Knob Hill Farms Limited v. United Food and Commercial Workers Local 206, 1986 CanLII 1670

[1989] OLRB Rep. February 149

1537-88-M Knob Hill Farms Limited, Employer v. United Food and Commercial Workers Local 206, Trade Union

BEFORE: Owen V. Gray, Vice-Chair, and Board Members R. W. Pirrie and D. A. Patterson.

APPEARANCES: Michael Gordon and Howard F. Wood for the employer; Steven Barrett and Ethan Poskanzer for the trade union; Michael Horan and Donna Baydak for a group of employees.

DECISION OF OWEN V. GRAY, VICE-CHAIR, AND BOARD MEMBER D. A. PATTERSON; February 9, 1989

1. Pursuant to subsection 107(1) of the Labour Relations Act ("the Act"), the Minister has referred the following question to the Board for its advice:

Does the Minister have the authority to appoint a conciliation officer pursuant to the request from Local 206 in the circumstances of this case?

By decision dated November 8, 1988 we answered that question in the affirmative. These are our reasons for that decision.

I

PREVIOUS PROCEEDINGS

2. On May 23, 1986, the United Food and Commercial Workers Union, Local 206 ("Local 206") applied for certification as exclusive bargaining agent for a unit of employees of Knob Hill Farms Limited ("Knob Hill") at Oshawa, Ontario. Somewhat less than forty-five per cent of the employees in that unit were members of Local 206 at the time referred to in subsection 7(1) of the Act, which was insufficient membership support to permit either certification or the conduct of a representation vote under section 7. Local 206 sought certification under section 8 of the Act, which provides:

8. Where an employer or employers' organization contravenes this Act so that the true wishes of the employees of the employer or of a member of the employers' organization are not likely to be ascertained, and, in the opinion of the Board, a trade union has membership support adequate for the purposes of collective bargaining in a bargaining unit found by the Board pursuant to section 6 to be appropriate for collective bargaining, the Board may, on the application of the trade union, certify the trade union as the bargaining agent of the employees in the bargaining unit.

The application was opposed both by Knob Hill and by a group of affected employees represented by Donna Baydak.

3. The application was heard by another panel of the Board over the course of 14 days of hearing in the period from August 5, 1986 to February 19, 1987. In the decision it issued on December 22, 1987 ([1987] OLRB Rep. Dec. 1531), that panel found that Knob Hill had breached the Act in a number of respects, that those contraventions had resulted in a situation in which the true wishes of employees were not likely to be ascertained and that Local 206 had membership support adequate for collective bargaining. It therefore certified Local 206 pursuant to section 8 of the Act.

4. Knob Hill received a notice to bargain on January 15, 1988 in the form of a letter on the letterhead of Local 206 signed by Ron Springall as President of Local 206. The parties were unable to agree on meeting dates. On April 26, 1988, the law firm of Ahee and Associates filed a written request in the name of "United Food and Commercial Workers International Union, Local 175 (formerly Local 206)" that the Minister of Labour appoint a conciliation officer to confer with the parties in an endeavour to effect a collective agreement with respect to the bargaining unit for which Local 206 had been certified on December 22, 1987. That request described the party by whom notice to bargain had been given as "United Food and Commercial Workers International Union, Local 206 (now Local 175)". Knob Hill objected to the requested appointment, initially on the ground that the request was premature but, ultimately, on the ground that United Food and Commercial Workers International Union, Local 175 ("Local 175") had no bargaining rights with respect to the bargaining unit in question. The Ahee firm responded to this objection in a letter (addressed to the Office of Arbitration to the attention of the Deputy Minister) stating that:

Please be advised that, effective November 1, 1986 U.F.C.W. Local 206 merged with U.F.C.W. Local 175. Local union 175 has trade union status with the Ontario Labour Relations Board. The merger has been recognized in Board File No. 3154-87-R, U.F.C.W. Local 175 - and - Viletta China Canada Limited.

The Minister then referred to this Board the question whether he had authority to appoint a conciliation officer pursuant to the request from Local 175 in the circumstances.

5. That reference ("the first Reference") came on for hearing before a different panel of the Board on July 14, 1988. That panel's decision records that Mr. Ahee, as counsel for Local 175, advised the panel that he would be asking the Board to "make a declaration in the nature of a section 62 declaration that a merger had occurred between the two Locals." The majority of that panel then ruled that this claim for a declaration should be the subject of the delivery of further particulars and of notice to affected employees. Directions to that effect were given, and the reference was adjourned to August 17, 1988.

6. The first Reference came on for hearing before yet another panel of the Board on August 17th. In paragraph 15 of the particulars which had in the meantime been filed by the Ahee firm on behalf of Local 175, it was asserted that as of November 1,1986, the time when the alleged "merger" of Local 175 and Local 206 had taken place,

Local Union 206 did not have bargaining rights for the bargaining unit of employees of the Employer Knob Hill Farms Limited, and therefore the condition precedent for an application under Section 62 of the Ontario Labour Relations Act does not obtain.

[emphasis added]

The position then taken by Mr. Ahee on behalf of Local 175 was recorded and dealt with in paragraph 5 of that panel's decision:

5. In answer to our questions, counsel for Local 175 confirmed that the negatives in paragraph 15 of the particulars were intentional and stated that the "time of" the alleged merger was November 1, 1986, more than a year before the decision granting Local 206 certification with respect to the subject unit of employees. When asked to identify the time when Local 175 said that the alleged merger had actually occurred, rather than an effective date as of which the trade union participants may have agreed to ~'back date" the merger once all conditions precedent to the merger had been fulfilled, counsel again said that date was November 1, 1986. Counsel for Local 175 conceded that if, as it asserted, "the condition precedent for an application under section 62 of the Labour Relations Act does not obtain" then, equally, the condition precedent to a declaration under section 62 does not obtain. He said that his client's claim (in paragraph 16 of its particulars) to a declaration that Local 175 is the successor to Local 206 depended on the proposition that the Board's jurisdiction to so declare is broader under subsection 107(2) than it is under subsection 62(1). He agreed that if this proposition is incorrect we could not declare Local 175 to be successor to Local 206 in the circumstances of this case. All counsel then agreed that we should hear argument with respect to the correctness of this proposition before dealing with the adequacy of notice to employees or hearing any evidence with respect to the purported merger. Having heard and considered that argument, we conclude that counsel's proposition is not correct.

7. After emphasizing the words "... the Board has the same powers and authority as it has under section 62 ... as if an application had been made thereunder ..." in subsection 107(2) of the Act, the panel observed that:

6.... If the Board has the same powers and authority as it would if an application had been made under section 62, then it must follow that it does not have broader or different powers or authority. Counsel for Local 175 asserts that, on its own view of the facts, we would not have the power on an application under section 62 to declare Local 175 successor to the statutory rights and obligations of Local 206 with respect to the subject bargaining unit. That assertion compels us to conclude that we do not have that power in these proceedings.

7. During the course of his argument, counsel for Local 175 made a series of inconsistent and ultimately equivocal statements about whether Local 206 continues to exist or not. Counsel for the employer expressed the belief that there would be other unspecified proceedings between the Employer and some entity purporting to have the right to represent its employees. He suggested that the question whether Local 206 had ceased to exist might have to be answered in those proceedings. Given the way the issues before us have developed, we do not have to answer that question in this proceeding. Furthermore, the conclusions expressed in this decision do not depend on any particular view of the possible outcome of, for example, an application to the certification panel by either the Employer or Local 175 requesting reconsideration of the certification decision.

