Ontario Labour Relations Board

[1985] OLRB Rep. July 1001

3444-84-R Butterfield Workers Association, Applicant, v. Butterfield Division, Lit­ton Canada Inc., Respondent, v. Communications, Electronic, Electrical, Technical and Salaried Workers of Canada, Intervener

BEFORE: Robert D. Howe, Vice-Chairman, and Board Members D. M. Blair and

S. O'Flynn.

APPEARANCES: C. J. Abbass, Peter C. Wansbrough, and Bradley R. Blair for the appli­cant; Peter Thorup, M. Van Sickle, H. Fisher and U Denney for the respondent; Stephen M. Grant, Kevin Whitaker and Lloyd Saunders for the intervener.

DECISION OF THE BOARD; June 12, 1985

1. The name of the respondent is amended to "Butterfield Division, Litton Canada Inc."

2. This is an application for certification.

3. The applicant has not previously been found to be a trade union within the meaning of section l(l)(p) of the Labour Relations Act. Accordingly, at the hearing of this matter the parties were afforded an opportunity to present evidence and argument on the threshold ques­tion of whether or not the applicant is a trade union within the meaning of the Act. The sole witness called to testify before the Board concerning that issue was Peter C. Wansbrough. Mr. Wansbrough, a machine operator in the employ of the respondent, was advised by some of his fellow employees in December of 1984 that meetings were being held that month to consider the formation of an employees' association. Although he did not attend any of those meetings, Mr. Wansbrough did attend a meeting that was held on the evening of January 6, 1985 at a hall near Smiths Falls. Between 35 and 40 of the respondent's work force of approx­imately 200 employees were in attendance at that meeting, which was chaired by Pat McNeely, the employee who headed a "steering committee" which (Mr. Wansbrough was advised by other employees) had been established at a prior meeting. At the January 6th meeting, the employees in question purported to acclaim Mr. Wansbrough, Junior Comstock, and Charlie Dalton as president, vice-president, and treasurer of the applicant, respectively. They also pur­ported to elect Brad Blair as secretary. A general discussion of the objects and purposes of the applicant was then held and a committee headed by Mr. Wansbrough was "directed to bring in a constitution". Some of the employees in attendance at that meeting purported to join the applicant by signing membership cards and paying a dollar to Mr. Wansbrough. Those cards were in the following form:

MEMBERSHIP CARD

This is to certify that

________________________________________

name

is Member in good standing

of the

Butterfield Workers Association

Each of the "members" was provided with a receipt signed by Mr. Dalton, to whom Mr. Wansbrough gave the money after collecting it from the employees. The decision to charge a $1.00 "initiation fee" was made by Messrs. Wansbrough, McNeely, Comstock, and Blair.

4. Following that meeting Mr. Wansbrough continued to sign up employees as "mem­bers" of the Association by collecting a dollar from them and having them sign a membership card. Having obtained copies of the constitutions of various employee associations repre­senting employees at other companies in Smiths Falls, the members of the aforementioned committee met at the home of Mr. Dalton to review those constitutions and select the con­stitutional provisions which they felt to be appropriate. The clauses which they selected were later given to John S. Kirkland, Q. C., who agreed to have his secretary type a constitution comprised of those clauses. A further meeting was held at the aforementioned hall on February 10, 1985 at 7:00 p.m. Notice of that meeting was given to employees by word of mouth, which was the same manner in which notice of the meeting of January 6, 1985 had been given to employees. Approximately 15 to 20 "members" of the applicant were present at that meeting, which was also attended by Mr. Kirkland. The draft constitution was submitted to the meeting and, following a general discussion, was unanimously passed. The desirability of applying for certification was then discussed and Mr. Kirkland was retained to contact the Board and prepare an application for certification.

5. On February 20, 1985, Mr. Kirkland flied with the Board an application for cert­ification on behalf of the present applicant. That application (Board File No. 3095-84-R) was "withdrawn by leave of the Board" on April 12, 1985, at the request of the applicant. The instant application was filed with the Board on March 26, 1985 and is supported by mem­bership evidence (in the form of combination applications for membership and receipts) signed in March of 1985.

6. Article 2 of the Constitution describes the "objects and purpose" of the applicant as follows:

2.1 The purpose of the Association is to represent the members in collective bargaining and in all other relations with their employers and to protect, maintain and advance the interests of the workers within its jurisdiction without regard to craft, age, sex, nationality or creed.

2.2 The Association shall also seek to improve its members' wages, hours and conditions of employment and may engage in legislative, political, educational, civic, welfare and other activities which further directly or indirectly the membership [sici of the members of the Association and of workers everywhere.

2.3 To achieve the objectives and purposes of the Association, its funds and property may be used, managed, invested and expended not only for the purpose and objectives expressly set forth in this Article and otherwise in this Constitution, but also for any additional purposes and objectives not inconsistent therewith as may be contained at any time in the resolutions and programs adopted and/or ratified by conventions of the Association or by its Executive Board.

