[1985] OLRB Rep. May 633
3479-84-R International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, U.A.W., Applicant, v. Center Tool & Mold Company Limited, Respondent
BEFORE: Owen V. Gray, Vice-Chairman, and Board Members J. Murray and L. Collins.
APPEARANCES: Ms. Lorna J. Moses, Joseph Sullivan and Kenneth Simpson for the applicant; E. L. Stringer, Q. C., C. Sutts, Q. C., and A. Toldo for the respondent.
DECISION OF THE BOARD; May 24, 1985
This application for certification was filed on March 27, 1985. In its Reply, the respondent employer asserted that the Center Tool Employees Organization was a trade union known to the respondent as claiming to be bargaining agent of employees affected by the application. The respondent further claimed to be party to a collective agreement with the Center Tool Employees Organization. By its terms, the alleged collective agreement expires May 15, 1985. There is, accordingly, no question of the timeliness of this application.
Notice of this application was given to the Center Tool Employees Organization. It has not sought to intervene in this application.
This application came before a differently constituted panel of the Board on April 19, 1985. The results of that hearing are reflected in a decision dated April 23, 1985, in which that panel noted:
Prior to the scheduled hearing in this matter, the parties met with a Labour Relations Officer and reviewed all of the issues in this application for certification. The only issue remaining in dispute was whether the Board should direct a representation vote by reason of the alleged existence of a collective agreement between the Center Tool Employees Organization and the respondent.
Counsel for the respondent requested an adjournment for one week in order to have the opportunity to call evidence to establish that the Center Tool Employees Organization is a trade union within the meaning of the Labour Relations Act and the agreement between it and the respondent is a collective agreement within the meaning of the Act. The applicant agreed to the respondent's request. Counsel for the respondent acknowledged that the burden of proving the existence of a collective agreement within the meaning of the Labour Relations Act rested on the respondent.
That panel also dealt with matters the parties had resolved, including the definition of the appropriate bargaining unit. The applicant had proposed that the unit consist of all employees of the respondent in Windsor, Ontario, save and except foremen, those above the rank of foreman, office and sales staff. Having regard to the statutory exclusion of plant guards, the applicant's proposed unit was essentially co-extensive with the bargaining unit described in the recognition clause of the document alleged by the respondent to be a collective agreement. Although it was taking the position that this should be treated as a displacement application, the respondent also took the position that the appropriate bargaining unit should be defined so as to exclude engineering and design staff, employees regularly employed for not more than twenty-four (24) hours per week and students employed during the school vacation period. The applicant agreed to the bargaining unit proposed by the respondent, and the Board found that unit appropriate for collective bargaining in its decision of April 23, 1985. The Board also found that more than fifty-five per cent of the employees in that bargaining unit on the date of the application were members of the applicant on the terminal date. Indeed, on the basis of the membership evidence filed and the list of employees settled by the applicant and respondent in their meeting with the Labour Relations Officer, it is apparent that more than two-thirds of the employees in the agreed upon bargaining unit were members of the applicant at the relevant time.
The issue defined in paragraphs 1 and 5 of the decision of April 23, 1985, came before this panel on April 26, 1985. At the beginning of our hearing we enquired whether anyone was present representing the Center Tool Employees Organization. One member of the audience said he and the two persons with him were the current members of the committee. He said they did not wish to take any active part in the hearing, and were only there so that they could report back to the employees who were opposed to the union.
