Canadian Food and Allied Workers' Union v. Caterair Chateau Canada Limited, 1994 CanLII 9903

[1994] OLRB Rep. April 365

3629-93-R Canadian Food and Allied Workers' Union, Applicant v. Caterair Cha­teau Canada Limited, Responding Party v. Hotel Employee's Restaurant Employ­ee's Union Local 75, Intervenor

BEFORE: Roman Stoykewych, Vice-Chair, and Board Members G. 0. Shamanski and H. Pea­cock.

DECISION OF THE BOARD; April19, 1994

1. This is an application for certification. In a decision dated April 7, 1994, the Board cer­tified the applicant as the bargaining agent of employees of the responding party employer. Since the applicant had not previously established before the Board that it is a "trade union" within the meaning of section 1(1) of the Labour Relations Act it was required to adduce proof of its status at a hearing held on February 21, 1994. In a decision dated March 4, 1994, the Board found that the applicant was a "trade union". The following are the Board's reasons for that finding.

2. The definition of "trade union" is found in section 1(1) of the Act and reads as follows:

"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.

3. It was the evidence of Glen Hempel, who was the sole witness called by the applicant, that an organizational meeting was held on January 16, 1994 in a hotel room adjacent to the work­place of the employees concerned in this application. The purpose of the meeting was to discuss the formation of a trade union. Hempel stated that the employees in the bargaining unit presently at the respondent's operations had for some time been dissatisfied with the quality of representa­tion provided by the incumbent trade union, and that the trade union he was seeking to form was for the express purpose of displacing the incumbent. Although he claimed that "word of mouth" notice was provided to the approximately 450 employees in the bargaining unit, only nine persons attended at the meeting. Upon the commencement of the meeting, it was unanimously agreed that a trade union should be "set up" for purposes of collective bargaining and more specifically, for the purpose of initiating the present displacement application. A constitution document, which had been prepared by the applicant's solicitor, was then placed before those attending at the meeting, and after two amendments, was unanimously agreed upon.

4. Gne of those amendments concerned the quorum requirement for the transaction of union business. Although the evidence was less than entirely clear, the Board finds that the requirement of Article 7(d), which in its draft form imposed a quorum requirement of "Twenty­Five (25%) percent of the total membership in good standing", were amended to read:

5. Membership Meetings

d) Quorum

Twenty-Five (25) members in good standing shall constitute a quorum at a regular or special membership meeting for the legal transaction of business.

In addition, Article S of the draft Constitution document, which for reasons undisclosed, stated that "The constitution was effected on February 17th, 1993" was amended to reflect a commence­ment date of January 16, 1994.

5. As indicated above, only nine persons were present at the time. Nevertheless, the amendments, which were discussed at the meeting, were passed unaminously and the handwritten amendments to the document were duly initialled by all those attending. Gfficers were then acclaimed, there evidently being no contest for the positions, and it appears that the attendees at the meeting each assumed an executive position. Gnly after these matters were dealt with did those present take any steps to become members of the organization. This was accomplished by signing union membership cards which were distributed at the meeting. There was no further step taken by the newly-formed "membership" to ratify the constitution that had been approved, nor was there any discussion of dues or membership fees that may be required to finance the operation of the organization. In this respect, it was the evidence of Hempel that, in the period between the forma­tion of the organization and its eventual certification as the bargaining agent of the employees at Caterair, the executive would direct the organization and would contribute the necessary financing "out of their pockets". Indeed, although there is no specific provision in the constitution permit­ting such a practice, it is clear that the executive styled itself as an interim one pending certification and that elections for officers would be reheld in order to provide "all members and employees at Caterair" an opportunity to vote.

