1782-87-R United Steelworkers of America, Applicant v. The Corporation of the Township of Michipicoten, Respondent v. William A. Lamon, Objector
BEFORE: Ken Petryshen, Vice-Chair, and Board Members D. A. MacDonald and C. A. Ballenline.
APPEARANCES: Brian Shell, Steve Bonifero and Andy Lavoie for the applicant; Yvon Renaud on October 30, Paul Young on November 19, W. D'Arcy Halligan and Harry McCluskie for the respondent; William A. Lamon for the objector.
DECISION OF THE BOARD; November 27, 1987
The name of the respondent is amended to read: "The Corporation of the Township of Michipicoten".
This is an application for certification.
The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act.
When the Board addressed the issue of the bargaining unit description on the first scheduled day of hearing, counsel for the applicant sought to amend the bargaining unit description order to reflect more accurately the unit of employees the applicant wished to represent. The applicant applied for a unit described as all employees of the respondent in the public works department with certain exceptions and this description was set out in the Form 6 Notice to employees. At the hearing, the applicant wished to amend the bargaining unit description so as to cover all outside employees of the respondent with certain exceptions. The Board was prepared to permit the applicant to amend its proposed bargaining unit description at the hearing for two reasons. The applicant had been of the view when it initially applied for certification that all of the "outside" employees of the respondent worked in the public works department. Secondly, the amended bargaining unit description is more consistent with the Board's practice in describing municipal bargaining units.
Having granted the applicant's amendment to the bargaining unit description, the Board entertained submissions from the parties concerning whether there was now a notice problem. After recessing to consider the parties' submissions on this point, the Board orally ruled at the hearing that it would direct the Registrar to extend the terminal date and to cause an amended Form 6 Notice to Employees to be sent to the respondent for posting. The Board was satisfied that the amended bargaining unit description would include within it some employees of the respondent who might not reasonably conclude from reading the Form 6 as posted that they would be included in a bargaining unit described as all employees in the public works department.
In its reply and at the hearing, the respondent took the position that this application ought to be dismissed since the respondent is a party to two documents which it argued are collective agreements. One of the documents pertained to the employees of the public works department and the other covered another grouping of outside employees. If the documents are collective agreements, this application would be untimely. Normally when confronted with a notice problem, the Board would be unable to proceed further with the case. But since the employees in the public works department had received adequate notice and since the employee who signed the document on behalf of the public works department employees was at the hearing and willing to proceed, the parties agreed to address the issue of a collective agreement bar insofar as the public works department document was concerned. Counsel for the respondent advised us that if the Board found the public works department document was not a collective agreement, the respondent would not continue to rely on the second document as a bar.
It was unnecessary to hear evidence on the issue of a collective agreement bar. Counsel for the respondent set out the facts upon which he relied in support of the respondent's position. Counsel for the applicant referred to a few additional facts which in his view were relevant to the issue. There was no dispute between the parties with respect to the facts set out by each counsel. After entertaining the parties' submissions and after recessing to consider the matter, the Board orally ruled at the hearing on October 30, 1987 that the document relied upon by the respondent as a bar to this application was not a collective agreement within the meaning of section 1(1)(e) of the Act and, therefore, did not constitute a bar to this application.
The document in issue is an agreement between the respondent and the permanent employees of the public works department of the Township of Michipicoten. The document has clauses dealing with hours of work, vacations, sick leave, wages and benefits, seniority and grievances. The document's terms were negotiated by representatives of the respondent and employee representatives. This process has existed for over twenty years. Employees have utilized the grievance procedure and the respondent did not interfere with the employees while the document was being negotiated or during the term of the document.
The employees of the public works department have not formed an entity in any formal sense. The Board is satisfied that the grouping of employees in the public works department does not have a constitution by which it governs its affairs.
