Sudbury Mine, Mill and Smelter Workers Union, Local 598 v. 390450 Ontario Inc., 1991 CanLII 6018

Sudbury Mine, Mill and Smelter Workers Union, Local 598 v. 390450 Ontario Inc.

[1991] OLRB Rep. October 1171

3095-90-R; 3406-90-U; 0029-91-R Sudbury Mine, Mill and Smelter Workers Union, Local 598 of the Canadian Union of Mine, Mill and Smelter Workers, Applicant v. 390450 Ontario Inc. c.o.b. as Midas Muffler Long Lake, and 772312 Ontario Inc. c.o.b. as Midas Muffler Barrydowne, Respondents v. Group of Employees, Objectors; Sudbury Mine, Mill and Smelter Workers Union, Local 598 of the Canadian Union of Mine, Mill and Smelter Workers, Complainant v. 390450 Ontario Inc. c.o.b. as Midas Muffler Long Lake, and 772312 Ontario Inc. c.o.b. as Midas Muffler Barrydowne, Respondents; Sudbury Mine, Mill and Smelter Workers Union, Local 598 of the Canadian Union of Mine, Mill and Smelter Workers, Applicant v. 390450 Ontario Inc. c.o.b. as Midas Muffler Long Lake, and 772312 Ontario Inc. c.o.b. as Midas Muffler Barrydowne, Respondents.

BEFORE: Robert D. Howe, Vice-Chair, and Board Members R. M. Sloan and D. A. Patterson.

APPEARANCES: Rolly Gauthier and Alex Geauvreau for the applicant/complainant; Jack Braithwaite and Len Crocco for the respondents; Nick Marsales for the objectors.

DECISION OF ROBERT D. HOWE, VICE-CHAIR, AND BOARD MEMBER, D. A. PATTERSON; October 10, 1991

1In a decision dated August 19, 1991, regarding these matters, we wrote as follows:

1. The name of the applicant is amended to read: "Sudbury Mine, Mill and Smelter Workers Union, Local 598 of the Canadian Union of Mine, Mill and 5melter Workers '. The names of the respondents are amended to read: "390450 Ontario Inc. cob. as Midas Muffler Long Lake, and 772312 Ontario Inc. cob, as Midas Muffler Barrydowne".

2. File No. 3095-90-R is an application for certification in which the applicant (also referred to in this decision as the "Union") seeks bargaining rights for employees of the respondents. File No. 3406-90-U is a complaint under section 89 of the Labour Relations Act (the "Act") in which the Union alleges that the respondents contravened sections 64, 66, 70, and 71 of the Act, and in which the Union seeks to be certified under section 8 of the Act. File No. 0029-91-R is an application for an order under section 1(4) of the Act.

3. The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Act.

4. Prior to the hearing, the parties met with a Board Officer and reached agreement on a number of matters, including the following:

The parties agree with each other that the respondents, 390450 Ontario Inc. c.o.b. as Midas Muffler Long Lake and 772312 Ontario Inc. c.o.b. as Midas Muffler Barrydowne, carry on associated or related activities or businesses under common direction and control and therefore constitute one employer for the purposes of the Ontario Labour Relations Act section 1(4) and request the Board to grant such relief, by way of declaration or otherwise, as the Board may deem appropriate.

Having regard to that agreement, the Board hereby declares that the respondents constitute one employer for purposes of the Act. (For ease of exposition, the respondents are also referred to as the "Employer" in this decision.)

5. Having further regard to the agreement of the parties, the Board finds that the following constitutes a unit of employees of the Employer appropriate for collective bargaining:

All employees of the Employer at 2055 Long Lake Road and 485 Barrydowne Road, in the City of Sudbury, save and except foremen, persons above the rank of foreman, the bookkeeper, employees regularly employed for not more than twenty-four (24) hours per week, and students employed during the school vacation period.

6. We are satisfied on the basis of all of the evidence before us that, irrespective of the status of Messrs. Marsales and Boucher, more than fifty-five per cent of the employees of the Employer in the bargaining unit, at the time the application was made, were members of the applicant on March 11, 1991, the terminal date fixed for this application and the date which the Board has determined under section 103(2)(j), to be the time for the purpose of ascertaining membership evidence under section 7(1) of the Act.

7. For reasons which will issue at a later date, we have concluded that there are no circumstances present in this case which warrant the exercise of the Board's discretion under section 7(2) of the Act to direct that a representation vote be taken.

8. A certificate will issue to the applicant for the bargaining unit described in paragraph S of this decision.

9. In view of the foregoing disposition of the Union's certification application, it is unnecessary for the Board to adjudicate the Union's request for certification under section 8 of the Act. It is also unnecessary for the Board to decide any other aspect of the Union's section 89 complaint, as Mr. Gauthier advised the Board during final argument that the declaratory relief requested in that complaint was only being sought in support of relief under section 8 and would be unnecessary in the event that the Union was otherwise certifiable without a representation vote. He further indicated that if the Union was certified without a representation vote, it would not pursue its challenges to the inclusion of Messrs. Marsales and Boucher on the Employer's list. Thus, it is unnecessary for the Board to decide that matter, since it is now common ground among the parties that Messrs. Marsales and Boucher are both properly included on the Employer's list.

10. Thus, the applications in File Nos. 3095-90-R and 0029-91-R are granted, and the proceedings in respect of File No. 3406-90-U are hereby terminated.

11. Our reasons for this decision will issue at a later date, as will Board Member Sloan's dissent.

2The purpose of the present decision is to provide our reasons for that earlier decision.

3In support of its aforementioned application for certification, the Union filed with the Board twelve membership applications. Each application is numbered and provides space for the following information to be filled in on the front of the application:

Official Application for Membership

Sudbury Mine, Mill & Smelter Workers Union Local 598

19 Regent St. S., Sudbury, Ont. Date …………………………………….

Name (Print) ………………………………………….. Age …………….

Address…………………………………………………………………….

Employed by ……………………………………………….Dept…………

If not working Check

Location………………………………………………………………………..

Organizer………………………………………………..Amt. Paid………….

(Over)

The back of the application reads as follows:

I hereby accept membership in the Local 598, Sudbury Mine, Mill and Smelter Workers Union, and of my own free will hereby authorize the Sudbury Mine, Mill and Smelter Workers Union Local 598 its agents or representatives to act for me as a collective bargaining agency in all matters pertaining to rates of pay, wages, hours of employment, or other conditions of employment. From this date forward.

Signed…………………………….Seniority Date ……………………………………..

Badge No ……………………………………………………………………………….

Date………………… 19…….

4Each of the Union's membership cards initially had as its lower front portion a temporary receipt in the following form:

Sudbury Mine, Mill & Smelter Workers Union Local 598

19 Regent St. S., Sudbury, Ont.

TEMPORARY RECEIPT

Received of…………………………..Amt. $...............................

Date……………………………… Received by……………………..

(This Receipt Should Be Exchanged for Official Receipt When Initiated)

However, as indicated below, those temporary receipts were separated from the upper portion of the cards (by tearing along a perforated line provided for that purpose) and given to the employees at the time the cards were signed. Thus, none of them was filed with the Board (with the exception of a blank temporary receipt attached to a blank membership application that was entered as an exhibit in these proceedings on the agreement of the parties).

5During the course of the hearing, we drew the parties' attention to the following information which had been gleaned from a further check of the membership evidence:

Although each card has been signed by an employee, indicates $1.00 in the "Amt. Paid" space, and contains a printed name beside the word "Organizer", none of the cards bears the signature of the organizer or collector. The first card has been signed by an employee and has a printed name beside the word "Organizer". The name of the employee who signed that first card (as an applicant for membership) appears in printed form beside the word "Organizer" on each of the other eleven cards (except one on which the first name has been written and the second name printed). It appears that the printing in of the organizer's name was not done by the same person on all of those eleven cards. Although the organizer may have printed his name on some of the cards, someone else (possibly the employee applying for membership) appears to have printed in the organizer's name on at least two cards.

