United Food and Commercial Workers International Union v. L.M.L. Foods Inc., 1985 CanLII 1029

[1985] OLRB Rep. August 1252

2631-83-R United Food and Commercial Workers International Union, Applicant, v. L.M.L. Foods Inc., Respondent, v. Canadian Union of Restaurant and Related Employees, Hotel Employees and Restaurant Employees, Local 88, Intervener #1, v. Canadian Union of Restaurant and Related Employees, Intervener #2, and related files

BEFORE: Owen V. Gray, Vice-Chairman, and Board Members W. G. Donnelly and C. A. Ballentine.

APPEARANCES: A. M. Minsky, Q. C., and M. L. Levinson for the applicant; R. B. Cumine for Cara Operations Limited; S. McCormack for all other respondents; A. Ryder, Q. C., for the interveners.

DECISION OF THE BOARD; July 4, 1985

[1]. These twenty-four certification applications by the United Food and Commercial Workers International Union ("the UFCW") were filed on various dates between February 10th and May 18, 1984. In each case, the employees affected work in a "Swiss Chalet" restaurant. Each of the respondent employers claimed it was a member of the Swiss Chalet Employers' Association ("the SCEA") bound by the terms of a collective agreement between the SCEA and the Canadian Union of Restaurant and Related Employees (CURRE) dated October 19, 1981 ("the SCEA agreement"), with effect from November 9, 1981 to November 8, 1984. As each of these applications was filed well before the final two month "open period" of the SCEA agreement, the respondent in each case took the position that the application for certification for its employees was untimely by virtue of the provisions of subsection 5(4) of the Act. Canadian Union of Restaurant and Related Employees, Hotel Employees and Restaurant Employees, Local 88 ("Local 88") filed an intervention in each of these applications, claiming that CURRE had merged with or into it on January 13, 1984, and that it should be treated as the successor to CURRE' s bargaining and collective agreement rights. As that claim was challenged by the applicant, interventions were also filed in each application on CURRE's behalf, asserting the rights that CURRE claimed it must still have if Local 88 was not recognized as CURRE's successor.

[2]. In addition to putting the respondents and interveners to the strict proof of their assertions, the applicant alleged in each case that Foodcorp Limited ("Foodcorp") had assisted CURRE in the original organization and certification of the employees at a number of food outlets then operated by Foodcorp. In particular, it claimed that in 1979 Foodcorp had retained Intertec Security & Investigation Limited to engage and instruct covert operatives who, once hired by Foodcorp to work in various of its outlets, ostensibly as ordinary employees, were to support and assist CURRE in organizing other Foodcorp employees at those locations. The applicant claimed these activities constituted employer participation and support of the sort contemplated by section 13 and 48 of the Act, which would adversely affect bargaining rights thereafter acquired by CURRE and deprive each of CURRE's subsequent agreements, including the SCEA agreement, of status as a "collective agreement" for the purposes of the Act generally and of the timeliness provisions of subsection 5(4) in particular. The factual and legal issues relating to and arising out of those allegations of employer support came to be referred to in these proceedings as the "Intertec issue". Foodcorp Limited underwent a merger on April 1, 1984, as a result of which the respondent Cara Operations Limited is its legal successor for all purposes. For ease of reference, both Foodcorp Limited and Cara Operations Limited will be referred to throughout as "Foodcorp". The other respondents will be referred to collectively as "the franchisees".

[3]. The parties to the first several of these applications consented to have evidence and argument in them heard together with respect to common issues. As further applications were filed, the parties to those applications agreed to join in the hearings and be bound by the result. The scope of issues being heard evolved during the Board's first set of hearings, which were held on various dates during the months of March through June, 1984. That evolution was traced in paragraphs 3, 4 and S of our decision herein dated September 12, 1984. In the result, the hearing of evidence and argument with respect to the Intertec issue was deferred, and the first series of hearings dealt with the following matters:

(a) Local 88's claim to be the successor to CURRE under section 62 of the Act;

(b) UFCW ' s argument that CURRE was no longer an existing trade union as a result of its failure to effectively merge with Local 88;

(c) the respondents' and interveners' claim that the SCEA as an "employer organization" as defined by clause 1(1)(j) of the Act;

(d) the respondents' and interveners' claim that the SCEA agreement was a "collective agreement" within the meaning of the Act;

(e) in each case, the claim of the respondent and the interveners that the respondent was bound by the SCEA agreement, and that one or other of the interveners had bargaining rights for employees affected by the application.

It was recognized that a later determination of the Intertec issue might affect the last two of these questions, and that our determinations of those questions at the end of the first series of hearings might only be tentative.

[4]. When hearings resumed September 7, 1984, we read to the parties the text of the decision later released in writing on September 12th, setting out the determinations we had made on the issues of fact and law with which the first set of hearings had dealt, with reasons to follow at a later date. We summarized our conclusions in paragraph 32 of that decision:

32. In summary, we have concluded that:

(a) Local 88 is not successor to CURRE's bargaining or collective agreement rights.

(b) Subject to the effect, if any, of a determination of the "Intertec issue", the agreement between the Swiss Chalet Employers Association and CURRE is a collective agreement, the terms of which are binding on the respondents in, and serve as a bar to, the following applications:

Board File Respondent

2628-83-R Cabral Foods Inc.

2629-83-R J. Paiva Foods Ltd.

2630-83-R Manuel Goncalves, Restaurateur, Ltd.

2631-83-R L.M.L. Foods Inc.

2686-83-R L. DeSousa Enterprises Ltd.

2688-83-R F. G. Andrioulo Foods Inc.

2831-83-R Cara Operations Limited

2964-83-R Cara Operations Limited

2965-83-R Cara Operations Limited

0040-84-R C. Calisto Foods Limited

0128-84-R William Odorico Investments Ltd.

0129-84-R G. H. Sousa Holdings Inc.

0144-84-R Cara Operations Limited

031 8-84-R Cara Operations Limited

0407-84-R D.N.M. Lau Foods Inc.

0493-84-R Cara Operations Limited

(c) The following applications are timely, and neither intervener has established any pre-existing right to represent the employees affected:

Board File Respondent

2766-83-R Dinnerex Inc.

2966-83-R Famz Foods Limited

0020-84-R Bini Foods Ltd.

(d) The following applications are timely but, subject to the effect, if any, of a determination of the Intertec issue, CURRE has existing bargaining rights for the employees affected:

Board File Respondent

2830-83-R Fantz Foods Limited

0336-84-R Famz Foods Limited

(e) Our determination with respect to the following applications is subject both to the effect, if any, of determination of the Intertec issue and the resolution of matters discussed in paragraphs 27 to 31 hereof, on which we invite further submissions:

Board File Respondent

2687-83-R 485376 Ontario Limited

2689-83-R Rahims Food Limited

2829-83-R 555618 Ontario Ltd.

Elsewhere in the decision we noted our conclusion that CURRE had not ceased to exist as a result of its executive board's ineffective attempt to merge it into Local 88.

[5]. As we had found them to be timely, the applications referred to in paragraph 32(c) of our decision dated September 12, 1984 were each heard and disposed of individually on September 19, 1984. The further submissions contemplated by subparagraph 32(e) of that decision were heard on September 19, 1984, and evidence and argument on the "Intertec issue" were heard on September 17 and 18, October 11, November 22 and December 17, 18, 19 and 20. In a decision dated February 18, 1985, we set out our decision on those issues, together with our reasons therefor. We found that while Foodcorp had violated the Act in 1979 by covertly supporting CURRE's organizing campaigns at two Swiss Chalet locations, there was no evidence that CURRE had been involved in or at all aware of Foodcorp's activities and that the circumstances did not support the application of sections 13 and 48 to CURRE's past certifications and past and present collective agreements.

[6]. In our decision of February 18, 1985, we also found that the applications referred to in sub-paragraphs (d) and (e) of paragraph 32 of our decision of September 12, 1984 were timely applications with respect to employees for whom CURRE had existing bargaining rights. The applications referred to in sub-paragraph (b) of paragraph 32 of our decision of September 12, 1984, together with three similar applications filed between July 4 and August 23, 1984, were dismissed as untimely in the decision of February 18, 1985. In this decision we set out our reasons for our decision of September 12, 1984.

PART II

CURRE, LOCAL 88 AND THE ATTEMPTED MERGER

Facts

[7]. CURRE was found to be a trade union as defined by the Act in the Board's October, 1978, decision in File No. 1034-78-R, which dealt with the first of a number of certification applications in which CURRE was certified as exclusive bargaining agent for employees of Foodcorp Limited at various of its Swiss Chalet outlets in Ontario. By virtue of section 105 of the Act, that earlier finding was prima facie evidence in these proceedings that CURRE is a trade union.

[8]. The interveners called as their witnesses William Whyte, David Brooks, Seppo Nieminen and Thomas Rees. Mr. Whyte had been employed by CURRE since April, 1980. He became General Manager of CURRE in the fall of 1980 and continued in that capacity until its purported merger with Local 88 in January, 1984. When Local 88 was created for the purpose of effecting that merger, Mr. Whyte also became an Executive Member/Trustee of Local 88. David Brooks was first employed by CURRE in early 1980 to assist Mr. Whyte in organizing Swiss Chalet restaurants. He then became Secretary/Treasurer of CURRE and remained in that position until August of 1983 when he resigned. Mr. Nieminen was a free­lance accountant doing accounting work for CURRE and others when Mr. Brooks resigned in 1983. CURRE's President appointed Nieminen to fill the vacancy created by Brooks' resignation in August of 1983. Mr. Nieminen remained in that full-time position until the purported merger with Local 88, at which point he also became Financial Secretary/Treasurer of Local 88. Thomas Rees has a long history of involvement in various trade union organizations. Most recently he has been involved in the Hotel Employees & Restaurant Employees International Union ("HERE"), working out of its Montreal office. He was appointed an international organizer for that union in January of 1984, and became President of Local 88 when it was created as the vehicle for CURRE's purported merger into HERE.

[9]. Article 19 of CURRE's original constitution provided that it could not merge, amalgamate with or transfer its jurisdiction to another trade union without the approval of a resolution passed at a special meeting of members by the unanimous vote of all those who were members of the union at the time. The possibility of changing this and other provisions of its constitution was first considered by CURRE in May of 1980. By means of proceedings which culminated on November 27, 1981, CURRE purported to amend Article 19 of its constitution so that it thereafter read as follows:

ARTICLE 19 - MERGER AND DISSOLUTION

(a) This Union may not merge, amalgamate with, or transfer its jurisdiction to another trade union or association unless a SPECIAL MEETING of its members has been convened for the purpose of considering such merger, amalgamation or transfer of jurisdiction, at which special meeting the resolution must be passed by a majority vote of all members of the Union present at the meeting. No less than three (3) days notice of such special meeting shall be given in accordance with the provisions of Article 14 of this Constitution. However, by unanimous agreement of the executive board of the Union, it is empowered with the authority to merge, amalgamate, or transfer its jurisdiction to another trade union or association without convening a SPECIAL MEETING of its members to consider such merger, amalgamation or transfer of jurisdiction.

[emphasis added]

[10]. Discussion of CURRE's possibly merging with other trade union organizations began in late 1980, when Mr. Whyte says he was approached by a UFCW organizer. Whyte met with representatives of UFCW on two or more occasions thereafter. CURRE received a merger proposal from UFCW by letter dated March 9, 1982. This was followed by a meeting in the latter part of 1982, when Frank Benn of the UFCW made a presentation to CURRE's executive. The executive was not receptive, and Benn, in turn, was not pleased with his reception. It was Whyte's evidence that CURRE's executive became "terrified" of Mr. Benn as a result of certain things Benn said at this meeting about the consequences to CURRE of rejecting merger with UFCW. Merger suggestions continued to come from UFCW, and the executive's terror is said to account for a letter to Mr. Benn of October 1, 1983, under the signatures of the President and Vice-President of CURRE, in which CURRE's response to further correspondence from UFCW on the subject of merger began with the following observations:

As you will recall, at a meeting held some months ago, this matter was discussed at some length and it was subsequently made very clear to Mr. Whyte that, the possibility of such a merger was absolutely unacceptable from our point of view. Moreover, I feel it is only fair to point out to you, that the relevant sections of our Constitution require the approval of ninety-live percent of our total membership of a merger or amalgamation with any other organization before any such merger or amalgamation can take place. In light of this, our executive in itself, is not vested with any authority to authorize or effect an amalgamation of the type which you have suggested.

