[1995] OLRB Rep. July 954
4399-94-R International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, Local 173, Applicant v. International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, Locals 105, 257, 357, 461, 467, 580, 582 & 634 and Famous Players Inc. and Cineplex Odeon Corporation et al., Responding Parties
BEFORE: R. O. MacDowell, Alternate Chair.
APPEARANCES: B. Fishbein for the applicant; Harry Freedman for Famous Players Inc.; Brian Wylynko for Cineplex Odeon Corporation.
DECISION OF THE BOARD; July 20, 1995
1In order to make this decision easier to read, the unions and employers involved in the case, will sometimes be referred to in abbreviated form. The International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada will be referred to simply as "IATSE", or "the parent union". "Local unions" chartered by IATSE will be referred to by their Local union number - for example, the applicant is "IATSE Local 173". The responding employers that are opposing this application will be referred to individually as "Famous Players" and "Cineplex Odeon", and collectively as the "objecting employers". The employers that are not opposing the application will not be separately identified.
I
2This is an application under section 63 of the Labour Relations Act. IATSE Local 173
claims that, as a result of an internal union re-organization (to use a neutral term for the moment),
Local 173 has become the "successor" of Locals 105, 257, 357, 461, 467, 580, 582 and 634. Local 173 urges the Board to declare that it has therefore acquired the rights, privileges and duties under the Labour Relations Act of these various "predecessor" local unions. Section 63 reads as follows:
63.- (1) where a trade union claims that by reason of a merger or amalgamation or a transfer of jurisdiction it is the successor of a trade union that at the time of the merger, amalgamation or transfer of jurisdiction was the bargaining agent of a unit of employees of an employer and any question arises in respect of its rights to act as the successor, the Board, in any proceeding before it or on the application of any person or trade union concerned, may declare that the successor has or has not, as the case may be, acquired the rights, privileges and duties under this Act of its predecessor, or the Board may dismiss the application.
(2) Before issuing a declaration under subsection (1), the Board may make such inquiry, require the production of such evidence or hold such representation votes as it considers appropriate.
(3) Where the Board makes an affirmative declaration under subsection (1), the successor shall for the purposes of this Act be conclusively presumed to have acquired the rights, privileges and duties of its predecessor, whether under a collective agreement or otherwise, and the employer, the successor and the employees concerned shall recognize such status in all respects.
3A hearing in this matter was held, in Toronto, on June 28, 1995. Notice of that hearing was given to all of the employers and all of the employees potentially affected by the declaration sought by Local 173.
4Of the 20 employers listed on Schedule "A" to the application, only Famous Players and Cineplex Odeon appeared to oppose it. The National Arts Centre replied that it operated in federal jurisdiction, and thus proposed to take no part in the proceeding. The other named employers raised no objection; so, as far as they are concerned, this application is unopposed.
5None of the employees or union members potentially affected by this application appeared at the hearing to raise any objection to the declaration sought by Local 173. Two individuals did write to the Board prior to the hearing: one to indicate that he had not been an employee at the time of the internal re-organization on which the application is based, and another to indicate only that he was opposed to being represented by Local 173.
6However, in the absence of evidence or elaboration, I am unable to say much more than that - and, in particular, whether either of these individuals actually are "projectionists" who might be affected by the transaction under review, or whether they are actually employees in any of the bargaining units to which a section 63 declaration might apply. It is not clear whether either of these individuals was on the union's membership rolls at the relevant time; and there is some indication in the documentary material before me, that they might not have been union members (although I was also told that there is a lot of sporadic or part-time employment in the industry). There is no reason given for the opposition recorded, and no objection taken to the constitutional process that Local 173 undertook in an effort to become the successor of its sister locals. In the circumstances, therefore, I am not inclined to give these submissions much weight. All that can really be said is that two persons in Thunder Bay do not wish to be represented by Local 173 in their relationship with whoever employs them from time to time (they are not necessarily employees of Famous Players or Cineplex Odeon).
7On the other hand, it is evident that the majority of union members support both the re-organization process undertaken by IATSE and its named locals, and the result which Local 173 seeks to confirm by a declaration under section 63 of the Act. Similarly, this application is supported by all of the local unions involved, and by the parent union and its executive board. And of the employers named in the application, only Famous Players and Cineplex Odeon were opposed.
8The background is not substantially in dispute. However, before reviewing those facts, it may be useful to record some of the provisions of the union constitution to which reference will be made later:
ARTICLE TWO
Government
Section 2. Convention
The supreme governmental powers of this Alliance and its constituent members shall be vested in its duly elected delegates in Convention assembled and when the Convention is not in session, in the International Officers duly elected by the delegates or appointed in accordance with the laws herein provided.
Section 4. Local Unions
Each affiliate local union, subject to the laws of this Alliance, shall exercise full and complete control over its own membership and affairs.
This provision shall not be construed to confer upon local unions the power to enact laws inconsistent with any portion of this Constitution and By-Laws.
ARTICLE SEVEN
The International President
Section 6. Interpret Constitution and By-Laws
The laws of this Alliance as contained in this Constitution and By-Laws shall be interpreted by the International President and his decision thereon shall be binding upon all individual members and affiliated local unions of the Alliance until amended or reversed in the manner hereafter provided.
The International President shall render decisions upon questions of law where the Constitution and By-Laws contain no express provisions for the determination thereof. His ruling upon such questions shall be made in conformity with the spirit and substance of the Constitution and ByLaws and with regard to the equities of the circumstances.
Any decision of the International President, rendered pursuant to the provisions of this Section, shall be subject to appeal to the General Executive Board in the manner provided hereafter in Article Seventeen.
ARTICLE TWENTY-SIX
Definitions
Section 6. Jurisdiction
The term "jurisdiction" as used in this Constitution and By-Laws shall be construed to mean the
sphere of control over employment in certain crafts within certain defined geographical areas.
