Ontario Liquor Boards Employees' Union v. The Municipality of Metropolitan Toronto, 1994 CanLII 9847

[1994] OLRB Rep. July 938

0322-94-R Ontario Liquor Boards Employees' Union, Applicant v. The Munici­pality of Metropolitan Toronto, Metropolitan Toronto Civic Employees' Union, Local 43, and Canadian Union of Public Employees, Local 79, Responding Parties

BEFORE: Robert D. Howe, Vice-Chair, and Board Members G. 0. Shamanski and P. V. Grasso.

APPEARANCES: Craig Flood and Don McDermott for the applicant; Colleen Edwards and Harold Ball for The Municipality of Metropolitan Toronto; Harold F. Caley and Anne Dubas for Cana­dian Union of Public Employees, Local 79; no one appeared on behalf of Metropolitan Toronto Civic Employees' Union, Local 43.

DECISION OF THE BOARD; July 5, 1994

1. In a decision dated June 15, 1994 [now reported at [1994] OLRB Rep. June 795] regard­ing this application for certification, the Board wrote as follows:

For reasons which will be provided at a later date, this application for certification is hereby dis­missed.

The purpose of this decision is to provide the Board's reasons for dismissing the application.

2. The applicant (also referred to in this decision as the "Union" and the "O.L.B.E.U.", for ease of exposition) seeks by means of this application to be certified as bargaining agent for the following bargaining unit:

all employees of the respondent employed exclusively in the hostels in the Municipality of Met­ropolitan Toronto who are regularly employed for not more than 34 hours per week, save and except supervisors, persons above the rank of supervisor, office, sales and clerical staff and per­sons for whom any trade union held bargaining rights as of the date of application.

3. The applicant has been found by the Board in a previous proceeding under the Labour Relations Act (the "Act") to be a trade union within the meaning of subsection 1(1) of the Act. Since no evidence to the contrary was adduced in the instant case, that finding is proof in these proceedings that the applicant is a trade union for the purposes of the Act, by virtue of section 107 of the Act. However, it is the position of Canadian Union of Public Employees, Local 79, which has intervened in these proceedings (and which will be referred to in this decision as "Local 79" for ease of reference), that the application should be dismissed on the grounds that the applicant is not eligible to represent the employees for whom it seeks bargaining rights by means of this application because those employees cannot become members of the applicant under the provisions of the applicant's Constitution. The Municipality of Metropolitan Toronto (also referred to in this deci­sion as "Metro") takes no position regarding that issue. Metropolitan Toronto Civic Employees' Union, Local 43 ("Local 43") also intervened in these proceedings. Local 43's position regarding this issue, as recorded in the report of the parties' meeting with a Board Officer on June 10, 1994, is that it is "not a bar to the applicant". However, that position was not pursued at the hearing of this matter, as no one appeared on behalf of Local 43 at the hearing. (It is also the position of Local 79 that the application should be dismissed on the grounds that it already represents those employees. However, it is unnecessary for the Board to determine the validity of that contention in the circumstances of this case.)

4. The basis of Local 79's position that the applicant is ineligible to represent the employ­ees in question is the first sentence of the following part of Article IV of the applicant's Constitu­tion:

ARTICLE IV - MEMBERSHIP

4.1 Membership shall be open to all employees of the Crown, any of its agencies, or of any pri­vate employer. Any person applying for membership shall be required to file a written applica­tion and shall, in addition, be required to pay the requisite initiation fees fixed by the Union.

5. Counsel for Local 79 submitted that membership in the applicant is not open to the employees of Metro whom the applicant seeks to represent as they are not "employees of the Crown, any of its agencies, or of any private employer." Counsel for the applicant acknowledged that Metro is neither the Crown nor a Crown agency, but submitted that it is a "private employer" within the meaning of Article 4.1. In this regard he contended that in the context of the applicant's Constitution, "private employer" means any employer covered by the Labour Relations Act. In support of that position, he also referred the Board to the following provisions of the Constitution:

ARTICLE III - DEFINITIONS AND INTERPRETATION

Employer - shall mean the Liquor Control Board of Ontario, the Liquor Licence Board of Ontario, or any other private or public sector undertaking which employs members of the Union.

