[1983] OLRB Rep. September 1579
0800-83-R; 0801-83-R; 0840-83-R International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, Local 461, Applicant, v. Shaw Festival Theatre Foundation, Canada, Respondent, v. Employees, Objectors
BEFORE: George W. Adams, Q.C., Chairman, and Board Members F. S. Cooke and M. Eayrs.
APPEARANCES: T W G. Pratt, Nick Perehinchuk, John Vanidour and David Taylor for the applicant; P. Israel, D. Feldberg, J. E. Wilber and P. Reynolds for the respondent; and Janet Sheain, objector.
DECISION OF THE BOARD; September 20, 1983
These three applications for certification are consolidated in light of the applicant trade union's agreement that one instead of three bargaining units would be appropriate in the circumstances. This position was taken by the respondent employer from the outset of these matters.
The applicant was advised that it had not established its status before the Board in any previous proceedings and that it should be prepared to do so in the instant matter. Having regard to the evidence before us, we are satisfied the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act. Its charter was originally issued by its parent union in October of 1916. The parent's name is now the International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada (hereinafter referred to as "IATSE"). The local applicant's constitution and by-law were adopted most recently in 1979. It has a geographic jurisdiction covering "the Golden Horseshoe" area or the Niagara Peninsula. It has duly elected officers and conducts regular meetings according to its constitution and by-laws. It has a collective agreement with the respondent covering other employees.
The application pertains to the activities of Shaw Festival and the applicant asserts that it is entitled to the unit it seeks as a matter of law having regard to the mandatory language of section 6(3) of the Labour Relations Act dealing with "craft" bargaining units. The bargaining unit sought under this subsection is framed in terms of "all stage employees of the respondent employed at Niagara-on-the-Lake in the Province of Ontario save and except those covered by subsisting collective agreements, those employed in the Wardrobe Department and those exercising managerial functions and employed in a confidential capacity in matters relating to labour relations".
The classifications said by the employer to fall within the bargaining unit sought include wardrobe mistress, electrician, wig dresser, sound operator, crew hand, scenic artist, carpenter, and flyman. A clarity note would therefore be useful. However, the respondent employer claims that certain persons should be excluded from the bargaining unit by reason of exercising managerial functions and further submits that those employed in the Wardrobe Department ought to be included. This latter objection involves persons classified by the respondent as properties builder, tailor's first hand, tailor, furniture builder, jeweller, wig dresser, properties journeyman, dresser, cutter, seamstress, and properties buyer. In effect, the respondent challenges the craft basis to the application.
The respondent further asserts that the applicant has improperly admitted a number of employees into membership having regard to the applicant's requirements of residency and proficiency set out in its constitution. In the alternative, the respondent submits that the applicant's residency requirement is discriminatory and, because it violates the statute, the applicant cannot be certified. The respondent also challenges the applicant's membership evidence on the basis of an improper waiving of the normal membership fee and on the basis of a loan made to one of the bargaining unit employees. Finally, the respondent challenges the timing of the application on the basis that the respondent's activity is seasonal.
