[1981] OLRB Rep. April 460
2353-80-R United Furniture Workers of America, AFL-CIO, Applicant, v. Deluxe Upholstery Employees Association, Respondent, v. La-z-Boy Canada Limited, Intervener.
BEFORE: R. D. Howe, Vice-Chairman, and Board Members J. A. Ronson and W. F. Rutherford.
APPEARANCES: Douglas J. Wray, Donald Riger and Dennis Allen for the applicant; Richard J. Hobson, Q. C., Eric Edwards, Doreen Schlosser and Jean Kienapple for the respondent; W G. Phelps, David Eby and Lou Roussey for the intervener.
DECISION OF THE BOARD; April 15, 1981
This is an application under section 54 of The Labour Relations Act for a declaration that the applicant acquired the rights, privileges and duties of the respondent by reason of a merger, amalgamation or transfer of jurisdiction.
Section 54 provides in part as follows:
"54.(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."
The intervener submitted that the applicant has no status as a trade union and that, accordingly, the application should be dismissed. The parties agreed that the Board should hear evidence and argument concerning the issue of the trade union status of the applicant to enable the Board to decide that threshold issue which, if it were decided against the applicant, would make it unnecessary for the Board to hear any evidence or argument concerning the merits of the application.
Mr. Donald Riger, a District Director of the applicant, testified in these proceedings on behalf of the applicant and filed with the Board a copy of the applicant's constitution. The applicant came into existence in 1939. Its constitution was first adopted at its first constitutional convention held in February of 1939 at Rockford, Illinois. The objects of the applicant, as set forth in Article II of the constitution, are:
"a) To unite in our International all workers embraced in our jurisdiction.
b) To establish wage standards adequate to maintain a decent American standard of living for all workers in our industry.
c) To shorten the hours of labour and improve working conditions.
d) To reach and maintain agreements with employers as to wages, hours of labor and working conditions and to seek through such agreements to establish a maximum job and union security of members of the United Furniture Workers of America.
e) To advance the economic, political, social and cultural interests of the workers in the industry.
f) To aid in the adoption of laws for the economic and social welfare of all workers and to combat anti-labor legislation and fight for the repeal of anti-labor laws.
g) To protect and extend our democratic institutions and the civil rights and liberties of all workers.''
The applicant has approximately thirty thousand members and has entered into collective agreements with a number of employers in the United States of America, including collective agreements with the intervener (or its parent company) at plants in Monroe, Michigan, and in Florence, South Carolina.
- Pursuant to its constitution, the applicant meets in biennial convention. The constitution also provides a procedure for the calling of special conventions. The most recent convention was held in Nashville, Tennessee during June of 1980. The constitution contains detailed provisions concerning the nomination and election of officers of the applicant, including the following sections of Article XII:
"Section 1. The only officers of the International Union shall be the International President, the Secretary-Treasurer, and the four Vice-Presidents. They shall be elected by the delegates at Alternate International Conventions beginning with the Convention held in 1980.
Section 2: The newly elected officers of the International shall begin their four-year-terms of office immediately upon their election at the Convention and shall continue to hold office until their successors are elected."
The constitution also provides for the nomination and election of a General Executive Board. Mr. Riger testified that the officers and the members of the General Executive Board were duly elected at the 1980 convention.
Although the constitution provides for the chartering of local unions, it was Mr. Riger's evidence that bargaining rights are generally obtained by the International and then assigned to a new or existing local. Thus, during organizing campaigns, employees generally first become members of the International and later become members of a local. Collective agreements are negotiated "by the International with the local" and are signed by the International.
Mr. Riger works out of Grand Rapids, Michigan, and directs the applicant's midwestern regions. His responsibilities include servicing the applicant's collective agreement with the intervener (or its parent company) at its Monroe, Michigan plant. During June of 1980, the International President of the applicant assigned Mr. Riger to "cover Ontario" and to make contact with the employees of the intervener at its newly acquired plant in Waterloo, Ontario. After preliminary discussions with some interested employees and with officials of the Kitchener -Waterloo Labour Council, Mr. Riger met with some of the employees of the intervener in August of 1980. During the fall and early winter of 1980,Mr. Riger and Dennis Allen, an International Representative of the applicant, met with employees of the intervener several times at the premises of the Kitchener-Waterloo Labour Council. Since Mr. Riger's efforts constituted the applicant's first attempt to gain bargaining rights for persons employed in Canada, lie also made contact with officials of the Canadian Labour Congress (the "C.L.C.") who agreed to provide the applicant with office space at its premises in Don Mills, Ontario, and to permit the applicant to use its address and telephone number. Mr. Riger also testified that Ralph Ortlieb, the C.L.C.'s Regional Director of Organization, had agreed (on the authorization of the applicant) to accept service and notices under The Labour Relations Act on behalf of the applicant. It was also Mr. Riger's evidence that there is an understanding between the applicant and the C.L.C. that the applicant will affiliate with the C.L.C. once it obtains bargaining rights for the employees of the intervener.
