United Brotherhood of Carpenters and Joiners of America v. Repla Limited, 1990 CanLII 5837

[1990] OLRB Rep. May 612

2182-89-R United Brotherhood of Carpenters and Joiners of America, Applicant v. Repla Limited, Respondent

BEFORE: Owen V. Gray, Vice-Chair, and Board Members R. W. Pirrie and E. G. Theobald.

APPEARANCES: David Watson and Marisa Pollock for the applicant; C. E. Humphrey for the respondent.

DECISION OF OWEN V. GRAY AND BOARD MEMBER, E. G. THEOBALD; May 1, 1990

1. The applicant seeks certification under the Labour Relations Act ("the Act") as exclu­sive bargaining agent for an industrial unit of employees of the respondent. The same unit was the subject of an earlier application by the United Brotherhood of Carpenters and Joiners of America, Local 27 ("Local 27"). This application was filed approximately four weeks after Local 27 lost a representation vote conducted in connection with its application. Pursuant to clause 103(2)(i) of the Act, the Board (differently constituted) dismissed that earlier application and barred any fur­ther application by Local 27 for that unit for a period of six months.

2. Clause 103(2)(i) of the Act provides that the Board has the power

to bar an unsuccessful applicant for any period not exceeding ten months from the date of the dismissal of the unsuccessful application, or to refuse to entertain a new application by an unsuc­cessful applicant or by any of the employees affected by an unsuccessful application or by any person or trade union representing such employees within any period not exceeding ten months from the date of the dismissal of the unsuccessful application.

Two distinct powers are conferred by this clause. One is the power to bar an "unsuccessful appli­cant" for a period of up to ten months from the date of dismissal of its application. That power is ordinarily exercised, if at all, when an application is dismissed, and can only affect the rights of the unsuccessful applicant. The second power conferred by clause 103(2(i) is the power to refuse to entertain a new application filed within ten months after an unsuccessful application. That power is ordinarily exercised, if at all, when a new application is filed within the subject period. This second power can be invoked against any applicant, not just the previously unsuccessful applicant.

3. The respondent objects to the Board's entertaining this application. It argues that, hav­ing regard to the provisions of the applicant's constitution, the applicant and its Local 27 are not separate entities and that the bar imposed when the earlier application was dismissed should, therefore, be considered to bar this application. In the alternative, if this applicant is not found to be the same entity which made the previous unsuccessful application, the respondent, argues that we should exercise our discretion under clause 103(2)(i) to refuse to entertain this application. In that connection it argues that, under the applicant's constitution, employees on whose membership the applicant relies will become members of Local 27, a result which the respondent says makes this application a scheme to avoid the bar imposed on Local 27. In the further alternative, the respondent argues that if the applicant and Local 27 are treated as separate and distinct entities, then the applicant cannot be found to be a "trade union" within the meaning of clause l(l)(p) of the Act because it is not an entity in which employees can have direct membership.

4. The applicant's constitution provides that its executive can charter local unions. A local union has its own elected officers. Its affairs are governed by prescribed uniform by-laws. Subject to the approval of one of the General Officers of the applicant, a local may adopt additional by­laws and trade rules so long as they do not conflict with the applicant's constitution. A local union has the power to try its own members on charges of violation of the applicant's constitution or of the local's by-laws or trade rules. Two or more locals in one city must, and locals in adjoining geo­graphic areas may, form a District Council composed of delegates from those local unions. The affairs of a District Council are governed by prescribed uniform by-laws and such additional by­laws not inconsistent with the applicant's constitution as may be adopted by the constituent local unions and approved by an officer of the applicant. Locals may also form State or Provincial Coun­cils. A State or Provincial Council is governed by rules adopted by its membership and approved by an officer of the applicant. Locals, District Councils and Provincial Councils elect delegates to represent them at General Conventions of the applicant. The General Officers of the applicant are elected at the General Convention. When a General Convention is not in session, the affairs of the applicant are governed by a General Executive Board consisting of the General Officers together with others selected from various geographic districts in Canada and the United States. Members of a local have the right to appeal to the General Officers and General Executive Board from local decisions. The General President and General Executive Board each have powers to suspend the powers of Local officers and appoint a trustee to supervise the conduct of affairs of a local and, indeed, to suspend or dispand a local.

