Hotel Employees and Restaurant Employees Union, Local 604 v. 599207 Ontario Inc., 1990 CanLII 5748

[1990] OLRB Rep. November 1103

0181-90-R Hotel Employees and Restaurant Employees Union, Local 604, A.F. of L., C.I.O., C.L.C., Applicant v. 599207 Ontario Inc., Respondent v. Group of Employees, Objectors

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

APPEARANCES: Harry A. Lavoje, Gerald (Gerry) Ellis, Lynn Ronco and Wendy Little for the applicant; R. W. Kitchen and John Lepore for the respondent; Donald White, Christine Kosmack, Tracy Shaw and William Cadoret for the objectors.

DECISION OF THE BOARD; October 30, 1990

1. At the last day of hearing, the Board made a number of oral rulings, including that the petition was involuntary and that Christine Kosmack was a managerial employee within the mean­ing of section 1(3)(b) of the Labour Relations Act, and therefore was not an employee for purposes of the Act. The Board reserved its decision with respect to the issue of whether the membership card of Nancy Witherden could be relied upon by the applicant union. If her card is found to be a reliable membership card, then the applicant would be certified without a vote with respect to the part-time bargaining unit, subject to the resolution of the Board's inquiry into various non-pay allegations and the reliability of the Form 9 declaration. If however, her card is rejected by the Board, then a vote would be directed in the part-time unit, since without her card the applicant has less than 55 per cent membership support in that bargaining unit, even though the petition was found to be involuntary and no weight was given to the signatures on it.

2. The blank form of the Application for Membership, (or membership card) submitted in support of the application is as follows:

APPLICATION FOR MEMBERSHIP

in the

HOTEL AND RESTAURANT EMPLOYEES' AND BARTENDERS' INTERNATIONAL UNION

affiliated with

AFL-CIO CANADIAN LABOR CONGRESS

NAME ___________________________________________________

(Please Print Plainly)

ADDRESS _______________________________ TEL ___________________

Employed at ______________________________Occupation _______________

do hereby make application to become a member of -.

HOTEL AND RESTAURANT EMPLOYEES' AND BARTENDERS' INTERNATIONAL UNION

Local No. ________________________________

If accepted I agree not to violate the provisions of the constitution and ritual of the International Union, and agree to conform to the Constitution and by-laws now in force or hereafter amended, all roles and regulations of our International Union or Local Union to which I am designated.

I agree, as a member of or, hereby applying for membership in. do designate and authorize said organization separately and/or collectively through any of its affiliated locals, agents or representatives to represent me, and as such representative for me and in my behalf to negotiate and conclude agreements as to hours of labour, wages and other employment conditions in accordance with the by-laws of said organization.

I further agree to allow my employer to deduct from my earnings Union Dues assessed by the designated Local of the Hotel and Restaurant Employees' and Bartenders' international Union such deduction to be made on or before the 7th of each month.

Date ________________________________ Signed____________________________

Were you ever a member of this International? Yes ______ No ___________

On Account of Initiation Fee $_________________________

Initiation Fee $___________________ I confirm payment of $ ___________________________ Received by ______________________ Member's Signature ____________________________

3. The problem with respect to Ms. Witherden's card arises with respect to whether a dol­lar was paid in support of her application. In the first space on the card for a monetary amount to be noted, where it reads "On Account of Initiation Fee $_"(just below the paragraphs which describe the Application for Membership), the sum of $1.00 is filled in. In the part of the card immediately below that, where it reads "Initiation Fee $", a $1.00 is similarly recorded, and below that, where the card reads "Received by", the signature of the collector has been recorded. To the right of that the card reads "I confirm payment of $____ ." In the majority's view (Board member Davies dissenting on this point), the word "Nil" has been printed in this space. Immedi­ately below this the signature of Ms. Witherden is recorded. In short, although the dollar payment is indicated in the first two applicable spaces on the card, the word "Nil" is written where confir­mation of payment is to be recorded, just above where the employee signs confirming the pay­ment.

