Windsor Mouldmakers Union Local 1680 C.L.C. v. Laval Tool & Mould Ltd., 1987 CanLII 3108

[1987] OLRB Rep. October 1281

1584-87-R Windsor Mouldmakers Union Local 1680 C.L.C., Applicant v. Laval Tool & Mould Ltd., Respondent v. Group of Employees, Objectors

BEFORE: Owen V. Gray, Vice-Chair, and Board Members J. A. Rundle and R. R. Montague.

APPEARANCES: Ralph Ortlieb, Richard Koval and Raymond Murray for the applicant; Patrick F. Milloy, James H. Menzies and Larry Azzopard for the respondent; Theodore Crljenica and Robert Taylor for the objectors.

DECISION OF THE BOARD; October 26, 1987

1. This is an application for certification. As the applicant has not been so found in any previous proceeding, it is obliged in this one to establish that it is a "trade union" within the meaning of clause l(l)(p) of the Labour Relations Act ("the Act"), which provides that:

1.-(l) In this Act,

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

2. Ralph Murray is a long time employee of the Canadian Labour Congress ("the CLC"). He was involved in organizing the applicant in the early 1970's for the purpose of taking over from an existing employee association the role of collective bargaining agent for employees of another Windsor employer, International Tools Limited. A charter was granted by the CLC to ten named individuals on March 27, 1974, constituting them "Windsor Mouldmakers' Union Local No. 1860". Mr. Murray testified that this charter was granted pursuant to Article XVI of the then constitution of the CLC, which provided (and still provides) in part:

Section 1. Subject to Article III, Section 2, and other applicable provisions of this Constitution, the Congress may issue charters to local unions and organizing committees.

Section 2. The Executive Council of the Congress shall issue rules governing the conduct, activities, affairs, finances and property of organizing committees and directly chartered local unions, and governing the suspension, expulsion and termination of such organizations....

While they are not before us, Mr. Murray testified without challenge or contradiction that the general rules for chartered locals which are contemplated by this Article did exist at that time. They are referred to in one of the documents before us as "Bylaws Governing Chartered Local Unions". Those Bylaws governed the affairs of the applicant from the time it came into existence until May 29, 1975, when CLC executive approval brought into effect a revised set of bylaws which had been formulated by the applicant's membership. Articles I and 2 of those Bylaws provide as follows:

ARTICLE 1

NAME

This organization shall be known as, Windsor Mouldmakers Union Local 1680 situated at Windsor, Ontario, having been duly chartered by the Canadian Labour Congress.

ARTICLE 2

PREAMBLE

The general purpose of the Union are outlined in the declaration of principles and constitution of the said Canadian Labour Congress, it's [sic] particular object is to protect and advance the interests of its' [sic] members to secure collectively the highest possible wages, the shortest possible working hours and the best possible working conditions; to induce its' [sic] members to develop a higher standard of skill, to cultivate higher feelings of friendship and to advance the moral, intellectual and social well-being of the members. Furthermore, it shall be the duty of every member of the Union to advocate the principles of organization and advance the cause of labour in general.

These Bylaws have not since been amended. Having regard to Article 1 of the Bylaws, the name "Windsor (Ont.) Mouldmakers Union No. 1680" in the title of this proceeding has been amended to read "Windsor Mouldmakers Union Local 1680 C.L.C.".

3. Mr. Murray was not present at the election of the applicant's current executive in November 1985. Richard Koval, the applicant's current President, was present at that meeting. He testified that the offices contemplated by the applicant's Bylaws were filled by election at that meeting.

4. Counsel for the respondent argues that the applicant is not a trade union. He acknowledges that this Board has concluded, in at least three reported decisions, that locals chartered by the CLC are trade unions as defined by the Act: Cochrane-Dunlop Hardware Limited (1963), 63 CLLC ¶16,268; Economical Mutual Insurance Company, [1972] OLRB Rep. Feb. 176; Canadian Underwriters' Association, [1973] OLRB Rep. May 267. He says those decisions came to that conclusion by a process of reasoning analogous to that by which locals of parent unions have been found to be unions: the parent's constitution is the constitution of the local and the parent is a trade union - therefore, the local is a trade union. The error in this reasoning, he argues, springs from the fact that the CLC is an organization of unions, not an organization of employees; consequently, the CLC's constitution is not the constitution of a trade union and the applicant's having that constitution cannot make it a trade union.

5. Counsel's argument mischaracterizes the Board's analysis in those earlier decisions. The Board has not said that the constitution of the CLC is the constitution of the chartered local but, rather, that the constitution of the CLC provides or provides for the constitution of the local. In Cochrane-Dunlop Hardware Ltd., supra, after noting that the CLC appeared not to be an "organization of employees" within the meaning of clause l(l)(p) (then clause l(1)(j)) of the Act, the Board observed:

However, unlike the case of a newly formed employees' association, when a local is chartered by the C.L.C. it is chartered pursuant to an existing constitution, that is, the constitution of the C.L.C. (see Article XIV). Moreover the provisions of Article XIV together with the By-laws governing chartered local unions made pursuant to Article XIV, provide a formal constitution for any directly chartered local the moment the charter number is assigned or the charter itself issued. This is in complete contrast to the circumstances surrounding the formation of an independent association where there is often no constitution of any kind and no idea of what is going to be contained in a constitution at the time membership cards are signed and dues paid.

