[1982] OLRB Rep. April 609
2291-81-R; 2292-81-R Utility Workers of Canada, Applicant, v. The Public Utilities Commision of the Borough of Scarborough, Respondent, v. International Brotherhood of Electrical Workers, Local 636, Intervener
BEFORE: R. D. Howe, Vice-Chairman, and Board Members J. A. Ronson and O. Hodges.
APPEARANCES: Chris G. Paliare and Gary Rainthorpe for the applicant; William Hutchison for the respondent; B. Fishbein, G. Whyte, L. Barr and W Moore for the intervener.
DECISION OF THE BOARD; April 21, 1982
- By decision dated February 22, 1982 in each of these applications for certification, the Board directed that a pre-hearing representation vote be taken in each application, that the ballot boxes be sealed pending further instructions from the Board, and that the matters be listed for hearing on the earliest possible date following the pre-hearing representation votes, for the purpose of allowing the applicant an opportunity to attempt to establish that it is a trade union within the meaning of section 1(1)(p) of the Act. As noted in those decisions, the applicant (the "U.W.C.") has not established its status as a trade union within the meaning of section 1(1)(p) of the Act in any prior proceedings before the Board. Accordingly, it is unable to rely upon section 105 of the Act which provides:
“Where in any proceeding under this Act the Board has found or finds that an organization of employees is a trade union within the meaning of clause 1(1)(p), such finding is prima facie evidence in any subsequent proceeding under this Act that the organization of employees is a trade union for the purposes of this Act.”
- The Board has indicated in a number of cases a series of steps which are generally sufficient to establish that a "trade union" has been brought into existence. Those steps were summarized as follow in Associated Hebrew Schools of Toronto [1978] OLRB Rep. Sept. 797, at paragraph 11:
“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.
The constitution should be placed before a meeting of employees for their approval either as originally crafted or as amended at the meeting.
The employees attending the meeting should be admitted into membership. In this regard it is well to keep in mind section 1(1)6) [now section 1(1)(1)] of the Act which defines a union member to include a person who has applied for membership in the union and on his own behalf paid to the union at least $1.00 in respect of initiation fees or monthly dues.
The constitution should be ratified by a vote of the members.
Officers should be elected pursuant to the constitution.”
(See also Comco Metal & Plastic Industries Ltd., [1979] OLRB Rep. June 498, and Local 199 U.A.W Building Corporation, [1977] OLRB Rep. July 472.)
- It is clear from the evidence adduced before the Board that the first two steps were fulfilled. A group of approximately ten employees of the respondent who were dissatisfied with the intervener met in July of 1981 to discuss the alternatives open to them. At least some of those persons have been actively involved in the affairs of the intervener for a number of years. After considering and rejecting various existing trade unions, the group spoke with counsel (Mr. Paliare) about the steps necessary to form a new trade union. They were referred to Mr. Paliare by Dave Butler, a former business manager of the intervener. With the assistance of counsel, a draft constitution was prepared and was placed before a meeting of employees for their aproval on January 24, 1982. That founding meeting was held at the home of one of the employees. After electing a pro tem chairman and a pro tem recording secretary, the employees reviewed the draft constitution and then unanimously approved it. The objects of the applicant are set forth in Article 2 of that document (hereinafter referred to as the "Constitution"):
“The objects of the Utility Workers of Canada are:
To organize all people employed both in the public and private sectors of utility industry in the Dominion of Canada.
To engage in collective Bargaining on behalf of the employees in bargaining units for which it has bargaining rights.
To promote reasonable methods and hours of work.
To cultivate feelings of friendship among those of our industry.
To settle all disputes between members.
To assist each other in sickness or distress.
To secure adequate pay for our work.
To seek a better standard of living.
To seek security for the membership.
And by legal and proper means to elevate the moral, intellectual and social conditions of our members, their families and dependents.”
Thus, the purposes of the applicant clearly include "the regulation of relations between employees and employers" within the meaning of section l(l)(p) of the Act which provides:
“1 (1) In this Act,
(p) '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 unions and a designated or certified employee bargaining agency.”
