[1999] OLRB REP. JULY/AUGUST 742
0560-99-R Canadian Labour Congress, Applicant v. University of Toronto, The Governing Council, Responding Party
BEFORE: Caroline Rowan, Vice-Chair.
APPEARANCES: Phillip G. Hunt, Michael MacIsaac, Winnie Ng and Antoine Kopteridis for the applicant; W J. Hayter and Walt Coburn for the responding party.
DECISION OF THE BOARD; July 20, 1999
This is an application for certification brought by the Canadian Labour Congress (the
The application was brought shortly after a group of University of Toronto workers successÂfully applied for termination of bargaining rights held by the International Union of Operating EngiÂneers, Local 796 (the "IUOE").
The present application for certification brought by the C.L.C. is to represent the identical unit of licensed stationary engineers, building maintenance systems technicians, and trainee operating engineers previously represented by the IUOE. There is consequently no dispute as between the applicant and the responding employer, the University of Toronto, The Governing Council (the "emÂployer"), regarding the description of the bargaining unit.
The employer, however, took the position that the application should be dismissed since the C.L.C. was not a trade union within the meaning of section 1(1) of the Labour Relations Act, 1995 (the "Act"). As the C.L.C. had not previously established trade union status before the Board, there was no prima facie evidence to this effect. The C.L.C. was therefore required to adduce proof of its status at a hearing held on June 28 and 29, 1999.
Counsel for the applicant argued that the C.L.C. was a trade union within the meaning of the Act. Alternatively, he argued that if the C.L.C. was found not to be a trade union, a certificate in this matter should nonetheless issue to the C.L.C.'s directly chartered local union, The University of Toronto Workers, Local 2001 ("Local 2001"). The Board reserved on the employer's objection to this proposed amendment to the applicant's name. The applicant therefore also adduced evidence in order to establish that Local 2001 was a trade union within the meaning of the Act.
In addition, three individual employees, all of whom are building maintenance systems technicians previously referred to as Central Control and Monitoring System ("CCMS") operators, argued that the CCMS operators should be excluded from the bargaining unit. Mr. Warren attended at the hearing and gave evidence and made representations on behalf of the CCMS group. It was his position that the CCMS group should not form part of the bargaining unit as it did not share a community of interest with the rest of the licensed stationary engineers.
The issues raised in this proceeding will be dealt with under separate headings below.
The Law - Trade union status generally
- "Trade union" is defined under the Act as follows:
1(1) "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 bargaining agency.
Other relevant provisions include:
(1) Sections 7 to 15, 126 and 128 apply with necessary modifications to an application for certification by a council of trade unions, but, before the Board certifies such a council as bargaining agent for the employees of an employer in a bargaining unit, the Board shall satisfy itself that each of the trade unions that is a constituent union of the council has vested appropriate authority in the council to enable it to discharge the responsibilities of a bargaining agent.
Where in any proceeding under this Act the Board has found or finds that an organization of employees is a trade union within the meaning of subsection 1(1), such finding is proof, in the absence of evidence to the contrary, in any subsequent proceeding under this Act that the organizaÂtion of employees is a trade union for the purposes of this Act.
In applying the definition of "trade union", the Board's caselaw establishes that:
trade unions are, for the most part, unincorporated associations of individuals;
two or more such individuals must have agreed to be bound by the terms of an identifiable written agreement between them;
one of the purposes of the organization, usually expressed in the constitution, must include the regulation of relations between employees and employers;
the organization must be viable and therefore must have at least one officer, official or agent to act on its behalf.
The Board has also set out a "five-step" guideline for those wishing to set up a trade union. These steps are set out in Local 199, U.A.W Building Corporation [1977] OLRB Rep. July 472, as follows:
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;
a constitution must be placed before a meeting of employees for approval;
the employees attending such a meeting should be admitted to membership;
the constitution should be adopted or ratified by the vote of said members;
officers should be elected pursuant to the constitution.
