Local Union No. 582, International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, AFL-CIO v. The Corporation of the City of Brantford, 1987 CanLII 3090

[1987] OLRB Rep. September 1125

3075-86-R Local Union No. 582, International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, AFL-CIO, Applicant v. The Corporation of the City of Brantford, Respondent v. The Canadian Union of Public Employees, Intervener

BEFORE: Owen V. Gray, Vice-Chair, and Board Members R. M. Sloan and R. R. Montague.

APPEARANCES: T. W. G. Pratt, J. C. G. Thomson and J. C. Fuller for the applicant; C. C. White for the respondent; no one for the intervener.

DECISION OF THE BOARD; September 10, 1987

1. This is an application for certification. In our decision herein dated April 6, 1987, we found that the applicant ("Local 582") is a trade union as defined by clause l(l)(p) of the Labour Relations Act ("the Act"). The issue addressed in this decision is whether section 13 of the Act prohibits the Board from certifying Local 582, having regard to the following provision in its local constitution:

Any person applying for membership in this Local must be of good moral character and reputa­tion, and unless waived by the International for proper cause upon application by the local, must have been a resident for at least eighteen months immediately preceding his application within its jurisdiction and be a citizen of the United States or Canada.

[emphasis added]

2. We raised this issue of our own motion following the hearing which was concerned with whether the applicant is a trade union, in our decision of April 6, 1987:

3. Neither the Board nor any of the parties focused attention on the citizenship requirement in the applicant's constitution, a requirement which did not appear in the constitution of the applicant in Shaw Festival Theatre Foundation Canada, supra. No reference was made during our hearing to the Board's decision in Victor Productions Limited and Co., [1971] OLRB Rep. Oct. 685, in which the Board concluded that the Act prohibited certification of another local of the IATSE because a similar citizenship requirement appeared in the parent union's constitution. The relevant section of the Act was then section 10, which read, in part:

The Board shall not certify a trade union ... if it discriminates against any person because of his race, creed, colour, nationality, ancestry or place of origin.

Following its earlier decision in The Journal of Publishing Company of Ottawa, Limited, [1970] OLRB Rep. Dec. 925, the Board concluded that a citizenship requirement constituted discrimination on the basis of race, nationality, ancestry or place of origin.

6. The section on which the Board acted in Victor Productions Limited and Co., supra, remained in the present Act as section 13 until December 18, 1986 when, by section 23(1) of the Equality Rights Statute Law Amendment Act, 1986, S.O. 1986, c.64, it was amended by striking out "his race, creed, colour, nationality, ancestry, age, sex or place of origin" in the fifth and sixth lines and inserting in lieu thereof "any ground of discrimination prohibited by the Human Rights Code, 1981 or the Canadian Charter of Rights and Freedoms." Sections 1 and 8 of the Human Rights Code, 1981, S.O. 1981, c.53 provides:

7. Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, age, marital status, family status or handicap.

8. No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

9. In the circumstances, we would be remiss if, before embarking on the elaborate inquiry into the list and the scope of the applicant's craft which will be necessary if the applicant trade union is not disqualified from certifica­tion, we did not consider whether this applicant is a trade union which can­not be certified because it discriminates on the basis of citizenship.

10. Accordingly, we direct that this matter be relisted for hearing before this panel in order to consider whether the applicant is a trade union to which section 13 of the Act applies because it discriminates on the basis of citizen­ship.

11. In Victor Productions Limited and Co., [1971] OLRB Rep. Oct. 685, the Board found that Local 58 of the International Alliance Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada ("IATSE") or ("the Alliance") could not be certified because the then constitution of IATSE, Local 58's parent union, restricted membership to "citizens of the United States, or Canada, or any territory in which the Alliance exercises juris­diction, and when application is made in Canada, to any British subject". James Fuller was then President of Local 58. He still is. At the hearing directed in our decision of April 6, 1987, he testi­fied that at Local 58's request, IATSE responded to the decision in Victor Productions Limited and Co., supra, by amending the membership provisions its constitution to eliminate the citizenship requirement and prohibit discrimination on certain grounds ,so that the relevant portions with respect to membership thereafter provided:

Article 1

Section 3. Membership

The membership of this Alliance shall comprise the members in good standing of such local unions as shall hold a charter from this Alliance, and said affiliated local unions and such persons who, having been members of any local union which has had its charter revoked or sus­pended, shall retain their membership in this Alliance in the manner provided in these laws, and such persons as may acquire and hold direct membership in this Alliance pursuant to these laws. Eligibility for membership in this Alliance shall be restricted to residents of the United States or Canada, or any territory in which the Alliance exercises jurisdiction.

There shall be no discrimination against any person in respect to membership in this Alliance by reason of race, color, creed, national origin, sex or age.

[emphasis added]

These amended provisions came into effect on August 16, 1974. IATSE Locals were advised to amend their existing local constitutions to conform with these new provisions. Local 58 did. Local 582 did nothing. Its current local constitution is still the one which came into effect on April 30, 1974, prior to the critical amendment to the parent constitution; it had not been amended between that date and the date this application was filed.

4. The Board's decision in The Journal Publishing Company of Ottawa Limited, [1970] OLRB Rep. Dec. 925 suggests that, by virtue of what is now subsection 103(4) of the Act, positive evidence of admission into membership of non-citizens in disregard of the citizenship requirements in its constitution might relieve a trade union of the disability which would otherwise result from there being such a requirement in its constitution. If that is correct, which we need not decide, the evidence before us in this case falls short of the standard set by that decision. The only evidence on this point is that of Jim Thompson, Local 582's business manager. He has been a member of the local since 1950. He is not aware of the local's ever having rejected an application for membership because of the applicant's citizenship. Equally, he is not aware of there being any current member who is not a citizen of the United States or Canada nor of any successful applicant for membership who has not been a citizen of one of those two countries.

5. In this case, the critical issue is the effect to be given to the membership and anti-dis­crimination provisions of the constitution of the "parent" union - IATSE. The respondent argues that no effect should be given to those provisions because under the Labour Relations Act a local union is treated as having an identity separate and distinct from that of a "parent" union with which it is affiliated. While that is true, the enquiry here is not whether Local 582 would be treated as distinct from IATSE so that, for example, a 6 months' bar on further certification applications by Local 582 would not be a bar to an application with respect to the same employees by IATSE or another of its local unions. The enquiry here is whether the rules which govern the internal affairs of Local 582 with respect to eligibility for membership include a citizenship requirement. The res­pondent says that the citizenship requirement set out in the local constitution is one of the rules which govern the applicant. The applicant says it is not.

6. We have already reproduced the portions of Article 1, Section 3 of the current IATSE constitution, which provides that members of local unions and the local unions themselves are all members of the Alliance. Article 2, section 1 of that constitution provides:

Supreme Law

This Constitution and By-Laws shall be the supreme law of this Alliance and of its constituent members.

The status of local unions within the Alliance is addressed in a number of provisions, including the following:

Article 2 (Government):

Section 4. Local Unions

Each affiliated local union, subject to the laws of this Alliance, shall exercise full and complete control over its own membership and affairs. This provision shall not be construed to confer upon local unions the power to enact laws inconsistent with any portion of this Constitution and By-Laws.

Article 18 (Charters):

Section 1. Power to Grant Charters

The power to grant charters of affiliation to subordinate local unions shall be vested in the Con­vention and in the President of this Alliance when a Convention is not in session.

Section 8. Acceptance of Constitution and By-Laws

Any local union accepting and holding a charter from this Alliance, and becoming an affiliate in membership, does so only upon condition that it recognizes the supreme jurisdiction of the International Alliance and accepts the Constitution and By-Laws of the Alliance as its funda­mental law, reserving to itself no rights of self-government inconsistent with the Constitution and By-Laws of the Alliance.

Section 11. Revocation of Charters

d. The charter of any affiliated local union may be suspended or revoked for violations of the laws of this Alliance, as contained in this Constitution and By-Laws in the manner provided her­eafter in Article Twenty.

