Retail, Wholesale and Department Store Union, Local 414 v. The Great Atlantic & Pacific Company of Canada, Limited, 1993 CanLII 7804

[1993] OLRB REP. SEPTEMBER 885

1248-93-R; 1346-93-U Retail, Wholesale and Department Store Union, Canadian Service Sector Division of the United Steelworkers of America, Local 414, Applicant v. The Great Atlantic & Pacific Company of Canada, Limited, Responding Party v. Retail, Wholesale and Department Store Union, AFL-CIO-CLC and its local affiliates Retail, Wholesale and Department Store Union, AFL-CIO-CLC, Local 414, 429, 545, 579, 582, 915 and 991, Intervenor; Retail, Wholesale and Department Store Union, Canadian Service Sector Division of the United Steelworkers of America, Locals 414, 422, 440, 461,1000, Retail, Wholesale and Department Store Union, Canadian Service Sector Division of the United Steelworkers of America, and the United Steelworkers of America, Applicants v. Retail, Wholesale and Department Store Union, AFL-CIO-CLC, Responding Party

BEFORE: Judith McCormack, Chair.

APPEARANCES: James K. A. Hayes, Paul Cavalluzzo, David Matheson, Brian Shell, Blame Donais, T. E. Collins and Leo Gerard for the applicants; Derek L. Rogers, R. M. Parry, T. A. Zakrzewski and Chris MacDonald for the responding party The Great Atlantic & Pacific Company of Canada, Limited; Chris G. Paliare, John Monger and Lenore Miller for RWDSU, intervenor/responding party.

DECISION OF THE BOARD; September 23, 1993

1. The name of the responding party is amended to read: "The Great Atlantic & Pacific Company of Canada, Limited".

2. This is an application under section 63 for a declaration that Retail, Wholesale and Department Store Union, Canadian Service Sector Division of the United Steelworkers of America, Local 414 is the successor to Retail, Wholesale and Department Store Union, AFL-CIO-CLC, Local 414 with respect to a bargaining unit employed by The Great Atlantic & Pacific Company of Canada, Limited. The applicant has also filed a complaint under section 91 alleging that Retail, Wholesale and Department Store Union, AFL-CIO-CLC ("the International" or "RWDSU") has violated the Act by various activities.

I. FACTS

3. Before turning to the sequence of events in this case, some background information is helpful. Local 414 has approximately 9,000 members of whom some 5,000 work in the bargaining unit which is the subject of these proceedings. At the beginning of these events, it was an affiliated local of the International. As one of six large composite locals in southern Ontario, it included some 200 bargaining units. These composite locals are organized by the nature of the workplaces involved. For example, Local 440 is the dairy and general workers local for the province, Local 461 is the bakery and confectionery workers local, Local 448 is the hotel and restaurant workers local, Local 1688 is the taxi local, and so forth. There are also four small one plant locals in southern Ontario. Eight small locals make up the Northern Joint Board, representing members in northern Ontario, and the remaining locals are spread throughout Canada. Together at the time of these events, there were approximately 25,000 employees in RWDSU locals in Canada. Local 414 covers mainly grocery store employees, but also includes employees in warehouses, pharmacies, offices, etc.

4. The International is governed by an International Executive Board which has some 34 representatives, including six Canadian Vice-Presidents. Of those, one is the Canadian Director of the union. At the time of these events, the Canadian Director was Tom Collins, and the other Canadian Vice-Presidents were Bruce Prozyk, James Donnelly, Tom Pickford, Robin McArthur and Jim Waters. The latter is also the President of Local 414.

5. The Canadian locals of RWDSU have their own umbrella organization which is called the Canadian District Council of the Retail, Wholesale and Department Store Union AFL-CIO-CLC. The Canadian District Council has been a chartered body of the International for approximately 13 years and it has its own by-laws and Steering Committee. Members of the Steering Committee include the Canadian Director, who is elected by a Canadian convention and who is the Director of the Steering Committee, six regional elected representatives and four representatives appointed by the Canadian Director. The Canadian District Council holds biannual conventions, and the Steering Committee meets between conventions.

6. Local 414 has its own by-laws as well. It is divided into nine geographic areas which elect approximately 150 delegates to its conventions, based on a formula set out in the by-laws which relates to the number of members involved. The convention as a whole elects officers to the Local Executive Board, while the delegates for each area elect representatives to that Board for their respective areas. These by-laws also stipulate that the Local Executive Board of Local 414 following the direction of the Local Director has the final power and authority between conventions.

7. The events which led to these applications commenced for all practical purposes in 1990. At a Canadian Labour Congress convention, Lenore Miller, President of the International met with the six Canadian Vice-Presidents to solicit their opinions with respect to a merger of the International. Five of the six were strongly opposed. At the 1990 International convention which followed, Mr. Collins was elected as the Canadian Director, which among other things meant that he was a member of the International Executive Board. In September of 1991, the International Executive Board considered the issue of merger with the United Food and Commercial Workers ("UFCW") and decided to appoint a committee to explore the matter further. This time, all of the Canadian Vice-Presidents voted against the idea.

8. At that point, Mr. Collins and the other Canadian Vice-Presidents felt that they should get a more concrete sense of the views of the Canadian locals with respect to merging with the UFCW. A meeting of the Canadian District Council Steering Committee was held, and they decided to put forward a motion at the Canadian District Council convention in October of that year. In fact, the resolution was put forward by both the Steering Committee and eleven locals listed on it, including Local 414. The gist of the resolution was that the Canadian District Council was opposed to a merger with the UFCW, and the International Executive Board was encouraged to either seek a merger with a more compatible and like minded organization than the UFCW, or to build up the RWDSU. At the convention, all delegates received pro-merger literature. Ms. Miller was in attendance and spoke against the resolution. A number of others, including Mr. Collins and Mr. McArthur spoke for it, and the resolution was passed.

9. The concerns of the Canadian locals about merging with the UFCW are not particularly relevant, and as a result, there is little point in reciting them in any detail. Suffice it to say that there had been a traditional rivalry between the two unions, and that there had been a number of incidents where the Canadian locals felt that UFCW had interfered with their organizing campaigns, creating considerable bitterness. Some of these concerns were local, for example in eastern Canada where the aftermath of an inter-union dispute with respect to fishermen meant that some of the RWDSU plants would decertify if the merger went through, according to some eastern locals. Others were more widespread, as in both western Canada and Ontario where some locals felt that UFCW had undermined their negotiating positions. Whether these feelings had any basis in fact is not at issue here, and I make no findings in this regard; what is clear is that the idea of merging with UFCW was not popular with most of the Canadian locals.

10. In October of 1991, Ms. Miller advised Mr. Collins that she was appointing him to the committee of the International Executive Board considering the merger. Shortly after that, the eight members of the committee met with representatives of UFCW in a "get acquainted" meeting. Mr. Collins was the only Canadian on the committee. Cliff Evans, the Canadian Director of UFCW was present at the meeting, at which it was recognized that there were some problems in Canada that he and Mr. Collins would have to discuss. As a result, Mr. Collins and Mr. Evans met in Canada and subsequently exchanged some correspondence. From this it merged that some of these problems might be fixed, and some could not.

11. The next meeting of the merger committee was in January of 1992. At that time, Ms. Miller presented the members with a draft merger proposal. Mr. Collins indicated that he wished to take the proposal back to study it further. However, he was outvoted by the other members of the committee who decided to submit the draft proposal to UFCW. This was followed in October by another meeting at which an outline for discussions was presented to the committee as the basis for the merger. It now included a separate Canadian vote in regard to the merger, about which more will be said later.

12. A meeting of the International Executive Board was scheduled for the following month in Palm Springs. The night before the meeting, the Canadian Vice-Presidents met, along with some of the Canadian staff to discuss the merger. Mr. Collins had already had a number of discussions with staff and various local executive boards as to what they would do if the merger was consummated. He testified that he was continually attempting get a sense of of the consensus of the Canadian locals. As the Canadian Director, his primary objective was to keep the union together in Canada, whatever they decided to do. Mr. Collins advised the Vice-Presidents that if their people turned down the merger, there were two options: continuing on as an independent Canadian union or merging with another union. The Vice-Presidents then discussed possible merger partners. Mr. Collins was in favour of a merger with the United Steelworkers of America ("USWA"), while Mr. McArthur suggested the International Brotherhood of Teamsters. The Canadian Vice-Presidents were unanimous that a merger with UFCW was out of the question.

13. The following day at the International Executive Board meeting, Mr. Collins raised a number of issues with respect to the contents of the merger agreement which he had originally intended to raise at the January Executive Board meeting. He had also prepared a package of items including a number of specific concerns about the UFCW, terms that should be in any merger agreement, and so forth. The next day there was a vote of the International Executive Board, and to the surprise of the other Canadian Vice-Presidents, Mr. McArthur voted in favour of the merger.

14. Mr. Collins then discussed the matter with the other four Canadian Vice-Presidents and decided that he would go back to Canada and review the UFCW merger proposal with the locals. He subsequently attended meetings with locals in Manitoba, Alberta, Nova Scotia and Ontario. Ms. Miller also called a meeting of approximately seventy-five elected local executive officers in southern Ontario where she reviewed the merger proposal in detail. A number of questions were asked at the meeting which lasted approximately four hours. Ms. Miller concluded by telling them to study the proposal and let her know how they felt about it. Mr. Collins said much the same thing in his meetings with locals across Canada. However, he also expressed his view that merger with USWA would be preferable.

15. The International Executive Board then met in February of 1993 in Atlantic City. At that time, Ms. Miller presented the Board members with a more detailed version of the merger proposal. This version made it clear for the first time that while majority rule would govern the vote of U.S. locals, the Canadian process would include a procedure by which any Canadian locals in favour of the merger could opt in to the result of the American vote. In addition, this document indicated that Canadian locals voting against the merger would be disaffiliated from the RWDSU, a provision which did not apply to any American locals voting against the merger.

16. During this period relationships were becoming increasingly strained, and Mr. Collins began to feel some personal pressure from the International. He told the Board that a watchful eye was being kept on him, new conditions and restrictions were placed on his activities, and attempts were made to dissuade him from talking to others about his view of the merger. He was becoming increasingly worried about the position of the Canadian locals after the UFCW merger vote, as were other members of the Canadian locals who were looking for some protection.

17. In March, Mr. Collins wrote to the International Executive Board setting out some specific concerns about the merger proposal. These included his view that there should be only one convention to discuss the merger so that the Canadian members could attempt to convince some of the Americans of their point of view, that there were constitutional problems with the merger procedure, that Canadians were being treated in a discriminatory fashion because of both the opting in procedure for Canadian locals in favour of the merger and the deemed disaffiliation provision for those against it. He also indicated that a legal challenge would be forthcoming if the International proceeded on the basis of the merger document as it was. At that point, the Canadian locals were considering attempting to enjoin the International from proceeding with the merger process. Mrs. Miller responded in detail and among other things, directed Mr. Collins not to have any conversation about the status of the RWDSU in Canada except in the presence of International officers.