6Rolly Gauthier represented the Union at the hearing of these matters and also signed as the declarant on both of its (Form 9) Declarations Concerning Membership Documents (the first covering ten cards and the second covering two cards). When he sought to adduce oral evidence regarding the aforementioned printed names, respondents' counsel opposed his request. After hearing and recessing to consider the parties' submissions concerning that matter, the Board made the following oral ruling:

Having duly considered the submissions of the parties, we are unanimously of the view that the applicant is entitled to adduce the oral evidence which Mr. Gauthier seeks to call through Mr. Briggs and Mr. Geauvreau. The cards which the applicant has filed with the Board in support of the application each bear the signature of the individual who is applying for and accepting membership in the Union, and each show on their face that an amount of $1.00 has been paid. However, as previously indicated to the parties, the cards contain only printed names beside the word "Organizer". As indicated in Leon's Furniture Limited, [1975] OLRB Rep. Oct. 25, and Maple Leaf Mills Limited, [1984] OLRB Rep. Oct. 1474, the absence of a collector's signature is not a substantive defect in the documentary membership evidence, but rather is a formal or technical defect. The same is true of the lack of countersignatures by the employees. It is also clear from Maple Leaf Mills that oral evidence can be received in respect of such defects, since such evidence merely goes to "identify and substantiate" the documentary membership evidence: see section 73(2) the Board's Rules of Procedure. As the Board noted in Maple Leaf Mills at the end of paragraph 9, "although the Board cannot entertain viva voce evidence that the payment was made in order to establish that it was, it can entertain that evidence in order to identify the person to whom the payment was made.... In view of the element of confusion that is evident in some of the submissions that we have heard this morning, we note for the guidance of the parties that the aforementioned formal or technical defects (i.e., the printed names of the organizers, and the lack of employee counter-signatures) do not, in and of themselves, give rise to any issue with respect to the validity of the Form 9's that have been filed, since the statements contained in those Forms 9's are consistent with the membership evidence that has been filed. In this regard, we note that the wording of Form 9 refers not to the persons who signed as collectors or organizers, but to "the persons whose names appear on the receipts or other acknowledgments of payment". Whether the oral evidence that Mr. Gauthier seeks to adduce through Messrs. Briggs and Geauvreau will give rise to a Form 9 issue cannot, of course, be determined until that evidence has been heard.

7The oral evidence adduced pursuant to that ruling was given by Richard Briggs and Alex Geauvreau. Mr. Briggs, who has been the President of the Union since 1984, met with Mr. Geauvreau on February 14, 1991, to discuss unionization of the Midas employees. After Mr. Geauvreau indicated that he was interested in joining the Union, Mr. Briggs printed on the front of Union card No. 5330 Mr. Geauvreau's name and address, the name and address of Mr. Geauvreau's employer, and the department in which he worked. Mr. Briggs printed his own name in the "Organizer" space and printed "1.00" in the "Amt. Paid" space. After watching Mr. Geauvreau sign the back of the card and receiving a dollar from him, Mr. Briggs filled in and signed the temporary receipt that was initially attached to the card, tore off that temporary receipt, and gave it to Mr. Geauvreau.

8Mr. Briggs described the use that is made of temporary receipts as follows:

After you sign up an employee and he's paid you the dollar, you sign the receipt and the amount and give it to him. After his membership is approved, he returns the receipt to the Union for an official membership card. It's for accounting purposes, because the cards have numbers on them so you can keep track of them.

In explaining why he printed his name on the upper portion of the card (in the blank beside "Organizer"), Mr. Briggs told the Board:

I do that as a matter of being clear so it's recognizable. My signature is not that legible. I've run into a number of other times that signatures are not that legible....

9After giving Mr. Geauvreau the temporary receipt, Mr. Briggs used it, and the card which Mr. Geauvreau had just signed, as an example in explaining how Mr. Geauvreau was to sign up his fellow employees who wished to join the Union. Mr. Geauvreau subsequently used the blank cards provided to him by Mr. Briggs to sign up eleven employees. As indicated above, each of those cards has been signed by an employee and indicates payment of a dollar. Mr. Geauvreau printed his name in the space beside "Organizer" on eight of those cards (including one on which he printed his last name but wrote his first name). On the other three cards his name was printed in that space by the employee applying for membership. (When one of those employees misspelled his name, Mr. Geauvreau corrected it by adding the missing letter.) In accordance with the instructions that he received from Mr. Briggs, after watching each employee sign his or her name on the back of the card and receiving a dollar from him or her, Mr. Briggs filled in the temporary receipt,' signed it, and gave it to the employee.

10In considering the effect of the absence of a collector's signature on membership cards, the Board wrote, in part, as follows in Leons Furniture Limited, [1977] OLRB Rep. Jan. 25:

4. At the outset of the case the Board drew the parties' attention to a possible defect in the membership evidence submitted by the applicant. The evidence was in the form of applications for membership combined with written confirmations acknowledging the payment of the initiation fees. The Board was informed that before a card is executed an additional receipt is attached to combined confirmation. When the initiation fee is paid, the additional receipt is detached along its perforated line and given the payer while the rest of the card is filed with the Board.

5. In the facts at hand the employees' signatures appeared both on the application for membership portion of the cards and along the line above a heading (Member's Signature) on the receipt or acknowledgement of payment portion of the cards. As well, the amount of the initiation fee was inserted on the latter portion of the card. Then on a line following the words "$1.00 Initiation Fee received by" - a line which is obviously allocated to the payee or collector's name - a person's name was printed and because of variations in the printing it was clear that the collector for at least seven of the cards had not signed or printed his own name on the receipt portion of the card. In other words, the actual collectors' names appeared on all the cards but not in the form of their personal signatures. Accordingly, the Board requested argument on whether the applicant had met minimal evidentiary requirements for membership evidence.

6. Section 1(1)(j) [now section 1(1)(l)] of the Act defines member as including a person who (i) has applied for membership in the trade union, and (ii) has paid to the trade union on his own behalf an amount of at least $1.00 in respect of initiation fees or monthly dues of the trade union. Section 92(2)(j) [now section 103(2)(j)] specifically gives the Board the power "to determine the form in which and the time as of which evidence of membership in a trade union... shall be presented to the Board on an application for certification.. .and to refuse to accept any evidence of membership... that is not presented in the form and as of the time so determined". We note that section 92 does [not] stipulate that this power is to be exercised by way of the Board's rules-making authority under section 91(12) [now section 102(13)] - an authority subject to the approval of the Lieutenant Governor. Accordingly, we are satisfied that while our rules of procedure and forms may speak to the matters referred to in section 92(2)(g), section 92(2)(j) is an independent power that can be exercised by way of adjudication. Thus in fully appreciating the required form of membership evidence one must make reference to the Board's Rules of Procedure and to its jurisprudence - a jurisprudence based upon the power conferred upon the Board by section 92(2)(j) that renders the decision of the Ontario Court of Appeal in Re Hope-date Developments Ltd. and Town of Oakville (supra) inapplicable. In that case the Ontario Municipal Board, without the benefit of a section like section 92(2)(j), fettered its statutory obligation with restrictive principles declared in earlier and unrelated litigation before it.

7. Having said this we ought to review the Board's membership evidence requirements by first examining Rule 48(1) [now Rule 73(1)1 of the Rules of Procedure. It reads:

48.-(1) Evidence of membership in a trade union or of objection by employees to certification of a trade union or of signification by employees that they no longer wish to be represented by a trade union shall not be accepted by the Board on an application for certification unless the evidence is in writing, signed by the employee or each member of a group of employees, as the case may be, and,

(a) is accompanied by,

(i) the return mailing address of the person who files the evidence, objection or signification, and

(ii) the name of the employer; and

(b) is filed not later than the terminal date for the application.

