Labourers' International Union of North America, Local 506 v. Menkes Developments Inc.

[1987] OLRB Rep. October 1290

0211-87-R Labourers' International Union of North America, Local 506, Applicant v. Menkes Developments Inc., Respondent v. Labourers' International Union of North America, Local 183, Intervener

BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members I. M. Stamp and H. Kobryn.

APPEARANCES: Mike Mihallo vie and Bernard Fishbein for the applicant; Richard J. Charney and John Formusa for the respondent; Jules Bloch, Allison Hudgins and R. Lotito for the intervener.

DECISION OF THE BOARD; September 18, 1987

1. By letters dated June 29, 1987 and July 2, 1987 respectively, the applicant and intervener sought reconsideration of part of the Board's decision dated June 22, 1987 in this matter. At the hearing on July 16, 1987, the Board ruled orally that, having regard to the representations of the parties and because the scope of the intervener's bargaining rights under its collective agreement with the Metropolitan Toronto Apartment Builders Association is not a matter which is relevant to the Board's considerations in this proceeding, it found it appropriate, pursuant to its powers under section 106(1) of the Labour Relations Act, to vary its June 22, 1987 decision (since reported at [1987] OLRB Rep. June 881) by:

(a) deleting the word "do" in the third last sentence of paragraph 10 and substituting therefore the words "is it entirely clear that", and

(b) deleting the second last sentence in paragraph 11, namely "whatever the extent of the bargaining rights held by Local 183 with respect to the respondent, they do not encompass all of the non-ICI sectors of the construction industry."

The Board's decision dated June 22, 1987 was otherwise affirmed.

2. The Board then dealt with the balance of the matters in issue between the parties and ruled orally, without reasons, that certificates would issue to the applicant in accordance with section 144(2) of the Act. This oral ruling was confirmed in a written decision dated July 21, 1987. The Board's reasons now follow.

3. With respect to the applicant's challenges to the list of employees, the parties were able to agree that Rodrigues Therriault's name should be removed from the list and the applicant withdrew its challenge with respect to John Richardson. It was also confirmed that Terry McEvoy's name should be on the list. The Board then heard the evidence and representations of the parties with respect to whether or not the respondent would be permitted to add Dale Ince to the list of employees, notwithstanding the Board's oral ruling at the hearing on June 5, 1987 that the respondent would not be permitted to add further names to the list subsequent thereto.

4. Dale Ince was employed at one of the respondent's job sites on the date this application was made. The respondent obtained his services through Industrial Overload, which, its name suggests, is in the business of supplying temporary staff to employers who require it. Mr. Ince was never on the respondent's payroll. The respondent paid Industrial Overload for his services. The respondent has no knowledge of the amount Industrial Overload paid to Mr. Ince for the work he did on the respondent's job site. John Formusa, a solicitor employed with the respondent as its general counsel, was responsible for collecting the information relating to the respondent's reply and list of employees in consultation with Mr. Charney, who was retained by the respondent to represent it in these proceedings. Mr. Formusa relied on Ernie McBride, a Vice-President of the respondent, and various other of the respondent's staff to collect the information for him. As set out in paragraph 14 of the Board's earlier decision with respect to this application, the respondent had some difficulty in determining what name should be included on the list and it sought, and was permitted, to amend that list three times before it sought to add Mr. Ince's name. It is clear, however, that all of the relevant information with respect to Mr. Ince was in the possession and control of the respondent at all material times.

5. The Board's Rules and Procedures are structured in a manner designed to limit the ability of any party to gerrymander the list of employees or the structure of the bargaining unit. The respondent to an application for certification is required to provide the Board with a complete list of the employees in the bargaining unit proposed by the trade union on the date the application was made. The list of employees must be filed by the terminal date fixed for the application. A list of employees cannot be filed late, or amended once filed, without leave of the Board. As a matter of practice, the Board will generally permit a respondent to either file this list of employees, or amend a list that it did file to reflect new information not previously available or to correct errors that could not reasonably have been discovered beforehand as late as the outset of the hearing (Santa Marie Foods, [1981] OLRB Rep. Nov. 1618; Corecon Developments, [1985] OLRB Rep. May 657).

6. In the circumstances of this case, including its previous oral ruling with respect to additions to the list by the respondent, the Board was not persuaded that, absent the consent of the applicant, the respondent ought to be permitted to further amend its list of employees by adding Mr. Ince's name. Even if Mr. Ince was an employee of the respondent, which is open to question, the respondent first filed, and subsequently amended three times, a list of employees based on information wholly within its sole possession and power, including the information with respect to Mr. Ince which it repeatedly overlooked. In our view, the respondent had already been given substantial amount of latitude with respect to its list of employees and permitted to amend its list yet again would make a mockery of the Board's rules with respect to such lists. Accordingly, the Board ruled orally that it would not permit the respondent to add Dale Ince to the list of employees in this proceeding.