18. An appeal was made to Mr. Collins by some of the other Vice-Presidents on the International Executive Board that he and Ms. Miller should meet to try and resolve the matter because it was apparent that they were on a crash course. As a result, Mr. Collins met with Ms. Miller on March 29th and reviewed the problems involved. The net result was that the process would be going ahead as it was, despite his objections. However, Ms. Miller also asked Mr. Collins what the Canadian locals were going to do, and where they would go. He advised her that they were looking at their various options, and the USWA was mentioned.

19. On March 28, Mr. Collins met with all the local officers in southern Ontario. They unanimously told him to take legal action to prevent the merger, and the following day, six of the larger southern Ontario locals including Local 414 wrote to him authorizing him to take steps to ensure that a fair and equitable merger vote would take place. This apparently reflected some of the concerns Mr. Collins had raised in his letter to Ms. Miller.

20. During the four-month period between April and July 1993, Mr. Collins met with almost every local in the country between two to three times to discuss the UFCW merger and the alternatives to it. In addition, during March and April, Mr. Collins had two meetings with Leo Gerard, the Canadian Director of the USWA. On April 5, he wrote to Ms. Miller, suggesting as a solution majority votes in each country, and a simple separation rather than disaffiliation if the Canadian majority voted against the merger.

21. Mr. Collins then continued to meet with locals, who had a number of questions and considerable apprehension with respect to their future. In those meetings, the various options available were discussed. Some were more interested in an independent Canadian union at that point, and others wished to pursue the idea of other merger partners. The financial condition of the Canadian locals was not particularly conducive to continuing on independently. Merger with the USWA was reviewed, as well as the possibility of merging with the new Chemical, Energy and Paperworkers Union. In the meantime, the Canadian locals opposed to the UFCW merger retained counsel to prepare a legal challenge to the merger procedure.

22. On April 7th, 1993, the International Executive Board met and voted in favour of the UFCW merger agreement. Again, five of six Canadian Vice-Presidents voted against it, and this time one American Vice-President did as well, on the basis that he supported the merger but did not approve of how the Canadian locals were being treated. The Board was then advised when the meetings to vote on the merger were to be held. The U.S. locals were to vote on June 12, and the Canadian meeting was scheduled for July 10th. Mr. Collins objected because the meetings were a month apart, apparently to maximize the persuasive power of a positive American vote. Nevertheless, calls for the meetings were sent out by the International to officers and members of local unions, joint councils and joint boards, together with copies of the merger agreement and the UFCW constitution. The notices included a formula for elected delegates that reflected the international constitution requirements in this regard.

23. The next relevant event was the biannual Local 414 convention which was held on May 16 and 17. Guy Dickinson, the International Secretary-Treasurer, and Ms. Miller attended. Ms. Miller distributed copies of the UFCW merger agreement to delegates and described how it would affect Local 414. Mr. Dickinson also spoke about the merger, as did Mr. Collins and several local officers, and questions and discussion followed. Then the delegates, who represented all bargaining units in the local, elected the Local Executive Board officers.

24. With some encouragement from Bob White, President of the Canadian Labour Congress, Mr. Dickinson and Mr. Collins met at the Local 414 convention, and were later joined by Ms. Miller. Surprisingly, this meeting was a positive one and an agreement in principle was worked out. The gist of this agreement was that the Canadian UFCW merger vote would be conducted in accordance with the merger agreement, and locals voting against it would become disaffiliated on October 1st, or such earlier date as a new organization was established. All bargaining rights, contracts, property and so forth of the locals would be transferred with them. All bargaining rights, contracts, and so forth of the International in Canada would be transferred to the new organization. The new organization would be the successor in all the geographic areas and jurisdictions covered by the local unions which were disaffiliated. It would also pay to the International the cost of the legal fees for the taxi organizing campaign if it affiliated with another union within one year. The new organization would accept liability for all costs incurred after formation and the International for all costs before with respect to pensions and other International obligations. This organization was to be called the Retail, Service and Wholesale Union of Canada, and the International and UFCW would support an application by the new union to affiliate with the Canadian Labour Congress and other affiliate bodies. The separation agreement would be subject to ratification by the disaffiliating locals at a delegate meeting called for this purpose.

25. Mr. White attended at the Local 414 convention on May 17th, and told Mr. Collins, Mr. Dickinson and Ms. Miller that if they were agreed, there would be no problem entering the new organization into the Canadian Labour Congress. Ms. Miller asked Mr. Collins what the Canadian locals would do. He advised her that the day after the vote in Canada, there would be a meeting of the Canadian District Council, and a by-laws or constitutional committee would be struck. They would meet over the summer and review their various options, and then make a recommendation to the Canadian District Council. Mr. Collins testified that it was necessary to use the Canadian District Council as the structure for the locals to decide upon their future because it had by-laws and an elected Steering Committee, and it was the only organization they had, presumably since the International was expected to merge. The matter was left that Ms. Miller would draw up a document incorporating this settlement. This had to be done quickly as the votes were fast approaching, and the Canadian locals were still considering legal action to stop the votes.

26. A meeting was scheduled for May 28th to work out the final details of the separation agreement. On May 27th, Mr. Collins received Ms. Miller's draft agreement which, he testified, was quite different from their earlier discussion. There was no reference in this document to the disaffiliated locals forming a successor organization. On the contrary, the agreement indicated that all authority, power and rights held by the International would remains so vested, that the International would continue in Canada through the Canadian locals voting in favour of the merger, and that it would retain its entitlement to membership, officers, and other positions. (By then it had become apparent that the northern Ontario locals, one local in New Brunswick and one of the single plant southern Ontario locals representing a total of approximately 5,000 members would support the merger. All the other Canadian locals representing approximately 20,000 members were opposed to it.) After the merger, the RWDSU Council of UFCW would become the successor to the International. In addition, if the new union of the Canadian locals sought jurisdiction, affiliation or membership outside Canada or a charter from the AFL-CIO, all its assets and the assets of its locals would be forfeit to the International. All future jurisdictional disputes were to be governed by the International's constitution.

27. More significantly, the Canadian District Council would be dissolved on the effective date of the agreement and all its property and assets would be divided among the locals. All International employees would be discharged or permanently laid off as of the effective date, and the collective agreement with the staff union representing them would be terminated. The new union would be responsible for any claims resulting from these provisions, which Mr. Collins felt might be illegal in Canada. Even before the effective date of the agreement, the International could discharge any employee in its sole discretion. All Canadian Vice-Presidents and all other Canadian members, officers and employees were to resign all their elected or appointed positions, including their positions with affiliate bodies such as the Ontario Federation of Labour and the New Democratic Party on the date of the agreement. More specifically, Mr. Collins was to resign his position on or before July 12. The draft agreement also stipulated that the new union was to assume pension liabilities in the amount of $800,000. In addition, the laws of the U.S. and New York were deemed to govern the validity, interpretation and performance of the agreement and all legal proceedings were to be brought in New York. The effective date was to be September 30.

28. Although Ms. Miller told Mr. Collins that the draft agreement was negotiable, Mr. Collins was alarmed by the overall picture it presented and by what he felt were crucial differences between the draft and and their earlier discussion. It also became clear that the parties were far apart again, and it was left that Ms. Miller would get back to them if there was anything left to discuss.

29. After this meeting, Mr. Collins met with the Canadian locals on the east coast, including those in Newfoundland, Prince Edward Island and Nova Scotia. At that time, they discussed what they were going to do, and that whatever it was would have to be done right after the July 12th vote, because otherwise it was Mr. Collins' view that the International would be taking them apart. He also indicated that they should adopt a new constitution, based on the International constitution, and that he would be recommending a merger with the USWA.

30. When he returned to Toronto, he received a letter from Ms. Miller directing him not to change any names on collective agreements or other documents without prior approval and notification. One of the duties of the Canadian Director is to assign newly certified bargaining units to the appropriate local, and he was worried that new bargaining units, such as the taxi units, would be assigned by the International elsewhere.

31. Several days later, counsel for the Canadian locals opposing the merger wrote to Ms. Miller setting out what Mr. Collins had understood to be the agreement of May 16 and 17. Ms. Miller wrote back disputing Mr. Collins' understanding of the discussions on May 16 and 17, telling counsel to resign from all RWDSU matters on the basis of conflict of interest, and advising that action would be taken if Mr. Collins acted in a manner conflicting with the International Executive Board decision to merge or his obligations as an employee and director.

32. As relations worsened, Mr. Collins discussed the matter with several of the other Canadian Vice-Presidents. The gist of this discussion was that the draft separation agreement signaled what was going to happen to them after July 10th, and that they were going to have to move quickly because otherwise there would be no vehicle to provide a structure for making decisions about their future. Their concern was that it appeared that the Canadian District Council would be dissolved and all the officers and staff would have their employment terminated. They concluded that they should hold a Canadian District Council meeting the day following the UFCW merger vote to consider their options, including an independent union or a merger, the leading choice being the USWA. Enjoining the UFCW merger vote began to appear less useful, partly because they felt it was better to spend their energies addressing the Canadian situation rather than to try and stop the votes.

33. On June 8, notice of a special meeting of the Canadian District Council was sent to the Canadian locals. It recited the fact that the required number of locals had requested such a meeting (provided for under the Canadian District Council by-laws) which was scheduled for July 11th, the day after the UFCW merger vote. The agenda was set out and included the future of the Canadian District Council and the disposition of its funds. That same day a call was issued for a constitutional convention and a meeting of the Canadian locals and their delegates which were scheduled to immediately follow the Canadian District Council meeting on July 11. The notice indicated that the purpose of this convention and meeting was to decide the future of and the successor organization to the disaffiliating Canadian locals, and set out an agenda including discussion of the future organization and options, adoption of a new name, constitution and officers if applicable, and adoption of a merger proposal if applicable. The notice is signed by the Presidents of the large locals in southern Ontario, including Local 414. Three days later, the U.S. vote on the UFCW merger agreement was held, and the American locals voted in favour of the merger.

34. On June 15, Ms. Miller wrote to a number of employers advising them that Mr. McArthur and only Mr. McArthur was designated to represent the International in collective bargaining. Normally, Mr. McArthur would have had no responsibilities with respect to these bargaining units as they were not in northern Ontario. It was clear from these letters that the International was attempting to assert bargaining rights in regard to the units in question. On June 23rd, Ms. Miller also wrote to Mr. Collins, directing him to consult with her prior to discussing or answering any grievance filed under the staff union collective agreement. In the meantime, a vigorous exchange of views was occurring in correspondence between the Canadian locals' counsel and Ms. Miller.

