Retail, Wholesale Canada, Canadian Service Sector Division of the United Steelworkers of America v. Retail, Wholesale and Department Store Union District Council of the United Food and Commercial Workers Union, 1993 CanLII 7873

[1993] OLRB Rep. December 1351

2844-93-M; 2869-93-M Retail, Wholesale Canada, Canadian Service Sector Divi­sion of the United Steelworkers of America, Locals 414, 422, 440, 448, 461, 483, 488, 1000 and 1688, Applicants, v. Retail, Wholesale and Department Store Union District Council of the United Food and Commercial Workers Union, et al; The Great Atlantic & Pacific (stores) Company of Canada Ltd.; Able Atlantic Taxi; Associated Toronto Taxi-cab Co-Operative Ltd.; Atlantic Packaging Prod­ucts Ltd.; The Great Atlantic & Pacific Company of Canada Ltd.; Say-A-Centre - division of The Great Atlantic & Pacific Company of Canada; Autostock Distribu­tion Division of T.C.C. International Inc.; Beaver Foods Ltd.; Beaver Lumber Company Ltd.; Beaver Lumber Company (Parkdale Store); CAA Ottawa; Canada Catering Co. Ltd.; Canteen of Canada Ltd.; Can Can Food & Vending Services Ltd. (Parnell); Can Can Food & Vending Services (Essex); Central Chev­rolet Oldsmobile (London) Inc.; 947465 Ontario Ltd. c.o.b. as Checkers Limosine & Airport Service; Colonial Furniture (Ottawa) Ltd.; 978653 Ontario Inc. c.o.b. as The Connection Group; Cornwall Warehousing Limited; Dougherty's Meats Limited; Dynamic Distributors, A Division of Apple Auto Glass Limited; 629434 Ontario Ltd. (East Huron Poultry Ltd.); Educator Supplies & Scholars Choice; Factory Carpet - Division of Colorcarpet Inc.; G.B. Catering Ltd.; Grand & Toy Ltd.; Hershey Canada Inc. Hully Gully (London) Ltd.; IGA Glebe; Jarvis Design & Display; J.F. Eastwood Ltd.; K-W Food Services; Laidlaw Carriers Inc.; Shirley Leishman Books Ltd.; Loeb Alfred; 917921 Ontario Inc. c.o.b. as Loeb Bay-wood; 914089 Ontario Inc. operating under Loeb I.G.A. Beaverbrook; 836541 Ontario Ltd. c.o.b. as Loeb Carleton Place; Capital Supermarkets (1988) Ltd.; c.o.b. Loeb IGA Convent Glen; 652605 Ontario Inc. c.o.b. as Loeb Lincoln Heights; Loeb IGA Nortown; Loeb IGA Wallaceburg; 895657 South Mitchell Holdings Ltd.; c.o.b. as Loeb Club Plus Woodstock; L.O.F. Glass of Canada Limited; Marsh Food Services; Mr. Grocer Franchise Stores; Murphy Distributing Ltd.; National Federation of Nurses' Unions; National Grocers Co. Ltd.; Nivel Inc.; No Frills Franchise Stores; Nordik Windows Inc.; Nutritional Management Services (1991) Limited; Ontario Motor League Elgin-Norfolk Club and Ontario Motor League World Wide Travel Agency (St. Thomas) Limited; Patton's Place Ltd.; Pharma Plus Drugmarts Ltd.; Robert Chabot Enterprises Limited c.o.b. Centennial Construction Equipment Rentals; Robert Yan Drugs Ltd.; Royal Doulton Canada Limited; Katalin Lanczi Pharmacy Ltd. c.o.b. as Shoppers Drug Mart; Sifton Properties Limited; Stuart House Products; S & R Department Store (1976) Ltd.; Trafalgar I.G.A.; Somerset Specialities Ltd.; Trans-Canada Freezers Limited; The UCS Group Division of IMASCO Retail Inc.; United Co-operatives of Ontario; Vanfax Corporation (LOF Glass of Canada Ltd.); Versa Services Ltd.; VS Services Ltd.; Walfoods Limited; 598537 Ontario Inc. c.o.b. as Warner Pro Hardware; Wayne Pitman Ford Sales Inc.; Willett Foods Inc.; F.W. Wool­worth Co. Ltd.; World's Biggest Book Store, a division of Coles Book Stores Lim­ited; The Brick Warehouse Corporation; The Brick Warehouse Corporation; 374761 Ontario Limited c.o.b. under the firm name and style of Brotherhood Mens & Boys Department Store; Freed Storage Limited; Sears Canada Inc.; Simpsons (The Bay Brampton); Simpsons (The Bay Cedarbrae); The Bay -Kingston; The Hudson's Bay Company, Kitchener; The Bay (Windsor); Simpsons Ltd. (The Bay - Sherway Gardens); Simpsons (The Bay - Warden Woods); Selig­man and Latz of Polo Park Limited; Zellers Inc. (Metropolitan Toronto and Brampton Distribution Centres); 806966 Ontario Inc. as A-i Taxi; 727825 Ontario Ltd. c.o.b. as Eastway Taxi, Julian Taxi Cab Ltd.; ABC Taxi (Brockville) Ltd. & Safedrive Inc. c.o.b. City Cab; Associated Toronto Taxi-Cab Limited; Blue Line Taxi Co. Limited; Call-A-Cab Ltd.; 366838 Ontario Limited c.o.b. as City Wide Taxi; Diamond Taxicab Association (Toronto) Limited; Hamilton Yellow Cab Company Limited; Metro Cab Company Limited; DJ's Nepean Taxi Company Limited and the Owners Group; Union Taxi; Westway Taxi Nepean Ltd.; Blue-crest (Div. of Ault Foods); Royal Oak Dairy (A Division of Ault Foods); Abbot Laboratories Limited; Ault Foods Limited; Baskin-Robbins, A Division of Silcorp Limited; Beatrice Foods (Brampton Div.); Beatrice Foods Inc. Toronto Div.; Beatrice Foods Inc., Simcoe Division; Beatrice Foods Inc., Brookside Dairy Divi­sion; Beatrice Foods Inc., Maple Lane Dairy Division; Belarus Equipment of Canada Ltd.; Brown Fine Foods; Everfresh Beverages Inc.; Gesco Warehousing & Distributing Company; Mossman's Appliance Parts Ltd.; Northside Dairy (Division of Ault Foods); Restauronics Service; Rich Products of Canada Ltd.; Sil­corp Ltd.; Seibe North Canada Ltd.; Sodexho Ltd.; Spalding Canada - a Division of Spalding & Evenflo Canada Inc.; TCC Bottling Ltd. (Renfrew) c.o.b. as Coca Cola Bottling; T.R.S. Food Services Ltd.; Uniondale Cheese Factory Inc.; Win­chester Cheese, Winchester; Hydon Holdings Limited c.o.b. Hy's Steak House; The Kitchener-Waterloo Labour Association Incorporated; The Millcroft Inn Limited; National Automobile, Aerospace and Agricultural Implement Workers Union of Canada, CAW-Canada Local 27; Local 1520 C.A.W. National Automo­bile, Aerospace and Agricultural Implement Workers Union of Canada, (CAW­Canada); Rendez Vous Tavern; Sirch Holdings Inc. c.o.b. as The Ridout Tavern Complex; Wendy's Restaurants of Canada Inc. Store #356; 696254 Ontario Lim­ited c.o.b. as Notes - Alfies; Canada Bread, Division of Corporation Food Lim­ited (Oshawa, Hamilton and St. Catharines branches); Commercial Bakeries Corp.; Corporate Foods Limited, Dempster's Bread in the City of Markham; Cor­porate Foods Limited; Culinar Foods Inc.; Robinson Cone (a division of Dover Industries); Golden Mill Bakery Limited; Hostess Food Products Limited, Cam­bridge; Hostess Frito Lay Company, London; Humpty Dumpty Foods Limited; Humpty Dumpty Foods Limited; Kitchens of Sara Lee, Canada, a division of Sara Lee Corporation of Canada Limited; Weston Bakeries Limited, Peterborough; Weston Bakeries Limited, Kitchener; Weston Bakeries Limited, London; Weston Bakeries Limited, Orillia; Weston Bakeries Limited, Walkerton; Best Foods Canada Inc.; Casco Inc.; Nestle Canada Inc. Foods Division, Responding Parties v. Minister of Labour, Applicant/Intervenor v. Ontario Retail Employees Dental Benefit Trust Fund, Intervenor v. Group of Employees, Objectors; RWDSU Dis­trict Council of the United Food & Commercial Workers International Union and its Locals 414, 440 and 1000, Applicants v. Retail Wholesale Canada, Canadian Service Sector Division of the United Steelworkers of America and its Locals 414, 440, 1000 and 1688; Murphy Distributing Ltd. and/or Murphy Distributing (Sar­nia) Ltd.; Everfresh Beverages Inc.; Marsh Food Services; 947465 Ontario Lim­ited c.o.b. as Checker Limousine and Airport Service; The Hudson's Bay Com­pany - Kitchener; The Hudson's Bay Company - Windsor; K-W Food Services; Willett Foods Inc., Responding Parties

BEFORE: R. 0. MacDowell, Alternate Chair, and Board Members G. 0. Shamanski and H. Pea­cock.

APPEARANCES: James Hayes, Brian Shell, Blame Donais, Robert McKay for Retail, Wholesale Canada, Canadian Service Sector Division of the USWA; A. M. Minsky, B. S. Fishbein, Robin McArthur and Edward Jenner for RWDSU District Council of the UFCW; Wallace Kenny, Clif­ford J. Hart, R. W. Kitchen, R. Kelly, Carl Peterson, A. D. G. Purdy, Chris Lloyd, Martin K. Denyes, Gord F. Luborsky, Roberta Johnson, Simon Mortimer and W. J. Hayter for various employers; Donald Chiasson, Jerry Kovacs and Grainne McGrath for the Minister of Labour; Cynthia Watson and Wayne Manley for Ontario Retail Employees Dental Benefit Trust Fund; Douglas J. Wray, Harold F. Caley and Denis Ellickson for the objecting employees.

DECISION OF THE BOARD; December 17, 1993

Introduction: What this case is about

[ 1 ] This is an application for interim relief, filed in connection with some 200 union "suc­cessor rights" applications, that are currently pending before the Board. As things now stand, those successor rights applications may have to be litigated, one by one. The hearings may take months. The applicant seeks an interim Order prescribing the parties' rights in the meantime.

[ 2 ] In each of these 200 successor rights applications, the applicant, "Retail, Wholesale Canada, Canadian Service Sector Division of the United Steelworkers of America and its Local 414, 440, 1000 and 1688" [essentially the "Steelworkers"] claims that it has acquired the rights, privileges and duties of various Ontario "locals" of the Retail, Wholesale and Department Store Union, AFL-CIO-CLC. The applicant claims that it now stands in the shoes of those Ontario RWDSU locals for collective bargaining purposes.

[ 3 ] The basis for this assertion is somewhat complex, but the claim itself is relatively easy to describe.

[ 4 ] The applicant "Steelworkers" say that the RWDSU organization in Southern Ontario, with its officers, employees and infrastructure has disengaged from its American Parent, and has merged with the United Steelworkers of America. The applicant says that most Canadian locals of the RWDSU in Ontario and elsewhere have followed the same route. These Ontario locals chose not to merge with the United Food and Commercial Workers Union ("UFCW") which was the desire of the American RWDSU locals, and was the goal of the American Parent Union. Instead, most Canadian locals found a home in the Steelworkers - which, of course, is also an international union with substantial membership in Canada.

[ 5 ] The American Parent union, now merged with the UFCW, attacks the way in which the purported merger with the Steelworkers has occurred. The American Parent union claims that it was the true holder of the bargaining rights for these workers in Southern Ontario, not the local unions situated in Ontario. The American Parent and the UFCW argue that the UFCW has now acquired those rights.

[ 6 ] The application for interim relief is made pursuant to section 92.1 of the Act. The underlying successor rights applications are made pursuant to section 63 of the Act. Those sections read as follows:

[Successor Rights]

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.

[Interim Relief]

92.1-(1) On application in a pending or intended proceeding, the Board may grant such interim orders, including interim relief, as it considers appropriate on such terms as the Board considers appropriate.

(2) A party to an interim order may file it, excluding the reasons, in the prescribed form in the Ontario Court (General Division) and it shall be entered in the same way as an order of that court and is enforceable as such.

[ 7 ] The Steelworkers seeks an interim Order (among other things) declaring it to be the successor union" and exclusive bargaining agent in the various collective bargaining relationships to be considered in each of the 200 or so successor rights applications.

[ 8 ] The RWDSU District Council of the United Food and Commercial Workers Interna­tional Union and its Locals 414, 440 and 1000 (the American Parent now merged with the UFCW) resists that interim or final result. So does a group of employees, who work for employers in South­ern Ontario and once were members of one or other of the Ontario locals of the RWDSU Interna­tional. We cannot say how numerous these employee objectors are.

[ 9 ] The employers take no position as between the union rivals. The employers do urge the Board to clarify which union, if any, the employers must deal with on an interim basis, until these successor rights applications are disposed of.

[ 10 ] The Minister of Labour has filed a companion application under section 109 of the Act. That section reads as follows:

109.-(1) The Minister may refer to the Board any question which in his or her opinion relates to the exercise of his or her powers under this Act and the Board shall report its decision on the question.

(2) If the Minister refers to the Board a question involving the applicability of section 63 (decla­ration of successor union), 64 (sale of a business) 64.1 (federal-to-provincial sale) or 64.2 (ser­vices provided under contract), the Board has the powers it would have if an interested party had applied to the Board for such a determination and may give such directions as to the con­duct of its proceedings as it considers advisable.