Mr. Riger's meetings with the employees of the intervener culminated in the signing of the following "merger agreement" dated January 16, 1981, by Mr. Riger and by persons purporting to be representatives of the respondent:
"The officers of Deluxe Upholstery Employees Association and the representatives of the United Furniture Workers of America, AFL CIG, hereby agree that the vote held this day, January 16, 1981 at the Kitchener-Waterloo Labour Assoc., has been correctly and honestly carried out.
We hereby turn over our organization to the United Furniture Workers of America, AFL CIO, with a clear understanding that all of the desires of both parties have been carried out, and from this day the employees of La-z Boy Canada Ltd., are members of the United Furniture Workers of America, AFL CIO."
It was also Mr. Riger's evidence that the employees of the intervener voted to adopt the applicant's constitution at the January 16th meeting and also adopted by-laws at that meeting.
Counsel for the intervener contended that notwithstanding the merger agreement which purported to make the employees of the intervener members of the applicant, the employees could not become members of the applicant since (in his submission) the applicant's constitution provides only for membership in a local, not in the International. However, a number of provisions in the constitution indicate that membership is not restricted to membership in a local of the applicant and that membership in the International itself is also possible; see, for example, Article II, Section 1(d) which refers to "members of the United Furniture Workers of America"; Article V, Sections 1 and 4, which refers to "membership in good standing in the International"; Article XXIX, Section 2, which refers to "members of the International Union"; and Article XXXIV. Section 1, which refers to "members in the United Furniture Workers of America". Moreover, it was the undisputed evidence of Mr. Riger that the applicant has an established practice of admitting persons to membership in the International during organizing drives and then assigning them to a local after the applicant has obtained the right to bargain on their behalf. Thus, by virtue of section 92(4) of the Act, in the circumstances of this case, the Board need not in any event have regard to the membership eligibility requirements of the applicant's constitution.
Except as set forth above, the applicant has no officers, representatives, premises, members or collective agreements in Ontario (or elsewhere in Canada).
Counsel for the intervener contended that the applicant should not be found to have trade union status in Ontario because (in his submission) it does not have a "presence” in Ontario for collective bargaining purposes. In support of that argument, he referred to the applicant's lack of officers, (resident) representatives, members, collective agreements, and premises in Ontario.
Section l(l)(n) of the Act contains the following definition:
"'trade union' means an organization of employees formed for purposes that include the regulation of relations between employees and employers and includes a provincial, national, or international trade union, a certified council of trade union and a designated or certified employee bargaining agency.”
In determining whether an applicant is a trade union, the Board must address itself to the question: "Is the applicant a trade union as defined by the Act?" (see CSAO National (Inc.). (1972) 2 0. R. 498 (C.A.)). Having regard to the statutory definition set forth above and the overall scheme of the Act, an entity seeking to establish that it has status as a trade union must, as a necessary first step, establish that it is an "organization of employees" (see Armour Associates, [1976] OLRB Rep. March 117). To be found to be an "organization" within the meaning of section l(l)(n), the applicant must prove that it is a viable entity for purposes of collective bargaining, by establishing that it has a written constitution, by-laws, charter or other documentary evidence which prospective members could inspect in order to determine whether or not the organization is one which they would wish to join, and by establishing that it has officers who can carry out its objects (see, for example, The Toronto Blizzard Soccer Club, [1979] OLRB Rep. May 449; Associated Hebrew Schools of Toronto, [1978] OLRB Rep. Sept. 797; Local 199 U.A. W. Building Corporation, [1977] OLRB Rep. July 472; Bauer Bros. Company, [1977] OLRB Rep. March 159; and Air Master of Canada Limited, [1973] OLRB Rep. Oct. 540.)
In support of his argument that the applicant does not have a "presence" in Ontario for collective bargaining, counsel referred the Board to A. H. Boulton, 52 CLLC ~1l7,035, in which the Board dismissed a certification application by a local union (of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America) situated in Detroit, Michigan, because it was not satisfied that the applicant subsisted in any true sense within the province of Ontario. The brief reasons for decision in that case were as follows:
"Application for certification. The applicant, a local union situated at Detroit, has, for approximately two years past, been enrolling members in southwestern Ontario and has received a number of certificates from the Board. During the course of the present proceedings, however, it has come to the notice of the Board for the first time that none of the me tubers of the executive of the applicant are either citizens of Canada or res dents of Ontario and that the affairs of the local are entirely controlled from Detroit, the applicant merely maintaining an office at Windsor and employing several organizers in the province.