ARTICLE EIGHTEEN
Charters
Section 9. Jurisdiction of Charters
a. The working jurisdiction of affiliated local unions shall be expressly limited to that defined by the charters issued to them respectively by the Alliance.
b. Unless otherwise provided by the charter issued by the Alliance to a local union, its geographic jurisdiction shall include the territory extending in any direction halfway to the nearest affiliated local union of the Alliance.
c. when a new charter is issued by this Alliance, all members of affiliated local unions employed within the jurisdiction of such new local union must, within a period of ninety (90) days, transfer from their former local union and take out membership cards in the newly chartered local union; provided, however, that such members shall not be obliged by the new local union to pay an initiation fee in excess of Five Dollars ($5.00). Members failing to transfer as herein provided shall be obliged to withdraw from the jurisdiction of the new local union at its demand.
f. If an affiliated local union fails or refuses to order its members to withdraw from the jurisdiction of another affiliated local union when ordered to do so by the International President, the local union in whose jurisdiction the member is working may file a charge with the International President against the home local and if the home local is found guilty of such charge after trial, it shall be subject to such penalty as the International President shall deem appropriate.
Section 10. Classes of Charters
a. Stage Employees. Full and direct stage employees' charters shall be construed as conferring jurisdiction upon the local unions to which they are issued over stage carpenters, property persons, stage electricians and all other stage employees; subject, however, to such other classes of charters as have been or may be subsequently issued by the Alliance.
b. Moving Picture Machine Operators. Full and direct moving picture machine operators' charters shall be construed as conferring upon the local unions to which they are issued by the Alliance jurisdiction over all employees of operating rooms and operators of apparatus and any connections appertaining thereto in locations where moving pictures are exhibited and also over the operators of all spot lights in conjunction with moving picture exhibitions, when such spotlights are located within the operating room or moving picture booth, and further confers jurisdiction over the operators of all stereopticons, within moving picture booths in all cities. This jurisdiction shall not apply to the operating of stereopticons outside a moving picture booth in connection with a show as a stage effect. No member of a moving picture machine operators' local union shall be permitted to operate any stage lights, scenery, or curtains from the front of the theatre operated by remote control or otherwise, where operation would displace a stage employee.
c. Mixed Charters. Mixed charters shall confer upon the local unions to which they are issued the right to accept into membership any person qualified to hold any of the various positions in a theatre which are within the jurisdiction of the International Alliance. Members of such local unions are permitted to accept any position within the territorial jurisdiction of the local unions, either on the stage or in the moving picture booth, and are also permitted to go on tour in the capacity of stage employees or moving picture machine operators.
[and many other craft subdivisions]
Section 13. Transfer of Members or Mergers
Subject to ratification by the International President, two or more affiliated Local Unions shall have the right to transfer all or part of their respective membership to any one of such Local Unions provided that such action is first approved by secret vote of a majority of the members in good standing in attendance and voting at a regular meeting of each affected Local Union. Notice of such contemplated voting shall be sent by mail to every member at least fifteen (15) days prior to such meeting of the Local Union.
9Of course, the employers have no rights or duties under the union constitution, nor could they press a claim under the constitution. Only a member of the union could do that. And, strictly speaking, the issue before the Board is whether in all the circumstances it should declare that the applicant has or has not acquired the rights, privileges or duties under the Labour Relations Act of the named local unions. The Board is not usurping the function of the courts to enforce the union constitution or adjudicate the rights of members inter se (which as noted, are not being debated by the members in any event). The Board is merely deciding whether one union should be substituted for another as the employees'/members' statutory bargaining agent. Nevertheless, what the union did and how it did it are obviously relevant to the Board's task under section 63.
II
10IATSE is an international union with members in the United States and Canada. Like
many trade unions, IATSE is subdivided for administrative and collective bargaining purposes into smaller "local" unions, that cover a specific geographic jurisdiction and one or more classes of employees.
11IATSE and its chartered locals are all "trade unions" within the meaning of section 1 of the Labour Relations Act. They are all employee organizations formed for purposes that include collective bargaining. A local union remains a distinct "trade union" under the Act, even though it is affiliated and subordinate to a parent union body.
12IATSE is a "craft union" - that is, it commonly represents employees with defined skills; and in IATSE's case, those workers and skills commonly are employed in the entertainment industry (see section 6(3) of the Act). What IATSE means by its "jurisdiction" is set in Article 26(6) of the union constitution, as amplified by Articles 9 and 10. Those provisions describe the geographic jurisdiction of local unions that are chartered by IATSE, and the classes of employees who may be grouped under the umbrella of a single chartered local.
13Apart from having a geographic territory, an IATSE local union may encompass a particular group of skilled members (stage employees, projectionists, camera persons, laboratory film/video technicians, make-up artist, etc.). Alternatively a chartered local may be constituted as a "mixed local" that offers membership to anyone qualified to hold any of the various positions in a theatre that are within the "jurisdiction" of IATSE. As its name suggests, a mixed local is an umbrella organization that embraces members with different skill sets.
14All of the locals involved in this proceeding are governed by the IATSE constitution. That constitution gives the parent union considerable latitude to regulate the union's internal structure and affairs of the union. For example, Articles 19(21) and 19(29) [not reproduced above] permit the International President to settle any dispute between locals respecting their respective jurisdictions, and even to merge locals without a vote of the members concerned.
