Joe White v. Canadian Union of Shinglers & Allied Workers, 1996 CanLII 11216

[1996] OLRB REP. MARCH/APRIL 215

0014-95-R Joe White, Hank Brouwers, Paul Cyr, Applicants v. Canadian Union of Shinglers & Allied Workers, Responding Party v. Residential Roofing Contractors Association of Metropolitan Toronto et al., Intervenor

BEFORE: G. T. Surdykowski, Vice-Chair.

APPEARANCES: John Moszynski and Joe White for the applicants; Michael Horan, Robert She-well, Harold Biso and Steven Wolfreys for the responding party; Mark E. Geiger, William D. Anderson and Mario Angeloni for the Residential Roofing Contractors Association of Metropoli­tan Toronto et al.

DECISION OF THE BOARD; April 30, 1996

I This is a pre-Bill 7 case

1. This application was heard and determined under the Labour Relations Act as it was prior to November 10, 1995, the date on which Bill 7, "An Act to restore balance and stability to labour relations and to promote economic prosperity and to make consequential changes to stat­utes concerning labour relations", which amended the Labour Relations Act, among other things, was given Royal Assent. Accordingly, all references in this decision are to the Labour Relations Act as it was prior to November 10, 1995.

II What this case and decision are about

2. This is an application, under section 61 of the Labour Relations Act for a declaration that the responding party Canadian Union of Shinglers and Allied Workers (the 'CUSAW") no longer represents the employees in a bargaining unit or bargaining units for which it is the bargain­ing agent. By decision dated September 29, 1995, the Board allowed what was in effect a "nonsuit" motion by the applicants. Having allowed that motion, it followed that the application had to be granted as well. Accordingly, the Board declared that the CUSAW was not entitled to act as a bar­gaining agent for or to otherwise represent the employees of Dominion Sheet Metal & Roofing Works or Chislett Roofing Ltd. (the two employers directly in issue in the application) either on the date the Canadian Union of Shinglers and Allied Workers purported to enter into voluntary recognition agreements in that respect or otherwise. Further, the Board declared that the Cana­dian Union of Shinglers & Allied Workers does not represent the employees of Dominion Sheet Metal & Roofing Works or Chislett Roofing Ltd. in what purport to be the bargaining units cov­ered by the purported voluntary recognition agreements with those two employers. The following are the Board's reasons for that decision.

III The first nonsuit motion

3. I begin by explaining how it is that the applicants made what was in effect a nonsuit motion.

4. Although the application as filed referred to other sections of the Labour Relations Act, it was in essence an application under section 61 of the Act for a declaration that the CU SAW does not represent certain employees of Dominion Sheet Metal & Roofing Works ("Dominion") and Chislett Roofing Ltd. ("Chislett"). The CUSAW purported to be the collective bargaining agent for employees of these and certain other employers in the roofing industry, which employees are in what the CUSAW asserted were bargaining units covered by collective agreements voluntarily entered into by those employers.

5. Section 61 of the Labour Relations Act provides that:

6. (1) On application by an employee in the bargaining unit or a trade union representing an employee in the bargaining unit, the Board may declare that a trade union that was voluntarily recognized as bargaining agent for the employees in the bargaining unit was not entitled to rep­resent them on the date on which voluntary recognition occurred.

(1.1) The application may be made during the first year of the period of time that the first col­lective agreement between the employer and the trade union is in operation or, if no collective agreement has been entered into, within one year after the date on which the voluntary recogni­tion occurs.

(2) Before disposing of an application under subsection (1), the Board may make such inquiry, require the production of such evidence and the doing of such things, or hold such representa­tion votes, as it considers appropriate.

(3) On an application under subsection (1), the onus of establishing that the trade union was entitled to represent the employees in the bargaining unit at the time the agreement was entered into rests on the parties to the agreement. (4) Upon the Board making a declaration under sub­section (1), the trade union forthwith ceases to represent the employees in the defined bargain­ing unit in the recognition agreement or collective agreement and any collective agreement in operation between the trade union and the employer ceases to operate forthwith in respect of the employees affected by the application.

6. I have previously observed that this application had some unusual aspects to it. In the Board's July 7, 1995 decision herein, for example, I commented that:

7. This is far from a typical section 61 proceeding. Generally, such a proceeding simply involves an attempt by one or more employees to terminate a voluntary recognition or collective agree­ment between an employer and a trade union. However, this application has been brought against the backdrop of a general campaign by the Labourers' International Union of North America or one of its Locals to displace the CU5AW as the representative of persons engaged in the application of shingles and other roofing materials in new subdivisions in the residential sector of the construction industry, as defined in what purports to be a collective agreement between the CUSAW and a number of roofing contractors, in this case specifically Chislett Asphalt Roofing Ltd. ("Chislett") and Dominion Sheet Metal & Roofing Works ("Dominion") in Board Areas 8, 9, 18, 26 and 27. Further, in addition to alleging that the CUSAW is not enti­tled to represent the persons covered by the purported collective agreement(s), the applicants allege that the CUSAW was not a "trade union" within the meaning of the Labour Relations Act at the time the voluntary recognition agreements or collective agreements were entered into, and that it is not now such a "trade union" either, because it is an organization of or domi­nated by employers. In the alternative, the applicants allege that the CU5AW has received employer support from the roofing contractors, such that any agreement between the CUSAW and any such employer, specifically in this case Chislett and Dominion, should be deemed not to be a collective agreement for purposes of the Act, pursuant to section 49 of the Act.

8. The Residential Roofing Contractors' Association of Metropolitan Toronto (the “RRCA") has intervened on behalf of Chislett and Dominion and nine other roofing contractors listed in Appendix 1 its intervention. In the usual section 61 case, the employer(s) and the trade union involved are allied in interest, as recognized in section 61(3) which places the onus of establish­ing that the trade union was entitled to represent the employees in the bargaining unit covered by the voluntary recognition agreement at the time it was entered into on the parties to that agreement. However, in this case, the RRCA and the employers it represents in these proceed­ings agrees with the applicants that the CU5AW is not a trade union within the meaning of the Labour Relations Act, and also asserts that none of the agreements between the CU5AW and any such roofing contractors are collective agreements within the meaning of or for purposes of the Act. However, the RRCA disputes the allegation that the CUSAW has received any employer support as alleged by the applicants. Accordingly, while the applicants and the RRCA are allied in interest on the primary issue, they are opposed in interest on the section 49 issue raised by the applicants in the alternative.

9. Before the matter came on for hearing before me, another panel of the Board ruled, among other things, that the CUSAW would proceed first in the hearing on the merits of the appli­cation. Section 61(3) of the Act in effect reverses the onus which one might otherwise expect to find in an application like this one. That is, the onus in a section 61 application is on the parties which are generally in the position of responding to the application; namely, the trade union and employer parties to the challenged voluntary recognition agreement. In this application, however, the CUSAW, which purported to be a trade union, was left to defend the voluntary recognition agreements alone. Indeed, the employer parties to those agreements joined with the applicants in asserting that the CUSAW is not a "trade union" within the meaning of the Act, and that whatever the agreements in question are, they are not "collective agreements" within the meaning and for purposes of the Labour Relations Act. In these circumstances, it was, with respect, quite appropri­ate to require the CUSAW to proceed first (which it was in any event open to the Board to require in the exercise of its discretion as master of its own procedure).

