1904-99-U International Union of Bricklayers and Allied Craftsmen, Locals 6, 7 and 25, Applicants v. Brick and Allied Craft Union of Canada, Jerry Coelho, Tom Oldham, Kerry Wilson, John Haggis and Luigi Scodellaro, Responding Parties v. IUBAC Locals 1, 2, 4, 5, 10, 12, 20, 23, 28, 29, and 31; Masonry Industry Employers’ Council of Ontario; Terrazzo, Tile and Marble Guild of Ontario Inc., Intervenors.
2784-98-R Brick and Allied Craft Union of Canada, Applicant v. Kvaerner Jaddco, Responding Party v. International Union of Bricklayers and Allied Craftworkers; General Presidents’ Maintenance Committee for Canada; The Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftworkers on its own behalf and on behalf of all its affiliated Locals; BACU Locals 1, 2, 4, 5, 6, 7, 10, 12, 20, 23, 25, 28, 29, and 31, Intervenors;
BEFORE: David A. McKee, Vice-Chair.
APPEARANCES: L. Richmond, K. Wilson, J. Coelho for the Brick and Allied Craft Union of Canada (“BACU”) and BACU Locals 1, 2, 4, 5, 6, 7, 10, 12, 20, 23, 25, 28, 29, and 31; D. Eady, J. Freedman, J. Joyce, G. Aitken for the International Union of Bricklayers and Allied Craftworkers (“IUBAC”); M. Gottheil, L. Mascarin, D. Plunkett for the Ontario Provincial Council of the IUBAC and IUBAC Locals 1, 2, 4, 5, 6, 7, 10, 12, 20, 23, 25, 28, 29, and 31; D. Jeffries, C. Mosher for Kvaerner Jaddco; D. Bannon for the Masonry Industry Employers’ Council of Ontario; C. Peterson, R. Sanelli for the Terrazzo, Tile and Marble Guild of Ontario Inc.; no one appearing for the General Presidents’ Maintenance Committee for Canada.
DECISION OF THE BOARD; September 15, 2000
I INTRODUCTION
The Parties
1This decision deals with the status of the entity which now calls itself Brick and Allied Craft Union of Canada. There are many parties to this proceeding; before describing what the proceeding is about, it is necessary to define the parties.
2The Brick and Allied Craft Union of Canada (“BACU”) is the applicant in Board File 2784-98-R and the responding party in Board File 1904-99-U. When the acronym BACU is used in this decision, it is intended to mean the parent body. There are 11 locals which assert they are affiliated with the BACU which will be referred to as, for example, BACU Local 1, BACU Local 2, and so on. There are three other “BACU” Locals chartered by the parent body, BACU Locals 6, 7 and 25, for reasons which will be explained below. At the moment, these BACU Locals 6, 7, and 25 have no members and do not function. The BACU asserts that it is the same entity as, or alternatively, a successor to a provincial body known as the Ontario Provincial Council of the International Union of Bricklayers and Allied Craftworkers. (That body will be referred to in this decision as the “Old OPC”.) The BACU Locals assert that they are the same entities as the former locals of The International Union of Bricklayers and Allied Craftworkers (the “Old Locals”) or alternatively are their successors. The BACU Locals were added by the Board to Board file 2784-98-R. All of the BACU parties were represented by Mr. Richmond.
3The International Union of Bricklayers and Allied Craftworkers (“IUBAC” or “IU”) is a responding party in Board File 2784-98-R. It was represented by Mr. Eady.
4Locals 6, 7 and 25 of the IUBAC are the applicants in Board File 1904‑99‑U. In this decision they will be referred to as “Locals 6, 7 and 25”. In addition, the IU purported to charter a new provincial council and 11 new local unions to, in some fashion, replace the locals which existed prior to November of 1998. They play little active role in this decision, but where necessary, will be referred to as the “New OPC” and the “New Locals”. The New Locals and the New OPC were added as parties by the Board to Board File No. 1904-99-U. All these parties were represented by Mr. Gottheil.
