[1987] OLRB Rep. May 762
1721-85-R Labourers' International Union of North America, Local 183, Applicant v. Olympia & York Developments Limited, c.o.b. as Olympia Floor & Wall Tile Company, Respondent v. Group of Employees, Objectors
BEFORE: R. A. Furness, Vice-Chair, and Board Members F. W. Murray and W. F. Rutherford.
APPEARANCES: L. A. Richmond, M. O'Brien, D. Chiasson and M. Toppan for the applicant; J. C. Murray for the respondent; Peter M. Whalen, Joseph Sapirman and Misha Prokepets for the objectors.
DECISION OF R. A. FURNESS, VICE-CHAIR, AND BOARD MEMBER F. W. MURRAY; May 6, 1987
The name: "Olympia Floor & Wall Tile Co." appearing in the style of cause of this application as the name of the respondent is amended to read: "Olympia & York Developments Limited, c.o.b. as Olympia Floor & Wall Tile Company".
This is an application for certification.
The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act.
The Board further finds that all employees of the respondent in the Municipality of Metropolitan Toronto, save and except supervisors, persons above the rank of supervisor, office, clerical staff and sales staff, persons regularly employed for not more than twenty-four hours per week and students employed during the school vacation period, constitute a unit of employees of the respondent appropriate for collective bargaining.
After entertaining the representations of the parties, the Board ruled that it would not consolidate the instant application for certification in Board File No. 1721-85-R with the unfair labour practices in Board Files No. 1898-85-U, 1899-85-U, 1928-85-U and 2022-85-U at that time. The Board further ruled that it would hear the application for certification and would consider initially the issues raised with respect to the allegations of two non-pay which would be heard first. The Board further ruled that, with respect to the cross-examination of witnesses, the parties should take into account the fact that the issue before the Board was a very narrow one of the two non-pay at that time and that questions which might be asked in cross-examination should be restricted to that issue. The Board asked the parties to conduct themselves accordingly. The Board noted that if any dispute arose as to the propriety of questions in cross-examination, the Board would deal with such disputes at that time.
The respondent arranged for the attendance of a court reporter at the hearings. The Board permitted the presence of the court reporter and informed the respondent that in the event that a transcript was prepared the Board was entitled to copies free of charge and that the other parties should have access of the transcript at reasonable cost. This practice was agreed to by all the parties.
The respondent had informed the Board that Nick Bilias and Gary Lochhead had not paid the one dollar payment to the applicant when they signed applications for membership. The Board conducted its usual investigation upon being informed of the allegations of non-pay and scheduled the inquiry for hearing. The Board subpoenaed Mr. Bilias, Mr. Lochhead, Marino Top-pan who prepared the Form 9, Declaration Concerning Membership Documents, and Michael Kevins, the employee of the respondent who allegedly did not collect a dollar from either Mr. Bilias or Mr. Lochhead when they signed applications for membership in the applicant. In the course of the investigation into the allegations of the two non-pays, the respondent called Michae-langelo De Rose as a witness.
During the course of the hearing, counsel for the respondent sought to ask questions regarding the criminal convictions of Mr. Kevins and Mr. De Rose. This line of questioning was objected to by counsel for the applicant. After entertaining the representations of the parties, the Board ruled that the witnesses were not parties within the meaning of section 8 of the Statutory Powers Procedure Act and that having regard to the provisions of section 23(1) of the Evidence Act of Ontario and to section 103(2)(c) of the Labour Relations Act and to the decision of the Ontario Court of Appeal in Deep v. Wood (1983) 1983 CanLII 3101 (ON CA), 143 D.L.R. (3d) 246, counsel for the respondent might ask the questions within the limitations set forth in section 23(1) and in Deep v. Wood et al., supra.
The determination of whether Mr. Bilias and Mr. Lochhead each paid one dollar with respect to their applications of membership in the applicant involved assessing the credibility and the sharpness of the memories of the five witnesses. The credibility of the witnesses was fully explored by lengthy and searching cross-examination.
It was the evidence of Mr. Bilias that he signed an application for membership to join the applicant on October 9, 1985, when he was standing in the respondent's warehouse at the end of one of the aisles. He testified that he signed the application at around noon time and that on that occasion he did not pay a dollar to Mr. Kevins who had signed him up. Mr. Bilias testified that on that occasion Mr. Kevins told him not to worry about paying the dollar and added that someone would take care of it. Mr. Kevins also told Mr. Bilias to keep it to himself. Mr. Bilias had previ-ously told Mr. Kevins that he did not have any money on him and was told by Mr. Kevins that he would get it later. It was the evidence of Mr. Bilias that at no time did he ever pay a dollar to Mr. Kevins with respect to the application to join the applicant.
