Employees' Association of Euclid (V.M.E.) v. VME Equipment of Canada Ltd.
[1986] OLRB Rep. October 1480
0879-86-R Employees' Association of Euclid (V.M.E.), Applicant, v. VME Equipment of Canada Ltd., Respondent
BEFORE: Ken Petryshen, Vice-Chairman, and Board Members W. G. Donnelly and D. Patterson.
APPEARANCES: Frank Carere and Seitz Enders for the applicant; Norman MacL. Rogers and Susan Armstrong for the respondent.
DECISION OF THE BOARD; October 14, 1986
The name of the respondent is amended to read: "VME Equipment of Canada Ltd.".
This is an application for certification. The applicant employee organization has never previously appeared in any proceeding before the Board, and accordingly is required to establish that it is a trade union within the meaning of section l(l)(p) of the Labour Relations Act. Mr. S. Enders, the vice-president of the applicant, gave evidence concerning its origins.
In the early part of 1986, another trade union failed in its effort to organize the respondent's employees and it was this event which prompted some employees to attempt to create their on organization to represent them in collective bargaining. With a view to establishing their own association, Enders and a few other employees obtained information from various sources not here relevant. After canvassing the desires of the majority of the respondent's employees and receiving i positive response, the core group of employees developed an application for membership card and in May and the early part of June, 1986, employees were approached and asked to sign a card and to make a two dollar payment. Out of a bargaining unit of approximately 240 employees, the one group of employees was able to obtain applications for membership on behalf of 165 employees. Once the campaign to sign members essentially was completed, a draft constitution was prepared and a founding meeting organized.
Two meetings of employees were held on June 21, 1986. The first meeting began at 1:00 a.m. and the second one started at 12:30 p.m. We were provided with Minutes of both meetings and Enders testified and we are satisfied that these Minutes reflect in substance what occurred it the meetings. Also filed with the Board by the applicant is a list containing the names of those employees who attended both meetings. Sixty-nine employees were present for the first meeting and sixty-one employees attended the second meeting.
5 At the first meeting, employees were given copies of a draft constitution. There was a discussion concerning the objects and purposes of the Association along with a lengthy discussion concerning the various provisions of the draft constitution. After these discussions, the first meeting concluded with the unanimous carriage of the following motion:
That the employees who had applied and were eligible for membership form and constitute an Association known as Employees Association of Euclid (V.M.E.) and the Constitution annexed to these Minutes be the Constitution of such Association and the objects and purposes of the Association be as set out in the Constitution.
The constitution adopted by the employees at the first meeting on June 21st contains proper collective bargaining objectives and provides for the election of officers and the payment of dues. The second meeting on June 21st is referred to in the Minutes of that meeting as the "inaugural meeting of the members of the Employees Association of Euclid ("V.M.E.")". During the course of the second meeting, employees elected officers, unanimously decided to take the necessary steps to certify the Association as the bargaining agent of the employees of VME Equipment of Canada Ltd. and appointed solicitors to act on the Association's behalf. The Minutes of the second meeting indicate that counsel was present.
This application was filed with the Board on June 27, 1986. Pursuant to the Board's Rules of Procedure, the Registrar fixed July 10, 1986 as the terminal date. Subsequent to the filing of the application and the terminal date, representatives of the applicant realized that there might be a potential problem with the membership evidence previously filed with the Board. To address this potential problem, documents were prepared and executed by employees which contained the following preamble:
EMPLOYEES ASSOCIATION OF EUCLID (V.M.E.)
THE UNDERSIGNED have read the following documents:
(a) Minutes of a meeting of employees of V.M.E. Equipment of Canada Ltd. below the rank of supervisor and excluding office staff, dispatchers and part-time employees held at the Victoria Recreational Centre, Victoria Road, Guelph, Ontario, on Saturday, June 21, 1986 at the hour of 11:00 o'clock in the forenoon and the attached Constitution.
(b) Minutes of an inaugural meeting of the members of Employees Association of Euclid (V.M.E.) held at the Victoria Recreational Centre, Victoria Road, Guelph, Ontario, on Saturday, June 21, 1986 at the hour of 12:30 o'clock in the afternoon.