[emphasis added]

That letter went on to draw unfavourable comparisons between UFCW contracts and CURRE's contract with the SCEA, and ended with the suggestion that CURRE was far more competent to represent its members than the UFCW would be. That letter was copied to all CURRE shop stewards. At about the same time, CURRE circulated to employees it represented a "Letter from the President" which accused the UFCW of "trying to bully us into a forced merger of our unions." This letter also referred to discussions CURRE's executive had had with both HERE and the Retail, Wholesale and Department Store Union concerning possible merger or affiliation. At that stage, none of those discussions had led to any acceptance by CURRE's executive of any merger proposal. In late 1983, after CURRE's "Letter from the President" had been circulated, a fourth suitor, the Teamsters Union, appeared on the scene. Whyte felt his initial discussions with representatives of that union were fruitful; by December 15th he felt that a deal had been done and that all that remained was the issuance of a charter and completion of certain documentation. The proposed merger was first mentioned outside the executive board at a meeting of CURRE' s shop stewards and business agents in Toronto on December 15, 1983. Whyte could not recall whether he told those in attendance that there had been or that there would soon be a merger with the Teamsters Union. He held a vote of some sort on the subject of that merger. Thereafter, the deal Whyte thought he had made with the Teamsters Union started to fall apart. Terms Whyte and CURRE's executive considered important, terms which had been agreed to by Teamster representatives in earlier discussions, were thereafter rejected by other Teamster representatives. Whyte had had merger discussions with Rees and other HERE representatives off and on since late 1981; the most recent round of discussions had begun in October, 1983, and had died off again the following month. Rees was contacted by CURRE again in early January, 1984. He was told that the executive was then considering merging either with HERE or with the Teamsters Union, that a decision would be made January 13th, and that Rees should be present that day to make his case to CURRE's executive board.

[11]. CURRE's executive board consisted of the appointed General Manager and the officers of the union. CURRE's purportedly amended constitution provided for four elected officers: President, Executive Vice-President, Vice-President and Secretary/Treasurer. Both the "amended" and original constitutions gave the President the power to make a temporary appointment to fill any vacant executive position pending an annual election. That is how Seppo Nieminen had been appointed Secretary/Treasurer. The office of Executive Vice-President, which had been created by the purported 1981 amendments to the constitution, was not filled until December, 1983, when William Whyte' s brother Jim was appointed to that position by the President. The incumbent President and Vice-President had been elected, CURRE claims, at the annual or "regular" meeting of November 27, 1981. It seems there had been no formal election of officers at the regular meeting in 1982 because~ apart from the executive, only three or four members of the union had attended and it had not seemed to the executive that there was much interest in an election at that meeting.

[12]. At their meeting with Mr. Rees on January 13th, CURRE's executive board reviewed HERE's merger proposal. That proposal called for merger of CURRE into a local of HERE which would be brought into existence for that purpose and would adopt by-laws whose provisions were acceptable to CURRE's executive board and had been pre-cleared with HERE's General President. The executive board then passed the following unanimous resolution:

RESOLUTION OF C.U.R.E. [sic]

WHEREAS the Hotel Employees and Restaurant Employees International Union has agreed to issue a charter to the Canadian Union of Restaurant and Related Employees, Hotel Employees and Restaurant Employees Union, Local 88.

AND WHEREAS attached to this Resolution are the by-laws agreed upon for Local 88 subject to such amendments as may be properly enacted by the membership of Local 88 from time to time.

AND WHEREAS this Executive Board is empowered by Article 19 of the constitution of CURE to merge with and to transfer its jurisdiction to another trade union.

AND WHEREAS CURE. desires to merge with H.E.R.E. and become a Local thereof.

THEREFORE it is resolved that:

(1) C.U.R.E. shall merge into the Canadian Union of Restaurant and Related Employees, Hotel Employees and Restaurant Employees Union, Local 88 so that the rights, obligations and membership of C.U.R.E. shall become the rights, obligations and membership of Local 88.

(2) In order to effect the merger, Bill White and I are hereby authorized on behalf of CURE. to complete the application to H.E.R.E. for a charter and by-laws governing Local 88 and to take all other steps necessary to complete the merger.

(3) The merger shall take effect as of the date on which the charter to Local 88 is issued and its by-laws adopted.

Those present then completed a charter application form supplied by HERE. As HERE's constitution required that that application be signed by twenty-five or more persons, Mr. Whyte went out to a nearby Swiss Chalet restaurant to obtain additional signatures. Upon Whyte's return, Seppo Nieminen made out and gave Rees a CURRE cheque in the amount of the charter application fee required by HERE. Rees and Whyte then placed a long distance telephone call to the General President of HERE, who was in Palm Springs, California, attending a meeting of the HERE executive. Rees advised the General President that he had in hand a completed charter application form and application fee, and that the CURRE executive had approved the proposed merger Rees had earlier discussed with him. In response, HERE's General President advised Rees that the draft by-laws had been approved and that a charter was being issued in the name of the Canadian Union of Restaurant and Related Employees, Hotel Employees and Restaurant Employees Union Local 88, effective immediately. A charter dated January 13, 1984, was eventually received by Rees which, apart from some typographical errors of no consequence, confirms Rees' testimony in this regard. Upon completing this telephone conversation, Rees called a meeting of the newly formed Local 88. Those present signed membership applications into Local 88 and paid the required $1.00 initiation fee. The previously prepared by-laws were adopted as by-laws of Local 88 by vote of the new members, who then elected officers and unanimously passed a resolution to the effect that the executive board be instructed "to accept merger of CURRE." The new executive board of Local 88 then met and, pursuant to a special provision of the newly adopted by-laws of Local 88, accepted the merger of CURRE into Local 88. The foregoing evidence satisfied us that Local 88 was a trade union within the meaning of paragraph l(l)(p) of the Labour Relations Act, as we noted in an interim decision dated July 23, 1984, in Board File No. 2628-83-R.

[13]. The applicant took the position that the purported merger between CURRE and Local 88 was not effective. Applicant's counsel offered a number of alternative grounds on which that conclusion might be based, but the most serious and substantial of those arguments was that CURRE had not followed the procedures prescribed in its constitution when it set out to amend that constitution to provide for executive board approval of mergers. Articles 7 and 14 of the constitution in effect at the time of the purported amendments provided as follows:

ARTICLE 7 - AMENDMENT OF CONSTITUTION

(a) This Constitution may only be amended in accordance with the following procedures:

(i) A member desiring an amendment shall present, at a regular meeting of the Union, a NOTICE OF MOTION setting forth the proposed change. The NOTICE OF MOTION shall be given orally to the assembly and in writing to the Chairman and it shall be recorded in the minutes of the meeting.

(ii) The said NOTICE OF MOTION shall be included in the official notice of the next regular meeting, as part of its agenda.

(iii) At the regular meeting immediately subsequent to the meeting at which the said NOTICE OF MOTION was given, the member who tendered it shall present its motion, orally to the assembly and in writing to the Chairman, who shall cause it to be recorded in the minutes of the meeting. The motion may be considered by the assembly only after it has been seconded by two (2) other members, failing which it shall be neither discussed nor voted upon. A motion to amend this Constitution shall not pass unless it receives in its favour a seventy-five percent (75%) majority vote of members in attendance at the meeting.

ARTICLE 14 - MEETINGS

(a) A regular meeting of the members of the Union shall be held once every twelve (12) months, except as otherwise provided herein, at a date, time and place to be determined by the President and/or Executive Board. Normally the regular meeting will be held in November.

(e) Every official NOTICE of a regular or special meeting of the members of the Union shall be posted in a location where it is most likely to come to their attention. Each such NOTICE shall be printed or typed and shall clearly state the date, time and place of the meeting, and it shall also contain an agenda setting forth the business to be dealt with thereat. In the case of a regular meeting, the notice shall be for a minimum of seven (7) days prior to the scheduled date of the meeting. Notice of a special meeting shall be posted for a minimum of four (4) days prior to the scheduled date of the meeting. Where a special meeting is scheduled to consider business that will be of concern to the Union as a whole, the notice shall be posted for a minimum of seven (7) days.

Evidence with respect to the amendment process focused on meetings held on three dates:

October 29, 1980, November 12, 1980, and November 27, 1981.

[14]. The evidence of CURRE's witnesses was that they called a special meeting of the union on October 29, 1980 by notices posted in the various locations where members of CURRE were employed. Each notice set out a brief agenda; one of the items was "changes to the constitution". On the instructions of Tony Michael, a lay adviser retained by CURRE to advise it with respect to constitutional changes, a total of three meetings took place on the evening of October 29th. At the first such meeting, one of the members in attendance presented the following Notice of Motion:

I Sandy Hoffman move the following Notice of Motion that the General Manager and the Officers of the Union are hereby authorized to be the committee to review the Constitution and needed Amendments which will be presented to the November 12, 1980 Regular Meeting for approval.

The first meeting then adjourned, and a second meeting was immediately convened, at which the Notice of Motion was read for a second time. That meeting was then adjourned, and was followed by the third meeting of the evening, during which the witnesses say there was some discussion about the changes which might be made to various of the articles of the existing constitution. The Hoffman Notice of Motion was then read for the third time that night, and the Minutes of the third meeting record that it was "accepted as read by all members present." The meeting then considered other matters, and was later adjourned.

[15]. The meeting of November 12, 1980 was said to be a "regular meeting" of which notice had been given by posting notices on bulletin boards at the places of work of employees represented by CURRE. On the question of constitutional changes, the Minutes of that meeting record that the Minutes of the special meeting held on October 29, 1980, were read and accepted as read. Minutes of that meeting recite that:

A motion was made by Linda Croteau, "That the question of amendments to the Constitution to be presented at this meeting be referred to the Executive Board and the General Manager for final amendment in accordance with the Notice of Motion of October 29, 1980." The motion was seconded by Sandra Hoffman and Litsa Mourelatos, the motion carried.

Although there is no reference to it in the Minutes, Mr. Whyte and Mr. Brooks both claimed that the wording of proposed amendments to the constitution, which they say had been reduced to writing by that time, was read out verbatim at this meeting.

[16]. November 27, 1981 is the date on which CURRE claims its next regular meeting was held. Despite constitutional provisions requiring that copies of notices of meetings be maintained, CURRE and its officers were unable to produce any copy of the notice they allege was given for that meeting. Whyte testified that notices for that meeting must have been prepared by Brooks and sent by mail to shop stewards, who would have been asked to post them. Whyte conceded he did not post those notices, nor did he recall seeing them posted. He did not recall what was in the notice, other than the time and place of the proposed meeting. Brooks claims he did prepare a notice, which he said included an agenda setting out the matters to be discussed, and indicated that those would include "proposed changes to the constitution". However, he recalled that the notice did not make reference to the section or paragraph numbers affected, did not refer to the Hoffman Notice of Motion of October 29, 1980, and did not identify or describe the proposed changes in any way. Brooks recalled that he had personally attended to the posting of these notices in Swiss Chalet locations in Ontario. Notices to employees CURRE represented at locations in other provinces were sent to the various business representatives who looked after CURRE's interests in those provinces.

[17]. Brooks said sixteen to eighteen CURRE members were present at the regular meeting of November 27, 1981. He described this as one of the better attendances at a regular meeting. Insofar as they refer to constitutional matters, the Minutes of that meeting record:

The meeting then moved to the next order of business under the heading of Old (Unfinished Business). A motion was made by Linda Croteau that members present should ratify the Constitution with its several amendments, being first read and explained to the members present. The motion was seconded by David Brooks and April Kennoway. Motion carried.

Mr. Whyte then read the Constitution [sic] amendments to the members present. Article [sic] amended were 2(a), (b), 6(b). 9, 10 (ii), 12(a) (c), 19(a).

A motion was made by April Kennoway that members present ratify the new Constitution. The motion was seconded by Grace Thom and David Brooks. Motion carried.

Brooks acknowledged that very few of CURRE's members, if any, would have had copies of its Constitution in October of 1980. There was no evidence that that situation was any different in November of 1981, or at any time thereafter. CURRE did not have a regular procedure for circulating Minutes of the regular or special meetings to its members. Brooks indicated that CURRE represented fifteen hundred to sixteen hundred employees in 1980, a figure he said had risen to over seventeen hundred when Brooks left CURRE in August of 1983. Before the unavailability of copies of the CURRE constitution became an issue in the organizing campaign waged by UFCW, CURRE had few requests for such copies; CURRE generally responded to any request for a copy of its constitution with a suggestion that the person making the request meet with an officer of the union to review the constitution and discuss any questions he or she might have about it.

