United Food and Commercial Workers Union v. Waterloo Spinning Mills Ltd., 1984 CanLII 945

[1984] OLRB Rep. March 542

1418-83-R; 1419-83-R; 1420-83-R; 1421-83-R; 1422-83-R; 1466-83-R; 1467-83-R United Food and Commercial Workers Union, Applicant, v. Waterloo Spinning Mills Ltd., espondent; United Food and Commercial Workers Union, Applicant, v. Stru­dex Fibres Ltd., Respondent; United Food and Commercial Workers Union, Appli­cant, v. Chrome Print, Respondent; United Food and Commercial Workers Union, Applicant, v. Kraus Carpet Mills Ltd., Respondent; United Food and Commercial Workers Union, Applicant, v. Varichrome Yarns, Respondent; Allen Steckly, Com­plainant, v. Kraus Carpet Employees Association, Respondent; Allen Steckly, Appli­cant, v. United Food & Commercial Workers Union CLC-AFL-CIO, Respondent

BEFORE: R. O. MacDowell, Vice-Chairman, and Board Members I. Stamp and S. Cooke.

APPEARANCES: Beth Symes, Abe Peters, Joseph MacNeil and Cliff Evans for the United Food and Commercial Workers Union and Kraus Carpet Employees Association; R. C. Filion, Q. C., and F Guthier for the respondent companies; T S. Kelleher for Allen Steckly

DECISION OF THE BOARD; March 26, 1984

I

1. These are a series of applications under section 62 of the Labour Relations Act which were heard together with a related section 89 complaint. The applicant union ("the UFCW") claims that it is the successor of the Kraus Carpet Employees Association ("the Association") by reason of a merger with the latter organization. The respondent employers contend that the Association had no power to merge and, in the alternative, that the steps taken were insufficient to effect a merger. The complainant, Allen Steckiy, asserts that the merger process involved a breach of section 68, the duty of fair representation. For reasons which will shortly become apparent, the Association, as such, took no part in these pro­ceedings. Sections 62 and 68 read as follows:

2. -(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.

(2) Before issuing a declaration under subsection (1), the Board may make such inquiry, require the production of such evidence or hold such representation votes as it considers appropriate.

(3) Where the Board makes an affirmative declaration under subsection (I), the successor shall for the purposes of this Act be conclusively pre­sumed to have acquired the rights, privileges and duties of its predeces­sor, whether under a collective agreement or otherwise, and the employer, the successor and the employees concerned shall recognize such status in all respects.

68. A trade union or council of trade unions, so long as it continues to be entitled to represent employees in a bargaining unit, shall not act in a manner that is arbitrary, discriminatory or in bad faith in the rep­resentation of any of the employees in the unit, whether or not members of the trade union or of any constituent union of the council of trade unions, as the case may be.

69. The UFCW is an International union with a wide Canadian membership. It is one of the largest unions in Ontario, representing employees in a variety of industries. Its historical roots were in the food industry, but it now bargains for such diverse groups as pharmacists, retail clerks, and employees in a funeral parlor. It represents the employees of at least one other carpet mill. The UFCW is itself the result of the merger, over the years, of several unions representing employees in various sectors of the economy.

70. The separate corporate identity of some of the respondents is a little misleading. They are all engaged in related activities under common control, and all but Waterloo Spin­ning operate from the same premises in Waterloo, Ontario. Waterloo Spinning has its own premises about two miles away. The Board was advised that Kraus Carpet Mills Ltd. is di­vided into two divisions: Chrome Print and Varichrome Yarns. For ease of reference, the re­lated employer respondents in these separate applications will be referred to simply as "the employers".

71. The Association is the bargaining agent for the employees of these related entities. There are five separate collective agreements: one each for Kraus, Strudex, Waterloo Spin­ning, Chrome Print, and Varichrome Yarns. At the time of the purported merger, there were 445 employees who were bound by these agreements and were members of the Association.

72. Except for Varichrome Yarns, where the Association was voluntarily recognized, bargaining rights were initially based upon certificates issued by this Board. The first certif­icate was issued on August 3, 1972 in respect of the employees of Kraus Carpet Mills Ltd. That presumably explains the Association's name and certain provisions in its constitution to which we will refer below.

73. Before turning to the application of section 62, it is necessary to sketch in some of the events preceding the purported merger between the Association and the UFCW. As it turned out, much of the evidence was not substantially in dispute.

II

7. As early as the spring of 1983, the elected officers of the Association began to con­sider merger or affiliation with a larger trade union organization in order to enhance the As­sociation's bargaining power, and the quality of service which it could provide to its members. Discussions were opened with a representative of the UFCW and when those discussions proved fruitful, the Association called upon its solicitors for assistance in negotiating the terms of merger. By mid-summer, those terms were finalized and the executive and their solicitors began to take the steps considered necessary to effect the proposed merger with the UFCW. On or about August 19, 1983, each member of the Association was mailed the following notice:

NOTICE TO ALL EMPLOYEES

AUGUST 19, 1983

The Executive of the Kraus Carpets Employees Association hereby gives notice in writing to all employees that a meeting of the Association will take place on:

Thursday, September 10, 1983

In Waterloo

At 1:00 P.M.

In The Ballroom

Of The Waterloo Motor Inn

in order to permit the members of the Association to discuss and vote to amend the Constitution of the Association to permit a merger with the United Food and Commercial Workers Union.

A copy of the agreement between the United Food and Commercial Workers Union and the Kraus Carpets Employees Association which sets forth the terms of the merger is attached to this notice.