THE UNDERSIGNED hereby ratify and confirm and adopt the motions as set out in the aforesaid Minutes.
THE UNDERSIGNED hereby ratify and confirm and adopt the Constitution of the Employees Association of Euclid (V.M.E.).
THE UNDERSIGNED hereby ratify and confirm the membership of the undersigned in the Employees Association of Euclid (V.M.E.).
The documents referred to above contained the signatures of 141 employees. Enders, who actually witnessed eight of the signatures, testified that when representatives of the applicant circulated the documents, they approached, for the most part, those employees who had previously applied for membership but did not attend the June 21st meetings. It appears that quite a few employees who attended the June 21st meetings also signed a document. The documents were signed by employees between July 14th and July 17th, 1986 and were filed with the Board at the hearing on July 18, 1986.
In their able submissions to the Board, counsel focused on the issue of whether employees had been admitted into membership or confirmed their membership subsequent to the adoption of the constitution. Counsel for the applicant argued that all the formalities required to attain the status of a trade union had been met at the completion of the two meetings on June 21st. In particular, counsel submitted that the motion passed at the first meeting on June 21st had the effect of admitting into membership or confirming membership for all those employees who had previously signed an application for membership. Alternatively, counsel argued that the motion at least was confirmation of membership for those employees who were at the first meeting and who previously had signed an application for membership. The documents filed with the Board at the hearing also, counsel argued, provided evidence of confirmation of membership. Counsel for the respondent argued that the membership cards were signed at a time when the applicant did not exist and that the Board did not have before it any evidence sufficient to establish confirmation of membership. Counsel also submitted that the documents filed at the hearing were of little assistance to the applicant since there was an onus on the applicant to prove it was a trade union as of the application date, not the hearing date.
The Board must be satisfied that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act which defines a trade union as "an organization of employees formed for purposes that include the regulation of relations between employees and employers ...". In essence, an applicant wishing to prove it is a trade union must satisfy the Board that it is an organization of employees formed for purposes that include labour relations and that it is a viable entity for collective bargaining purposes. Although each case is decided upon its own facts, the Board has indicated in a number of cases a series of steps which are generally sufficient to establish that a trade union has been brought into existence. Those steps were summarized as follows in Canteen of Canada Limited, [1978] OLRB Rep. Sept. 802, at paragraph 14:
(a) There is a written document (eg., a constitution or charter) which at least defines how membership is obtained; provides for officers or persons to be elected with authority to act on behalf of the organization; provides for the calling of membership meetings; and includes a statement of purpose which includes the regulating of relations between employees and employers.
(b) The document is approved by the employees.
(c) Employees are admitted to membership in accordance with the terms of the document or are confirmed afterwards as members it they join the organization before the document is adopted.
(d) The document is ratified by the said members.
(e) Officers or persons to act for the organization are elected in accordance with the constitution.
For an example, see Local 199 U.A. W. Building Corporation, [1977] OLRB Rep. July 472.
The Board is not unduly technical when it comes to determining whether an applicant has satisfied the above guidelines. In the instant case, there is no dispute that the applicant has complied with most of the steps outlined above in Canteen of Canada Limited, supra. The only difference between the parties is whether there has been a confirmation of membership subsequent to the formation of the applicant on behalf of those employees who had previously signed applications for membership. As indicated above, the bulk of the membership evidence filed with this application was executed prior to the creation of the applicant on June 21st, 1986 when its constitution was adopted. One of the elements included in the Act's definition of member in section 1(1)(l) is the requirement that a person "has applied for membership in the trade union". Without some confirmation of membership subsequent to the creation of the applicant, the membership applications represent nothing more than applications to join a non-existent entity. In addition, confirmation of membership at the time of or subsequent to the adoption of the constitution is necessary before one can conclude that the employees who signed the applications for membership were agreeing to become contractually bound one to another pursuant to the terms of the constitution. 4 See, Associated Hebrew Schools of Toronto, [1978] OLRB Rep. Sept. 797).
