Labourers' International Union of North America, Local 527 v. L'Abbe Construction (Ontario) Ltd., 1987 CanLII 3101

[1987] OLRB Rep. October 1191

2284-86-R Labourers' International Union of North America, Local 527, Applicant v. L'Abbe Construction (Ontario) Ltd., Respondent v. Canadian Construction, Building Maintenance and General Workers' Union, (N.C.C.L.), Intervener

BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members W. H. Wightman and J. Redshaw.

APPEARANCES: L. Steinberg, M. Martins and G. Mu/un for the applicant; Francois L'Abbe and Michael S. Ruddy for the respondent; Paul A. Web ber, Heather Hobart and Clive Thomas for the intervener.

DECISION OF G. T. SURDYKOWSKI, VICE-CHAIR, AND BOARD MEMBER W. H. WIGHTMAN; October 23, 1987

1. By decision dated December 23, 1986, a differently constituted panel of the Board dealt with three preliminary issues relating to the applicant's assertion that the Canadian, Construction, Building Maintenance and General Workers' Union (NCCL) (hereinafter the "Canadian Construction Union"), which filed an intervention, is not entitled to participate in these proceedings. Subsequently, a hearing was held in Ottawa with respect to the applicant's assertion that:

(a) the Canadian Construction Union, though once a trade union, is no longer one within the meaning of the Labour Relations Act and that the agreement between it and the respondent is therefor not a collective agreement within the meaning of the Labour Relations Act and, accordingly, cannot constitute a bar to this application;

(b) the Canadian Construction Union has abandoned any bargaining rights that it may have held with respect to employees of the respondent who were affected by this application, and that the agreement purported to be a collective agreement between the Canadian Construction Union and the respondent is not one and therefore cannot constitute a bar to this application;

(c) the respondent has been involved with the Canadian Construction Union in a manner that is contrary to clause (a) of section 48 of the Act and that the agreement between them must therefore be deemed not to be a collective agreement for purposes of the Act.

In essence, the applicant submits that the Canadian Construction Union is neither a "real" trade union, nor has it acted like one.

A. TRADE UNION "STATUS"

2. An organization is a "trade union" if it fits the definition in section 1(l)(p) of the Labour Relations Act. "Status" as a trade union merely connotes that an organization has been found by the Board to be a trade union (see Board of Education for the City of York ("York No. 1"), [1984] OLRB Rep. Sept. 1279). As indicated at paragraph 6 of the Board's decision dated December 23, 1986 in this matter, the Canadian Construction Union has been determined by the Board to be a trade union within the meaning of the Act on at least two prior occasions: Pillar Construction Limited, (unreported decision dated July 3, 1969 in Board File No. 16321-69-R) and L'Abbe Construction (Ontario) Ltd. (unreported decision dated February 8, 1974 in Board File No. 5024-73-R). In the latter case, the Canadian Construction Union was certified as the exclusive bargaining agent for all carpenters, carpenters' apprentices and construction labourers in the employ of the respondent in what is Board Area 15, save and except non-working foremen and persons above the rank of non-working foreman. Subsequently, the Canadian Construction Union entered into a number of agreements with the respondent, the most recent of which is said, by the Canadian Construction Union and the respondent, to be a collective agreement which is a bar to this application.

3. Section l(l)(p) of the Labour Relations Act provides that:

"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.

In determining whether or not an organization of employees constitutes a trade union within the meaning of the Labour Relations Act, the Board must not impose any requirements, structural or otherwise, which do not have their basis in the Act (Re CSAO National (Inc.) and Oakville Trafalgar Memorial Hospital Association 1972 CanLII 563 (ON CA), [1972] 2 O.R. 498 Ont. C.A.). Consequently, except as required by the Act, the Board does not inquire into the structure or internal operation of a trade union.

4. Except as recognized by, and for the purposes of labour relations legislation, like the Labour Relations Act, a trade union is not an entity known to law. Apart from its special status under the Act or other legislation, a trade union is essentially a club or voluntary association (for our purposes those terms are interchangeable) which has no existence in law separate and apart from its members. Even under the Act, a trade union is no more than a group of employees who have agreed, each with every other, to join or associate together for purposes which include the promotion of certain common objectives in their employment relations with their employer for their collective benefit. The terms and conditions of the agreement that binds these employees together, and which creates the organization, constitute a contract. Because a trade union has no existence in law separate and apart from that of its members and because a trade union has no right to contract except as provided by legislation, this contract of association is not one between members and the trade union. Instead, it is a complex of contracts between each member and every other member of the organization. This contract, which section 84 of the Act contemplates will be in writing, is commonly called a "constitution" (see Astgen et al. v. Smith et al. 1969 CanLII 488 (ON CA), [1970] 1 O.R. 129 (Ont. C.A.)). Although the requirement that a trade union be an "organization" implies that it must have some structure, and the nature of the rights, obligations and duties that the Act provides trade unions with implies that there are certain characteristics that it must have, neither the Act, nor anything else, specifies how an organization must be structured or operated in order to be a trade union within the meaning of the Act.

