The United Brotherhood of Carpenters and Joiners of America, Local Union 27 v. Calvano Lumber & Trim Co. Ltd., 1988 CanLII 3772

[1988] OLRB Rep. August 735

1207-87-R The United Brotherhood of Carpenters and Joiners of America, Local Union 27, Applicant v. Calvano Lumber & Trim Co. Ltd., Respondent

BEFORE: R. 0. MacDowell, Alternate Chair, and Board Members D. A. MacDonald and J. Redshaw

APPEARANCES: Michael A. Church and Luis Camara for the applicant; Donald B. Jarvis, David T. Cote and Antony Calvano for the respondent.

DECISION OF THE BOARD; August 17, 1988

I

1. This is an application for certification which was filed on July 31, 1987. The matter came on for hearing before the Board on September 24, 1987.

2. In a decision dated the following day, the Board certified the applicant union as bar­gaining agent for a unit of employees described as follows:

All employees of the respondent in the City of Mississauga, save and except office, clerical and sales staff, foreman and persons above the rank of fore­man.

Subsequently, the respondent sought reconsideration of that decision, and a hearing to entertain its representations took place in Toronto on April 29, 1988. At that hearing, counsel for the parties reached the following agreement:

MEMORANDUM OF AGREEMENT

WHEREAS the Applicant filed an Application for Certification with the Board dated July 30, 1987 (Bd. File: 1207-87-R);

AND WHEREAS the Board issued a decision and certificate dated September 25, 1987;

AND WHEREAS the Respondent has filed an Application for Reconsideration dated Novem­ber 13, 1987;

AND WHEREAS the parties are agreed to the following terms to be issued as an Order of the Board on consent;

1. The parties agree to the Board listing this matter for a certification hearing in the normal manner as soon as possible for the purposes of determining the issues as set cut below;

2. The parties agree that there shall be no change in the application date (July 30, 1987) or ter­minal date (August 17, 1987);

3. The Respondent agrees that it has no other objections regarding the sufficiency of notice to the Company or its employees;

4. The parties agree to request the Board to rescind its decision of September 25, 1987 and the Certificate referred to above and to determine the issues set out below;

5. It is agreed that:

a) the Applicant is a trade union within the meaning of the Act;

b) the Respondent is properly named herein;

c) the application shall be treated as an application that (loes not pertain to the construction industry (in accordance with paragraph 3 of the Board's

original decision referred to above);

d) the bargaining unit shall be described as set out in the Board's decision of September 25, 1987 save for the Respondent's right to make submissions regarding part time exclusions;

e) that Russell Comeau was an employee in the bargaining unit at work on the day in question. The employment status of a second person known as "Ser­gio" is in dispute between the parties;

f) Accordingly the parties agree that the issue to be determined at the certifi­cation hearing is whether the second person ("Sergio") is an employee and if so whether he and Comeau are both members of an appropriate bargain­ing unit;

g) Save and except for the Board's determination of the alleged "non-pay" issue (for which the Applicant reserves the right to contest and object) the parties agree that if the Board determines the individual known as "Sergio" to be an employee in the same bargaining unit as Russell Comeau, then the Applicant shall be certified (in accordance with the Board's original deci­sion referred to above);

h) there shall be no further issues, additions or deletions to the list raised by the Applicant or Respondent.

Dated at Toronto this 29th day of April, 1988.

For the Applicant: For the Respondent:

"Luis Camara" 'Stewart Saxe"

Luis Camara Stewart Saxe

The Board accepted the parties' agreement as to the appropriate mode of procedure, undertook its usual investigation with respect to the alleged "non-pay issue" mentioned in paragraph 5(g) of the parties' agreement, and re-listed the case for further hearing. The matter came on again before the Board on June 24, 1988.

3. At the hearing on June 24, 1988, counsel for the union and the respondent employer agreed that the only matter which would be addressed was the allegation that an employee named Comeau had not, on his own behalf, paid at least one dollar in respect of union membership fees so as to become a "member" of the trade union within the meaning of section 1(1)(l) of the Labour Relations Act. This was the so-called "non-pay" referred to above. We should note, how­ever, that Comeau did sign a document which contains a portion wherein he makes application to become a member of the applicant, and a portion where he purports to certify that $1.00 "was paid by me as evidence of good faith in my application for membership". Mr. Comeau has personally signed both the "application portion" of the membership document and the "receipt portion". His signature is not disputed. He has also filled in or provided information concerning his birth date, address, phone number, and current employer - in this case the respondent. The membership doc­ument was solicited and witnessed by Luis Camara, an organizer for the applicant union whose sig­nature appears as "collector" beside that of Mr. Comeau.

