Ontario Labour Relations Board

[1989] OLRB Rep. June 583

0001-89-R Retail, Wholesale and Department Store Union, AFL:CIO:CLC:,Applicant v. Cuddy Food Products Ltd. and Cuddy International Corporation c.o.b. as a partnership in the name of Cuddy Food Products, Respondent v.United Food & Commercial Workers' International Union Local 175 AFL-CIO­CLC, Intervener

BEFORE: Patricia Hughes, Vice-Chair, and Board Members R. M. Sloan and H. Peacock.

DECISION OF THE BOARD; June 28, 1989

1. The name of the respondent in the style of cause is hereby amended to read "Cuddy Food Products Ltd. and Cuddy International Corporation c.o.b. as a partnership in the name of Cuddy Food Products" ("Cuddy Foods") for reasons given below.

2. By decision dated April 21, 1989, the Board directed the taking of a pre-hearing repre­sentation vote in this application for certification brought by the applicant, Retail, Wholesale and Department Store Union, AFL:CIO:CLC ("Retail, Wholesale"), with respect to certain employ­ees of Cuddy Foods who were already represented by the United Food & Commercial Workers' International Union Local 175 AFL-CIO-CLC" ("U.F.C.W.").

3. The April 21st decision directed that a hearing be scheduled to permit the parties to address the issues of the respondent's legal name and allegations filed by the U.F.C.W. about the membership evidence. The decision also indicated that a small number of the membership cards filed were incomplete. Subsequently, but too late to give notice to the parties for the hearing already scheduled, the Board, as a result of an inquiry by a Labour Relations Officer directed by the Board, also put down for hearing the issue of whether an individual in whose name an applica­tion for membership had been filed as documentary evidence of Retail, Wholesale's support, had in fact signed the card filed ("the non-sign").

4. U.F.C.W. withdrew its allegations on the first day of hearing. Also on that day, the Board orally amended the style of cause to change the name of the respondent; on the second day of hearing, after recessing to consider the evidence and submissions on the issues of the "non-sign" and the Form 9, the Board ruled orally that we were satisfied about the validity of the card and about the reliability of the Form 9. This decision gives our reasons for those rulings.

5. With respect to the respondent's name, counsel for Cuddy Foods provided us with a copy of a resolution indicating that a partnership agreement had been entered into by Cuddy Food Products Ltd. and Cuddy International Corporation which provided that together they would "carry on business under the firm name and style of 'Cuddy Food Products"'. The other parties did not dispute that this was the proper name of the respondent and we amended the style of cause accordingly.

6. With respect to the "non-sign", we heard evidence from the person whose name appeared on the card as the applicant for membership, Choeun Por, the collector named on the card, Curtis Clyke, and the Form 9 Declarant, Tom Collins; the evidence of the latter two wit­nesses was also relevant to our inquiry into the sufficiency of the Form 9.

7. The signature of the applicant for membership on the impugned card did not resemble the signature purporting to be that of the same person, Mr. Por, filed by the employer as that indi­vidual's "specimen~~ signature. The Board therefore directed a Labour Relations Officer to inquire into whether Mr. Por had signed the card. Mr. Por told the Officer he had not signed the card and therefore the Board put the matter down for hearing. At the hearing, Mr. Por testified that he had signed the card and explained the discrepancy in what he had told the Officer and what he was tell­ing us as resulting in the main from his concern that, with two unions involved, he did not want to be seen to be supporting the losing union and from some confusion as to which union the card indi­cated he supported. Mr. Por used a translator for much of his testimony, although he spoke English at the request of counsel for the U.F.C.W. at times; in any case, his testimony was some­what confusing. Nevertheless, and after taking into account some discrepancies between the testi­mony of Mr. Por and that of Mr. Clyke (in particular on the question of who else was present when Mr. Clyke asked Mr. Por to sign the card), we concluded that Mr. Por did sign the card filed in his name. In that respect, the sufficiency of the Form 9 was not an issue.

8. We considered the reliability of the Form 9 with respect to the incomplete membership evidence, however. Certain cards lacked dates or failed to show that at least $1.00 had been paid as membership fees. Other cards had printed signatures or initials. None of this information, in par­ticular, the lack of $1.00 payment, had been noted on the Form 9.