Employee - shall mean an employee of the Liquor Control Board of Ontario, the Liquor Licence Board of Ontario, or any other private or public sector undertaking which employs members of the Union.\

6. The legal nature of the responding party is described as follows in subsection 2(1) the Municipality of Metropolitan Toronto Act, R.S.O. 1990, c. M.62:

The inhabitants of the Metropolitan Area are continued a body corporate under the name of The Municipality of Metropolitan Toronto....

That legislation (which also refers to the responding party as the "Metropolitan Corporation") defines "Metropolitan Area" to mean "the area from time to time included within the Borough of East York, the City of Etobicoke, the City of North York, the City of Scarborough, the City of Toronto and the City of York". It provides for the powers of the Municipality of Metropolitan Toronto to be exercised by the Metropolitan Council through the passage of by-laws, and also expressly empowers the Metropolitan Council to "pass by-laws for appointing such officers and employees as it may consider necessary for the purposes of the Metropolitan Corporation, or for carrying into effect any Act of the Legislature or by-law of the Metropolitan Council" (see subsec­tion 23(1)).

7. As is evident from the provisions of that legislation as well as from its name, the responding party is a municipality (somewhat analogous to a regional municipality). As such, it is clearly a public sector employer (see, for example, The Corporation of the City of Thunder Bay, [1984] OLRB Rep. May 759, at paragraph 23, in which the Board described the Corporation of the City of Thunder Bay as a "substantial public sector employer"), and would certainly not normally be referred to as a "private" employer. As indicated by the dictionary definitions of the word "pri­vate" to which we were referred by counsel for Local 79, that term generally denotes something which affects, belongs to, or is used by private individuals, as distinct from the general public. Thus, the usual plain meaning of that term does not support the applicant's contention that employees of Metro are eligible for membership in the O.L.B.E.U. Moreover, there is nothing in the Union's Constitution which warrants adopting the artificially expanded interpretation of that phrase advocated by counsel for the applicant. In the context of the Constitution read as a whole, we are satisfied that the inclusion of the phrase "public sector undertaking", in the clause "or any other private or public sector undertaking which employs members of the Union" in the Article III definitions of "Employer" and "Employee", merely reflects the fact that the Constitution has been amended so as to make membership available not just to employees of the Liquor Control Board of Ontario and employees of the Liquor Licence Board of Ontario (the "Liquor Boards"), but to all employees of the Crown or any of its agencies, as well as to the employees of any private employer. However, the inclusion of that phrase in those definitions does not expand the scope of Article IV. Indeed, the use of that potentially broad terminology serves to highlight the fact that Article IV is cast in more restricted terms, and the fact that if the amenders of the Constitution had intended to extend membership eligibility to all public sector and private sector employees, or to all employees covered by the Labour Relations Act, they could easily have employed language which would clearly so provide. Nevertheless, in view of the possibility that the phrase "private employer" might contain a latent ambiguity which could be both disclosed and clarified by means of extrinsic evidence, the Board overruled an objection by counsel for Local 79 to the introduction of such evidence and permitted it to be adduced by the applicant.

8. The extrinsic evidence adduced by the Union took the form of excerpts from verbatim minutes of the Union's February 1986 Policy and Objectives Conference, and its September 1986 Fall Reporting Conference; a copy of the constitutional amendments from the Union's September 1986 and February 1987. Conferences; and a "Report on Organizing" prepared for the Union’s February 1987 Conference by Heino Nielsen, who has been a business agent of the applicant since 1983 and held various other positions within the Union prior to that. Those documents were identi­fied and explained by Mr. Nielsen, who was the sole witness called to testify in these proceedings.

