United Brotherhood of Carpenters and Joiners of America Local 1072 v. Jones Wood Industries Inc., 1995 CanLII 9956

[1995] OLRB Rep. March 290

2454-94-R; 2838-94-U United Brotherhood of Carpenters and Joiners of America Local 1072, Applicant v. Jones Wood Industries Inc., Responding Party v. Group of Employees, Objectors

BEFORE: S. Liang, Vice-Chair, and Board Members R. M. Sloan and K. Davies.

APPEARANCES: Marisa Pollock and Joe Almeida for the applicant; Bill Anderson and Reinhard Zank for the responding party; Daniel J. McKeown, Daniel Stoikoff Ghansham Maharaj and Kiem Lam Nghiem for the objectors.

DECISION OF S. LIANG, VICE-CHAIR, AND BOARD MEMBER K. DAVIES; March 29, 1995

1. This is an application for certification which has been joined for hearing with a com­plaint of unfair labour practices. The complaint of unfair labour practices and related request for relief under section 9.2 of the Labour Relations Act was withdrawn during final argument by the union.

2. In this application the Board has issued a previous decision, dated February 2,1995 [now reported at [1995] OLRB Rep. Feb. 134], explaining the circumstances under which certain issues came to light, and the reasons for certain rulings which it has made during this hearing. One of the Board's rulings was made in response to the union's motion to dismiss an allegation respect­ing an apparent irregularity in the membership evidence, as disclosing no prima facie case. The Board rejected the motion, finding that it would hear the evidence as to the circumstances underly­ing this apparent irregularity. The Board, however, (R. M. Sloan dissenting) on the basis of the facts and allegations before it, found no prima facie case warranting an inquiry into the Form A-4 declaration filed in this application. Two issues remain in this hearing. The first is whether the membership evidence filed in support of this application, which shows that the union enjoys the support of more than 55% of the employees in the bargaining unit, should be discounted because of the apparent irregularity on the cards. The irregularity on the cards (which was initially brought to the parties' attention by the Board during the course of hearing evidence) is that Jimmy Smith, the employee of Jones Wood responsible for the organizing drive, signed as a "Witness" on mem­bership cards without, in most cases, actually seeing the applicant for membership sign the card. The second issue is whether this same membership evidence should be discounted because of intimidation and coercion during the organizing drive by the union's main organizer.

3. Both the employer and the group of employees objecting to this application take the position that the application should be dismissed. In the alternative, they request that the Board order a representation vote to confirm the wishes of the employees.

4. Both the objecting employees and the union called a number of witnesses, with respect to both elements of this case. The employer called no evidence. The Board has assessed the evidence before it having regard to the usual testimonial factors, ultimately determining what is most reasonable and probable in all of the circumstances. On the issue of the irregularity in the cards, there is little factual dispute. On the issue of the intimidation and coercion allegations, there are some inconsistencies between the evidence of Mark Maharaj and Jimmy Smith, and between the evidence of Kiem Lam Nghiem and Jimmy Smith. Where we have had to resolve inconsistencies for the purposes of our findings, we have done so and indicated the reasons for our findings.

Facts - The Irregularity in the Cards

5. The organizing drive began near the end of August, 1994. A business agent for the applicant, Joe Almeida, approached Mr. Smith on or about August 24 outside the workplace. Mr. Smith decided to join the union, and agreed to assist in organizing. On August 25, he met Mr. Almeida again, along with three other employees. It was decided that Mr. Smith would take on the responsibility for the organizing drive, assisted by the others. It was decided that any cards col­lected would be given back to Mr. Smith. Mr. Smith and one of these employees took membership cards with them to work on August 26 and started distributing them. Over the course of the next few weeks, Mr. Smith approached everyone in the workplace, most of them in the first few days. He asked employees if they were interested in joining the union. If they indicated interest, he asked if they had received a membership card, and if they had not, he gave them one.

6. Mr. Smith received all of the cards back, most within the first few days. Two employees signed their cards with Mr. Smith present. The rest were signed without Mr. Smith being present. Most employees gave their cards directly to Mr. Smith, and others gave them to other employees to pass on to him. All of the cards which Mr. Smith received during the course of a day were kept by him and taken home at the end of the day. He countersigned all the cards at home later in the same day that he received them, even the ones which he personally observed being completed dur­ing the day. On some cards, where employees failed to fill in the date portion, Mr. Smith com­pleted the date as well as countersigning the card. He used the date on which he received and countersigned the card. Mr. Smith was not under the impression and was never told, that he was required to watch employees sign the membership cards.

7. It was Mr. Smith's practice to thank every employee personally from whom he received a card. When he did not receive the card directly from the cardsigner, he sought that person out sometime on the same day. Mr. Smith thanked the employees for their support, on behalf of the union. He adopted this practice because he felt a personal responsibility for the organizing drive, and he felt he should personally let employees know that their support was appreciated. In doing this, he hoped to keep morale high. Mr. Smith states that although he did not seek out the main role in the organizing drive, having taken it on he saw it as a responsibility. His evidence on this was straightforward and credible. Mr. Smith is one of the most senior employees at this workplace, and it is evident that he is seen as somewhat of a leader. The evidence also indicates that he sees himself as having somewhat of a leadership role on behalf of employees in their dealings with Jones Wood. It is consistent with this that Mr. Smith saw it as important to have personal contact with each employee who agreed to join the union, both before and after he received their cards.