This is a very important meeting which will chart the future of your Association for the next few years. It is important that you attend, hear the presentation by the Executive, ask questions and vote.

To this notice were attached two additional documents: a background statement about the UFCW, and a letter from the Association's solicitors to the Canadian director of the UFCW setting out the agreed terms. These documents read as follows:

I

You have received, together with the Notice from your Executive ex­plaining the details to you, information to vote to join the United Food & Commercial Workers International Union (U.F.C.W.), on September 10, 1983. We would like to take this opportunity to tell you about our (your new) Union, U.F.C.W.

We are 1.3 million members strong in North America; 140,000 mem­bers in Canada; 45,000 members in Ontario. Big does not always mean better. In our case, we believe it does, and we want to show you why.

Many of the laws passed in Ottawa effect working people. OTTAWA LISTENS TO OUR UNION. We, as a Union, take every opportunity to tell Ottawa the effect their laws have on our members. Queen's Park (Government of Ontario) passes laws that effect us in Ontario. Ontario M . P. P. 's listen to our Union! Employers make decisions that effect em­ployees and employers listen to our Union. We know your employer will listen to you more as a member of the 1.3 million U.F.C.W. with its fi­nancial and personnel resources.

In addition to belonging to U.F.C.W. all of our members in Ontario belong to the 800,000 member Ontario Federation of Labour (O.F.L.). The O.F.L. is a group of unions who work together to make life better for working people in Ontario. You will also be part of the Canadian Labour Congress (C. L . C.) with its approximately two million members. The C. L . C. is a group of national and international unions who work together across Canada to help working people.

The U. F. C .W. is an important partner in both of these organizations, and when you belong to the U. F. C .W. you know you have the support of literally millions of working people when you deal with your employer.

Your Association has worked well for you in the past and has accom­plished much for its members. Your Executive believes that in these tough times and facing a very tough employer you need the strength and sup­port of the U.F.C.W. As a Local Union within the U.F.C.W. you will become part of the family of over 200 locals in Canada. You will con­tinue to govern your own affairs and elect your own executives, but also be able to call on the resources of this union to assist you.

It is impossible to tell the full story of the U.F.C.W. in a few words. Its [sic] our hope you will endorse your Executive's decision, and join the United Food & Commercial Workers. We are a strong and growing union and we would like the employees of Krause [sic] Carpets to grow with us.

II

I have been retained by the Kraus Carpets Employees Association with respect to the proposed merger with the Food & Commercial Workers Union. This letter is to confirm the agreement reached between the Ex­ecutive of the Kraus Carpets Employees Association and yourself on be­half of the United Food and Commercial Workers Union with respect to the terms of the proposed merger.

This letter will be circulated to all employees and will form the basis of the membership meeting to be held on September 10, 1983, in order to amend the Constitution of the Association.

The Executive of the Krause [sic] Carpets Employees Association will recommend to the membership that the Executive of the Association will apply to the United Food and Commercial Workers Union to become a separate Chartered Local of that Union.

The present Executive Officers of the Association will continue to be the officers of the new Local of the United Food and Commercial Workers Union until December 31, 1984, and will continue to be remunerated by the Local Union on the current basis.

The funds currently belonging to the Association will be placed in a sep­arate bank account by the Association and will be held in trust by the Executive of the Local for the benefit of the members of the Association. The United Food and Commercial Workers Union will make no claim to the said funds.

The United Food and Commercial Workers Union will provide full Union services to the Executive, Stewards and members of the new Local and will assist them in the organization, education and servicing of the local membership.

The United Food and Commercial Workers International Union agrees to provide the services of Abe Peters or another representative that is mu­tually agreeable between the new Local Union and the International Union to assist the new Local Union in contract negotiations, servicing the membership, grievance procedure, arbitrations, organizing, education of the membership, etc. The International Union agrees that this assistance shall be, but not limited to, for a period of approximately ten days per month for a twelve month period, and that it be renewed after that period if the Local continues to have need of these services.

The new Local will be given a jurisdiction to organize the employees of the manufacturers of carpets and related companies in the following counties: Bruce, Gray, Huron, Perth, Wellington, Dufferin, Simcoe, Peel, Halton, Waterloo, Oxford, Brant, Hamilton-Wentworth, Niagara, Hald­erman-Norfolk.

The per capita levy to be paid to the United Food and Commercial Work­ers Union will be $5.25 per month per member as of September, 1983. This amount may vary from time to time, if changed by the membership of the International Union. The International Union agrees to waive the initiation fee for all current members of the Association.

The United Food and Commercial Workers Union understands that the proposal for merger and the terms of the merger will be placed before the membership of the Association at a meeting to be held on September 10, 1983. If the membership of the Association votes on that date to ap­prove the merger, the Executive of the Association will apply forthwith to be a chartered Local of the United Food and Commercial Workers Union. The International Union agrees to make an application to the Ontario Labour Relations Board for successor rights to the Kraus Carpets Employees Association so that the new Local can continue to represent all employees.

This documentary material was also translated into Portuguese and Serbo-Croatian since there were employees from both ethnic groups among the Association's membership and the ex­ecutive wanted to be sure that all of its members were aware of the purpose of the meeting. Following the issuance of this notice, there were further notices to correct the error apparent on the face of the first one: September 10, 1983 is a Saturday, not a Thursday as the notice suggests. Neither the respondents nor the objecting employees attach any significance to this error which, it is conceded, was subsequently corrected.

