[1997] OLRB REP. MARCH/APRIL 251
2410-96-R The People's Union, Applicant v. Commonwealth Hospitality Ltd. (c.o.b. as Ramada Inn Windsor), Responding Party v. Teamsters Local 847, Laundry and Linen Drivers and Industrial Workers, Intervenor
BEFORE: M. A. Nairn, Vice-Chair.
APPEARANCES: Marion Wenzel and Shirley LaPointe for the applicant; Me/ma M. Nathanail and Crant Clark for the responding party; Sheri Price, Gil Davis and Joelle Spadacini for the intervenor.
DECISION OF THE BOARD; March 4, 1997
This is an application for certification. The applicant is seeking to displace the intervenor as bargaining agent for a bargaining unit of employees of the responding party. The applicant has not established its status as a trade union before the Board in any prior proceeding. The parties had agreed that the issue of status could be dealt with based on written documents and representations filed. By decision dated December 18, 1996 the Board advised the parties that it was not prepared to make a decision based on that written material, and set the matter down for hearing. A hearing was held. This decision deals only with that issue.
The decision to form a new union was taken in response to dissatisfaction with the quality of representation being provided by the intervenor to the members of the bargaining unit at issue. The six stewards of the intervenor met in response to employee concerns and discussed possible options. For a variety of reasons they decided that the formation of a new, independent union would best serve the interests of the employees.
At a meeting of the six stewards on October 22, 1996, they discussed these issues and having determined that course of action, also determined the officers of the new organization. Each of the six was assigned a position within the contemplated new organization. Ms. Wenzel was assigned the role of President. Ms. LaPointe was assigned the role of Treasurer. Both testified in these proceedings.
From information obtained, five of the six met again on October 25, 1996 to draft a constitution for what became known as The People's Union. There was no dispute that the document reflected the appropriate requirements of a constitution, including objectives, membership requirements, officers, voting procedures and the like.
A meeting of the employees in the existing bargaining unit was arranged for October 28, 1996. Notice was provided by the six stewards telephoning the employees within their area. Ms. Wenzel chaired the meeting. No one was required to sign in and no attendance was taken. At the outset Ms. Wenzel reviewed some of the concerns regarding the intervenor's representation and some of the options considered by the steward group. She then presented the constitution to the group of employees. Copies were not handed out to each person, although some copies were made available at the front of the room. Ms. Wenzel reviewed the provisions of the constitution by reading them aloud and asking if there were any questions.
It appears that most, if not all the questions were directed at workplace concerns and how conditions of employment might be affected were this option to be followed. There were concerns expressed as to whether the benefit package would continue, in that, although not entirely clear from the evidence, it appears that certain of the benefits are provided through plans operated by the intervenor. Assurances were given that benefits would continue. Ms. Wenzel asked for the group's trust, because in her view, they were part of the group; each of the six had as much at stake as any other employee and would not act to hurt themselves.
At the point of reviewing Article IV of the constitution, concerning the duties of the officers, Ms. Wenzel named the six persons and the office they held. At the conclusion of her review of the document, Ms. Wenzel asked for a motion to approve the constitution. A motion was received and seconded. A show of hands in favour of adopting the constitution was requested. It appears that a majority of the persons present raised their hands. Although Ms. Wenzel testified that the result was unanimous and the document purporting to constitute minutes of the meeting also so states, Ms. Wenzel agreed that no count was taken. No count of those opposing or abstaining was sought. At the hearing Ms. Wenzel agreed it was possible that the vote was not unanimous. Mr. Knight, on behalf of the intervenor, testified he abstained from voting.
Ms. Wenzel then proceeded to introduce the six officers whom she had previously named. According to Ms. Wenzel and Ms. LaPointe, after the introductions Ms. Wenzel asked if anyone had any objections and none were received. Ms. Wenzel testified she then asked for another motion, which was seconded, and for a show of hands accepting the officers. She again testified it was unanimous although no count was taken, and no request for those opposed or abstaining was made. Ms. Wenzel acknowledged that this was not in keeping with the provisions of the constitution for the election of officers, but asserted that it was substantial compliance. The document submitted to the Board as representing the minutes of that meeting do not reflect any request for objections or any taking of a vote. It merely notes that the "chosen officers... were tntroduced to the members". Mr. Knight could recall only one show of hands at the meeting.
