[1983] OLRB Rep. July 1082
0115-83-R International Association of Machinists and Aerospace Workers, Applicant, v. Jaeger Machine Company of Canada Ltd., Respondent, v. Jaeger Employees' Union, Predecessor Trade Union, v. D. Moyes, Objector
BEFORE: Corinne F. Murray, Vice-Chairman, and Board Members J. Wilson and C. A. Ballentine.
APPEARANCES: William K. Fraser for the applicant, T A. Crossmau. R. W MeBain amid George F. Clarke for the respondent: Jim Donnelly and Keith Pogue for the predecessor trade union, Douglas Moves on his own behalf
DECISION OF THE BOARD; July 8, 1983
This is an application pursuant to section 62 of the Labour Relations Act in which the applicant claims it has acquired the rights, privileges and duties of the Jaeger Employees' Union ("JEU"), the alleged predecessor trade union, and seeks a declaration to this effect.
The essential facts relevant to the Board's determination in this matter were undisputed. Jim Donnelly, President of the JEU, testified as to the predecessor trade union and the steps followed to have the applicant become its successor. The JEU has been recognized by the respondent as the bargaining agent for the employees in the following unit:
All hourly paid employees of the Company save and except inspection staff, foremen, persons above the rank of foreman, plant engineers, office staff, watchman, janitors, guards and students"
since approximately 1967. Mr. Donnelly, who was an official of the JEU at the time, claimed it was certified in approximately 1968 or 1969 after the first collective agreement had been concluded (and recognition granted). No certificate was produced at the hearing and the respondent did not give any evidence or make any argument disputing this history. The JEU and the respondent are currently bound by a collective agreement, the term of which is from January 12, 1983 until January II, 1984. There have been a total of seven or eight collective agreements between the JEU and the respondent.
- At a JEU meeting on January 16, 1983, a motion was made "to look into getting an International Union". This motion was carried. As a result of this, Mr. Donnelly made his investigation and reported back to the membership at a February 19th meeting. He had found out from an official of the applicant what steps the JEU had to follow to obtain the applicant as the successor union. The first such step was taken at the February 19th meeting, i.e., the tabling of a motion amending Article 2, paragraph 4 of the Constitution of the JEU to insert the following provision regarding mergers, amalgamations or affiliations with another union. The full text of the motion as recorded in the minutes is as follows:
- It is hereby moved that Article 2 (object) of the Constitution Jaeger Employee's Union be amended by adding a new paragraph (4) which reads:
The Union may, at a general meeting of the membership, on a vote of Majority of the members of the Union in attendance, merge, amalgamate or affiliate with any other trade Union or Council of trade unions and may authorize its Officers to take all necessary steps to effect such merge, amalgamation, or affiliation.
This motion was carried by those at the meeting but a further step was necessary in view of Article 7 of the JEU Constitution. Article 7 states:
- Amendment to Constitution
Amendments to this constitution may be made at any regular or special meeting provided notice of intention to act so is given at the same time the notice to act is given at the same time the notice of the meeting is given, at which the amendment is to be voted upon.
Pursuant to the procedures set out in Article 7, a written notice of a meeting to be held on March 6,1983 was posted at the work place (the JEU's normal procedure for notifying its members) which notice included the full text of the motion proposed at the February 19, 1983 meeting.
- At the March 6th meeting a secret vote was held regarding the motion to amend the constitution. The result of the vote was unanimous acceptance. At the same meeting the next step toward merger was taken. A motion was proposed that the JEU merge with the applicant. The form of the motion was as follows:
It is hereby moved that the Jaeger Employees Union merge with the International Association of Machinist and that the Officers of the Jaeger Employees Union are authorized to take all necessary steps to effect such merger.
A written notice of a meeting to be held on March 20, 1983 to vote upon such motion, (the full text of which was on the notice) was hand-delivered to all the members of the JEU by Keith Pogue, Treasurer of the JEU. Each member (except one) signed their name in the presence of Mr. Pogue to indicate acknowledgement of having been notified by delivery of the written notice. One employee refused to accept the notice and refused to sign.