(See also Canadian Underwriters Association, supra, at paragraph 9.)

6. Counsel for the respondent and counsel for the objecting employees both submit that the applicant cannot be found to be a trade union in the absence of evidence that its members adopted or ratified whatever may be said to have been or become its constitution when its charter was issued. They submit that this follows from the Board's decision in Associated Hebrew Schools of Toronto, [1978] OLRB Rep. Sept. 797. In a similar vein, counsel for the objecting employees contends that the applicant must show that the people who applied for the charter knew what provisions would govern them as members of the applicant once that charter was issued.

7. The language of clause l(l)(p) of the Act, particularly the words "organization", "formed" and "purposes", contemplates a formal structure which may be (and in this jurisdiction usually is) that of an unincorporated association of individuals. The objects and purposes of such an association and the rules governing its affairs are set out in one or more documents which may be called the "constitution", "bylaws" or "rules" of the association. Those who join the association agree to be bound by the provisions of those constitutional documents, which constitute a contract between each member and all of the others: Orchard v. Tunny (1957), 1957 CanLII 57 (SCC), 8 D.L.R. (2d) 273 (S.C.C.); Birnson v. Johnson et al., 1957 CanLII 131 (ON HCJ), [1957] O.R. 519 (Ont. H.C.), aff'd [1958] P.W.N. 217; and, Astgen v. Smith, (1967) 1969 CanLII 488 (ON CA), 7 D.L.R. (3d) 657 (Ont. C.A.).

8. In Associated Hebrew Schools of Toronto, supra, the Board noted that:

10. Once a trade union has come into existence it is a relatively simple matter for others to become members of the organization and thereby enter into a contractual relationship with the existing members. When a new member joins, however, he does so on the basis of a pre-existing constitution. He knows (or at least should know) that it is a trade union which he is joining, that he is entering into a contractual relationship with the other members of the union and that the terms of that relationship are as spelt out in the union's constitution. The more difficult procedure to accomplish is for a group of employees to create a trade union where none has existed before. This process must involve not only the settlement of the terms of a constitution for the union, but also the taking of steps which make it clear that the individuals involved have actually entered into a contractual relationship one with another on the basis of the terms set forth in the constitution.

The Board went on to observe that:

11. The Board has in a number of cases indicated a series of steps which will generally be sufficient to insure that a trade union has been brought into existence. See, for example, Local 199 U.A. W. Building Corporation [1977] OLRB Rep. July 472.

These steps may be summarized as follows:

1. A constitution should be drafted setting out, among other things, the purpose of the organization (which must include the regulation of labour relations) and the procedure for electing officers and calling meetings.

2. The constitution should be placed before a meeting of employees for their approval either as originally drafted or as amended at the meeting.

3. The employees attending the meeting should be admitted into membership. In this regard it is well to keep in mind section 1(1)(j) of the Act which defines a union member to include a person who has applied for membership in the union and on his own behalf paid to the union at least $1.00 in respect of initiation fees or monthly dues.

4. The constitution should be ratified by a vote of the members.

5. Officers should be elected pursuant to the constitution.

Performance of this series of steps has no purpose other than to ensure that persons said to be members of an applicant for certification have indeed entered into a contractual relationship each with the others on the terms set out in the purported constitution of the applicant and, so, have brought a formal organization into existence. This was the focus of the Board's concern in Associated Hebrew Schools of Toronto, supra, as is evident from the analysis which followed its recital of the often quoted "series of steps":

As indicated above, the great majority of the membership applications filed in these proceedings are dated prior to the adoption of the constitution. Thus it cannot reasonably be said that the employees at the time that they signed these applications were agreeing to become contractually bound one to another in that the terms of such a contractual relationship simply did not exist.... A constitution was adopted at the meeting on December 14, 1977. However, at that meeting no one joined the applicant or re-adopted membership applications executed earlier. In short, while the people present at the meeting seem to have decided upon the terms of a constitution for the applicant, there is no evidence that they individually adopted the terms of the constitution as the basis of a contractual relationship one with another. In these circumstances there could not have been a ratification of the constitution by actual members of the applicant.

13. We do not believe that the Board should be unduly technical in determining whether a trade union has come into existence, and in this regard would refer to the Local 199 U.A.W. Building Corporation case referred to above. In the instant case, however, because of the time lapse involved between the signing of the membership applications and the adopting of the constitution as well as the circumstances surrounding the receipts issued at the time that employees did sign the membership applications, we simply are unable to conclude that on December 14, 1977 employees entered into a contractual relationship one with another so as to create an "organization of employees". It follows from this that the thirteen applications for membership dated in May of 1978 would have been with respect to a non-existent organization. We are, therefore, not satisfied that the applicant is a trade union within the meaning of section 1(1)(n) of the Labour Relations Act.