The document filed purporting to be minutes of the October 28, 1996 meeting, was prepared by Ms. Eugenio, the Secretary of the applicant for the purpose of determining the status issue. Ms. Wenzel indicated that Ms. Eugenio had handwritten notes of the meeting and it appeared that Ms. Wenzel had them with her at the hearing. Ms. Eugenio was not present to testify and the notes were not introduced. Ms. Wenzel testified that she viewed the minutes as accurate but incomplete, and she had not notified the Board or the other parties of any deficiency until testifying. Ms. Wenzel's own evidence about the election of officers in cross-examination was at times contradictory and on her initial review of the events, she failed to mention any second "vote" but only raised it when pressed. Overall, given Mr. Knight's evidence and the failure of the minutes to reflect any such second vote I am not persuaded that it occurred.
Shortly after the introduction of the officers, the meeting adjourned. Persons attending the meeting were asked to sign membership cards in The People's Union. The six officers sat at the front of the room and individuals lined up in order to sign if they chose. It was not disputed that a number of persons who participated in the meeting did not sign membership cards. It was also not in dispute that no one was asked to pay any membership fee to the organization, notwithstanding that the constitution provided for a $5.00 membership fee. No dues have been collected from anyone, again notwithstanding the constitution which provides for dues of $5.00 per pay period for members employed on a full-time basis.
Ms. Wenzel testified that the organization did not intend to collect any monies from anyone until such time as it was certified. She also stated that the members knew they were still members of the intervenor and that the applicant was not a union until so recognized by the Board.
The applicant relied on the Board's decision in Caterair Chateau Canada Limited, [19941 OLRB Rep. Apr. 365. Ms. Wenzel and Ms. LaPointe had attended at the University of Windsor Law Library prior to the October 28. 1996 meeting and, with the help of staff, located this and other Board decisions. In the applicant's view, its conduct, in the words of that decision, was in "substantial compliance" with its constitution. The applicant argued that it had met the Board's standard for proving status.
The Labour Relations Act, 1995 (the "Act") defines a trade union 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.
In this case, the constitution includes the required purpose to regulate relations between employers and employees. The issue is whether the applicant is "an organization of employees ...".
The applicant in Caterair, supra, was found to be a "trade union". In that decision the Board stated:
While the "five step" procedure set out by the Board in U.A.W. Building Corporation, supra, remains a useful guideline both for the Board in determining the status of a trade union under the Act and for persons wishing to form a trade union, the Board has made it clear that that procedure is not the exclusive manner of establishing a trade union. (See, for example, Service Employees International Union, [1991] OLRB Rep. Feb. 267; Local 199 U.A.W. Building Corporation, supra.) As counsel for the applicant points out, in circumstances where the formation of the trade union has transpired at a single meeting, the Board has not required a strict adherence to the sequence of steps. (Proctor-Lewytt, [1969] OLRB Rep. Sept. 760.) Moreover, although the procedure contemplated by the "five steps" is for members to signify their intention to be bound by the provisions of a constitution in a process of formal application to membership followed by ratification, the Board has found other procedures to be sufficient evidence of the formation of the organization. Thus the Board has found that it is sufficient evidence of the organization's formation and ratification of its constitution where the purported members of the union were named in the constitution and then subsequently signed the constitution agreeing to be bound by it terms. (Comen Metal and Plastic Industries Ltd., [1979] OLRB Rep. June 498.) Similarly, while the Board has stressed the importance of the organization seeking trade union status having an identifiable set of officers as an indication of its viability (see Service Employees Union, supra.), nevertheless the Board has accepted as sufficient the election of a temporary committee, even in the absence of a provision in the constitution contemplating such committee. (Gold Crest Products Ltd., [1973] OLRB Rep. Aug. 436) More generally, the Board is interested in the substantial, rather than technical, compliance with the procedural steps involved in the formation of the trade union, since the purpose of its inquiry is not so much in ensuring that the precise requirements of the constitution are followed rather than ascertaining that the organization seeking trade union status is a viable one for the purpose of carrying out its obligations under the Act.
Although the procedure adopted by the present applicant was not one that most clearly expressed the purposes of the participants, when the evidence is considered as a whole, the Board is satisfied that the actions taken at the January 16, 1994 organizational meeting were sufficient so as to create an organization, to admit its members, and to approve its constitution. In reaching this conclusion, the Board has paid particular attention to the manifest intention of the participants, which was to create a trade union for the purpose of this application. In this respect, the Board notes that the employees attending the meeting expressly stated this to be their purpose and then unequivocally approved a constitution document in a procedure marked by a relatively high level of formality. The Board notes that the employees amended the constitution so as to be effective as of the date of their meeting, and then initialled such amendment. From these actions we infer an intention on the part of those present to be bound by the provisions of the constitution.
