Local 353 of the International Brotherhood of Electrical Workers v. M.L.S. Cable Installations Inc., 1987 CanLII 3132

Ontario Labour Relations Board

Citation: [1987] OLRB Rep. November 1413 File No.: 1354-87-R Date: November 20, 1987

Between: Local 353 of the International Brotherhood of Electrical Workers, Applicant v. M.L.S. Cable Installations Inc., Respondent v. Group of Employees, Objectors

Before: Patricia Hughes, Vice-Chair, and Board Members R. W. Pirrie and D. A. Patterson.

Appearances: Bernard Fishbein, D. Lounds, 1. Fashion and R. Riopel for the applicant; Tascama and L. Ciaralli for the respondent; Sergio Rea and Mark Rocco for the objectors.

DECISION OF THE BOARD; November 20, 1987

1The name of the respondent is hereby amended to read: "M.L.S. Cable Installations Inc.".

2Local 353 of the International Brotherhood of Electrical Workers ("IBEW") ("Local 353") seeks a declaration from the Board that it is a successor to Local 636 of the International Brotherhood of Electrical Workers ("Local 636") with respect to all employees of M.L.S. Cable Installations Inc. ("the employer" or "M.L.S. Cable").

3The relevant section of the Labour Relations Act ("the Act") reads as follows:

62.-(1) Where a trade union claims that by reason of a merger or amalgamation or a transfer of jurisdiction it is the successor of a trade union that at the time of the merger, amalgamation or transfer of jurisdiction was the bargaining agent of a unit of employees of an employer and any question arises in respect of its rights to act as the successor, the Board, in any proceeding before it or on the application of any person or trade union concerned, may declare that the successor has or has not, as the case may be, acquired the rights, privileges and duties under this Act of its predecessor, or the Board may dismiss the application.

(2) Before issuing a declaration under subsection (1), the Board may make such inquiry, require the production of such evidence or hold such representation votes as it considers appropriate.

(3) Where the Board makes an affirmative declaration under subsection (1), the successor shall for the purposes of this Act be conclusively presumed to have acquired the rights, privileges and duties of its predecessor, whether under a collective agreement or otherwise, and the employer, the successor and the employees concerned shall recognize such status in all respects.

4The employer objects to our granting a declaration under section 62 of the Act. In its reply, it submitted that Local 353 is trying to circumvent other more appropriate procedures under the Act through an application under section 62. Its concern is that Local 353 is attempting to bring the work now performed by Local 636 members within the purview of the provincial agreement in the ICI sector: Local 353 is subject to the provincial agreement; Local 636 is not. At the hearing, the employer also contended that the transaction affected between the two locals is not one falling within section 62. Alternatively, the employer asks that we issue a declaration describing the bargaining rights acquired by Local 353. Certain employees also object to our issuing a declaration; they complain that there has been no contract with the employer since April 1987, that they have been paying dues without representation, and that the ballots in the vote held to determine the employees' views on this matter were not counted in front of the employees.

5After hearing evidence given by Donald E. Lounds, the international representative of the IBEW, of the procedure followed in transferring jurisdiction from Local 636 to Local 353, and considering the submissions of all the parties, we orally granted the declaration sought by Local 353, giving brief reasons for our decision.

6The IBEW Constitution (Exhibit 1 in these proceedings), by which Locals 636 and 353 are governed (pursuant to Articles 1 and XVII of that Constitution), provides as follows in Article XV:

ARTICLE XV LOCAL UNION CHAPTERS

Sec. 2. The type of work and the territory or jurisdiction covered by a charter must be defined in approved local union bylaws. The I[ntemational] P[resident] has the right and power to divide or change the territory or jurisdiction covered by any L[ocal] U[nion], or to take charge of and direct certain jobs or projects in or passing through any territory, when in the judgment of the I.P. such should be done.

Sec. 3. The IP. has the right and the power to merge or amalgamate L.U.'s in any community or section where the facts, developments or conditions--in the judgment of the I.P.--warrants such action, also to decide the terms or details of any merger or amalgamation when the LU. 's involved cannot or do not agree.

Sec. 4. When a L.U. does not--in the judgment of the I.P.--organize or protect the jurisdiction or territory awarded it, then its charter may be suspended or revoked by the IP. and a new LU. established, or the jurisdiction or territory awarded to another LU. or L.U.'s.