The respondent called two witnesses. The first was Mario Taiariol, the principal of a company unrelated to the respondent. He had been employed by the respondent from 1957 to 1981. He identified a printed agreement dated April 23, 1971 between the respondent and the Center Tool Employees Organization, covering the period April 5, 1971 to April 5, 1974. He acknowledged that he was one of the three persons who signed that agreement on behalf of the employees' organization. He explained that the employees' organization had been brought into existence in early 1971 following an earlier an unsuccessful attempt by this applicant to organize the employees of the respondent. He said that forty or fifty of the respondent's employees attended a meeting and elected a committee of three to represent them. Mr. Taiariol was one of the three elected, along with Peter Dziver and a Mr. Lavoie. As Lavoie received the most votes, he became Chairman. Mr. Taiariol recalls that a constitution prepared by Mr. Lavoie was discussed and approved at this meeting. Mr. Taiariol remembers seeing this document, but could remember only some of its provisions. He recalled that it provided for the committee of three and set out the limitations on its powers; the committee had to have membership approval of any decision. He believes the documents specified the majority needed for ratification of a contract. The document expressly provided that dues were not to be paid. He thinks there was some provision for dissolving the organization. After these rules were adopted, the committee began negotiating with the company for a first agreement. Mr. Lavoie resigned from the committee a month before the agreement was obtained. Because he had received the second highest number of votes at the original meeting, Mr. Taiariol became Chairman. Because he had had the fourth highest number of votes at the original meeting, Victor Sartori filled the vacancy created by the departure of Mr. Lavoie. Mr. Taiariol described the negotiation process which led to the agreement of April 23, 1971, which he and Messrs. Dziver and Sartori signed on behalf of the employees' organization. On the basis of his testimony and the contemporaneous documentation Mr. Taiariol identified, we are satisfied that the applicant's sole witness, Mr. Sullivan, is mistaken in his recollection that the agreement dated April 23, 1971 was first put forward at a meeting called by management on April 5, 1971 and signed on that date by volunteers who only later came to be regarded as the committee. We are satisfied that the committee existed and engaged in negotiations with management prior to April 5, 1971, and that the meeting on that date was called so that the employees could consider the last offer of their employer.
Mr. Taiariol resigned from the committee at some time in 1971, after the first agreement was obtained. He remained a bargaining unit employee until 1974, when he became the respondent's plant manager. He had no idea where the constitutional document drawn up by Mr. Lavoie might now be, and acknowledged that membership cards were not drawn up or discussed at the time the constitution was formed.
The respondent's other witness was Henry Moro. He is presently employed by the respondent as Supervisor of Mold Design and Engineering, a position he has occupied since December, 1980. He was a full-time bargaining unit employee from February, 1974, to the time of his promotion to management. Mr. Moro testified that he and four others were nominated for the committee at a nomination meeting in January, 1977. Employees cast ballots in an election the next day. He received the most votes, and therefore served as Chairman of the committee from January 1977 to late March, 1980. He and his two colleagues on the committee negotiated a collective agreement covering the three-year period starting March, 1977. That agreement was ratified in a secret ballot vote of employees. Mr. Moro explained that the agreement ultimately ratified by the employees was the second proposal the committee took to them; the first tentative agreement had been rejected in a similar secret-ballot vote. Mr. Moro and the other two members of the committee remained active until March, 1980, when another committee was elected by secret ballot vote, following a nomination meeting of the sort at which Mr. Moro had been nominated in 1977. Moro explained that if employees had problems during the term of the agreement his committee had negotiated with the respondent, they would bring the problems to the committee. If the committee members thought a complaint was valid, they would take it to management for the employee as they employees' representative.
During the time he held office, Mr. Moro never saw any written constitution for the organization. Asked whether he had ever heard anyone talk about a constitution, Mr. Moro said we had by-laws and patterns of operation, yes. He acknowledged he had never seen these by-laws in writing, and that the procedures were passed on from committee to committee by word of mouth. The procedures he had in mind covered the conduct of nomination meetings and elections by secret ballot, prescribed the manner in which motions were to be dealt with at meetings and stipulated that the committee would stay on as representatives of the employees after it had negotiated a collective agreement with management.
The only qualification for membership of which Mr. Moro was aware was that employees had to be employed for thirty days in order to be covered by the benefit package. He said that after that thirty day period, you were being represented. Asked whether an employee had to do anything to become a member, Mr. Moro said that after being employed for thirty days an employee would be approached and told that he was a member. During Mr. Moro's term on the committee there was never any need to collect monies from members for any purpose, and there was no discussion about printing or using membership cards. Members would learn of the rules of the organization by attending the first contract meeting, at which the procedures described by Mr. Moro would be discussed.
