[1986] OLRB Rep. June 710
0254-86-R; 0255-86-R; 0256-86-R; 0257-86-R Great Lakes Fishermen and Allied Workers' Union, Applicant, v. Etna Foods of Windsor Limited, Respondent; Great Lakes Fishermen and Allied Workers' Union, Applicant, v. Kingville Fishermen's Company Ltd., Respondent, v. United Food & Commercial Workers International Union, Intervener; Great Lakes Fishermen and Allied Workers' Union, Applicant, v. Lake Erie Foods Inc., Respondent, v. Group of Employees, Objectors; Great Lakes Fishermen and Allied Workers' Union, Applicant, v. Northshore Fishery Inc., Respondent, v. Group of Employees, Objectors
BEFORE: Robert D. Howe, Vice-Chairman, and Board Members F. W. Murray and D. Patterson.
APPEARANCES: L. C. Arnold and Domingos Belo for the applicant; R. Gary McLister and Vito Peralta for Etna Foods of Windsor Limited; Patrick F. Milloy and Carl Fraser for Kingsville Fishermen's Company Ltd.; Rodney M. Godard for Lake Erie Foods Inc.; Brian P. Nolan and Richard Groh for Northshore Fishery Inc.; Frank C. Ricci for the objectors in File No. 0256-86-R; Terrence L. Sims for the objectors in File No. 0257-86-R; Martin Levinson and Kevin Corporan for the intervener.
DECISION OF THE BOARD; June 18, 1986
The name of the respondent in File No. 0255-86-R is amended to read: "Kingsville Fishermen's Company Ltd.", and the name of the respondent in File No. 0257-86-R is amended to read: "Northshore Fishery Inc.".
These four applications for certification were filed by the applicant on April 25, 1986 and came on for hearing before this panel of this Board on May 16, 1986. At the commencement of the hearing, counsel for the United Food and Commercial Workers International Union advised the Board that his client wished to withdraw its intervention in respect of File No. 0256-86-R. The style of cause in that matter has been amended accordingly.
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. On the agreement of the parties, all of the parties to these four applications 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 Joe Gandaio.
Mr. Gandaio attended at the office of applicant's counsel, L. C. Arnold, in Toronto on the morning of April 21, 1986, together with Carlos Castro, Domingos Belo, and John Radosevic. Messrs. Gandaio, Castro, and Bello were members of a committee comprised of various fishermen, fish processing plant employees, and other persons interested in forming a union. Mr. Radosevic was (and is) an organizer for the United Fishermen and Allied Workers' Union ("U.F.A.W.U."). He came to southern Ontario from British Columbia to assist Messrs. Gandaio, Castro, Belo, and the other members of the committee in their efforts to form a union. While at Mr. Arnold's office, Mr. Radosevic prepared a draft constitution for them by taking a copy of the U.F.A.W.U. constitution and making various deletions, additions, and other amendments to it. The draft constitution produced by Mr. Radosevic took the form of various typeset passages stapled onto lined sheets of paper, with portions struck out and different words written (or printed) above some of the deletions. For example, Article 1.01 in its original typeset form read: "This Organization shall be known as the United Fishermen and Allied Workers' Union." However, in the draft prepared by Mr. Radosevic, a line has been drawn through the word "United" and the words "Great Lakes" have been printed above it. Article 1.02 initially read: "The jurisdiction of this organization shall include all residents of Canada working as fishermen with any type of gear, or as tendermen, or engaged in fish canneries, reduction plants, fish cold storages, net lofts, fish camps, fresh fish docks or in any other operation connected with the fishing industry in Canada". However, Mr. Radosevic amended it by striking out the words "or as tendermen", "canneries”, "reduction", and "fish camps", and by adding the phrase "the Great Lakes of' between "in" and "Canada". Thus, Article 1.02 in the draft constitution reads: "The jurisdiction of this organization shall include all residents of Canada working as fishermen with any type of gear, or engaged in fish plants, fish cold storages, net lofts, fresh fish docks or in any other operation connected with the fishing industry in the Great Lakes of Canada."
Mr. Arnold instructed Mr. Gandaio, and the others who attended at his office that day, concerning the steps to be taken to form a union. He provided them with the following agenda:
AGENDA FOR FORMATION OF GREAT LAKES FISHERMEN AND ALLIED WORKERS UNION
Appoint a Temporary Chairman of the Meeting.
Chairman presents the draft Constitution before the meeting of original 8 (more or less) Members.
