International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada v. Famous Players Inc., 1995 CanLII 10067

[1995] OLRB Rep. April 397

3719-94-R; 3847-94-R; 3916-94-R International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, Applicant v. Famous Players Inc., Responding Party

BEFORE: R. O. MacDowell, Alternate Chair, and Board Members W. A. Correll and B. L. Arm­strong.

APPEARANCES: Bernard Fishbein, Mark Bailey and Domenico Marcone for the applicant; Harry Freedman, Beth Pierson and Wendy Kady for the responding party.

DECISION OF THE BOARD; April 25, 1995

I

1. There are three applications before us. In each one, the union seeks certification as bar­gaining agent for a group of employees working for Famous Players Inc. The employees in ques­tion are located in Ottawa, Hamilton and Thunder Bay.

2. There is no dispute that the applications are timely, or that the applicant is a trade union within the meaning of the Act.

3. There is no dispute about the description of the appropriate bargaining units.

4. Indeed, there is no real dispute that a substantial number of employees in each bargain­ing unit wish to be represented by the union in a collective bargaining relationship with their employer.

5. The only question for the Board to determine is whether the documentary evidence filed by the union meets the requirements of the Act: that is, whether it shows that the employees are "members" of the union or have "applied to become members". That is the finding that the Board must make before the union can be certified.

6. From the employees' point of view, this may look like a rather narrow, "technical" point. However, the case raises an important question about the legal requirements for certifica­tion, and whether those requirements have been changed by "Bill 40" (passed in January 1993).

7. The main provisions of the Act governing the certification process now read as follows:

8.-(1) Upon an application for certification, the Board shall ascertain,

(a) the number of employees in the bargaining unit on the certification applica­tion date; and

(b) the number of those employees who are members of the trade union on that date or who have applied to become members on or before that date.

(2) The Board shall direct that a representation vote be taken if it is satisfied that at least 40 per cent and not more than 55 per cent of the employees in the bargaining unit are members of the trade union on the certification application date or have applied to become members on or before that date.

(3) The Board may direct that a representation vote be taken if it is satisfied that more than 55 per cent of the employees in the bargaining unit are members of the trade union on the certification application date or have applied to become members on or before that date.

(4) The Board shall not consider the following evidence if it is filed or presented after the certifi­cation application date:

1. Evidence that an employee is a member of a trade union, has applied to become a member or has otherwise expressed a desire to be represented by a trade union.

2. Evidence that an employee who had become or had applied to become a member of a trade union has cancelled, revoked or resigned his or her membership or application for membership or has otherwise expressed a desire not to be represented by a trade union.

3. Evidence that an employee who had become or had applied to become a member of a trade union has done anything described in paragraph 2 but has subsequently changed his or her mind by becoming a member again, by reapplying for membership or by otherwise expressing a desire to be repre­sented by a trade union.

(5) The Board shall not consider evidence of a matter described in paragraph 1, 2 or 3 of subsec­tion (4) that is filed on or before the certification application date unless it is in writing and signed by each employee concerned.

(6) The Board may consider evidence of a matter described in paragraph 2 or 3 of subsection (4) but only for the purpose of deciding whether to make a direction under subsection (3) and only if the evidence is filed or presented on or before the certification application date and is in writ­ing and signed by each employee concerned.

(7) Subsections (4) and (5) do not prevent the Board from,

(a) considering whether, on or before the certification application date, section 65, 67 or 71 has been contravened or there has been fraud or misrepresen­tation;

(b) requiring that evidence of a matter described in paragraph 2 or 3 of subsec­tion (4) that is filed or presented on or before the certification application date and is in writing and signed by each employee concerned be proven to be a voluntary expression of the wishes of the employee; or

(c) considering, in relation to evidence of a matter described in paragraph 1, 2 or 3 of subsection (4) that is filed or presented on or before the certification application date and is in writing and signed by each employee concerned, further evidence identifying or substantiating that evidence.

9. 1-(2) If no representation vote is taken, the Board shall certify the trade union as the bargain­ing agent of the employees in the bargaining unit if it is satisfied that more than 55 per cent of the employees are members of the trade union on the certification application date or have applied to become members on or before that date.

105.-(2) Without limiting the generality of subsection (1), the Board has power,

(j) to determine the form in which evidence of membership or application for membership or of objection to certification of a trade union shall be filed or presented on an application for certification and to refuse to accept any evi­dence not filed or presented in that form;

(j.1) to determine, on an application for a declaration terminating bargaining rights, the form in which and the time as of which evidence shall be filed or presented concerning employees who no longer wish to be represented by a trade union and to refuse to accept any evidence not filed or presented in that form or by that time.

105.-(4) Where the Board is satisfied that a union has an established practice of admitting, per­sons to membership without regard to the eligibility requirements of its charter, constitution or by-laws, the Board, in determining whether a person is a member of a trade union, need not have regard for the eligibility requirements.

(4.1) 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.

113.-(1) The records of a trade union relating to membership or any records that may disclose whether a person is or is not a member of a trade union or does or does not desire to be repre­sented by a trade union produced in a proceeding before the Board is for the exclusive use of the Board and its officers and shall not, except with the consent of the Board, be disclosed, and no person shall, except with the consent of the Board, be compelled to disclose whether a person is or is not a member of a trade union or does or does not desire to be represented by a trade union.

[emphasis added]

8. Prior to Bill 40, the main certification provisions read this way:

7.-(1) Upon an application for certification, the Board shall ascertain the number of employees in the bargaining unit at the time the application was made and the number of employees in the unit who were members of the trade union at such time as is determined under clause 103(2)(j) [now 1O5(2)(j)].

1.-(1) In this Act,

(I) "member", when used with reference to a trade union, includes 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 in respect of initiation fees or monthly dues of the trade union,

and "membership" has a corresponding meaning.

[emphasis added]

There has been no change to what are now sections 105(4), l05(2)(j) or 113.

9. As will be seen, both before and after Bill 40, "membership" has been an important concept in the certification scheme, because findings with respect to "membership" or an "applica­tion for membership" are necessary before the Board can certify, with or without a representation vote.

10. By contrast, "membership" is irrelevant in the process for terminating bargaining rights. Section 58(3) of the Act provides:

58.-(3) Upon an application under subsection (1) or (2), the Board shall ascertain the number of employees in the bargaining unit at the time the application was made and whether not less than 45 per cent of the employees in the bargaining unit have voluntarily signified in writing at the time that is determined under clause 105(2)(j.1) that they no longer wish to be represented by the trade union, and, if not less than 45 per cent have so signified, the Board shall, by a representation vote, satisfy itself that a majority of the employees desire that the right of the trade union to bargain on their behalf be terminated.