5. Section 1 of the applicant's constitution provides that

This organization shall be known as the United Brotherhood of Carpenters and Joiners of America, and shall consist of an unlimited number of Local Unions and members subject to its laws and usages and shall not be dissolved while there are three (3) dissenting Local Unions.

Membership in one of its locals is treated as membership in the applicant to the extent that the lan­guage of the constitution gives the latter concept any independent relevance.

6. The respondent argues that there can be no membership in the applicant except as a result of membership in the local. The applicant says that certain of the provisions of its constitu­tion do contemplate membership otherwise than through membership in a local.

7. Tom Harkness held various offices in the Western Ontario District Council of the appli­cant from 1949 to 1967 and in the applicant itself from 1967 to his retirement in 1986. During the last seven years of that period he was Canadian Director of organizing for the applicant, reporting directly to the applicant's General President in Washington. He testified that there had been a number of organizing campaigns in Ontario in which the applicant had solicited and received appli­cations for direct membership in the applicant which had then formed the basis of applications to this Board for certification. He identified instances in which the applicant had been granted certifi­cation on the basis of such membership evidence. Mr. Harkness said it had been the applicant's practice to organize in this way when, for example, the target employer carried on business in sev­eral locations which did not all fall within the geographic jurisdiction of one local. This practice of soliciting applications for direct membership in the applicant was well known to the applicant's General Executive and had not been the subject of any complaint or disapproval.

8. Mr. Harkness noted that people who had not been members of the union before would not know what the difference was between the local and "the international", as he described the applicant. He said the organizers would explain the difference to the new members and it would be up to them to choose. The applicant's counsel specifically asked what happened after certification to members who were organized by the applicant and, particularly, whether they would then be assigned to a local or continue with "the international". Mr. Harkness answered that it would be up to the affected members to decide whether they would be assigned to a local or continue with the international. None of this testimony was challenged in cross-examination.

9. Unions whose constitutions provide for creation of subordinate "local" unions are often referred to as "parent" unions. The Board has said it will treat a parent union as a "trade union within the meaning of clause l(l)(p) where employees are members of the parent union: Metal Textile Corporation of Canada Limited, (1955), 55 CLLC ¶18,016; Carleton Co-operative Milk Transport, [1970] OLRB Rep. June 305. The Board has also said that evidence of membership in a local union is (Cochrane-Dunlop Hardware Ltd., 63 CLLC ¶16,268) or may be (Lincoln Graphics Ltd., [1969] OLRB Rep. Nov. 983) evidence of membership in the parent union. A bar imposed on a local union under clause 103(2)(i) has not been treated as a bar to application by its parent union, nor has the Board refused to consider a subsequent application by the parent of an unsuc­cessful applicant in circumstances in which a subsequent application by an unrelated trade union would have been entertained: Elm Tree Nursing Home, [19781 OLRB Rep. Nov. 984. (See also The Clorox Company of Canada Ltd., [1980] OLRB Rep. Feb. 184, where an application by a local was entertained during period of bar on applications by parent and Creeds Storage Ltd., [1984] OLRB Rep. May 712, where an application was entertained during period of bar imposed on the applicant's sister local.) The Board has treated a parent union and one of its locals as dis­tinct trade union entities for other purposes, such as a successorship application under section 62: The Hydro-Electric Commission of the City of Hamilton, 62 CLLC ¶16,261.