5. Once found to be a trade union within the meaning of the Labour Relations Act, section 105 of the Act establishes a rebuttable presumption that that organization of employees is a trade union for the purposes of any subsequent proceedings before the Board. However, an organization of employees can cease to be a trade union and, if it does, its bargaining rights and any collective agreement to which it is a party will also cease to exist as such (see L.M.L. Foods Inc., [19851 OLRB Rep. Aug. 1252). Accordingly, it is of fundamental importance that the contractual relationship between members as set out in a trade union's constitution, once created, be maintained. Substantial and persistent failure to abide by its constitution may be evidence that an organization has dissipated or abandoned its constitution, or that its members have ceased to be governed by the constitution that previously made it a "trade union" in such a way that it no longer is one (see Center Tool & Mold Company Limited [1985] OLRB Rep. May 633; Footwear Fashions Limited, [1981] OLRB Rep. April 454).

6. There are four ways in which a club or voluntary association, like a trade union, can be dissolved:

(a) if an event occurs which the constitution prescribes will result in dissolution;

(b) if all of its members agree that it be dissolved;

(c) if a court or tribunal having jurisdiction to do so orders that it be dissolved; or

(d) if the foundation upon which the organization was founded is lost

(see Re William Denby & Sons Ltd. Sick and Benevolent Fund; Rowling et al. v. Wilkes et. al., [1971] 2 All E.R. 1196 (Ch.D.)). In this proceeding, we are concerned with the last of those four.

7. Not every failure to comply with the constitution will result in the dissolution of the organization and the concomitant loss of trade union identity or "status". It would be impractical and unrealistic to expect any organization, particularly one not run by lawyers, to adhere to the letter of its constitution. Moreover, many trade unions would find themselves on a merry-go-round of losing and regaining "status" as such, a situation which would cause chaos in the labour relations of this province. Furthermore, to require a trade union to abide by the letter of its constitution would require the Board to engage in investigations relating to the internal structure and operation of trade unions on an unprecedented and unjustified level of detail. Such matters of internal structure and operation of a trade union are best and properly left to its members except where the Board must become involved in order to administer or apply the Labour Relations Act (as, for example in complaints alleging breaches of sections 48, 68 or 69). As the court pointed out in Re William Denby Sick Fund, supra, the foundation or substratum of an association (like a trade union) does not disappear because its officers misinterpret the constitution or because the officers, or persons purporting to act as its officers, act in a manner which appears to be inconsistent with the provisions of the constitution. Nor will mere inactivity lead to that conclusion, particularly where a less drastic one is available. Fundamentally, a trade union is its members and the complex of contracts between each of them. So long as an organization, having become a trade union, de facto continues to operate and to represent its members, regardless of the apparent quality of that representation, in their relations with their employer, it continues to be a trade union. Any issue relating to the intemal structure or operation of a trade union is one between its members, to be raised by any of those members who wish to do so, either within the organization itself or in the appropriate judicial forum, which forum is not the Ontario Labour Relations Board.

8. Counsel for the applicant argued that the Canadian Construction Union has virtually ignored its constitution in every significant respect and that it has, as a consequence, not "existed" as a trade union or at all as a viable organization for several years. He asserts that there was no constitutional authority for any of those things that a president and general business manager have done for some nine years and that all those things, including the purported collective agreement upon which the respondent and the Canadian Construction Union rely in this proceeding are, in effect, nullities. Counsel for the Canadian Construction Union, supported by counsel for the respondent, agrees that the organization has not abided by the letter of its constitution but submits that the breaches are more technical rather than fundamental in nature and that the Canadian Construction Union continues to be a functional, viable trade union.

