International Brotherhood of Electrical Workers, Local 594 v. International Brotherhood of Electrical Workers, Local 586, 1988 CanLII 3592

[1989] OLRB Rep. June 610

2636-87-R International Brotherhood of Electrical Workers, Local 594, Applicant v. International Brotherhood of Electrical Workers, Local 586, and Ken J. Woods, Respondents v. J.S.H. Mueller Ltd., Electrical Trade Bargaining Agency and Electrical Contractors Association of Ontario, Interveners

BEFORE: Michael Bendel, Vice-Chair, and Board Members J. A. Ronson and A. Hershkovitz.

APPEARANCES: Anthony M. Butler for the applicant; Chris G. Paliare and Ken Woods for the respondent; no one appearing for the intervener, J.S.H. Mueller Ltd.; S.C. Bernardo and Eryl Roberts for the interveners, Electrical Trade Bargaining Agency and Electrical Contractors Associ­ation of Ontario.

DECISION OF BOARD MEMBER A. HERSHKOVITZ; September 15, 1988

1. This is an application filed pursuant to section 62 of the Labour Relations Act.

2. The issue involved is that the parent International Union is asking, pursuant to section 62 of the Labour Relations Act, that the applicant, Local 594 be merged with Local 586.

3. The applicant states in Appendix No. 8.9 reasons for declining to effectuate this merger. The reasons set forward by Local 594 deal previously with the function and article of this Local since its revitalization as Local 594 of the International.

4. During the hearing, evidence was presented by counsels, both for the applicant and respondent dealing with the question as to the rights of the applicant to refuse to effectuate a merger with Local 586.

5. Counsel for the respondent argued that under the constitution of the International Brotherhood of Electrical Workers, ("International") the President of the International has been granted the authority, by convention, to order and carry out such merger when it is deemed neces­sary.

6. Counsel for Local 586 and the International presented the International constitution as the basis for the action being taken. The attention of the Board was directed to some of the clauses in the constitution relating to the duties and responsibilities of membership in the I.B.E.W. Article 22, section 4, states:

Each applicant admitted, shall, in the presence of members of I.B.E.W., … promises and agree to conform to and abide by the constitution and laws of the I.B.E.W. and its local unions. I will further the purposes for which the I.B.E.W. is instituted. I will bear true allegiance to it and will not sacrifice its interest in any manner.

7. Article 15, section 3, of the International constitution states:

The International President has the right and the power to merge or amalgamate Local Unions in any community or section where the facts development or conditions (in the judgement of the International President) warrants such action, also to decide the terms of or details of any merger or amalgamations when the Local Unions involved cannot or do not agree.

8. The constitution was adopted at the St. Louis convention November 1891 and amended at subsequent conventions right up to 1986 at a convention in Toronto, Ontario.

9. Exhibits of correspondence between Maurice J. Walsh and J.J. Barry International President were presented.

10. In a letter dated January 12, 1986 from Maurice J. Walsh to J.J. Barry, the said Mr. Walsh gives a history of Local 594 since a Charter was granted in 1978. In the statement Mr. Walsh points out that prior to the granting of the said Charter, he and members of present Local 594 were members of Local 172 and a merger took place with Local 586. He goes on to list his grievances with Local 586 and acknowledges the establishment of Local 594.

11. In response to Mr. Walsh's letter, Mr. J.J. Barry, International President in a letter dated December 18, 1986, states in paragraph 3:

In the early part of 1983, a proposed amalgamation of Local 594 into Local 586 Ottawa was under consideration. However, in accordance with the recommendation of International Vice-President Rose and in the light of certain commitments received from officers and members of the Local Union to take positive steps, it was decided to set aside for a period of one year any consideration of removing the I.B.E'W. charter from Pembroke. Whether the Local Union would remain in operation thereafter was dependent upon its ability to operate efficiently and carry out its responsibilities under the I.B.E.W. constitution.

12. This type of correspondence between the parties continued until, in a letter dated October 23, 1987, Mr. J.J. Barry, invoked Article 15, section 3 and as quoted in paragraph 3 of his let­ter to Ken Woods, International Vice-President of I.B.E.W., (tab 16).