9. The applicant was initially a voluntary social organization for employees of the Liquor Boards. Over the years it has evolved into a more formal organization whose objectives include improving the wages, hours of work, and working conditions of its members, increasing their job security, and conducting negotiations with representatives of the Liquor Boards to accomplish those objectives. Prior to the amendments which resulted in the constitutional provisions quoted earlier in this decision, membership in the Union was restricted to employees of the Liquor Boards. During the 1980's, reductions in the work forces of those Boards, and concerns about potential erosion of the employees' job security through contracting out of work to private employ­ers, prompted the Union to embark upon a lengthy review and revitalization process, which included using a highly experienced labour lawyer to assist it in preparing those constitutional amendments.

10. It is unnecessary for purposes of this decision to detail the evidence adduced before the Board in respect of those constitutional amendments. It suffices to note that, although some frag­ments of that evidence might be viewed as providing an element of support for the applicant's posi­tion if considered in isolation, when viewed as a whole the evidence clearly indicates that the con­stitutional amendments in question were not intended to enable the applicant to organize municipal employees, but rather to enable it to enjoy future growth and protect its members' job security by allowing the Union to organize the employees of private employers, such as privately owned and operated duty free border crossing stores created by the Federal Government, and the Pearson International Airport duty free operations which the Union understood the Province to be seriously considering contracting out.

11. Thus, although the applicant's Constitution, as amended, enables it to accept as mem­bers not only persons employed by the Liquor Boards, but also any other employees of the Crown or any of its agencies, and employees of any private employer, it does not enable it to accept as members municipal employees, such as those employed by the Municipality of Metropolitan Toronto to whom this application pertains.

12. The approach which the Board has traditionally adopted in cases of this type was described as follows in Wilfrid Laurier University, [1988] OLRB Rep. Aug. 851:

11 The Board has traditionally refused to certify a trade union as bargaining agent where that union's constitution renders ineligible for membership at least some of the persons whom the union will be required to represent if certified: G. K. L. Industries Ltd.. [1985] OLRB Rep. Oct. 1464.

In the G.K.L. Industries case, the Board wrote as follows regarding the rationale for that approach:

9 The Board has consistently refused to certify [a trade union] when its constitution renders ineligible for membership some or all of the employees it would be required to represent if certi­fied.... The rationale for that approach is that if the trade union negotiated a collective agree­ment which made membership in it a condition of employment (as permitted in certain circum­stances by section 46 [now section 47] of the Act), such constitutional membership restrictions could result in the discharge of employees whom the trade union is required to represent.

13. It is common ground between the applicant and Local 79 that the approach described in those cases remains applicable despite the "Bill 40" amendments to the Act. Prior to those amend­ments, the Act defined "member" (when used with reference to a trade union) to include "a per­son who, (i) has applied for membership in the trade union, and (ii) has paid to the trade union on his own behalf an amount of at least $1 in respect of initiation fees or monthly dues of the trade union". That definition was removed from the Act by the "Bill 40" amendments, and replaced (in part) by references in various parts of the Act, such as subsection 8(1), to "employees who are members of the trade union on [the certification application date] or who have applied to become members on or before that date". In this regard, counsel for the applicant did not dispute the assertion by counsel for Local 79 that it is an implicit requirement of those provisions that the "em­ployees ... who have applied to become members" will be eligible for membership in the trade union which is seeking to obtain bargaining rights in respect of them through certification.

14. The applicant's case is also not advanced by subsection 105(4) of the Act, which pro­vides:

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

Other than employees of the Liquor Control Board of Ontario and employees of the Liquor Licence Board of Ontario, the only persons who have been admitted into membership in the appli­cant are employees of privately owned duty free operations, such as the Fort Erie Duty Free Shop Limited, Thousand Islands Duty Free Store Limited, the Bluewater Duty Free Store, and DFS International at Pearson International Airport's Terminal 3. (Although a Union steward who obtained employment as a dispatcher had some discussions with various dispatchers, including dis­patchers employed by the municipal police force of Gananoque, his efforts to interest them in the Union did not advance beyond the discussion stage.)

15. Thus, for the foregoing reasons, the Board unanimously concluded that the application should be dismissed, as the employees for whom the applicant seeks to obtain bargaining rights through certification are not eligible for membership in the applicant under the provisions of its Constitution, and the applicant does not have an established practice of admitting persons to mem­bership without regard to the eligibility requirements of its Constitution.