Fraternite Inter-Provinciale des Ouvriers en Electricite (F.I.P.O.E.) v. Dustbane Enterprises Limited (Dustbane Products Limited), 1986 CanLII 1481

Ontario Labour Relations Board

Citation: [1986] OLRB Rep. May 607 File No.: 2763-85-R Date: May 30, 1986

Between: Fraternite Inter-Provinciale des Ouvriers en Electricite (F.I.P.O.E.), Complainant,

• and - Dustbane Enterprises Limited (Dustbane Products Limited), Respondent,
• and - Group of Employees, Objectors

Before: Robert J. Herman, Vice-Chairman, and Board Members I. P. Wilson and A. R. Foucault.

Appearances: L. N. Gottheil, Pierre Lecompte, Ronald Gagnon and Leonard Whitton for the applicant; Walter T. Langley and Michael Gerrior for the respondent; Donald White for the Group of Employees.

DECISION OF THE BOARD; May 30, 1986

1Four proceedings were previously consolidated, consisting of an application for certification and three complaints filed pursuant to section 89 of the Labour Relations Act. In a decision of the Board issued May 6, 1986, the three section 89 complaints were withdrawn with leave and various directions were made with respect to the four bargaining units in the certification application. That decision also noted that the parties had led evidence and made submissions with respect to the status of the applicant, F.I.P.O.E., as a "trade union" within the meaning of section l(l)(p) of the Labour Relations Act, and further noted that the Board had reserved its decision on this issue, which decision we hereby deliver.

2The applicant argued that it was a "trade union" within the meaning of the Act on two grounds. First, the applicant referred to a decision of the Board in Local 199 U.A. W Building Corporation, [1977] OLRB Rep. July 472, where the Board summarized the steps that ordinarily are to be taken by an organization wishing to establish its status as a trade union. Paragraph 10 of that decision reads as follows:

The following steps should be taken by an organization wishing to establish its status as a trade union within the meaning of the Act.

(a) 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 approval;

(3) the employees attending such meeting should be admitted to membership;

(4) the constitution should be adopted or ratified by the vote of said members;

(5) officers should be elected pursuant to the constitution.

3The applicant submitted that it had met this test and according to standard Board jurisprudence ought to be found to be a trade union within the meaning of the Act.

4Second, quite apart from whether the steps set out in Local 199 U.A. W Building Corporation (supra) have been followed, the applicant submitted that it had taken the correct steps according to Quebec law, as set out in the Professional Syndicates Act R.S.Q. 1977, c .S-40, as amended, and by virtue of section 9 of that statute the Board must find that F.I.P.O.E. is a "trade union".

5The applicant was first formed in October of 1972, when a group of employees in Quebec, until that time represented by the International Brotherhood of Electrical Workers (IBEW), broke off from that organization as a result of a dispute concerning their pension fund. Various meetings took place throughout the Province of Quebec, as the then IBEW members considered whether they ought to break away and form their own organization. A meeting was organized and held on October 13, 1972, for the purpose of meeting with officers of the IBEW, and at the same time for the purpose of setting up the applicant, should it be deemed necessary by those in attendance. At that meeting it became apparent that a great number of members felt they could not continue to be represented by IBEW, and they sought to form their own organization, the applicant. At that same meeting the first executive officers of the applicant were elected, on an interim basis, and those in attendance proceeded to adopt a constitution and regulations. None of the future members of F.I.P.O.E. joined the applicant at that meeting.

6During the forty day period following November 1, 1972, meetings were organized throughout the Province of Quebec during which approximately 8,000 employees joined the applicant as members. The great majority of these employees had formerly been members of the IBEW. The evidence suggests that the constitution adopted in October of 1972 was sent to employees before they attended these meetings, at which they both officially became members of the applicant and approved the constitution.

7On the 20th of May, 1974 at a meeting of the entire membership, a new executive was elected by the membership. On the 18th of May, 1975 the applicant convened its First General Congress, at which a revised constitution was adopted by the members in attendance, and new elections were held for the new executive officers. In November, of 1977 the Second General Congress was held by the applicant, and the constitution further amended by the membership to reflect the following geographical jurisdiction of the applicant:

“The territorial jurisdiction of the brotherhood shall extend to the whole territory of the Province of Quebec, and to every other province or territory of Canada, in accordance with the laws and statutes of each province and territory. (Constitution. chapter 3, section 1(b))."

8At that same Congress the trade jurisdiction of the applicant was amended to include, inter alia, "every other wage earning employee, exercising any trade or occupation whatever, whom the meeting of members or the management office shall see fit to admit" (Constitution, Chapter 3, Section 1(a)).