35. Between June 3rd and July 5, 1993 Ms. Miller and Jim Waters, the President of Local414 corresponded as well. Ms. Miller raised the issue of whether there had to be a special convention under Local 414's by-laws to consider the UFCW merger agreement. After some hemming and hawing, Mr. Waters expressed the view that the May convention had fulfilled this requirement, in light of the fact that it was a convention and that the merger agreement had been discussed, although he said the Local executive would consider at their next meeting whether to have another convention. Nothing apparently came of this as no other convention was held and the Local 414 delegates were recognized at the July 10 UFCW merger vote meeting, seated and permitted to vote without objection by the International.

36. In early June, Mr. Collins and Mr. Waters met with all of the executive officers of the major locals in Southern Ontario including Local 414, representing the elected leadership of 16,000 members. They discussed the draft separation agreement, and their concerns about what the International was going to do after July 10th. Mr. Collins gave them information about various unions, but told them that his recommendation would be that they should form a national union and then merge with the USWA. During June, Mr. Collins had been meeting with officials from USWA, and he advised the local executive officers of his discussions. He reviewed the principles which he thought should be in any merger agreement, and told them that he would be putting forward a merger agreement with USWA on July 11th for their approval. Among other things, he advised them that there would be a five year window in the USWA merger with the effect that if the merger did not work out, they would have the right to withdraw during this period of time. Mr. Collins told the Board that he "laid it all out for them" and then obtained their views. During June and the beginning of July, he tried to meet with every local in Canada, and among other things, discussed a merger with USWA with them.

37. On July 6, five days before the special Canadian District Council meeting and the constitutional convention, the International imposed a temporary trusteeship on the Canadian District Council. A hearing was scheduled for July 26 before five American Vice-Presidents on the International Executive Board. The Secretary-Treasurer from Georgia, Mr. Dickinson, was made the temporary trustee. The letter imposing trusteeship cites a lack of three months' notice for the meeting, the requirement that 40% of locals must request such a meeting, and financial malpractice (apparently relating to the placement of the disposition of funds item on the agenda). Mr. Collins subsequently sent copies of the requests for a special meeting of a majority of the locals representing not less than 40% of the membership to the International.

38. The Canadian Director is the delegate for the Canadian District Council at any International conventions. The effect of the trusteeship, among other things, was to disentitle Mr. Collins from voting on the UFCW merger on July 10th, 1993.

39. In the meantime, Mr. Collins continued to meet with locals, showing them the draft separation agreement, and advising them what his recommendations would be on July 11th. He testified that there was considerable anger about the separation agreement, and unanimity with respect to proceeding on July 11th. It was not clear how the locals would vote on July 11th; some of the people he met with had opposed Mr. Collins' election as the Canadian Director, but they were insistent about their right to decide. In these meetings as well, Mr. Collins advised the locals that the new constitution for a national union to merge with USWA would change very little from the current international constitution. He also kept them updated on his discussions with USWA on what should be in the merger agreement. Local autonomy was a particularly important point in those discussions as the locals were saying that they wanted to continue on as they had done in the past, but within a different framework.

40. On July 10th, the UFCW merger vote meeting in Canada was held. In accordance with the constitution and in conformity with the process in the UFCW merger agreement, it was attended by delegates from locals with credentials certifying them in this regard. Some of them were elected especially for this meeting; most, like Local 414 sent their executive board officers and members as delegates. This was provided for in Local 414's by-laws, and recognized in the meeting notice sent out by the International. In the case of Local 414, those delegates consisted of persons who had been or were still were rank and file employees with many years of combined service in various capacities within the Local.

41. Ms. Miller addressed the merger vote meeting at some length and a brief debate followed. Since the Canadian locals in favour of the merger had already opted in to the American vote, the resulting vote was unanimously against the UFCW merger. The vote was conducted as a roll call vote, where the delegates cast the votes of the number of employees they represented. Based on the formula in the international constitution, the delegates from Local 414 cast the 9,111 votes of their members.

42. The next day, the special meeting of the Canadian District Council was not convened. because the Council had been placed under trusteeship. Rather, the delegates who were the same as those the previous day but who had been separately certified as delegates by each local for July 11th, convened the constitutional convention and special meeting of all locals voting against the UFCW merger agreement which was the subject of the second June 8th notice. A constitution for a national union called Retail, Wholesale and Department Store Union/Canada ("RWDSU/Canada") was placed before the delegates and reviewed page by page. It was patterned on the International constitution and any changes were highlighted. Then a motion was made and seconded to adopt the constitution. A roll call vote was conducted in the same manner as the day before, and the vote was unanimously in favour of adopting the new constitution. The voting was chaired by the President of the Ontario Federation of Labour, as the locals wanted a neutral observer. When the vote results were announced, there was considerable emotion, and delegates stood and applauded for five minutes.

43. The new constitution included a provision that all members of a local union were members of the national union. In addition, all of the disaffiliating local unions became local unions of the new union. A motion was then made and seconded that the constitution be ratified by the members of the national union. Again, a roll call vote was taken, and the results were unanimously in favour.

44. The constitution also provided for a transitional National Executive Board, and to the effect that the Board and the National Officers would have all the powers conferred by the constitution during their terms. Motions were passed in this regard. A slate of officers was put to the meeting, and again, the vote was unanimously in favour. The officers then took the pledge called for in the constitution. There were twelve officers elected, representing all provinces. The composition was basically the same as the Canadian District Council Steering Committee and the elected Canadian Vice-Presidents.

45. The constitutional convention then concluded and the special meeting to consider merging the new national union with USWA was convened. A draft merger agreement was distributed to delegates and reviewed line by line in its entirety. It had been previously distributed to delegates from eastern and western Canada and to local unions in Ontario. There was some discussion, and minor changes were made. Then there was a break as some of the delegates wanted to caucus. When the meeting resumed, a motion was made to adopt and approve the USWA merger agreement. Again, the President of the Ontario Federation of Labour chaired the voting, which was also a roll call vote, and the result was unanimously in favour of the merger. Pandemonium then ensued, with delegates cheering and singing "Solidarity Forever".

46. At that point, Leo Gerard, Canadian Director of the USWA was presented with a letter indicating that the RWDSU/Canada had approved the merger agreement. Mr. Gerard then provided a letter from Lynn Williams, the International President of USWA, indicating that the USWA had approved the merger agreement as well. Both sides signed the agreement and the meeting concluded after Mr. Gerard had addressed it.

47. On July 12, the International placed five of the southern Ontario locals into trusteeship, including Local 414. The reasons cited were that the locals disaffiliated without the approval of the International Executive Board and then merged with the USWA, and the utilization of funds, assets and property in this regard. On that same day, a number of officers and staff resigned, including Mr. Collins and Mr. Waters. Subsequently, the International redirected the mail and the telephone number of the Mississauga office to a new location and made several directions with respect to funds, which led to the banks freezing the bank accounts. In addition, letters were sent to a number of employers in collective bargaining relationships with the locals placed under trusteeship, redirecting the dues. Some of those employers responded by cancelling negotiating and grievance meetings and placing the dues in escrow until the dispute was resolved. Mr. McArthur was appointed as Mr. Dickinson's official agent for the five locals in trusteeship. He then purported to cancel the leaves of absence granted by employers for five members of Local 414, including the President, two members of the Local Executive Board and two stewards, and appointed a number of other people to represent the locals.

48. Finally, the parties agreed that at the UFCW convention during the week of July 26,1993, the UFCW merger agreement was approved by the UFCW. It is in these circumstances that the applicant requests a declaration that it has acquired the rights, privileges and duties of Retail, Wholesale and Department Store Union, AFL-CIO-CLC, Local 414 under section 63 of the Act.

II. DECISION

49. Section 63 provides as follows:

63.- (1) Where a trade union claims that by reason of a merger or amalgamation or a transfer of jurisdiction it is the successor of a trade union that at the time of the merger, amalgamation or transfer of jurisdiction was the bargaining agent of a unit of employees of an employer and any question arises in respect of its rights to act as the successor, the Board, in any proceeding before it or on the application of any person or trade union concerned, may declare that the successor has or has not, as the case may be, acquired the rights, privileges and duties under this Act of its predecessor, or the Board may dismiss the application.

(2) Before issuing a declaration under subsection (1), the Board may make such inquiry, require the production of such evidence or hold such representation votes as it considers appropriate.

(3) Where the Board makes an affirmative declaration under subsection (1), the successor shall for the purposes of this Act be conclusively presumed to have acquired the rights, privileges and duties of its predecessor, whether under a collective agreement or otherwise, and the employer, the successor and the employees concerned shall recognize such status in all respects.

50. The Board's approach to this section has changed over the years. Initially, it took the view that a successorship declaration would not be made unless it could be shown that a majority of the union members had signified their approval of the merger, amalgamation or transfer of jurisdiction (Hydro-Electric Commission of the City of Hamilton (1963), 63 CLLC ¶16,261). Following the court case of Astgen v. Smith, 1969 CanLII 488 (ON CA), [1970] 1 O.R. 129 (C.A.), the Board's approach was to grant declarations where either constitutional provisions for merger, amalgamation or transfer of jurisdiction had been complied with, or there had been unanimous approval by the members. (See, for example, Trans Nations Inc., [1981] OLRB Rep. Sept. 1298.) This was based largely on the theory of Astgen v. Smith, a case which involved an action to declare a merger a nullity. There, the court likened a trade union to a club or voluntary association where members were bound together by a complex of individual contracts represented by the constitution. A merger involved the extinction of those contractual rights, the court said, and thus there was no inherent power in a voluntary association to merge. Where there was no provision in the constitution for merger, the court concluded that there must be the unanimous consent of members to effect such a change in its fundamental objects.

51. Although the Board relied heavily on the Astgen v. Smith decision for a period of time, it is evident that the issue of whether a declaration of successor rights would be forthcoming under section 63 has always been treated differently than the manner in which a court might consider whether a merger had been effected at common law. For one thing, the Board has discretion under section 63 as to whether to issue a declaration, as the word "may" and the option to order a representation vote indicate. This explains in part why the Board has not required strict compliance with constitutional provisions, and has in fact issued declarations where there has been substantial compliance with the spirit of those provisions, and substantial completion of the merger, amalgamation or transfer.

