International Brotherhood of Electrical Workers, Local 353 v. P. & M. Electric (1982) Ltd., 1988 CanLII 3789

[1988] OLRB Rep. August 843

2975-87-R, 2893-87-U International Brotherhood of Electrical Workers, Local 353, Applicant/Complainant v. P. & M. Electric (1982) Ltd., Respondent v. Group of Employees, Objectors

BEFORE: Robert Herman, Vice-Chair, and Board Members R. M. Sloan and R. R. Montague.

APPEARANCES: Elizabeth Mitchell, Bob Gullins and Aldo Didomede for the applicant/complainant; Stephen A. McArthur, Boyd Pollock, Len Boone and Jack Braithwaite for the respondent; no one appeared for the objectors.

DECISION OF THE BOARD; July 14, 1988

1This is an application for certification within the meaning of section 119 of the Labour Relations Act in which the applicant relies upon the provisions of section 8 of the Act, and a complaint pursuant to section 89 of the Act.

2The Board 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 Act. Having regard to the agreement of the parties, the Board further finds that all journeymen electricians and electricians' apprentices in the employ of the respondent in all sectors of the construction industry, excluding the industrial, commercial and institutional sector, in Board Area No. 8, 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.

3At the first hearing day, before a differently constituted panel of the Board, the parties were advised that two of the membership applications submitted on behalf of the applicant did not contain the name of the applicant, I.B.E.W. Local 353, but referred only to The International Brotherhood of Electrical Workers. The parties were further advised that one of the applications for membership had only been signed in one of the two spaces where an individual applicant was to sign. The Form 80 filed in support of the membership evidence ("Declaration Concerning Membership Documents, Construction Industry") disclosed no exceptions and accordingly did not disclose that two of the memberships did not indicate the Local's name and one was not signed in both places by the employee involved. That panel adjourned the proceeding, prior to embarking upon a consideration of the merits of any aspects of the case.

4At the subsequent hearing, in front of the instant panel, the applicant sought leave of the Board to file an amended Form 80, with attached membership applications. In the construction industry, applicant unions are required to file a Form 80, which form is the equivalent form, in text and purpose, to Form 9 for non-construction certification applications. Form 80, in paragraph three therein, reads as follows:

3. (Where the documentary evidence consists in part of receipts or other acknowledgements 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 acknowledgements 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 acknowledgement 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 acknowledgement of payment as collector, EXCEPT IN THE FOLLOWING INSTANCES:

5In Pebra Peterborough Inc., [1988] OLRB Rep. Jan. 76, the Board at some length discussed the purpose and effect of requiring the filing of a proper Form 9, which analysis applies equally to the purposes of requiring a Form 80 to be filed. As the Board stated in that case:

43. As the Board noted in Grand and Toy Limited, supra, and in numerous other cases, the Form 9 Declaration is considered so important by the Board that if one is not filed, the Board will give no weight to the union's membership evidence and the application will be dismissed. Consistent with this principle, if a Form 9 Declaration is filed but the Board determines that it is not a proper Form 9 Declaration, then the Board will also give no weight to the union's membership evidence and will reject the application. For membership evidence to be acceptable, it must not only contain the requisite elements and be filed by the terminal date, but must be supported by a proper Form 9. A Form 9 will be improper when the Board concludes that the declarant either did not possess the requisite personal knowledge to sign the form, or did not engage in the necessary reasonable inquiries as a prerequisite to signing the form. The Form 9 will also be improper if the declarant knew, or ought to have known, either that certain matters ought to be [sic] have been disclosed, but were not, or that some of the disclosures constitute material misrepresentations. At the same time, there may be circumstances where the Form 9 is subsequently determined to be inaccurate, but nevertheless remains proper; for example, the Board is satisfied that the declarant made reasonable inquiries but those inquiries did not disclose exceptions or problems with the membership evidence and accordingly the declaration does not note such exceptions. In this latter circumstance, the declaration itself would be proper (though inaccurate) in that the declarant made the necessary inquiries and disclosed what the declarant knew or ought to have known. Any misinformation or lack of information provided by the person of whom inquiries were made in such a circumstance would not reflect upon the sufficiency or propriety of the Form 9 itself, and accordingly viva voce evidence might well satisfy the Board that the membership evidence in question is reliable. Again, such viva voce evidence is only admissible in certain circumstances: see paragraph 28, supra. But where no Form 9 is filed, or having been filed is found not be proper in the sense that inquiries were not made, or exceptions or matters that should have been noted are not noted or inaccurately noted, the membership evidence will not be properly attested to as required by the regulations, and the membership evidence will be given no weight.