4. The applicant asked to be allowed to lead viva voce evidence to establish that Ms. With­erden had in fact paid a dollar in support of her application for membership. The employer objec­ted and the Board heard their submissions on this point.

5. In numerous prior decisions the Board has ruled that it will not allow viva voce evidence to be led in order to establish either of the two substantive aspects of membership: whether the individual has in fact applied for membership, and whether at least one dollar has been paid in sup­port of that application. For example, in P.R.C. Chemical Corporation of Canada Ltd. [1980] OLRB Rep. May 749, the Board wrote as follows:

6. The requirement that a minimum payment of one dollar be made and be shown in writing on union membership evidence accepted by the Board has been the subject of considerable com­ment in previous Board decisions. That requirement has traditionally been imposed as a safety device to enhance the reliability of documents that are, of necessity, hearsay evidence. In Leons Furniture Limited, [1976] OLRB Rep. Feb. 8 at page 9 the Board expressed the rationale for the Board's membership evidence requirements as follows:

“……This notion of financial sacrifice seems to have been discussed first in RCA Victor Ltd., 53 CLLC ¶17,067 (OLRB) wherein it was expressed that a money payment was necessary to constitute confirmatory evidence of the desire of the payer to become a member of the trade union. In other words, the Board was saying that it wants to be assured that the employees who are alleged to have become members have directed their minds and given careful thought to the implications of such a step. Moreover, the Board has time and time again emphasized that it must exact and protect stringent standards with respect to membership evidence in that other parties to a certification proceeding do not have the opportunity to examine the membership evidence nor in the usual case do parties have the opportunity to cross-examine the witnesses with respect to membership evidence. (See Zehr's Markets Ltd., [1972] OLRB Rep. June 635.)

5. These requirements of the Board are clear and well known and we are loathe to deviate from them. Despite the apparent arbitrary nature of such rules they fulfill three important functions - cautionary, evidentiary, and channelling.

The RCA Victor case outlines the cautionary nature of the requirement and Zehr's Markets Ltd. is representative of the evidentiary perspective. The third function - that of telling employees and trade unions how membership in a trade union can be obtained for the purposes of the Act - is important to both the Board and the parties. Clear and unequivocal rules in this important area provide the kind of predictability and certainty that is required for organizational purposes and minimizes the amount of "litigation" before the Board. Thus the certification process is expedited and the secrecy as to union membership provided under section [111] is accomplished. in other words, the more the Board deviates from its accepted practice the more parties will be encouraged to litigate the question of membership evidence with all the atten­dant costs of such disputes."

15. These principles apply with particular force in the interpretation of section 1(1)[l] of the Act. That provision, defining "member of a trade union" for the purposes of the Act as including a person who has applied for membership and has paid an initiation fee or dues of not less than one dollar was enacted following the decision of the Supreme Court of Canada in Metropolitan Life insurance Co. (1970), 1970 CanLII 7 (SCC), 11 D.L.R. (3d) 336. In that case the Court ruled that by not assessing the membership status of employees according to all of the terms of the union's constitution and looking instead only to whether the employees had made a written application for membership and paid not less than one dollar as an initiation fee, according to its longstanding practice, the Board was asking itself the wrong question. The law as stated by the Court effectively struck down the Board's requirement that generally a union must file written evidence of an applica­tion for membership and the payment of one dollar as proof of an employee's union member­ship in an application for certification. standing alone the Metropolitan Life Co. case threatened the introduction into the Board's proceedings of technical and legalistic considerations that could bring the certification process to a standstill. The Legislature, therefore, amended the Act by enacting section 1(1)[l], (The Labour Relations Amendment Act 1970, S.0. 1970, c.3, s. 1). There can be little doubt that by so doing the Legislature intended to restore the status quo. By writing the provisions of that section into the Act, the Legislature effectively confirmed the Board's prior practice and made the twin conditions of an application for membership and the payment of at least one dollar substantive requirements to establish union membership in an application for certification. That view has been consistently reflected in the Board's practice.

