United Steelworkers of America v. Seeburn Division of Ventra Group Inc., 1994 CanLII 9902

[1994] OLRB Rep. November 1585

2287-94-R United Steelworkers of America, Applicant v. Seeburn Division of Ven­tra Group Inc., Responding Party

BEFORE: Robert D. Howe, Vice-Chair, and Board Members R. W. Pirrie and H. Kobryn.

APPEARANCES: Brian Shell, Brad James, Brando Paris, Courtney Joseph and George Casseliman for the applicant; Joseph Liberman, Ross Chandler and Ruth Griepsma for the responding party.

DECISION OF ROBERT D. HOWE, VICE-CHAIR, AND BOARD MEMBER R. W. PIRRIE; November 21, 1994

1. In a decision dated October 27, 1994, a majority of this panel of the Board (with Board Member Kobryn reserving his decision) wrote as follows:

2. This is an application for certification.

3. The Board finds that the applicant is a trade union within the meaning of section 1(1) of the Labour Relations Act.

4. Having regard to the agreement of the parties, the Board further finds that all employees of Ventra Group Inc. in its Seeburn Division in the Town of New Tecumseth, save and except supervisors, persons above the rank of supervisor, and engineering, office, clerical, sales, secu­rity staff and students employed on a co-op worklstudy program, constitute a unit of employees of the responding party appropriate for collective bargaining.

5. For reasons which will issue at a later date, the majority of this panel of the Board, with Board Member Kobryn reserving his decision, hereby directs that a representation vote be taken of the employees of the responding party in the bargaining unit described above.

6. All employees of the responding party in the bargaining unit on the date hereof who are so employed on the date the vote is taken will be eligible to vote.

7. Voters will be asked to indicate whether or not they wish to be represented by the applicant in their relations with the responding party.

8. The matter is referred to the Registrar.

9. The purpose of this decision is to provide our reasons for directing that a representation vote be taken in this matter.

10. The matters in dispute between the parties concern the weight, if any, to be given to the mailed membership cards which form part of the membership evidence filed by the applicant (also referred to in this decision as the "Union"), and the validity of the applicant's Form A-4 Declara­tion Verifying Membership Evidence Before The Ontario Labour Relations Board (the "Declara­tion") insofar as it pertains to those mailed cards.

11. Rule 43 of the Board's Rules of Procedure provides, in part, as follows:

An applicant for certification as bargaining agent must file not later than the application tiling date:

(c) a declaration verifying the membership evidence in the form set by the Board.

5. The Declaration filed by the Union in support of this application was signed by Robert Healey (of Counsel for the applicant). Paragraph 3 of that Declaration reads as follows:

On the basis of my personal knowledge or inquiries I have made, the documents were signed by the employees indicated on the documents, except in the following instances: See Appendix "A" for particulars regarding specific cards.

6. Ten of the twenty-one paragraphs included in Appendix "A" to the Declaration pertain to cards which the Union received by mail. Each of those ten paragraphs reads as follows:

With respect to the card of [the name which appears on the card],the applicant for membership signed the card on [the date which appears on the card] and sent the card to the Applicant in a sealed business reply envelope. The envelope was received at the union's office at 25 Cecil Street, Toronto on [the date of receipt]. The envelope was delivered to the desk of the receiver on that date and the receiver opened the envelope personally and signed the card on that date.

7. Mr. Healey was away on his honeymoon on the date of the hearing of this matter and, accordingly, was unavailable to serve as a witness. However, it was common ground between the parties that it was unnecessary to have him testify as both parties were content to argue the case on the basis of the aforementioned contents of the Declaration, and the following facts stipulated by counsel for the Union:

The reason there is no disclosure [in the Declaration] of any direct contact which anyone had with the persons who signed mailed-in cards is because there was no such further contact. Once the card was received from the applicant, the Form A-4 declarant did not go behind the signa­ture and query directly to the applicant whether the applicant actually signed the card and sent it in [nor did the receiver]. The Form A-4 declarant spoke with the person who received the card and ascertained the facts regarding the receipt.

8. The substantial importance which the Board places upon declarations concerning mem­bership documents is well established in the Board's jurisprudence. See, for example, Grand & Toy Limited, [1986] OLRB Rep. Sept. 1223, in which the Board wrote:

9. ... In certification proceedings the Board places heavy reliance upon the membership evi­dence filed by the union. Because of the consequences of the reliance that the Board places on what is a form of hearsay evidence which is not disclosed to the employer and is not subject to cross-examination, the Board requires a high standard of integrity in the nature and quality of the membership evidence filed. It is for an applicant trade union to satisfy the Board that every membership card upon which it relies was signed by the employee on whose behalf it is tendered and that each employee has paid the initiation fee that accompanies it. It is for this purpose that the Board requires (pursuant to Rule 6) a Form 9 declaration concerning membership docu­ments to be filed in every application for certification.