[ 11 ] The Minister takes no position as between the rival unions' claim to bargaining rights. However, the Minister requests the Board's advice as to how he should exercise his statutory authority in the interim, because (as in the case of the employers), each rival union is demanding that the Minister deal with it, to the exclusion of the other.

[ 12 ] Under the Labour Relations Act, the Minister has a variety of obligations that are trig­gered at the request of a union bargaining agent. We will have more to say about that later. The problem for the Minister is that each union claims exclusive entitlement to make that request.

[ 13 ] Finally, in response to the request for interim relief made by the Steelworkers, the UFCW has filed its own request for more limited interim relief, in respect of certain collective bar­gaining relationships and certain partisans of the UFCW's position in Ontario.

[ 14 ] In summary, the labour relations reality is that there is a massive dispute between, on the one hand, the UFCW, the American RWDSU Parent now merged with the UFCW, and their various international officers; and on the other hand, the Steelworkers, and the officers and repre­sentatives of various Ontario local unions of the RWDSU. We put the position this way because virtually all of the officers, officials and representatives of the Ontario locals have declared them­selves against the merger with the UFCW and in favour of the relationship with the Steelworkers. Thus, quite apart from the legal issues which the Board is called upon to determine, we have a mammoth dispute between unions in which each union seeks to use whatever legal or political weapons are available to obtain its objective - which is the representation of employees who were members of the Southern Ontario locals of the RWDSU.

[ 15 ] There are important legal issues at the heart of the litigation before the Board. But that litigation, in itself, is part of a broader labour relations dispute within the "House of Labour". Indeed, as the Board observed at the hearing, the exercise in which we are now engaged has all the flavour of a child custody battle, with all of the acrimony so often associated with that unhappy area of family law.

[ 16 ] This is not an exercise in which the Board is willingly engaged. But we were told by the main union protagonists that all efforts to resolve their dispute have failed. We were told by the employers that some Board intervention is imperative because they are "caught in the middle". We were told by the Minister of Labour that he needs an answer to his questions about his author­ity, and would prefer that, if possible, the questions are answered once, rather than in some piece­meal fashion.

[ 17 ] The parties have all filed voluminous material in respect of these various applications, including declarations from a number of individuals setting out "the facts" as they saw them from their admittedly partisan perspective.

[ 18 ] On November 23 and 24, 1993 the Board held a hearing to receive the parties' represen­tations on how we should deal with these interim applications, and the appropriateness of making an interim order. Quite a number of lawyers appeared to make submissions. Counsel for the Min­ister also appeared to outline the situation from his perspective.

[ 19 ] We have taken these representations into account in deciding what interim Order may be appropriate.

Who the parties are and how they will be described in this decision

[ 20 ] As we have already mentioned, this case is about inter-union rivalry, and its effects on the collective bargaining relationships of dozens of employers, and thousands of employees in Southern Ontario. Those relationships are currently plagued by uncertainty and mired in litigation, of which this application is a part. But part of the confusion in this case arises from the way in which the parties name themselves.

[ 21 ] Since each rival union organization claims to be the "true successor" of the Retail, Wholesale and Department Store Union (or parts of it) in Ontario, each competitor has incorpo­rated the RWDSU name into its own. Presumably the Steelworkers and the UFCW both find it advantageous, tactically, to use the names of the RWDSU Ontario locals that they claim to repre­sent. Thus, we have: "Retail, Wholesale Canada, Canadian Service Sector Division of the United Steelworkers of America, Locals 414, 422, 440, 448, 461, 483, 488, 1000 and 1688 [emphasis added] - which is to say "the Steelworkers"; and we have: "RWDSU District Council of the United Food and Commercial Workers International Union and its Locals 414, 440 and 1000" [emphasis added] (and perhaps others) - which is to say "the UFCW". The result is a little confusing.

[ 22 ] However, in order to make this decision easier to read, we will usually refer to the par­ties in abbreviated form. Since we anticipate that this decision may be read by employees, we think it is important to "keep the players straight".

[ 23 ] In this decision, we will refer to the United Food and Commercial Workers Interna­tional Union as the "UFCW". The United Steelworkers of America will be referred to simply as "the Steelworkers". The Retail, Wholesale and Department Store Union, AFL-CIO will be referred to as the RWDSU.

[ 24 ] Where we wish to refer only to the parent American organization, we will refer to either "RWDSU International" or the "American Parent".

[ 25 ] Geographically or functionally defined "local" unions which were once affiliated to the RWDSU International without controversy, will be referred to simply by their local number (e.g., RWDSU Local 414).

[ 26 ] There are many employers involved in these proceedings. However, their submissions were quite similar, and we will refer to them collectively as "the employers", unless it is necessary to identify a particular collective bargaining situation.

[ 27 ] A number of employees also appeared by counsel - although we note, for the record (as we were asked to do) that such counsel was being paid by the UFCW. Accordingly, although this group of employees was separately represented, they were allied in interest to the UFCW party, and made submissions supporting its position. Where necessary, we will refer to the employees as a group, as we have done with the employers. In so doing, we do not suggest or find that this group of employees is representative of, or speaks for, other employees.

[ 28 ] The Ontario Minister of Labour will be referred to simply as "the Minister".

[ 29 ] There have already been four Board decisions involving one or more of the parties now before us: three "interim decisions" dated July 29, 1993, August 12, 1993 [now reported at [1993] OLRB Rep. Aug. 783], and September 2, 1993 [now reported at [1993] OLRB Rep. Sept. 880], as well as a "final" decision under section 63 dated September 23, 1993 [now reported at [1993] OLRB Rep. Sept. 885]. These decisions were made by different panels of the Board, and, for ease of reference, we will occasionally label them by the presiding Vice-Chair (R. 0. MacDowell, Alternate Chair, for the decisions of July 29 and August 12, 1993; Robert Herman, Vice-Chair, for the decision of September 2, 1993; and Judith McCormack, Chair, for the decision of September 23, 1993).

[ 30 ] We will begin the main part of this decision with a brief description of the application now before us, and the background leading up to the present proceedings. That description will necessarily be somewhat abbreviated, given the volume of material (particularly the allegations and counter-charges) put before us. However, for purposes of this interim decision, it is sufficient to sketch in the situation in broad strokes.

[ 31 ] We will then turn to our disposition of this case, and the legal and policy considerations that prompt us to reach that conclusion.

Some Background

[ 32 ] The Steelworkers, the UFCW, and the RWDSU are all international unions, with head­quarters in the United States and a significant number of Canadian members. Each of these unions is sub-divided into "local" unions, which are (or were) subordinate to their "Parent" international body (e.g., RWDSU Local 414). The affairs of the RWDSU, the UFCW, and the Steelworkers are governed by their respective international Constitutions. Local unions have their own by-laws which govern their local affairs.

[ 33 ] The UFCW and the RWDSU International both represent employees in the service sec­tor, and for the last couple of years there have been ongoing discussions between them about merging the two organizations into a single union. The merger with the UFCW was strongly sup­ported by the RWDSU International (the American Parent) and its American officers. Those offi­cers eventually led the American locals into merger with the UFCW.

[ 34 ] For the most part, the Canadian officers and representatives of the RWDSU in Canada did not welcome the merger with the UFCW. On the contrary. These Canadian officers were opposed to the merger with the UFCW. At least, that is the inference to be drawn from their vari­ous declarations filed in the proceedings before the Board, and from the fact that virtually all of these officers, officials and Canadian representatives of the union eventually found their way into the Steelworkers' organization, and now support the purported merger with the Steelworkers.

[ 35 ] We make no comment on the desirability of a merger with either the UFCW or the Steelworkers, or upon the political wrangling between the Canadian and American officers of the RWDSU. We do observe that the merger mechanism ultimately selected by the RWDSU Interna­tional and the UFCW (i.e., the way the merger between them was to be approved) involved deci­sion-making by delegates selected from various parts of the two unions. It did not require a referen­dum vote of the membership. Delegates were to make the merger decision, not the employee-members of the union.

[ 36 ] Delegate conventions are fairly common both in the labour movement and elsewhere. That is the way in which many unions conduct their business. It is the way in which the RWDSU International operated in the past, both in the United States and Canada. It is a familiar process:

delegates are selected from constituencies and those delegates make policy decisions for the orga­nization.

[ 37 ] As noted, the mechanism by which the RWDSU International and the UFCW were to merge did not contemplate a membership referendum. The decision was to be made by delegates. The process by which Canadian locals of the RWDSU purportedly merged with the Steelworkers did not contemplate a referendum either. That consequence, too, is said to be the result of the vot­ing preference of delegates. Indeed, the Canadian delegate convention convened in Toronto to consider the UFCW merger, not only unanimously rejected that option, but also went on to effect a purported merger with the Steelworkers. Among the issues the Board must decide in the "main applications" is the propriety and effect of this second decision on July 11.

[ 38 ] The merger arrangements are discussed in some detail in earlier Board decisions, and we will not review those matters here. They are, in any event, the focus of the continuing legal dis­pute between the parties which we do not here decide, and upon which our comments will be quite limited. It suffices to say that the process envisaged by the American Parent permitted the Cana­dian locals to affiliate with the UFCW, one by one; and also allowed a group of locals to reject the UFCW merger by a majority vote of the delegates from those locals. But if the merger was rejected, the American Parent required the Canadian locals to disaffiliate independently - that is, the Canadian section of the union not merging with the UFCW was to decompose into unrelated local fragments.

[ 39 ] It was the disintegration of the Canadian organization which the Canadian officers opposed, and which they assert was intended to weaken the locals and expose them to UFCW attack and capture. If the locals drifted divergently into independence, it would be difficult to maintain a coherent organization. If they were isolated, put under trusteeship, and deprived of funds by the American Parent, their ability to act would be weakened. So instead of waiting until October 1, 1993 when the deemed disaffiliation and decomposition was to occur, the Canadian officers turned the delegate convention that rejected the UFCW merger into the instrument to keep the locals together, and guide them into the Steelworkers organization. They did not wait until October 1.

[ 40 ] It is the submission of the UFCW/American Parent, that these steps were blatantly "un­constitutional", that they were contrary to the UFCW merger arrangements and protocols, and that they did not result in a merger with the Steelworkers.

[ 41 ] There is no doubt that the Ontario locals did not take the path envisaged by the Ameri­can Parent. The question, though, is whether the steps they did take arguably resulted in a "suc­cessorship" under section 63 of the act. The same question arises from the alternative perspective of the UFCW. There is no doubt that the Canadian delegates rejected merger with the UFCW. Did the way in which the delegates repudiated the UFCW and what they did later, actually lead to the UFCW's acquiring bargaining rights after all? By jumping to the Steelworkers too early (and the UFCW says wrongly), did the local delegates create a situation that actually caused their locals to fall back into the UFCW, along with the American locals? We put it this way because (as we understand it) the UFCW/American Parent are claiming that they now have the bargaining rights -in effect, that section 63 applies to this UFCW entity, which has become the true successor union. And, of course, there has been no Board declaration to that effect, nor is the claim based on any referendum, vote, or ratification by the employees affected by the UFCW claim.

[ 42 ] At the heart of the legal controversy is the propriety and legal effect of what delegates from the Canadian locals purported to do at a convention, in Toronto, on July 10-11. To put it sim­ply: those actions either did, or did not, result in a break-away from the American Parent, and a subsequent merger with the Steelworkers. Associated with this question (as we understand it) are arguments made by the UFCW (and/or the American Parent of RWDSU now merged with the

UFCW) that the merger attempt was not only ineffective, but being ineffective, results in a situa­tion in which the UFCW now has the bargaining rights after all - that is, despite the rejection of the UFCW by the delegates at a meeting called for the purpose of considering the proposed UFCW merger, their actions, and events, actually delivered bargaining rights to the UFCW.

[ 43 ] From the outset, the Canadian officials of the RWDSU anticipated opposition from the officers of the American Parent who, they say, were intent upon taking the RWDSU in its entirety, into the UFCW. Their fears are recorded in the material filed in these earlier proceed­ings, and are summarized in both the MacDowell decision of August 12, 1993 and the McCormack decision of September 23, 1993. Whether there was a foundation for their fears, we do not decide. We do note that on July 13, 1993, the Retail, Wholesale and Department Store Union, Canadian Service Sector Division of the United Steelworkers of America, Local 414 (i.e., the former Local 414 of the RWDSU now purportedly merged with the Steelworkers) filed its first successor rights application, together with a companion unfair labour practice complaint, alleging that the Ameri­can Parent and its officers had contravened the Ontario Labour Relations Act.

[ 44 ] The Board gave these applications File Nos. 1248-93-R and 1346-93-U. It was these files which led to the first successor rights decision finding in the Steelworkers' favour. The decision was issued by the Chair of the Board on September 23, 1993, and will be referred to below as "the A & P case".

[ 45 ] Because the A & P case produced a decision "on the merits" after a full hearing between the rival unions, we will consider it in some detail, as well as the two interim decisions which were made in connection with the case.

What the A & P case was about - in general

[ 46 ] The A & P case involved RWDSU Local 414, which, with nine thousand members, is the largest of the RWDSU locals in Ontario. It also involved the A & P bargaining unit which encompasses approximately 5,000 employees. The A & P unit is the largest bargaining unit admin­istered by Local 414. And, of course, it involved A & P which is a very large retail employer in Ontario.

[ 47 ] Since the A & P case involved the largest Ontario local of RWDSU and its largest Ontario bargaining unit, and since the effect of the delegate convention of July 10-11 was central to the disposition of that case, there was every reason to expect that the A & P decision would heavily influence (if not be dispositive of) other successor rights applications, involving other employers and bargaining units.

