United Food and Commercial Workers International Union v. Footwear Fashions Limited

[1981] OLRB Rep. April 454

1749-80-R United Food and Commercial Workers International Union, C.L.C., A.F.L., C.I.O., Applicant, v. Footwear Fashions Limited, Respondent, v. Footwear Fashions Employees Association, Intervener, v. Group of Employees, Objectors.

BEFORE: N. B. Satterfield, Vice-Chairman and Board Members H. J. F. Ade and C. A. Ballentine.

APPEARANCES: Marilyn Nairn, Ian Reilly and Ray Cromarty for the applicant; Ronald Dickie, Scott Beech and Kevin V. Fisher for the respondent; W. R. Buchner Bernice Smith and Connie Nicoletti for the intervener; C. Nguyen and Bernice Smith for the objectors.

DECISION OF THE BOARD; April 10, 1981

1. The name "Footwear Fashions Ltd." appearing in the style of cause of name of the respondent is amended to read: "Footwear Fashions Limited".

2. This application for certification first came to hearing before the Board, differently constituted, December 5th, 1980. That hearing was adjourned after the Board dealt with certain procedural issues. The application was continued for hearing on January 14th, 1981 before the Board as constituted herein. When the application was made, the respondent Footwear Fashions Limited ("the employer") and the intervener Footwear Fashions Employees Association ("the association") both raised as a bar to the application the claim that there was a current collective agreement between them which was dated so as to expire July 31st, 1981. This application was made November 12th. 1980. The applicant United Food and Commercial Workers International Union ("the union") contends that no collective agreement exists as a bar to its application because the association no longer is a trade union within the meaning of The Ontario Labour Relations Act and! or it is in fact under company control and domination and, as a consequence, the union contends that the Board should revoke the certificate which was issued to the association May 12, 1965.

3. The association was certified by the Board May 12, 1965. As a result, there is on file with the Board a certificate of trade union status which has been signed by the Registrar. That certificate of status is prima facie evidence pursuant to section 94 of the Act that the association is a trade union for the purposes of the Act. That is not to say, however, that this evidence of the association's status cannot be challenged and shown to be deficient, notwithstanding the certificate, to the extent that the Board might find it no longer to have status as a trade union within the meaning of section l(l)(n) of the Act. See Toronto Pattern Works Ltd., [1975] OLRB Rep. Dec. 911. The onus, however, is on the union to show that the association has, by its conduct, ceased to exist or has abandoned or otherwise lost its bargaining rights. See Dutch Laundry and Dry Cleaners Ltd., [1968] OLRB Rep. April 45.

4. The Board has reviewed the evidence before it and makes the following findings of fact.

5. The employer and the association have signed over a period of 15 years at least four documents which are prima facie, collective agreements within the meaning of section l(l)(e) of the Act. The first of these documents is in a format common to many collective agreements and purports to have been in effect from May 1, 1969 to April31 (sic), 1972. This document was renewed in a timely fashion by memoranda of agreement for further successive terms of May 1, 1972 to April 31 (sic), 1975; May 1, 1975 to April 31 (sic), 1980; and May 1, 1980 to July 31, 1981.

6. Employees have not received copies of the collective agreements, but it may be inferred from the evidence that, with exception of the memorandum extending the agreement to July 31, 1981, the amendments to the agreements have been reported to them. The evidence does not establish whether the officers of the association obtained a mandate from the employees prior to negotiating amendments of the collective agreement nor does the evidence reveal the nature of the negotiations which led to the signing of the agreement documents which are in evidence.

7. The association originally had three officers, but currently has only a president and a secretary. Although it is not clear when this change took place, there have been two officers since 1972. A third member has signing authority for the purpose of banking transactions. The term of office is for the duration of the collective agreement and elections are held when these terms expire. Prior to 1972, elections were called by notice posted by the president, but since that time the elections have been called by notice of meeting through word of mouth. That change took place when the incumbent president, Bernice Smith, first took office as president. Previously she had served as secretary of the association, having been elected to that office in 1969. Elections have also taken place when an incumbent officer has resigned office or left the employment of the employer. The present secretary was elected to office under those circumstances. In the latter instance, the president called a meeting for purposes of electing a replacement secretary, asked for nominations but none were forthcoming. A week later she called another meeting and nominated Connie Nicoletti who was then elected. The only evidence of deviation from this practice is in respect of the last renewal of the collective agreement. No elections were held at that time because, according to Smith, the employer undertook to review wages with her early in 1981. There is no evidence of any constitution and Smith, who has been an officer of the association since 1969, has no knowledge of the existence of any constitution. Nor is there any other written statement which defines the duties of the association's officers and how elections of officers are to be conducted.