10. The Form 9 declaration is so important that if one is not filed, the Board will give no weight to the union's membership evidence (see for example Pietrangelo Masonry, [1981] OLRB Rep. Feb. 218). If a Form 9 is filed but it is subsequently revealed either that no inquiry was in fact made by the declarant, or that the declarant failed to indicate in it discrepancies in the member­ship evidence of which he was aware, the Board may dismiss the application on the basis that no weight can be given to the declaration (see Bond Place Hotel [1983] OLRB Rep. Feb. 202).

Where there are irregularities or discrepancies noted in the Form 9, the Board's practice is to concern itself with the acceptability of only the cards to which these apply....

9. Although that passage refers to the Form 9 Declaration Concerning Membership Docu­ments Before the Ontario Labour Relations Board, which was the (pre-B ill 40) predecessor of The Form A-4 Declaration Verifying Membership Evidence Before The Ontario Labour Relations Board, similar considerations apply to the Form A-4 Declaration.

10. Paragraph 3 of Form 9 pertained to the payment and collection of money on account of dues or initiation fees. One of the results of the Bill 40 amendments to the Labour Relations Act is that the Board is no longer required or permitted to consider whether any such payments have been made. (See subsection 105(4.1) of the Act which provides: "In determining whether a person is a member of a trade union or has applied for membership, the Board shall not consider whether the person has made any payment that the trade union may require.")

11. The form initially set by the Board for use by applicants in complying the requirement

contained in Rule 43(c) read as follows:

Form A-4

Labour Relations Act

DECLARATION VERIFYING MEMBERSHIP EVIDENCE

BEFORE THE ONTARIO LABOUR RELATIONS BOARD

Between:

Applicant,

• and -

Responding Party,

• and -

Intervenor.

I ____________________ ______________________________________________ the ________________________________________________________

(name) (office)

of the applicant declare that, to the best of my knowledge, information and belief:

1. The documents submitted in support of the application represent documentary evi­dence of membership on behalf of ______________________________

(number)

persons who were employees of the responding party in the bargaining unit that the applicant claims to be appropriate for collective bargaining on the date of the making of the application.

2. There were _________________________ persons who were employees of the responding party in

(number)

the bargaining unit that the applicant claims to be appropriate for collective bargain­ing on the date of the making of the application.

DATED___________

(Signature)

12. In December of 1993, the labour relations community was notified of revisions which the Board had made to that form, by means of the following notice included in the December 1993 issue of "Highlights":

Board revises Forms A-4 and A-67 (Declaration Verifying Membership Evidence)

The Board has recently revised its Form A-4 (Declaration Verifying Membership Evidence) and Form A-67 (Declaration Verifying Membership Evidence, Construction Industry), copies of which are attached to this issue of Highlights. Under Rule 43(c) of the Board's Rules of Proce­dure, an applicant for certification as bargaining agent must file a Form A-4 (or, in the construc­tion industry, Form A-67) not later than the application filing date. The revised Forms A-4 and A-67 differ from their predecessors in two ways. First, they use the term "application date" rather than "date of making of the application", consistent with section 8 of the Act. Second, they clarify (through a new paragraph #3) that the Form A-4 or Form A-67 declarant is also representing membership evidence filed in a certification application to be what it purports to be, namely membership evidence signed by the employees indicated on the documents. Appli­cant unions may begin using the revised Form A-4 and Form A-67 immediately and, in any case, must begin doing so by March 1,1994.

Thus, since March 1, 1994, the Form A-4 Declaration has required Form A-4 declarants to declare that, to the best of their knowledge, information and belief, the documents submitted as member­ship evidence in support of the application were signed by the employees indicated on the docu­ments, except in the instances specifically indicated by the declarant.

13. In the instant case, each of the ten membership cards which the Union received by mail has been specifically listed by the Form A-4 declarant as an exception to paragraph 3 (along with eleven other paragraphs of particulars regarding specific cards). Thus, this is clearly not a case in which the declarant has failed to indicate in the Declaration discrepancies in the membership evi­dence of which he was aware. However, it is a case which raises a concern about whether sufficient inquiries had been made by the declarant or the receivers to warrant the inclusion of the state­ment, "the applicant for membership signed the card", in each of the ten paragraphs in the Appen­dix to the Declaration pertaining to those ten cards. It also raises the related issue of the weight, if any, which should be given to those ten cards in the circumstances of this case.

14. Membership cards received by unions through the mail (which are often referred to as "mailed membership evidence") have been found by the Board to be valid evidence of member­ship in a number of cases during the past four decades. The earliest reported case to which we were referred by counsel was Canadian Gypsum Company Limited, [1961] OLRB Rep. Nov. 280, in which the Board "endorsed the Record" as follows:

A representative of the applicant union handed out application cards to persons entering the plant, together with a leaflet describing in clear cut terms how the cards were to be completed and returned to the union. All signed application cards were received by the union by mail. Each card came in a separate envelope and each was accompanied by a dollar payment.