The section is mandatory in nature and requires the signature of the employee to be on the evidence of membership. It makes no reference to any other signature.

10. Paragraph 3 of Form 8 [now Form 9] reads:

11. (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 the 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 acknowledgment 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 acknowledgment of payment as collector, EXCEPT IN THE FOLLOWING INSTANCES:

The wording of this paragraph is open to a number of possible interpretations. First, although the wording makes it clear that the collector's name must appear on "the receipts or other acknowledgments of payment on account of... initiation fees", there is no specific indication that it must appear in the form of a signature. Thus if this approach is adopted the applicant's membership evidence complies with at least Form 8. A second possibility arises from the juxtaposition of the word "receipts" with the phrase "other acknowledgments of payment on account of.. initiation fees". In this respect, and having regard to the maximum "noscitum a socus" it can be argued that if the term receipt implies a signature of the payee the subsequent phrase can only have an independent yet related meaning if it applies to something like that which the Board is confronted with in this case. Were it otherwise the phrase beginning "other acknowledgment..." would be superfluous. A third and, for. the purposes of this decision, final possibility arises out of the commercial notion that for a receipt or other acknowledgment to be useful to a payor, the payee must sign or in some other way personalize the evidence documenting the transaction. With this meaning ascribed to a receipt or other acknowledgement Form 8 would then envisage the appearance of the collector's name in the form of a signature. And the membership evidence before us fails in this regard. But with this ambiguity in meaning, Form 8 cannot be an exclusive source for ascertaining the Board's policies and the Board's decisions must therefore be carefully reviewed.

11. Until the regulations to the legislation were extensively amended by OR. 268/60, paragraph 7a of Form 2 (a form entitled Application for certification) read:

7a. The applicant submits with this application documentary evidence of compliance by employees of the respondent with the standard of the Board respecting membership in the applicant for the purposes of certification, as follows:

(a) individual applications for membership signed by the employee of the respondent, and

(b) (i) individual receipts or duplicate receipts for payment of at least $1 by employees of the respondent on account of the prescribed initiation fee or monthly dues of the applicant, signed by the payee or countersigned by the payer, or

(ii) evidence that employees of the respondent have presented themselves for initiation, have taken the members' obligation or have done some other act consistent with membership in the applicant as follows:

The paragraph is an important one in that the Board's early cases used it as the starting point for outlining the Board's requirements. But it too, by itself, is an ambiguous statement. One interpretation of this requirement is that the collector was to sign and the payer's signature was optional. This version is arrived at by focusing on the use of the words "countersign by the payer". If countersign means the placing of another signature on a document already bearing a signature the conjunction "or" could represent an intent that the second signature is optional but the first signature is mandatory. Thus this version would mean that Form 2 provided that the collector's (payee's) signature was a minimum requirement. However, by using the words, phrases or clauses representing alternatives - paragraph 7a could be interpreted to mean that the payee's signature or the payer's signature was required - and therefore an ambiguity arises.

12. But regardless of which interpretation is preferred, the Board has informed the parties that it wants both signatures on all receipts for initiation fees or monthly dues. And this request was expressed in The City of Windsor (1953), 53 CLLC 17,050, in the following way:

Although not mandatory, the Board has, for some months now, requested that all receipts for initiation fees or monthly dues by [sic] both signed by the payer and countersigned by the payee, on the assumption that this extra precaution provides more adequate protection for the Board and for the applicant relying on documentary evidence. [emphasis added].

And the reason for this request is important. Membership evidence is not shown to a respondent and is heavily relied upon by the Board in determining that the requirement of section 1(1)(j) have been met and, in that way, ascertaining whether the employees wish to be represented by an applicant trade union. For this reason the Board wants the best documentation of the necessary requirements possible. And two signatures on a receipt - one attesting to the payment of the initiation fee and the other attesting to its receipt - is thought to provide the greatest insurance.

13. But it is also important to note that The City of Windsor case prefaced its request with the words '~although not mandatory". In other words, the presence of both signatures is preferable but it is not the exclusive form by which the Board will be satisfied of the dollar payment. For example in Kennametal Tools & Manufacturing Co. Limited [1963] OLRB M.R. Nov. 422 the receipts submitted by the trade union indicated the payment of one dollar and contained the signature of the collector. However, it was determined that while the written name of the individual member appeared on the receipt above the words "new member's signature" the signatures did not correspond with the specimen signatures filed by the respondent and were in fact inserted by the collector. Having regard to these facts the Board refused to certify the applicant without a confirmatory representation vote and in so doing wrote:

In support of its application for certification, the applicant submitted as evidence of membership twenty membership applications together with twenty corresponding receipts. The respondent filed specimen signatures for a list of twenty-three employees who it states were in the bargaining unit sought by the applicant on the date of the making of the application. A comparison of the union's evidence of membership with the respondent's list reveals that the twenty membership applications are for persons in the bargaining unit on the date of the making of the application. The membership applications bear the signatures of the persons applying for membership. The receipts which indicate the payment of one dollar in each case bear the signature of the collector and ostensibly are countersigned by the new members. Since the signatures on the receipt appearing above the words "new members signature" did not correspond with the specimen signatures filed by the respondent, the Board at the hearing of this application on September 25th inquired into the discrepancy.

The Board was informed by the representative of the applicant that the names appearing above the words "new member's signature" were in fact signed by the collectors. Having regard to the fact that none of the receipts submitted by the applicant indicating the payment of one dollar are countersigned and the non-disclosure of the applicant with respect to countersignatures, the Board finds that the evidence of membership is sufficiently weakened so as to disentitle the applicant to certification without a representation vote.

14. A similar result, more clearly reflecting the continuation and meaning of The City of Windsor policy, is reflected in B. Moscone Tile Co. Ltd. [1970] OLRB MR. Apr. 44 where the applicant had submitted combination application for membership and receipt cards. The signature of the individual employee appeared on the application but the receipts, bearing the signature of the collector and indicating the payment of $1.00, had not been signed by the employee -although the name of the employee appeared. In ordering a representation vote the Board wrote:

……..It is the Board's practice to require that all receipts for initiation fees or monthly dues be both signed by the payer and countersigned by the payee, on the assumption that this extra precaution provides more adequate protection for the Board and for the applicant relying on documentary evidence of membership. (see Sterling Tile Company case, Board File No. 17112-69-R). Having regard to the fact that none of the receipts submitted by the applicant indicating the payment of $1.00 are counter-signed, the Board finds that the evidence of membership is sufficiently weakened as to disentitle the applicant to certification without a representation vote.

15. However, the fact that a representation vote will not always be necessary where the Board's preference for two signatures on the receipt or other acknowledgment remains unsatisfied is demonstrated in Mercury Terrazzo Limited [1970] OLRB MR. June 291 where the receipt, bearing the collector's signature, was on the reverse side of the application card and the individual employee had only signed the application - although his name was printed on the receipt. In issuing a certificate without a representation vote the Board emphasized that the applicant had made it unequivocably clear that the receipts were not "countersigned" and thus the Board was in no way misled as in Kennametal. The Board also noted that Form 54, Declaration Concerning Membership Documents, Construction Industry, had been filed by the president of the applicant which, based on his personal knowledge, confirmed the accuracy of the membership documents. Finally, paragraph 9 of that decision indicates the panel's understanding of the general approach to be taken with regard to the absence of an individual member's signature on the receipt. It reads:

16. The Board, of necessity, has to rely heavily on the documentary evidence of membership submitted in support of an application for certification. For that reason, although the Board has not made it absolutely mandatory, it is highly desirable, and the Board requests, that receipts submitted indicating the payment of initiation fees be signed not only by the collectors but also countersigned by the applicants for membership. This precaution provides more adequate protection for both the Board and the applicant trade union which is relying on the documentary evidence. Where there is any doubt on the part of the Board as to the propriety of the procedures followed by an applicant trade union in the securing of the evidence of membership union which it relies, the absence of countersignatures on the receipts of initiation fees must weigh heavily against the applicant.