The Constitution also prescribes procedures for electing officers and calling meetings.
The eight employees in attendance at that meeting then each signed a combination application for membership in the U.W.C., and receipt. Each of them also paid a dollar on account of initiation fees in the U.W.C. The cards were duly countersigned by the collectors. At the hearing of this matter, counsel for the intervener contended that none of those persons had actually joined the applicant since (he submitted) the only way in which persons can become members of the applicant is through membership in a local. Thus, he argued that the applicant was not an "organization of employees" within the meaning of section 1(1)(p) since, in his submission, no employees had properly joined the applicant.
Article 14 of the Constitution provides:
“Admission of Members
Sec. 1. No L.U. [Local Union] can admit any applicant who formerly was a member of the U.W.C. [Utility Workers of Canada], or who was suspended or expelled by, or indebted to any L.U. without consent of the E.S. [Executive Secretary], and without first consulting the last L.U. of which the applicant was a member in regard to his character and record. The E.C. [Executive Council] shall decide any case in dispute.
Sec. 2. Each applicant for membership shall fill out an application blank furnished or approved by the E.S. and answer all questions.
Sec. 3. The acceptance of an application for membership, and the admission of the applicant into any L.U. of the U.W.C., constitutes a contract between the member, the L.U. and the U.W.C., and between such member and all other members of the U.W.C.
Sec. 4. An applicant for membership in the U.W.C. may be admitted into membership provided that he fulfils the following obligations:
'I …………………. in the presence of members of the Utility Workers of Canada do hereby solemnly promise and swear that I will uphold the fundamental principles, doctrines and philosophy upon which this Union is founded. I further promise and swear that I will discharge my duties as a member of the U.W.C. and that I will support its working agreements, bylaws and Constitution to the best of my abilities and not sacrifice its interest in any manner.”
Sec. 5. The obligation card signed by the applicant shall be sent to the L. U.
The L.U. shall have each applicant, except as provided in Sec. 9 of this article, take the obligation before a regular meeting, or if it so decides, this may be done outside the regular meeting in the presence of the president or the vice president or the recording secretary.
Sec. 6. Each applicant shall pay the admission fee fixed by the bylaws of the L.U. to which he applies, or such fee as approved by the E.C. Admission must be completed within ninety (90) days after application is made.
Sec. 7. The names of all applicants shall be read at a regular meeting of the L.U. The president shall appoint a committee to pass and report upon the applications, or the E. B. [Executive Board] may perform this function, as the L.U. may decide.
Sec. 8. Any worker or employee coming under the U.W.C.'s jurisdiction, and residing where there is no L.U., who can qualify according to this Constitution, may become a member by filling out a regular application and sending it to the L.U. having jurisdiction, and if accepted, he shall sign the obligation card send it to the L.U. [sic]
The E.S. may accept such an applicant directly if he feels there are good reasons for doing so.
Sec. 9. In the case of an organizing campaign requiring membership as a governmental regulation Sec. 7 of this Article may be waived by the E.B.”
Although Article 14 provides for membership in a local union of the U.W.C., membership in the U.W.C. itself, without membership in a local union, is also contemplated as evidenced by Section 4, which refers to an "applicant for membership in the U.W.C.", and Section 1, which refers to "a member of the U.W.C.". Moreover, Section 8 empowers the Executive Secretary of the U.W.C. to accept an applicant who resides where there is no local union, "directly", which we construe to mean "directly into membership in the U.W.C.". Other constitutional provisions which confirm that membership in the U.W.C. itself (as opposed to membership in a local union of the U.W.C.) was envisaged by the drafters of the Constitution include Article 4, Section 5 (which refers to "members of the utility Workers of Canada"); Article 17, Section 3 and Article 18, Section 1(19) (which refer to "membership in the U.W.C."); and Article 18, Section 3 (which refers to "a U.W.C. member" and "a member of the U.W.C."). Furthermore, acceptance of the argument raised on behalf of the intervener would lead to an absurdity. If the intervener's position is correct, there could not be any "members" before a local union had been chartered. Under Section 1 of Article 6, it is the duty of the Executive Secretary to receive all applications for charters for the establishment of local unions, and to sign and grant them when authorized by the Executive President. Therefore, no local union could be chartered until after an Executive President and an Executive Secretary had been elected. However, no Executive President or Executive Secretary could be elected until there were members to vote in such election. Thus, Article 4, Section 1 (set forth below), which prescribes that the "first election of officers … shall take place at the founding meeting of the U.W.C.", provides further support for the applicant's submission that employees can, and did, become members of the applicant directly without becoming members of a local.