[ 48 ] The UFCW now says that this was not a "test case". But that is how it was regarded at the time. At the very least, no one would reasonably have anticipated that the events of July 1993 would have to be litigated again and again - perhaps two hundred times.

[ 49 ] It is important to emphasize that the central issues in this first successor rights proceed­ing, were the requirements of section 63 of the Act (i.e., a matter of statutory interpretation con­fined exclusively to the Board) and whether the disaffiliation/merger transaction under review met those requirements. The same issues will have to be addressed in the 200 other successor rights applications involving different employers, local unions and bargaining units. But the main players and many of the main events will be much the same - including the constitutional arrangements between the various unions and the effect of the delegate convention of July 10-11.

[ 50 ] The meeting on July 10-11 was attended by delegates from Local 414. But it was also

attended by delegates from other Ontario locals. Those delegates were selected according to the criteria established by the American Parent and the UFCW. They were seated on July 10 without challenge by Lenore Miller, the President of the American Parent, who presided that day.

[ 51 ] On July 10, the delegates voted unanimously to reject the merger with the UFCW - as the formula devised by the American Parent purportedly allowed them to do. These same dele­gates from Local 422, 440, 448, 461, 483, 488, 1000 and 1688, along with Local 414, reconvened the next day, July 11. Like the day before, they deliberated together, and, acting in concert, reached a decision. This time, though, they purported to create an intermediate organization called "RWDSU Canada", which then was purportedly merged with the Steelworkers.

[ 52 ] The effect of that decision was central to the A & P case, to which we will return in a moment.

The First Interim Order

[ 53 ] File 1248-93-R was scheduled to come on for hearing before the Board on August 9, 1993. In the meantime, the Board was called upon to make an interim order under section 92.1, in order to inject some stability and certainty into the collective bargaining situation. The Board was asked to preserve the status quo, and the rights of third parties, until the case on the merits was litigated before the Board. Barely three weeks after the July 10-11 meeting, the inter-union rivalry had begun to escalate, as the American Parent/UFCW tried to assert control over Ontario locals, whose officers had deserted to the Steelworkers. The panel on the interim motion (MacDowell, Armstrong, Fraser) later wrote:

32. As part of what is described as the "political manoeuvring" of the applicants [the Steelworkers], it is alleged that a number of the actual individuals who serviced the members' needs in the geographic areas represented by the dissenting locals, have quit their employment with the RWDSU and have become employees of the Steelworkers. This leaves the RWDSU International and/or the trustee [imposed by the International to run the affairs of the locals], without sufficient personnel to service the needs of these local members, because a number of the individuals who have historically done so, have gone over to the rival organization(s). To meet this challenge, the RWDSU International proposes to bring in union representatives from Northern Ontario locals who have opted to merge with the UFCW, as well as to "borrow" a number of union representatives currently employed by the UFCW.

33. We are therefore left with a curious situation in which, we are told, the collective bargaining needs of employees in the dissenting locals should be looked after either by a group of individu­als familiar with them but now employed by the Steelworkers, or, alternatively, by a group of individuals drawn from other local unions or from the UFCW.

34. The employer takes no position on these competing union claims. The employer points out that it has collective bargaining relationships with several of the protagonists, and wants only to remain neutral. The employer submits that it is now "caught in the middle" between rival unions.

35. The employer submits that while Constitutional niceties and questions of bargaining rights are being debated between the contending unions, the employer should be entitled to carry on business as usual - including its ordinary labour relations activities. The employer submits that it should not have to choose between rival union representatives who appear at its stores claiming to represent the employees, nor should it have to risk its legal neutrality by seeming to defer to the demands of one or other of the competing groups. The employer urges the Board to pre­scribe some interim arrangement, preserving the status quo and orderly labour relations until these matters can be formally adjudicated (i.e. for several weeks).

36. The competing unions also urged the Board to prescribe the "status quo", in the interests of

the members, and pending adjudication of their rights. But the unions define that "status quo" in their own way and in their own interest.

37. The Steelworkers and the dissenting locals wish to leave in place the representatives who have serviced the members before, but who, of course, may have now declared their loyalty to, and become employed by, the Steelworkers' organization. RWDSU International urges the Board to respect the processes prescribed in the International Union Constitution which, it says, defines the status quo that has been violated by the dissenting local officers. Counsel for RWDSU International refers the Board to the decision of the Court of Appeal in Astgen, et al, v. Smith, et al, 1969 CanLII 488 (ON CA), 1970] 1 OR. 129, and urges the Board not to depart from its expressed reluc­tance to interfere in internal union affairs. In counsel's submission, to tell the RWDSU who could represent its members on an interim basis - indeed, to direct that they be represented by employees of another union - would amount to a serious and unwarranted interference with the rights of the RWDSU established in its Constitution. It would reward the dissenting local offi­cers for their own Constitutional misconduct, and would lead to the disruption of settled collec­tive bargaining relationships.

[ 54 ] The hearing to consider this first interim order took place on July 23 and July 27, 1993. On July 29, 1993 the Board issued the following decision:

1. Applications have been filed with the Ontario Labour Relations Board to determine which trade union now represents employees working at a number of New Dominion/A & P stores in Southern Ontario.

2. More than one trade union now claims to represent those employees.

3. The applications raise legal and practical problems which cannot be easily resolved on a short-term, interim basis.

4. On the other hand, a hearing in this matter is currently scheduled to begin before the Board on August 9, 1993. That proceeding is expected to take several days, and will decide, among other things, which union is now entitled to represent the employees.

5. The employer and the various unions all submit that it is important that the employees' right to representation not be prejudiced while this case is being considered by the Board.

6. The employer stresses the importance of its being able to carry on business as usual, so that this dispute between trade unions does not interfere with the interests of the employer or the employees.

7. All parties agree that uncertainty is undesirable. Despite the dispute between unions, employees should know whom to approach for help if they have an employment problem.

8. But the union parties are unable to agree among themselves on any interim arrangement so employees may be fairly assured of union assistance in their dealings with their employer, should they require such assistance over the next few weeks.

9. On July 23, 1993 and July 27, 1993 the Board held a hearing to consider whether it should impose some interim arrangement governing the employer's labour relations while the case is before the Board, and, if so, what that arrangement should be. The various unions and the employer were all represented by lawyers and made submissions about whether an interim arrangement was appropriate, and what such arrangement might be.

10. Having heard the parties' submissions, the Board orders that:

(1) Until the Board determines which trade union has bargaining rights for and is entitled to represent the employees of New Dominion/A & P stores in its Southern Ontario stores, and unless the Board otherwise directs, the employees at each store will continue to be represented in their dealings with their employer by the individual union representative(s) who custom­arily dealt with their employment problems prior to July 10, 1993.

(2) Until the Board determines which union has bargaining rights and is enti­tled to represent the employees of New Dominion/A & P stores in its Southern Ontario stores, the employer's local store managers and other managerial personnel may continue to deal with the individual union repre­sentative(s) with whom they have customarily dealt in respect of employer-employee matters prior to July 10, 1993.

11. The Board wishes to make it clear that in making this interim order, it is not indicating a preference or support for any of the trade unions involved. The Board's concern is to preserve orderly labour relations until the dispute between the trade unions is resolved.

12. Finally, the Board directs that copies of this decision be provided to all of the company's store managers and that it be posted, immediately, in each store, where it will most likely come to the attention of the employees.

[ 55 ] On August 12, the MacDowell panel issued formal reasons for its interim Order which include this passage:

40. The legal and labour relations problems posed by this case are quite unusual, and seem to involve a mixture of public and private law which the Board has seldom been called upon to consider. The Labour Relations Act is primarily concerned about institutional collective bargain­ing relationships - the trade union in its role as statutory bargaining agent. The Statute does not purport to regulate internal union affairs, nor does it prescribe any general code of "democratic practice" (see: CSAO National (Inc.) and Oakville Trafalgar Memorial Hospital Association, 1972 CanLII 563 (ON CA), [1972] 2 OR. 498). Indeed, the Statute is exceedingly (and we think intentionally) sparse in respect of such matters, leaving them to be determined, for the most part, in accordance with the union's Constitution. It is the union Constitution which prescribes the rights of members within that organization, eligibility for office, elections, dues levels, property rights and so on; and where the Statute does provide a platform for potential intervention (the duty of fair repre­sentation, for example), the Board has been careful not to intrude upon internal union matters not covered by the statutory duty.

41. On the other hand, the "club" or "private-contract model" of trade unionism discussed in Astgen v. Smith, supra, is not a complete answer either; nor does it fully capture the statutory dimension of trade unionism, or the array of statutory rights and responsibilities exercised by a modern trade union under the Labour Relations Act. For the fact is, a trade union is not a vol­untary organization like a club or a church, held together by some notional "common-law con­tract" between the members. Not untypically (as in this case), membership is not a matter of voluntary contract, but is required as a condition of employment by virtue of a collective agree­ment whose existence and attributes depend primarily, if not entirely, upon the Statute; more­over, the trade union acquires and retains the status of bargaining agent for employees, who become its members, in accordance with that same Statute.

42. In this sense, the union is not a wholly private organization. It receives statutory support in order to facilitate the statutory objectives spelled out in Article 2.1 of the Act and it has a vari­ety of statutory rights and responsibilities. And, of course, bargaining rights do not depend upon the continuing support of the very employees (members or not) who first established the union's status as bargaining agent, nor does the union exercise those bargaining rights solely in respect of its members, nor does the continuation of its exclusive bargaining agency depend solely on the union's Constitutional arrangements.

43. The problems posed in this case involve a mix of public and private law, as well as a mix of private interests and public policy considerations. And they are not easy questions to answer when "private" Constitutional re-arrangement may have statutory or public law consequences.

44. However, in this interim decision, we do not have to come to any final conclusion about either the Constitutional correctness of the steps the union parties have taken, or the relationship between those steps and the parties' rights and responsibilities under the Labour Relations Act. The above remarks are only intended to describe the nature of the problem. For present purposes, we need only decide, as we do, that there is a legitimate representational dispute between the union parties which must be decided by this Board, and which can only be decided by this Board which has the exclusive jurisdiction to apply the terms of section 63 of the Act to the facts at hand. To put the matter another way: in a statutory regime which depends upon the identification of an exclusive bargaining agent for a defined group of employees, it is the Board which must ultimately determine who that bargaining agent is, when competing unions make that claim; and for present purposes, this panel need only decide whether some interim order is desirable pending a resolution of these questions.

45. All of the union parties in this matter point to their history of representing employees in Ontario. All of the union parties assert that the interests of the employees are important and should not be prejudiced while the legal controversy is being decided by the Board. All of the union parties assert that they are ready, willing and able to represent the employees working in the employer's food stores in Southern Ontario while the case is before the Board. And, no doubt they are. But none of the unions is able to agree on how this can be done, and each asserts that the others will take "political advantage" of any interim arrangement which leaves its partisans in place, with preferred access to the members whose loyalties they seek to win; moreover, in the absence of either an agreement between the unions, or a Board-imposed arrangement, the employer is left to cope with these competing claims on a day-to-day basis in some one hundred food stores, while the employees will be uncertain about whom to turn to if they have an employment problem. That is not a desirable state of affairs from the perspective of either the employer or the employees who, in some sense, are both "third parties" to this controversy between unions. Nor is it congruent with the concept of an exclusive bargaining agent, which is an integral part of the statutory scheme, and is designed to avoid problems of this kind.

46. We are not entirely sanguine about intruding into the internal affairs of a trade union; for there is much to be said for Mr. Paliare's submission that this is an unusual course of action. Nevertheless, we are satisfied that it is in the interests of the employer and the employees that the status quo as at July 10 be maintained until the case before the Board can be completed (i.e. a few weeks). And that is the interim order that we made pursuant to section 92.1 of the Act.

47. The "status quo" that we are preserving is essentially the situation which obtained prior to the events which have now given rise to controversy; and, if we take the RWDSU International at its word, it is also the situation which would have prevailed after October 1, 1993, if the dis­senting locals had quietly disaffiliated in accordance with the terms of the merger agreement, with their officers and employees intact. Most important, though, this "status quo" maintains the historical and continuing personal relationship which union representatives had with store managers and with the employees at the stores which they serviced. In our opinion, those are the representatives who are most likely to be familiar with and able to address any employment problems which arise over the next few weeks, and who are best able to deal with the store man­agers in the locations where such problems arise.

48. In making this interim arrangement, we recognize that partisans left in place may be tempted to exploit their position for political purposes. But that is likely to be the case which­ever union is able to put its loyalists into the workplace, with preferred access to the members whose support they seek to win. In the unusual context of this case, it is not very helpful to try to compare the relative harm to the union parties (which in any case seems evenly balanced), and there is little that the Board can do about these union politics, other than to assure employ­ees that it takes no position as between the contending unions. And, of course, as in many polit­ical situations, the individuals affected are perfectly capable of assessing the motives and merits of the competing "politicians". Meanwhile, we think it is important that employees be assured of continued representation, if they need it, by persons familiar with the stores in which they work, and it is important that the local store managers know who they may deal with over the next several weeks.

49.In our opinion, the best (albeit imperfect) way to accomplish these latter objectives, to bal­ance the competing interests, on a short-term basis, and to promote harmonious labour rela­tions, industrial stability and effective dispute resolution, is with the interim order set out above.