8. In his evidence, Mr. Smith agreed that he could not swear with 100% certainty that every card which he received bore the authentic signature of the employee indicated on it, but he stated that based on what he knew, he had no reason to doubt that it was so.

9. During cross-examination of Mr. Smith by counsel for the employer, the following exchange occurred:

Q. What does witness mean; doesn't it mean you are witnessing the signature?

A. Yes, o.k.

Q. You've done that before with other legal documents, witnessing someone's signature, or having someone witness yours?

A. Um, o.k.

Q. You know it means I've witnessed someone signing their name?

A. Yes, o.k.

During re-examination of Mr. Smith, the evidence included:

Q. Did Joe ever tell you you had to watch a person signing a card.

A. No, I don't think so.

0. Today when you were answering Mr. McKeown's questions you were asked who decided you would witness the cards. You said it was discussed between you and Joe. Based on those discussions, what did you understand you were doing when you signed your name as witness to those cards?

A. Confirming that the signatures on the cards were their's and they wanted the union.

10. Mr. Smith's evidence, as we have indicated, was given in a candid and straightforward manner, never hesitating to answer even where it might have been against his interests. On all of his evidence, including the exchanges set out above, we find that Mr. Smith at no point meant to represent with his signature on the cards that he had actually watched the applicant sign the cards. We are satisfied that if there was a misrepresentation on the cards, it was not intentional. Rather then intending to represent that he had observed the signatures, his intention was to indicate that he could "vouch" for them.

The Facts - Intimidation and Coercion

11. We now turn to the evidence concerning Mr. Smith's dealings with Mr. Lam. On the basis of all of the evidence, we find that Mr. Lam was in a very anxious state when he decided to sign his membership card. The decision to join the union was a very difficult one for Mr. Lam. Mr. Lam was quite afraid of the effect that unionization might have on the viability of the company, because he was under the impression that sometimes when a company unionizes, people lose their jobs. As a result, he resisted getting involved, and tried to avoid the issue with Mr. Smith, even to the point of taking a week away from work in the hope that by the time he returned, the union issue would have been finished.

12. There were some discussions between Mr. Lam and Mr. Smith about what would hap­pen in the event that the company was unionized, and he did not support it. Mr. Smith told Mr. Lam that if the majority wanted a union, there would be a union. Mr. Lam wanted to know whether he had a choice, and whether he would still be able to work there, to which Mr. Smith stated that he thought that if the union came in, Mr. Lam would have to pay dues. Mr. Lam wanted to know what would happen if he did not want to pay dues, and whether he could be fired. Mr. Smith stated that he did not think Mr. Lam would be fired, he was not in any position to do such a thing, and also told Mr. Lam that if he wanted to know more, he could phone the union rep­resentative directly or come to a meeting.

13. There was evidence that Mr. Lam found some damage to his car one day, and told Mr. Smith that he thought "the union" was responsible, which Mr. Smith denied. There is no evidence that there was any basis for Mr. Lam's belief. On that same night, Mr. Lam decided to sign the membership card and gave the card to another employee the next day to give to Mr. Smith. He also asked the employee to tell Mr. Smith "Now shut up" when he handed the card in. When Mr. Smith was given this message, he was concerned and spoke to Mr. Lam. He told him that if he had doubts about his choice, he would give his card back. Mr. Lam refused the offer and Mr. Smith thanked him for his support.

14. As we have indicated, the decision to join the union was a very difficult one for Mr. Lam, who apparently felt pulled in opposite directions. Although he testified that he was told by Mr. Smith that if he did not sign the card and the union came in, he was "finished" or that he would be fired, we find on all of the evidence that Mr. Lam's anxieties about the consequences of refusing to join the union were based on his misapprehension of the nature of his conversations with Mr. Smith about union security. Mr. Lam unintentionally magnified in his own mind the meaning of what Mr. Smith conveyed. We also find that, although Mr. Smith did not totally clarify the issue, since he was himself unsure about some of the details, there was nothing in what Mr. Smith said that would have led a reasonable employee to believe that he would lose his job if he did not sign a membership card during the organizing drive. This is particularly so where the opportunity to seek further information and clarification was offered.

15. Mark Maharaj also gave evidence respecting alleged intimidation by Jimmy Smith dur­ing the course of the organizing campaign. Also introduced into evidence were a number of hand­written notes either created by Mr. Maharaj or by another employee, Dan Stoikoff, on Mr. Maha­raj's instructions. All of these notes are said to have been written at the time that the events recounted within them occurred. Ultimately, the Board has determined that it cannot accept much of this oral or written evidence. Aspects of the testimony relating to the creation of the documents and to the events during the time of the organizing drive were at best implausible and at worst patently contrived. There were numerous inconsistencies and variations in the evidence from one moment to another. We do not rely on the notes for the truth of their contents, and we accept cer­tain parts of Mr. Maharaj's oral evidence but not others. Certainly, where the testimony of Mr. Maharaj and that of Mr. Smith conflict, we prefer that of Mr. Smith.

