Ontario Labour Relations Board

[1987] OLRB Rep. May 658

0438-86-R Independent Local 385, Applicant v. Canadian Union of United Brew­ery, Flour, Cereal, Soft Drink and Distillery Workers and its Local 385, and The United Food and Commercial Workers Union, Respondents v. Coca-Cola Ltd., Intervener

BEFORE: S. A. Tacon, Vice-Chair, and Board Members G. O. Shamanski and B. L. Armstrong.

APPEARANCES: Paul Cavalluzzo, David Wagner, Richard Blair and Bob Hill for the applicant; E. G. Posen, G. Plenderleith and Paul Poirer for the respondent Canadian Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers and its Local 385; Paul W. Timmins for the res­pondent The United Food and Commercial Workers Union; Henry Maeots for the intervener.

DECISION OF THE BOARD; May 4, 1987

1. The Board adds Coca-Cola Ltd. as an intervener to these proceedings.

2. This is an application under section 62 of the Labour Relations Act for a declaration that the applicant has acquired the rights, privileges and duties of its predecessor by reason of a merger, amalgamation or transfer of jurisdiction. That is, the applicant, Independent Local 385, claims that it is the successor trade union by virtue of a transfer of jurisdiction as a result of disaffiliation from the Canadian Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers. The application solely concerns employees of Coca-Cola at 46 Overlea Boulevard and 81 Turnberry in Toronto; the applicant does not claim to represent Coca-Cola employees at 24 Fenmar Drive. The first named respondent (hereinafter referred to as the Canadian Brewery Workers or the National) and the second named respondent (the UFCW) oppose the application. The intervener employer took no position in the matter throughout.

3. In brief, the Canadian Brewery Workers, at a convention in January 1986, decided to merge with the UFCW. Local 385 opposed the merger and voted to disaffiliate from the Canadian Brewery Workers. The issue, in essence, is not whether the disaffiliation was proper but whether Local 385 disaffiliated with any bargaining rights. The applicant asserts that independent Local 385 acquired all the property, assets, contracts and bargaining rights of the Canadian Brewery Workers Local 385. The respondents submit that the Canadian Brewery Workers, not Local 385, held the bargaining rights in question and, hence, Local 385 "disaffiliated" without those rights. Further, the respondents contend that the applicant must prove its status as a trade union within the mean­ing of section l(l)(p) of the act.

4. The Board heard viva voce testimony from six witnesses. A number of documents were tendered in evidence as well. The Board assessed the credibility of the witnesses according to the usual criteria, including the consistency of their evidence, the firmness of their memory, their abil­ity to resist the influence of interest to modify their recollections, their capacity to express clearly their recollections, their demeanour while testifying, their responses in cross-examination and what appears to the Board to be reasonably probable when the circumstances, the testimony of the wit­nesses and the documentary evidence are considered.

5. The Board notes that, in its view, there was relatively little actual conflict in the testi­mony of witnesses seeking to recall events, some of which occurred more than twelve years ago. In some instances, for example, witnesses were not actually present on the convention floor in 1974 in Winnipeg to hear particular speeches or explanations. On balance, the Board prefers the evidence of the applicant's witnesses in the few instances of conflicting testimony. Having weighed and assessed the relative credibility of the witnesses and the evidence both documentary and viva voce, the Board makes the following findings of fact.

6. It is necessary to elaborate somewhat on the historical background of the respondent National and its relationship to the applicant in these proceedings. The "International Union of Brewery Workers" (the International) was formed at the turn of this century following expansion of the "National Union of the Brewers of the United States" into Canada. In the years since then, the International was involved with a number of jurisdictional disputes with the Teamsters; the lat­ter union succeeded in repeated raids of the American membership of the International. Finally, in November 1973, the "International" held a convention in Cincinnati, Ohio, to approve a formal merger with the Teamsters.

7. The merger, however, was not without vehement opposition by virtually the entire Canadian branch of the International. Prior to Cincinnati, several union officials in the Canadian branch met in Calgary and formed an "ad hoc committee" to seek a means of thwarting the pro­posed merger. The committee included P. O'Dowd (then business agent for Local 304), D. Wag­ner (then executive secretary of the Soft Drink Workers Joint Local Executive Board, the "Joint Board") and G. Plenderleith. The committee retained C. Thomson as counsel. Further, other counsel were retained locally, including C. Paliare, in Ontario. At the Cincinnati convention, the Canadian delegates participated up to the merger resolution itself and, when it was apparent their resistance was futile, walked off the convention floor. [The Board notes that, while it is convenient to refer to the opposition as consisting of the Canadian branch of the International, in fact, a few Canadian locals supported the merger, although some subsequently decided not to join the Teamsters.]