[ 56 ] The Board recognized that its interim Order would give a "tactical" advantage to the Steelworkers. Virtually all of the officers and representatives of the RWDSU in Canada had shifted to the Steelworkers, leaving the American Parent without Canadian personnel in place, other than those it could "borrow" from the UFCW, or transfer from the Northern Ontario locals that had opted to merge with the UFCW. Permitting those representatives to continue to servtce the workers they had serviced before might strengthen the Steelworkers' attraction to the employ­ees - just as their removal (which the American Parent wanted to do) and replacement by UFCW officials might strengthen the hand of that union. The Board also recognized that the partisans left in place might continue to use the position confirmed by the interim Order to further the organiza­tional objectives of the union they preferred. Nevertheless, the Board was persuaded that the best interim solution was that described in its interim Order - leaving in place those "human agents" who actually serviced the employees in the past, while the identity or status of the statutory bar­gaining agent was determined by the litigation about to begin before the Chair of the Board.

[ 57 ] There was every expectation that this would be a "test case" which, at the very least, would guide the parties in similar situations, and that the interim Order would be temporary. No one expected the subsequent eruption, or the scale of the inter-union conflict. Certainly no one expected that the events and issues to be considered by the Chair, might have to be reviewed in two hundred separate applications.

The Second Interim Order

[ 58 ] The interim Order of July 29, 1993 was not the only one that the Board was called upon to make. Nor was this direction even complied with.

[ 59 ] On July 27, at the first hearing, A & P maintained that it was "neutral". It said it did not favour one union or the other. Later, though, A & P abandoned that neutral position and tilted in favour of the UFCW (and/or RWDSU International which was merging with the UFCW).

[ 60 ] Despite the first interim Order, A & P sought to avoid dealing with the individuals whom the Board had declared were to represent employee interests, on an interim basis, as they had done in the past. At the same time, RWDSU International, the American Parent, insisted that its designees represent employees at the local store level - even though they had never done so before - and these strangers began to appear on the employer's doorstep demanding contact with and the right to represent employees. A & P, now tilting towards UFCW, was prepared to allow that to happen, and, at the same time, had taken steps to limit the activities of union officials who were Steelworker supporters. This prompted a further interim application by the Steelworkers, to clarify, amplify, and enforce the earlier Board Order.

[ 61 ] The second application for interim relief came on before a new panel the Board (Rob­ert Herman, Vice-Chair, and Board Members R. W. Pirrie and J. Redshaw) on August 26, 1993. The Board concluded, among other things:

15. We were satisfied that the responding parties had not been following the prior decision of the Board in all respects, whether through inadvertence, confusion or intention to subvert. In that regard (and notwithstanding some serious reservations about the Board intruding on what, at least in part, can be characterized as internal union matters), we were satisfied that it was appropriate to make further interim directions in order to clarify or simplify the prior decision of the MacDowell panel and to ensure that the statutory rights of the participants were protected. Any confusion or possible misunderstanding by the parties can thereby be eliminated.

16. But quite apart from problems which continued to exist despite the decision of the MacDo­well panel, and as noted above, there have been other changes at the A & P stores in question, particularly with respect to the position and actions of A & P. These were not matters previously before the Board. There was no allegation before the MacDowell panel that the employer had departed from a position of strict neutrality. Indeed, A & P's position was that it wanted to remain neutral; and the MacDowell panel appears to have accepted that position and responded accordingly.

17. The Board was satisfied that these facts (largely undisputed we might add), justify further interim relief. The applicant has pleaded, at the very least, an arguable case that A & P has engaged in unlawful, discriminatory activity, in its cancellation of the leaves of absence to the applicant's supporters, while granting and maintaining leaves of absence for the supporters of RWDSU International.

The Board then went on to say:

18. This is not an internal union matter. Rather, this is a question of ensuring that the rights of employees and unions under the Labour Relations Act are protected. It is a question of ensuring that the employees have the ability to choose freely between potential bargaining agents, and that potential bargaining agents have not unfairly been discriminated against with respect to access to employees.

19. We recognize that the circumstances before us are somewhat unique, in that the Board's decision (which the parties are currently awaiting) will likely determine which of the unions before us will be entitled to continue to exclusively represent the employees in question. It may be that access to employees during the intervening period, while awaiting such decision, has no practical significance. However, at this stage, it is more likely that there may be some practical ramifications arising from access to employees, and the ability to politic and lobby at the work­place pending the the Board's final decision. In these circumstances, and given that the Board's decision is likely to issue in the near future, the Board considered it appropriate to ensure that during the intervening period the employer does not actively support either union at the expense of the other.

20. Accordingly, and as directed at the hearing on August 26, 1993, the Board granted the fol­lowing relief:

21. The Board directs that those individual unions representatives who have customarily dealt with the day to day employment issues or problems in the workplace, prior to July 10, 1993, shall continue exclusively to be able to deal with them.

22. With respect to the four individuals whose leaves of absence were rescinded by A & P, those leaves are to be reinstated forthwith, on the terms and conditions under which the leaves were originally granted, as if the leaves of absence had never been rescinded.

23. All notices to any persons purporting to confer authority contrary to the Board's decision herein and the Board's directions of July 29, 1993 are to be withdrawn by the parties who issued them. In this respect, the parties might direct their attention to the material filed at Tabs 9, 11, 13, and 14 of the Exhibit Book filed by the applicant.

24. The company is directed to send copies of this decision to all of the compa­ny's store managers and this decision is to be posted immediately in each

store, where it will most likely come to the attention of the employees.

5. These orders are limited to the A & P stores where the applicant is involved.

6. These orders or directions are to apply until the decision on the merits issues and concludes otherwise, or until the Board otherwise directs.

7. The intent of these orders is to ensure that employment related problems arising at the store level continue to be dealt with by the union people who had customarily dealt with them prior to July 10, 1993. Our direction is not restricted to the grievance procedure, but is intended to maintain the general status quo with respect to employment problems and union representation at the local store level. This arrangement will ensure that employee representation rights do not suffer while awaiting the Board's decision on the merits. That decision will likely decide which union is entitled exclusively to represent the employees in question, in which case that decision will supersede in those respects our decision given herein. But until then, or until the Board oth­erwise declares, the customary people are entitled to service the bargaining unit employees as they did before, and A & P is required to deal with these people. Given the imposition of the trusteeship, there may as a practical matter arise problems which realistically require all the par­ties to agree to defer their resolution until the Board's final decision issues. However, that is a matter of agreement between the parties.

8. Again, as did the MacDowell panel, we wish to emphasize that the Board does not support or prefer one union over another. Those sorts of decisions are not for us to make, nor should we be commenting in any respect on those decisions. What is our responsibility however, is to ensure that statutory rights set out in the Labour Relations Act are preserved pending a resolu­tion of this dispute. Here, interim relief was necessary in order to fulfil that purpose.

9. We have issued these reasons quickly, in order to be able to quickly notify employees affected of the circumstances, and hopefully thereby to reduce the obvious confusion and uncer­tainty in the workplace, and to lessen the likelihood of further problems needing Board inter­vention. More complete reasons may follow at a later date.

[ 62 ] Both of these interim Orders sought to avoid any pre-judgement of the legal questions then being litigated before the Chair (i.e., how section 63 applied to the purported merger, and which union was therefore the exclusive bargaining agent for 5,000 employees working for A & P). Both interim Orders create a "half-way house" in which the actual responsibility for representing employees is vested in the individuals who have customarily done so - regardless of their particular partisan allegiance, and regardless of which union ultimately turns out to have statutory bargaining rights. Both panels noted that this solution was at variance with the Board's inclination and the scheme of the Act (which presupposes an exclusive union bargaining agent, not human agents). However, it seemed sensible as an interim arrangement for the few weeks that it would take to resolve the main application, and it meant that the individuals familiar with local employee con­cerns would continue to deal with those concerns.

[ 63 ] No one expected that the Orders of the Board would be disobeyed or would last for much longer than a few weeks; and for this short period it seemed reasonable that the persons who had customarily represented employee interests, and had actually represented employees "on the ground" continue to play that role until the Board had sorted out the identity of the statutory bar­gaining agent.

The A & P Decision

I

[ 64 ] The main successor rights application (the A & P case) came on before the Chair, as scheduled, on August 9,1993, and continued from day to day thereafter until it was completed. All parties were represented by counsel and had the opportunity to lead evidence and make submis­sions. At the end of the hearing (which consumed several days) the Chair reserved her decision -thereby generating a short hiatus, in which the Board made the second interim Order to which we have already referred. The Chair issued her decision, with reasons, on September 23, 1993.

[ 65 ] It is important to reiterate that one of the central questions before Chair McCormack was the legal effect of the delegate meetings on July 10-11. It is also important to reiterate that the American Parent had every opportunity to lead whatever evidence it wanted or had about those events. Lenore Miller was present and chaired the July 10 meeting, in her official capacity as presi­dent of the American Parent. She did not then raise any objection to the seating, credentials, selection or authority of the delegates.

[ 66 ] Ms. Miller was also present instructing counsel both in the interim proceeding before the MacDowell panel and in the main hearings before the Chair. Ms. Miller provided declarations in connection with the first request for interim relief, as did other local supporters of the American Parent and the UFCW merger. Ms. Miller's declaration in this proceeding refers to her earlier one, contradicts statements made by Mr. Collins, and notes that many of the issues were raised before Chair McCormack in A & P.

[ 67 ] But neither Ms. Miller, nor any other official, gave evidence in the proceeding before Chair McCormack.

[ 68 ] Thomas Collins, the former Canadian Director of RWDSU, did give extensive evidence in the A & P case and was subject to cross-examination by counsel for the American Parent. Mr. Collins testified, among other things about: why he and other Canadian officials were opposed to the UFCW merger; the way in which their opposition was received by the American Parent; the steps which they took to disaffiliate from the RWDSU International; and how and why those Canadian officials and delegates then sought to carry the Canadian locals into affiliation with the Steelworkers. He also gave evidence about the location of bargaining rights, how those bargaining rights were exercised at the local level (i.e., whether they were held by the Ontario locals or the American Parent), and the role of the American Parent in local collective bargaining affairs [see generally the recitation of facts in the Chair's decision of September 23].

[ 69 ] In weighing the legal and labour relations realities of the situation now before us -including the various declarations of Ms. Miller and others - we do not think we can ignore the fact that the Parent International (now part of the UFCW) had the opportunity before Chair McCor­mack to raise, and support by evidence, any challenges it may have had to the events that took place at the delegate convention of July 10-11.

[ 70 ] It may be that Mr. Collins' description of those events is not accurate. But if that is the case, one would have expected the American Parent to call evidence to that effect - particularly since Ms. Miller was present at the Board hearing in Toronto and her actions were part of the con­troversy. Ms. Miller, Mr. Jenner, and Mr. McArthur all filed declarations in the interim proceed­ings in A & P. But the American Parent, for whatever reason, chose not to call evidence or be cross-examined about these events. Ms. Miller, Mr. Jenner, and Mr. McArthur did not give evi­dence about what they had said in their declarations. By contrast, Mr. Collins did give evidence and did submit to cross-examination.

[ 71 ] This panel has no inclination to question or review the factual or legal findings of the Chair in A & P. By virtue of section 108 of the Act, those questions of fact and law are "final and conclusive for all purposes" and, we think, that includes later interim relief proceedings involving essentially the same parties. However, we need not finally decide whether, as a matter of law, the findings in A & P are "res judicata", or "in rem", because the real protagonists and the real issues appear to be much the same in all of the other successor rights applications yet to be determined.

[ 72 ] We do conclude that the findings and analysis in A & P are a significant part of the legal landscape which cannot be ignored in the "new" successor rights proceedings that, in substance, are between the same union rivals, who ask the Board to decide, once again, whether the circum­stances and events of July 10-11 are such as to establish:

(1) that the particular Ontario locals, not the American Parent, held the bargaining rights prior to mid July; and

(2) that those locals, too, have merged with the Steelworkers in the same way that Local 414 did.

At the very least, the successorship issues (i.e., the application of section 63) are similar, and the real "players" are the same.

[ 73 ] In the circumstances, it is useful to review the A & P decision in some detail.

II

[ 74 ] The September 23 decision begins with a long review of the facts (paragraphs 3-48) where the Board records the opposition to the UFCW merger at all official levels within the RWDSU Canadian section, including the Canadian director, at least five of the Canadian Vice-Presidents, and the Canadian District Council which was an umbrella organization for the Cana­dian locals of the RWDSU. The decision then details some of the meetings and consultation that took place across Canada, as the Canadian officials debated the desirability of merging with the UFCW (which was a rival in Canada) and explored the alternatives. Those alternatives included the creation of an independent Canadian organization, or the merger with a trade union other than the UFCW. For example, Robin McArthur, now a UFCW supporter, was once suggesting that the RWDSU Canadian group consider merger with the Teamsters Union.

[ 75 ] The Canadian components of the RWDSU had to decide what they would do if the UFCW merger was rejected; and what some wanted to do was very different from the scenario envisaged by the American Parent.

[ 76 ] The A & P decision also details the escalating friction between the Canadian officers of the union and their American counterparts, as well as the unsuccessful efforts of Bob White, the President of the Canadian Labour Congress, to effect an "amicable divorce", as had been done with the Canadian section of the United Automobile workers. The Board finds that there were numerous meetings across Canada prior to the meeting on July 10-11, and reviews in detail not here relevant, what took place at that meeting which on the first day, (chaired by Lenore Miller), rejected the UFCW merger proposal, and the following day (chaired by the President of the Ontario Federation of Labour), purported to create a new organization called "RWDSU Canada" that was then merged with the Steelworkers. The Board then outlines some of the responses of the Parent International:

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.