Mr. Lochhead gave evidence that he signed an application for membership in the appli-cant on October 17, 1985, in a portion of the respondent's premises known as the new room. On that occasion, Mr. Lochhead stated that he signed the card in order to get rid of Mr. Kevins. He was asked for a dollar by Mr. Kevins. However, he did not give Mr. Kevins a dollar and was told that he was not to worry about it and just say that he paid. On that occasion, Mr. Lochhead had money but was not prepared to pay one dollar to Mr. Kevins because, in Mr. Lochhead's opinion, Mr. Kevins was not doing his task in the right way. It was also the evidence of Mr. Lochhead that on that occasion Mr. Kevins did not indicate that he owed Mr. Lochhead any money.
The evidence of Mr. Bilias and Mr. Lochhead was given in a straightforward manner and they did not contradict themselves in the course of their examination and cross-examination. They appeared to the Board to have a good recall of the events in question and their evidence to the effect that they had not paid a dollar at any time to Mr. Kevins was not shaken on cross-exami-nation.
The evidence of Mr. Kevins was that Mr. Bilias, in fact, paid him a dollar on the same day that Mr. Bilias signed the application for membership in the applicant and that Mr. Lochhead was owed five dollars by Mr. Kevins. It was the testimony of Mr. Kevins that when Mr. Lochhead did not offer to pay one dollar in cash to him with respect to the application for membership; he stated to Mr. Lochhead that, since he owed Mr. Lochhead five dollars on account of a purchase of marijuana, he would reduce the indebtedness to four dollars and pay the one dollar with respect to the card. Mr. Lochhead denied that he had ever had such a transaction dealing with marijuana with Mr. Kevins.
The evidence of Mr. Kevins contained a number of glaring inconsistencies. The Board will highlight the principal inconsistencies. Upon being questioned by counsel for the respondent about convictions for criminal offences, Mr. Kevins acknowledged such convictions and stated that all charges arose when he was between 16 and 18 years of age. At the time of the hearing Mr. Key-ins was 26 and upon being confronted with specific dates admitted that the most recent criminal offence was four years ago when he was between 22 and 23 years of age. This was just one example of where Mr. Kevins would give one answer in response to the question only to give another when pressed on the issue before him. Another example occurred during cross-examination by counsel for the objectors. Mr. Kevins initially stated that he could not say at which time of the day Mr. Bilias signed the application for membership in the applicant. Subsequently, he stated that he signed the application for membership in the afternoon only to subsequently contradict himself and state that he signed it in the morning. It appeared to the Board that Mr. Kevins did not have a good recollection of the events relating to the allegations of non-pay and that he responded to questions so as to suggest that he knew the answers when it was clear that upon subsequent exami-nation that he either did not know or was unsure of what had transpired. Mr. Kevins' poor recol-lection of the events is highlighted by the fact that he could not recall where Mr. Lochhead had signed the application for membership.
The evidence of Mr. De Rose was that Mr. Kevins was a friend and that he socialized with him from time to time and that they went to each others house where they viewed videos which had been rented. It was Mr. Kevins evidence, however, that he and Mr. De Rose were acquaintances rather than friends and had been out together only once. There was also a discrep-ancy in the evidence with respect to the alleged payment of one dollar by Mr. Bilias. It was the evi-dence of Mr. De Rose that he was twenty feet away when Mr. Bilias paid the money to Mr. Kevins and that by the time he approached Mr. Kevins, Mr. Bilias had left the scene of the transaction. Mr. Kevins, on the other hand, stated that Mr. De Rose was between eighteen inches and two feet away when the money was paid by Mr. Bilias to Mr. Kevins and that he got there at the same time the money was paid. While it was Mr. De Rose's evidence that he was in a hurry and told Mr. Key-ins to save an intended conversation until later, Mr. Kevins stated that it was he who asked Mr. De Rose to wait with his intended conversation while he concluded his business with Mr. Bilias.