16. We find that Mr. Smith first approached Mr. Maharaj about signing a membership card on or about August 26. Mr. Maharaj did not express opposition to the idea of joining the union and Mr. Smith understood that he would join. It became clear, however, over the course of the next week or so that Mr. Maharaj would not join. On or about August 31, there was a conversa­tion between Mr. Smith and Mr. Maharaj in which Mr. Smith said something similar to: "you're a fool; I'm giving you one more chance to sign a card". Mr. Maharaj states that because of this state­ment, he began to wonder whether Mr. Smith had the power to fire him if he did not join the union. We find that if Mr. Maharaj took this meaning from this conversation, it was not a reason­able interpretation.

17. Mr. Maharaj became instrumental in attempting to organize opposition to the union. On one occasion, he tried to conduct a vote using a ballot box in the lunchroom. On another occa­sion, he approached various employees to sign a petition against the union. Because of these activi­ties, he and Mr. Smith had some confrontations, and exchanged heated words. Each was equally vocal and assertive to the other. In at least one exchange, Mr. Smith told Mr. Maharaj that what he was doing was illegal and he could be sued for it. In another exchange, Mr. Maharaj used a pro­fanity, and Mr. Smith responded by saying something to the effect that if the union came in, he would find it hard to help Mr. Maharaj, and he might have to kneel down and grovel before he

came to his assistance. In another exchange, Mr. Maharaj stated that he had promised his father that he would never pay union dues. Mr. Smith stated that if the union came in and he did not want to pay dues, he guessed he would have to leave.

18. At several points in his evidence Mr. Maharaj alleges that Mr. Smith stated to him that he would be "kicked out" or "out of a job." He testified that at least once of these threats was related to his refusal to join the union (Mr. Maharaj never signed a card). In cross-examination, Mr. Smith denied having made such threats, although when asked if it was "possible", he stated, "it is possible, I guess, if things got hot". On all of the evidence, we find it unlikely that if Mr. Smith made threatening comments to Mr. Maharaj, they were linked to his refusal to sign a union card. It is evident that Mr. Maharaj was known as an ardent opponent of the union and this led to friction between himself and Mr. Smith. The two men had some heated exchanges over the issue, which continued to occur well past the filing of the application for certification. There was evi­dence that Mr. Maharaj complained to management about being harassed by union supporters, but it does not appear that he ever complained that he was being threatened with job loss if he did not join the union during the organizing drive. Mr. Maharaj acknowledges having conversations with Mr. Smith about union dues, in which Mr. Smith told him that if the union came in, whether or not he had signed a membership card, he would have to pay union dues. Mr. Maharaj vowed he would never pay dues. In light of Mr. Maharaj's strong convictions against unionization, it may have been that he felt it would be impossible for him to remain at the company if the union were certified. Finally, even while maintaining that Mr. Smith threatened him in this manner, he states that he did not believe Mr. Smith.

19. Taking into account all of the above, we are satisfied that Mr. Smith did not threaten Mr. Maharaj with the loss of his job if he did not sign a union card. We find that Mr. Smith made some intemperate, ill-considered and high-handed remarks to Mr. Maharaj in the context of heated discussions over unionization, but they were not made in an effort to coerce him into sign­ing a union card and in the context in which they were made they carried and were seen by Mr. Maharaj as carrying little weight.

20. The Board does not find it necessary to set out the arguments of the parties, although it is indebted to counsel for their thorough and thoughtful submissions. Although the Board was pro­vided with a number of its decisions dealing with allegations of intimidation and coercion in an organizing drive, ultimately, our determinations on this issue in this case were based primarily on our factual findings. On the issue of the effect of the irregularity in the cards, the Board was pro­vided with the following decisions: Crock & Block Restaurant and Tavern, [1980] OLRB Rep. Apr. 424; Emanuel Products Limited, [1977] OLRB Rep. Feb. 37; Grand & Toy Limited, [1986] OLRB Rep. Sept. 1223; Can-Eng Metal Treating Ltd., [1988] OLRB Rep. May 444; Transcor Inc., [1993] OLRB Rep. Nov. 1233; Flo-Con Canada Inc., [1989] OLRB Rep. July 752; Maple Leaf Mills Limited, [1984] OLRB Rep. Oct. 1474; Radio Shack, [1978] OLRB Rep. Nov. 1043; Pietrangelo Masonry, [1981] OLRB Rep. Feb. 218; Beatty-Hall Construction Co. Limited, [1983] OLRB Rep. Jan. 19; Seeburn Division of Ventra Group Inc., [1994] OLRB Rep. Nov. 1585; and Edmonton Separate School Board, [1988] Alta. L.R.B.R. 33.