[ 77 ] It was these actions by the American Parent that prompted the unfair labour practice complaint. The Canadian officials (by then under the Steelworkers' umbrella) claimed that the American Parent was using its powers under the union Constitution to force a merger with the UFCW, despite the delegate vote against it, and that this contravened the Labour Relations Act in various ways. The Steelworkers (and the local RWDSU officials) argued that the disaffiliation pro­cess was a charade because the American Parent intended to use its powers to prevent the locals from regrouping.

III

[ 78 ] The "legal portion" of the decision has two aspects which are relevant to the current proceeding, because the same questions are raised in the 200 or so other successor rights applica­tions which the Board has yet to consider.

[ 79 ] In the A & P case, the Board found that statutory bargaining rights were held and exer­cised by Ontario Local 414 of the RWDSU, despite the American Parent's assertion that the American Parent held the bargaining rights. The Board further found that the events of July 10-11 had effected a disaffiliation of the Canadian section from the International (an eventuality that the American Parent did not expect until October 1, 1993 - now past), and that pursuant to section 63 of the Act, there was a successorship vis a vis "RWDSU Canada", then a second one with respect to the United Steelworkers of America.

[ 80 ] Both findings were significant for the ultimate result in the case; for if bargaining rights had vested in the American Parent rather than Local 414, it would not have mattered whether Local 414 had successfully disengaged from the American Parent, then affiliated with the Steel­workers. Both findings are integral to the "final and binding" determination which the Board made. And of course, the American Parent was a party to those proceedings, as it is (now merged with the UFCW) in the later successor rights cases.

[ 81 ] In determining who held bargaining rights, the Board had to consider both the practice of local administration which was established in the evidence, portions of the International Consti­tution, and the Local 414 by-laws. Mr. Collins' evidence outlined that practice and his testimony was uncontradicted. The internal Constitutional arrangements included these provisions, recorded at paragraph 72 of the Board's decision:

[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 XVII, 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]

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]

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 [sic] the Local for its actions, and the Local is the governing body in the province.

(emphasis added)

[ 82 ] In the Board's view, the bargaining practice and constitutional framework were suffi­cient to displace any inference flowing from the fact that the name of RWDSU International appeared on the opening page of the A & P collective agreement, along with that of Locals 414, 429, 545, 579, 582 and 915. The Board did not have to decide how, in a regime of exclusive bar­gaining agency, bargaining rights could be "shared", because the Board concluded that as a matter of fact and law, bargaining rights were not shared but rested with the local union. The Board did note, parenthetically, that in a legal regime based upon exclusive bargaining agency, it might not be possible for two unions to "share" bargaining rights.

[ 83 ] On the successorship aspect of the case, the Chair reviewed the Board's developing jurisprudence under section 63, noting that the focus of the section was the acquisition of rights, privileges and duties under the Act - particularly the status of statutory bargaining agent - rather than the "property" or "political" rights of persons within the union, or of union members in rela­tion to each other. At paragraph 53, the Board wrote:

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 Mdis, 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.

[ 84 ] The Board then went on to conclude that complete constitutional correctness was not a prerequisite to a successorship declaration, provided that there was sufficient compliance with con­stitutional norms or objectives, and sufficient indication that the merger (etc.) decision was sanc­tioned by the membership or accomplished through an appropriately-constituted decision-making body. In other words, the Board found that statutory bargaining rights were not necessarily trans­ferred, or necessarily transferable, merely because union officials had made Constitutional provi­sions to that effect. Bargaining rights were not an "asset", that unions could trade between them­selves in this way. Conversely, statutory bargaining rights could pass from one union to another (i.e., that there could be a successorship under section 63) without the compliance with the antici­pated transfer arrangements. That result depended upon the way in which the transfer mechanism was structured, how it worked in practice, and its relationship to the usual way that the union did important business. It was the Board, not the unions, which ultimately had jurisdiction to apply section 63, with or without a representation vote (an indication, in itself, that "constitutionalism" might not govern). Thus, at paragraph 97, the Board observed:

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.

[ 85 ] The Board then dealt with a variety of other objections to the delegate meeting of July

10-11: whether there was sufficient notice of the meeting; whether the agenda was properly item­ized; whether the delegates had sufficient time to study the proposed merger with the Steelwork­ers; whether certain delegates were or were not entitled to vote on such issues; etc. In each case, the objections were reviewed, considered, and rejected.

[ 86 ] Finally, the Board concluded that in all the circumstances, it was not disposed to exer­cise its discretion under section 63(2) to direct a representation vote. Those circumstances included the reluctance to turn a successorship proceeding into a "mid-term raid" by a third-party union, substantial compliance with the process that the UFCW and the American Parent had themselves established to decide issues of this kind (which did not involve a membership referendum), and the difficulty in framing the ballot to reflect the real choices for employees and the real actors in the piece.

[ 87 ] The Board was satisfied that the delegate voting process provided a meaningful oppor­tunity for membership wishes to be expressed, and noted at paragraph 132:

……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.

Regardless of the result of this Constitutional wrangling, the employees would always be entitled to oust their bargaining agent (whoever it is) at the time provided by the Statute: during the last two months of their collective agreement (see sections 57-63 and 5-9 of the Act). During this "open period", employees would have the opportunity, as they always have, to "go non-union", or choose another union to represent them. The Board did not consider it appropriate to direct a vote which would not be a final answer in any case.

[ 88 ] It is against that background that we must now weigh the submission of the RWDSU District Council of the United Food and Commercial Workers International Union and its Locals 414, 440 and 1000 (the American Parent now merged with the UFCW which may or may not include the Canadian section) that the other successor rights applications now pending before the Board are very different - that there are different employers involved, or that the situation of other locals is different, or that there is, for example, analytical significance in contract words which say "RWDSU and its Local X" as opposed to "RWDSU" with a gap on the page before a listed local; or that there were defects in the July 10-11 process not put before or accepted by Chair McCor­mack.

[ 89 ] There may very well be legally significant differences in these various files. But the applicant's supporting material suggests that there are not, and the Chair's decision of September 23 is at least the starting point for analyzing any differences said to command a different result.

[ 90 ] The decision of September 23 is currently the subject of an application for judicial review. No Court hearing day has been set. Nor has there been any application to the Court to "stay" the Board's September 23 decision - although to be fair to the UFCW/American Parent, it is not clear what such "stay" would mean, unless the Court were also disposed (and had jurisdic­tion) to award interim bargaining rights to one of the rival unions.

[ 91 ] There is also a request for reconsideration by employees from 9 (of about 100) A & P stores who claim they did not have notice of the proceeding. To that request, A & P replies that notice was posted, in accordance with the Board's Rules. So does the Steelworkers union. Accord­ingly, there is a factual dispute in the reconsideration application which will have to be decided.

[ 92 ] The reconsideration hearing began on November 30, and is continuing at the time of writing. There is no indication when it will be completed.

[ 93 ] Chair McCormack did not issue a decision in respect of the Steelworkers' unfair labour practice charges which she heard together with the companion successor rights application. She wrote:

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.

Obviously, the Chair did not want to inflame an already acrimonious dispute by referring to behav­iour that might be seen as disreputable whether or not it was illegal.

[ 94 ] We do not know when the unfair labour practice ruling will be made, nor is it apparent how it would assist this panel one way or the other.

The Current Disorder

[ 95 ] It was hoped and anticipated that the A & P situation (involving the largest bargaining unit and the largest Ontario local) would be the "test case" that would permit the rival union par­ties to resolve the competition for bargaining rights with respect to other employees, and other local unions, that, like Local 414, had participated in the purported merger meeting on July 10-11. But that was not the case - hence the 200 or so successor rights applications brought by "the Steel­workers", the UFCW's intervention in those applications, and the prospect of litigating every one of them, if necessary.

[ 96 ] Given the parties' current relationship, the vagaries of litigation, and the resources of the Board, there is no prospect whatsoever that these cases will come to an early conclusion. On the contrary. There is every indication that the litigation will drag on for months, and that the "legal war" will escalate as new proceedings are brought in one form, or forum, or another.

[ 97 ] The labour relations impact of all of this is depressingly clear: confusion and collective bargaining paralysis for numerous employers, large and small, and thousands of employees in this Province.

[ 98 ] The statutory scheme of collective bargaining envisages a mutual duty to bargain in good faith, and periodic re-negotiation of collective agreements on a fixed timetable. The Act envisages that collective bargaining may begin ninety days prior to the expiry of a collective agree­ment (section 54) with a view to concluding a new one, if possible, before the end of that agree­ment, without a strike or lock-out.

[ 99 ] That is not happening. Since July 1993, the bargaining cycle has been totally frustrated.

[ 100 ] Tom Collins' declaration lists a number of collective agreements for which bargaining is overdue, together with certain other information about those collective bargaining relationships. This is the list: The Bay/Local 1000 - 6 contracts for a now combined bargaining unit of 1000 employees; multiple "Mr. Grocer" franchisees and Local 414 whose collective agreement expired January 31, 1993; "No Frills" franchisees and Local 414 whose collective agreement expired April 30, 1993; Hostess Frito-Lay and Local 461, where the 410 employees are bound by two collective agreements that expired January 5, 1993; Spalding Canada and Local 440, where the collective agreement expired July 31, 1993; Colonial Furniture, whose collective agreement expires January 1, 1994; Weston Bakeries and Local 461, where the collective agreement binding 225 employees expired November 15, 1993; TRS Food Services, whose collective agreement involves Local 461, covers 110 employees and expired May 9 and August 31, 1993; Hershey Canada and Local 461, where the collective agreement covers 500 employees and expires January 31, 1994; The A & P Warehouse part-time collective agreement involving Local 401 and some 100 employees that expired February 13, 1993; the United Cooperatives collective agreement involving Local 414 which expires December 31, 1993; and the Hamilton Yellow Cab/Local 1688 collective agreement which expires December 15, 1993 (where there is a termination application).

[ 101 ] In these various situations, meaningful collective bargaining cannot occur. The number of such situations is increasing as time goes by.

[ 102 ] The Act prescribes that bargaining in respect of newly-certified bargaining units should begin within fifteen days of certification. In fact, if a union does not give timely notice to bargain or lets a period of sixty days go by without bargaining, its bargaining rights may be terminated (see section 60(2) of the Act). The following are newly-certified bargaining units in which collective bargaining has either been stalled or has never begun: Metro, Diamond, and Co-Op Cab compa­nies (Local 1688 - approximately 2000-3000 Toronto employees), certified June, August 1993; Central Chevrolet/Local 414, certified January 29, 1993; Checker Limousine/Local 414, certified April 2,1993; Vanfax/Local 414, certified April 16, 1993; The Connection Group/Local 414, certi­fied April 2,1993; Loeb Club Plus, Woodstock/Local 414, certified March 29, 1993; Loeb IGA Lincoln Heights/Local 414, certified November 9, 1992; Loeb Carleton Place/Local 414, certified February 19, 1993; LOF Glass/Local 414; certified April 16, 1993; National Federation of Nurses/Local 414, certified December 2, 1992; Nivel/Local 414, certified February 22, 1993; Nordic Windows/Local 414, certified May 21, 1993; Katalin Lanczi/Local 414, certified June 1, 1993; Sifton Properties/Local 414, certified July 21, 1993; and both Union and Westway Taxi.

[ 103 ] We should note that although this impasse is frustrating for the Canadian officers of RWDSU locals who resisted the American Parent, and may be detrimental to the interests of employees and employers in Ontario, the Steelworkers argue that it is not necessarily detrimental to the strategic interests of the UFCW.

[ 104 ] As we have already mentioned, virtually of the "human infrastructure" of the RWDSU in Canada rejected the UFCW merger and moved to the Steelworkers - leaving the UFCW with fewer resources in place with which to attack the Steelworkers or rally employee support. How­ever, if the collective bargaining process grinds to a halt, any advantage of the Steelworker merger may be nullified, the challenger may gain time, and the collective agreement "open periods" described above will present themselves. There will be an opportunity for "raids" regardless of the results of the successor rights application; and since the open period for "raiding" stays open until closed by the appointment of a conciliation officer, anything which delays that appointment enhances the UFCW's raiding opportunity. The Minister's decision not to appoint conciliation offi­cers not only impedes bargaining, but also leaves the bargaining rights exposed, even if the Steel­workers have successfully acquired them.

[ 105 ] Protracted litigation and paralysis may operate to the advantage of the UFCW and the American Parent; and in the Steelworkers' submission, that is their objective and intent. If they can frustrate the collective bargaining process, they may reap a harvest of disenchanted employees. The Steelworkers submit that "doing nothing is not neutral". But of course, in this sense, an Order in favour of the Steelworkers may not be "neutral" either (as the Board noted in its interim deci­sions in A & P), because it may bolster the Steelworkers' political advantage, and merely shift the burden of delay. Delay (which prolongs uncertainty and litigation) may well be undesirable from everyone's perspective.

[ 106 ] Day-to-day representation of employees continues to be shrouded in confusion because the UFCW/American Parent continue to assert that they represent the employees in Ontario locals, and continue to demand that employers recognize their agents for that purpose - for exam­pIe, that dues from Canadian employees be remitted to the control of Guy Dickinson, the tempo­rary Trustee of the Canadian District Council, who is located in New York (see Exhibit 17 to the Declaration of Tom Collins) or to Robin McArthur, a UFCW representative from Northern Ontario who held no official position in the Southern Ontario locals. As a practical matter, there­fore, employers and employees cannot determine whom they are to deal with on a day-to-day basis, and employers are threatened with legal sanctions if they make the wrong choice.