Counsel for the respondent began his argument with a reference to paragraph 11 of the Board's decision in The Parkdale Wines Limited, [1970] OLRB Rep. July 485:
when the Board is faced with the situation where a party upholds a document which it alleges to be a collective agreement and asserts that the collective agreement is a bar to an application for certification and if the document is challenged, the Board is faced with two issues. The Board must be satisfied that the document is a collective agreement within the meaning of section I(l)(c) of the Act. As stated in the cases cited above, the Board must first be satisfied that the party to the collective agreement which represents the employees of the employer is a viable entity. The fact that the organization is a viable entity may be established by filing a constitution which would be documentary evidence of its existence and by identifying the officers or officials of the organization through whom the organization acts. Once it has been established that the organization is a viable entity and has been party to the agreement for more than one year, the Board assumes that the entity is a trade union within the meaning of the Act. The party upholding the agreement had the onus of establishing that the organization which represents the employees is a viable entity and the onus of calling evidence to establish this fact rests upon such party (see The Peterborough County Board of Education Case).
[emphasis added]
Counsel focused on the emphasized sentence, and relied on the Board's use of the word may to support his submission that the failure to file a constitution for the Center Tool Employees Organization was not fatal to the respondent's position. He cited the Board's decision in Beach Industries Limited, [1965] OLRB Rep. Dec. 633 in further support of that submission, and also for the proposition that in these circumstances a respondent employer will have discharged the onus on it if it proves that the entity with which it has bargained collectively for a number of years did have a constitution at the time it was first granted voluntary recognition by the respondent. The Board's decision in National-Standard Company of Canada, Limited, [1974] OLRB Rep. Oct. 704 was also said to support the latter submission. Counsel argued that the evidence of Mr. Taiariol established the Center Tool Employees Organization had a constitution when it was formed in 1971, and that the reference to a constitution in its first collective agreement with the respondent in 1971 was further evidence that the organization had a constitution at that time. Anticipating the applicant's argument that the organization had never used membership cards, counsel submitted that we should find on the evidence that every employee passed his or her probationary period was regarded as a member and that every such person was, in fact, a member of the organization.
The applicant's representative cited Alcan Universal Homes, Division of Alcan Design Homes Limited, [19691 OLRB Rep. Apr. 55, Elgin County Roman Catholic Separate School Board, [1970] OLRB Rep. Feb. 1352, Canteen of Canada Limited, [1978] OLRB Rep. Sept. 802 and Comco Metal & Plastic Industries Ltd., [1979] OLRB Rep. June 498 as requiring that an organization have a constitution before it can be considered to be a trade union. She emphasized that the document said to be the constitution of the Center Tool Employees Organization had not been produced, that officers of the organization could only now have it by word of mouth that there had been such a document, and that there was no evidence that anyone currently involved in the organization had ever read the document in question. She noted that the first agreement with the organization had come on the heels of an unsuccessful organizing campaign by the U.A.W., and suggested that the organization had been hurriedly put into place. She submitted the Board should find on the evidence that the Center Tool Employees Organization is not a viable entity and that the applicant should be certified without a vote on the basis of its demonstrated membership support.
By way of reply, counsel argued that the cases cited by the union's representative did not support the proposition that a written constitution must not only exist but also be seen or read. He submitted the evidence demonstrated that the organization's membership has acted pursuant to an understanding of the terms of the constitution, and that this was demonstrated by a consistent pattern of conduct since 1971 in the nomination and election of committee members and the secret ballot procedure by which collective agreements had been ratified.
Before analyzing the evidence and argument and the Board's jurisprudence with respect to the nature of an inquiry into trade union status of an alleged incumbent bargaining agent, it will be useful first to consider briefly the purpose of the inquiry in this case. The Center Tool Employees Organization has not applied to the Board for certification or, for that matter, for anything else. The Board has not been called upon to determine whether the Center Tool Employees Organization has breached or is capable of breaching any of these provisions of the Labour Relations Act which impose obligations on trade unions. The status of the employees' organization is not in any way relevant to our jurisdiction to entertain this certification application; this application is a timely one whether the respondent's agreement with the employees' organization is a collective agreement or not. Because of the degree of employee membership in the applicant at the relevant time, we have the discretion under section 7 of the Act to either certify the applicant outright or to direct a representation vote. The inquiry on which the Board has embarked at the invitation of the respondent is directed solely to the exercise of that discretion.