9As of the date of this application, F.I.P.O.E. represented over 10,000 employees in the Province of Quebec, including those in industrial, non-construction, bargaining units and industries. The applicant has offices scattered throughout the Province of Quebec, including one in Hull, across the river from Ottawa. The instant proceeding is the first in which the applicant has applied to represent employees working in Ontario and subject to the Labour Relations Act.

10Section l(l)(p) of the Act contains the following definition:

“'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."

11As an accurate summary of the nature of our enquiry under this section, we adopt the Board's comments in La-Z-Boy Canada Limited, [1981] OLRB Rep. April 460, where it stated, at paragraph 12 therein:

'In determining whether an applicant is a trade union, the Board must address itself to the question: "Is the applicant a trade union as defined by the Act?" (see CSAO National (Inc.), 1972 CanLII 563 (ON CA), 2 OR. 498 (CA.)). Having regard to the statutory definition set forth above and the overall scheme of the Act, an entity seeking to establish that it has status as a trade union must, as a necessary first step, establish that it is an "organization of employees" (see Armour Associates, [19761 OLRB rep. March 117). To be found to be an "organization" within the meaning of section l(l)(n), the applicant must prove that it is a viable entity for purposes of collective bargaining, by establishing that it has a written constitution, by-laws, charter or other documentary evidence which prospective members could inspect in order to determine whether or not the organization is one which they would wish to join, and by establishing that it has officers who can carry out its objects (see, for example, The Toronto Blizzard Soccer Club, [1979] OLRB Rep. May 449; Associated Hebrew Schools of Toronto, [1978] OLRB Rep. Sept. 797; Local 199 U.A. W. Building Corporation, [1977] OLRB Rep. July 472; Bauer Bros. Company, [1977] OLRB Rep. March 159; and Air Master of Canada Limited, [1973] OLRB Rep. Oct. 540.).'

12There is no dispute as to whether the applicant is an "organization of employees" nor as to whether one of its purposes includes the "regulation of relations between employees or employers", and in any event we find based on the evidence that the applicant does meet these tests. The respondent suggests that the applicant does not have and ought not to be found to have status as a "trade union" for three reasons. First, the applicant did not take the proper steps, in the proper order, in drafting and adopting a constitution, having the employees become members in the applicant, and subsequently adopting and ratifying the constitution. Second, the constitution contains provisions of a discriminatory or otherwise offensive nature and the applicant cannot therefore be found to be a "trade union". Third, the respondent suggests that the applicant would not be a viable entity for purposes of collective bargaining, by virtue of its lack of presence in Ontario and therefore its inability to properly serve its members and the employees it represents.

13When the events which occurred in October and November of 1972 are taken together, and in context, it appears to us that the applicant has satisfied the test as set out in Local 199 U.A. W Building Corporation (supra). The applicant was formed during the meeting on October 13, 1972, and at the same time a constitution and regulations were adopted. Although employees did not join and become members at that same meeting, in meetings throughout the province which followed in the two month period after October 13, 1972, employees were presented with the constitution, subsequently became members of the applicant, and thereupon approved the constitution. At that time an interim executive, elected at the October 13, 1972 meeting, was in office. That executive was replaced by an executive duly elected by the members at a meeting held on the 20th of May, 1974. When we look at all these activities and meetings, we are satisfied that the applicant did take the necessary and proper steps to acquire status both as an "organization of employees" and as a trade union within the meaning of the Act. It is not fatal that these steps did not take place at one meeting, attended by all members, but rather occurred in separate meetings occurring on separate dates. When what occurred is viewed in its entirety, it is clear that the constitution was drafted, and was subsequently placed before several meetings of employees for approval, where the constitution was both approved and the employees attending such meetings were subsequently admitted to membership. It is equally clear that subsequent to these steps, on the 20th of May, 1974, officers were elected pursuant to those constitutional provisions.