13. Counsel for the applicant took the position that in the first instance the International is not entitled to effect a merger unless a vote is held among the members of Local 594. He chal­lenges the authority of the President to effect a merger even though provided by the constitution of the I.B.E.W. He further challenges the constitution by inferring that the power vested in the Inter­national President was not arrived at by the convention of the International.

14. The Local 594 constitution was submitted in evidence and it is important to note that Article, section 1, states:

This organization shall be known as Local 594 of the I.B.E.W. Pembroke Ontario. Local 594 shall have jurisdiction over all inside and outside as defined in article XXVIII, sections 4 and 5 of the I.B.E.W. Constitution performed in the county of Renfrew in the Province of Ontario.

However, the right of the International office to change this jurisdiction is recognized as provided in the I.B.E.W. constitution. Article XXII deals with admission of members. Section 1 - Qualifica­tion and admission of members shall be in accordance with Article 21 and 22 of the I.B.E.W. Con­stitution. Article 22, section 4 reads:

I in the presence of members of the I.B.E.W. promise and agree to conform to and abide by the constitution and laws of the I.B.E.W. and its local unions. I will further the purpose of for which the I.B.E.W. is constituted. I will bear true allegiance to it and will not sacrifice its intent in any manner.

15. Finally, he relies on 62(1) of the Labour Relations Act 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……..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.

16. On careful reading of the paragraph commencing with "the Board …….." and ending “...may dismiss the application”, one is obliged to assume that there is an obligation placed upon the Board to discretionary in arriving in a decision.

17. Both counsel for the applicant and the respondent cited and referred to past decisions handed down by the Board.

18. A number of cases were cited by both counsels in support of their respected positions counsel for the applicant referred to case number 2631-83-R in support of his request for holding a vote among members of Local 594. However, we must point out that this case did not deal with two Locals of the same International Union but two Locals of different unions. This case dealt with an application by U. F. C. W. and L. M. L. Foods Inc. v. Canadian Union of Restaurant and Related Employees, Hotel Employees and Restaurant Employees. In case 0490-77-R, Retail Clerks Interna­tional and Zehrs Market before Vice-Chair, Ian Springate, he makes note in paragraph 12, page 640 and refers to a decision of the Ontario Court of Appeal in Astgen v Smith [1969] D.L.R. (3rd) 657.

We recognize that at one time the Board refused to recognize one merger, amalgamation or transfer unless it had been approved by a majority of employees in the affected bargaining unit. However, since the decision of the Ontario Court of Appeal in Astgen v. Smith, supra, the Board has instead required only assurance that either the constitutional provisions of the prede­cessor trade union regarding, a merger, amalgamation or transfer or jurisdiction have been fol­lowed.

19. In File No. 0909-81-R before Kevin Burkett, Alternate Chair, that panel concluded and relied on the decision of the Ontario Court of Appeal in Astgen v. Smith. Since that decision has already been quoted it is not necessary to quote once more.

20. The cases quoted underlies the premise that Section 62(1) is discretionary and does not bind the Board to one hard and fast position but gives the panel sufficient scope to deal with the issue faced, based on facts presented.

21. Finally, both parties by virtue of accepting the International Constitution and Local 594 constituted have obligated themselves to abide by those constitutions.

22. For all of the above reasons, I am of the opinion that the application should be dis­missed. And I declare the successor respondent Local 586 has acquired the rights, privileges and duties under this Act of its predecessor.

DECISION OF BOARD MEMBER JAMES A. RONSON; September 15, 1988

1. I have had the opportunity to read the decisions of my colleagues. I concur with the opinions of Board Member Hershkovitz. I order that the application of the International Brother­hood of Electrical Workers, Local 594 be dismissed, and pursuant to section 62(1) of the Labour Relations Act ("the Act"), I declare that the International Brotherhood of Electrical Workers, Local 586 has acquired the rights, privileges and duties of Local 594 under the Act.

2. In an earlier decision my colleagues and I unanimously found that the preconditions in the International constitution had been satisfied and that Local 594 had been merged into Local 586. It then remained whether the Board was satisfied that a declaration under section 62(1) of the Act should issue. Board Member Hershkovitz and I are satisfied that the declaration should issue for all sectors of the construction industry.