[emphasis added]

A vote to terminate bargaining rights is triggered by a showing that 45 per cent of the employees no longer wish to be represented. "Membership" has nothing to do with it.

II

11. The documents tendered by the union in the certification applications now before us, are signed by employees in the various bargaining units, and read this way:

AUTHORIZATION FOR REPRESENTATION

INTERNATIONAL ALLIANCE OF THEATRICAL STAGE EMPLOYEES AND MOV­ING PICTURE MACHINE OPERATORS OF THE UNITED STATES AND CANADA, AFL-CIO-CLC

I, ____________________________________ ______________________

(print employee's name) (telephone)

Of

(print street address, city, zip)

(classification) (beeper #,if any)

hereby authorize International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, AFL-CIO-CLC to represent me for the purpose of collective bargaining with my employer, ____ and to negotiate and conclude all agreements respecting wages, hours, and other terms and conditions of employment. I under­stand that this card can be used by the Union to obtain recognition from my employer without an election.

Date:

(month, day, year)

SIN #

(social insurance number of employee)

Signed:

(signature of employee)

Rec'd by: __________ NOTE: READ BEFORE SIGNING

No one disputes that this represents the voluntary wishes of the persons who signed the cards.

12. We were told that this is a "standard" American authorization card, that is used for obtaining either voluntary recognition, or an "election" supervised by the National Labour Rela­tions Board in the United States. The question before us, therefore, is whether this American card meets the requirements of the Ontario statute. The union says that it does. The employer says that it does not.

13. Briefly put, the employer submits that this document neither establishes "membership" in the trade union, nor constitutes an "application for membership". The document says nothing about "joining" the union at all. It does not verify affiliation to the union as an organization, it does not confirm adherence to the union's constitution or objects, and it does not demonstrate that the employees have bound themselves together with persons who are union members in the con­tractual matrix that constitutes the union organization. (See: Astgen v. Smith (1967) 1969 CanLII 488 (ON CA), 7 D.L.R. (3d) 657 (O.C.A.); and Associated Hebrew Schools, [1978] OLRB Rep. Sept. 797).

14. In the employer's submission, these documents may indicate a desire to be represented by the union. But they do not demonstrate that anyone has become a "member" or applied to become a "member", within the meaning of sections 8 or 9.1 of the Act.

15. Counsel for the employer points out that for almost 50 years "membership" has been the cornerstone of a certification process, and findings with respect to "membership" have been based exclusively upon documentary evidence from employees. It is not a difficult process to adhere to - as evidenced by the thousands of certificates that have been issued over the years, with­out a vote, and without hearing further from the employees affected. As counsel put it: "it is not hard to get it right"; moreover, because the documents are secret and there may be no representa­tion vote of the employees, it is not unreasonable to expect a trade union to "get it right". If it were otherwise, a largely administrative, document based process would readily degenerate into litigation.

16. The union replies that the documents filed in the instant case do constitute "member­ship" within the meaning of the Act. The union argues that Bill 40 changed the statutory require­ments for "membership", so that it is no longer necessary to actually be a "member" or to "apply to become a member". It is sufficient if employees have expressed a desire to be represented - as these employees have done.

17. In the union's submission, a "desire to be represented" now counts as "membership" for certification purposes. The formalities previously required by the Board are now of purely his­torical significance, because the statute has been changed. The union argues that Bill 40 removed the statutory definition of membership, eliminated the need to pay any fees to the union, and reworded section 8, SO that it is no longer necessary for an employee to actually join the union, or apply to join the union.

18. The union submits that with the elimination of the statutory definition of "membership" once found in section 1 of the Act, and with the addition of section 8(4)1, it is no longer necessary for an employee to be a union member or to have applied to become a member. It is sufficient if s/he has expressed a desire to be represented by the trade union. To put the matter another way: the word "membership" which continues to appear in sections 8.2, 8.3 and 9 of the Act now has an extending meaning which embraces any expression of a "desire to be represented". Thus, the union says, it would now be sufficient if a clear majority of employees have signed a petition with the heading "we wish to be represented by XYZ union". A petition of that kind now "counts" as membership. Joining the union is unnecessary.

19. In the alternative, the union seeks to call oral evidence from employees, to the effect that:

The documents were the beginning of a process to become members; it was clearly understood that employees were joining a trade union; and that subsequently [counsel was not sure of this] employees who so wished had the opportunity to and did become union members tin the formal joining sense].

Counsel submits that this oral evidence should be received by the Board to "identify and substanti­ate" the documentary evidence.

20. Counsel for the union points out that the form of authorization card now before us actu­ally contains more information about its purpose than a bare application for membership would. It tells employees precisely what the card will be used for - which a membership card may not. He asserts that it would be ironic if a document more in tune with the purpose of certification were rejected, while a bare "application for membership" would meet the statutory requirements.

21. Both counsel made reference to the scheme of the Act, the statutory history, and the Board's established approach to membership from 1948 until 1993. The union referred to this material in order to highlight the differences between the current legislative language and what went before. The employer referred to the legal history in order to buttress its argument that, while Bill 40 changed a number of things, it did not change this particular facet of the statutory scheme.

22. There is no doubt that the term "membership" has been the subject of considerable scrutiny over the years: by the Board, by the Legislature and by the Courts; and since both parties invoked history in support of their positions, it may be useful to sketch in some of that history here. We do not think one can appreciate the significance of these "membership" concepts without understanding how important they were in the scheme of the Act in place from 1950 to 1993. Nor can one appreciate the significance of the change that the union says flows from the reworded sec­tion 8(4)1.

23. We think that history is helpful and worth reviewing. In this regard, we will incorporate many of the observations made in the recently released decision in Teamsters Local Union 938 v. Knob Hill Farms Limited, Board File No. 0268-94-R (March 20, 1995) [now reported at [1995] OLRB Rep. Mar. 303].

III

24. Since the 1950's a union has demonstrated its right to "automatic certification" without a vote, or its right to have a representation vote conducted, by showing that a certain number of employees were "members" of the union (or, in the early years, "members in good standing"). The qualifying percentages have varied from time to time, but their purpose has remained the same: unless the union can demonstrate a minimum level of "membership" support, the Board cannot direct a representation vote, and unless the union can show the membership support of a clear majority of employees, the union cannot be certified "automatically" without a vote. "Membership" - that is, affiliation to the union as an organization - has always been a critical ele­ment in the statutory scheme, even though "membership" is really being used as a proxy for sup­port for certification of the union. An employee indicates his desire to be represented by a union by joining it - a right guaranteed by what is now section 3 of the Act.

