Ontario Labour Relations Board

[1991] OLRB Rep. February 267

2011-90-R Service Employees International Union, Local 204 Staff Association, Applicant v. Service Employees International Union and Service Employees International Union, Local 204, Respondent v. United Steelworkers of America, Intervener

BEFORE: Brain Herlich, Vice-Chair, and Board Members J. A. Rundle and E. G. Theobald.

APPEARANCES: C. Ireton, J. Aggimenti, M. Ortlieb for the applicant; R. Davidson for the respondent; M. Gottheil, C. Vermey for the intervener.

DECISION OF THE BOARD; February 18, 1991

1. This is an application for certification in which a pre-hearing representation vote was requested and, pursuant to a decision of the Board (differently constituted), held on December 19, 1990. Since the applicant has not previously established that it is a trade union within the meaning of section l(l)(p) of the Labour Relations Act, the ballot box was sealed pending determination of that issue.

2. At the hearing in this matter, subject to an argument raised by the intervener regarding the validity of certain membership evidence, the only issue in dispute between the parties involved the question of the applicant's status.

3. The evidence was neither complex nor contentious. For some time some bargaining unit employees, who are primarily business agents employed by the respondent union, had discussions regarding the appropriateness of being represented for collective bargaining purposes by the intervener.

4. An organizational meeting was held on June 16, 1990 for the purposes of discussing the formation of a new trade union to displace the existing bargaining agent. The minutes of that meeting record the following comments:

• Joe said the card must go to the Labour Board for approval. As soon as it is ready he will take it. Also that we have to have a constitution.

• Mark: At our next meeting we can put the constitution together. This has to be done before we sign any cards.

[emphasis added]

• The dues structure and elections can be done after the card and constitution are approved. Joe will see the cards and constitution go to the Labour Board for approval.

5. The next meeting took place on August 11, 1990 and commenced at approximately 8:30 a.m. In the hour or so prior to the commencement of the meeting, the six individuals about to attend signed "membership cards" in the name of the applicant. At the meeting itself the articles of a proposed constitution were moved one by one and unanimously carried. Subsequent to the approval of the constitution, no individuals were admitted or confirmed into membership. No vote of "members" was held to ratify the constitution. No officers were elected as contemplated in the constitution (although three individuals were authorized to open a bank account and make disbursements).

6. The next meeting took place on November 9, 1990, one week after the present application had been filed. At that meting officers were elected.

7. The intervener argued that the application ought to be dismissed on one or more of the following grounds:

(i) The applicant failed to confirm or reaffirm the "membership" of individuals who signed cards prior to the adoption of the constitution. Further, no vote was held, let alone a vote of "members", to ratify the constitution;

(ii) The applicant had no officers as of the application date; and

(iii) Cards signed prior to the adoption of the constitution were nothing more than evidence of membership in a non-existent organization. Absent any act of reaffirmation, these cards should not be accepted as valid membership evidence.

8. Apart from asserting that the results of the vote should determine the matter, the only legal argument offered by the applicant was that it had followed the steps set out in the "Guide".

9. "A Guide To The Labour Relations Act" is a booklet prepared and made available to the public by the Board. In the section titled "The Legal Requirements for Establishing a Trade Union" and in response to the question "what must a group of employees do to form an organization that will be recognized as a trade union?" the Guide offers, inter alia, the following:

…..The current procedure is as follows: the employees proposing to form a trade union hold a meeting; a written constitution is prepared; the employee group votes to approve the constitution; then the employees involved become members; and, finally the members vote to ratify the constitution. Then they elect officers of the union to administer its business and represent it.

10. Of course the five steps referred to in the Guide emerge from the Board's jurisprudence and have been referred to in numerous Board decisions including Local 199 U.A. W. Building Corporation, [1977] OLRB Rep. July 472 where they were outlined as follows at paragraph 10:

The following steps should be taken by an organization wishing to establish its status as a trade union within the meaning of the Act.

(1) A constitution should be drafted setting out, among other things, the purpose of the organization (which must include the regulation of labour relations) and the procedure for electing officers and calling meetings:

(2) the constitution should be placed before a meeting of employees for approval;

(3) the employees attending such meeting should be admitted to membership;

(4) the constitution should be adopted or ratified by the vote of said members;

(5) officers should be elected pursuant to the constitution.

11. Notwithstanding the assertions of the applicant, in evidence and in argument, that the five steps set out in the Guide were followed; this is patently not the case. There was no dispute that the first two steps were followed; there was simply no evidence that the last three steps were accomplished at the August 11th meeting or prior to the filing of the present application. And while the last step (election of officers) was accomplished subsequent to the application date, we note that an applicant must generally establish its status as of the date of the application (see for example City of Mississauga Public Library, [1975] OLRB Rep. Oct. 788 and the cases cited therein at paragraph 19). In this regard we note that it is the applicant who has the control to determine the application date. Any applicant choosing to file an application prior to the ultimate conclusion of the steps necessary to form a trade union does so at its peril. Having completed only two of the "five steps" as of the application date, it follows, therefore, that if the matter is to be determined solely on the basis of the "five steps" (the only basis put forward by the applicant), trade union status has not been proved.

12. It must be acknowledged, however, that the "five steps" have never been seen by this Board as the exclusive proof of trade union status. In this regard we note the observations of the Board in Center Tool & Mold Company Limited, [1985] OLRB Rep. May 633 at paragraph 16:

In determining whether an entity or group of persons constituted a trade union, the Board is obliged not to impose requirements unsupported by the language of section l(l)(p) in the context of the Labour Relations Act: re CSAO National (Inc.) and Oakville Trafalgar Memorial Hospital Association, 1972 CanLII 563 (ON CA), [1972] 2 OR. 498 (Ont. C.A.); and see, Board of Education for the City of York, [1984] OLRB Rep. Sept. 1279 at paragraphs 38 to 61. The definition requires that there be an organization. The precise nature of that organization is not defined, but certain necessary characteristics can be inferred from the modifying phrase of employees and from the nature of the rights, obligations and duties conferred and imposed on the trade unions by the Labour Relations Act.