3. For my part, I feel the reasoning expressed in Trans Nations Incorporated (DBA King Edward Hotel), [1981] OLRB Rep. Sept. 1298 applies:

"On the fact of its Constitution, Local 254 was affiliated with the International. Indeed, it was subordinate to the International in the sense that its by-laws were subject to the approval of the International and its jurisdiction is that as "may be allocated to it by the General President of the International Union." A person who becomes a member of Local 254 is required to also become a member of the International and, more importantly, under the terms of Article 3, Section 1 of the Local 254 Constitution its members "agree to abide by ... the Ritual and Consti­tution of the Hotel and Restaurant Employees and Bartenders' International Union, as now in effect or that may hereafter be amended." Section 16 of the International Constitution sets out the preconditions which must be satisfied to effect a lawful merger of local unions. Given the nature of the relationship between the two organizations, the requirement for all members of the Local to be members of the International, and the agreement of the members of the Local to abide by the Constitution of the International, we can come to no other conclusion but that the members of Local 254 had agreed, one to the other, to be governed by the provisions of Sec­tion 16 of the International Constitution in respect of mergers."

DECISION OF VICE-CHAIR MICHAEL BENDEL; September 15, 1988

1. This is an application under section 62 of the Labour Relations Act, in which the appli­cant seeks a declaration that the respondent, Local 586, has not acquired the applicant's rights, privileges and duties under the Act by reason of a merger, amalgamation or transfer or jurisdic­tion. Section 62 of 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.

2. The Board rendered an interim decision in relation to this application on May 26, 1988, In paragraphs 2 to 6 of the interim decision, the Board explained the nature of these proceedings as follows:

3. The applicant ("Local 594") has been a construction local of the International Brotherhood of Electrical Workers ("IBEW") in the County of Renfrew, based in Pembroke, since 1978. Its Bylaws, approved in accordance with the IBEW Constitution, have recognized this jurisdiction within the IBEW, and Local 594 is referred to in the provincial agreement between the Electn­cal Trade Bargaining Agency of the Electrical Contractors' Association of Ontario, on the one hand, and the IBEW and the IBEW Construction Council of Ontario, on the other, as an affili­ated Local Union, with its geographic jurisdiction being the County of Renfrew.

4. The International President of the IBEW, claiming to act in pursuance of the IBEW Constitu­tion, decided that, effective January 1, 1988, Local 594 would be merged or amalgamated with the respondent ("Local 586"), which is an Ottawa-based local. The reasons for the International President's decision are of little or no relevance from the perspective of the disposition of this application. It should perhaps be mentioned, however, that Local 594 was the smallest construc­tion local of the IBEW in Ontario, with some 60 members, and that, in the opinion of the Inter­national President, it was not a viable local. The officers of Local 594 have been opposed to this decision, which would have the effect of terminating the existence of Local 594. The members of Local 594 were consulted by the Local's leadership and they too were opposed to their Local being merged with Local 586. The officers of Local 594 have been refusing to co-operate with the implementation of the merger decision. One of the forms taken by this lack of co-operation was a January 1988 application by Local 594 in the District Court of Ontario for an injunction to prevent Local 586 gaining control of bank accounts in the name of Local 594. The injunction was not granted. Local 594 has applied to the Board for a declaration under section 62 of the Act, asking the Board to declare that Local 586 is not its "successor". The declaration is sought in respect of Local 594's rights, privileges and duties as an affiliated Local Union under the pro­vincial agreement.

5. Local 586 opposes Local 594's application and asks the Board to issue a declaration that it is the successor to Local 594.

6. Ken Woods is the International Vice President, First District, of the IBEW. The First District within the IBEW is Canada. Mr. Woods was the IBEW officer who had responsibility delegated to him by the International President to oversee and implement the merger or amalgamation decision. For that reason, he was named as a respondent in the application. In our view, he is not a proper party to these proceedings, and the application is hereby dismissed as against Mr. Woods.

7. The intervener [J.S.H. Mueller Ltd.] is an electrical contractor in Renfrew County, which supports the position taken by Local 594.

