[1987] OLRB Rep. February 183
0403-86-R; 0754-86-U Operative Plasterers and Cement Masons International Association of the United States and Canada, Local 172, Applicant, v. Belair Restoration (Ontario) Inc., Respondent, v. Group of Employees, Objectors; Operative Plasterers' and Cement Masons' International Association of the United States and Canada, Local 172, Complainant, v. Belair Restoration (Ontario) Inc., Respondent
BEFORE: N. B. Satterfield, Vice-Chairman, and Board Members J. Wilson and C. A. Ballentine.
APPEARANCES: Anthony J. Wice, J. I. Marchildon, Casey J. Maticiw and Paul Falzone for the applicant/complainant; Joseph Liberman and Dennis Daigle for the respondent; Harold MacKay, Denis Connolly, Jack Charron and Issac Langs for the group of employees.
DECISION OF THE BOARD; February 26, 1987
The name of the respondent in Board File No. 0403-86-R is amended to read: "Belair Restoration (Ontario) Inc.".
File No. 0403-86-R is an application for certification made under the construction industry provisions of the Labour Relations Act. There were four individual statements opposing the application filed by persons purporting to be employees of the respondent Belair Restoration (Ontario) Inc. (hereinafter "Belair"). File No. 0754-86-U is a complaint filed under section 89 of the Act alleging that Belair has violated sections 64, 66(c), 70 and 79 of the Act. In a schedule to the complaint the complainant Operative Plasterers and Cement Masons International Association of the United States and Canada, Local 172 (hereinafter "Local 172") requests that it be certified as bargaining agent pursuant to section 8 of the Act without the need of a representation vote in the event that the Board finds Local 172 not to have sufficient employees of Belair as its members in order to be certified without a representation vote. The application and complaint were listed together for hearing by the Board.
At the hearing, the parties could not agree whether the two files should be consolidated. Applicant counsel wanted to wait until it could be determined whether it was necessary to hear evidence with respect to the origin and circulation of the four statements in opposition to the application, and if so, until that evidence was heard, before deciding the issue of whether the two files should be consolidated. The Board ruled that it would proceed with the application for certification to the point where, if possible, the Board could determine whether the petition was numerically relevant. That is, determine whether a sufficient number of employees for whom Local 172 had submitted evidence of membership had also signed the statements so as to raise doubt whether the applicant continued to enjoy the support of a majority of Belair's employees who were also members of Local 172. As a result of the Board's ruling, this decision deals only with the application for certification.
The Board finds that the applicant is a trade union within the meaning of section 1(l)(p) of the Labour Relations Act and is an affiliated bargaining agent of a designated employee bargaining agency. Pursuant to the designation issued by the Minister under section 139(1) of the Act on May 30, 1978, the designated employee bargaining agency is the Operative Plasterers and Cement Masons International Association of the United States and Canada and the Ontario Provincial Conference of the Operative Plasterers and Cement Masons International Association of the United States and Canada.
The Board further finds that this is an application for certification within the meaning of section 119 of the Labour Relations Act and is an application made pursuant to section 144(1) of the Act which provides that:
An application for certification as bargaining agent which relates to the industrial, commercial and institutional sector of the construction industry referred to in clause 117 (e) shall be brought by either,
(a) an employee bargaining agency; or
(b) one or more affiliated bargaining agents of the employee bargaining agency,
on behalf of all affiliated bargaining agents of the employee bargaining agency and the unit of employees shall include all employees who would be bound by a provincial agreement together with all other employees in at least one appropriate geographic area unless bargaining rights for such geographic area have already been acquired under subsection 3 or by voluntary recognition.
Having regard to the agreement of the parties, the Board finds that all employees of the respondent in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and all employees of the respondent in all other sectors in the Municipality of Metropolitan Toronto, the Regional Municipalities of Peel and York, the Towns of Oakville and Halton Hills and that portion of the Town of Milton within the geographic Townships of Esquesing and Trafalgar, and the Towns of Ajax and Pickering in the Regional Municipality of Durham engaged in masonry restoration work, save and except non-working foremen and persons above the rank of non-working foreman, constitute a unit of employees of the respondent appropriate for collective bargaining.