Decision - The Irregularity in the Cards

21. In Can-Eng Metal Treating Ltd., [1988] OLRB Rep. May 444, the Board discussed the nature of certification proceedings:

22. The object in certification proceedings is to determine whether a majority of the employees in the bargaining unit found by the Board to be appropriate for collective bargaining wish to be represented by the applicant trade union in their employment dealings with their employer. The Labour Relations Act is structured so that, except where a pre-hearing vote is requested, the certification of trade unions in this Province is based primarily upon an assessment of the trade union's membership support as evidenced by membership records filed in support of the appli­cation. The Board does not inquire into opinions of the virtues of trade union representation except as evidenced by the applicant's documentary evidence and any timely petitions filed in opposition to the application. In Ontario, as in most Canadian jurisdictions, the representation vote exists as a residual mechanism for ascertaining the wishes of the bargaining unit employees in cases where either the applicant trade union does not have the support of more than fifty-five percent of the bargaining unit employees, which is necessary for outright certification under sec­tion 7(2) of the Act (but does have the support of not less than forty-five percent of them), or where the circumstances are such that the Board sees fit to direct that a vote be taken notwith­standing that there is documentary evidence showing membership support in excess of fifty-five percent. The Board's discretion in that respect must be exercised in a manner which is consistent with the legislated primacy of membership evidence as the means by which employee wishes are to be ascertained.

23. Accordingly, the Board relies heavily upon the membership evidence filed by an applicant trade union. Because of the consequences of the reliance that the Board places on what is a form of hearsay evidence which, pursuant to section 111(1) of the Act, is not usually disclosed to the employer or employees opposing the application and is not usually subject to cross-examina­tion, the Board requires a high standard of integrity and precision in the nature and quality of membership evidence. In order to protect the integrity of a certification process which places heavy reliance upon what is essentially hearsay evidence of support for an application for certifi­cation, the Board requires trade unions to be scrupulous in the manner in which they conduct their organizing campaigns and obtain membership evidence. Accordingly, the Board must con­sider any substantial allegations which, if proved, might cast doubt on the reliability of member­ship evidence. Evidence of improper conduct by a trade union or its supporters may raise suffi­cient doubt as to whether that documentary membership evidence filed in support of an application for certification is a reliable indicator of employee support for the applicant to cause the Board to resort to the confirmatory evidence of a representation vote notwithstanding that the membership evidence shows, on its face, the union to have the support of more than fifty-five percent of the employees (see Alderbrook Industries Limited, [1981] OLRB Rep. Oct. 1331; St. Michael Shops of Canada Limited, [1979] OLRB Rep. April 346; The Kendall Com­pany (Canada) Limited, [1975] OLRB Rep. Aug. 611. .

24. The latter comments above apply to situations where the Board is faced with allegations that the union has intimidated or otherwise unlawfully compelled employees into signing member­ship cards, as well as to situations where there may be some irregularity in the cards themselves (such as an allegation that a person who is purported to have signed a card, has not signed). As is clear from the above passage, in the ordinary course, the Board determines whether a trade union has sufficient support for certification based primarily upon a review of membership cards submit­ted by the union in support of its application. Allegations of misconduct either in an organizing drive or in the collection of membership evidence may cast doubt on the Board's ability to rely on these membership cards in its determination of the primary question, whether the employees in the bargaining unit wish to be represented by the applicant trade union.

25. The Board has sometimes stated that it is prudent for unions to submit witnessed mem­bership cards to the Board, but it is neither a statutory condition nor a requirement of the Board's Rules that membership evidence be witnessed. Section 8(5) of the Act, which is a codification of section 73(1) of the Board's old Rules of Procedure, simply states that evidence of membership in (or opposition to) a union must be "in writing and signed by each employee concerned". Much of the membership evidence received by the Board bears the signature of a witness. Some does not. Some membership evidence bears the signature of a "receiver" or a "collector". In addition, the membership evidence submitted by different unions can include information on employees' addresses, job classifications, seniority and a host of other details, none of which is necessary for the purposes of the Board's determinations under section 8.

26. Just as with any other kind of misstatement as to a non-essential piece of information contained on a membership card, the Board must determine whether the misstatement which we have found to be the case here is so serious that it puts in doubt the Board's ability to rely on the membership evidence for the purposes of its determinations under section 8. The essential ques­tion for the Board here is whether it can reasonably rely on the membership evidence submitted as proof of employees' wishes. As the Board has stated previously, in matters of this kind, where there is an irregularity in the membership evidence, the Board's concern is not with penalizing a union, but with representation: see Inco Limited, [1966] OLRB Rep. Jan. 698 quoted in Crock & Block Restaurant and Tavern, supra. Since it is neither practical nor desirable for the Board to interview each employee concerned to determine whether they signed the membership cards and wish to be members of the applicant, it is necessary for the Board to be satisfied that the member­ship evidence can be a reliable basis on which to make its determinations under section 8.

27. In deciding whether membership evidence is reliable even in the presence of an irregu­larity, the Board takes into account the nature of the irregularity, the extent of its occurrence, to what extent the card was submitted with knowledge of its irregularity, and whether the persons responsible for the irregularity were instrumental in the organizing drive such that it can be inferred that their actions cast doubt on the reliability of other cards.