10. Counsel for the respondent invites us to reconsider the Board's conventional notion that

a parent and its locals are separate trade unions, in light of the legal characteristics of a trade union as described by the Ontario Court of Appeal in the following often quoted passage from its judge­ment in Astgen et al. v. Smith et al, 1969 CanLII 488 (ON CA), [1970] 1 O.R. 129, 69 CLLC ¶14,198 (Ont. C.A.) at pp. 133-134 and 135:

……I concede at the outset that a labour union under the Labour Relations Act, R.S.O. 1960, c. 202, and allied legislation has a "status" conferred by such legislation which makes it somewhat different from a fraternal organization or an athletic club but apart from such statutes a labour union is essentially a club, a voluntary association which has no existence, apart from its mem­bers, recognized by law. A club is basically a group of people who have joined together for the promotion of certain objects and whose conduct in relations to one another is regulated in accordance with the constitution, by-laws, rules and regulations to which they have subscribed.

……Mine Mill is not a corporation, individual or partnership, and is accordingly not a legal entity; it is an unincorporated group or association of workmen who have banded together to promote certain objectives for their mutual benefit and advantage and in law nothing is recognizable other than the totality of members related one to another by contract. The objects and purposes of the association are spelled out in the memorandum of association usually referred to as the "constitution"; the by-laws or rules provide the machinery for the proper carrying out of activi­ties intended to advance the objectives and purposes of the voluntary association. Each member of Mine Mill, upon being granted membership, subscribed to those purposes and objects and in so doing entered into a contractual relationship with every other member of Mine Mill, Rand, J., in Orchardetal. v. Tunney, 1957 CanLII 57 (SCC), [1957] S.C.R. 436 at p.445,8 D.L.R. (2d) 273 at p.281, stated:

……each member commits himself to a group on a foundation of specific terms gov­erning individual and collective action ... and made on both sides with the intent that the rules shall bind them in their relations to each other.

I adopt also the proposition stated by Thompson, J., in Bimson v. Johnston et al., 1957 CanLII 131 (ON HCJ), [1959] O.R. 519 at p. 530, 10 D.L.R. (2d) 11 at p. 22, which was affirmed on appeal [1958] O.W.C. 217. 1958 CanLII 345 (ON CA), 12 D.L.R. (2d) 379:

…..that a contract is made by a member when he joins the union, the terms and condi­tions of which are provided by the unions constitution and by-laws ... The contract is not a contract with the union or the association as such, which is devoid of the power to contract, but rather the contractual rights of a member are with all other members thereof.

The contract of association is not between the members and some undefined entity which lacks the capacity to contract; it is a complex of contracts between each member and every other member of the union.

Counsel for the respondent argues that the notion that a parent union is a trade union distinct from its locals cannot and should not be applied here. He argues from the provisions of its constitution that the applicant consists of local unions together with a superadded administrative structure. If one sets aside the locals as being separate trade unions, he argues, the administrative structure which remains cannot itself constitute a trade union.

11. Clause l(l)(p) of the Labour Relations Act defines "trade union" this way:

"trade union" means an organization of employees formed for purposes that include the regula­tion of relations between employees and employers and includes a provincial, national, or inter­national trade union, a certified council of trade unions and a designated or certified employee bargaining agency.

In Ontario Hydro, [1989] OLRB Rep. Feb. 185 the Board observed that:

The word "organization" in clause 1(1)(p) is not itself expressly defined. The language of the clause and of other provisions of the Act provides guidance as to what is meant. Clause 1(1)(p) contemplates that the "organization" is something which is "formed" for particular purposes. The language of clauses (I) and (p) of subsection 1(1) and of other sections tell us that the orga­nization is one of which "employees" are "members". Sections 74, 87, 91, 92, 98, 99 and others contemplate that a trade union will have at least one "officer, official or agent" who acts or pur­ports to act on its behalf in matters about which the Act is concerned. These characteristics -membership within a formal structure with defined purposes and action through agents - suggest that the "organization" must either be a corporation without share capital created pursuant to some statute in that behalf or an unincorporated association brought into existence in the man­ner contemplated by the common law. Some unions in Ontario are corporations. Most are unin­corporated associations.