When the effect of granting a certification application would be to displace the existing bargaining rights of an incumbent trade union, it is the longstanding policy of this Board not to grant certification except following a representation vote in which employees are offered a choice between the applicant and incumbent. This practice, and the reason for it, were described in Canadian John Wood Manufacturing Co., Ltd., 46 CLLC, 16,449:
…..There has been no intervention in the present proceedings. Had the United Steelworkers of America, Local 3062, intervened in these proceedings, we should have followed our usual practice in such cases, a practice sanctioned by the decision of the National Board in the New York Central case, [Dominion 10,436], and directed a vote in which the name of the petitioner as well as that of the aforementioned trade union would both have appeared on the ballot, so as to enable the employee to indicate their preference. In our opinion, the employees should be afforded such a choice in this instance despite the fact that the United Steelworkers of America, Local 3062, has not intervened in these proceedings. Such a course would carry out the thought which motivated the National Board in the New York Central case, supra, namely that an organization which holds a collective agreement should not be displaced unless the employees are given an opportunity to mark their ballots in its favour.
Our conclusion in this respect is also in line with our decisions in the Beach Foundary case [16,443], the Purity Bread case, [16,447] and the Toronto Transportation Commission case, [16,448]. The underlying principle in all of these cases is that stability in collective bargaining relations should be promoted to the fullest extent that the law will permit. This case must be distinguished from those cases in which an trade union or employees' organization party to such agreement, having lost interest in the employees, makes no effort to renew the agreement. It must also be distinguished from those cases in which a trade union or employees' organization party to an agreement has been dissolved or has disintegrated and has thus ceased to exist. Breihaupt Leather case, [16,446]. In those instances, we would not be inclined to include the name of such an organization on the ballot unless it actually intervened in the proceedings. Here, the trade union which was a party to the agreement was still a living force and still retained its interest in the collective agreement when the application of the present petitioner was filed.
See also, Thomas Fuller Construction Company (19S8) Limited, [1963] OLRB Rep. May 108; Redfern Construction Company Limited, [1967] OLRB Rep. Sept. 606; Nadeco Limited, [1970] OLRB Rep. Apr. 141. As the Board noted in Canadian John Wood Manufacturing Co., Ltd., supra, this practice is followed even where the incumbent trade union does not intervene in the certification application: see also NCR Canada Ltd., [1974] OLRB Rep. Dec. 847. This practice is only applied, however, when where it is acknowledged or found that the incumbent bargaining representative is, indeed, a trade union. The fact that employees have regularly been represented in joint bargaining by a representative other than a trade union — a shop committee, for example — has not led the Board to direct a representation vote when the applicant trade union demonstrated employee support sufficient for outright certification: Hall Engineering (Ontario) Limited, [19811 OLRB Rep. Oct. 1406. Consistent application of this policy would require that we direct a representation vote offering a choice of continued representation by Center Tool Employees Organization only if we are satisfied that that organization is a trade union which had bargaining rights for employees affected by this application at the time it was filed. The applicant has agreed that the current agreement between the respondent and the employees' organization must be a collective agreement if the organization is a trade union, and it follows from that that the organization would have current bargaining rights if it were a trade union.
Accordingly, the issue joined by the applicant and respondent is whether the Center Tool Employees Organization is a trade union. That organization has not intervened. There are, as we have noted, cases in which a vote has been ordered and the incumbent's name placed on the ballot notwithstanding that the incumbent has not intervened. There was no question in any of those cases that the incumbent was anything other than a trade union. Reported decisions in which such a question has arisen in relation to the exercise of the Board's discretion to direct a two-way vote involve cases in which the incumbent has intervened in the proceedings: see, for example, The Ottawa Citizen, [1969] OLRB Rep. Mar. 1268; and, The Peterborough County Board of Education, [1969] OLRB Rep. Aug. 636. There are cases in which respondent employers have asserted the trade union status of non-intervening incumbents, when that was part of the proof necessary to establish a collective agreement bar to an application for certification. The parties did not cite, and we are not aware of, any reported decision in which a respondent employer has asserted the trade union status of an entity not party to the proceedings when that status is challenged and would be relevant only to the Board's exercise of its discretion to order a representation vote. The applicant did not challenge the respondent's right to pursue that issue in this case.