8. The collective agreement stipulates that all new employees shall.... .be required to join the Association and pay the established dues and initiation fee.". It also provides that initiation fees and membership dues shall be collected by the Company on behalf of the Association by way of payroll deduction.. .". No individual membership records are kept by the association nor is there any membership initiation procedure. The only record of membership is an annual statement from the employer which lists the employees from whom dues were deducted during the year and the amount thereof for each employee. Beginning in 1972, the actual practice of deducting dues was altered at the association's request so that deductions were made only after employees completed three months of employment. This was done for the administrative purposes related to the association's practice of refunding the residue of it~ dues revenue at the end of each year. Monthly dues are $1.00. The amounts deducted by the employer are paid directly into the association's bank account three or four times yearly, less any disbursements which have been made through the employer's accounting facilities on behalf of the association. The only expense which the association appears to have is for flowers sent to employees in hospital. At the end of each year the association retains a reserve equivalent to one month's dues for each employee and reimburses the residue to the individual members. Reimbursement is proportional to the number of months during which the employee has paid dues and each employee is advised by the president of the basis for reimbursement.

9. The association maintains no records other than those relating to its bank account. These consist primarily of the bank account passbook and an annual reconciliation statement provided by the employer which shows the amounts of dues deducted for each employee, disbursements made on behalf of the association and the net deposits to the association's bank account.

10. Meetings are held when there is a complaint or some other matter that an employee wishes to have discussed and for the election of officers, as aforesaid. No meetings have been held since January 1, 1979. It may be inferred from the evidence that the employees are advised by the association in meetings when amendments are made to the collective agreement. All meetings are held on company premises in the employees' lunchroom. No members of management attend.

11. Smith claims that, as president of the association, she has taken up complaints of employees with the employer. The only specific example in evidence is a complaint made in the latter part of 1980 by an employee who had lost her seniority. The employee pursued the complaint on the advice of a representative of the applicant and was instructed on how to proceed. She filed a complaint with Smith who took it up on her behalf and was successful in having the employee's seniority reinstated. The collective agreement provides for a more formal grievance procedure, one which requires the agreement to be put in writing by the employee on a form supplied by the company.

12. The association does nothing to advise new employees of the existence of a collective agreement, to inform them about the deduction of dues and what the purpose of those dues are. It relied, according to Smith, on them learning about these matters in the ordinary course of events from other employees. As was stated above, the employees do not receive a copy of the collective agreement.

13. This application has been made some 15¼ years following the Board's certification of the association and the Board's finding that it was a trade union within the meaning of the Act. While there is no other evidence prior to May 1, 1969, of the relationship between the association and the employer, since that date, four consecutive collective agreements have been executed. These documents are, prima facie proof also that the association has not abandoned its bargaining rights. Thus, for the agreement which expires July31, 1981 not to be a bar to this application, the facts must establish that the association has ceased to exist or it has lost its bargaining rights by some means other than abandonment.

14. The facts in respect of whether the association exists reveal that there are two officers acting in the name of the association to sign collective agreement documents and administer a bank account. Dues are deducted from employees' pay in the association's name and deposited to its bank account. The association's president, Smith, has intervened recently with the employer on behalf of an employee and resolved the employee's complaint. There have been elections of officers and meetings of employees. On the other hand there is no constitution for the association and no other evidence which establishes the objects of the association, what officers it has, their responsibilities and how they are to be elected. Nor is there anything to indicate what the requirements of membership are. In short, there is nothing in evidence that there is an organization which exists because employees have banded together in a contractual relationship with each other for common purposes and objectives, one of which is the regulation of labour relations. When the Board certified the association in 1965, a prerequisite to certification was a finding that the association was a trade union within the meaning of the Act. Therefore the Board had to be satisfied on the evidence at that time that employees were contractually bound each to the other as members of the association. Whatever form that evidence took, the Board herein does not have comparable evidence which satisfies it that the same organization continues in existence today.

15. The Board's standards for determining whether an organization is a trade union within the meaning of the Act are not onerous. The Board looks for evidence that the following basic steps have been taken:

(1) A constitution should be drafted setting out, among other things, the purpose of the organization (which must include the regulation of labour relations) and the procedure for electing officers and calling meetings;

(2) the constitution should be placed before a meeting of employees for approval;

(3) the employees attending such meeting should be admitted to membership;

(4) the constitution should be adopted or ratified by the vote of said members;

(5) officers should be elected pursuant to the constitution.