15With two exceptions, all of the locals involved in this proceeding are "mixed locals" with a defined geographic jurisdiction (territory) but diverse membership. Their respective territories can be summarized schematically as follows:
Local 105 - (mixed local) - London & Sarnia area
Local 357 - (mixed local) - Kitchener, Waterloo, Guelph, Cambridge & Stratford area
Local 461 - (mixed local) - St. Catharines & Niagara area
Local 467 - (mixed local) - Thunder Bay area
Local 580 - (mixed local) - Windsor area
Local 582 - (mixed local) - Brantford area
Local 634 - (mixed local) - Sudbury & North Bay area
16One of the exceptions is Local 257 (Ottawa, Brockville & Cornwall area) which is composed solely of projectionists. The other exception is Local 173 itself, which has jurisdiction with respect to moving picture operators and projectionists in the Toronto, Peterborough, Kingston and Belleville areas.
17The present rather broad reach of Local 173 results from an earlier merger or transfer of jurisdiction involving the former Local 528 of IATSE, which once operated in Kingston and Belleville. That merger/transfer of jurisdiction expanded Local 173's previous territory to include Kingston and Belleville, and was the subject of an earlier application to the Board pursuant to what was then section 62 [now 63] of the Act. In that earlier application Local 173 was declared to be the successor of Local 528 for projectionists in these geographic areas (see the decisions of the Board in Files 1298-91-R and 0607-92-R).
18I will have more to say later about the Board's decision in OLRB File No. 1298-91-R. For present purposes, it suffices to note that Local 528 was a "mixed local" which some years ago purported to transfer its "projectionist jurisdiction" in Kingston and Belleville to Local 173; and the Board subsequently issued a declaration confirming the expansion of Local 173 and its status as a "successor" under section 62 [now section 63] of the Act.
19With the exception of Local 173, each of the geographic locals mentioned above, represents a relatively small number of members and an even smaller number of projectionists. Many of the locals have been decreasing in size, and, as a result, have been finding it difficult to administer themselves or engage effectively in collective bargaining negotiations. By contrast, employers such as Cineplex Odeon or Famous Players have a national presence and can present a unified front at the bargaining table, playing upon any apparent union weaknesses at the local level.
20This is obviously an undesirable situation from the union members' point of view; and, as a result, with the encouragement of the parent union, there have been numerous local meetings to discuss the desirability of an overall merger of the various locals, or the transfer of the "projectionists jurisdiction" from the mixed locals to a single larger "projectionist local" that would cover most if not all of Ontario. The logical recipient of that expanded authority was Local 173, which already represented projectionists in a number of theatres in the Toronto - Peterborough - Kingston - Belleville areas, as a result of the earlier re-organization involving the now defunct Local 528.
21After many meetings between representatives of IATSE and its various locals, it was eventually decided that the projectionist members would be better served if the smaller pure projectionists' locals were merged into Local 173, and if the mixed locals' jurisdiction over projectionists were transferred to Local 173. An agreement to that effect was concluded on March 23, 1994. It reads as follows:
MERGER AGREEMENT
The undersigned locals of the I.A.T.S.E. each agree with the other to amalgamate or merge with or transfer their projection jurisdiction to Local 173 on the terms and conditions attached hereto and to recommend approval to their membership at meetings held in accordance with the
I.A.T.S.E. constitution.
DATED at TORONTO this 23rd day of March, 1994.
This agreement [attached schedules omitted] was intended to conform to section 63 of the Labour Relations Act, and was signed on behalf of each of the local unions involved in this proceeding. It was also signed by IATSE Local 303 (Hamilton) which is not involved in this proceeding.
22The proposed re-organization (merger, amalgamation or transfer of jurisdiction as the case may be) was considered by the membership of each local union, at a local union meeting called for that purpose. Except for Local 257, notice that the proposal would be discussed and voted upon was sent at least 15 days prior to the date of the meeting. In the case Local 257, notice was sent 12 days in advance of the meeting because of some difficulties in arranging for a suitable meeting place. None of the members of these locals has complained that the notice or voting process were inadequate in any way.
23In each case, a secret ballot was conducted to poll the members wishes with respect to
the proposal mentioned above. At each local meeting, a majority of the members present voted in favour of the proposed re-organization - which in the case of the mixed locals was intended to transfer "jurisdiction" over projectionists and existing projectionist members to Local 173, and in the case of Local 257, a pure projectionist local, was intended to merge Local 257 and its membership with Local 173. In other words, the agreement that had been signed and confirmed by the local union officials in March 1994, was ratified by each local union's membership in accordance with its terms and what the participants all thought was required by the IATSE constitution (and section 63 of the Labour Relations Act). They were doing on a larger scale, what Local 173 and Local 528 had done some years ago.
24It is important to note therefore, that no member of the union has challenged or questioned either the process undertaken by the parent and local unions, or the ultimate result. No member asserts that there is any constitutional defect in what was done, nor has there been any challenge of that kind filed under the union constitution, or any protest to the executive board, or any action in any court. So far as I can determine on the evidence before me, the members of the union are content with both the process and the result - which, as noted, was intended to strengthen their hand at the bargaining table, and facilitate dealing with (among others) the large national employers who are objecting to the re-organization. The objective of the re-organization are consistent with the purposes of the union set out in Article 1(2) of its constitution.
25The membership of Local 303 (Hamilton) did not approve the proposed re-organization, and in consequence, that local retains its projectionist members and its jurisdiction over projectionists in the Hamilton area. For that reason, Local 303 is not a party to these proceedings.
26I should also reiterate that this is not the first time that the union has purported to effect a merger or "transfer of jurisdiction" in the manner described above. It has been done this way on a number of occasions in Canada and the United States, without any problems or protests from members or from employees.
27One example that I have already mentioned concerned Local 528 in Kingston, that was once a "mixed local" which had both a projectionist and stage jurisdiction - i.e. members who had these skills or trades. Local 528's projection jurisdiction was transferred to Local 173 in Toronto. Its stage jurisdiction was transferred to Local 471 in Ottawa. Both transactions were the subject of applications for a successor trade declaration, made pursuant to what was then section 62 [and is now section 63] of the Act, and in both instances, declarations were granted by the Board without any controversy (in June and July 1992 - see Board File No. 1298-92-R and 0607-92-R).