17. After reviewing these cases we believe it is fair to say that the absence of an employee's signature on a receipt will not always be fatal in and of itself. Whether the evidence will be accepted at all or only with the confirmation of a representation vote must depend on the nature of the evidence and the particular circumstances surrounding each case. And it can be further said that if a trade union wants certainty in the way its application will be treated by the Board and thus avoid the risks reflected in the preceding decisions the payment of a dollar should be documented by the signature of the collector and the countersignature of the individual member paying the money.

18. Unfortunately none of these cases deal with the significance of the collector's signature on a receipt although a close reading of the cases suggest that its presence is assumed. And presumably relying upon this assumption, counsel to the respondent agreed that the pragmatic approach reflected in Mercury Terrazzo is one confined to the additional signature of an individual member - the countersignature - and is not applicable to the collector's signature. However no prior decisions have specifically considered and adopted this proposition - at least with respect to the particular kind of membership evidence before us. In fact in International Nickel Company of Canada Limited case [1966] OLRB MR. Jan. 698 the Board said that it was "not concerned with the fact that the collector's name may have been printed on the receipt [because the] identity of the collector is the important thing". And we would observe that the Board has no way of verifying the signatures of collectors in that specimen signatures are not filed for these persons.

Another decision considering a somewhat similar problem is Williams Machines Ltd. 119721

OLRB M.R. 879. In that case the Board was concerned with certificates of membership that had been signed by the employee but no official of the applicant had countersigned the documents and no signature of the collector of the initiation fee appeared on any of the documents. In dismissing the application the Board wrote:

6. The membership evidence filed by the applicant in this case does not consist of application for membership cards but is merely a certificate signed by the person purporting to be a member wherein the person states that he is a member and has paid an initiation fee and further agrees to pay monthly dues. There is nothing from the applicant which verifies the statement made by the employee and the certificate is not a certificate by one of the applicant's officers. Again, while the person purporting to be a member claims that he has paid $1.00, there is no receipt from the applicant [acknowledging] such payment nor is the collector of such payment identified.

7. Finally, since the name of the collector does not appear on the [face] of the documentary evidence filed by the applicant, the statement contained in Item 3 of Form 8 submitted by the applicant, if not meaningless, is patently untrue.

8. In view of the facts set out above and the requirements of The Labour Relations Act we find that the documentary evidence of membership submitted by the applicant is entirely unsatisfactory and we are accordingly unable to accept such evidence as proof of membership in the applicant.

9. Accordingly, it appears to the Board on an examination of the records that the applicant and the records of the respondent that less than thirty-five per cent of the employees of the respondent in the voting constituency hereinafter described were members of the applicant at the time the application was made.

10. The application of the applicant is therefore dismissed.

Thus although the signatures of the collectors were not present, the Board emphasized the entire absence of a receipt and the failure to "identify" the collector. It also considered these defects in the light of the declaration in Form 8 which could not therefore have been true.

18. On the other hand, although the Williams Machine case did not stress the point, the Board has required that certificates of membership - in contrast to combination application for membership and receipt cards - must be signed by the employee and must also be certified correct by an officer of the trade union who is in a position to do so. This requirement is emphasized in A. Lovisa Masonry Contractor [1970] OLRB MR. July 510 where the Board wrote:

Certificates of membership are frequently used by some trade unions in applications to the Board in lieu of dues books signed by the members which are regarded by the Board as the best proof of membership in a trade union. The surrender of dues books by members, however, frequently causes hardship and inconvenience to the member and his trade union. It is for this reason that the Board has accepted certificates of membership instead of dues books. However, the Board has required that these certificates of membership contain statements by the employee for the trade union and the month and year for which his dues are paid. These statements must be signed by the employee and must also be certified correct by an officer of the trade union who is in a position to do so. Reference is made to the Frank Licari & Sons case, OLRB MR. April 1967, p. 57.

The documentary evidence of membership submitted by the applicant has not been certified correct by an officer of the applicant and therefore does not meet the Board's requirements respecting certificates of membership. The Board, accordingly, finds that the applicant has failed to establish that it had any members at the time the application was made in any bargaining unit the Board might find appropriate for this application.

19. But, certificates of membership aside, it can be said the Board has not had occasion to specifically state that the collector's signature must always be on a receipt or other acknowledgment of payment. Although we believe that most parties coming before the Board have assumed that the collector's signature is necessary, a specific policy statement like that of the Lovisa case or that of the Mercury Terrazzo case has not been made. Accordingly, a choice between the two approaches confronts us in this case. The Lovisa rule provides certainty and predictability. The Mercury Terrazzo policy is a more pragmatic approach centered on the Board's obligation to satisfy itself that $1 has been paid. Mercury Terrazzo and the preceding cases were dealing with the absence of a signature that can be characterized as a form of insurance policy for both the Board and the parties. And pragmatism, even at the expense of administrative certainty, would appear to be a sound and fair policy when considering the absence of a safeguard. On the other hand the Lovisa approach would appear to have been adopted in the construction industry because the best evidence - the dues books - is not available to the Board without hardship and inconvenience to both the member and the trade union. A substitute was therefore fashioned.

20. In the facts at hand, we believe the Mercury Terrazzo is the most appropriate. The receipts are attached to the membership applications; the applications are signed; the receipts indicate $1.00 has been paid; the receipts are signed by the employees; and the collector's name appears in a space that does not purport to be allocated to a signature in contrast to the space allocated for the employee's name. Moreover, a Form 8 declaration has been filed by the president of the applicant to the effect that the persons whose names appear on the receipts actually collected the amount shown thereon. While the absence of the collector's signature may "weigh heavily" against the applicant after all the surrounding evidence of this case is heard, we are not prepared to dismiss the application on this factor alone.

11Reference may also usefully be made to the following passages from Maple Leaf Mills Limited, [1984] OLRB Rep. Oct. 1474:

2. The difficulty with the membership evidence originally submitted with the application is noted in the following extracts from the Board's decision of July 16. 1984:

1.... The application was filed by registered mail on June 22, 1984. It was accompanied by what purported to be documentary evidence of membership of 28 persons claimed to be employees of the respondent. The membership evidence was accompanied by a Form 9 Declaration of David F. Pretty, a National Representative of the applicant. Paragraph three of that document reads as follows:

3. (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 the 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 acknowledgment 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 acknowledgment of payment as collector, EXCEPT IN THE FOLLOWING INSTANCES:

[emphasis added]

No exceptions are noted on the form. The membership evidence consisted of combination applications for membership and receipts which were, on their face, regular in all aspects but one: none of the receipts have been countersigned by the collector of the card, and the name of the collector of the $5.00 payment referred to therein is nowhere shown on any of the cards.

6. In Leons Furniture Limited, [1977] OLRB Rep. Jan. 25, the membership evidence in question was similar in form to the documentation before us: there was no collector's signature. In that case, however, the name of the collector had been printed in the space where the collector's signature would ordinarily be found. The Board reviewed its earlier jurisprudence. It was unable to find a case which addressed the absence of a collector's signature on a combination application and receipt or acknowledgment of payment. While it was clear from the jurisprudence that the Board preferred to see a collector's signature on membership evidence in that form, there was no clear policy statement (as there had been with respect to certificates of membership) that a receipt or other acknowledgment of payment must be signed on behalf of the trade union. In its analysis, the Board treated the collector's signature as an evidentiary safeguard rather than as an essential or constituent element of proof of membership. It took the view that a proper response to the absence of such a safeguard did not require that an application be dismissed, although the defect might well "weigh heavily" against the applicant when all the surrounding circumstances were examined. It is important to note, in considering the decision in Leons Furniture Limited, that the Form 9 (then Form 8) Declaration which accompanied the membership evidence under consideration in that case was not made meaningless by the substitution of a printed name for a signature, because a collector's name did still appear on each card.