5Kvaerner Jaddco is the responding party in an application for certification in Board File 2784-98-R. The Terrazzo, Tile and Marble Guild of Ontario Inc. is an intervenor in Board File 1904-99-U. It will be referred to as the “Tile EBA”. The Masonry Industry Employers Council of Ontario (“MEICO”) was added by the Board as a party to Board File 1904-99-U. The Tile EBA and MEICO are the two designated Employer Bargaining Agencies which bargain Provincial Collective Agreements in the industrial commercial and institutional sector of the construction industry with the two union Employee Bargaining Agencies. One agreement covers bricklayers and masons, the other covers tile setters and helpers. Both Kvaerner Jaddco and the two employer associations filed interventions in these proceedings and appeared with counsel on the first day of hearing, but did not participate in the evidence or argument beyond that day. They are nonetheless parties to this decision.
What this Case is about
6In a decision dated November 25, 1999 the Board set out the issue to be determined in this decision. That decision said in part:
What underlies these [two files] and many other files before the Board is a dispute. It is difficult to characterize the dispute in neutral terms. It may be described as a dispute among various groups who are or were factions within the IUBAC. It may be described as a dispute between the IUBAC, Locals 6, 7, 25 and a newly-constituted Ontario Provincial Council of the IUBAC on the one hand, and the BACU and its constituent Locals on the other. …
The one issue which underlies or is an essential component of these applications is the status of the BACU. The issue is one which needs to be resolved as soon as conveniently possible. … The sole issue to be determined in [these two applications in this decision] is the status of the BACU. Questions to be answered include: is the BACU a trade union as defined in section 1(1) of the Act?; is the BACU the “successor” to the former Ontario Provincial Council of the IUBAC within the meaning of section 68 or otherwise?; is the BACU a trade union as defined in section 126 of the Act?; is the BACU a craft union? Any other question raised regarding the status of the BACU should be decided at the same time.
These issues were defined more precisely by the parties during the hearing of these matters in the following manner. The BACU argues that it is an independent union, but one which possesses all of the rights, attributes, bargaining rights, property and other rights, duties and privileges of the IU, the old OPC, and the old local unions. It asserts that the Old OPC and the Old Locals were “expelled” from the IUBAC by action of the General President, but that notwithstanding that fact, they continue to exist with all of their assets and attributes intact. The BACU asserts that it is one and the same trade union entity as the Old OPC was before the expulsion, but is simply free of its ties to the IU. It asserts that it has amended its constitutional documents (including its name) accordingly. Alternatively, it asserts that it is the successor to the Old OPC and the BACU Locals are the successor to the Old Locals.
7The IUBAC and Locals 6, 7 and 25 dispute this assertion. They state that while the IU has been found to have acted in violation of the Act in taking action against the Old OPC and the Old Locals, that is not a legal basis for either of the assertions made by the BACU or the actions taken in furtherance of that objective. Those parties assert that the BACU had no right to do what it did and in fact the local unions and the BACU are simply the Old OPC and local unions, which are still linked to the IUBAC. Alternatively, the IU argues that the Board has an independent discretion to refuse relief under section 68 (the successor trade union section) and that it should exercise its discretion to refuse to declare the BACU the successor to the IUBAC, the old OPC and the old local unions.
8The BACU asserts that the Board has no such discretion. Alternatively, if it does, the BACU made a number of arguments as to why this discretion should be exercised in favour of making the declaration it sought.
II THE FACTS
The Evidence
9The parties were able to cooperate in the filing of a large number of documents and certain agreements with respect to facts. Some of those facts will be referred to in this decision. It was agreed that “the minutes of all local union meetings are agreed to be an accurate description of what occurred at the meetings referred to”. In the end, we heard only from two witnesses from the BACU. The evidence of Mr. Kerry Wilson, Business Manager of Local 1, is generally representative of the events which occurred in each of the 11 BACU Locals.