10. The CUSAW called two witnesses. One, Harold Biso, is a co-founder and principal of the CUSAW. The other, Susan Bird, is a Vice-President of and Senior Consultant Administrator with J. J. McAteer & Associates Incorporated, a company which is in the business of providing consulting and administration services for multi-employer health and welfare, and pension plans, and which was involved with the CUSAW in that respect. When these two witnesses completed their testimony, the CUSAW closed its case.

11. The applicants, having previously indicated that they were likely to do so, then moved to "nonsuit" the CUSAW. Initially, this motion was framed to include the applicants' assertion that on CUSAW's own evidence taken at its highest, the CUSAW had failed to establish that it is a "trade union" within the meaning of the Labour Relations Act. The applicants also asserted that the CUSAW had received improper employer support such that, pursuant to section 49 of the Act, even if it was a trade union, none of its agreements with employers could be collective agreements within the meaning of the Act. The intervenors indicated that they supported the first branch of the applicants' motion. However, they maintained their position with respect of the issue raised by the second branch of the motion; that is, that there had been no improper employer support given to the CUSAW by any of them.

12. The CUSAW submitted that the applicants and intervenors should all be required to elect whether or not they would call any evidence, and that if any of them elected to do so (or declined to elect not to do so), the Board should refuse to entertain the motion.

13. Upon hearing the representations of the parties in that respect, I ruled, orally, that the Board would not hear the applicants' motion as framed by them unless all of the applicants and intervenors elected not to call evidence. However, I also ruled that I would entertain a motion in the nature of a nonsuit without putting either the applicants or the intervenors to their election if the motion was recast to focus on what I considered to be the fundamental issue in this application, and on which issue the applicants and intervenors were allied in interest; that is, the issue of whether the CUSAW is a "trade union" within the meaning of the Labour Relations Act. I was sat­isfied that, in the circumstances of this case, it was appropriate to hear this more limited motion without putting the applicants or intervenors to their election.

IV The nonsuit motion recast

12. Upon hearing this ruling, the applicants, again supported by the intervenors, recast their motion to fit within that ruling. The Board then heard the representations of the parties in that respect.

13. The concept of nonsuit was developed by the courts in the context of trials by judge and jury. It originated as a attempt by one party to keep the determination of the matter being litigated out of the hands of the trier of fact (ie. the jury) by persuading the trier of law (ie. the judge) that there was no case to be put to the jury. The concept that a party bringing a motion for a nonsuit is required to elect whether it will call evidence arose in this context, and as an attempt by the courts to create a situation which would be the least likely to require a retrial if the disposition of the non-suit was overturned on appeal. Of course, even in the courts, nonsuit motions have not been restricted to trials by judge and jury. And even though the rationale for putting the moving party to its election is less compelling where the judge is the trier of both fact and law, it has been applied in those circumstances as well. Consequently, in Ontario courts, the general practice is to require a party which seeks to bring a nonsuit motion to elect whether it will call evidence, and that such a motion will be entertained (at that time) only if it elects not to do so (see, for example, Bank of Montreal vs. Horan et al, 1986 CanLII 2554 (ON HCJ), 54 O.R. (2d) 757). The Ontario courts have also devel­oped a similar protocol for nonsuit motions in cases involving multiple parties (Brazeau Transport inc. vs. Canfor Ltd., 1982 CanLII 1748 (ON HCJ), 38 O.R. (2d) 414).

14. In determining a nonsuit motion, the standard of proof applied in the courts is that of a prima facie case, and not the higher standard of the balance of probabilities. That is, the question on a nonsuit motion is whether there is any evidence which, if taken at its highest, establishes or gives rise to a reasonable inference in favour of the party responding to the motion. Any doubts in that respect are to be resolved in favour of the responding party (Hall vs. Pemberton, 1974 CanLII 468 (ON CA), 5 O.R. (2d) 438 (Court of Appeal)). This is consistent with what appeared to be the court's view of how administrative tribunals should handle such motions (Ontario vs. Ontario Public Service Employees Union (1990) 37 O.A.C. 218 (Divisional Court)).

15. It is important to remember that the Board is not a court. The Board is different from a court both in the breadth of its jurisdiction, and in the nature of its role and what is expected of it. The Board is a statutory quasi-judicial tribunal with a specialized jurisdiction and expertise. Accordingly, although the Board's processes and hearings have some of the same characteristics as the processes and trials in the courts, there are also significant differences in that respect. These differences reflect the specialized role that the Board plays in an area in which disputes must be resolved quickly and conclusively. As a result, although every party which comes or is brought to the Board is entitled to a full and fair opportunity to make its case, the Board does not mimic what the courts do in providing that opportunity. For example, although the parties are required to plead their respective cases with sufficient particularity to identify the issues and the case which each must be prepared to make or meet, and to produce the documents upon which they intend to rely, the Board does not have a pre-hearing discovery process. Further, while the parties are obliged to prove their cases through witnesses who testify under oath, and the Board hears legal argument which can be quite complex, Board hearings tend to be less formal or technical than civil trials.

16. Under the Labour Relations Act (and other employment related provisions in other leg­islation under which the Board has an adjudicative jurisdiction), the Board's mandate is to admin­ister and apply the Act to matters concerning rights and obligations under the legislation. Under the Labour Relations Act, the Board is clearly the master of its own procedure, subject to specific directions in the Act itself in that respect, and the rules of fairness and natural justice. Accord­ingly, the Board enjoys a broad discretion with respect to the manner in which it processes and adjudicates the matters which are brought before it.

17. As with most things in our society, both the legislation which the Board deals with and the litigation of matters under that legislation has become increasingly complex, and concomi­tantly, hearings before the Board have tended to become lengthier, and more formal and legalistic. At the same time, it has become even more important that labour relations or other disputes which the Board have the jurisdiction to deal with be resolved as expeditiously as possible. As both the Board and the courts have observed "labour relations delayed are labour relations defeated and denied." In that respect, the Supreme Court of Canada has recently said that:

Unresolved disputes fester and spread the infection of discontent. They cry out for resolution. Disputes in the field of labour relations are particularly sensitive. Work is an essential ingredient in the lives of most Canadians. Labour disputes deal with a wide variety of work related prob­lems. They pertain to wages and benefits, to working conditions, hours of work, overtime, job classification and seniority. Many of the issues are emotional and volatile, If these disputes are not resolved quickly and finally they can lead to frustration, hostility and violence. Both the members of the work force and management have every right to expect that their differences will be, as they should, settled expeditiously. Further, the provision of goods and services in our complex society can be seriously disrupted by long running labour disputes and strikes. Thus society as a whole, as well as the parties, has an interest in their prompt resolution.

Legislators have recognized the importance of speedy determination of labour disputes. By the enactment of labour codes they have sought to provide a mechanism for a fair, just and speedy conclusion of the issues.