44. Quite apart from the fact that Rule 6 requires such a Form 9 to be filed, fairness to the parties and the integrity of the process demands such a Board response when a proper Form 9 is not filed. It is not a question of punishing the transgressing party, but of ensuring that both the Board and the parties have confidence in the integrity and fairness of the system and the certification process. Any such confidence would be seriously undermined if the Board were to conclude that a Form 9 was improper in one of the respects noted above, but nevertheless were to rely upon the viva voce evidence to find that the membership evidence was adequate and reliable. Were the Board to do so, there would be little incentive for Form 9 declarants to file proper Form 9's or make the necessary inquiries, since at worst an intentionally misleading or negligently inaccurate Form 9 would lead to the Board conducting its own inquiry, and at best, the Board might never discover the problems with the membership evidence. The requirement under the Rules that a Form 9 be filed, and the Board's insistence that it be a proper Form 9, provides the necessary deterrent to such potential abuse.

6Given the importance of a proper Form 80 Declaration being filed, the Board concluded it was not appropriate to allow an amended Form 80 to be filed. The applicant sought leave to file the amended Form only after the first hearing day, at which time potential problems with three membership applications had been disclosed to the parties by the Board itself. To allow the applicant union to file an amended Form 80 subsequent to such disclosure by the Board and subsequent to the initial hearing day would undermine the purpose of requiring that the Form be filed, and would potentially impair the integrity and fairness of the system. To sanction such late filing would be to provide an applicant union with an opportunity to repair its case after concerns or objections had been communicated to it. There would be little incentive for a Form 80 declarant to make reasonable inquiries or to file a proper Form 80 were the Board to allow amended forms to be filed when problems with membership evidence were raised in the hearing. The Board relies on the Form to disclose to the Board and participants in the proceeding those matters described in paragraph 3 of the Form, matters which generally involve disclosing potential defects with the membership evidence not apparent on the face thereof. The Form also serves as an additional verification that the individual applicant for membership has indeed so applied and has paid, where so indicated, the appropriate amount of money in support of the application for membership. For the Form to have efficacy as a verification of the sufficiency of the membership evidence, declarants must understand and accept the obligations required by the filing of the Form. To allow subsequent filing, only after potential problems are raised by other parties or the Board, would subvert this purpose. For these reasons the Board would not allow the filing of the amended Form 80.

7With respect to the sufficiency of the Form 80 and with respect to whether any of the three membership applications in question could be relied upon by the Board, the Board heard the evidence of Robert Gullins, the Form 80 declarant and the individual who had collected all of the filed membership applications. Gullins testified with respect to the circumstances in which he had signed the Form 80, and with respect to the signing and collection of the two applications for membership which did not indicate the name of the applicant union on them. He gave no evidence with respect to the card on which the employee had only signed once. There was no objection to Gullins testifying with respect to these matters. The Board ruled orally that it would not rely on the two cards which did not indicate the applicant's name, but that it would rely upon the card on which the individual applicant for membership had only signed in one of the applicable spaces. The Board further ruled that in the circumstances there was nothing improper with the Form 80 as filed, and accordingly the Board was prepared to rely upon all the remaining membership evidence.

8Absent any objection, from the parties, the Board entertained Gullins' evidence, but we were not prepared to give it any weight with respect to the sufficiency or reliability of the two cards on which the name of the applicant was missing. Evidence with respect to the substantive aspects of applications for membership can only be relied upon by the Board if submitted in documentary form and so submitted by the terminal date: see for example, P.R. C. Chemical Corporation of Canada Limited, [1980] OLRB Rep. May 749; Maple Leaf Mills Limited, [1984] OLRB Rep. Oct. 1474, at Paragraph 9; Colautti Construction Ltd., [1985] OLRB Rep. May 643; and Pebra Peterborough Inc. (supra). Whether an individual employee has in fact applied for membership and whether that application is with respect to the applicant union are substantive aspects of membership and viva voce evidence will not be referred to by the Board in assessing these matters. Accordingly, the Board considered the reliability of the three cards only with reference to the cards themselves.