52. There is also some suggestion in the jurisprudence that even strict compliance with the constitution may not result in a declaration if there has been no opportunity for the membership to express their wishes (L. M. L. Foods Inc., [1985] OLRB Rep. Aug. 1252 or that there may be other criteria to satisfy (Children's Aid Society of Metropolitan Toronto, [1980] OLRB Rep. Jan. 24). In other words, the Board has considered strict compliance with the constitution neither a necessary, or perhaps even a sufficient condition for a declaration, although there appears to be some divergence of opinion in regard to the latter. In any event, the Board never followed Astgen v. Smith to the letter, as it issued declarations for example, where constitutions had been amended by less than unanimous consent to provide for mergers, which was not consistent with the court's reasoning.

53. In the last decade, it is fair to say that the Board has moved further away from the Astgen v. Smith approach, emphasizing the significant difference between the common law property rights addressed by the courts, and the scheme of the Labour Relations Act in providing for bargaining rights and the successorship of those rights. In Waterloo Spinning Mills, supra, the Board noted the distinctions between the club model of a union at common law, and the statutory position of a union under the Act:

At common law (i.e., before the passage of modern labour legislation some forty years ago), a trade union was merely a voluntary association of employees, like a club, acting collectively in pursuit of their common interests and without any statutory framework or underpinnings. Indeed, for a time, trade unions and their activities attracted common law sanctions because such collective action amounted to a civil conspiracy in restraint of trade. However, to determine whether one trade union has acquired the statutory rights and obligations of another - that is, to determine the application of section 62 [now section 63] of the Act - one cannot ignore the statutory framework or forget that unions no longer operate (as they once did) in a legislative vacuum. Trade unions, like clubs, may well be able to exist without direct reference to the Labour Relations Act, but the fact is that if a trade union is to do what by statute it must do to preserve its status as a union under the Act, it must conform to statutory norms.

A modern trade union is very different from a typical club. It is concerned primarily with the acquisition and exercise of statutory bargaining rights. What club or mere voluntary association has the exclusive statutory right to determine its members' terms and conditions of employment - regardless of what those members might think from time to time? What voluntary association in pursuit of its constitutional objectives has the right to act on behalf of and fundamentally affect the rights of persons who are not its members and who may never have voluntarily subscribed to those objectives? What club has a statutory obligation to fairly represent non-members where necessary, expending membership funds to do so? What club can compel the payment of membership fees from members and non-members alike? How realistic is it to treat a trade union as a "voluntary" association when the reality is that membership may be made a compulsory condition of employment? In the present case, membership in the Association has been made a condition of employment for a number of employees. The fact is that while at common law a trade union may still be only a voluntary association, under the Labour Relations Act it is much more than that, and when considering the acquisition, exercise of transfer of rights rooted in the statute, one cannot ignore either the practical or legal differences. Likewise, in trying to ascertain a union's essential objects (in an Astgen v. Smith sense) we think the statute provides a guideline - at least in the absence of explicit conditions in the union's own constitution.

This is not to say, of course, that the constitution of a trade union is irrelevant to the Board. It is obviously an important document and in particular cases or contexts, its terms may be decisive. But it does not have the central role which it plays at common law in resolving disputes among the members over the use or distribution of assets, eligibility for office, the conduction of elections. the pursuit of the organization's objectives, and so on.

54. In Melnor Manufacturing, [1989] OLRB Rep. April 360, the Board was asked to declare inappropriate a decade of jurisprudence in which it had distanced itself from Astgen v. Smith and to require the unanimous consent of members where the constitution was silent on the issue of merger. In rejecting this proposition, the Board adopted Waterloo Spinning Mills in the course of emphasizing the difference between the court's approach at common law in Astgen v. Smith and the statutory rights addressed by section 63. Among other things, the Board noted that at the time the court made its decision in Astgen v. Smith, the Board had issued a successorship declaration between the unions involved, highlighting the different issues in these two distinct forums.

55. In other words, section 63 is part of a complex statutory scheme for collective bargaining in Ontario that reflects a marked departure from the common law view of unions as voluntary associations. While common law principles may be helpful in determining applications under section 63, they must be considered in a context which includes both the realities of modern labour relations and the specialized legal structure which regulates them.

56. With this approach in mind, it is useful to review what the Board has considered to be substantial compliance with the spirit of constitutional provisions in other cases. In Zehrs Markets, [1977] OLRB Rep. Oct. 637, a merger was challenged on the basis that the notice of a meeting indicated only that its purpose was to apply to merge with another union, and not that it was also to amend the constitution to provide for such a merger. In that case, the Board indicated that while the constitutional provisions regarding notice could not be treated lightly, the Board would not be unduly concerned with form if in substance the notice requirement had been met:

We are of the view that the provisions in a union constitution regarding the type of notice required to be given to members concerning a meeting where a proposed merger, amalgamation or transfer of jurisdiction is to be voted on cannot be treated lightly. On the other hand, however, we also are of the view that where in substance the notice requirements have been met and the members have in fact been provided with the information required by the constitution (or otherwise required by law), the Board should not be unduly concerned with the form the notice might take.

57. Similarly, in Children's Aid Society of Metropolitan Toronto, supra, 14 days notice of a meeting for the purpose of merging with another union was required by the by-laws. The notice was delivered to each employee 8 days before the meeting. However, the Board found that since a newsletter sent to each member a month previously also contained notice of the meeting, this was sufficient to comply with the by-laws.

58. At that meeting, the members voted to merge. Following the meeting, the association involved received a number of calls from persons who had been caught in the "Mississauga disaster" and had not been able to attend the meeting. The Association therefore notified all employees that there would be another meeting where the vote would be continued. Only five days notice of this meeting was given, and there were no provisions in the by-laws for such extension meetings. The Board found that despite this, the notice given was reasonable notice, and therefore effective notice for the purposes of section 63.

59. In Trans Nations Incorporated, [1981] OLRB Rep. Sept. 1298 the Board dealt with a situation where two locals of the same international parent had merged. Neither of the locals had provisions in their constitutions for a merger, nor was there any attempt to amend their constitutions in this regard. The Board found that because the locals were affiliated with an International which had in its constitution provisions for merger, and because one of the local constitutions provided that a person who becomes a member of the local was also required to become a member of the International and abide by its constitution, this was sufficient. The Board also held that a posted notice of vote in some locations and verbal notice of a vote in others was enough and issued a declaration.

60. In an interesting turn of events, this more liberal approach was adopted by the courts in Re McGhie and Canadian Air Line Flight Attendants' Association (1986), 58 OR. (2d) 332 where it was alleged that a merger failed to comply with a number of constitutional requirements including the fact that the notice did not identify the business to be conducted, certain resolutions were not placed before delegates, and the merger report was handed out 17 days in advance rather than the 8 weeks required. The court found that it had no jurisdiction in the matter for other reasons, but then went on to give its views on the merits for the benefit of the parties. It concluded that although there may have been some technical deficiencies, there had been substantial compliance with the spirit of the existing constitution provisions.

61. The Board addressed a situation in I. B. L. Industries Limited, [19871 OLRB Rep. Sept. 1144, where probationary employees had not been allowed to vote on a merger even though they applied for membership at the time they commenced employment, two employees were erroneously permitted to vote and seven employees did not get individual notices of the meeting at which the vote was held. The Board was satisfied that because probationary employees were not admitted to membership until the end of their probation, four of the seven employees who did not get individual notices attended at the meeting, notice was posted in the plant, and the votes of the employees involved would not have affected the outcome in any event, these defects were not fatal to the application. It cited the fact that "[t]he Board and the courts have explicitly recognized in the context of trade union mergers that the law will relieve against mere technical deficiencies where there has been substantial compliance with the spirit of constitutional provisions".

62. In the same vein, the Board indicated in Waterloo Spinning Mills, supra, that the starting point under section 63 should be the objects of the union and how it has actually operated. It found that the fact that employees from other workplaces were allowed to vote when they were not entitled to membership under the constitution, the fact that there was no provision in the constitution for a merger, and the fact that only one vote was conducted for both the constitutional amendment and the merger were not obstacles to the issuance of a declaration. To hold otherwise, the Board said, would be to take an entirely too technical view which would be inconsistent with the way the Association had conducted business in the past. The Board also noted that even where there were limits in the constitution, they do not necessarily govern the acquisition of statutory rights.

63. In summary then, it is fair to say that the Board's approach to constitutional compliance under section 63 has been flexible, focussing on reasonable notice and common sense in a labour relations context. The effect is that in this forum, what might be considered significant technical defects in common law terms have not precluded successorship declarations in a number of cases.

64. This approach is further highlighted by the cases where the Board has also said that only substantial completion of the transaction is required. In the Corporation of the City of Brockville, [1979] OLRB Rep. Feb. 76 for example, an application was made for a declaration that one local of CUPE was the successor to another. The merger had not yet been completed in the sense that there were still separate executives and separate bank accounts, the locals had kept their business affairs separate and still voted separately on their own business, although they held their meetings together. In addition, the merger was challenged on the basis that it had not been established that that the merger procedures were approved under seal as required by the CUPE constitution.

65. The Board held that its concern when administering what is now section 63 is that both the predecessor trade union and the successor have given clear approval to the proposed transaction, as well as the employees. According to the Board "[o]nce these matters of substance have been established, then a declaration may issue under section 54 even though certain mechanics of the transaction still remain to be done". The Board found in this case that what was left undone was of a mechanical nature, and that for all intents and purposes the merger was completed. Even though the approvals in this case appeared to be conditional upon a declaration from the Board, that had been satisfied with the filing of the application. The Board went on to say that "to delay making a declaration until these mechanics were completed would introduce an element of unnecessary formality into the exercise of its jurisdiction under section 54 [now section 63]", and a declaration was issued.

66. Similarly in Peerless Plastics Limited, [1978] OLRB Rep. Sept. 848 the Board held that three days was reasonable notice of merger meeting in the circumstances, and that there had been substantial completion of the merger even though there had been no transfer of assets to the successor. The same approach was reflected in Coca-Cola Ltd., [1987] OLRB Rep. May 658 where the Board rejected an argument that the application was fatally flawed or premature because it was in the name of the successor local, which had not been formally approved (along with the revised constitution and by-laws) until some six months after the date the date the application was filed with the Board.