9. On the evidence, there is no doubt that the letter of constitution of the Canadian Construction Union has not been followed. Indeed the breaches of the constitution have been significant. For example, Article 6 of the constitution provides that there be four executive officers; President, Vice-President, Sargeant at Arms, and General Business Agent. Article 8 provides that these four executive officers constitute the organization's executive committee, which committee is to direct its affairs. Article 8 also stipulates that vacancies on the executive committee be filled in accordance with section 4 of Article 5. Section 3 of Article 5 provides that vacancies in executive offices be filled by appointment by the executive committee until the next regular meeting. The evidence reveals that between some time in 1978 and the end of April, 1987, only two of the executive offices have been filled, even ostensibly. During that period, Marcel Savoie has acted as President and Clive Thomas has acted as General Business Agent. There was no evidence that there was any attempt made to fill either of the other two offices until after these proceedings began.

10. Section 3 of Article 10 of the constitution stipulates that regular general meetings be held in February and August of each year. Between 1978 and May 1987, general meetings of the Canadian Construction Union were held only on February 8, 1978, April 2, 1980, November 3, 1982, February 10, 1983 and February 15, 1984. Consequently, during a period in which they were 19 meetings contemplated by the organization's constitution, there were only five held. None of those were held within the last three years.

11. Pursuant to Article 5 of the constitution, a general election of officers must be held at the first regular meeting (that is, in February) of each year. There were no elections, as such, at any of the meetings held between 1978 and May 1987. In fact, there was no evidence of when the last such election was held. Mr. Thomas was specifically asked when the last election was held. He could not recall. Indeed, it appears that Mr. Savoie, the current President, has never been elected to that office.

12. Section 1 of Article 9 contemplates that stewards be elected. On the evidence before the Board, Guy Sabourin has been acting as the steward for the employees of the respondent represented by the Canadian Construction Union pursuant to an appointment in July 1986, by Messrs. Savoie and Thomas acting as the executive committee. Although Article 9 contemplates temporary appointments "when necessary", there is no explanation why no election was held either at the time or in the ten and a half months (at the time of the hearing) since.

13. Article 12 provides that each collective agreement to which the Canadian Construction Union is a party must be signed on its behalf by the President, General Business Agent, and at least one representative of the bargaining unit concerned. No employee of the respondent represented by the Canadian Construction Union has ever signed any other collective agreements that apply to that bargaining unit.

14. Finally, we note that the evidence suggests that the employees of the respondent in the bargaining unit represented by the Canadian Construction Union have never been provided with a copy of either the constitution or the collective agreement that governs the terms and conditions of their employment. Indeed the evidence suggests that the Canadian Construction Union has made little effort to communicate with those members regarding their employment relations with the respondent and was less than diligent in policing the collective agreement.

15. On the other hand, there is no evidence before the Board to indicate that any member of the Canadian Construction Union has made any complaint or taken any action with respect to any of the aforesaid. For example, there is no indication that any member has complained that there have not been sufficient general meetings. There has been no complaint by any member about the manner in which Mr. Savoie and Mr. Thomas either took or remained in office as President and General Business Agent respectively. To the contrary, the minutes of the general meetings held on February 8,1978, April 2,1980, November 3, 1982, February 12, 1983, and February 15, 1984 reveal that the persons present at each continued each of the executive officers then in office by motion made and carried. The evidence does not reveal that any member has complained about the appointment or selection of stewards, about the manner in which collective agreements have been negotiated or executed, or about anything having to do with a representation by the Canadian Construction Union. We cannot accept the suggestion of counsel for the applicant that no one knew enough to complain. On the evidence, the employees of the respondent know that it is a condition of their employment with the respondent that they become, as they all did, members of the Canadian Construction Union. They also know that the terms and conditions of their employment are dictated by a collective agreement. This is, in our view, a sufficient basis for making inquiries or complaints but there is no evidence before the Board that any one other than Mr. Stephen Broomer, about whom more will be said later, ever made any inquiry at all.

16. Messrs. Savoie and Thomas, as its executive officers and executive committee, have directed its affairs. Executive committee meetings have been held monthly, dues have been remitted by the respondent and received and deposited in the bank account by the Canadian Construction Union. It has issued membership cards and income tax receipts for dues and received. Financial records and statements have been kept and prepared for each year. Finally, it has, as discussed below, maintained a collective bargaining relationship with the respondent in furtherance of its purpose of representing those of its members who are employed by the respondent. Consequently, although the Canadian Construction Union's adherence to its constitution has been less than exemplary, it cannot be said that it has entirely abandoned its constitution or that it has ceased to operate as a trade union. In our view, the spirit and essence of the contractual relationship between members of the Canadian Construction Union has been maintained and it has de facto operated as a trade union within the meaning of section l(l)(p) of the Act. In the result, we find that the Canadian Construction Union remains a trade union within the meaning of the Labour Relations Act.

