Construction Workers Local No. 6 v. Per-fec-tion Insulations Limited, 1980 CanLII 823

Ontario Labour Relations Board

[1980] OLRB Rep. January 84

0174-79-R Construction Workers Local No. 6 affiliated with the Christian Labour Association of Canada, Applicant, v. Per-fec-tion Insulations Limited, Respondent, v. International Association of Heat and Frost Insulators and Asbestos Workers, Local 95, Intervener.

Appearances

BEFORE: R. A. Furness, Vice-Chairman, and Board Members H. J. F. Ade and C. A. Bal­lentine.

APPEARANCES: Owen V. Gray and Ed Vanderkloet for the applicant; Robert Flynn for the respondent; S. B. D. WahlandJ. Duffyforthe intervener.

Decision of the Board

DECISION OF THE BOARD; January 15, 1980.

2. The applicant has applied for certification with respect to a bargaining unit of in­sulators and insulators' apprentices employed by the respondent in the province of Ontario save and except non-working foremen and persons above the rank of non-working foreman.

3. The intervener has bargaining rights for the employees who are affected by this application. There was no dispute that this is a timely application under the provisions of sections 5 and 53 of the Act.

4. However, the intervener has challenged the status of the applicant Construction Workers Local No. 6 affiliated with the Christian Labour Association of Canada ("Con­struction Workers Local No. 6") to apply for certification. More specifically the intervener has challenged the status of Construction Workers Local No. 6 as a trade union under sec­tion 1(1)(n) of the Act.

5. The Christian Labour Association of Canada (the "CLAC") was first established in the spring of 1952. The CLAC made a series of applications for certification before the Board during the nineteen fifties. These applications were dismissed by the board because of certain restrictions which were contained in its constitution. See the Bosch & Keuning (Canada) Limited case, 54 CLLC ¶17,086; and the Woodbridge Concrete Products Limited case, 58 CLLC ¶18,105. In 1961 the CLAC again applied for certification and in the Tange Company Limited case, 62 CLLC ¶16,224, the Board again dismissed the application be­cause of the provisions of its constitution which were viewed by the Board as imposing re­strictions on eligibility for membership based on creed. At about this time a minority of the members of the CLAC favoured the deletion of certain provisions of the constitution and broke away to form a separate trade union with the name Christian Trade Unions of Canada (the "CTUC"). The CLAC, however, continued in existence and in 1963, as a result of the decision of the High Court in Trenton Construction Workers Association, Local 52 and Tange Company Limited, 1963 CanLII 117 (ON HCJ), [1963] 2 O.R. 376, the Board determined that both the CLAC and CTUC were trade unions under the Act and commenced to entertain and issue certificates to them when they satisfied the other requirements of the Act. However, the unhappy dif­ferences which arose between the CLAC and the CTUC continued for almost two decades. In recent years exploratory and informal talks were held between representatives of the CLAC and the CTUC with a view to settling past differences and to a merger of the two enti­ties.

6. On October 11, 1978, the secretary of the Construction Workers Local 6 which was affiliated to the CTUC sent a letter to its members by mail. This letter set forth the agenda for a meeting to be held on Saturday, October 21,1978, commencing at 2:00 p.m. in the Boardroom of the DUCA Credit Union Ltd., 86 Hester Street in Hamilton. The letter stated under items of the agenda:

"5. Discussion and voting on the following motion:

'That as of February 1, 1979 Construction Workers Local 6 cease to be affiliated with the Christian Trade Unions of Canada (C.T.U.C.) and becomes affiliated with the Christian Labour Association of Canada

7. In October of 1978, there were about 165 members of the Construction Workers Local 6 and 27 members attended the membership meeting on October 21, 1978. There was some discussion of the motion set forth in the preceding paragraph and the motion was voted upon by secret ballot. The motion was adopted by the votes of the twenty-six mem­bers who cast ballots. The minutes of this meeting were introduced into evidence by the sec­retary of the Construction Workers Local 6. These minutes are unfortunately deficient in a number of respects. Firstly, the form of the motion which was placed before the meeting was not recorded. Secondly, although witnesses who appeared before the Board gave evidence that the constitution of the CLAC was available for members to read during a coffee and do­nut break, there is no reference to the constitution of the CLAC in the minutes of the meet­ing of October 21, 1978.

8. In a letter dated November 9, 1978, and signed by Wiliam Smit — President, John Geerts — Secretary, "the Board of Local 6" purported to apply to the CLAC for affiliation. In a letter of the same date the same two persons wrote to the National Executive Board of the CTUC and stated that Construction Workers Local 6 wished to discontinue affiliation with the CTUC effective as of February 1,1979. In a letter dated November 14, 1978, the Secretary of the National Executive Board of the CLAC informed Construction Workers Local 6 that upon motion it was resolved that Construction Workers Local 6 would no longer be affiliated with the CTUC effective February 1, 1979.

9. In a further letter to the National Executive Board of the CTUC dated November 9, 1978, the Construction Workers Local 6 proposed an amendment to the constitution of the CTUC by adding the following statement to article VIII:

"The National Executive Board of the Christian Trade Unions of Can­ada shall have the authority to enter into a merger with another labour organization committed to similar aims, should such a merger be ap­proved by a two-thirds majority vote at an Annual Convention. The as­sets and liabilities of the organization will be transferred to the succes­sor union if the Annual Convention by a two-thirds majority vote decides to merge with another labour organization."

10 The National Executive Board of the CTUC in a Notice dated November 14, 1978, stated:

"NOTICE OF AMENDMENT TO THE CONSTITUTION TO BE VOTED UPON AT THE CONVENTION 1979 to be held in early January 1979.