10There were certain other matters dealt with by way of rulings during the proceeding. The BACU filed 3,145 membership cards. It sought to rely on them as evidence of support for the BACU’s position among its membership in this case. In its turn, Locals 6, 7 and 25 filed a number of allegations with respect to the activities of the BACU. Many of them dealt with the manner in which these cards were collected. The BACU brought a motion to strike these particularized allegations. The Board ruled as follows:
This decision deals with the request of the BACU to strike the particulars alleged in the IU’s letter of January 6 and paragraphs 61-99 of the pleadings of Locals 6, 7 and 25 dated January 6, 2000.
Many of the particulars of the three Locals are a response to the assertion by the BACU that it has the support of 3,145 members. The cards have been filed with the Board, although there is no process under the Labour Relations Act for doing so. That is, the significance cards have under section 8 or section 158 in an application for certification is absent in these proceedings. Arguably, some of the safeguards which protect the value of that evidence are not available in this case. More importantly, they are not even hearsay evidence as to any issue before the Board in this case. Within the context of this hearing, they do not represent an expression of the views on any issue before this Board. Without hearing any evidence, I can conclude, as Mr. Richmond acknowledges, that some of the cards were signed simply to obtain work, and may in fact have been signed by persons wishing to retain their ties to the IU and opposed to the acts of the BACU. In these circumstances, the weight to be given to these cards for the purposes of this case is virtually nil. But for the BACU’s desire to call evidence on the manner in which these cards were collected, I would strike certain pleadings. Again, it is not clear to me that such evidence (i.e. the manner of collecting the cards) would be in any way helpful since it could only at best be hearsay as to the wishes of the persons signing the cards with respect to the actions of the BACU and the IU. Indeed, it might well be that it would not even amount to that.
So for the present, I will strike certain paragraphs. However, if the BACU insists on calling evidence about the manner in which the cards were collected, and objection is made to that evidence, and notwithstanding the objection, the BACU is permitted to lead such evidence, then either Locals 6, 7 and 25 or the IU may request a reconsideration of this decision following the examination-in-chief of any BACU witness who testifies about the manner in which the cards were collected. If the BACU makes issues about the cards’ relevance, it may have to face the consequences of listening to evidence which I cannot see having more weight than the cards themselves.
Following this ruling, Mr. Richmond advised the Board that he did not propose to call evidence about the manner in which the cards were collected.
11The Board then heard detailed evidence from Kerry Wilson (Business Manager of BACU, Local 1), Jerry Coelho (Business Manager of BACU Canada, and coincidentally, a member of Local 7 of the IUBAC), Dan Plunkett (Business Manager of Local 7), and John Flynn, International President of the IU. During some of the relevant times he was Secretary-Treasurer of the IU. Because of a number of agreements of the parties, a large volume of evidence was introduced through these four witnesses over ten days of evidence and four days of argument. The findings of fact are based on the testimony given by the four witnesses, the agreed-upon facts, and the several hundred documentary exhibits. Where there were conflicts in the oral evidence, I have resolved those conflicts by assessing the oral testimony in accordance with the usual factors: the consistency of their evidence, the firmness of their memory, their ability to resist the influence of self-interest, their demeanor while testifying in both chief and in cross-examination and the objective probability of their evidence in the context of the rest of the evidence, both oral and documentary.
12A recitation of many of the historical facts relevant to this case are in fact set out in a decision of the Chair, R.O. MacDowell, dated April 2, 1998 in an application for interim relief reported as Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftworkers, [1998] OLRB Rep. Apr. 285 (the “MacDowell Decision”). Some of the facts as found in this decision are at odds with the facts as set out in that decision. The MacDowell Decision arose from an application for interim relief. The Board’s process at that time was such that the pleadings of the applicant were taken as true and provable for the purposes of the interim decision only. Certain assertions which were treated as facts in that decision were not borne out by the evidence I heard. To the extent that I heard evidence which differs from the factual basis of the MacDowell Decision, that is merely a reflection of the fact that the factual issues were litigated before me and were not litigated before that panel of the Board.
Events Prior to 1995
13The IU is a building trades craft union. Its headquarters are in the United States, although its membership is in both Canada and the United States. About half of the members in Canada reside and work in Ontario.
