[1980] OLBR Rep. January 21
1596-79-R Canadian Union of Public Employees, Applicant, v. Charterways Transportation Limited, Respondent, v. Group of Employees, Objectors.
BEFORE: Kevin M. Burkett, Alternate Chairman and Board Members J.D. Bell and A. Gribben.
APPEARANCES: Gilles LeBel for the applicant; Michael Gordon and Terry Craftchick for the respondent; J.A. Ballard for the objectors.
DECISION OF THE BOARD; January 8, 1980.
This is an application for certification.
The respondent raised two issues going to the entitlement of the applicant to be certified to represent the employees in the above described bargaining units. The respondent argued firstly, that on his reading of the applicant's constitution the applicant is entitled to represent only public service employees and cannot therefore, represent the employees of a private sector employer such as the respondent. The union replied that under article 3.0 1(g) of its constitution it extends membership to employees outside of the public sector and cited a number of examples of private sector employee groups represented by it. Section 92(4) of the Act provides:
"Where the Board is satisfied that a trade 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 such eligibility requirements."
The Board hereby affirms its oral ruling given at the hearing that even if it was to accept the respondent's reading of the applicant's constitution, which it does not, it is satisfied that the applicant has an "established practice" within the meaning of section 92(4) of the Act of admitting into membership persons not directly employed in the public sector. In the result the requirements of the applicant's constitution are not material to the matter before us.
The respondent argued secondly, that the Board should examine the membership cards submitted by the applicant and discount those which had been signed on Sunday, October 28, 1979. If the cards signed on Sunday, October 28, 1979 were to be discounted the Board would be required to dismiss the application for lack of membership support. In support of this contention counsel for the respondent, citing Astgen et al v. Smith (1969), 1969 CanLII 488 (ON CA), 7 D.L.R. (3d) 657, argues that a person signing a union membership card enters into a contractual relationship and citing Magee v. Channel Seventynine Ltd. (1977), 1976 CanLII 798 (ON HCJ), 75 D.L.R. (3d) 201 argues further that a contract which is entered into on the Lord's day is null and void by virtue of section 4 of the Lord's Day Act.
Section 4 of the Lord's Day Act provides:
"It is not lawful for any person on the Lord's Day, except as provided herein, or in any provincial Act or law in force on or after the 1st day of March 1907, to sell or offer for sale or purchase any goods, chattels, or other personal property, or any real estate, or to carry on or transact any business of his ordinary calling, or in connection with such calling, or for gain to do, or employ any other person to do, on that day, any wot, business, or labour." [emphasis added]
The argument advanced by counsel for the respondent ignores the nature of the contractual relationship undertaken by a person who signs a union membership card, the legal status of a trade union and in large measure, the language of section 4 of the Lord's Day Act. The section does not make it unlawful to enter into a contract on the Lord's day as is suggested by counsel for the respondent. In order for a contract to be unlawful and hence void by reason of being entered into on the Lord's day it must be found to have been executed in connection with one of the specific activities which are regulated by the statute. A contract executed in connection with an activity which is not regulated by the statute is not unlawful if entered into on the Lord's day.
The argument advanced by counsel for the respondent suggests that the signing of a union membership card establishes a contractual relationship between the individual signing the card and the trade union. While a person enters into a contractual relationship upon the signing of a union membership card, the courts have made it clear that it is the members, one to the other, who are related by the contract. (See Orchardv. Tunney (1957), 1957 CanLII 57 (SCC), 8 D.L.R. (2d) 273 at 281, Astgen v. Smith, supra, and Binson v. Johnston (1957), 1957 CanLII 131 (ON HCJ), 10 D.L.R. (2d) 11, affd. 1958 CanLII 345 (ON CA), 12 D.L.R. (2d) 379.) In the last cited judgment the court concisely described the nature of the transaction and its legal effect in the following terms:
..... that a contract is made by a member when he joins the union, the terms and conditions of which are provided by the union's constitution and by-laws The contract is not a contract with the union or the association as such, which is devoid of the power to contract, but rather the contractual rights of a member are with all other members thereof."
- It is beyond dispute that the signing of a union membership card does not constitute the selling or offering for sale or purchase any goods, chattels or other personal property or any real estate by either the individual signing the card or by those with whom he is contracting by virtue of signing the card. We are also of the view that the signing of a union membership card cannot be characterized as the carrying on or transacting of any business of the "ordinary calling" of either the person who signs the card or those with whom he is contracting, nor can it be characterized as the carrying on of any business in connection with such calling." We are supported in our conclusion in this regard by the courts in Re Warner and Manitoba Labour Board et al, (1960), 1960 CanLII 364 (MB QB), 25 D.L.R. (2d) 217. The Court was asked to find that a meeting of trade union employees held on a Sunday at which an application for certification was authorized was contrary to section 4 of the Lord's Day Act and therefore a nullity and hence so also was the certification of the Labour Board which had been based upon the authorization. The court, however, came to the conclusion that:
"Surely it cannot be said that the group of men forming the members of Local 330 who met that Sunday to authorize the application for certification were on the business of their ordinary calling, or were carrying on business at all. Undoubtedly they were acting for the purpose of obtaining something they thought would be for their benefit, but that fact cannot be invoked to suggest that they were carrying on business for a profit." [emphasis added]
The court put its mind to the question of trade union activity vis-a-vis the activities covered by Section 4 of the Lord's Day Act and concluded that trade union activity does not constitute business within the meaning of section 4 of the Lord's Day Act or any of the other activities referred to in the section. The signing of a union membership card is no more the carrying on of business within the meaning of section 4 of the Lord's Day Act than is an authorization by union members to go forward with an application for certification and in any event, the signing of a union membership card cannot be characterized as business of the ordinary calling of either the individual signing the card or those with whom he is contracting. If a working man can be said to have a "business of his ordinary calling", and we are not of the view that a working man is in business of any kind, that business is not being carried on by the act of signing a union membership card or accepting an individual into membership. The signing of a union membership card does not constitute the transacting of any business of the ordinary calling of either the person signing the membership card or the other members of the trade union with whom the person signing the card is contracting, as would bring the act of signing a union membership card within the ambit of section 4 of the Lord's Day Act.
The trade union itself, which is the collective of all its members, is not a "person" as defined in The Interpretation Act, s. 30(28) and is not, therefore, regulated by section 4 of the Lord's Day Act. Even if a trade union was found to be a "person" whose conduct was regulated by the Lord's Day Act, however, the courts have made it clear that the business activities referred to in section 4 of the Lord's Day Act are those which are carried on for profit (see Rideau Club v. Ottawa, (1907), 15 O.L.R. 118 at P. 122 and Warner and Manitoba Labour Board, supra. A trade union as defined in section 1(1)(n) of The Labour Relations Act, does not engage in business for profit and its activities, therefore, would not be regulated by section 4 of the Lord's Day Act if it was a "person" covered by the Act.
Having regard to all of the foregoing we find that the signing of a union membership card is not an activity which, if done on a Sunday, is made unlawful by the operation of section 4 of the Lord's Day Act..
A certificate will issue to the applicant.