After reciting the above-quoted passage from Astgen et al. v. Smith et al, supra. the Board observed that

For the purposes of proceedings under the Labour Relations Act, the common law as it relates to unincorporated associations is modified in certain respects by that Act. For example, an indi­vidual who is not yet and might never be a member of the association in accordance with the provisions of its constitution may nevertheless be treated as a member for the purpose of the Labour Relations Act: see clause 1(1)(l) and subsection 103(4) of the Act and compare Metropolitan Life Insurance Co. v. International Union of Operating Engineers, Local 796 et al., 1970 CanLII 7 (SCC), [1970] S.C.R 425, 11 D.L.R. (3d) 336, 70 CLLC ¶14,008 (5.C.C.). Subject to the modifications effected by the Act, the question whether something exists as an "organization ... formed for purposes that include the regulation of relations between employees and employers" is gov­erned by the common law principles to which the Court of Appeal made reference in the pas­sage we have quoted from Astgen et al. v. Smith et al., supra.

12. The common law perspective which the respondent asks us to apply does not lead us to the result for which it contends.

13. The respondent's argument accepts and depends on the assertion that the applicant's locals are trade unions as defined by the Act. Viewed from the perspective that a trade union has no existence separate from the individuals who have contracted to be members of it, the applicant cannot usefully be described as an organization of local trade unions in any sense which treats the local trade unions as entities distinct from the individuals who comprise their membership. Each local union consist of workers who have agreed to be bound by the uniform local by-laws contem­plated by the applicant's constitution and any additional by-laws which have been adopted by that local. As the Ontario Court of Appeal observed in Astgen et al v. Smith et al, supra, that agree­ment is not with the local union itself, but with all other members of that local union. That is not the only agreement those workers made when they became members of the local, however. When they become members of the local they also became bound by the terms of the applicant's constitu­tion generally. In that respect, and to that extent, each member of each local union has entered into a contract with all of the members of all of the local unions. It is only because the members of each local union have entered into that other contract with that larger group that the General Executive Board and the General Officers of the applicant have authority over the local unions.

14. On this analysis, then, the applicant cannot be seen as anything other than an organiza­tion of individuals who have contracted each with the others on certain terms for purposes which include those contemplated by clause l(1)(p) of the Act. Accordingly, we have no difficulty char­acterizing that organization as a "trade union" within the meaning of clause l(l)(p) of the Act even if membership in that organization is always accompanied by membership in a smaller, included organization comprised of individuals who have agreed to be bound each with the others for similar purposes to an additional set of rules governing the operation of a local union. There is no reason why that smaller organization should not also be regarded as a "trade union" for the purposes of the Act.

15. Viewed from the perspective that trade unions do not have a legal existence separate from that of the individuals which comprise their membership, a parent and one of its locals can easily be seen as different organizations if, as here, their memberships are not co-extensive. Apart from that legal difference, there may well be political and financial differences which would be sig­nificant to employees in choosing between a parent union and one of its locals as the organization which they wish to have undertake obligations under the Labour Relations Act as their bargaining agent. Except in the case of a parent union whose members are all members of a single local, the Board's conventional notion that a parent and its local are distinct organizations for the purposes of the Act is not inconsistent with the analysis of the Ontario Court of Appeal in Astgen et al v. Smith et al, supra.

16. Nothing in clause l(l)(p) requires the sort of subtractive analysis proposed by the respondent, in which one asks whether there would be a trade union left if all its subordinate trade unions were subtracted from the applicant. If anything, the express inclusion in clause l(l)(p) of "provincial, national or international" trade unions suggests the opposite. We would be satisfied that the applicant is a trade union even if the only individuals who had agreed to abide by its con­stitution were also members of one of its locals.

