Canadian Union of Public Employees v. Staff Association of Children's Aid Society of Metropolitan Toronto, 1980 CanLII 915

[1980] OLRB Rep. January 24

1658-79-R Canadian Union of Public Employees, Applicant, v. Staff Association of Children's Aid Society of Metropolitan Toronto, Respondent, v. Children's Aid Society of Metropolitan Toronto, Intervener.

BEFORE: Pamela C. Picher, Vice-Chairman and Board Members J. A. Ronson and W. F. Rutherford.

APPEARANCES: Helen Browne for the applicant; Patricia Martin for the respondent; T. F. Stone and otJ'ers for the intervener.

DECISION OF THE BOARD; January 23, 1980.

1. The applicant has applied to the Ontario Labour Relations Board under Section 54 of The Labour Relations Act for a declaration that it has acquired the rights, privileges and duties under this Act of its alleged predecessor, the Staff Association of the Children's Aid Society of Metropolitan Toronto, by reason of a merger or amalgamation or a transfer of jurisdiction. Section 54 of the Act provides as follows:

"(1) Where a trade union claims that by reason of a merger or amalga­mation or a transfer of jurisdiction it is the successor of a trade union that at the time of the merger, amalgamation or transfer of jurisdiction was the bargaining agent of a unit of employees of an employer and any question arises in respect of its rights to act as the successor, the Board, in any proceeding before it or on the application of any person or trade union concerned, may declare that the successor has or has not, as the case may be, acquired the rights, privileges and duties under this Act of its predecessor, or the Board may dismiss the application.

(2) Before issuing a declaration under subsection 1, the Board may make such inquiry, require the production of such evidence or hold such representation votes as it considers appropriate.

(3) Where the Board makes an affirmative declaration under sub­section 1, the successor shall for the purposes of this Act be conclusively presumed to have acquired the rights, privileges and duties of its prede­cessor, whether under a collective agreement or otherwise, and the em­ployer, the successor and the employees concerned shall recognize such status in all respects."

2. To decide whether the applicant, CUPE, has acquired the rights, privileges and duties under this Act of its predecessor, the Staff Association, the Board must determine whether a merger or amalgamation, or a transfer of jurisdiction has been properly effected by the predecessor. To this end, the Board looks to the provisions of the predecessor's constitution to decide whether the predecessor had jurisdiction to merge, amalgamate or transfer jurisdiction and, if so, whether it complied with its own procedures for doing so, e.g., notice and voting procedures. In this case counsel for the employer questioned the adequacy of the notice of the contents of the meetings at which the vote to merge, affiliate or transfer jurisdiction was held.

3. Ms. Patricia Martin of the Staff Association gave testimony regarding the events leading up to and surrounding the vote taken among the eligible Staff Association members to decide whether they would merge, affiliate or transfer their jurisdiction to the applicant, CUPE. In April, 1978 the Staff Association distributed material to the membership entitled "A Case for Affiliation" and indicated that the membership would be required to make the very important decision of whether the Staff Association should remain an independent union, merge with a larger union or affiliate with a group of unions. The distribution con­tained descriptions of CUPE and the Ontario Public Service Employees Union (OPSEU), the two unions suggested for possible merger, as well as a description of the Confederation of Canadian Unions which was suggested as the most likely entity for affiliation. Although a meeting was held and people from CUPE, OPSEU and CCU spoke to the membership, the matter rested in abeyance until September, 1979.

4. A general membership meeting was held on September 25, 1979 at which representatives from CUPE, OPSEU, and CCU again attended to give information and answer questions relating to their respective unions. The Staff Association newsletter for October, 1979 was sent to all bargaining unit employees on or about October 15th. The first page of the news letter contains a notice of a general membership meeting to be held on Tuesday, November 13 1979 indicating that a vote would be taken on three important issues. The newsletter specifically indicates that one of the matters to be voted upon would be "the question of Affiliation/Merger/Independence".

5. A council meeting was held on November 1, 1979 during which a motion was made and carried that council put forth a resolution to the membership to merge with CUPE. In a newsletter distributed by hand to every member of the bargaining unit on November 5, 1979, the membership was notified that a general membership meeting would be held on Tuesday, November 13, 1979 and Wednesday, November 14, 1979. The notice stated that, among other things, the agenda for the meeting would consist of "a vote on the Resolution to merge with the Canadian Union of Public Employees (CUPE)". The notice described the issues to be voted upon as "some of the most important issues ever put before the membership". Following a general discussion of the CUPE Resolution, the newsletter set out, in full, the Resolution which had been passed by the council at the November 1st meeting:

"STAFF ASSOCIATION

OFTHE

CHILDREN'S AID SOCIETY OF METROPOLITAN TORONTO

RESOLUTION

BE IT RESOLVED that the Staff Association of the Children's Aid Society of Metropolitan Toronto hereby merges, amalgamates with or transfers its jurisdiction, rights, privileges, duties, liabilities and assets to: The Canadian Union of Public Employees (C.U.P.E.) subject to its Constitution and Rules and Regulations. PROVIDED however, that the Staff Association of the Children's Aid Society of Metropolitan Toronto may and are hereby authorized to continue to use and be known by the present name until such time as a change to a new name has been agreed upon with the Staff Association of the Children's Aid Society of Metropolitan Toronto or until such time as such change to a new name has been made in accordance with the procedure under Section 54 of the Ontario Labour Relations Act.

