Harrow Ambulance Employees Association v. Harrow Ambulance Service, 1991 CanLII 6134

Ontario Labour Relations Board

Parties and Appearances

[1991] OLRB Rep. July 869

0284-91-R Harrow Ambulance Employees Association, Applicant v. Harrow Ambulance Service, Respondent

BEFORE: K. G. O'Neil, Vice-Chair, and Board Members W. A. Correll and P. V. Grasso.

APPEARANCES: Jo-Ann Skomash for the applicant; N. W. Richard Smith for the respondent.

Decision of the Board

DECISION OF THE BOARD; July 5, 1991

1. This is an application for certification in which the parties, through a Labour Relations Officer were able to agree on all the issues between them. As it had not previously proved its sta­tus as a trade union the Board called upon the applicant to establish its status as a trade union within the meaning of section l(l)(p) of the Labour Relations Act.

2. Jo-Ann Skomash, President of the applicant, Harrow Ambulance Employees Associa­tion, gave evidence to support the contention that the applicant was a trade union. This evidence was uncontradicted and is summarized below.

3. In approximately October, 1989, due to dissatisfaction with scheduling issues, employ­ees of Harrow Ambulance Service began to discuss among themselves what could be done about their conditions of employment. Conversations went on with employees of other ambulance ser­vices as well and the idea of forming their own employee association began to have currency. Minutes of an October 20, 1989 meeting disclosed that:

The Harrow Ambulance employees met to discuss the formation of an association for the pur­pose of bargaining with the management of Harrow Ambulance Service... An agreement was reached to pursue the formation of an association.

Meetings with management to discuss terms and conditions of employment were held on October 24, 1989, and April 20, 1990. Exactly a year after the initial meeting, minutes of an October 20, 1990, meeting record:

Association position of President and Vice-President were filled by Jo-Ann Skomash and Elwood Defour respectively. It was agreed upon to combine the position of Secretary and Treasurer into one position, to be filled by Lisa DuMouchelle.

Present at that meeting were several employees, all of whom signed membership cards in 1991. Early in 1991, the employees started trying to get legal status for their association. Ms. Skomash explained that they always had access to members of and management and were able to talk to them but they did not feel that they had enough say without legal status. They wanted to have their own voice so they applied independently for certification rather than affiliating with one of the established unions.

4. In February 1991, after talking to another group (employees of another employer) who had applied for certification, membership cards in the following form were made up:

THE EMPLOYEES ASSOCIATION OF HARROW AMBULANCE

SERVICE

APPLICATION FOR MEMBERSHIP DATED_____________

SURNAME: ____________________ GIVEN NAMES_________________

(please print)

ADDRESS:____________________________________________________

PROFESSION: ________________ PHONE #: ______ (OFFICE)

CITY OR TOWN_______________ ______ (HOME)

EMPLOYER: ______________________________________________________

ADDRESS:________________________________________________________

I hereby make application to become a member of the Employee's Associa­tion of Harrow Ambulance. In doing so, I of my own free will and accord, hereby authorize The Employee's Association of Harrow Ambulance Ser­vice, or its representatives, or officers, to act for me as Collective Bargaining Agent in negotiating the relationship in all matters pertaining to rates of wages, hours of work and all other terms and conditions of my employment with my employer.

SIGNATURE: ____________________

INITIATION FEE: ___________________

SIGNATURE WITNESSED

AND FEE COLLECTED BY: ____________

5. Starting in February 1991 and continuing up to shortly before the application was filed on April 24, 1991, cards were signed and a dollar collected from employees. About the same time employees started collecting the cards, they became aware of the need for a constitution and worked one up from a model from another ambulance employees' association.

6. The objects of the association as set out in the constitution are:

Article 2.01 -

(a) To regulate relations between the employees and their employer;

(b) to negotiate and enter into a written agreement with the employer contain­ing provisions respecting terms and conditions of the employment of employees;

(c) To promote and achieve improved terms and conditions or employment for the employees of the Harrow Ambulance Service;

(d) To establish effective means of ongoing communication between employees and the employer;

(e) To promote the interests and unity of employees.

