act and the Board's Rules of Procedure.
3The Board finds that the applicant is a trade union within the meaning of section 1(l)(p) of the Labour Relations Act.
4The Board further finds that this is an application for certification within the meaning of section 119 of the Labour Relations Act.
5The Board further finds that this application for certification does not relate to the industrial, commercial and institutional sector of the construction industry referred to in section 117(e) of the Labour Relations Act.
6Section 102(14) of the Act gives the Board the discretion to determine applications for certification in the construction industry without the need of a hearing. The Board usually exercises its discretion to process applications without a hearing unless the pleadings raise an issue which requires that the parties have an opportunity to present evidence and make representations respecting the application. In the instant case, the reply and lists of employees filed by the respondent Rowad Pipeline Company Ltd. ("Rowad") raised an issue of the number of employees at work on the date of the application in the bargaining unit sought by the applicant Labourers' International Union of North America, Local 1081 ("the union"). This issue caused the Board to authorize a Board Officer to inquire into and report to the Board on the lists of employees and the composition of the bargaining unit. Subsequent to the parties meeting with the Board Officer, they agreed that there were two employees in the unit and that there was no need for the Board to go further with its inquiry.
7The agreement of the parties ordinarily would have allowed the Board to complete the processing of the application without need for a hearing. Shortly after Rowad and the union reached their agreement, however, Rowad's solicitors wrote to the Board stating that it had come to the attention of Rowad that one of the employees " ... did not pay one dollar ($1.00) as required pursuant to Section [l(l)(l)(ii)] of the Labour Relations Act.". The Board, following its customary procedure, assigned one of its officers to interview the employee. The interview led to the employee signing a statement that, amongst other things: he had signed a blank application card without reading it, thinking that he was signing an application for a job; he could only recall signing the card in one place, not two; and, he was not asked to pay any money and did not pay any money to any representative of the Labourers' International Union of North America.
8On the basis of that information, the Board notified the parties that it was listing the application for hearing to inquire further into the allegation that the employee made no payment to the union and into the quality of the evidence of membership submitted by the union in support of its application. The Board also advised the parties that it had summonsed to attend the hearing the following persons whom the Board believed to have knowledge of the facts: Victor Martins, Ernie Bairos and David Strang. Martins is the employee whose application for membership in the union is at issue. Ernie Bairos is the business manager of the union whose signature appears on Martins' application card as the collector of a one dollar payment. David Strang is assistant business manager for the Ontario Provincial District Council ("the Council") of the Labourers' International Union of North America and a lawyer. He had signed on behalf of the union the Form 80 declaration respecting membership evidence. The witnesses attended at the hearing and each was examined by the Board, followed in turn by counsel for Rowad and the union. Rowad did not call any witnesses. The union called Bill Suppa, an organizer for the Council who was assisting the union in its organizing campaign and who had earlier assisted a sister local in an organizing campaign respecting Rowad's employees in a different geographic area of the construction industry.
9The Board has reviewed and weighed the evidence of the witnesses having regard to their recollection of the events about which they were testifying, the firmness of their recall, their ability to relate clearly to the Board the events and matters about which they were testifying, their ability to resist the influence of self-interest and their general demeanour as witnesses. The Board ordered the exclusion of witnesses, but Suppa, as advisor to counsel for the union, remained in the hearing during the testimony of the Board's three witnesses. There were clear contradictions between the evidence of Martins and Bairos as well as internal inconsistencies in their testimony. While these problems were not sufficient to discount their evidence altogether, the Board, in arriving at its conclusions of fact respecting the central issue of whether Martins paid any money to the union in respect of dues or initiation fees, has preferred the evidence of Suppa notwithstanding the fact that he heard the testimony of the other witnesses prior to testifying himself. The Board found him generally to be a credible witness. The Board has also reviewed and considered the submissions of counsel for the parties respecting the relative credibility of the witnesses, the evidence in general and the relevant law applied to that evidence. The findings of fact and the conclusions made herein have been made having regard to the Board's review of the evidence of the submissions of counsel.