At the March 20th meeting the members attending voted by secret ballot on the proposed motion. All except one voted in favour of it. Following this Mr. Donnelly telephoned Don Bate, Business Representative for District 184 of the applicant, and advised him that the motion had passed. Mr. Donnelly asked Mr. Bate to proceed with the steps he had to take to accomplish the merger.
As a result, William K. Fraser, International Representative, wrote to Mike Rygus, General Vice-President in Canada for the applicant, requesting permission to proceed with the merger as a result of the motion having been passed by the membership at its March 20th meeting. By letter dated April 8, 1983, Mr. Rygus approved the merger and authorized Mr. Fraser to proceed with its implementation in accordance with the Labour Relations Act. A copy of a Resolution of the Executive Council of the applicant dated November II, 1976, indicates that the General Vice-President in Canada is authorized to give such approval. The instant application was mailed on April IS, 1983.
Douglas Moyes, an employee of the respondent and member of the JUL throughout the period between January 16, 1983 and April 15, 1983, appeared before us and gave evidence. His position was that the merger should not be permitted by this Board. He indicated that he had no allegations that what either Mr. Donnelly or Mr. Pogue said was untrue. He confirmed that what Mr. Donnelly had said about the meetings was "basically" true. He had attended all the meetings mentioned above except the one on February 19th. He had voted in favour of the motion to amend the Constitution passed at the March 6th meeting and had voted against the motion to merge with the applicant at the March 20th meeting. His complaint was that there had been a misunderstanding on his part as to the effect of the March 6th motion. He thought that it was to allow Mr. Donnelly to look further into affiliation and he voted for the motion on that understanding. He believed this notwithstanding the fact that a second motion was tabled at the same meeting where a concrete proposal for the merger with the applicant was made. Mr. Moyes said he decided not to argue the second motion at that stage, preferring to wait for the vote on it. He had been at the January 16th meeting where the original motion authorizing Mr. Donnelly to "look into" the possibility of affiliation was carried. He claims after that he had been expecting that a representative from the proposed union would speak to the members at some point. He was absent from the February 16, 1983 meeting during which Mr. Donnelly reported back to the membership the result of his investigation and the motion was tabled to amend the constitution. It appears that Mr. Moyes missed the meeting which would have been equivalent to his receiving the information from a union representative. Be that as it may, subsequently, the members were notified as to the nature of the motions to be voted upon. These were both described in writing and the culminating one hand-delivered to the membership. Mr. Moycs exercised his right to vote against it and other members notified could have done the same. All the other members in attendance at the March 20th meeting voted for merger with the applicant.
The respondent raised the issue of whether all the members of the JEL had a genuine opportunity to vote in view of the fact that March 20th was a Sunday and the meeting was convened at 11 a.m. Mr. Donnelly, in response to questions by counsel for the respondent, indicated that meetings of the JEU are not "regular" and are convened when there is specific "business" to be dealt with. The attendance varies — the highest being around negotiations. Mr. Donnelly indicated the JEU always had its meetings on Sundays at 11 a.m. and that this was the time over the years that seemed best for everyone. He also indicated he had never had any complaints about this meeting time. The respondent also pointed out that for the March 20th meeting only 10 employee/members attended whereas there were a total of 22 members according to Keith Pogue's evidence. On this basis and in view of Mr. Moyes' concerns, which the respondent felt may have been reflective of some of the 12 members not in attendance, the respondent submitted that a vote ought to be conducted by the Board so that harmony within the unit could be assured.
Other relevant Articles of the JEU constitution are Article 4 and By-laws 3, 4, 13(a). Ic). Id). le) and If) which provide:
ARTICLE 4. MEMBERSHIP
Any employee within the classification represented by this organization shall be eligible for membership therein, and may continue to be a member so long as he is employed by the Jaeger Machine Company of Canada, Ltd., St. Thomas Plants, in a classification represented by this organization.
BY-LAWS
- QUORUM AND MEETING
A majority of the slate of officers shall form a quorum for the transaction of business. No formal notice of any meeting shall be necessary and notice thereof may be given either personally, by telephone, or by any other means and, except in cm of emergency, not less than one day before meeting is to take place. The Officers may consider any business, either special or general, at any meeting of the membership.