8. In the interim decision, the Board recorded its conclusion that the applicant had been merged or amalgamated with the respondent union in accordance with the Constitution of the IBEW. The applicant had argued at the hearing that, even if the Board were to come to that con­clusion, no declaration should issue under section 62 as employees for whom it was the bargaining agent had not approved of the respondent union being vested with any bargaining rights in respect of themselves. This issue was thoroughly argued at the hearing. However, in its interim decision, the Board did not deal with the argument. Its reason for not doing so was that it had not received any submissions on whether the scheme of province-wide bargaining in the ICI sector of the con­struction industry and, in particular, section 137(2) of the Act had any bearing on the circum­stances in which a declaration under section 62 might be issued. It decided that a further hearing should be held in order to give the parties an opportunity to make representations on the effect, if any, of section 137(2) of the Act on this application. Section 137(2) reads as follows:

137.-(2) Where an employer is represented by a designated or accredited employer bargaining agency, the employer shall be deemed to have recognized all of the affiliated bargaining agents represented by a designated or certified employee bargaining agency that bargains with the employer bargaining agency as the bargaining agents for the purpose of collective bargaining in their respective geographic jurisdictions in respect of the employees of the employer employed in the industrial, commercial or institutional sector of the construction industry referred to in clause 117(e), except those employees for whom a trade union other than one of the affiliated bargaining agents holds bargaining rights.

4. At the second hearing, all counsel were in agreement that section 137(2) did not affect the availability of a declaration under section 62 or the circumstances in which a declaration would issue. Counsel also advised the Board that, contrary to what the Board had assumed in its interim decision, the applicant's bargaining rights were not limited to the ICI sector of the construction industry and were not even limited to the construction industry. Specifically, it was pointed out to us that, while the only collective agreement to which Local 594 was a party was the provincial agreement, this agreement was not limited to the ICI sector, but made express provision for Resi­dential Work (in Section 15) and for Maintenance Work (in Section 16).

5. According to the evidence the Board heard, the members of the applicant, Local 594, were solidly opposed to the merger or amalgamation. It was argued on behalf of Local 594 and the intervener, J.S.H. Mueller Ltd., that the Board's case-law established the principle that no decla­ration would be issued under section 62 unless the Board were satisfied that the employees in respect of whom bargaining rights were to be transferred had consented to the transfer. Counsel for Local 586 denied that any such precondition existed to the issuance of a declaration under sec­tion 62.

6. As I read the cases referred to us by counsel for the parties, the Board has not clearly committed itself to any particular stance as to the need for employee approval of successorship before a declaration will be made. The decided cases reveal at least two distinct approaches.

7. On the one hand, it has been held that the Board's role, under section 62, is strictly declaratory. Its inquiry should be limited to examining whether, as claimed, a merger, amalgama­tion or transfer of jurisdiction has occurred. The transaction could be pursuant to constitutional provisions, or, in the absence of applicable constitutional provisions, in accordance with the com­mon law requirement of unanimous consent. The Board should make a declaration or dismiss the application on the basis of its finding. This approach is endorsed in the decision in Zehrs Markets Division of Zehrmart Limited, [1977] OLRB Rep. Oct. 637 (at page 640):

We recognize that at one time the Board refused to recognize any merger, amalgamation or transfer of jurisdiction unless it had been approved by a majority of employees in the affected bargaining unit. (See, for example, The Hyrdo-Electric Commission of the City of Hamilton, 63 C.L.L.C. Para. 16,261). However, since the decision of the Ontario Court of Appeal in Astgen v. Smith (1969) 1969 CanLII 488 (ON CA), 7 D.L.R. (3rd) 657, the Board has instead required only assurance that either the constitutional provisions of the predecessor trade union regarding a merger, amalgamation or transfer of jurisdiction have been followed (Navco Food Services Limited [1971] OLRB Rep. Feb. 80) or, if there are no such constitutional provisions, that there has been unanimous approval of the change by the union membership (Redi Steel Products Ltd. [1970] OLRB Rep. Nov. 857).

See also Trans Nations Incorporated, [1981] OLRB Rep. Sept. 1298.