7. In Williams Machines Limited, [1972] OLRB Rep. Oct. 879, the applicant had filed certificates of membership by which the signatory certified that he was a member of the applicant and had paid the $1.00 initiation fee. No official of the applicant trade union had countersigned these documents, nor did the signature of the collector of the initiation fee appear on any of them. The Board made reference to the language of what now appears as paragraph 3 in Form 9, and to the statutory definition of trade union membership which now appears in clause 1(1)(l) of the Labour Relations Act. The Board noted that the documentation submitted did not fit the statutory definition and that "since the name of the collector does not appear on the face of the documentary evidence filed by the applicant, the statement contained in Item 3 of Form 8 submitted by the applicant, if not meaningless, is patently untrue." The Board went on to find that the membership evidence submitted by the applicant was entirely unsatisfactory and would not be accepted as proof of membership in the applicant. The result and analysis in Williams Machines Limited was distinguished in Leons Furniture Limited on two bases. One was that, on the facts in the Leons case, the Form 9 declaration was not made meaningless. The other was that Williams dealt with certificates of membership, with respect to which there were clear Board policy statements requiring official counter signatures, while Leons dealt [with] combination membership application and receipt cards, in respect of which there had been no such policy statements. Focusing just on the effect of absence of the collector's signature, and setting aside for the moment the effect this has on the Form 9 Declaration, we are satisfied that the approach adopted by the Board in Leons Furniture Limited is equally applicable here, even though the names of the collectors have not been printed on the cards before us. The absence of the collector's signature is an irregularity which may affect the weight to be given to the documentary evidence, but does not by itself require rejection of the evidence out of hand.

8. Section 73 of the Board's Rules of Procedure addresses the subject of evidence of membership in the trade union. Subsection 1 of that section requires, inter alia, such evidence be in writing and signed by the employee. Subsection 2 provides:

(2) No oral evidence of membership in a trade union ... shall be accepted by the Board except to identify and substantiate the written evidence referred to in subsection (1).

The extent to which oral evidence can be introduced to "identify and substantiate" written evidence of membership has been the subject of a number of Board decisions, many of which are reviewed in PRC Chemical Corporation of Canada Ltd., [1980] OLRB Rep. May. 749. In that case the Board observed that a distinction had been drawn between defects in documentary membership evidence which are "substantive" and those which are "merely formal or technical". In the case of proof of membership within the statutory definition, the fact of application for membership and payment of at least $1.00 are each substantive matters, and the failure of documentary evidence to address either element would be a substantive defect. The absence of other information, such as the date of the application for membership, is said to be a "formal or technical defect" because it does not go to the substantive elements of proof of membership.

The Board's decision in PRC Chemical Corporation of Canada Ltd., (at paragraphs 23 and 26) puts the absence of a collector's signature in the latter category. Although those statements were obiter dicta, we accept them as correct. It follows that although the Board cannot entertain viva voce evidence that the payment was made in order to establish that it was, it can entertain that evidence in order to identify the person to whom the payment was made, just as it can entertain such evidence in order to establish the date on which the payment was made.

10. The cards filed with this application are, with respect to each employee signatory, written evidence that he or she meets the statutory definition of "member" set out in section 1(1)1) of the Labour Relations Act. The oral evidence tendered by the applicant satisfies us that the procedures and inquiries required by Form 9 were carried out. There is no suggestion of any impropriety in the solicitation of membership in the applicant, nor the slightest hint of any defect in any of the applicant's membership evidence other than the one with which we have been concerned to this point.

11.... The issue with which we have been faced, however, was ... whether the applicant's membership evidence was satisfactory. After hearing the evidence and the submissions of counsel, we determined that the evidence was satisfactory....

12As in Leons Furniture, in the instant case the name of the person who actually collected the dollar appears on each of the cards, but not in the form of his personal signature. As indicated above, it has been printed in the space beside the word "Organizer" immediately to the left of the space in which $1.00 has been filled in beside the words "Amt. Paid". Although we were initially troubled by this departure from the form in which membership evidence is normally submitted to the Board, having duly considered all of the evidence, the submissions of the parties, and the Board's prior decisions regarding such matters, we are satisfied that each of the twelve cards submitted by the Union is valid evidence of "membership" in the Union, within the meaning of section 1(1)(l) of the Act, and that, in the circumstances of this case, directing that a representation vote be taken is not warranted on the basis of the form of the membership evidence. As indicated above, each card is signed by the employee applying for membership and indicates that the employee has paid the amount of $1.00. Any possible doubt concerning whether the persons whose names appear on the cards in the "Organizer" space were the persons who actually collected the dollars from those employees has been eliminated by the candid and credible testimony of Messrs. Briggs and Geauvreau. (In view of our conclusion in that regard, it is unnecessary for us to determine whether or not the cards would have been acceptable as valid membership evidence in the absence of that testimony.)

13As indicated in the oral ruling quoted in paragraph 6 of this decision, the Form 9 Declarations filed in respect of the membership evidence have not been rendered meaningless by the aforementioned use of printed names, as the name of the individual who collected the dollar appeared on each card (see Maple Leaf Mills Limited, supra, at paragraph 6). Moreover, we are satisfied on the totality of the evidence that the Form 9 declarant made proper inquiries and was not required, in the circumstances of this case, to list any exceptions in paragraph 3 of Form 9. (See, generally, 599207 Ontario Inc., [1990] OLRB Rep. Dec. 1205; Cuddy Food Products, [1989] OLRB Rep. June 583; Estonian Relief Committee in Canada, [1989] OLRB Rep. May 440; Pebra Peterborough Inc., [1988] OLRB Rep. Jan. 76; Westinghouse Canada Inc., [1986] OLRB Rep. Feb. 295; Guelph Paper Box Company Limited, [1985] OLRB Rep. May 673; and Bond Place Hotel, [1983] OLRB Rep. Feb. 202.)

14It was common ground among the parties that fifteen of the seventeen persons whose names appeared on the list filed by the Employer were properly included on that list for purposes of the count. However, there was a dispute regarding the status of Nick Marsales and Dennis Boucher. The Union challenged their inclusion on the list on the grounds that they exercised managerial functions within the meaning of section l(3)(b) of the Act and, therefore, were not employees. However, regardless of whether they were included or excluded, more than fifty-five per cent of the employees in the bargaining unit, at the time the application was made, were members of the applicant on March 11, 1991, the terminal date fixed for this application and the date which the Board determined, under section 103(2)(j) of the Act, to be the time for the purpose of ascertaining membership under section 7(1) of the Act.

15That level of membership support would generally place the Union in a position to obtain a certificate without a representation vote. However, the objectors filed with the Board five statements of desire (also referred to in this decision as the "petitions") containing a total of ten signatures, including the signature of seven persons who had earlier signed membership cards. Those statements of desire were sent to the Board on March 11, 1991, which (as noted above) is the terminal date fixed for this application. (A further statement of desire was sent to the Board in April of 1991, but that document was not taken into account in deciding this matter as it was not filed with the Board by the terminal date: see section 73(1) of the Board's Rules of Procedure). The petitions were of potential relevance to the exercise of the Board's discretion under section 7(2) of the Act because if they had been found to be voluntary, they would have raised sufficient doubt concerning the continued support for certification by the Union by enough employees who also signed membership cards that the Board would have exercised its discretion under section 7(2) to direct that a representation vote be taken despite the fact that more than fifty-five per cent of the employees in the bargaining unit were members of the Union at the relevant time.