Argument

[18]. Counsel for the interveners relied on the 1981 amendment to Article 19(a) of CURRE's constitution as providing the authority for the approval of a merger by unanimous resolution of CURRE's executive board. He acknowledged that in effecting this amendment CURRE did not comply with the specific notice requirements of Article 7(a)(ii) of its constitution. He argued, however, that the issue was not whether that article had been complied with in 1980 and 1981, but whether the Board should, in 1984, "strike down" the 1981 amendments. He submitted that the procedures adopted by CURRE for the amendment of its constitution were taken in good faith, that no member had challenged the validity of the amendments at the time, and that no one except the UFCW and its supporters had challenged the validity of those amendments since. Counsel cited Re Canadian Temple Cathedral of the Universal Christian Apostolic Church, 1971 CanLII 1031 (BC SC), 21 D.L.R. (3d) 193 (B.C.S.C.) for the proposition that the doctrine of laches may be invoked against those who delay an attack on the sufficiency of notice of proceedings taken to enact constitutional provisions. He cited Pelech v. Ukranian Mutual Benefit Association of St. Nicholas of Canada, 1940 CanLII 303 (MB KB), [1940] 4 D.L.R. 342 (Man. K.B.) for the proposition that constitutional changes are a matter of "internal management", with which courts will not interfere when it is alleged that insufficient notice had been given of proceedings taken to effect constitutional changes. He cited this Board's decision in Goldcrest Products Limited, [1973] OLRB Rep. Aug. 436 for the proposition that this Board will not interfere where it is alleged that proceedings are without constitutional authority. He relied also on Public Utilities Commission of the Borough of Scarborough, [1982] OLRB Rep. Apr. 609, where the Board took particular note of the fact that none of the members of the newly formed applicant trade union had challenged the constitutionality either of the initial installation of only four of the nine officers contemplated by its constitution or of the administration of the trade union's affairs by those officers pending the trade union's first convention. Counsel for Local 88 and CURRE asked us to find that there had been a merger, and to issue the appropriate declaration pursuant to section 62 of the Labour Relations Act.

[19]. Counsel for the applicant argued that the result of CURRE's failure to follow the notice provisions of Article 7(a)(ii) was that CURRE's constitution had not been amended so as to give the executive board authority to effect a merger; consequently, the steps taken by the executive board on January 13, 1984, had not accomplished a merger, and counsel submitted that the Board should so declare. In answer to the contention that proceedings for the amendment of a constitution are matters of internal management with which courts will not interfere, counsel cited Cordiner v. Ancient Order of United Workmen of the Province of Ontario, [1912] O.WN. 549 (Ont. Div. Ct.), Faulds v. Hesford, 1957 CanLII 252 (BC SC), 23 WW.R. 625 (B.C.S.C.), Howard v. Parrinton, 1971 CanLII 394 (ON HCJ), 21 D.L.R. (3d) 395 (Ont. H.C.) and Astgen v. Smith, 1969 CanLII 488 (ON CA), [1970] 1 O.R. 129, 69 CLLC 14,198 (Ont. C.A.), all cases in which courts have intervened to strike down proceedings taken by trade unions without properly complying with the provisions of their constitutions. Counsel noted that the Board was not faced with a question of declining to interfere, but with a claim for affirmative relief under section 62 of the Labour Relations Act. He argued that the interveners had not made out a case for relief under that section. He cited Beef Terminal Limited, [1971] OLRB Rep. May 300, Navco Food Services Ltd., [1971] OLRB Rep. June 326, Zehrs Markets, [1977] OLRB Rep. Oct. 637 and Zehrs Markets, [1978] OLRB Rep. Jan. 86 in support of his submission that this Board requires satisfactory proof of compliance with constitutional notice provisions when faced with a claim for a declaration of successorship under section 62 of the Act. Counsel noted that the notice provisions of CURRE's constitution were virtually identical to the provisions considered in Standard Tube Canada Ltd., [1976] OLRB Rep. July 375, where non-compliance with such provisions was fatal to the validity of the constitutional amendment relied upon as authority for a merger.

[20]. Counsel also submitted that the merger transactions of January 13, 1984, would have been improper even if Article 19(a) of the constitution had been properly amended, because of what counsel argued was a general requirement in the Board's jurisprudence that notice be given of merger transactions. In this regard, counsel relied on Astgen v. Smith, supra, as well as comments of the Board in Beef Terminal Limited, [1970] OLRB Rep. Apr. 75, Standard Tube, supra, at paragraph 11, Zehrs Markets,[1977] OLRB Oct. Rep. 637 at paragraph 16, Children's Aide Society of Metropolitan Toronto, [1980] OLRB Rep. Jan. 24 at paragraph 11 and Trans-Nations Incorporated, [1981] OLRB Rep. Sept. 1298 at paragraph 22. This general notice requirement had not been met with respect to a proposed merger with HERE, counsel argued. Indeed, CURRE's members were informed, by copies to their stewards of its letter to UFCW, that no merger could be effected without a 95% membership vote. In response to the argument that no challenge had been taken at the time of the constitutional amendments, counsel for the applicant submitted that there was no reason to suppose that anyone outside of the executlve was fully aware of the changes in question. He noted that the Canadian Temple and Pellock cases were both concerned with the rights of shareholders or members of incorporated entities, whereas here we were concerned with the rights of members of an unincorporated association. As for CURRE's reliance on the doctrine of laches, counsel for the applicant argued that this Board could not apply the doctrine as it does not have the powers of a court of equity, citing Re Libby, McNeil & Libby of Canada Ltd. 1978 CanLII 1392 (ON HCJ), 91 D. L. R. (3d) 259 at 281 and Re Brayshaws Steel Ltd., 1971 CanLII 364 (ON CA), 2 O.R. 549 at pages 555-557.

[21]. Counsel for the interveners responded to the argument for a super-added notice requirement by drawing to the Board's attention the fact that the constitution in question in Trans-Nations Incorporated, supra, gave the General President of International Union the power to effect a merger of two of its locals without any notice to anyone connected with either local. He relied also on the Board's decision in Waterloo Spinning Mills Ltd., [1984] OLRB Rep. March 542 at paragraph 35, where the Board noted that the Labour Relations Act contains no requirement for internal union democracy. In any event, counsel argued that members would have had notice of the possibility of a merger with HERE by means of the "Letter from the President" circulated in the fall of 1983.

Reasons for Decision

[22]. In paragraph 7 of our decision of September 12, 1984, we said:

7. The Board finds that the attempt by the executive board of CURRE to cause CURRE to merge into Local 88 was legally ineffective, and the Board declares that Local 88 has not acquired CURRE's rights, privileges and duties under the Act.

Our reasons for that decision begin with some general observations about trade unions and their rights, privileges and duties under the Labour Relations Act.

[23]. The Labour Relations Act deals with what its preamble describes as "the practice and procedure of collective bargaining between employers and trade unions as the freely designated representatives of employees" (emphasis added). Under the practice and procedure elaborated by the substantive provisions of the Act, employees in a "unit of employees that is appropriate for collective bargaining" have the collective right to have a trade union selected by the majority act as representative of all of them in collective bargaining with their employer. Once selected by a majority of the persons employed in a unit at a particular time, a trade union ordinarily remains the representative or bargaining agent of every person thereafter employed by that employer from time to time in that unit until such later time as a majority of the persons then employed in that unit choose to terminate its representation or select another trade union as their representative. When we speak of a trade union having bargaining rights for or With respect to a unit of employees, we mean that, from the perspective of and in accordance with the provisions of the Labour Relations Act, the trade union has acquired and enjoys for the time being the right to act and be recognized by their employer as the exclusive bargaining agent of all employees in that bargaining unit. The Act imposes on all employers and all trade unions obligations designed to protect from interference the individual right of employees to freely participate in the selection of a bargaining agent for the unit in which they are employed. That right is, by necessary implication, a personal right, one which employees cannot be obliged by contract to refrain from exercising or to exercise in any particular way.

[24]. The Act defines "trade union" as "an organization of employees formed for purposes that include the regulation of relations between employees and employers" (clause l(l)(p)). The Act contemplates that such an organization will have "officers", "officials", or "agents" who act on its behalf, and that employees will be able to apply for membership in it. These are characteristics shared by unincorporated associations and certain types of corporations. For the most part, trade unions in Ontario are unincorporated associations whose legal characteristics were described by Evans, J. A. (as he then was), in the following extracts from his judgment in Astgen et al. v. Smith et al, 1969 CanLII 488 (ON CA), [1970] 1 O.R. 129, 69 CLLC 14,198 (Ont. C.A.) at pp. 133-134 and 135:

Prior to dealing with the merger agreement I consider it desirable to determine the precise legal status of a trade union or labour union, the relationships existing among the membership inter se and the relationships of each member to the totality of the persons associated together. I concede at the outset that a labour union under the Labour Relations Act, R.S.O. 1960, c. 202, and allied legislation has a "status" conferred by such legislation which makes it somewhat different from a fraternal organization or an athletic club but apart from such statutes a labour union is essentially a club, a voluntary association which has no existence, apart from its members, recognized by law. A club is basically a group of people who have joined together for the promotion of certain objects and whose conduct in relation to one another is regulated in accordance with the constitution, by-laws, rules and regulations to which they have subscribed.

The proposition that a trade union has a special status, that it is a sort of hybrid corporation, has no foundation in law. This misconception is fostered by the "legal entity" character which labour legislation has thrust upon trade unions but is not legally supportable outside the purview of those statutes. While trade unions have historically strenuously opposed and rejected any movement toward corporate status with its attendant strictures, there has evolved a concept, which has no basis in law, that unions have a quasi-legal entity; that they have a peculiar status which clothes them with the advantages of corporations but shields them from the restrictions and liabilities attaching to corporate entities. The misunderstanding, and it is a fundamental one, must not be allowed to becloud the issues herein.

We are not concerned in this appeal with the pseudo-corporate status bestowed on labour unions by statute; nor are we assisted by English case law in view of the fact that under various Trade Unions Acts, trade unions in England may be registered and upon registration are vested with certain powers and responsibilities. Ontario has no comparable legislation and resort must be had to the common law to determine both status and capacity. Mine Mill is not a corporation, individual or partnership, and is accordingly not a legal entity; it is an unincorporated group or association of workmen who have banded together to promote certain objectives for their mutual benefit and advantage and in law nothing is recognizable other than the totality of members related one to another by contract. The objects and purposes of the association are spelled out in the memorandum of association usually referred to as the "constitution"; the by-laws or rules provide the machinery for the proper carrying out of activities intended to advance the objectives and purposes of the voluntary association. Each member of Mine Mill, upon being granted membership, subscribed to those purposes and objects and in so doing entered into a contractual relationship with every other member of Mine Mill, Rand, J., in Orchard et al. v. Tunney, 1957 CanLII 57 (SCC), [1957] S.C.R. 436 at p. 445, 8 D.L.R. (2d) 273 at p. 281, stated:

each member commits himself to a group on a foundation of specific terms governing individual and collective action ... and made on both sides with the intent that the rules shall bind them in their relations to each other.

I adopt also the proposition stated by Thompson, J., in Bimson v. Johnston et al., 1957 CanLII 131 (ON HCJ), [1959] OR. 519 at p. 530, 10 D.L.R. (2d) 11 at p. 22. which was affirmed on appeal 1958 CanLII 345 (ON CA), [1958] O.W.N. 217, 12 D.L.R. (2d) 379:

that a contract is made by a member when he joins the union, the terms and conditions of which are provided by the union's constitution and by-laws ... The contract is not a contract with the union or the association as such, which is devoid of the power to contract, but rather the contractual rights of a member are with all other members thereof.

There is no limit to the lawful objects for the furtherance of which men may associate voluntarily, and in my view, provided it is properly authorized by every member of the association, there is no restriction upon the powers of the members to alter the objects for which they became associated or to terminate the relationship inter se of those associated, or to agree individually to become bound by other contractual relationships to the members of the same or some other group of associates. In this sense of the meaning of ultra vires I do not consider that the realization of what was contemplated by the provisions of the merger agreement would be beyond the capacity of the members of Mine Mill provided that there was unanimous approval individually or by means of some procedure which all of the members had agreed upon.

The contract of association is not between the members and some undefined entity which lacks the capacity to contract; it is a complex of contracts between each member and every other member of the union. These are individual contracts impressed with rights and obligations which cannot be destroyed in the absence of the specific consent of each person whose rights would be affected thereby.