67. The case of J.S.H. Mueller Ltd., [1988] OLRB Rep. May 491 underscores the Board's practical emphasis in considering whether a transaction has been completed. There the Board addressed a situation in which an international union had merged two locals, over the opposition of one. The latter challenged the merger on the basis that the alleged successor local's by-laws limited its jurisdiction to a geographic area which did not include the area of the predecessor. Although the by-laws had been amended to expand that jurisdiction, it was necessary for the international president to approve the amendment, failing which it was null and void. It appeared that such approval had not been given, although the president expressed no doubt about his intention to do so. The Board found that since the president had every intention to extend the successor's jurisdiction, whether or not he actually signed a document approving it was not significant:

In the view we take of these issues, the jurisdiction of Local 586 was extended to cover the County of Renfrew prior to the effective date of the merger or amalgamation. It was argued by counsel for Local 594 and for the intervener that Local 586 had not produced satisfactory evidence of this amendment. In our view, it is abundantly clear from the documentary evidence before us that the International President had every intention to extend Local 586's jurisdiction in anticipation of this merger or amalgamation. We cannot, in these circumstances, attach any particular importance to whether he actually signed a document approving the amendment of the Bylaws. The Constitution permitted the amendment and the political will to amend was obviously present. It would be unduly formalistic for this Board to question the amendment of the Bylaws on the basis of the absence of evidence as to the affixing of the International President's signature.

The Board's decision was affirmed by the Divisional Court on December 4,1990, [now reported at [1990] OLRB Rep. Dec. 1365].

68. This, then, is part of the jurisprudential backdrop against which the facts of this case must be assessed. The issues raised by the parties can be roughly divided into five clusters: the location of the bargaining rights before these events, the disaffiliation of Local 414, the formation of RWDSU/Canada, the merger with USWA and the International's request for a representation vote.

A. The Prior Bargaining Rights

69. One of the first issues raised by the International in the matter relates to the location of the bargaining rights before these events. The International asserts that it held the bargaining rights for employees in this bargaining unit prior to July 10th and 11th rather than Local 414, or alternatively that both held the rights, and as a result, these events should not result in a successorship declaration. The applicant takes the position that Local 414 held the bargaining rights, and that it was now the successor to those rights. Among other things, both parties referred us to the collective agreement for this bargaining unit and the International's constitution in this regard.

70. The first page of the collective agreement describes the union party as follows:

RETAIL, WHOLESALE AND DEPARTMENT STORE UNION

Locals 414, 429 (Timmins), 545 (North Bay), 579 (Sudbury, 582 (Sault Ste. Marie), and 915 (New Liskeard) AFL-CIO-CLC

The signing page of the agreement is set out as follows:

FOR THE UNION

RETAIL, WHOLE AND DEPARTMENT

STORE UNION, LOCAL 414

(list of names)

FOR THE UNION

RETAIL, WHOLESALE AND DEPARTMENT

STORE UNION, LOCALS 429, 545,

579, 582 and 915

(list of names)

The names include the names of local officials, bargaining committee members, and staff representatives who are employed by the International. However, the staff representatives who signed are also attached to the locals listed in some other capacity, either as members or local officials. A number of Letters of Understanding attached to the collective agreement are addressed to "R.W.D.S.U., Local 414" and "R.W.D.S.U., Locals 429, 545, 579, 582 and 915". They are signed by the company and the union parties are described on the signing page as:

"Local 414 (name)"

"Locals 429, 545, 579, 582 and 915 (name)"

71. Among other things, the International points to the fact that on the first page, there is a gap between "RETAIL, WHOLESALE AND DEPARTMENT STORE UNION" and the names of the locals in support of its view that the International holds bargaining rights. Counsel also notes that the letters "AFL-CIO-CLC" appear after the local numbers, although the locals cannot be affiliated with those organizations on their own. The applicant on the other hand cites the fact that the union name and the local numbers run together on the signing page, and says that the affiliation initials appear simply because that is the name of the union, used when describing the locals as well. Counsel points to the letters of understanding as indicating clearly that the bargaining relationship is with the local.

72. The parties referred us to the following provisions in the International constitution:

Section 9.(a) All members of a local union are members of the Retail, Wholesale and Department Store Union and are subject to the orders, rulings and decisions of the International Union and its properly constituted officers.

(b) Subject to the provisions of Article XVIII, the local union to which the member belongs is irrevocably designated, authorized and empowered by him exclusively to represent him for the purpose of collective bargaining in respect to rates of pay, wages, hours of employment or any terms or conditions of employment, and for the negotiations, execution, revision and termination of contracts with employers covering all such matters.

(c) The local union to which the member belongs is irrevocably designated, authorized and empowered by him exclusively to appear and act for him and in his behalf before any board, court, committee or other tribunal in any manner affecting his status as an employee or as a member of his local union and exclusively to act as his agent to represent or bind him in the presentation, prosecution, adjustment or settlement of all grievances, complaints, disputes or any kind of character arising out of the employer and employee relationship as fully and to all intents and purposes as he might or could do if personally present.

(d) The power given to the local union under clauses (b) and (c) hereof may with the consent of the local union be exercised by the International Union or its designee.

(emphasis added)

Article XVII includes the following provisions:

Section 2. The right to bargain collectively for the whole membership of a local union shall lie with the Executive Board of the local union or officers designated by it and with the International Union or its Representative when the local union so requests.

Section 3. The International Executive Board shall guide and advise the course of negotiations by the local unions.

Local 414's by-laws also provide as follows:

Section 2 - The unit shall concern itself with matters pertaining to the negotiation of a Collective Agreement under the supervision of the International union and in accordance with the policies devised by policy committees.

Section 3 - After a Collective Agreement has been negotiated, the unit is responsible for the processing of grievances in accordance with the Collective Agreement. The unit is responsible for the Local for its actions, and the Local is the governing body in the province.

(emphasis added)

73. Bargaining itself is conducted by Local 414's bargaining committee, assisted by a staff representative employed by the International. There were also several notices to bargain entered as exhibits which are equivocal in their wording. In addition, the applicant led evidence that certification applications were usually made in the name of the International, but that subsequently the new bargaining unit would be assigned to the appropriate local to represent members in collective bargaining. However, Local 414 itself includes the historical remnants of other locals, and the origins of the large, multi-store bargaining unit in question here are unclear.

74. The lack of clarity with respect to the original acquisition of bargaining rights, together with the Board's jurisprudence indicating that a collective agreement supersedes a certificate in this regard focusses attention on the current collective agreement. Unfortunately, that agreement is somewhat ambiguous. I do not think it cannot be said that it supports the International's contention that the bargaining rights were at least shared between the International and the Local, even if that were possible in the face of sections 42 and 50. This is not a case, for example, where the collective agreement reads "X Union and its Local Y" as some agreements do. (It was not suggested that the bargaining rights were shared among the locals listed in the agreement as there was apparently no dispute that they had different geographic jurisdictions.) Neither do I find the International's argument that it "owned" the bargaining rights while Local 414 administered them to be tenable in terms of the overall scheme of the Act. On the other hand, the collective agreement provisions are not particularly clear.

75. In these circumstances, the other evidence adduced by the parties is of some assistance in interpreting the collective agreement. The constitutional provisions set out above make it quite clear that Local 414 is irrevocably and exclusively designated to represent members for the purposes of collective bargaining, grievances, and all disputes of any kind arising out of the employer and employee relationship. When this is combined with the other sections providing that the right to bargain collectively for the membership of a local union lies with the executive board of the local union, the fact that the International may play a role in advising or guiding negotiations appears insignificant. Indeed, the constitution indicates that the International may only exercise the power to represent members for collective bargaining purposes when the local union either requests or consents to it. (There was no evidence that Local 414 had either requested or consented that the International play such a role.) These provisions are also consistent with the evidence that new bargaining units are assigned to locals for representation, and the other evidence with respect to how bargaining is conducted.

76. Reviewing the collective agreement in this context, on balance I conclude that at the time of the commencement of these events, Local 414 held the bargaining rights for this unit.

B. The Disaffiliation of Local 414

77. Proceeding chronologically through this sequence of events, the International suggests that the disaffiliation of Local 414 was flawed because the UFCW merger agreement was not put to a special convention in accordance with Local 414's by-laws. In fact, it is not obvious that the special convention provision relating to a merger or a "similar move" applies to disaffiliation as well, nor that the inclusion of the disaffiliation provisions in the merger agreement somehow triggers this article. However, assuming for the purposes of this decision that it does apply, it appears from a reading of those by-laws as a whole that the reason a special convention is required is simply because the regular conventions are fixed, that is, held biannually in the months of April, May or June. The intent is that there be a convention, and normally it would be a special convention because a regular convention would not necessarily be scheduled at the appropriate time. In this case, however, consideration of the UFCW merger coincided with the Local's regular convention, and the UFCW merger agreement was discussed at that convention. In my view, this more than satisfies the requirements of the by-laws, since there is no requirement that such a merger be discussed or voted upon.

78. Moreover, the correspondence makes it clear that the International was aware of this provision in Local 414's by-laws, and knew that no special convention had been held. Nevertheless, it accepted Local 414's delegates at the UFCW merger vote meeting, seated them and allowed them to vote. Under the circumstances, there is considerable merit to the applicant's argument that the International has waived its right to object on this basis. I also observe that notices of this application were posted in the workplaces of this bargaining unit and no employee came forward to intervene in these proceedings.

79. The International also argues that the disaffiliation of the Local was not complete at the time it joined the other locals to form the RWDSU/Canada. As a result, it takes the position that the latter could not be a successor, nor the applicant a subsequent successor to that. Article XVII of the international constitution provides that an affiliate cannot disaffiliate without the approval of the International Executive Board. The UFCW merger agreement sets out the following:

E. The RWDSU International Executive Board by voting to approve this Merger Agreement, has approved, in accordance with Article XVII of the RWDSU Constitution, the disaffiliation of those Canadian affiliates who have voted to seek disaffiliation as described in Paragraph 16(D)(l), above, on the following basis:

(1) The disaffiliation shall be effective October 1, 1993.

There are then a number of other sub-paragraphs which describe various consequences of the disaffiliation and requirements with respect to certain kinds of indemnities, and so forth. Paragraph 16(D)(1) provides that Canadian affiliates who vote against the UFCW merger agreement are deemed to have sought disaffiliation.

80. At the outset, it is worth noting that paragraph 16(E) is not a constitutional provision. In fact, it is a term of an agreement between the International and UFCW to which Local 414 is not even a party. Among other things, this also means there can be no suggestion that the members of Local 414 have agreed to it, either figuratively or literally. In addition, it does not call for the dissolution or extinction of a disaffiliating local. There is nothing in the agreement or facts of this case which suggest that even on October 1st, Local 414 itself would have gone out of existence. On the contrary, the merger agreement makes it clear, for example, that the Local retains all its properties, funds and assets upon disaffiliation. All that happens is that the Local is no longer affiliated with International. In other words, even the rationale for constitutional compliance, which includes the agreement of members to the constitution and a fundamental change in objects does not apply in these circumstances.