(Dayco (Canada) Ltd. vs. National Automobile, Aerospace and Agricultural, Aerospace and Agricultural Implement Workers Union of Canada (CA W-Canada) et. al., 1993 CanLII 144 (SCC), [1993] 2 S.C.R. 230)

17. Consequently, although it has remained sensitive to the fact that it is also true that jus­tice in haste may be no justice at all, the Board has become increasingly pro-active in its non-hear­ing processes and in hearings. No longer does the Board always sit mute, like some sort of labour relations sponge ever ready to absorb whatever the parties wish to throw at it for as long as they wish to do so. It is within this context that the Board's practices and policies have evolved, as a result of both the Board's experience within its specialized jurisdiction and the Board's attempts to be responsive to the changing nature and needs of labour relations or related litigation, and the needs of the community which the Board serves. In the course of developing its practices and poli­cies, the Board has examined the utility of various doctrines and practices which have been devel­oped in other forums, particularly the Ontario courts. In that respect, the Board has long recog­nized that doctrines or practices developed elsewhere are not necessarily transferable to its proceedings. Consequently, the Board has been careful to ensure that a doctrine or practice devel­oped elsewhere is suited to proceedings before the Board, either as such or in some modified forum.

18. One of the concepts which the Board has borrowed from the courts and modified to suit its purposes is that of the nonsuit motion. Initially, the Board simply adopted the procedure followed in Ontario courts and required a party moving for a nonsuit, and any parties supporting the motion, to elect whether or not it wished to call evidence (see, for example, Sun Parlour Green­house Growers Cooperative Limited, [1971] OLRB Rep. Nov. 743; The Board of Education for the City of Windsor, [1984] OLRB Rep. Aug. 1145; Paul Balkos, [1989] OLRB Rep. Sept. 932; Goldcrest Furniture, [1989] OLRB Rep. Sept. 967). This was consistent with what appeared to be the court's view of how administrative tribunals should deal with such motions (Ontario vs. OPSEU, supra).

19. However, the first look is not always the best or last one. And the Board has recently developed a different approach. Similarly, the courts have come to recognize that the differences between them and administrative tribunals may justify a different approach to such motions by the latter (Metropolitan Toronto vs. The Joint Board et al, 1991 CanLII 7272 (ON CTGD), [1991] 6 O.R. (3d) 88 (Divisional Court)). The Board has taken a second look at how a nonsuit motion should be dealt with in its proceed­ings. In the result, and recognizing the discretion it clearly has in that respect, the Board has become more receptive to the notion of a nonsuit motion without an election. Indeed, the Board has occasionally invited such motions itself (see, for example, Boise Cascade Canada Ltd., [1989] OLRB Rep. May 413; Hurley Corporation, [1992] OLRB Rep. May 582 and Aug. 940; Kenneth Edward Homer, [1993] OLRB Rep. May 433; Covington Clarke, [1994] OLRB Rep. June 649; The Great Atlantic & Pacific Company of Canada Limited, [1994] OLRB Rep. Aug. 1127; Arthur Chen, [1994] OLRB Rep. Sept. 1184).

20. The Board's approach in that respect is not inconsistent with fairness or natural justice. An application or complaint which appears to be going nowhere should be brought to an end, unless the Board can be persuaded that appearances notwithstanding there is some real possibility that the applicant/complainant may succeed, particularly in a time of scarce resources and in cir­cumstances where the Board has no costs jurisdiction pursuant to which a party responding to a fruitless case can be compensated accordingly (with respect to that latter point, see Bellai Brothers Ltd., [1994] OLRB Rep. Jan. 2). The fact that the Board entertains or invites a nonsuit type of motion without an election does not mean that the Board has already decided the issue. What it indicates is that the Board is concerned that a party which bears the onus with respect to an issue which is dispositive of the application or complaint before the Board, and which has closed its case, has not made out a prima facie case in that respect, and that the Board wants the benefit of the submissions of the parties in that regard. In effect, a party which finds itself in a position of responding to such motion must "show cause" why the matter should proceed further, or to put tt more directly, why the matter in issue should not be decided against it. In that respect, I note that the Board will only entertain or invite such a motion where the party which bears the onus in the matter before the Board (or an issue which is determinative of it) has had a full opportunity to present its evidence. It should come as no surprise that the Board engages in a continuous assess­ment of evidence in the matter before it as the case is presented. Indeed, this is something which the Board must do in order to be able to conduct hearings properly. Having engaged in such an assessment, and bringing its labour relations expertise to bear upon it, the Board is in a position to consider whether it is appropriate to entertain or invite a nonsuit type of motion when the party bearing the onus has closed its case. Fairness and natural justice require that a party have a full opportunity to present its case. A party which has failed to present a case which requires an answer is not entitled to say that it may be able to find something in evidence that another party may call. Nor does fairness or natural justice preclude the kind of ongoing assessment and application of its expertise by the Board to a case as it unfolds in a hearing, which may lead to a nonsuit motion. As a former Vice-Chair of the Board once observed, the parties are entitled to an adjudicator with an open mind, not an empty one.

21. I note that this approach is consistent with the manner in which the Board has exercised its power to consider whether an application or complaint filed with it discloses a prima facie case. The Board routinely examines applications or complaints made to it for the purpose of assessing whether the party bringing the application or complaint has pleaded a prima facie case for relief which is within the Board's jurisdiction to grant. If the Board is satisfied that an application or complaint does not do so, the Board will dismiss it on its own motion without processing it or put­ting anyone to the expense of dealing with something which cannot possibly succeed. Of course, the Board will also entertain a motion to dismiss for failure to plead a prima facie case from a responding party, either in writing prior to any hearing or at a hearing.

22. I am also aware of the debate between labour relations arbitrators about the use and practice of nonsuit motions in arbitration proceedings. Some arbitrators have sought to facilitate such motions by drawing a distinction between motions based on "no evidence" and motions based on "insufficient evidence". In Canada Post Corporation and CUPW (Musson), 1993 CanLII 16743 (CA LA), 34 L.A.C. (4th) 36, for example, the arbitrator ruled that a party moving for nonsuit would not be put to its election if it is asserting "no evidence", but would be if it was asserting "insufficient evidence", the latter being something it could only do after it has closed its case. In General Tire Inc. and United Rubber Workers, Local 536, 1991 CanLII 13334 (ON LA), 24 L.A.C. (4th) 234), the arbitrator held that it was within his discretion to allow a nonsuit motion to proceed without putting the moving party to its election, and that the proceeding before him was an appropriate case in which to do so.

23. Other arbitrators have required a party moving for a nonsuit to elect not to call evi­dence before they would entertain the motion (Re. Canadian Broadcasting Corporation, 1991 CanLII 13478 (CA LA), 24 L.A.C. (4th) 250; Canadian Airlines International Ltd. and CUPE, 1993 CanLII 16767 (CA LA), 38 L.A.C. (4th) 160). In Canadian Airlines International Ltd., supra, the arbitrator rejected the distinction between "no evidence" and "insufficient evidence" on the basis that in all cases where nonsuit is moved the moving party is asserting that there is no case for it to meet. With respect, I agree. The proper test is the one applied by the courts in nonsuit motions; that is, does the evidence presented by the responding party (generally the plaintiff in the courts) makes out a prima facie case for judgement for that party. This does not mean that the evidence of the party responding to the motion must be accepted as being true. While a party should be given the benefit of any doubt, taking its evidence at its highest does not require that evidence which a patently untrue or unreliable has to be accepted. Nor does it require that every inference drawn be favourable to the party. If the only reasonable inference to be drawn is a negative one, it is appropriate to do so.

