Service Employees International Union Local 204 v. Estonian Relief Committee in Canada, 1989 CanLII 3467

[1989] OLRB Rep. May 440

1532-88-R Service Employees International Union Local 204, Affiliated with the S.E.I.U., A.F. of L., C.I.O., C.L.C., Applicant v. Estonian Relief Committee in Canada, Respondent v. Group of Employees, Objectors

BEFORE: Owen V. Gray, Vice-Chair, and Board Members M. Rozenberg and D. A. Patterson.

APPEARANCES: Kathleen Martin for the applicant; D. B. Francis, A. Kuuskne and A. Niitenberg for the respondent; Judith Christ oforou in person.

DECISION OF OWEN V. GRAY, VICE-CHAIR, AND BOARD MEMBER M. ROZENBERG; May 12, 1989

1. By decision dated November 15, 1988 (reported at [1988] OLRB Rep. Nov. 1167), the Board directed that this application for certification be listed for hearing for the purpose, among others, of inquiring into an allegation with respect to certain membership evidence filed by the applicant. At the conclusion of a hearing before us on December 7, 1988, the majority of the panel (Board Member Patterson dissenting) delivered the following decision:

2. This is an application for certification.

3. The inquiry referred to in paragraph 19 of our decision of November 15, 1988, was conducted on December 7, 1988. We concluded that although there was no particular cause for concern either about the transaction identi­fied there or the activities of the collector, the nature of the inquiries made by the Form 9 declarant was such that the Form 9 Declaration itself was unsatisfactory. Accordingly, there was not satisfactory evidence before us that any employee of the respondent was a member of the applicant at any relevant time and, therefore, we ruled orally (Board Member Patterson dis­senting) that this application, including the claim for certification under sec­tion 8, was dismissed. This dismissal was and is without prejudice to the fil­ing of any application supported by a fresh, accurate Form 9 declaration.

4. Our reasons for this decision will be given in writing in due course if a written request for such reasons is delivered to the Registrar within fourteen days.

Counsel for the respondent has asked that we deliver reasons in writing for this decision.

2. The allegation which led to our inquiry was described in paragraphs 18 and 19 of the panel's decision of November 15, 1988. The evidence we heard from Ms. Ender (the applicant for membership) and Ms. Kokko (the collector) was that when Ms. Ender signed the application for membership offered to her by Ms. Kokko she had only a $20.00 bill with which to make the requi­site $1.00 payment. Ms. Kokko was unable to make change. They were both on the way to a meet­ing between union representatives and bargaining unit employees. Ms. Kokko suggested that Ms. Ender might speak to someone she knew in the bargaining unit with respect to her need for change. Once in the meeting, Ms. Ender spoke to a fellow employee she knew and asked to bor­row a dollar. The friend loaned her the dollar. She then took the dollar and the signed card to Ms. Kokko. Ms. Kokko did not see the transaction between Ms. Ender and her friend, nor did she ask Ms. Ender where she had got the dollar. Ms. Ender repaid her friend when she next saw her. This evidence did not cast any doubt on the application for membership in question, nor on the activi­ties of the collector in connection with it. The absence in the Form 9 Declaration of any reference to this transaction was not a concern when, as here, the collector had no knowledge that the dollar tendered by the applicant for membership had been obtained from someone else. (That is not to suggest that we would necessarily have been more concerned had the collector been an eye-witness to the transaction between Ms. Ender and her friend. That is not the situation with which we had to deal.)

3. When the Board undertakes an inquiry with respect to membership evidence, it sum­mons both the collector of the evidence and the Form 9 declarant so that it can discover what com­munication there was between the collector and the Form 9 declarant with respect to the member­ship evidence which is the subject of the inquiry. In this case, Ms. Kokko testified that the only question she was asked by the Form 9 declarant when she handed over to him Ms. Ender's card and dollar was whether she had lent the dollar to Ms. Ender. She could not remember being asked any other question. The Form 9 declarant testified that when he received Ms. Ender's card and dollar from Ms. Kokko, he asked her two questions: whether she had lent the person the dollar and whether she had forced the person to sign. He received a negative answer to both questions. He checked the card to see that signatures appeared in the proper places on it.

4. The Board drew the Form 9 declarant's attention to the language of paragraph 3 of the Declaration he had signed, which reads:

(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 the payment an 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:

The Form 9 declarant was asked how his having asked just those two questions would have put him in a position to make the statement contained in paragraph 3. He replied that from the fact that Ms. Kokko had not lent the applicant the dollar he assumed that the applicant had paid her own dollar to Ms. Kokko. He volunteered that the two questions he asked of Ms. Kokko with respect to Ms. Enders' card were the only two questions he ordinarily asked in an organizing campaign and were the only two questions he had asked with respect to any of the cards submitted by the union in connection with this application.