28. Most of the cases which were placed before us relate to allegations of "non-pay" or "non-sign", or to circumstances where the Form A-4 was apparently incorrect, and there are vary­ing responses from the Board depending on the facts in each case. In some cases, the Board found that the circumstances warranted rejection of one or more of the cards submitted in support of the application. In other cases, irregularities with respect to one or more cards led to a representation vote where the Board had reason to doubt the reliability of all of the membership evidence. In yet other cases, the Board found the Form A-4 unreliable as a result of the irregularities and dismissed the application. There are also cases where despite the rejection of one or more cards, the other cards and the Form A-4 were found to be reliable. It is clear that, depending on the circumstances, an irregularity with respect to one card may "taint" other cards or undermine the reliability of the Form A-4; however, not every irregularity, even a non-pay or non-sign, leads to the rejection of other cards or of the Form A-4: see Can-Eng Metal Treating Ltd., supra.

29. Where a "non-sign" (and, prior to the time when the Act was amended to remove the requirement of the payment of $1.00, a "non-pay") allegation is proven, the card in question must be rejected, since it no longer meets the statutory requirement for evidence of trade union support. Whether or not one or more instances of non-pay or non-sign casts doubt on the rest of the mem­bership evidence depends on the facts of the case: see Crock & Block Restaurant and Tavern and Can-Eng Metal Treating Ltd., supra, as examples of two different responses by the Board. Whether or not irregularities apart from non-pay and non-sign cases lead the Board to question or reject the membership evidence also depends on all of the circumstances. In Maple Leaf Mills Lim­ited, supra, for instance, the Board permitted the applicant to establish the identity of the collec­tors of the $5 membership fee through oral evidence, where the membership evidence contained no information identifying the collectors. In that case, the Form 9 [now Form A-4] required the declarant to attest that "the persons whose names appear on the receipts . . . are the persons who actually collected the moneys paid". The Board therefore also required the applicant to call evi­dence to establish how the declarant could attest to such a fact without the identities of the collec­tors being shown on the receipt portion of the membership evidence. Ultimately, the Board concluded that both the membership evidence and the Form 9 were reliable and gave them full weight. The Board stated, in the course of its reasons:

30. Counsel for the applicant acknowledged that Mr. Pretty had not treated the From [sic] 9 Declaration with proper respect, and that no excuse could be made for him in that regard. Hav­ing heard Mr. Pretty's evidence, we would add to his counsel's acknowledgement the observa­tion that Mr. Pretty adopted a cavalier attitude to documentation generally. We find it com­pletely unacceptable that a trade union official would sign documents in blank, and leave it to someone else to complete them. The issue with which we have been faced, however, was not whether Mr. Pretty's behaviour or approach was acceptable, but whether the applicant's mem­bership evidence was satisfactory. After hearing the evidence and the submissions of counsel, we determined that the evidence was satisfactory. .

31. The Board was referred to a decision of the Alberta Labour Relations Board, in Edmonton Separate School Board, supra. We find this case distinguishable from the one before us. Not only does it occur under a different statutory regime, but in that case, it was established that one of the purported cardsigners had not in fact signed. Yet a collector had signed the card as a witness, and did not testify to explain how it was this occurred. The Board had no choice but to have serious doubts as to all the cards collected by this person.

32. The Board was also referred to Emanuel Products Limited, supra, which we find to be distinguishable from the case before us. This case is similar to the present one in that no non-pay or non-sign was ultimately established on the evidence. The irregularities were that some persons who signed as a witness on the cards did not in fact witness the signing of the cards, and some per­sons who signed as recipients of the membership fee were not in fact the persons who received the payment of the fee. The Board, after hearing the evidence, determined that it could not rely on the membership cards submitted by three individuals and in any event, could not rely on the Form 8 [now A-4]. With respect to the three collectors, the Board found that "[h]aving regard to the total­ity of the evidence and particularly to the manner in which cards were gathered" it could not give any weight to the cards handled by them since "[t]heir actions and testimony demonstrate a funda­mental misunderstanding of the meaning of the documents they circulated and collected."

33. The Board also found that the Form 8 declarant knowingly submitted a false declara­tion. It found that at the time he completed the Form 8 declaration, he was aware of the defects in the membership evidence, only some of which were disclosed on the form.

34. The Board stated in the course of its decision:

35. It makes no difference that the Board's doubts about the probative weight of these cards were raised by irregularities not specifically relating to the failure of individual applicants to sign the cards or pay the initiation fee (Collingwood Shipyards, Division of Canadian Shipbuilding and Engineering Ltd., 67 CLLC 16,017). It does not lie in the mouth of the union to say, as it does, that the irregularities disclosed should not affect the merits of its application since witnessed sig­natures on applications and collector's signatures on receipts are not strictly required by the Board anyway, and so need not have been provided in the first place. Firstly, it would be more accurate to say that an applicant that does not provide witnessed application cards and receipts signed by the collector and countersigned by the applicant does so at its peril. . . . Secondly, it should be noted that Form 8 contains the following:

36. "(Where the documentary evidence consists in part of receipts or other acknowledgements of the payment on account of dues or initiation fees) On the basis of my personal knowledge and inquiries that I have made, I state that the persons whose names appear on the receipts or other acknowledge­ments of the payment on account of dues or initiation fees are the persons who actually collected the moneys paid on account of fues [sic] or initiation fees and that each member, on whose behalf a receipt or an acknowledgement of payment is submitted has personally paid in money the amount show thereon on his own behalf to the person whose name appears on his receipt or acknowledgement of payment as collector, EXCEPT IN THE FOLLOWING INSTANCES:"

37. The Board found the statement contained in paragraph 3 of that declaration to be false. The Board went on to state:

38. The primary issue in any certification proceeding is the ability of the Board to rely on the documentary evidence filed. When a union has chosen to provide the certainty of witnessed sig­natures and signed receipts to bolster the integrity of its evidence and has, whether through carelessness or design, misled the Board in that regard, there may be raised in the Board's mind doubts as to the entire credibility of the applicant's documentary evidence. Having regard to the strict standards of integrity required of such evidence, the Board may, in such circumstances and having regard to all of the evidence, reasonably refuse to attach any probative value whatsoever to any of the cards or to the Form 8 declaration filed in support of the application.

39. We do not conclude from the above case that any misstatements on a membership card will affect the merits of a certification application. Clearly, there are some misstatements which are so inconsequential that they raise no doubts as to the reliability of the cards. Other misstatements may give rise to more doubts and require a hearing. The Board's comments in Emanuel Products Limited merely confirm this panel's assessment at the beginning of this exercise: that the type of irregularity before us raised some doubt as to the reliability of the documentary evidence and for that reason it was necessary for the Board to hear evidence on the matter. However, at the end of the day, the Board must, as it did in Emanuel Products Limited determine whether in all the circum­stances and having regard to all of the evidence, it can reasonably rely on the membership evi­dence.

40. In Emanuel Products Limited, the Board had grave reservations about the manner in which the cards were handled by the three collectors in issue, and about the manner in which the Form 8 was completed. In the latter respect, it is important to note that Form A-4, reflecting the change in statutory requirements, does not contain the same paragraph 3 as in Form 8. The Board found that the Form 8 filed in the above case was false because it warranted that the persons whose names appeared on the receipts were the persons who actually collected the moneys paid, which was found to be untrue. The Board found that the Form 8 declarant knew of this prior to complet­ing the Form 8.

41. In the case before us, the Board initially scheduled a hearing to hear the evidence and representations of the parties relating to allegations that the union's main organizer, Jimmy Smith, had intimidated employees into signing membership cards. The union had also filed a complaint of unfair labour practices (which was withdrawn during final argument). During the course of hearing the evidence into the allegations of intimidation, the Board drew to the attention an apparent con­tradiction between the evidence of Mr. Lam, and the membership card relating to Mr. Lam. Although the union took the position that the facts which the Board drew to the parties' attention warranted no further inquiry, the Board determined that there was at least a prima facie case on which to proceed. Although in another situation there may be defects on membership evidence that are so clearly extraneous to its central purpose that the Board might see no reason to inquire further, the type of irregularity disclosed here raised at least some doubt as to the reliability of the membership evidence and for that reason it was necessary for the Board to hear evidence on the matter.

42. Having heard the evidence, the Board is satisfied that the manner in which the cards were collected by Jimmy Smith and, in particular, the manner in which the cards were countersigned by Jimmy Smith, do not cast doubt on the reliability of the cards as evidence of the employ­ees' wishes to be represented by the applicant.

43. We are satisfied that there is a misrepresentation on the face of the cards, although on the evidence, we find that the misrepresentation is innocent and inadvertent. In the Board's under­standing, the term "Witness" implies that the person who has signed as a witness is attesting to the fact that he or she has seen another person affixing his or her signature to a document. This is the normal and accepted meaning of the term "witness" on membership evidence, and upon seeing a card with a witnessed signature, the Board would normally conclude that this is what has occurred.

44. The Board has now heard that the signatures of approximately twenty-three of the twenty-five cardsigners for which Jimmy Smith has signed as a "witness" were not actually wit­nessed by him. We are also satisfied on the evidence that to the extent that the cards bear a mis­representation, Jimmy Smith did not intend to mislead the Board. On the evidence, he did not intend to represent to the Board that he actually witnessed the signatures of the cardsigners. His evidence on this issue, which was given in a candid and straightforward manner, was that he intended to confirm that the individuals shown on the cards had signed the cards and wished to belong to the union. The Board has also heard evidence as to the manner in which Mr. Smith dis­tributed cards, contacted employees, and collected the cards and his practice of thanking each cardsigner once he received a card from that person. We are satisfied that when Mr. Smith coun­tersigned the cards he collected, he was in a position to confirm with reasonable certainty those facts that he intended to confirm with his signature, i.e., that the persons had signed the cards and wished to belong to the union.