14Even if we are incorrect in our view that the applicant had followed the proper steps, at least by the time of the election of the new executive in May of 1974, we find that the First General Congress in May of 1975 corrected any deficiencies. At that Congress, attended by members from throughout the province, a new constitution was placed before the membership, was subsequently adopted and ratified and elections were held to elect a new executive. The respondent concedes that all the proper steps were followed at the First Congress, but suggests that an organization cannot be found to be properly a "trade union", within the meaning of the Act, unless the initial constitution and procedures were correct in all respects. We do not accept that proposition. Where the initial steps taken by an organization are faulty in some respect, any such deficiency may be corrected by subsequent procedures taken by the same organization. If it were otherwise, then an organization which inadvertently omitted or wrongly performed a given step in the procedure, would forever be precluded from correcting their mistake and forever precluded from becoming a "trade union". As the Board stated in The University of Ottawa [1975] OLRB Rep. Sept. 694, at paragraph 2:

"It must be said that the evidence concerning the initial adoption of a constitution is not as full and complete as it might have been. For example, while Professor Vaillancourt testified that the 1957 constitution was the original constitution of the organization, no detailed evidence was given as to the manner, or even the specific date, of its adoption. However, the uncontradicted evidence was that the original 1957 documents was amended, by the majority vote of the membership at large, on four subsequent occasions: March 17, 1964, March 23, 1972, January 28, 1975 and April 24, 1975. Moreover, all of the documents subsequent to the one bearing the handwritten notation "1957 Constitution" bear the notation "adopted March 17, 1964". It would appear, therefore, that a 1964 constitution (complete, and fundamentally different in content from the 1957 document) was adopted on March 17. 1964. However, even if the notation is insufficient to establish adoption on that latter date, we have the evidence that each of the subsequent amendments was accepted by a majority vote of the membership at large. The adoption of such amendments, and the continued and uninterrupted operation of the organization under the constitution, as amended, is consistent with the finding that the applicant had, at the time of the application, a constitution containing all of the essential ingredients of an "organization". i.e., objects (including the securing of "adequate conditions of employment and tenure"), officers, membership qualifications, fees, provision for meetings, amending procedures, etc. As to the significance of subsequent acts of ratification in curing or clarifying matters of status, reference may be made to Gilbarco Canada Ltd. (1971) OLRB Rep. 155. Accordingly, for all of the above reasons, we find the applicant is a trade union within the meaning of section l(l)(n) of The Labour Relations Act.

15The second concern raised by the respondent revolves around certain provisions in the constitution which the respondent suggests prevent the Board from finding that the applicant is a trade union. The respondent points to the following two provisions of the applicant's constitution:

Chapter 3, Section 2

The entry or initiation fee and the union dues may be modified at any time by the duly convened general meeting of members, following a secret ballot and after approval of the Ministere des Consommateurs, Cooperatives et Institutions Financieres (Ministry of Consumer Affairs, Cooperatives and Financial Institutions).

Chapter 13, Section 9(a)

Powers

The Executives of the units have the power to admit as members all persons who have signed a membership application, and have paid the initiation fee of $1.00 and the union dues of $1.00, or who will sign their membership application and will pay their initiation fee and union dues before the petition for accreditation is filed.

The Executives of the units have the power to authorize the filing of a petition for accreditation, to take all other necessary or useful steps related to the filing of the petition, and to authorize one or more persons to sign all documents concerning the petition for accreditation and to make the necessary representations to the Ministry of Labour and Manpower."

16After the decision of the Court of Appeal in CSAO National (Inc.) 1972 CanLII 563 (ON CA), [1972] 2 O.R. 498, the Board will not deny an organization status as "trade union" only because provisions of the constitution might be discriminatory. The Board must be satisfied, rather, that such provisions do not affect whether that organization is a "viable entity for purposes of collective bargaining". Constitutional clauses which do not cause the Board concern with respect to that question are internal union affairs and not properly matters to be considered by the Board in addressing the issues set out in section l(l)(p) of the Act. The sections of the constitution referred to by the respondent do not affect our conclusion that the applicant is a viable entity for purposes of collective bargaining.

17In any event, the constitutional provisions referred to do not appear to discriminate against Ontario members of the applicant. Section 2(e) of the constitution refers to approval that must be obtained from a Quebec Ministry, but this approval must be obtained in all cases, regardless of the province of residence of members voting for the fee changes. Section 9(a) of Chapter 13 of the constitution, similarly refers to a particular situation where the applicant may need to make representations to a particular Quebec Ministry. The respondent suggests that this also is a discriminatory provision, in that members in the Province of Ontario are treated differently from members within the Province of Quebec. The provision in question does not, however, purport to treat members differently depending upon their province of residence or employment. Both because we consider such constitutional provisions irrelevant to our inquiry, except insofar as they reflect on the applicant's viability to represent employees, and because we consider the provisions in question do not discriminate amongst members, we do not find that the constitution precludes a finding that F.I.P.O.E. is a trade union.