Belair filed lists of employees containing a total of ten names of persons whom it contends are employees in the bargaining unit described above. Counsel for Local 172 contends that three of the persons included on the lists were not employees of Belair at work in the bargaining unit on the date of making of the application. These persons are D. Burns, G. MacNeil and A. Watt. Since the parties could not resolve their dispute, the Board advised them that it would not reveal the details of the membership evidence filed by Local 172 but, whether the Board determined that there were seven employees or ten employees in the unit, the four statements of desire would be relevant. In these circumstances, the Board ruled and the parties agreed that the Board should proceed to hear the evidence respecting the circumstances surrounding the origin and signing of the four statements.
The Board heard the evidence of Denis Connolly and Harold MacKay, two of the four objectors, before it was necessary to adjourn the hearing. Connolly was acting as spokesman for the four employees and testified first. In the course of MacKay's testimony, he described for the Board the circumstances under which he had signed an application for membership in Local 172. These were that, when he was asked by Casey Maticiw if he wanted to join Local 172, he told Maticiw that he did not have a dollar, whereupon Maticiw offered to lend him a dollar, took a dollar from his wallet and said "you're in". MacKay stated that he never gave Maticiw a dollar and Maticiw never gave a dollar to him. When applicant counsel examined MacKay, he asked him what words Maticiw had actually used. MacKay replied that, after he had told Maticiw that he did not have a dollar and before he had signed the application for membership, Maticiw asked him if he wanted a dollar. When MacKay replied "yes", Maticiw said "you owe me a dollar".
Following the hearing, as a result of MacKay's testimony, the Board had one of its officer's conduct a preliminary investigation into these circumstances. In the course of his investigation, the Board Officer took a signed statement from Jack Charron, another of the objectors. His statement conflicted with the information on the membership card filed on behalf of Charron with respect to the payment of money for dues or initiation fees in the union. At that point, the Board had Charron's signed statement and MacKay's viva voce evidence that they had not personally paid any money in the form of dues or initiation fees to Local 172. Those circumstances led the Board to proceed in accordance with its well established practice in such situations. It summoned Charron, MacKay and Maticiw to a hearing for the purpose of ". . .inquiring into the circumstances surrounding the payment of the required membership fee by [MacKay and Charron],. ..”. Maticiw was summoned because he had signed and filed with the Board on behalf of Local 172 the Form 80 "Declaration Concerning Membership Documents, Construction Industry" (hereinafter "the Declaration" or "the Form 80") in support of the individual membership cards filed by Local 172.
The three parties were given notice of the hearing and, by that notice were notified that the three persons had been summoned for the purposes of the inquiry. In hearings held for these purposes, the Board will conduct a formal inquiry into the particular issue by questioning each of the summoned persons, will afford each party an opportunity to question them, to adduce additional evidence and to make submissions to the Board on the evidence and relevant law. The Board followed this procedure at its hearing in the instant case on February 16, 1987, and heard the testimony of Charron, MacKay and Maticiw. On the conclusion of their testimony, no other evidence was adduced by the parties and the Board heard their full submissions on the evidence and relevant law.
Prior to the February 16th hearing, it had been necessary to adjourn several earlier hearing dates. As a result, seven and a half months had elapsed since the first hearing. All of the membership documents filed by Local 172 are in the form of combination applications for membership in the union and acknowledgments that one dollar was paid by each applicant employee, to employ the words of the acknowledgment which is part of the membership document, ". . .as evidence of good faith in [his/her] application for membership..." in the union. Charron's and MacKay's applications for membership were signed May 8, 1986. The Board is satisfied that all three witnesses made sincere attempts to describe accurately to the Board their recall of the circumstances surrounding the required payment by Charron and MacKay of at least one dollar in dues or initiation fees. The Board's conclusions of fact and law herein have been made based on its review of their evidence, the submissions thereon of counsel for the parties and the Board's relevant jurisprudence.
