Toronto Printing Pressmen & Assistants' Union Local 10, Subordinate to G.C.I.U. v. Hartley Gibson Company Limited, 1986 CanLII 1460

[1986] OLRB Rep. November 1517

0674-86-R Toronto Printing Pressmen & Assistants' Union Local 10, Subordinate to G.C.I.U., Applicant, v. Hartley Gibson Company Limited, Respondent

BEFORE: G. T. Surdykowski, Vice-Chairman, and Board Members J. A. Rundle and J. Sarra.

APPEARANCES: Stephen Krashinsky and Bill Hall for the applicant; David N. Corbett and Ruby Thomas for the respondent.

DECISION OF THE BOARD; November 6, 1986

1. This is an application for certification in which the applicant requested the taking of a pre-hearing representation vote. In accordance with its usual practice, the Board appointed a Labour Relations Officer to meet with the parties to try to settle the voting constituency and the voters' list. The parties were in substantial agreement with respect to the description of the bar­gaining unit and the voting constituency. The sole outstanding issue between them in that respect is whether or not the position of "foreman" should be included in the bargaining unit. The appli­cant's position is that the incumbent "foreman's exercises managerial functions within the meaning of section 1(3)(b) of the Labour Relations Act. The respondent takes the contrary position.

2. By decision dated June 25, 1986, a differently constituted panel of the Board ("the Gray panel") directed that a pre-hearing representation vote be taken the proviso that if Bill Lyons, the individual whose status is in dispute, voted, his ballot would be segregated. The voting constituency was described in accordance with the bargaining unit claimed to be appropriate by the respondent as follows:

all employees of the respondent in the Municipality of Metropolitan Toron­to, save and except production manager, persons above the rank of prod­uction manager, office and sales staff, and persons regularly employed for not more than twenty-four hours per week.

3. In addition, the Gray panel found as follows:

4. It appears from the check of the Board's files that the Board has not in any previous proceed­ing found the applicant to be a trade union within the meaning of clause l(l)(p) of the Labour Relations Act under the name "Toronto Printing Pressmen & Assistants' Union Local 10. Sub­ordinate to G.C.I.U." It will therefore be necessary for the applicant to establish, at a hearing conducted after the vote, that it is a "trade union". We note that the organization named in the membership applications filed herein is "Toronto Printing Pressmen & Assistants' Union Local 10 Subordinate to Graphic Communications International Union" a name different from the one in which the applicant has applied for certification. The ballot box will be sealed and the ballots not counted pending resolution of these issues.

5. The representation vote was held on the employer's premises on July 4, 1986. No state­ment of objections and desire to make representations was filed with the Board within the time fixed under section 70(1) of the Board's Rules of Procedure following the taking of a vote. In addi­tion, the parties agreed in writing to an immediate counting of the ballots, other than the segre­gated ballot. The results of the voting are such that regardless of the eligibility of the disputed individual to vote and the way in which he might have cast his ballot, more than fifty percent of the respondent's employees have voted in favour of trade union representation. Accordingly, the Board scheduled the matter for hearing for the purpose of dealing with the issues set out by the Gray panel supra.

6. At the hearing of the matter on October 3, 1986, counsel for the applicant referred the Board to an earlier proceeding before the Board in Orchid Label and Printing Co. Ltd.,(J an. 2/86, Board File No. 2168-86-R) in which the Board found that the applicant, identified in the title of the proceeding as Toronto Printing Pressmen & Assistants Union Local No. 10, was a trade union within the meaning of section l(l)(p) of the Act. Counsel also relied on the application for certifi­cation in that proceeding on which union is equivalent to finding that the Toronto Printing Press­men & Assistants' Union Local 10 Subordinate to: G.C.I.U. is a trade union and that it is, pur­suant to the provisions of section 105 of the Act, prima facie evidence in this proceeding of the status of the applicant as a trade union.