24. The distinction which has been drawn between "no evidence" and "insufficient evi­dence" demonstrates the difference between what is and what is not properly a nonsuit motion. A nonsuit motion is in effect a "no evidence" motion; that is, the moving party asserts that the party which has the onus in the proceeding (or which has the onus with respect to an issue which if decided against it would be dispositive of the proceeding), having had a full and fair opportunity to do so, has failed to make out a prima facie case for the relief it seeks; that is, that, on its own evi­dence, there is no reasonable possibility that the party responding to the motion can succeed. That is the test applied in nonsuit motions before the Board.

25. However, the arbitrator in Canadian Airlines International Ltd., supra, went on to say that if a party moving for nonsuit is not put to its election a ruling on the motion will give it an unfair advantage because it will obtain an opinion with respect to the sufficiency of the case against it while it still has an opportunity to call its own evidence. With respect, the arbitrator in that case fell back upon the very distinction which he had rejected, and with that I respectfully disagree. It does not necessarily follow that a party will get an indication of the sufficiency of the evidence or case of the party opposite, except in the sense that it will obtain a ruling on whether there is any case at all which it must answer. It is difficult to see how this creates an unfairness. The prima facie test applied in a nonsuit motion is a lower threshold, from the perspective of the party responding to such a motion, than the balance of probabilities test which is applied when evidence is being weighed in Board and arbitration proceedings. Accordingly, a party could present a prima facie case but fail to persuade on a balance of probabilities. Further, whether or not the disposition of a nonsuit motion may create an unfairness is something which can be assessed in a particular case, and is something which is properly taken into account in determining whether it is an appropriate exercise of discretion to put the moving party to its election. In the Board's experience, unfairness will not necessarily result if a moving party is not put to its election. On the contrary, a nonsuit motion without an election can be a useful discretionary tool for ending futile labour relations liti­gation.

26. The Board's experience has resulted in the Board becoming more receptive to the notion of nonsuit motions being allowed to proceed without an election. This is reflected in the Board's recent jurisprudence in that respect.

27. Hurley Corporation, supra, was an application for certification in which the applicant trade union sought to nonsuit the group of objecting employees which had filed a timely petition opposing the application (at a time when such things were relevant) by bringing a motion in that respect at the conclusion of the group of employees evidence with respect to the origination and circulation of their petition. The Board entertained the motion without putting the trade union to its election. In its reasons in that respect, and even though there was no issue between the parties with respect to whether the trade union in that case should have been put to its election, the Board wrote that:

28. The Board is satisfied that it has a discretion to decide whether or not to put a party making a motion for nonsuit to its election, prior to entertaining the motion itself. Provided its discretion is exercised in a fair manner, consistent with natural justice, the Board is entitled, in given cir­cumstances, to decline to put a party to its election. In this regard, the Board will no doubt con­sider all of the circumstances, including the need for fair, efficient, and expeditious proceedings before the Board. In our view, fairness and natural justice do not demand that, in every case, the moving party must make its election. To so conclude would be to fetter our discretion, in an area where the Legislature has not indicated that the civil court rules or practices ought to apply. It would be inconsistent as well with the Board's general authority, in section 104(13) of the Act, to "determine its own practice and procedure" provided it gives full opportunity to the parties to any proceedings to present their evidence and to make their submissions.

29. Returning to the facts of the instant case, the only issue being litigated before the Board was the voluntariness of the petition filed by the petitioners in opposition to the certification applica­tion. The petitioners proceeded first with their evidence, to be followed by the company, and then the union. After the evidence of the petitioners had been led, and after the company indi­cated it did not have any evidence to call, the union made a motion for nonsuit, arguing that the petition ought to be dismissed as it was clearly involuntary. Thus, the petitioners, who had the onus of establishing the voluntariness of their petition, had proceeded first, they had led all their evidence, and the employer had been given an opportunity to lead any evidence it wanted.

30. When the union brought its motion, it asked that it not be put to its election prior to being allowed to argue the merits of the motion for nonsuit. The company supported the union's request that it not have to elect. The petitioners did not take a position on the requirement of an election. They did not suggest that the election had to be made. In short, no party was asking that the union be put to its election.

31. In these circumstances, where it might significantly delay the resolution of matters, to the det­riment of sound labour relations in the workplace, and given that the other parties did not request that the election be made, the Board decided not to require the union to elect whether it wished to call evidence before hearing its motion.

32. Our decision was context specific, based on the the circumstances and facts before us. In response to the union's request, and given the parties' positions, it appeared both fair and sensi­ble to allow the union an opportunity to argue in essence that there was no case for it to meet, before requiring all the parties to engage in further, extensive litigation.

33. The Board might well on its own initiative adopt such an approach. (see O'Brien, J. com­ments in Metropolitan Toronto, supra, p.5). All parties must, of course, be treated fairly and have full opportunity to lead their evidence and make submissions. Consistent with this, how­ever, there will be proceedings where there is no useful purpose served by requiring a party opposite in interest to lead its evidence when the evidence of the party having the onus is clearly insufficient to meet that onus. The Board might call upon the parties to make submissions or otherwise conduct the balance of the proceedings in a manner that will not unduly delay the res­olution of the labour relations dispute. In such circumstances, to force all the parties to incur additional expense and delay, when there is no reasonable likelihood of success in the issue, may not be consistent with sound labour relations principles or with sound administrative tribu­nal practice.

34. In Kenneth Edward Homer, supra, the Board followed the approach in Hurley Corpora­tion, supra, and entertained a nonsuit motion by one of two responding parties without requiring it or the other responding party to elect whether they wish to call evidence. Covington Clarke, supra, was one of a number of cases in which, at the conclusion of the applicants' case, the Board itself called upon the parties to make submissions with respect to whether the matter should proceed any further, in effect inviting a nonsuit motion in circumstances where it appeared to the Board that the applicants' evidence was so wanting that it might be appropriate to terminate the proceedings.

35. In short, whether the Board will exercise its discretion to invite or allow a nonsuit motion to proceed without putting the moving party to its election will depend on the circum­stances and the Board's assessment of the situation in the case in which the issue arises.

36. As I have already noted, section 61 places the statutory onus on the parties to an alleged collective agreement to establish certain facts. In this case, it was alleged that the CUSAW, the purported trade union party to the alleged collective agreements, was not in fact a "trade union" within the meaning of the Labour Relations Act, something which is often not an issue in proceedings under section 61. Because there had never been a Board finding that the CUSAW was in fact a "trade union" the onus was on the CUSAW to establish that it was.

37. This issue was fundamental to the application because if the CUSAW could not estab­lish that it was a trade union, the agreements upon which it relied could not be collective agree­ments within the meaning of the Labour Relations Act, and could not have created the bargaining rights attacked in the application in the first place. I found it appropriate to entertain the appli­cants' nonsuit motion as recast because I had serious doubts concerning the CUSAW's evidence on that issue when it closed its case, and the determination of the motion against the CUSAW would be dispositive of a case which would otherwise have required many more days of hearing spaced over several months to conclude.

V Decision on the nonsuit motion

33. The test which I applied was the same one applied by the courts in such motions; that is, whether taking the evidence at its highest, and drawing all the reasonable inferences most favour­able to the CUSAW from that evidence, had the CUSAW made out a prima facie case for status as a "trade union".