16During the six days on which the Board heard evidence and argument regarding the petitions and the Union's complaint under section 89 of the Act, seven persons were called as witnesses. In addition to their testimony and the documentary evidence described above, the Board had before it two other exhibits which were entered during the course of these proceedings. In making the findings and reaching the conclusions set forth in this decision and in our decision dated August 19, 1991, we carefully considered all of that oral and documentary evidence, the submissions of the parties' representatives, and such factors as the firmness of the witnesses' respective memories, their ability to resist the influence of self-interest to modify their recollections, the consistency of their evidence, and their demeanour. We also assessed what was most probable in the circumstances of the case, and considered what inferences could reasonably be drawn from the totality of the evidence.

17The petitions were prepared and circulated by Nick Marsales, who commenced employment with Midas in 1984 as an installer and subsequently became an apprentice and then a mechanic. Mr. Marsales is a relatively long-service employee who is well respected by his fellow employees and by management. He was offered a position as a foreman in the Spring of 1990 but turned it down. Mr. Marsales was accompanied by Dennis Boucher when he obtained some of the signatures on the petition.

18The petitions were circulated on Saturday March 9, and Sunday March 10, 1991. Earlier that week Messrs. Marsales and Boucher attended a course entitled "Management Excellence". They were accompanied on that course by Scott McDougall, who is one of the Employer's foremen, and by Randy Sychuk, a former Midas employee whom management was planning to rehire as a foreman. Although parts of the course would likely be of benefit to any Midas employee, it is clear from the course's title and from the contents of the course outline (entered as Exhibit 2 in these proceedings) that it was a management training course covering topics that included "managing for excellence objectives", "Midas manager's responsibilities", "characteristics of total quality service managers", "how to build your business", "evaluating performance", and "helping staff accept greater responsibility".

19After taking that course, Messrs. Marsales and Boucher returned to work on Wednesday March 6, 1991, the day on which notices of the Union's application for certification were posted on the Employer's premises. Upon their return, they met with Len Crocco, the Manager of the Employer's shop on Barrydowne Road (the "Barrydowne Shop"). While they were in Mr. Crocco's office, they attempted to discuss the course and to provide him with receipts in order to obtain reimbursement of their expenses. However, Mr. Crocco was so upset about the certification application that he was unable to concentrate upon what they were saying. After telling them that he was upset and that he could not talk to them about anything because his lawyer had told him not to talk to anyone, he sent them back to work.

20A number of Midas employees met at a Sudbury hotel on Thursday evening March 7 to discuss unionization and various complaints which they had regarding their employment. During a conversation which occurred that evening in the hallway outside the meeting room, Mr. Boucher advised Mr. Geauvreau in the presence of two or three other employees that he was not sure about the Union anymore because he had recently been told by Mr. Crocco that he was "in line" for a management position.

21Mr. Crocco had been planning for some time to become a Midas franchisee with a shop in a mall to be built by his father, Henry Crocco, who is the franchisee of the two shops affected by this application. Construction of that shop (referred to in the evidence and in this decision as the "third shop") had been delayed as a result of a belatedly discovered need for a retaining wall at the site, and concomitant financing problems. During the time that the petition was being circulated and signed, there was a widespread rumour that if the Union "came in" (i.e., if the certification application was successful), the third shop would not open and mechanics would be laid off. The evidence does not disclose who started that rumour. However, it is clear from the evidence of Mr. Marsales that several of the employees had the rumour on their minds when they signed the petition. In this regard, Mr. Marsales testified that about five of the petitions' signatories who had previously signed Union cards asked him about the rumour before signing the petition. He also told the Board that he "assumed it [the rumour] was true because everyone was saying it". Mr. Marsales told the Board that he responded to the employees' questions by saying: "I don't know. I can't answer for them. Like it's just a rumour at this point." However, he also testified that when employees asked him if there would be mechanics laid off, he indicated that there could be if management did not open the third shop.

22The basis and effect of petitions was described by the Board as follows in Brian Chevrolet Oldsmobile Ltd., [1989] OLRB Rep. Apr. 324:

9. The system of certification prescribed in Ontario by the Labour Relations Act rests primarily upon an assessment of the union's membership support based upon an examination of its documentary evidence of membership. Upon showing the requisite membership support, the union is "certified" or granted a licence to bargain on behalf of a group of employees - subject, of course, to their right to file a timely application terminating bargaining rights. The Board does not solicit viva voce opinions about trade union representation (see Rule 73(2) which prohibits that), nor, in this jurisdiction, is a representation vote the primary vehicle for achieving the right to represent employees. That right depends upon the solicitation of a sufficient number of membership cards authorizing the union to act as bargaining agent. To protect employees from possible employer reprisals the anonymity of the union supporters is preserved (see section 111 of the Act).

10. This process has been in place for more than thirty years, and doubts about how the Board should go about its task have frequently been resolved by amending the statute (as, for example, to resolve the question of what is a "union member" and the "question" the Board was to ask itself in this regard which prompted section l(1)(l)). Indeed there is now an elaborate statutory and regulatory framework governing union membership evidence, as the Board has sought to apply sections 1(1)(l) and 103(2)(j) to the special circumstances of particular cases.... Representation votes are a residual mechanism resorted to where the union cannot demonstrate the support of a "clear majority" (i.e., more than fifty-five per cent) based upon "untainted" membership cards, or where, in the Board's discretion, a representation vote should be held in the particular circumstances of a case. One of those circumstances is a timely and voluntary change of heart by employees who have previously signed union membership cards.

11. Neither the Legislature nor the Board has taken a myopic view of the realities of the situation. Employees can and do change their minds. They may voluntarily sign a membership card one day, but later wish to reconsider their support for collective bargaining. In some jurisdictions the statute precludes or inhibits such expressions so that certification is based solely on membership cards. In others such expressions are irrelevant because the preferred method of testing employee wishes is a representation vote. Ontario has evolved a middle position recognizing the validity of union membership cards, but retaining some flexibility to seek the confirmatory evidence of a representation vote where employees have put before the Board a timely "petition" or other document indicating a change of heart. Petitions too have been part of the certification process for decades.

12. The Board recognizes that "statements of desire" (see Form 6), usually in the form of a "petition", are not regulated by the Act as directly or precisely as union membership evidence.... Nevertheless, the existence of such statements appears to be contemplated by section 103(2)(j) of the Act and Rule 73 of the Rules of Practice; and in any event, as we have already noted, the Board has a long-established practice of accepting such petitions and exercising its discretion to order a representation vote where:

(1) the petition is voluntary (as evidenced by testimony adduced in accordance with Rule 73 of the Rules of Practice), and

(2) the petition contains the signatures of a sufficient number of persons who have previously signed membership cards that there is some doubt whether these "members" (in accordance with section 1(1)(l)) continue to support certification.

13. The Board must be satisfied, however, that when these union supporters sign the petition indicating an apparent change of heart, they are doing so voluntarily, and are not motivated by a perceived threat to their job security or a concern that their failure to sign would be communicated to their employer, or could result in reprisals. It must be clear that the circulation of the petition is free from the actual or perceived influence of management.

23Reference may also usefully be made to Morgan Adhesives of Canada Limited, [1975] OLRB Rep. Nov. 813, in which the Board wrote:

28. There is a natural suspicion which attaches to a statement of desire following closely upon a union organization campaign. The Board must assure itself that the "change of heart" indicated by employees who sign the petition in opposition to the union after having indicated support for that same union, is a free choice unimpeded by overt or subtle pressures....