7. The majority of the Board (Board Member Sarra dissenting) disagreed. On its face, the Board's decision in Orchid Label and Printing Co. Ltd., supra, arose out of an agreement between the parties which resolved all of the matters in dispute between them and dispensed with a formal hearing into the matter. Further we are not entitled to go behind the finding of trade union status in the Board's decision. In the title of the Board's decision, the applicant is identified as being "To­ronto Printing Pressmen & Assistants' Local No. 10" and it is only that entity, and no other, that was found by the Board to be a trade union within the meaning of section l(l)(p) of the Act. Sec­tion 105 of the Labour Relations Act sets up a rebuttable evidentiary presumption of trade union status for organizations that the Board has previously found to be a trade union. Because of the nature of that provision, an applicant in certification proceedings is not entitled to the benefit thereof unless its name is identical to that which the Board has previously found to be a trade union. Even a relatively minor difference in name may reflect that an applicant with a name "simi­lar to" or even "substantially the same as" that of an organization previously found to be a trade union is either an entirely different entity or that it has undergone some change which may result in it being a trade union no longer. It was therefore the view of the majority that the applicant in this proceeding is not entitled to the benefit of section 105 of the Act and that is was necessary for it to establish its status as a trade union independently.

8. The sole witness who testified before the Board was A. William Hall, president of the applicant. There is no material dispute on the facts.

9. In 1882, an organization called the Toronto Printing Pressmen's Union Local 10 broke away from what was identified as the "Typographical Union." In 1895, the organization's member­ship base was broadened and it became known as the Toronto Printing Pressmen & Assistants' Local Union 10. A document identified as the Constitution and By-laws of that organization, adopted in October, 1957, shows its name to be "Toronto Printing Pressmen and Assistants' Union No. 10 subordinate to The International Printing Pressmen and Assistants' Union of North Ameri­ca", the latter being identified as the founding body. That same document was identified by Mr. Hall as being the Constitution of the applicant. In 1973 (according to Exhibit 4 and not 1968 or 1969 as recollected by Mr. Hall), as a result of a merger between the International Printing Press­men and Assistants' Union of North America and The International Stereotypers and Electrotyp­ers Union, this same organization came to be known as the "Toronto Printing Pressmen & Assist­ants' Union Local No. 10, subordinate to: International Printing and Graphic Communications Union". On at least two separate occasions, in David Printing Limited, (Board File No. 1572-76-R) and Kohl & Madden Printing Inc. Company of Canada Limited (Board File No. 1160-79-R), this latter name was found by the Board to be that of a trade union within the meaning of the

Labour Relations Act and had certificates issued to it. The words "subordinate to" identified the Toronto Printing Pressmen and Assistants' Union Local No. 10 as being affiliated with and a local of the International Printing and Graphic Communications Union which, as its name suggests, was an international trade union.

9. Subsequently, as a result of discussions between the International Printing and Graphic Communications Union and the Graphic Arts International Union, those two organizations caused there to be drafted an agreement for merger between them and a proposed constitution for the merged organization. The name proposed for the new organization was the Graphic Communica­tions International Union. Both international unions held referendum ballots pursuant to their constitutions, and the members of both voted in favour of the merger. Accordingly, effective July 1, 1983, the Graphic Communications International Union came into existence and the two merg­ing bodies ceased to exist. The merger agreement included the following provisions:

The International Printing and Graphic Communications Union and the Graphic Arts Interna­tional Union, both affiliated with the AFL-CIO and the CLC, agree to create an establish a sin­gle labor organization through the process of merger. Both unions themselves are the product of prior mergers. By this merger, they bring that much closer the ultimate and strongly desired goal of one International Union for the entire graphic communications industry, with greater job security and economic prosperity for the thousands of men and women who contribute their labor to produce the diverse quality products of the industry.

They agree upon the following objectives, purposes, principles and procedures to accomplish merger, the following policies to make the merger more effective, and the following basis upon which the merged organization shall function.

Labor unions exist primarily for purposes of organizing the unorganized and achieving decent wages and working conditions through collective bargaining. Merger will strengthen the collec­tive bargaining process by eliminating the wasteful competition among unions and will provide obvious advantages for the members and the employers. Merger, combining our resources for the purpose of effectively organizing the industry, presents tremendous opportunities to advance the welfare of the combined membership in dealing with the identical problems the merging unions face. In short, this merger will radically alter for the better, our ability to repre­sent our membership in the graphic communications industry.

