The Ontario Secondary School Teachers' Federation v. The Board of Education for the City of Toronto, 1994 CanLII 9867

[1994] OLRB Rep. August 1098

4060-93-R The Ontario Secondary School Teachers' Federation, Applicant v. The Board of Education for the City of Toronto, Responding Party

BEFORE: Roman Stoykewych, Vice-Chair, and Board Members R. W. Pirrie and B. L. Arm­strong.

APPEARANCES: Eric del Junco, Shirley Dufour, Rick Sevier and Brian Wright for the applicant; Stephen C. Raymond, Brian E. Goodard and John Bruce for the responding party.

DECISION OF THE BOARD; August 30, 1994

1. This is an application for a declaration concerning the status of a successor trade union pursuant to the provisions of section 63 of the Labour Relations Act.

2. The applicant Ontario Secondary School Teachers' Federation ("OSSTF") seeks a dec­laration that it is the successor trade union to and therefore has acquired the bargaining rights formerly held by the "Association of Schedule II Employees Level 1-6, Inclusive" ("the Associa­tion"). The responding party Board of Education for the City of Toronto ("the employer") resists the application, asserting that, among other things, the Association was not a "trade union" within the meaning of the Act because it permitted entry into its membership of persons performing man­agerial functions.

3. The definition of "trade union" is set out in section 1(1) of the Act, which provides as follows:

1.- (1) In this Act,

"trade union" means an organization of employees formed for purposes that include the regula­tion of relations between employees and employers and includes a provincial, national, or inter­national trade union, a certified council of trade unions and a designated or certified employee bargaining agency.

4. Section 1(3) of the Act, restricts the meaning of the term "employee" in the following manner:

1.- (3) For the purposes of this Act, no person shall be deemed to be an employee who, in the opinion of the Board, exercises managerial functions or is employed in a confidential capacity in matters relating to labour relations.

5. The parties to the present application met in a pre-hearing conference on June 30, 1994 during which it was determined that, failing settlement of the matter, the parties would address the following issue without the need for calling any evidence:

Assuming that the constitution of the Association of Schedule II Employees of the Board of Education of the City of Toronto permits the admission into membership of persons who would be excluded from the provisions of the definition of "employee" under section 1(3) of the Labour Relations Act and assuming that at least one such person has been so admitted, does that preclude a finding by the Board that the Association was a trade union under the Act.

No settlement was reached, and a hearing was held on July 22, 1994 before the present panel, dur­ing which the parties presented their submissions with respect to the above issue.

6. Having considered those submissions the Board is satisfied that the admission into membership of the Association, whether or not permitted by its constitution, of persons who are not "employees" within the meaning of section 1(3) of the Act is not in itself a factor that would lead the Board to conclude that the Association is not a "trade union".

7. The Board has on numerous occasions considered the question of whether non-em­ployee membership would preclude an organization from being considered a "trade union". Although at one time the Board held otherwise, (see Hydro-Electric Power Commission of Ontario ("HEPCO"), [1971] OLRB Rep. Aug. 501) the clear thrust of the Board's approach for at least the last decade is that the mere fact of membership of non-employees does not preclude an organi­zation from being considered a trade union. The Board has expressly and repeatedly rejected the interpretation, advanced by the employer in the present application, that the definitional language "organization of employees" in section 1(1) serves a gate-keeper function that necessarily pre­cludes an organization that admits non-employee members from activating the statutory fights accorded to trade unions. (See Ottawa General Hospital, [1974] OLRB Rep. Oct. 714; Board of Education for the City of York ("York I"), [1984] OLRB Rep. Sept. 1279; Board of Education for the City of York ("York II"), [1985] OLRB Rep. May 767; The Board of Education for the City of Windsor, [1986] OLRB Rep. Mar. 378; Etna Foods of Windsor, [1986] OLRB Rep. June 710; Ontario Hydro ("Hydro IF'), [1989] OLRB Rep. Feb. 185; Ontario Hydro, [1993] OLRB Rep. Jan. 46; See also Re. Hamilton Construction Association and Builders' Exchange and Ontario Labour Relations Board, 1963 CanLII 183 (ON HCJ), [1963] 2 O.R. 293 (Ont. H. Ct.)) In these decisions, the Board has stressed that the "organization of employees only" theory urged upon us by the employer would be inconsistent with the broader structure of the Act, since to endow a definitional provision of the statute with the function of preserving the arm's length relationship necessary for collective bar­gaining would be inconsistent with and render redundant those other provisions in the Act whose clear function is to accomplish that objective. Indeed, the Board has concluded that the very issue of "status" in the context of the statutory definition of a trade union is a misplaced one, and thus, that the composition of the membership is not a consideration entered into in determining whether an organization seeking to invoke the provisions of the Act "is" a "trade union".