8. The collective agreement referred to in subsection 16(1) of the Act is a collective agreement which would cover a particular bargaining unit of employees; the word "parties" in that subsection means the employer of those employees and the trade union which has the right under the Act to act as their exclusive bargaining agent. The Board's decision of December 22, 1987 certified Local 206 to be the exclusive bargaining agent of the unit of employees with which the application for conciliation services is concerned. We are not asked to reconsider that decision. Local 175 does not claim to be one and the same trade union entity as was certified in that decision. Since we cannot declare Local 175 to be successor to Local 206's statutory right to serve as exclusive bargaining agent in the face of the assertions and concessions of its counsel, we must conclude that Local 175 is not a party within the meaning of section 16.

The panel's answer to the question in the first Reference was in the negative:

9. Section 16 does not give the Minister authority to appoint a conciliation officer at the request of anyone other than a "party." Having concluded that Local 175 is not a "party", it is our respectful advice to the Minister that the Act does not authorize the Minister to appoint a conciliation officer at the request of Local 175 in the circumstances of this case.

8. By application dated August 25, 1988, "United Food and Commercial Workers International Union, Local 206" requested that the Minister appoint a conciliation officer to confer with the parties in an endeavour to effect a collective agreement with respect to the terms and conditions of employment of employees in the bargaining unit for which Local 206 was certified. That request was signed on behalf of Local 206 "by its solicitors, Sack, Charney, Goldblatt & Mitchell." By letter to the Registrar dated August 26, 1988, Mr. Mitchell of that firm requested on behalf of Local 206 that the Board reconsider its decision in the certification application and substitute the name "United Food & Commercial Workers' Union, Local 175" for the name "United Food & Commercial Workers Union, Local 206". His letter noted that this request for reconsideration was "without prejudice and in the alternative to the request being made to the Minister of Labour for the appointment of a conciliation officer", that he anticipated objection by the employer to the appointment of a conciliation officer and that the Minister had therefore been asked to refer the matter to the Board under section 107(1) if he deemed it necessary. The request for appointment of a conciliation officer was opposed by the employer, and the reference with which we are now seized (at least in part) was directed to the Board by the Minister.

9. Both the request for reconsideration of the certification decision and the Minister's reference were initially scheduled for hearing before the panel which made the certification decision. One of the members of that panel had ceased to be a member of the Labour Relations Board after the hearing of the certification application began. Accordingly, while that panel could deal with the request for reconsideration of its decision (see section 102(7) of the Act) it could not deal with the Minister's reference. That panel began its hearings with respect to the reconsideration request.

The reference for the Minister was rescheduled, and came before this panel for consideration.

II

REQUEST BY GROUP OF EMPLOYEES FOR STANDING

10. Mr. Horan appeared as counsel for Ms. Baydak, seeking the right to participate in the Board's consideration of this reference as representative of the group of employees of whom Ms. Baydak had been the representative in the certification proceedings. This request was opposed by counsel for Local 206, who argued that the proper parties to any dispute over the Minister's authority to appoint a conciliation officer are the parties to the collective bargaining in respect of which the request for appointment is made. Counsel for the objectors argued that the real issue on this reference was whether the entity which had made the request for appointment had bargaining rights with respect to the unit of employees which included them. From that perspective, he argued~ the employees in the bargaining unit affected should be given the same standing as they would be given in certification, termination, successor rights and single employer applications in which the Board deals with bargaining rights.

11. Although the Board's answer to the Minister's question is referred to as a "decision" in section 107, the Board's role under that section is of a quite different legal character than the role it performs under other provisions of the Act. As the Board noted in Spar Aerospace Limited, [1985] OLRB Rep. Mar. 480 at paragraph 24:

The Board's role on a Reference, like that of a court in similar circumstances, is advisory (see R. v. Ontario Labour Relations Board, exparte Kitchener Food Market Ltd., [1966] 2. OR. 513 (Ont. CA.)). The Minister is not obliged by law to follow the Board's decision. That decision is not determinative of the rights of the parties who would be affected by a Ministerial appointment, other than in the practical sense that on an issue which the Bard would have jurisdiction to determine inter panes - the application of section 63, for example - those parties (and the Minister) could fairly expect that if the same issue arose in an application involving the same parties, the Board would respond identically to identical facts.

From that perspective, it might be said that no one has any legal right to participate in proceedings taken by the Board to assist it in formulating its advice to the Minister. Even in proceedings in which certain persons do have the right to notice and the opportunity of a hearing, the Board has a discretion to permit participation by those who do not have such a right: see Great Lakes Forest Products Ltd., [1987] OLRB Rep. Sept. 1136; and, Ontario Hydro, [1986] OLRB Rep. May 663 at paragraph 20 and following.

12. Counsel before us, including counsel for the objecting employees, already had some familiarity with the issues in this reference, having discussed them earlier in the context of the application for reconsideration in which the objecting employees were and are proper parties. Counsel for the objecting employees was able to assure us that his participation would not introduce into the evidence gathering portion of our proceedings any disputed issue of fact which would not otherwise be addressed by the trade union or employer. Following a discussion about the possibility that issues addressed in the reference proceedings before us might also be raised in a request for reconsideration of the original certification application (either the pending request or, if that request were withdrawn by the trade unions involved, a request which might be filed by the objecting employees), counsel for the objecting employees undertook that they would be bound by this panel's decision with respect to the issues addressed in these proceedings. In those circumstances, we permitted the objecting employees to participate, through counsel, in these reference proceedings.

III

THE FACTS

13. For the most part, the facts relevant to the question posed by the Minister are not in dispute. Local 206 and Local 175 are both locals of the United Food and Commercial Workers International Union (hereafter referred to as "UFCW" or "the parent union"). Under the UFCW's constitution, the officers of the parent union constitute the International Executive Board. Under Article 8(J) of the constitution, the International Executive Board has the power "to authorize the voluntary merger of Local Unions of the United Food and Commercial Workers International Union or of an organization not chartered by the United Food and Commercial Workers International Union into a Local Union of the United Food and Commercial Workers International Union". Article 8(G) of the constitution permits the International Executive Board to delegate any of its specific powers to the International Executive Committee or to the International President for exercise between meetings of the International Executive Board. On August 5, 1983, the International Executive Board passed a resolution delegating to the International Executive Committee of the parent union certain specific powers of the International Executive Board, including the power to authorize voluntary mergers of local unions under Article 8(J). "Merger" is not defined in the constitution.

14. In May 1986, the International President and International Secretary-Treasurer wrote to the Secretary-Treasurer of Local 206 granting it permission to enter into merger discussions with Locals 175, 409 and 486. It is not apparent whether such permission is, in fact, necessary under the UFCW constitution. The significance of the letter is that it enclosed what the letter referred to as "the UFCW merger procedure", a document to which considerable reference was made in argument. That document reads as follows:

UNITED FOOD AND COMMERCIAL WORKERS

INTERNATIONAL UNION

Merger Procedure

The following steps are to be followed by UFCW chartered bodies contemplating merger.