14Like many international unions, the IU is subdivided into geographically-based local unions, each with its own by-laws. An individual becomes a member of the International Union by joining one of these local unions. Article IV(A) of the IU Constitution provides:
“Every member of a local union affiliated with the International Union shall, by virtue of such membership, become a member of the International, and no person ineligible to become or remain a member of the International Union may be a member of an affiliated local”.
Under the IU Constitution, local unions have primary, but not exclusive, responsibility for negotiating and administering collective agreements, operating the local hiring hall and generally addressing the needs of local members.
15Both the IU and at least some of the local unions in Ontario were organized in the nineteenth century. The order in which each of these entities came into being is not before the Board. In 1908 the Ontario Provincial Council of the IUBAC was chartered. Its original charter and original by-laws were not in evidence. By the 1990’s, the OPC was an umbrella organization of Ontario locals. The Old OPC had its own set of by-laws and its relationship with the local unions and the IU were defined by the IU Constitution, its own by-laws, and local union by-laws. From approximately 1973, the OPC acted as the bargaining agent for all of the local unions in Ontario. In 1973, the first collective agreement covering the entire Province of Ontario and to which all local unions, through the OPC, were parties, was negotiated.
16In 1978, the then Minister of Labour designated both the IU and the OPC as the employee bargaining agency in two different designations to represent two provincial bargaining units:
All journeymen and apprentice bricklayers, stonemasons and plasterers and improvers; and
All journeymen and apprentice marble, tile, terrazzo, cement masons, resilient floor layers and their helpers.
The corresponding employer bargaining agencies were the Masonry Industry Employer’s Council of Ontario (“MIECO”) and the Terrazzo, Tile and Marble Guild of Ontario Inc. (“the Tile EBA”).
17In 1985 the OPC was certified as a certified council of trade unions in Board File 1913-84-R. The IU, the Old OPC, and each local union are all trade unions within the meaning of the Act.
Dues
18The IUBAC Constitution, the provisions of which are mirrored in the Locals’ Constitutions and the OPC Constitution, provides for two types of dues. Members must pay monthly dues directly to their local union to maintain their membership. This obligation applies whether they are working or not. From this a certain portion is paid to the IU as “per capita dues” (or to use the language of the Constitution, “IU base dues”). In addition every collective agreement must provide for a dues check off of 1.0% of the gross hourly wage rate for each hour worked which is to be paid to the IU through the OPC (which levies its own additional dues check off). These payments are the “IU working dues”.
19Although the term is not used in the Constitution, there are a small number of locals of the IUBAC which are referred to as “B” locals. “B” locals account for 1.5% of the IU’s membership. Article VII-H(4) states “It shall be the duty of each affiliate’s Negotiation Committee to use its best efforts to negotiate a dues check off provision in each local collective bargaining agreement”. There are some local unions in jurisdictions where it is impossible to achieve a dues check off, generally for reasons stemming from local legislative regimes (basically “right to work” states and, for different reasons, the Province of Quebec) or employer resistance. These locals pay a higher per capita and death benefit contribution rates to the IU than other locals and no working dues. Assuming reasonably steady employment, the overall IU dues for “B” locals is lower than for other locals. Over the years locals have shifted in status from “B” to “A”; no local has ever moved from “A” to “B”.
Bargaining History
20Although it was not the subject of extensive evidence, it appears that bargaining rights have, since the inception of the Labour Relations Act, been acquired either by individual local unions or by the OPC. In its proceeding, the IU filed a number of Board reports indicating certificates had been granted to the IU. These certificates were dated between 1970 and 1992 and were in respect of units in various areas of the Province, including Board Area 8. One of them (Board File 3031-72-R) was issued in respect of all plasterers and plasterer apprentices in the employ of Culp Brothers Limited, save and except persons covered by a subsisting collective agreement between Local 12 of the IUBAC and Culp Brothers Limited. Aside from these Board reports, however, there is no evidence of what became of these bargaining rights or the significance of the IU as applicant rather than the OPC or a local union. Indeed, after 1985, had members of more than one local been at work on a single job site, it would have been possible to apply in the name of the OPC. In any event, we heard no evidence of any bargaining between the IU and any employer. Presumably, it was all done by local unions or the OPC prior to 1978, and exclusively by the two Employee Bargaining Agencies after 1978.