45. In the absence of any other reason to doubt the reliability of the membership evidence collected by Mr. Smith, his misstatements on the cards when taken in the context of his stated intentions, his basis for being able to attest to the validity of the cards and his general procedures for distributing and collecting the cards, do not call into question the essential information con­veyed by the cards. The Board has confirmed the signatures which appear on the cards with the sample signatures submitted by the employer. The evidence of Mr. Smith is consistent with the sample signature comparison, as is the Form A-4 declaration. The Board accordingly sees no rea­son on the basis of these misstatements to either reject the cards collected by Mr. Smith or to order a representation vote to confirm the employees' wishes.

46. Before we conclude, we wish to comment on an issue raised by Board Member R. M. Sloan in his dissenting opinion. Reference is made to Rule 48 of the Board's Rules of Procedure, which states that "[m]embership evidence . . . must disclose the date upon which signature was obtained . . .". The evidence has established that with respect to at least one card, that of Mr. Lam, the card was dated by Mr. Smith on a day later than when Mr. Lam signed it. Mr. Smith also acknowledges dating some other cards whose dates were left blank by their card signers. There is, therefore, the potential that the date shown on these cards is different from the date the employees signed them. Rule 48 was not raised by counsel in their argument; thus the Board does not have the benefit of their views on the effect of apparent non-compliance with respect to at least one card with Rule 48. In any event, as with any example of non-compliance with the Rules, whether or not the Board will: accept a defective document; accept a late filing; accept late amendments to filings; or take any other action, are decisions to be made in the circumstances of each case. In the circum­stances of this case, we are satisfied that the inaccuracy in the date on at least one card does not warrant rejection of any cards. If there is a difference between the date an employee signed a card and the day Mr. Smith dated the card, it is not likely to be more than a few days in duration; in any event, the evidence establishes that all of the cards were signed between August 24, 1994 and the date of application.

The Intimidation and Coercion Allegations

41. We now turn to a consideration of the allegations regarding Mr. Smith’s conduct during the organizing drive, and the allegations that he intimidated Mr. Lam and Mr. Mark.

42. On balance, as we have indicated above, we find that it is likely that Mr. Smith, in the heat of an argument in which Mr. Maharaj was as much a protagonist as himself, made some threatening and derogatory comments to Mr. Maharaj. We also find, however, that these com­ments were not intended to compel Mr. Maharaj to join the union. Rather, they were, as were Mr. Maharaj’s comments to Mr. Smith, angry words by a person of strong conviction to another person of equally strong conviction. It is clear that some persons in this work force have strong feelings about unionization, either in favour or against. The Board does not condone heavy-handedness or ill-tempered and ill-considered remarks from either side; however, it is not the place of the Board to step in unless it is clear that threats or intimidation are being used as a way to either compel a person to join a union, refrain from joining a union or prevent him or her from exercising other rights under the Act.

43. As we have noted, Mr. Maharaj did not join the union. In light of this, the argument of the employer and the objecting employees relates to the probability that if Mr. Smith engaged in the behaviour of which Mr. Maharaj complains, other employees were subject to the same coer­cion and the Board should not treat the membership evidence as voluntary. We have found that it is unlikely that Mr. Smith made any threat to Mr. Maharaj that he would lose his job if he did not sign a membership card. We therefore have no basis on which to conclude that any of the member­ship evidence collected by Mr. Smith was obtained using intimidation and coercion of the type alleged by Mr. Maharaj.

44. As we have also indicated above in our recounting of the facts, we have determined that it is unlikely that Jimmy Smith threatened Mr. Lam that if he did not sign a membership card, he would lose his job. Mr. Lam did have some anxieties about the prospect of unionization, and he also appeared to have some suspicions about the conduct of the union’s supporters. However, we have found no objective basis for the latter, and in all of the circumstances, including the conversa­tion between Mr. Lam and Mr. Smith after he decided to join the union, we have no reason to dis­count or doubt Mr. Lam’s membership card.

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

46. Except with respect to the emphasized portions, the parties agreed on the following bar­gaining unit description:

all employees of Jones Wood Industries Inc. in the Municipality of Metropolitan Toronto, save and except forepersons, persons above the rank of foreperson and pending resolution by the Board, excluding as well, office and sales staff

The applicant's position is that office and sales staff should be included in the bargaining unit. The respondent's position is that office and sales staff should be excluded, either because they have no community of interest with the rest of the bargaining unit, or because they have access to confiden­tial information which would bring them under section 1(3) of the Act. The applicant also seeks to have four persons added to the list of persons in the bargaining unit at the time of the application. Having regard to the agreement of the parties at the hearing, the Board remits the remaining issues to the parties to attempt a resolution, failing which the parties may contact the Board to have the matter re-listed or a Labour Relations Officer appointed.

47. The Board has determined, however, that the applicant's right to certification cannot be affected by the Board's ultimate decision as to the inclusion or exclusion of the disputed classifica­tions. On the basis of all the evidence before it, the Board is satisfied that more than fifty-five per cent of the employees of the responding party in the bargaining unit on October 13, 1994, the certi­fication application date, had applied to become members of the applicant on or before that date.