- VOTING
Questions arising at any meeting of the Officers shall, be decided by a majority of votes. In cm of an equality of votes, the president, in addition to his original vote, shall have a second or casting vote.
- MEETINGS OF MEMBERS
(a) Regular meetings of members shall be held at such time as the officers may determine.
(c) Notice of all regular or special meetings of members shall be given to all members at any time but no meeting shall be considered invalid by reason of any member not receiving such notice. Posted Notices may be used.
(d) A quorum for the transaction of any business of any meeting of members will consist of not less than eight (8) members present in person.
(e) At all meetings of members. each member shall be entitled to one vote on any one question and no member shall be allowed to vote by proxy.
(f) At all meetings of members, every question shall be decided by a majority of the votes of the members present in person. Such votes will be by a show of hands, or, if requested, a poll may be demanded by any member. In case of an equality of votes at any general meeting of members, the President shall be entitled to a casting vote.
We are satisfied that the requirement of the constitution and by-laws were met. There was no evidence or argument presented to us that they were not.
The Board's chief concern in an application under section 62 is that the predecessor s constitutional provisions for a merger have been followed. Where there are no such constitutional provisions, the Board has required unanimous approval of the merger by the membership (see Zehrs Markets Division of Zehrmart Limited. [1977] OLRB Rep. Oct. 63 for a review of the Board's jurisprudence). That concern has been satisfied. Mr. Moyes’ complaints do not amount to a substantive challenge to the procedures the JEU followed. These procedures gave him and all the other members the chance to vote on the proposed merger. Ten attended to vote, twelve did not. The amendment to the constitution, also voted upon in the normal course by the members. specified that a majority vote of members in attendance is sufficient to carry a merger motion. Nine of the 10 who attended carried the motion. Mr. Moyes' ballot was the only cast against the merger motion. Nothing has been shown by Mr. Moyes to have been wrong in all of this, therefore his submission that the Board not grant the requested declaration must be rejected.
The respondent made a strong argument that it was seriously concerned that me fulfillment of the constitutionally required procedures does not necessarily satisfy the necessity that there be an expression of the true wishes of the membership regarding the merger. The Board should be concerned about what their true wishes are. The respondent argued that the evidence in that respect is deficient and the Board ought to order a representation vote pursuant to section 62(2) to allow the expression once and for all of those wishes and to clear up any ~misunderstandings" (which could be similar to Mr. Moyes').
We have decided that a representation vote ought not to be ordered. There has been nothing led in evidence from which we could conclude there was widespread misunderstanding among the members similar to Mr. Moyes' and which caused the attendance at the meeting of March 20th to have been what it was. We are also not convinced from anything put in evidence by Mr. Moyes that there has been any interference with the expression of the members' true wishes regarding the merger. Essentially, the Board looks upon a merger by trade unions as an internal procedure, subject to the overriding supervision of the Board. Section 62 allows the Board to make a declaration that the procedures have been properly followed to effect such merger. While at one time the Board required that a merger should be approved by a majority of employees in the bargaining unit regardless of internal procedures, the Board has subsequently recognized that constitutional provisions, if any, should prevail and only if there are no such provisions should the Board require unanimous approval. This approach is reflective of the Board's determination that the members are the best judges of what should be necessary to effect a merger with another union. On this basis the Board is unwilling in the instant application to second-guess the judgement of the members who received notice in the normal course for the meeting which amended the Constitution and who ultimately received personal written notice of the culminating membership meeting called to vote on the proposed merger. It is certainly not clear that the members who did not attend both these meetings would have opposed each motion. It is equally possible to conclude the members not in attendance favoured the motions and deemed it unnecessary for them to attend in view of the support each motion had from members who were planning to attend and vote. Therefore, we are not able to conclude from the evidence that the result of all the steps taken by the JEU was not reflective of the true wishes of the membership and the respondent's request is denied.
Therefore, the Board hereby declares that the applicant has acquired the rights, privileges and duties under this Act possessed by the JEU.