21The one exception to this rule is the collective agreement with the Electrical Power Systems Contractors Association (“EPSCA”). The union parties to these agreements, until the last round of negotiations, were always the IUBAC and the Old OPC. We heard no evidence about the involvement of the IU, if any, in negotiating that collective agreement. On the other hand, the EPSCA agreement for bricklayers and tile setters has tended to follow the pattern of ICI bargaining. There is comparatively little work for bricklayers or tile setters in the electrical power systems sector.
22Bargaining for the two provincial collective agreements took place within a structure defined by the OPC by-laws. Bargaining objectives were debated at the local union level and forwarded to the OPC. A Steering Committee was struck to identify and prioritize the bargaining demands for each round of negotiations. The Steering Committee then elected from among its members a “Negotiating Committee” which met face to face with the two Employer Bargaining Agencies. The Negotiating Committee brought back the results of its negotiations to the Steering Committee, which then decided whether or not to take the proposals back to the membership of the local unions for ratification. Ratification was always conducted by way of a membership vote.
23The IU did play a role in negotiating the provincial collective agreement, albeit a minor one. The IU Constitution makes it clear that the primary responsibility for negotiating and administering the collective agreement, and particularly for bearing the brunt of any financial liabilities arising from any collective agreement, rests with the local unions and councils. Nonetheless, the IU from time to time formulates bargaining proposals which it seeks to persuade or require local unions and councils to include in their collective agreements. These will be discussed in greater detail below. It appears that in each round of bargaining the IU forwarded certain proposals to the Steering Committee, which may or may not have included them in their bargaining demands. The IU was a signatory to the Provincial Collective Agreements. The 1992 and 1995 collective agreements were signed by Mr. Demonte and/or Mr. Strickland (both International Representatives of the IUBAC at the time) on behalf of the International Union. It is, of course, true that these individuals were based in Ontario and had informal ties to, if not official positions with, local unions or the OPC.
24In the 1995-1998 provincial collective agreement, one of the bargaining objectives brought to the table by the IU was an attempt to negotiate contributions to a fund known as the “IMI” fund. This was a fund sponsored by the International Union for various purposes, primarily training. The proposal met with no enthusiasm in Ontario, particularly since it appears, to this panel of the Board at any rate, that its objectives duplicate benefits already provided by public agencies, with or without the cooperation of local unions in Ontario. Nonetheless, Appendix “F” to that agreement records in a “Minute of Record” an agreement to meet within 90 days of the ratification of the collective agreement to “discuss” contributions to the IMI fund. Nothing ever came of this (not surprisingly). Ultimately, I conclude that the IMI fund was not a high priority with the International Union and accordingly, never really became an issue, except as a rallying cry for BACU. Nonetheless, this evidence does indicate the kind of involvement the IU had in provincial bargaining.
25The Board heard no evidence with respect to bargaining in other sectors, although vague reference was made to residential agreements negotiated by Local 31 in and around Toronto. However, the Board has no evidence with respect to what, if anything, the IU did with respect to those negotiations.
The Beginning of a Drive for Autonomy
26At some point prior to the International Convention in October of 1995, a move began within the ranks of Ontario bricklayers for a greater Canadian autonomy, or at least greater autonomy for Ontario local unions. In October 1995 two slates of candidates were running for the General Executive Board of the International Union, one headed by John Joyce and the other headed by Gerald Carlisle. The Carlisle slate was more receptive to requests for Canadian autonomy and appeared to be prepared to consider these proposals if elected. In fact, the Joyce slate won. In what appears to have been a certain amount of post-convention bloodletting, the IU dismissed Mr. Strickland and Ray Ryall from their positions as International Representatives of the IU in Canada.
27Locals 6, 7 and 25 attempted to suggest that the real dispute between the BACU and the IU had to do with the personal politics arising out of the 1995 convention. I do not accept that proposition. The “political” ambitions of officers of the Old OPC were, in my view, always motivated by a desire for autonomy within the IU, if not independence from it.