Persons present at the Meeting approve draft Constitution.
Persons present at Meeting sign Applications for Membership and pay money or confirm that they have paid money. Stated by Chairman that they are all confirmed as Members.
The Chairman then requests that the constitution be adopted and ratified as the constitution of the new Union. A Motion is made and seconded to that effect and a vote is taken.
Officers are then elected pursuant to the Constitution.
After meeting with Mr. Arnold, the aforementioned four persons drove back to Leamington. At approximately eight o'clock that evening, Mr. Radosevic, Mr. Gandaio, and twelve other members of the committee met at the Peelee Motor Inn. Notes of that meeting were taken by Tony Piexe who, together with Messrs. Gandaio and Radosevic, met with Mr. Arnold on May 3, to go over those notes and enable typewritten minutes to be prepared in respect of the portion of the meeting at which the steps listed in the aforementioned agenda were taken. Those typed minutes were later signed by Mr. Gandaio (as chairman of the meeting).
The majority of the persons in attendance at the April 21 meeting were fishermen employed by various fisheries. One of them worked for the respondent Kingsville Fishermen's Company Ltd. at its fish processing plant in Kingsville. Another was employed at the fish processing plant of another company (which is not one of the respondents in these proceedings). Still another was an employee of the Town of Leamington not involved in the fishing industry. Others were unemployed on the date of the meeting.
During the first hour of the meeting, various financial decisions were made concerning such matters as payment of Mr. Radosevic's plane fare from British Columbia and payment of Mr. Arnold's professional fees. Various plans for the general meeting scheduled for the following day were also discussed. At approximately 9:00 p.m. the group began to follow the agenda provided by Mr. Arnold. A motion was passed by which Mr. Gandaio was made the temporary chairman of the meeting. Mr. Radosevic then read the draft constitution (Exhibit #1 in these proceedings) to the persons present at the meeting from the single copy of that document which was available at that time. Since about half of the persons in attendance spoke only Portuguese, Mr. Gandaio translated into Portuguese what Mr. Radosevic was saying and reading. After the draft constitution had been read, a motion to approve it was carried unanimously.
With the exception of Mr. Radosevic and one other person, those in attendance at the meeting then joined the applicant by signing applications for membership in the applicant and paying initiation fees. A motion to adopt and ratify the constitution was then carried unanimously.
The next motion passed called for elections to be held for the positions of President, Secretary, and Treasurer. Since Domingos Belo was the only person nominated for the position of President, he was declared by Mr. Gandaio to be President by acclamation, following a unanimous vote by voice and show of hands. Two persons were nominated for the position of Secretary. However, one of them declined nomination. Accordingly, the remaining nominee, Carlos Castro, was declared to be Secretary by acclamation following a similar vote. Three persons were then nominated for the position of Treasurer. However, two of them declined their nominations. Accordingly, Bill Hodgson, the remaining nominee, was declared to be the Treasurer by acclamation, following a unanimous vote by voice and show of hands. Neither Mr. Belo nor Mr. Hodgson was present when those votes were conducted, as they did not arrive at the meeting until about fifteen minutes before it ended (sometime between 10:30 and 11:00 o'clock). However, they had previously advised Mr. Gandaio that they were prepared to accept nominations for those positions. Upon their arrival at the meeting, they joined the applicant and accepted their acclamation to those positions. (Mr. Hodgson was an employee of the respondent Lake Erie Foods Inc. prior to April 21, 1986. The legality of the termination of his employment with that respondent has been placed in issue in a complaint by the applicant under section 89 of the Act.)
On the following day, a general meeting of the membership of the applicant was held at the local Portuguese Community Centre. The constitution which had been adopted at the meeting on the previous evening was presented and approved at that general meeting.
During the course of argument, the Board was referred to the following provisions of the applicant's constitution:
GREAT LAKES FISHERMEN & ALLIED WORKERS UNION
OBLIGATION
I, pledge my word in the presence of witnesses, to abide by the Constitution and By-laws of this organization. I solemnly promise to do all in my power to further the aims of unionism as long as I remain a member of this Union.
ARTICLE 1
NAME AND JURISDICTION
1.01 This Organization shall be known as the Great Lakes Fishermen and Allied Workers' Union.
1.02 The jurisdiction of this organization shall include all residents of Canada working as fishermen with any type of gear, or engaged in fish plants, fish cold storages, net lofts, fresh fish docks or in any other operation connected with the fishing industry in the Great Lakes of Canada.