When Charron told Maticiw that he did not have the money with him to pay one dollar with his application for membership in the union, Maticiw gave Charron the dollar membership fee and, in turn, Charron gave it back to Maticiw when Charron signed the membership application. This all took place at the same time. No arrangement was made at the time for Charron to repay the dollar and none was made up to and including the hearing on June 30, 1986. Charron repaid the dollar on July 29. 1986.
MacKay's evidence given on the first day of hearing was unchanged by his testimony on February 16. 1987. On that evidence, although money did not pass between MacKay and Maticiw, the Board finds that Maticiw did lend MacKay the dollar by which he purportedly was showing his good faith in applying for membership in Local 172. There is no direct evidence that, at any time between May 8, 1986, when MacKay signed his application for membership and the June 30th hearing, MacKay and Maticiw made or did not make any arrangement for MacKay to repay Maticiw. It is reasonable to infer, however, from all the evidence before the Board, that no arrangements were made for MacKay to repay the dollar when he signed the application for membership or at any time before he testified at the June 30th hearing. MacKay also repaid the dollar on July 29, 1986.
Maticiw was employed by Local 172 as a full-time organizer and business agent in March, 1987. He had no prior experience organizing for a trade union. His campaign to organize Belair's employees was his first one. When Charron and MacKay told him that they did not have the money to pay the dollar for their applications for membership in Local 172, he told them that he could see nothing wrong with him lending them a dollar for the purpose of them making applications for membership in the union. Their applications, together with those of other employees, which Local 172 filed with the Board were supported by the Form 80 Declaration which Maticiw signed and filed with the Board on May 28, 1986. Paragraph 3 of the Declaration says:
(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:
No exceptions to the paragraph 3 statement are noted on the form. Maticiw told the Board that he had not noted any exceptions because there were none. According to Maticiw, since MacKay and Charron had paid the one dollar acknowledged on their membership applications with money borrowed from him, they had effectively paid with their own money. Thus, in his mind, it was not as though he had paid the one dollar for them. He gave the same reason in explaining why he saw no need to have them repay the dollar before the terminal date set for the application. That is the date when Local 172 had to have its membership cards filed. The Declaration had to be filed on or before the second day after the terminal date.
It may be inferred from all the evidence before the Board that, between May 8th and June 30th, 1986, Maticiw did not ask either MacKay or Charron to repay his loan. He realized the loans might be a problem for the union only after MacKay's testimony on June 30, 1986. Even so, he waited a further month before asking for repayment. This was because he anticipated that they would resist any attempt by him to collect the loans, since their attitude had changed from one of supporting the union to one of opposing it.
The statutory definition of a trade union member in section 1(1)(l) of the Act includes a person who has both applied for membership in the trade union and also paid to the trade union on his own behalf at least one dollar. The wording of the section was introduced into the Act in 1970 by The Labour Relations Amendment Act, 1970, S.O. 1970, c. 3. It codified a 20 year old Board policy which provided that, in order for the Board to consider an employee to be a member of a trade union, the employee must not only have applied to become a member of the union, but also must have paid to the union on his own behalf at least one dollar. The Board's decision in RCA Victor Company, Ltd., 53 CLLC ¶17,067 at pp. 1469-70 describes the purpose of requirement of the money paid as follows:
It need hardly be pointed out that the Board cannot accept as evidence of payment anything in the nature of a monetary contribution from a person other than an applicant for membership. The money payment constitutes confirmatory evidence of the desire of the payer to become a member of the trade union. If no financial sacrifice is made by the person himself, the only evidence submitted on his behalf is a signature on an application card which the Board has long since held to be inadequate to establish membership. On the other hand, not every loan to a prospective member, especially where the money is repaid, will be fatal to an applicant's case.