[25]. Trade unions which are employer dominated, or which engage in discrimination on prohibited grounds, cannot acquire or assert bargaining rights which will be recognized under the Act (see sections 13 and 48). Beyond that restraint and the implied requirement that it have a constitution, officers and employee "members", the Labour Relations Act does not prescribe or regulate the form of a trade union's internal organization, or the content of its constitution. For historical and practical reasons, typical trade union constitutions provide for what they would describe as a "democratic" structure, in which members have some say both in the selection of those who act on its behalf and in the decisions and actions ultimately taken. "Democratic" structure is not, however, a requirement of the Labour Relations Act: see C. S. A. 0 National (Inc.) v. Oakville Trafalgar Memorial Hospital Association et al., 1972 CanLII 563 (ON CA), [1972] 2 O.R. 498; (1972) 26 D.L.R. (3d) 63 (Ont. C.A.); and, Canada Trust Mortgage Company, [1976] OLRB Rep. Oct. 596 at paragraph 15. With certain limited exceptions (the requirements of sections 82, 84, 85 and 86, for example) the Act does not provide for supervision of the relationship between a trade union and its members as such or, more accurately, of "the complex of contracts between each member and every other member of the union." The focus of the Act is on the trade union's entitlement to represent employees in a bargaining unit or units and on the trade union's activities in that representative role. Of course, at least some of the employees in a bargaining unit will ordinarily be or have been members of the trade union which represents them. Some of the members of a trade union will ordinarily be or have been employees in a bargaining unit the union is or was entitled to represent. In the case of a trade union which represents only a single unit of employees of one employer, its members and the employees in the bargaining unit it represents may be all or nearly all the same people. Nothing in the Labour Relations Act requires or anticipates that result, however; that is why it is important in analyzing the Act to bear in mind that its primary focus is on the trade union in its character as an agent of bargaining unit employees, rather than on its internal structure and the inter-relationships of its members.

[26]. The right to serve as exclusive bargaining agent for a bargaining unit of employees is personal to the trade union which acquires it, just as the right to select or terminate the union as their representative is personal to the employees in the unit. If a trade union ceases to exist, its bargaining rights and any collective agreement to which it is patty will also cease to exist: Board of Light and Heat Commissioners of Guelph, 52 CLLC 17,024; Glass Guild Limited, 53 CLLC 17,057. Prior to the enactment in 1956 of the first of the predecessors of section 62 of the Labour Relations Act, the same principle applied when a trade union lost or changed its identity in the process of a merger or transfer of jurisdiction: Deloro Smelting and Refining Company Limited, 56 CLLC 18,037; and see Oliver Cooperative Growers Exchange v. Labour Relations Board, 1962 CanLII 359 (BC CA), 32 D.L.R. (2d) 440 (B.C.C.A.), rev'd on other grounds sub. nom. Labour Relations Board of B. C. et al v. Oliver Co-operative Growers Exchange, 1962 CanLII 46 (SCC), 35 DLR (2d) 694, 40 W.W.R. 333, 62 CLLC 15,428 (S.C.C.). The members of a trade union may take effective proceedings to transfer collective contractual and property obligations inter se to a larger group. They cannot, in their capacity as members of the trade union, effective]y convey to another entity the rights and obligations of that union as bargaining agent for a unit or units of employees, any more than a trustee or agent can transfer his trust or agency to another without the agreement of his cestuis que trust or principals. Of course, a trade union may undergo internal changes without losing or changing its identity. For example, changes of affiliation which involve no relinquishing, acceptance or imposition of control by any parent organization do not threaten the continuity and existence of bargaining rights: Hydro Electric Power Commission of Ontario, 57 CLLC 18,080; Navco Food Services Limited, [1971] OLRB Rep. Feb. 80. Mergers, amalgamations and transfers of jurisdiction can and do have such an effect, however, and that is why provision is made in section 62 of the Act for the Board to consider whether, when a bargaining agent has engaged in such a transaction, the "successor" should be permitted to act as bargaining agent for a unit of employees without securing the right to do so through certification or voluntary recognition.

[27]. Section 62 of the Labour Relations Act provides:

62. -(I) 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 proceedings, 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 (1), 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.

It is apparent from the language of the section that no question arises under it unless there has in fact been an effective merger, amalgamation or transfer of jurisdiction as a result of which it can be said that one trade union has in some sense become the "successor" of another. The constitutionally appropriate decision-making bodies of the predecessor and successor may each have so acted as to make the latter the successor to the former's property and contractual rights, and to have the web of contractual membership relationships of the latter replace or succeed that of the former. In that sense a trade union may establish it is the "successor" of another. Unlike the "successorship" provided for in section 63 of the Act, however, succession to a predecessor trade union's statutory and collective agreement rights and obligations does not follow automatically as a result of the predecessor and successor having engaged in a particular kind of transaction. Section 62 contemplates that a trade union which can be described as "successor" to another by way of merger, amalgamation or transfer of jurisdiction may not, despite that transaction, be found entitled to a declaration that it has acquired the statutory rights, privileges and duties of its predecessor. It is clear from the use of the word "successor" in the phrase "may declare that the successor has or has not ... acquired the rights, privileges and duties under this Act of its predecessor ..." (emphasis added) that the word "successor" is used in two different senses in section 62. One sense is as successor to contract and property rights recognized at common law and effectively conveyed by the predecessor; "successor", that is, in the sense that commercial law may recognize one unincorporated association as successor to the rights and obligations of another. The other sense is as successor to statutory rights. Section 62 clearly contemplates that a trade union might succeed in the first sense without succeeding in the second. This distinction was quite clear in the early Board decisions interpreting the predecessors of section 62.

[28]. The Board's practice on applications under what is now section 62 was described in the Hydro-Electric Commission of the City of Hamilton, 63 CLLC 16,261 in the following terms:

The practice of the Board has been to inquire whether the predecessor trade union has exhibited the desire and has taken the necessary steps to effect the merger, amalgamation or transfer of jurisdiction. The Board must also be satisfied that a majority of the employees in the bargaining unit concerned, have given their approval to the action of the predecessor trade union. The successor trade union must also have exhibited a desire and taken the necessary steps to merge or amalgamate with or accept the transfer of jurisdiction over the bargaining unit.

The Board must be satisfied that the parties have substantially met these requirements and that the employees concerned are not opposed to the merger, amalgamation or transfer of jurisdiction.

The Board's early decisions recognized that the granting of a declaration of successor status required more than the mere desire of employees in a bargaining unit to change their bargaining agent: Falconbridge Nickel Mines Ltd., [1960] OLRB Rep. May 73. The predecessor and successor trade unions must both have been willing to effect a merger, amalgamation or transfer and must have taken the necessary steps to accomplish that end; otherwise, the displacement of one by the other would properly be effected only by timely certification proceedings. The Board has no jurisdiction to make the declaration contemplated by section 62 unless it is first satisfied that a merger, amalgamation or transfer of jurisdiction has occurred, and that will not be so if persons or membership bodies within the predecessor and successor have purported to effect such a transaction without constitutional authority: Zehrs Markets, [1977] OLRB Rep. Oct. 637 at paragraph 10; Children 's Aide Society of Metropolitan Toronto, [1980] OLRB Rep. Jan. 24 at paragraph 2; Trans-Nations Incorporated, [1981] OLRB Rep. Sept. 1298 at paragraph 22; Jaegar Machine Company of Canada Ltd., [1983] OLRB Rep. July 1082 at paragraph 11; Brewers Warehousing Company Limited, [1974] OLRB Rep. July 461.

[29]. In assessing a predecessor's compliance with the terms of its constitution in effecting a merger, amalgamation or transfer of jurisdiction, the Board must consider whether the constitutional provisions relied upon by the predecessor properly formed part of its constitution at the time of the transactions in question. That very issue was addressed by the Board in Standard Tube Canada Limited, [1976] OLRB Rep. July 375. In that case, merger of the predecessor and successor had been approved by a majority of votes cast at a meeting of members of the predecessor. The predecessor and successor relied on that vote as having satisfied the terms of a provision for merger which had been introduced into the predecessor's constitution by a prior purported amendment. The provisions of the predecessor's constitution respecting constitutional amendment and notice of meetings were identical in all material respects to the provisions of Articles 7(a) and 14(t) of CURRE's constitution; they required that any constitutional amendment be the subject of at least two regular meetings, and that the text of any proposed amendment be set out in the notice of the second meeting. As in this case, the predecessor in the Standard Tube case failed to set out the text of the proposed amendment in a notice of the second meeting at which it was to be considered and enacted. Indeed, in Standard Tube no written notice was given of that second meeting. The Board found that the predecessor's failure to comply with these notice provisions was fatal to the validity of the constitutional amendment and, hence, fatal to the application for a declaration with respect to the merger whose efficacy depended on the validity of that amended constitutional provision.

[30]. Our examination of the steps taken by CURRE to amend its constitution was not a matter, as the interveners argued, of deciding whether or not to "strike down" the amendments in question. The issue we had to address was whether those amendments had ever been effectively made, having regard to the law which governs the conduct of the affairs of unincorporated associations. In that regard, we were prepared to assume that the law will relieve against mere technical deficiencies when there has been substantial compliance with the spirit of existing constitutional provisions. A requirement that a notice of meeting set out the business intended to be transacted at that meeting is not, however, a mere technical requirement. Members receiving notice of a meeting will appreciate that they may be bound by the actions of those who attend the meeting. Notice of the business to be transacted is important to each member's decision whether or not he or she should attend the meeting to participate in and attempt to influence deliberations on matters of importance to him or her. Some subjects of discussion are more fundamental or important than others. Some constitutional amendments will be more important to members than others. Matters involving merger, amalgamation or transfer of jurisdiction are commonly considered very fundamental and very important to members. This may explain the comments of the courts and panels of this Board to the effect that express notice that merger is under consideration may be implicitly required even if there is no express constitutional requirement for detailed notice. Here, however, it is not necessary to imply any notice requirement; the requirements of CURRE's constitution were quite specific: no constitutional amendment could be effected except at a meeting for which notice had been properly given setting out the precise text of the proposed amendment.

[31]. It is not clear how many members CURRE had at the time notice was or ought to have been given for the meeting of November 27, 1981. The number of employees it purported to represent exceeded fifteen hundred. Most of those would have been in Ontario and the collective agreement which the intervener claims covered all such employees required that they be members of CURRE. In the absence of complete compliance with the provisions of its constitution, not even a substantial fraction of CURRE's members could have known that anyone was seeking to so amend CURRE's constitution as to place in the hands of its executive board the power to select the organization in which they might in future have membership obligations. In the circumstances, the relative handful of people said to have attended the meeting of November 27, 1981, proceeded without constitutional authority in purporting to effect any amendment to CURRE's constitution. Whatever may have been done at that meeting was simply ineffective, as a matter of law, to bind members of CURRE not present. If any general notice was given of that meeting, a matter about which we were left in some doubt, and if that notice did refer, without particularity, to a proposed constitutional change, we were satisfied that the notice was insufficient to satisfy either the letter or the spirit of the prerequisites to amendment prescribed by CURRE's constitution. Accordingly, we found that there had not been a merger, amalgamation or transfer of jurisdiction by which Local 88 became the successor of CURRE in any sense relevant to the application of section 62.

[32]. Counsel for the interveners suggested that we might exercise our discretion under subsection 62(2) to order a representation vote if we found that the steps taken to effect the merger of CURRE and Local 88 were incomplete. We determined we would not do so. Even if a representation vote disclosed majority support of Local 88 in any of the affected bargaining units, that would not alone be a sufficient basis for a successorship declaration with respect to those units: Falconbridge Nickel Mines Ltd., supra. There must also be an effective merger, amalgamation or transfer of jurisdiction before there can be any question of one union succeeding to the statutory rights and obligations of another under section 62. A representation vote can be of no assistance in determining whether a transaction had the authorization required by the participants' constitutions when it occurred. Unless the relevant constitution so provided, a representation vote could not repair any inadequacy in the steps taken by the predecessor or the successor to obtain the necessary authorization.

[33]. The interveners' request that we test the wishes of employees if we found a defect in their merger proceedings stood in sharp and disturbing contrast to their submission that, but for such a defect, CURRE's failure to ask affected employees whether they wished to be represented in future by a Local of HERE should be of no consequence the Board's decision whether Local 88 should be declared the successor to CURRE's statutory right and obligation to represent those employees. In view of that disregard of employee wishes by CURRE's executive, we think it important to observe that the wishes of affected employees are always a relevant concern on an application under section 62. That is very clear from the language of the section itself, and particularly the provision for conduct of representation votes which, as we have noted, can only have the purpose of testing employee wishes. The Board's early decisions, particularly Hydro-Electric Commission of the City of Hamilton, supra, made it clear that the approval of affected employees was required in addition to approval of the trade unions involved. The then Chairman of this Board quoted Hydro-Electric Commission of the City of Hamilton with approval in Corporation of the City of Brockville, [1979] OLRB Rep. Feb. 76, and at paragraph 11 reiterated that:

The Board's concern when administering section 54 [now 62] is that both the predecessor and successor trade union have given clear approval of the proposed transaction, and that is has also been approved by the employees concerned.

