[1988] OLRB Rep. May 491
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., Intervener
BEFORE: Michael Bendel, Vice-Chair, and Board Members J. A. Ronson and A. Hershkovitz.
APPEARANCES: Anthony M. Butler for the applicant; Chris G. Paliare, Terry McEwan, Ken Woods and Tom Moffat for the respondents; and Robert B. Sheppard for the intervener.
DECISION OF THE BOARD; May 26, 1988
1This is an application under section 62 of the Labour Relations Act, in which the applicant seeks a declaration that the respondent 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.
2The 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 Electrical 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.
3The 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 cf 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.
4Local 586 opposes Local 594's application and asks the Board to issue a declaration that it is the successor to Local 594.
5Ken 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.
6The intervener is an electrical contractor in Renfrew County, which supports the position taken by Local 594.
7Two preliminary matters should be mentioned at this stage, namely whether the intervener was entitled to status in these proceedings and, if it did have status, whether it could lead evidence on the consequences to its business operations of the merger or amalgamation. Both of these questions were raised by counsel for Local 586 at the outset of the hearing.
8Counsel for Local 586 objected to the intervener having any slatus in these proceedings. He noted that the intervener was not named as such in Local 594's application. He argued that section 62 recognized no role for employers in such an application. Although, according to counsel, an employer could be a proper party in a proceeding under section 62 under other circumstances, the issues raised by the present application were strictly internal matters within the IBEW. Finally, counsel maintained that, in any event, the employer's objection to the merger or amalgamation was based on grounds that were irrelevant, namely the possible consequences of the successorship for its business. Reference was made to Deseronto Public Utilities Commission, [1977] OLRB Rep. April 248, and M.L.S. Cable Installations Inc.,[1987] OLRB Rep. Nov. 1413.
9After hearing counsel for all parties, including the intervener, the Board ruled against the objection by counsel for Local 586 to the intervener's status in these proceedings. In our view, the intervener's interests are directly affected by the application and cross-application. This is not a strictly internal union matter. At issue in these proceedings is whether the intervener has a bargaining relationship with Local 594 or with Local 586 of the IBEW. Just as, on an application for certification, the employer has status in relation to the question whether the statutory prerequisites to certification have been met, so too, on the present application, the employer should be allowed to argue, if it wishes to do so, that the alleged "successor” union is not entitled to a declaration to that effect.
10However, we also ruled at the hearing that we would not allow the intervener to lead evidence on the possible adverse consequences to itself of the application before us, since this was not a relevant consideration for us. The intervener had indicated in its Reply to the Application that it was concerned about the likely disruption of the special working relationship between itself and Local 594 and about the inappropriateness of having a single local responsible for two such geographically and economically distinct areas as Renfrew County and greater Ottawa. It was in relation to these matters that counsel for the intervener had wished to adduce evidence. In Deseronto Public Utilities Commission, (supra), the Board ruled that concerns of this nature were not relevant to the question whether a declaration should be made under section 62. We endorse the following views expressed in that decision (at page 249):
The matters raised by the respondent are clearly a 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, [19741 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 fact 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.
11In keeping with this ruling, we also ruled, in the course of the hearing, that, on the basis of its irrelevancy, we would not allow counsel for Local 594 to adduce evidence on the history of relations between Local 594 and other locals of the IBEW or on the possible "dislocation" of Renfrew electrical workers as a result of the merger or amalgamation. This ruling was in response to an objection by counsel for Local 586.
COMPLIANCE WITH THE IBEW CONSTITUTION
12One of the principal arguments by Local 594 and the intervener was that the merger or amalgamation was not authorized by the IBEW Constitution. The specific allegations presented in this regard can be summarized as follows:
(a) that Local 586 did not have the jurisdiction under its Bylaws to represent employees in the County of Renfrew;
(b) that since, under article 15, section 3, thereof, a merger or amalgamation could only be effected in respect of locals in the same ".community or section", the merger or amalgamation of Local 594, a Renfrew County local, with Local 586, an Ottawa local, was not provided for in the Constitution; and
(c) that the Constitution impliedly required the approval of a majority of members in each of the affected locals before a merger or amalgamation could be effected, and that no such approval had been given.
In the absence of applicable constitutional provisions to effect the merger, counsel argued, the unanimous consent of all of the members of the two locals was required by common law.
13According to the Bylaws of Local 594, its jurisdiction, in geographic terms, was limited to the County of Renfrew. The evidence indicated that the jurisdiction of Local 586, under its Bylaws, had been limited to the counties of Carleton, Lanark, Prescott and Russell, as well as some counties in west Ouebec. However, in anticipation of this merger or amalgamation with Local 594, its jurisdiction appears to have been enlarged to include the County of Renfrew. There was, however, an apparent contradiction in the evidence concerning the amendment of Local 586's Bylaws. On the one hand, the Bylaws of Local 586 that were received in evidence indicate, on their face, that this change in its jurisdiction was "approved" on September 8, 1987. On the other hand, in a letter dated October 23, 1987, the International President stated that he had not yet approved the amendment to the Bylaws of Local 586, although he expressed no doubt about his intention to do so. Under article 17, section 6, of the Constitution, bylaw amendments have to be approved by the International President, failing which they are "null and void". This apparent discrepancy led counsel to question whether Local 586 had the constitutional authority to represent members in the County of Renfrew as of the date of the alleged merger or amalgamation, which was January 1, 1988, or even as of the date of the hearing, in April 1988. The onus, it was argued, was on Local 586 to show that its Bylaws authorized it to represent employees in the County of Renfrew.