13. Thus while the "five steps" are not found articulated expressly in the legislation, they do represent the Board's efforts, over time, to codify and articulate the essential characteristics of a trade union in view of the definition and statutory context. Of course the five steps perform another and perhaps more significant function - they provide a detailed road map which employees may reliably follow in an effort to found a trade union.

14. As already indicated, however, accomplishment of the five steps in the appropriate order has never been the exclusive manner of establishing trade union status. A number of cases have suggested or found that an organization may be found to be a trade union even in the absence of strict compliance with the five steps (see for example Hotel Dieu Hospital, St. Catharines, [1969] OLRB Rep. June 367; Proctor-Lewym Division of SCM (Canada) Limited, [1969] OLRB Rep. Sept. 760; and Local 199 U.A. W. Building Corporation, supra). Without reviewing the details of these cases suffice it to say that substantial compliance with the five steps may result in a finding of trade union status.

15. If we examine, briefly, the Board's treatment of one of the five steps - the requirement for officers, a similar approach emerges.

16. The importance of officers to a trade union was described in J. Harris & Sons Ltd. 60 CLLC 16,177 as follows:

How may a trade union under the legislation, perform its functions, achieve its purposes, or exercise its rights, or discharge its obligations unless it has duly authorized persons by and through whom it may act and be bound? Without officers or other duly authorized persons, the applicant, by its constitution, may only act and be bound through a general convention of members. In this respect its position is somewhat analogous to a corporation which may only act and be bound by and through its officers or agents or its shareholders at a general or special meeting. Without authorized persons to act on its behalf, every act of the applicant would require the sanction of a general convention of members with all the procedural requirements entailed thereby. It is obvious that this would impose such a restriction on its activities that for all practical purposes it would be impossible for it to carry out the purposes of its constitution. It is precisely for this reason that the applicant's constitution provides for the election of officers of an Executive Committee to govern and administer its affairs. This constitution prescribes, by means of the Executive Committee, the medium and machinery through which it will administer the articles of its constitution and effectuate its purposes and objectives. It also amounts to a form of agreement between the organization and its membership which governs the rights and duties of its members and its officers in their relation to the organization and between themselves.

Further, it seems implicit in section 55 [now section 84] of the Act and the sections thereof which deal with collective bargaining and the rights, responsibilities and duties of trade unions, that a trade union will have responsible persons to act and make decisions on its behalf. In this regard section 55 provides, inter alia, that the Board

….may direct any trade union . . to file with the Board.. .a copy of its constitution and by-laws and a statutory declaration of its president or secretary setting forth the names and addresses of its officers.

In regard to notices, proceedings before the Board, collective bargaining, conciliation and arbitration, the Act clearly presupposes the existence of responsible representatives to act on behalf of the union....

17. These words were adopted and amplified in a more recent Board decision in Butterfield Division, Litton Canada Inc., [1985] OLRB Rep. July 1001 at paragraph 10:

In addition to section 84, a number of other provisions in the Act clearly contemplate that a "trade union" will have officers. For example, section 85(1) requires every trade union, upon the request of any member, to furnish the member with a "copy of the undated financial statement of its affairs to the end of its last fiscal year certified by its treasurer or other officer responsible for the handling and administration of its funds to be a true copy". See also sections 46(3), 66(c). 74, 82(1), 91(1), 92, 98, 99(2), and 101(2). Moreover, it is difficult to envision how the important powers and obligations of a "trade union" which obtains certification under the Act (or otherwise gains bargaining rights for employees) could be exercised or fulfilled without officers elected under its constitution or otherwise duly authorized to act as officers thereof. Thus, the requirement that an applicant have such officers before the Board will find it to be "an organization of employees formed for purposes that include the regulation of relations between employees and employers" is not a mere technicality, but rather is the construction of section l(l)(p) which, in our view, best ensures the attainment of the objects of the Act according to its true intent, meaning, and spirit (see the Interpretation Act, R.S.O. 1980, c. 19, s. 10).

18. Yet despite the observations in those cases, there have been cases where incomplete election of officers (The Public Utilities Commission of the Borough of Scarborough, [1982] OLRB Rep. Apr. 609) or, indeed, the existence of only a temporary executive committee not contemplated by the constitution (The Gold Crest Products Limited, [1973] OLRB Rep. Aug. 436) have not precluded a finding of trade union status. On the other hand, the complete absence of any officers or other individuals authorized to act on behalf of the newly formed organization has generally been fatal (see the Butterfield case, supra and the many cases cited therein).

19. The applicant in the present case has only managed to accomplish two of the five steps referred to. No explanation was offered for its inability to complete the process. Nor, in the circumstances of this case, are we prepared to find that there has been substantial compliance with the five steps or otherwise find the applicant has proved that it is a trade union within the meaning of section l(l)(p) of the Labour Relations Act. It follows that since the applicant has failed to satisfy us that it has status to bring the application, the application must be dismissed.

20. In view of this finding it is unnecessary for us to consider the intervener's argument that "membership cards" signed prior to the adoption of the constitution are not valid membership evidence. We would merely observe that there is substantial authority for this argument and note that on the facts of this case, discounting such evidence would reduce the applicant's level of membership support below the 35% it required to be entitled to the vote already held in this matter and would, consequently, result in this application being dismissed.