Mr. Lounds testified that the International President had transferred the jurisdiction of telephone interconnect companies from Local 636 to Local 353. The Constitution does not require the agreement of either the locals or the employees to such a transfer. Nevertheless, notice of a special meeting (Exhibit 3 herein) was distributed to the employees of M.L.S. Cable through being posted by Rene Riopel, the assistant business manager of Local 636, the Local 636 stewards and the employer's officials. The notice indicated that the purpose of the meeting was "to fully explain a proposed merger of the members of Local 636 employed by M.L.S. into Local 353, IBEW, Toronto, Ontario". It stated that a secret vote would be held on the matter. The ballot (a sample ballot was admitted into evidence as Exhibit 7 to these proceedings) posed the following question: "Are you in favour of changing your IBEW membership to Local 353 Toronto, Ontario" and contained two check-off boxes, one marked "Yes" and one marked "No". The results of the vote were 31 Yes and 3 No. Mr. Lounds testified he counted the ballots at his office with no one else present. He stated at first that he did not know why he had done it that way; in cases involving the employees of other companies, he had counted in front of the employees. He also said, however, that the M.L.S. Cable meeting had been held downstairs in a restaurant and the majority of employees went upstairs to the bar after the meeting.

7Counsel for the employer contends that the transaction between the two Locals is not a merger, amalgamation or transfer of jurisdiction within the meaning of section 62 of the Act. We agree with employer's counsel that this transaction constitutes neither a merger nor an amalgamation; however, we disagree that it is not a transfer of jurisdiction. Counsel referred us to Municipal Tank Lines Limited, [1973] OLRB Rep. June 363. In that case, General Truck Drivers' Union, local 938 ("Local 938"), the applicant, sought a declaration that it had acquired the rights, privileges and duties of Canada Tank Limited Union ("CTLU") through a transfer of jurisdiction. The affected employees were given notice of a meeting at which the transfer of the jurisdiction by TLU to Local 938 was to be discussed and a motion to that effect was to be made. The actual motion put and vote taken were, however, for affiliation with Locals 938 and 880 of the Teamsters. The Board held that an affiliation does not come within now section 62 of the Act, but went on to consider whether there was a transfer of jurisdiction within the meaning of section 62. In doing so, the Board referred to the definition in Hydro-Electric Power Commission of Ontario 57 CLLC 18,080: "A transfer of jurisdiction takes place when one parent body assigns control over one of s subordinate branches or lodges to another parent body". It found that the transaction before it id not conform to the definition since Local 938 had no local and the successors were two locals, of a parent body. If anything, the Board found the transaction "more akin to merger or amalgamation than a transfer of jurisdiction", since the latter would mean the absorption of Local 938 into the two locals of the Teamsters.

8In Hydro-Electric, supra, the employees at Hydro had been "represented" by the employees' Association of the Hydro-Electric Power Commission of Ontario ("the Association") which in 1955 became affiliated with the National Union of Public Service Employees ("NUPSE"). According to the Agreement of Understanding between the Association and NUPSE, the Association retained "complete autonomy to conduct its internal affairs as they [sic] deem necessary". The Ontario Labour Relations Board found subsequently that the Association was a trade union; the Association later changed its name to "The Ontario Hydro Employees' Union, National Union of Public Service Employees - C.L.C." ("Hydro Employees' Union"). The Board, in Hydro-Electric, supra, stated that it was clear that the Association had changed its name and had become associated with NUPSE and that the question before it was "has [the Association] become attached to [NUPSE] by reason of a merger, amalgamation or transfer of jurisdiction". The Board provided definitions of all three terms, including the last as set out above, and found none applied to the transaction before it. With respect to the transfer of jurisdiction, the only term with which we are concerned here, the Board said that "[s]ince the applicant, before it established a connection with [NUPSE], was never a subordinate branch of a parent body, there could be no transfer of jurisdiction in this case" and that the "true nature" of the relationship between the Hydro Employees Union and NUPSE was "affiliation". The Hydro Employees Union "retained its own identity in every essential respect", including both internal and external affairs and that "[t]here is nothing in the constitution of the applicant itself which concedes to or confers upon [NUPSE] any control over the applicant whatsoever". The Hydro Employees Union remained the same legal entity as the Association. The Board applied the Hydro-Electric case in Consolidated Glass Industries Limited, 62 CLLC ¶16,220. The International Chemical Workers Union ("ICWU") sought a declaration that it was the successor of the Canadian Glassworkers Union ("the Glassworkers"). The Glassworkers continued to exist as a trade union, had not transferred any jurisdiction to the ICWU and stated that there would be no action to effect a merger, amalgamation or transfer of jurisdiction until the Board had made a determination on the successor status of the ICWU. The Board relied on the principles set out in Hydro-Electric, supra, holding that since the Glassworkers was never a subordinate branch of a parent body, there could be no transfer of jurisdiction. (It would not issue a declaration with respect to a merger or amalgamation because a completed merger or amalgamation is a precondition to a declaration. Presumably, the same would be true of a transfer of jurisdiction.)