While the use of the mails rather than personal solicitation to secure membership in a trade union has created problems for an applicant in establishing its membership position to the satis­faction of the Board in some cases, evidence of membership received in a manner similar to that used in the present case has been accepted by the Board in the past. It should be noted that there is here no evidence to suggest that the employees signing the application cards did not in fact pay the dollar enclosed with the card. Moreover, in our view the documents submitted to the Board by the applicant after the filing of the initial evidence of membership do not cast any doubt on this evidence first filed with the Board.

See also Ontario Bus Industries, [1988] OLRB Rep. Sept. 914, in which the Board wrote as follows in summarizing the Board's evolving jurisprudence in respect of mailed membership evidence, and applying it to the material facts of that case:

9. Although the use of mailed membership evidence can make it difficult for a union to refute "non-sign" or "non-pay" allegations (see, for example, Wallace Barnes Co. Ltd., [1965] OLRB Rep. July 282), the Board has for many years accepted mailed membership evidence where the union's reliance on such membership evidence is duly noted in the Form 9, or in material which accompanies the Form 9 or the mailed membership evidence filed with the Board: see, for example, Fotomat Canada Limited, [1979] OLRB Rep. Apr. 306; E. B. Eddy Forest Products Dd., [1977] OLRB Rep. Oct. 694; and Canadian Gypsum Company Limited, [1961] OLRB Rep. Nov. 280. In the instant case, Hassan Yussuff, the Form 9 declarant, advised the Board (in the above quoted letter which accompanied the Declaration) that seven membership cards had been received by mail at the Union office. Mr. Yussuff also advised the Board in that letter that each of the seven persons in respect of whom the Union had received mailed membership evi­dence had been contacted to confirm their application, signature, and membership fee. By means of a list attached to that letter, the Union provided the Board with the names and addresses of those seven persons. The seven envelopes in which the mailed cards were received by the Union were also filed with the Board, along with the Union's membership cards and Dec­laration. Mr. Yussuff is the collector whose signature appears on each of the seven cards. In view of the information which the Union has provided to the Board in the manner described above, we are satisfied that, subject to the Board's usual "second check", the seven member­ship cards in question meet the Board's requirements with respect to mailed membership evi­dence.

10. That more is required of an applicant in respect of mailed membership evidence than was done by the Union in the instant case is evident from the Board's decision in E. B. Eddy Forest Products Limited, [1977] OLRB Rep. Oct. 694. The material facts pertaining to the mailed mem­bership evidence are described in the following manner in paragraph 35 of that decision:

The evidence is, in respect to all applications received by mail, that they were addressed to Peel [a labour relations consultant] who passed them unopened to Kennedy [the employee who acted as the prime collector in the organizing campaign and who signed the declaration] who opened them in Peel's presence. Kennedy testified that each envelope contained one dollar and that he signed as the collector. Kennedy further testified that he himself phoned 10 of the mail appli­cants to confirm that they had signed a card and enclosed the money. Kennedy further testified that in respect to 3 others he got "another guy" to check for him and he reported back that he had checked with the individuals concerned and they reported it was "okay". Peel further testi­fied that he had phoned one such person and the evidence is imperfect as to whether he reported the results of that conversation to Kennedy.

The Board ruled that it was "satisfied that the testimony of Kennedy relative to the subsequent inquiries made of the applicants for membership to verify their actions entitles such applications to be accorded normal evidentiary weight". However, it also ruled that it would "disregard the evi­dence of membership of [the] one individual checked by Peel, at Kennedy's request, without evi­dence of the results of that enquiry being reported back to Kennedy." Thus, the Board was not prepared to give any weight to a mailed membership card where the only knowledge which the declarant possessed concerning its validity was his personal observation of the opening of the enve­lope in which the card and the dollar which accompanied it were received by mail.

16. The cases to which we were referred by counsel during the course of their able submis­sions indicate that applicants relying upon mailed membership evidence have generally adopted the practice of contacting each of the individuals in respect of whom mailed evidence has been received, in order to confirm that each of them has in fact signed a membership card and mailed it to the union, with any required monetary payment. See, for example, Frontenac-Lennox and Addinglon County Roman Catholic Separate School Board, [1988] OLRB Rep. Sept. 888; Ontario Bus Industries, supra; Fotomat Canada Limited, [1979] OLRB Rep. April 306; E. B. Eddy Forest Products Limited, supra; and Centrac Industries Limited, [1977] OLRB Rep. Oct. 701. It is clear from those cases that the Board is generally prepared to give full weight to mailed membership cards where that practice has been followed and the union's reliance upon such membership evi­dence has been duly indicated in the declaration.