8. Following the mailing of this notice, there was an active debate among the em­ployees about the pros and cons of the proposed merger. The employer was not absent from this debate. On or about August 29, 1983, members of management handed out the following letter from Erwin Wagner, executive vice-president and chief operating officer of Kraus:

On September 10, 1983 you will be asked to vote on the proposed merger of your Union, The Kraus Carpet Employees Association and an outside International Union called the United Food and Commercial Workers' Union.

Even though the vote will be held on a Saturday, it is important that every employee takes the time to attend the meeting and vote, because it could be the most important decision of your working career. At the meeting, you will essentially be asked whether you wish to continue to be represented by your own Association, or whether you will be repre­sented by a group of outsiders who are strangers to our Company and to our Industry.

During the next two weeks, there will be a lot of questions asked by employees in trying to decide how to vote. We will attempt to help as much as possible in answering these questions, but, in the final analysis, the decision is yours.

If you want the choice to be YOURS, you must get out and vote on September 10, 1983. Otherwise, the choice will be THEIRS.

The following week there was a further letter to all employees over the signature of Frank Guthier, the senior vice-president of Kraus:

Over the past few days, many employees have come to us with ques­tions about the vote which will be held on Saturday September 10, 1983 when our employees will decide whether to merge the 'Kraus Carpet Em­ployees Association' with the 'United Food and Commercial Workers', an international union. The following are answers to some of the ques­tions that employees might be asking....

9. Attached to Mr. Guthier's letter are a series of questions and answers setting out not only when and where the vote will be held, but also comments about dues, the Inter­national affiliation of the UFCW, the independence of the existing organization and so on, which leave no doubt as to the employer's position. Indeed, on the final page of the handout, the company states quite frankly that it is against the merger and urges all employees to get out and vote for what could be "one of the most important decisions of your working career". The employers also called an employee meeting to express these views. The propriety of this employer activity is not an issue before us. An earlier section 89 complaint was settled to the satisfaction of the parties.

10. In response and rebuttal, the union executive members circulated leaflets (again, translated) setting out more reasons why the merger was desirable and contesting the em­ployer's position that the merger would prejudicially affect the employees' freedom of action. There was also a telephone campaign. In addition to all of this, someone, described only as "a concerned employee", posted his own notice to fellow employees, setting out why he planned to vote against affiliation with the UFCW.

11. In the face of all of this activity, it is difficult to conclude that any of the employees could have been in any doubt about the purpose of the meeting, and none of the witnesses who gave evidence suggested that this was the case. Some of the witnesses were in favour of merger and some were not; however, none of the witnesses was under any illusion about the object of the meeting and the vote which was to be conducted. It was a meeting to discuss and vote upon a proposed merger with the UFCW on the terms set out in the letter from the Association's solicitor. That purpose is also reflected in the wording of the question appearing on the ballots (again, translated into three languages) which the members were ultimately given to signify their choice. The ballot reads:

QUESTION

Are you in favour of Kraus Carpet Employees Association becoming a chartered local of the United Food & Commercial Workers Union?

Yes □

No □

12. The object of the September 10th meeting was clear and straightforward, and the merits of the employees' decision are not the Board's concern. But we are concerned with whether the steps taken to accomplish that objective were sufficient for the purposes of section 62 of the Act. This, in turn, entails a consideration of the Association's constitution and, for sake of convenience, those sections of the constitution to which reference will subsequently be made will be grouped together here. They are as follows:

ARTICLE 1 - NAME

This organization shall be known as Kraus Carpet Employees Asso­ciation and is hereinafter referred to as the Association.

ARTICLE 2 - PURPOSE

The purpose of the Association is to establish for the workers and their families a better standard of living by adjusting wages and improving working conditions so as to insure all a full and prosperous life; also to regulate relations between the Company and its employees.

ARTICLE 3 - MEMBERSHIP

All employees employed by Kraus Carpet Mills Ltd. hereinafter re­ferred to as the Company, below the rank of foreman shall be eligible to be a member in good standing of the Association, upon:

(a) signing an application for membership in the association, and

(b) payment of the initiation fee of $1.00.

Any employee shall cease to be a member of the Association:

(a) upon leaving the employ of the Company, either of his own ac­cord or by dismissal; or

(b) upon being expelled from the Association by the Association Ex­ecutive for any reason which the Executive may consider proper.

Any member who has been expelled by the Association Executive shall have the right of appeal to a general meeting of the Association and the decision of the Executive to expel him may be overruled by a two-thirds vote of all members of the Association present and voting at such general meeting.

ARTICLE 12 - AMENDMENTS

This Constitution may be amended only on the approval of a majority of the members of the Executive supported by a majority vote of all the members of the Association.

The constitution does not contain any express provision contemplating merger, amalgamation, affiliation, or a transfer of bargaining rights to any other labour organization. However, it does contain Article 12, permitting the constitution to be amended with the approval of a majority of the members of the executive supported by a majority vote of the members of the As­sociation. On the advice of its solicitors, the executive decided that in order to effect a merger with the UFCW there must first be an amendment to the constitution to permit such merger.