18Finally, while conceding physical presence is not necessary, the respondent suggests that the applicant does not have a "viable" presence within the Province of Ontario, and therefore is not a "viable" entity for purposes of representing employees and members within the Province of Ontario. In Rockwell International Corporation, [1981] OLRB Rep. June 780, the Board stated as follows:

17. .. .The decision in the Boulton case was considered recently by the Board in La­Z-Boy Canada Limited, 119811 OLRB Rep. April 460. In that case the Board declined to follow the reasoning of the Boulton case on the basis that when the Board determines whether or not an organization has the status of a trade union, the Board must look to see whether or not it fits the definition of a trade union set out in the Act, not whether the organization has established a presence in Ontario. In reaching this determination the Board stated as follows:

It is firmly established that the Board can certify an international union which has its head office outside of Ontario (see Ford Motor Co. of Canada Ltd., 46 CLLC ¶ 16,401, and Metal Textile Corporation of Canada Limited [55 CLLC ~l8,0l6]). Indeed, section l(l)(n) specifies that "trade union'... includes a provincial, national or international trade union...". There is nothing in the Act which either expressly or implicitly requires an international trade union to have a permanent office in Ontario or to have officers or representatives based in Ontario. Section 77(1) of the Act merely requires every trade union with members in Ontario to file with the Board a notice in the prescribed form giving the name and address of a person resident in Ontario who is authorized by the trade union to accept on its behalf service of process and notices under the Act. Far from requiring a substantial "presence" in Ontario, that provision amounts to a legislative recognition of the fact that the representatives of an international trade union may well be based in another jurisdiction where it might be difficult to effect service of process and notices under the Act. Accordingly, in view of the CSAO National case, the provisions of section l(l)(n) and the other provisions of the Act, the Board is not entitled to consider whether an entity which claims to have status as a trade union has established a "presence" in Ontario or "subsists in any true sense within the province"; the Board can only determine whether or not the applicant is a trade union as defined by the Act. Therefore, we agree with counsel for the applicant that the Boulton case cannot be considered to be authoritative with regard to the issue of trade union status.

18. we agree with the basic reasoning of the Board in the La-Z-Boy Canada Limited case. A union local is not deprived of the status of as [sic] trade union in Ontario simply because it is headquartered outside of the province. However, the Board in determining whether an organization is "an organization of employees formed for purposes that include the regulation of relations between employees and employers" must be satisfied that the organization is a viable organization capable of performing the functions of a trade union under the Act. See: University of Ottawa, [1981] OLRB Rep. Feb. 232. In our view, for an organization to be a trade union for the purposes of the Act, it must be capable of carrying out the functions of a trade union in Ontario. On the evidence before us, we are satisfied that although Lodge No. 126 has its headquarters in Bellwood, Illinois, the Lodge has structured its affairs so as to allow it to carry out the function of a trade union in Ontario..."

19While the applicant's presence within the province does not include, at the current time, a physical office, the applicant has led evidence which establishes that it has a permanent office in Hull, immediately across the river from the Regional Municipality of Ottawa-Carleton, where the respondent's place of business is located. It is also clear from the evidence that the applicant has conducted business for a significant number of years throughout the Province of Quebec, and clearly has a viable presence throughout that province. When these factors are taken together, it simply cannot be maintained that the applicant does not have a viable presence within this province. Indeed, the Board notes that the office of the applicant which would serve employees of the respondent is closer to the respondent's place of business than are offices of other unions and the employees they represent. The only factor which suggests that the applicant has no "presence" within the province is that its office is located in the Province of Quebec. That fact alone does not lead us to conclude that the applicant has no "presence" within the province.

20In all the circumstances and for the reasons given above, the Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act. In light of this conclusion it is unnecessary for the Board to comment upon the applicant's alternative submission, relying on the provisions of the Quebec Professional Syndicates Act.

21This matter is referred to the Registrar.

CONCURRING OPINION OF BOARD MEMBER J. P. WILSON;

1. While I agree with the Board finding that F.I.P.O.E. is a trade union within the meaning of the Labour Relations Act, certain aspects of the application leave me uncomfortable and I feel I must express certain reservations.

2. Previous decisions of the Board have constrained us into finding whether or not F.I.P.O.E. is a trade union as defined by the Act and prohibited us from looking behind the application to consider how the applicant could or may conduct its affairs in the Province of Ontario.

3. Certain provisions in the F.I.P.O.E. Constitution cause me some misgivings, for example Chapter VIII, Article 5 which defines the sweeping powers of the General Manager - Financial Secretary; and Chapter XXVI which leaves to "ancillary terms" the operation of construction agreements. Since F.I.P.O.E. is an organization grounded in the construction industry as a craft union, I am puzzled by the omission of concrete reference to construction.

4. However, in considering the problems that could arise, I feel that many provisions in the Act will serve as safeguards for prospective employees and employers.