5. Ms. Kokko was shown as collector on all of the cards submitted in connection with this application. Before Ms. Kokko began collecting cards, the Form 9 declarant instructed her with respect to the steps to take. These instructions were confirmed on a written form which she was required to sign. The form read as follows:

INSTRUCTIONS TO COLLECTOR

1. Collect $1.00 from each person who signs our card.

2. Do not lend any person any money. The dollar must be paid for by the applicant only.

3. If the applicant does not have a dollar when approached do not allow applicant to sign card. Wait until the applicant has the dollar for payment before allowing card to be signed.

4. The applicant must sign in both places where you see SIGN HERE

5. Witnesses (as the Actual Recipient) by the persons signature at the time of signing by the person.

6. See that the date of signing is the date the card is signed.

7. On the back of the card please print all information required, including Apartment No. or Unit No.

8. The Receipt must be completed by the Receiver and dated the same as the date of applicants signature and the receipt then given to the applicant.

I have read the above instruction and undertake to carry them out to the best of my ability.

Signed:

Witnessed:

Date:

All but two of the cards submitted with this application were handed to the Form 9 declarant on September 25, 1988. On this occasion, the Form 9 declarant asked Ms. Kokko whether she lent anyone the dollars. She answered "No, those are the original dollars." The Form 9 declarant asked if she had forced the applicants to sign or had any problems or questions that she needed answered. She said no. He asked no other questions. During his testimony before us, counsel for the union asked the Form 9 declarant several times whether he had made inquiries as to who had paid the dollars which accompanied the cards. He said he had not.

6. The problem this evidence created was quite simple: how could Ms. Kokko's statements that she did not lend the dollars or force anyone to sign a card amount to information that each applicant for membership had personally paid a dollar directly to Ms. Kokko, which is what the Form 9 declarant represented he knew as a result of personal knowledge and inquiries?

7. At the conclusion of the testimony of the Form 9 declarant, counsel for the union sought to recall the collector as a witness to establish that the persons whose names appeared on the cards had personally made the $1.00 payments referred to in the cards and that the payments had been made directly to her as collector. The relevance of the proposed evidence was ques­tioned.

8. In Pebra Peterborough Inc., [1988] OLRB Rep. Jan. 76 the Board reviewed the func­tion of the Form 9 Declaration, noting that the membership evidence to which it relates will not be given any weight where a Form 9 is not filed or, having been filed, is found not to be proper in the sense that inquiries were not made or exceptions or matters that should have been noted were not noted or inaccurately noted. A question arose in that case about whether inadequacies in the Form 9 Declaration or the inquiries made by the Form 9 declarant could be cured by introducing evi­dence before the Board with respect to the matters which ought to have been the subject of the Form 9 declarant's inquiry. The Board concluded that it could not, and made these observations in that connection:

9. 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.

The issue which had arisen before us was whether the Form 9 declarant in this case made the inqui­ries which paragraph 3 of each of his Declarations represented he had made before signing those Declarations. The evidence which union counsel wished to adduce by recalling the collector would not have addressed that issue. It appeared to the panel that the passage we have quoted from Pebra Peterborough Inc., infra, answers the proposition that such evidence should be received in order to assess whether any failure to make appropriate inquiries was of serious consequence in the circumstances of this case. It is always of serious consequence when a Form 9 declarant fails to make the inquiries contemplated by paragraph 3 of the declaration, whatever might have been the result if such inquiries had been made. This panel ruled unanimously that the evidence union coun­sel wished to introduce was not relevant and would not be received.

9. The union official who signs a Form 9 Declaration thereby represents to the Board that he or she has personal knowledge or has made appropriate inquiries with respect to the matters referred to in paragraph 3 of Form 9. As the Board observed in National Steel Car Corporation Limited, [1966] OLRB Rep. Jan. 738 at paragraph 13:

It is readily apparent that a person completing Form 9 must be seized with some type of knowl­edge in order to satisfy the requirements of item 3 cited above. This knowledge may be personal knowledge (i.e.) knowledge gained by either acting as the actual collector or knowledge gained by being personally present and actually witnessing the transaction between the collector and the member wherein the membership card was signed and payment of money made by the mem­ber to the collector.

The other type of knowledge which is acceptable is that knowledge gained from inquiries made of the persons who actually acted as collectors, or the persons who made the necessary inquiries of the actual collectors.

The requirement that inquiries be made is obviously not an onerous one or one that imposes an undue burden on the applicant; however, the requirement is that inquiries be made. In order that inquiries be meaningful it is obvious that they must be made after the event. Instruction given to collectors prior to the signing of members may be helpful or necessary in the carrying out of an organizing campaign, however, such instructions do not obviate the necessity of making the inqui­ries required for the proper completion of Form 9. (See Dominion Stores Limited case, [1964] OLRB Rep. Dec. 447).