10The Board is satisfied on the evidence that Martins in fact paid one dollar to a representative of the union with respect to dues or initiation fees of the union, signed the application card at issue in both places where it required his signature and knew that he was signing an application for membership in the union.
11That is not the end of the matter, however. In the course of the Board's inquiry, two facts emerged which, according to respondent counsel, make Martins' membership application unreliable on its face. First, the card is dated October 2nd, 1985. The oral evidence at the hearing places the date of signing and the payment of the $1.00 as having taken place on October 3rd. Second, the application card bears Bairos's signature as collector, in other words, where the card calls for the "Signature of Actual Recipient of Above Money". When Bairos asked Martins for payment of the $1.00, Martins offered a $2.00 bill. Bairos did not have change. Suppa gave Martins $1.00 in change and received the $2.00 bill from him in return. He kept the two dollars and returned to Bairos' office with him. At the office, Bairos took out a cash box and gave Suppa $1.00 and received from him the $2.00 bill. He took another dollar bill and placed it with the card in a file which he eventually turned over to Strang.
12The Form 80, "Declaration Concerning Membership Documents, Construction Industry", which was filed together with the two membership documents contains no reference to the two circumstances just described. Paragraph 3 of Form 80 applies to the form of membership evidence at issue here and states as follows:
(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 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:
The Board is satisfied from Strang's evidence that he made all of the proper inquiries of Bairos and of the collector of the other membership document before signing the Form 80. Therefore, were the Board to make a finding that the Form 80 declaration is defective, and it makes no finding either way at this time, the defect would result from Bairos' failure to disclose to Strang the precise manner in which the one dollar was paid by Martins and not because Strang failed to make the proper inquiries.
13Counsel for Rowad argues that the Board should reject Martins' card because on its face it contains two untruths. First, the card has been put forward as having been signed and the dollar payment having been received on October 2nd when in fact these actions took place on October 3rd, 1985. Second, Bairos signed as the actual recipient of the one dollar paid, when in fact, Suppa was the actual recipient. Those two flaws in the document, coupled with the facts that Bairos is a paid, full-time employee of the union and the business agent who was the collector on the second card was responsible to Bairos, should cause the Board to place no reliance on either card, according to counsel.
14The Board disagrees with counsel that Bairos was not the actual recipient of the one dollar paid by Martins. Bairos and Suppa were together when they approached Bairos about joining the union and when he signed the card and paid the dollar. Martins knew both men to be representatives of the union. It was Bairos who asked Martins for payment of the dollar and the fact that, because of the problem with respect to change, the money was actually given to Suppa does not alter the fact that it was being paid to Bairos. To find otherwise in these circumstances would be taking a far too technical view of the factual circumstances. With respect to the date, the important question is whether, on the terminal date of the application, Martins was a member of the union within the meaning of section 1 (l)(l) of the Act, and not whether he became a member within the meaning of that section on October 2nd or October 3rd. The terminal date set for this application was October 15th, 1985, so clearly Martins was a member of the union within the meaning of the Act on that date.
15Rowad’s counsel argues that the Board ought not to accept oral evidence respecting how and when Martins paid the dollar and signed the card. But, such evidence does not go to substantive issue of whether the dollar was paid, and, therefore, is clearly within the scope of evidence which section 73 of the Rules of Procedure under the Act permits the Board to accept. In these circumstances, the Board accepts the oral evidence and is satisfied that the membership application filed on behalf of Martins is evidence that he was a member of the union within the meaning of the Act at the times material to this application.
16The Board finds that all construction labourers in the employ of the respondent in the Regional Municipality of Waterloo (except that portion of the geographic Township of Beverly annexed by North Dumfries Township) excluding the industrial, commercial and institutional sector, save and except non-working foremen and persons above the rank of non-working foreman, constitute a unit of employees appropriate for collective bargaining.
17The 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 October 15, 1985, 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.
18A certificate will issue to the applicant.