Difficulties, however, often arose where the steps were not followed precisely or were not followed in the right sequence. The Board therefore subsequently noted that the five steps originally laid out were meant to be facilitative rather than restrictive and that following these five steps was not the only manner in which a trade union could achieve status. For example, in Caterair Shadow Canada Limited, [1994] OLRB Rep. April 365 at para. 30, the Board stated:
More generally, the Board is interested in the substantial, rather than technical, compliance with the procedural steps involved in the formation of a 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 to ascertain that the organization seeking trade union status is a viable one for the purposes of carrying out its obligations under the Act.
The Board has generally been even more tolerant of the process by which chartered locals of a national or international trade union have been created. In this regard, the Board in Hawkesbury Knitting Mills, [1997] OLRB Rep. Sept/Oct. 862 said:
Furthermore, and quite apart from the preceding considerations, there has long been a substrand of the Board's jurisprudence as it pertains to chartered locals of established trade unions seeking to establish their own status as a trade union before this Board. It is perhaps fair to say that even some of the Board's earlier decisions contemplated a process less rigorous than the five steps in the case of local charters. In Pacific Plating Limited, [1973] OLRB Rep. May 286 the Board (at paragraph 6) described it as follows:
The Board has recognized that there are many well known international and national unions and has required a filing of a copy of their by-laws together with the charter in order to prove that the local applying for certification was duly and properly brought into existence in accordance with the by-laws of the international or national.... In order for a local to show that it properly came into existence it is usual to merely adduce evidence of the charter to show that the applicant applying for certification is a proper "off-shoot" of the international or national union.
(A consistent approach was followed in the more recent case of Quetico Centre, [1990] OLRB Rep. Nov. 1149.)
- I will now turn to the application of the principles to the issues before me; namely whether either the C.L.C. or Local 2001 is a trade union within the meaning of the Act.
Status of the C.L.C.
- In support of its position that the C.L.C. is a trade union within the meaning of the Act, the applicant called evidence from Mr. Michael MacIsaac, National Director of Education and Campaigns Department of the C.L.C. He described the C.L.C. as being a central organization with membership composed of different affiliates, direct charters, as well as federations of labour councils. He indicated that the composition of the C.L.C. is reflected in Article III Section 1 of the C.L.C. Constitution. This provision reads as follows:
Section 1
The Congress shall be composed of:
(a) affiliated national and international unions, regional and provincial organizations;
(b) directly chartered local unions; and
(c) chartered provincial federations of labour and labour councils.
He further indicated that the C.L.C. represents units of employees through the vehicle of directly chartered local unions referred to in Article III, Section 1(b) of the Constitution.
Mr. MacIsaac also advised that there were presently approximately ten directly chartered local unions of the C.L.C. representing various units of employees. Some had been certified in the federal jurisdiction and others had been certified in one of the various provincial jurisdictions. As an employee of the C.L.C., he testified that he had experience both with organizing and servicing bargaining units represented by different directly chartered local unions.
More specifically, Mr. MacIsaac testified that he had been chief spokesperson at collective agreement negotiations involving bargaining units represented by directly chartered local unions of the C.L.C. The C.L.C.'s involvement was to assist these direct charters in their collective agreement negotiations.
Having regard to all of the evidence presented including the C.L.C. Constitution, the Board concludes that the C.L.C. is not a trade union within the meaning of the Act for the reasons which follow. While it may seem counter-intuitive that a labour organization such as the C.L.C. not be a trade union, the Board nonetheless finds that a number of the legislative requirements necessary to establish trade union status have not been met in this case. In particular, the Board finds that the C.L.C. has not met the requirement of being an "organization of employees" and of having been "formed for purposes A that include the regulation of the relations between employees and employers" within the meaning of the Act.
With respect to the requirement of being an "organization of employees" within the meaning of the Act, a review of the C.L.C. Constitution reveals that it is, in fact, an organization of trade unions, whose membership is restricted pursuant to the terms of Article III Section 1 to various types of organizations - not employees. According to this provision, an employee cannot become a member of the C.L.C.. An employee can only become a member of one of the C.L.C. member organizations. Mr. MacIsaac further confirmed in evidence that individuals cannot become members of the C.L.C. directly. They must, he says, do so through the vehicle of a directly chartered local union.