[emphasis added]

[34]. The language of section 62 of our Act was obviously the model for the nearly identical provisions of section 54 of British Columbia's 1973 Labour Code. P.C. Weiler was one of the authors of that Code and served as the first chairman of the Labour Board it created. In the later capacity, Professor Weiler had this to say about that provision in British Columbia Ferry and Marine Workers' Union et al., [1978] 1 Can. L.R.B.R. 17 at pages 19 and 20:

As a matter of policy, the Board's primary concern in applications of this nature will be to ascertain whether the unions involved have consulted the wishes of the workers who are specifically affected by the transfer of jurisdiction. This policy flows from the language of Section 54...

An application under Section 54 involves the replacement of one trade-union by another as the certified bargaining agent. Most instances of such replacement are a result of applications for certification pursuant to Section 39(2). The Board's policy on such "raids", where the applicant union satisfies us that it has the support of 50 percent of the membership, is to conduct a representation vote to decide who will be the certified bargaining agent. (See CAIMAW et al. and Western Canada Steel et al., [1974] 1 Canadian LRBR 22.) It might be argued that the Board should follow the same practice in dealing with transfers of jurisdiction under Section 54. However, in the Board's view, the situations are substantially different. In a raid situation one union is seeking to supplant another against the wishes of the incumbent union, while in an application under Section 54 the applicant union is seeking to supplant the incumbent in accordance with a mutual agreement. This element of cooperation places the situation in an entirely different perspective than that posed by a "raid". Therefore, under Section 54, Board policy is not to conduct a representation vote itself when its investigations disclose that the union's internal procedures have given the affected employees an adequate opportunity to express their views and to reach a majority verdict on the transfer.

In our view, the same observations may be made about applications under section 62 of the Ontario Labour Relations Act.

[35]. In this case, the officers of CURRE proceeded with the purported merger without consulting the wishes of the employees CURRE represented. CURRiE's executive board simply took the position that it was entitled to effect a merger without consulting those wishes. In answer to the proposition that some such requirement was implicit in section 62, counsel for the interveners cited Trans-Nations Incorporated, supra, in which a merger of two local unions had been effected by order of the parent union's General President pursuant to a constitutional provision which authorized such action. A successorship declaration was granted in that case. Counsel offered this as authority for the proposition that the sensitivity of the proceedings of the predecessor and successor unions to the wishes of employees represented by the predecessor was not a matter of concern to the Board in disposing of an application under section 62. We note, however, that while the constitution in issue in Trans-Nations Incorporated did not require it, members of the two merged locals had been consulted with respect to their wishes before the merger was effected. Indeed, the issue of merger had been the subject of votes in each of the individual bargaining units represented by the predecessor. It is apparent that these steps were entirely adequate to satisfy the employee approval test pronounced in Hydro-Electric Power Commission of the City of Hamilton, supra, and reiterated in Corporation of the City of Brockville, supra. Having regard to its facts, Trans-Nations Incorporated can hardly be advanced as authority for the proposition that the Board will grant a successorship declaration following a transaction undertaken without reference to the wishes of employees affected.

[36]. If we have found that the provision quoted in paragraph 9 of this decision had been properly incorporated into CURRE's constitution before CURRE's executive board purported to approve merger with Local 88 in January, 1984, then we would have found that the two unions had merged at that time. However, in the circumstances of this case that would not have been enough to warrant a declaration that Local 88 had acquired the statutory rights, privileges and duties which, we must remember, CURRE could not simply "convey" to it. Even if its constitution had authorized the action CURRE's executive board took, that would not have changed or diminished the importance of the fact that the wishes of affected employees with respect to representation by a local of HERE were not consulted, either in the course of or apart from steps taken pursuant to CURRE's constitution to secure its approval of and agreement to the merger, before Local 88 made its applications under section 62. But for the interveners' failure to establish that they had merged, in these circumstances we would have ordered representation votes and only declared Local 88 to have acquired the statutory rights and obligations of CURRE with respect to those bargaining units in which representation by Local 88 was approved by a majority of voters.

[37]. As we found that there had been no effective merger of CURRE into Local 88, in paragraph 7 of our decision of September 12, 1984, we declared that Local 88 had not acquired the rights, privileges and duties of CURRE under the Labour Relations Act.

[38]. The obvious consequence of that declaration was that CURRE retained those rights and privileges and remained subject to the duties referred to in section 62, including any bargaining or collective agreement rights it might have. The applicant argued, however, that CURRE had somehow gone out of existence, so that any bargaining rights it may have had or collective agreements to which it may have been party could not be a factor in the disposition of the applications with which this decision is concerned. From time to time in the course of the hearing, counsel for the applicant put this proposition on the basis that an effective merger of CURRE and Local 88 would have resulted in the dissolution or disappearance of CURRE as a separate trade union, and that that result should be taken as having occurred even if the merger was not effective. That argument was without merit. If the efforts of executive board and other members of CURRE were constitutionally ineffective to achieve the intended merger between CURRE and Local 88, they must equally have been constitutionally ineffective to achieve any particular consequence of merger or an unintended total dissolution of the contractual framework which formed the legal substance of CURRE.

[39]. In final argument, counsel for the applicant rested his submission that CURRE had ceased to exist on the alternate ground that CURRE's activities, or the lack of them, in the period both before and since the attempted merger, should be treated by the Board as evidencing a disappearance of CURRE or an abandonment of its bargaining rights. Counsel pointed to CURRE's failure to keep up-to-date membership records, its failure to hold an annual meeting in 1983, the doubt about whether there had been any election of officers in 1982 and the fact that any bargaining rights to which CURRE might have claimed prior to January 13, 1984, had since that date been exercised only by Local 88 and its officers, and not by CURRE or its officers. We rejected that argument as well. This is not a case in which what was once found to be a trade union is discovered to be without a constitution, or to have otherwise lost every vestige of an "organization" in the sense that term has employed in the definition of "trade union" in paragraph l(l)(p) of the Labour Relations Act. The facts here are quite distinguishable from those with which the Board was faced in Allbright Platers Limited, [1972] OLRB Rep. Aug. 784 and Footwear Fashions Limited, [1981] OLRB Rep. Apr. 454, 81 CLLC 16,101. The Board will not lightly come to the conclusion that an organization has ceased to exist. For the purpose of assessing a question of that kind, the Board looks to whether the vestiges of an organization remain and, particularly, whether the organization has officers of some kind continuing to act with apparent authority: Dutch Laundry and Dry Cleaners Ltd., [1968] OLRB Rep. Apr. 45. The evidence of Mr. Nieminen was that none of the officers of CURRE had resigned their offices in that trade union. Most of them became, and at least some of them remained, officers of Local 88. Nieminen testified that once a question was raised about the effectiveness of the merger between CURRE and Local 88, the officers of Local 88 and CURRE agreed that the acts of Local 88's officers and employees would be treated as having been performed on behalf of CURRE if it transpired that the merger had not been effective. At the time of our decision of September 12, 1984, we had no reason to suppose that the persons who formed the executive of CURRE at the time of the purported merger would not do as they had agreed they would do, and ratify any acts performed in the furtherance of CURRE's bargaining rights by officers and employees of Local 88. Even without that express agreement, the hiatus and reason for it were not sufficient for the Board to find that CURRE has abandoned those bargaining rights. It was for those reasons that we reached the conclusion set out in paragraph 8 of our decision of September 12, 1984:

8. The Board finds that CURRE has not ceased to exist or otherwise lost any bargaining or collective agreement rights as a result of the ineffective attempt at merger, any lack of direct action by it (as opposed to action by Local 88) since then, or any failure to comply with provisions of its constitution.

Scope of CURRE bargaining rights

Scope and character of Agreement between CURRE and SCEA

[40]. As we have already noted, CURRE was certified to represent the employees of Foodcorp Limited at one of its Swiss Chalet Restaurants in October, 1978. Thereafter, CURRE organized Foodcorp employees at other Swiss Chalet restaurants. The history of those efforts up to the fall of 1979 was summarized in our decision of February 18, 1985. By the end of November, 1980, CURRE had been certified as exclusive bargaining agent for employees of Foodcorp Limited at more than thirty of its Swiss Chalet restaurant locations in the Province of Ontario. As we noted in our decision of February 18, 1985, a union now known as Hotel Employees and Restaurant Employees Union Local 75 was certified on October 25, 1979 to represent the employees of Foodcorp at one of its Swiss Chalet restaurants in Scarborough. CURRE displaced that union at that location as a result of a certification application granted March 15, 1983. The only "Swiss Chalet" employer for whose employees CURRE has ever been certified is Foodcorp (now Cara Operations Limited). Apart from the 1983 displacement application at the Scarborough location, the last such certification was granted in November, 1980.

[41]. In December, 1980, Wanda Paszkowski was hired by Foodcorp to serve as secretary to Allen Morrow, Foodcorp's new Director of Personnel and Industrial Relations. After serving in that capacity for a year, she became a personnel officer and, in August of 1983, Personnel and Industrial Relations Officer. During the hearings prior to our September 12th decision, she was described as Industrial Relations Manager of Foodcorp's successor, Cara Operations Limited. In those several capacities she has been involved in various aspects of Foodcorp's labour relations, including grievance handling and settlement, preparation for arbitration, and preparation for and participation in collective bargaining. She and other members of Foodcorp's Industrial Relations Department also provide those services to the Swiss Chalet Employers Association and its members.

[42]. In the course of her testimony before the Board, Ms. Paszkowski identified two documents she had prepared on the basis of her review of documentation available to her in Foodcorp's Industrial Relations Department. One was a summary which sets out, inter alia, the date of CURRE's certification (if any) and effective date of the first collective agreement with respect to each of a number of Swiss Chalet locations. The information set out in that document was not challenged. That information, together with Ms. Paszkowski's oral testimony, established that with respect to each of the Swiss Chalet locations for which CURRE was certified to represent Foodcorp employees in the period October, 1978 to November, 1980, Foodcorp and CURRE had subsequently entered into an individual collective agreement with a term of three years commencing on (in most cases) or shortly after (in some cases) the date on which CURRE had been certified for the individual location covered by that agreement. The second document prepared by Ms. Paszkowski and introduced as an exhibit during her testimony summarized further information with respect to those Swiss Chalet restaurant locations with which these hearings dealt prior to September, 1984. Locations at which the employer is not now Foodcorp or its successor, Cara Operations Limited, were said to have been "franchised" to the "franchisee" employer. This second document sets out the date on which each such location was "franchised". In most cases, Foodcorp had been operating a restaurant at that location prior to the "date franchised"; where that is so, the summary provided by Ms. Paszkowski also set out the date the restaurant was originally opened at that location by Foodcorp. In one case the summary shows that two successive franchisees had operated a restaurant at that location. It emerged from Ms. Paszkowski's testimony that two other locations dealt with in her summary had been the subject of franchises earlier than the franchise to the current employer, as we noted in paragraph 27 to 30 of our decision of September 12, 1984. The nature of the transactions by which locations were "franchised" was not explored in any detail in the evidence.

[43]. Ms. Paszkowski was present, in her capacity as secretary to Mr. Morrow, at a meeting held September 2, 1981, at which the Swiss Chalet Employers' Association was brought into existence. She testified that she prepared the minutes of that meeting. With the assistance of those minutes, she recalled that a form of constitution was presented and accepted by a unanimous vote of Mr. Morrow, representing Foodcorp, and the six other persons present, who she said were franchisees or representatives of a franchisees operating Swiss Chalet restaurants at that time. The minutes record the election of officers and the appointment of Mr. Morrow as General Manager of the Association. Ms. Paszkowski testified that the constitution presented at the meeting was signed by the elected President and Secretary-Treasurer of the Association. Below those signatures, the following entry and original signatures appear:

By attaching our names hereto, we hereby signify our approval of this Constitution and acknowledge that we are bound by its provisions and will conform therewith.

“Bruno Bini" "Diniz DoCouto" #108 Operating as #133 Operating as Swiss Chalet Bar B.Q. Swiss Chalet Bar B.Q.

"Sam Rahim" "Charles Cianchino" #121 - Rahim Foods #139 Operating as Limited Swiss Chalet Bar B.Q.

"Jose Goncalves" "Neil Surujnarain" #123 - 485376 Ontario #150 Operating as Limited Swiss Chalet Bar B.Q.

"Allen A. Morrow"

Foodcorp Limited

A second document purporting to be a constitution of the SCEA was also filed with the Board. Like the document which Ms. Paszkowski said was examined at the founding meeting, this second document bears the following notation:

Passed at a general meeting of this Association held at Toronto, this 2nd day of September, 1981.

Where original signatures appear on the document dealt with at the meeting, the names of those signatories appear on the second document in typewritten form in quotation marks, as though this second document were a trued-up copy of a document which bears original signatures. This second document contains provisions respecting annual dues and initiation fees which differ from similar provisions in the document actually discussed on September 2nd. Ms. Paszkowski testified that this second document was not discussed on September 2, 1981, and that there is no copy of it which bears original signatures. Her evidence was that this document was prepared about a week after the meeting of September 2, 1981, on the instructions of Mr. Morrow, who told her that the changed provisions had been approved in a telephone conference call of which Ms. Paszkowski had no direct knowledge.