B. ABANDONMENT OF BARGAINING RIGHTS

17. In a forceful argument, counsel for the applicant attacks the right of the Canadian Construction Union to bargain on behalf of the employees affected by this application on the basis that it has abandoned any bargaining rights it once had with respect to L'Abbe Construction (Ontario) Ltd. and that the agreement between them is therefore not a "collective agreement" that can constitute a bar to this application. Counsel argues that the Canadian Construction Union's level of activity, both in bargaining for and enforcing collective agreements with the respondent, is below that which must be required of a trade union if section 3 of the Act is to have any real meaning. Counsel for the Canadian Construction Union and counsel for the respondents submit that there has been an active ongoing collective bargaining relationships between their clients and the manner in which the parties choose to bargain is their business.

18. The Act, in section 1(l)(e), provides that:

"collective agreement means an agreement in writing between an employer or an employers organization, on the one hand, and a trade union that, or a council of trade unions that, represents employees of the employer or employees of members of the employers' organization, on the other hand containing provisions respecting terms or conditions of employment or the rights, privileges or duties of the employer, the employers' organization, the trade union or the employees, and includes a provincial agreement.

19. A trade union may abandon bargaining rights after it has obtained them. Whether or not a trade union has abandoned bargaining rights is a question of fact to be determined on the basis of the evidence in each case (See John Entwistle Construction Ltd.,[1979] OLRB Rep. Nov. 1096 being a reconsideration of the Board's decision at [1979] OLRB March 211; application for judicial review dismissed in Re Carpenters District Council of Lake Ontario and Hugh Murray (1974) Ltd. et. al; Re Labourers International Union of North America and John Entwistle Construction Ltd. et. al (1982) 1980 CanLII 1826 (ON HCJ), 125 D.L.R. (3d) 568 (Ont. Div. Ct.); leave to appeal to Ontarto Court of Appeal dismissed February 2,1981). The notion of abandonment of bargaining rights by a trade union is well-established in the Board's jurisprudence and is based in the expectation that a trade union, having acquired bargaining rights, will actively exercise them. Conversely, failing to use such rights may result in a finding that they have been abandoned and therefore lost. In J. S. Mechanical, [1979] OLRB Rep. Feb. 110, at paras 4 and 5, the Board outlined the principle of abandonment and set out some of the factors that it will consider in determining whether or not a trade union has abandoned its bargaining rights:

20. Over the last 20 years the principle of abandonment has been deeply entrenched in the Board's jurisprudence. Once a union has obtained bargaining rights either through certification or voluntary recognition it is expected that it will actively promote those rights. If a union declines to pursue bargaining rights it may lose them through disuse. Whether a union has abandoned its bargaining rights is a matter which must be assessed on the facts of each individual case, but once the Board is satisfied that a union has failed to preserve its rights, the union may no longer rely on them to support the appointment of a Conciliation Officer under section 15 of the Act (see Cooksville Sheet Metal, [1974] OLRB Rep. June 365; John Entwistle Construction Limited, [1972] OLRB Rep. Oct. 919; Elgin Construction Co. Limited, [1969] OLRB Rep. April 134; Guelph Cartage Company, 55 CLLC para. 18,018). As well, if a union has abandoned its bargaining rights it may be precluded from relying on them either to bar another agreement that renews itself automatically (see Catalytic Enterprises Limited, [1974] OLRB Rep. April 264; o & W-Electronics Limited, [1970] OLRB Rep. Jan. 1213; Architectural Acoustics & Drywall, [1970] OLRB Rep. Feb. 1408; N. W. Clayton Sheetmetal and Heating Co. Ltd., 119671 OLRB Rep. April 69), or to require an employer to bargain by giving notice to bargain under such an agreement (see Rainee Manufacturing Products Limited, [19671 OLRB Rep. Nov. 796). A union's abandonment might also obviate the necessity for the Board to determine the merits of a termination application (see Graphic Centre (Ontario) Inc., [1977] OLRB Rep. June 379; Northern Engineers & Supply Co. Limited, [1968] OLRB Rep. Oct. 731; Barrie Tanning Limited, [1966] OLRB Rep. May 128).

21. In assessing the bargaining relationship between the union and the employer to determine whether or not a union has abandoned its bargaining rights, the Board considers various factors. Among other possible indicators, the Board looks to the length of the union's inactivity, whether it has made attempts to negotiate or renew a collective agreement, whether the union has sought to administer the collective agreement through the grievance and arbitration provisions in the collective agreement, whether terms and conditions of employment have been changed by the employer without objection from the union as well as whether there are any extenuating circumstances to explain an apparent failure to assert bargaining rights.