28In the wake of the IU convention, on October 21, 1995 the Steering Committee of the OPC met and recommended a special autonomy convention to be held on December 2, 1995. This was communicated to all of the Locals and ultimately, was made known to the IU. In November 1995 the IU placed the OPC in receivership under the International Constitution and charged certain local officers. A complaint alleging violations of sections 147 and 149 (the “First Bill 80” complaint) was filed, and ultimately settled on March, 22, 1996.
29Notwithstanding this receivership, the special convention was held on December 2, 1995. A report from the special task force struck by the Steering Committee in October was presented to the convention. This report vilifies the IU and those Ontario local officers who support the IU. It upholds the virtues of greater autonomy on the grounds of democracy and fairness and characterizes the IU as a tyranny and a dictatorship. Certain recommendations were made to the convention for greater autonomy, but specifically did not call for disaffiliation from the IU. These resolutions were passed by the convention.
30On March 22, 1996 the First Bill 80 complaint referred to above was settled by Minutes of Settlement which provided for a forum to discuss autonomy for the Canadian Locals of the IUBAC. It is couched in terms which appear to suggest a firm commitment to Canadian autonomy. For instance, the first recital states:
“Whereas the International Union Executive Board continues to be committed for providing for a flexible IU governance approach and structure, that gives full and proper account of the distinctive situation of its United States and Canadian affiliates and members, and does so in a manner that increases the existing autonomy and self-governing rights of its Canadian affiliates and members”.
There is little of substance in these Minutes other than an agreement to meet on these proposals. Meetings were held in 1996 in South Bend, Indiana, Moncton, New Brunswick and Boston, Massachusetts. The meeting in Boston was interrupted when the delegates from Ontario walked out in protest over the placing in receivership of Local 10 in Kingston. The Ontario delegates saw this as a blow aimed at those favouring greater Canadian autonomy. Ultimately, it was found by the Board to have been a receivership imposed for just cause and appropriate in the financial circumstances of that Local (International Union of Bricklayers and Allied Craftworkers [2000] OLRB Rep. Jan 70).
31After the departure of the Ontario delegates, the autonomy committee continued to meet. However, by the end of the hearings in this matter, no agreements had been reached. This is not surprising given that the main players were not at the table.
32Immediately thereafter, the officers of the Old OPC arranged a referendum on autonomy to be conducted among the Ontario Locals. The Ontario Federation of Labour agreed to conduct a mailed ballot to all members in Ontario. The ballot asked:
“Do you authorize the Ontario Provincial Council and your local union to take all steps necessary to establish Canadian self-government and autonomy for the members of our union and in Canada?”
This question was approved by referendum, by 1,614 ballots in favour, to 213 opposed. The results were announced in February of 1997.
33Armed with this referendum result, the OPC met for its regular convention in June of 1997. At this convention, a number of resolutions were passed, including resolutions:
a) to replace the trustees on the officer’s pension fund with Canadian trustees;
b) remove the IU check-off provision in the provincial collective agreement;
c) until that was done, hold the check-off monies in trust until “our differences are resolved” and encourage local unions to withhold all per capita dues until that time;
d) to remove the IU from the designation orders of the Minister issued in 1978 and 1980; and
e) to generally seek greater autonomy and “fairness” for the Ontario Locals.
An additional resolution (Number 35) suggested that the 1% dues of the IU be directed back to the membership, “it being understood that sufficient funds will be allocated to subsidize the reversion of the Locals Unions to “B” Locals”. It is not clear from the transcript filed nor the evidence which I heard that this resolution was in fact passed. Mr. Coelho in evidence agreed that none of these resolutions were forwarded to the International Union.