Nick Perehinchuk, Business Agent for the applicant local, testified that people usually go through an apprenticeship and because the Shaw Festival is only five or six months long the local had stipulated a two-year apprenticeship for certain skilled trades like carpenter or electrician unless the person was previously qualified. Where an apprenticeship is being served, tests are administered by the local and, indeed, may be administered to any applicant in order to assess qualifications. Mr. Perehinchuk testified that the object of an apprenticeship program was to permit the applicant to supply competent people to employers with whom it has collective bargaining relationships. Mr. Perehinchuk testified that with respect to the residency requirement, "New York" (the parent trade union) had approved all of the applications for membership relevant to this application save for one. Mr. Perehinchuk subsequently testified that he applied for and received a waiver of residency for this one particular individual. No waiver was sought for any other employee. Mr. Perehinchuk could not say whether the local had verified the term of residency stipulated by each applicant on her membership card. He further admitted that the applicant local did not test the bargaining unit employees seeking membership in order to assess their level of qualifications. He testified that the applicant relied on the fact that the respondent had hired these people to perform the work they were performing. On this basis the applicant assumed that all bargaining unit employees were qualified. Mr. Perehinchuk further testified that most of the applicants paid $25.00 on the signing of a membership card and have not yet paid the full initiation fee of $300.00. He agreed that the local had not formally altered the initiation fees or dues set out in its by-laws. He testified that he was doing something he had never done before, i.e. seeking certification for a group of people who "came to (him) for representation". Mr. John Vanidour, Secretary-Treasurer of the local, testified that the usual membership application form was employed in signing up bargaining unit employees. A number of the employees were "old members", having held cards for some time. Another group of employees were new members whose application cards had been processed "by New York" and issued cards. They, apparently, had paid $150.00 which is the applicant's apprenticeship initiation fee. Another group of applicants have paid only $25.00 and will not pay anymore until this Board releases their membership application forms so that they can be sent to the parent in New York State. The applicant held a special meeting on July 31st whereby it purported to accept such persons as full members. Mr. Vanidour testified that the applicant has never had anyone apply for membership who did not meet the residency requirement prior to this group of employees applying. On the membership evidence before the Board it is unclear whether any of the employees who have executed membership evidence failed to comply with the residency requirement as understood by IATSE other than the one employee for whom the applicant sought a waiver. This is because of the way the documents have been filled out. But, as we decide below, nothing turns on this ambiguity.
Mr. John W. Wilbur, Production Manager for the respondent, testified. He stated that most of the employees "come from outside" the applicant's geographic area of jurisdiction and that to the best of his knowledge at least 18 of them could not be considered to meet the residency requirement of 18 months. Mr. Joey Harkness also testified. He is now employed by the respondent as part of a set-up group and works within the bargaining unit claimed by the applicant. He testified that he was approached by the Secretary of the local trade union and asked if he would "put in an application". At the time he did not have $25.00, and was therefore loaned the money by the trade union official. He said he has to pay it back and that he intends to do so. He said he did not believe he was a member of the trade union yet.
Article III of the local's Constitution reads:
Article 111
Membership
Section 1 — Qualifications for Membership
Applicants for membership in this Local must be employed in the theatrical, television or moving picture industry in occupations within the jurisdiction of this Local or must be capable of obtaining such employment, and must possess sufficient experience and ability to pass a reasonable examination upon the particulars of their respective crafts.
Such applicants must be of good moral character and reputation and, unless waived by the International for proper cause upon application by the Local, must have been residents for at least eighteen months preceding their application within its jurisdiction. The applicants must also be of legal age to engage in gainful employment within the jurisdiction of this Local.
There shall be no discriminating against any person in respect to membership in this Local by reason of race, colour, creed, national origin, sex or age.
Section 2 — Application for Membership
Every application for membership must be made upon the official printed form supplied by the International to the Local.
The endorsement of the application by the General Secretary-Treasurer of the International must be obtained before any action is taken by the Local upon the admission of the applicant, and if endorsement is refused the applicant shall be rejected.
Each application blank must be accompanied by the initiation fee as stated in Section 4 of the By-Laws (to be returned if the application is rejected). Any applicant who is guilty of making false statements upon the application blank shall, if admitted to membership, be expelled upon conviction and shall be thereafter denied admission to membership in this Local. Any initiation fee paid by such members shall be forfeited upon expulsion.
Section 3 — Examination of Applicants
Applicants for membership may, if so decided by the Body, be required to pass satisfactory examination as to competency and qualifications. If required, such examination shall be before a Board of Examiners, consisting of or appointed by the Executive Board, and the examination shall be uniform for all applicants. The approval of the Board of Examiners is essential before further action is taken.
Section 4 — Balloting on Applicants
Having complied with all the requirements of the International and this Local~ the applicant may then be proposed for membership at a regular meeting of the Local. The applicants shall not be present when their names are proposed and open discussion shall be permitted. The members of the Local shall then proceed to ballot upon the applicants and a majority vote of the members present shall be required for the acceptance of the applicants.
Section 5 — Obligations of Membership After acceptance, new members shall pay to the Treasurer the current quarterly dues and assessments and take the pledge as dictated to them by the President of the Local.