13. The proposed constitutional amendment was drafted with the assistance of the As­sociation's solicitors and passed unanimously at an executive meeting held for that purpose on September 10, 1983, shortly before the general membership meeting. The proposed con­stitutional amendment is set out in the minutes of the executive meeting:

The following motion was made by Rose Kube:

That the Constitution of the Association be amended by adding the fol­lowing article:

"This Association may be dissolved or it may merge or amalgamate with or transfer its jurisdiction to another trade union if the following conditions are satisfied:

a) the resolution to dissolve, merge, amalgamate or transfer the ju­risdiction of the Association, as the case may be, must be approved by a majority vote of the members attending a general or special meeting of the Association;

b) members must be given notice of the meeting by mailing the same to all members of the Association or by posting the same on the bul­letin board on all plants, where the Association is the bargaining agent. The notice must advise members that the meeting will vote on the question of a proposed dissolution, merger, amalgamation or transfer of jurisdiction, as the case may be;

c) the terms upon which any dissolution, merger, amalgamation or transfer of jurisdiction is to take place shall be approved by a ma­jority vote of the members voting at a meeting called for that purpose."

The motion was seconded by Terry Doering. A vote was conducted by a show of hands. The result was:

In favour: 3

Against: 0

14. The various notices and the active debate obviously had the desired effect. Almost 400 of the Association's members came to the meeting. This turn out was unprecedented. Usually, the Association had difficulty getting a quorum. Mr. Steckly testified that the turnout was at least three times larger than any meeting he could recall and, we might note that for some years, he had been a member of the Association's executive. On the other hand, the efforts to inform employees of the meeting were also unprecedented. Typically, notice of a meeting was merely posted on the employers' premises rather than sent individually to each employee. Moreover, in the past, the posted notices did not usually spell out the purpose of the meeting or the matters which were to be discussed. Nor had the Association ever had a practice of translating notices or other union documents to facilitate the members' understand­ing of Association business. The language of work was English and the Association had al­ways assumed that notices in English were sufficient.

15. The Association's manner of conducting business has always been very informal. Sometimes, it has not even acted in accordance with its own constitution. Article 3 of that constitution restricts membership in the Association to employees of Kraus Carpets, yet over the years, the Association expanded its membership base and purported to take into mem­bership individuals working for other employer entities (e.g. Waterloo Spinning Mills Ltd.) who, strictly speaking, could not be admitted at all. Nevertheless, those individuals have al­ways been treated as members in good standing with full membership rights — despite the terms of the constitution. No one ever bothered to seek an amendment. Similarly, the evidence be­fore this Board was that the constitution has previously been amended without any specific notice to the membership that this was the intended purpose of a meeting. On March 22, 1980, Article 8 of the constitution, concerning the quorum for general meetings, was amended by a show of hands; moreover, unless the Association's membership is five times larger than it was three years ago (which on the evidence does not seem to be the case), those supporting the constitutional amendment, which was subsequently implemented and acted upon, were well short of a majority of all members of the Association — the standard which seems to be re­quired by Article 12 of the constitution. It is apparent that the constitution may not provide a very good indication of the way in which the Association actually operated or the way in which its members actually interacted with one another. It is also apparent that the steps taken to change the constitution this time were much more thorough, detailed, and formal, than an­ything ever done in the past.

16. The Board heard a considerable amount of evidence from a variety of witnesses about what happened at the meeting. Most of that testimony was consistent and we are sat­isfied that where there were inconsistencies, it was a result of faulty recollection, or inattention during the meeting. One simply cannot expect untrained witnesses to recall with precision events which happened some months before and which, at the time, no one thought would be legally significant or subjected to the kind of scrutiny associated with a legal proceeding. It is hardly surprising that there are some differences in the witnesses' evidence, even though all of the witnesses were being candid and trying to recall what happened as best they could.

17. The meeting took place in the large ballroom on the second floor of the Waterloo Inn. Access to the room was provided by a single set of doors at one end. At the other end of the room was a podium for the members of the executive, guests, and speakers.

18. Before the meeting began, the union's officials took considerable care to ensure that only members of the Association would be allowed to participate. Tables were set up outside of the doors, manned by union officials from all parts of the employers' operation. These of­ficials were expected to personally identify employee members from their own area. The mem­bers were then called forward in groups, and working from the seniority lists, each person was identified and his name checked off. The member was then permitted to enter the hall and take a seat.

19. This screening process took some time and, as a result, the meeting started late. While the meeting was in progress, Steve Garland, the Association's "sargeant-at-arms" and several other officials were stationed near the doors to monitor who was coming in and out — for example, to use the washroom facilities down the hall. It is possible that some stranger could have slipped into the meeting and escaped the notice of these union officials; but it is highly unlikely and there is certainly no evidence of such occurrence.

20. Estimates as to the length of the meeting varied, but most of the witnesses sug­gested that it lasted between one and a half and two hours. The meeting was opened by the members of the executive who introduced the guests at the head table. These included two officials from the UFCW and two solicitors from the firm retained by the Association to assist and advise them in respect of the merger. The solicitors were also expected to help run the meeting, make explanations as required, and assist in the conduct of a vote on the consti­tutional amendment and proposed merger.

21. After the president of the Association had called the meeting to order, he turned the meeting over to one of the Association's solicitors who introduced the guests and ex­plained that the members present were to vote on a constitutional amendment to permit merger with the UFCW. She read out the constitutional amendment in its entirety and advised that the members would have an opportunity to vote on the proposal. She outlined the steps taken by the executive to date, the negotiations with the UFCW and the terms of the merger: that the Association would become a separate chartered local of the UFCW, and that it would re­tain its local autonomy, its own elected executive and stewards, and its own funds. There would be no change in union dues, although a portion would be remitted to the UFCW. For its part, the UFCW had undertaken to provide a variety of organizational and representational services as outlined in her letter. She advised the members that at the end of the debate they would be asked to vote upon whether they agreed with the executive to effect a merger and, if they voted "yes", an application would be made to the Ontario Labour Relations Board for a for­mal confirmation of the transfer of bargaining rights to a separate local to be chartered by the UFCW. That chartered local would then step into the shoes of the Association to become its successor. Finally, she expressed her own view that the members would have a stronger, more effective and more professional voice by associating with the UFCW.