There were also differences in the evidence given by Mr. Kevins and Mr. De Rose with respect to alleged conversations between Mr. Lochhead and Mr. Bilias on the one hand and Mr. De Rose on the other. It was the evidence of Mr. Kevins that Mr. De Rose told him that after Mr. Bilias and Mr. Lochhead had testified before the Board they spoke to Mr. De Rose and told him why they had said the things they had said at the hearing about Mr. Kevins. When Mr. De Rose was questioned about this point, he denied speaking to Mr. Kevins about what Mr. Lochhead and Mr. Bilias had stated about their evidence before the Board.
There were further discrepancies also between the evidence of Mr. Kevins, on the one hand, and Mr. Toppan and Mr. De Rose, on the other. It was the evidence of Mr. Toppan that when he received the application for membership from the collectors, including Mr. Kevins, he asked if a dollar had been collected with respect to each application for membership as he went through the cards. This conduct of Mr. Toppan was supported by the evidence of Mr. De Rose who agreed that this in fact was the practice adopted by Mr. Toppan. It was Mr. Kevins' evidence that Mr. Toppan inquired of him about the one dollar payment for each application for member-ship in dealing with the cards in a group rather than looking at the applications for membership individually. However, upon being cross-examined by counsel for the applicant, Mr. Kevins changed his testimony and stated that Mr. Toppan went over each application for membership and asked if a dollar had been paid with respect to each one by the person who signed it. The Board also notes that Mr. De Rose in cross-examination by counsel for the respondent, initially denied that he had ever used an alias only to shortly thereafter admit that in fact he had used an alias.
In considering the evidence in its totality, the Board accepts the evidence of Mr. Bilias and Mr. Lochhead that they did not pay a dollar with respect to their applications for membership. Qn the other hand, the demeanour and the quality of the evidence given by Mr. Kevins suggests that quite apart from his extremely hostile attitude towards the management of the company and his anti-semitic outbursts when referring to the management and some of the employees of the res-pondent, had a very poor recall of the events in question and, as outlined earlier, displayed a tend-ency to vary his evidence upon being pressed on particular issues. The evidence of Mr. De Rose, which was no doubt offered as corroboration for the testimony of Mr. Kevins, did not succeed in the critical areas of the testimony in substantiating the key elements of Mr. Kevins' evidence. Mr. Kevins and Mr. De Rose disagreed upon the circumstances under which Mr. Bilias allegedly paid a dollar and they also disagreed and, indeed, even apparently tried to conceal the nature and extent of their friendship.
In assessing the evidence of Mr. Toppan, Mr. Kevins and Mr. De Rose, the Board is satisfied that Mr. Toppan in fact checked each application for membership and asked Mr. Kevins and Mr. De Rose, who was also a collector, whether or not a dollar had been paid with respect to each application for membership by the person who signed it. The Board finds that Mr. Toppan was an entirely credible witness and that he made the necessary inquiries with care and in good faith of Mr. Kevins. Having made the necessary inquiries, he completed the Form 9. The Board finds that Mr. Toppan completed the Form 9 based upon the best information available to him. No blame attaches to Mr. Toppan for the conduct of Mr. Kevins in not securing the one dollar payments from Mr. Bilias and Mr. Lochhead with respect to their applications for membership in the applicant.
Having assessed the demeanour and evidence of Mr. De Rose, the Board concludes that Mr. De Rose was not a credible witness. Mr. De Rose, as was stated earlier, sought initially to deny that he used an alias and it was only when pressed that he acknowledged this to be the fact. It was the position of the respondent that because of what was perceived to be the lack of credibility of Mr. De Rose that the Board should disregard the applications for membership collected by Mr. De Rose. In the view of the Board, the fact that Mr. De Rose did not impress the Board as a credi-ble witness does not have the effect of destroying the evidentiary value before the Board of the applications for membership which he collected since no inquiry was conducted and no allegation was made with respect to the applications for membership signed and collected by Mr. De Rose.
The question now arises as to what the Board should do with respect to the additional nineteen membership cards which Mr. Kevins signed on behalf of the applicant. As the Board stated in Dough Delight Ltd., [1986] OLRB Rep. May 603, 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 the light of the non-disclosure, to the other membership documents filed with them and the supporting Form 9, Declaration Concerning Membership Documents, as evidence of membership. Counsel for the respondent and the objectors urged the Board to discount all of the cards which had been collected by Mr. Kevins. In RCA Victor Company, Ltd., 53 CLLC ¶17,067, the Board stated at page 1469:
In dealing with the quality of the evidence submitted by a trade union in support of its claim to be certified, a number of situations may be distinguished and we propose to examine some of them without in any way suggesting that the examination is comprehensive and exhaustive. Some of the evidence submitted may be patently forged or fraudulent, i.e., cards or receipts may be submitted bearing signatures which are not those of the persons who purport to sign them or receipts may be submitted in respect of persons who have paid no money. Where it is established that even a single card or receipt submitted by an applicant union is affected by such vice, and the card or receipt is submitted with the knowledge of a responsible officer or official of the union, the Board may come to the conclusion that it cannot place reliance on any of the evidence of membership submitted by the union.