More than 30 years have passed since that decision of the Board and it is still dealing with the problem of whether a person applying to be a member of a trade union who makes a payment of at least one dollar with money borrowed for that purpose has satisfied the statutory definition of trade union membership. That very issue was before the Board in its decision in Laidlaw Wire of Canada, Ltd. [19851 OLRB Rep. Oct. 1479, with respect to an employee who had borrowed a dollar from another employee in order to pay the dollar required with her application for membership in the trade union which was seeking certification in that case. The two employees were brother and sister. The collector assumed that the sister had borrowed the money from her brother and immediately told both of them to be sure that the loan was repaid. It was repaid later the same day. The collector reported the incident to the union official who subsequently signed the Declaration. The incident was not referred to on the Declaration because, in the declarant's opinion, there was "no exception" to paragraph 3 since the employee who had borrowed the money had paid one dollar on her own behalf. Neither the collector nor the declarant had confirmed with either the lender or the borrower before filing the Declaration that the loan had been repaid. The respondent to the application contended that, not only should the Board reject the borrower's membership card on the grounds that she had not paid one dollar on her own behalf, but failure to disclose the loan on the Declaration was a serious breach of the Board's practice and procedure which should cause the Board either not to rely on the applicant's evidence at all or to seek confirmation of the employees' support for the applicant in a representation vote.
The Board's decision in that case is helpful because it sketches some of the history of how the Board has dealt with this sort of problem. The relevant parts of the decision begin at paragraph 22 immediately after the Board has quoted the passage set out above from the RCA Victor decision:
For a number of years, the Board tended to treat such transactions as being tantamount to "non-pays", particularly where the money was advanced by a trade union official and where the "loans" were not repaid prior to the filing of the membership cards with the Board: see, for example, Webster Air Equipment Company Ltd., 58 CLLC 1810; Hershey Chocolate of Canada, Limited, [1963] OLRB Rep. May 73; and Tillsonburg Shoe Co., [1964] OLRB Rep. June 142. However, as early as 1958 (in the Webster Air Equipment case, supra) the Board indicated that it was "not greatly concerned about isolated instances of money being advanced by one employee to another", in recognition of the fact that such a transaction might well be an incident in an established relationship between two employees where one, knowing and trusting the other, accommodated him by lending him a dollar during a period when he was short of funds. Nevertheless, the Board went on to note in that case that a union acts at its peril in failing to make full disclosure or all material facts where "a loan is made by [a responsible] officer or official [of the union] and the money is not repaid before the hearing, or where there is a pattern of loans having been made, whether by such a person or by rank and file employees, and whether repaid or not".
More recent cases have tended to focus on whether the impugned transaction constituted a bona fide loan which the borrower sincerely intended to repay. In Sandercock Construction Limited, [1970] OLRB Rep. Apr. 147, the Board discounted membership cards submitted in respect of two employees who had each "borrowed" a $10.00 initiation fee from another employee without any real intention to repay the "loans", and had only repaid them "because of further proceedings before the Board". In St. Thomas Sanitary Collection Service Limited, [1972] OLRB Rep. June 600, the Board wrote, in part, as follows:
In this case there were certain allegations of non-pay made. The Board accordingly conducted its usual investigation and subsequently a hearing was ordered. The evidence revealed that at the time Clarence Earhart signed an application for membership in the applicant union he did not have a dollar and requested a fellow employee to loan him a dollar and indicated that he would repay the dollar. The collector was another fellow employee. Mr. Earhart intended to repay the money that was loaned to him; however, he stated that when he saw the fellow employee he did not have the money, but when he had the money he did not see him. He further indicated that he felt he was obligated to repay the dollar.
It further appeared that the person who signed the form on behalf of the union made the appropriate inquiries of the employee collector and accordingly there is nothing improper about the filing of the [Declaration] in this matter.
We are satisfied in the circumstances of this case that a bona fide loan was made by one employee to another employee, and we do not find anything improper in the evidence of membership submitted: Skene Cartage Company Limited, [1966] OLRB Rep. 30.
