[1990] OLRB Rep. November 1149
1748-90-R Hospitality, Commercial and Service Employees Union, Local 73 of the Hotel Employees and Restaurant Employees International Union, Applicant v. Quetico Centre, Respondent
BEFORE: Ken Petryshen, Vice-Chair, and Board Members W. H. Wightman and E. G. Theobald.
APPEARANCES: W. Dubinsky, Don Campbell and Tom Rees for the applicant; G. L. Firman and Linda Wiens for the respondent.
DECISION OF THE BOARD; November 14, 1990
This is an application for certification in which the parties met with a Labour Relations Officer on November 1, 1990, reached agreement on most matters in dispute between them and further agreed to waive their right to a formal hearing in the matter at that time, except to the extent it was necessary to determine whether the applicant is a trade union. A hearing for this later purpose was held in Thunder Bay on November 8, 1990. The evidence before us on the status issue consists of the evidence of two witnesses called by the applicant. Counsel for the respondent argues that the Board should not find the applicant to be a trade union.
The Hotel Employees and Restaurant Employees International Union (the "International") has been found by the Board in a previous proceeding to be a trade union within the meaning of section l(l)(p) of the Labour Relations Act. (See Food Corp. Limited, [1983] OLRB Rep. May 636.) Up until this year, Local 75 of the International, which is centred in Toronto, had geographical jurisdiction in the area of Thunder Bay and vicinity. Complaints regarding poor service and demands for local autonomy from its Thunder Bay members led the International in 1990 to establish the applicant.
After some discussion about the creation of a new local in northwestern Ontario, D. Campbell, the acting President and representative of the applicant, and T. Rees, an International Organizer, held a meeting in Thunder Bay on August 10, 1990 in order to discuss the issue with the Thunder Bay members. During the relevant period, Local 75 represented less than one hundred members in a handful of bargaining units. Campbell verbally contacted the stewards in the bargaining units and asked t em to spread the word about the meeting, with the result that nine persons attended the August 10 meeting. At the meeting, a motion was passed to apply to the International for a charter.
Campbell then circulated a petition among members employed in the two largest bargaining units in Thunder Bay requesting the International to issue a charter for a local union for northwestern Ontario. Thirty-two persons, all members of Local 75, signed the petition. Campbell sent the petition to Rees who sent it to the International, along with a payment of $50.00. On September 1, 1990, the President of the International, with the approval of the General Executive Board, issued a charter to the applicant. On September 14, 1990, the applicant held a meeting at Thunder Bay which 30 persons attended. The charter was accepted at the meeting, the International's Constitution was adopted and it was decided that members of Local 75 be accepted as members of Local 73 without the need of paying an initiation fee or making a new application to become a member. Acting officers were selected and Campbell was appointed as the applicant's representative.
Section 1 of Article XI of the International's Constitution provides as follows:
ARTICLE XI-LOCAL UNIONS
Section 1. Issuance of Charters. Twenty-five or more persons may apply to the International Union for a charter of affiliation as a Local Union. The application shall be accompanied by a remittance of Fifty ($50.00) Dollars. Upon approval of the General Executive Board, the charter may be granted.
Counsel for the respondent raised four matters in argument. First, he argued that the manner in which notice was given for the August 10 meeting which was poorly attended is inconsistent with basic democratic principles. Conceding that the International's Constitution did not address the issue, counsel contended that the notice given to Local 75 members of the August 10 meeting was not adequate. Second, counsel argued that explicit in the requirement of the $50.00 payment in Section 1 of Article XI is that those petitioning for a local union pay the $50.00. Since they did not pay the money here but had it paid on their behalf, counsel maintained that the relevant provision of the Constitution had not been complied with. Third, counsel referred to Section 13 of Article XIII which in essence provides that no person shall be eligible for any office in the union if such persons become associated with or lend support to certain subversive organizations specified in the Article. Counsel maintains that such a provision contravenes the Canadian Charter of Rights and Freedoms and therefore should lead the Board to conclude that the applicant is not a trade union. Fourth, counsel referred to the objects clause of the International's Constitution and argued that it is ambiguous and does not meet the Board's standard.
Having carefully reviewed the evidence and the parties' submissions, the Board finds that the Hospitality, Commercial and Service Employees Union, Local 73 of the Hotel Employees and Restaurant Employees is a trade union within the meaning of section l(l)(p) of the Labour Relations Act.
The situation before us is one in which the International, an entity with status as a trade union, has created a new local union, namely Local 73. The Board is satisfied that in creating Local 73, there has been compliance with the International's Constitution. The charter was issued after more than twenty-five persons applied to the International for a charter. The Board notes that Article XI, Section 1 does not require that those persons applying be members of the trade union or that a meeting be held prior to an application being made. Since it was not necessary to have had the meeting of August 10, 1990, the way in which notice was given of the meeting is of no concern. In any event, we are satisfied that Campbell did not act unreasonably in the circumstances in his efforts to notify Local 75 members of the August 10 meeting. In our view, Section 1 of Article XI does not require the $50.00 payment be made by those persons applying for the charter. The analogy counsel attempted to make between the $50.00 payment and the minimum payment provided for in the Act's definition of membership is not applicable.
A provision such as Article 13 may have consequences as a result of section 13 of the Act but strictly speaking does not impact on the issue of trade union status. The fact that it may discriminate in a manner prohibited by the Canadian Charter of Rights and Freedoms does not mean that Local 73 fails to satisfy the Act's definition of "trade union". Although it was not argued that section 13 of the Act would prevent the Board from certifying the applicant given Section 13 of Article XIII of the International's Constitution, the Board finds it would not prevent certification in this case. The evidence of Mr. Rees is that this constitutional provision is not applied in Canada. As the Board has noted in previous decisions, such a constitutional provision would not deprive an entity of a certificate where the practice has been not to apply the particular provision. The focus of a section 13 inquiry is to determine whether prohibited discrimination exists in practice and not merely whether a particular constitutional provision of the sort before us is present. In reviewing the objects clause of the International's Constitution, as well as the document as a whole, the Board is satisfied that the applicant was formed for purposes which include labour relations.
In summary, the Board is satisfied that the applicant was issued a charter in accordance with the International's Constitution, that it accepted and adopted the Constitution, that it has members and officers and that one of its purposes includes labour relations. The applicant clearly meets the definition of "trade union" in the Act.
Having regard to the agreement of the parties, the Board finds that all employees of the respondent in the District of Rainy River, save and except supervisors, persons above the rank of supervisor, and office staff, constitute a unit of employees of the respondent appropriate for collective bargaining.
The parties are in dispute as to whether Pat Thorson and Margret Walshe are employed in the bargaining unit. The applicant contends that they are so employed, while the respondent argues that these two persons exercise managerial functions. The Board hereby appoints a Labour Relations Officer to inquire into and report back to the Board concerning the duties and responsibilities of the two persons in dispute.
The Board has determined, however, that the applicant's right to certification cannot be affected by the Board's ultimate decision regarding the above. On the basis of all the evidence before it, the Board is satisfied that more than fifty-five per cent of the employees of the respondent in the bargaining unit, at the time the application was made, were members of the applicant on October 19, 1990, the terminal date fixed for this application and the date which the Board determines, under section 103(2)(j) of the Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act.
Accordingly, the Board, pursuant to its discretion under section 6(2) of the Act, certifies the applicant on an interim basis as the bargaining agent for the bargaining unit as described in paragraph 11 above.
A formal certificate must await the final resolution of the dispute concerning the composition of the bargaining unit.