Clearly, proof of the status required to secure rights under the Act is a condition precedent to their conferment by the Board. By necessary implication, that status must be status within the jurisdiction. That being so, an organization to be entitled to the status of a trade union under the Act, must be a trade union existent in Ontario.
We are not satisfied that the applicant subsists in any true sense within the province and have therefore concluded that it is not entitled to the certification requested. The application is dismissed."
Thus, the l3o~rd found in that case that the applicant, which was a local of an international trade union, lid not have trade union status in Ontario despite the fact that it maintained an office in Ontario, employed several organizers in the province, and had received a number of certificates from the Board.
- The Board commented upon the Boulton case, supra, as follows in Metal Corporation of Canada Limited, 55 CLLC ¶ 18.016, at page 1545:
"The trade union there was described by the Board in its decision as one in which 'the affairs of the local are entirely controlled from Detroit (emphasis added). The Board added, and in our opinion this finding constitutes the very foundation stone of the decision, that it was not satisfied that the applicant 'subsisted in any true sense within the province'. The principle there laid down must be confined to the special circumstances that came to the Board's attention in that case...
Counsel for the applicant candidly conceded that the Teamsters local in the Boulton case was in a stronger position in terms of "presence" in Ontario than the present applicant. However, he submitted that the Boulton case is bad law. He noted that the case has never been followed in the twenty-nine years since it was decided, and further submitted that it has been effectively overruled by the Ontario Court of Appeal in the CSAO National case, supra.
In The Toronto Blizzard Soccer Club, supra, the Board; in certifying The North American Soccer League Players Association, noted that the "applicant organization has established an office in Canada". However, there is no indication in the decision that the parties made any submissions to the Board as to whether an applicant must take steps such as opening a permanent Ontario office in order to establish a "presence" in Ontario if it is to be found to be a "trade union" within the meaning of section l(l)(n), nor is there anything in that decision which suggests that the applicant would have been found to lack status if it had not established an office in Ontario, or had merely obtained permission to use the Ontario offices of another trade union as often as necessary for organizational and administrative purposes.
In the CSAO National case, supra, the Board found that an applicant for certification was not a trade union because a certain class of members ("provisional members") were barred from holding office. In quashing the Board's decision, the Ontario Court of Appeal found that the Board had exceeded its jurisdiction by creating "an unjustified impediment to the right of the union to certification subject to satisfying the express conditions to certification provided by the statute" (per Jessup, J. A.; McGillivray, J. A., concurring). In his judgment (with which McGillivray, J. A., concurred), Arnup, J. A., found that the Board had given itself an enlarged jurisdiction not warranted by the Act by "creating a condition or qualification not expressed by the statutory definition [of "trade union"], and adding it to that definition".
It is firmly established that the Board can certify an international union which has its head office outside of Ontario (see Ford Motor Co. of Canada Ltd., 46 CLLC ¶16.401, and Metal Textile Corporation of Canada Limited, supra). Indeed, section l(l)(n) specifies that" 'trade union'.. .includes a provincial, national or international trade union.. .". There is nothing in the Act which either expressly or implicitly requires an international trade union to have a permanent office in Ontario or to have officers or representatives based in Ontario. Section 77(1) of the Act merely requires every trade union in the prescribed form giving the name and address of a person resident in Ontario who is authorized by the trade union to accept on its behalf service of process and notices under the Act. Far from requiring a substantial "presence" in Ontario, that provision amounts to a legislative recognition of the fact that the representatives of an international trade union may well be based in another jurisdiction where it might be difficult to effect service of process and notices of the Act. Accordingly, in view of the CSAO National case, the provisions of section l(l)(n) and the other provisions of the Act, the Board is not entitled to consider whether an entity which claims to have status as a trade union has established a "presence" in Ontario or "subsists in any true sense within the province"; the Board can only determine whether or not the applicant is a trade union as defined by the Act. Therefore, we agree with counsel for the applicant that the Boulton case cannot be considered to be authoritative with regard to the issue of trade union status.
Counsel for the intervener also questioned whether the applicant, according to its own powers as set forth in its constitution, has the power to operate in Canada. In support of his submission that operating in Canada is beyond the constitutional powers of the applicant, counsel noted that Section 1(b) of the objects clause (quoted above) refers to maintaining a "decent American standard of living". He further noted that the applicant (pursuant to Article I, Section 2) is affiliated with the American Federation of Labour - Congress of Industrial Organizations, but not with the Canadian Labour Congress or the Ontario Federation of Labour; that since all of the "districts" and "regions” specified in the constitution are in the United States, there is no "district” or "region" (and consequently, no "district council") for Ontario or for Waterloo; and that there is nothing in the constitution that gives the President of the applicant the power to authorize representatives of the applicant to organize or otherwise conduct the affairs of the applicant outside of the specified "districts" and "regions".