22. A trade union which has in fact abandoned its bargaining rights will necessarily have not represented the employees concerned well. However, the quality of the representation provided by a trade union, though it reflects poorly upon that organization, is not, by itself, something that is of any great assistance in determining whether or not bargaining rights have been abandoned. Quality of representation may well be an issue in complaints made to the Board under section 68 of the Act; it is not an issue when the question before the Board is whether or not a trade union has abandoned those rights. Although the extent to which there has been collective bargaining is clearly a factor to be considered, the Board will not inquire into or pass judgement on the trade union's collective bargaining philosophy or the manner in which it and the employer have bargained for their collective agreement(s) for the purposes of determining whether or not the trade union has abandoned its bargaining rights (CDC Holdings Limited, [1979] OLRB Rep. Dec. 1142; The Borden Company Limited, Ingersoll, Ontario, [1976] OLRB Rep. July 379; Dutch Laundry and Dry Cleaners Ltd., [1968] OLRB Rep. April 45). That, in our view, is a matter for the parties themselves. If the members of a trade union do not like the manner in which the union is bargaining on their behalf, it is open to them to take whatever action they feel is necessary, either within the organization or under the Labour Relations Act.

23. The degree of activity that is expected of a trade union in order that it not be found to have abandoned its bargaining rights must necessarily depend on the facts of this case. However, a review of the cases reveals that it must be established that there has been virtually no collective bargaining activity at all by a trade union over a period of time before the Board will find that it has abandoned its bargaining rights (see Dutch Laundry Dry Cleaners Ltd., supra; 0 & W Electronics Limited, [1970] OLRB Rep. Jan. 1213; Cooksville Steel Limited, [1974] OLRB Rep. June 365; The Borden Company Limited, Ingersoll, Ontario, supra; Dravo of Canada Limited, [1977] OLRB Rep. Sept. 568; J. S. Mechanical, supra; CDC Holdings Limited, supra; John Entwistle Cons fruction Limited, supra; The Municipality of Metropolitan Toronto, [1986] OLRB Rep. Oct. 1448).

24. The respondent, L'Abbe Construction (Ontario) Ltd. was incorporated in 1973. It was operated as a business in the construction industry until 1977 when it temporarily discontinued its operations. In 1981, the company became active again and, with the exception of 1985, has operated a business in the construction industry in Ontario, primarily in Ottawa, continuously since that time. As noted above, the Canadian Construction Union was certified by the Board as the exclusive bargaining agent for all carpenters and carpenters' apprentices and construction labourers in the employ of the respondent in the Regional Municipality of Ottawa-Carleton and the United Counties of Prescott and Russell, save and except non-working foremen and persons above the rank of non-working foreman by certificate dated February 8, 1974. This bargaining unit description was subsequently incorporated verbatim, as the scope clause, into a collective agreement between the Canadian Construction Union and the respondent. Although Francois L'Abbe, a principal of the respondent, testified that there were prior collective agreements between the Canadian Construction Union and L'Abbe Construction (Ontario) Ltd., there were no collective agreements for any period prior to May 1, 1980 produced at the hearing. Nor was there any evidence of how many collective agreements there were, or what periods of time they covered between 1974 and May 1, 1980. Although no copy of it was produced, it is evident an agreement was in effect between May 1, 1980 and April 30, 1982. The first document relating to the collective bargaining relationship between the Canadian Construction Union and the respondent which was produced at the hearing is an amendment to the 1980-82 agreement dated June 1, 1981 which provides:

AMENDMENT

to the Collective Agreement

BETWEEN: L'ABBE CONSTRUCTION (ONTARIO) LTD.

hereinafter called

"the Company",

• and -

CANADIAN CONSTRUCTION, BUILDING

MAINTENANCE AND GENERAL

WORKERS' UNION

(N.C.C.L.), hereafter

called "the Union".

which took effect on May 1, 1980 for a term of two years to April 30, 1982.

It is hereby agreed that the collective agreement shall be amended as follows:

Section 3.01 shall be amended to read: The regular work week for carpenters and other construction trades shall be forty (40) hours and for employees paid the labourer's rate shall be forty-two and a half (42 1/2) hours.

Section 5.01 shall be amended to read: Carpenters shall be paid at the rate of double the regular hourly rate for work performed in excess of forty (40) hours per week. The employees paid the labourer's rate shall be paid at the rate of time and one-half the regular hourly rate for work performed in excess of forty-two and a half (42 1t2) hours in a week.