DATED AND PASSED AT Toronto, Ontario, this 1 day of November, 1979

Signed:

Patricia Martin Brian Piitz Acting

Chairperson Secretary"

6. The general membership meeting was held as scheduled on November 13th and 14th for the purpose of voting on the Resolution. The ballot presented to the voters read as follows:

BALLOT

ARE YOU IN FAVOUR OF THE RESOLUTION REGARDING MERGING, AMALGAMATING WITH, OR TRANSFERRING OUR JURISDICTION, RIGHTS, PRIVILEGES, DUTIES, LIABILITIES AND ASSETS TO THE CANADIAN UNION OF PUBLIC EMPLOYEES (C.U.P.E.) AND RETAINING OUR NAME FOR A CERTAIN PERIOD OF TIME?

YES NO

In the Board's view the ballot is an accurate reflection of the question contained in the Resolution.

7. Following the November 13th and 14th voting the Staff Association received a number of calls from persons who had been caught in the "Mississauga Disaster" and could not, thereby, attend the vote. In view of the unusual circumstances, the Staff Association notified all employees in the bargaining unit on November 15th that the vote would be continued on November 20th.

8. The Board's function under section 54 of the Act is to determine whether the proposed merger, amalgamation or transfer of jurisdiction has been carried out in accordance with the provisions of the predecessor's constitution as well as any additional criteria developed by the Board.

9. Article 111(c) of the constitution of the Staff Association provides for a merger, affiliation, or a transfer of jurisdiction and reads as follows:

"III. MEMBERSHIP AND JURISDICTION

(c) Jurisdiction: If so decided at a General Membership Meeting by a 50% plus 1 vote of the total membership in good standing, the Staff Association may merge or affiliate with, or transfer jurisdic­tion to, or join another Union or Labour Federation."

Article 111(c) of the constitution thereby gave the Staff Association the jurisdiction to decide by a 50 per cent plus 1 vote of the members in good standing to merge, affiliate or transfer jurisdiction to another union.

10. Article 111(b) of the By-Laws stipulates that the notice for a General Membership Meeting must be given at least fourteen days prior to the meeting. In this case, the first notice of the General Membership Meeting during which the vote was to be held was contained in the October 15th newsletter or well within the fourteen day time period stipulated in the By-laws.

11. The By-Laws do not provide for extension meetings such as was necessitated by the "Mississauga Disaster". In Zehrs Markets Division of Zehrmart Limited, [1977] OLRB Rep. Oct. 637 the Board indicated that apart from the notice requirements in the constitution, the Board must be satisfied that reasonable notice has been given to the union members concerning a meeting called to decide upon a proposed merger, amalgamation, or transfer of jurisdiction (see also Faulds v. Hesford, (1957), 1957 CanLII 252 (BC SC), 10 D.L.R. (2d) 292 (B.C. Sup. Ct.) and Beef l'erminal Limited, [1970] OLRB Rep. April 75). In view of the circumstances under which the extension meeting occurred in this case and the general awareness of the issue in question, as discussed in more detail below, the Board is fully satisfied that the notice given employees on November 15th for the extension meeting on November 20th was reasonable and, therefore, effective notice for the purposes of section 54 of the Act.

12. Notwithstanding the fact that the notice of the meeting itself was in accordance with the by-laws, counsel for the Children's Aid Society raised the question of whether the membership had received sufficient notice of the contents of the agenda for the meeting at which the vote was to be held. As the constitution is silent on the issue of notice of the contents of a General Membership Meeting, the Board need satisfy itself that reasonable notice was provided. The question of whether the Staff Association should remain independent, merge with CUPE or OPSEU or affiliate with CCU was raised with the membership in April, 1978 both at a membership meeting and in a printed distribution. The matter was again discussed at a General Membership Meeting on September 25th, 1979 during which the membership was addressed by representatives of the respective unions. In the October newsletter, the notice of the November 13th General Membership Meeting clearly indicated that a vote would be taken on the question of "affiliation/merger/independence". On November 5, 1979, one week prior to the first day of voting, a second newsletter was distributed containing a reproduction of the actual Resolution upon which the membership would be asked to vote. In view of the extent to which the matter had been discussed at General Membership Meetings prior to the vote, and having regard to the contents of both the October and November newsletters in their entirety, the Board is satisfied that the membership had a clear understanding, well in advance, of the nature of the matter to be voted on at the November 13th and 14th General Membership Meetings. The Board, therefore, sees no defect in this regard.

13. Article II of the By-Laws stipulates that only members in good standing can vote in the meetings referred to in By-Law I which includes General Membership Meetings. Members in good standing are defined as those members who are paying dues. Article 111(b) of the Constitution states that members of the Staff Association are "[a]ll eligible employees who have signed a membership card with the Staff Association and are paying dues. These provisions of the Constitution and By-Laws collectively indicate that those who are eligible to vote are employees who have signed a membership card with the Staff Association and are paying dues. Ms. Martin testified that there were 351 eligible voters and that 181 or 52 per cent voted in favour of the Resolution. Article 111(c) of the Constitution quoted above stipulates that 50 per cent plus 1 of the total membership in good standing is needed to effect a merger, affiliation or transfer of jurisdiction. The 52 per cent vote in favour of the merger or transfer was, therefore, sufficient to carry the Resolution.

14. On the basis of the evidence set out above, the Board is satisfied that the purported merger or transfer was carried out in accordance with the Constitution and By-Laws of the Staff Association and in compliance with the Board's general criteria for assessing the effectiveness of such a transaction.

15. Accordingly, the Board finds, and so declares pursuant to section 54(1) of The Labour Relations Act, that the applicant, the Canadian Union of Public Employees, has acquired the rights, privileges and duties under The Labour Relations Act of the Staff Association that was the exclusive bargaining agent for the employees of the Children's Aid Society of Metropolitan Toronto.