1. Informal, exploratory discussions between potential merging bodies.

2. The chief executive officers of chartered bodies informally discussing merger should request that the International Executive Committee approve their formalizing merger discussions. (Letter to International President for International Executive Committee with copies to Regional office(s).)

3. The International President will request a recommendation from Regional Director(s) regarding such discussions continuing

4. Director(s) make recommendation on proposed formal merger discussions ensuing.

5. If authorized by the International Executive Committee the International President assigns Regional Director(s) to assist chartered bodies in completing merger.

6. Chartered bodies draft merger resolution (UFCW -- through the Regional Director --provides sample merger resolution language).

7. Executive Boards of chartered bodies recommend merger agreement to membership.

8. Members shall receive formal notice of a membership meeting at which there will be full disclosure of the terms of the merger agreement. There shall be an opportunity for full discussion of the merger at this meeting. Members shall receive formal notice of a membership meeting at which the merger resolution shall be voted upon. The discussion and the vote may be done at one meeting, in which case, the notice shall indicate there will be full disclosure of the terms of the merger agreement, an opportunity for full discussion, and a vote. (Formal notice as used in the Merger Procedure is usually written notice mailed to each member not less than fifteen days prior to the meeting. In some cases, where notice has been traditionally and effectively provided by postings as, for example, in some single plant locals, this may suffice.)

(See the attached respecting union's obligation to nonmembers and their voting rights.)

9. Chartered bodies' memberships vote by secret ballot to approve merger agreement.

10. Chartered bodies submit Resolutions and conditions of Merger to the Regional Director for transmittal to the International President for the International Executive Committee.

11. Director(s) make recommendations to the International Executive committee through the President's office regarding proposed merger.

12. International Executive Committee approves or disapproves proposed merger.

13. International President and Secretary-Treasurer notify the chartered bodies of Executive Committee decision and, if approved, provide detailed instructions regarding consummation of the merger.

14. All records, collective bargaining agreements, assets, properties, and liabilities shall be transferred to the merged body.

15. The charter and seal of the chartered body(ies) going out of existence shall be surrendered to the International Union.

16. The chartered body(ies) going out of existence sends copies of terminal LM report(s) and terminal 990 report(s) to the International Secretary-Treasurer.

The reference in parentheses at the end of paragraph 8 is to an attachment not before us, which apparently sets out obligations and rights which the UFCW understands exist under U.S. law but does not treat as applicable in Canada.

15. On August 8, 1986, the Presidents of Locals 175, 206, 409 and 486 of the UFCW agreed in writing to recommend to their respective Executive Boards that they adopt the following resolution:

RESOLUTION AND CONDITIONS OF MERGER BETWEEN UFCW LOCAL NO. 175 AND UFCW LOCAL NOS. 206, 486, AND 409

WHEREAS, conferences have taken place between the executive officers and representatives of UFCW Local Nos. 175, 206, 486, and 409, for the purpose of achieving ways and means of merging the Locals to achieve greater efficiency and stability and to enhance the best interests of the membership and promote the general welfare, and

WHEREAS, substantial progress has been made in achieving such purpose and each Executive Board and Local Union has been fully advised as to details involved, as attached hereto (Exhibit A), and has fully considered the formal conditions of merger and the proposed bylaws attached hereto (Exhibit B), and

WHEREAS, the Executive Boards of UFCW Local Nos. 175, 206, 486, and 409 on August—,1986, after appropriate notice, considered all particulars in connection with said merger and recommended concurrence to the membership of the Local Unions, and

WHEREAS, the membership of UFCW Local Nos. 175, 206, 486, and 409 were notified that this matter would be voted upon at the meetings of the Local Unions during August, September and October, 1986, and

WHEREAS, at the aforementioned membership meetings, this resolution and the Exhibits attached hereto were read, and the issue of the merger under the terms and conditions set forth herein was fully discussed, all members present having been given an opportunity to express themselves fully and freely on the subject of the merger, the matter was put to vote and was approved by a requisite majority vote, and

WHEREAS, the adoption of this resolution and the attached Exhibits authorised and instructed the Chief Executive Officers and Executive Boards of the Local Unions to take all necessary steps to effectuate the merger in accordance with the approved terms and conditions embodies herein and acknowledge and agree that UFCW Local No. 175 would then be the successor Local Union in all respects, therefore,

BE IT RESOLVED, that this resolution and the exhibits attached hereto shall constitute a formal merger agreement, subject to final approval by the United Food and Commercial Workers International Union, and

BE IT FURTHER RESOLVED, that after the merger is approved by the United Food and Commercial Workers International Union, that

a) the appropriate officers shall be authorized and are hereby instructed to do all things necessary to expedite the merger, including the transfer and assignment of all property, funds, books, records, other assets and obligations of UFCW Local Nos. 206, 486, and 409 to the successor Local Union, and

b) that the successor Local Union notify employers under contract (Exhibit C) and other interested persons (Exhibit D) of the merger action and that UFCW Local No. 175 is in all respects the successor of UFCW Local Nos. 206, 486, and 409 and as such successor is subject to the obligations and entitled to the rights and privileges of the contracts as well as all other rights and privileges inhering to UFCW Local Nos. 206, 486, and 409 and that the contracts shall be amended to show UFCW Local No. 175 as the successor Local Union in all respects.

16. In the material before us there are a number of notices of membership meetings scheduled for the period contemplated in the fourth recital of this resolution. There is general agreement that meetings contemplated by those notices were held. The unions' assertion that the resolution was approved at those meetings is unchallenged. The copy of the merger resolution before us bears the certificate of the President and Secretary-Treasurer of each of Locals 175, 206, 486 and 409 to the effect that "this resolution and its exhibits attached hereto and made part thereof were adopted by UFCW Local Union Nos. 175, 206, 486, and 409 as stated herein." It is common ground, however, that those employees of Knob Hill who had become members of Local 206 were not given notice of and did not attend any such meeting.

17. Exhibit A to the merger resolution begins as follows:

EXHIBIT A

Exhibit A shall set forth conditions of merger not contained in the resolution itself or in Exhibit B (Bylaws).

The conditions of merger shall include the following:

1. The officers and employees of the merged Local Union, or any other person holding any assets of the merged Local Union, shall be empowered and authorized, and maybe required from time to time, on and after the effective date of this merger, to execute and deliver, or cause to be executed and delivered, upon the request of the successor Local Union (UFCW Local 175), all such deeds, documents, authorizations or instruments as may be necessary, appropriate or indicated in order to convey, transfer or confirm the right, title and interest of the successor Local Union (UFCW Local 175) in and to such assets or property.

2. The successor Local Union (UFCW Local 175) shall also assume all obligations of the merged Local Union of every kind and character, including collective bargaining obligations, and shall succeed to every and all rights and privileges of the merged Local Union as of and subsequent to said date.

3. On the effective date of this merger, the members in good standing of the merged Local Union, as of said date, shall become and remain members in good standing of the successor Local Union (UFCW Local 175) without payment of any initiation or transfer fee. The accumulated membership standings of the members of the merged Local Union shall be considered, for Local Union purposes (excepting sick and death benefits), the membership standings in the successor Local Union (UFCW Local 175) and shall be reflected in the membership records thereof.