In essence, section 1(1)(e) of the Act defines a collective agreement as a document in writing between an employer and a trade union. A trade union is defined in the Act as an organization of employees formed for certain purposes. In considering the document relied on by the respondent, the Board has to decide whether the permanent employees of the public works department constitutes an organization of employees. In Associated Hebrew Schools of Toronto, [1978] OLRB Rep. Sept. 797, the Board reviews the necessary elements of an organization of employees:
Section 1(1)(n) [now (p)] of the Labour Relations Act defines a trade union, in part, as an organization of employees formed for purposes that include the regulation of relations between employees and employers... Such an organization is entitled, if it otherwise qualifies, to be certified, to negotiate collective agreements and generally to exercise the rights of a trade union under the Act. The Board, in seeking to determine whether an applicant before it is a trade union, required that it be more than just an informal joining together of individuals. Instead, the Board requires that the applicant be a formal organization whose members have bound themselves together on the basis of specific terms for purposes that include the regulation of relations between employees and employers. The decision of the Supreme Court of Canada in Orchard v. Tunny (1957) 1957 CanLII 57 (SCC), 8 D.L.R. (2d) 273 and the Ontario Court of Appeal in Astgen v. Smith (1967) 1969 CanLII 488 (ON CA), 7 D.L.R. (3d) 657 indicate that the essence of a trade union is a group of individuals who have entered into a contractual relationship one with the other, the terms and conditions of which are provided by the union's constitution. In Orchard v. Tunny, Rand J. in delivering the majority decision of the Court stated at p. 281:
Apart then, from statute, that a union is held together by contractual bonds seems obvious, each member commits himself to a group on a foundation of specific terms governing individual and collective action ... and made on both sides with the intent that their rules shall bind them in their relations to each other. That means that each is bound to all the others jointly.
In Astgen v. Smith, Mr. Justice Evans in giving the majority decision of the court made the following statements concerning the International Union of Mine, Mill and Smelter Workers at p.
662:
Mine Mill is not a corporation, individual or partnership, and is accordingly not a legal entity; it is an unincorporated group or association of workmen who have banded together to promote certain objectives for their mutual benefit and advantage and in law nothing is recognizable other than the totality of members related one to another by contract. The objects and purposes of the association are spelt out in the memorandum of association usually referred to as the 'constitution's the by-laws or rules provide the machinery for the proper carrying out of activities intended to advance the objectives and purposes of the voluntary association. Each member of Mine Mill, upon being granted membership, subscribed to those purposes and objects and in so doing entered into a contractual relationship with every other member of Mine Mill.
I adopt also the proposition stated by Thomson J. in Bimson v. Johnson et al 1957 CanLII 131 (ON HCJ), [1957] OR. 519 at p. 530, 10 D.L.R. (2d) 11 at p. 22, which was affirmed on appear 1958 CanLII 345 (ON CA), [1968] OWN. 217, 12 D.L.R. (2d) 379: "... that a contract is made by a member when he joins the union, the terms and conditions of which are provided by the union's constitution and by-laws... The contract is not a contract with the union or association as such, which is devoid of power to contract, but rather the contractual rights of a member are with all other members thereof.
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.
In arriving at its decision of October 30, 1987, the Board was satisfied that the respondent was party to an agreement with a grouping of employees but not a trade union. The permanent employees of the public works department cannot be considered an organization of employees since it is not a formal organization in the sense of having a constitution and officers. See Parkdale Wines Limited, [1970] OLRB Rep. July 485; National Standard Company of Canada, Limited, [1974] OLRB Rep. Oct. 704.
The hearing in the matter continued on November 19, 1987. The Board did not receive any additional representations from employees as a result of the posting of the amended Form 6 Notice to Employees.
Having regard to the agreement of the parties, the Board finds that all employees of the respondent in the Township of Michipicoten, save and except foremen, persons above the rank of foreman, office 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.
Clarity Note: For purposes of clarity, the bargaining unit description excludes persons engaged in aeronautics at the airport.
After the union and Mr. Lamon, the objecting employee, reviewed the lists of employees filed by the respondent, Lamon took the position that he should be excluded from the bargaining unit since he exercised managerial functions. Lamon advised the Board with respect to those job functions he performed which in his view were of a managerial nature. Lamon is classified as a mechanic leader. In this position, he orders stock and performs what he describes as public relations duties. He decides which equipment repair job will be given priority and he is involved in truck and equipment training for new employees. After giving all of the parties the opportunity to speak to this issue and after recessing to consider the matter, the Board orally ruled at the hearing that Mr. Lamon did not exercise managerial functions within the meaning of section 1(3)(b) of the Act.
The Board is satisfied on the basis of all the evidence before it that more than fifty-five per cent of the employees of the respondent in the bargaining unit, at the time the application was made, were members of the applicant on November 12, 1987, the terminal date fixed for this application and the date which the Board determines, under section 103(2)(j) of the Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act.
A certificate will issue to the applicant.