Second, all IP & GCU Conferences and GAIU Regional Conferences and Chartered Locals will continue to exist according to their Constitutions and Bylaws. All Locals, Councils, and Confer­ences of the merging Internationals will automatically become Locals, Councils, and Confer­ences of the Graphic Communications International Union.

The Constitution provides that all Local Unions of each International Union shall automatically become Local Unions of the GCIU upon the effective date of merger and hold charters issued by the GCIU.

It is necessary to have a uniform system of designating Local Unions. The Constitution provides that each Local Union shall be designated as Graphic Communications Union Local (number) followed by a letter or symbol denoting craft or division. A special letter or symbol will indicate that a Local Union is totally merged, representing members from all major divisions.

It is clear that a local of either of the merging organizations, of which Toronto Printing Pressmen and Assistants' Union Local No. 10 subordinate to International Printing and Graphic Communications union was one, continued as a local of the new Graphic Communications International Union.

10. The proposed constitution was adopted by the new international union and governs that organization to this day. Among other things, it stipulates that:

Section 3. The objectives of the International Union shall be:

b. to advance and extend the economic and other welfare interests of its members, including their job security and job opportunities by the establishment and implementation of laws and policies designed to accomplish such results and by continued improvement in the terms of col­lective bargaining agreements.

11. Pursuant to Chapter 3.3 of the International Constitution, a Charter dated July 1st, 1983 was issued by the International Union which recognized the Toronto Printing Pressmen and Assistants' Local Union Local No. 10, subordinate to International Printing and Graphic Commu­nications Union as Local 10-C of the Graphic Communications International Union. Chapter 3.3 states:

Ch.3.3. Charters shall be issued by the GCIU designating each Local Union as Graphic Com­munications Union Local (number) followed by a letter or symbol denoting craft or division. Any variation from this form must be approved by the General Board.

(a) On the effective date of this Constitution, all Locals Councils and Conferences of the IP & GCU and the GAIU shall be Locals, Councils and Conferences of the Graphic Communications International Union as fully as if originally chartered by the International, and all International Members of each of the merging Unions shall be International Members of the Graphic Com­munications International Union. The Constitution, Bylaws and governing practices of the Locals, Councils and Conferences shall continue in full force and effect, except that any provi­sions thereof, in conflict with this Constitution and the Laws of the International, shall be inop­erative and of no further force and effect after a reasonable period as is an unavoidable incident of merger....

12. Since 1895, the applicant has been known as the Toronto Printing Pressmen & Assist­ants' Union Local No. 10. From time to time other notations were added to denote affiliation with an international union. Evidently, the merger which created the Graphic Communications Interna­tional Union did not change that situation so that subsequent to that merger the applicant operated as the "Toronto Printing Pressmen & Assistants' Union Local No. 10 subordinate to the Graphic Communications International Union". Nor did the merger have any other impact of substance. The applicant continued to operate with a high degree of autonomy; the local constitution and by­laws were unchanged; its officers and business agents remained the same; its offices did not change locations; there was no change in its bank account; and there was no change in the collective bar­gaining activity or administration. Toronto Printing Pressmen & Assistants' Union Local No. 10 subordinate to Graphic Communications International Union has subsisting collective bargaining relationships with a number of employers in the Toronto area. On the collective agreements with those employers, the acronym "G.C.I.U." appears in place of "Graphic Communications Interna­tional Union" in the applicant's name. There is a pride and tradition associated with the name Toronto Printing Pressmen & Assistants' Union Local No. 10 which, according to Mr. Hall, is the reason why the applicant continues with that name instead of adopting the name in the Charter issued to it. Evidently, even correspondence from the International Union is addressed to the "To­ronto Printing Pressmen & Assistants' Union Local No. 10 subordinate to Graphic Communica­tions International Union"