In N. A. Construction, [1982] OLRB Rep. Jan. 77, the Board gave no weight to membership evidence filed on behalf of two employees who, in the presence of the collector, each "borrowed" a dollar from a third employee without any intention of repaying him. In reaching that conclusion, the Board took into account "the fact that the 'so-called' loans were made in an informal manner in front of the collector who made no attempt to ascertain whether in fact there was a true intent to repay the money". (The Board also took into account the fact that the collector actually received the money from the third employee.) In Shaw Festival Theatre Foundation, Canada, [1983] OLRB Rep. Sept. 1579, the Board was called upon to determine the membership status of an employee who borrowed $25.00 from the secretary of the local because the employee did not have enough money to pay the required initiation fee at the time he was approached by that union official and asked to join the local. In finding that employee to be a member of the local for the purposes of the local's certification application even though the loan had not been repaid as of the date of the hearing, the Board accepted the employee's testimony that he was obligated to repay the loan and intended to do so. Thus, the Board found the loan to be "a bona fide transaction
Having carefully considered the submissions of the parties in the light of the applicable jurisprudence, the Board has concluded that Manjit Krod was a "member" of the applicant within the meaning of section 1(1)(1) of the Act, at the pertinent time for purposes of this application. Under the circumstances, there can be no doubt that the loan which she received from her brother was a bona fide transaction. In this regard, we note that at the time of the transaction, there was a clear understanding between Ms. Krod and her brother that she would repay the dollar to him at home later that day. Having quite properly refused to accept payment from Jaswinder Manak on behalf of his sister. Mr. Harkins, who correctly assumed that the money which Ms. Krod paid to him had been loaned to her by her brother, told Ms. Krod and Mr. Manak to be sure that the loan was repaid. Thus, unlike the collector in N. B. Construction, supra, Mr. Harkins did take steps to assure himself that Ms. Krod intended to repay the loan to her brother. Moreover, the loan was in fact repaid later that day in accordance with the arrangements which had been made at the time of the transaction.
As conceded by counsel for the applicant, it would have been prudent to have mentioned in the ... Declaration the loan from Jaswinder Manak to Manjit Krod. Inclusion of that information in the Declaration might have obviated the need for a formal inquiry into the transaction, or at least have enabled the Board to investigate it more quickly. However, Mr. Nicholson's decision to not include that information in the Declaration was, at most, an error in judgment which was not intended to, and did not in fact constitute a fraud or misrepresentation, since, in view of the bona fide loan described above, Ms. Krod had in fact paid, on her own behalf, an amount of one dollar to Mr. Harkins in respect of initiation fees. Thus, the transaction did not constitute an exception to the statement contained in paragraph 3 of the Declaration.
The Board in that case concluded that the loan between the two employees was a bona fide one because, in major part, there was a clear understanding between the two employees that the borrower would repay the lender, the collector took steps to assure himself that the borrower intended to repay the loan, and the loan was in fact repaid later that day in accordance with the arrangements which had been made at the time of the transaction. Since the Board was satisfied with the bona fides of the loan, it was able to conclude that the employee who had borrowed the dollar had personally paid a dollar on her own behalf to the collector for the union. Therefore, the circumstances of the payment were not an exception to paragraph 3 of the Declaration and failure to make reference to those circumstances, to quote the decision, ". . .did not in fact constitute a fraud or a misrepresentation, ..." with respect to the Declaration.
The Board's decision in Laidlaw, supra, and the cases cited therein, stand for the proposition that an employee who has borrowed a dollar in a bona fide loan transaction and tendered it in support of an application for membership in a trade union has made a payment on his own behalf. Whether a particular loan is a bona fide one will always turn on the factual circumstances in which the loan is alleged to have been made.
On the facts of the instant case, the Board is not satisfied that there was a bona fide loan between Maticiw and MacKay or Maticiw and Charron. It is clear from the Board's cases referred to above that the intent to repay the borrowed money is a critical element for a loan to be considered bona fide by the Board for purposes of satisfying the statutory definition of member and membership. There was no intent on the part of MacKay and Charron to repay the one dollar advanced by Maticiw. Nor did Maticiw make any arrangements at the time he made the loans, prior to signing and filing the Declaration with the Board or up to the June 30th hearing, for them to repay the loans. The Board finds support for this conclusion in the fact that Maticiw made no attempt to have the loans repaid at any time between May 8, 1986, when they were made and July 29, 1986, when they were repaid, not even after he became aware on June 30th that the loans might pose a problem with respect to Local 172's membership evidence. His conduct is inconsistent with him having obtained from the two employees a firm commitment to repay their loans or with him intending to have them repaid. Therefore, in light of the absence of any attempt by Maticiw to collect the loans and coupled with the fact that there were no repayment arrangements established at the time of the loans right up to the June 30th hearing, the Board is not satisfied that the loans were made with the necessary intent that they be repaid. In the result, the Board finds that MacKay and Charron have not paid at least one dollar respecting dues or initiation fees of Local 172 and, therefore, were not members of Local 172 at the time this application for certification was made.