9The Applications for Membership filed by the applicant read (in blank) as follows:

APPLICATION FOR MEMBERSHIP

No. DATE ___________

I hereby apply for membership in the International Brotherhood of Electrical Workers Local Union ("the union") and agree to abide by the bylaws of the union and the Constitution of the International Brotherhood of Electrical Workers. I authorize the union so be my exclusive bargaining agent in all matters pertaining to rates of wages, hours of work and any other condition of my employment.

signature of witness signature of applicant

PLEASE PRINT THE FOLLOWING IN BLOCK LETTERS:

Name Phone Address City Employer

Employer's Address

I hereby acknowledge and certify that I have paid the amount shown below on account of the initiation fee for membership in the union.

Amount _________________________________________________ /100 Dollars

Signature of Applicant __________________________________________________

Signature of actual collector of above money ________________________________

10Two of the applications for membership were regular in other respects except that in the space in the first paragraph for inserting the number of the local union, that space remained empty. On the third application for membership in question, although "353" was written in that space, in the space immediately below the first paragraph where there is a space for the "signature of applicant", that space remained blank. However, at the bottom cif the application in question, where the card reads "I hereby acknowledge and certify that I have paid the amount shown below on account of the initiation fee for membership in the union", the individual employee in question had signed in the appropriate space. In other words, this particular application for membership had been signed by the individual employee, but only in the second spot where there was a space for the employee to sign, and not immediately below the paragraph at the top of the card, which paragraph reads, in part, "I hereby apply for membership in the International Brotherhood of Electrical Workers Local Union 353..."

11With respect to this latter card, the Board was satisfied that the employee had intended to so apply and had in fact applied for membership. It is clear that the card deals with an application for membership in the applicant local union. The particular part of the card which the employee had signed indicates that the employee is acknowledging and certifying that he has paid the amount shown "on account of the initiation fee for membership in the union" (emphasis added). Although the employee did not sign immediately below the text indicating "I hereby apply for membership...", when the card is read in its entirety, with its heading "Application for Membership", and the particular signed attestation that the employee ac]knowledged and certified that he paid the initiation fee "for membership in the union", the Board was satisfied that the card did reflect the individual's application for membership.

12With respect to the two cards which did not set out the name of the applicant, in that they did not identify the number of the local, the Board rejected those two cards. It was not apparent from the face of the cards that the individual applicants for membership had been applying for membership in the particular applicant union, Local 353. As the cards did not unequivocably indicate that the employees in question were applying for membership in the applicant union, Local 353, the Board was not prepared to give any weight to their cards and they were accordingly rejected.

13The respondent also argued that the cards were deficient when they did not have the employer's name set out in the appropriate space. The Board did not reject any of the cards for this reason, as the cards are applications for membership in a bargaining agent, and not with respect to a particular employer. Such information is not required on applications for membership. The respondent also argued that at least one of the cards was insufficient in that Gullins had testified that he had signed as a witness before the individual employee had signed. We are prepared to assume for this proceeding that the signature of the individual applicant must be witnessed. Having regard to Gullins' viva voce evidence, and having found him credible, we are satisfied that Gullins had in fact witnessed the signatures in question, though he might have signed a particular card or cards as witness prior to the individual employee affixing his signature. That he might so have signed did not detract from the fact that the Board was satisfied he had in fact witnessed the signatures in question.

14Given the particular defects in question, the Board was satisfied that the Form 80 filed was proper. Looking to the actual wording of Form 80 and more particularly paragraph three therein (set out above), no disclosure is required with respect to the names of locals missing or with respect to a signature of an employee missing on a particular card. The purpose of Form 80 (or Form 9 for that matter) is, as the quote from Pebra Peterborough Inc. indicated, to ensure the integrity of the process. As noted, it accomplishes this both by pointing out problems which are not apparent on the face of the membership evidence, and by providing additional verification, from someone other than the individual applicant for membership, that the membership documents, though of a hearsay nature, can be relied upon by the Board. Apart from the fact that the literal wording of Form 80 does not require disclosure of the problems encountered in the instant case, the integrity and fairness of the system is in no way undermined by the failure to disclose apparent gaps or missing signatures or information. In the instant case, the integrity of the system was protected by the Board reviewing the membership evidence to ensure that there were no problems apparent on the face thereof.