Although the geographical scope of the applicant's operations is not precisely set forth in the constitution, the document contains a number of indications that it is not limited to the United States. Article I, in stating that "the organization shall be known as the United Furniture Workers of America", also refers to it as "the International Union" (emphasis added). Similarly, the chief executive officer of the applicant is referred to as the "International President" (Articles XII and XVI). Article III describes the jurisdiction of the applicant as follows:
"The jurisdiction of the United Furniture Workers of America shall consist of all workers employed in or about the plants of manufacturers of furniture and kindred products; upholstered furniture; metal and plastic furniture; metal bedsteads, mattresses, bedding; bed springs and metal bed springs; all springs used by various branches of our industry; upholstered sleeping cars, day coaches, machine and hand tufted pads, hair, felt and jute products; cushions, canvas articles; curtains, draperies, bedspreads; lampshades; venetian blinds; burlap products; furniture slipcovers; sewars of all materials used in our industry; pianos, musical instruments, radio and phonograph cabinets; television cabinets; metal furniture; caskets, carriages and juvenile furniture; furniture novelties; shipping cases, rubberized pads used in our industry and veneer products; and all trades kindred to or allied to any of the above mentioned occupations."
Thus, the jurisdiction clause contains no geographical limitations. Similarly, the selection (pursuant to Article IV, Section 1) of the city in which the applicant's convention is to be held is not limited to selection of a city in the U.S. We agree with counsel for the applicant that the establishment of districts and regions is merely a matter of administration. It is only natural that administrative districts and regions would not be created in an area (such as Ontario) until they are necessitated by responsibilities such as collective bargaining and collective agreement administration.
There is nothing in the constitution which precludes the International President of the applicant from assigning an official of the applicant (such as Mr. Riger) to conduct organizational activities in Ontario. The broad scope of the powers of the International President is evident in the language of Article XVI (Section 1) which empowers him to "supervise and direct all activities of the International Union and its officers" (except where it would conflict with the duties of the Secretary-Treasurer of the four Vice-Presidents). Subject to appeal to the General Executive Board (and, in some cases, to an International Convention), the decision of the International President concerning the interpretation of the constitution is "binding as a law" (Article XVI, Section 3).
Moreover, it is doubtful that the Board has any jurisdiction to inquire into the scope of the powers of the International President or to determine whether he was acting within his constitutional powers in authorizing Mr. Riger to engage in organizational activities in Ontario. In general, the Board has no jurisdiction to inquire into or regulate the internal affairs of a trade union except where it has expressly been given such powers by the legislature (as, for example, in provisions such as sections 60, 60a, 73, 75, 76 and 76a, none of which is applicable in the circumstances of the present case). Thus, in Gold Crest Products Limited, [1973] OLRB Rep. Aug. 436, the Board found the applicant to be a trade union despite the existence of "an arguable point" as to the "constitutional correctness" of the appointment of a temporary committee by the membership to act pending election of a permanent committee. In so finding, the Board stated (at paragraph 4):
"The Board is primarily concerned with the constitution as a source of evidence of the existence of a viable organization and of evidence of the purpose and intent of the organization concerned so that the Board may be able to answer the question 'Is the applicant a trade union as defined by the Act?' (Re C.S.A.O National (Inc.) and Oakville Trafalgar Memorial Hospital Association (1972) 1972 CanLII 563 (ON CA), 2 OR. 498). Inquiries made as to the election of officers are made with a view only to aiding in the decision as to whether the organization is viable. In the present case, there is an arguable point as to whether the appointment of the temporary committee lies within the constitutional powers of what must be said to be a general meeting of the membership. It is quite clear, however, that the temporary committee is actively engaged in the activities of the organization carried on to date. The matter of the constitutionality of its appointment and actions is one of internal organization of concern to the membership, none of whom, insofar as the Board was advised, have challenged the propriety of the action."
It is clear from the evidence taken as a whole that the applicant is a viable organization of employees formed for purposes that include the regulation of relations between employers and employees; it has a written constitution which has been duly adopted and which sets out the procedure for electing officers and calling meetings, and it has officers elected in accordance with the constitution who can carry out its objects. Accordingly, having regard to all of the evidence before it, the Board finds that the applicant is a trade union within the meaning of section l(l)(n) of the Act.
It is unnecessary for the Board to address itself to this decision to the contention by counsel for the intervener that the application should be dismissed because (in his submission) there is no provision for merger in the constitution of the applicant. That argument does not relate to the preliminary issue of the applicant's trade union status, but rather relates to the issue of whether a merger, amalgamation or transfer of jurisdiction has occurred, which will be considered by the Board after it has heard evidence and argument on the merits at the continuation of hearing of this matter.
This matter is referred to the Registrar to be listed for continuation of hearing on April 30 and May 14, 1981, in accordance with the agreement of the parties.