[44]. On the view we take, nothing in this case turns on whether the SCEA constitution was amended at some time after September 2, 1981, in the manner Mr. Morrow represented to Ms. Paszkowski, so as to reflect thereafter the contents of the document in question. However, we want to make it clear it did not escape our notice that the document purports to be a true copy of a constitution adopted at a meeting of September 2, 1981 and signed by the persons whose names appear at its foot, and that no such constitution was passed that day and no such signatures were ever placed on any such document. We comment on this again later in our decision.

[45]. The agreement between CURRE and the SCEA could not be a collective agreement unless the SCEA were an "employers' organization" within the meaning of clause 1(1)(j) of the Labour Relations Act, which provides:

"employers' organization" means an organization of employers formed for purposes that include the regulation of relations between employers and employees and includes an accredited employers's organization and a designated or accredited employer bargaining agency;

[46]. The Board has recognized that the steps necessary to bring into existence something which may be described as an "organization of employers" are similar to those which are to be taken to bring into existence an organization of employees under section l(l)(p) of the Act: Terrazzo Tile & Marble Guild of Ontario, [1973] OLRB Rep. March 150; Uptown Motor Hotel Limited, [1979] OLRB Rep. June 586 at paragraph 11. Counsel for the applicant argued that the steps taken at the meeting of September 2, 1981, were defective in that after taking the steps they did, the participants failed to conduct a vote approving their membership in the organization in accordance with Article 3.01 of the Constitution they had adopted. Article 3.01 reads:

ARTICLE 3 - MEMBERSHIP

3.01 Membership is open to any person, group or company carrying on business as Swiss Chalet Bar B.Q., by virtue of ownership, management contract, franchise or license, with the owner of a trademark (Foodcorp Limited) upon being approved for membership by two-thirds of the then eligible voting members.

Counsel for Foodcorp argued that such a vote was not required. We agree. If the persons present were "eligible voting members", it would seem unnecessary to conduct a vote for the purpose of approving them for membership, and if they could not be described as "eligible voting members", then any vote they conducted could have no effect under Article 3. The Board has recognized that there is no one special procedure which must be followed in bringing an unincorporated association into existence, so long as the result of the procedure adopted is that two or more persons have bound themselves together through contractual ties reflected in a constitution which they have all agreed will control their relationship with one another: see Niagara Veteran Taxi, [1979] OLRB Rep. Sept. 889. We agree with counsel for Foodcorp that the endorsement at the foot of the constitution was effective to make the seven signatories thereto members of the organization. That endorsement, which is reproduced at paragraph 43 above, amounted to a contract by which all those signing agreed that they and each of the others would be members of the organization and that their relationship would be governed by the provisions of the constitution. We note that the use of that endorsement is entirely analogous to the procedure approved by the Board in Niagara Veteran Taxi, supra. Accordingly, the SCEA was an "organization". Having regard to the provisions of its constitution, it was an organization "formed for purposes that include the regulations of relations between employers and employees." The evidence that Foodcorp and the other six signatories to the constitution were "employers" at the time the organization was formed stands uncontradicted. It is for those reasons that we made the findings set out in paragraph 9 of our decision of September 12, 1984:

9. The Board finds that the Swiss Chalet Employers Association ("SCEX') is an "employer organization" as defined by clause (l)(l)(j) of the Act. Foodcorp Limited, Bruno Bini, Rahim Foods Limited, 485376 Ontario Limited, Diniz Do Couto, Charles Cianchino and Neil Surujnarain became members of the SCEA at its founding meeting September 2, 1981, and will be referred to hereafter as "founding members". They were the only members of the SCEA when the SCEA entered into its agreement with CURRE on October 19, 1981.

[47]. In the period August to October, 1979, Swiss Chalet restaurants were operating at sixteen of the twenty-four locations which are the subject of applications dealt with in our decision of September 12, 1984. One of those sixteen locations was the Scarborough location which had been organized by what is now HERE Local 75 in October of 1979. The other fifteen locations had all been the subject of certifications in which CURRE had been granted the right to represent employees of Foodcorp at those locations. Foodcorp was operating Swiss Chalet restaurants at only ten of those fifteen locations; the other five had by that time been "franchised". At some time in August, 1981, Foodcorp and CURRE applied jointly, under what is now subsection 52(3) of the Labour Relations Act, for the Board's consent to the early termination of the individual location - specific collective agreements to which they were bound with respect to twenty-one Swiss Chalet restaurant locations, including nine of the aforesaid ten locations which were being operated by Foodcorp at that time and which were the subject of certification applications dealt with in our decision of September 12, 1984. The other one of those ten locations was the subject of a similar application filed at some time in September, 1981. Those applications were unopposed, and they were granted by the Board on September 8, and October 19, 1981 respectively.

[48]. One of the resolutions passed at the founding meeting of the SCEA authorized the association to apply on its members' behalf for early termination of the collective agreements to which they were party. As we have noted, five of the locations which are the subject of applications before us had been "franchised" by that time. The franchisee at two of those locations was Famz Foods Limited, which did not become a member of the association at its organizing meeting. An application was made in late September which purported to deal with five locations, including the three aforesaid locations then franchised otherwise than to Famz. However, the application was made jointly by Foodcorp Limited as "Employer" and CURRE as "Trade Union". As we have noted in our earlier decisions, the franchisees then employing persons in the operation of a Swiss Chalet restaurant at those locations did not join in any application for the early termination of the collective agreement by which they had earlier become bound as a result of the operation of what is now section 63 of the Labour Relations Act.

[49]. On October 19, 1981, CURRE and the SCEA entered into a collective agreement with effect from November 9, 1981 to November 8, 1984. Article 2 of that Agreement provided:

ARTICLE 2 - RECOGNITION

2.01 The Association recognizes the Union as the sole collective bargaining agent for all its waitresses, waiters, busboys, kitchen staff, cashiers and bartenders employed at its Swiss Chalet Bar B .Q. restaurants in Ontario, save and except assistant hostesses and persons above the rank of assistant hostess, and persons covered by a subsisting Collective Agreement with another Trade Union or other Trade Unions.

2.03 The "Association" as used in this Agreement shall mean those employers, collectively and individually entitled to carry on business under the name and style of Swiss Chalet Bar B.Q. in the Province of Ontario, and who were members in good standing of the Employers' Association at the time of the signing of this Agreement or who may become members of the Employers' Association during the lifetime of this Agreement.

The Labour Relations Act defines "collective agreement" in clause 1(1 )(e):

"collective agreement" means an agreement in writing between an employer or an employers' organization, on the one hand, and a trade union that, or a council of trade unions that, represents employees of the employer or employees of members of the employers' organization, on the other hand, containing provisions respecting terms or conditions of employment or the rights, privileges or duties of the employer, the employers' organization, the trade union or the employees, and includes a provincial agreement;

As we have noted, the SCEA had seven members as of October 19, 1981. In our decision of September 12, 1984, we questioned whether certain of those members could have become bound by the SCEA agreement, on the facts as they had been presented to us. In our decision of February 18, 1985, we found that they could not. Nevertheless, there could and can be no doubt that Foodcorp Limited was a member of the SCEA, that Foodcorp Limited was free to enter into a collective agreement with CURRE and that CURRE was a trade union entitled to represent employees of Foodcorp. Having found that CURRE was a trade union and that the SCEA was an employers' organization, it followed that the statutory definition of "collective agreement" could be applied to the SCEA agreement, whether or not any other founding member of the SCEA became bound to that agreement as a result of its execution by the Association in October, 1981. It was for the foregoing reasons we made the finding set out in paragraph 13 of our decision of September 13, 1984:

13. Subject to the effect, if any, of a determination of the Intertec issue, the Board is satisfied that the SCEA agreement is a collective agreement as defined by clause l(l)(e) of the Act.

[50]. Foodcorp was respondent in only six of the twenty-four applications affected by our decision of September 12, 1984. Four of those applications were with respect to locations at which Foodcorp had been operating a Swiss Chalet restaurant at the time of the formation of the Swiss Chalet Employers' Association, and the two others were locations which Foodcorp had opened thereafter and was still operating at the time the applicant made its application with respect to that location. The respondents in the other eighteen locations were "franchisees" of Foodcorp. Each of those franchisees claimed to be bound by the agreement between the SCEA and CURRE. In our decision of September 12, 1984, we found that some of the franchisees were, and others were not, bound by that agreement at the time the relevant application was filed. We turn now to the evidence, argument and reasoning which lead to those conclusions.

[51]. Ms. Paszkowski testified that it was and had been part of her job function to receive applications for membership in the SCEA. She had searched the records of the SCEA to ascertain whether it had on file applications for membership from any of the franchisee respondents in these applications. She produced twelve documents which she said she had found in the files of the SCEA. All but one of them was in the form provided for in the purportedly amended SCEA constitution:

SWISS CHALET EMPLOYERS' ASSOCIATION

APPLICATION FOR MEMBERSHIP

NAME _______________________

ADDRESS ____________________

DATE____________TELEPHONE NO. ____________We hereby request and accept membership in the SWISS CHALET EMPLOYERS' ASSOCIATION. We hereby acknowledge receipt of a copy of the Constitution of the Association and approve its contents. We further acknowledge and state that we are bound by all its terms and provisions. We agree to be bound by the terms of the Collective Agreement between the SWISS CHALET EMPLOYERS' ASSOCIATION and the Canadian Union of Restaurant and Related Employees.

WITNESS:

One of the applications, that of Jose Paiva dated December 8, 1982, is in the form provided for in the constitution actually adopted at the founding meeting of the SCEA. That form differs from the one quoted in that it does not include the last sentence referring to the agreement between the SCEA and CURRE. Applicants named on these twelve applications were: Cabral Foods Inc., Jose Paiva, Manuel Goncalves, Restaurateur, Ltd., L.M.L. Foods Inc., L. DeSousa Enterprises Ltd., F.G. Andriuolo Foods Inc., Dinnerex Inc., Famz Foods Limited, Carlos Calisto, William Odorico Investments Ltd., G.H. Sousa Holdings Inc., and D.N.M. Lau Food Inc.

[52]. Counsel for the applicant objected to the introduction of these documents into evidence. He argued that they constituted hearsay evidence of matters on which the best evidence could have been obtained in testimony from representatives of the various applicants. In overruling the objection, we noted Ms. Paszkowski's evidence that these were documents maintained by the Association in the ordinary course of its activities under the witness's custody as part of her ordinary job duties. We ruled that we would accept the documents into evidence, leaving the question of the weight to be assigned to them to be determined later. At a later point in her testimony, Ms. Paszkowski tendered an original application for membership by 555618 Ontario Ltd. dated June 12, 1983. Ms. Paszkowski explained that she had been unable to find an application by that company when she reviewed the records of the SCEA, and had contacted that company to ask its principal whether he recalled ever having signed an application. He told her he thought he had, and on that basis she had instructed one of her clerical staff to send that company a new application for execution. All this had taken place in the week or two prior to the hearing at which the document was tendered. Ms. Paszkowski was not sure who had dated the application June 12, 1983. There was no attempt to mislead the Board as to the time when the misdated application had actually been executed, and we are unable to tell from the evidence whether the misdating was intentional or inadvertent. Of course, the misdated document was not acceptable evidence that the signatory was a member of the SCEA on June 12, 1983. The significance to us of its having been tendered in this misdated form was that it suggested the document handling techniques of Foodcorp and the SCEA were less than meticulous and, hence, that documents purportedly produced and maintained in the ordinary course of their business might be less than totally reliable evidence of the truth of their contents. The earlier tender of a purportedly true copy of a non-existent original document lent weight to that concern. As it happens, the accuracy of the dates and other contents of the other twelve applications was not critical to our decision. What was critical to our decision was Ms. Paszkowski's uncontroverted testimony that none of these applications for membership had ever been "approved for membership by two-thirds of the then eligible voting members" pursuant to Article 3.01 of the SCEA constitution.

[53]. Only three of the respondents were members of the SCEA when it entered into its agreement of October 19, 1981 with CURRE. Those were: Foodcorp Limited, 485376 Ontario Limited, and Rahims Foods Limited. Famz Foods Limited was operating Swiss Chalet restaurants at that time, but was not then a member of the SCEA. The other twelve franchisee respondents began to operate Swiss Chalet restaurants after October 19, 1981. In most cases, those were restaurants which had been operated by Foodcorp Limited prior to the location being "franchised" to the respondent employer. In some cases, however, the respondent's operation was the first Swiss Chalet restaurant operation at that location. CURRE's witnesses testified in generalities that they had considered all such Swiss Chalet employers to be bound by the SCEA agreement, and that all such employers had behaved as though they were bound.