6. Based on the above facts, counsel for the intervenor trade union argued that the neces­sary prerequisites for trade union status had not been established by the applicant. In particular, counsel referred to the "five step" procedure set out in Local 199 U.A.W. Building Corporation, [1977] GLRB Rep. July 472, that, he contended, it was necessary for an applicant to undertake before the Board would confer trade union status upon an organization:

7. A constitution should be drafted setting out, among other things, the purpose of the organization (which must include the regulation of labour relations) and the proce­dure for electing officers and calling meetings;

8. the constitution must be placed before a meeting of employees for approval;

9. the employees attending such a meeting should be admitted to membership;

10. the constitution should be adopted or ratified by the vote of said members;

11. officers should be elected pursuant to the constitution.

12. Counsel argued that the applicant's failure to abide by this relatively simple procedure was a basis for the Board refusing to recognize the applicant as a trade union under the Act. It was argued that the failure of the applicant to have its constitution ratified by the membership, and its failure to demonstrate the requisite quorum for any of the business it carried on at the January 16, 1994 meeting resulted in an organization without a constitution or validly elected officers and, in turn, created members of an non-existent organization. The Board's procedures are clear, simple and served the important purpose of ensuring the viability of an organization seeking trade union status, and that for this reason, it was submitted, those rules ought to be stringently enforced. Counsel relied upon G.K.L. Industries Ltd., [1985] OLRB Rep. Gct. 1464 and National Steel Car Corporation Limited, [1979] OLRB Rep. June 542 in support of that proposition.

13. While the "five step" procedure set out by the Board in U.A. W. Building Corporation, supra, remains a useful guideline both for the Board in determining the status of a trade union under the Act and for persons wishing to form a trade union, the Board has made it clear that that procedure is not the exclusive manner of establishing a trade union. (See, for example, Service Employees International Union, [1991] OLRB Rep. Feb. 267; Local 199 U.A. W. Building Corporation, supra.) As counsel for the applicant points out, in circumstances where the formation of the trade union has trans­pired at a single meeting, the Board has not required a strict adherence to the sequence of steps. (Proctor-Lewyti, [1969] OLRB Rep. Sept. 760.) Moreover, although the procedure contemplated by the "five steps" is for members to signify their intention to be bound by the provisions of a constitution in a process of formal application to membership followed by ratification, the Board has found other procedures to be sufficient evidence of the formation of the organization. Thus the Board has found that it is sufficient evidence of the organization's forma­tion and ratification of its constitution where the purported members of the union were named in the constitution and then subsequently signed the constitution agreeing to be bound by it terms. (Comco Metal and Plastic Industries Ltd., (1979] OLRB Rep. June 498.) Similarly, while the Board has stressed the importance of the organization seeking trade union status having an identi­fiable set of officers as an indication of its viability (see Service Employees Union, sup ra.), never­theless the Board has accepted as sufficient the election of a temporary committee, even in the absence of a provision in the constitution contemplating such committee. (Gold Crest Products Ltd., [1973] OLRB Rep. Aug. 436) More generally, the Board is interested in the substantial, rather than technical, compliance with the procedural steps involved in the formation of the trade union, since the purpose of its inquiry is not so much in ensuring that the precise requirements of the constitution are followed rather than ascertaining that the organization seeking trade union sta­tus is a viable one for the purpose of carrying out its obligations under the Act.

14. Although the procedure adopted by the present applicant was not one that most clearly expressed the purposes of the participants, when the evidence is considered as a whole, the Board is satisfied that the actions taken at the January 16, 1994 organizational meeting were sufficient so as to create an organization, to admit its members, and to approve its constitution. In reaching this conclusion, the Board has paid particular attention to the manifest intention of the participants, which was to create a trade union for the purpose of this application. In this respect, the Board notes that the employees attending the meeting expressly stated this to be their purpose and then unequivocally approved a constitution document in a procedure marked by a relatively high level of formality. The Board notes that the employees amended the constitution so as to be effective as of the date of their meeting, and then initialled such amendment. From these actions we infer an intention on the part of those present to be bound by the provisions of the constitution.