However, as the Board commented in Cochrane-Dunlop Hardware Ltd. 63 CLLC 1134, para. 16,268, it is difficult to see how membership in a local chartered by the C.L.C. can be said to be membership in the C.L.C. itself. The Board, in that case, expressed its views as follows:
Without expressing any final opinion on the matter, when one reads the constitution of the Canadian Labour Congress (C.L.C.) it is difficult to see how it is possible to say that a member of a local chartered by the C.L.C. is a member of the C.L.C. The C.L.C. does not have membership as such; it appears to be an organization of trade unions, not an "organization of employees" within the meaning of section 1(l)(j) of The Labour Relations Act.
The C.L.C. cannot, in any event, be said to be an "organization of employees". NotwithÂstanding the Board's observation to this effect over twenty-years ago (quoted above), the C.L.C. does not appear to have amended its constitution in a way that would alter the Board's conclusion on this point. In this regard, the situation before me is analogous to that before the Board in M.J. Guthrie Construction Limited [1984] OLRB Rep. Jan. 50. In that case, the Board found that an uncertified council of trade unions was not a trade union within the meaning of the Act as it was an aggregation of trade unions rather than an association of employees. It is perhaps worth noting that counsel for the applicant did not take the position that the C.L.C. was a council of trade unions with the appropriate authority vested in it for certification under section 12 of the Act, which is by definition a trade union under the Act.
With respect to the legislative requirement that the organization be formed for purposes that include the regulation of relations between employees and employers, the objects of the C.L.C. set out in Article II of its Constitution do not, in the Board's view, contemplate the "regulation of labour relations between employees and employers".
The purposes of the C.L.C. outlined in Article II are set out in full as follows:
ARTICLE II
PURPOSES
The purposes of this Congress are:
Section 1. To promote the interests of its affiliates and generally to advance the economic and social welfare of the Canadian workers, including those who are unemployed or retired.
Section 2. (a) To affiliate national and international unions, regional and provincial organizations with this Congress;
(b) To respond to requests from affiliated and chartered organizations to assist them in organizing the unorganized and extending the benefits of collective bargaining to workers;
(c) To establish and assist provincial federations of labour and district labour councils composed of local unions, branches, and lodges of affiliated organizations.
Section 3. To secure legislation that will guarantee the basic rights of workers, including free collective bargaining and the right to strike, and the security and welfare of all Canadians.
Section 4. To protect and strengthen our democratic institutions, to ensure full recognition and enjoyment of the rights and liberties to which we are entitled, and to preserve the cherished traditions of our democracy.
Section 5. To safeguard the democratic nature of the labour movement and respect the autonomy of every affiliated union.
Section 6. To help create and participate in coalitions with groups which share our aims and principles in the pursuit of social and economic justice.
Section 7. To promote the cause of peace and freedom throughout the world, and to work to that end with labour movements and peace groups in other countries.
Section 8. To provide an efficient and orderly procedure for settling disputes between affiliated unions.
Section 9. To actively encourage mergers between compatible affiliates so as to reduce inter-union
conflicts and duplication, and create stronger an dmore effective labour organizations.
Section 10. To serve as "the voice of labour" in speaking on national and international issues, articulating fundamental union policies, and representing the labour movement in dealings with national and international agencies.
Section 11. To preserve the independence of the labour movement from political control, while encouraging workers to exercise their full rights and responsibilities of citizenship, and to play their rightful part in the political system at the federal, provincial, regional, and community government levels.
Section 12. To promote the labour media and other means of informing and educating union members.
Section 13. To aid and encourage the sale and use of union-made goods and union services through the use of the union label and other symbols.