25. From 1950 until 1970, certification depended upon Board findings with respect to union "membership"; but the statute did not actually contain a definition of the word "membership". The Act merely gave the Board the authority to administer the certification sections of the Act, and the general power to determine the form of "membership" evidence, (under what is now sec­tion 105(2)(j) of the Act). If the Board was satisfied on the basis of the evidence before it that a clear majority of the employees were "members" of the union at the prescribed time, the Board could certify "automatically" (i.e. without a vote), much as it does today. If the union's member­ship support was significant, but not a "clear majority", the Board could order a representation vote - again, much as it does today. However, the statute did not elaborate on what the word "member" might mean in the context of a particular case, nor indicate what evidence would be necessary to establish the fact of membership. That was left for the Board to determine, as part of the task that had been assigned to it.

26. We might pause here to note, that although the certification formula has always referred to union "membership", actual "membership" in the union organization is neither legally nor logically connected to the union's role as statutory bargaining agent. An individual can be a "member" of one or more tiiiidif.s7whether or not a union is that person's collective bargaining agent vis-a-vis a particular employer; moreover, once the union is certified, it is entitled to repre­sent all employees in the bargaining unit whether or not they are union members (see section 69 of the Act), and remains the bargaining agent for all employees in the bargaining unit, regardless of subsequent changes to the composition of the work force, regardless of the ebb and flow of employee support (see the remarks of Laskin C.J.C. in Terra Nova Motor Inn, (1975) 75 CLLC ¶14,253) and regardless of whether employees have become or remain "members" (Recall that certification can be based upon mere "applications for membership".)

27. Even in the statutory scheme, the connection between "membership" in the union and representation" is imperfect - although, of course, certification is the way that a union acquires the right to represent employees. A bare 35-40 per cent level of "membership support" can lead to a representation vote, and if the union "wins" the representation vote, it becomes the employees' bargaining agent even if it never acquires another member, and even if all of its existing "members" depart. If the certification application is based on applications for membership, a union can be cer­tified even if it has no "members" at all in a common law sense. And if there is a representation vote, the question on the ballot is "do you want to be represented?" - not "do you wish to join the union?". A representation vote answers directly the question that "membership" answers only by implication: whether the employee wishes to be represented by the union.

28. We might also note that a union is a collective bargaining organization that is not at all like a typical "club" or "voluntary association" (indeed "membership" may not be "voluntary" at all - see section 47) and it speaks for people who are not necessarily its members. Its internal rules or constitution have very little to do with its status as statutory bargaining agent under the Labour Relations Act. The statute does not even expressly require that a union have a constitution, let alone prescribe its contents. Nor does the Act say much about the rights of union members qua members (i.e. as opposed to employees in a bargaining unit to whom the union owes various statu­tory duties - see for example section 69).

29. Nevertheless, prior to 1970, "membership" was an important concept at the certification stage, because a union demonstrated its right to automatic certification or a representation vote by showing that its employee supporters were union members. "Membership" was important because the scheme of the Act made it so. If employees were "members" of the union, it was assumed that they supported the union's bid for certification as the bargaining agent for employees at the work­place. "Membership" was a critical element in the statutory formula or by which the union becomes "certified"; and so far as we know no one has ever suggested that a "desire to be represented" was sufficient by itself, or was to be treated as "membership" - even though this form of words has appeared for years in both the termination sections of the Act, and what is now sec­tion 113. "Representation words" were part of the statute long before Bill 40 or the current section 8(4)1, and no one ever argued that they infused the word "member" with a special meaning - even before a statutory definition was added to the Act in 1970 (see below).

30. For the first twenty years of the Board's existence (1950-70) there was no challenge to the Board's authority to decide what "membership" was for certification purposes. The Board's Rules provided that "membership" was to be determined on the basis of documentary evidence, and the statute provided (reversing a 1951 Supreme Court of Canada decision) that "membership" evidence was to remain confidential. However, it was the Board that determined what "member­ship" in the union meant in the context of the statutory scheme, as well as what the union had to put before the Board to establish that an employee was a "member".

31. A union could always show that an employee was a "member" by demonstrating (through documents) that s/he had taken an oath, or had gone through some ritual, or had fulfilled specific qualifications, or had done whatever else might be required under the union constitution to be admitted to "membership" in the organization. But this process could be complex or cumber­some, and did not focus directly on what certification was really about: whether the employee wanted the union to represent him/her in this bargaining unit for this employer (the question on the ballot in a representation vote, if one is held). Accordingly, between 1950 and 1970 the Board developed the following "mixed test" for determining what "membership" meant in the context of a certification application:

(1) Had the employee applied for membership in the union?

(2) Had the employee indicated his acceptance of membership in the union and his assumption of the future responsibilities of member­ship, by paying at least one dollar in respect of the prescribed fees or dues?

(3) Did the constitution of the union contain an express prohibition pre­venting the employee from being admitted into membership?

(4) Did the union accord to the employee's full rights and privileges as a member?

The statute did not expressly say that, of course. The Board developed this approach in order to give policy content to the undefined words in the Act.

32. We have called the Board's approach a "mixed test" because, as will be seen, it approx­imates the club/common law concept of "membership", without embracing it absolutely. For example, the Board held that an "application for membership" was sufficient organizational affilia­tion for certification purposes. What the employee needed to show was that s/he had joined the union or had applied to do so, that she had confirmed that intention with a symbolic financial com­mitment, and that s/he did not face any actual impediments to membership.

33. If an employee had done the things listed above, the Board considered him/her to be a "member" of the union for the purpose of certification, regardless of what additional rights, obli­gations, or limitations might be found in the trade union's constitution. The Board (like the scheme of the Act) was not unduly concerned with the terms of the union constitution. The Labour Relations Act does not regulate internal union affairs, and the Board was disinclined to look to such matters when exercising its statutory mandate.

34. The Board was aware that a trade union might be a club at common law; but, in the Board's view, "club law" was not what the Legislature really had in mind when it drafted the Labour Relations Act or established the certification process. The Board reasoned that certification was about the union's status as bargaining agent, not the employee's rights as a member, and if the employee wanted to join and the union was prepared to accept him/her, an application for mem­bership was sufficient affiliation to the organization, and sufficient support for certification, to count that individual "in the union camp" for certification purposes - regardless of what the union constitution might say. For the purpose of certification, "membership" and an "application for membership" were the same, and the union constitution did not necessarily govern the result. Club law concepts were not abandoned, but they were not controlling either.