The remaining question is whether the failure to disclose the loans on the Declaration should cause the Board to not rely on the remainder of the cards filed by the applicant in support of its application for certification. The significance of the Declaration and the importance of complete disclosure by the person making the declaration for the applicant trade union was expressed by the Board in its decision in Zehr's Markets Limited, [1972] OLRB Rep. June 635 at paragraphs 4 and 5:
There are a number of cases before this Board dealing with [the Declaration]. Those cases indicate that the Board has exacted very stringent standards from applicants who submit membership evidence. These stringent requirements are necessary because the membership evidence or records of trade unions relating to membership fall within the secrecy requirements of section 100 of The Labour Relations Act. Other parties to a certification proceeding do not have the opportunity to examine the membership evidence nor in the usual case do the parties have the opportunity to cross-examine witnesses with respect to the membership evidence. It is in those circumstances that the Board approaches its statutory responsibility under section 7 of the Act and accordingly is extremely vigilant in ensuring the propriety of membership evidence. Since the Board must rely on the evidence of membership tendered by the applicant trade union the Board has exacted strict requirements from applicant trade unions with respect to that membership evidence and particularly with the Declaration Concerning Membership Documents....
The Declaration ...,"goes to the very root of the membership evidence submitted by the applicant". Canadian Union of Operating Engineers. v. The Stanley Steel Company Limited v. United Steelworkers of America [1972] OLRB Rep. Feb. 181; and the cases before this Board have indicated that there must be compliance with the requirements of [the Declaration] and complete disclosure must be made. See E. G., Stanley Steel Company Limited, supra; United Steelworkers of America v. National Steel Car Corporation Limited [1966] OLRB Rep. Dec. 738; Valley Transportation Company Limited [1963] OLRB Rep. Nov. 448; Retail, Wholesale and Department Store Union, AFL:CIO:CLC v. Dominion Stores Limited 11964] OLRB Rep. Dec. 447; International Association of Machinists v. Essex Wire Corporation Limited v. Teamsters, Chauffeurs, Warehousemen and Helpers, Local Union 141, affiliated with the I. B. of 7'. C. W. & H. of A. (1965] OLRB Rep. Oct. 490; and where compliance with the directions of [the Declaration] and the standards of accuracy and disclosure contained therein were not met the Board has invariably found that there is not sufficiently reliable evidence concerning membership documents.
Some nine years earlier in its decision in Holland River Gardens Company Limited, [1963] OLRB Rep. Oct. 364, the Board expressed at page 366 a similar view of the significance of the Declaration Concerning Membership Documents and the extent to which the Board must rely on it:
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 application. The Board accordingly must place heavy reliance on the statements contained in [the Declaration] which it accepts at face value. Since the Board is compelled to rely to such an extent on [the Declaration] in considering the adequacy of the evidence of membership submitted by the applicant, any failure to make full disclosure of all the material facts must weigh heavily against the applicant. (See Webster Air Equipment Co. Ltd. Case, CCH C.L.L.R Transfer Binder '55-'59 ¶16,110, C.L.S. 76-598.)