9. The importance of the Form 9 has been emphasized in the Board's jurisprudence over many years: see, for example, Valley Transportation Company Limited, [1963] OLRB Rep. Nov. 448, at pp. 451-452; Can-Eng Metal Treating Ltd., [1988] OLRB Rep. May 444, at para. 22. Because the certification process under the Act relies heavily on documentary evidence filed by applicants for certification -- indeed a trade union may be certified solely on the documentary evi­dence it files if it evidences sufficient support which is not challenged --, the Board must be satis­fied that it was obtained in accordance with the requirements of the Act. Form 9 is a statement by a responsible official of the applicant that membership evidence was gathered by the applicant's collector(s) in conformity with the requirements of the Act, set out by the Board in Pebra Peter-borough Inc., [1988] OLRB Rep. Jan. 76, at para. 32:

32. ... First, the basis of the declarant's knowledge must be personal experience or reasonable inquiries that the declarant has made. Second, the declarant must be able to declare that the col­lector named on the membership card actually received the payment of money from the mem­bership who signed the card. Third, where exceptions exist to the declaration with respect to the second aspect, the declarant must note those exceptions in the particular instant. "EXCEPT IN THE FOLLOWING INSTANCES:" requires an itemized listing of exceptions. Fourth, and of critical importance given the purpose of Form 9 and the Board's reliance on the integrity of the declarant and therefore of the hearsay membership cards, the declaration must not contain any statements that the declarant knew or ought to known were material misrepresentations.

10. In some cases, the Form 9 Declarant may be the same person who collected all the membership evidence or witnessed the signing of the cards and payments of $1.00, but more often the Declarant may have him or herself collected none or only some of the cards and must ask of those persons who did collect cards questions which satisfy him or her that the proper procedures were followed; on other occasions, as in Retail, Wholesale's campaign in this case, the Form 9 Declarant may be two or three times removed from the collectors: Mr. Collins testified that he relied heavily on two "key organizers", Bob Lowe and Doug Reid. Mr. Lowe and Mr. Reid received cards themselves from collectors; however, other people in the office could also accept cards from collectors and then give them to Mr. Lowe or Mr. Reid (the secretary was specifically instructed to hand them over to a staff representative). Whoever received cards was to make the proper inquiries of the collector. Mr. Collins then made inquiries of Mr. Lowe and Mr. Reid before making his Form 9 Declaration.

11. The crucial issue is whether the inquiries Mr. Collins made were adequate to found the Form 9 Declaration. No one raised any allegation that either Mr. Lowe or Mr. Reid (or anyone else in the chain) did not make the appropriate inquiries, nor is there any evidence on that point except Mr. Collins' evidence that he had instructed them to make certain inquiries and understood they had done so. The evidence and submissions centred on the nature of Mr. Collins' inquiries. Mr. Collins stated that he asked and instructed Messrs. Lowe and Reid to ask of the collectors whether anyone signing an application for membership had borrowed $1.00, whether they had ensured that the $1.00 was that of the applicant for membership and whether they had witnessed the signing of the application for membership. On another occasion, he said that the direct ques­tions he asked were: did the collector collect $1.00; did the applicant pay $1.00; did the collector witness the applicant's signature.

12. Mr. Collins' evidence was most troubling with respect to the requirement that the Form 9 Declarant satisfy him or herself that the applicant for membership paid the $1.00 to the collector of his or her card -- or, put the other way -- that the person signing as the collector had collected the $1.00 from the person who signed that card as the applicant for membership. There is no one particular way in which this question is to be asked; there is no formula. The test is whether the inquiry or inquiries would elicit the information required. On Mr. Collins' evidence alone we had some concern that while his inquiries certainly dealt with the payment and receipt of $1.00, they did not necessarily make the connection between a $1.00 being given by a particular applicant to a particular collector. But Mr. Collins' evidence was not the only evidence before us on this point. In the Board's questioning of Mr. Clyke, we had asked him what questions Mr. Collins asked him when he (Mr. Clyke) took him cards he had collected. His testimony was clear: "He wanted to make sure there wasn't any loaned money and that I'd definitely received $1.00 from the person I'd signed up". While that is the testimony of only one collector and in itself indicates only that Mr. Collins asked Mr. Clyke that question, it is sufficient to resolve the difficulty we had with Mr. Col­lins' testimony. Mr. Clyke's testimony does not contradict that of Mr. Collins, but rather states more specifically and explicitly what Mr. Collins' evidence skirted around: not only that $1.00 was paid and $1.00 was received, but that it was paid by and to certain persons. On all the evidence before us on this question, we are therefore satisfied about the reliability of the Form 9 filed in this application. We are satisfied that Mr. Collins' failure to note exceptions does not stem from any failure by him to make reasonable inquiries, but from the failure of those of whom he made the inquiries to reveal, for example, the omission of "$1.00" on a card, or, as Mr. Collins suggested, by poor proofreading by whose upon whom he relied - Mr. Collins did not knowingly make any material misrepresentations in signing the Form 9.