8. Perhaps the clearest and most exhaustive exposition of the Board's reasoning in this regard is found in the "York 1" decision, supra, which featured a challenge to the "status" of the OSSTF. It is to be noted that the OSSTF, by operation of statute, included (and continues to include) members who are not "employees" within the meaning of the Labour Relations Act. Upon its examination of the Board's earlier treatment of the issue, and a review of the Act's provi­sions relating to the operation of trade unions, the Board concluded:

9. …..

This Board does not "confer" or "grant" or, to use the language of the Board in the HEPCO case, "give" organizations "trade union status". The only use in the Act of the term "status" in that connection is in the marginal note to section [107] of the Act. The actual language of that section, however, makes it clear that the Board only makes a finding of fact that an organization is a "trade union", it does not give the organization some characteristic it does not already have. "Trade union" is a description, not an award. The only "status" or in rem quality which attaches to a determination that an organization fits the statutory definition is that the determination, once made, can be set up as prima facie evidence of that fact in subsequent proceedings involv­ing employers and employees who were not parties to the proceedings in which the determina­tion was first made. Sections 13 and [49] describe an organization which has been the object of employer participation or support as "a trade union". If employer participation or support dis­qualified an organization of employees from being described as a "trade union", as paragraph 12 of the Children's Aid Society decision suggests, then the above quoted portions of sections 13 and [49] would be meaningless and unnecessary. On the language of sections 13 and [49], employer domination does not result in the withholding or removal of the "trade union" label; it results in a denial of certain rights which would be enjoyed by a trade union which was free of employer domination. A finding that an organization is a "trade union" must not, therefore, be conclusive as to the organization's "status" to be recognized or certified as a bargaining agent under the Labour Relations Act. The legislature's object was to ensure that employers and bar­gaining agents deal at arm's length, and to prevent employer dominated unions from standing in the way of organizational efforts of truly employer-independent trade unions. The statutory lan­guage employed to accomplish this policy does not require us to read into [the statutory defini­tion of "trade union"] a limitation based on the nature of duties performed for their employer by individual members of what would otherwise be a trade union.

56. The HEPCO case held that the phrase "organization of employees" must be read as "orga­nization of employees only", having regard to the precision with which the meaning of the word "employee" is limited by paragraph [1(3)] of the Act. That reading of the language [defining "trade union"] would exclude from trade union membership not only managerial persons, who would be considered "employees" but for the deeming provision of paragraph [1(3)], but also persons who are not in any sense of the word anyone's "employee". If that were the intention of the Legislature, then why it did it so carefully use the "person" in section 3 when describing those who may join and participate in trade unions? The use of that word must at very least con­template trade unions' having members who are not "employees" because they are unem­ployed: sec Ottawa General Hospital, supra, at paragraphs 24 and 26. While the language of sec­tion 3 of the Act does not create for managerial persons a protected right to join and participate in the activities of a trade union, that language is clearly inconsistent with an interpretation of [the definition of "trade union"] which requires that the phrase "organization of employees" be read as "organization of employees only". It is noteworthy that none of the decisions which favour the "employee only" interpretation of [the definition of "trade union"] makes any refer­ence to section 3 of the Act.