ARTICLE 3
MEMBERSHIP AND DUES
3.04 No vessel owner or any other person employing more than two persons in the fishing industry shall be eligible for membership. This shall not apply to owners who, for a period of less than three months in the year, may temporarily operate the vessel with more than two persons in the fishery. No member of this Union shall hold membership in a fishing vessel owners' association with which the Union conducts collective bargaining. The General Executive Board is empowered to give interpretation to this section as required.
DUES
3.06 The initiation fee for new members of the Union shall be $25.00.
ARTICLE 5
ELECTION OF OFFICERS
5.01 The titled Officers of the Union shall consist of a President, a General Secretary and Treasurer. The titled Officers of the Union shall by virtue of their office be members of the General Executive Board.
5.03 The titled Officers of the Union shall be elected by secret ballot of the membership.
ARTICLE 9
9.01 On any matter which requires a decision by the entire membership, a secret ballot shall be
taken in every Local, it being understood that this Article is not to conflict with any Article in the Constitution where a referendum vote is deemed necessary. A two-thirds majority of the total votes cast, exclusive of blanks and disqualified ballots, shall be necessary to reach such a decision.
ARTICLE 14
AIMS AND OBJECTS
(A) The Aims and Objects of the Union shall be: To organize and represent its members and all persons eligible for membership regardless of national or racial origin, creed or colour.
(B) To promote and protect their economic and social interests.
["(C)" was deleted (by means of a line drawn through it) in the draft constitution approved and ratified on April21.]
(D) To secure for its members equitable compensation and satisfactory conditions of employment.
(E) To negotiate and enter into agreements, schedules and codes with their employers or associations of employers.
Counsel for the applicant contended that all of the steps necessary to form a trade union were taken on April 21, 1986 in respect of the applicant. Counsel for Northshore Fishery Inc. ("Northshore"), on the other hand, submitted that the Board should not recognize the applicant as a trade union. His submissions were adopted by counsel for each of the other respondents, and also by counsel for the objectors in File No. 0256-86-R. Mr. Sims, counsel for the objectors in File No. 0256-86-R, advised the Board that his clients were taking no position concerning this aspect of the proceedings.
In support of Northshore's position that the applicant is not a trade union, Mr. Nolan submitted that there was a lack of reliable evidence before the Board concerning exactly which document was "purportedly adopted" as a constitution at the meeting on April 21. However, we are satisfied on the totality of the evidence that Exhibit 1 in these proceedings is the constitution that was duly adopted and ratified at that meeting.
Mr. Nolan further argued that the persons present at that meeting did not become members of the applicant as there is no evidence that they took the pledge which appears under the heading "OBLIGATION" (immediately above Article 1 of the constitution), which he submitted to be a prerequisite for membership in the applicant. He further contended that the applicant had failed to prove that those persons had paid the initiation fee prescribed by Article 3.6. However, as indicated above, we have found that, with the exception of Mr. Radosevic and one other person, all of the persons in attendance at the meeting joined the applicant by signing applications for membership in the applicant and paying initiation fees. That finding is supported not only by the minutes of the meeting, but also by some of the documentary evidence of membership filed by the applicant in support of these applications. In this regard, we note that under section 1(1)(l) of the Act, "'member', when used with reference to a trade union, includes a person who,
(i) has applied for membership in a trade union, and
(ii) has paid to the trade union on its own behalf an amount of at least one dollar in respect of initiation fees or monthly dues of the trade union
and 'membership' has a corresponding meaning". Thus, we are satisfied that the aforementioned persons did become members of the applicant at the April 21 meeting, as contended by counsel for the applicant.
Mr. Nolan also argued that the applicant is not a trade union because some of the people who purported to join the applicant were not employees. It was his position that under section l(l)(p) of the Act, a trade union must be composed exclusively of employees. He further contended that Article 3.04 of the applicant's constitution precludes a finding of trade union status in that it permits vessel owners to join the applicant in some circumstances. Mr. Nolan characterized vessel owners as employers or members of management. However, no evidence was called concerning their employment status or their duties and responsibilities.
Article 3.04 indicates that vessel owners employing no more than two persons in the fishing industry, and vessel owners who for a period of less than three months in the year temporarily operate a vessel with more than two persons in the fishery, are eligible for membership in the applicant. However, it precludes members of the applicant from holding membership in a fishing vessel owners' association with which the applicant conducts collective bargaining. (It also empowers the applicant's General Executive Board to interpret it.)