28Indeed, the transaction involving Local 528 deserves further examination, because it appears to have been both legally and factually identical to the one currently under review, and was considered by the Board in File No. 1298-92-R where the responding parties were Cineplex Odeon and Famous Players. Not only has IATSE undertaken a transfer of projection jurisdiction before, but the objecting employers were involved before.
29In Board File 1298-92-R, the Board had before it a transaction in which Local 528 had supposedly transferred its projectionist jurisdiction to Local 173 in much the same manner that the various Locals in the instant case are trying to do now. The responding employers in that file were Famous Players and Cineplex Odeon. But in this earlier instance, Cineplex Odeon and Famous Players did not raise any objection to the request for a successor rights declaration, which was eventually granted by the Board. And thereafter, Local 173 possessed whatever rights or 6bligations under the Act it had inherited from Local 528.
30In short, in each of these earlier files, the Board made a successor union declaration
where there was a re-organization similar to the one undertaken in this case (albeit a more limited one); and in each case the re-organization was undertaken pursuant to Article 18(3) of the IATSE constitution, which is what the union parties thought was the proper foundation. In each of these earlier files the Board made a successor rights declaration. And in one of those earlier cases, Famous Players and Cineplex Odeon were both involved as parties to the litigation, but raised no objection to the declaration sought by Local 173.
31Local 173 contends that these objecting employers cannot now oppose an identical transaction which, as before, involves a merger or transfer of jurisdiction undertaken under Article 18 of the union constitution. Counsel points out that the Board has already made a successorship declaration based upon the union's reading of its constitution, and the Board made that determination in a proceeding where Famous Players and Cineplex Odeon had an opportunity to litigate any alleged constitutional irregularities. But they chose not to raise any objections at all.
32At this point, I do not propose to discuss whether the issues now raised by the objecting employers are precluded by the doctrines of "res judicata" or "issue estoppel", or whether those doctrines are applicable to what might be described as a "default judgement", or whether in any event, they are principles that bind the Board in the exercise of its authority to administer the Labour Relations Act. At this point, I note only that what the unions claim is a valid transfer of jurisdiction, has been undertaken on numerous occasions in the past without objection, has been sanctioned by the Board before under the successorship provisions of the Act, and on at least one occasion has been accepted without objection by Famous Players and Cineplex Odeon.
33In other words, the union's proposed interpretation of its Constitution is consistent with the way that it has done things in the past, without complaint from its members or employers -including the present objectors. And whatever weight is ultimately given to constitutional convention or the union parties' intentions, there is really no dispute about that constitutional practice or what the members and officers of the parent and local unions were trying to accomplish: a larger more effective bargaining agent for projectionists. Nor is this a case like Astgen v. Smith 1969 CanLII 488 (ON CA), [1970] 1 O.R. 129 or The Great Atlantic and Pacific Company of Canada Limited [1993] OLRB Rep Sept. 885, where it was union officers and members who were challenging the constitutional propriety of what had been done. Here, there is no quarrel within the union family about what their constitution means or permits.
III
34Before returning to the terms of the union constitution and the internal restructuring under review, it may be useful to briefly record what section 63 is for, and why it is necessary.
35At common law, a trade union was an unincorporated association of workers who banded together to promote their common objectives, and bound themselves to each other in accordance with terms spelled out in the union constitution. The union, as such, had no legal existence separate from its members. The union was its members, who were bound together in a contractual matrix. At common law, a union was a kind of "club" - a so-called "voluntary association" in which membership rights were contractual in nature, and could be determined with reference to the union constitution (and perhaps by the "custom and practice of the trade").
36However, under the Labour Relations Act, a trade is not like that at all. Under the Act,
a union does have an identity distinct from its members, as well as statutory rights and obligations
which obtain regardless of the terms of its constitution or the wishes of the members. Under the
Labour Relations Act, a union is defined as a collective bargaining mechanism (see section 1 of the Act). That is its fundamental or defining characteristic from a statutory point of view; and that is the only thing that its constitution must clearly specify.
37From a statutory perspective, the primary focus is on the union as exclusive (statutory) bargaining agent for a group of employees (not just members) who work for an employer. Under the Labour Relations Act, the union is the entity that can acquire and exercise bargaining rights in respect of those employees. The Act is not much concerned with internal union affairs, the rights of union members qua members, or the relationship of members to each other. In fact, for some statutory purposes - including the creation of bargaining rights - the Act has a rather special definition of "membership", that may not even conform to the definitions in the union's constitution (see sections 8 and 105 of the Act).
38Under the Labour Relations Act, a union can acquire bargaining rights on behalf of members and non-members alike (indeed, based on mere applications for membership - again see section 8); moreover, it can retain those bargaining rights regardless of the subsequent ebb and flow of membership, or the change in the number or composition of the employees in the bargaining unit it represents. A trade union can even exact dues from persons who are not its members and can compel membership as a condition of employment. In this regard, the union may not be a "voluntary association" at all.
39Under the Labour Relations Act, a trade union has statutory obligations in respect of members and non-members alike (see section 69 of the Act), and in many of its most important decisions - a strike for example - it may be obliged to seek the consent of employees who are not members (see section 74 of the Act). In short, under the Labour Relations Act, a trade union is not at all like the "voluntary association" of workers contemplated by the common law. Nor, for the most part, is the statute particularly concerned with the internal affairs of a trade union - the way a union is organized or run, eligibility for office, the incidents of membership, the ownership and disposition of assets, and so on. The internal affairs of the union are a matter for its members to govern as they see fit under the terms of their constitution (some exceptions are sections 74(4)-(6), sections 84-89, and the recently added sections 138.1 - 138.6.) And whatever the "status" of a trade union at common law, union institutions play a critical role in a statutory scheme designed to foster statutory objectives (see section 2.1 of the Act).