In section l(l)(p) of the Labour Relations Act, trade union is defined as an organization of employees formed for purposes that include the regulation of relations between employees and employers . . .. In determining whether an entity or group of persons constitutes a trade union, the Board is obliged not to impose requirements unsupported by the language of section l(l)(p) in the context of the Labour Relations Act: re CSAO National (Inc.) and Oakville Trafalgar Memorial Hospital Association, 1972 CanLII 563 (ON CA), [1972] 2 O.R. 498 (Ont. C.A.); and see, Board of Education for the City of York, [1984] OLRB Rep. Sept. 1279 at paragraphs 38 to 61. The definition requires that there be an organization. The precise nature of that organization is not defined, but certain necessary characteristics can be inferred from the modifying phrase of employees and from the nature of the rights, obligations and duties conferred and imposed on trade unions by the Labour Relations Act. In Associated Hebrew Schools of Toronto, [1978] OLRB Sept. 797, the Board commented on the formality of structure required in order to constitute a organization of employees:
Section l(l)(n) of The Labour Relations Act defines a trade union, in part, as an organization of employees formed for purposes that include the regulation of relations between employees and employers. . . Such an organization is entitled, if it otherwise qualifies, to be certified, to negotiate collective agreements and generally to exercise the rights of a trade union under the Act. The Board, in seeking to determine whether an applicant before it is a trade union, required that it be more than just an informal joining together or individuals. Instead, the Board requires that the applicant be a formal organization whose members have bound themselves together on the basis of specific terms for purposes that include the regulation of relations between employees and employers. The decision of the Supreme Court of Canada in Orchard v. Tunny (1957) 1957 CanLII 57 (SCC), 8 D.L.R. (2d) 273 and the Ontario Court of Appeal in Astgen v. Smith (1967) 1969 CanLII 488 (ON CA), 7 D.L.R. (3d) 657 indicate that the essence of a trade union is a group of individuals who have entered into a contractual relationship one with the other, the terms and conditions of which are provided by the union's constitution. In Orchard v. Tunny, Rand J. in delivering the majority decision of the Court stated at p. 281:
Apart, then, from statute, that a union is held together by contractual bonds seems obvious, 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 their rules shall bind them in their relations to each other. That means that each is bound to all the others jointly
In Astgen v. Smith, Mr. Justice Evans in giving the majority decision of the Court made the following statements concerning the International Union of Mine, Mill and Smelter Workers at p. 662:
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 spelt 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.
I adopt also the proposition stated by Thomson J. in Bimson v. Johnson et al 1957 CanLII 131 (ON HCJ), [1957] O.R. 519 at p. 530, 10 D.L.R. (2d) 11 at p.22, which was affirmed on appear [19681 OWN. 217, 1958 CanLII 345 (ON CA), 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 bylaws. . . The contract is not a contract with the union or association as such, which is devoid of power to contract, but rather the contractual rights of a member are with all
other members thereof.
Once a trade union has come into existence it is a relatively simply matter for others to become members of the organization and thereby enter into a contractual relationship with the existing members. When a new member joins, however, he does so on the basis of a preexisting constitution. He knows (or at least should know) that it is a trade union which he is joining, that he is entering into a contractual relationship with the other members of the union and that the terms of that relationship are as spelt out in the union's constitution. The more difficult procedure to accomplish is for a group of employees to create a trade union where none has existed before. This process must involve not only the settlement of the terms of a constitution for the union, but also the taking of steps which make it clear that the individuals involved have actually entered into a contractual relationship one with another on the basis of the terms set forth in the constitution.
The Board has in a number of cases indicated a series of steps which will generally be sufficient to insure that a trade union has been brought into existence. See, for example, Local 199 U.A. W. Building Corporation [1977] OLRB Rep. July 471.
These steps may be summarized as follows:
A constitution should be drafted setting out, among other things, the purpose of the organization (which must include the regulation of labour relations) and the procedure for electing officers and calling meeting.
The constitution should be placed before a meeting of employees for their approval either as originally drafted or as amended at the meeting.
The employees attending the meeting should be admitted into membership. In this regard it is well to keep in mind section 1(l)(j) of the Act which defines a union member to include a person who has applied for membership in the union and on his own behalf paid to the union at least $1.00 in respect of initiation fees or monthly dues.
The constitution should be ratified by a vote of the members.
Officers should be elected pursuant to the constitution.