IN WITNESS WHEREOF the parties hereto have signed at Ottawa, Ontario, on the First day of June 1981.

For the Company: For the Union:

"illegible signature" "Marcel Savoie" "Clive Thomas"

23. On September 7, 1982, the respondent and the Canadian Construction Union renewed and amended the 1980-82 agreement as follows:

RENEWAL AND AGREEMENT

of the Collective Agreement

BETWEEN: L'ABBE CONSTRUCTION (ONTARIO) LTD.

hereinafter called "the Company",

• and -

CANADIAN CONSTRUCTION, BUILDING MAINTENANCE AND GENERAL WORKERS' UNION (N.C.C.L), hereinafter called "the Union".

which took effect on May 1, 1980 for a term of two years to April 30, 1982.

It is hereby agreed that the collective agreement shall be renewed for a further period of two (2) years from the termination date, and that the rates shown in Schedule I of the agreement shall be amended as amended hereto.

IN WITNESS WHEREOF the parties hereto have signed at Ottawa, Ontario on the 7th day of

September 1982.

For the Company: For the Union:

"illegible signature" "Marcel Savoie" President

"Clive Thomas

General Business

Agent

(NOTE: The schedule of job classifications and wage rates are not reproduced.)

24. Subsequently, a full-length document containing 29 articles and the same schedule of job classifications and wage rates that was attached to the September 7, 1982 "Renewal and Amendment" was prepared. It covers the sorts of things which are found in most collective agreements. According to Francois L'Abbe, whose testimony was confirmed by the September 7, 1982 document, this was in effect the "standing agreement" between the company and the Canadian Construction Union. Subsequently, pursuant to Article 29 of that agreement, it was automatically renewed for two further 1 year terms. Finally, by memorandum dated July 31, 1986, the respondent and the Canadian Construction Union agreed that:

AMENDMENT to collective agreement between L'Abbe Construction (Ontario) Ltd. and Canadian Construction, Building Maintenance and General Workers' Union, which took effect for a two year term from May 1, 1982 to April 30, 1984 and was renewed for one-year terms to April30, 1986.

The parties hereby mutually agree that the above agreement shall run for a further period from May 1, 1986 to April 30, 1988.

For the Company For the Union "illegible signature" "Marcel Savoie" President

"Clive Thomas" General Business Agent

Dated this 31st of July, 1986

25. Article 8.01 of the agreement provides that:

8.01 - Employees covered by this agreement shall be classified according to Schedule I appended hereto, and paid not less than the rates indicated. These rates shall conform immediately with any increases in the prevailing union rates for these classifications in the Ottawa area. If an employee's classification is changed, he shall be notified immediately.

This article reflects the arrangement that has always been in place between the respondent and the Canadian Construction Union with respect to wages. It was pursuant to this provision that wage rates were adjusted in July and December, 1986.

26. The bargaining between the respondent and the Canadian Construction Union has not been either extensive or formal. It has consisted largely of telephone conversations between Francois L'Abbe and Mr. Thomas and the occasional, relatively brief, meeting between them. To a great extent, the frequency of these discussions depended upon the level of activity of the respondent. The more active the company was, the more discussions there were. The bargaining process that has been adopted by the respondent and the Canadian Construction Union is "automatic" to a significant degree. For example, with the exception of 1981 agreement to amend Articles 3 and 5 of the agreement in mid-term, the bargaining has consisted of a brief review of the agreement and Mr. Thomas advising Mr. L'Abbe of the applicable "prevailing union (provincial) rates" of pay in the Ottawa area which, upon being confirmed, were implemented by the respondent. This pattern was well established and has even been incorporated into Article 8 and 29 of the agreement between them. However, the evidence also reveals that both the respondent and the Canadian Construction Union did regularly review the agreement to determine whether or not it remained satisfactory to them.

27. The Canadian Construction Union has not been particularly aggressive in its relationship with the respondent. Its collective bargaining philosophy, which is personified in Mr. Thomas, is non-confrontational and seeks only to obtain wage (but not benefit) parity with persons employed in the Ottawa area under provincial collective agreements negotiated by or on behalf of other trade unions, including the applicant.