17. As noted by counsel for the Union, one of the purposes of the Labour Relations Act specified in section 2.1 of the Act is to "ensure that workers can freely exercise the right to orga­nize by protecting the right of employees to choose, join and be represented by a trade union of their choice and to participate in the lawful activities of the trade union". In view of that purpose and in view of the difficulties which may be encountered in some circumstances by unions in attempting to contact each of the individuals in respect of whom mailed evidence has been received, it may well be that the Board will be prepared to give full evidentiary weight to mailed membership evidence where, although the union has been unable to contact some or all of the individuals in respect of whom mailed evidence has been received in order to confirm that each of them has in fact signed a membership card and mailed it to the union, other circumstances provide a reasonable basis for the declarant's belief that the cards were signed by the employees indicated on them. This might occur, for example, where a union organizer provides an employee with a numbered or otherwise identifiable membership card which is subsequently received in the mail by the union bearing what purports to be that employee's signature, or where a union organizer visits an employee at the employee's residence and gives the employee a blank membership card, together with an envelope addressed to the organizer, and subsequently receives by mail that enve­lope containing a membership card bearing what purports to be that employee's signature.

18. It is neither necessary nor appropriate for the Board to attempt in this decision to delin­eate all of the circumstances in which mailed membership evidence might appropriately be accorded full evidentiary weight even though the applicant has not contacted each of the individu­als in respect of whom mailed evidence has been received, in order to confirm that each of them has in fact signed a membership card and mailed it to the union. It is sufficient for present purposes to indicate that, in the absence of any such circumstances, the Board is not prepared to give full evidentiary weight to mailed membership cards where the declarant's only basis for asserting (as Mr. Healey did in the aforementioned ten paragraphs of Appendix "A" to the Declaration) that the cards were signed by the persons indicated on them is the declarant's knowledge or information that the cards were received at the Union's office in sealed business reply envelopes on specified dates, that the envelopes were delivered to the desk of the receiver on those dates, and that the receiver opened the envelopes personally and signed the cards on those dates.

19. It is true, as contended by counsel for the Union, that the Board's practice of comparing the signatures contained on membership cards with the sample employee signatures provided (pur­suant to Rule 45) by the employer named in the certification application provides an element of protection against certificates being issued on the basis of forged employee signatures. Indeed, this comparison is done not only once, but also a second time as part of the Board's usual "second check". However, the Board is not always provided with sample employee signatures, and in cases where such signatures are filed with the Board they are sometimes incomplete. In the instant case, for example, although sample signatures have been filed with the Board in respect of most of the employees listed on the schedules of employees, the Board has not been provided with sample sig­natures for a number of the individuals in respect of whom the applicant has filed mailed member­ship evidence. Moreover, as indicated by the Board in the above-quoted passage from Grand & Toy Limited, supra, and in numerous other decisions, it is for the applicant union to satisfy the Board that every membership card upon which it relies was signed by the employee on whose behalf it is tendered.

20. In the circumstances of the instant case, it is unnecessary for the Board to determine whether the Union's failure to satisfy the Board that the mailed membership cards upon which it relies were signed by the employees on whose behalf they are tendered should cause those cards to be entirely disregarded by the Board (as occurred in E.B. Eddy Forest Products Limited, supra), or should merely cause the Board to give them reduced evidentiary weight. The former would result in a representation vote being directed pursuant to subsection 8(2) of the Act, on the basis of more than 40 per cent but not more than 55 per cent of the employees in the bargaining unit having applied to become members of the Union on or before the certification application date. The latter would result in the Board exercising its discretion to direct that a representation be taken pursuant to subsection 8(3) of Act. Thus, the result in either event would be the taking of a representation vote, as directed in our decision dated October 27, 1994, in this matter.

21. Thus, it was for the foregoing reasons that the majority of this panel of the Board, with Board Member Kobryn reserving his decision, directed that a representation vote be taken in this matter.

CONCURRING OPINION OF BOARD MEMBER H. KOBRYN; November 21, 1994

1. I get the distinct feeling from the labour community that this panel of the Board has been too technical in its interpretation of the Board's jurisprudence on "mail in" signed union membership cards in this organizing campaign. That feeling in the labour community may have much logic behind it, but the labour community must realize, if they don't already know, that there are tremendous forces in the industrial labour relations community committed to hobbling the Board's certification process as it presently exists.

2. So in order for the labour community to neutralize these continuous attacks with their subsequent delays and frustrations with a process that is quite straight forward, they should care­fully read this decision and note its direction and then make doubly sure that all their union mem­bership cards are above reproach to any challenge whether technical or otherwise. With this warn­ing to the labour community combined with the reasons stated, I join the majority with this my concurring decision.