The steps outlined in paragraph 11 of the decision in Associated Hebrew Schools of Toronto do not represent the only procedure by which a group of employees can create the structure envisaged by the earlier-quoted Court decisions. The Board has recognized that the web of contractual relationships described in those decisions can arise in more than one manner: Niagara Veteran Taxi, [1979] OLRB Rep. Sept. 889. It is, however, of fundamental importance that a contractual relationship be created and maintained. The maintenance of the organization's formal structure requires, as paragraph 10 of the decision in Associated Hebrew Schools of Toronto indicates, that new members become party to the contractual relationship by agreeing to its terms, and that can only occur if the terms of that relationship are clear and capable of being ascertained by current and proposed members. The collection of rules of the contractual relationship is usually called the constitution or by-laws of the organization. It is normally supposed that such rules will be reduced to writing. Indeed, section 84 of the Labour Relations Act provides:
- The Board may direct a trade union, council of trade unions or employers' organization to file with the Board within the time prescribed in the direction a copy of its constitution and by-laws and a statutory declaration of its president or secretary setting forth the names and addresses of its officers.
Implicit in this provision is the expectation not only that a trade union will have a constitution or by-laws or both, but also that the constitution and by-laws, if any, will be in writing.
The evidence before us is that in 1971 a group of employees agreed to a set of rules by which a negotiating committee would be elected and function on their behalf in negotiations with their employer. It is said that a written constitution was approved. That document is not before us. The only witness who ever saw it is unable to remember all of its terms. The terms he did remember did not address the means by which employees were to obtain membership in the organization or the obligations employees would assume upon becoming members. Whatever may have been the basis on which the Center Tool Employees Organization and its bargaining committee functioned in 1971, it is clear from Mr. Moro's evidence that the committee and organization functioned from 1977 to 1980 in accordance with oral rules handed down from the previous committee, and not in accordance with the terms of any written constitution. It is impossible for us to say whether the oral rules transmitted to Mr. Moro's committee are the same as or different from the rules set out in the written constitution Mr. Taiariol said he saw in 1971. As is the case with the constitutional terms remembered by Mr. Taiariol, the rules passed on to Mr. Moro did not define any membership obligations or speak to any formal process by which employees would obtain membership and so undertake the obligations of members.
The issue before us is whether there is now an organization named Center Tool Employees Organization which can be described as a trade union within the meaning of the Labour Relations Act. The respondent's evidence dealt with the history of an organization by that name up to March of 1980. By that time, the organization, if it could be described as one, was functioning on the basis of rules which had devolved, and perhaps evolved, orally; it was not functioning on the basis of the written constitution seen Mr. Taiariol in 1971, or any other written constitution for that matter. We have no evidence of the basis on which the alleged organization functioned after March of 1980, and if we are to draw any inference from the evidence we have heard, it is that the 1971 constitution no more formed the foundation of the organization in 1985 than it did in 1980.
Though section 84 of the Labour Relations Act contemplates that the trade union's constitution will be in writing, it might be argued that the contractual formalities among members necessary to create and maintain a trade union need not be reduced to writing; at common law, perfectly enforceable contracts can be created orally. Assuming, without deciding, that it is theoretically possible for a trade union to be constituted and operate on the basis of an oral constitution, there are some obvious practical difficulties involved in the attempt to do so. One is the sheer unlikelihood that anyone could remember the details of even the simplest union constitution without the assistance of written memoranda. The difficulty multiplies with the number of people who would have to maintain a common recollection of the rules to which they had subscribed at various times in the organization's history. Perhaps the exercise would not be a practical impossibility. Without proof of the current existence and accessibility of a written document or some other universally accepted authoritative source to serve as an anchor for drifting and failing memories, however, we would certainly require some affirmative proof that the current members of the organization share a common understanding as to the rules by which members of the organization are now governed before we would conclude that a viable entity was functioning and capable of functioning on the basis of an oral constitution. There is no such evidence before us.
Evidence that an organization once adopted a written constitution is some evidence that the organization was then a trade union but, like a past Board finding to that effect, it raises only a rebuttable inference that the organization has remained a trade union. The totality of the evidence may show that an organization has dissipated or abandon its constitution, or simply ceased to have any awareness of or to be governed by whatever constitution may have lead to an original finding that it was a trade union: Allbright Platers Limited, [19721 OLRB Rep. Aug. 784; Tridon Limited, [1974] OLRB Rep. Jan. 16; Footwear Fashions Limited, [1981] OLRB Rep. Apr. 454.