As noted in Peacock Lumber Limited, [1979] OLRB Rep. May 423, at paragraph 8, in view of the sensitive nature of the employment relationship, "the Board has consistently held that it must be governed by the overall environment in the work place in deciding whether or not the statement of desire represents a voluntary expression of those who signed it. If the evidence establishes that the hand of management has been actively involved in its origination, preparation or circulation, the Board will dismiss the statement. The Board will also~ however~ dismiss the statement if the evidence establishes that an employee might reasonably suspect the involvement of management and hence be concerned as to whether or not management might become aware of his decision to sign it or not to sign it." See also Westlake Electrical Contractors Limited, [1990] OLRB Rep. Nov. 1163; Racal-Chubb Canada Inc., [1990] OLRB Rep. Sept. 944; Hully Gully London Ltd., [1990] OLRB Rep. Feb. 160; Blue Bell Canada Incorporated, [1990] OLRB Rep. Feb. 121; Lo Food Division of Lumsden Brothers Limited, [1983] OLRB Rep. May 676; Schenker of Canada Limited, [1982] OLRB Rep. June 937; Catfish Calhoun Inc., [1981] OLRB Rep. Nov. 1551; West gate Nursing Home Inc., [1981] OLRB Rep. June 810; Frito-Lay Canada Ltd., [1981] OLRB Rep. May 538; Fibre Therm Corp., [1980] OLRB Rep. Aug. 1196; and Dad's Cookies Ltd., [1976] OLRB Rep. Sept. 545.

24In the instant case Mr. Marsales prepared and circulated the petitions at locations away from the Employer's premises. Although his ability to recall some of the pertinent details was somewhat limited, we found his evidence concerning the origination and circulation of the petition to be candid and forthright. However, in the circumstances of this case, we are not satisfied on the balance of probabilities that the petitions represent a voluntary statement of desire on the part of those who signed them. In reaching this conclusion, we have taken into account all of the material facts, including the following. The petitions were circulated by two employees who had very recently returned from a management training course that they took along with an existing foreman and a foreman to be. Upon returning from that course they met with their Manager, Len Crocco, who was so upset by the certification application that he was unable to concentrate on what they were saying. At least some of the employees became aware that Mr. Boucher, who assisted Mr. Marsales in circulating the petition, had been told by Mr. Crocco that he was "in line" for a management position. Moreover, a number of employees who signed the petition were concerned about the rumour that the third shop would not open if the Union came in and that some mechanics would be laid off. In light of all of the circumstances, including the relatively close relationship which Mr. Marsales and Mr. Boucher had with management, and the extent to which the aforementioned rumour had pervaded the work force, it is probable that many employees signed the petitions because they feared that management would become aware, through Mr. Marsales or Mr. Boucher, of employees who refused to sign, and/or because they feared that if the Union gained bargaining rights the third shop would not open and some mechanics would be laid off.

25Thus, we were (and still are) satisfied on the basis of all of the evidence before us that:

(1) irrespective of the status of Messrs. Marsales and Boucher, more than fifty-five per cent of the employees of the Employer in the bargaining unit, at the time the application was made, were members of the applicant on March 11. 1991, the terminal date fixed for this application and the date which the Board has determined under section 103(2)(j), to be the time for the purpose of ascertaining membership evidence under section 7(1) of the Act; and

(2) there are no circumstances present in this case which warrant the exercise of the Board's discretion under section 7(2) of the Act to direct that a representation vote be taken.

26Thus, for the reasons set forth above and in our decision dated August 19, 1991, the applications in File Nos. 3095-90-R and 0029-91-R were granted, and the proceedings in respect of File No. 3406-90-U were terminated.

DECISION OF BOARD MEMBER ROBERT M. SLOAN; October 10, 1991

1. With respect I strongly dissent from the majority decision.

The Membership Evidence

2. It is my view that the acceptance of such obviously flawed and defective membership evidence flies in the face of previous rigid Board standards which require that membership evidence be of a high quality. The relaxed standards accepted by the majority decision will cause confusion in the Labour Relations community, and will reduce the effectiveness of the Board's policy which attempts to maintain an element of consistency in this area.

3. In this instant case none of the membership cards were countersigned by the applicant employee; there is no physical evidence that in fact the employees received any acknowledgement in the form of a receipt that they had in fact made the statutorily required $1.00 payment; there is no acknowledgement in the form of a signature that the one dollar had in fact been paid.

4. The Board has reiterated time and time again its insistence upon the submission of quality membership evidence. I will cite only a couple of cases to illustrate this. See Zehrs Markets Limited, [1972] OLRB Rep. June 635 at paragraph 4:

The Board has exacted very stringent standards from applicants who submit membership evidence. These stringent requirements are necessary because the membership evidence or records of trade unions relating to membership fall within the secrecy requirements of section 100 [now section 111] of the Labour Relations Act.. the Board approaches its statutory responsibility under section 7 of the Act and accordingly is extremely vigilant in ensuring the propriety of membership evidence. Since the Board in turn must rely on the evidence of membership entered by the applicant trade union the board has exacted strict requirements from applicant trade unions with respect to that membership evidence and particularly with the declaration concerning membership documents (Form 8)(now Form 9)...

[emphasis added]

5. In B. Moscone Tile Co. Ltd., [1970] OLRB Rep. April 44, receipts had not been signed by the employee, the Board, in ordering a representation vote, wrote:

It is the Board's practice to require that all receipts for initiation fees or monthly dues be both signed by the payer and countersigned by the payee, on the assumption that this extra precaution provides more adequate protection for the Board and for the applicant relying on documentary evidence of membership. (See Sterling Tile Company case, Board File No. 17112-69-R.) Having regard to the fact that none of the receipts submitted by the applicant indicating the payment of $1.00 are countersigned, the Board finds that the evidence of membership is sufficiently weakened as to disentitle the applicant to certification without a representation vote.

[emphasis added]

6. Again in Wheatley Manufacturing Limited, [1964] OLRB Rep. Dec. 457, the Board wrote:

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 [now Form 8j = [sic] with respect to the collection of the money. By section 50(1) [now 48(1)] of the Board's Rules of Procedure evidence as to representation must be in writing and by section 50(2) [now 48(2)] of the Rules, the Board is prohibited from accepting oral evidence of membership except to identify and substantiate the written evidence.

[emphasis added]

7. In addition to the obvious membership evidence flaws, there is in my view a problem with the Form 9, which in itself warrants serious consideration by the Board with respect to the dismissal of the application. The Board has made a distinction between the declarant on a Form 9 who is not, or is not expected to be, well versed in the rules of the Board with respect to the preparation of the Form 9, and a declarant who holds a position of some responsibility with respect to the applicant union.

In this case Mr. Gauthier, Executive Staff Representative has long engaged in professional trade union activities and is, or should be, well versed in certification application requirements. The fact that the membership evidence with respect to the three cards that were not in any way prepared by Mr. Geauvreau was not brought to the Board's attention on the Form 9 and this omission alone justifies the application's dismissal.

8. As noted in Ontario Labour Relations Board Law and Practice by Sack and Mitchell, at page 185, section 3:4210, beginning at line 1:

“……membership evidence is generally in the form of membership application cards signed by the employees together with receipts for one dollar signed by the collector and counter-signed by the employees."

"A membership without a receipt is not acceptable."

"The receipt should be signed by the collector and counter-signed by the employee."

[emphasis added]

9. Again, in Sack and Mitchell, at page 178, under section 3.4120 form of membership evidence we read, beginning at line 5:

it (the Board) has accepted membership evidence in the form of an application for membership in writing (membership application card), signed by the employee, together with a written receipt for payment of one dollar (which may be combined with the card), signed by the person who collected the money and counter-signed by the employee who paid the money.

[emphasis added]

10. I fail to understand why the membership evidence is even an issue - it is so clearly and incontrovertibly defective, fatally so, in my view.