Accordingly, on the basis of our reading of the Cosntitution as a whole in the light of the statutory backdrop of section 1(1)(1) of the Act (which provides that "'member', when used with reference to a trade union includes a person who, (i) has applied for membership in the trade union, and (ii) has paid to the trade union on his own behalf an amount of at least $1 in respect of initiation fees or monthly dues of the trade union"), the Board is satisfied on the evidence before it that each of the eight employees who were in attendance at the meeting in question, became members of the applicant at that time by completing the aforementioned combination applications and receipts, and paying one dollar each in respect of initiation fees.
After each of the eight employees had signed a membership card and paid one dollar in respect of initiation fees, they unanimously passed a motion "to approve the constitution as presented", thereby ratifying that document. Therefore, the Board finds that the applicant satisfied steps 1, 2, 3 and 4 as set forth in Associated Hebrew Schools of Toronto, supra.
It remains to determine whether officers were elected pursuant to the Constitution. Article 4 provides, in part, as follows:
“Sec. 1. The officers of the Utility Workers of Canada shall be the President, Vice President, Secretary, Treasurer and five (5) Executive Council Members. Except for the first election of officers, which shall take place at the founding meeting of the U.W.C. the officers shall be nominated and elected by duly elected delegates at the C. [convention].
They shall assume office thirty days after their election save and except the first election of officers who shall assume office immediately.
Officers elected pursuant to this Constitution shall serve for three (3) years or until their successors are elected and qualified save and except for the first election of officers who shall serve until the officers are elected at the first C.”
Gary Rainthorpe, who served as pro tem recording secretary at the founding meeting, testified that after the Constitution had been approved by a vote of the members, the members proceeded to elect officers. Mr. Rainthorpe was nominated and seconded as a candidate for the position of President. Since there were no other nominations for that position, Mr. Rainthorpe was acclaimed as President. Through a similar process, B. Hotchkin was acclaimed as Vice-President, D. Butler was acclaimed as Secretary, and D. English was acclaimed as Treasurer. No one was nominated, elected or acclaimed as an Executive Council Member. Thus, only four of the nine offices mentioned in Section 1 of Article 4, were filled. Mr. Rainthorpe testified that once the applicant has been certified, a convention will be called at which there will be "a total election" of President, Vice-President, Secretary, Treasurer and five Executive Council Members.
- In determining whether an organization is a trade union within the meaning of section 1(1 )(p) of the Act, one of the Board's primary concerns is whether the organization is viable. The importance of officers to the viability of an organization which seeks to regulate relations between employees and employers by obtaining bargaining rights and engaging in collective bargaining under the provisions of the Labour Relations Act, was described as follows in J. Harris & Sons Ltd., 60 CLLC ¶ 16,177:
“Whatever the status of a trade union may now be at common law (see International Brotherhood of Teamsters etc. Local2 13 v. Therien, 1960 CanLII 33 (SCC), [1960] S.C. R. 265), the Act, for at least some purposes thereof, clearly treats it as a legal entity separate and distinct from its membership. It may be a party to proceedings before the Board, it may bargain and negotiate for, and enter into collective agreements, and it may prosecute and be prosecuted. It would seem to follow, therefore, that a union's representatives are, at least insofar as some purposes of the Act are conerned, the representatives of the union as a juristic entity, and not merely the representatives of the individual members thereof.