4. In summary, then, the document signed by Mr. Comeau (twice) constitutes an applica­tion to become a member of the applicant union, and authorizes the applicant, unequivocally, to represent him as collective bargaining agent. There is no ambiguity in the document itself nor any suggestion that it did not, at the time, represent the voluntary wishes of the individual who signed it. There is no assertion that Mr. Comeau was threatened in any way or that there was any intimi­dation or misrepresentation or that he did not know what he was signing; nor has Mr. Comeau himself indicated any subsequent change of heart. Mr. Comeau confirms that he has made a one dollar payment. The "defect", if there is one, involves the way in which the $1.00 payment was forthcoming, and whether, in all the circumstances, it could be said that Mr. Comeau really did pay $1.00 "on his own behalf' as he declared himself to be doing at the time. This is the issue raised by the employer.

II

5. The basic facts are not in dispute. In late July 1987, Luis Camara, a recently-hired organizer for the union, noticed a company named "Calvano" on a job site that he was then visit­ing. Camara approached the two individuals apparently working for that company and spoke to them about the benefits of trade union representation. Following this discussion, both Mr. Comeau and Sergio Luna eventually signed membership cards in the form described above. Luna produced the $1.00 payment immediately but Comeau did not have a dollar at the time, and turned to Luna, his co-worker, for assistance. Luna gave Comeau a dollar, and Comeau, in turn, gave a dollar to Camara.

6. As between Comeau and Luna there was no discussion about the responsibility for repayment of the dollar nor any undertaking to do so. Given the nominal amount involved, Comeau really did not give it much thought. He had an intention, andi was prepared to repay this "loan", if asked, but because Luna was only sporadically employed, no one really raised the issue. In the result, Comeau did not repay the $1.00 to Mr. Luna. Mr. Camara, the collector, did not pursue Comeau to find out whether the $1.00 had ever been repaid, and Mr. Comeau never volun­teered the information that it had not been repaid.

7. Form 80 filed in support of this application includes the following paragraph:

8. (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 Ofl 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 thereof on his own behalf to the person whose name appears on his receipt or acknowledgement of payment as collector, EXCEPT IN THE FOLLOWING INSTANCES:

No exceptions are listed. Mr. Camara, the signatory to the Form 80 declaration, does not stipulate that there may have been a "loan" or some other transfer of funds between Mr. Luna and Mr. Comeau, even though he was there at the time.

8. The respondent contends that Mr. Comean should not be treated as a union "member" within the meaning of section 1(1)(l) of the Act, because he has not paid at least $1.00 "on his own behalf' as prescribed by that section. There is, the employer argues, no real financial sacrifice on Mr. Comeau's part, because he obtained the dollar tendered in support of his membership applica­tion from another employee, and there was no demand or perhaps even expectation of repayment. Furthermore, the company asserts, the failure of the union organizer to record the "loan" on the Form 80 declaration invalidates that document in its entirety and is therefore fatal to the whole application. We were referred to a number of cases including N. A. Constructions, [1982] OLRB Rep. Jan. 77 and Laidlaw Wire of Canada Ltd., [1985] OLRB Rep. Oct. 1479. Both cases make reference to a 1953 decision of the Board in RCA Victor Company Ltd., 53 CLLC ¶17,067 where this was said:

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.

The respondent argues that the critical element in the legal equation is whether the employee has a subjective intention to repay any money borrowed from fellow workers. The employee's intention with respect to union membership itself, or support for the union's certification application must not be pursued because pursuant to Rule 73, membership must be ascertained solely on the basis of documentary evidence.

III

9. Whatever may have been the case 35 years ago when RCA Victor was decided (when, it might be noted, there was no provision in the Labour Relations Act equivalent to section 1(1)(l)), it is obvious, today, that a payment of one dollar cannot realistically be considered to be much of a "financial sacrifice". Its purpose is symbolic, and to provide a simple statutory formula for deter­mining union membership without, in each case, an inquiry into the terms of the union constitution defining initiation requirements, membership obligations and so on. In order to facilitate the pro­cessing of certification applications (which now number well over a thousand each year), the Legis­lature has established a simple standard of "membership" for statutory purposes. It is important that trade unions relying on that formula adhere to the prescribed standard. Ordinarily, the mem­bership evidence is not revealed to the employer (see section 111 of the Act and Grand & Toy Limited, [1986] OLRB Rep. Sept. 1223), and against that background the Board is entitled to demand strict compliance with the statutory requirements. Failure to collect the $1.00 payment contemplated by the Act, or to conduct the inquiries necessary to complete the Form 80 declara­tion, can result in the rejection of the union's membership evidence and a dismissal of the applica­tion.