8. On the other hand, it has been suggested that bargaining rights are not choses in action that can be freely assigned between unions. Rather they are "personal" to the bargaining agent. In order for bargaining rights to be assigned from one union to another, the Board must be satisfied, firstly, that there has been an effective merger, amalgamation or transfer or jurisdiction between the two unions, and, secondly, that the assignment has been approved by the employees con­cerned. This second requirement is designed to reflect the Act's purpose, as stated in the pream­ble, which is to "[encourage] the practice and procedure of collective bargaining between employ­ers and trade unions as the freely designated representatives of employees" (emphasis added). According to this approach, then, the Board's function, in relation to applications under section 62, is not a strictly declaratory one, but is designed to ensure that the labour relations policies reflected in the legislation are complied with. This approach to section 62 is explained at length in obiter dicta in L.M.L. Foods Inc., [1985] OLRB Rep. Aug. 1252. In that same case, the Board doubted that it had ever made a declaration under section 62 without reference to the employees' wishes.

9. A third approach is discernible. The Board, according to this approach, in addition to satisfying itself that the transaction between the unions has been an effective one (according to constitutional or common law requirements), will pay particular attention to whether the members of the predecessor union had adequate notice of the meeting at which the decision to approve the transaction was taken: Zehrmart (supra), and Children's Aid Society of Metropolitan Toronto, [1980] OLRB Rep. Jan. 24.

10. It was suggested in the course of argument that, in all of the decided cases, the result would have been the same regardless which of these approaches the Board had said it was endors­ing. This was because employees were actually consulted, and gave their approval to the transac­tion, in all of the cases where a declaration was granted. And in the few cases where there was no employee approval, there existed other grounds for dismissing the application. In the present case, however, there was no employee approval, and there exists no basis for dismissing the application other than failure to obtain the approval of the employees.

11. In my view, the reason for the different approaches to section 62 can be found within the section itself. On the one hand, subsection 1 empowers the Board to make a "declaration" that the successor "has.. .acquired the rights, privileges and duties under this Act of its predecessor". This language suggests, as does subsection 3, that the function of the Board id strictly a declaratory one, whereby, in the interests of dispelling doubts, the Board declares whether or not there has been a transfer of bargaining rights by reason of a merger, amalgamation or transfer of jurisdic­tion, as claimed by a "successor" union. On the other hand, it has been held that (apart from sec­tion 62) the rights, privileges and duties of a union under the Act are not transferable, with the result that, when a union merges or amalgamates or transfers its jurisdiction, its bargaining rights are lost. As the Board explained in L.M.L. Foods Inc. (supra), at page 1266:

If a trade union ceases to exist, its bargaining rights and any collective agreement to which it is a party will also cease to exist: Board of Light and Heat Commissioners of Guelph, 52 CLLC ¶17,024 Glass Guild Limited, 53 CLLC ¶17,057. Prior to the enactment in 1956 of the first of the predecessors of section 62 of the Labour Relations Act, the same principle applied when a trade union lost or changed its identity in the process of a merger or transfer of jurisdiction: Deloro Smelting and Refining Company Limited, 56 CLLC ¶18,037;...

The purpose of section 62, according to this view, is nothing less than the transferring of bargaining rights. Once that is accepted, a declaration under section 62 cannot be viewed as simply an endorsement by the Board of internal union decisions; its effect is akin to a certification. In these circumstances, it is logical for the Board to want to satisfy itself that a new bargaining agent is not being forced on unwilling employees.

12. The view I take of section 62 is in line with that expressed in L. M. L. Foods Inc. (supra). What is involved in a declaration under section 62 is the transfer of bargaining rights by the Board from one union to another, rather than a recognition by the Board that the predecessor union has transferred the rights to the successor. In these circumstances, the Board is entitled and bound to satisfy itself that the transfer sought is in accordance with other policies of the Act. I have concluded that (except for the ICI sector of the construction industry, which will be discussed later in this decision) the Board should not issue a declaration under section 62 unless it is satisfied that the employees affected approve of the change in their bargaining agent. In my view, it would be contrary to fundamental premises of the legislation for the Board to decide that, as a result of deal­ings between two unions, employees are to be saddled with a bargaining agent of which the major­ity of them do not approve. One of the fundamental and pervasive principles of the Act is that a union requires the support of a majority of the employees in each bargaining unit it seeks to repre­sent in order to become the bargaining agent, and that, in the final analysis, it needs to retain that support in order to remain the bargaining agent. This principle underlies the provisions on the cer­tification of bargaining agents, as well as the provisions on the termination of bargaining rights.The preamble to the Act proclaims that the purpose of the Act is to "[encourage] the practice and procedure of collective bargaining between employers and trade unions as the freely designated representatives of employees". It would simply not be consistent with this basic principle for the Board to effect a transfer of bargaining rights from one union to another without the consent of a majority of the employees affected.