In support of his argument that the motion adopted by the applicant at its first meeting on June 21st had the effect of confirming membership on behalf of all those employees who previously signed an application for membership, counsel referred us to some general comments in one of the Board's earlier decisions. The following excerpt from M. Loeb Limited, [1962] OLRB Rep. May 69 is representative of the type of comment counsel relied upon:
Where evidence of membership in a trade union submitted in support of an application for certification consists of application cards, signed, and payment of initiation fees, prior to the time that the applicant came into existence as an organization, the Board does not regard such evidence as valid evidence of membership in the absence of other evidence that the alleged members did some other act consistent with membership after the applicant was formed, or in the absence of some motion by the applicant rectifying the membership of persons who applied for membership prior to the applicant being formed.
We do not agree that the type of general comment set out above in M. Loeb Limited, Supra, supports counsel's argument. When an employee signs an application for membership card, he or she is expressing an individual choice. In determining whether confirmation of membership bias occurred, it appears to us one would require some conduct on the part of the employee which also reflects that employee's individual choice. As well, it would be difficult to conclude that an employee has agreed to become bound with other employees by the terms of a constitution without some conduct from the employee confirming membership. An act of an employee voting on a motion at a meeting of employees could satisfy the requirement of confirmation of membership, depending of course on the wording of the motion. When the Board in M. Loeb Limited, supra, makes reference to "some motion by the applicant rectifying the membership of persons ...', it intended that rectification or confirmation would occur for only those employees who supported a particular motion and who previously had applied for membership.
We find support for our view that the applicant cannot adopt a motion which would have the effect of confirming membership for those employees who previously signed a membership card and did not vote on the motion at the June 21st meeting in the Board's reasoning in National Automatic Vending Company Limited, [1963] OLRB Rep. May 59. In this case, the constitution was adopted at a meeting held on February 12th which was attended by thirty-three employees. All of the applications for membership, which exceeded thirty-three, were signed prior to the meeting of February 12th. At the February 12th meeting, the following resolution was unanimously passed by those in attendance:
RESOLVED that all membership applications submitted to date be and the same are hereby accepted and all the members present at this meeting as well as D. Strachan, Florence Spencer, Marie Daly, Helen Greer, D. Gentle, W. King, Martha Mitchell and M. Strachan, are hereby considered as members in good standing of this Union.
It appears that by means of the above motion the applicant attempted to confirm membership on behalf of the named employees who were not in attendance at the meeting in addition to the thirty-three employees who attended the meeting. The Board found that the applicant was a trade union but in so finding it noted that "the unanimous adoption of the above resolution is sufficient reaffirmation of membership in the applicant union by the thirty-three employees in attendance at the meeting ...". The Board concluded in National Automatic Vending Company Limited, supra, that a motion adopted by employees at a meeting could not confirm membership for those employes who did not vote on the motion.
We turn now to the issue of whether the employees who attended the first meeting on June 21st confirmed their membership. To reiterate, the employees attending the first meeting on June 21st unanimously endorsed a motion which reads in part that "the employees who had applied and were eligible for membership form and constitute an Association known as Employees' Association of Euclid (V.M.E.) ..." (emphasis added). The motion makes reference to employees who had applied for membership and indicates that it is these employees as members who will constitute - in other words, make up or compose - the Association. Although this motion is not worded as explicitly as the motion set out above from the National Automatic Vending Company Limited case, the unanimous adoption of the motion, in our view, is sufficient evidence of confirmation of membership on behalf of those employees supporting the motion who previously may have signed an application for membership. Accordingly, we are satisfied that there is sufficient evidence of an "organization of employees formed for the purposes that include the regulation of relations between employees and employers ..." for us to find that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act on the date the application was filed with the Board.
The Board further finds that all employees of the respondent in the City of Guelph, save and except supervisors, persons above the rank of supervisor, office staff, persons regularly employed for not more than twenty-four hours per week and students employed during the school vacation period, constitute a unit of employees of the respondent appropriate for collective bargaining.
Having proved its status as a trade union, the applicant must still demonstrate that it has sufficient support to warrant either automatic certification or the taking of a representation vote. Since certification has important consequences for both the trade union and the employees it represents, the Board exercises considerable care in determining whether an applicant union represents the majority of the employees.