It is important to note that the Board is far less concerned with the minute issues of constitutionality of the actions of an organization seeking trade union status than with determining its organizational viability and its ability to carry out the statutory obligations placed upon trade unions by the Act. In this respect, the Board is concerned with the constitution only as evidence of the existence of a viable organization and, therefore whether it is a trade union under the Act. (Re C.S.A.O. National (Inc.) and Oakville Trafalgar Memorial Hospital Association, [1972] OR. (2d) 498.)
The decision in Caterair, supra relies on the earlier decision in Gold Crest Products Limited, [1973] OLRB Rep. August 436. In that case the Board found:
The Board is primarily concerned with the constitution as a source of evidence of the existence of a viable organization and of evidence of the purpose and intent of the organization concerned so that the Board may be able to answer the question "Is the applicant a trade union as defined by the Act?" (Re C.A.S.O. National (Inc.) and Oakville Trafalgar Memorial Hospital Association, 1972 O.R. Vol. 2, 498)". Inquiries made as to the election of officers are made with a view only to aiding in the decision as to whether the organization is viable. In the present case, there is an arguable point as to whether the appointment of the temporary committee lies within the constitutional powers of what must be said to be a general meeting of the membership. It is quite clear, however, that the temporary committee is actively engaged in the activities of the organization carried on to date. The matter of the constitutionality of its appointment and actions is one of internal organization of concern to the membership, none of whom, insofar as the Board was advised, have challenged the propriety of the action.
In Caterair, supra, the acclamation of officers was accomplished through persons who all became members in the organization. Although the issue of membership was dealt with after the adoption of the constitution as was the case here, the Board in Caterair, supra, noted that "membership in the organization occur[red] virtually simultaneously and [was] performed by precisely by the same participants..." (see para. 10). That is, it was clear that the persons approving the constitution were all members (albeit next in time) of the organization. The same can be said in the Board's decision in Euclid-Hitachi Heavy Equipment Ltd., [1994] OLRB Rep. November 1514 where no membership cards were signed at or before the inaugural meeting of the organization in that case. A draft constitution was reviewed at the inaugural meeting, votes held to deal with a number of issues concerning the constitution, the constitution was adopted, officers were elected and finally, the constitution was then ratified. In that context, the Board found acceptable the fact that over the course of the next few weeks all those who had attended that meeting became members.
In Gold Crest, supra the only questionable action of that applicant was the appointment of interim officers, contrary to the terms of that constitution. However, that was done pending election of a permanent committee. The Board's decision makes it clear that it was the membership who had appointed the committee to act on that basis.
In Local 199 U.A.W. Building Corporation, [1977] OLRB Rep. July 472 at paragraph 10 and referred to in Caterair, supra, the Board set out a number of steps to be taken by an organization seeking to establish its status as a trade union. That decision has been referred to in many subsequent decisions as representing a useful guide for individuals to follow. Those steps are set out as follows:
(1) A constitution should be drafted setting out, among other things, the purpose of the organization (which must include the regulation of labour relations) and the procedure for electing officers and calling meetings;
(2) the constitution should be placed before a meeting of employees for approval;
(3) the employees attending such meeting should be admitted to membership;
(4) the constitution should be adopted or ratified by the vote of said members;
(5) officers should be elected pursuant to the constitution.
In Euclid-Hitachi, supra the Board stated that this procedure was intended to be "facilitative rather than restrictive"; intended to "assist employees in achieving the goal of self-organization, rather than to restrict them in the exercise of that right" (para. 26). Board decisions have all generally acknowledged that the five step procedure is not an exhaustive guide. Fundamentally, the statute contemplates that there be clear evidence of contractual obligation through a structured organization. The structure of the organization and the nature of the contract is defined by the constitution and bylaws and the contractual obligation flows from membership in the organization.
Thus, the Board has noted that to create a trade union the process must involve not only the settlement of the terms of the constitution for the union but also entering into membership:
“…..the taking of steps which make it clear that the individuals involved have actually entered into a contractual relationship one with another on the basis of the terms set forth in the constitution".