40But there is at least one situation in which the union's internal re-ordering could have an impact on its role as bargaining agent, and could generate difficulties for an employer - and that is where there has been some change in the actual identity of the union bargaining party, or some alteration of its apparent authority to bargain on behalf of the employees it represents. It is in those circumstances that section 63 can be applied to clarify the situation and to ensure that orderly collective bargaining can continue, despite a re-organization on the "union side of the bargaining table". (Section 64 plays a similar role where the sale of an employer's business creates a change on the "employer side" of the bargaining table).
41Collective bargaining under the Labour Relations Act presupposes a single, identifiable, union entity that can exercise the rights and perform the obligations of the employees' exclusive bargaining agent. That is why section 43 of the Act requires a specific recognition clause. The scheme of the Act also envisages an independent trade union actor, that engages in collective bargaining on behalf of employees, free from employer influence. An employer is precluded from negotiating with anyone other than the union that is the exclusive bargaining agent representing employees in a bargaining unit (see section 67 of the Act), and an employer is also precluded from participating in or interfering with the internal workings of a union (see section 65 of the Act). The internal organization of the union is the union's own affair, and the employer can have nothing to do with it.
42It follows however, that an employer should be entitled to know, with some precision, just who the exclusive bargaining agent is, as well as its authority to represent the employer's employees. The unilateral restructuring of the union bargaining party should not disrupt or obscure the established collective bargaining framework - including the precise identity of the entity with which the employer must bargain. And if there is some question about that, the employer should be able to demand confirmation of that identity through an appropriate procedure under the Act.
43If an employer is obliged by statute to grant exclusive recognition, it is entitled to know who it is required to recognize. Its established collective bargaining relationships should not be disrupted by uncertainty or by competing claims (as in A & P above, where two union organizations both claimed to represent the employees in question, and the employer was caught in the middle).
44Ordinarily, the identity of the bargaining agent is sorted out and fixed on an application for certification, in which a parent trade union or a local is "certified" by the Board as the exclusive bargaining agent for a defined group of employees. Such certification applications can occur in an unorganized setting where employees are choosing a union for the first time, or in a situation where one union seeks to displace another - in which case only one of them will ultimately be declared to be the employees' exclusive bargaining agent. In either case, a particular union emerges as the entity with which the employer must deal and the selection turns upon the wishes of employees.
45Now, it is conceivable that one local union could "raid" a sister local in this way, and thereby seek to acquire bargaining rights by certification. In this case for example, IATSE Local 173 could apply for certification in respect of the employees currently represented by each the other named locals. Alternatively, the parent union itself could apply for certification to displace each of its own locals - bearing in mind that the employees in each bargaining unit represented by a local are already members of both the local and the parent union. Certification could be used to accomplish what the unions seek to do under section 63; and if that route were taken, the unions' internal constitutional arrangements would be largely irrelevant.
46More commonly, though, when a parent union or related locals seek to re-organize or revise their bargaining structure, they do not raid each other in this way. Since the situation involves an internal reordering within the union family, the claim is usually based upon a purported "merger, amalgamation, or transfer of jurisdiction", which is then considered under section 63 of the Act. Section 63 provides an alternative vehicle by which a union can acquire (in a sense "inherit") the status of statutory bargaining agent.
47That is what has allegedly happened in this case; and the Board must therefore determine whether what the unions have done is sufficient to warrant a declaration that Local 173 is the successor. To put the matter colloquially: the Board must determine whether IATSE Local 173 now "stands in the shoes" of each of the other local unions.
48It is important to appreciate, however, that a declaration under section 63 of the Act does not change the terms of any collective agreement, or the terms and conditions of employment for any employees, or the collective agreement obligations of any employer. Nor does a section 63 declaration alter the internal arrangements of a trade union or settle the rights of members qua members in relation to each other - that is an issue for the courts to resolve should a member choose to raise it. A declaration under section 63 merely confirms that one union entity has acquired the rights, privileges and duties under the Labour Relations Act, formerly held by another union entity, described as its "predecessor".
49A section 63 declaration identifies and confirms the status of the union with which the employer must bargain. It does not change the terms of the bargain, or create any new rights or responsibilities - other than an obligation to recognize the union declared by the Board to be the successor. To repeat the metaphor mentioned above: a trade union declared to be a successor under section 63, merely "stands in the shoes" of the union that was there before. It has no additional rights or duties; nor does the employer.
IV
50Both counsel drew my attention to a number of Board cases involving the application of section 63 - in particular, the recent decision of the Chair in the Great Atlantic and Pacific Company of Canada Limited, [1993] OLRB Rep. Sept. 885 (see also The Bay, [1993] OLRB Rep. Dec. 1350) which itself contains a review of many of the cases. I do not think that it is necessary to duplicate that analysis here. It suffices to say that, viewed as a whole, the cases under section 63 [formerly 62] illustrate two Board concerns:
(1) that the underlying transaction (the "merger, amalgamation or transfer of jurisdiction") must have been undertaken in substantial (if not complete) compliance with constitutional norms; and,
(2) that the result must generally reflect the wishes of the employees who may be affected by it.
51This second consideration flows from the nature of the exercise under section 63, which, as I have already mentioned, is rather different from what a court would undertake when adjudicating membership rights under the union's constitution. Section 63 contemplates that even if a trade union has complied with its constitutional requirements, the Board still has a discretion to declare whether or not the entity which is the "successor" (the words of the statute) has or has not acquired the statutory rights and obligations of the predecessor bargaining agent.