28. The applicant attacks this approach on the basis it is not bargaining at all and as being a rationalization for what it submits has been a total lack of collective bargaining activity by the Canadian Construction Union. Although, the collective bargaining philosophy of the Canadian Construction Union is not one which is adopted by the applicant or other "mainstream" unions like it, there is, in our view, nothing fundamentally wrong with it or its result; that is, a collective agreement with which both the respondent and the Canadian Construction Union, and apparently those employees of the respondent who are affected, feel comfortable. Nor does the fact that this comfortable arrangement has led the Canadian Construction Union to be rather lax in its enforcement of the agreement (to the extent that Mr. Thomas, its General Business Agent has never visited the respondent's Place de Ville job site since work there began in June 1986, and was unaware that the overtime and wage rate provisions of the agreement were being breached until the breaches were brought to his attention by the Employment Standards Branch of the Ministry of Labour and the company itself respectively) does not, in the context of the situation as a whole; establish that the Canadian Construction Union has abandoned its bargaining rights. The process by which the respondent and the Canadian Construction Union arrive at the agreements between them, although different from the approach to collective bargaining adopted by the applicant, is nevertheless collective bargaining. The respondent and the Canadian Construction Union do review, discuss, and consider the agreement between them and they do abide by and follow it. The provisions in the agreement do set out what are in fact the terms and conditions of employment for those carpenters, carpenters' apprentices and construction labourers who are not non-working foremen or persons above that rank employed by the company in Board Area 15, including the condition that all such persons become and remain members of the Canadian Construction Union while they are employed in the bargaining unit.

29. Nor do we agree with counsel for the applicant that more than the Canadian Construction Union has done to cultivate its bargaining rights with the respondent must be required of a trade union in order to give meaning to section 3 of the Act. Section 3 provides that, "every person is free to join a trade union of his own choice and to participate in its lawful activities". That a person may be free to join any trade union that will have him/her does not mean that that person is necessarily free to choose any trade union s/he wishes to represent him/her in his/her employment relations with his/her employer. Once a trade union gains the right, pursuant to the Act, to bargain exclusively on behalf of a group of employees, no employee in that group (i.e. the bargaining unit) is entitled to select any other trade union to do so except as provided by section 5 of the Act. Indeed, subject to section 46(4), section 46(1) permits an employer and a trade union to include in a collective agreement a requirement of membership in the trade union be a condition of employment with the employer. The Act also provides, in sections 57, 59 and 60, means by which employees represented by a trade union can, if they wish to do so, terminate the right of that trade union to represent them. However, they must do so in accordance with the provisions of the Act.

30. We have already found that the Canadian Construction Union continues to be a trade union within the meaning of the Labour Relations Act. In our view, the evidence also reveals that the Canadian Construction Union has maintained a sufficiently active collective bargaining relationship with the respondent to make it inappropriate for us to find that it has abandoned its bargaining rights with respect thereto.

C. EMPLOYER PARTICIPATION IN THE ADMINISTRATION OF THE CANADIAN CONSTRUCTION UNION

31. Clause (a) of section 48 of the Act provides that:

32. An agreement between an employer or an employers' organization and a trade union shall be deemed not to be a collective agreement for the purpose of this Act,

(a) if an employer or an employers' organization participated in the formation or administration of the trade union or if an employer or an employers' organization contributed financial or other support to the trade union;

The applicant asserts that Stephen Broomer was a "foreman" who, during the material times, exercised managerial functions, within the meaning of section 1(3)(b) of the Act, on behalf of the respondent. The applicant further asserts that Mr. Broomer was, during the material times, involved in the administration of the Canadian Construction Union as a stewart. Accordingly, submits the applicant, the respondent employer has, through Mr. Broomer, been involved in the administration of the Canadian Construction Union and, pursuant to clause (a) of section 48, the agreement between the respondent and the Canadian Construction Union is not a collective agreement for purposes of the Act and is therefore not a bar to this application. Counsel for the applicant did not suggest that the mere fact that Mr. B roomer was both a member of the Canadian Construction Union and exercising managerial functions would lead to the same result.

32. Section 1(3)(b) of the Labour Relations Act provides that no person who, in the opinion of the Board, exercises managerial functions shall be deemed to be an employee. Section l(l)(p) of the Act provides that a trade union:

"trade union" means an organization of employees formed for purposes that include the regulation of relations between employees and employers and includes a provincial, national, or international trade union, a certified council of trade unions and a designated or certified employee bargaining agency.