See Associated Hebrew Schools of Toronto, [1978] OLRB Rep. September 797 at paragraph 10, cited in Center Tool & Mold Company Limited, [1985] OLRB Rep. May 633 and in Kubota Metal Corporation Fahramet Division, [1995] OLRB Rep. April 467.
In this case, both the minutes of the meeting and the evidence of the applicant was to the effect that the constitution was adopted unanimously. While the actual result was no doubt a sufficient majority to approve the constitution, I have been troubled by the apparent willingness to justify the vote procedure by its result. Similarly, the applicant's witnesses agreed that any voting procedure asserted regarding the officers would not specifically disclose the results, again notwithstanding the assertion in evidence that the result was unanimous. As noted, I am satisfied that Ms. Wenzel asked if there were any objections following her introduction of the officers to the meeting and that no objections were received. I am not persuaded that there was anything further than that by way of a second show of hands.
There are a number of problems with the handling of the business of The People's Union. Even assuming that the voting procedure resulted in the adoption of the constitution, it was then not followed in a number of respects. The election of officers contemplates the receipt of nominations by members in good standing in the organization, and the holding of a secret ballot election in respect of each position. The entry into membership requires a payment of money. Membership was not acquired in accordance with the constitution and, leaving aside the fee, not until after the meeting. Even allowing that the events of the evening (that is, adopting the constitution and entering into membership) occurred sufficiently close in time so as to be given effect, there were persons who participated in the conduct of business at the meeting who were not and did not become members of the organization.
It is not for the Board to grant status. That approach misconstrues the nature of a trade union. A trade union can exist and never come before the Board. For example, a trade union can obtain bargaining rights through voluntary recognition by an employer. However if a trade union seeks to obtain bargaining rights by way of a certificate from the Board, with the attendant protections and obligations, the Board must, at the outset, satisfy itself that the organization does meet the statutory definition of “trade union".
A trade union has obligations to its members apart from its obligation to act on their behalf in dealing with an employer. It may also acquire obligations on behalf of non-members. A union is an independent organization with rights and responsibilities as between the members and the organization as a whole. As the Board has said in a number of cases, the constitution is the document from which those rights and responsibilities arise and ai'e determined. In addition, the acquisition of bargaining rights on behalf of a group of employees entails serious and substantial statutory responsibilities.
As set out earlier, the Board has identified a series of steps to be followed in the formation of a trade union. While not carved in stone, the fulfillment of those steps are meant to indicate that the persons involved understand the seriousness of the responsibilities they seek to undertake as an organization and some evidence of their commitment to that understanding and to those responsibilities. Where a group is unwilling or unable or fails to see the need to follow the basic rules established for the organization, it certainly leaves open to question whether they truly appreciate the nature of the task that they seek to undertake.
Are these problems fatal to proving status? If occurring in isolation, one or other of these deficiencies would not pose a concern. The circumstances here do go further than in either Caterair, supra or Gold Crest, supra. I am not persuaded that the intention of persons participating in the process is particularly relevant, as one can have the best of intentions and fail to create an organization. However, returning to the definition, the applicant simply need establish that it is "an organization of employees". The reference to "viability" in the Board's caselaw is a concern about the existence of the organization - is there a viable structure through which the organization can function'? It has not been a reference to the quality of the organization. Even if the Board might have concerns about whether or not an organization appreciates the statutory responsibilities it seeks to undertake, that assessment is part of the decision for employees to make in the exercise of their statutory right to join and participate in the lawful activities of a trade union.
The Board has consistently said, as in Caterair, supra, that it is less concerned with minute issues of constitutionality than it is with determining whether "an organization exists". That is what the definition requires. The essential features of the five-step process set out in Local 199 U.A.W., supra, are the adoption of a constitution, admission to membership of employees, and the existence of representative persons through whom the organization can function. Those essential features exist here. I have considered the seeming contradiction that there can be an organization because it has a constitution which can continue to exist even while it ignores its constitution. Still, while I have been troubled by the applicant's seeming disregard for its own enabling constitution, those are matters for the members' concern, should they be so inclined. I am ultimately driven to the conclusion that the applicant is a trade union.
I find therefore that the applicant is a trade union within the meaning of section 1(1) of the Act. This matter is hereby referred to the Registrar in order to schedule a hearing for the purpose of receiving the parties' evidence and submissions with respect to any and all issues remaining in dispute. This panel is not seized.