How may a trade union under the legislation, perform its functions, achieve its purposes, or exercise its rights, or discharge its obligations unless it has duly authorized persons by and through whom it may act and be bound? Without officers or other duly authorized persons, the applicant, by its constitution, may only act and be bound through a general convention of members. In this respect its position is somewhat analogous to a corporation which may only act and be bound by and through its officers or agents or its shareholders at a general or special meeting. Without authorized persons to act on its behalf every act of the applicant would require the sanction of a general convention of members with all the procedural requirements entailed thereby. It is obvious that this would impose such a restriction on its activities that for all practical purposes it would be impossible for it to carry out the purposes of its constitution. It is precisely for this reason that the applicant's constitution provides for the election of officers of an Executive Committee to govern and administer its affairs. This constitution prescribes, by means of the Executive Committee, the medium and machinery through which it will administer the articles of its constitution and effectuate its purposes and objectives. It also amounts to a form of agreement between the organization and its membership which governs the rights and duties of its members and its officers in their relation to the organization and between themselves.
Further, it seems implicit in section 55 [now section 84] of the Act and the sections thereof which deal with collective bargaining and the rights, responsibilities and duties of trade unions, that a trade union will have responsible persons to act and make decisions on its behalf. In this regard section 55 provides, inter alia, that the Board... may direct any trade union... to file with the Board... a copy of its constitution and by-laws and a statutory declaration of its president or secretary setting forth the names and addresses of its officers.
In regard to notices, proceedings before the Board, collective bargaining, conciliation and arbitration, the Act clearly presupposes the existence of responsible representatives to act on behalf of the union. It is obvious also that in order to operate in accordance with its constitution and the legislation, a union must have persons responsible and accountable to the membership for the collection and expenditure of union funds.
It is significant to note that Harris J. of the New Brunswick Court of Appeal in The King v. The Labour Relations Board, CCH CANADIAN LABOUR LAW REPORTER, Transfer Binder (1949-54), ¶115,038 at p. 11,303 refers to a trade union 'in the ordinary sense' as ‘a body with a charter and construction with properly elected officers.’
The Board cannot subscribe to the argument that the question whether the organization has or has not elected offices is a mere matter of internal management extraneous to the issue of status as a trade union.”
In that case, persons present at a "general meeting" on August 11, 1959, purported to elect officers. However, the applicant's constitution was not adopted until November 11, 1959. The Board ruled that the purported election of officers to the applicant organization before the adoption of its continuation was premature. It further held that since no officers had been elected after the adoption of the constitution, the applicant had "no officers elected in accordance with its constitution". Consequently, the Board found that the applicant had failed to prove its status as a trade union under the Act. (See also University of Ottawa, [1981] OLRB Rep. Feb. 232; National Steel Car Corporation Limited, [1979] OLRB Rep. June 542; and Canada Trustco Mortgage Company, [1976] OLRB Rep. Oct. 596.)
- Evidence concerning the election of officers is of concern to the Board only insofar as it assists the Board in determining whether the organization is viable. In Gold Crest Products Limited, [1973] OLRB Rep. Aug. 436, the constitution of the applicant provided for the election of an Executive Committee composed of a President, a Vice-President, a Secretary-Treasurer, and three members at large. The evidence in that case indicated that the membership had "appointed a temporary committee to act pending election of a permanent committee". In rejecting the argument that the failure to elect a permanent committee in accordance with the constitution precluded a finding of trade union status, the Board wrote:
“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.A.S.O. National (Inc) and Oakville Trafalgar Memorial Hospital Association, 1972 OR. Vol. 2, 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 that propriety of the action.
- The Board therefore finds, upon all of the evidence, that the applicant is a trade union within the meaning of the Act.”
The Board subsequently declined to vary or revoke that decision: See Gold Crest Products Limited, [1973] OLRB Rep. Sept. 469. In so doing, the Board drew the attention of the parties "to the reference made in the Harris case (supra) to alternative test of viablity, i.e. the presence of officers elected in accordance with a constitution or otherwise authorized persons". (An application for judicial review of the Gold Crest decision was dismissed by Divisional Court on December 6, 1973 in an unreported decision in which the Court held that the Board "had jurisdiction" and "did not lose jurisdiction by reason of their decision" in the matter.)