35. In 1970 the Board's established approach to the "membership" part of the equation, was successfully challenged in Metropolitan Life Insurance Company v. International Union of Operating Engineers, Local 796 et al, (1970) 70 CLLC ¶14,008. On an employer's motion, the Supreme Court of Canada held that on an application for certification a trade union had to be treated like a club after all, and that in determining whether employees were "members" for certi­fication purposes, the Board could not ignore what the union constitution required. Membership was held to be about common law affiliation - even though the operational connection to the statu­tory scheme is quite debatable, the Board had taken a different view for twenty years, and in Metropolitan Life there was no dispute that the employees in question were trying to join the union and wanted the union to represent them.

36. It appears that in the Court's opinion, the kind of "membership" that was contemplated by the statute was to be determined by reference to the union constitution, not the "tests" that the Board had developed. It did not matter that the employees had applied for membership, or paid money in respect of membership fees, or wanted the union to represent them. They had to be members" in a common law contractual sense, and that "contract" was governed by the union's Constitution. The Court ruled that when the Board applied its own tests it was "asking itself the wrong question".

37. The decision in Metropolitan Life was issued on January 28, 1970. But the law as declared by the Court did not last very long. Six weeks later, the Legislature amended the Labour Relations Act to include the following definition and instruction to the Board:

"member", when used with reference to a trade union, includes a person who

i) has applied for membership in the trade union, and has paid to the trade union on his own behalf an amount of at least one dollar in respect of initia­tion fees or monthly dues of the trade union,

and membership has a corresponding meaning.

105.-(4) Where the Board is satisfied that a union has an established practice of admitting, per­sons to membership without regard to the eligibility requirements of its charter, constitution or by-laws, the Board, in determining whether a person is a member of a trade union, need not have regard for the eligibility requirements.

38. These amendments reversed the Supreme Court of Canada decision that had been released a few weeks before - implicitly rejecting at least some of the legal theory and reasoning upon which it was based. In effect, the Legislature restored the previous status quo by providing a statutory underpinning for what the Board had been doing all along. The Legislature acted to make sure that the focus in a certification application did not drift into arcane issues of internal club law - issues that were not central to the certification decision, but could bog down the whole process.

39. The definition of "membership" provided in response to Metropolitan Life ratified the Board's existing policy, and confirmed that an application for membership is a sufficient showing of employee "membership" to support either automatic certification, or the taking of a representation vote. In addition, the Legislature made it clear that the common law test of "membership", draw­ing on the union Constitution, was not to be determinative. What is now section 105(4) confirms that the Board should consider the union's practice, rather than the eligibility requirements spelled out in the union's Constitution.

40. On the other hand, the Legislature did not totally abandon the "membership" notion that had been pivotal in the Board's approach both prior to Metropolitan Life and afterwards. It did not erase the need for affiliation or connection to the union as an organization. Nor did it sub­stitute some notion of "support" or "desire to be represented" of the kind that appears explicitly in the termination provisions of the Act. The Legislature merely extended the concept of "mem­bership" to include an "application for membership", and confirmed that the Board was not neces­sarily obliged to apply the union's Constitution (see again sections 105(4) and 105(2)(j)).

41. It is not at all clear whether Metropolitan Life would be decided in the same way today. What is clear is that the Supreme Court made a binding determination of what certain words in the statute meant, and the Legislature reversed that result by changing those words and returning the Board's focus to what it had always been. The Legislature gave a special meaning to the word "membership". The Legislature did not jettison the concept of membership altogether.

IV

42. Over the years, trade union practice became increasingly congruent with these well-es­tablished notions of what "membership" was and how it could be demonstrated. Unions developed so-called "membership documents" that were used for organizing purposes. Those documents con­sisted of an application for membership and an attached receipt indicating that at least one dollar had been paid in respect of union dues. The approach was well known. Indeed, the Lieutenant Govemor in Council passed Rules and created forms reflecting the terms of the statute and the established Board and trade union practice.

43. "Membership" evidence of the kind described above was accepted in hundreds of certi­fication cases, and provided the basis for either automatic certification or representation votes in certification applications involving thousands of employees. There was never any operational sig­nificance between "membership" in the union, and an "application for membership" because the statute contemplated both; nor was there any practical problem subsequently admitting employees to actual membership if that was their wish (or obligation under a collective agreement). For as we have already noted, "membership" was only relevant at the certification stage because the statute made it so and identified this element as a proxy for employee support.

44. But this was not the only kind of evidence that was sometimes put before the Board. Nor did the Board ignore the realities of the workplace. Persons who were undoubtedly "mem­bers" of the union for statutory purposes (i.e. met the statutory definition) might ultimately decide not to support its certification at a particular workplace. Employees who had joined the union at one point (or had applied for membership) might later change their minds. Accordingly, the Board did receive "change of heart" documents, or other written employee expressions of support or opposition - provided that they were voluntary and filed in a timely way. These documents were typically used to decide whether a representation vote should be taken. They were not usually "membership" documents, but they were considered relevant when the Board was deciding whether the union would be certified on the basis of "membership" alone.

45. Prior to Bill 40, the scheme of the Act contemplated a "terminal date", that was typi­cally set about two weeks after the date of the application for certification. The terminal date was the "counting date" as of which the Board considered the union's membership cards and any other expressions of support or opposition coming from employees. If, as of the terminal date, the union showed sufficient "membership" for automatic certification, the Board would usually certify with­out recourse to a representation vote. However, if some of the union's "members" had also filed a statement (usually in "petition form") that they didn't support the union's certification after all, the Board would settle the certification issue by ordering a vote. And, since card signers had a cou­ple of weeks to change their minds after the certification application was filed~ it was not unusual for the Board to have before it a variety of documents from employees indicating that they did or did not wish to have the union representing them - that is, documents expressing support or oppo­sition that were not, strictly speaking, "membership" documents. In Elks Inc., [1985] OLRB Rep. Feb. 244, the Board described the effect of "petitions" this way:

46. In support of its application for certification, the trade union filed documentary evidence of membership on behalf of more than fifty-five per cent of the employees of the respondent in the above-mentioned bargaining unit regardless of the determination of its ultimate composition. This documentary evidence took the form of membership cards, which include a combination application for membership and an attached receipt. These cards are each signed by the subject employee, and the receipts are countersigned by a witness ("the collector") and indicate that a payment of one dollar has been made to the union in respect of its membership fees. The one dollar payment is in the nature of consideration and confirms the act of signing.