8. Immediately following the Cincinnati convention, a steering committee consisting of many of those on the ad hoc committee, including Wagner and O'Dowd, met in Toronto. On legal advice, the committee took the position that the "old" International had abandoned them, that the "Canadian Branch", in fact, constituted the "International". In particular, the committee relied on a provision in the International constitution providing that the organization could not be disbanded if at least three locals desired its continuation. This stance was taken, at least in part, to buttress the position of the Canadian branch in the inevitable jurisdictional and legal battles which would ensue with the Teamsters. It was decided to call a special convention in Winnipeg to officially "found" the Canadian branch as a separate entity from that which had merged with the Teamsters. The committee instructed Paliare to draft a new constitution for presentation at Winnipeg using the "old" International constitution as the framework with amendments as appropriate to reflect the new circumstances. Other necessary committees (e.g., credentials, resolutions, constitution) were struck in preparation as well.

9. The Canadian branch of the "old" International held its founding convention in Winnipeg in January 1974. A constitution was adopted derived from that of the "old" International with several amendments, in particular, with the addition of a disaffiliation clause reproduced, in part, below:

ARTICLE XV - DISAFFILIATION

Right of Local Union to Disaffiliate

Sec. 1. Affiliation of Local Unions with the National Union is voluntary and the right of Local Unions, which are not part of a bargaining unit comprised of more than one (1) Local Union, to disaffiliate from the National Union at any time shall be inviolate irrespective of any other pro­vision of this Constitution including the provisions of Article XIV, provided, however, that in any case of disaffiliation there shall be compliance with the following procedures and conditions.

(e) Upon disaffiliation in accordance with these procedures, the Local Union shall have no claim for monies paid to the National Union and the National Union shall have no claim upon the assets, funds, contracts, bargaining rights or other properties of the Local Union.

In this regard, it should be noted that the phrase "bargaining rights" was added to the original ver­sion prepared by Paliare and approved on the convention floor. The transcript of the convention proceedings was tendered in evidence. O'Dowd was elected president and Wagner as secretary-treasurer.

10. The legal and jurisdictional disputes between the Teamsters and the "new" Internation­al, the entity which emerged from the Winnipeg convention, arose as anticipated. The wrangles included attempted Teamster "raids" on several Ottawa locals of the "new" International, dis­putes over various assets, use of the "International" name, etc. The parties, however, succeeded in negotiating a full settlement of all their disputes. That settlement, in which Wagner, Thomson and Paliare were involved, is set out in Coca-Cola Ltd., [1975] OLRB Rep. Nov. 862 and is excerpted below:

11. The Brewery Workers acknowledge the present status as bargaining agents, and the validity of the present bargaining rights held by all Locals or former Locals of the Brewery Workers who are not opposed to the merger or who are now affiliated with the Teamsters as well as the suc­cession of all of their bargaining rights under collective agreements and otherwise to the Team­sters, and agree that they will not directly or indirectly attack or bring the same into question in any proceedings in any Court, Labour Board or other Tribunal, and that they will not, during the lifetime of any agreement, seek to displace any such Local as bargaining agent.

12. The Teamsters acknowledge the present status as bargaining agents, and the validity of the present bargaining rights, whether under collective agreements or otherwise, held by the Locals remaining affiliated with the Brewery Workers, including those of the Brewery Workers Provin­cial Joint Board and its constituent Locals, and agree that they will not directly or indirectly attack or bring the same into question in any proceedings in any Court, Labour Board or other Tribunal and that they will not, during the lifetime of any agreement, seek to displace any such Local as bargaining agent.

13. Apart from their respective obligations concerning this settlement, the parties do hereby release, remise and forever discharge each other and the respective officers and members of each other, and their respective executors, administrators, successors and assigns, from all actions, causes of actions, damages, claims and demands whatsoever which they ever had now have or which they, their executors, administrators, assigns or successors hereafter may have against each other or their respective officers and members by reason of or rising out of the Merger/Affiliation Agreement of September, 1973, or the adoption thereof at the convention of the International of the Brewery Workers at Cincinnati on November 6th, 1973, as well as the actions taken by the Brewery Workers at the Convention in Winnipeg on January, 1974, and all and every action and Proceeding and things done by the parties as a consequence of the fore­going.