13. It is not disputed that the Toronto Printing Pressmen & Assistants' Union Local No. 10 and the Toronto Printing Pressmen's & Assistants' Union Local No. 10 subordinate to Interna­tional Printing and Graphic Communications Union were one and the same organization which was a trade union within the meaning of the Act. However, counsel for the respondent submits that the merger that created the Graphic Communications International Union caused it to cease to exist effective July 1st, 1983; that is, the merger had the effect of creating a new organization which, though it may itself be a trade union, is not the applicant. In addition, the respondent argued that there is a reasonable expectation of confusion in the minds of the employees as to which union they were joining such that the Board should disregard both the documentary evi­dence filed and the result of the representation vote. On both, or either, of these grounds, submits the respondent, this application should be dismissed. In the alternative, the respondent submits that the name of the applicant should be amended to reflect its actual (that is, its legal) name and that another representation vote should be held. The respondent does not rely upon the applicant's use of the acronym "GCIU" in the application in the place of Graphic Communications Interna­tional Union as a basis upon which the Board should reject the application.

14. The applicant maintains that the merger changed nothing of substance and that the applicant is the same trade union now as it was prior to July 1st, 1983. Counsel correctly notes that there is no evidence of any actual confusion on the part of the employees, that no employee has come forward to complain, and that the applicant was the only union soliciting the support of the employees at any material time.

15. Because the certification of trade unions in this province is based primarily upon an assessment of a trade union's support as evidenced by membership records filed in support of an application, the Board places heavy reliance on the membership evidence filed by the union. In this case, we also have evidence in the form of the results of a representation vote. Nevertheless, whether or not a union is entitled to even a vote is dependent upon the Board being satisfied that it has a requisite level of support which is evidenced by the documentary evidence of membership filed by the union. As a result, and because the documentary membership evidence is a form of hearsay which is not disclosed to the employer and which is not subject to cross-examination, the Board requires that the nature and quality of that evidence meet a high standard. Any arguable irregularities or deficiencies in that documentary evidence will at the very least serve to complicate the processing of an application for certification and contribute to cost and delay. Often such prob­lems are minor and easily avoided by an applicant trade union that exercises reasonable care.

16. In its application for certification, the applicant chose to use the acronym "G.C.I.U." in its name rather than setting out "Graphic Communications International Union" in full. Naturally, it was the name that appears on the application that was used in all documents generated by the application, including the Form 7 Notice to Employees of Application and Request for Pre-Hear­ing Vote and the Form 69 Notice of Taking of Vote. Because the full name, not the acronym, were used on the combination membership applications and receipts filed with the Board in support of the application, the documentary evidence does not refer precisely to the applicant as described in the application or Board documents. While the Board ought not be unduly technical in such mat­ters, such a lack of precision should be discouraged. However, no allegation of actual confusion or objection with respect to this discrepancy has been made by any party with an interest in the pro­ceedings and the evidence before us demonstrates that the variations in nomenclature creates no real basis for expecting that there was any confusion amongst the employees as to what they were joining or voting for. Moreover, we are satisfied that "Toronto Printing Pressmen & Assistants' Union Local No. 10, subordinate to G.C.I.U." and "Toronto Printing Pressmen & Assistants' Union Local No. 10 subordinate to Graphic Communications International Union" are, and were understood to be, the same organization.

17. The more difficult issue is the question of the status of the applicant as a trade union. Section 1(l)(p) of the Labour Relations Act provides as follows:

1.-(1) In this Act,

(p)"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.

18. Apart from section l(l)(p), the legislation is silent with respect to the form or structure of trade unions. The Board has no authority to look beyond the statutory definition or the regulate the internal workings or constitutional arrangements of an organization of employees that other­wise meets the statutory definition (CSAO National (Inc.) v. Oakville Trafalgar Memorial Hospital Association et al. (1972) 1972 CanLII 563 (ON CA), 26 D.L.R. (3d) 63 (Ont. C.A.); Emery Industries Limited, [1980] OLRB Rep. March 316). In this case, the issue is whether the present applicant is the same organization as that which was found by the Board to be a trade union prior to July 1st, 1983 or whether the merger of international unions that was effective that date had the effect of causing the present applicant to lose its status as a trade union. In order to make this determination, the Board must look to what changes, including any constitutional or name changes, there have been in the form and structure of the organization, and the circumstances under which these occurred. A review and assessment of these facts enables the Board to decide whether there has been a fundamental change in the organizations sufficient to affect its status as a trade union, or that the changes, if any, are minor alterations in form and structure which have no such impact. (Food Corp. Limited, [1983] OLRB Rep. May 636; Consumers Distributing Company Limited, [1981] OLRB Rep. May 509; Coca Cola Ltd., [1975] OLRB Rep. Nov. 862; The Spectator, [1974] OLRB Rep. April 235).