22. After the solicitor's report to the members, Cliff Evans of the UFCW explained the origins, growth, and present status of the UFCW in a variety of industries in Ontario. He indicated the advantages of association with his union, the expertise and experience it could bring to bear on employee problems, and some of the collective bargaining successes which it had had in the past. Evans' position was supported by two speakers from other local em­ployee associations who had merged with the UFCW in recent years. There followed a variety of speakers from the executive and questions from the floor in which the members canvassed such matters as strikes, the relationship between the various bargaining units, union dues, and generally the "pros" and "cons" of the merger. Where the questions had a legal aspect, the Association's solicitors participated in the discussion. Portions — although not all — of the de­bate were translated into Portuguese and Serbo-Croatian by two translators who were present for that purpose. Mr. Steckly testified that, as in the past, he assumed that those who had a good command of English would assist those who did not.

23. All of the witnesses (including the objectors) testified that the issues concerning the merger were fully canvassed, and that in light of the discussion at the meeting, the members knew precisely what they were voting for or against: a merger with the UFCW. However, they may not have made a distinction between voting for the constitutional amendment and the merger itself, since from a practical point of view they were the same thing. The sole purpose of amending the constitution was to permit a merger with the UFCW. That is how the ballot read, and it was not until the hearing before the Labour Relations Board that anyone suggested that there should be two separate votes: one to approve the constitutional amend­ment and a second to approve a merger with the UFCW pursuant to that amendment. What­ever the technical merits of that argument, that is not how anyone saw it at the time — not even those who opposed the merger and were unhappy when they found themselves in a minority.

24. After the completion of the debate, the members were invited to form into two lines, by company affiliation so that they could cast their ballots. This was done after some initial confusion, as employees drifted to one line or another until both were roughly equal in length. Each line had its own ballot box. The employees filed slowly past a table occupied by one of the solicitors and a union official. Each member was asked whether he wanted a ballot in English, Portuguese, or Serbo-Croatian, and as each ballot was given out a notation was made so that the Association's executive could check the number of ballots issued. But there was no effort at that point to once again verify the identity of the member against the seniority list, as had been done at the start of the meeting.

25. After each employee was given his ballot, he went to a nearby table where he marked his choice. The ballot was then deposited in one of the two ballot boxes which had been borrowed from a local municipality and were secured prior to the commencement of balloting. A union official and one of the solicitors were stationed in the vicinity of each of the ballot boxes to act as a kind of "traffic warden" to keep the lines moving.

26. Once the ballot was cast, the member was expected to leave the room. The evi­dence establishes that this is what happened. As before, Garland, the sargeant-at-arms, and several others were stationed at the door, to make sure that employees left after casting their ballots and did not return. William Storer testified that he only remained in the room for a few seconds. He wanted to stay but was told to leave. He came back a few minutes later but was told by Garland that he could not enter the room. However, Mato Masic testified that while the line was forming, he and two or three other members went downstairs for a beer, returning a few minutes later to rejoin the line and cast his ballot. The controls on the door obviously were not perfect. On the other hand, Mr. Masic has been employed as a "fixer" for twelve years and is well known throughout the plant because he has occasion to work on the machines in all areas. He was no stranger to those at the door and they would have no reason to believe he was engaged in a scheme to cast extra ballots. In fact, he only voted once.

27. After the voting was completed, the ballots were counted. As in any election, the electoral officer had to make some judgments as to the validity of various ballots and the sig­nificance to be accorded to how they were marked. The results were: 249 in favour of merger, 131 against merger, and 6 spoiled ballots. Steve Garland testified that there were fewer ballots cast than individuals identified and checked off when the meeting began, because some of the members left prior to the balloting. However, it is apparent that no one was "stuffing" the ballot box.

28. Mr. Steckly complains that there were insufficient controls placed on the balloting and it was possible that a stranger could have cast a ballot or that someone could have voted twice. But both propositions are extremely unlikely, and there is not the slightest evidence to suggest any impropriety at all. Mr. Steckly's concerns are entirely hypothetical, premised upon the assumption that there was a possibility of irregularity and a possibility that one of his fellow employees might be motivated to act improperly and exploit the situation. But there is no ac­tual evidence to suggest that the vote did not accurately reflect the voluntary wishes of those who cast ballots. We are not prepared on the basis of purely hypothetical possibilities to set aside what, in our view, is a voluntary, accurate, and obviously overwhelming indication of employee support for merger with the UFCW. Nor is the Association's conduct of the vote or subsequent actions based upon it, a breach of its duty of fair representation.

29. Following the meeting, the officials of the Association formally applied to the UFCW for a charter. On September 23, 1983, they received the following letter from the International president of the UFCW:

This letter will serve to inform you that we have received your com­munication dated September 12, 1983, stating that the membership of the Kraus Carpet Employees Association voted on September 10, 1983, to amend its bylaws/constitution and merge with the United Food and Com­mercial Workers International Union. We have also received your com­munication dated September 16, 1983, containing a charter application signed by seven persons whom you identified as employees of Kraus Car­pet Mills Limited, associated or related companies and members of the Kraus Carpet Employees Association.