7. The Constitution also sets forth a procedure for electing officers and calling meetings. Articles 4 and 10 provide, in part, as follows:

ARTICLE 4- OFFICERS AND EXECUTIVE BOARD

4.1 There shall he an Executive Board of the Association consisting of a President, Vice-President, Secretary, Treasurer, two Trustees and a Chief Steward.

4.2 The President, Vice-President, Secretary, Treasurer, the two Trustees and the Chief Steward shall all be elected for a one (1) year term commencing with the founding meeting and every year thereafter.

ARTICLE 10 - MEETINGS

10.1 Regular membership meetings will be held once each month.

10.2 A quorum of at least ten (10) members must be present at regular membership meetings for the transaction of business.

10.3 A special general meeting of the members of the Association may be called at any time by the Executive Board and shall be called after a written request of a least ten (10) members has been received by the Executive Board requesting such a meeting.

10.4 A special general meeting shall be held within fifteen (15) days after the receipt of the written request referred to above by the Secretary.

No elections were held at the February 10, 1985 meeting, nor was the January 6, 1985 election or acclamation of Messrs. Wansbrough, Comstock, Blair, and Dalton ratified or affirmed at the February 10, 1985 meeting or at any other time prior to the hearing of this matter.

8. Section l(l)(p) of the Act provides as follows:

"trade union" means an organization of employees formed for purposes that include the regulation of relations between employees and employers and includes a provincial, national, or international trade union, a certified council of trade unions and a designated or certified employee bargaining agency.

The Board has indicated in a number of cases a series of steps which are generally sufficient to establish that such an organization has been brought into existence. Those steps were summarized as follows in Associated Hebrew Schools of Toronto, [1978] OLRB Rep. Sept. 797, at paragraph 11:

1. 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 meetings.

2. The constitution should be placed before a meeting of employees for their approval either as originally drafted or as amended at the meeting.

3. The employees attending the meeting should be admitted into membership. In this regard it is well to keep in mind section 1(l)(j) [now section 1(1)(l)i 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.

4. The constitution should be ratified by a vote of the members.

5. Officers should be elected pursuant to the constitution.

(See also Comco Metal & Plastic Industries Ltd., [1979] OLRB June 498, and Local 199 U.A. W Building Corporation, [1977] OLRB Rep. July 472.)

9. It is clear from the evidence adduced before the Board that the first two steps have been fulfilled. As indicated above, a constitution was drafted setting out, among other things, objects which include representation of members in collective bargaining and in all other relations with their employers. That constitution, which was placed before a meeting of employees on February 10, 1985 and approved at that meeting, also sets forth a procedure for electing officers and calling meetings. However, it is equally clear from the evidence that the fifth step described above has not been fulfilled. The failure to elect "two Trustees and a Chief Steward" in accordance with Article 4 of the Constitution might not, by itself, lead the Board to conclude that the applicant is not a trade union within the meaning of section l(l)(p) of the Act, as the Board has adopted a somewhat flexible approach concerning such matters. See, for example, The Public Utilities Commission of the Borough of Scarborough, [1982] OLRB Rep. April 609, in which the Board found that the acclamation of a president, vice-president, secretary, and treasurer, after the other four steps identified in Associated Hebrew Schools of Toronto, supra, had been fulfilled, was sufficient to make the Utility Workers of Canada an organization which was a "trade union" under the Act, notwithstanding the fact that the election of the full complement of nine officers contemplated by the constitution was not scheduled to occur until the applicant held its first convention. (See also Comco Metal & Plastic Industries Ltd., supra; Gold Crest Products Ltd., [19731 OLRB Rep. Aug. 436; Gold Crest Products Ltd., [1973] OLRB Rep. Sept. 469; and Economical Mutual Insurance Co., [19721 OLRB Rep. Feb. 176.) However, the failure to elect (or acclaim) any officers in accordance with the constitution, or to expressly or implicitly authorize to act on behalf of the applicant the persons purportedly elected or acclaimed prior to the adoption of the constitution, is a different matter. The importance of officers in the context of what is now section l(l)(p) of the Act was described as follows in J. Harris & Sons Ltd., 60 CLLC 16,177:

whatever the status of a trade union may now be at common law (see International Brotherhood of Teamsters etc. Local 213 v. Therien, 1960 CanLII 33 (SCC), [1960] S.C.R. 265), the Act, for at least some purposes thereof, clearly treats it as a legal entity separate and distinct from its membership. It may be a party to proceedings before the Board, it may bargain and negotiate for, and enter into collective agreements, and it may prosecute and be prosecuted. It would seem to follow, therefore, that a union's representatives are, at least insofar as some purposes of the Act are concerned, the representatives of the union as a juristic entity, and not merely the representatives of the individual members thereof.