15Having disposed of the membership evidence and Form 80 concerns, the Board began hearing the merits of the section 8 and 89 allegations. Prior to the completion of the hearings with respect to these matters, the parties were able to reach a settlement with respect to most matters, and they filed the following Minutes of Settlement:

Board File No. 2975-87-R and 2893-87-U

BETWEEN:

THE INTERNATIONAL BROTHERHOOD OF

ELECTRICAL WORKERS, LOCAL 353

("THE UNION")

Applicant/Complainant

• and -

P. & M. (1982) ELECTRIC LTD.

Respondent

MINUTES OF SETTLEMENT

WHEREAS the Union has filed an application for certification in OLRB File No. 2975-87-R and has filed a Complaint of an Unfair Labour Practice in OLRB File No. 2983-87-U;

AND WHEREAS the Board has held two days of hearing in these matters and continuation dates have been set;

AND WHEREAS the parties now wish to settle the matters in dispute between them;

THE PARTIES HEREBY AGREE:

1. That the Respondent will pay damages to the following grievors:

(i) Doug Herd - one week's wages;

(ii) Aldo Dididomede - two week's wages;

(iii) Tom McAllese - two day's wages;

(iv) Angelo Bazzo - two week's wages;

(v) Mark Schipper - two week's wages.

The damages are to be calculated based on the amount of money being earned by the employee at the date of his termination from employment with the Respondent;

2. The damages as calculated in paragraph 1 are to be paid to the individual employees by cheques which are to be given to the Union for distribution to the individual employees within one week of the date of the signing of these Minutes of Settlement;

3. The Respondent agrees to reinstate in Board Area 8 Aldo Dididomede ("Dididomede") and Mark Schipper ("Schipper") as journeymen electricians and Angelo Bazzo ("Bazzo") as an apprentice electrician. Within one week of the signing of these Minutes of Settlement, the Union shall notify the Respondent of the actual date of the return to employment of these three employees;

4. The Respondent agrees to allow access to its job sites in Board Area 8 to two representative of the Union, as selected unilaterally by the Union, under the terms set out herein. The Respondent agrees that the Union may hold one meeting to a maximum of 45 minutes during each of the two weeks immediately preceding the vote at named locations. The specific time and place of each meeting is to be agreed upon but the meetings shall be held during normal working hours. The Respondent agrees to inform the employees of the time and place of each meeting, to advise them that their attendance is expected and to shut down the Respondent's work during the meetings.

5. The parties agree that the voters' list will be composed of those employees doing bargaining unit work who are at work in Board Area 8 on the date that the vote is ordered by the Board and are still at work on the date the vote is held, with the exception of the reinstated employees Bazzo, Dididomede and Schipper who are entitled to vote provided that they have begun work for the Respondent prior to the vote and are at work on the date of the vote;

6. The Respondent agrees to post at each of its job sites the "Notice to Employees" which is attached as Schedule "A" to these Minutes of Settlement. These Notices are to remain posted from the date of the issuance of the Board decision incorporating these Minutes of Settlement until one week following the date of the vote;

7. The Respondent agrees that the terms and conditions, rights, duties and privileges of employment are to remain unchanged as from June 30, 1988, unless the Respondent has the express agreement of the Union to a change;

8. The parties agree to request that the Board schedule the holding of the vote within 3 weeks of the date on which it issues its decision incorporating these Minutes of Settlement;

9. The Union hereby agrees to a vote among the employees of the Respondent to determine the issue of whether they wish to be represented by the Union and to withdraw its applications for automatic certification and the unfair labour practice complaint;

10. The parties agree to request that the Board incorporate these Minutes of Settlement into a Consent Order of the Board.

SIGNED AT TORONTO this day of July, 1988.