[ 107 ] Not surprisingly, many employers are taking a "neutral" stance - which means inaction -and are putting any dues monies in trust until the proper claimant is determined. But, of course, inaction, however prudent, is not neutral in its impact. Employees are paying "dues" in return for service. The money is not being used for that purpose.

[ 108 ] Section 45 of the Act provides that, during the term of a collective agreement, any dis­pute about its interpretation, application, administration, or alleged violation must be resolved by arbitration. Such problems arise from time to time, and to deal with them, most collective agree­ments have a grievance procedure. If grievances cannot be resolved at the local level, they are con­sidered by union officials, and referred, as necessary, to an outside arbitrator.

[ 109 ] But as things now stand, arbitration cases are being stalled or adjourned pending the identification of the bargaining agent, which, of course, shares the cost of the arbitration process, chooses counsel, and so on. Unless there is a union to do this - and only one union can - the arbi­tration process will not work. Examples include: Hamilton Yellow Cab, Hershey Canada, Weston Bakeries, and City-Wide Taxi, and the numbers will multiply as time goes on.

[ 110 ] In one particular case, the Board itself directed reinstatement under section 69 of the Act (File 3993-91-U). There was a subsequent dispute over the terms of the employee's reinstate­ment. That employee is still out of work and the Ministry of Labour will not appoint an arbitrator under section 46 of the Act. And, it is interesting to note that in the UFCW application for interim

relief (2869-93-M) the supporting declaration cites the same kinds of collective bargaining prob­lems.

[ 111 ] The above-noted problems are exacerbated because the Minister of Labour is also "caught in the middle" and has refused to appoint arbitrators or conciliation officers until his authority to do so has been clarified. When faced with competing claims from the two unions - to appoint, or not to appoint, or when to appoint - he too has opted for inaction. By letter dated November 8, 1993, the Director of Labour Management Services for the Ministry of Labour wrote as follows:

"Applications to the Minister for the appointment of Arbitrators and Conciliation Officers sub­mitted by the Retail, Wholesale Canada, Canadian Service Sector Division of the United Steel­workers of America continue to be held up due to ongoing litigation between it and the Interna­tional Retail, Wholesale and Department Store Union. These applications cannot be processed until such time as the Minister is satisfied that there is no longer any issue with respect to bar­gaining agent status".

That is why the Minister has filed the reference to the Board mentioned above. The Statute requires him to act, but the circumstances make it very difficult for him to do so.

[ 112 ] The employers are in the same position. They have statutory rights and obligations which they are unable to exercise or fulfil until they know which union they have to deal with. As one counsel asked, rhetorically: Who do we deal with if we have to close a store and work out the lay-off arrangement for the employees involved.

[ 113 ] The dilemma faced by the employers and the Minister arises from the fact that the stat­utory scheme requires both the identification and stability of a single exclusive bargaining agent, to exercise the rights and bear the responsibilities created by Statute. The scheme of collective bar­gaining simply cannot work without it.

[ 114 ] Collective bargaining legislation is not about unions as organizations, or about prop­erty, or about internal union affairs. It is not about the perquisites of union office, or about "union democracy" (see Re CSAO National Inc. and Oakville Trafalgar Memorial Hospital Association, 1972 CanLII 563 (ON CA), [1972] 2 O.R. 498, 26 D.L.R. (3d) 63), or even Canadian Autonomy. The legislation defines and regulates a statutory collective bargaining agency relationship between employers and unions, but governing the employees' conditions of employment. That statutory relationship is as foreign to the common-law notions of "agency", and the "club law" of Astgen v. Smith, 1969 CanLII 488 (ON CA), [1970] 1 O.R. 129, as it is possible to be.

[ 115 ] It is worth a brief digression to explain something of the statutory framework; because unless one understands how the Statute is supposed to operate, one cannot appreciate the dimen­sions of the problem now before us. A statutory review will also demonstrate why the Board must try to do what it can to resolve the situation in such manner that the statutory process can begin to function again.

Why a single, stable, exclusive union bargaining agent is fundamental to the statutory scheme

[ 116 ] A trade union is, under the Statute, an organization of employees formed for purposes that include collective bargaining (whatever else it may be at common law). A trade union is not a club - or "just" a club - nor is it even a "voluntary" organization. It is an entity which has a legal existence lacking at common law, and engages in a process - collective bargaining - which had no common-law foundation. The result of that process - the collective agreement - likewise has no common-law existence; but it is enforceable by Statute, and that same Statute allows it to contain provisions compelling union membership. A trade union is an instrument, constructed by employ­ees for their mutual protection and advancement. But it is also the beneficiary of legislative protec­tion, and intended to fulfil a statutory purpose.

[ 117 ] A trade union acquires statutory "bargaining rights", through a certification process that depends upon establishing the support of a majority of employees in a bargaining unit defined by the Labour Relations Board. Once certified, the union is obliged to represent those employees, whether or not they are union members (section 69 of the Act), and it is required to negotiate with their employer, in good faith, with a view to concluding a collective agreement.

[ 118 ] The collective agreement is a statutory creature with some important statutory charac­teristics. Among these is a permitted dues deduction provision, available at the request of a union bargaining agent (see section 44 of the Act). In effect, the Statute gives the union the power to "tax" employees, whether or not they are union members, so that the union will have the funds to fulfil its statutory duty of fair representation (see section 69 which extends to employees whether or not they are members). The authority to deduct money from wages earned by employees - a kind of "wage assignment" - is an enforceable provision of the collective agreement through the grievance-arbitration process prescribed in that agreement, and under section 45 of the Act. The right to deduct dues from employee wages is rooted in the Statute, not the union's Constitution (which may prescribe the level of dues). The union collects money from employees not because the Constitution requires it, but rather because the union is the statutory bargaining agent entitled to the benefit of section 44, and subject to the representation obligations of section 69. The payment of dues by employees is not an "internal union matter" (see also sections 47 and 48 of the Act).

[ 119 ] "Bargaining rights" are a right to represent employees in the manner and for the pur­poses prescribed in the Statute. They are a legal, statutory, agency relationship, between a union and a generic grouping of employees (who may or may not all be "members". Bargaining rights are not a piece of property "owned" by the union, and therefore disposable like some piece of fur­niture. Bargaining rights depend upon the Statute and can be acquired, lost or transferred only in accordance with the Statute - which is to say, in accordance with processes supervised by the Labour Relations Board.

[ 120 ] The union's legal status as employee bargaining agent does not depend upon the contin­ued employment of its original supporters at the time of certification, or even the continuing sup­port of employees in the bargaining unit (see the comments of Laskin, C.J.C. in Terra Nova Motor Inn, 74 CLLC ¶14,253). The agency relationship exists in respect of those employees unless termi­nated in accordance with the Act - a process that again involves the testing of employee wishes. But bargaining rights cannot be challenged at any time, nor is the union's bargaining agency impaired if, from time to time, it loses the support of some or all of the employees in the bargain­ing unit (any more than a government loses its authority if public opinion polls establish that it has lost citizen support).

[ 121 ] Bargaining rights can only be challenged during the limited "open periods" prescribed by Statute - essentially the last two months of any existing collective agreement, or such longer period as may occur until a conciliation officer is appointed (see section 62 of the Act). At other times, the union is the statutory bargaining agent, whether or not it actually enjoys the support of a current majority.

[ 122 ] The Legislature has struck a balance of employer, union, and employee interests. The status of bargaining agent rests ultimately on the will of the majority. However, the Statute also recognizes that the values of certainty, stability and employee choice may conflict to some extent, Accordingly, the law prescribes when such employee choice may be voiced. At other times, the union is the exclusive bargaining agent for the employees in the bargaining unit and must be so regarded by the employer.

[ 123 ] The principle of exclusivity is fundamental to the scheme of the Act. Section 68 pro­vides:

68.-(1) No employer, employers' organization or person acting on behalf of an employer or an employers' organization shall, so long as a trade union continues to be entitled to represent the employees in a bargaining unit, bargain with or enter into a collective agreement with any per­son or another trade union or a council of trade unions on behalf of or purporting, designed or intended to be binding upon the employees in the bargaining unit or any of them.

(2) No trade union, council of trade unions or person acting on behalf of a trade union or coun­cil of trade unions shall, so long as another trade union continues to be entitled to represent the employees in a bargaining unit, bargain with or enter into a collective agreement with an employer or an employers' organization on behalf of or purporting, designed or intended to be binding upon the employees in the bargaining unit or any of them.

[emphasis added]

An employer is prohibited from dealing with employees individually, or with any other trade union that claims to represent them.

[ 124 ] The same principle of exclusivity can be seen in the provisions of the Act dealing with collective agreements. Sections 42, 50 and 51 provide:

42.- (1) Every collective agreement shall be deemed to provide that the trade union that is a party thereto is recognized as the exclusive bargaining agent of the employees in the bargaining unit defined therein.

(2) Every collective agreement to which an accredited employers' organization is a party shall be deemed to provide that the accredited employers' organization is recognized as the exclusive bargaining agent of the employers in the unit of employers for whom the employers' organiza­tion has been accredited.

50.There shall be only one collective agreement at a time between a trade union or council of trade unions and an employer or employers' organization with respect to the employees in the bargaining unit defined in the collective agreement.

51. A collective agreement is, subject to and for the purposes of this Act, binding upon the employer and upon the trade union that is a party to the agreement whether or not the trade union is certified and upon the employees in the bargaining unit defined in the agreement.

The union is the exclusive representative of those employees and thus the custodian of any rights which they or it may have under the collective agreement.

[ 125 ] The exclusive bargaining agent (by reason of its exclusivity) has a concomitant obliga­tion of fair representation set out in section 69 of the Act:

69. A trade union or council of trade unions, so long as it continues to be entitled to represent employees in a bargaining unit, shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit, whether or not members of the trade union or of any constituent union of the council of trade unions, as the case may be.

[emphasis added]

The trade union is not just the bargaining agent for its members, nor does its bargaining agency rest on the union Constitution.

[ 126 ] The union is the exclusive bargaining agent of the employees until the Board otherwise determines, and the employer must recognize that status and deal with no one else. The scheme of the Act envisages a simple symmetry: one (and only one) union; one collective agreement, and one bargaining unit.

[ 127 ] The collective bargaining scheme and collective bargaining stability both require the identification of the exclusive bargaining agent. Without that identification and exclusivity, the col­lective bargaining process will not work - as this case demonstrates, and may be seen by a quick review of some of the provisions of the Statute.

[ 128 ] Section 15 of the Act requires the exclusive bargaining agent to negotiate a collective agreement on behalf of the employees in the bargaining unit, section 68 prohibits the employer from dealing with anyone else, and section 69 imposes upon the union a statutory duty of fair rep­resentation. Exclusivity is implicit in, and necessary for, the bilateral bargaining process.

[ 129 ] Under section 16 of the Act, the Minister is required to appoint a conciliation officer at the request of the bargaining parties. But when two unions both claim to be that union bargaining agent, the Minister cannot appoint, so the bargaining parties do not have this Ministerial assistance to conclude a collective agreement. Nor can employees in newly-certified bargaining units take advantage of the option of "first contract arbitration". There too, the Minister must respond to a request, which, in turn, raises the status of the union making that request. And, of course, concili­ation is a condition precedent to a lawful strike. Without conciliation, employees lose both third-party assistance to achieve a collective agreement, and the right to collective action to press their claims.

[ 130 ] Section 45 requires the arbitration of disputes arising from the interpretation of collec­tive agreements. But who triggers the arbitration process? Who selects the arbitrator and retains counsel? To whom does the Minister listen when asked to appoint an arbitrator as he may do, upon request, under section 45? Which organization owes the employees the statutory duty of fair representation in respect of the processing of such grievances or negotiations in general? Against whom does an unhappy employee file his/her complaint if there is an alleged breach of the duty of fair representation?

[ 131 ] If there is a desire to terminate bargaining rights in a timely manner under section 58 of the Act, whom do the employees name in their application (not an academic question because

there is currently pending an application to terminate bargaining rights brought by employees of Hamilton Yellow Cab)? And, with whom does the employer negotiate the adjustment plan con­templated by section 41.1 of the Act if a portion of the business is to be closed and employees laid off? This latter question is not an academic one in the retail sector which is in the process of restructuring, and where store closings are not an unusual event.

[ 132 ] We do not think it is necessary to multiply the examples. It is fundamental to the scheme of the Act that there be an identifiable, stable, and exclusive bargaining agent, protected from challenge except at prescribed times.

[ 133 ] The problem in this case is that there will be no exclusive bargaining agent for practical and statutory purposes until the 200 or so successor rights applications are litigated (one by one or in groups), or unless this Board makes some interim Order.

[ 134 ] In the circumstances, we do not think that inaction is a viable option. Nor are we attracted to the form of interim Order issued in the A & P case. Those orders vested representa­tion rights, for practical but limited purposes, in persons rather than unions - a solution which is inconsistent with the statutory scheme, which ultimately did not involve the exclusivity that was necessary, which was never intended to obtain for more than a few weeks, and which, in the end, simply did not work even for A & P. This solution kept in place the "union civil servants" who had customarily dealt with employee bargaining needs. But whatever its attraction in the short run, we do not think this formula is appropriate for the longer term or on the broader basis called for in the present proceedings.

[ 135 ] We share the reservations of the earlier panels about interfering in internal union affairs. But with considerable reluctance, we have come to the conclusion that we must decide which contender will be the interim exclusive bargaining agent, for all statutory purposes, until the litigation before the Board is completed or otherwise resolved.

[ 136 ] We do not welcome the "win/lose" character of such Order. Nor are we sanguine about the prospects of avoiding layers of litigation and the continuing collective bargaining disruption contingent upon inter-union rivalry. But as in a child custody case, we do not think that there is a compromise interim solution. We are not Solomon and we cannot divide the baby.