14According to the evidence, the distance from Pembroke, the headquarters of Local 594, to Ottawa, the headquarters of Local 586, is about 160 kilometres. Renfrew County, it was said, is largely rural, while the area within the jurisdiction of Local 586 (prior to its expansion to include Renfrew County) is largely urban. On the basis of this evidence, it was argued that the two Locals were not in the same "community or section", within the meaning of article 15, section 3, of the IBEW Constitution, which reads as follows:
The I[nternational] P[resident] has the right and the power to merge or amalgamate L[ocal] U[nions] in any community or section where the facts, developments or conditions - in the judgment of the I[nternationall P[resident] - warrants (sic) such action, also to decide the terms or details of any merger or amalgamation when the Ljocal] U[nions) involved cannot or do not agree.
In support of the argument that the two locals were not in the same "community", counsel referred, among other things, to article 15, section 6, of the Constitution, which reads, in part, as follows:
Units may be established within a L[ocal] U[nion] by provision in the L[ocal] U[nionl bylaws when its jurisdiction covers more than one city, town or community...
It was also argued that, in view of the many references in the Constitution to "Railroad Councils", the word "section" should be given its normal meaning in a railway context, which (according to Webster's New Collegiate Dictionary (1980)) is a "part of a permanent railroad way under the care of a particular set of men".
15In support of the contention that article 15, section 3, of the Constitution envisaged a voluntary merger or amalgamation, rather than a forced one, testimony was given by Mr. Patrick Wyse, the president (or former president) of Local 594, who has been active within the IBEW for many years. He testified that, in his experience and to the best of his knowledge, mergers or amalgamations within the IBEW had always been preceded by a vote of the members of the two affected locals. Counsel also referred to article 1, section 2, of the Constitution, which reads as follows:
This organization, in the merging together of all electrical workers in the United States and Canada, fully recognizes the sovereignty of each of our great nations and the advancement of industry capatible (sic) with the laws of each country and the objects of this Constitution.
Counsel argued that part of the purpose of this provision was to ensure that Canadian democratic practices and principles would be respected within the IBEW. It was part of Canada's political culture, according to counsel, to hold a vote at the local level before a decision of this kind could be taken. Counsel also noted that the Constitution contained no mechanism for the implementation of a merger or amalgamation against the wishes of a recalcitrant local. This suggested that the Constitution did not envisage "hostile" mergers or amalgamations, but voluntary ones, where the officers of the two locals were willing participants.
16It is not necessary, in our view, to recite, in any greater detail, counsels' submissions on the question of the alleged non-compliance with the IBEW Constitution, or to quote all of the provisions of the Constitution relied upon. We are satisfied that the decision to merge or amalgamate the two locals, as well as the merger or amalgamation itself, was fully in accordance with the Constitution.
17In the view we take of these issues, the jurisdiction of Local 586 was extended to cover the County of Renfrew prior to the effective date of the merger or amalgamation. It was argued by counsel for Local 594 and for the intervener that Local 586 had not produced satisfactory evidence of this amendment. In our view, it is abundantly clear from the documentary evidence before us that the International President had every intention to extend Local 586's jurisdiction in anticipation of this merger or amalgamation. We cannot, in these circumstances, attach any particular importance to whether he actually signed a document approving the amendment of the Bylaws. The Constitution permitted the amendment and the political will to amend was obviously present. It would be unduly formalistic for this Board to question the amendment of the Bylaws on the basis of the absence of evidence as to the affixing of the International President's signature.
18As a result of the amendment of Local 586's Bylaws, Local 586's jurisdiction included the County of Renfrew. Local 586 was thus in the same "community or section" as Local 594 at the material date, with the result that the merger or amalgamation of the two locals was unquestionably provided for under article 15, section 3, of the Constitution. Having reached this conclusion, we do not feel it is necessary for us to express any views on the various arguments advanced about the meaning of the words "community or section" in article 15, section 3, of the Constitution.
19We disagree with the arguments put to us to the effect that the Constitution impliedly requires the approval of Local 594's members and Local 586's members before a merger or amalgamation of the locals can be effected under article 15, section 5. We are aware of no principle of interpretation that would require, or even permit, us to imply a need for membership approval of a merger or amalgamation, when the Constitution clearly empowers the International President to decide on mergers or amalgamations of locals. We would observe that the Constitution gives some broad powers to the International President in relation to the organization and operation of the IBEW. It would appear to us to be difficult to reconcile a requirement for approval of a merger or amalgamation by the members of the locals with these broad powers in the hands of the International President. We agree with counsel for Local 586 that it would be unreasonable to interpret the Constitution in the manner advocated by counsel for Local 594 and the intervener as this could lead to a handful of members holding up a merger or amalgamation that was in the interests of the membership as a whole. The testimony of Mr. Wyse to the effect that votes have been held prior to other mergers or amalgamations within the IBEW does not detract in any way from our conclusion that the Constitution does not require such a vote.