In Board of Education for the City of York (also known as the "Humewood House" case), [1984] OLRB Rep. Sept. 1279, the Board considered and rejected the argument that the phrase "organization of employees" in section l(l)(p) of the Act means "organization of employees only". After exhaustively considering the Board's earlier jurisprudence concerning that issue, the majority of that panel wrote, in part, as follows:
These authorities do not sit well together, and it does not appear to us that the Board's jurisprudence in this area unequivocally supports the proposition that an association cannot be described as a trade union if it includes in its membership persons who, in the opinion of the Ontario Labour Relations Board, exercise managerial functions. Further, and more to the point, it is not apparent that the Labour Relations Act supports such a proposition. In that regard, it will be useful to set out the relevant statutory provisions:
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.
(3) Subject to section 90, for the purposes of this Act, no person shall be deemed to be an employee,
(b) who, in the opinion of the Board, exercises managerial functions or is employed in a confidential capacity in matters relating to labour relations.
Every person is free to join a trade union of his own choice and to participate in its lawful activities.
The Board shall not certify a trade union if any employer or any employers' organization has participated in its formation or administration or has contributed financial or other support to it...
An agreement between an employer or an employers' organization and a trade union shall be deemed not to be a collective agreement for the purposes of this Act,
(a) if an employer or an employers' organization participated in the formation
or administration of the trade union or if an employer or an employers' organization contributed financial or other support to the trade union;...
No employer or employers' organization and no person acting on behalf of an employer or an employers' organization shall participate in or interfere with the formation, selection or administration of a trade union or the representation of employees by a trade union or contribute financial or other support to a trade union, but nothing in this section shall be deemed to deprive an employer of his freedom to express his views so long as he does not use coercion, intimidation, threats, promises or undue influence.
Where in any proceeding under this Act the Board has found or finds that an organization of employees is a trade union within the meaning of clause l(l)(p)' such finding is prima facie evidence in any subsequent proceeding under this Act that the organization of employees is a trade union for the purposes of this Act.
This Board does not "confer" or "grant" or, to use the language of the Board in the HEPCO case [[1971] OLRB Rep. Aug. 501], "give" organizations "trade union status". The only use in the Act of the term "status" in that connection is in the marginal note to section 105 of the Act. The actual language of that section, however, makes it clear that the Board only makes a finding of fact that an organization is a "trade union", it does not give the organization some characteristic it does not already have. "Trade union" is a description, not an award. The only "status" or in rem, quality which attaches to a determination that an organization fits the statutory definition is that the determination, once made, can be set up as prima facie evidence of that fact in subsequent proceedings involving employers and employees who were not parties to the proceedings in which the determination was first made. Sections 13 and 48 describe an organization which has been the object of employer participation or support as "a trade union". If employer participation or support disqualified an organization of employees from being described as a "trade union", as paragraph 12 of the Children's Aid Society decision [[1976] OLRB Rep. Nov. 651] suggests, then the above quoted portions of sections 13 and 48 would be meaningless and unnecessary. On the language of section 13 and 48, employer domination does not result in the withholding or removal of the 'trade union" label; it results in a denial of certain rights which would be enjoyed by a trade union which was free of employer domination. A finding that an organization is a "trade union" must not, therefore, be conclusive as to that organization's "status" to be recognized or certified as a bargaining agent under the Labour Relations Act. The legislature's object was to ensure that employers and bargaining agents deal at arm's length, and to prevent employer dominated unions from standing in the way of organizational efforts of truly employer-independent trade unions. The statutory language employed to accomplish this policy does not require us to read into section l(l)(p) a limitation based on the nature of duties performed for their employer by individual members of what would otherwise be a trade union.
The HEPCO case held that the phrase "organization of employees" must be read as "organization of employees only", having regard to the precision with which the meaning of the word "employee" is limited by paragraph 1(3)(b) of the Act. That reading of the language of paragraph l(l)(p) would exclude from trade union membership not only managerial persons who would be considered "employees" but for the deeming provision of paragraph 1(3)(b), but also persons who are not in any sense of the word anyone's 'employee". If that were the intention of the Legislature, then why did it so carefully use the "person" in section 3 when describing those who may join and participate in trade unions? The use of that word must at very least contemplate trade unions having members who are not "employees" because they are unemployed: see Ottawa General Hospital, [[1974] OLRB Rep. Oct. 714], at paragraphs 24 and 26. While the language of section 3 of the Act does not create for managerial persons a protected right to join and participate in the activities of a trade union, that language is clearly inconsistent with an interpretation of section 1(l)(p) which requires that the phrase "organization of employees" be read as "organization of employees only". It is noteworthy that none of the decisions which favour the "employee only" interpretation of section 1( 1)(p) makes any reference to section 3 of the Act.