Article 3.01 states that membership is open to all employees of the Harrow Ambulance Service except those employed in a managerial capacity or in a capacity confidential to labour relations matters. In Article 14.01 of the constitution the application for membership fee is set at one dollar. Article 15.01 provides that the Constitution shall be presented at a general meeting of the Associa­tion for acceptance. Article 16.01 provides as follows:

Article 16 - Transitional

During the first year of the operations of the Association and in the period between the ratifica­tion of this constitution by a majority vote of the membership of the Association and its first annual meeting the negotiating committee shall consist of those appointed by the Executive of the Association.

7. A general meeting was held on March 31, 1991 at which over 75% of the employees of the ambulance service were in attendance. All but two had already signed membership cards in the form set out above. One signed on that date. The remaining person signed on April 17, 1991. The constitution was read page by page and adopted as ratified by a majority of the people present. This meeting was the first time that others than the officers of the organization had seen the consti­tution. Those present were asked if everyone was in agreement, if there was any problem with the document; no objection was raised.

8. The meeting was held open to nomination for change of officers from the three who had been serving as officers, but none was made. The three people then serving were confirmed by the membership as President, Vice-President and Secretary/Treasurer by show of hands.

9. At the general meeting the subject of dues was discussed and the employees decided there would be no dues until the process of certification had been completed. A resolution was passed setting the amount at 1 hour's wages per month.

10. As authorization to apply for certification, a resolution was passed at that time that "All papers are to be sent the 1st week of April to legalize the Association." A bank account was opened on April 22, 1991 with a small deposit.

11. We are persuaded that the steps taken to form the Harrow Ambulance Employees Association were sufficient to establish it as a trade union under the Act. The evidence showed that those present at the March 31 meeting entered into the necessary contractual relationship one with another so as to create an "organization of employees". The constitution's objects are consis­tent with the Act's definition. The officers were elected according to the constitution, the constitu­tion was put before the membership, read clause by clause, adopted and ratified in one process. The dues were set, being the only obligation other than the $1.00 membership fee imposed by the constitution on members as individuals. Accordingly we find that the applicant falls within the defi­nition in the Act of a trade union namely:

1.-(1) In this Act,

(p) "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.

and is entitled to a declaration that it is a trade union under the Act. See Laval Tool and Mould Ltd., [1987] OLRB Rep. Oct. 1281 among others.

12. Most of the members of the Association filled out membership cards prior to the official existence of the association as an organization with enough formality to identify the terms to which each member was binding itself. This raises the issue of the validity of this membership evidence. However, a large majority of those people attended the meeting on March 31 and gave their approval to the constitution, as well as confirming the officers who were then serving. There is a substantial amount of precedent to the effect that other activities consistent with membership will rectify the problem of membership evidence signed prior to the adoption of the constitution. For instance in Proctor Lewyt Division of S.C.M., [1969] OLRB Rep. Sept. 760 the Board stated:

It goes without saying that once a trade union has come into existence, future members need not confirm or ratify the existing constitution. However, where persons sign application for mem­bership in an organization which has not come into existence at the time the applications for membership had been signed, there must be some subsequent act consistent with membership after the formation of the organization has been completed in order to satisfy the Board's mem­bership requirements. Such act consistent with membership may be the participation in the meeting held to ratify the constitution or the signing of an affirmation of membership after the constitution had been ratified.

We find that the actions of ratifying the constitution, confirming the officers, setting the dues and authorizing an application for certification, all of which were done at the meeting of March 31, are sufficiently confirmatory of, and consistent with, membership to rectify the situation. The minutes establish who was present and thus the Board is able to be satisfied that this was done by individu­als who had earlier signed cards. These steps fall within the following quote from M. Loeb Limited, [1962] OLRB Rep. May 69, which is the source of the line of jurisprudence that discusses the issue in this case:

Where evidence of membership in a trade union submitted in support of an application for certi­fication consists of application cards, signed, and payment of initiation fees, prior to the time that the applicant came into existence as an organization, the Board does not regard such evi­dence as valid evidence of membership in the absence of other evidence that the alleged mem­bers did some other act consistent with membership after the application was formed, or in the absence of some motion by the applicant rectifying the membership of persons who applied for the membership prior to the applicant being formed.

13. Given that all the other issues were settled, we are able to make the following findings as well. Having regard to the agreement of the parties, the Board further finds that all employees of the respondent in the Town of Harrow, save and except supervisors, persons above the rank of supervisor, office and clerical staff, constitute a unit of employees of the respondent appropriate for collective bargaining.

14. The Board is satisfied on the basis of all the evidence before it 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 May 7, 1991, 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.

15. A certificate will issue to the applicant.