13. This case illustrates several aspects of the place of the Form 9 in the Board's certifica­tion proceedings. The first is the danger of "rote" inquiries which do not really address or do not address completely the purpose of the Form 9: the thrust of the declaration goes to the very spe­cific transaction which is to take place between the applicant for membership and the collector of that person's application for membership. The best way to ensure that the applicant for member­ship has in fact paid $1.00 and to obtain the best evidence that he or she has paid it on his or her own behalf is to minimize the parameters of the transaction to the applicant for membership and the collector of that person's card. Where those parameters are extended, the extension must be reported on the Form 9: for example, the $1.00 is paid to someone else or paid at a time different from the time the application was signed. It is only when the significance of the requirement is understood that the significance of the exceptions can be understood and explored.

14. Related to that consideration is the following: the Form 9 Declaration is not the same as ensuring that the membership evidence is satisfactory on its face, although the two are interrelated. It may be, for example, that every card shows that the card was signed on January 2, 1989 and that the $1.00 was paid on January 2, 1989; what would not be revealed on the face of the cards is that in every case, the $1.00 was not paid until two hours or some other period after the card was signed. Addressing oneself deliberately to the requirements of the Form 9 would compel one to consider the relevance of the timing of signing and payment. Certainly where there are no surface problems with the cards, the Form 9 is likely to be accepted as reliable without further examination -- but that can be so only if the Board remains satisfied that the Form 9 can stand alone because the nature of the inquiries and the purpose of the inquiries is understood. Thus it is not sufficient to review the cards and assume that because right words appear in the right places, the specific and explicit Form 9 requirements are met; that can be determined only through the appropriate inqui­ries.

15. It is also for that reason that the degree of deviance is not the critical issue. It may be that only one card out of 300 omits the reference to $1.00 paid. But examination of the Form 9 declarant may reveal that he or she never inquired about whether the applicant for membership paid the $1.00 him or herself. The discrepancies in or problems with the cards merely serve as a catalyst for the Board’s examination of the Form 9 declarant which may engender other concerns about the collection of the evidence or the employer's involvement in the formation of the trade union (on the example above).

16. While we ruled orally and our reasons indicate that we were satisfied on all the evidence before us that the Form 9 is reliable, we must observe that Mr. Collins' testimony with respect to the inquiries he made and the instructions he gave Mr. Lowe and Mr. Reid, while all necessary, came dangerously close (from Retail, Wholesale's perspective) to failing to appreciate the specific significance and requirement of the Form 9 and to confusing the adequacy of the membership evi­dence with the reliability of the Form 9. And the submission from counsel that the extent of the irregularity is minimal in light of the number of cards filed does not distinguish between the appearance of the cards and the actual transactions which occurred in the signing of those cards. In other words, the purpose of the Form 9 is to go behind the cards themselves: the Board is capable of looking at the cards and seeing whether they are complete; it is not capable of examining the underlying transactions without calling all the employees who purpotedly signed cards, for several reasons an undesirable and often impractical exercise, and it is for that reason that it relies on the Form 9.

17. Our April 21st decision had directed that the ballot box be sealed until further order of the Board. While the applicant had requested that we direct that the box be opened at the first day of hearing rather than waiting until we had determined the "non-sign", we concluded that it would be preferable to deal with the "non-sign" first. It is, of course, quite possible and it does happen that non-sign allegations or other membership evidence allegations are made after the vote has been counted; the result may be that an applicant may win a vote but nevertheless have the appli­cation dismissed. That is an unfortunate concomitant of the system and a desire to avoid it does not in any sense warrant sealing all ballot boxes until (for example) the time for making representa­tions about an application or vote has passed. But where such a result is a foreseeable outcome of an inquiry, it is preferable to avoid it. In this case, the non-sign did not appear to affect the entitle­ment to a vote on numerical grounds, but it could have resulted in a dismissal of the application because of the insufficiency of the Form 9 or because we were satisfied that the nature of the mis­representation to the Board warranted dismissal of the application. Therefore, we declined to open the ballot box at that time. Once the outstanding matters of the "non-sign" and the Form 9 had been dealt with, however, we ruled orally that the box was to be opened and the vote counted and that was done at the conclusion of the hearing.

18. No statement of desire to make representations has been filed with the Board within the time fixed under subsection 70(3) of the Board's Rules of Procedure following the counting of the vote.

19. On the taking of the vote, not more than fifty per cent of the ballots cast were cast in favour of the applicant.

20. This application is therefore dismissed.

21. The Board will not entertain an application for certification by the applicant with respect to any of the employees of the respondent in the voting constituency within the period of six months form the date hereof.

22. The Registrar will destroy the ballots cast in the pre-hearing representation vote taken in this matter following the expiration of 30 days from the date of this decision unless a statement requesting that the ballots should not be destroyed is received by the Board from one of the parties before the expiration of such 30-day period.