In the instant case, Mr. Storey, prior to completing Form 9 made inquiries of Mr. Cooke. How­ever, Mr. Cooke had made no inquiries of Mr. Griffin and in turn Mr. Griffin had made no inquiries of other persons who had acted as collectors. It is readily apparent that the inquiries made by Mr. Storey were made of a person who had no direct knowledge of the collectors and the failure of Mr. Cooke and Mr. Griffin to make inquiries frustrated the purpose of Mr. Sto­rey's inquiries. Where the officers of an applicant trade union have themselves frustrated the inquiries made by the person who completes Form 9 and by their failure to follow through with their own inquiries, render the inquiries made by such persons meaningless, we must find that Form 9 in such circumstances cannot serve the purpose for which it was intended and in such cir­cumstances is a nullity. In arising at this conclusion, the Board has noted with approval the Valley Transportation Company Limited case, [1963] OLRB Rep. Nov. 448, wherein the Board said at p. 452:

The Board must expect and insist that persons who file applications for membership cards and receipts and Form 9 as evidence of membership, take all necessary precau­tions and care to ensure that the information contained therein is true and accurate. The Board is entitled to demand the highest standards of integrity, disclosure, and accuracy on the part of those who submit such evidence and where undisclosed inac­curacies of material facts are later brought to its attention, to take a strict view of them.

[emphasis added]

In Kitchener News Company Limited, [1980] OLRB Rep. Nov. 1656, the Board observed that:

The standard enunciated by the Board in National Steel Car, supra, has been consistently applied in other cases in which the same issue arose. It is a standard which is well known in the labour relations community, and the cases on point are legion (see for example: Puretex Limited, [1972] OLRB Rep. June 676 and cases cited therein; Stanley Steel Company Limited, [1972] OLRB Rep. Feb. 181; and N. D. Supermarket Limited, [1976] OLRB Rep. March 112; Triad Triumph Limited, [1976] OLRB Rep. March 115; Country Village, [1976] OLRB Rep. July 373; The Alexandra Hotel Limited, [1972] OLRB Rep. Nov. 963; and more recently Trent Valley Lodge Limited, [1980] OLRB Rep. June 926). The purpose of the Form 8 [now Form 9] inquiry (and the 'second check' that it builds into the system) is equally clear. The Board must place total reliance on documentary evidence--written hearsay, often solicited by inexperienced laymen, yet not revealed to the employer or subject to cross-examination (see section 100 of the Act). On the basis of that evidence, a trade union may be certified as the employees' bargaining agent without recourse to a representation vote. Indeed, unless some specific irregularity is brought to the Board's attention, the Board will normally place total reliance on the Form 8 Declaration and will not undertake any formal inquiry concerning membership documents which appear to be regular on their face. In the present case, for example, the Form 8 problem would never have come to light had it not been for the disclosure of an irregularity which would not have been apparent on the face of either the Form 8 Declaration or the membership card itself. To avoid such problems, the Board has always held that the person signing the Form 8 must be meticulous and comply strictly with its requirements.

10. With respect to each piece of membership evidence which consists in part of receipts or other acknowledgements of payment, a Form 9 declarant must be able to declare that the persons whose names appear on the cards as collectors are the persons who actually collected the money referred to in them and that each applicant for membership personally paid the amount shown on the card to that collector. It is not enough for a Form 9 declarant to base this Declaration on an assumption that collectors have carried out instructions given to them before they collected the cards in question. It is not enough to base the Declaration on an examination of the cards; the object of the Form 9 Declaration is to corroborate the contents of the cards. The nature of the inquiries necessary in any particular case will depend on the circumstances, but there is a minimum content to the inquiries the Form 9 declarant must make when he or she does not have personal knowledge of the circumstances in which the membership evidence to be submitted with it was obtained. It is necessary for the Form 9 declarant to ask, in some way or other, whether the appli­cants for membership named on the cards personally paid the dollars submitted with their applica­tions for membership and whether the persons named as collectors on those cards are the persons who collected those dollars directly from the applicants. These questions must be asked either of someone who would have personal knowledge of the answers or of someone who has himself or herself made appropriate inquiries. The ultimate source of information obtained by inquiry must in each case be someone who would have personal knowledge of the matters inquired about.