Pursuant to the settlement, as well, the "new" International changed its name to the "Canadian

Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers" (the "National") in

June 1975.

11. Over the years, several locals exercised their right to disaffiliate. For example, in 1984, Local 304 successfully disaffiliated from the National (see Kwik Lok Ltd., (1986) Board File No.0760-85-R, unreported, January 14 and 24). Several locals in the Maritime provinces also disaf­filiated, including Locals 351, 353 and 355 in Newfoundland and Locals 362 and 701 in New Bruns­wick. More than one unsuccessful attempt was made at various conventions over the years to sub­stantially alter the disaffiliation article to impede or preclude that right.

12. At the Halifax convention in 1984, the question of a merger was raised. At that point, article XVI, section 3 dealt with the impact of a possible merger as follows:

Sec. 3. In the event that the National Union concludes and ratifies a merger with a larger organi­zation, such merger shall not bind any Local Union which votes against the merger. In the event a Local Union votes against the merger, the Local Union shall be deemed to have disaffiliated from the National Union and from any Successor Union and neither the National Union nor any Successor thereto shall have any claim upon the assets, contracts, bargaining rights or other properties of the Local Union.

At that stage, Local 385 and the Joint Board (see paragraph 13, infra) opposed any mergers but the matter did not come to a vote. The issue remained very much alive, however, and in late 1985, the Joint Board had come to favour a merger.

13. It is useful now to place the applicant and other Ontario soft drink locals in this histori­cal context in more detail. Wagner was instrumental in the formation of Local 385 in 1968. When the employees of the intervener were organized, the certification application was in the name of the International for reasons of convenience at the time. Shortly thereafter, the Joint Board was created to facilitate organizing in the soft drink industry, provide servicing assistance to the mem­ber locals as needed and conduct joint bargaining in the industry. The Joint Board consisted of representatives of the member locals (including the presidents/chairs of the member locals) and a full-time officer, the executive-secretary. While bargaining was conducted by the Joint Board, con­tract proposals were generated by the member locals. Ratification votes were conducted at the local level as well, although the ballots themselves were pooled before counting with those of all member locals. The resulting collective agreements, though, were signed separately. The "Nation­al" endorsed the contract proposals and generally signed the collective agreements but usually did not otherwise become involved in the negotiations. It should also be noted that the day to day administration of the collective agreements was conducted by the locals themselves. The Joint Board was involved at Step 3 of the grievance procedure and approved forwarding the grievance to arbitration. The locals did retain the authority to direct a grievance to arbitration notwithstanding a negative decision by the Joint Board; if the local was successful at arbitration, it was reimbursed by the Joint Board for the costs involved. Local 385 participated in the Joint Board from the incep­tion of that structure as did most Ontario locals in the soft drink industry. Local 278, though, as a ''composite local'' was not a Joint Board member but did bargain together with the Joint Board.

14. A convention was called for January 1986 in Toronto to resolve the question of merger. Notwithstanding continued vigorous opposition by Local 385, a merger of the National with the UFCW was approved. One of the resolutions adopted dealt with the process of disaffiliation. That is, a local voting against a merger at the convention was considered to have initiated disaffiliation proceedings. To successfully disaffiliate, a majority of the members of the local had to vote, by secret ballot, in favour of disaffiliation at a subsequent meeting called by the National. The National (or its successor) was entitled to fully participate in that meeting and approve the voters/membership list.

15. W. Lumsden (then secretary-treasurer of the National) convened a meeting of Local 385 members on March 1, 1986 pursuant to the terms of the resolution just noted. Lumsden and two officials from the UFCW spoke against disaffiliation; R. J. Hill (president, Local 385) spoke in favour. Other persons who wished to speak on the issue were permitted to do so. The vote was 258 to 14 in favour of disaffiliation, more than necessary to satisfy the disaffiliation requirement. Lums­den wished the Local well and offered assistance in the future if the Local so desired.