The Statutory Basis for an Interim Order

[ 137 ] Section 92.1 was added to the Act in January 1993 and, on its face, gives the Board a new and independent power to "grant such interim orders, including interim relief, as it considers appropriate on such terms as the Board considers appropriate". That power is broad and unde­fined. There is nothing in the statutory language that suggests that the Board cannot make an interim Order (like an interim custody order or an interim injunction) which resembles the final order to which a party might be entitled at the end of the day; moreover, the breadth of the lan­guage suggests that the Board should bring its experience and labour relations judgement to bear upon the particular problem put before it. The Statute permits the Board to respond flexibly to the labour relations problems, to take a forensic approach, and to tailor the result to the particular mix of facts and the private and public interests at play. As the Board said in Morrison Meats Ltd., [1993] OLRB Rep. Apr. 358: "An interim order represents, in part, an evaluation by the Board, in the face of a conflict, and in response to a request by one of the parties, as to the preferred labour relations circumstances to be preserved or created during the course of the litigation of the main application".

[ 138 ] But the Board is not just the arbiter of particular disputes between particular parties. It also bears some responsibility for orderly collective bargaining in this Province, and has the specific responsibility to ensure, insofar as possible, that the objectives of the Statute are achieved (see sec­tion 2.1 of the Act). This, in turn, necessarily involves a balance of competing interests and collec­tive bargaining concerns - whether those interests are articulated in the context of "the main appli­cation", or on an application for an "interim order including interim relief'.

[ 139 ] Section 92.1 is a relatively new section, with which the Board has had little experience. Certainly, no one has asked for the kind of Order sought by the applicant in this case. But the Board has given "interim relief' which has resembled the Order available "on the merits", and in so doing, it has taken into account policy concerns and "third party impact".

[ 140 ] In unfair labour practice cases, the Board has recognized that the labour relations situa­tion may demand intervention even though the applicant may not ultimately be successful in the "main proceeding", and even though the respondent may object to an order that appears to be a "win" for the other side. Thus, in cases such as Loeb Highland, [1993] OLRB Rep. May 197, or Tate Andale [to be reported October 1993], the Board was persuaded to grant interim reinstate­ment to employees who may or may not have been discharged illegally, because that reinstatement was necessary to protect the certification process and reassure employees that their choice for or against trade union representation would not expose them to employer reprisals. The Board noted that the right of self-organization mentioned in section 2.1(1) of the Act, could be impeded whether or not the employer ultimately prevailed in the underlying litigation.

[ 141 ] In both Loeb Highland and Tate Andale, the Board noted that its approach to section 92.1 would not necessarily parallel that of a Court - anymore than its approach to strike-related cease-and-desist orders parallels that of a Court in picketing/injunction situations. The Board is a different kind of institution. It is animated by regulatory and policy considerations that are differ­ent from those of a Court (see generally Tomko v. Nova Scotia Labour Relations Board, et al, 1975 CanLII 183 (SCC), [1977] 1 S.C.R. 112, and Re Tandy Electronics Ltd. & United Steelworkers of America (1979) 1979 CanLII 1914 (ON HCJ), 26 OR. (2d) 68). In Tate Andale, the Board put it this way:

39. In the first place, we might observe that the Board is not a court; and there is no reason to expect that either its adjudicative or remedial approach should mirror that of a court. Civil prac­tice may sometimes provide a useful analogy, but when the Act so clearly involves policy consid­erations, so systematically modifies common-law premises, and so clearly excludes judicial involvement (see section 110), it would be curious for the Board to make common-law criteria a governing principle of interpretation. This is not to say that the Board's approach to dispute res­olution will never resemble that of the courts; however, the criteria applied, and the result reached, are more likely to be based upon the scheme and purpose of the Act, the Board's own experience, and the norms and needs of the industrial relations community. (See generally: Alex Tomko v. Labour Relations Board of Nova Scotia, et al (1975) 76 CLLC ¶14005 (per Laskin, C.J.C.).)

See also: Morrison Meats Ltd., supra, paragraphs 14-16.

[ 142 ] That said, though, the Board has in fact looked at some of the things which would influ­ence the Court on an application for interim relief. The Board has considered such factors as: the relationship between the interim Order sought and the final Order if the party seeking it were entirely successful; the desirability or possibility of preserving the status quo; the definition of the status quo in a dynamic system; whether the harm suffered by the party seeking interim relief is purely economic, and thus more readily ascertainable and recoverable after the merits have been decided; what the balance of harm may be - that is, whether the "harm" of not granting an Order exceeds the "harm" occasioned by granting the interim relief requested; and whether the "harm",

in this sense, extends to third party interests. To these the Board adds a policy component based upon its own experience of labour relations, its understanding of the statutory scheme, and whether there is a public interest element to be considered.

[ 143 ] We might also note, parenthetically, that in each of the earlier interim Order applica­tions, including this one, the panel has been composed of a union representative, an employer rep­resentative, and a "Vice-Chair" - the professional neutral. In that respect, the Board's composition mirrors the division of interest in the labour relations community. The "regulator" is structured to be representative of the groups regulated - a regulatory mechanism that is very different from that of a Court. The Board only departed from that model in File 1248-93-R because, in the Chair's opinion, it was absolutely imperative to address the "test case" as soon as possible (see section 104(12) of the Act).

[ 144 ] The UFCW (actually Retail, Wholesale and Department Store Union District Council of the United Food and Commercial Workers International Union) submits that this application for interim relief is untimely because some of the concerns mentioned by the applicant Steelwork­ers were evident in July, August and September. There is no merit to this submission. If anything, the Steelworkers union has taken a restrained approach, initially filing only one test case, rather than the 200 or so successor rights applications which it was later compelled to file. The Steelwork­ers hoped that the test case would sort things out between the contending parties. So did the Board. The delay is not inordinant, and, in any event, it cannot be said that the Steelworkers union was "sleeping on its rights".

[ 145 ] Has the applicant made out an arguable case on the merits, and for the relief requested? In our view, it has. Given the material filed with the Board, the legal analysis in A & P (i.e., the test to be applied under section 63), and the result of that case, we think there is a real likelihood that the applicant will be successful as it was before. The issue, we repeat, is not merely what the union Constitutions provide, but rather whether the events, viewed as a whole, generate a succes­sorship within the meaning of section 63 of the Act. We also note that even before the litigation of the A & P case before Chair McCormack, two entirely different panels of the Board concluded that there was a sufficient basis for interim Orders made at the request of the Steelworkers (al­though in neither case did that union get everything it requested).

[ 146 ] This is not to say that in one or more of the other applications the situation is not argu­ably different, and perhaps different to such a degree as may warrant a different result. Those dif­ferences might suggest the desirability of a representation vote, even within the legal framework discussed in A & P, or because, in particular circumstances, that is the sensible labour relations result. But whether or not such differences are ultimately established, and whether or not they prove to be significant, we do not think that we can ignore the findings in A & P that:

(1) bargaining rights rested with the Ontario local, not the Parent Inter­national based on practice and the International's own Constitution; and,

(2) that the delegate convention of July 10-11 resulted in a merger with the Steelworkers, despite the American Parent's assertion to the con­trary.

For as we have already noted, that proceeding involved the main protagonists that are before us now, and for whatever reason the American Parent (now part of the UFCW) chose not to call evidence to rebut the facts asserted by Mr. Collins - many of which are repeated in his declaration before us, and many of which, it would appear, will be raised again in the context of the other suc­cessor rights applications. Nor can we ignore the fact that the delegate convention was considered in some detail in the A & P case, that those delegates were the same ones who rejected the UFCW merger the day before, and that they acted in concert and unanimously on July 11.

[ 147 ] The situation may well be provably different for particular delegates or particular locals. But when constitutional correctness is not required by the Statute for its purposes (whatever might be the case for internal union matters), it remains to be seen whether Constitutional defects, if established, will prove to be determinative.

[ 148 ] Without here dilating on the legal onus in interim applications, we think the A & P decision is now a significant feature of the legal and labour relations reality. It helps to define the "status quo" that we must consider preserving - recognizing, of course, that the collective bargain­ing system itself is, or should be, dynamic. Indeed, it is that dynamism which is being frustrated by the current situation.

[ 149 ] What is the current collective bargaining reality; or, to put the matter another way, what collective bargaining conditions will continue if the Board does not make some interim Order? There is not much doubt about that. The collective bargaining paralysis will spread and the problems will escalate as more and more employers and bargaining relationships are drawn into the vortex. In the end, the dynamic process contemplated by the Statute will simply stop - as it already has in a number of the situations drawn to our attention.

[ 150 ] In our view, this is not in the interests of the employers, the employees, or even the protagonists if they could but rise above their partisan interests. Certainly it is not consistent with the purposes of the Act or the conduct of labour relations in this Province. We find it difficult to resist the employers' plea (echoed by the Minister of Labour) to make some Order which will fix bargaining rights and obligations clearly, definitively, and in such manner that the parties can "get on with business" - even though it cannot be "business as usual" and may later be modified if the Board is persuaded in one or more successor rights applications to reach a conclusion different from that in A & P.

Order

[ 151 ] In our view, and in all the circumstances, the most appropriate interim Order is a decla­ration that the applicant Steelworkers Union (more specifically the Retail, Wholesale Canada, Canadian Service Sector Division of the United Steelworkers of America, Locals 414, 422, 440, 448, 461, 483, 488, 1000 and 1688) is the INTERIM exclusive bargaining agent for the employees affected by the 200 or so pending successor rights applications, and that, ON AN INTERIM BASIS, the Steelworkers' Union has all rights, privileges and duties under the Act of the predeces­sor RWDSU organization(s), however defined, and holds all of the rights, privileges and duties of the exclusive bargaining agent for this interim period. We so order and declare.

[ 152 ] Lest there is any doubt about the Board's intention in making this interim Order: we intend that the Steelworkers union, for THIS INTERIM PERIOD (i.e., until the litigation is resolved and a final Order made), has and is entitled to exercise, all the rights and responsibilities which that union will assume, on a permanent basis, if it is successful in its successor rights claims. Conversely, we intend that the RWDSU, the American Parent, in whatever organizational mani­festation, and the UFCW, shall have none of the rights, privileges or duties associated with the sta­tus of bargaining agent, in the INTERIM period, until the pending successor rights applications are disposed of.

[ 153 ] It follows that the employers are entitled and required, for this interim period, to recog­nize the Steelworkers as the exclusive bargaining agent for all purposes, and must not recognize the UFCW, the American Parent, or any other union organization that does not establish its status as bargaining agent independently of the history or connection with the RWDSU.

[ 154 ] It also follows that, during this interim period, the Minister of Labour may appoint con­ciliation officers, arbitrators, and so on, at the request of the Steelworkers, notwithstanding the opposition of any other organization.

[ 155 ] We will outline this interim Order in more detail below.

The Employee Concerns

[ 156 ] We recognize that in making this interim Order, we have imposed an interim resolution that may not be the choice of some employees (we cannot say how many) and that we have done so without reference to the wishes of the employees as a whole. There is something to be said for the way Mr. Caley pointedly put it:

"It might come as a surprise to employees to wake up on July 12 and learn that representation rights had not only not flowed to the UFCW, but had passed to something called the "RWD5U Canada", then on to the Steelworkers".

However, when the delegates have unanimously rejected merger with the UFCW, employees might also be surprised to find themselves represented by strangers from the UFCW, or a trustee in New York, or perhaps some local fragment of the former RWDSU.

[ 157 ] There is no perfect answer to these employee concerns. And, as we have already indi­cated, the employee wishes are not the only element in the equation, nor the only interest to be accommodated.

[ 158 ] It is also important to note that the Statute provides a variety of safety valves to which employees can turn. Indeed, some of those options may be more readily available now that the choices are clarified.

[ 159 ] In any of the pending successor rights applications, it is open to interested employees to intervene, as they have belatedly in the A & P case. Their representations or different facts may command a different result. It is open to them to argue that a vote is desirable, or will "clear the air", or will avoid later litigation, or inter-union competition. It is open to them to assert that even if the Steelworkers have met the statutory prerequisites for a successorship, the Board should still seek the confirmatory evidence of a representation vote, because of the way in which the delegates were selected or acted - in short, that employees be consulted because there has not, in fact, been a reasonable opportunity to gauge their wishes.

[ 160 ] However, quite apart from such intervention, employees always have the opportunity, during the open period of the collective agreement described above, to oust their existing bargain­ing agent and substitute another union - whether it be the UFCW or someone else. Likewise, employees always have the opportunity to reject collective bargaining altogether and return to a regime of individual bargaining. Nor is this a speculative exercise in this case, because a number of collective agreements are already "open", or will come "open" in this sense in the coming months, so that if the UFCW has sufficient support to mount a raid, it will have the opportunity to do so -although, of course, it will have to actually establish membership support in the manner prescribed by the Statute. It will have to show that at least 35% of the workers want the UFCW to represent them.

[ 161 ] It is important to emphasize that our interim Order does not remove or diminish any rights which employees might otherwise have to make a timely representation application in the manner prescribed by Statute. Nor in fact does the Chair's A & P decision. If the employees in the A & P bargaining unit are unhappy with the Steelworkers, they too can take action during the open period of whatever collective agreement the Steelworkers have "inherited". Again, if the UFCW can show that it appears to represent 35% of the employees, the Board could direct a rep­resentation vote.