The decision involves a case in which a paid organizer of the applicant trade union had signed as collector on two cards when in fact another person was the collector. The organizer did not reveal this fact to the official of the applicant trade union who signed the Declaration supporting its membership documents. The Board had this to say at pages 366 and 367 about those circumstances and their effect on the reliability of the applicant's membership evidence:
5.... Although in the instant case the evidence is that the signatory to [the Declaration] did not have knowledge with respect to the two cards in question, the seriousness of the non-disclosure of the true situation in [the Declaration], in our opinion, is in no way alleviated. As a responsible paid organizer of the applicant, Wedge's actions with regard to securing evidence of membership must be treated as the acts of the applicant. His misdeed lies not only in signing as collector, but more important in his failure to make full disclosure of the facts to the Board. While we do not believe that Wedge mislead the Board by design, we cannot treat his non-disclosure merely as an oversight.
While stating that we do not find that the applicant deliberately attempted to mislead the Board, the consequences flowing from the applicant's actions could have no other result. It is of concern to the Board that it only became aware of the true situation as a result of making its own inquiry into a discrepancy with respect to a signature appearing on a membership application card filed by the applicant. While we have no evidence before us of any other irregularities with respect to the evidence of membership, in previous decisions the Board has refused to accept any of the evidence of membership where a single defective card has been submitted to the knowledge of a responsible union official. (See R.C.A. Victor Company Limited Case, CCH C.L.L.R. Transfer Binder '49-'54 ¶17,067, C.L.S. 76-412). In all the circumstances of this case the Board is not prepared to place reliance on any of the evidence of membership filed by the applicant.
Maticiw was the collector on all of the cards filed in support of the application for certification as well as the declarant on the Form 80 Declaration. Like the declarant in Laidlaw, Maticiw did not refer to the loans in his declaration because he was of the opinion that they were not an exception to the statement in paragraph 3. This was because, in his view, he had made a loan to MacKay and Charron and at that point it was as though they were tendering their own money. Therefore, they had, in the words of paragraph 3, ". . .personally paid in money the amount shown..." on the receipt or acknowledgment. It may be seen from the quotation from paragraph 25 of the Laidlaw decision, supra, that the Board, although critical of the declarant's judgement in not revealing the loan, agreed with him, in the circumstances of the case, that the payment in issue was not an exception to the paragraph 3 statement. It is patently clear from the decision that the Board came to that conclusion because, even though the employee had made payment with borrowed money, it was borrowed with the clear intent of repaying the money. In that case, it was repaid the same day. Those are not the factual circumstances of the instant case. The Board herein has found that no arrangements had been made by Maticiw at any time prior to July 29, 1986, for MacKay and Charron to repay the loan. Therefore, there had been no intent by them at the time ~he loan was made to repay it and no express intent of Maticiw that it be repaid. Thus, the loans were not bona fide ones in the context of the Board's jurisprudence. Those were the circumstances existing on May 28, 1986, when Maticiw signed and filed the Declaration on behalf of Local 172.
Even if the Board assumes, without finding, that Maticiw did not intend his declaration to mislead the Board as to the precise circumstances in which payment of money respecting dues or initiation fees was made by those persons for whom the applicant was submitting membership documents of the type referred to in paragraph 3 of the Declaration, the effect of his failure to identify the two exceptions has been to mislead the Board as to the circumstances under which payment was submitted with respect to those two cards. As in the Holland Farms decision, supra, these facts only came to light through the Board's inquiry into the petition and then through the Board making its own further inquiry into the circumstances under which MacKay and Charron signed their membership applications. The Board's strict standard respecting the quality of membership evidence as set out in decisions like Holland Farms and Zehr's, and the Board's jurisprudence which has consistently expressed the consequences of failure to comply with the Board standard, are well known in the labour relations community. The fact that this was Maticiw's first organizing campaign for Local 172 does not alter the consequences for Local 172 of his acts or omissions. If its responsible officials fail to properly instruct its organizers, or if the organizers fail to follow instructions, Local 172 must bear the consequences.
Therefore, in all the circumstances of this case, the Board is not prepared to give any weight to Local 172's membership cards because of the misleading Declaration filed in support of those cards.
The application for certification is dismissed.
With respect to the section 89 complaint, the complainant is to advise the Board within
16 days of the date hereof, whether it wishes to proceed with the complaint. The Board will terminate the proceedings in File No. 0754-86-U if the complainant fails to advise it within that time limit that it wishes to proceed with the complaint.