As requested in your letter, this letter will serve to inform you that the United Food and Commercial Workers International Union accepts into membership all of the bargaining unit employees of the Kraus Carpet Mills Limited, and any associated or related companies, who are rep­resented by the Kraus Carpet Employees Association, as members of the United Food and Commercial Workers International Union in good stand­ing under Article 5(A) and they shall enjoy all rights, privileges, duties and obligations as members under the Constitution of the United Food and Commercial Workers International Union.

Would you please convey this message to the membership of the Kraus Carpet Employees Association on my behalf and inform them their charter application has been granted.

At the date of the last hearing in this matter, the evidence was that the purported merger had been completed and a new charter local created encompassing the former members of the As­sociation; however, the actual charter had not yet been received from the union's headquarters in Washington.

III

30. The employers' arguments are two-fold: that the Association cannot merge with an­other union unless its members unanimously authorize such merger; and that even if the As­sociation is capable of merging with another union, the steps taken here are insufficient to accomplish that objective.

31. The employers assert that the Association is a small, independent organization drawing its members exclusively from the ranks of the employees of a select group of com­panies. Its constitution has no provision for merger or affiliation with other labour organi­zations, and, in the employers' submission, to add such provision would significantly alter the very essence of the Association and the relationship of its members inter se. It would be a change in the fundamental objects of the organization which, the employers argue, would re­quire the unanimous consent of each and every one of the Association's members. The em­ployers argue that a voluntary association cannot alter its fundamental objects without the unanimous consent of each member potentially affected by such change. Every member has a veto, and here, there were a large number of members opposed to the merger. Reference is made to the majority decision (Laskin, J.A. dissenting) in Astgen et al. v. Smith and In­ternational Union of Mine, Mill and Smelter Workers et al. (1969), 1969 CanLII 488 (ON CA), 7 D.L.R. (3d) 657, 69 CLLC ¶14,198 (O.C.A.), where, it is said, the Court found that there was a fundamental distinction between the objects of an international union operating in both Canada and the United States, and a union whose sphere of operations was restricted to Canada.

32. In the alternative, the employers attack the sufficiency of the steps undertaken by the Association to effect a merger with the UFCW (i.e, to transform the Association into a local of the latter union). The employers assert that an amendment to the constitution to permit a merger, and a vote to merge, are two entirely different things. They should not be confused, and cannot be combined. If a merger was to be accomplished, the employers argue that it was necessary first, to amend the constitution to permit such merger, and second, to have a sep­arate vote in favour of merger, in accordance with the amended constitutional provisions. The employer argues that the two steps cannot be taken together — not least, because the require­ments for any constitutional amendment, and the steps necessary to satisfy the terms of this particular amendment are different. A constitutional amendment requires a majority vote of all of the members of the Association to approve it; but, having done so, a merger itself can be accomplished by the vote of a majority of members attending a general or special meeting. The employers submit that in a matter as important as this, it was incumbent upon the As­sociation to scrupulously adhere to the proper procedures and to conduct separate votes to amend the constitution and effect a merger, with proper notice and debate on both of these issues. The employers' arguments were adopted and supported by the objectors.

IV

33. At common law (i.e., before the passage of modern labour legislation some forty years ago), a trade union was merely a voluntary association of employees, like a club, acting collectively in pursuit of their common interests and without any statutory framework or un­derpinnings. Indeed, for a time, trade unions and their activities attracted common law sanc­tions because such collective action amounted to a civil conspiracy in restraint of trade. However, to determine whether one trade union has acquired the statutory rights and obli­gations of another — that is, to determine the application of section 62 of the Act — one cannot ignore the statutory framework or forget that unions no longer operate (as they once did) in a legislative vacuum. Trade unions, like clubs, may well be able to exist without direct ref­erence to the Labour Relations Act, but the fact is that if a trade union is to do what by statute it must do to preserve its status as a union under the Act, it must conform to statutory norms.

34. A modern trade union is very different from a typical club. It is concerned pri­manly with the acquisition and exercise of statutory bargaining rights. What club or mere voluntary association has the exclusive statutory right to determine its members' terms and conditions of employment — regardless of what those members might think from time to time? What voluntary association in pursuit of its constitutional objectives has the right to act on behalf of and fundamentally affect the rights of persons who are not its members and who may never have voluntarily subscribed to those objectives? What club has a statutory obli­gation to fairly represent non-members, where necessary, expending membership funds to do so? What club can compel the payment of membership fees from members and non-members alike? How realistic is it to treat a trade union as a "voluntary" association when the reality is that membership may be made a compulsory condition of employment? In the present case, membership in the Association has been made a condition of employment for a number of employees. The fact is that while at common law a trade union may still be only a voluntary association, under the Labour Relations Act it is much more than that, and when considering the acquisition, exercise or transfer of rights rooted in the statute, one cannot ignore either the practical or legal differences. Likewise, in trying to ascertain a union's essential objects (in an Asrgen v Smith sense) we think the statute provides a guideline — at least in the absence of explicit conditions in the union's own constitution.