11. The issue here was not whether the Form 9 declarant honestly believed that the appli­cants for membership all personally paid to Ms. Kokko the amounts shown on their cards, nor is it whether he made some enquiries about the circumstances in which cards were obtained. The issue is whether he had personal knowledge or made enquiries about the matters addressed by para­graph 3 of the Form 9 Declaration he signed. The exchange between the Form 9 declarant and the collector in this case did not address the relevant questions. The implicit representation in his dec­laration that he had made inquiries with respect to those matters was inaccurate. As a result, we could not be satisfied that any of the documentary evidence submitted with those Declarations was reliable evidence that the persons referred to in it were members of the applicant. In the absence of any reliable evidence that any person in the bargaining unit was a member of the applicant on the relevant date, the application failed insofar as it was an application under section 7. As there was no reliable documentary evidence of membership support referable to any point in time, the application also failed insofar as it was an application under section 8.

DECISION OF BOARD MEMBER D. A. PATTERSON; May 12, 1989

1. I dissent from the majority decision of the Board. I would not have found the appli­cant's Form 9 to be faulty.

2. The evidence is that the Form 9 declarant filed two Form 9's, one was signed for 19 employees and the second Form 9 was signed for 2 employees. The second Form 9 involved the allegations by the representative for the group of objecting employees of non-pay against the collector for the applicant.

3. The Form 9 declarant, an organizer for the applicant, for a number of years has devel­oped an information sheet containing do's and don'ts for those employees assisting him in organiz­ing campaigns. The form is laid out in paragraph 5 of the majority decision. At the bottom of the form there is space for signatures and dates for those persons involved in a campaign by the appli­cant. The collector, Ms. Kokko was given this information sheet by the Form 9 Declarant, who went over the sheet with her before she signed and dated it. Mrs. Kokko also gave evidence that the Form 9 declarant had stressed the importance of diligence on her behalf during the organizing campaign citing an example of a certificate of representation of a union was revoked because the union involved had erred in its evidence during the certification application.

4. Ms. Kokko was asked by the Form 9 declarant if she had lent anyone $1.00, to which her evidence was "those are the original $1 .00's". He also asked the collector if she had forced anyone to sign a card to which she replied "no". I believe the collector was aware of her responsi­bilities as organizer and collector for the applicant union, she was counselled before the actual campaign started by the Form 9 declarant and was aware of the consequences of doing something wrong during the campaign. The collector testified this was the first time she was ever involved in an organizing campaign for a union. I believe she acted in a conscientious manner and her conduct was of a cautious nature during the campaign. The Form 9 declarant was given no reason to doubt the collector's statements about moneys collected and cards signed and witnessed by her. To the best of his knowledge, of the enquiries he made, he was satisfied that the persons who made appli­cation to the union paid their own $1 .00 and were receipted properly by the collector for the $1.00 received.

5. This case is distinguishable from Pebra Peterborough Inc., [1988] OLRB Rep. Jan. 76, at paragraph's 22 and 23:

6. The instant application was received by the Board on February 18th, and was fol­lowed shortly thereafter by a Form 9, again signed by McLean as President of the applicant, which again disclosed no special circumstances or exceptions. With respect to this Form 9, and McLean's personal knowledge of the circumstances of the collec­tion of cards, McLean testified that he had had very little to do with the collection of cards, or the re-signing of the membership cards, as only Hamilton and Rutherford had collected them. He also testified that he could not answer whether the person who had signed as collector on the second re-signed cards, for which no additional dollar was paid, had signed the original card as collector. McLean in effect admitted in testimony that when he signed this Form 9 he was unaware of whether the person signing as collector had actually collected the dollar with respect to the applicable card. McLean also testified, with respect to cards signed by first time members and accompanied by a dollar payment, that he had personal knowledge of the signing of only one of those new cards. He had no personal knowledge of the collection of the other new cards. he did not compare the cards with the receipt books before signing the Form 9. He also stated that he had not asked the two collectors, prior to signing this Form 9, whether each of them had collected the dollar for the cards which they had signed as collector.

7. Rutherford in turn testified that she had no discussions with McLean whatsoever with respect to either the first Form 9 filed in this proceeding, or as will be seen shortly, the subsequently filed amended Form 9. Rutherford testified that neither McLean, nor Hamilton (to whom Rutherford had given her cards); had asked her any ques­tions about the collection of cards that Rutherford had signed as collector.

In Pebra, supra, the Form 9 declarant gave evidence to the Board he had made no enquiries what­soever of the 2 collectors. This was corroborated by Ms. Rutherford, one of the collectors.

6. The Board is not dealing with a situation where the Form 9 declarant did not make enquiries, or that the $1.00 was not paid or receipts given by the collectors. The Board is faced with determining whether enquiries made by the Form 9 declarant were sufficient enough to satisfy the Board that the applicant's Form 9 was signed after sufficient enquiries were made of the collec­tors and the Board was satisfied of the enquiries made. The majority of the Board is not satisfied, I am.

7. I would have found the declarant's Form 9 proper and allowed the membership evi­dence and issued a certificate to the applicant.