How may a trade union under the legislation, perform its functions, achieve its purposes, or exercise its rights, or discharge its obligations unless it has duly authorized persons by and through whom it may act and be bound? without officers or other duly authorized persons, the applicant, by its constitution, may only act and be bound through a general convention of members. In this respect its position is somewhat analogous to a corporation which may only act and be bound by and through its officers or agents or its shareholders at a general or special meeting. without authorized persons to act on its behalf, every act of the applicant would require the sanction of a general convention of members with all the procedural requirements entailed thereby. It is obvious that this would impose such a restriction on its activities that for all practical purposes it would be impossible for it to carry out the purposes of its constitution....

Further, it seems implicit in section 55 [now section 84] of the Act and the sections thereof which deal with collective bargaining and the rights, responsibilities and duties of trade unions, that a trade union will have responsible persons to act and make decisions on its behalf. In this regard section 55 provides inter alia, that the Board

.may direct any trade union.. .to file with the Board.. .a copy of its constitution and by­laws and a statutory declaration of its president or secretary setting forth the names and addresses of its officers.

In regard to notices, proceedings before the Board, collective bargaining, conciliation and arbitration, the Act clearly presupposes the existence of responsible representatives to act on behalf of the union. It is obvious also that in order to operate in accordance with its constitution and the legislation, a union must have persons responsible and accountable to the membership for the collection and expenditure of union funds.

It is significant to note that Harris J. of the New Brunswick Court of Appeal in The King v. The Labour Relations Board, CCH Canadian Labour Law Reporter, Transfer Binder (1949-54), 15,038 at p. 11,303 refers to a trade union "in the ordinary sense" as "a body with a charter and construction [sic] with properly elected officers."

In that case, persons present at a "general meeting" on August 11, 1959, purported to elect officers. However, the applicant's constitution was not adopted until November 11, 1959. The Board ruled that the purported election of officers prior to the adoption of a constitution was premature:

It is, of course, elementary that the applicant organization could not come into existence until the adoption of its constitution nor could it have officers as such until that time. Any purported election of officers to the applicant organization before the adoption of its constitution would, therefore, be premature. whatever may have occurred before the adoption of the applicant's constitution, it is abundantly clear from the evidence that no officers have been elected since that date.

The Board further wrote as follows in that case:

.... we find that as the applicant organization has no officers elected in accordance with its constitution, and as it has not established that the persons purporting to act as officers thereof are otherwise authorized to act as such by the membership, the applicant has failed to prove its status as a trade union under the Act.

A similar approach has been adopted by the Board in numerous subsequent decisions: see, for example, Abitibi Power & Paper Co., [1965] OLRB Rep. Oct. 491; Borg Fabrics Ltd., [1966] OLRB Rep. Dec. 693; Kitchener Public School Board, [1967] OLRB Rep. Jan. 789; Ferritronics Ltd., [1969] OLRB Rep. March 1286:, and Dufferin-Peel County Roman Catholic Separate School Board, 11971] OLRB Rep. Oct. 680.

10. In addition to section 84, a number of other provisions in the Act clearly contemplate that a "trade union" will have officers. For example, section 85(1) requires every trade union, upon the request of any member, to furnish the member with "a copy of the audited financial statement of its affairs to the end of its last fiscal year certified by its treasurer or other officer responsible for the handling and administration of its funds to be a true copy". See also sections 46(3), 66(c), 74, 82(1), 91(1), 92, 98, 99(2), and 101(2). Moreover, it is difficult to envision how the important powers and obligations of a "trade union" which obtains certification under the Act (or otherwise gains bargaining rights for employees) could be exercised or fulfilled without officers elected under its constitution or otherwise duly authorized to act as officers thereof. Thus, the requirement that an applicant have such officers before the Board will find it to be "an organization of employees formed for purposes that include the regulation of relations between employees and employers" is not a mere technicality, but rather is the construction of section l(l)(p) which, in our view, best ensures the attainment of the objects of the Act according to its true intent, meaning, and spirit (see the Interpretation Act, R.S.O. 1980, c. 219, s. 10).

11. In the instant case, it is clear from the evidence that the purported election or acclamation of the persons who are said to be officers of the applicant occurred on January 6, 1985, a month before the applicant's constitution was adopted on February 10, 1985. It is also clear from the evidence that the January 6, 1985 election and acclamations were not subsequently confirmed or ratified. Nor has it been established that Mr. Wansbrough and the other persons who purport to be officers of the applicant have been otherwise authorized to act as officers thereof. In this regard, it is noteworthy that the only evidence concerning further actions taken by the employees in attendance at the February 10 meeting pertains to the aforementioned authorization of Mr. Kirkland to contact the Board and prepare an application for certification.

12. For the foregoing reasons, the Board finds that the applicant has failed to establish that it is a "trade union" within the meaning of section l(l)(p) of the Act. Accordingly, this application is hereby dismissed.