47. The documentary evidence is supported by a properly completed Form 9, Statutory Declara­tion, attesting to its regularity and sufficiency. There is no allegation of any irregularity in the form of this documentary evidence, nor is there any alleged impropriety in the manner in which it was solicited. Certainly there is nothing to call into question the "voluntariness" of the indi­vidual acts of signing or to suggest that, by so doing, the employees were not indicating their desire to be represented by the applicant union. The form and contents of this evidence are con­sistent with the requirements of section 1(1)(l) of the Act and, as well, it meets the form and time limits prescribed pursuant to section 103(2)(j) of the Act. This documentary evidence, standing by itself, demonstrates that the union has a level of "membership support" in excess of that required by section 7(2) of the Act, for certification without recourse to a representation vote.

48. There was also filed with the Board a "statement of desire" or "petition" signed by a number of employees indicating that they wish to oppose the certification of the applicant. This petition included the names of certain individuals who had previously signed membership cards and paid one dollar in respect of membership fees, and, therefore, were "members" of the union within the meaning of section l(1)(l) of the Act. From the terms of the petition one could infer that these individuals had had a purported change of heart, and now allegedly no longer wish to sup­port the applicant's certification. It was apparent that if the change of heart was a voluntary one so that the union's documentary evidence may not accurately reflect the employees' subsequent wishes as at the terminal date, the Board, in accordance with its usual practice, would exercise its discretion to order a representation vote to resolve the question of the applicant's certifica­tion. This is the course of action urged upon us by both the respondent employer and the employee objectors. They argue that, in the circumstances of this case, the formalities required by the Act and the Board (writing, signatures, consideration, witnesses) are still insufficient to indicate the employees' real intentions - even though in a commercial context they might be quite sufficient to create binding and enforceable contractual obligations.

49. 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 the virtues of trade union representation (see Rule 73(2)), 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, and to protect employees from possible employer reprisals the anonymity of the union supporters is preserved. That is the way it has been 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 1(1)(l)). 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 - as, for example, where the one dollar payment is loaned to a potential union supporter, or where the card is not properly witnessed, or where the card is valid on its face but has been obtained through misrepresentation or intimi­dation, or where there is a problem respecting one or a few membership documents but not the others, etc. Representation votes are a residual mechanism resorted to where the union cannot demonstrate "clear majority" (i.e., more than fifty-five per cent) 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 purported change of heart by employees who have previously signed union membership cards.

50. On the other hand, neither the Legislature nor the Board has taken a myopic view of the real­ities of the situation. Employees can and do change their minds. While in some jurisdictions the statute precludes or inhibits such expressions so that certification is based solely on membership cards, and in others they 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.

51. 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. There is no statutory definition equivalent to section l(1)(l), nor is there any requirement for a monetary payment, in the nature of consideration confirming the act of signing. There is no stat­utory declaration similar to Form 9 attesting to the regularity and sufficiency of the membership evidence. There is usually no confirmatory signature of a subscribing witness. 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: the petition is voluntary (as evidenced by testimony adduced in accor­dance with Rule 73 of the Rules of Practice), and 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 the union's certification.

In addition to "petition" or "change of heart" documents referred to in Elks, there were some­times other documents confirming the employee's original desire to join and be represented by the union. The volume and variety of documents filed in a particular case, depended upon the amount of ambivalence in the workplace.

46. In summary, then, "membership" (or an application for membership) was a critical ele­ment of the statutory scheme and necessary for certification; however, if a later document cast doubt on the continued wish to be represented, or confirmed such desire, the Board might take that into account in deciding whether or not to order a vote. (See generally: Hemlo Gold Mines Inc., [1993] OLRB Rep. Mar. 158 which reviews the meaning of the terminal date; the effect of a "petition"/change of heart document; and the effect of Bill 40, which eliminated the terminal date and now requires that union and employee documents be in by the application date). "Member­ship documents" and "expression of support" documents of various kinds were all part of the stat­utory scheme prior to Bill 40. But only the former could support certification standing alone.

47. And that brings us to the current provisions of the Act, and some of the changes made by Bill 40.

V

48. Since the 1970 reversal of Metropolitan Life, the statute has contained the above-men­tioned definition of "membership". That definition was set out in section 1 of the Act, and was to be applied whenever the word "member" was encountered later on in the statute. Thus, when the Board had to determine whether employees were "members" of the union in a "regular" [now sec­tion 8] certification application, it was sufficient if they had applied for membership and paid at least one dollar towards any later union dues. One did not necessarily have to be a "member" or become a "member" in accordance with the union Constitution, nor did one have to pay the actual dues prescribed in that constitution. A token payment was enough. And if a "member" later indi­cated that s/he did not support the union's certification after all, the Board might decide to seek the confirmatory evidence of a representation vote - the issue canvassed in Elks.

49. At the very least Bill 40 changed the statutory format. It eliminated the statutory defini­tion of "member" and removed the requirement for a one dollar payment. It also made the appli­cation date the time for determining who was a member of the union~ and who had expressed sup­port or opposition to its certification.

50. Instead of having a statutory definition of the word "member" at the beginning of the Act, which is then "plugged in" whenever the word "member" was encountered later on, the legis­lative draftsperson has eliminated the definition altogether, and tried to insert the expanded mean­ing to the word "membership" in the various places where the word actually appears. Presumably this was done for the purpose of clarity, and in order to make the statute easier to read, without flipping back and forth between definitions at the beginning of the statute and the substantive pro­visions later on. However, the union says that there was another purpose for these changes.

51. The union argues that the elimination of the definition did not reintroduce the common law context of the word "membership" endorsed by Metropolitan Life. Rather, the elimination of the definition, together with the wording of section 8(4)1 mean that employees no longer have to be "members" at all. It is enough if they have indicated that they want the union to represent them.

52. The union submits that the Bill 40 amendments were not about form, or timing, or housekeeping. There was an intention to completely jettison the established concept of "member­ship" and substitute in its place any "desire to be represented" - which, after all, is what certifica­tion is about.

53. If one were seeking simplicity and symmetry, the union's proposed interpretation has considerable attraction. A simple petition signifying support could count as "membership", and one would not have to worry about the union constitution, eligibility requirements, union dues, and so on. One could ignore club law considerations altogether. One would not need the saving sections added after Metropolitan Life. The focus would be solely on the "desire to be repre­sented", and the certification and termination provisions of the Act would then work in much the same way.