Even if we could assume, as we cannot, that the organization is now governed by a set of rules similar to those contained in the written constitution of 1971, or to the oral rules passed on to Mr. Moro in 1977, we would have difficulty concluding that those rules had created an organization capable of being described as a trade union. The difficulty with those rules is that they are insufficiently formal on the question of membership. The following words of the Board in Tridon Limited bear application to the evidence we heard with respect to the functioning of the organization in 1971 and in the period 1977 to 1980:
A superficial glance at the situation reveals what appears to be a superstructure of officers who carry out functions normally performed by officers of a trade union. It is, however, the question of the existence of a proper substratum that causes difficulty in finding a ready answer to the question before the Board. That is whether there can be said to be an organization in the absence of formal membership requirements and formal mutual obligations between the employees concerned because of which they may be identifiable as members of an organization.
In the case of Orchard et al. v. Tunney, 8 D.L.R. (2D) (1957) 273 at pp. 281 and 282, the Court, in dealing with the nature of a union, stated: . . . Apart, then, from statute that a union is held together by contractual bonds seems obvious; each member commits himself to a group on a foundation of specific terms governing individual collective action, a commitment today almost obligatory, and made on both sides with the intent that the rules shall bind them in their relations to each other. That means that each is bound to all the others jointly. The terms allow for the change of those within that relation by withdrawal from or new entrance into membership. Underlying this is the assumption that the members are creating a body of which they are members and that it is as members only that they have accepted obligations; that the body as such is that to which the responsibilities for action taken as of the group are to be related.
Evans, JA., in the course of his majority judgment in the Ontario Court of Appeal in Astgen et al. v. Smith et al., 7 D.L.R. (3D) 1970, 657 at p. 661, in dealing with the question of the legal status of a trade union stated: . . .1 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, bylaws, rules and regulations to which they have subscribed.
In the present case, there are no contractual bonds or commitments made by the employees to each other and the group. There are no obligations imposed or accepted indicative or membership in a group. There are no fees, dues or other monetary requirements paid or payable by employees which might serve to identify them as members of an organization. Finally, the word organization implies the regulation of conduct between members by means of a constitution, by-laws or rules and regulations to which those proposing to be members may subscribe. There has been no such subscription in this case and there are, in fact, no members in the sense contemplated by the foregoing cases It follows, therefore, that the intervener is not an organization and therefore cannot be a trade union within the meaning of the Labour Relations Act.
The fact is that the employees at large of the respondent are simply an unrestricted electorate whose only qualification to vote is that they be employees other than foremen or office staff. They have, from time to time, elected fellow employees to act as spokesmen with management. The use of such titles as president and secretary and departmental representatives in itself does not, of course, create an organization capable of being found to be a trade union within the meaning of the Act, particularly the absence of mutually obligated members.
See also, The Dufferin-Peel Roman Catholic Separate School Board, [1976] OLRB Rep. Dec. 821; Donna Hewett, [1977] OLRB Rep. Mar. 159 and Durham Metal Stamping & Assemblies, [1978] OLRB Rep. Dec. 1092.
We have given no weight to the applicant's assertion that attempts to create a Center Tool Employees Organization took place hurriedly after its earlier unsuccessful organizing campaign. The applicant has made no allegation of employer interference or support. We do not for a moment question the bona fides of the persons who have served on these committees from time to time. We have no reason to suppose that they functioned otherwise than at arm's length from management during the time they acted on behalf of their fellow employees. We are simply unable to conclude, on the evidence before us, that the Center Tool Employees Organization today possesses a structure sufficiently formal for it to be described as an organization of employees within the meaning of the Labour Relations Act.
The applicant had the support of approximately two-thirds of the bargaining unit employees at the relevant time. For the foregoing reasons, we have concluded that it is neither necessary nor desirable for the Board to exercise its discretion to direct that a representation vote be taken in the circumstances of this case.
A certificate will issue to the applicant with respect to the bargaining unit described in paragraph 3 of the Board's decision herein dated April 23, 1985.