35. The Labour Relations Act defines "trade union" as "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" (see section 1(1 )(p) of the Act). The Act does not distinguish between trade unions on the basis of national or inter­national affiliation. For the purposes of the statute it does not matter. It is not even significant, let alone fundamental. Nor is there any requirement, for example, for internal union democ­racy (see the decision of the Court of Appeal in C. S.A. 0. National (Inc.) v. Oakville Trafalgar Memorial Hospital Association et al. (1972), 1972 CanLII 563 (ON CA), 26 D.L.R. (3d) 63). Again, for the purpose of the statute, it does not matter. What does matter is that the organization be composed of em­ployees and have, among its objects, the regulation of relations between employees and em­ployers. That is what defines the "essence" of a trade union under the Act and distinguishes it from athletic clubs, debating societies, ethnic organizations, political parties, or other vol­untary associations. It is the collective bargaining purpose that is the critical requirement. An­ything else is ancillary or superfluous. Conversely, an organization which does not have as its object collective bargaining, cannot be a trade union capable of acquiring rights or re­sponsibilities under the Labour Relations Act.

36. This is not to say, of course, that the constitution of a trade union is irrelevant to the Board. It is obviously an important document and in particular cases or contexts, its terms may be decisive. But it does not have the central role which it plays at common law in re­solving disputes among the members over the use or distribution of assets, eligibility for of­fice, the conduct of elections, the pursuit of the organization's objectives, and so on. That is evident from the terms of the statute itself. For example, for some statutory purposes, an in­dividual can be a member of a trade union regardless of the eligibility requirements of its charter, constitution, or bylaws upon merely making application for membership and paying one dollar (see section l(1)(j)). That is the effect of section 103(4) of the Act, and it is in­teresting to note that it specifically reverses a Supreme Court of Canada decision to the con­trary (see Metropolitan Life Insurance Co. v. International Union of Operating Engineers, Local 796 et al. (1970), 1970 CanLII 7 (SCC), 11 D.L.R. (3d) 336). Even section 62 does not expressly require that the purported merger, etc. must, or need only be in accordance with the constitution —although that is the interpretation which the Board has generally given it. The provision for taking representation votes suggests that the Board may require additional confirmatory evi­dence even if all of the constitutional proprieties have been observed. Conversely, it might be argued that a Board supervised vote could cure any constitutional irregularities.

37. We think the starting point in any consideration of the application of section 62 should be the trade union itself: how its objects have actually been framed in its constitution, and how it has actually operated in purported furtherance of those objects. In the absence of compelling evidence, we do not think the Board would be warranted in reading into the con­stitution either purposes or restrictions which are not there, nor if there is no distinction in the document itself between objects which are "fundamental" and those which are merely ancillary, do we think it appropriate for this Board to second-guess the intentions of the found­ing members — particularly since, in all likelihood, no one ever really considered the matter, just a no one paid any attention when the Association expanded its membership base beyond those limits which the constitution contemplates. The lack of a merger or affiliation provision is not an indication of some essential but unstated premise about the fundamental nature or destiny of the Association. More likely, it results from a lack of sophistication or simply oversight.

38. We might observe at this point that we do not think anything turns on the fact that the transaction with the UFCW was framed as a merger rather than a transfer of bargaining jurisdiction. Although the merger permits the employers to now claim that the "very exist­ence" of the Association was at stake, that argument is a little artificial. Suppose, for ex­ample, that the Association had merely purported to transfer to the UFCW bargaining jurisdiction for the employees it represents, while preserving its separate existence, officers, assets, members, and so on. Would this change in the form of the transaction make any dif­ference? We do not think so. The Association would be a hollow shell, a form without func­tion, an organization with a continued common law existence but unable any longer to bargain with the employer in pursuit of the objective expressly stipulated in its constitution. If a merger is a fundamental change in the nature of the organization, a transfer of jurisdiction must be too.

39. The only objective expressly spelled out in the Association's constitution is the reg­ulation of employer-employee relations. There is nothing dealing with mergers at all, nor with the affiliation of the Association with any other organization. However, there is a procedure for amending the constitution, and there are no express restrictions on the nature of such amendment. The words are broad enough to encompass an amendment to provide for merger and certainly such merger provisions are common enough in other union constitutions that they cannot, in themselves, be considered unusual. If the members had turned their minds to, and considered the terms of their constitution, there is nothing on its face which would suggest that a constitutional amendment to effect a merger was impossible, nor is this even a rea­sonable inference from the evidence before us. No one claimed or even seems to have con­sidered that what the Association set out to do in its meeting on September 10th, could not be done at all without unanimous consent, or that Mr. Steckly had but to stand up and say "I object" and that would have been the end of the matter. Certainly there is no indication that any of the witnesses, while differing in their views as to the desirability of a merger, ever suggested or believed that one negative vote was sufficient to frustrate the wishes of the rest of the members. On the contrary, whatever its legal validity, this notion was only raised and elaborated in the employers' argument before this Board. Now, of course, the subjective ex­pectations of the members may not be legally relevant; but when the Board is being asked to read some fundamental but unexpressed limitation into the constitution of an organization, it is at least interesting to note that the notion does not seem to have occurred to any of the members of the organization who gave evidence. And whatever the founding members and framers of the constitution may have thought about the desirability of the later merger, there is no reason to believe that they expected it to be impossible without unanimity.

40. The only significant limit explicit on the face of the constitution is the restriction confining the Association's membership to employees of Kraus, and one might argue that this at least was a fundamental aspect of the organization. But, as we have already noted, the As­sociation regularly took into membership employees of other companies without even both­ering to change its constitution. Likewise, the Association purported to amend the quorum requirements of the constitution without even following the apparent requirements for a con­stitutional amendment. And there is little doubt that if the referendum result had been 444 to 1 in favour of merger. many members would be surprised to learn that the motion had been defeated. Certainly a reading of the constitution would not alert them to that possibility. Yet the employers now demand not only strict constitutional propriety but also an implied common law right of veto by any dissenting member.