9Counsel for Locals 353 and 636 maintains that the Board has held there to be a transfer of jurisdiction in cases not conforming to the definition set out in Hydro-Electric, supra. In Canada Wire and Cable Company Limited, [1962] OLRB Rep. Jan. 365, the Board found that the jurisdiction of the Simcoe General Workers Union, Local 1587 (CLC) had been transferred to the United Steelworkers of America by the parent of the local, the Canadian Labour Congress. This appears to conform to the Hydro-Electric definition. The Board in The Hydro-Electric Commission of the City of Hamilton, 63 CLLC ¶16,261 held that the International Brotherhood of Electrical Workers, Local No. 138 ("Local 138") was the successor of the International Brotherhood of Electrical Workers, AFL, CIO, CLC ("IBEW") by virtue of a transfer of jurisdiction over the office employees of the Hydro-Electric Commission of Hamilton from the IBEW to its own local, Local 138. It found that Local 138 had accepted jurisdiction over the office workers. The Board did not refer to the Hydro-Electric definition and this transaction does not appear to conform to the definition: the Board did not find that "one parent body had assigned control over one of its subordinate branches to another parent body". Counsel points out that the decision in National Concrete Products Limited, [1967] OLRB Rep. Nov. 780 makes no reference to Hydro-Electric, supra. In that case, the rights, privileges and duties of the United Glass & Ceramic Workers of North America, AFLCIO-CLC ("the Glass & Ceramic Workers") had been transferred six years previously to the Canadian Labour Congress ("C.L.C."), the Glass & Ceramic Workers now sought the return of those rights, duties and privileges from Local 1596 of the CLC. The Board held that the Glass & Ceramic Workers "by reason of a merger or amalgamation or transfer of jurisdiction" was a successor to Local 1596 of the CLC. The Board did not determine which form the transaction had taken; on the other hand, it can be said that the transfer from a local of one parent body of the rights, privileges and duties to another parent body was not found not to be a transfer of jurisdiction, even though it did not appear to involve the assignment of control of a local (that is Local 1596) by its parent (the CLC) to another parent body (the Glass & Ceramic Workers). In sum, one of these cases has explicitly rejected the definition of a transfer of jurisdiction as set out in the Hydro-Electric case, supra; some have followed it; others have avoided it.

10The Board in the Hydro-Electric case, supra, did not explain why it restricted the term "transfer of jurisdiction" in the manner it did. Nor has the Board done so in the cases purporting to apply Hydro-Electric, supra, to which we were referred. Counsel for the employer relied on Municipal Tank Lines Limited, supra, without indicating the labour relations purpose for our doing so. In Waterloo Spinning Mills Ltd.,[1984] OLRB Rep. March 542, the Board had to determine whether a merger had occurred; it indicated at paragraph 38 that it did not think "anything urns on the fact that the transaction with the UFCW [the applicant] was framed as a merger rather than a transfer of bargaining jurisdiction" and later stated, at paragraph 45 that [u]nder section 62 f the Labour Relations Act, the Board must assess a claim that one trade union is the successor of another by reason of a merger, amalgamation, or transfer of bargaining jurisdiction" (emphasis in original). In our view, this terminology, with the addition of the word "bargaining" in the phrase 'transfer of jurisdiction" reflects the purpose of section 62 and the nature of that transaction termed "transfer of jurisdiction". We agree with counsel for Locals 353 and 636 that the purpose of the section is to give effect to a transfer of bargaining rights.

11In this case, Local 636 held bargaining rights for employees of M.L.D. Cable working as installers and dispatchers. There had been disputes over whether members of Local 353 and Local 636 were entitled to perform certain work, specifically the installation of conduit and the pulling of cable through that conduit. It was agreed among representatives of Local 353, Local 636 and the International that the way to resolve the disputes was to have all work covered by one l9cal, Local 353. By letter dated May 28, 1987, J.J. Barry, International President, wrote to K.G. Rose, International Vice-President, with respect to the by-laws of Local 353, informing him that "Article 1, Sections 1 and 3 and Article X, sections 3(a) and 6(a) have been amended by adding Communication and Telephone Interconnect jurisdiction ...." Mr. Lounds agreed that the transaction consisted of a transfer of communications from Local 636 to Local 353 and that Local 636 continues to exist, primarily with respect to the utilities jurisdiction, but also with respect to communications work performed by employees of employers not named in Article 1 of Local 353 By-laws. In Canada Wire and Cable, supra, the Board held that "it is not a condition precedent to a transfer of jurisdiction that the transferor union cease to exist or that its Charter be cancelled".

12We are satisfied that there has been a transfer of jurisdiction within the meaning of section 62 of the Act.