Details of such behaviour were not assigned with particularity to individual named respondents. While CURRE had signed the SCEA agreement, there was no evidence that it had ever signed any subsequent document acknowledging that it and any of the respondents were bound by the terms of that agreement. There was no evidence that CURRE had been made aware of applications for membership in the SCEA or of the undertakings contained therein with respect to the SCEA application, and there was no evidence that CURRE had ever given any written acknowledgment or acceptance of any such undertaking.

[54]. Counsel for the respondents and interveners argued that respondents other than original members of the SCEA had become bound by the SCEA agreement after its effective date by one or more of several methods. With respect to each such respondent, they argued, firstly, that the moment an employer became a member of the SCEA, that employer and its employees became covered by the SCEA agreement by operation of that agreement's recognition provisions and without the necessity of execution of any additional document by anyone. They argued, secondly, that the employers who signed and sent to the SCEA an application for membership in the form quoted in paragraph 57 above thereby became bound by the provisions of the SCEA agreement by reason of the undertaking contained in the last sentence of that application. Finally, the respondents argued that an employer to whom an operating Swiss Chalet restaurant was franchised by Foodcorp after October 16, 1981. became bound by the terms of the SCEA agreement by operation of section 63 of the Labour Relations Act.

[55]. The respondents' first argument floundered on a factual problem. They had not established that any respondents other than original members had become members of the SCEA. The evidence established that Article 3.01 of the SCEX s constitution had been in full force and effect at all material times. There was no evidence that any of the persons who applied for membership in the SCEA after its formation had ever been approved for membership in the manner contemplated by article 3.01 of the SCEA constitution. We have it on highest authority that when the question with which we are faced is whether or not a person is a "member'' of an organization, it is not proper for us to answer in the affirmative on the basis only of evidence that the person had applied for membership, that the person had indicated acceptance of membership and assumption of membership responsibilities by paying at least $1.00 on account of the prescribed membership fees or dues, that the constitution of the organization did not contain an express prohibition of the person being admitted to membership and that the organization accorded the person full rights and privileges as a member: Metropolitan Life Insurance Co. v. International Union of Operating Engineers, Local 796, et al, 1970 CanLII 7 (SCC), [1970] 5CR. 425, 11 D.L.R. (3d) 336; 70 CLLC 14,008 (S.C.C.). Accordingly, even if the words "or who may become members of the Employers Association during the lifetime of the Agreement" in Article 2.03 of the SCEA agreement could bind to that Agreement persons who became members after it came into effect, none of the respondents fell within the reach of those words.

[56]. There were other difficulties with the respondents' first argument.

[57]. The Labour Relations Act requires that a collective agreement be an agreement in writing, and that has always been understood to mean an agreement in writing executed or signed by or on behalf of the parties to the agreement: see Williams Contracting Ltd., [1980] OLRB Rep. July 1115 and the cases cited therein at paragraph 20. The agreement may consist of more than one document, and the signatures of the parties may be found in more than one document, provided that the documents together unambiguously evidence the agreement of the signatories to the terms set out therein. It is well established both that merely joining an employer's organization is not enough to bind an employer to the terms of any existing collective agreement between the employers' association and a trade union, and that conducting its employee relations in accordance with the terms of that collective agreement is equally insufficient to bind the new member, or any other employer, to the terms of the existing agreement: Foundation Company of Canada, 57 CLLC 18,078 Hacqucil Construction Limited, [1963] OLRB Rep. June 143; Sovereign Construction Company Ltd., 60 CLLC 16,168. It is not even enough for the employer or the association to write to the trade union saying that the employer will be bound: Jimmy 'z II, II 1977] OLRB Rep. Sept. 572; Hacquoil Construction Ltd., supra. A unilateral act is not enough - the written agreement must be brought into existence by both the employer and the union who are to be bound.

[58]. Subsection 5 2(4) of the Act contemplates circumstances in which a new employer association member may be bound to the association's existing agreement with a trade union which represents the new member's employees:

52(4) Notwithstanding anything in this section, where an employer joins an employers' organization that is a party to a collective agreement with a trade union or council of trade unions and he agrees with the trade union or council of trade unions to be bound by the collective agreement between the trade union or council of trade unions and the employers' organization, the agreement ceases to be binding upon the employer and the trade union or council of trade unions at the same time as the agreement between the employers' organization and the trade union or council of trade unions ceases to be binding.

The Board commented on this subsection in Williams Contracting Limited, supra, at paragraph 26:

The Labour Relations Act, section 44(4) [now 52(4)] makes it clear that where an employer joins an employers' organization that is a party to a collective agreement, the employer must agree with the trade union that the agreement is to bind the employer and where this mutual agreement is forthcoming the extent of the obligation parallels the duration of the pre-existing collective agreement. While it is unnecessary to this case, it is also our view that consent under section 44(4) must be in writing and signed by both parties. These requirements arise from the definition of a collective agreement in section l(l)(e) of the Act in that an agreement to be bound by a pre-existing collective agreement under section 44(4) is itself a constituent element of the collective agreement then entered into between the parties. It is our opinion that an agreement to be bound under section 44(4) is no different in practical effect than a memorandum of agreement to be bound by terms similar to a pre-existing collective agreement where the memorandum of agreement represents an adoption or incorporation by reference of all the terms of the pre-existing collective agreement. If a signed memorandum of agreement was unnecessary in such circumstances, it would then be possible to create a collective bargaining agreement by an oral exchange of promises and it is the unreliability of just such exchanges that section l(l)(e) is designed to avoid.

[59]. The document or documents which comprise a collective agreement may be signed by agents on behalf of the parties. Indeed, section 51 of the Labour Relations Act has the effect of constituting an employer's association as agent with ostensible authority to bargain on behalf of all its then members, even those who have not given it actual authority to do so, when those employers and the employers' association fail to alert the trade union with which the employers' association is bargaining to the limits of the actual authority of the employers' association: Paul D'Aoust Construction Limited, [1976] OLRB Rep. Sept. 529. It is important to note, however, that section 51 of the Act is not effective to confer upon a trade union the right to represent employees for whom it held no prior bargaining rights: Sovereign Construction Co. Ltd., 60 CLLC 16,168, and Paul D 'Aoust Construction Limited, supra, at paragraph 42.

[60]. Underlying all of the provisions of the Labour Relations Act is the concept that employees determine which trade union, if any, will bargain with their employer concerning their wages and working conditions. It is only once a bargaining unit of employees of an employer has selected a trade union as their bargaining agent that the trade union and employer can properly negotiate a collective agreement. The parties to established bargaining relationships are free to amend, alter, extend or abridge the bargaining rights contained in a Board certificate or in the recognition clause of a voluntary recognition agreement or existing collective agreement: Gilbarco, [1971] OLRB Rep. March 155. The bargaining unit definition adopted by the parties to such a relationship can be so framed that its words may later sweep unorganized employees of the employer into its net: Kohen Box Co. (Windsor) Limited, [1966] OLRB Rep. May 117; and see Re Canadian Appliance Manufacturing Company Ltd., 1978 CanLII 3509 (ON LA), 20 L.A.C. (2d) 59 (Shime). However, the employer and trade union parties to an established bargaining relationship cannot so define their bargaining unit as to effectively bind another employer for whom the party employer is not acting as agent and this is so, in the absence of a declaration under section 1(4) of the Act, even if the employer whom the parties seek to bind is a wholly owned subsidiary of the party employer: Harding Brantford Limited, [1966] OLRB Rep. July 245.

[61]. The respondents and interveners fell back on principles of the law of agency which they submitted would support their contention that the execution of the SCEA agreement by CURRE and the association on October 18, 1981, was a sufficient compliance with the requirement that agreements be in writing and signed by the parties so as to bind respondent employers other than the original members of SCEA as those respondents came on the scene during the term of the SCEA agreement. While counsel did not argue that SCEA had actual or ostensible authority on October 19, 1981, to bind future unnamed members of its association, counsel for Foodcorp argued that the subsequent behaviour of those members as they appeared on the scene could and did amount to a ratification of the SCEX s original execution of the collective agreement on their behalf. He cited Sentinel Reliance Products Limited, [1973] OLRB Rep. Jan. 7 for the proposition that a party may become bound to a collective agreement by ratifying the act of a person who purported to execute the agreement as an agent.

[62]. The doctrine of ratification could not be applied to the facts of the situation before us, even assuming that the employers sought to be bound by the application of that doctrine had become members of the SCEA at the time of the purported ratification. The Sentinel Reliance case, and other ratification cases like G. M. Gest Limited, [1978] OLRB Rep. Aug. 747 and Hussey Seating Company (Canada) Limited, [1981] OLRB Rep. Aug. 1138 are all cases in which an agent without actual or ostensible authority purported to execute a collective agreement on behalf of a named, existing entity which could properly have entered into that agreement and, indeed, was under a duty to bargain at the time the agreement was made. The Board found that the entity in whose name the agent had acted had, by its later conduct, ratified that early unauthorized act. In order to constitute an agency by ratification, it is essential that the actions to be ratified have been taken by the agent purportedly on behalf of a named or ascertainable principal: Eastern Construction Co. v. National Trust Co., 1913 CanLII 409 (UK JCPC), 15 D.L.R. 755 (P.C.) at 766. There is no evidence that any of the respondents who are said to have ratified the SCEX s contracting on their behalf was named or ascertainable at the time the SCEA agreement was signed. Indeed, there is no evidence that any of those employers was in existence at that time, and it is trite law that the purported act of an agent on behalf of a non-existent principal cannot be ratified when that principal later comes into existence, except in the narrow circumstances (inapplicable here) contemplated by statutes providing for incorporation.

[63]. Counsel for the interveners acknowledged the many Board decisions which hold that in order for an employer to become bound by the terms of an existing collective agreement between a trade union and an employer association, the Labour Relations Act and first principles of contract law require that the new employer and the trade union agree upon that arrangement and evidence that agreement in a document or documents signed by both of them. Counsel claimed, however, that the necessary documents and agreement could be found with respect to each new employer in the particular documentation and approach adopted by CURRE and the SCEA. He argued that by the particular language of Article 2.03 of the collective agreement, CURRE has agreed in advance to be bound with respect to new members. When they signed their membership application, new members evidenced their agreement to be bound. The evident absence in this arrangement of a concurrent contractual meeting of minds was remedied, according to the interveners' theory, by treating the SCEA agreement as having constituted the SCEA as agent for CURRE to effect contracts between CURRE and new association members. In support of the proposition that such an arrangement is legally tenable, counsel cited McCannell v. Mabee-McLaren Motors Ltd., 1926 CanLII 267 (BC CA), [1926] 1 D.L.R. 282 (B.C.C.A.). In that case the plaintiff was a Studebaker automobile dealer. Studebaker had assigned each of its dealers a particular territory. Its standard contract with each dealer required that the dealer not solicit outside its territory and that a portion of the profit on unsolicited sales to persons residing in another dealer's territory be paid over to that other dealer. This "infringement of territory" provision concluded with these words: "It is understood and agreed that this paragraph shall be construed as an agreement between the dealer and all other Studebaker dealers who have signed a similar agreement and that nothing herein contained shall be construed as a liability on the part of Company to dealer for territorial infringement by any other dealer". The plaintiff and defendant in the McCannell case were both parties to separate agreements of this sort with Studebaker. It appears from the report of the case that the object of the plaintiff's claim was to enforce the defendant's obligation to account for extra-territorial sales. The defendants resisted the suit on the sole ground that there was no privity of contract between them and the plaintiff. The court concluded that Studebaker had to be regarded as having been the agent of each of the dealers to bring about the privity of contract which the contractual provision expressly contemplated would be created. The Court noted that the intention of the parties was clear, that the reasonableness of the provision was beyond doubt, and that there was in these circumstances nothing novel in regarding the company as agent for each of its dealers in effecting the contemplated agreement between them.