57. The HEPCO "employee only" interpretation of [the definition of "trade union"] not only fails to take the language of section 3 into account, it also comes into conflict with characteristics of organizations commonly thought of as trade unions. We have already observed that craft unions tend to have "managerial" members, and that an "employees only" definition would prevent the unemployed from joining trade unions. It must also be recognized that trade unions are often employers themselves; indeed, trade union employees can be and have been the sub­ject of certification applications. In defining a bargaining unit of trade union employees, section [1(3)] comes into play and those who act on the union's behalf in hiring, firing and directing the work of its employed staff will be excluded as "managerial". If [the definition of "trade union"] means what HEPCO says it does, then either those managerial persons would have to give up its employees or forfeit its "status". This is an absurd result.

58. It is important to note also that the Labour Relations Act expressly defines "trade union" to include provincial, national and international trade unions. Many such organizations exist. Some existed, as OSSTF did, before the Ontario legislature enacted any collective bargaining legislation; those organizations are not disqualified as trade unions by the fact that their found­ers were not persons then covered by such legislation. A trade union may function in a number of jurisdictions and under a range of collective bargaining statutes. It is not disqualified as a trade union in Ontario by the fact that its members in those other jurisdictions and under those other statutes are not persons covered by the Ontario Labour Relations Act. It can be expected that the legislature in each such other jurisdiction will have recognized that collective bargaining requires an arms-length relationship between "employees" on the one hand and their 'em­ployer" on the other, and that in the interest of both sides it is necessary to put "managerial" employees on the employer's side of the table in shaping any particular collective bargaining relationship. It may be supposed, therefore, that each jurisdiction and each collective bargaining statute will draw that managerial line or assign the task of line drawing to a tribunal empowered to administer the statute. While the principle of separation of employer and employee interests may be clear, the result of its application may vary from jurisdiction to jurisdiction, from statute to statute and from tribunal to tribunal. A legislature may feel that the various interests involved in collective bargaining generally, or in certain employment sectors in particular, are better served by drawing the "managerial" line at a point different from that at which this Board might have drawn the line in the same circumstances. It would seem peculiar and, frankly, pretentious if we were to deny an international, national or provincial trade union the opportunity to repre­sent Ontario employees merely because some legislative body or administrative tribunal has required it to represent persons whom we would not, by reason of their duties, have included in a bargaining unit established under the Labour Relations Act. It is one thing to be ever vigilant against the mischief of company dominated unions. It is quite another to insist that those organi­zations which appear before this Board as trade unions conduct themselves in accordance with our views of membership purity regardless of the consequences to their ability to function in other jurisdictions. When public sector unions (OPSEU, for example) come before this Board for certification under the Labour Relations Act, we do not require of them proof that in their representation of employees under other statutes they have not undertaken the representation of, or accepted as members, persons whose job functions might appear to us to be "manage­rial".