41. In collective bargaining terms, the merger with the UFCW would not erase the sep­arate identity of the Association, although counsel for the employers is undoubtedly right when he says that the Association, as such, may cease to exist. It would become a separate local of the UFCW which would continue as the employees' bargaining agent as a separate (albeit subordinate) trade union with the object of representing employees for the purposes of col­lective bargaining. It would still retain its own officers, its own assets, the right to select its own bargaining committee, and substantial independence with respect to such important de­cisions as strike votes or ratification votes. There would be no change in the employees' col­lective agreements until their expiry when new agreements would be negotiated and ratified as before. At the same time, its members would receive a variety of potential advantages, such as access to funds and expertise which would otherwise be unavailable. Whether the members would be better off or not, and whether they would be better able to pursue the objective of collective bargaining, we need not here decide. The point is that the new local of the UFCW — which is, what the Association would become — will continue to pursue essentially the same objects as the Association did, and the employees will continue to have similar rights. Indeed, given the rather loose procedures which the Association has followed in the past — sometimes in derogation of the provisions of the constitution — it may be that as part of the UFCW the former Association members will have an enhanced ability to control the affairs of their local.

42. In summary then, there is nothing in the constitution to prevent a merger. The terms certainly do not forbid it. The only relevant constitutional provision is the one respecting amendments. Neither its terms, nor the Association's past practice, nor the testimony before us, suggest that those words must be limited so as to exclude an amendment to permit the merger or affiliation with another union. There is no evidence that the founding members and architects of the constitution ever contemplated such restriction. There is nothing in the La­boar Relations Act to suggest that one should infer or read into a union constitution some unstated but fundamental objects which limit the union's freedom of action — at least in the absence of express constitutional limits. Even where such limits exist they do not necessarily govern the acquisition of statutory rights. We can discern no reason of industrial relations po1-icy why the Association in this case should be saddled with a requirement for unanimity, which its members have not expressly undertaken and which would frustrate the wishes of a sig­nificant majority of them. Under the Labour Relations Act bargaining rights are acquired or lost or transferred in accordance with the wishes of majorities so there is nothing incongruous in finding that this may have occurred here. Indeed, section 62 itself contemplates the conduct of a representation vote and there is no indication that it would have to be unanimous. Finally, we note that the objects of the new UFCW local which the Association would become are substantially the same as before, and the rights of the Association's members are not substantially different. Accordingly, we are satisfied that for the purpose of section 62 of the Act the union was entitled to amend its constitution in accordance with its terms so as to permit a merger with the UFCW. The remaining question is whether the steps taken were sufficient to effect such merger.

V

43. There is nothing in the Association's constitution requiring any specific form or amount of notice for meetings, whether to deal with constitutional amendments or otherwise, nor is there any implicit requirement arising from the Association's past practices. Indeed, the Association has never before gone to such lengths to advise its members of an upcoming meet­ing or the issue to be resolved. No previous issue has ever generated such intense debate or produced a turnout of this magnitude. Nor for the reasons already outlined, do we have any doubt that the members knew precisely what they were hoping to achieve by their vote or that the vote to merge with the UFCW reflects the considered opinion of two-thirds of those who cast ballots and more than a majority of the Association's total membership. The only re­maining question is whether a merger could only be accomplished by a two-step process, or whether, as the Association purported to do, the two steps could be combined in a single vote.

44. In our view they could. To hold otherwise, would be to take an entirely too tech­nical view of the required conduct of this Association. It is, moreover, a strict view which would be inconsistent with the way that Association business has been conducted in the past and, again, was raised for the first time only in the context of this proceeding, and then only by the employers. At the meeting in September, Mr. Steckly and other individuals who may have opposed the merger, did not demand two votes because, it is apparent, they did not think it was necessary. They knew that the result would be the same. The vote on the constitutional amendment and merger was explained to the members and regarded as a single process, and none of the witnesses who gave evidence before the Board expressed any confusion as to what the vote was really about. They differed with respect to the desirability of a merger, but there was no doubt about their views concerning the purpose or effect of the balloting. Even Mr. Steckly's section 68 complaint did not suggest that there should have been two separate votes. His allegations concerned the possibility for cheating in the one vote held. It was the employer who first suggested that two votes were necessary — an argument which Mr. Steckly then adopted. It may be that it would have been wiser to separate the issue of amending the con­stitution to permit merger from the issue of the merger itself, but there is nothing in the con­stitution of the Association which prevents dealing with these two related questions together, nor the slightest suggestion that if the Association had adopted this course, the result would have been any different.

45. Under section 62 of the Labour Relations Act, the Board must assess a claim that one trade union is the successor of another by reason of a merger, amalgamation, or transfer of bargaining jurisdiction. The Board must examine the relationship between the two union entities and consider the process by which the successor has allegedly acquired the rights of its predecessor, and, where the Board considers it necessary it can require the production of documentary evidence or seek the further confirmatory evidence of a Board-supervised rep­resentation vote. However, we do not think such further evidence is necessary in the circum­stances of this case. Having regard to the totality of the evidence adduced before us, we are satisfied that the UFCW has acquired the rights, privileges and obligations under the Act of the predecessor Kraus Carpets Employees Association. Mr. Steckly's section 89 complaint is dismissed.