[ 162 ] In this sense, it really does not matter whether the bargaining agent is the UFCW, or the Steelworkers, or someone else. An unhappy majority always has the right to make a change during the last two months of a collective agreement, and a showing of 35% support can trigger a vote under section 9 of the Act. A successful successor can do no more than stand in the shoes of the predecessor organization, whether or not a vote has been directed under section 63(2). Con­versely, even if a vote were taken under section 63(2) and the Steelworkers won, it appears that the UFCW could still make a timely raid and demand another vote.

[ 163 ] The Board in A & P did not order a vote, in part because it was reluctant to turn a sec­tion 63 application into a mid-term "raid" or representation challenge. But it did not foreclose such challenge if otherwise timely. Whether the one kind of representation vote is preferable to the other, in A & P or generally, we need not decide. Our point is that if a significant number of employees support the UFCW, they are entitled to a timely vote as of right, not as a matter of dis­cretion, and regardless of the success in the section 63 applications.

[ 164 ] We think it is important to reiterate these undiminished employee rights, because coun­sel for the UFCW raised the spectre of the Steelworkers "imposing" a collective agreement upon an unwilling group of employees. That prospect, we think, is fairly remote.

[ 165 ] In the first place, there is an extremely high probability that any proposed collective agreement would be subject to ratification by the employees bound by it. That is the practice of most trade unions and is likely to be followed here. Steelworkers counsel made no absolute under­taking, but he allowed that the likelihood of a ratification vote was "98%".

[ 166 ] In all likelihood, employees will be asked to vote on any proposals that may become a collective agreement; moreover, ratification votes of this kind are regulated by section 74 of the Act. Section 74 requires appropriate notice to all employees in the bargaining unit whether or not they are union members. Section 74 also requires an "ample opportunity" for employees to cast their ballots in a secret ballot vote.

[ 167 ] We think it is unlikely that the Steelworkers would "impose" a collective agreement upon an unwilling membership - particularly against the background of this case and the effect such decision might have on any outstanding successorship applications, as well as the "politics" of the situation. But whether or not the union would have such inclination, it could only get to the position of negotiating a new collective agreement, after passing through and surviving the "open period" during which its status as bargaining agent could be challenged. In other words, an unhappy employee majority would have the opportunity to oust the Steelworkers before that union could even consider "imposing" a collective agreement on anyone. To the extent that an employer may be concerned about employee wishes, it can always seek confirmation of those wishes through a "final offer vote" conducted pursuant to section 40(1) of the Act; and, of course, whatever the ulti­mate outcome of the successor rights proceedings, the actions of the interim bargaining agent will shape the legal and labour relations setting in which subsequent collective bargaining will occur. Even if the ultimate successor turns out to be different from the interim bargaining agent, the for­mer will not be able to approach bargaining as if it were a clean slate.

[ 168 ] Finally, we wish to make it clear that the statutory duty of fair representation (section 69 of the Act) is now firmly fixed on the Steelworkers Union, because of its status as interim exclu­sive bargaining agent. If individual employees have particular concerns about the quality of repre­sentation, it is as open to them to complain under section 69 as it was before - and again, the pre­cise identification of the bargaining agent facilitates rather than hinders such complaints.

[ 169 ] From a strictly labour relations perspective, we remain concerned about a general situa­tion in which rival unions may reject reasonable compromise for fear that they will be labelled weak or indecisive or "in bed with the employers". That is sometimes the effect of inter-union competition, and it is a recipe for industrial conflict and discord. That is not a good labour relations result - particularly in an industry attempting to restructure and for unionized employers trying to confront non-union competition. But there is nothing that a regulatory body can do about that.

The Employee Benefit Funds

[ 170 ] To this point, we have only addressed the problems flowing from the inability to iden­tify the exclusive bargaining agent - an identification which, for the reasons outlined, is critical to the scheme of collective bargaining regulated by the Act. We have not addressed the unions' role in respect of certain benefit funds which are maintained for the benefit of employees.

[ 171 ] These funds (such as the Dental Plan) are "jointly trusteed" and the "employee trust­ees" are normally drawn from, or nominated by, the union bargaining agent. The Steelworkers contend that it is inappropriate that the trustees, once nominated by RWDSU Ontario locals, are now being selected or replaced by nominees of the UFCW.

[ 172 ] However, in our opinion, it is unnecessary to make any interim Order in respect of those trust funds.

[ 173 ] The trustees, both individually and collectively, have a fiduciary responsibility in respect of the monies in question. There is no evidence whatsoever of any malfeasance or inappro­priate behaviour on the part of the trustees. It is hardly likely that the employer trustees would per­mit union politics to deflect the trustees from the best interests of the employee beneficiaries. And if such allegations were to surface, they can be pursued in other forums or under the legislation regulating trust funds.

[ 174 ] At this stage, we do not have to consider any interim Order in respect of those trust funds. There is no real impact on collective bargaining, and so far as we can tell, no adverse impact on employees.

The Application by the UFCW

[ 175 ] In view of our interim Order made in favour of the Steelworkers, we do not think it is necessary to make the interim Order requested by the respondent UFCW. The cross-application for interim relief is therefore dismissed. However, again, lest there be any uncertainty, we wish to make it clear that whatever may have been the case heretofore, and whatever may have flowed from the two interim Orders in the A & P case, Edward Jenner no longer has any right, in his per­sonal capacity, to represent employees in collective bargaining matters, or to speak on behalf of the interim exclusive bargaining agent without the Steelworkers' consent and authorization. The interim exclusive bargaining agent is entitled to determine who its spokespersons will be. To the extent that Mr. Jenner may have rights as a union member, or as an employee, or perhaps former employee, he can pursue those rights at common law and in other forums. His rights under the Labour Relations Act are no higher than that of any other employee (if, in fact, he continues to be an employee in one of the bargaining units to which a successor rights application relates).

Summary

[ 176 ] For all of the foregoing reasons, the Board declares that the applicant, "Steelworkers", is the interim exclusive bargaining agent for the employees in the bargaining units to which the pending successor rights applications relate, and that the applicant, on an interim basis, has all the rights, privileges, duties and responsibilities, under the Act, of exclusive bargaining agent.

[ 177 ] The Board directs that the employer responding parties recognize and deal with the applicant Steelworkers exclusively, on a business-as-usual basis, for all purposes relating to the representation of employees, including, but not limited to, the day-to-day employee representation (grievances, arbitrations, etc.) and collective bargaining.

[ 178 ] The Board further directs that the employer responding parties forthwith remit to the Steelworkers any dues now held in trust and any dues which are or will be required under the rele­vant collective agreements.

[ 179 ] The Board directs that the Retail, Wholesale Department Store Union, AFL-CIO-CLC and/or the RWDSU District Council of the United Food and Commercial Workers International Union, and/or the United Food and Commercial Workers International Union, and/or any of the subordinate or affiliate bodies of these unions, and anyone acting on their behalf to cease and desist from any communications or conduct with the employer responding parties, or anyone else, inconsistent with this interim Order. However, this direction does not foreclose these unions from communicating their positions with respect to the legal or factual issues raised in the successor rights proceedings considered to date or to be considered in the future. But for the interim period, these unions do not have any right of access provided for the exclusive bargaining agent under any collective agreement.

[ 180 ] Nothing in this interim Order is intended to suspend or interfere with any other rights which employees may have individually or as a group in respect of their bargaining agent.

[ 181 ] The Board hereby advises the Minister of Labour that he may process any applications which have been or may be made under the Labour Relations Act by the Steelworkers, the union which we have declared to be the interim exclusive bargaining agent for employees in the bargain­ing units that are subject to the above-mentioned successor rights applications. The Minister may appoint arbitrators and conciliation officers with respect to the employer responding parties, not­withstanding any assertion made by any other trade union, its subordinate bodies or affiliates, or anyone else acting on their behalf. The Minister is entitled, until the Board otherwise declares, to treat the applicant Steelworkers as the exclusive bargaining agent for the employees in question, with all rights, privileges and duties associated with that status.

Notice and Information

[ 182 ] The Board recognizes that its decision in this matter will not only affect the collective bargaining situation of thousands of employees, but will be of interest to many of those employees. Undoubtedly, what some will view as "rough justice", others will consider to be "manifestly unjust". It is also evident that the flow of information to employees is currently being channelled and filtered by political partisans. It is inevitable that they will put their own "slant" or "spin" to any explanation of the relations between them or the litigation before the Board. Accordingly, the Board directs that the employers post the Notice attached to this decision and labelled "Appendix A" in prominent places on the employers' premises where they will come to the attention of the employees affected by these proceedings. In addition, two copies of the Board's decisions, col­lected together, must be posted on each bulletin board where notices to employees are customarily posted.

Concluding Comment

[ 183 ] For the reasons already outlined, we have found this to be a very difficult case. We have made an interim Order only because the parties were unable to resolve the dispute between them­selves and the alternative was collective bargaining gridlock. We have declared an interim exclu­sive bargaining agent only because we think the Statute requires one, and the Board was forced to choose. As the Board indicated at the hearing, it is most unfortunate that this inter-union dispute could not be resolved within the "House of Labour".

APPENDIX

THE LABOUR RELATIONS ACT

NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE ONTARIO LABOUR RELATIONS BOARD

Until the Summer of 1993 thousands of employees In Southern Ontario were members of the Retail, Wholesale and Department Store International Union and one or other of Its Ontario local unions (e.g. Local 414). These employees were represented for collective bargaining

purposes by the RWDSU organization.

There is now a dispute about whether those bargaining rights were held by the Parent International Union, or by the Individual local unions in Ontario.

There is also a dispute about whether those bargaining rights have passed by way of merger to the United Food and Commercial Workers International Union or one of its affiliates, or, in the alternative, to the United Steelworkers of America and one of Its affiliates.

Both the Steelworkers and the UFCW claim to have inherited those bargaining rights.

The international and local officers of the RWDSU disagree with each other about whether those bargaining rights have been transferred, to whom they have been transferred, and what is in the best interests of the membership.

In particular, the UFCW, the Steelworkers, and the RWDSU officials disagree about the effect of a delegate convention held in Toronto on July 10-11 1993 where the delegates rejected merger with the UFCW and purported to join the Steelworkers Union Instead.

As a result of these disputes, more than 200 applications have been filed with the Labour Relations Board. In each of these applications, the Board is asked to decide which union now represents a group of employees who were once members of a local of the RWDSU.

It is not clear whether these applications will have to be dealt with, one by one, or handled In groups. Nor Is it clear how long that hearing process will take. There is a real possibility that It could take months. In the meantime, there Is considerable confusion about which union represents the employees.

As a result of this dispute, the process of collective bargaining impeded, because employers do not know which union to deal with. The day-to-day administration of the collective agreement is also being frustrated.

The employers stress the importance of being able to carry on business as usual so that this dispute between tile trade unions does not interfere with the interests of the employers or the employees.

The union parties agree that uncertainty is undesirable; but the union parties are unable to agree among themselves on any interim arrangement.

In August 1993, the Board held a hearing involving RWDSU Local 414, the largest local in Southern Ontario, and the A & bargaining unit, which with 5 000 members Is the largest bargaining unit of Local 414. It was hoped that this would be a test case Which would help the unions resolve their dispute. The Board received the evidence and representations of the International RWDSU (now merged with the UFCW) and the Ontario local union group that claims that It has merged with the Steelworkers.

On September 23 1993, the Board found that Local 414 held the bargaining rights for the A & P employees - not the Parent International, and that Local 414 had successfully merged with the Steelworkers.

The Board also found that, as a result of the delegate convention in Toronto on Jul 10-11, 1993 Local 414 took its bargaining rights with it into the Steelworkers' organization.

Despite that finding, there is still continuing confusion and continuing challenges to the purported merger with the Steelworkers, and continuing debate about the bargaining rights of employees who may have been members of the various local unions named in this application.

These questions can only be resolved after further hearings before the Board, but in view of the magnitude of the dispute, those proceedings cannot be completed for weeks or perhaps months.

In the meantime, it is imperative that an interim bargaining agent be specified so that the collective bargaining process can proceed, and employees will have a clearly-designated union to represent them.

On November 23 and November 24, 1993, the Board held a hearing in Toronto to consider whether some interim arrangement should be put in place, and, if so, what that arrangement should be. The various unions and employers were present at that hearing and represented by lawyers. Those lawyers made submissions about what interim arrangement might be appropriate.

After considering those representations, the Board decided that the Retail, Wholesale Canada, Canadian Service Sector Division of the United Steelworkers of America, Locals 414, 422,440, 448, 461, 483, 488, 1000 and 1688 should be declared to be the interim exclusive bargaining agents) for the employees who were once members of the RWDSU locals in Southern Ontario.

That declaration will permit most of the local officials who have represented employees in the past to continue to do so. It will identify who the employers must deal with for collective bargaining purposes, until the Board otherwise declares. It will also clearly identify the interim bargaining agent in case the employees are unhappy with the Steelworkers or its performance In the short term.

The Board's reasons for making this decision are set out in a long decision which is posted on the employee bulletin board along with this Notice.

The Board's earlier decisions concerning this dispute (dated July 29, August12, September 2, and September 23) are also posted.

In making this decision the Board's concern is to p reserve orderly labour relations until the disputes between the trade unions can be finally resolved.

This interim Order is not intended to affect any other rights which employees may have under the Labour Relations Act. In this regard, employees are encouraged to read various decisions which review the background and explain the reasons for the conclusions the Board has reached.

The Board has directed that this Notice be posted and that these decisions be made available, so that the employees will be informed about these proceedings before the Board.

THIS IS AN OFFICIAL NOTICE OF THE BOARD

AND MUST NOT BE REMOVED OR DEFACED

THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE WORKING DAYS

DATED this 17th day of December, 1993.