Article 19 (Powers and Duties of Local Unions):

Section 2. Home Rule

Home Rule is granted to all affiliated local unions of this Alliance and this shall be construed to confer upon each local union the authority to exercise full and complete control over its own affairs; provided, however, that no local union shall take any actions or adopt any laws which conflict with any portion of this Constitution and By-Laws.

Section 3. Constitution and By-Laws

The affiliated local unions of this Alliance may adopt individual Constitutions and By-Laws for their own government, but such laws or any proposed amendments thereto must be submitted to the International President for his approval before adoption. No constitutional provision or by-law shall be adopted by any affiliated local union without such approval by the International President.

Any local union failing to comply with the provisions of this Section shall be punishable by a fine, or suspension, or revocation of its charter.

In the event that any affiliated local union shall adopt any law without the approval herein above provided for or inconsistent with the provisions of this Constitution and By-Laws, such local law shall be void and of no effect and the members of the local union shall not be bound thereby.

Article 19, section 24 provides that when the charter of an affiliated local union is revoked, all of the property of the local becomes the property of the Alliance. Article 7, section 16 gives the Inter­national President the power to revoke the charter of a local union pursuant to Article 18, section 11 or to declare that a state of emergency exists in a local and take over control of the property and affairs of the local. There can be no doubt that under the IATSE constitution, affiliated local unions are subordinate to and can have no meaningful existence independent of the Alliance and the provisions of the IATSE constitution.

7. In addition to the provision in issue, the local constitution of Local 582 contains these provisions:

Article 1, Section 2:

This Local has been established and exists by virtue of a Charter issued by the International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada (hereafter called the Alliance or International) and pursuant to the Constitu­tion and By-Laws of the International.

Article 5, Section 1:

The International Constitution and By-Laws, as well as this Constitution and By-Laws, shall be the supreme law of this Local.

The respondent argues that the International Constitution and Bylaws referred to in these provi­sions can only be the International Constitution and Bylaws in existence in April 1974 at the time Local 582's current constitution was adopted. Thus, it is said, the provisions of the current IATSE constitution cannot be treated as incorporated by reference into the Local's constitution. Even if that is so (which we are inclined to doubt), it does not lead to the conclusion that the Local 582 is not governed by the current IATSE constitution in the conduct of its affairs. Even if given the lim­ited meaning contended for by the respondent, these provisions make it clear (if it would not otherwise have been clear) that, as of April 30, 1974 at least, Local 582 was bound by the provi­sions of the IATSE constitution then in effect. A consolidation of those provisions is in evidence before us, as are consolidations made at various other subsequent times as amendments were made. As a member of IATSE bound by the terms of that constitution, Local 582 became bound by properly effected amendments to that constitution as they were made thereafter and, so, must now be bound by the constitutional provisions by which other members of IATSE are currently bound. Thus, Local 582 is bound by the provisions of the current IATSE constitution whether or not that is the meaning of Article 5, section 1 of its local constitution.

8. While the current IATSE constitution expressly prohibits a local union's adopting an inconsistent local constitution, it does not expressly address the status of a once consistent local constitution which has become inconsistent as a result of amendments to the IATSE constitution. Article 19, section 2, however, expressly prohibits a local union's acting in a manner inconsistent with the IATSE constitution. Having regard to the relationship between IATSE and its locals, the practical result is that when a provision of the local constitution is in conflict with a provision of the IATSE constitution the latter will prevail whatever the local constitution may say, since so long as the local is affiliated with IATSE is it bound as a member by the IATSE constitution and liable to severe sanctions if it violates the provisions of that constitution.

9. Membership in a local is membership in the Alliance; thus, discrimination in respect of membership in a local is discrimination in respect of membership in the Alliance. Discrimination with respect to membership in Local 582 by reason of race, colour, creed, national origin, sex or age would be a violation by Local 582 of the IATSE constitution, whether or not the constitution of Local 582 mandates such discrimination. Having regard to the analysis in Victor Productions Limited and Co., supra, which was the impetus for IATSE's adopting its prohibition on discrimina­tion with respect to membership, it must be clear that the IATSE constitution prohibits Local 582 from discriminating with respect to membership by reason of citizenship.