13. At a textual level, too, the Act reveals, in my view, that it was not intended that bar­gaining rights should be transferred under section 62 without regard for the wishes of employees. I refer here to section 62(2) of the Act, which empowers the Board, among other things, to hold "representation votes" before issuing a declaration. This provision substantially confirms that the section is not merely a declaratory one. If the legislator had intended that the Board, under section 62, simply rubber-stamp mergers, amalgamations or transfers of jurisdiction that had been carried out in accordance with union constitutions, it would scarcely have been pertinent to empower the Board to hold representation votes.

14. It could be contended that, whatever might be the need for employee support in other cases, the present case is different in that the employees, through their adherence to the IBEW Constitution, must be deemed to have accepted in advance any decisions concerning the merger or amalgamation of IBEW locals that might be taken in accordance with the Constitution. The fallacy in that approach, in my view, is apparent from the dicta of the Board in L. M. L. Foods Inc., where the Board drew attention to the distinction between the trade union as an institution and the trade union as a bargaining agent. This is what the Board said (at pages 1265-1266):

Trade unions which are employer dominated, or which engage in discrimination on prohibited grounds, cannot acquire or assert bargaining rights which will be recognized under the Act (see sections 13 and 48). Beyond that restraint and the implied requirement that it have a constitu­tion, officers and employee "members", the Labour Relations Act does not prescribe or regu­late the form of a trade union's internal organization, or the content of its constitution. For his­torical and practical reasons, typical trade union constitutions provide for what they would describe as a "democratic" structure, in which members have some say both in the selection of those who act on its behalf and in the decisions and actions ultimately taken. "Democratic" structure is not, however, a requirement of the Labour Relations Act: see C.S.A. 0. National (Inc.) v. Oakville Trafalgar Memorial Hospital Association et at., 1972 CanLII 563 (ON CA), [1972] 2 O.R. 498; (1972) 26 D.L.R. (3d) 63 (Ont. C.A.); and, Canada Trust Mortgage Company, [1976] OLRB Rep. Oct. 596 at paragraph 15. With certain limited exceptions (the requirements of sections 82, 84, 85 and 86, for example) the Act does not provide for supervision of the relationship between a trade union and its members as such or, more accurately, of "the complex of contracts between each member and every other member of the union." The focus of the Act is on the trade union's entitlement to represent employees in a bargaining unit or units and on the trade union's activi­ties in that representative role. Of course, at least some of the employees in a bargaining unit will ordinarily be or have been members of the trade union which represents them. Some of the members of a trade union will ordinarily be or have been employees in a bargaining unit the union is or was entitled to represent. In the case of a trade union which represents only a single unit of employees of one employer, its members and the employees in the bargaining unit it rep­resents may be all or nearly all the same people. Nothing in the Labour Relations Act requires or anticipates that result, however; that is why it is important in analyzing the Act to bear in mind that its primary focus is on the trade union in its character as an agent of bargaining unit employees, rather than on its internal structure and the inter-relationships of its members.

The Board's concern, on applications under section 62, is both with unions as institutions and with unions as bargaining agents. For the purpose of deciding whether a merger or amalgamation has occurred, the Board must have regard for the internal dealings of the unions. But, for the purpose of deciding whether, in any case where there has been a merger or amalgamation, a declaration should issue, the union's constitution loses its relevance and the Board must approach the question from the perspective of the majoritarian principles in the Act. It is thus the standards of the Act that must prevail in determining whether there exists employee approval for the transfer of bar­gaining rights, rather than some notion of "deemed approval" that could be derived from the union's constitution.

15. It was noted earlier in this decision that Local 594 is an "affiliated bargaining agent" for the purposes of the part of the Act that deals with province-wide bargaining in the ICI sector of the construction industry. None of the parties made an argument based on section 137(2) of the Act, despite the invitation in our interim decision that they do so. Nevertheless, the Board is of the view that section 137(2) of the Act is of relevance to this application.