34. For a period of time, trade unions (other than the few which have incorporated) were considered to be unincorporated associations whose legal existence and characteristics are essen­tially those of a club; that is, voluntary associations which apart from their members have no exis­

tence recognized by law. Those who favoured that view pointed to a decision of the Ontario Court of Appeal in Astgen vs. Smith, 1969 CanLII 488 (ON CA), [1970] 1 O.R. 129 in support of the proposition.

35. In law, a club is no more than a group of individuals who have joined together in the pursuit of specified common objectives, and whose relations to each other are regulated by a com­plex of individual contracts between each member and every other member, which complex of con­tracts is described in the constitution, by-laws and other rules or regulations to which they have all agreed. While trade unions may have some of the same characteristics as clubs, they are not, with respect, merely a form of club. Astgen vs. Smith, supra, rejected the proposition that trade unions have some sort of special or hybrid status, and also the notion that there is a contract between the trade union as such on one hand and its individual members on the other, the latter on the basis that a trade union lacks the legal capacity to contract. However, even in that case, the Court of Appeal specified that that was the case outside of the purview of labour relations legislation, and it is labour relations legislation which gives trade unions status and capacity as entities in their own right, including the right to enter into certain kinds of contracts, which clubs do not possess.

36. Prior to the legislative precursors to statutes like the Labour Relations Act, trade unions were generally considered to be unlawful combinations of employees in restraint of trade. Even today, without or outside of the Labour Relations Act or similar legislation, the activities of trade unions would be quite restricted. It is doubtful, for example, that effective collective bargaining could exist outside of the labour relations legislative scheme.

37. In section 1(1) of the Labour Relations Act, "trade union" is defined as:

"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.

(emphasis added)

The vestiges of any common law existence or characteristics are quite unimportant in a modern trade union. Today, it is the legislative scheme which gives life and vitality to trade unions, and which makes trade unions an important part of the labour relations fabric of this province. Under the Labour Relations Act, for example, trade unions have an existence, and a (limited) ability to contract which is independent of their members or the employees they represent. The distinction between members and represented employees is an important one. For example, under the Labour Relations Act (and also under other labour relations legislation in Ontario), trade unions are separate and distinct legal entities with rights, duties and obligations of their own. It is trade unions, and not employees or entities which are not trade unions, which can obtain and enforce collective bargaining rights. It is trade unions, not the employees they represent, which are entitled to require employers to bargain collective agreements and which are parties to those collective agreements in their own name, with the concomitant right to administer and enforce those collec­tive agreements. On the other hand, trade unions have obligations as well. Regardless of anything which may be contained in a trade union's constitution or by-laws, it is obliged to represent all employees (not just its members) in the bargaining unit(s) for which it is the exclusive bargaining agent, and the trade union is obliged to allow all employees (not just its members) to participate in strike or ratification votes. The separation between bargaining unit employees and the trade union which represents them is underscored by a number of provisions in the Act, including the separate provisions prohibiting unlawful strike activity by employees and trade unions.

38. In addition, a trade union (and its employer(s) collective bargaining partner(s)) is obliged to file a copy of its collective agreement(s) with the Minister, may be required to file a copy of its constitution and by-laws, and a list of its officers with the Board, is required to furnish any member who requests one with an audited financial statement, and is obliged to file with the Board the name and address of a person in Ontario who is its representative for service for pur­poses of processees and notices under the Act.

39. In short, under the Labour Relations Act, a trade union is an organization of employees but one which once formed, has an existence which is not congruent with the employees who formed it, and which has the rights and obligations of a separate legal entity for purposes of the Act.

40. Further, except perhaps at their inception, trade unions are rarely voluntary organiza­tions in any common law sense. A trade union can obtain and retain bargaining rights so long as it is able to demonstrate the requisite support among bargaining unit employees. Once a trade union obtains such rights, it is the exclusive bargaining agent for all of the employees in the bargaining unit, including any minority, however large, which opposed it or does not want it, and for any new employees. Subject to the religious exemption provisions, the Act permits provisions which require bargaining unit employees to become members of the bargaining unit which represents it, or to pay union dues even if they are not members and whether or not the employees wish to do so. Further, a trade union's status as bargaining agent does not depend upon the continuing support of bargain­ing unit employees, or the continued employment of employees whose support led to its obtaining bargaining rights in the first place. Much like a government which does not lose its authority until it is defeated in an election, a trade union continues as the exclusive bargaining agent for employees for which it has obtained bargaining rights until such time as those bargaining rights are terminated in accordance with the Labour Relations Act, regardless of its popularity in the bargaining unit.

41. In short, the Labour Relations Act, like other labour relations legislation, defines and regulates the existence of a collective bargaining relationship between employers, trade unions and the employees which trade unions represent, which is quite different from the common law notions of club law or agency. A trade union is more than merely the sum of its members, or even of the employees it represents.

42. There are two characteristics which are fundamental to the existence of a trade union, and which reflect the fundamental elements of the Labour Relations Act. First and foremost, a trade union must be an "organization of employees". This reflects the fundamental separation in the Act between employers and employees. Second, its purposes must include "the regulation of relations between employers and employees". This reflects the principle of representation and col­lective bargaining. The issue in this case was whether the CUSAW was an "organization of employees formed for purposes that include the regulation of relations between employees and employers". The evidence in that respect reveals the following.

43. On April 28, 1993, Rob Shewell, Steve Wolfreys, Harold Biso, Peter Cowie, and Wayne Rogers, together with Michael Horan (a solicitor and the CUSAW's counsel herein) con­vened a "founding" meeting. The minutes of that meeting are as follows:

Present:

Rob Shewell

Steve Wolfreys

Harold Biso

Peter Cowie

Wayne Rogers

Also Present: Michael G. Horan

The meeting opened with a discussion amongst the employees present regarding the merits of establishing a trade union within the meaning of The Labour Relations Act in order to secure the right to bargain with employers. The employees discussed a Constitution which had been pre­pared by Michael G. Horan and distributed prior to the meeting. The employees then discussed certification requirements as well as the requirements of the Ontario Labour Relations Board with respect to the proof of the status of an organization as a trade union within the meaning of the Labour Relations Act. After a lengthy discussion about an appropriate name a motion was made by Harold Biso and seconded by Robert Shewell that the employees present constitute themselves as a trade union to be known as CANADIAN UNION OF SHINGLERS & ALLIED WORKERS ("the Union") in order to regulate inter alia wages, fringe benefits, working condi­tions and labour relations with employers. The motion was unanimously carried.

The employees present then reviewed the Constitution which had been discussed and amended earlier in the meeting. At the conclusion of the discussion it was moved by Peter Cowie and sec­onded by Steve Wolfreys that the Constitution be approved. The motion was unanimously car­ried.

Immediately, a meeting of CANADIAN UNION OF SHINGLERS & ALLIED WORKERS was convened. There was discussion about membership requirements generally as well as the meth­ods to be used to organize other employees. There was also discussion about the prospects of mandatory membership under any contract negotiated. There was discussion also about the prospect of creating locals of this union and the feasibility of doing so particularly in respect of metalmen and siders. Those persons present applied for membership in the Union. At that time application for membership cards in the form annexed hereto as Schedule "A" were signed, countersigned, dated and receipts were furnished to those persons who applied for membership. There was a discussion about getting cardboard membership cards printed.