11. For reason(s) known perhaps only to himself Mr. Rolly Gauthier, the Union's Executive Staff Representative, did not put into evidence, or even offer to put into evidence, photocopies of the receipts which he claimed to have in his possession during the hearing. The inference I draw from this is that the production of those receipts, if they in fact exist at all, would have shown further serious irregularities.

12. As if the defects referred to in paragraph 3 above are not enough, we have the direct testimony from Mr. Geauvreau that the employee-applicants were instructed by him to fill out the front portion of the card, and we know that in at least three instances the name of the organizer was printed on the membership card by the employee - there is absolutely no physical evidence, so vital in this certification matter, that Mr. Geauvreau did in fact participate in the transaction -surely this is a serious enough irregularity to require that the Board reject the three cards in question.

13. There is viva-voce" testimony from Mr. Alex Geauvreau that he collected one dollar from each person who signed the back of a membership card but this testimony has to be seriously questioned on the grounds that it is self-serving, but more importantly, as mentioned in the previous paragraph, the applicant did not place into evidence any copies of the receipts of which it claimed to have. The inference to be drawn from this omission, as mentioned earlier, is clearly that the receipts, if they do in fact exist, are themselves in some way faulty or at the very least fatally incomplete.

14. The Board's strict standard and the jurisprudence which has repeatedly emphasized the consequences of failure to comply with that standard are well known in the Labour Relations Community, in this instance the applicant failed to meet those standards and should suffer the consequences.

15. It is my respectful submission that on the face of the membership evidence submitted the application for certification should be dismissed outright.

16. At the very least, however, in view of the three membership cards which bear absolutely no indication that the "organizer" was in fact involved in the transaction - his printed name having been placed upon the card by someone other than Mr. Geauvreau himself - a representation vote should be ordered following the rejection of these cards by the Board.

17. Of minor consequence in view of the fatal membership evidence but significant nevertheless in assessing the credibility of Mr. Geauvreau's testimony, is the contradiction by Mr. Geauvreau of the evidence given by the Union President, Mr. R.W. Briggs, that he (Mr. Briggs) had given Mr. Geauvreau 15 to 20 blank membership cards - while when questioned by counsel for the respondent as to why he did not prepare new cards for the three cards which he agreed had been improperly prepared, Mr. Geauvreau stated that he did not have extra cards - presumably the Board is asked to believe that he knew in advance that he would approach and obtain signatures from exactly eleven employees.

The Statement of Desire (The Petition)

18. With reference to the petition, I am compelled to ask "Why is it that when the Board deals with allegations of coercion, intimidation and other wrong-doing during union organizing drives, it invariably concludes that the potential bargaining unit members are intelligent and rational people quite capable of separating the wheat from the chaff and deciding for themselves with respect to union membership, but when it comes to petitions - the very same people are considered to be intellectually stunted, somehow becoming incapable of making even the simplest of decisions in regard to the prevailing circumstances."

19. The very first matter that should be recorded is that there is no evidence whatsoever of any management involvement in the origination, circulation, custody etc., of the petition. Indeed the applicant union makes no allegations in this respect. This is a big hurdle which petitioners generally have to overcome and in this case, in this respect at least, the petition meets, absolutely, the Board's requirements.

20. Notwithstanding this finding, the majority, in my view, erroneously rejects the petition on what I consider to be less than convincing grounds.

The Rumour

21. The rumour which had been making the rounds at the time of the circulation of the petition had to do with the possibility that a third shop would not open if the two existing shops became unionized.

The origin of the rumour was never established - importantly it was not laid at management's doorstep.

Taken at face value the rumour posed no threat to anyone's job security except - if they took the rumour seriously - to four mechanics who represented less than 25% of the bargaining unit.

It makes no sense whatsoever to believe, as the majority does, that any of the mechanics would be so threatened by the rumour that they and other employees would feel compelled to sign the petition. Regardless of any management decision with respect to the third shop they would still enjoy job security at the existing two locations.

Surely if any of the mechanics believed that they felt threatened by the rumour we would have, or should have, heard evidence in this respect.

22. To the contrary we have testimony by Ms. Colleen Brooks, a union witness and supporter, who confirmed that the rumour was not taken seriously by the employees with whom she discussed it because it would have no effect upon them or their jobs

23. Clearly the rumour is of little, if any, significance in the determination of why employees signed the petition.

Training Course

24. The majority decision, in my respectful submission, places extraordinary weight upon the attendance at the training course by Messrs. Marsales and Boucher, a weight that it cannot bear.

We heard testimony from Mr. Len Crocco along the following lines:

• We have a Midas convention every year and my area manager advised me that a course was going on during our slow period;

• There was no fee this time, usually there is a fee for employees attending;

• I didn't decide in time as to whether or not I would send people to the course in question, so I was offered four spots in another course, again at no tuition cost;

• I didn't know the content or outline of the replacement course but I have been on such courses myself and I expected it would include, among other matters; personal appearance; talking directly with customers; and talking on the phone, matters pertinent to the training of shop employees;

• The course is designed strictly for Midas franchisees;

• I told the caller that I would talk to the guys in the shop and if they wanted to go I would let him know;

• I asked Mr. Nick Marsales and Mr. Denis Boucher - my two senior experienced shop employees if they wished to attend and they agreed that they would.

25. The majority decision would have us believe that attendance at this course by Messrs.

Marsales and Boucher created the perception amongst the other employees that these two employees were in fact managerial.

Not so, said Ms. Debra Brebant-Pinsent, a union witness and supporter, who in conversation with her fellow employees likened the trip to Barrie, where the course was held, as a lark and an opportunity for the guys to get away for awhile, have a good time and enjoy themselves.

26. The most telling argument against using the course content as proof positive that Messrs. Marsales and Boucher were perceived to be management in the eyes of employees is the uncontradicted testimony of Mr. Len Crocco that he himself did not come into possession of the course outline document, (exhibit #2) in these proceedings, until a day or two before the first day of the hearing, viz, 30 April, 1991.

The employees in the shop could not possibly have been influenced by the contents of the course document at the time of the circulation of the petition because it is clear to me that they were not aware of its existence at the time that they signed the petition, and quite possibly not aware of its existence until the document was put into evidence at the hearing on April 30, 1991.

27As to the status of Messrs. Marsales and Boucher being considered to be "management" we have the following testimony to help us conclude that they were not perceived by any employees to be so.

— When asked by Mr. Marsales whether he considered him (Mr. Marsales) to be his boss - Mr. Geauvreau answered unequivocally "No".

— Mr. Gauthier during the course of the hearing withdrew his challenge to Messrs. Marsales and Boucher being on the employer's list and agreed, without argument, to their being included as members of the bargaining unit.

— The principal "evidence" Mr. Gauthier sought to adduce to establish Mr. Marsales management status was a question concerning how well he got along with management.

One would like to think that regardless of one's status, employees "getting along well" in any organization particularly one as close-knit as at Midas, would be essential to an effective, efficient and hopefully profitable operation and would be desirable at all levels in the organization, and it would not be relied upon as proof of "management status".

Summary

28In all of the circumstances of this case relating both to the membership evidence and the statement of desire (petition) the fair and just resolution would have been the ordering, by the Board, of a representation vote.

29While I would agree to the holding of a representation vote to jointly settle the two issues referred to above - the membership evidence standing on its own warrants outright dismissal of the application.

30The finding that the petition was not voluntary based upon the perception issue relating to the rumour concerning the third shop; the training course; and the status issue; cannot be supported by the facts in this case.

31It is my considered opinion that the finding made by the majority in interpreting the evidence and testimony with respect to the matters before the Board unfairly denies the petitioners their lawful right to express their views in a democratically held representation vote, a vote which I would have ordered.