9. The steps referred to in paragraph 11 of the decision in Associated Hebrew Schools of Toronto, supra, are not conditions precedent to the creation of a trade union. Any other behaviour capable of creating the necessary contractual relationship among member employees will be equally effective: Niagara Veteran Taxi, [1979] OLRB Rep. Sept. 889. As the Board noted in the passage we have quoted from Cochrane-Dunlop Hardware Ltd., supra, there is a substantial distinction between the chartering of a local trade union pursuant to the constitution of an existing organization and the formation of a trade union by the sort of procedure addressed in paragraph 11 of the decision in Associated Hebrew Schools of Toronto, supra. Article XVI of the CLC constitution says that chartered locals will have a constitution dictated by the CLC's Executive Council. On the evidence before us, the terms of that standard local constitution were fixed and ascertainable when the ten individuals named in the applicant's charter made application for it. Those ten founding members must be taken to have known the consequences of their application and to have thereby agreed to be bound by that local constitution. It is not necessary for the applicant to demonstrate that those individuals actually knew the terms of the standard local constitution, any more than it is necessary to show that an applicant for membership in an existing trade union has actual knowledge of the contents of that trade union's constitution. The contractual relationship necessary to the existence of the local was created among the applicants for the charter when that application was granted; no further ratification or confirmation was necessary to that end.

10. Counsel for the objecting employees contended that the applicant organization could not be a trade union because its purposes do not include the regulation of relations between employees and employers. In our view, Article 2 of the applicant's Bylaws quite adequately satisfies that element of the statutory definition. Counsel argued in the alternative that the applicant could not be a trade union because its members do not have full control over whether its objects are changed; the CLC, he submits, could eliminate the applicant's collective bargaining purpose. Not only is that unlikely, but it can be debated whether the applicant's objects could be changed without at least a two-thirds vote of the applicant's membership, having regard to Article 27 of the applicant's Bylaws. In any event, the question is whether the applicant is a trade union now, not whether it might cease to be one in the future. Clause l(l)(p) does not require that a trade union's members have exclusive control over the amendment of its constitution, and it would be improper to impose a requirement not supported by the language of 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.).

11. Counsel for the respondent and counsel for the objecting employees argued that some confusion may have resulted from the fact that notice of this application described the applicant as "Windsor (Ont.) Mouldmakers Union No. 1680" and the membership evidence consists of applications for membership in "Canadian Labour Congress Chartered Local Union No. 1680", while the applicant's actual name is "Windsor Mouldmakers Union Local 1680 C.L.C.". Neither offered evidence of actual confusion; both argued that it was for the applicant to satisfy the Board that there has not been confusion. We would be concerned if employees of the respondent were confused about which union was being referred to in applications for membership or in the Board's notices of these proceedings. We have no reason to suppose, however, that there is another Mouldmaker's Union or CLC Local or other union with which the applicant might have been confused in the minds of employees. (See Food Corp. Limited, [1983] OLRB Rep. May 636, at paragraph 15.) Accordingly, we find that the employees of the respondent whose applications for membership and acknowledgments of payment have been filed are members of the applicant. The applicant is, accordingly, an organization of employees formed for purposes which include the regulation of relations between employees and employers - a "trade union" within the meaning of clause l(l)(p) of the Labour Relations Act.

12. Having regard to the agreement of the parties, we find that:

all employees of the respondent in Maidstone Township, Ontario, save and except foremen, persons above the rank of foreman, office and sales staff, persons regularly employed for not more than twenty-four hours per week and students employed during the school vacation period,

constitute a unit of employees appropriate for collective bargaining.

13. Having regard to the evidence before us, we find that more than fifty-five per cent of the employees in that unit on the date of the application were members of the applicant as of September 21, 1987, the terminal dated fixed for this application and the date (the "assessment date") which the Board determines under clause 103(2)(j) of the Act to be the time for ascertaining membership under section 7(1) of the Act.

14. The objecting employees have filed documentary evidence of opposition by employees to certification of the applicant as at the assessment date. Some of the employees who signed those statements had earlier become members of the applicant. Members who have not signed such statements constitute not more than fifty-five per cent of the employees in the unit on the application date. In those circumstances, the Board would direct a representation vote in the exercise of its discretion under subsection 7(2) of the Act if it were satisfied that the statements of opposition represent voluntary expressions of the wishes of the persons who signed them: Unlimited Textures Company Limited, [1984] OLRB Rep. Jan. 138. Against the possibility that the applicant might be found to be a trade union, at the conclusion of our hearing on October 2, l987, a hearing was scheduled for October 26 and 27, 1987 for the purpose of an inquiry into the voluntariness of the statements of opposition. The applicant has since advised the Board (by telegram dated October 13, 1987) that it acknowledges the voluntariness of the statements of opposition and requests that the Board direct a representation vote. This makes the scheduled hearing unnecessary, and it has been cancelled by the Registrar.

15. Accordingly, we direct that a representation vote be conducted among employees in the aforesaid bargaining unit. Persons employed in that unit as of October 13, 1987, who are so employed on the date the vote is taken will be eligible to vote. Voters will be asked whether or not they wish to be represented by the applicant in their employment relations with the respondent.

16. The matter is referred to the Registrar.