It was then moved by Harold Biso and seconded by Wayne Rogers, that the new members of the Union ratify the Constitution as approved previously. The motion was carried unanimously by a vote of the members.

It was then moved by Harold Biso and seconded by Steve Wolfreys the [sic] Robert Shewell act as Chairman of the first meeting pending election of the officers of the Union in accordance with the Constitution. The motion was carried unanimously.

The meeting was then opened for nomination of elected officers. Nominations for the office of President were opened and it was moved by Steve Wolfreys and seconded by Peter Cowie that Robert Shewell be so nominated. There were no further nominations and Robert Shewell hav­ing accepted the nomination, he was therefore acclaimed President.

Nominations for the office of First Vice President were opened and Harold Biso was nominated by Robert Shewell which nomination was seconded by Peter Cowie. Harold Biso accepted the nomination and there being no further nominations, he was acclaimed to be First Vice President of the Union.

Nominations for the office of Second Vice President were opened and Peter Cowie was nomi­nated by Robert Shewell which nomination was seconded by Steve Wolfreys. Peter Cowie accepted the nomination and there being no further nominations, he was acclaimed to be Sec­ond Vice President of the Union.

Nominations for the office of Secretary were opened and Steve Wolfreys was nominated by Wayne Rogers which nomination was seconded by Robert Shewell and Steve Wolfreys having accepted the nomination and there being no further nominations, he was acclaimed to be Secre­tary of the Union.

Nominations for the office of Treasurer were opened and Wayne Rogers was nominated by Robert Shewell which nomination was seconded by Peter Cowie. Wayne Rogers accepted the nomination and there being no further nominations, he was acclaimed to be Treasurer of the Union.

All of the Executive Board offices of CANADIAN UNION OF SHINGLERS & ALLIED WORKERS were now filled and those persons on the Executive Board who were present at the meeting took the following oath of office, read to them by Michael Horan:

"I, these witnesses that I will to the best of my ability perform the duties of my office and I will at all times devote my best efforts to further the objectives and best interests of the Union."

The employees then proceeded to have a further discussion with respect to a number of worker concerns including membership, dues, organizing including groups to be sought ie: commercial and excluding re-roofing, employer resistance and bargaining for a collective agreement.

It was moved by Steve Wolfreys and seconded by Harold Biso that the meeting be adjourned at 11:55 am.

The aforesaid minutes have been read by the persons hereinafter set forth and are verified by them as being a true and correct account of the proceedings of the meeting on the date, time and place aforesaid.

"ROB SHEWELL" "STEVE WOLFREYS"

Rob Shewell Steve Wolfreys

"HAROLD BISO" "PETER COWIE"

Harold Biso Peter Cowie

"WAYNE ROGERS"

Wayne Rogers

44. The constitution referred to in the April 28, 1993 minutes stipulates that the CUSAW's objects are:

(a) The regulation of relations between employees and their employers;

(b) The negotiation of written agreements with employers containing provisions respect­ing terms or conditions of employment of employees;

(c) The promotion of improved terms and conditions of employment for employees through collective bargaining;

(d) The establishment of effective means of ongoing communications between employees and their employer;

(e) The promotion of the interests and unity of employees generally.

Further, the constitution provides that membership is open to persons employed in any trade or occupation, and stipulates that there will be 5 officers who will in turn comprise the organizations executive board which is authorized to run it. With the exception of the eligibility restrictions for the office of the president, the constitution's provisions are rather "boiler plate" in nature.

4S. The events which led up to the "founding" meeting, in the context of the roofing indus­try, are significant (and not really in dispute). In that latter respect, I accepted, as I was obliged to

do, Mr. Biso's evidence as being representative of how the industry operates. Indeed, significant portions of his testimony dealt with what he described as "standard" practices in the industry.

46. Mr. Biso testified that in the Spring of 1993, there were ongoing discussions about form­ing a trade union because "they" wanted an enforceable agreement with what Mr. Biso referred to as "management". He said that by the end of April 1993, "the men wholeheartedly wanted to go ahead with a union." Hence the April 28, 1993 meeting.

47. But the CUSAW was not the first such organization. Although there is no cogent evi­dence regarding the events which led up to it, the Canadian Shinglers Association Inc. (the "CSA Inc.") was incorporated on May 26, 1981. Messieurs Biso and Shewell were officers of that corpo­ration. Messieurs Rogers, Cowie and Wolfreys were also involved with it, and while it is not clear, it is reasonable to infer from the evidence that the latter three were also officers, but it was appar­ent that this group of five played key roles in it. The CSA Inc. was dissolved by order dated Janu­ary 27, 1987 for failing to comply with the Corporations Information Act.

48. In 1988, the intervenor Residential Roofing Contractors' Association of Metropolitan Toronto, on its own behalf and on behalf of twelve individual contractors, including Dominion and Chislett, applied to the Board for, among other things, a declaration "that a strike engaged in by employees of [theirs] is unlawful." The CSA Inc. and Messieurs Rogers, Cowie, Shewell, Biso and Wolfreys, all of whom were crew leaders at the time, were named as respondents. In a reply filed on their behalf by counsel (Mr. Horan) in that proceeding, the individual respondents specifically stated that they were not "employees" within the meaning of the Labour Relations Act.

49. In settlement of those Board proceedings, the Residential Roofing Contractors Associa­tion of Metropolitan Toronto, the CSA Inc. (notwithstanding that it no longer existed as a corpo­rate entity), twelve roofing contractors (including Dominion and Chislett), and Messieurs Cowie, Rogers, Wolfreys, Shewell and Biso, (the latter five individuals being identified in the agreement as the executive of the CSA Inc.) entered into a written agreement dated August 24, 1988 intended to govern the relations between them. This agreement does not appear to be, and has never been asserted by anyone to be, a collective agreement. Indeed, words like "union", "employee" and "employment" are conspicuous by their absence in that agreement.

50. Subsequently, by Letters Patent dated July 21, 1989, the Metropolitan Toronto Shin­glers' Association (the "MTSA") was constituted as a non-profit corporation without share capital. The applicants for the Letters Patent and the first directors of the MTSA were Messieurs Shewell, Rogers and Wolfreys. The objects of the MTSA were:

51. To provide guidance and assistance to persons engaged in residential shingling, partic­ularly with respect to matters of employment.

52. To negotiate and enter into written agreements containing provisions respecting terms and conditions relating to the supply of labour.

53. To promote the best interests of persons engaged in residential shingling.

The MTSA's By-law No. 1 is unremarkable for a non-profit, non-share corporation, but certainly does not suggest that it is an organization of employees or that one of its purposes is to regulate relations between employees and employers. Further, By-law No. 7 of the MTSA provides that:

Crew leaders shall be authorized and directed to hire only persons who are members in good standing of the Association. Failure by a crew leader to ensure that a person hired is a member in good standing shall constitute a serious violation of this By-law and shall be dealt with in accordance with the provisions of By-law No. 6.

51. The MTSA carried and continues to carry on its business as and under the name Cana­dian Shinglers' Association. It continues to exist. Its directors are the same five individuals who were the executive of the CSA Inc., and who formed and are the officers of the CUSAW.