19. In Food Corp Limited, supra, which was also an application for certification, the res­pondent employer made a similar argument, based on somewhat different but analogous facts, to that being put forward by the respondent in this proceeding. In that case, the applicant for certifi­cation was undergoing certain structural and name changes coincidentally with its campaign to organize the employees of the respondent. More specifically, Local 75 of the Hotel, Restaurant and Cafeteria Employees Union affiliated with the Hotel and Restaurant Employees and Barten­ders International Union, AFL-CIO-CLC. As a result, the names of both were changed; to Hotel Employees and Restaurant Employees Union Local 75 and Hotel Employees and Restaurant Employees International Union respectively. In addition, a number of smaller locals of the parent International Union were merged with or 'folded into' Local 75. The Board had the following com­ments:

20. The above-noted transactions changed the name, size, and responsibilities of Toronto Local 75, but there was no substantive or structural change. All of the officers of the Local remain the same. The business agents remain the same. The address remains the same. The bank account remains the same. Collective bargaining activity and the administration of existing collective agreements has gone on just as before. Local 75 has a number of subsisting collective bargaining relationships with employers in the Toronto area, and in respect of those relationships, Local 75 has continued to perform its role and fulfill its responsibilities as the employees' bargaining agent. No employer has raised any question about this, and it is acknowledged by the respon­dent that even if Local 75 under its "old name" and Local 75 under its "new name" were to be treated as two entirely separate entities (rather than the same entity with a slightly different name), both would clearly be "trade unions" within the meaning of section l(1)(p) of the Labour Relations Act. It is also agreed that there is no other trade union operating in Ontario or in Toronto which could be confused with Local 75 under either its old or new name. No other union has sought to organize the respondent's employees. The only union on the scene is Local 75.

21. The problem in this case arises from the various ways in which the applicant refers to itself on the various documents associated with this proceeding. The application itself, made on Janu­ary 18, 1983, was filed mistakenly under the name "Hotel, Restaurant & Cafeteria Employees Union, Local 75" - the "old name" for the Toronto Local and the name in which the earlier application had been filed several months before. The old application was referred to as a prece. dent when the union filed the present application, and, in consequence, the old name was mechanically but mistakenly inserted in the style of cause. The membership documents filed in support of the application are of two different kinds. One group of cards is headed "APPLI­CATION FOR MEMBERSHIP in the HOTEL AND RESTAURANT EMPLOYEES' AND BARTENDERS' INTERNATIONAL UNION affiliated with AFL - CIO CANADIAN LABOUR CONGRESS"; and indicates a place where the employee makes application to become a member of HOTEL AND RESTAURANT EMPLOYEES' AND BARTENDERS' INTERNATIONAL UNION Local No. 75. These cards, more or less conform to the old name for the parent and local union, except that the latter has more recently included a reference to Cafeteria Employees. By signing such card, the employee is joining Local 75 of a hotel and res­taurant employees' union affiliated to an international parent union. The other group of cards has a preamble APPLICATION FOR MEMBERSHIP in the HOTEL EMPLOYEES', RES­TAURANT EMPLOYEES', INTERNATIONAL UNION and there follows a space wherein the individual employee makes application to become a member of HOTEL, RESTAURANT AND CAFETERIA EMPLOYEES' UNION LOCAL 75. In the case of these cards, the preamble reflects the new name of the International, but the traditional name of Local 75. Again, however, it is obvious that the employee is joining Local 75 of the hotel and restaurant employees' union which has an affiliation with its American parent union. The literature sup­porting the organizing campaign also refers to the union which employees are invited to join as the "Hotel, Restaurant and Cafeteria Employees' Union - Local 75 of Hotel and Restaurant Employees' and Bartenders' International Union". And there is reference to "Hotel Employees' and Restaurant Employees' International Union AFL-CIO" too. Finally, in accordance with the way in which the applicant initially styled this proceeding, employees were asked to vote upon whether or not they wish to be represented by the Hotel, Restaurant & Cafeteria Employees Union, Local 75.