In dealing with instances where there has been a flagrant and deliberate attempt by an applicant to evoke an effective scheme of conspiracy to defraud the Board, the Board has made a distinction in Webster Air Equipment Company Ltd., 58 CLLC ¶18,110, where the Board stated at page 1718:
In dealing with this situation, the Board has made a distinction between two types of cases: (i) where the action impugned is that of a responsible officer or official of a union, and (ii) where the action is that of a supporter or canvasser on behalf of an applicant who occupies an inferior office or no office in the union. In so far as the first of these is concerned, the Board said in the RCA Victor Company Case, (1953) CCH Canadian Labour Law Reporter, Transfer Binder, ¶17,067, C.L.S. 76-412, that, even where only a single card is defective and it is submitted with the knowledge of such responsible officer or official, "the Board may come to the conclusion that it cannot place reliance on any of the evidence of membership submitted by the union". Where the irregularity relates to evidence of membership procured by a person of lesser rank in the union organization, the Board has taken the position that the card in respect of which the irregularity is established is disallowed and the weight to be given to the remaining evidence of membership will depend on the nature of the irregularity and the extent to which the objection-able practice was resorted to in the signing up of members.
In the instant case, the two allegations of non-pay have been established to the satisfac-tion of the Board. Both of these non-pays resulted from the conduct of Mr. Kevins. When a collec-tor who was not in charge of an organizing campaign is found to have collected even a single card without proper payment, the response of the Board as set forth in Webster Air Equipment Com-pany Ltd., supra, has been to consider that it depended upon the nature of the irregular conduct and the extent to which the objectionable practice was resorted to in signing up the members. For example, in Crock & Block Restaurant and Tavern, [1980] OLRB Rep. April 424, the Board disre-garded all of the cards solicited by a collector who had told one applicant who signed a card for membership in a trade union not to worry about paying a dollar. Since the Board is forced to rely heavily upon the authenticity of evidence of membership which has been filed, the deliberate disre-gard of the legal requirements for membership in a trade union ought not to be lightly tolerated by the Board. Where the irregularities have been innocent in nature, the Board has simply rejected the card which was involved. See, for example, N. A. Constructions, [1982] OLRB Rep. Jan. 77.
As the Board stated in Frankel Steel Limited,[1984] OLRB Rep. Jan. 28, the distinction between innocent error and deliberate misconduct is not always easy to make. The facts of this case clearly indicate that Mr. Kevins intensely disliked the management of the respondent and was prepared to go to the lengths he did go to in order to ensure the certification of the applicant. The evidence discloses deliberate misconduct by Mr. Kevins in that he told Mr. Bilias and Mr. Loch-head not to worry about paying the dollar. In the case of Mr. Bilias, he was told to keep the fact of non-payment to himself. Mr. Lochhead was told to say he paid it. It is hard to imagine a more deliberate attitude to not collecting the dollar payments. The credible evidence fails to disclose any real concern to collect the dollar payments.
In the context of all the evidence before the Board, we are not prepared to place any reliance upon the evidence of membership secured by Mr. Kevins given the deliberate nature of his conduct. In these circumstances, the evidence of membership in the form of the twenty-one cards collected by Mr. Kevins must be rejected by the Board.
The Registrar is directed to list this case for continuation of hearing.
DECISION OF BOARD MEMBER W. F. RUTHERFORD;
I dissent.
The evidence in this case would suggest that Kevins was very unsophisticated and had little, if any, knowledge of the trade union movement, or the organizing of trade unions.
While some statements he made could be contradictory, it was the company who raised the issue of the two non-pay applications. With the company and the petitioners involved, looking for any avenue to defeat the organizational drive of Local 183 of the Labourers' union they could only raise the two incidents.
It is my opinion that if the Board rules that the two applicants did not make payment on the application cards in question, the balance of the application cards obtained by Kevins should not be disallowed.