52The way in which section 63 is framed underlines the fact that section 63 is not fundamentally about membership rights inter se, the distribution or ownership of assets, and so on. It is about substituting one statutory bargaining agent for another, and the assumption of statutory rights and duties - including rights and responsibilities in respect of employers and non-member employees who are not bound by the constitution at all, and thus have no right to participate in constitutional processes. That is why the Board has a discretion to take into account the labour relations purpose and ramifications of the positions urged upon it, and can consult the employees affected (not just the union members) by means of a representation vote (see section 63(2) of the Act).
53To put the matter starkly: a trade union may well decide to merge etc. with another organization, or transfer jurisdiction over certain of its members and the employees it represents; and such ''predecessor” union may haven taken all of the steps under its constitution necessary to accomplish that objective. However, a trade union cannot transfer bargaining rights and obligations without the imprimatur of the Board under section 63 of the Act. Statutory rights and obligations of this kind are not union "assets" capable of unilateral transfer.
54With these general observations, I return to the terms of section 63 of the Act and the terms of the IATSE constitution. The first thing that must be considered is whether those terms
are congruent, and whether what the unions did under their constitution meets the requirements of section 63.
55Under section 63 of the Act, the terms "merger" or "amalgamation" connote the joining of two union bodies so that they become one. By contrast, the term "jurisdiction" is an elastic one, that can be used in a variety of senses, and takes its colour from the context in which it is used. It is undefined in section 63 and thus open to interpretation.
56Under the union constitution, of course, the word jurisdiction means "the sphere of control over employment in certain crafts within certain defined geographic areas". That is how the constitution defines it. The question is whether the word "jurisdiction" means something different under section 63 of the Act - or more accurately, whether the word "jurisdiction" in section 63 can encompass the constitutional meaning, so that a merger etc. under the IATSE constitution can provide the foundation for a section 63 declaration.
57I might observe, parenthetically, that there is nothing novel about the union's concept of "jurisdiction". Just as the "jurisdiction" of a court may be defined by reference to geography or subject matter, "local" trade unions may assert "jurisdiction" in particular geographic areas, and have "jurisdiction" to represent workers in particular industries or workers who do particular jobs in those geographic areas. Such assertions of organizing territory are quite common in the trade union world and often evident in name of the union - (United Steelworkers of America, United Brotherhood of Carpenters and Joiners). So it is for IATSE, which, as its name suggests, organizes and represents employees in the theatre and motion picture industry. And as noted above, IATSE locals also have a defined geographic jurisdiction.
58In Industrial and Labour Relations Terms: A Glossary (5th edition 1989 Cornell University), the word "jurisdiction" is defined this way:
"The area of jobs, skills, and industries within which a union organizes and engages in collective bargaining. International unions often assert exclusive claim to particular areas of employment."
That is a commonly understood meaning of the term when used in industrial relations parlance, as well as the meaning that one finds in the IATSE constitution.
59Is there any reason to give the word "jurisdiction" a different meaning under section 63 of the Labour Relations Act? I do not think so. In my view, the statutory term is broad enough to encompass that meaning, as well as and the notion of jurisdiction spelled out in the union constitution. Indeed, that is the meaning suggested by other provisions of the Act where the word "jurisdiction" is used.
60Where there is a "jurisdictional dispute" between two unions - that is, a claim by one union that work within its jurisdiction is being done by members of another union - the Board can sort it out under section 93 of the Act. Under section 138.1 of the Act, the term "jurisdiction~~ is defined to include "geographic, sectorial, and work jurisdiction" -in other words, a definition very similar to that found in the IATSE constitution. And section 138.3 limits the extent to which certain parent unions can tinker with a local union's "jurisdiction ... whether it was established under a constitution or otherwise .
61Now, no doubt the definition set out in section 138.1 is applicable only in that part of the Act. However, it is an inclusive definition, and there is no reason to give the term "jurisdiction" a different meaning when used elsewhere in the Act. Certainly, there is no indication that the Legislature intended some narrower meaning in section 63.
62It is also interesting to note the presence of the phrase "or otherwise" appearing in section 138.3; since, in section 138.3 the Legislature is clearly addressing its mind to union practice, union constitutions, and the relationship between parent and local union bodies. It seems to me that the presence of this phrase "or otherwise" indicates the Legislature's recognition that, under the statute at least, the union's "jurisdiction" may not be determined exclusively by the terms of the union constitution, but may have to be gleaned from the union's custom and practice. In other words, a pretty fundamental aspect of the union's organization - its "jurisdiction" - may not be apparent in the "contract" that at common law binds the members together. (See also section 105 of the Act which permits the Board to consider how the union actually operates, not merely the strictures of the union constitution).
63I am satisfied that under section 63 of the Act, the word "jurisdiction" is a term which can encompass the wide variety of ways in which a trade union chooses to define or subdivide its organizational territory; and can include one or more of: geographic delineations (the Toronto local); industrial delineations ("Steelworkers", "Autoworkers"); skill delineations ("Carpenters "Projectionists"); and so on. Thus, it makes perfect sense for IATSE to say that Local 257 had "jurisdiction" over individuals employed as projectionists in the Ottawa, Brockville and Cornwall area, and that this is a "jurisdiction" that Local 257 has sought to transfer to Local 173 (which currently represents - has "jurisdiction" over - projectionists in the Toronto, Peterborough, Kingston and Belleville areas following the earlier merger or transfer of "jurisdiction" from the now defunct Local 528). Indeed, this notion of "jurisdiction" even creeps into the collective agreements negotiated by the objecting employers. Thus, in respect of Local 105 - a mixed local covering the London and Sarnia area, Famous Players has negotiated a collective agreement which includes the following recognition clause:
The Employer recognizes the Union as the sole and exclusive bargaining agent for motion picture machine operators (hereinafter sometimes referred to as "Projectionists") employed by the Employer within the territorial jurisdiction granted to the Union by the International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the U.S. and Canada on the effective date of this Agreement.