4. The merger shall not be deemed to impair or otherwise affect any Federal or Provincial certification of the merged Local Union as a collective bargaining representative or agent, or any right or obligation of the merged Local Union under any collective bargaining agreement for checkoff authorizations; but, all rights, privileges, duties and responsibilities vested in the merged Local Union, pursuant to such certifications, agreements or authorizations are to be deemed vested in the successor Local Union (UFCW Local 175).

5. Such health and welfare trust and pension trust to which the merged Local Union is a party shall not be deemed to be altered by virtue of this merger, all rights, directions of powers of appointment vested in the merged Local Union shall become vested in and exercisable in the successor Local Union (UFCW Local 175) acting by and through its appropriate officers or Executive Board.

6. The officers of the merged Local Union are directed and instructed to take any and all necessary and indicated steps to fulfill the provisions of this Agreement and shall serve in their respective official capacities until the effective date of the merger at which time their official terms of office shall expire.

7. The duly elected officers of the successor Local Union (UFCW Local 175) hereby accept all of the rights, duties and obligations imposed upon each of them and upon the successor Local Union herein.

8. The merger shall be effective on the first of the month following ratification by the requisite majority vote of each of the Local Unions.

9. The merger agreement and Exhibit A shall stay in place until December 31, 1995.

Paragraph 10 of Exhibit A sets out the provisions which will govern the election of officers in which is described as "the successor Local Union (UFCW Local 175)" for the successive terms of office beginning in January 1989 and January 1993. It provides that until January 1,1989, the Executive Board of Local 175 would consist of the then Executive Board members of Locals 175, 206, 409 and 486. Provision is made for the appointment of the Presidents of Local 206, 486 and 409 as Regional Directors/Executive Vice-Presidents of Local 175 (paragraph 12). Paragraphs 11 through 15 deal further with the election or appointment of officers of the "successor Local Union". Paragraph 16 deals with the frequency of meetings of the Executive Board, Executive Committee and general membership. Paragraph 17 deals with the rationalization of amounts payable by way of union dues and initiation fees. Paragraph 18 deals with regional per capita tax payable by Local 175 to Regional Councils. Paragraph 19 provides that:

All strike funds which exist in Locals 175, 206, 486, and 409 shall be merged upon the effective date of this merger agreement and shall be financed in the future by a 20¢ per member per week contribution (or such amount as may be approved by the membership in the future). The monies from the various strike funds and the revenue generated for the strike fund shall be deposited in a strike fund as determined by the President of the Local Union.

18. Concerning Local 206's failure to involve the Knob Hill members in a vote on the merger resolution, Mr. Springall testified that those members were MACCs (members awaiting contracting coverage) who do not pay dues and are not treated as having active membership status. Mr. Springall's attention was drawn in cross-examination to the "Bylaws of Retail, Commercial and Industrial Union Local 206", which Mr. Springall had testified represented the bylaws of Local 206 in effect at all relevant times. Article IV, section B defines an active member as including a member who is employed within a collective bargaining unit represented by the Local union or who is employed by an employer who is the subject of an active organizing effort by the local union. Mr. Springall said that the only persons treated as active members were members covered by a collective agreement under which dues were being remitted on their behalf to the union. He testified that the concept of MACCs and their limited rights was not something which could be found in the constitution of the parent union or the bylaws of the Local but was, rather, an "internal procedure used strictly in Canada". While they have that status, he said, MACCs are not required to pay dues, something which active members are required to do. (We note that Article IX, section D of the Local 206 bylaws contemplates the suspension of a member who does not pay dues for two consecutive months, as does the UFCW constitution. The provisions of the Local 206 bylaws regard a suspended member as a member who is not in good standing. Article VI, section F contemplates that only active members in good standing are entitled to vote on a matter which comes before a membership meeting.)

19. One of the documents before us is a letter dated March 6, 1987 from the International

Presidents and International Secretary-Treasurer of the parent union to Ron Springall, Executive

Vice-President UFCW, Local No. 175. It reads as follows:

Resolutions received at International headquarters indicate that the memberships of Locals Nos. 175, 206, and 409 and that portion of Local No. 486 which is in Ontario have agreed to merge with each other.

The International Executive Committee has approved this merger, which is effective as of November 1, 1986. The newly merged local union will be known as United Food and Commercial Workers Union, Local No. 175, and the geographical jurisdiction of Local No. 175 will be the Province of Ontario. Local No. 175 will continue to be assigned to Region 18.

It will be necessary to have the charter of Local No. 206 so that we can issue a revised charter reflecting this merger. If you desire to retain the old charter for posterity, please advise us and it will be returned after it has been invalidated.

The following detailed instructions should be followed in order to consummate the merger:

1. You, as former chief executive officer of Local No. 206, will need to send, if you have not already done so, Willard E. Hanley, President of Local No. 175, a letter wherein you advise that effective November 1, 1986, the following actively employed members of former Local No. 206 have been transferred to Local No. 175. (Then proceed to list the names of all the members being transferred.)

2. You are to transfer all of the local union's funds, savings, bonds, etc., to Local No. 175.

3. You must also return to the Secretary-Treasurer's office the charter and seal of former Local No. 206. The minutes, records, contracts, supplies, etc., are to be transferred to Local No. 175.

4. Any membership reports that may be past due should be forwarded to us as soon as possible. On the top of the first page of each of these reports, please write "Membership transferred to Local No. 175, effective as of November 1, 1986."

We are sending Willard E. Hanley, President of Local No. 175, a copy of this letter in order that he may be fully informed. If you have any questions concerning the procedure that we have outlined herein please do not hesitate to contact us.

20. In addition to those matters which appeared on the face of the many documents put before us on agreement of the participants, counsel for the employer and counsel for the objecting employees accepted as true the assertion of Local 206 that if a conciliation officer was appointed with respect to bargaining between Knob Hill and Local 206, Mr. Ron Springall would have sufficient financial resources from the International Union to be able to bargain with Knob Hill on behalf of the employees and Local 206 and to represent them. They also agreed that there are two collective agreements still in effect under which Local 206 is named as bargaining agent: an agreement with Tilden Car Rental Inc. dated April 18, 1986 with an initial term ending November 30, 1988; and, an agreement with Canteen of Canada Limited dated October 20, 1986 covering the period January 1, 1986 to December 31, 1988.

21. There were two assertions of fact by counsel for Local 206 with which counsel for the other participants disagreed. One was the assertion that the charter issued by the parent union to Local 206 had neither been surrendered nor revoked. The other was the assertion that there had been "no internal administrative transfer of employees at Knob Hill who are members of Local 206 over to Local 175; that is, that there had been no advice to Local 175 by a membership clerk that these individuals are now members of Local 175". In that connection, each of the other two counsel indicated that he had a document which appeared to be inconsistent with this assertion. Counsel for the objecting employees referred to a notice to Knob Hill employees or members (the notice does not say which) of a meeting to be held July 11, 1988 to discuss contract proposals and nominate and elect a negotiating committee. This notice is on the letterhead of Local 175. Counsel for the participants all agree that this document was handed out to employees in the subject bargaining unit by someone with some connection with the UFCW or one of its Locals on or about July 11, 1988. Counsel for the employer produced a letter dated July 6, 1988 on the letterhead of Local 175, signed by one Andrew Birnie and addressed to Knob Hill. It complains that certain disciplinary action taken against a named individual was not consistent with past practice and would be the subject of a complaint to this Board if not satisfactorily resolved. Counsel for the participants agree that this document was sent by its apparent author on or about July 6th and received by the addressee shortly thereafter.