The purposes of the C.L.C., as outlined in its constitution, are numerous and include serving as the "voice of labour". Article II, Section 2(b) sets out the C.L.C.'s role in organizing and servicing bargaining units, to which Mr. MacIsaac referred in evidence. Its role in this regard is to assist affiliated and chartered organizations and not to regulate relations between employees and employers. There are many organizations and individuals, including labour lawyers, who assist trade unions in organizing and servicing bargaining units. They cannot, by virtue of this role, however, be said to have objects that include the regulation of relations between employees and employers.
- The C.L.C.'s advisory role stands in marked contrast to the objects of its directly chartered local unions, which clearly indicate that the local shall "regulate the conditions of employment between its members and employers". These objects are characterized as follows in its by-laws:
The objects of the local union shall be to regulate the conditions of employment between its members and employers with whom it has a collective bargaining relationship, to support and carry out the purposes and policies of the Canadian Labour Congress, and to engage in such other activities as, in the opinion of its members, are conducive to their social, economic and political well being.
The C.L.C. is a sophisticated organization. The language used in the by-laws of its directly chartered local unions mirrors that contained in section 1(1) of the Act. It was open to the C.L.C. to include as one of its objects in its constitution the "regulation of relations between employees and employers". It also remains open to the C.L.C. to amend its constitution in future to reflect this additional purpose.
In addition, it should be noted that on the evidence before me in this case (discussed in further detail below), the C.L.C. does not appear to have ever intended to regulate the relations between the University of Toronto workers and the employer. Instead, the evidence suggests that the C.L.C. merely intended to hold the bargaining rights for a very short period until they could be transferred to Local 2001, after a charter was granted.
For all of these reasons, the Board finds that the C.L.C. is not "an organization of employees formed for purposes that include the regulation of relations between employees and employers", and therefore is not a trade union within the meaning of the Act.
Status of the University of Toronto Workers, Local 2001
It is clear from the foregoing recitation of the objects of directly chartered local unions of the C.L.C., that such locals meet the requirement of having as one of their objects the regulation of relations between employees and employers. In fact, a number of such directly chartered locals have established trade union status before this Board and before Boards in other jurisdictions. The first issue with respect to the status of Local 2001 is whether or not all of the requirements of establishing trade union status had to be met by the date of the application for certification in this matter, being May 25, 1999.
It is well established in the Board's jurisprudence that an applicant for certification must establish trade union status as at the date of application. The reason for this is that only a trade union can apply for certification under section 7 of the Act. As the Board stated in City of Mississauga Public Library Board, [1975] OLRB Rep. Oct. 788 at paragraph 17:
…..it is plain that an application for certification is to be made by a trade union. It follows that in order to comply with the Act an applicant must be a trade union at the time the application was made and the Board has consistently so held.
As a result, the Board has in a number of cases found that amendments to the applicant's constitution made after the date of application, even if carried out before the date of hearing, were irrelevant to the issue of status in that proceeding (see Buckley Cartage Ltd. [1964] OLRB Rep. Jan. 593; Versafood Services Ltd. [1967] OLRB Rep. Sept. 539; Island Park Foodmart Ltd. [1970] OLRB Rep. Nov. 838).
The second issue, in our situation, is therefore whether Local 2001 was an organization in existence on May 25, 1999, the application date. A review of the relevant caselaw indicates that the necessary contractual relationship is created, in situations involving directly chartered local unions of the C.L.C., the moment the charter number is designated or the charter itself is issued. No formal ratification of the constitution by its members is required as the terms of the standard local constitution are fixed and ascertainable when applicants apply for it. (See para. 9 of Canadian Underwriters Association [1973] OLRB Rep. May 267.) Similarly, the Board in Laval Tool & Mold Ltd. [1987] OLRB Rep. Oct. 1281, noted at paragraph 9, that "[t]he contractual relationship necessary to the existence of the local was created among the applicants for the charter when that application was granted; ...".