81. Of course, the international constitution does require the approval of the International Executive Board for disaffiliation. However, paragraph 16(E)(1) of the merger agreement is not particularly clear in terms of its application. I do not think that the words "on the following basis" can be read as meaning that the approval is conditional upon the date of October 1st occurring. For one thing, this would be incongruous with respect to some of the other sub-paragraphs these words precede. For another, the provision makes it clear on its face that by voting to approve the merger agreement, the International Executive Board "has approved, in accordance with Article XVII of the RWDSU Constitution, the disaffiliation". The International Executive Board voted to approve the UFCW merger agreement on April 7th, 1993 which was then signed April 8. In other words, the necessary approval for the subsequent disaffiliations was given on that date. Although this provision is not especially well-drafted, the most sensible interpretation is that the arrival of October 1st is not a condition precedent of the approval, but a detail or aspect of the approval. The approval had already occurred, fulfilling the requirements of the International constitution; at its highest it could only be argued that the disaffiliation itself was not complete in some way until October 1st.

82. What then, is the implication of this provision in the context of the Board's jurisprudence on substantial completion? One thing is quite clear about paragraph 16 (E)(1) which stipulates October 1,1993; it is entirely automatic. All that must happen is for this date to arrive. It appears from the evidence that Ms. Miller's view was that the time period between the UFCW merger vote meeting and October 1st constituted a sort of cooling off period in which the Canadian locals could change their minds. However, this is flatly inconsistent with the merger agreement provisions, which provide for certain consequences as a result of an unfavourable vote. There is no option for a change of heart on the part of the disaffiliating locals; the subsequent vote option is for the locals voting in favour of the merger agreement only. Indeed, the merger itself is not effective until October 1, but there was no suggestion that the American locals voting in favour of it could change their minds during this interregnum.

83. Moreover, the merger agreement also makes it evident there is no magic about the date of October 1st. A subsequent paragraph provides that Canadian locals which vote for the merger agreement may change their minds later and vote to disaffiliate, and "such disaffiliation will be consummated in accord with the provisions of Paragraph 16(E) above". Since this can happen at any time within a four-year period, it can hardly be said that the date of October 1 plays a significant role in completing the disaffiliation of the locals.

84. Some of the other sub-paragraphs require a disaffiliating local to provide certain indemnities and tenders. Mr. Collins testified that Local 414 stands ready and willing to provide those items. In these circumstances, I conclude that what was left to occur in terms of the disaffiliation was purely mechanical. The substance of the provision was that if a local voted against the merger agreement, it would be deemed to have sought disaffiliation. As of April 7th, the approval required for that disaffiliation in the constitution had already been given in advance. The rest was paperwork, and it is certainly possible to conclude that the October 1st date was inserted simply to provide some time to allow that paperwork to be completed, and to be consistent with the UFCW merger date. In other words, this situation falls well within the Board's jurisprudence with respect to substantial completion. I note in passing that Canadian Rexall Corporation, [1976] OLRB Rep. Sept. 557 does not apply here as the trusteeships were not imposed on the locals (as opposed to the Canadian District Council) until after July 11th.

85. Because the merger agreement stipulates that the laws of the state of New York shall be deemed to govern the interpretation and performance of the agreement, both the International and the applicant filed affidavits from American lawyers purporting to address the disaffiliation from the point of view of New York law. As it turns out, these affidavits were not of much assistance. For one thing, they are diametrically opposed in their conclusions. In addition, the deponents appear to rely in part on assumptions which were not in evidence before me. Lastly, to the extent they focus on interpreting the language of the merger agreement, these affidavits do not suggest principles of construction (as opposed to conclusions) which are at odds with the interpretative approach forming one aspect of my conclusions on this issue.

86. In light of the substantial compliance with Local 414's by-laws, the triggering of the approval which met the requirements of the international constitution, and the substantial completion of the disaffiliation itself, Local 414 became disaffiliated after the vote on July 10, 1993. As a result, the international constitution did not apply to the events of July 11th, and the local was free to take such steps as it desired without the approval of the International.

87. I have addressed this argument on the basis of the International's position that the bargaining rights should not ultimately flow to the applicant if the disaffiliation had not been effected. However, it is also worth remembering at this point that the bargaining rights were held by Local 414 prior to the July 10 vote. This puts the disaffiliation problem into perspective. It is not as if Local 414 had to rely on the approval of the International or the disaffiliation provisions of the merger agreement to acquire those bargaining rights. Indeed, the Coca-Cola case makes it clear that it is not necessary in these circumstances for the Board to make a declaration that the disaffiliated Local 414 was a successor to Local 414 of the RWDSU (and in fact, it may not be possible if disaffiliation is not covered by section 63). In that case, the Board indicated that such a declaration would be essentially redundant because the local held the bargaining rights before disaffiliation, and simply continued to hold them after disaffiliation. I find this accurately characterizes the facts in this case as well.

C. The Formation of RWDSU/Canada

88. The next issue involves the events of July 11th. The International challenges the formation of the RWDSU/Canada on a number of grounds. Firstly, counsel argues that the creation of this organization was either a merger or a "similar move" to a merger, and thus the by-laws of Local 414 required that a special convention be called.

89. It is not entirely clear that the by-laws of Local 414 survived the disaffiliation. However, assuming that they did, the Board defined the terms set out in section 63 in Hydro-Electric Commission of Ontario (1957), 57 CLLC ¶18,080. In that case, it said that a merger means the absorption of a thing of lesser importance by a greater, whereby the lesser ceases to exist. An amalgamation involves the union of different societies so as to form a new body, and a transfer of jurisdiction involves the assignment of control over a subordinate branch by one parent union to another parent union. (The definition of transfer has been amplified since then to encompass other situations as well, for example, in M.L.S. Cable Installations Inc., [1987] OLRB Rep. Nov. 1413).

90. Not surprisingly in the circumstances, the constitution adopted by the delegates on July

11th stresses the autonomy and continuing intact nature of the locals involved. For example, Article XXVIII, sections 1 and 2 provide as follows:

Each local union and other affiliate of the Retail, Wholesale and Department Store Union AFL-CIO-CLC which has disaffiliated from that union by virtue of the vote held on July 10, 1993, shall become local unions and affiliates of Retail, Wholesale and Department Store Union/Canada upon the effective date of this constitution. Such local unions and other affiliates shall retain their charters as of the date of its original issue and become by virtue of this Constitution, a chartered body of the Retail, Wholesale and Department Store Union/Canada.

Except as otherwise provided in this constitution, nothing shall effect, interrupt or change in any way the status and autonomy or the rights or duties of local unions and other affiliates or their officers. Such local of affiliate officers shall continue to hold office until such time as their terms expire in accordance with local and/or affiliate by-laws.

(emphasis added)

91. In this case, the locals were not losing their property, their executives, their assets, or their respective identities. There is little doubt that Local 414 was not absorbed into the new national union in the sense described in Hydro-Electric Commission of Ontario, supra. Rather, it took on a different form when the disaffiliated Local 414 became Local 414 of the RWDSU/Canada. On the other hand, it is clear from the substantive nature of the new constitution, its provisions making all local members also members of the national organization, and both the form and substance of the events of July 11th that what occurred was more than a mere affiliation. Having regard to the evidence and to the definitions set out in the Board's jurisprudence, it is more accurate to characterize the creation of the RWDSU/Canada as the union of the locals involved so as to form a new body - in other words, an amalgamation.

92. Is an amalgamation a "similar move" to a merger so as to trigger the requirement in Local 414's by-laws for special convention? At first glance, such a proposition has some merit, especially since the terms are sometimes used interchangeably. On the other hand, general principles of statutory interpretation suggest that the three kinds of transactions set out in section 63 should not be construed as superfluous. This tends to reinforce the differences between these types of events. It also seems quite possible in common sense terms that Local 414's by-laws intended that there be a special convention when the local was contemplating a move which would lead to its extinction, but not necessarily otherwise.

93. The applicant also argued that the RWDSU/Canada constitution provided that the local unions had to amend their by-laws so that they conform to the constitution. Under this provision, until such time as they are amended, the National Executive Board had the final authority to interpret the by-laws. The RWDSU/Canada constitution provides only that merger requires the approval of the National Executive Board and does not require a special convention, so that in these circumstances, counsel argued, the National Executive Board had the final authority to interpret the by-laws in such a way that a special convention was not required. Counsel for the International suggests this provision would only operate if the by-laws were inconsistent with the RWDSU Constitution, and points to a reference in the article to another article which reads "shall conform to and not conflict". It is true that Article XXVIII itself which grants the National Executive Board this power speaks only of conforming to the constitution, rather than conflicting. However, the problem with this argument is that it is rather circular to look to the new constitution for authority overriding the by-laws with respect to the meeting which created the new constitution. Of course, some circularity seems to be endemic to these situations, as the Board's jurisprudence with respect to the formation of new trade unions reflects. Nevertheless, I do not find this argument particularly persuasive.

94. What is more important is that the special convention provision of Local 414's by-laws is not a particularly substantive one. It reads as follows in its entirety:

A special Convention shall be called by the Executive Board of the Local if a merger, or similar move is considered by the International or the Local.

All that is required is that a special convention be called. There is no actual provision for discussion of the merger, nor is there a requirement for any kind of vote or approval. On the other hand, the requirement of a convention itself seems to suggest some opportunity for discussion or a canvas of views.

95. In this case, delegates elected by a Local 414 convention eight weeks previously and authorized by Local 414 by-laws to represent the Local at conventions cast the votes of Local 414 members with respect to the amalgamation. The evidence indicates that the UFCW merger, the disaffiliation and the USWA merger had been discussed at meetings with Mr. Collins at considerable length. In addition, it is not suggested by the applicant that bargaining rights were ceded to the new national organization in and of itself. Rather, the evidence supports the conclusion that bargaining rights were retained by Local 414, which was now Local 414 of the RWDSU/Canada.

96. These specific circumstances and the fact that I am approaching the matter from the point of view of the succession of bargaining rights provides a context for interpreting the meaning of a "similar move". Having regard to that context and the two possible interpretations of this phrase available, on balance I am not inclined to construe this phrase as including an amalgamation. Alternatively, if an amalgamation is a similar move to a merger, these circumstances in the overall context of this case lead me to the conclusion that the failure to call a special convention should not by itself cause me to exercise my discretion against a successor declaration.

97. The International also argues that the delegates were not authorized to vote to create the new national organization. The applicant contends that if the delegates were good enough to vote on the UFCW merger or disaffiliation on behalf of Local 414, they were good enough to vote for affiliation as well, and there is some merit to this perspective. More significantly, however, these delegates were not elected just to vote on the UFCW merger. They were elected at the Local 414 convention in May as members of the Local Executive Board, who were empowered by the by-laws to attend conventions on behalf of the Local. This practice of standing delegates was recognized by the International constitution and in the notice of the July 10th UFCW merger vote meeting. There were no specific restrictions placed on their authority at the time of their election, and it can hardly be said that voting on the UFCW merger or disaffiliation is of less gravity than voting for affiliation with RWDSU Canada. As a result, this argument is unpersuasive as well.