59. We conclude that the phrase "organization of employees" in [the Act's definition of "trade union"] does not mean ~'organization of employees only". The mere fact that an organization has in its membership persons whose employment requires them to exercise managerial func­tions within the meaning of section 1(3) of the Act will not stand in the way of a finding that the organization is a "trade union" within the meaning of [the definition of "trade union"] of the Act, if it otherwise qualifies to be so described. We respectfully decline to follow those earlier decisions which held otherwise. We acknowledge and share the concern those earlier decisions expressed about the "potential for conflict of interest" which can appear when managerial employees are members of trade unions. The need to keep employers and bargaining agents at arm's length is fundamental to the scheme of the Labour Relations Act, but the right of employ­ees on a majoritarian basis to freely choose their bargaining agent is equally fundamental. As a result, it is not for the Board to withhold rights from a freely selected trade union on grounds other than those contemplated by the Act. Sections 13 and [49] speak to actual employer partici­pation and support. A speculative concern about an organization's vulnerability to employer domination no more justifies denial of representation rights than would a concern that the com­position of a trade union's general membership, or of another bargaining unit it represents, might divert it from the single-minded pursuit of the interests of the employees in the particular bargaining unit it seeks to represent (see H. Gray Limited, ¶55 CLLC 18,011, and Canadian Iron Foundries, ¶56 CLLC 18,027). The Labour Relations Act provides safeguards against the realization of any potential for conflict of interest. By virtue of section [69] of the Act, a trade union which acquires the right to represent the employees in a bargaining unit assumes a duty to act fairly toward those employees in exercising that right, and that will require that the trade union avoid conflicts with the interests of persons excluded from that unit. While managerial membership alone will not trigger sections 13 and [49], the potential application of those sec­tions to the trade union and, consequently, of section 165] to some one or more employers, will throw a spotlight on the reasons for such membership, and on the nature and degree of such members' participation in the affairs of the trade union. In the ordinary case, one would wonder why a person would join an organization devoted to collective bargaining in which it cannot rep­resent him. When he is actively involved in those collective bargaining activities, one's wonder would grow at tolerance by his employer and by the trade union of any apparent conflict of interest, especially when the managerial employee had no protected right to join the trade union or participate in its activities. While it will be a question of fact in each case whether managerial members are acting on behalf of employers, there will be some cases where the absence of any explanation for the managerial employees' membership and active participation in a trade union may support an inference of employer domination. There will be few cases where, as here, the employees' allegedly managerial duties and concurrent trade union membership can be explained by the act that both are compelled by law. Thus, sections 13, [49] and [69] encourage trade unions to confine the influence of managerial members; section [65] provides a similar incentive to employers. These provisions, together with the bargaining unit's ultimate remedy of changing or terminating its bargaining agent, are the safeguards the legislature has decided to provide for "conflicts of interest" in a system of free collective bargaining in which the concern for viable and independent bargaining representatives must share attention with the concern for the freedom to choose bargaining representatives on a majoritarian basis.

60. We agree with the views expressed in the York 1 decision and with those cases cited above which have adopted a similar approach. We are also satisfied that this reasoning is pertinent to the circumstances of a successorship application. Contrary to employer counsel's suggestion, the Board's rejection of the "employees only" theory does not rest upon the peculiarities of the certifi­cation context. In this respect, the Board's approach to the matter cannot be characterized as a reluctance to consider the membership of non-employees in determining whether or not an organi­zation is a "trade union" premised upon a margin of error granted to trade unions faced with uncertainty as to the employee status of persons during organizing drives. Rather, the Board's con­clusion that membership by non-employees will not preclude an organization from being consid­ered a trade union is based upon a reading of the Act as a whole, and in particular, upon careful consideration of the function of the definitional provisions of section 1(1) of the Act in establishing and preserving the arm's length relationship between management and a trade union. In short, the Board has concluded that the composition of an organization's membership, although in certain circumstances relevant to the question of whether a trade union is dominated by the employer (see in this respect Hydro 11, supra) , does not enter into the question as to whether that organization is a trade union.

61. To similar effect, we cannot accept that the fact that the constitution of the Association permits the membership of non-employees has any bearing as to whether or not the Association is or was a trade union. In this regard, counsel for the employer urged us to consider that the Associ­ation's constitution bespoke an intention to admit non-employees. Once again, that argument rests upon the premise, which we have rejected, that membership of non-employees in trade unions is a

matter of forbearance by the Board. As the York I case makes clear, the structure of the Act, including the very definitional language relied upon by the employer, does not merely tolerate membership by non-employees, it contemplates it. For that reason, the Board fails to understand how an organization's express intention to do what is contemplated by the Act could, in effect, dis­qualify it from invoking its provisions.

11. Accordingly, the Board responds to the question before us in the negative, and thus, we conclude that the fact that the constitution of the Association permits the admission of non-em­ployees and that it in fact does so would not in itself prevent the Association from being considered a trade union within the meaning of the Act.

12. Having reviewed the voluminous materials filed by the parties with respect to the remaining issues in the present application, the Board is concerned over the expense, delay and disruption that would be entailed were the litigation of this application to proceed in its presently contemplated form. Accordingly, before the Board will resume hearings in the present application, the parties are directed to once again meet for a pre-hearing conference in order to attempt the resolution of their differences through alternate means or at the very least, to narrow the issues between them. The time and place of such conference are to be determined in consultation with the Registrar of the Board.

13. The matter is referred to the Registrar.