Dear Friend:

In accordance with Article IX of the C.T.U.C.'s constitution the N.E .B. of the C.T.U.C. herewith presents the following two resolu­tions to be voted upon at the Convention 1979.

Resolution #1 presented by Construction Workers Local #6 and rec­omrnended for acceptance by the N.E.B.

That the Constitution of the Christian Trade Unions of Canada be and the name is hereby amended by adding the following statement to Arti­cle VIII.

'The National Executive Board of the Christian Trade Unions of Can­ada shall have the authority to enter into a merger with another labour organization committed to similar aims, should such a merger be ap­proved by a two-third majority vote at an Annual Convention. The as­sets and liabilities of the organization will be transferred to the succes­sor union if the Annual Convention by a two-thirds majority vote decides to merge with another labour organization.'

Resolution #2

'The Christian Trade Unions of Canada shall merge with and be ab­sorbed by the Christian Labour Association of Canada with the Chris­tian Labour Association of Canada becoming the successor trade union effective February 1, 1979. All rights, privileges, duties, assets and ha­bihities of the Christian Trade Unions of Canada will be taken over and assumed by the Christian Labour Association of Canada as the succes­sor union.'

Voting on these resolutions will be done by the delegates attending the Convention in accordance with Article IX of the C.T.U.C.'s constitu­tion which reads in part;

'The. Annual Convention of the organization shall be held as soon as possible after the end of the organization's fiscal year. Each affiliated Local has the right to be represented at the Annual Convention by one official delegate. Delegates shall have voting power according to nu­merical strength of the Locals they respectively represent, on the basis of one vote for any number of members up to twenty-five and thereafter one additional vote for each additional twenty-five or major fraction thercof.'

Although the Constitution calls for you to be represented by one official delegate, members are welcome to attend.

You will be informed later about the date and the place where the Con­vention will be held.

For the N.E.B. of the C.T.U.C.

Don Jeffrey, Secretary."

11. The annual convention of the CTUC was held on January 20, 1979. The two reso­lutions referred to in the preceding paragraph were presented at the convention. The min­utes of this convention were not introduced into evidence. Although oral evidence was in­troduced with respect to this convention, this evidence was not satisfactory because there was no reliable evidence on the wording of the two resolutions which were voted upon at the convention. In a letter dated January 20, 1979, the National Executive Board of the CTUC advised the CLAC of the adoption of the two resolutions. In a memorandum of agreement dated February 10, 1979, the CLAC and CTUC provided for the merger of the CLAC and the CTUC and the absorption of the CTUC by the CLAC.

12. Two issues were placed before the Board. Firstly, the purported merger between the CLAC and the CTUC. Secondly, the viability of the Construction Workers Local 6 on the date of the making of this application. With respect to the first issue, in the decision of the Ontario Court of Appeal in Astgen et al. v. Smith et al, 1969 CanLII 488 (ON CA), [1970] 1 O.R. 129, Evans, J.A., in writing the decision of the majority, held that the members of a trade union are related one to another by contract, the terms of which are set forth in the constitution of the trade union. Evans, J.A. pointed out that the contract is not between the member and some undefined entity which lacks the capacity to contract but rather there is a complex of contracts between each member and every other member of the trade union. The learned judge pointed out that where one trade union merges with another trade union the result is the extinction of the contractual rights inter se of each member of the first trade union and the substitution of a set of contractual rights binding the members of the first trade union not only to one an­other but also individually to every other individual in the second trade union. Evans, J.A. held that there is no inherent power in a voluntary association, such as a trade union, to merge with another and that a merger could be accomplished in one of two ways. The first way is by the unanimous concurrence of every member in the trade union. The second way is by action in which each of the members of the trade union has either expressly or impliedly agreed to be binding upon him for the purpose of terminating his existing contractual rights and obligations and bind him to other contracting members in the new contractual relation­ship. There is no provision in the constitution of the CLAC to merge with other trade unions. Similarly, the constitution of the CTUC contained no provisions with respect to merger until at least January 20,1979. The evidence with respect to this convention is most unsatisfactory and the Board is not prepared to find that the CTUC proceeded in conformity with the steps referred to by Evans, J.A. in Astgen et al. v. Smith et al, supra. The Board is not prepared to find that the purported merger is a valid merger. With respect to the second issue, the evidence establishes that the members of Construction Workers Local 6 never adopted the constitution of the CLAC. Quite clearly Construction Workers Local 6 has given up the constitution of the CTUC. In the James B. McGregor — Division of Toby Indus­tries Limited case , [1976] OLRB Rep. October 643, the Board stated:

"The Board's concern for the constitution and the regularity of its adoption in that circumstance is not borne of devotion to mere techni­cality, but out of the Board's fundamental concern that the applicant be a viable entity to carry out the purposes described in section 1(l)(n) of The Labour Relations Act. If a constitution were not properly adopted or, if properly adopted, not properly adhered to, questions might arise as ':0 whether those who purported to be its officers duly appointed or elected under the constitution were indeed its officers at all, and if not, whether it could be considered a viable entity for carrying out the pur­poses described in the Act."

12. The Board finds that Construction Workers, Local 6 does not have duly elected officers and that it was not a viable entity at the time this application was filed with the Board. While the constitution of the CLAC may have been referred to at the meeting on October 21, 1978, the constitution was in no way adopted by the persons who were present. In these circumstances the Board is not prepared to find that the applicant is a trade union within the meaning of section l(1)(n) of the Act because the applicant is not, on the evi­dence before the Board, an organization of employees within the meaning of section 1(1)(n).

13. This application is dismissed.