7. Upon receiving the Board's ruling, counsel for the applicant submitted that it was in a position to be certified without the need for a representation vote regardless of the outcome of its remaining challenges. An examination of the documentary evidence of membership filed by the applicant in support of its application revealed that it had filed 16 combination applications for membership and receipts and 1 certificate of membership. The applicant also filed the required Form 80, Declaration Concerning Membership Evidence, Construction Industry which is duly completed and attests to the sufficiency and regularity of the membership evidence filed. Of the 17 pieces of documentary evidence filed, 12 coincide with the names that presently appear on the list of employees. Of these 12, 10 are satisfactory in their form and content and meets the requirements of the Act. The other 2, both combination applications for membership and receipts, contain incomplete dates. One such card shows a date of "20, 1987" and the other shows a date of "April 21". In accordance with its usual practice (see P.R.C. Chemical Corporation of Canada Ltd. [1980] OLRB Rep. May 749 and Gallant Painting [1987] OLRB Rep. Mar. 367), and the Board permitted the applicant to call evidence to cure this deficiency. On the basis of that evidence, the Board was satisfied that the first card was collected on April 20, 1987 and the second on April 21, 1987.

8. In the course of the evidence with respect to the dates on which the 2 aforesaid cards were collected, a blank combination application for membership and receipt card of the kind submitted to the Board as documentary evidence of membership was marked as an exhibit. That card is in the following form:

APPLICATION FOR MEMBERSHIP

In the

LASOURERS INTERNATIONAL UNION OF NORTH AMERICA

LOCAL 506 Date……………………………………………….

Name……………………………………………………………….....

Address ………………………………………………………………

Town, City …………………………………………………………..

Birth …………………………………………………………………

Employed by …………………………………………………………

I hereby make application become a member of the Labourers’ International Union of North America. In doing so. I, of my Own free will and accord, hereby authorize the Labourers' International Union of North America or its representative, or officer to act for me as collective bargaining agent In all material pertaining to rate of wage, hours of work and other conditions of employment

Signature of

Applicant…………………………………………………………

SIGN HERE

$.................................................Initiation Fee received by

SIGNATURE

I confirm payment of Initiation Fee

SIGNATTURE OF APPLICANT

RECEIPT

Date …………………………………

Labourers' International Union of N.A. — Local 506

Received from ………………………………………………………..

$................................................. as payment of Initiation Fee.

9. Counsel for the respondent asserted that the cards filed by the applicant are ambiguous and that the employees could reasonably be expected to have been confused, particularly in the circumstances of this application where the respondent already has a collective bargaining relationship with respect to certain of its employees with the Labourers' International Union of North America, Local 183. The respondent submitted that the Board should exercise its discretion under section 7(2) of the Labour Relations Act to direct the taking of a representation vote even if the documentary evidence filed by the applicant showed that more than fifty-five per cent of the employees of the respondent in the bargaining unit on the date the application was made were members of the applicant during the material times.

10. Evidence of membership in an International Union is not generally accepted by the Board as evidence of membership in a local thereof. (See for example Bernardin of Canada Limited, [1975] OLRB Rep. Oct. 737). However, membership in a local is accepted as evidence of membership in the parent international (see for example The Explorer Inns, Limited, [1978] OLRB Rep. June 541). In every case, however, the Board will examine the material facts and an apparent ambiguity in the documentary evidence will not be fatal provided that, as a whole, it points unequivocally to membership in the applicant (see for example Wallaceburg Hydro Electric Systems, [1975] OLRB Rep. Oct. 783; Union Electric Supply Co. Limited, [1983] OLRB Rep. May 829; General Motors of Canada Limited, unreported decision of the Board dated December 28, 1984 in Board File No. 2418-84-R). It was the Board's view that the documentary evidence filed in support of this application is sufficiently unambiguous for the Board to be satisfied that it relates to the applicant and that no reasonable employee would have been confused by it. The cards are clearly applications for membership. Further, both the application and receipt portions refer clearly to the applicant. The cards are clearly applications for membership in both the Labourers' International Union of North America and its Local 506. Accordingly, the Board ruled orally that the applicant's documentary evidence of membership is a reliable indication that the employees to whom it relates were members of the applicant.

11. The Board's ruling with respect to Mr. Ince obviated the need to deal with the applicant's remaining challenges to the list. By virtue of the ruling, the list contained between 15 and 21 names, depending on the success of the challenges. The applicant's documentary evidence of membership is such that even if it was not successful in any of its challenges, 12 out of the 21 employees of the respondent who would then be in the bargaining unit at the time the application was made, were members of the applicant on May 7,1987, the terminal date fixed for the application and the date which the Board determines, under section 103(2)(j) of the Labour Relations Act to be the time for ascertaining membership under section 7(1) of the Act. We were satisfied that where, as here, the description of the bargaining unit has been settled and the Board can say with certainty that more than fifty-five per cent of the employees in the unit on the application date were members of the applicant at the relevant time, the Board can and should certify the applicant, notwithstanding the existence of some dispute with respect to the list of employees that would not affect the result (Robin Hood Multifood Inc., [1985] OLRB Rep. July 1159).

12. Accordingly, for the reasons given herein, certificates issued to the applicant as aforesaid.