10. In summary, while the applicant's local constitution requires discrimination on grounds of citizenship, the IATSE constitution prohibits such discrimination. The applicant is bound by the IATSE constitution; its provisions prevail over inconsistent provisions of the applicant's local con­stitution. Accordingly, it cannot today be said of Local 582, as it could once have been said both of it and of Local 58, that the rules by which its affairs are governed require it to discriminate on grounds referred to in section 13 of the Act. Local 58 was found "certifiable" in Harbourfront Corporation, [1982] OLRB Rep. Nov. 1624, when it demonstrated that it was no longer governed by the rules found offensive in Victor Productions Limited and Co., supra. We find that Local 582 is not governed by a requirement restricting membership to citizens of any particular country and that, accordingly, it has not been shown to be a trade union to which section 13 of the Act applies.

11. The parties are prepared to agree that the appropriate bargaining unit for the purpose of this application consists of:

All stage employees of the respondent at the Capitol Theatre at 88 Dal­housie St. in the City of Brantford, save and except technical Director and Manager and those persons above the rank of Technical Director and Man­ager.

It transpires, however, that the parties have a profound disagreement about which of the respon­dent's employees at the Capitol Theatre on the date of the applicant were "stage employees'. It is apparent that this disagreement is more a disagreement about the meaning of "stage employee" than a disagreement about what the persons in question were hired to do or did do on the appli­cation date. The respondent takes the position that the persons it employed as "stage employees" on the date of the application were the 29 people sent to it by the applicant in response to a request for 4 "carloaders" and 25 "stage hands". The union says that of the 25 "stage hands" who set up and later dismantled the production at the theatre, only 16 remained to actually "operate" the show. It says that only those 16 are "stage employees".

12. We would be disinclined to adopt the distinction advocated by the union in defining the appropriate bargaining unit unless compelled to do so by subsection 6(3) of the Act. That subsec­tion provides:

(3) Any group of employees who exercise technical skills or who are members of a craft by rea­son of which they are distinguishable from the other employees and commonly bargain sepa­rately and apart from other employees through a trade union that according to established trade union practice pertains to such skills or crafts shall be deemed by the Board to be a unit appro­priate for collective bargaining if the application is made by a trade union pertaining to such skills or craft, and the Board may include in such unit persons who according to established trade union practice are commonly associated in their work and bargaining with such group, but the Board shall not be required to apply this subsection where the group of employees is included in a bargaining unit represented by another bargaining agent at the time the appli­cation is made.

It will be necessary for this applicant to satisfy all the requirements of this subsection in order to have the benefit of it: see Harbourfront Corporation, [1982] OLRB Rep. Nov. 1624; Centrestage Toronto, [1985] OLRB Rep. Nov. 1560; and, The Stratford Shakespearean Festival Foundation of Canada, [1986] OLRB Rep. Nov. 1577. To have its view of the matter prevail, the applicant will have to demonstrate, among other things, that stage hands who operate productions have skills which distinguish them from carloaders and from stage hands who assemble and disassemble prod­uctions and that stage hands who operate productions "commonly bargain separate and apart from" and are not "commonly associated in their work and bargaining" with either carloaders or stage hands who assemble and disassemble productions.

13. While the parties had at one point jointly requested that the Board appoint a labour relations officer "to inquire into the duties and responsibilities of the thirteen individuals chal­lenged by the applicant to determine if they are members of this craft unit", this only begs the real question – namely, what sorts of stage hands or other employees fall within the craft unit (if any) which will be appropriate under subsection 6(3) of the Act on a certification application by the applicant? Until that question is answered, any inquiry into the duties and responsibilities of the particular persons employed by the respondent on the application date would be premature.

14. Accordingly, we direct that this matter be relisted to hear the evidence and argument of the parties with respect to the composition of the appropriate bargaining unit and all other matters remaining in issue.