48. Accordingly, the Board, pursuant to its discretion under section 6(2) of the Act, having regard to the agreement of the parties and pending the final resolution of the composition of the bargaining unit, certifies the applicant as the bargaining agent for all employees of Jones Wood Industries Inc. in the Municipality of Metropolitan Toronto, save and except forepersons, persons above the rank of foreperson, and pending the resolution of the status of these categories, exclud­ing as well office and sales staff.

49. A final certificate must await the final determination of the appropriate bargaining unit.

50. Having regard to the position of the applicant at the hearing, Board File No. 2838-94-U is hereby dismissed.

DECISION OF BOARD MEMBER R. M. SLOAN; March 29, 1995

1. I dissent from the majority decision with respect to the membership evidence and the Form A-4.

2. It should be noted at the outset that the concern about the membership evidence was not raised by the employer or the objectors, but by the Board itself, following testimony given by Mr. Kiem Lam Nghien (Mr. Lam) that he took home his membership card, signed it at his home, and upon his subsequent return to the plant had the card returned to Mr. Noah J. Smith (Mr. Smith) through Mr. Terry Kelly, his helper.

3. Reference by the Board to Mr. Lam's membership card showed that it was witnessed by Mr. Noah J. Smith, and this prompted the ensuing enquiry.

4. I dissented in the 2 February, 1995 interim decision where the majority in paragraph 4 ruled, in part:

“…..that the Board . . . does not see a prima facie case that would warrant enquiring into the Form A-4".

5. My concern at the time, and I believe it to have been justified on the basis of subse­quent testimony, was that it was premature to give the A-4 a clean bill of health, when we, the Board, were going to enquire into potentially faulty membership evidence, and membership evi­dence is the principal reason for having the Form A-4 prepared in the first place.

6. It is apparent that given the confirmed irregularities in the membership evidence, that the declarant could not possibly attest that the documents were signed by the employees indicated on the documents on the basis of his personal knowledge or enquiries he had made.

7. The in-plant organizer, Mr. Smith agreed in his testimony that he did not see employees sign cards except for two (2) out of the twenty-five (25) cards that he signed as a witness, and he also agreed that he could not swear that the signatures on the cards were those of the employees whose names appeared on the cards.

8. I find therefore that the Form A-4 is clearly faulty and I would dismiss the application on that basis alone.

9. Subsequent to the Form A-4 ruling the Board heard testimony and submissions with respect to the membership evidence.

10. Dealing with the date matter first, we know from the direct unequivocal testimony of Mr. Smith that he reviewed the membership cards at his home and where a date was missing he inserted the then current date. He did this on a number of membership cards - not knowing - again confirmed by Mr. Smith in his testimony - the exact date upon which the employees signed the cards. This is in direct contravention of Rule 48 of the Board's Rules of Procedure dated March 1994 which reads:

11. Membership evidence, evidence of objection and evidence of re-affirmation must disclose the date upon which each signature was obtained and must be accompanied by the name of the union, if known.

[emphasis added]

11. With respect to the witnessing of membership cards, Mr. Smith quite candidly, to his credit, testified that by signing the cards as a witness he was confirming that he was witnessing the applicant employee placing his signature on the membership card. Having heard Mr. Smith's testi­mony which in my view was unequivocal with respect to the witnessing of signatures, I disagree with the majority's characterization of Mr. Smith's evidence. How can the majority decision state in paragraph 10 that Mr. Smith:

..... at no point meant to represent with his signature on the cards that he had actually watched the applicant sign the cards".

while in paragraph 9, the majority decision quotes Mr. Smith's evidence in cross examination which states the exact opposite.

12. While it may be true that it is not a Board requirement that the placing of a signature on a membership card (or other such document) be witnessed by another person, the Board has always taken it to mean that by signing the membership document as a witness the person so sign­ing attests that they in fact saw the applicant for membership sign the card and application.

13. In Emmanuel Products Limited, supra, we note in paragraph 10:

"The primary issue in any certification proceeding is the ability of the Board to rely on the docu­mentary evidence filed. When a union has chosen to provide the certainty of witnessed signatures and signed receipts to bolster the integrity of its evidence and has whether through carelessness or design, misled the Board in that regard, there may be raised in the Board's mind doubts as to the entire credibility of the applicant's documentary evidence. Having regard to the strict standards of integrity required of such evidence, the Board may, in such circumstances and having regard to all of the evidence, reasonably refuse to attach any probative value whatsoever to any of the cards or to the Form 8 declaration filed in support of the application."

[emphasis added]

14. Irrespective of the inadvertence or inexperience of Mr. Smith, the methods adopted by him in collecting membership evidence were highly irregular and fall far short of the "stringent standards" the Board has required with respect to such evidence (see paragraph 36 Board file No. 0461-91-R, Hyundai Auto Canada Inc., dated 16 January, 1995 (unreported).

15. Having failed with respect to my Form A-4 concerns - I believe that a very strong case can be made to either dismiss the application entirely, or at the very least order a representation vote, in view of the severe deficiencies with respect to the dates and signatures on the membership cards.

16. Certainly by ignoring totally the acknowledged deficiencies, with respect to remedy, the majority decision will send out an inappropriate message suggesting a serious relaxation of the Board's heretofore stringent standards with regard to membership evidence.