34In January of 1998 the IU reiterated a longstanding goal of achieving in bargaining a deduction or contribution of 3% of gross wages for the IMI training fund. The BACU attempted both in its communications to Ontario members and before the Board to make much of this directive. It was not new in January of 1998. As noted, reference to it is included in the 1995 provincial collective agreement. On the basis of all the evidence, I can only conclude that this was an objective of the IU, but not one on which it placed a particularly high priority. Mr. Wilson agreed in cross-examination that he was unaware of any disciplinary proceedings taken against any local union anywhere for failing to obtain an IMI contribution in its collective agreement. Indeed, in a series of events in which the International Union charged at just about any red flag (or indeed red handkerchief) waved in front of it by the Old Locals or the Old OPC, the inaction of the IU on its IMI fund direction is surprising. I can only conclude that this was simply not a priority for the IU.
35In 1998 the Steering Committee met to formulate proposals for bargaining the two Provincial Collective Agreements in 1998. The resolutions passed at the 1997 convention were reflected in these proposals, including specifically the removal of the IU dues check-off. These proposals were not forwarded to the IU. Mr. Coelho agreed in cross-examination that he met with Mr. Flynn in January of 1998 in response to the IU’s desire to become involved in bargaining the Provincial Collective Agreements as it had in the past. He agreed that he had told Mr. Flynn that he would send or provide him with copies of the bargaining proposals. He also agreed that he never did do so.
36In December, 1997, the OPC applied, under section 154 of the Act, to substitute itself as the sole Employee Bargaining Agency in the place of the IU and itself in the two ministerial designations. In response, the IU purported to place the OPC in receivership on February 20, 1998 for the purpose of withdrawing the application. This was met immediately by a complaint under sections 147 and 149 (the “Second Bill 80” complaint”). The OPC also brought a request for interim relief. In the MacDowell Decision the Board stayed the imposition of the receivership on an interim basis and permitted the application under section 154 to proceed. In effect, the receivership and the litigation arising out of it before the Board went no further.
37The section 154 application proceeded and, by a decision dated May 12, 1998 (reported at [1998] OLRB Rep April 308, the “Herman Decision”) the Board certified the OPC as the Employee Bargaining Agency for the purpose of negotiating both Provincial Collective Agreements.
38The OPC then proceeded to negotiate the Tile and Brick Provincial Collective Agreements. The Tile agreement was concluded and ratified on August 5, 1998. This agreement eliminated the IU dues check-off. It did not contain any reference to contributions to the IMI fund. It also contained a number of provisions with respect to the pension fund, and the identity of the union itself. The “autonomy clause” provides as follows:
(a) The employer recognizes the Ontario Provincial Conference as the bargaining agent for all local unions and all employees covered by this collective agreement and acknowledges that the Ontario Provincial Conference is a certified council of trade unions and that the local unions have authorized the Ontario Provincial Conference to act as their exclusive bargaining agent, and further acknowledges that the Ontario Provincial Conference holds all bargaining rights under this collective agreement.
(b) [An undertaking to recognize the persons elected to the OPC Executive Board notwithstanding any action by the IU.]
(c) If during the course of the collective agreement the Ontario Provincial Conference, by its convention, votes to merge or amalgamate with another trade union or council of trade unions, or transfer its jurisdiction or bargaining rights to another trade union or council of trade unions, or declares itself independent of the IU, then the employer agrees to recognize the independent union, amalgamated or merged unions…
Again, this was not forwarded to or brought to the attention of the IU.
39In fact, although the Memorandum of Settlement which was concluded and ratified was in the name of the “Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftworkers”, the final agreement was ultimately signed in the name of the BACU.
40Negotiations in respect of the Brick Provincial Collective Agreement went less smoothly and resulted in a five week strike. Ultimately, that agreement was settled on September 17, 1998 and ratified October 9, 1998. This agreement contains similar “autonomy” provisions and an unexplained agreement “to delete reference to the IUBAC (from cover page of collective agreement)”. The Minutes of Settlement were concluded and ratified in the name of “The OPC”. However, the October 9, 1998 letter announcing the results of the ratification vote were sent out on the letterhead of the OPC of the IUBAC. In fact, a draft collective agreement has been prepared in the name of the BACU. MIECO has refused to sign it.
41Although initially the BACU sought to rely on the ratification vote as evidence of support by members of all local unions for the establishment of an independent union, this argument was not pressed. The fact that a large majority of persons voted in favour of a collective agreement at the end of a lengthy strike is evidence of nothing more than that they have agreed to work pursuant to certain terms and conditions of employment. No one issue, particularly one of this nature, can be extracted from the facts surrounding the conclusion of this collective agreement.