10. On the other hand, there comes a point when technical adherence to alleged "rules" drifts into artificiality and becomes increasingly remote from the real life experience of employees in the work place, whose interests must also be considered if the Board is to faithfully fulfill its stat­utory mandate. Does the ordinary employee in a plant, or on a construction site, seriously distin­guish between a "bona fide" loan of a dollar which s/he "solemnly" undertakes to repay, or an out­right gift of what, today, is a nominal amount? Does a dollar received by an employee in this way cease to be "his own", to use as s/he wishes, because it may be a gift, or there may be no undertak­tng or real concern about its repayment? We do not think so; moreover, as early as 1958 in Webster Air Equipment Co. Ltd., 58 CLLC ¶18,110 the Board indicated that it was "not greatly concerned about isolated instances of money being advanced by one employee to another". The Board recog­nized that these cash transfers were a natural incident of an established relationship between fellow employees who accommodate each other, from time to time, when they are short of funds. Usually there is an expectation of reciprocity, but no one keeps a ledger cataloguing the number of cups of coffee, soft drinks, muffins, chocolate bars or small sums owed to, or by, a fellow employee.

11. What the Board was suggesting in Webster Air Equipment, and what we here confirm, is that the Board will not ordinarily be concerned about the advance of small sums of money from one rank-and-file employee to another whether by way of "gift" or "loan", nor will they be the subject of Board scrutiny, unless the evidence suggests that a union official or the "collector" or perhaps some fervent union supporter was, in effect, "buying memberships". In such cases the Board might well disregard the membership documents altogether or seek the confirmatory evi­dence of a representation vote. However, it is totally artificial and unrealistic to focus upon the expressed or presumed "intent to repay" of an individual employee in respect of the relatively triv­tal sum necessary to meet a statutory requirement which today is merely symbolic.

IV

12. In the instant case we are satisfied that Mr. Comeau, to the extent that he thought about it at all, intended to and would have repaid the dollar to Mr. Luna, if Mr. Luna had raised the matter or really expected formal repayment; or, alternatively, that this minor amount was a gift, to be used by Mr. Comeau as he saw fit - either to buy a coffee or, in this case, to provide the token amount required to confirm his written intention to join the trade union and seek its repre­sentation. The transfer of one dollar from Mr. Luna to Mr. Comeau was a private arrangement, and, once consummated, left Mr. Comeau with a dollar to dispose of as he pleased. It was his money which was tendered on his own behalf to support his written signification that he wished to join and be represented by a trade union.

13. In conclusion then, whether the origin of the dollar in question is characterized as a "gift" or a "loan" we are satisfied that it was Mr. Comeau's money to do with as he pleased, and that advancing that sum in support of his application for union membership meets the require­ments of section 1(1)(l) of the Act and provides the requisite confirmation of the written document contemplated by the statute. That being so, there is no error, omission or misstatement on the Form 80 declaration. While it might well have been wiser for the union organizer to note the loan!gift that he had witnessed, (because that might have avoided these proceedings and consider­able delay), we do not think that there was anything improper in his failure to do so.

14. There remains a dispute about whether Mr. Luna who was working on the job site at the time that he and Mr. Comeau signed membership cards, was really an "employee". The respondent's alternative argument is that Luna was not an employee but rather some kind of "vol­unteer", and that therefore, a "one-rn an bargaining unit" consisting solely of Mr. Comeau is not permitted under section 6 of the Labour Relations Act. There is also some argument about the exclusion from the unit of part-time workers. Since, on the agreement of the parties, the Board did not hear their evidence and representations with respect to these issues, the matter will be re-listed for hearing on a date to be fixed by the Registrar. In addition, the Board hereby appoints a Labour Relations Officer to meet with the parties to explore, simplify, or endeavour to effect the settle­ment of the remaining outstanding issues, without the necessity of a further Board hearing.