16. There are numerous cases where the Board has rejected documentary membership evidence which did not indicate that the employees who had joined the applicant union had paid one dol­lar. In Wheatley Manufacturing Limited, [1964] OLRB Rep. Dec. 457, an issue arose as to whether the membership evidence submitted by the applicant union conformed to the require­ments of the Board. In particular, there was some question as to whether there had been any initiation fee payments made by the employees to the union. The Board in summarizing its membership evidence requirements stated at page 457:

"The Board has certain well established requirements as to evidence of membership submitted in support of applications for certification. These requirements include that applications for membership be made in writing, signed by the person said to be a member of the applicant; that each person said to be a member of the applicant pay to the applicant, on his own behalf, an amount of at least $1.00 in respect of the pre­scribed initiation fee or monthly dues of the applicant; that this money payment be confirmed by a written receipt signed by, the person who collected the money and counter-signed by the person who paid the money, and that this evidence be sup­ported by a declaration in Form 9 with respect to the collection of the money. By sec­tion 50(1) [now 73(1)] of the Board's Rules of Procedure evidence as to representa­tion must be in writing and by section 50(2) [now 73(2)] of the Rules, the Board is prohibited from accepting oral evidence of membership except to identify and sub­stantiate the written evidence.

In the instant case the only written evidence of membership consists of the "memo­randum of articles of association" referred to above. By that document the signatories declare themselves to be associated in a joint and common venture and agreed to be and to become members of the applicant. There was no written evidence or any money payment by any person alleged to be a member of the applicant.. . it is clear that this evidence does not meet the standards which the Board has consistently required to be met and accordingly this application must be dismissed."

26. The foregoing cases reflect a consistent thread in the Board's treatment of docu­mentary evidence of union membership. The Board has found that oral evidence is admissible if it goes to supportive information such as the date when the membership evidence was obtained or the counter-signature of a collector. By virtue of section [73] of the Board's Rules and the policy reasons that underlie the rule, the Board has not permitted viva voce evidence to establish the two substantive conditions of mem­bership as defined by the Act, namely, the application for membership and the pay­ment of the one dollar initiation fee.

And see also Pebra Peterborough Inc. [1988] OLRB Rep. Jan.76; Maple Leaf Mills Limited [1984] OLRB Rep. Oct. 1474.

6. The membership application contains inconsistent information as to whether a dollar has been paid. In two places, a "$1.00,' is filled in indicating payment, and the inconsistent state­ment "NIL" appears in the third space. Evidence as to, for example, how or why the word "NIL" appears where it does would only be led to attempt to satisfy the Board that the dollar had in fact been paid. Any other evidence the applicant might wish to lead would also only be relevant to the issue of whether the dollar was paid, which is the issue before us. But this issue, whether the dollar has been paid, is one of the substantive aspects of membership. It is one of the few matters that viva voce evidence is not admissible with respect thereto. Accordingly, the request of the applicant to call such evidence is hereby denied. We will consider only the card itself.

7. The dollar is filled in two of the applicable spaces, but an inconsistent statement (the word "Nil") appears in the third space. In the majority's view (Board Member Davies dissenting), we are not satisfied that the $1.00 has been paid. The word "NIL" in the space where the applicant for membership confirms that payment was made, leaves the Board uncertain as to whether the dollar has been paid. "Nil" casts sufficient doubt upon the effect of the $1.00 showing in the other spaces that we are not prepared to conclude that the dollar has actually been paid. Accordingly, Ms. Witherden's card will not be counted. Therefore, at best, a vote will be directed in the part-time bargaining unit, subject to the resolution of the outstanding issues (as noted above).

8. At the last hearing day, the Board set further days for hearing as follows: November 20, 21 and 22, 1990, in Peterborough. This matter will continue on those days.