Article X reads:
Article X
Altering or Amending the Constitution
Alterations or amendments to this Constitution shall be made in writing and have three readings at three consecutive regular meetings, at the last of which same must receive the favorable vote of at least two-thirds of the members present. No such alteration or amendment shall however, be effective until it is endorsed by the International President.
- Section 4 of the By-Laws provides:
Section 4 — Dues and Initiation Fee
The quarterly dues of this Local shall be twenty dollars ($20.00) payable in advance.
The initiation fee shall be three hundred dollars ($300.00) with two hundred dollars ($200.00) paid upon application for membership and the balance of one hundred dollars ($100.00) to be paid before the applicant can be taken into the Local and issued a membership card.
- Section 23 of the By-Laws provides:
Section 23 — Alteration of By-Laws
No portion of these laws may be suspended, but may be amended or altered by a resolution approved by a majority of the members present at the first meeting in January each year after the members have been properly notified. All changes must be approved by the International President before they can be implemented.
- We would first note that section 3 of Article 111 does not make examinations as to competency and qualifications mandatory. Accordingly, we see no reason why the applicant had to administer examinations or that its failure to examine applicant employees was fatal to the validity of the membership evidence filed with the Board. The respondent hired these employees and the applicant seeks to represent them. Because the employees have already been hired, any tests would be entirely redundant. The respondent also objects to the failure of many of the bargaining unit employees to pay the full $300.00 initiation fee. Section l(l)(l) defines a member when used with reference to a trade union to include 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 $1.00 in respect of initiation fees or monthly dues of the trade union
and "membership" has a corresponding meaning....
This provision of the statute is not subject to the terms of a constitution or by-laws of an applicant trade union. It is a provision which recognizes the nature of the organizing process and the procedural speed required by it. Both are very often out of tune with the formal constitutional procedures for admission into a trade union. To this extent, a trade union is able to take advantage of the minimum statutory membership requirements of the statute if it wishes. By its conduct, the applicant obviously was seeking to rely on the statute and not on the specific requirements of its constitution. This aspect of the respondent's objections must fail.
With respect to the residency requirement, we are also of the view that the respondent's objections cannot prevail. There is no evidence that anyone in the bargaining unit was denied membership in the applicant trade union by virtue of the requirement. We further note that while the Board has stated that a union must be capable of admitting into membership every employee in a bargaining unit, the courts have cautioned the Board's intervention in this general area. See Gaymer and Oultram 54 CLLC ¶17,073; and Central Hospital, [1982] OLRB Rep. Apr. 382 and compare CSAO National (Inc.) and Oakville Trafalgar Memorial Hospital Association, 1972 CanLII 563 (ON CA), [1972] 2 O.R. 498. At this time it is enough to observe that any concern over the future application of the residency requirement, particularly if there is an impact on an employee's job security, may be the subject of a complaint before this Board. We are also of the view that the residency requirement does not violate one of the prohibited grounds set out in section 13 of the Labour Relations Act. Finally, we are satisfied that the loan to Mr. Harkness was a bona fide transaction. The witness testified that he intends to repay the loan. See Skene Cartage Company, [1966] OLRB Rep. Apr. 30; and William H. Rorer, [1973] OLRB Rep. Sept. 483. Mr. Harness is therefore a member of the trade union for the purposes of this application by reason of section l(l)(p) of the Act.
Having regard to these findings the Board directs that this matter be relisted by the Registrar to deal with the issue of the appropriateness of the bargaining unit, the respondent's claim that the seasonal nature of the work makes the application untimely, and all other outstanding matters. The Board further directs and appoints a labour relations officer to forthwith confer with the parties and inquire into and report back to the Board with respect to the lists of employees filed by the respondent, the lost cards of the applicant, and the duties and responsibilities of those persons the respondent claims to exercise managerial functions. The inquiry into the lists and lost cards must be completed before the Board can assess the extent of trade union membership in the bargaining unit for the purposes of section 6(2) of the Labour Relations Act. Accordingly, these two matters should be dealt with by the officer first.
This matter is referred to the Registrar to be scheduled for hearing on all outstanding matters as described herein.