Union Respondent

(SCHEDULE "A" NOT SET OUT HERE)

16Counsel for both parties indicated to the Board at the hearing that although the copy of the Minutes filed with the Board had not been signed, the Minutes did in fact reflect the agreement of the parties.

17Having regard to the Minutes of Settlement and the further submissions of counsel at the hearing, the Board issued at the hearing on July 5, 1988 the following directions and orders:

a) Within one week of July 5, 1988, the Respondent is directed to pay to those individuals named in paragraph one of the Minutes, the amount of wages therein described, by way of damages.

b) The respondent is directed to reinstate forthwith, to employment in Board Area 8, those individuals named in paragraph three of the Minutes, to the positions so described in that paragraph. If those individuals are otherwise employed prior to reinstatement, the normal principles of mitigation will apply.

c) The respondent is directed to provide access as described in paragraph four of the Minutes.

d) As the Board is satisfied on the basis of all the evidence before it that more than forty-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 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, the Board directs that a representation vote be taken of the employees of the respondent in the bargaining unit. Subject to our decision below with respect to Doucet and Della Ventura, those entitled to vote will be as described in paragraph five of the Minutes.

e) The respondent is directed to post a "Notice to Employees'' as described in paragraph six of the Minutes such posting to be effective beginning July 6, 1988.

f) The complaint pursuant to section 89 of the Act (Board File No. 2893-87-U) is hereby withdrawn with leave.

18Subsequent to the filing of these Minutes and the issuance of the Board directions as set out immediately above the parties were able to agree that an individual previously challenged by the union, Ralph Doucet, ought to be excluded from the bargaining unit. The respondent specifically declined to agree that this exclusion was because he exercised managerial functions within the meaning of section 1(3)(b) of the Act. Having regard to the agreed exclusion of this individual, Doucet will not be eligible to vote.

19Salvatore Della Ventura was also challenged by the union as exercising managerial functions within the meaning of the Act. A Board officer had previously been appointed with respect to this issue and his Report was before the Board. After entertaining the submissions of the parties, a majority of the Board (Board member Sloan reserving his decision) ruled that Della Ventura did exercise managerial duties and responsibilities within the meaning of section 1(3)(b) of the Act, and accordingly was not an "employee" for purposes of the Act and would therefore be excluded from the bargaining unit. Board member Sloan is now in agreement with this ruling and the Board's decision in this regard is unanimous.

20We do not intend to recite the evidence, which is set out in full in the Officer's Report, nor the numerous cases referred to by the parties. Although Della Ventura could be described as a working foreman, in that he regularly and routinely performed bargaining unit work along side bargaining unit employees, he also exercised managerial functions. He was primarily responsible for supervising the Toronto area job sites of the respondent. Della Ventura would visit the various job sites, in order to see that the work was progressing properly and that employees were properly performing their work. Two to three times a week he would switch job sites and he would stay at a particular site for varying lengths of time, at his discretion. While on a particular job site he would supervise and direct the crew, correcting mistakes and assigning work to employees and additionally would perform the work himself where he felt it was required. This might well involve working an entire day at bargaining unit work. At the same time, however, he had some limited input into hiring, and provided assessments of the employees to management. He also had significant input into firing, where the occasion arose, in that he would send back to the shop an employee whose services he was not happy with, and would refuse to have that employee on his crew in the future. A significant factor was that Della Ventura himself exercised the discretion, where required, to decide which employees would be sent back to the shop when there was not enough work for all employees on the project. Although the project itself would continue, Della Ventura decided which employees would continue to work on it, and which employees had to return to the shop and hope that there was sufficient work on other projects for them to remain employed. In this respect, Della Ventura was making decisions which had a significant and direct effect on the economic livelihood of the employees on his crews. When his duties and responsibilities were viewed in their entirety, it was more accurate to describe Della Ventura as the person responsible for supervising and managing all the Toronto work sites of the respondent, notwithstanding that he also performed bargaining unit work. This supervision and management included decision making with respect to which employees would be laid off, at least from the job sites under his control. For all these reasons, the Board concluded that Della Ventura exercised managerial functions within the meaning of section 1(3)(b) of the Act.

21All other matters having been settled, and a representation vote having been directed, the balance of the hearing dates set for this proceeding are hereby cancelled.

22This matter is referred to the Registrar.