22. Ron Springall testified for Local 206. He was elected to the Executive Board of Local

206 in 1972. He became a full-time representative of the Local in 1979. In 1982 he was elected President of Local 409 in Thunder Bay. In 1985, the Executive Board of Local 206 appointed him to the office of President of the Local, to fill a vacancy which had arisen since the previous elections. But for any effect the "merger" may have had, the term of the office to which he was then appointed would ordinarily have expired December 31, 1988, as would the terms of others who held office in the Local at the time he was appointed President. Mr. Springall is also a Regional Director and Executive Vice-President of Local 175, positions he had held since November 1, 1986.

23. Mr. Springall identified the charter which had been in the possession of the Local at the time he became President. It is a charter dated July 1, 1984, constituting certain persons a Local union under the title of "United Food and Commercial Workers Union, Local No. 206", the affairs of which are required, by the terms of the charter, to be conducted in conformity with the constitution of the UFCW. He testified that the charter had remained in his possession since he became President. It had not been surrendered, he said, nor had the International Union purported to revoke it.

24. In cross-examination, Mr. Springall testified that he never received the letter of March

6, 1987 purportedly sent to him by the International President and International Secretary-Treasurer. The first time he saw it was in July of 1988, when Mr. Ahee was preparing him to testify in connection with the earlier reference under section 107. Upon becoming aware of the contents of the letter and the "instructions" set out in it, he spoke to his immediate superior, Mr. Evans, to ask what he should do in view of the fact that there were still outstanding matters involving Local 206. He was told, in effect, to await further instructions. He later received a letter dated September 1, 1988 from the International President and International Secretary-Treasurer, to the following effect:

We are writing you further to an agreement entered into between Locals 175, 206, and 409, which have agreed to merge with each other.

As you are aware, the International Executive Committee has approved this merger. Further, as you are aware of by letter dated March 6, 1987, we forwarded to you detailed instructions which were to be followed in order to consummate the merger. Included among these instructions was the requirement that you return to the International Secretary-Treasurer's Office the charter and seal of Local 206.

It is our further understanding that difficulties have arisen with respect to the orderly merger between Locals 206 and 175, and in particular, with the ability of Local 206 to transfer bargaining rights from Local 206 to Local 175 with respect to a bargaining unit of employees employed by Knob Hill Farms Limited.

The International Executive committee is of the view that all steps taken which are necessary in order to consummate the merger should not be completed unless and until an orderly transfer of bargaining rights to Local 175 has taken place with respect to all bargaining units which Local 206 represents. As a result, we would ask that you not return the charter and seal of Local 206 unless and until the local is assured that all bargaining units which it represents, including the bargaining unit certified for Knob Hill Farms Limited, may be adequately represented by Local 175.

In the interim, Local 206 and its officers shall have all powers necessary in order to represent those employees whose bargaining rights have not been transferred to Local 175, and to take all necessary steps in order to effectuate such transfer. Once all such transfers have occurred, we would ask that you follow the detailed instructions set out in our letter dated March 6, 1987, in order to fully consummate the merger.

We issue this letter with the full authority of the International Executive Committee who have authorized the conditions set out herein.

25. Mr. Springall acknowledged that while he had not been aware of the letter of March 6, 1987 until some time later, he had been aware of the merger procedure set out in the document which Local 206 received in May of 1986. He was aware that that procedure contemplated the surrender of the charter. He said it had been his understanding that it was and remained his obligation after November 1, 1986 to take the steps necessary to accomplish what the merger agreement contemplated. That included arranging the transfer to Local 175 of bargaining rights with respect to each of the bargaining units for which Local 206 held such rights. That had generally occurred without difficulty: when an existing agreement with Local 206 expired, the employer party would generally agree to Local 175 as the trade union party to the renewal agreement. Of more than 80 bargaining units under contract in October 1986, all but two had since been "switched" by one means or another to Local 175. Tilden and Canteen, the employer parties to the two agreements in which Local 206 was still the named bargaining agent, had indicated they would have no difficulty substituting Local 175 as bargaining agent if that proposal were made when it came time to negotiate the renewal of those agreements. Mr. Springall could not be certain, however, that there would not be difficulties at that point, as there had been with Knob Hill's accepting that Local 175 should act as bargaining agent in place of Local 206.

26. Apart from its continuing responsibilities with respect to the Tilden, Canteen and Knob Hill bargaining units, Mr. Springall observed that Local 206 also was involved in outstanding proceedings or negotiations with respect to the rights of certain former employees of Dominion Stores under the Employment Standards Act. It was Mr. Springall's understanding of the merger agreement and his function under that agreement that he was to continue to act in the name of Local 206 so as to cause it to discharge its obligation to represent workers and complete all such steps as might be necessary to have those obligations taken over by Local 175. He understood that a surrender of the charter of Local 206 would terminate the Local's existence and leave those employees in limbo. He did not propose to surrender the charter, nor did he understand the agreement to require that it be surrendered, until all necessary steps had been taken to give effect to the provisions of the merger agreement. All such steps have not yet been taken, in his view.

27. With respect to the membership status of employees of Knob Hill who originally became members of Local 206, Mr. Springall explained the procedure involved in the transfer of members from one Local to another. Each Local files reports with the International concerning its membership, including information about incoming members, outgoing members and members awaiting contract coverage ("MACC's"). In respect of a transfer of membership, then, both the original Local and the destination Local would report on the transfer. Mr. Springall testified that neither Local 206 nor Local 175 has reported members employed by Knob Hill as having been transferred from the one to the other. Local 206 had approximately 4400 members as of November 1,1986. Most of these were thereafter transferred to Local 175. Apart from the approximately 100 members employed at Knob Hill, certain members formerly employed by Dominion Stores have also not been transferred. Mr. Springall was not sure whether the employees covered by the Tilden and Canteen agreements were still technically members of Local 206.

28. Mr. Springall readily acknowledged in cross-examination that a great many of the steps contemplated by the merger procedure and by the merger agreement had been completed. All of Local 206's bank accounts had been closed and the contents transferred to Local 175 in late 1986, including a strike fund of approximately five to six thousand dollars. The only capital assets of Local 206 of any monetary value which were not transferred to Local 175 at that time were the assets of the Local 206 building corporation, which were transferred to Local 175 in some fashion in mid-October 1988. After November 1, 1986, any dues received by Local 206 were deposited in the bank account of Local 175. Local 206 ceased to have any paid employees on November 1, 1986; Mr. Springall and the other former employees of Local 206 were thereafter employed and paid by Local 175. The officers of Local 206 had become officers of Local 175 in accordance with the provisions of the merger agreement in that regard. Apart from Mr. Springall, none of the persons who held office in Local 206 prior to the effective date of the merger agreement has since purported to act in his or her capacity as an officer of Local 206. No meetings of the Executive Board of Local 206 as such have been conducted since October 1986. Asked how he could have continued to be President of Local 206 after November 1, 1986 in the face of paragraph 6 of Schedule A to the merger resolution, Mr. Springall testified that it had been his understanding of the document he signed that he had to complete the steps which the document contemplated would be taken and that it was impossible to complete those steps by November 1, 1986.