16. Following that meeting, the minutes book, bank account and financial records were transferred to Local 385's possession. On April 7, 1986, though, C. Evans (a senior official with the UFCW) advised the Local 385 executive that the UFCW considered that the National held the bargaining rights and, hence, Local 385 had disaffiliated without any bargaining rights whatsoever. The Local 385 executive informed the Local membership of the UFCW position and the execu­tive's decision to retain counsel and file a successor application with the Board. The membership concurred and the instant application was filed on May 12, 1986.

17. Since the March 1 vote, Local 385 has continued to administer the collective agreement, although the Local and the UFCW have agreed to consent jointly to the referral of grievances to arbitration pending the outcome of these proceedings. In the interim, as well, the employer has held the dues in a trust fund. The "old" Local executive continued virtually extant. A constitution and bylaws for the Local were drafted, essentially as revisions to the National constitution and "old" Local 385 bylaws reflecting the fact of disaffiliation. At the regular meeting in October 1986, officers were nominated for the various positions. Notices of a special meeting to be held on Octo­ber 18 were posted along with copies of the draft constitution and bylaws. At that meeting, the draft constitution was read, discussed and approved to be submitted to a further vote (as required by the procedures). The meeting was attended by seventy-three persons, thereby, constituting more than a quorum and minutes kept. At the next regular meeting on November 1 at which there was also a quorum and minutes kept, the financial statements were approved and the draft consti­tution and bylaws adopted unanimously. As well, the name change to Independent Local 385 was formally approved and the new oath taken by all Local members present.

18. The arguments of counsel are next set out in a highly abbreviated form.

19. Counsel for the applicant argued that the applicant was entitled to a declaration under section 62 of the Act on three separate bases: (a) that the bargaining rights had been transferred to Local 385 by the International after Local 385 was chartered or at least from the 1974 Winnipeg convention and, thus, the applicant retained its bargaining rights on disaffiliation as it remained the same entity; (b) the same analysis as in (a) but, if independent Local 385 was a new entity, that Local 385 transferred its bargaining rights to that new entity on disaffiliation; (c) that, if the National held the bargaining rights, those rights were transferred to the applicant upon successful disaffiliation. Counsel referred to a number of provisions in the National constitution supporting his assertion that local autonomy was the foundation of that organization, including the "unique" disaffiliation provision. The other documentary evidence, including the constitution of the Joint Board, the local bylaws, the settlement with the Teamsters, the applicant's constitution and bylaws were likewise analyzed. Counsel reviewed the viva voce evidence in detail, submitting that the evi­dence of Hill and Wagner should be preferred where in conflict with the testimony of the respon­dent's witnesses, especially in view of the central role played by Wagner in events surrounding the formation of the National and of Local 385. Several cases were cited in support: British Columbia Ferry and Marine Workers' Union and British Columbia Government Employees Union and B.C.G.E. U. Marine Services - Licensed Component, [1977] Can LRBR 17; The Hydro-Electric Commission of the City of Hamilton (1962) 63 CLLC ¶16,261; National Bank of Canada, Sillery, Quebec, [1982] 2 CLRBR (NS) 202; Kwik Lok Ltd., supra. In reply, counsel asserted the date of the application, that is, before the change of name to "Independent Local 385" had been formally approved by the membership, was not fatal to the application given the continued existence and operation of the Local following disaffiliation. Further, counsel submitted the Board jurisprudence dealing with status in certification applications was not analogous. It was stressed that the Team­sters settlement transferred or recognized the jurisdiction of the locals only, not of the "new" International and the Board decision in Coca-Cola Ltd., supra, confirmed the "new" International (by that point, the National) was a separate entity. Finally, counsel emphasized that, to accede to the arguments of the respondent and intervener, would result in the absurd situation wherein, despite the fact that not a single person in the bargaining unit was a member of the UFCW, that union held the bargaining rights.

20. Counsel for the respondent UFCW reviewed the evidence with reference to his asser­tion that the applicant must establish its status as a trade union and had failed to do so. Specifical­ly, the applicant had not taken the appropriate steps to create a new entity which could be regarded as a trade union under the Act. Further, it was asserted there was no evidence indicating how, when or why bargaining rights had been transferred to the Local and, as the National's name was still on the collective agreements, that body held the bargaining rights. The National had acquired those bargaining rights as a result of the Teamsters settlement or through voluntary rec­ognition at the point the first collective agreement was signed following the Winnipeg convention. Cases cited in support included: Island Park Food Mart Ltd. (Re) Goldstein IGA, [1970] OLRB Rep. Nov. 838; Famous Players Limited, [1982] OLRB Rep. July 1011; Bartlett Transport Ltd., [1984] OLRB Rep. Feb. 168; City of Mississauga Public Library Board, [1975] OLRB Rep. Oct. 788.

