[1986] OLRB Rep. December 1861
1838-86-R The Canadian Union of Public Employees, Applicant, v. The Staff Association Waterloo County Health Unit, Respondent, v. The Regional Municipality of Waterloo, Intervener
BEFORE: Patricia Hughes, Vice-Chairman, and Board Members D. H. Blair and W. F. Rutherford.
APPEARANCES: 1. H. Bird, Richard Anderson, Carol DeGroot and Patti Kraatz for the applicant;
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DECISION OF PATRICIA HUGHES, VICE-CHAIRMAN, AND BOARD MEMBER D. H. BLAIR; December 5, 1986
1In this application the applicant union ("C.U.P.E.") seeks a declaration that it is the successor to the Staff Association Waterloo County Health Unit ("the Staff Association" or "the Association") under section 62 of the Labour Relations Act ("the Act").
2The applicant filed materials with the Board indicating the process by which C.U.P.E. Local 1883 and the Staff Association merged. The employer requested a hearing into this matter but raised no specific concerns.
3In an oral decision at the hearing, we dismissed the application, giving brief reasons for doing so. We now put those reasons in writing.
4In examining the materials filed with the Board, it became apparent that the members of the Staff Association had participated only in one vote, whereas two votes were required. The Staff Association's Constitution did not previously provide for mergers. The Staff Association accordingly amended its Constitution to so allow and it followed the required procedures in doing so. The Constitution was thus amended by a two-thirds majority to provide as follows:
15.01 The Association may, by a majority vote of the members present and voting at a meeting called for among other things that purpose, merge, amalgamate or transfer its jurisdiction, rights, privileges, duties, liabilities and assets with or to another organization or a Local thereof.
5However, the Association did not go on to hold a vote with respect to the proposed merger with C.U.P.E. Local 1883 and the Association. The vote which was reported as "32 votes for the Merger" and "13 votes against the Merger" was in fact "32 Votes for the Amendment to the Constitution" and "13 votes against Amendment to the Constitution".
6Carol DeGroot, Vice-President of the Association during the operative time, testified that there had been considerable discussion about the proposed merger with C.U.P.E., that a question and answer sheet had been distributed and that the employees understood they were voting for the specific merger. She testified further that the Minutes of the July 24, 1986 meeting, at which the vote had been held, were adopted, showing the vote for and against the merger and that they had not been challenged. The Association's executive evidently believed that a single vote accomplished both objectives (amending the Constitution and approving the specific merger) at the same time. That was not in fact the case.
7The union's representative submitted that any defect was in the wording of the motion. However, in our view, that is not the difficulty with this application. By the amendment to its Constitution, the Staff Association was given the power to merge with another organization by following certain procedures. Those procedures were not followed in this case, albeit inadvertently. The employees did not express their wishes with respect to the merging of their Association with C.U.P.E. Local 1883 in the July 24, 1986 vote. The importance of the employees' approval is discussed in L. M. L. Foods inc., [1985] OLBR Rep. Aug. 1252. We are not prepared to infer what was in the minds of the employees when they voted on July 24, 1986. The only evidence before us is that they voted to amend the Association's Constitution to permit mergers. There is no evidence before us that they voted to permit the specific merger between the Association and C.U.P.E. Local 1883. We find therefore that there has been no merger of the Association with C.U.P.E. Local 1883.
8Accordingly, this application is dismissed.
DECISION OF BOARD MEMBER W. F. RUTHERFORD;
I dissent. I would have given CUPE successor status immediately.