98. Since the Canadian District Council meeting of July 11th was aborted by the imposition of the trusteeship, I do not find it necessary to address the International's arguments with respect to the requirements in the Canadian District Council by-laws.

99. The International is also of the view that the events of the constitutional convention on July 11th did not create a new organization with trade union status, and thus Local 414 of RWDSU/Canada should not be considered a successor to Local 414 of the RWDSU. In fact, as noted, since the bargaining rights were not ceded to this national organization in and of itself, the issue raised by the intervenor is less significant. It was not suggested that Local 414 of the RWDSU was not a trade union (whether or not it had been so declared by the Board) and there was nothing in the disaffiliation or amalgamation which would have caused the kind of fundamental change in its objects or identity which would mean it was no longer a trade union. (See for example, Hartley Gibson Company Limited, [1986] OLRB Rep. Nov. 1517, Food Corp. Limited, [1983] OLRB Rep. May 636, Coca-Cola Ltd., [1975] OLRB Rep Nov. 862.) Indeed, the Board's jurisprudence is clear that a local can be a trade union, and there is ample evidence before me in terms of the structure and operations of Local 414 to find that it was a trade union at the commencement of these events.

100. In any event, the evidence makes it clear that the steps taken on July 11th to form the RWDSU/Canada were more than sufficient to create a trade union in the context of the Board's jurisprudence in this area. Its general approach is set out in Opera Ghost Productions Inc., [1990] OLRB Rep. March 325:

Although the requirement that a trade union be an "organization" implies that it must have some structure, and the nature of the rights, obligations and duties that a trade union has under the Labour Relations Act suggests that there are certain characteristics that it must have, the only pre-conditions to trade union status under the Act are that at least two employees have agreed to be found by the terms of an identifiable agreement between them (i.e., a constitution), which section 84 of the Act seems to contemplate will be in writing, for purposes which include the regulations of relations between employers and employees. This is nothing in either the Labour Relations Act or otherwise which dictates how an organization must be formed, structure or operated in order to be a trade union within the meaning of the Labour Relations Act. There is therefore no one formula which must be followed in order to successfully create an organization which is a trade union within the meaning of the Act. Whether a trade union has come into or continues to exist is a question of fact to be determined have regard to the circumstances of each case (see, for example, Ontario Hydro, [1989] OLRB Rep. Feb. 185; L'Abbe Construction (Ontario) Ltd., [1987] OLRB Rep. Oct. 1191; Hartley Gibson Company Limited, [1986] OLRB Rep. Nov. 1517).

101. Within this general approach, however, the Board has also set out some guidelines which are often referred to as the five step test. In Service Employees International Union, [1991] OLRB Rep. Feb. 267, the Board summarized those steps in a quote from its own guide:

"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. They they elect officers of the union to administer its business and represent it.

102. At the same time, the Board has also said it will not be unduly technical in this regard (see Service Employees lnternational, supra; VME Equipment of Canada Ltd., [1986] OLRB Rep. Oct. 1480; Associated Hebrew Schools of Toronto, [1978] OLRB Rep. Sept. 797; and Canteen of Canada Limited, [1978] OLRB Rep. Sept. 802).

103. The evidence in this case indicates that the delegates held a meeting, voted to approve a written constitution prepared in advance which had as one of its terms that all members of the locals would become members of the new organization, and then voted to ratify the constitution. They then voted on officers.

104. Does the fact that this was done by delegates mean that the resulting organization was not a trade union? Leaving aside for the moment the issue of membership, there seems to be no reason why this should be so. It is useful to keep in mind that most of the Board's cases in this area involve small associations where it is natural that employees themselves will be the actors. In this case, however, the disaffiliating locals had a membership of some 20,000, and a sophisticated delegate structure. To suggest that they could not create a new trade union unless all 20,000 assembled in one meeting and went through the five steps themselves does not make much sense in practical labour relations terms. Moreover, as the Board noted in Opera Ghost, above, the issue of trade union status is not dependent on one formula, but on the circumstances of each case. Indeed, the Board has not even required the five step test to be followed in cases involving established organizations with histories of functioning as trade unions.

105. With respect to the issue of admitting employees to membership, there is some suggestion in The Dufferin-Peel Roman Catholic Separate School Board, [1976] OLRB Rep. Dec. 821 that a union security type clause in a constitution requiring membership could not fulfil the membership step for the creation of a trade union because membership is an individual commitment. That case can be distinguished on its facts: for example, the constitutional provision here is much stronger than in that case, and provides that persons who are already members of a local union are members of the national union as well. In addition, the delegates in this case actually cast the votes of the members through the roll call vote approving this provision as part of the the constitution. (There are provisions as well for applying for membership in the national, but it is evident from Section 9 that local members do not need to make such applications to be members in the national.) The Dufferin-Peel case also relies heavily on an Astgen v. Smith conceptual approach which the Board has found less useful in the last decade.

106. However, it is not necessary for me to decide whether section 9 of the national constitution functioned to admit all members of the locals to the national union for the purposes of the five step test. As the Board observed in Opera Ghost, supra, for trade union status (as opposed to the issue of the succession of bargaining rights), it is only necessary that at least two employees have agreed to be bound by a written constitution which has as one of its objects the regulation of relations between employers and employees. In this case, most of the delegates were rank and file members of the locals, and by approving this provision, at the very least they committed themselves to membership in the national. (I have disregarded what was alleged by the applicant to be confirmation of membership by the delegates attached to the constitution as it was not proven in evidence before me.)

107. It was also the International's view that RWDSU/Canada was not established to regulate labour relations, a requisite object for trade union status for a new organization. This was because its only purpose, according to counsel, was to create a vehicle for merger. However the national constitution contains a declaration of objectives and principles which includes the advancement of the economic and social welfare of workers, the establishment of certain kinds of working conditions, collective bargaining and so forth. Normally this would fully satisfy the Board's requirements. The fact that the new organization was actually only in existence for a short period of time does not detract from those objects. There was at least a possibility that delegates could have voted against the USWA merger agreement, with the effect that the new national union would have continued to function. As a result, assuming that the five step test is applicable here, I find that its requirements have been fulfilled, and the RWDSU/Canada was a viable organization of employees formed for purposes that include labour relations - that is, a trade union.

108. The issue of whether the new union should be considered a successor if in fact this sequence of events was not sufficient to make all members of Local 414 members of the national is addressed to some extent below in the discussion of the International's request for a representation vote. However, at this point, it is useful to note again that it is Local 414, as a local of the new organization which is alleged to be the successor to Local 414 of the RWDSU, and that the scheme of the Labour Relations Act contemplates the representation of even non-member employees by a bargaining agent.

109. The International further argued that delegates did not have sufficient time to study either the new constitution or the USWA merger agreement. The evidence indicates that the new constitution was basically patterned on the international constitution and that any changes were highlighted at the meeting. In addition, both documents were reviewed in great detail at the meetings, and delegates broke and caucused to discuss the merger agreement. It was also clear that a significant number of delegates did receive copies of the USWA merger agreement in advance, and that the locals had been discussing what should be in a merger agreement for some time previously as a result of their concerns about the terms of the UFCW merger agreement. There is no evidence that any of the delegates objected or indicated that they required more time to study these documents, and my attention was not drawn to any provision for advance distribution in Local 414's by-laws, the International or the national constitution. As a result, the International views in this regard are unconvincing.

110. Another objection by the International relates to the notice of the constitutional convention and meeting. Counsel alleges that the notice was insufficient because the agenda did not set out clearly enough the business that was to transpire. The notice read as follows:

There will be a Constitutional Convention and meeting of the above Locals and their delegates immediately following the C.D.C. meeting in Toronto at the Delta Hotel, 801 Dixon Road on July II. 1993 to decide the future and successor organization to R.W.D.S.U. locals in Canada deemed "to be disaffiliated. This should start around 11:00 a.m. and adjourned around 6:00 p.m.

The agenda will include:

1. Discussion of the future organization and options.

2. Adoption of a new name, constitution and officers if applicable.

3. Adoption of a merger proposal if applicable.

Please ensure that your delegates are representative of your Local and should be the same delegates as to the UFCW/RWDSU merger meeting. It is important that together we forge a new future for our members.

Having regard to the Board's jurisprudence in this area, the notice seems entirely adequate to alert locals to the issues which would be discussed and decided upon.

111. The International also takes the position that the July 11th meeting events were invalid because notice of the meeting was given one month in advance, rather than the 90 days required under Local 414's by-laws for a convention call. However, it is evident that this requirement only applies to Local 414 conventions, which is set out in the by-laws as a very specific kind of event. The first meeting on July 11 was a constitutional convention of all the disaffiliating locals, not an internal Local 414 convention. The national constitution adopted requires 60 days notice for a convention, but of course, this was only effective after the constitution was adopted. In other words, for the constitutional convention on July 11 there was a vacuum in terms of notice requirements. There is some suggestion in the Board's jurisprudence that in these circumstances, the Board should proceed to decide whether there was reasonable notice. Assuming that it is necessary for me to do so, and having regard to the Board's jurisprudence where as little as three days has been considered adequate notice, I find that a month's notice was reasonable.

112. Counsel for the International was of the view, however, that the local delegates were not entitled to vote because of various stipulations in the national constitution, for example, that they had to be in continuous good standing in the local and the national for at least twelve months. Again, these requirements only came into existence after the adoption of the new constitution, and as a result do not amount to an impediment affecting the validity of the constitutional convention on July 11th as a whole. At best it might affect the motions with respect to officers. Having regard to the fact that compliance would have been impossible for some of these stipulations, I am not prepared to find that this nullified the motions with respect to the new organization's officers. Alternatively, if it did, or if they affected the convention generally, I find that this alone would not lead me to a conclusion that the national organization was not a trade union since the five steps were completed in substance. Nor do I find that this affected the validity of subsequent events or the authority of the delegates to vote on either the constitution or merger. Given my conclusion that the delegates were authorized to vote in substance, it would be unduly technical and not in keeping with the Board's jurisprudence to find that such provisions militated against a successor declaration.

113. Having regard to all the evidence, I conclude that Retail, Wholesale and Department

Store Union/Canada, Local 414 was a successor to the Retail, Wholesale and Department Store

Union, AFL-CIO-CLC, Local 414.

D. The Merger with USWA

114. I now turn to the meeting of July 11th which followed the constitutional convention, to which the new national constitution did undoubtedly apply. The requirement with respect to notice and the stipulations with respect to delegates voting are contained in a section of the national constitution in regard to conventions. However, mergers are dealt with under another article, which provides as follows:

The National shall have the power to merge, affiliate or amalgamate with any other trade union organization should such merger, affiliation or amalgamation be approved by a majority of delegates in attendance at a meeting or convention called for such a purpose. Such meeting of July 11, 1993 is deemed to be such a meeting.