54. Read in this fashion, section 8(4)1 would signal a complete departure from the past. The link to common law notions of "membership" would be severed completely, so that "the ques­tion" for automatic certification would be the same as "the question" posed in a representation vote: "do you wish to be represented by this union in a collective bargaining relationship with your employer". And since in a certification context, the "membership" concepts are only a proxy for "support" in any event, it is very tempting to disregard the traditional notions of "membership" and concentrate on what certification is really about. Certification might be a lot easier for employ­ees to obtain if all they had to do was sign a petition saying that they wanted a particular union to represent them.

55. The problem is: we do not think that the legislative intention was as broad as the union claims - however attractive the union's argument may be on logical, administrative or even labour relations grounds.

VI

56. We note first that the terms "membership", and "application for membership", and a "desire to be represented" are identified in the statutory language as distinct concepts; while only the former two appear in sections 8(2), 8(3), and 9.1(2). If a "desire to be represented" were the same as "membership", one wonders why the Legislature has maintained the distinction in the lan­guage that was used. Similarly, if the pre-requisites for certification could be found in a "desire to be represented" as well as "membership" or an "application for membership", one wonders why the Legislature did not simply say so in sections 8(2), 8(3) and 9.1(2).

57. If it were intended that there should be a new definition for membership, one wonders why it is not in the definition section of the Act, or at least used consistently whenever "member­ship words" are found throughout the statute. Yet that is not the case in sections 8(2), 8(3) or 9.1 -or in section 113 where "records relating to membership" and records that may disclose a "desire to be represented" are also distinguished, and have been so differentiated for many years. Section 8(4)1 is bracketed by sections of the Act which clearly state that a union can only be certified on the basis of "membership" or an "application for membership".

58. On its face, section 8(4) is a timing provision. It regulates when certain kinds of docu­mentary evidence can be filed, and contains a rather detailed listing of the sorts of things which must be filed by the prescribed time (the application date). Given the purpose of section 8(4) we would be reluctant to infer a substantive definitional change which inferentially feeds new meaning into sections 8(2), 8(3) and 9.1(2) - particularly when that result could have been accomplished more easily and more directly in the manner described above. Bill 40 went through various stages and was hotly debated over many months. But we are unaware of any discussion of the proposition that the union now urges upon us.

59. Nor does the union's proposed interpretation square very well with sections 105(4) or 105(4.1), both of which create exceptions to the contractual notion of union membership, that was endorsed in the Supreme Court of Canada in Metropolitan Life and which was heretofore consid­ered to be an intrinsic part of the statutory scheme. Why worry about eligibility requirements or the union's practice of ignoring them, if all that is required for "membership" is a desire to be represented? Why go to the trouble of negating any requirement to make a monetary payment to the union? If anything, the elimination of the statutory definition, means a return to the declared meaning of the word "member" established by the Court in Metropolitan Life: which is to say its club law/contractual meaning. One actually must join the union to be a "member". Finally, it is pretty clear that the word "member" has its traditional meaning when used elsewhere in the stat­ute - in sections 47, 48 or 69, for example.

60. Counsel for the union asks, parenthetically: what kind of relevant document could the Legislature have possibly had in mind in 8(4)1, if it wasn't intended to be treated as "member­ship"? What purpose could such document serve if not for the finding of membership in sections 8(2), 8(3) and 9.1(2)? In counsel's submission, the final phrase in section 8(4)1 must have some meaning. The Board should not adopt a construction that renders those words redundant.

61. The employer replies that the Board need not hypothesize the possible kinds of evi­dence to which the disputed phrase ("otherwise expressed a desire to be represented") might apply. The focus of section 8(4) is on filing deadlines, and there is an obvious effort to provide a comprehensive description for all of the kinds of documents that are caught by the deadline. It is perfectly plausible that the Legislature would attempt to cover off all of the documentary possibili­ties, without intending to change what the concept of membership entails.

62. However, employer counsel suggested at least one scenario where a "desire to be repre­sented" as distinct from "membership" - might be significant if filed in a timely way. This is the scenario that he suggested.

63. Suppose a union's support consists of conventional membership documents signed many months before the certification application was filed. Where the evidence is stale in this way, the Board would not typically certify without recourse to a representation vote. But, if that stale mem­bership card is accompanied by a recent expression of desire to be represented, the Board might well proceed to certify without a vote. Not only would the "membership" requirement be satisfied, but there would be no reason to wonder whether individuals who are "members" within the mean­ing of the Act, still wish to have the union represent them.

64. We agree with these submissions. We do not think that section 8(4)1, which regulates the date by which documents must be filed, was ever intended to change the meaning of the "mem­bership words" in sections 8(2), 8(3) and 9.1(2). To put the matter another way: Bill 40 deleted the monetary payment formally necessary for "membership", switched the "counting date" from the terminal date to the application date, and changed the statutory format for ease of reading. But Bill 40 did not alter the requirement that for automatic certification or a representation vote, the employees had to be or apply to become a union member, as that term was defined in Metropolitan Life, modified as necessary by sections 105(4) and 105(4.1) of the Act.

65. The documents here do not on their face constitute either membership or an application for membership; and in our view, an expression of a desire to be represented is insufficient.

VII

66. Can the union rely on Rule 1(j) which purports to define "member" in terms identical to section 8(4)1? We do not think so.

67. In the first place, Rules regulating practice and procedure cannot contradict or elimi­nate a substantive statutory requirement (see Krossel and Director of Vocational Rehabilitation Services Branch, 1972 CanLII 423 (ON CA), [1972] 1 O.R. 895; Belanger v. The King (1916) 1920 CanLII 362 (BC CA), 54 D.L.R. 265; MacCharles v. Jones, 1939 CanLII 230 (MB CA), [1939] 1 W.W.R. 133. The Board cannot add to or restrict the statute in this way. That was the defect identified by the Supreme Court of Canada in Metropolitan Life. Nor do we think that the problem here is merely one of "form" and thus capable of correction pursuant to section 105(2)(j). Membership (in the sense of an organic connection to the union organization) and a "de­sire for representation" (the function or service which the union provides to members and non-members) are quite different. The latter does not "count" as "membership".