15. We cannot agree that this intention is defeated merely because the employees were not yet members of the organization at the time they agreed to be bound by the constitution. The evi­dence is clear that the employees signed membership documents, which signalled an unequivocal intention to join the organization, within minutes of their agreement to be bound by the terms of its constitution. In the Board's view, it would be an unduly technical interpretation of the events of the meeting to consider the "steps" taken by the employees as discrete stages of a proce­dure rather than as a single unified process. Even more tortuous would be the inference, suggested by the intervenor, that the employees had merely "approved" (step 2) rather than "ratified" (step 4) a constitution only because they had neglected to undertake the rather counter-intuitive procedure of agreeing to a document twice at the same meeting. In a context where approval of the constitu­tion and membership in the organization occur virtually simultaneously and are performed by pre­cisely the same participants, such a distinction is a highly artificial one. Moreover, in our view, it would inject an unnecessary level of formality into the process of self-organization were the proce­dure emanating from that distinction to become a mandatory step in the formation of a trade union. Instead, the Board is prepared to view the actions taken by the employees at the January 16, 1994 meeting in their totality, and is satisfied that by agreeing to be bound by the terms of the constitution, and then immediately applying for membership in that organization, the employees satisfied the Board's requirements as to the formation of the organization.

16. Finally, the Board is not prepared to conclude that the requirements of trade union sta­tus are not satisfied on the basis of the applicant's alleged failure to abide by the "quorum" requirements set out in the constitution document nor on the basis that there is no provision in the constitution for an "interim" executive. The Board notes that, unlike some constitutions that have been placed before it, the present constitution does not set out any procedure with respect to its own ratification or amendment. Furthermore, it is by no means clear that the process of adoption and ratification is either a "regular" or "special membership meeting" as contemplated in Article 7 of the applicant's constitution. Bearing this in mind, it is at the very least an arguable proposition that the participants involved in the process of the ratification of the applicant's constitution were not, in a general sense, bound by its terms or that if they were, that the meeting of January 16, 1994 was one to which the quorum requirements had no application. However, the Board declines to make any ruling in this respect, as we are satisfied that the procedures adopted by the applicant, under the circumstances at the time were in substantial compliance with the constitution. In partic­ular, the Board notes that at the meeting, all the existing, or more precisely, soon-to-be, founding members of the organization had an opportunity to participate in its proceedings. As a result, the mischief sought to be redressed by a quorum requirement could not arise.

17. It is important to note that the Board is far less concerned with the minute issues of con­stitutionality of the actions of an organization seeking trade union status than with determining its organizational viability and its ability to carry out the statutory obligations placed upon trade unions by the Act. In this respect, the Board is concerned with the constitution only as evidence of the existence of a viable organization and, therefore whether it is a trade union under the Act. (Re C.S.A.0. National (Inc.) and Oakville Trafalgar Memorial Hospital Association, [1972] G.R. (2d) 498.) For this reason, in Gold Crest, supra, the Board was satisfied as to the trade union status of an organization that had, in clear contravention of the terms of its constitution, elected an interim executive, when it was otherwise an viable organization. The Board declined to enter into an inquiry with respect to the constitutionality of the actions of the interim executive, noting that the constitutionality of the appointment process was an issue which is of concern to the membership of the trade union, not of the Board. We are in full agreement with the policy expressed in Gold Crest, supra, and find it of particular relevance to the present application. The present applicant has, under circumstances where only a fraction of its potential membership was present to vote, adopted the entirely reasonable procedure of deferring a full election of officers until certification. Whatever the constitutionality of that appointment process might be, we are satisfied that the appropriate officers are in place to effect the purposes of the organization which include the carry­ing out of a trade union's responsibilities under the Act. Accordingly, we are not persuaded that the interim basis of the appointment of the executive constitutes an impediment to the applicant's trade union status.

18. For these reasons, the Board found that the applicant is a "trade union" within the meaning of section 1(1) of the Labour Relations Act.