The great majority of the applications for membership filed in support of this application were signed by employees prior to the coming into existence of the applicant. Since an element of the Act's definition of member includes a person who applied for membership in a trade union and since the applications for membership before us were signed at a time when the applicant was not a trade union, the applications for membership filed by the applicant, standing by themselves, do not constitute valid membership evidence. This is so even though the applications or membership were filed with the Board prior to the terminal date. As indicated above, in order 10 validate membership evidence executed in this manner, there must be some evidence confirming membership subsequent to the formation of the organization of employees. In deciding the status issue, we found that the act of voting in favour of a particular motion at the first meeting on June ~1st amounted to a confirmation of membership on behalf of only those employees who attended 1 he meeting. Even if we assume that all the employees attending this pre-terminal date meeting had previously signed applications for membership, this would only give the applicant membership support on behalf of approximately thirty per cent of the employees in the bargaining unit. Before can demonstrate sufficient support entitling it to automatic certification or to a representation vote, the applicant must satisfy us that the employees who signed applications for membership and did not attend the meeting on June 21st have confirmed their membership in the applicant.
Counsel for the applicant argued that the documents he filed with the Board at the hearing signed by 141 employees constitute confirmation of membership on behalf of those employees who did not attend the June 21st meeting and who previously had signed an application for membership. Counsel submitted that the fact the documents were signed and filed with the Board subsequent to the terminal date should not lead the Board to disregard them. He argued hat the evidence confirming membership is not membership evidence and, therefore, the confirrnatory act need not occur on or before the terminal date. In the alternative, counsel requested the Board to exercise its discretion in favour of extending the terminal date in order to make the signing of the documents timely.
The Board is given a discretion, pursuant to section 103(2)(j) of the Act, to determine he form in which and the time as of which evidence of membership in a trade union shall be prevented to the Board on an application for certification. The Board's practice in that regard, insofar is it is material for our purposes, is contained in Rule 73 of the Board's Rules of Procedure which provides that evidence of membership in a trade union must be in writing, signed by the employees and must be filed no later than the terminal date for the application. As indicated previously, the terminal date for this application fixed pursuant to sections 7 and 103(2)(j) of the Act is July 10, 1986. The Board's power to vary the terminal date is set out in section 82(2) of the Rules of Procedure.
As of July 10, 1986, the terminal date for this application, we do not have before us valid membership evidence on behalf of the employees who were absent from the June 21st meetings. Since the evidence confirming membership is what purports to give validity to this membership evidence, one cannot treat the confirmatory evidence as a matter separate and apart from the applications for membership. Such confirmatory evidence, therefore, must relate to acts which occur on or before the terminal date. Since the documents filed with the Board were signed subsequent to the terminal date, we are not prepared to give them any weight when determining whether the application for membership before us have been confirmed. It is not necessary for us
to decide whether the confirmatory evidence (the documents) in these circumstances must be in writing and filed with the Board by the terminal date.
Although the Board has the power to vary the terminal date pursuant to section 92(2) of the Board's Rules of Procedure, it is a power which must be exercised with due caution in order to ensure that certification applications may be processed and decided expeditiously by the Board. The granting of such an extension has generally been confined to situations in which employees have not been given adequate notice of the application. See for example, Kilean Lodge Incorporated, [1977] OLRB Rep. April 240. In the instant case, the issue of adequate notice to employees does not arise. The applicant's request is being made solely for the purpose of correcting a deficiency in membership evidence. On the basis of the evidence before it, the Board is satisfied that it should not exercise its discretion under section 82(2) of the Rules to extend the terminal date.
Having regard to the evidence before us, we are not satisfied that at least forty-five per cent of the employees of the respondent in the bargaining unit, at the time the application was made, were members of the applicant on July 10, 1986, the terminal date fixed for this application and the date which the Board determines to be the time for the purpose of ascertaining membership under section 7(1) of the Act. In the result, therefore, this application is dismissed. However, the Board is not prepared to exercise its discretion, pursuant to section 103(2)(i) of the Act, to bar a new certification application by the applicant.