21. Counsel for the respondent National adopted the submission of counsel for the respon­dent UFCW and stressed that, as at the application date, Independent Local 385 did not exist. As a consequence, the application must be dismissed as premature. Counsel conceded Local 385 had trade union status but asserted the gap between Local 385 and Independent Local 385 was not a technical deficiency but a fundamental flaw. Counsel reviewed specific provisions of the constitu­tion and the evidence in support of his position that the National held the bargaining rights and that disaffiliation did not transfer those bargaining rights to the local given the wording of article 15(1)(e) of the constitution. Apart from an express transfer from the predecessor to the successor, an event which counsel argued had not occurred here, it was submitted that the constitution pro­vided the bargaining rights remained with the National, now the UFCW, and that this result was not absurd. Counsel contended the intent of article 15(1)(e) was clear, namely, that the locals on disaffiliation "took what they had" and, in the case of Local 385, that did not include the bargain­ing rights. It was submitted the applicant bore the onus of proving successorship and had not met that onus. Further, even if the Board found the applicant to be a trade union within the meaning of section l(l)(p) of the Act, successor rights did not flow as a consequence. That is, counsel argued that the applicant was not entitled to a declaration of successor status. In support, counsel referred to the following cases: City of Mississauga Public Library Board, supra; Bartlett Transport Ltd., supra; Creeds Storage Ltd., [1985] OLRB Rep. Feb. 238; Canadian Rexall Corporation, [19761 OLRB Rep. Sept. 557; International Union of Operating Engineers, Local 793, [1979] OLRB Rep. Aug. 789; The Resilient Floor Workers Union, Local 2965, Confederation of National Trade Unions, [1967] OLRB Rep. Feb. 895; Municipal Tank Lines Limited, [1973] OLRB Rep. June 363.

22. As noted in paragraph 2, the parties acknowledge that Local 385 properly disaffiliated from the National. What is vigorously contested is whether Local 385 disaffiliated with the bargain­ing rights so that the applicant may properly claim to represent the employees of the intervener employer at Overlea and Turnberry locations and whether the applicant is a trade union within the meaning of the Act given that the applicant has sought a section 62 declaration in the name of "In­dependent Local 385". The Board intends to deal first with the question of bargaining rights and to do so must have regard to the historical relationship of Local 385 and the National.

23. The events leading up to and including the founding convention in Winnipeg are described in paragraphs 6 - 9, supra and need not be repeated in their entirety here. However, to use a political analogy, it is difficult to depict those events as other than a revolution by the Cana­dian Branch of the International. When efforts to prevent the merger with the Teamsters appeared certain to fail, the Canadian Branch walked out of the Cincinnati convention to establish a new organization. It is accurate to state that the new organization sought to clothe itself with legitimacy by taking the position, on legal advice, that the "old" International had abandoned them, that the "Canadian Branch" in fact, constituted the International and that there was a "constitutional" basis for that stance in the clause in the International constitution providing that the organization could not be disbanded if at least three locals desired its continuation. Necessity for an adjudica­tion of the claim to constitutional legitimacy of the "new" International, as contrasted with the "old" International which merged with the Teamsters, was precluded by the agreement between those two organizations which fully and finally resolved all matters in dispute between them (see paragraph 10 above). Quite simply, the "revolution" by the Canadian Branch succeeded. Those who walked out of Cincinnati, following the Winnipeg founding convention and in accordance with the terms of settlement with the Teamsters, established a new union, the "National". The defacto "new" International became the de jure National.

24. In determining the "locus" of the bargaining rights for the affected employees, then, it is necessary to examine both seminal documents, namely, the constitution adopted at Winnipeg and the settlement with the Teamsters ,and the historical context. It is acknowledged that the origi­nal certification by the Board in 1968 for the affected employees was in the name of the Interna­tional. It is also clear that the subsequent formation of the Joint Board did not affect those bargain­ing rights. The constitution of the Joint Board merely empowered that body, inter alia, to negotiate on behalf of the member locals with respect to collective bargaining. In the Board's view, either Local 385 held the bargaining rights at the time of the Winnipeg convention or Local 385 did not hold those bargaining rights in January 1974 but acquired them following the settlement with the Teamsters. In either circumstance, the Board does not consider that the organization referred to as the "new" International and later as the "National" ever obtained the bargaining rights in respect of the employees affected by this application.