The HEPCO "employee only" interpretation of paragraph l(l)(p) not only fails to take the language of section 3 into account, it also comes into conflict with characteristics of organizations commonly thought of as trade unions. We have already observed that craft unions tend tohave "managerial" members, and that an "employees only" definition would prevent the unemployed from joining trade unions. It must also be recognized that trade unions are often employers themselves; indeed, trade union employees can be and have been the subject of certification applications. In defining a bargaining unit of trade union employees, paragraph 1(3)(b) comes into play and those who act on the union's behalf in hiring, firing and directing the work of its employed staff will be excluded as "managerial". If paragraph l(l)(p) means what HEPCO says it does, then either those managerial persons would have to give up their union membership, or the trade union would have to give up its managers or its employees or forfeit its "status". This is an absurd result.
We conclude that the phrase "organization of employees" in paragraph l(l)(p) of the Act does not mean "organization of employees only". The mere fact that an organization has in its membership persons whose employment requires them to exercise managerial functions within the meaning of paragraph 1(3)(b) of the Act will not stand in the way of a finding that the organization is a "trade union" within the meaning of paragraph l(1)(p) of the Act, if it otherwise qualifies to be so described. We respectfully decline to follow those earlier decisions which held otherwise. We acknowledge and share the concern those earlier decisions expressed about the "potential for conflict of interest" which can appear when managerial employees are members of trade unions. The need to keep employers and bargaining agents at arm's length is fundamental to the scheme of the Labour Relations Act, but the right of employees on a majoritanan basis to freely choose their bargaining agent is equally fundamental. As a result, it is not for the Board to withhold rights from a freely selected trade union on grounds other than those contemplated by the Act. Sections 13 and 48 speak to actual employer participation and support. A speculative concern about an organization's vulnerability to employer domination no more justifies denial of representation rights than would a concern that the composition of a trade union's general membership, or of another bargaining unit it represents, might divert it from the single-minded pursuit of the interests of the employees in the particular bargaining unit it seeks to represent (see H. Gray Limited, 55 CLLC 18,011, and Canadian Iron Foundries, 56 CLLC 18,027). The Labour Relations Act provides safeguards against the realization of any potential for conflict of interest. By virtue of section 68 of the Act, a trade union which acquires the right to represent the employees in a bargaining unit assumes a duty to act fairly toward those employees in exercising that right, and that will require that the trade union avoid conflicts with the interests of persons excluded from that unit. While managerial membership alone will not trigger sections 13 and 48, the potential application of those sections to the trade union and, consequently, of section 64 to some one or more employers, will throw a spotlight on the reasons for such membership, and on the nature and degree of such members' participation in the affairs of the trade union. In the ordinary case, one would wonder why a person would join an organization devoted to collective bargaining in which it cannot represent him. When he is actively involved in those collective bargaining activities, one's wonder would grow at tolerance by his employer and by the trade union of any apparent conflict of interest, especially when the managerial employee has no protected right to join the trade union or participate in its activities. While it will be a question of fact in each case whether managerial members are acting on behalf of employers, there will be some cases where the absence of any explanation for the managerial employees' membership and active participation in a trade union may support an inference of employer domination.... Thus, sections 13, 48 and 68 encourage trade unions to confine the influence of managerial members; section 64 provides a similar incentive to employers. These provisions, together with the bargaining unit's ultimate remedy of changing or terminating its bargaining agent, are the safeguards the legislature has decided to provide for "conflicts of interest" in a system of free collective bargaining in which the concern for viable and independent bargaining representatives must share attention with the concern for the freedom to choose bargaining representatives on a majoritarian basis.