See Local 199 L.A. W. Building Corporation, [1977] OLRB Rep. July 472. Evidence that these steps have been taken, assured the Board that the organization is a viable one capable of representing the membership in collective action and in their relationships with their employer. Having regard for these relatively simple, straightforward requirements for establishing the fact that an organization is a trade union for purposes of the Act, it is not unreasonable t expect the organization to be able to maintain its constitution as some evidence of its continuing existence.

16. The absence in this case of a constitution or of any evidence which shows that there are employees who are members of the association bound together by agreement each with the other, casts substantial doubt as to whether the original organization has survived. While the existence of the four collective agreements and a bank account, the deduction of money in the name of the association as dues and Smith's activities are all factors which support the appearance that the association continues to function as a trade union, they equally could stand for a situation in which Smith is acting as agent for a group of individual employees. Even if there was a procedure by which employees applied for membership in the association, without evidence that there is a constitution, there is nothing to show the Board what it is that the employees would be joining. Of even greater importance, there is in fact nothing to show the employees what it is that they would be joining. Therefore, in the absence of a constitution for the association or any evidence that employees are bound together in the association by agreement each with the other, the Board finds that the association which previously was found to be a trade union within the meaning of section 1(1 )(n) of the Act has ceased to exist.

17. There have been other decisions of the Board in which it has dismissed or upheld challenges to the prima facie proof of an organization's trade union status. In none of these cases did the party which was challenging that status raise an issue of whether there was an existing constitution as evidence of the continued existence of the organization and of its functioning as a trade union. In the case at hand, the union has, by its evidence that no constitution exists for the association, cast substantial doubt on whether the association remains in existence at all. In these circumstances, the onus shifts to the association to satisfy the Board that it has not ceased to exist and still functions as a trade union within the meaning of the Act. Such evidence that there is of activities which are compatible with the existence of a trade union falls short, in the absence of evidence of a constitution, of satisfying the Board to that effect.

18. Accordingly the Board further finds that the document which the association and the employer contend is a current collective agreement between them is not a collective agreement within the meaning of section l(l)(e) of the Act and thus is not a bar to this application. In light of this finding, it is unnecessary for the Board to deal with the union's allegation that the association is dominated by the employer.

19. Having regard to the agreement of the parties, the Board further finds that all employees of the respondent at its plant in London save and except foreman and supervisors, persons above the rank of foreman and supervisor, office and sales staff, constitute a unit of employees of the respondent appropriate for collective bargaining.

20. The employer and the union disagreed as to whether two persons, Ray Cromarty and Marion Rehlinger, are to be included in or excluded from the bargaining unit described above. The employer contends that both should be excluded. Cromarty because he is a foreman and exercises managerial functions within the meaning of section l(3)(b) of the Act and Rehlinger because she is a clerk in shipping and receiving and excluded as office staff. Consequently a Board officer has been authorized to inquire into and report to the Board on the duties of and responsibilities of Cromarty and on the community of interest, if any, between Rehlinger and other employees in the bargaining unit. That authorization is revoked and, instead, the Board will receive the evidence and argument of the parties on these issues at the hearing referred to hereunder for the continuation of this application.

21. Notwithstanding the disagreement of the parties, the Board further finds that more than fifty-five per cent of the employees of the respondent in the bargaining unit at the time the application was made, were members of the applicant on November 25th, 1980, the terminal date fixed for this application and the date which the Board determines, under section 92(2)(j) of The Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act.

22. There has been filed with the Board a statement of desire ("petition") in opposition to the union containing the signatures of 30 persons purporting to be employees of the employer. Eleven of the names on the petition coincide with the names of persons who signed membership cards and whose names appear on the lists filed by the employer. Should the Board find the document to be a voluntary expression of the wishes of the employees who signed it, the petition would cast doubt on the membership support of the union such that the union would have clear support of less than fifty-five per cent of the employees in the bargaining unit. It will be necessary, therefore, for the Board to conduct its usual casual inquiry into the origin, preparation, circulation and filing with the Board of the petition.

23. This matter is referred to the Registrar to be listed for hearing to receive the evidence and argument of the parties on the duties and responsibilities of Ray Cromarty and the community of interest, if any, between Marion Rehlinger and other employees in the bargaining unit, to inquire into the petition as aforesaid and to deal with any other matters which at the time are outstanding.