52. No one, including Mr. Biso, or any of Messieurs Cowie, Rogers, Shewell and Wolfreys, or Mr. Horan, their counsel throughout, ever considered either the CSA Inc. or the MTSA to be a trade union, and no one ever considered the 1988 agreement to be a collective agreement. Indeed, more than once in correspondence with J. J. McAteer & Associates Mr. Horan specifically stated that the CSA Inc. (the MTSA c.o.b. as the CSA at the time) was not a trade union. Indeed, in a letter dated November 22, 1989 in that respect, Mr. Horan wrote that:

53. There is no procedure for registration with the Labour Relations Board other than an Application for Certification wherein status is sought as a trade union. I personally do not believe that the group as presently constituted would qualify as a trade union. Subject to the loss of status of the previous corporation I believe that the Memoran­dum of Settlement is enforceable at the Labour Relations Board.

54. Against this background, Messieurs Biso, Rogers, Shewell, Wolfreys and Cowie tried to improve their situation by forming the CUSAW in 1993. As Mr. Biso put it, they decided to "legi­timitize" themselves. To accomplish this, they formed the CUSAW at a meeting held on premises owned by the MTSA on April 28, 1993. The question before me in this case was what they created; that is, the CUSAW, a "trade union". I was satisfied that it was not.

55. By letter dated May 31, 1993, Mr. Biso advised Ms. Bird that "effective April 21, 1993 [sic] the Metropolitan Toronto Shinglers' Association has officially changed its name to the Cana­dian Union of Shinglers and Allied Workers" (emphasis added). That accurately describes what had in fact happened. That is, the CUSAW is no more than another name for the MTSA, which was itself a continuation of the CSA Inc. The status of the CSA Inc. and MTSA has never been in doubt or in issue. Neither was a trade union. No one, including Mr. Biso, thought that either one was. There is no difference between the CUSAW and the MTSA c.o.b. CSA, or even the original CSA Inc. Like the other two, the CUSAW is an organization created and operated by and primar­ily for the benefit of crew leaders. It is apparent that the five individuals who operate and control the MTSA and the CUSAW (ie. Messieurs Biso, Rogers, Shewell, Wolfreys and Cowie) have long been aware of the issue of the status of crew leaders under the Labour Relations Act. In the same November 27, 1989 letter that I quoted from above, their counsel wrote that:

56. I have had numerous discussions with the group with respect to their status and there has always been some real question in that regard. I recently sent Mr. Shewell a copy of a decision from the Ontario Labour Relations Board which indicated that if there are more than two persons in a carpentry crew of piece workers that the persons are not employees within the meaning of the Labour Relations Act. That decision con­firms the real question the status of "crew leaders" that I have been wary of from the beginning.

57. That is, counsel was quite rightly concerned that crew leaders would be considered to be "employers", not "employees". It was clear on the evidence before the Board in this case, that ''crew leaders'' are employers.

58. The industry with which I was concerned in this case is that of new roofing on low-rise residential buildings, primarily in subdivisions. There are many organizational similarities between this industry and the low-rise residential carpentry industry which has been described in E. M. Car­pentry (1982) Limited, [1989] OLRB Rep. Aug. 830 (and which it appears was the decision being referred to by Mr. Horan in the excerpt from his November 27, 1989 set out in paragraph 54 above).

59. In both industries, contractors (in this case roofing contractors like Dominion and Chis­lett) obtain work on new low-rise residential units from "builders". Generally, the contractors engage the services of others on a piecework basis. Most of these pieceworkers have "helpers" who work as a "crew". In this case, the pieceworkers are generally known as "crew leaders" and their helpers are called "crew members". The evidence revealed the following about the relation­shtp between contractors, crew leaders and crew members.

60. The size and make-up of crews varies. The individual crew leaders operate either as such in their own name or under a business name. At least seven have incorporated companies. It seems that there are some crew leaders who work alone (in which case they lead only themselves) and a few have the help of only one crew member. However, it appeared on the evidence before the Board that the vast majority of crew leaders have two or more crew members, and that it is not unusual to find crews of five or more crew members. In April 1995, for example, Mr. Cowie had ten crew members on his crew, and Mr. Shewell had nine crew members, Mr. Wolfreys had seven crew members, and Mr. Rogers had one crew member. It is not clear what Mr. Biso's crew looked like at that time but it was usual for him to have at least 3 or 4 crew members on his crew.

61. It appears that crew leaders who use crew members have a regular core of them upon which they rely. Mr. Biso, for example, has a core crew of three crew members (Neil Young, Shawn McCaffrey and Steve Halsted), but his crew averages five crew members, sometimes expanding to as many as eight or nine. Mr. Biso has had twelve to fourteen different crew mem­bers over the years. Crew leaders obtain work for their crews, either when contractors call them to offer them work, or by soliciting contractors for work. Crew leaders may have a relationship with one or more contractors such that they regularly obtain work from them, but it is clear that they can and do work for whichever contractor(s) they wish. For example, Mr. Biso worked for at least nine contractors in 1994. Although crew members occasionally approach contractors for work directly, this appears to be rare and only after consulting with a (usually their) crew leader first. Generally, crew members obtain work by approaching crew leaders. While crew leaders are free to work for more than one contractor at a time, or within the same week on the same builder's site (as Mr. Biso testified he had done), crew members typically work for one crew leader at a time.

62. Although contractors may have some input, it is the crew leaders who decide what size of crew they will operate and who their crew members will be. The influence of contractors in this respect appears to be limited, and such as it is seems typical of the kind of influence contractors have with sub-contractors in the construction industry. Similarly, while contractors do have site foremen who oversee the work of crews in a general way, again in much the same way as many contractors supervise their sub-contractors in the construction industry, it is the crew leaders who run their crews and directly supervise the work of their crew members. Similarly, while contractors may sometimes express dissatisfaction with crew members, it is apparent that it is the crew leaders who exercise that kind of quality control. In Mr. Biso's case, for example, a contractor expressed dissatisfaction with one of his crew members who was alleged to have been drinking on the job and who was subsequently in effect discharged by Mr. Biso, who said he didn't call that individual into work any more. However, it is apparent that the real reason that Mr. Biso let that individual go was the poor quality of his work which (as we shall see below) was costing Mr. Biso money.

63. Indeed, although crew members may occasionally deal directly with contractors with respect to various things, it is apparent that it is the crew leaders who deal with contractors with respect to all matters relating to their employment concerns. For example, when crew leaders obtain work from a contractor, they are assigned the houses which they are to roof by that contrac­tor, but the crew leader decides how and by whom the work is to be done. The crew members themselves are paid on a piecework basis. They are assigned work by their crew leader, in accordance with their ability as assessed by the crew leader. Crew members report their work to the crew leader who completes the "book in" sheet which is submitted to the contractor for payment. Contractors who are bound to it pay crew leaders for work performed in accordance with piece­work rates established under the agreement which was alleged to be a collective agreement. The amount that crew members are paid is determined by the agreement that the individual crew mem­bers are able to negotiate with their crew leader and which varies between 85% and 100% of the specified installation rate in the agreement the CUSAW has with roofing contractors. Mr. Biso tes­tified that 85% is the minimum rate for crew members, and while that may be the case for his crew members and perhaps generally, I observe that it appears to be a kind of "rule of thumb" since there is nothing in the agreement, or anywhere else in the, evidence before the Board, which speci­fies such a minimum. Further, on Mr. Biso's crew, and on every crew he worked on as a crew member before he became a crew leader, it is the crew leader who is paid for the "extras" done by the crew, regardless of who actually does the work.