29. Mr. Springall testified that he knew all of the employees of Local 175 and that Andrew

Birnie was not, to his knowledge, employed by that Local. He did not know who Andrew Birnie was. He felt he would be aware of the identity of any person assigned by Local 175 to deal with any matter involving the Knob Hill bargaining unit. Mr. Springall was unable to say from personal knowledge what might have been in the minds of others when they used Local 175 letterhead in connection with matters involving Knob Hill employees or members. One such document was a letter written to Knob Hill's solicitors by Jim Hastings, a Local 175 business representative, proposing dates on which "the union" was prepared to meet in negotiations for the purpose of negotiating the terms of a collective agreement. The letter is on Local 175 letterhead and is captioned "Re: UFCW Local Union 175 and Knob Hill Farms Limited". Mr. Springall noted that Mr. Hastings had been designated by the President of Local 175 as the person who would negotiate with Knob Hill Farms. Mr. Springall did not know why Mr. Hastings would not have written on Local 206 letterhead. He volunteered, however, that it would be logical for Mr. Hastings to assume he was negotiating on behalf of Local 175 because Mr. Hastings is paid by Local 175 and works in that Local's office.

30. Mr. Springall's attention was directed to three letters dated February 11, 1988 and addressed to him as President of Local 206. One is on the letterhead of Local 175 and signed by W. E. Hanley as President of that Local. The other two are on the letterhead of the UFCW; one is signed by W. E. Hanley as International Vice-President and Director of Region 18 and the other is signed by Clifford Evans as International Vice-President and Director of Region 19. The body of each letter is identical, and reads:

Pursuant to the Resolutions passed by the delegates at special meetings of the above-named Local Unions, and pursuant to the Memorandum of Agreement duly executed by the Presidents and Secretary-Treasurers of said Local Unions, I am writing to formally recognize the Merger of Local Unions 206, 409 and 486 with Local Union 175.

We hereby accept into the membership of Local Union 175, all former members of Locals 206, 409 and 486 and point out that they enjoy all the rights, duties and obligations as do all members of the United Food and Commercial Workers Union, effect [sic] November 1, 1986.

31. Mr. Springall testified that he was aware of these letters. He was firmly of the view that none of the authors of them had the authority to do what they purported to do in those letters. He said he understood these letters were written for use by Mr. Ahee on an application to the Board involving Viletta China Canada Limited. We note that was an application to the Board in which Local 175 sought a declaration that Local 175 had acquired the rights, privileges and duties of Local 206 with respect to a unit of employees of that employer. That application was dealt with by another panel of the Board, which granted it. That panel noted in its decision granting the requested declaration that notice of the application had been given to the employer and to the effect that employees and none of those interested persons had sought to oppose or otherwise make representations in connection with the application.

IV

REASONS FOR DECISION

32. The submissions of counsel for the respondent and for the objecting employees involved variations on three basic themes: that Local 206 had ceased to exist, that Local 206 was no longer a trade union within the meaning of the Act and that Local 206 was not now the trade union to which the Board would have thought it was granting exclusive bargaining rights in the decision of December 22, 1987. These themes and variations of them were explored from two legal perspectives: the perspective of the common law as it applies to the affairs of unincorporated associations and the perspective of the Labour Relations Act as it applies to the acquisition and performance by trade unions of statutory rights and obligations as exclusive bargaining agencies.

33. The nature of trade unions from the common law perspective was described in the following passage from the judgement of the Ontario Court of Appeal in Astgen et al. v. Smith et al, 1969 CanLII 488 (ON CA), [1970] 1 O.R. 129, 69 CLLC ¶14,198 (Ont. CA.) at pp. 133-134 and 135:

Prior to dealing with the merger agreement I consider it desirable to determine the precise legal status of a trade union or labour union, the relationships existing among the membership inter se and the relationships of each member to the totality of the persons associated together. I concede at the outset that a labour union under the Labour Relations Act, R.S.O. 1960, c. 202, and allied legislation has a "status" conferred by such legislation which makes it somewhat different from a fraternal organization or an athletic club but apart from such statutes a labour union is essentially a club, a voluntary association which has no existence, apart from its members, recognized by law. A club is basically a group of people who have joined together for the promotion of certain objects and whose conduct in relations to one another is regulated in accordance with the constitution, by-laws, rules and regulations to which they have subscribed.

The proposition that a trade union has a special status, that it is a sort of hybrid corporation, has no foundation in law. This misconception is fostered by the "legal entity" character which labour legislation has thrust upon trade unions but is not legally supportable outside the purview of those statutes. While trade unions have historically strenuously opposed and rejected any movement toward corporate status with its attendant strictures, there has evolved a concept, which has no basis in law, that unions has a quasi-legal entity; that they have a peculiar status which clothes them with the advantages of corporations but shields them from the restrictions and liabilities attaching to corporate entities. The misunderstanding, and it is a fundamental one, must not be allowed to becloud the issues herein.

We are not concerned in this appeal with the pseudo-corporate status bestowed on labour unions by statute; nor are we assisted by English case law in view of the fact that under various Trade Unions Acts, trade unions in England may be registered and upon registration are vested with certain powers and responsibilities. Ontario has no comparable legislation and resort must be had to the common law to determine both status and capacity. Mine Mill is not a corporation, individual or partnership, and is accordingly not a legal entity; it is an unincorporated group or association of workmen who have banded together to promote certain objectives for their mutual benefit and advantage and in law nothing is recognizable other than the totality of members related one to another by contract. The objects and purposes of the association are spelled out in the memorandum of association usually referred to as the "constitution"; the by-laws or rules provide the machinery for the proper carrying out of activities intended to advance the objectives and purposes of the voluntary association. Each member of Mine Mill, upon being granted membership, subscribed to those purposes and objects and in so doing entered into a contractual relationship with every other member of Mine Mill, Rand, J., in Orchard et al. v. Tunney, 1957 CanLII 57 (SCC), [1957] 5CR. 436 at p.445,8 D.L.R. (2d) 273 at p.281, stated:

…….each member commits himself to a group on a foundation of specific terms governing individual and collective action ... and made on both sides with the intent that the rules shall bind them in their relations to each other.

I adopt also the proposition stated by Thompson, J., in Bimson v. Johnston et al., 1957 CanLII 131 (ON HCJ), [1959] OR. 519 at p. 530, 10 D.L.R. (2d) 11 at p. 22, which was affirmed on appeal 1958 CanLII 345 (ON CA), [1958] O.W.C. 217, 12 D.L.R. (2d) 379:

…….that a contract is made by a member when he joins the union, the terms and conditions of which are provided by the unions constitution and by-laws ... The contract is not a contract with the union or the association as such, which is devoid of the power to contract, but rather the contractual rights of a member are with all other members thereof.