115. It is not obvious that the requirements under Article IV apply to Article II, and in fact, the last sentence of Article II suggests otherwise. Since the delegates did in fact have reasonable notice of the issues discussed at that meeting through the June 8th notice as well, there is no reason to find the business transacted there invalid as a result of these arguments.

116. The International further argues that the Local 414 by-law referred to above with respect the requirement of a special convention for a merger applies to the meeting which followed the constitutional convention on July 11. There is no doubt that what occurred at that second meeting was a merger. However, this provision only applies to consideration of a merger by the Local or the International. In case of the second July 11th meeting, it was the national union that was purporting to merge, not the Local or the International. For this reason, and for the reasons set out above with respect to the special convention provision and the amalgamation, I do not find this an impediment to a successor declaration.

117. I therefore conclude that the merger with USWA was completed in substantial compliance with the requirements of the national constitution, and that any variance with Local 414's by-laws should not be determinative.

E. Representation Vote

118. If I find that this sequence of events would otherwise gives rise to a declaration of successor status in the applicant, the International argues that I should order a representation vote. (Actually, the International's position was that only if the Board was inclined to issue such a declaration should a representation vote be held; otherwise, the application should be dismissed). The essence of the International's position in this regard is that the process was simply not democratic enough because there had been no vote of all employees in the bargaining unit.

119. According to George Adams in Canadian Labour Law, (2nd ed., Aurora, Ontario: Canada Law Book, 1993), labour boards have been reluctant to order representation votes in union successorship applications. In this connection, the author cites the Ontario cases of Jaeger Machine Co. of Canada Ltd., [1983] OLRB Rep. July 1082 and Lambton Health Unit, [1975] OLRB Rep. July 543. This proposition also appears to be borne out by the numerous cases submitted to me by the parties where it is evident that the ordering of a representation vote under section 63 is a relatively rare event. Similarly, Jeffrey Sack and Michael Mitchell in Ontario Labour Relations Board Law and Practice (Toronto: Butterworths, 1985) state that "[i]n the absence of any evidence that the employees were misled or deceived by merger proceedings the Board has refused to order a vote", citing Lambton Health Unit, supra, again for this proposition.

120. In Lambton Health Unit, supra, the Board said in rejecting a request for a representation vote:

In short, the Board does not hold that there is any basis to conclude, especially in the absence of any intervention in these proceedings by the employees affected, that they were misled or deceived by the merger proceedings. Counsel's request that a representation vote [be held] is therefore denied.

121. The Board decided not to order a representation vote in Jaeger Machine, supra, because there was no evidence of widespread misunderstanding among the membership, and no interference with the expression of the members' true wishes regarding the merger. Among other things, the Board said that its approach was to look upon mergers by trade unions essentially as an internal procedure, that members are the best judges of what should be necessary to effect a merger with another union and that the Board was unwilling in that case to second-guess the judgement of the members.

122. Similarly in The Peel County Board of Education, [1973] OLRB Rep. Dec. 623, the Board rejected the idea of a representation vote because employees had received reasonable notice and there was no suggestion that any employees objected, nor did any appear at the hearing.

123. In Jaeger Machine, supra, an employee vote had already been held as part of the merger process. The facts are less clear in The Peel County Board of Education and Lambton Health Unit cases, although it appears there was at least a meeting of some kind in the former and notice to employees in the latter. However, in J.S.H. Mueller Ltd., supra, the Board clearly addressed a case where one local was merged with another by an International union without any kind of vote, and over the objection of the predecessor local. In that case, the Board said as follows:

We disagree with the arguments put to us to the effect that the Constitution impliedly requires the approval of Local 594's members and Local 586's members before a merger or amalgamation of the locals can be effected under article 15, section 5. We are aware of no principle of interpretation that would require, or even permit, us to imply a need for membership approval of a merger or amalgamation, when the Constitution clearly empowers the International President to decide on mergers or amalgamations of locals.

124. On judicial review the Divisional Court upheld the Board's decision, and said that ordering vote in the circumstances would have been an unwarranted interference in the internal workings of the union:

The Board having satisfied itself that the International Brotherhood had acted within its constitution when it merged Local 594 into Local 586 SO the Local 594 no longer existed, had in our view the discretion to make a successor declaration under section 62(1) of the Labour Relations Act, without taking any vote or otherwise satisfying itself that the former members of Local 594 supported either the merger or that a successor declaration be made.

Indeed in the circumstance here present the ordering of a vote would have been tantamount to an unwarranted interference in the internal workings of the International Brotherhood and would have left as the bargaining agent for the Renfrew electricians a local that the International Brotherhood had already decided no longer existed.

The court also found that the failure to order a vote was not an infringement of the Charter of Rights, nor did it amount to a denial of the right to belong to the union of one's choice.

125. A somewhat different view is expressed in L.M.L. Foods, supra, where the Board observed that the wishes of affected employees were always a relevant concern. However, the Board also noted that democratic structure in unions is not a requirement of the Labour Relations Act, that the Act's primary focus is not on the internal structure and inter-relationships of its members and that with certain limited exceptions, the Act does not provide for supervision of the relationship between a trade union and its members.

126. In this case, Local 414's by-laws did not require any kind of vote on the disaffiliation, or the following amalgamation and merger. Nevertheless, each of these steps was accompanied by votes. The international and the national constitution required only a delegate vote with respect to mergers. In other words, the various bodies at relevant times in this saga have done either what was required by their constitutional instruments to test the wishes of members, or more. In addition, Mr. Collins canvassed the opinions of local officers and members with respect to these events at considerable length. In these circumstances, does the fact that these were delegate votes suggest that the Board should decline to issue a declaration but should order another a vote, this time of members?

127. It is noteworthy that the Board has accepted other delegate votes without comment (for example, in Coca-Cola, supra, and Formula Plastics Inc., [1987] OLRB Rep. May 702). Even in L. M. L. Foods, it was not suggested that the wishes of the members could not be reflected in a delegate vote. Provisions for the election of delegates and their voting process are contained in the international constitution, Local 414's by-laws and the national constitution. For the Board to ignore those provisions which are detailed and sophisticated, and disregard the well-established and long-standing tradition within the locals with respect to delegate representation strikes me as something of an unusual encroachment into their affairs. Moreover, it implies holding unions to a standard of democracy far in excess of that required in Canadian society generally. The delegate structure here was no more undemocratic than any representative democracy. In fact, the ratio of delegates to members in this case compares favourably to that generally found in municipal, provincial or national government in Canada. While democracy is always an evocative concept, it does not necessarily imply a plebiscite, let alone a plebiscite of the 20,000 members of the disaffiliating locals. Among other things, the Board is cognizant of the fact that unions are not organizations of unlimited resources. I also observe that there was no suggestion that the delegate process was something new, in conflict with the practice until now or designed to promote a certain outcome with respect to the various votes involved.

128. Finally, a consideration of the possible choices in a representation vote highlights the problematic nature of a vote direction. Counsel for the International advised the Board that at least one of the choices in such a vote should be Local 414 of the RWDSU. However, that entity no longer exists in that form. In fact, the International will also cease to exist in its present form on October 1st, becoming a district council and a "constituent part" of the UFCW according to the merger agreement. Ordering a vote of some 5,000 members in the bargaining unit before us and providing choices which are likely to obsolete even before a vote of this size could take place does not seem particularly sound in terms of labour relations.

129. Of course, one potential choice on the ballot could be the RWDSU District Council of the UFCW which is what the International is slated to become on October 1st. However, I note that neither the International nor the UFCW held the bargaining rights for these employees at any material time in this case. Ordering a vote with respect to the RWDSU District Council of the UFCW in this situation would in some respects have the effect of a mid-term raid. It is also true that the International and the UFCW set up the terms of the delegate vote on the UFCW merger through the merger agreement. Those terms were clearly designed to maximize the chances of a favourable vote and to make rejection of the merger as unattractive as possible. When despite this the locals voted against the merger, it seems inequitable to allow the International to now say that the delegate structure was not democratic enough, and to ask for another vote which would in essence be on the UFCW merger.

130. Indeed, one possible implication of the International's position is that the American RWDSU/UFCW merger vote was also defective. I would be reluctant to take a step which suggests a cloud on the merger of organizations with 105,000 members and 1.2 million members respectively without more compelling reasons.

131. Another option would be a vote between Local 414 of the RWDSU/Canada and the applicant. However, again, the former organization no longer exists, having become a division of the USWA, and in any event, no party requested such a vote. The last possibility, that of a vote simply on whether the applicant should represent employees in this bargaining unit, is also unsatisfactory. It leaves open the possibility of what amounts to a mid-term decertification, a result requested by no party and one which is incongruous with the purpose of section 63 in providing stability for the bargaining rights in successorship situations.

132. In fact, this possibility highlights the fact that there are extensive representation provisions in the Labour Relations Act setting out a scheme for bargaining agent representation which is quite separate and distinct from the successorship provisions. While the issue of representation intersects to some degree with section 63, it is worth noting that there are also different issues involved. If every merger triggered a representation vote, there would be little need for section 63. Moreover, the representation provisions in the Act provide something of a safeguard for successorships under section 63. Employees always have the option of applying at the appropriate time for a declaration terminating the successor union's bargaining rights or replacing it with another union. It is in this context that the International's request for a representation vote must be evaluated.

133. Ultimately I find that it is not necessary for me to resolve any degree of divergence between J.S.H. Mueller, supra, and L.M.L. Foods, supra, as I conclude that the delegate votes in this case provided a meaningful opportunity for the wishes of members to be expressed. In these circumstances and having regard to both the overall structure of the Act and the Board's jurisprudence, the International's request is rejected. In light of the evidence before me, I find the applicant to be the successor to Retail, Wholesale and Department Store Union/Canada, Local 414 which I have previously found to be the successor to Retail, Wholesale and Department Store Union, AFL-CIO-CLC, Local 414, and I declare that the applicant has acquired the rights, privileges and duties of its predecessors.

134. Lastly, it became apparent during the case that a decision with respect to the successor rights issue might be of some assistance to the parties in resolving the unfair labour practice allegations. In the circumstances, a settlement of the section 91 complaint would be preferable in terms of the labour relations climate between the various unions involved. As a result, although I have heard all the evidence with respect to this complaint, I have not recited some of it in this regard, and I am adjourning the complaint sine die to give the parties a further opportunity for settlement. If they are unable to resolve the matter, any party may request a decision on the section 91 complaint by writing to the Board. I remain seized of both matters.