Turning then to the evidence regarding the establishment of Local 2001. It was Mr. MacIsaac's evidence that the membership cards filed in this case are the application for membership in a directly chartered local union. A sample card was introduced into evidence. The front page reads as follows:
CANADIAN LABOUR CONGRESS, 2841 RIVERSIDE DRIVE, OTTAWA. ONTARIO KIV 8X7 APPLICATION FOR MEMBERSHIP
Chartered Local Union No. _______________Date __________________
I hereby apply for membership in the above Local Union Chartered (or to be chartered) by the Canadian Labour Congress. If accepted as a member, I promise to abide by the By-Laws of the Union and Constitution of the Congress. and authorize such organization to be my exclusive collective bargaining representative.
Date:_________________ 19 ___ ________________________
Signature of Applicant
Application for membership received by _______________________
Signature of Recipient
Date ________________ 19____
None of the cards filed with the Board in this case had a number inserted in the blank space at the top of the card. In fact, the number 2001 did not appear anywhere on any of the cards filed. It is therefore unclear to which directly chartered local union of the C.L.C. the membership cards relate. The cards also do not provide any evidence on which the Board could conclude that the charter number had been designated prior to the filing of the application for certification in this matter.
In support of its position that Local 2001 was an organization in existence as at the application date, the applicant introduced a document dated May 14, 1999 signed by Mr. Dick Martin, Secretary-Treasurer of the C.L.C. The letter was addressed to Ms. Winnie Ng, Regional Director. The letter states that the C.L.C., as per the authority under its constitution, will issue a direct charter to the local at the University of Toronto, if they vote to join the Canadian Labour Congress. This corresponÂdence is followed by a subsequent letter dated June 25, 1999 as between the same parties in which Mr. Martin advises Ms. Ng that Local 2001 had been granted a direct charter by the C.L.C.. This second letter was, however, dated approximately one month after the application date.
On the evidence before me, the Board is not satisfied that the requisite contractual relationÂship was in place prior to the date of the application for certification in this matter. There is no evidence that a direct charter had been granted on or prior to May 25, 1999 or that a local number had even been set aside by the C.L.C. for the University of Toronto workers. The only evidence regarding the establishment of such a charter on or prior to the application date was the correspondence dated May 14, 1999, which letter makes clear that a charter had not yet issued. While there is no evidence before the Board to explain why the C.L.C. did not grant a charter at this time, it is interesting to note that the Board's decision terminating the bargaining rights of the IUOE, a C.L.C. member, was not issued until three days later, on May 17, 1999.
The situation before me is similar to that before the Board in Bartlett Transport Ltd., [1984] OLRB Rep. Feb. 168. In that case, the constitution of the applicant organization had not been adopted until after the application for certification was filed. The Board therefore found that the applicant was not a trade union as of the date of filing. In dismissing the application, the Board commented as follows: "[i]mportant rights and obligations flow from a granting of trade union status and, therefore, the Board is circumspect in making status determinations" (at para. 5). Similarly, in Service Employees International Union, [1991] OLRB Rep. Feb. 267, while a number of the steps set out in the five point guide for establishing a trade union had been followed, election of officers to the applicant organization had not been accomplished until after the application date. As a result, the applicant did not establish status and the application for certification was dismissed.
While the applicant urged the Board not to take an overly technical approach to its assessÂment of trade union status, the requirement that all of the preconditions necessary to establish status be substantially complete by the application date does not, in the Board's view, create any material unfairness. As the Board said in Service Employees International Union, supra, at para. 11:
In this regard we note that it is the applicant who has the control to determine the application date. Any applicant choosing to file an application prior to the ultimate conclusion of the steps necessary to form a trade union does so at its peril.
For all of the foregoing reasons and having regard to the particular circumstances before me, the Board finds that Local 2001 has failed to prove that it had status as a trade union within the meaning of the Act to bring this application.
Given the Board's finding in this regard, it is unnecessary to address whether the name of the applicant could be amended, as proposed by counsel for the applicant, from the C.L.C. to Local 2001 such that a certificate issue to Local 2001 instead.
Disposition
- Since neither the C.L.C. nor Local 2001 has satisfied the Board that it has status to bring this application for certification, the application is hereby dismissed. Given the disposition of the status issues, it is unnecessary to determine whether the CCMS operators should be excluded from the proposed bargaining unit.