20Two other lines of argument were put to us by counsel for Local 594 and for the intervener which it would be convenient to consider at this stage.
21The first has to do with the signature of the International President, Mr. J. J. Barry, on some of the documents that were presented in evidence. It was pointed out to us that the signatures were not identical on all of the documents. In the absence of evidence that Mr. Barry had in fact signed these documents, we were asked to refuse to accept them at face value. The consequence of acceding to this request would be that we would be left without any proof that the International President had decided, under article 15, section 3, of the Constitution, that Local 594 should be merged or amalgamated with Local 586, and without any proof that he had approved the amendment of Local 586's Bylaws.
22We have decided that we should accept all of the impugned documents as having been signed by the International President. These documents were admitted into evidence upon the consent of all parties as to their authenticity. In these circumstances, Local 594 and the intervener might well be estopped from challenging the authenticity of the documents. However, at the very least, even in the absence of estoppel, the onus would be upon Local 594 or the intervener, in these circumstances, to prove that the signatures were not those of the International President. The variations between the various signatures by the International President appear to us to be small. We would require expert evidence to satisfy us that these signatures were not all by the hand of the same person, and no such evidence was presented.
23The other matter that should be mentioned at this stage is the argument by Local 594 to the effect that the merger or amalgamation had not yet in fact been carried out. Counsel for Local 594 intended to lead evidence to support this argument. He maintained that this was relevant to the question whether a declaration would issue under section 62. Counsel for Local 586 objected to this evidence on the ground of its irrelevancy. The evidence, we were told, would show that Local 586 had not yet paid any of Local 594's bills (e.g. for rent and telephone); had not paid Local 594's office staff or terminated their employment; had not serviced Local 594's pension plan; had not issued any tax receipts for union dues; had not sent newsletters or notices of meetings to Local 594's members; had not referred any of Local 594's members to any jobs; had not been policing the collective agreement in Renfrew; etc. After hearing argument on the subject, we ruled that the evidence in question was of no relevance and we declined to hear it. Our reason for this ruling is that there need only be substantial completion of the transaction before the l3oard will issue a declaration of successorship. In The Corporation of the City of Brockville, [1979] OLRB Rep. Feb. 76, the Board stated the following (at page 79):
The question of whether a merger, amalgamation or a transfer or jurisdiction has been completed must be determined by reference to the facts of each case. Previous decisions indicate that there need only be substantial completion of the transaction in order to obtain a declaration from the Board under section [62].
It appears from a reading of that decision that the two locals in question still maintained separate bank accounts and still voted separately on their own business at union meetings., The Board referred to these questions, at page 80 of the decision, as "mechanics of the transaction [that] still remain to be done". The locals' failure to have completed these mechanical aspects of the transaction by the date of the hearing before the Board did not prevent a declaration from issuing. Similarly in the present case, we are satisfied that the necessary decisions have been taken in accordance with the IBEW Constitution, and all that remains to be done to implement or perfect the merger or amalgamation is to finalize what can be characterized as some of the mechanical aspects of the transaction.
OTHER MATTERS
24The other principal argument on behalf of Local 594 and the intervener was that a declaration would not be issued under section 62 unless the employees in the affected bargaining unit approved of the transfer of bargaining rights.
25It would appear that all of the bargaining rights of Local 594 that are the subject of these proceedings are in the industrial, commercial and institutional sector of the construction industry referred to in clause 117 (e) of the Act. A scheme of province-wide bargaining within the electrical industry applies in this sector, which is subject to the provisions of sections 137 to 151 of the Act. No representations were addressed to the Board on the effect, if any, of those provisions on these proceedings.
26The Board would draw the attention of the parties to subsection 137(2) of the Act, which reads as follows:
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.
We would also draw their attention to clause 202 of the provincial agreement, which reads, in part, as follows:
202 GEOGRAPHIC JURISDICTION
It is understood that the geographic jurisdiction of each Local Union is not subject to negotiation, but is established solely within the IBEW.
27We have recorded above our finding that the amalgamation or merger was carried out in accordance with the IBEW Constitution. We are thus being asked to rule that Local 586, even though its jurisdiction has been duly extended by the IBEW cto include the County of Renfrew, should not be allowed to exercise that jurisdiction since the Renfrew employees are not in agreement with the merger or amalgamation. It would appear to be the effect of subsection 137(2) that Local 586, in the circumstances of this case, is deemed to have been recognized as the affiliated bargaining agent for Renfrew County. The Board has doubts whether an application under section 62 of the Act, in such circumstances, can be reconciled with subsection 137(2) of the Act. These doubts are reinforced, in the present case, by clause 202 of the provincial agreement.
28Since this aspect of the case has not been the subject of any representations by the parties, we have decided that a further hearing should be scheduled by the Registrar for the purpose of enabling the parties to address the question referred to by the Board in the preceding paragraph of this decision.
29The matter is referred to the Registrar.