22. The Board acknowledges that the union's organization campaign in this case coincided with certain structural and nominal changes to Hotel, Restaurant & Cafeteria Employees Union, Local 75; however, even so, it is evident that the union has been rather lax and sloppy in the conduct of its campaign through the use of membership cards and literature which do not refer precisely to the local union's correct name. Such laxity should not be encouraged. On the other hand, the evidence before us demonstrates beyond doubt that, despite certain variations in nomenclature, there has been no substantive change in the legal identity of Local 75, which was and continues to be a trade union within the meaning of section l(l)(p) of the Act; nor is there any real basis for confusion as to what the employees were joining or voting for. In our view, it would be unduly technical (as well as inequitable) if we were to disregard the desires of the employees for trade union representation as expressed on both the membership cards and the secret ballot vote. This is not a case, for example, where individuals could have been confused about whether they were joining one local or another, or a local versus a parent body. In such circumstances, different considerations might well apply. Here, however, there has only been one union on the scene from the outset and we do not think there is any reasonable basis for concluding that the employees did not know what they were voting for. We note, once again, that no employee has made any such assertion.

23. In our view, the observations and reasoning in Food Corp. Limited are equally apposite here. It is clear that a local union of the International Printing and Graphic Communications Union, which the applicant was prior to July 1st, 1983, continued as a local union of the new Graphic Communications International Union. The difficulty in this case is that, as evidenced by the Charter issued to it, the legal name of the applicant changed as a result of the merger that gave birth to the new International Union, but it continued to use the same name after as before the merger with the exception that the words "Subordinate to Graphic Communications International Union" replace the words "Subordinate to: International Printing and Graphic Communications Union" after "Toronto Printing Pressmen & Assistants' Union Local No. 10." This was the only external reflection of the internal changes undergone by the applicant pursuant to the merger and new constitution of the new International Union. We are satisfied, on the evidence before us, that there has been a constitutional continuity which is indicative of a continuation of identity of the applicant. Although there are practical reasons, including the speed with which matters are processed by the Board, why a trade union might not want to be known by any name other than its legal name, there is no reason in law why it cannot carry on business under a name other than that legal name, so long as it does not do so for any improper purpose. We are satisfied that the appli­cant did not lose the essential characteristics of a trade union that it possessed prior to July 1st, 1983 as a result of the merger that was effective that date.

24. In any event, the evidence before the Board leaves us satisfied beyond any doubt that the applicant is an organization of employees that has purposes which include the regulation of relations between employees and employers.

25. The Board therefore finds that the applicant is a trade union within the meaning of sec­tion l(l)(p) of the Labour Relations Act.

26. In view of the matter remaining in dispute, the Board hereby appoints a Labour Rela­tions Officer to inquire into and report to the Board on the status, duties and responsibilities of the person classified by the respondent as foreman; namely Bill Lyons.

27. On the basis of the evidence before the Board and in view of the fact that the ultimate determination of the matter remaining in dispute with respect to the description of the bargaining unit cannot materially affect the Board's determination in this regard, we are satisfied that more than thirty-five percent of the employees in the bargaining unit, at the time the application was made, were members of the union within the meaning of section 1(1)(l) of the Act. It is also evi­dent, having regard to the results of the representation vote, that whether or not the "foreman" is included in the unit, more than fifty percent of the ballots cast were cast in favour of trade union representation by the applicant. Accordingly, the Board, pursuant to its discretion under section 6(2) of the Act and pending the final resolution of the composition of the bargaining unit, hereby certifies the Toronto Printing Pressmen & Assistants' Union Local No. 10, subordinate to G.C.I.U. as bargaining agent for a bargaining unit described as follows:

all employees of the respondent in the Municipality of Metropolitan Toron­to, save and except foremen, production manager, persons above the rank of foreman and production manager, office and sales staff, and persons regu­larly employed for not more than 24 hours per week.

25. A formal certificate must await the final determination of the bargaining unit.