68. Is this a retrogressive reading of the statute, sophistry, or unnecessary nit picking? In our view it is not. It is merely confirmation that the words "membership" and "application for membership" mean what they say, and what they had been understood to mean in this statute for almost 50 years. In our view, the drafter of the Rules did no more than attempt to mirror the lan­guage of section 8(4)1. There was no intention to alter the settled meaning of the word "member­ship" or prescribe by Rule the form such membership documents should take.

VIII

69. Should the Board admit oral evidence of the kind mentioned by the union to establish (it is said) that the employees were really joining the union, or so intended? Again, we do not think so.

70. In the first place, it would make nonsense of a document based process, where the evi­dence must be in writing, if the Board were to permit oral evidence to establish what the writing does not. There is no question here of "identity", nor any challenge to the veracity or integrity of the employees, or the information contained in the document. There is nothing to "substantiate". The information is true as far as it goes. The problem is that it does not establish "membership", or constitute an "application for membership". And that is what the statute requires.

71. The union seeks to adduce oral evidence to add to the document, to change its charac­ter, or to show that it is something that it clearly is not. We do not think that the union is entitled to supplement the documentary evidence in this way. Moreover, it would totally undermine sec­tion 113 if the Board permitted a parade of employees to testify that they not only wanted the union to represent them, but were intending to join the union as well. Confidentiality would be completely abrogated.

72. This is not a new problem. As we have already noted, under the former legal regime, it was necessary to show that an employee had signed an application card, and had paid at least one dollar in respect of membership dues. An application for membership without a receipt was insuffi­cient, and so was a receipt without an application for membership. In that framework, the Board consistently held that the document must establish both elements on its face, and the Board consis­tently refused to receive oral evidence on either of them. Thus, in P.R. C Chemical Corporation of Canada Ltd., [1980] OLRB Rep. May 749, the Board commented:

73. The foregoing cases reflect a consistent thread in the Board's treatment of documentary evi­dence of union membership. The Board has found that oral evidence is admissible if it goes to supportive information such as the date when the memberships evidence was obtained or the counter-signature of a collector. By virtue of section 48 o the Board's Rules and the policy rea­sons that underlie the rule, the Board has not permitted viva voce evidence to establish the two substantive conditions of membership as defined by the Act, namely, the application for mem­bership and the payment of one dollar initiation fee.

74. Counsel for the union submits that the foregoing cases and the Board's past practice must be reconsidered in the light of the decision of the Supreme Court of Ontario in Fuller's Restaurant Limited, 80 CLLC 14021, quashing the decision of the Board granting a certificate, [1979] OLRB Rep. May 395. In that case a group of employees filed a petition which they submitted was in opposition to the application for certification. The Board found that the wording of the petition was ambiguous and that it did not on its face constitute a statement in opposition to the union. Relying upon Rule 48, the Board declined to admit oral evidence which in the employ­ees submission would have clarified the true meaning of the petition and the wishes of the employees who signed it. In so doing the Board departed from the less restrictive approach which it has taken in the past towards the wording of petitions drafted by rank and file employ­ees, (See Genwood Industries Limited, [1976] OLRB Rep. Aug. 417; Armbro Materials and Construction Limited, [1976] OLRB Rep. Nov. 743.)

75. The court found that the Board's decision too narrowly construed the requirements of sec­tion 48 of the Rules of Procedure. Reid, J., for the Court, concluded that the term "substanti­ate" in subsection 2 of section 48 must at least be broad enough to allow oral evidence to explain the meaning of a petition signed by employees, particularly where a letter accompanying the petition indicated that the employees opposed the union. According to the Court to conclude otherwise was improper, especially where the employees had been given no specific notice of the provisions of section 48 of the Rules of Procedure.

76. Counsel for the union submits that this case is analogous. He argues that what appears on the face of the union's cards is merely a technical defect, an ambiguity to be resolved by oral evi­dence.

77. We cannot agree. Firstly, the facts and considerations underlying the decision of the Court in the Fuller's Restaurant case are to be distinguished from the case at hand. In that case the sub­stantive requirement of a statement of opposition to a union was already before the Board in written form, as required by section 48(1) of the Rules. The employees were entitled to call oral evidence to clarify written evidence that was already before the Board. In the instant case, the payment of at least one dollar is a substantive requirement going to proof of membership. Evi­dence that that amount has been paid is evidence of membership within the meaning of section 1(1)(j) of the Act. By the terms of section 48(1) of the Rules of Procedure that evidence can only be admitted if it is in writing and is received on or prior to the terminal date. For the rea­sons elaborated above, that rule is critical if the Board is to maintain the secrecy of employees' wishes and insure the integrity of confidential documents that are the key to certification.

78. There is a further distinction to be drawn between this case and Fuller's. The Board's adher­ence to the requirements of section 48 of the Regulations in this case raises no element of unfairness or surprise to the union. The substantive requirements of membership and the need for those requirements to be evidenced in writing before the terminal date is long standing and is well known to unions through the publication of the Board's decisions. Moreover, the appli­cant, itself a union well experienced before this Board, received from the Registrar a notice bringing to the applicant's attention the full text of subsections (1) and (2) of section 48 of the Board's Rules of Procedure. Further, the union's representative signed the Form 8 Declaration Concerning Membership Documents with its explicit reference to the payment of initiation fees shown on the documentary evidence filed. In all of these circumstances the union can scarcely be heard to say that it was surprised or unaware that it must satisfy the substantive elements of union membership in writing before the terminal date. The union knew, or should have known, what is required. This is, therefore, not a case where the Board should either extend the termi­nal date or, what would amount to the same thing, hear oral evidence either at the hearing or through one of the Board's field officers respecting the payment of the initiation fee by the three employees concerned. The Board is satisfied that there is nothing in that conclusion inconsistent with the decision of the Court in Fuller's Restaurant Limited.

79. The Board must always be mindful of the need for expediency, for secrecy and for integrity in the admission of membership evidence. Its rules may at times seem onerous, but they must be preserved if in the end litigation is to be minimized so that the process of certification can go for­ward with certainty and efficiency, to the ultimate benefit of all applicants for certification. For all of the foregoing reasons, therefore, the Board declines to hear oral evidence going to the payment of the initiation fee in respect of these membership application cards. Since the cards do no constitute satisfactory membership evidence within the meaning of the Act and Regula­tions, they must be discounted.