Another example of the somewhat flexible approach which the Board has adopted concerning such matters is provided by the Board's decision in Economical Mutual Insurance Company, [1972] OLRB Rep. Feb. 176, in which the Board found a local chartered by the Canadian Labour Congress to be a viable entity that was a trade union within the meaning of the Act where there had been "substantial compliance with the requirements of the Constitution and By-laws" through the election of a president, vice-president, recording secretary, conductor, warden, and bargaining committee, despite the fact that three trustees had not been elected at the first meeting of the local, as contemplated by the by-laws. (An application for judicial review of that decision was dismissed without written reasons on June 30, 1972.)
In determining whether the applicant in the present case is a viable organization which qualifies as a trade uinion within the meaning of the Act, despite the fact that five Executive Council Members have not yet been elected, the Board has considered the functions of the various officers of the applicant as set forth in the Constitution. The functions of the President (who is also referred to in the Constitution as the "E.P.", i.e., the "Executive President") are described as follows in Article 5:
“Sec. 1. He shall preside at all sessions of the E.C. [Executive Council]. When unable to preside he shall select someone else in the absence of the V.P. to do so. He shall perform such other duties as are outlined in this Constitution and are necessary to protect and advance the U.W.C.
Sec. 2. The E.P. shall see that all other officers perform their duties. In case of non-performances of duties or disability or incompetence of any officer the E.P. has power to remove such officer, with such removed officer having the right to appeal to the E.C. He shall fill all vacancies, including those on the E.C. by appointment. Such appointments must be approved by the E.C.
Sec. 3. The E.P. is empowered as follows:
(1) To call a meeting of the E.C. whenever in his judgment such a meeting is necessary.
(2) To decide all questions of law, disputes or questions in controversy however arising, all his decisions being subject to appeal, including policy decisions, first to the E.C. and then the C. (Notice in writing of appeal from any decision of the E.P. must be filed with the E.S. and E.P. within thirty (30) days from date of such decision).
(3) To establish such departments in the organization as in his judgment are necessary to protect or advance the interests, or to meet the needs of the U.W.C.
(4) To employ an attorney or attorneys to act as counsel and give any other legal assistance, as the E.C. deems necessary.
(5) To audit the books and records of any L.U. or to engage an accountant for the purpose, whenever the E.C. deems such action necessary for the protection of the L.U. and its members.
(6) To prefer charges through the E.S. [Executive Secretary] against any member who, in his judgment, is violating the Constitution or working against the welfare of the U.W.C. Any member against whom charges are preferred shall be so notified by the E.P. in writing, and said member shall have the right to appear before the E.C. in his own defense.
(7) Either to suspend or revoke the charter of any L.U. that fails or refuses to observe the laws and rules of the U.W.C. with the concurrence of the EC.
(8) To take charge of the affairs of any L.U. when in his judgment such is necessary to protect or advance the interests of its members and the U.W.C. but for a period not to exceed six (6) months. If the E.P. or his representative cannot or has not adjusted the affairs of the L.U. involved at the end of this period, then he shall refer the entire case to the E.C. which shall render a decision at its next regular meeting. The E.P. may suspend any local officer or member who offers interference in such cases.
(9) To remove or suspend any L.U. officer, representative, appointee or agent, except for L. U. B / M, for incompetence or for non-performance of duties, or for failure to carry out the provisions of the Constitution and the rules herein, or the bylaws and agreements of the L.U. or for putting into effect or allowing to be put into effect any practice, rule, agreement, bylaw or policy not having approval of the E.C., or for failure to observe or carry out instructions or decisions of the EP. When the E.P. suspends or removes any officer, representative, appointee or agent he can fill any such office or position by appointment of others, but the E.C. must approve of the E.P.’s action within ninety (90) days.
(10) To appoint, if he so decides, an appointee who may or may not be member, to take testimony and report to him.