See also The Board of Education for the City of York, [1985] OLRB Rep. May 767, in which the majority of another panel of the Board adopted the views and approach set forth in that decision. In doing so, they wrote, in part, as follows at paragraph 45:
the fact is that the Act does not expressly require that a trade union be composed exclusively of employees or of employees only; and since a trade union is not confined to purely collective bargaining functions, one can easily envisage a variety of activities in which non-employee members might wish to engage; co-operative housing programmes, political activity, mutual insurance schemes, etc. Conversely, section 3 of the Act suggests that union membership should be open to persons - not employees wishing to participate in these lawful activities. Even within the realm of the union's core functions - collective bargaining - it is obvious that from time to time it will number among its members persons who are unemployed, and section 106(2) of the Act recognizes that a union may include among its members persons exercising managerial functions, because the definition of that term can often be subject to debate. Obviously such inclusion should not, in itself, prejudice the organization's status as a trade union.
We respectfully agree with the views expressed in those two decisions and the earlier Board decisions referred to therein which adopted a similar approach. Accordingly, we find no merit in Mr. Nolan's submission that those cases are wrongly decided and that Article 3.04 of the applicant's constitution precludes a finding of trade union status.
We also find no merit in Mr. Nolan's argument that the elections held at the April 21 founding meeting of the applicant were invalid because they were not conducted by secret ballot. As submitted by counsel for the applicant, the taking of a secret ballot vote was unnecessary in view of the fact that each of the officers was acclaimed.
Section l(l)(p) of the Act provides:
"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:
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.
The constitution should be placed before a meeting of employees for their approval either as originally drafted or as amended at the meeting.
The employees attending the meeting should be admitted into membership. In this regard it is well to keep in mind section 1(1)(j) [now section 1(1)(l)] of the Act which defines a union member to include a person who has applied for membership in the union and on his own behalf paid to the union at least $1.00 in respect of initiation fees or monthly dues.
The constitution should be ratified by a vote of the members.
Officers should be elected pursuant to the constitution.
(See also Comco Metal & Plastic Industries Ltd., [1979] OLRB Rep. June 498, and Local 199 U.A.W. Building Corporation, [1977] OLRB Rep. July 472.)
In the instant case, the evidence clearly establishes that the committee, with the benefit of legal advice from an experienced practitioner and the assistance of an organizer from the U.F.A.W.U., followed those steps, which have been set forth in the Board's jurisprudence for the guidance of persons wishing to form a trade union, and their advisors. They thereby brought into existence "an organization of employees formed for purposes that include the regulation of relations between employees and employers" within the meaning of section l(l)(p) of the Act.
In a letter dated May 27, 1986, counsel for Kingsville Fishermen's Company Ltd. advised the Board that "on May 17, 1986, a meeting of the membership of the applicant was held, at which time the membership elected Mr. Julio Fiererra as President of the Applicant, replacing Mr. Domingo [sic] Belo." That letter identified Mr. Fiererra as "the Captain of the fishing boat 'Linda Jane' owned by Liddle Brothers Fisheries"~ and asserted that the election of Mr. Fiererra "confirms the actual presence of management in the Applicant's organization, as envisaged by the constitutional documentation filed by the applicant at the hearing on May 16, 1986, and as such is evidence that the Applicant is not an organization of employees pursuant to section l(l)(p) of the Act.
Assuming without deciding that the facts alleged in that letter are true, the Board, on the basis of the reasoning set forth above respecting the meaning of the phrase "organization of employees" in section l(l)(p) of the Act, is of the view that the presence of a member of management in the applicant's organization does not preclude a finding that the applicant was duly formed as a trade union on April 21, 1986. Whether in light of section 13 of the Act the subsequent election of Mr. Fiererra will preclude the Board from certifying that trade union is an issue that can be dealt with in conjunction with the other issues remaining to be litigated in respect of these applications.
For the foregoing reasons, the Board hereby finds that the applicant became a trade union within the meaning of section l(l)(p) of the Labour Relations Act on April 21, 1986.
The Registrar is directed to list File No. 0255-86-R for hearing for the purpose of hearing evidence and representations concerning the allegation by the intervener that Steven Little did not pay any money in connection with his application for membership in the applicant. In addition to Mr. Little, the persons to be summonsed by the Board to testify at that hearing are Joe Gandaio, who appears to have signed as the collector on Mr. Little's application for membership in the applicant, and Domingos Belo, the applicant's Form 9 declarant in respect of that certification application. If time allows, the evidence and representations of the parties with respect to all other outstanding matters arising out of and incidental to that application will also be heard at that hearing.
File Nos. 0254-86-R, 0256-86-R, and 0257-86-R are referred to the Registrar to be listed for hearing for the purpose of hearing the evidence and representations of the parties with respect to all outstanding matters arising out of and incidental to them.
This panel is not seized with any of these matters.