Similarly, Local 105 and Cineplex Odeon have negotiated a collective agreement with the following recognition clause:
All motion picture, television equipment and other electronic equipment, including the projection of all films of every kind and character regardless of size, in theatres and places, (excluding Telemeter and Television equipment used for advertising purposes of the EMPLOYER, situated in the lobby, entrances and areas adjacent to the theatres and places), in which the EMPLOYER now or hereafter may maintain within the jurisdiction of Local 105, is subject to all terms of this Collective Agreement herewith set forth. All such equipment and other booth equipment requiring operation by a Projectionist shall be manned only by members of this UNION. This shall include all Projectionist of the EMPLOYER, directly or indirectly, where motion pictures are projected or run and shall include any image or sound which is projected by any use of film, screen or otherwise. It is understood and agreed that the EMPLOYER will recognize and employ members of the UNION in Telemeter Operation or similar type of operation.
64The meanings ascribed to the word "jurisdiction" in the Labour Relations Act and the IATSE constitution are congruent, and even have some currency in the unions' collective bargaining relationships with the objecting employers.
65In summary, then, all that is necessary to trigger section 63 is a "merger, amalgamation, or transfer of jurisdiction between trade unions"; and in my view that can include a transfer of geographic jurisdiction or a transfer or jurisdiction over a particular skill group, or both. And because "local unions" are independent statutory actors with their own trade union status,(see the wording of section 84 of the Act), there can be a merger of locals or a transfer of jurisdiction between locals.
66There is no reason to restrict the• phrase "transfer of jurisdiction" to situations where "one parent body [has] assigned control over one of its subordinate branches to another parent body", as the Board purported to do in Hydro-Electric Power Commission, 57 CLLC ¶18,080. That may have been a description of what was happening in 1957 when the AFL/CLC and CIO/CCL affiliated unions were digesting the creation of the AFL-CIO and the CLC, and were sorting out their respective organizing territory. But there is no support in the statute for the limited meaning for the phrase "transfer of jurisdiction" enunciated in HEPC, there was no authority for it cited at the time, and HEPC has not been regularly followed since 1957 (see for example, the discussion MLS Cable Installations Inc., [1987] OLRB Rep. Nov. 1413 which strongly suggests that HEPC is simply wrong on this point - a proposition with which I agree). In my view, the terms of section 63 are broad enough to encompass a transfer of jurisdiction between local unions - in this case from the various named IATSE locals to the applicant, IATSE Local 173.
67I am also satisfied (as the Board was in the case of Kingston Local 528), that "projectionists" constitute a defined craft grouping and an identifiable "jurisdictional" subdivision, capable of transfer between one trade union and another. The question, though, is whether the various geographically defined, but otherwise "mixed", IATSE locals have effectively transferred their "projectionist jurisdiction" to Local 173.
68Under Article 18(13) of the IATSE constitution, affiliated locals have the right to transfer all or part of their membership to another affiliated local - which is what the various locals have purportedly done here. In each case, the locals have transferred all of their projectionist members to Local 173, which is itself a projectionist local, whose "jurisdiction" was purportedly expanded geographically so that it could accept the transferees. No one disputes that the members affected were to be taken into membership by Local 173, or that Local 173 is willing and able to represent them.
69It is clear that, from the locals' perspective, there was also a complete transfer of "jurisdiction" over individuals employed as projectionists. From the locals' perspective, the transfer of all of their projectionist members and the transfer of "projectionist jurisdiction" were considered to be the same thing. It is equally clear that as a result of this transaction - a purported transfer of members and "jurisdiction" over members of that kind - Local 173 has assumed control over the employment of projectionists within its expanded geographic area, and the representation of those projectionists when they are employed by various employers. At the same time, the other locals have abandoned their sphere of control over projectionists in their own geographic area (to use the words of Article 26(6) of the union constitution).
70It is also clear from Articles 9 and 10 of the IATSE constitution that the "working jurisdiction" of each local is determinated by its Charter, which, in turn, may be confined to particular classifications or skill groups (including "projectionists") or may be open to "... any person qualified to hold any of the various persons in a theatre which are within the jurisdiction of the International Alliance ...". Here, the mixed locals have purported to remove the projectionist class from their "working jurisdiction" and have transferred them to Local 173, whose territorial and working jurisdiction is thereby expanded (Local 173 is already a "projectionists local").
71I find that this is a "transfer of jurisdiction" both in the sense contemplated by the IATSE constitution, and within the meaning of section 63 of the Labour Relations Act: there have been changes in the sphere of control over employment in certain crafts within certain defined geographical areas, and those changes were intended to alter the bargaining agents' "jurisdictions" as that term is used in section 63. The operative document contemplates a "transfer of jurisdiction" and the transferring locals, the receiving local, the parent union, and the members concerned, all thought that that was what was happening. As counsel for the unions points out, it is curious that a stranger to the constitution can suggest otherwise.
72Does it matter that Article 18(13) of the constitution contemplates a transfer of members rather than jurisdiction per se, or that the transferring locals continue in existence. In my view it does not.
73For a craft union organizing particular skill groups, the transfer of all of the projectionists from one local to another, ipso facto transferred "jurisdiction" over projectionists to the receiving locals. For a union that organizes on a craft basis, the exercise of craft skills, employment in the craft, and the jurisdiction over the craft, are all intertwined. There is no suggestion that the transferring locals wish to retain any power or authority to represent projectionists in their area or to admit them to membership. The evidence is that they do not.