13We are further satisfied that the only question we have to determine under section 62 is whether there has been (in this case) a properly enacted transfer of jurisdiction. It is not our responsibility under section 62 to determine the effect of the transfer of jurisdiction on the bargaining relationship between the employer and the union involved. The employer is concerned that it might be swept into the ICI provincial agreement to which Local 353, but not Local 636, is a party. To us was also the concern of the employer in Deseronto Public Utilities Commission, [1977] OLRB Rep. April 248; there the Board said the following:

5. The matters raised by the respondent are clearly of real concern to it. At the hearing the representative of the applicant sought to address himself to these concerns. The Board's position in all this, however, is merely to ensure that a claimed merger, amalgamation or transfer of jurisdiction has in fact occurred, and it has to then declare what results have flowed from the merger’ amalgamation or transfer of jurisdiction. This in turn requires that the Board scrutinize the procedures adopted by the trade unions concerned, with particular emphasis on the procedures adopted by the predecessor trade union, so as to ensure that those procedures conform with the union's constitution (in this case the constitution of the International Brotherhood of Electrical Workers) as well as the law as it has developed in relation to union mergers and amalgamations. (A discussion of certain aspects of the law in this regard is set out in the Board's decision in the Brewer's Warehousing Company Limited case, [1974] OLRB Rep. July 461.) Issues such as those raised by the respondent are not relevant to the legal question as to whether or not a purported merger, amalgamation or transfer of jurisdiction has in tact been properly carried out. Further, we are of the view that once the Board is satisfied that a merger, amalgamation or transfer of jurisdiction has been effected, it would be contrary to the purpose and intent of section 54 for the Board to refrain from making a declaration to that effect on the basis of the respondent's concerns. This is not to say that certain aspects of the bargaining relationship between the parties may not undergo change. However the law does recognize that union mergers, amalgamations and transfers of jurisdiction may occur such that a successor union may replace or substitute for a predecessor union in a bargaining relationship with an employer. Necessarily following from this is the fact that an employer may find itself in a bargaining relationship with a union different from that it is accustomed to dealing with, and that this "new" union may possibly adopt policies and procedures different from that of its predecessor.

14Similarly, the objections raised by the employees are not bars to the Board's granting a successor rights declaration where the Board's requirements are otherwise satisfied. It is not for the Board to determine in a section 62 application whether the employees have received adequate representation by the applicant. We note too, that the employees have not raised any allegations about any voting impropriety which might require another vote, although we make no determination about whether another vote would be required had any such allegation been made and substantiated.

15The Board has said that "the wishes of affected employees are always a relevant concern on an application under section 62" and that "the approval of affected employees [is] required in addition to approval of the trade unions involved": L. M. L. Foods Inc., [1985] OLRB Rep. Aug. 1252, at paragraph 33. However, in Zehrs Markets, [1977] OLRB Rep. Oct. 637, the Board stated at paragraph 13 that the Board is concerned only that "either the constitutional provisions of the predecessor trade union regarding a merger, amalgamation or transfer of jurisdiction have been followed ..., or, if there are no such constitutional provisions, that there has been unanimous approval of the change by the union membership ..." (Also see Jaeger Machine Company of Canada Ltd., [1983] OLRB Rep. July 1082 and Trans Nations Incorporated, [1981] OLRB Rep. Sept. 1298.) We are not required in this case to join the debate about the procedures to be followed before a declaration can be made by the Board. The IBEW's constitutional requirements were satisfied; since there is provision for a transfer of jurisdiction in the Constitution, the requirement that unanimous approval be obtained does not apply, but notice was given and a vote taken, with a majority voting in favour of Local 353. We are satisfied that both the notice and the wording on the ballot, even if not referring to a transfer of jurisdiction, effectively informed the employees and that they knew the nature of the question before them. Thus any requirements additional to those set out in the Constitution which might be required were satisfied.

16The employer has asked in the alternative for a declaration setting out exactly the rights, privileges and obligations acquired by Local 353 in the transfer. Section 62 makes it clear that the successor union acquires only those rights, privileges and obligations which were enjoyed by and required of its predecessor. As the Board pointed out in Deseronto Public Utilities, supra,

6. We feel it is worth stressing at this point that a declaration under section [62] has no greater effect than to substitute one union for another in a bargaining relationship. The bargaining rights and privileges possessed by the successor union are no greater than, or different from, the rights and privileges formerly possessed by the predecessor union.

Thus Local 353 can acquire through a successor rights declaration only the rights, privileges and obligations of Local 636. Under subsection 145(4) of the Act, the employer becomes bound by the provincial agreement only where an affiliated bargaining agent obtains bargaining rights through certification or voluntary recognition. The consequences resulting from an affiliated bargaining agent's being declared a successor to a union not designated as such must be dealt with through other proceedings should the issue arise. Thus we are of the view that it is inappropriate for us to define specifically the bargaining rights acquired by Local 353 with respect to the employees of M.L.S. Cable previously represented by Local 636, even if we had the necessary evidence before us to make such a determination.

17Accordingly, we are satisfied that there has been a proper transfer of jurisdiction and that Local 353 has acquired the rights, privileges and obligations under the Act of the predecessor Local 636.