64. Crew leaders and their crews are paid by contractors on either a "single cheque" or a "multi-cheque" system. In the single cheque system, the contractor pays the amount it considers to be due (which is the amount "booked in" by the crew leader less any adjustments for "deficien­cies" which may have been corrected by the contractor's direct employees or to the rates applied by the crew leaders) to the crew leader in a single cheque. The crew leader then dispenses the amount he calculates as due to each of his crew members and keeps the balance for himself. It was clear from Mr. Biso's evidence, which I had to take as being representative of crew leaders gener­ally, that because of adjustments this balance is occasionally zero or negative, in which case the crew leader has to make up the amounts owing to his crew members out of his own pocket. The only real difference between this and the multi-cheque system is that the contractor issues individ­ual cheques to the crew leader and each crew member on his crew. Even then, however, it is the crew leader who determines the amount of each crew members cheque and the crew leader bears the same risk of loss as he does under the single cheque system.

65. Although crew leaders generally also work with the tools (ie. apply roofing materials themselves), they do not always work with their crews. Even when they don't, and the crew mem­bers perform all the work, crew leaders continue to receive a percentage of the piecework rate specified in the agreement between CUSAW and the roofing contractors and the "extras". In the case of the five crew leaders who constitute the executive of the CUSAW and its precursor organi­zations (ie. Messieurs Cowie, Shewell, Rogers, Wolfreys and Biso), for example, they continue to profit (or lose) from the work performed by the respective crews while they are attending to the affairs of the CUSAW (or the MTSA, as the case may be). I note that they were also compensated by the CUSAW (or the MTSA) in that respect. (For example, in 1994 Mr. Shewell received over $31,000.00 in "wages" from the CUSAW or the MTSA c.o.b. as the CSA.)

66. Mr. Biso's income tax returns for 1993 and 1994 were in evidence before the Board. (Notwithstanding the intervenor's requests that other income tax returns, specifically those of Mr. Shewell, be produced, only Mr. Biso's were produced and was in evidence before the Board. In fact, I ruled that the CUSAW need not produce Mr. Shewell's returns. In retrospect, I think that Mr. Shewell's income tax returns should have been produced and admitted in evidence as such. However, nothing turns on this given that I drew the inference that Mr. Shewell's returns would not have assisted the CUSAW, and also my determination of the nonsuit motion and application.) For 1993, Mr. Biso filed his income tax return as a self-employed person. His 1993 return shows business income, no employment income, and his deductions include typical business expenses (meals and entertainment, rent and office expenses, and the use of a motor vehicle, for example). The same is true of Mr. Biso's 1994 income tax return, except that he shows a small amount ($17.28) of employment income, which on the evidence was from the CUSAW welfare fund. In

addition, on both returns, Mr. Biso calculated a Canada Pension Plan Tax Credit Contribution payable on self-employment earnings. On his evidence, these income tax returns reflect Mr. Biso's earnings in the roofing industry in 1993 and 1994.

65. I was satisfied that crew leaders effectively hire, assign work to, supervise, discipline, and fire crew members. Crew leaders obtain work and establish the rates of pay for their crew members on an individual basis, earn income from the labour of crew members, and from the con­trol they exercise over their crew members they obtain the chance to make a profit but also run the risk of incurring a loss. They also consider and treat themselves as employers for income tax pur­poses. In the result, I was satisfied that crew leaders are employers for purposes of the Labour Relations Act.

66. I note that my conclusion in that respect did not depend in any way on the number of crew members engaged by the crew leaders. I was satisfied on the evidence before the Board that all crew leaders are employers, whether they have any crew members or not. A person, or corpo­ration, can be an employer for purposes of the Labour Relations Act even if it has no employees. Nor does the Board's decision in E. M. Carpentry (1982) Limited, supra, suggest otherwise. As I have already indicated, that case dealt with an industry which is structured in much the same way as the low-rise residential roofing industry herein. However, in that case, all parties agreed that pieceworkers (the equivalent of crew leaders in this case) who had less than two helpers (crew members herein) were employees, and one of the parties specifically reserved the right to argue in subsequent proceedings that pieceworkers with only one helper are not "employees". Conse­quently, it was only the status of pieceworkers with two or more helpers which was in issue in E. M. Carpentry (1982) Limited, supra, and the Board concluded that those pieceworkers are employ­ers.

67. I was confirmed in my conclusion in this case by the relationship between crew leaders and roofing contractors. The relationship is one of contractor and subcontractor, both in Mr. Biso's evidence and on the agreement the CUSAW has managed to persuade a number of the roofing contractors to sign. Like the August 24, 1988 agreement before it, the current agreement is clearly intended to govern relations between crew leaders and and the roofing contractors, and is not for the benefit of crew members, notwithstanding the use of terms commonly found in collec­tive agreements.

68. I return now to the founding of the CUSAW. Notwithstanding the "five step" jurispru­dence which establishes one way to form a "trade union" (Local 199 UAW Building Corporation, [1977] OLRB Rep. July 472; Canteen of Canada Limited, [1978] OLRB Rep. Sept. 802), there is no single procedure which must be followed to create a trade union. All that is required is that two or more "employees" agreed to be bound by an ascertainable constitution for purposes which include the regulation of relations between employees and employers (see, for example, Niagara Veteran Taxi, [1979] OLRB Rep. Sept. 889; Lavalle Tool & Mould Ltd., [1987] OLRB Rep. Oct. 1281; Ontario Hy4ro, [1989] OLRB Rep. Feb. 185). The minimum number of people required to form a trade union is two, regardless of the size of the potential bargaining unit(s) which the orga­nization may pursue (Ontario Hospital Association (Blue Cross), [1981] OLRB Rep. June 763).

69. Further, the Board has rejected the notion that an organization cannot be a "trade union" merely because it has persons who are managerial within its membership; that is, "organi­zation of employees" does not mean "organization of employees only" (Hamilton Construction Association, 1963 CanLII 183 (ON HCJ), [1963] 2 O.R. 293 in which an application for Judicial Review of a Board decision on this issue was dismissed; Ottawa General Hospital, [1974] OLRB Rep. Oct. 714; Chrysler Canada Ltd., [1975] OLRB Rep. Nov. 852; Children's Aid Society of Metropolitan Toronto, [1976] OLRB Rep. Nov. 651; The Board of Education for the City of North York, [1984] OLRB Rep. Sept. 1279 ("York 1"); Ontario Hydro, supra).

70. But the issue in this case was not whether some members of the CUSAW are not "em­ployees", and what effect that might have. The issue was whether it is an organization of employ­ees. It clearly is not. The five individuals who formed the CUSAW, who are its officers, and who dominate the organization in every way, are employers. Although it may have accepted "employ­ees" as members, it, like the CSA Inc. and the MTSA before it, is clearly an organization which has been formed by and is operated for the benefit of employers; that is, the crew leaders. It is not an "organization of employees". Accordingly, it cannot be a trade union. Since only a trade union can obtain bargaining rights or enter into collective agreements under the Labour Relations Act, the CUSAW holds no bargaining rights and has no collective agreements. Accordingly, the decla­rations made as aforesaid were appropriate.