[1985] OLRB Rep. October 1464
1246-85-R G.K.L. Industries Employee's Association, Applicant, v. G.K.L. Industries Ltd., Respondent
BEFORE: R. A. Furness, Vice-Chairman, and Board Members M. Eayrs and P. Grasso.
APPEARANCES: Gary Ross and Dan Post of the applicant, no one for the respondent.
DECISION OF THE BOARD; October 7, 1985
This is an application for certification. In a letter dated August 19, 1985, the Registrar notified the applicant that the Board had not previously found the applicant to be a trade union within the meaning of section l(l)(p) of the Labour Relations Act. The Registrar further advised the applicant that if the Board's information was correct it must be prepared at the hearing scheduled in this matter to satisfy the Board in accordance with its usual practice that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act.
Having regard to the representations before it, the Board finds that all employees of the respondent in Mississauga, save and except foremen, persons above the rank of foreman, office and sales staff, constitute a unit of employees of the respondent appropriate for collective bargaining.
Daniel Post and Gary Ross appeared at the hearing and gave evidence concerning the steps which led up to the adoption of the constitution of the applicant, the signing of membership cards and the election of officers of the applicant. All notices which are subsequently referred to were posted in the employees' lunch room. All meetings which are subsequently referred to were held at the same location. Mr. Post secured the permission of the respondent to use the lunch room for the meetings. According to his testimony, he was vague when explaining why the employees wanted to conduct meetings in the lunch room.
In April of this year Mr. Post posted a notice of an organizational meeting to be held at 4:30 p.m. on the same day. At that meeting, Mr. Post introduced to the employees who were present the idea of forming an association to regulate relations between the employees and the respondent. Mr. Post solicited the views of the employees as to whether they were in favour of forming such an association. This meeting was the result of "months of small talk in groups during lunch hours". The response of the employees indicated support for such an association. Between eighty and ninety per cent or twenty-one or twenty-two of the employees of the respondent were present at the meeting. In the days which followed this meeting, Mr. Post visited his local library in order to learn about labour law and constitutions of associations.
Notice of a second meeting was posted and held on Saturday, May 11. On this occasion about nine employees were present. At that meeting Mr. Post introduced the idea of the need for a constitution and other legal requirements in order to become an association. From that date on, Mr. Post and Mr. Ross commenced work on preparing a draft constitution. The draft constitution was posted in the employees' lunch room between May 21 and May 22. A notice of a meeting to be held on May 22 was also posted on May 21. The meeting was held on May 22 and from that time onwards, Mr. Post and Mr. Ross started to keep accurate records of the affairs of the association. At the meeting on May 22, the proposed constitution was read to the eighteen employees who were in attendance. The constitution was adopted unanimously by a show of hands. Those who were in attendance left the meeting with the idea that they would require more self-regulation and amendments to the constitution.
Employees of the respondent signed applications for membership in "GKL's Employees Association" and paid one dollar on account of initiation fees. These membership cards were signed as follows:
April 26 - 14 cards signed
April 29 - 6 cards signed
May 28 - 1 card signed June 10 - 1 card signed August 14 - 4 cards signed August 15 - 1 card signed.
Mr. Post and Mr. Ross considered re-signing all the members after the constitution had been adopted. However, they concluded that this was not the right thing to do. In accordance with the advance notice requirements of the constitution, notices were posted in connection with elections to be held on June 5. A meeting for nominations had been held on May 22. Nominations were received for the positions under the constitution of chairman, vice-chairman, secretary-treasurer and four communications representatives. Mr. Ross was acclaimed as secretary-treasurer. The other positions were filled following elections by secret ballot -including the election of Mr. Post as chairman. Twenty-three persons were present at the meeting on June 5. A further meeting was held on July 9 before the respondent's shutdown. At that meeting, it was established that there would be no dues until certification. It was also decided to conduct a fifty-fifty lottery to cover any expenses which might arise prior to certification.
The employees became members in the "GKL's Employees Association" and not members in the applicant. Moreover, the membership cards were for the most part signed at a time when there had not been a purported adoption of the constitution which was placed in evidence before the Board. The Board finds that the constitution was neither adopted nor ratified by members of the applicant. The election of officers was also accomplished by persons who were not members of the applicant.
As the Board stated in Local 199 U.A. W. Building Corporation, [1977] OLRB Rep. July 472, the following steps should be taken by an organization which is required to establish its status as a trade union within the meaning of section l(l)(p) of the Act.
(1) A constitution should be drafted setting out, among other things, the purpose of the organization (which must include the regulation of relations between employees and employers) and the procedure for electing officers and calling meetings;
(2) the constitution should be placed before a meeting of employees for approval;
(3) the employees attending such a meeting should be admitted to membership;
(4) the constitution should be adopted or ratified by the vote of said members;
(5) officers should be elected pursuant to the constitution.
On the evidence before this Board, it appears that the first and second steps were taken in endeavouring to establish the applicant. However, it appears that steps three, four and five were not followed. The employees became members of a non-existent association and there was no act of ratifying or confirming any membership in the applicant after the applicant came into existence. In these circumstances, the applicant has not been properly formed as a trade union within the meaning of section 1(1 )(p) of the Act. At the time the constitution was adopted, the applicant did not have members. A trade union commences its existence as a trade union when the adopted constitution is ratified and confirmed by its members. To complete the foundation of the applicant as a trade union, it was therefore necessary for the membership to ratify or adopt the actions taken at the earlier meetings. This was not done by the members of the applicant. The Board finds that the necessary procedural steps were not completed in order to bring the applicant into existence. See, for example, Proctor-Lewyt Division of SCM (Canada) Limited, [1969] OLRB Rep. Sept. 760. The constitution was not adopted by members and the officers were not elected by members.
- The Board desires to refer to a provision of the applicant's constitution which gives the Board some concern. Article I of the constitution states:
Article 1 Eligibility for Membership
Section i All Hourly Rated Employees working within the Factory are eligible for membership. Temporary workers (Casual Labour) are ineligible for membership (emphasis supplied).
Section ii No Employee shall attain membership status until they have completed the Probationary Period required by Management.
The Board has consistently refused to certify trade unions when its constitution renders ineligible for membership some or all of the employees it would be required to represent if certified. The Board has described the appropriate bargaining unit in paragraph two. The Board does not exclude casual or temporary or probationary employees from appropriate bargaining units. See, for example, Gaymer & Oultram (1954) 54 CLLC 17,073 and The National Cash Register Company of Canada, Limited, [1969] OLRB Rep. June 371. The rationale for that approach is that if the trade union negotiated a collective agreement which made membership in it a condition of employment (as permitted in certain circumstances by section 46 of the Act), such constitutional membership restrictions could result in the discharge of employees whom the trade union is required to represent. The applicant by its constitution cannot take into membership all of the persons who are the subject of this application.
- For the foregoing reasons, this application is dismissed. This decision does not prevent the filing of a new application where the constitution meets the requirements set forth in this decision.