There is no limit to the lawful objects for the furtherance of which men may associate voluntarily, and in my view, provided it is properly authorized by every member of the association, there is no restriction upon the powers of the members to alter the objects for which they became associated or to terminate the relationship inter se of those associated, or to agree individually to become bound by other contractual relationships to the members of the same or some other group of associates. In this sense of the meaning of ultra vires I do not consider that the realization of what was contemplated by the provisions of the merger agreement would be beyond the capacity of the members of Mine Mill provided that there was unanimous approval individually or by means of some procedure which all of the members had agreed upon.

The contract of association is not between the members and some undefined entity which lacks the capacity to contract; it is a complex of contracts between each member and every other member of the union. These are individual contracts impressed with rights and obligations which cannot be destroyed in the absence of the specific consent of each person whose rights would be affected thereby.

Two features of this perspective are significant for our purposes. One is that the only matter essential to the existence of an unincorporated association is that the terms of a complex of contracts or constitution have been subscribed to by two or more persons. The other feature is that once the association has been created in this way, it cannot be taken out of existence except in accordance with the express terms of its constitution or with the unanimous consent of all those then bound by those terms.

34. The Labour Relations Act defines "trade union" in clause l(l)(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.

It is not the Board's function to "confer" or "withhold" "the status of a trade union", as the language used in older Board decisions suggests. An entity or group of persons either is or is not a trade union, depending on whether the statutory definition is satisfied. The Board's function is to make a finding of fact. In doing so, it is obliged not to impose requirements unsupported by the language of clause l(l)(p); Re CSAO National (Inc.) and Oakville Trafalgar Memorial Hospital Association, 1972 CanLII 563 (ON CA), [1972] 2 O.R. 498 (Ont. C.A.) ("the CSAO decision").

35. The word "organization" in clause l(l)(p) is not itself expressly defined. The language of the clause and of other provisions of the Act provides guidance as to what is meant. Clause l(l)(p) tells us that it is an organization "of employees". Clause 1(1)(l) and other provisions of the Act clearly contemplate that it is an organization of which employees are "members". Sections 74, 87, 91, 92, 98, 99 and others contemplate that a trade union will have at least one "officer, official or agent" who acts or purports to act on its behalf in matters with respect to which the Act is concerned. Clause l(1)(p) contemplates that the organization is something which is "formed" for particular purposes. These characteristics - membership within a formal structure with defined purposes and action through agents - suggest that the "organization" must either be a corporation without share capital created pursuant to some statute in that behalf or an unincorporated association brought into existence in the manner contemplated by the common law.

36. Some unions in Ontario are corporations; most are unincorporated associations. As the Court recognized in the passage from Astgen et al. v. Smith et al., supra, a trade union which is an unincorporated association takes on a pseudo-corporate status under the Labour Relations Act and other labour legislation, which treat it as having a separate existence and identity even though it has none at common law. The statutory perspective works some other modifications on the common law view of unincorporated association. For example, an individual who is not yet and might

never be a member of the association in accordance with the provisions of its constitution may nevertheless be treated as a member for the purpose of the Labour Relations Act: clause 1(1)(l) and subsection 103(4) of the Act. Subject perhaps to those modifications, the question whether something exists as an "organization ... formed for purposes that include the regulation of relations between employees and employers" is governed by the common law principles to which the Court of Appeal made reference in the passage we have quoted from Astgen et al. v. Smith et al., supra.

37. Although we are not concerned here with any question of the "successorship" of one trade union to the bargaining rights of another, the Board's jurisprudence with respect to trade union successorship forms an important backdrop against which the events in question here must be understood. A trade union may acquire the bargaining rights of another with respect to a particular bargaining unit of employees in one of three ways: it may displace the predecessor trade union by means of a timely certification application; it may be granted voluntary recognition by the employer following abandonment of the bargaining rights by the predecessor; or it may obtain a declaration under section 62 of the Act that it has acquired the rights, privileges and duties under the Act of the predecessor trade union.

38. The Board's jurisprudence with respect to declarations under section 62 of the Act was reviewed at length in L.M.L Foods Inc., [1985] OLRB Rep. Aug. 1252 at paragraphs 23 to 36. We do not propose to repeat that analysis here. The important point developed in that decision is that statutory bargaining rights are not a species of property which may be effectively conveyed or assigned by one trade union to another. Unlike the "successorship" provided for in section 63 of the Act, succession by one trade union to the statutory and collective agreement rights and obligations of another trade union does not occur automatically as a result of two trade unions' having engaged in some particular form of transaction. Where resort is had to section 62 of the Act, it is the granting of the requested declaration by the Board which confers upon the successor the rights, privileges and duties under the Act of the predecessor. If there has been a "merger, amalgamation or transfer of jurisdiction"~ the granting of such a declaration with respect to any particular bargaining unit is a matter of discretion, the exercise of which depends, having regard to the analysis in L. M. L. Foods Inc., supra, on whether the employees in that bargaining unit have at some point signified their desire for or acceptance of the contemplated change in bargaining agent.

39. Although it is not an everyday occurrence, trade unions do from time to time enter into arrangements under which they consolidate their operations, anticipating that the functions of some or all of them will in future be performed by one of the participants or by an entity to be created. The collective bargaining consequences of such transactions may never become the subject of legal proceedings if the employees in the bargaining unit are supportive of representation by the intended successor and their employer does not question that support. Particularly where there is a non-contentious internal reorganization of trade union locals within a single parent trade union, employers are often prepared to take the word of the trade union officials with whom they have been dealing that, when it comes time for the collective agreement to be renewed, it would be appropriate to substitute the name of another local trade union for that of the incumbent bargaining agent. Technically, this amounts to the voluntary recognition of the substituted or successor trade union in circumstances in which there is an implied abandonment of bargaining rights by the former or predecessor bargaining agent. The interests of the affected bargaining unit employees are fully protected in those circumstances by section 60 of the Labour Relations Act. It is only when their employer refuses to recognize the proposed successor as the exclusive bargaining agent of employees in a particular bargaining unit that resort to section 62 (or to a "friendly" displacement certification application) becomes necessary with respect to that unit. If a trade union ceases to exist, then its bargaining rights cease to exist and its collective agreements cease to operate except to the extent that some other trade union can secure a declaration under section 62. When trade unions engage in reorganization, however, they are prudent to keep each predecessor trade union in existence until its bargaining rights for each of the bargaining units it represents have come into the hands of the contemplated successor by means of certification, voluntary recognition or declaration under section 62.

40. From the perspective described in Astgen et al. v. Smith et al., supra, Local 206 could not have ceased to exist unless with the unanimous approval of all of its members or in accordance with the provisions of the "constitution" by which those members were bound. That constitution consisted of both the bylaws of Local 206 and the constitution of the UFCW. The constitution of the UFCW clearly contemplates that a local will not cease to exist unless its charter is either surrendered or revoked. Article 31 deals explicitly with the matter of a local's going out of existence. There is no evidence that the steps contemplated by that Article have been taken by or with respect to Local 206. It therefore remains in existence as an "organization". It is still an organization, moreover, which was "formed for purposes that include the regulation of relations between employees and employers", having regard to the provisions of the constitution and bylaws by which it is governed. There is no evidence that those provisions have been altered so as to change the purposes of the organization. At least some of its remaining members are employed, so it is an organization "of employees". In other words, Local 206 satisfies all of the express requirements of the definition of "trade union" in clause l(l)(p) of the Act. It is argued, nevertheless, that Local 206 has ceased to be a "trade union" within the meaning of that Act.