17. Bearing both that conclusion and the provisions of clause 1(1)(l) of the Act in mind, it is not clear that it matters whether, as the respondent argues, the applicant's constitution does not expressly provide for direct membership -- that is, membership in the applicant unaccompanied by membership in one of its locals. It is not at all clear whether the language of the applicant's consti­tution does so provide. If failure to so provide is of any relevance in the face of clause 1(1)(l), how­ever, then the evidence of Mr. Harkness together with subsection 103(4) of the Act is a complete answer to any problem that such a failure might otherwise create in this case.

18. We find that the applicant is a trade union within the meaning of the Labour Relations Act. For the purposes of that Act, we have no difficulty seeing it as a trade union distinct from the local trade unions to which its members will also belong. On the basis of that distinction, we are content that the bar imposed when Local 27's application was dismissed is not a bar to this applica­tion.

19. This application is a subsequent application within the meaning of clause 103(2)(i). We do have jurisdiction under that clause to refuse to entertain this application even though it is made by a trade union which we consider distinct and different from the trade union whose application was earlier dismissed. We do not think that jurisdiction should be exercised in the manner sug­gested by the respondent in this case.

20. The evidence does not support the proposition that the affected employees will be constitutionally obliged to be represented by Local 27 if this application succeeds. There is no sup­port here for any argument that this applicant is a mere "alter-ego" of the previous unsuccessful applicant or that the applicant is in any other sense Local 27 in disguise. We are entitled to assume that the practice described by Mr. Harkness in testimony led and relied upon by the applicant con­tinues to be the applicant's practice and that the applicant will reciprocate the desire of employees to be represented by it directly rather than by one of its locals.

21. The respondent does not suggest that there are any circumstances here which would lead the Board to refuse to consider an application for certification by a trade union unrelated to the previous unsuccessful applicant. There is a great deal to be said for the proposition that a dis­cretion of the sort conferred on the Board by clause 103(2)(i) should be exercised similarly in ana­lytical similar circumstances in the absence of a compelling reason to do otherwise. We see no such compelling reason here. We are for that reason inclined to exercise our discretion the same way it was exercised by the Board in Elm Tree Nursing Home, supra. We conclude that this application should be entertained.

DECISION OF BOARD MEMBER ROSS W. PIRRIE; May 1, 1990

1. I dissent from the majority's decision.

2. While I appreciate the Board's long-standing jurisprudence has been to permit related segments of a union's organization to apply and/or be certified in a situation such as existed in this case, I respectfully disagree with the practice.

3. In my view the Board has wrongly interpreted the intent of the Act in such situations, in that its jurisprudence relates to issues concerning which union or segments of a union(s) are enti­tled to apply for certification in a bar period. In approaching the issue from that point of view, the Board has determined that a very specific organization is barred, ie the specific union organization which initially applied for certification. Any other organization, including the parent or a sister local of such a barred local is not barred. I fail to see the logic in such jurisprudence and I do not believe that was the intent of the legislation.

4. Surely the intent of the legislation was to provide a cooling off period in the work place, and to allow employees a reasonable period in which to reflect on their wishes concerning the entire issue of representation. I would interpret section 103(2)(i) to bar the specific union organiza­tion that was unsuccessful in the application, or any other organization from applying for certifica­tion during the bar period.

5. To the extent the Board is not likely to overturn its long-standing view of section 103(2)(i) and its consequent jurisprudence without a clear direction from the legislators, it must then continue to turn its attention to the kind of issue raised by this case, ie is or is not the national/international or a sister local of a union the same as, or acting on behalf of an unsuccessful local of that organization. The Board will hear evidence and representations from the parties and issue learned decisions - usually after the bar has expired, as is the case in this instance - with the net result that everyone expends time, energy and money to no avail.

6. Without setting out my view of the evidence the panel heard, or placing my interpreta­tion on the respondent's theory of the organization of the Carpenters union, or the applicants and respondents view of the constitution of the union vis-a-vis membership, I am satisfied there was ample support for the proposition that the substitution of the International for Local 27 was a sub­terfuge to avoid the bar. I would have refused to entertain the International's application during the bar.