74It seems to me that it is entirely artificial to suggest that a mixed local that has expressly tried to transfer its jurisdiction over projectionists to Local 173 and at the same time has transferred all projectionist members to Local 173 has not also "transferred jurisdiction over projectionists" within the meaning of both the union constitution and section 63 of the Act. Certainly, the members, the local union, and the parent union think that that is what they have done, and they seek statutory confirmation of what flows from it: a declaration under section 63 that, under the Labour Relations Act, Local 173 now has the right and obligation to represent those employee members in accordance with the scheme of rights and obligations that formerly embraced the predecessor local unions.
75I might also reiterate that the process undertaken by the unions in this case is consistent with IATSE's past practice, both in Ontario and elsewhere - including an identical transaction some years ago that involved the same employers who now raise objections. Moreover, that earlier re-organization was considered by the Board in a section 63 proceeding in which the objecting employers were both parties; and was then found by the Board to be sufficient to trigger a successorship declaration in favour of Local 173, the present applicant.
76Counsel for the objecting employers submit that the earlier decision was merely a "default judgement"; however, I do not think that that is a complete answer to the union's plea of res judicata or issue estoppel. The fact is: the objecting employers in this earlier Local 173 application did have an opportunity to raise all of the legal objections that they now wish to assert (see the remarks of Wigram V.C. in Henderson V. Henderson 67 E.R. 313, that were adopted by a panel of the Board in Napev Construction Limited, [1980] OLRB Rep. June 862).
77At the very least, past practice helps resolve any ambiguity about how things should be done under the IATSE constitution, and helps to determine what the union means by a "transfer of jurisdiction", if the constitution itself does not do so explicitly.
78The construction of the IATSE constitution advanced by the parent and local unions governed by it is certainly a plausible one; moreover, it is an interpretation which is supported by the International President who has the power under Article 7(6) to render an interpretation "binding upon all individual members and affiliated local unions". This decision may not bind the
Board, of course, but in the circumstances, I see no reason to disregard it. As far as the union President and executive board are concerned, there has been an acquisition by Local 173 of the projectionist members and projectionist jurisdiction formerly enjoyed by the various named locals; and no action has been taken under the union constitution or otherwise to question that union decision.
79Moreover, even assuming that the terms of the constitution (in particular Article 18(13)) do not expressly provide for what has purportedly been done here, Article 7(6) empowers the President to "render decisions upon questions of law where the Constitution and By-Laws contain no express provisions for the determination therefore". And it is not disputed that the International President and Executive Board have approved and ratified the proposed transfer of jurisdiction, as has the majority of members in each affected local. If Article 18(13) does not explicitly cover this kind of transaction, it appears to me that the union parties and their officers have adopted and confirmed a process analogous to it; so that in either case, the transfer is valid.
80In all the circumstances, therefore, I find that there has been a merger, amalgamation with Local 173 or a transfer of projectionist jurisdiction to Local 173, and that this re-organization is both sanctioned by the union constitution, and falls within the ambit of section 63 of the Labour Relations Act.
81Is there any reason for the Board not to exercise its discretion to make the declaration of "successorship" sought by Local 173? In my view there is not.
82The process undertaken by the various local unions meets the majoritarian concern underlying section 63(2) of the Act. Here, the employees for whom the union exercises bargaining rights are all union members (the collective agreements require it), and those members, in each local union, have voted in favour of the proposed re-organization. No significant number of members challenges the process or result; no union member requests that a representation vote be taken; and, in my view, no representation vote is needed in the circumstances of this case.
83Counsel for the objecting employers point out that if Local 173 is declared to be the successor of Local 257 and the various mixed locals, Local 173 will then become the single, exclusive bargaining agent in respect of a number of different bargaining units at the employers' theatres across Ontario. Counsel further points out that once there is a single bargaining agent for these employee groupings, Local 173 will be entitled to apply for a consolidation of bargaining units under section 7 of the Act. Indeed, counsel candidly conceded that this was one of the employers' main concerns, and one of the reasons why they have now raised objections that they did not pursue some years ago: they are concerned that the consolidation of all of the projectionists into one local union, may be the first step towards the goal of a single collective agreement (for each employer) covering all of the projectionists working in theatres across Ontario. The employers do not welcome that prospect.
84There is no doubt that there may be tactical considerations and an industrial relations reality underlying the unions' attempted re-organization, and that there is a relationship between union consolidation, bargaining structure, and bargaining power. Depending upon the setting, a consolidated bargaining structure can strengthen the hand of one party or the other, just as fragmentation may allow one side or the other to pursue a strategy of divide and conquer. But in the circumstances of this case, I do not think that these tactical considerations or the prospect of some future section 7 application militate against the declaration which the applicant seeks. The consolidation of bargaining units is a process that the statute now facilitates, and if the objecting employers have reasons why this should not be done, they can raise them in the context of a section 7 application, if such application is eventually made. As I have already noted, section 63 merely substitutes Local 173 for its predecessor local unions, without changing any of the parties other statutory rights or obligations; and I am not persuaded that the prospect of some future proceeding under section 7 should influence the granting of a declaration under section 63.
85Having regard to the foregoing and in all of the circumstances, the Board declares that the applicant, IATSE Local 173, has acquired in respect of "projectionists" the rights, privileges and duties of its predecessors IATSE Locals 105, 257, 357, 461, 467, 580, 582 and 634 by reason of a merger, amalgamation or transfer of jurisdiction.
86For the purpose of clarity and pursuant to section 63(3) of the Act, the Board notes that for the purposes of the Act, Local 173 has therefore acquired the rights, privileges and duties of the other locals, whether under a collective agreement or otherwise, and that the employers named in Schedule "A" of the application, Local 173, and the employees concerned, are obliged to recognize that status in all respects.