(11) To enter into, or authorize a representative to enter into, agreements with any national or international labour organization or association of employers, or with any company, corporation or firm, or inter-provincial business to cover the entire jurisdiction of the U.W.C.
(12) The E.P. or his representatives shall not enter into agreements affecting wages, hours and conditions of employment where local union agreement, covering such employment already exists, without first notifying at least thirty (30) days in advance of such agreements, the local unions so concerned or affected, and then only by procuring consent of a majority of the local unions or the individual local union affected by this agreement.
Sec. 4. The E.P. can, in any situation, delegate the powers of his office to the EC.
Sec. 5. Nothing in this Constitution shall be construed to conflict with any of the provisions of this article'
Under Section 6 of Article 18, the President is required to "pass upon and determine all charges against any officer or representative of a local union" (subject to a right of appeal to the Executive Council). He also has the power to reopen any case or cases where there is new evidence or testimony, facts or circumstances which he feels are sufficient to justify such being done (Article 18, Section 8). He is also empowered to authorize charters to be granted for the establishment of local unions (see Article 6, section 1, infra).
- Article 6 specifies the functions of the Secretary (who is also referred to in the Constitution as the "E.S.", i.e., the "Executive Secretary"):
“Sec. 1. The duties of the E.S. shall be:
To keep correct records of the proceedings of the E.C. and preserve all important papers of U.W.C. business; to deposit all funds in a bank or banks approved by the E.C. in the name of the U.W.C. subject to the joint signatures of two of the following three officers - E.P., E.S., E.T. [Executive Treasurer].
To pay all bills and claims legally due, and any disputed item when directed by the E.P., and no item when directed not to do so.
To keep a general roll of all members with the name, number of card and date of admission, together with those suspended, expelled, transferred, etc., and also to keep a correct financial account between each L.U. and the U.W.C.
To receive all applications for charters of the establishment of L.U.s, sign and grant them when authorized by the E.P., and retain charge of the seal of the U.W.C. and affix same to all official documents.
To receive all petitions for referenda or other votes, and to mail out the same with ballots when approved by the E.C., and to prepare for publication the results of all votes and all questions submitted to the E.C.
To prepare for publication each year, U.W.C. audit by the certified public accountant employed by the E.C.
To publish when necessary a correct directory of all L.U.s with names and addresses of all officers.
Sec. 2. The E.S. shall fifteen days prior to the month in which the C. convenes, furnish to the EC. a correct record of the convention vote to which each L.U. is entitled.
Sec. 3. The E.S. and the E.C. are jointly empowered to make any investment of U.W.C. funds and to manage, change, exchange and sell any such investments and to make reinvestments and to borrow money - this power also includes the purchase, transfer, lease or sale of real estate.
Sec. 4. The E.S. shall perform such other duties as are prescribed by this Constitution."
Moreover, as noted above, Section 8 of Article 14 empowers the Secretary to accept an applicant "directly" who resides where there is no local union, if the Secretary "feels there are good reasons for doing so".
- Article 7 provides:
“Executive Treasurer
Sec. I. All withdrawals of money shall be subject to the joint signatures of two of the following three officers –
Executive President
Executive Secretary
Executive Treasurer”
- It appears that the Executive Council may be unable to transact business until such time as the five Executive Council Members referred to in Section 1 of Article 4 have been elected. Thus, the Board has also given consideration to the functions of that body in order to determine whether the applicant is a viable organization notwithstanding the failure ot elect persons to those five positions. The pertinent constitutional provision in this regard is Article 8:
“Executive Council
Sec. 1. It shall be the duty of the E.C. to meet when necessary, to determine all proposed Constitutional amendments submitted for referendum vote and to attend to all business properly brought before it.
Sec. 2. The members of the E.C. may vote and transact business by correspondence with the E.S. and each other, but three members must concure to make such action valid.
Sec. 3. The E.C. shall be the committee on rules and credentials at all regular or special conventions and shall submit its report as such immediately after the convention opens.