25. It is appropriate to elaborate somewhat on this conclusion. The constitution adopted at the Winnipeg convention in January 1974 was born of the unhappy experiences at Cincinnati, of the frustration of the Canadian Branch which unsuccessfully sought to persuade the "old" Interna­tional to refuse a merger with the Teamsters. The founders of the "new" International were deter­mined to prevent a repetition. That is, the "new" International was to be grounded in the auton­omy of the member locals. The hallmark of the new organization was voluntariness and the right of the member locals to disaffiliate was sacrosanct (see paragraph 9 supra wherein article XV, section 1 of the constitution is cited). Article 15(1)(e) expressly confirmed that, upon disaffiliation in accordance with the appropriate procedures, the National "shall have no claim upon the assets, funds, contracts, bargaining rights or other properties of the local". The Board regards the addi­tion of the phrase "bargaining rights" to the original draft of that section and the transcript of the Winnipeg proceedings as further confirmation that the National was not intended to usurp or encroach upon the autonomy of the member locals with respect to matters critical to that auton­omy such as assets, funds, contracts, bargaining rights and other properties. Wagner's testimony, which the Board accepts, is to the same effect. The sole exception (which is not relevant here) addressed circumstances where an established bargaining unit was composed of more than one local, in which case all of those locals were required to disaffiliate (article 15(1) and (2)). In reality, that exception dealt with the Brewery workers group in Ontario which was party to a master col­lective agreement covering some fourteen locals and over twenty branch units. Obviously, in the formation of any umbrella organization there is some ceding of power from the membership. That is inherent in the concept of "affiliation". However, it is clear that the intention of the constitution was to provide a framework for member locals to achieve common objectives without thereby ren­dering nugatory the "inviolate" right of the members to disaffiliate. This philosophy permeates the constitution. The Board has noted article XV(1)(e) but other examples could be given.

26. The other seminal document is the settlement with the Teamsters which finally resolved all disputes between the "old" International (which had merged with the Teamsters by that date) and the "new" International. As noted earlier, that settlement is set out in Coca-Cola, supra, and excerpted in paragraph 10 above. Item 7 of that settlement specifies that the Teamsters "acknowl­edge the present status as bargaining agent, and the validity of the present bargaining rights, whether under collective agreements or otherwise, held by the Locals" remaining affiliated with what has been referred to as the National. This document can only be construed as confirming bar­gaining rights already held by the breakaway locals or an abandonment of bargaining rights by the Teamsters in respect of those breakaway locals in the expectation that the locals would acquire those rights. The document makes clear that, thereafter, the Teamsters retained no rights or claims vts-a-vis the breakaway locals.

27. The Board need not conclusively determine whether the breakaway locals held the bar­gaining rights prior to the settlement with the Teamsters. Since that time, for over a decade in fact, the employees affected by this application have been governed by successive collective agreements. The Teamsters, in their settlement, abandoned any bargaining rights in respect of the employees of the intervener. The only reasonable interpretation of the continuance of the collective bargaining relationship is that the applicant local was accorded voluntary recognition by the intervener, at the latest in consequence of the settlement with the Teamsters, and, given the expiry of the one year period referred to in section 60 of the Act, acquired bargaining rights in respect of those employ­ees. When the historical events and the settlement with the Teamsters are considered together, however, it is clear that the National could not have acquired those rights. As noted in paragraphs 6 - 9, 23 and 25, supra, the raison d'etre of the National was local autonomy. Article XV, section 1(e) of the constitution, for example, is consistent with that conclusion, as is the testimony of Wag­ner. While it is correct to note that the National appears as a party to the collective agreements and National officials generally have signed those collective agreements, in the Board's view, on the evidence, including the transcript of the Winnipeg convention and C. Thomson's comments in par­ticular, the inclusion of the National as a party on the collective agreements was always intended to be a matter of form and not substance.