16. Section 137(2) was quoted earlier in this decision. Employers represented by a desig­nated or accredited employer bargaining agency are deemed by this provision to have recognized all affiliated bargaining agents represented by a designated or certified employee bargaining agency as the bargaining agents in their respective geographic jurisdictions. In my view, it is implicit in section 137(2) that the power to decide the geographic jurisdiction of each affiliated bar­gaining agent resides within the employee bargaining agency. This implicit power is reflected in the order designating the employee bargaining agency for electricians and linemen (dated December 12, 1977), which reads, in part, as follows:

Pursuant to clause a of subsection 1 of section 127 of The Labour Relations Act, R.S.O. 1970, c. 232, as amended, I hereby designate the International Brotherhood of Electrical Workers and the IBEW Construction Council of Ontario as the employee bargaining agency to represent in bargaining in the industrial, commercial and institutional sector of the construction industry all Journeymen and Apprentice Electricians and Journeymen and Apprentice Linemen, repre­sented by the International Brotherhood of Electrical Workers or locals 105, 115, 120, 303, 339, 353, 530, 586, 773, 804, 894, 1687 or 1739 of the International Brotherhood of Electrical Work­ers, or any other local of the International Brotherhood of Electrical Workers that might be char­tered to represent Electricians or Linemen in the industrial, commercial and institutional sector of the construction industry.

[emphasis added]

It is also reflected in clause 202 of the provincial agreement:

202 GEOGRAPHIC JURISDICrION

It is understood that the geographic jurisdiction of each Local Union is not subject to negotia­tion, but is established solely within the IBEW.

Accordingly, when the IBEW decided in accordance with its constitution that the geographic juris­diction of Local 586 should include the County of Renfrew, Local 586 became the affiliated bar­gaining agent for the County of Renfrew. By virtue of section 137(2), all employers to which the section applied were deemed to have recognized Local 586 as the affiliated bargaining agent in the geographic jurisdiction of the County of Renfrew.

17. The effect of section 137(2), therefore, is to transfer bargaining rights between affiliated bargaining agents when there is a change in their geographic jurisdictions. Accordingly, without Board intervention, by operation of law, employers represented by the Electrical Trade Bargaining Agency are deemed to have recognized Local 586 as the affiliated bargaining agent for the County of Renfrew. Section 137(2) thus constitutes an exception to the general rule, stated earlier in this decision, to the effect that it requires a declaration under section 62 for there to be a transfer of bargaining rights between unions.

18. If the Board were to decide that employee support were necessary for a declaration under section 62 in the case of the ICI sector and if employee support were lacking, the result would be a contradictory one: employers would have to deal with the alleged successor (by virtue of section 137(2)), but there would be no confirmation of this in the form of a declaration under section 62. The result would be even more contradictory if the Board were to make a declaration under section 62 that bargaining rights had not been acquired by the successor union (as we have been asked to do in this case).

19. I would note in passing that section 138 of the Act, which provides for the provisions dealing with province-wide bargaining to prevail over other provisions, makes no mention of con­flict between section 62 and section 137(2). Section 138 is as follows:

138.-(1) Where there is conflict between any provision in sections 139 to 151 and any provision in sections 5 to 57 and 62 to 136, the provisions in sections 139 to 151 prevail.

20. I am of the opinion that, in order to avoid the contradictory results described above, a declaration should issue under section 62 of the Act even in the absence of employee approval, where, by virtue of section 137(2), there has been a deemed recognition of a change of jurisdiction between affiliated bargaining agents. This result might seem to fly in the face of the analysis earlier in this decision about the need for employee approval prior to the issuance of a declaration under section 62. However, as I understand the provisions relating to province-wide bargaining in the ICI sector, the Act itself, rather than the Board, effects the transfer of bargaining rights between affili­ated bargaining agents. If the Act provides for the transfer of bargaining rights between unions without the need for employee approval, the Board has no alternative but to respect this. But that is no reason for the Board to relax the requirement for employee support for the transfer of bar­gaining rights in all the industries or sectors not subject to province-wide bargaining. The tail should not wag the dog.

21. In the result, therefore, I would declare that the respondent, Local 586, has acquired the rights, privileges and duties under the Act of its predecessor, Local 594, as regards the ICI sec­tor of the construction industry.

22. As regards the rights, privileges and duties of Local 594 under the Act in respect of other employees, I would have ordered a representation vote.