41. It is said that Local 206 cannot still be a trade union if it has no officers, which is said to be the case because having regard to a provision of the merger resolution purported to bring the terms of office of all officers of Local 206 to an end in November of 1986. Prior Board decisions have said that to be a "trade union" an organization must be "viable" and that viability requires that the organization have officers or agents acting on its behalf: see generally The Public Utilities Commission of the Borough of Scarborough, [1982] OLRB Rep. Apr. 609 at paragraphs 9 and following. The focus of the Board's concern in that regard, particularly since the CSAO decision, has been simply on whether the organization has one or more officers or agents through which it has functioned or could function, rather than on whether all of the officers contemplated by the organization's constitution have been filled in precisely the manner contemplated by that constitution. Here, Mr. Springall has been acting as the agent of the Local without there having been any challenge to his authority to do so. There is no evidence that any of the officers of Local 206 actually resigned their offices. It is not entirely clear, having regard to the constitution and bylaws which govern Local 206, how either the merger resolution itself or any action of the International under Article 8(J) could have removed those officers from office. Having regard to the language of Article 8(J), it is hard to see how such removal could be accomplished by "waiving" any of the provisions of Articles 34 and 35, which deal with the election and term of office of Local union officials. In any event, it is not apparent how removal from office of the officers of Local 206 was in any way "necessary to effectuate the merger", which is a prerequisite to any waiver under Article 8(J) of any provision of Articles 39 and 35. Indeed, the continuation in office of an adequate contingent of officers was necessary to "effectuate the merger". In any event, the parent union has officers. They have the power to impose trusteeship on Local 206, and thereby put in place an effective agent, in order to "assure the performance of collective bargaining agreements or other duties" of the Local in its capacity as a bargaining representative, pursuant to Article 9(H) of the UFCW constitution. Assuming that the Board can impose a "viability" test which goes beyond asking simply whether there is an "organization", there can be no reasonable concern here that the organization is or is likely to be without agents through whom it can act. In all of the circumstances, any uncertainty in the status of Local 206's officers is not a reason to conclude that it is not a "trade union" within the meaning of the Labour Relations Act.

42. It was also suggested that we should find Local 206 had ceased to exist as a trade union

because it had failed to call or conduct meetings of its executive or membership, because it no longer had any assets and because the number of persons still holding membership in the Local was a small fraction of what the Local's total membership had once been. Nothing in the Act requires that an organization have a particular level of assets or number (greater than 2) of members or that it hold meetings of any particular kind with any particular frequency in order to be a "trade union". A supposed organization may be found not to be a trade union or to have ceased to be a trade union if it is unable to produce a copy of its constitution or otherwise show that there is a "complex of contracts" in place: Footwear Fashions Limited, [1981] OLRB Rep. April 454; Center Tool & Mold Company Limited, [1985] OLRB Rep. May 633. The recital of considerations in paragraph 3 of the Board's decision in Allbright Platers Limited, [1972] OLRB Rep. Aug. 784 is merely descriptive of the basis on which the Board there came to the conclusion that an organization had actually ceased to exist. It does not constitute an additional series of tests which must be met by an organization which continues in existence in order to continue to qualify as a trade union within the meaning of the Act. As the Board observed in L.M. L. Foods Inc., supra, at paragraph 39:

The Board will not lightly come to the conclusion that an organization has ceased to exist. For the purpose of assessing a question of that kind, the Board looks to whether the vestiges of an organization remain and, particularly, whether the organization has officers of some kind continuing to act with apparent authority. Dutch Laundry and Dry Cleaners Ltd., [1968] OLRB Rep. April 45.

A trade union may be inactive without becoming non-existent. On the evidence before us, Local

206 continued to exist as a "trade union" within the meaning of the Labour Relations Act when it

made its request to the Minister that he appoint a conciliation officer.

43. Finally, there was the argument that when it made its request to the Minister, Local 206 was not the trade union the Board certified or thought it had certified in December 1987. This argument turned also on the changes in assets and numbers of members which Local 206 had undergone between the time it applied for certification and the time it applied to the Minister for an appointment of a conciliation officer. There is no suggestion that there is some other entity which is the same organization as was certified by the Labour Relations Board in December of 1987. The argument seems to be that to be and remain certified a trade union must not only continue to exist but must maintain the size and wealth it had when it applied for certification. The Labour Relations Act places no such limitation on the continuation of a trade union's bargaining rights. Indeed, the whole thrust of the Act is that the continuation of a trade union's bargaining rights for a bargaining unit is something which is ultimately determined by the employees in that bargaining unit. It would be inconsistent with that perspective that a trade union could lose bargaining rights for employees of one bargaining unit because it had lost (or, perhaps, gained) bargaining rights in a number of other bargaining units because of the wishes of the employees in those other units.

44. The fact that Local 206 intends ultimately to go out of the business of representing employees does not affect its current right to represent the employees in the subject bargaining unit. It has not abandoned its right to represent employees in that unit, nor has it abandoned its obligations in that regard. It has not gone out of existence as a trade union and it does not intend to go out of existence so long as it continues to have bargaining obligations.

45. In short, at the time it made its request to the Minister Local 206 continued to exist as a trade union with the bargaining rights which had been conferred on it by the Board in December of 1987 with respect to employees of Knob Hill Farms. Accordingly, we concluded that the Minister did have the authority to appoint a conciliation officer at its request.

DECISION OF BOARD MEMBER R. W. PIRRIE; February 9, 1989

1. I dissent from the majority decision.

2. At the time of its certification on December 22, 1987, Local 206 had taken the decision, duly approved by its membership and the International UFCW, to merge itself into Local 175 with effect from November 1, 1986.

3. A letter dated January 15, 1988 on Local 206 stationery over the signature of Mr. Springall notifying Knob Hill Farms of his wish to commence bargaining is the only action taken in the name of Local 206 vis-a-vis this bargaining unit. Every other action vis-a-vis Knob Hill, except for the "request for appointment of a conciliation officer" on August 25, 1988 which led to this proceeding, has been in the name of Local 175.

4. Indeed this proceeding only occurred because Local 175 failed in its earlier attempt to have a conciliation officer appointed. In that first reference, Local 206 filed a reply which Mr. Springall signed setting itself out as the "predecessor" trade union. Further, in connection with this second reference Local 206 requested of the Board that it reconsider its decision in the December 22, 1987 certification application and substitute Local 175 in its stead.

5. It is my view that the UFCW has conveniently breathed life back into Local 206; a life which since its merger into Local 175 two years ago, has not had as its purpose the regulation of relations between employees and employers.

6. There was and still is a logical and correct step for the UFCW to take to rectify the dilemma in which it has placed itself. Local 175 should bring a section 62 application before the Board to have itself declared the successor union to Local 206 with respect to the Oshawa Knob Hill Farms bargaining unit.

7. In my view, for the Board to sanction any other course of action which continues Local 206 in a role as bargaining agent for the Knob Hill Farm bargaining unit flies in the face of the UFCW's own intentions and actions and the realities of the UFCW/Knob Hill situation.