Sec. 4. The E.C. shall have the power to try any L.U. or member charged with injuring the interests of the U.W.C. by actions in violation of the U.W.C. laws or the obligation of the member, and may revoke or suspend any charter or membership. (Nothing in this Constitution shall be construed to conflict with this power of the E.C.)
Sec. 5. When an appeal from any decision of the E.P. is made to the E.C. then the E.C. shall render a decision at its next regular meeting. However, the E.C. may, when it feels such is practical, act on an appeal by correspondence.
Sec. 6. It may suspend or revoke the charter of any L.U. that fails or refuses to observe the laws and rules of the U.W.C. or decisions rendered by proper U.W.C. authority.
Sec. 7. To take charge of the affairs of any L.U. when in its judgment such is necessary to protect or advance the interests of its members and the U.W.C., and to recommend suspension of any local officer or member who offers interference in such cases.
Sec. 8. If at any time the E.C. deems a new law necessary, it shall recommend a clause or clauses for the L.U.s to vote upon, and should a majority vote support the recommendation, it shall become a law.
Sec. 9. In case of a vacancy in the office of the E.P., the E.C. shall immediately convene and elect a successor to fill the office for the unexpired term.
Sec. 10. The minutes and report of each E.C. meeting shall be published in full at large.”
The Executive Council also has power to change the date on which a convention is to convene (Article 3, Section 2); to receive petitions calling for a referendum of the question of holding a special convention (Article 3, Section 3); to elect delegates to conventions of the Canadian Labour Congress, Ontario Federation of Labour, local labour councils, and any other conventions at which the U.W.C. may be entitled to representation (Article 3, Section 9); to approve purposes (in addition to those specified in the Constitution) for which the funds and property of a local union may be used (Article 13, Sections Sand 6); to waive "in the case of an organizing campaign requiring membership as a governmental regulation" the requirements (under Section 7 of Article 14) that the names of all applicants (for membership in a local union) be read at a regular meeting of that local union and that the applications be passed and reported upon by a committee or by the Executive Board (Article 14, Section 9); and to act as a Trial Board to hear charges and try members for alleged violations of the Constitution, bylaws and working rules of the local union (Article 18, Section 1(b)). It also has some responsibilities concerning constitutional amendments.
Also of some relevance to the Board's determination is evidence concerning the steps which the four existing officers of the applicant have taken to pursue the applicant's objects. The evidence establishes that the existing officers have held two major organizational meetings for employees in the bargaining units for which the intervener currently holds bargaining rights. As a result of those meetings, which were attended by the applicant's counsel, and also by a representative of the Ontario Federation of Labour and by a representative of the Canadian Labour Congress, the applicant has filed with the Board a total of 337 membership cards in support of the instant certification applications, 334 of which correspond to names of employees on the employer's lists, which indicate that there were a total of 390 employees in the two bargaining units on the date of these applications. Thus, it is clear from the evidence that the existing officers have taken active steps to pursue the applicant's organizational objectives with a view to displacing the intervener as a bargaining agent for the employees of the respondent in those bargaining units. Moreover, as in the Gold Crest Products case, supra, there is no evidence that any of the members of the applicant have challenged the constitutionality of the acclamation of the applicant's officers at the founding meeting, or the constitutionality of those four officers governing and administering the affairs of the applicant until such time as the first convention is held.
Although this case falls close to the line, having regard to the substantial powers vested in the President, Vice-President, Secretary and Treasurer by the Constitution, and having regard to the effective manner in which those existing four officers, who were placed in office in accordance with the Constitution and who are the four highest ranking officers contemplated by the Constitution, have governed the affairs of the applicant to date, the Board is satisfied that the acclamation of those four persons to guide and control the activities of the applicant until such time as a full complement of officers is elected at the applicant's first convention, is sufficient, together with the other steps that have been taken to bring the applicant into existence, to make the applicant a viable organization which qualifies as a trade union under the Act.
For the foregoing reasons, the Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act.
The Registrar is directed to list this matter for continuation of hearing on May 26, 27, and 31.