The phrase "organization of employees" in section l(l)(p) does not mean that an organization must be one "of employees only" in order to be a trade union. Nor does the fact that some members of a trade union exercise managerial functions, either in relation to other members of the same trade union or otherwise, by itself, constitute actual employer support of or participation in that trade union. Further, although the fact that some members of a trade union both exercise managerial functions and are involved in the administration of the trade union, either as a steward or otherwise, may raise a concern that there has been employer support of or participation in it, that fact alone is not determinative of the issue. This is particularly true for craft and construction trade unions (including "mainstream" ones like the applicant) in which it has long been common for persons who are non-working foremen, superintendents or even employers in their own right to be members. It would be no small surprise to these trade unions that the mere fact they have (or had) such persons as members, whether or not they were also involved in the administration of the organization, could lead either to them being found to be trade unions no longer, or cause the Board to conclude that agreements they had entered into with employers are not collective agreements for purposes of the Labour Relations Act. The question that must be answered under clause (a) of section 48 is not whether a person who is not an "employee" has participated in the formation or administration of the trade union, but rather whether an employer has been so involved, either through a member or otherwise.

33. Whether or not Mr. Broomer was exercising managerial functions and, if so, what effect, if any that has on the agreement between the respondent and the Canadian Construction Union are questions that need be answered only if Mr. Broomer was in fact involved in the administration of the Canadian Construction Union. In that regard, we prefer and accept the evidence of Mr. Thomas where it conflicts with that of Mr. Broomer. We find that, on the evidence before the Board, Mr. Broomer played no part in the administration of the Canadian Construction Union, either as a steward or otherwise. Accordingly, we reject the applicant's submission that the agreement between the respondent and the intervener should be deemed not to be a collective agreement pursuant to clause (a) of section 48 of the Act. That objection to the Canadian Construction Union's status to intervene in these proceedings is therefore dismissed.

34. In the result, all 3 of the applicant's objections to the participation of the Canadian Construction Union are dismissed.

35. There is no indication in the material before the Board that the respondent employed any persons for whom the applicant seeks bargaining rights in this application who are not covered by the terms of the collective agreement between the Canadian Construction Union and the respondent during the material times. Further, this application was not made during the "open period" of that agreement and, there being no unrepresented employees in the bargaining unit applied for, the collective agreement between the respondent and the intervener constitutes a total bar to this application. Accordingly, the application is dismissed.

CONCURRING OPINION OF BOARD MEMBER J. REDSHAW;

1. While I concur with my colleagues on the decision as a whole, I had a great deal of difficulty in agreeing to that portion of the decision relating to the status of the intervener.

2. This is an organization that purports to be a trade union and yet admits:

(a) That it has not abided by a significantly large portion of its constitution for some nine years or more;

(b) That it has not held elections for any of the positions of Officer or Executive Committee for years and only within the last month prior to the hearing had a replacement been appointed, (not elected), for Sergeant at Arms;

(c) The affairs of the intervener have been handled by the Executive Committee, comprised of the President, Vice-President, Sergeant at Arms and General Business Manager. Of the current committee only the General Business Manager was ever elected in accordance with the constitution at sometime in the past, (he cannot remember when). The Vice-President and Sergeant at Arms were never elected, and as of the hearing date the position of the Vice-President was vacant;

(d) The General Business Manager has not had any contact with anyone in the bargaining unit at anytime, except a phone call from Stephen Broomer, and a letter sent to Gary Sabourin, the Carpenter Foreman, appointing Sabourin as shop steward for the employees including the Labourers. Thomas never contacted Sabourin prior to or after the appointment, (Shop Stewards according to the constitution are to be elected on temporary appointments. Sabourin has been Shop Steward for ten months);

(e) Has never held meetings for the purpose of taking proposals to the collective agreement;

(f) Has never held meetings for the purpose of ratifying the collective agreement;

(g) Has not circulated copies of the collective agreement or the constitution

to the members;

(h) Has not held any general meetings for at least three and a half years;

(i) Has never handled a grievance on behalf of the members. (The Employment Standards Branch had to collect overtime pay for the employees when both the employees and the Employment Standards Branch were unable to find the Intervener).

3. The General Business Manager did testify that the intervener collected dues, issued statements for Income Tax purposes and issued membership cards. He mailed the membership cards to the employer.

4. I believe in the principles as stated in paragraph 3 of this decision:

In determining whether or not an organization of employees constitutes a trade union within the meaning of the Labour Relations Act, the Board must not impose any requirements, structural or otherwise, which do not have their basis in the Act (Re CSAO National (Inc.) and Oakville Trafalgar Memorial Hospital Association 1972 CanLII 563 (ON CA), [1972] 2 OR. 498 Ont. C.A.). Consequently, except as required by the Act, the Board does not inquire into the structure or internal operation of a trade union."

5. If there is ever a case to be made for a change to this policy, the out of date, mismanaged and autocratic organization of the Canadian Construction, Building Maintenance and General Workers' Union (N.C.C.L.) would be in the forefront as an example in favour of change.