28. Thus, at the time of disaffiliation, Local 385 left the National in conformity with the procedures established under the constitution and disaffiliated with its assets, funds, contracts, bar­gaining rights and other properties. Parenthetically, it should be noted that this analysis is sup­ported as well by the complete absence of any reference that Local 385 would depart without bar­gaining rights when disaffiliation was a real possibility, i.e., in the period from January 1986 to the March 1986 disaffiliation meeting. It is inconceivable that, in the context of the National seeking to dissuade the Local from disaffiliating, particularly at the March 1 meeting itself where Lumsden (for the National) and two UFCW officials spoke in favour of the merger with the UFCW, there would be no mention of the "fact" (subsequently asserted) that the Local would have left without its bargaining rights if such had been the view of the National.

29. There remains to be considered the issue of the name of the applicant and its status as a trade union within the meaning of the Act as at the application date of May 12, 1986. The respon­dents contend that the application is premature or fatally flawed because the application is in the name of Independent Local 385 whereas that name was not formally approved, along with the revised constitution and bylaws until November 1, 1986. In the Board's opinion, the decisions in Famous Players Limited, supra, International Union of Operating Engineers, supra, and Canadian Rexall Corporation, supra, are simply not analogous to the instant case. Nor are the considerations which shape the Board's jurisprudence with respect to establishing trade union status for new organizations appropriate: City of Mississauga Public Library Board, supra. In the instant case, Local 385 was clearly a trade union within the meaning of section l(l)(p) of the Act prior to disaf­filiation and that organization disaffiliated in compliance with the National's constitution. Follow­ing disaffiliation, the Local continued to administer the collective agreement (although both it and the National IUFCW consented to arbitration referrals), its officers continued to function, meetings of the executive and the membership continued to be held as usual. Obviously, the references to the National in the constitution, the local bylaws and the Local's name had become meaningless as a result of disaffiliation. The Local acted expeditiously and methodically in the circumstances in reviewing the constitution and bylaws and adopting those revised documents at the membership meeting in November (see paragraph 17 above). The Board does not consider that there was a fun­damental change in the organization sufficient to affect its status as a trade union: Hartley Gibson Company Limited, [1986] OLRB Rep. Nov. 1517; Food Corp. Limited, [1983] OLRB Rep. May 636. Quite simply, Local 385 was a trade union when affiliated to the National and, having prop­erly disaffiliated, retained that status: Kwik Lok Ltd. (January 14, 1986) supra; The Hydro Electric Power Commission of Ontario (1957), 56 CLLC ¶18,080; Navco Food Services Limited, [1971] OLRB Rep. Feb. 80.

30. In the Board's view, in these circumstances, the name of the applicant as Independent Local 385 is at most a technical irregularity which should not be permitted to defeat a meritorious application: s.114 of the Act. The extraordinarily technical nature of the respondent's argument may readily be illustrated. On that reasoning, having applied as Independent Local 385, the appli­cant should have sought leave to amend the style of cause (which would undoubtedly have been granted) to Local 385 or Local 385 with the reference to the organization with which it had been affiliated. Then, following formal approval of its "new" name in November 1986, the applicant should have sought another amendment to indicate Independent Local 385 in the style of cause. In the circumstances, this too would have been granted. Throughout, however, there would have been no doubt amongst the parties as to the organization applying to the Board. Thus, the charac­terization of the applicant's name as at most a technical irregularity is eminently reasonable. Fur­ther, having heard the evidence and argument over a period of five hearing days, the Board does not regard it as conducive to sound labour relations to require a new application be filed and the matter re-heard.

31. Having regard to the foregoing, the Board concludes that this application should be dis­missed. The applicant has held the bargaining rights in respect of the intervener's employees for well over a decade. The applicant retained those rights upon disaffiliation. Moreover, disaffiliation did not constitute a fundamental change in the organization sufficient to affect its status as a trade union within the meaning of the Act and its identity as an organization has continued unchanged apart from its formal name. The applicant has held the bargaining rights for the employees affected by this application for a considerable period and continues to hold those rights at present. Thus, the applicant Independent Local 385 has not acquired the rights, privileges and duties of its predecessor by reason of a merger or amalgamation or transfer of jurisdiction. The applicant is not a successor within the meaning of the Act to the trade union which held bargaining rights for the affected employees. The applicant is the very entity which held and continues to hold those rights.