This approach has been approved in 599207 Ontario Inc., [1990] OLRB Rep. Nov. 1103; Pebra Peterborough, [1988] OLRB Rep. Jan. 76; Maple Leaf Mills, [1984] OLRB Rep. Oct. 1474 and Colautti Construction, 1986 CLLC 12379 (Divisional Court); moreover the Board reached a similar conclusion in cases where there was a monetary payment to the union (from which one might have inferred a commitment of some kind - for why else would one give money to the union) but there was no documentary evidence establishing membership or an application for membership. (See: Mathews Construction 55 CLLC 1545; Ferritronics Limited, [1969] OLRB Rep. Mar. 1286; Culp Bros. Ltd., [1966] OLRB Rep. Feb. 823; Canadian Underwriters Association, [1974] OLRB Rep. Feb. 111; Schable Electronics, [1970] OLRB Rep. Dec. 952; and compare: Waylock Ltd., [1991] OLRB Rep. Dec. 1430).

73. In Ontario, the certification scheme has always been document based. It is a system that promotes both confidentiality and expedition. Unlike the system in the United States, representa­tion votes are a residual process in Canada. In Ontario, certification is largely based on documents, and the documentary requirements are relatively simple and quite well understood. And of course, it is important for the union to "get it right" because the membership documents are not disclosed to the employer for scrutiny or cross-examination.

74. In that context, we do not think that it is "technical" to require a trade union to adhere to the simple statutory requirements, nor unjust to limit the exposure of employees to the very scrutiny that the system is structured to avoid (compare the decision of the Courts in Globe Printing, 1953 CanLII 10 (SCC), [1952] 2 D.L.R. 302, [1953] 3 D.L.R. 561 with 113 of the Act). The analysis of Saunders J. in Colautti Construction is worth repeating here:

A review of the decisions of the Board over the years indicates that the Board considers it important that the certification process be completed as quickly as possible consistent, in each case, with allowing the employees and also the employers to express their wishes. The Board has developed rules and policies designed to make the process expedient and certain. While at first blush some of its policies may appear to be draconian, their purpose is to determine the issues quickly and to avoid protracted litigation on membership issues. More importantly, mem­bership is a private matter and for obvious reasons the membership status of each individual employee is kept confidential. The need for confidentiality is recognized in s. 111 [now section 113] of the Act and the process for certification as set out in the Act and regulations are consis­tent with that need. As a result, the normal procedures of tribunals must give way to a certain extent. Relevant evidence may be inadmissible and cross-examination and production restricted or prohibited. Natural justice must be approached with these considerations in mind.

IX

75. The union submits that it has a "reliance interest", because it structured its affairs in accordance with its reading of the Act and Rules, only to find out later that it may have been an error. The union points out that several certificates have already been issued based upon employee documents in the same form as those now before us. The union argues that the bargaining rights established by these earlier certificates should not be prejudiced because the Board now concludes that the evidence upon which they were based is deficient in some way. The union submits that if the Board is disposed to "change the standard for membership evidence" it should only do so pro­spectively.

76. These other cases are not before us, so strictly speaking, what we decide here can have no immediate effect upon them. Any reconsideration of these decisions is best left to the parties, the panels, and the particular facts of these earlier proceedings.

77. One can understand the union's concern. If this problem had been identified in the very first case involving cards of the kind described in paragraph 11, it could probably have been cor­rected in a timely way. The majority of employees support the union, so it probably would not have been difficult to "sign them up" using documents of the kind normally used by other trade unions (or used by IATSE itself in other cases - see IATSE Local 582 and Corporation of the City of Brantford, [1987] OLRB Rep. Sept. 1125, where "standard" membership cards were used, and the problem was the eligibility requirements in the International Constitution). But it was not until the instant cases that the union was alerted to the problem with the particular form of card that it has been using here.

78. There are several difficulties with this portrayal of the situation. First, it has not been established that the union carefully considered the Act and Rules, then made a good faith effort to comply with its requirements. Rather, it appears that the union found it convenient to use Ameri­can cards, and without any careful consideration of whether they meet the Ontario requirements. In the same way, a union representative has signed an A-4 declaration affirming that employees in question were "members", even though the documents on their face do not make them so.

79. More fundamentally though, the union's characterization of the situation, ignores the fact that the employer has a reliance interest too.

80. Where the union's membership evidence is kept secret, and the documents are not dis­closed to the employer at all, the employer expects that they will be scrutinized to ensure that they comply with statutory norms; and if they do not, the employer can reasonable expect that the evi­dence will be either disregarded, or potential defects will be disclosed. The employer concedes that the issue could have been crystallized and argued in the first certification application. But the employer points out that it was not aware of the form of card until the present situation. It too has been prejudiced, because it did not have an earlier opportunity to make its present arguments. It has recognized the union and engaged in bargaining on the reasonable assumption that the undis­closed evidence nevertheless met the statutory requirements. It assumed that the earlier certifica­tion applications were properly supported.

81. We agree with both parties on this point. The situation is indeed unfortunate. However, we do not think that we can ignore the consequences of the legal interpretation to which we are driven.

82. There may be situations where prospective rulings are appropriate and jurisdictionally possible. But we do not think that this is one of them.

X

83. About two weeks after the completion of the hearing, counsel for the employer wrote to the Board, drawing our attention to the text of the union Constitution, which had been pro­duced to him in connection with another case. Counsel submitted that the terms of the Constitu­tion make it clear that the authorization cards filed in this case cannot be "membership" or an "ap­plication for membership" under the Constitution, and thus cannot meet the standard enunciated in Metropolitan Life. In his submission the Constitution makes it plain that employees who sign authorization cards are not ipso facto "members" of the union.

84. However, we do not have to reach any conclusion with respect to this supplementary submission. It was open to the employer to obtain the union Constitution (if necessary by sum­mons) prior to the hearing in this matter, and if the employer had done so, it would have been able to make such arguments as it considered appropriate based upon the terms of that Constitution. In our view, it is too late now to introduce a document or make an argument which could, with due diligence, have been raised at the hearing. We observe only that this belated representation illus­trates the thicket into which the Board and the parties can be drawn when a trade union does not follow the simple "application for membership" format prescribed in the Act.

XI

85. In view of the length of this decision, we think a short summary is in order.

86. The issue before us is whether cards expressing an employee desire to be represented by the union constitute either "membership" in the union or an "application for membership".

87. For the reasons outlined above, we find that these documents do not establish that the employees are either members or have applied to become members.

88. Accordingly, the evidence before us does not establish the facts necessary for certifica­tion pursuant to sections 8 and 9.1(2) of the Act; moreover, in our view, that defect cannot be ''corrected'' by oral evidence.

89. These applications for certification are therefore dismissed.