Can Workers Federal Union Local 354, Canadian Labour Congress v. St. Catharines Hydro Electric Commission, 1992 CanLII 6332

Can Workers Federal Union Local 354, Canadian Labour Congress v. St. Catharines Hydro Electric Commission

Court File No.: 4176-91-R Date: 1992-05-29 Ontario Labour Relations Board

Applicant: Can Workers Federal Union Local 354, Canadian Labour Congress Respondent: St. Catharines Hydro Electric Commission Intervener: International Brotherhood of Electrical Workers, Local 636

Before: Robert Herman, Vice-Chair, and Board Members D. A. MacDonald and D. A. Patterson.

Appearances: Doug West and Maureen Kirincic for the applicant; Joseph Liberman and Dave Chondon, for the respondent; Bernard Fishbein and J. R. Wachoski, for the intervener.

Decision of the Board

1. This is an application for certification in which a pre-hearing representation vote was directed, and the ballot boxes sealed, pending the direction of the Board. A hearing was scheduled to consider the issue of whether the applicant was a "trade union" within the meaning of the Act, since it had not previously proved such status before the Board, and whether the provisions of section 105(4) (formerly section 103(4)) of the Act precluded the certification of the applicant. In addition, at the hearing, an issue arose as to whether the membership cards relied upon by the applicant correctly identified the name of the applicant.

2. The Board first dealt with the issue arising with respect to the provisions of section 105(4) of the Act, which reads as follows:

(4) Where the Board is satisfied that a trade union has an established practice of admitting persons to membership without regard to the eligibility requirements of its charter, constitution or by-laws, the Board, in determining whether a person is a member of a trade union, need not have regard for the eligibility requirements.

3. At the conclusion of the hearing into this matter, the Board delivered the following oral decision:

4. The applicant, prior to the instant application, has only admitted to membership employees of Ball Packaging Products Canada, Inc. Its constitution requires that those eligible for membership be employees of this company.

5. Here, the employees in question are not employees of Ball Packaging, but rather are employees of the respondent before us. the St. Catharines Hydro Electric Commission.

6. It was acknowledged in submissions that the instant application would be the beginning for the applicant of a practice of admitting members other than according to the constitutional eligibility requirements of its own constitution. It was clear that there had not been an "established practice of admitting persons to membership without regard to the eligibility requirements of the [applicant's] constitution

7. Section 105(4) of the Act requires that the Board consider, in determining whether someone is a member of a union whether the employee can meet the eligibility requirements of the union s constitution, unless the union has an established practice otherwise. As noted, there is no established practice otherwise by the applicant. Nor is there any real dispute that the employees in this application did not meet the eligibility requirements of the constitution of the applicant.

8. Therefore, as required by the Labour Relations Act itself, and given the decision of the Supreme Court of Canada in Metropolitan Life Insurance Company 1970 CanLII 7 (SCC), 11 DLR(3d)336, these employees cannot be considered by the Board as members of the applicant. In this respect, see, for example, Central Hospital [1982] OLRB Rep. Apr. 528.

9. This certification application must therefore be dismissed.

10. In light of this decision, we need not deal with whether the applicant is a "trade union" within the meaning of the Act, or whether the membership evidence filed before the Board is deficient in any respect.

11. Accordingly, the application is dismissed.