[64]. The express language of the provision considered in the McCannell case is obviously quite different from the language of Article 2.03 of the SCEA agreement. The commercial context is also quite different. The court in McCannell obviously considered the desired result commercially worthy and the means of achieving it legally sensible. Here the language of Article 2.03 does not purport to create a contractual relationship separate and apart from the contract in which it appears, and if it did that result would not be sensible or worthy in a labour relations context. Article 2.03 does not expressly appoint the SCEA as CURRE'S agent for effecting future collective agreements into which the terms of the present one might be incorporated by reference. Indeed, an arrangement of that sort would be entirely repugnant to the scheme of the Labour Relations Act. To understand that clearly, it is important to note that it was and is not a condition of acceptance into membership in the SCEA that the applicant employ persons for whom CURRE has existing bargaining rights. The interpretation proposed by the interveners would make the SCEA the middle man in arrangements by which CURRE and an employer enter into a collective bargaining relationship without any regard to the wishes of the employees affected. As the Board noted in Sunrise Paving & Construction Co. Ltd., [1972] OLRB Rep. March 199, such an arrangement would constitute "other support" to a trade union within the meaning of what is now section 48 of the Labour Relations Act, and would deprive the resulting agreement of status as a "collective agreement" within the meaning of that Act. The disability which results from such an approach is not cured by the passage of time. As the Board noted in C. Strauss (1973) Limited, [1975] OLRB Rep. July 581, the provisions of what are now sections 48 and 60 deal with different issues, and while a question of quantum of support existing at the time of a voluntary recognition may become moot at the end of a year, the prior acceptance of employer support does not. In Nicholls­ Radtke & Associates Limited, [1982] OLRB Rep. July 1028, the Board noted that an employer's execution of a collective agreement at a time when it has no employees at work may not amount to employer support in the construction industry, where the employer party intends to obtain the employees who would be covered by the collective agreement through the union's hiring hall in accordance with the terms of that agreement. In that case, however, the Board noted that the situation would be quite different if it was not contemplated that the union would be supplying the employees required by the employer, and that employer support would be manifest where the agreement signed by the employer required that new employees recruited by that employer take out membership in the trade union as a condition of continued employment. CURRE did not operate a hiring hall or otherwise undertake to supply employees. Its agreement with the SCEA did provide that each party employer must require new employees to become CURRE members. The point of this analysis is not to determine whether that sort of employer support actually occurred in this case, but only to demonstrate that the "mutual agency" interpretation which counsel advocated for Article 2.03 of the SCEA collective agreement was fraught with the danger of breach of the Labour Relations Act and impairment ab initio of the very rights sought to be advanced by that interpretation. Indeed, quite apart from the possibility of SCEX s effecting what amounts to unfair labour practice voluntary recognition in this role as mutual agent, the mere suggestion that CURRE had sought and obtained the agreement of an employer's organization to act as its agent in advancing its bargaining rights might well provide the basis for an argument that an employer's organization was participating in the administration of and contributing support to CURRE, thereby attracting adverse consequences for CURRE under sections 13 and 48 and for the SCEA and its members under section 64. Again, we are not suggesting that such consequences have been attracted in this case, but only that the mutual agency interpretation of Article 2.03 is not, in the labour relations context of this case, a commercially reasonable one. Accordingly, we did not interpret Article 2.03 as constituting the SCEA as an agent for CURRE for the purpose of effecting collective agreements on its behalf with employers who were not members of the SCEA at the time Article 2.03 was agreed to.

[65]. In summary, even if any of the respondents was an employer who had become a member of the Association during the lifetime of the Association's agreement, the reference to such employers in Article 2.03 would not make them a party to that or any other collective agreement within the meaning of the Labour Relations Act. The written undertaking of the new member to be bound by the terms of the existing agreement would, by itself, be equally ineffective, whether addressed to the SCEA in a membership application or to CURRE in a letter. An employer not party to the SCEA agreement when it was executed could not become a party to it thereafter by taking out membership or by any other means. It could only become party to a collective agreement which incorporated by reference the terms of the SCEA agreement, and it could only become bound by such an agreement if the agreement was evidenced by ~ writing or writings signed by both CURRE and the employer to be bound. No such agreement was established with respect to any of the respondents who were not members of the SCEA at the time the agreement came into effect. Thus the first and second arguments failed and, for these reasons we came to the conclusions set out in paragraphs 10, 11 and 12 of our decision of September 12, 1984:

10. The Board finds that the following respondents applied for membership in the SCEA after October 19, 1981: Cabral Foods Inc., Manuel Goncalves, Restaurateur Ltd., LML Foods Inc., L. DeSousa Enterprises Ltd., F. G. Andriuolo Foods Inc., Dinnerex Inc., Famz Foods Limited, William Odorico Investments Ltd., G. H. Sousa Holdings Inc. and D.N.M. Lau Foods Inc. There is no acceptable evidence that any other respondent applied for membership in the SCEA prior to the date the applicant applied for certification with respect to that respondent's employees. In any event, there is no evidence that any of the respondents who applied for SCEA membership after September 2, 1981 actually became a member of SCEA, since there is no evidence that any applicant received the approval of two-thirds of existing members, as required by the SCEA constitution.

11. The respondents who applied for SCEA membership after September 2, 1981 all signed a form of application which included this provision:

We agree to be bound by the terms of the Collective Agreement between the SWISS CHALET EMPLOYERS' ASSOCIATION and the Canadian Union of Restaurant and Related Employees.

There is no evidence that CURRE signed any document consenting to be bound to the terms of the agreement with respect to employees of any of the respondents who are not founding members. We find that the execution of such applications was ineffective to bind an applicant to the SCEA agreement if it was not otherwise bound.

12. The Board finds that the language of Article 2.03 of the SCEA agreement was not effective, at least on the facts of this case, to bind to that agreement's terms any respondent employer other than a founding member. As we will note later, we are in some doubt whether certain founding members became or are bound.

[66]. The respondents' and interveners' third argument was that respondent employers whose operations were located at sites previously occupied by Foodcorp Limited were successors to Foodcorp Limited within the meaning of section 63 of the Labour Relations Act. Counsel for the respondents other than Foodcorp argued that no evidence had been led to show that there had not been a sale of business from Foodcorp to the subsequent employer occupant of locations originally operated by Foodcorp, and that the applicant had provided no particulars to the contrary. He submitted that the effect of section 63 was "automatic", and that employers at locations originally opened by Foodcorp must therefore be bound by CURRE bargaining rights and collective agreements, as a matter of law. Counsel went so far as to argue that the Board needs no evidence that a sale of business has occurred if the parties to the alleged sale agree, as they did here, that there has been one. Counsel for Foodcorp, although not directly affected by this issue, noted that the Board did have before it evidence that would support a finding of sale of business in each of the locations in question. In each case, the basic evidence was that Foodcorp had operated a restaurant at a particular location, then engaged in a "franchise" transaction with another entity, following which the second entity operated a restaurant at the location previously occupied by Foodcorp. Counsel for Foodcorp argued that on the present state of the Board's jurisprudence, this was enough on which to base a finding that a sale of business had occurred. Counsel referred to the Board's decision in Metropolitan Parking, [1979] OLRB Rep. December 1193 as establishing that the circumstances of that case were the only circumstances in which the consecutive operation by the alleged predecessor and successor of similar businesses at the same location would not be found to be a sale of business.

[67]. Counsel for the applicant argued that the Board does require evidence to support a finding of sale of business. He said the onus of proof lies on the party asserting that a sale of business has occurred, citing Super City Discount, [1964] OLRB Rep. May 93, Super City Discount, [1969] OLRB Rep. Aug. 666, Woodway Structural Components, [1971] OLRB Rep. Aug. 545, and Beaver Engineering Limited, [1973] OLRB Rep. Jan. 57. Counsel conceded that the summary given by Ms. Paszkowski in evidence must be taken as evidence of its contents, but correctly pointed out that summary only tells us that there was some transaction between Foodcorp and the alleged successor which Foodcorp describes as a "franchise". Counsel argued that a "franchise" is not necessarily a sale of business, and that we cannot conclude that these franchises were sales of businesses without knowing more than we do about the franchise agreements.

[68]. The respondents all asserted that they were bound to an outstanding collective agreement which operates as a bar to the certification application which affects them. The onus was on each respondent to establish the facts necessary to support that allegation. If a respondent claims to be bound to a collective agreement as a result of a sale of business to them by another party who is clearly bound, then the onus is on that respondent to establish the facts necessary to support that conclusion. Section 63 does impose bargaining rights in collective agreements by operation of law, but only in certain factual circumstances. Those circumstances must be proved before the operation of section 63 can be relied upon to establish a collective agreement bar. The parties to the collective bargaining relationships allegedly established by sales of business were in like interest in these proceedings; they all stood opposed to the applicant on the question of timeliness of the applicant's certification application. It is not enough in these circumstances for the interested parties to merely allege that they engaged in a sale of business. The Board will not dismiss a certification application merely because the respondent asserts a belief that it is a successor employer, without proving that fact: Darrigo's Supermarkets Limited, [1975] OLRB Rep. Feb. 93 at paragraph 18. Unlike the situation in the Darrigo's case, however, there was some evidence before us with respect to the alleged sales of businesses. There was evidence that Foodcorp carried on a restaurant business under the name "Swiss Chalet" at various locations. With respect to a number of those locations, there was evidence that Foodcorp engaged in a transaction of some kind with another party, after which the other party carried on a restaurant business at the location which was the subject matter of the "franchise" transaction. Those facts are consistent with the transaction being a "sale of business" as that phrase is understood. We quite agreed with counsel for the applicant that there was much additional evidence the respondents could easily have led with respect to these transactions. The question is whether the failure to lead that evidence carried with it some adverse consequence.

[69]. Prior to the introduction of subsection 13 of section 63, the Board had to struggle with the location of the onus of proof and the burden of adducing evidence in applications under that section. The Board concluded that the legal onus was on the party asserting that a sale of business had occurred. That party was usually a trade union without any direct knowledge of the facts relevant to the legal issue raised. The Board concluded that although a trade union would have to lead evidence to support its contention, it might not take much evidence to shift the burden of adducing evidence to those who denied that a sale of business had occurred: Beaver Engineering Limited, supra, and Wood way Structural Components, supra, at paragraph 8. In the state of the law at that time, when respondents with knowledge of the relevant facts failed to adduce evidence, the Board was prepared to draw an inference that such evidence would be unfavourable to their position.

[70]. Subsection 13 of section 63 was intended to eliminate the difficulties with which the Board had to struggle in those earlier cases. While the legal onus remains unchanged by subsection 13, the evidentiary obligation imposed by that subsection makes the location of the legal onus academic except in rare circumstances where the probabilities are evenly balanced at the conclusion of the evidence: see Marvel Jewellery Ltd., [1975] OLRB Rep. Sept. 733. The imposition of this evidentiary obligation was designed to ensure that no one was left arguing about the inferences to be drawn from failure to lead evidence by a party to a transaction alleged to be a sale of business. Where it is suggested that an employer has failed to call evidence which would have been unfavourable to its position on the sale of business issue, the party taking that position may now apply to the Board for an order directing compliance with the obligations imposed by subsection 13: Canada Cement Lafarge Ltd., [1977] OLRB Rep. Jan. 5; see also Richmond Insulation, [1980] OLRB Rep. Oct. 1519; and, Guaranteed Insulation '77 Limited, [1981] OLRB Rep. Oct. 1394. Counsel for the applicant did not ask the Board to direct that any of the respondents give evidence with respect to any of the transaction alleged to constitute a sale of business. During argument, counsel for the franchisee respondents indicated a willingness to file the franchise agreements if the Board was in any doubt about the character of those transactions, and applied for leave to reopen his case in order to do so. That application was opposed by counsel for the applicant, who took the position that the respondents had a full opportunity to lead any evidence they wished on these issues, and could not claim to be taken by surprise at his assertion that the respondents allegation of untimeliness had to be strictly proved. We agreed with counsel for the applicant, and denied the application to reopen the respondents' case. However, the applicant mounted no attack on the proposition that any of these transactions constituted a sale of business, he merely insisted that there be "strict proof". In all these circumstances, we did not consider it would be appropriate to draw any adverse inference from the respondents' undoubted failure to lead evidence with respect to these alleged sales of business. That left us with the simple question whether the evidence before us was sufficient, in these circumstances, to support a finding that there had been a sale of business. We were satisfied that it was, and for these reasons made the ruling set out in paragraph 14 of our decision of September 12, 1984:

14. A number of respondents operate a restaurant at a location at which Foodcorp Limited previously operated a restaurant. In each such case, it is said that the location was "franchised" by Foodcorp to the subsequent operator by means of some transaction between them. Although there is very little evidence of the precise nature of these franchise transactions, the facts and circumstances in these cases warrant a finding in each such case that the "franchising" of the location constituted a "sale of business" within which the meaning of section 63 of the Act. The effect of this finding depends on the time when the sale occurred. If it occurred after October 19, 1981, then the successor employer will have become bound by the terms of the SCEA agreement when the franchise transaction was completed. If the franchise transaction was completed prior to October 14, 1981, the successor will have been bound, at least initially, to the collective agreement between Foodcorp and CURRE with respect to that location, unless that agreement had effectively been terminated by the time the location was franchised to the successor.

[71]. We have set out in this decision our reasons for the general conclusions expressed in paragraphs 7 to 14 of our decision of September 12, 1984. The application of those con­clusions to each of the 24 applications then before us was dealt with in that decision, and need not be reviewed again here.