The Final Showdown
42In or about July, 1998, the OPC began to implement the resolution to withhold the IU dues. The justification for doing so was that since both of the provincial agreements did (in the case of the Tile agreement) or would (in the case of the Brick agreement) eliminate the IU check-off, the obligation to pay that money expired with the last provincial collective agreement. In addition, two Locals, Local 12 and Local 28, did not pay their per capita dues or more precisely, stopped payment on the cheques issued to the IU in payment of such dues in October of 1998.
43On September 3, 1998 the IU sent a letter to Local 1 indicating a delinquent amount of IU check-off dues owing. The two-line response (dated 35 days after the date on the IU’s letter) simply asserts that: “A review of Local #1 Ontario’s financial records indicate no such outstanding amount as cited in your correspondence. Please explain the nature of this alleged indebtedness”.
44In response, the IU wrote to each of the Locals stating that the OPC and local unions were in default of their IU working dues obligations and that the default must be cured by October 16, 1998 “or face Executive Board action revoking the OPC’s and the local union’s charters for the failure to meet the financial conditions of affiliation stated in the IU constitution”. It also indicated that charges would be laid against the OPC officers.
45No response was sent to this letter. Accordingly, on October 19, 1998 the IU revoked the charter of the OPC and all Locals other than Locals 6, 7 and 25. The revocation document is worth quoting in full:
Pursuant to its authority stated in Article XVI of the Constitution of the International Union of Bricklayers and Allied Craftworkers, the International Union Executive Board, by this order, revokes the charter of affiliation with the International Union heretofore granted by the International to the Ontario Provincial Conference. This order, as of its date, renders that Charter null and void and without force and effect, and by so doing, terminates the status of the Ontario Provincial Conference as an affiliated provincial conference of the International Union of Bricklayers and Allied Craftworkers.
Similarly worded revocations were sent to each of the Locals, other than Locals 6, 7 and 25.
46The BACU’s evidence about these events was contradictory. I accept Mr. Wilson’s evidence that, as far as he was concerned “the IU had done us a favour” and that “freeing the Ontario Locals from the grasp of the International was the culmination of a long struggle”. I do not accept his evidence with respect to the dance being played with the International Union about dues. The Ontario Locals were at no time forthright with the International Union about why dues were being withheld. Further, Mr. Wilson’s suggestion that the Ontario Locals expected the IU to respond to the withholding of dues (without any explanation) by allowing Ontario Locals to revert to “B” status locals merits no credence whatsoever. It is as ingenuous as his response to the International Union that he did not understand how there could possibly be a debt between Local 1 and the International Union.
47Mr. Flynn’s evidence was that he expected this revocation of the charter would bring the Ontario Locals to heel and that, realizing the terrible fate which awaited them, they would sit down and seriously straighten out their relationship with the International Union. I do accept that this is what Mr. Flynn honestly believed. He was not disingenuous. He was simply naïve, and out of touch with what the Ontario leadership was really doing.
Formation of the BACU
48On November 7, 1998, the BACU held a convention. The convention was held in a manner consistent with the BACU’s legal theory in this case. That is, the convention was designed to provide the factual foundation for an argument that the BACU was in fact the Old OPC transformed, or alternatively, that it had established itself as an independent union and was the successor to the Old OPC as a result of its action.
49The convention was held in accordance with the provisions of the Old OPC Constitution for a special convention. The delegates to this convention were the delegates from the 1995 convention and those who replaced them by virtue of office. During the first phase, they were the only persons who voted. As well, to broaden the base of authority within the grouping, any member of an executive board from each local union, if he or she was not already a delegate, became a delegate to the convention, though without voting rights at the crucial point.
50There were no delegates in attendance from Locals 6, 7 and 25, although they had been invited. There were delegates and all of the Executive Board members from each of the other local unions.
51The delegates first met as the Ontario Provincial Council and proceeded on the basis that the Constitution of the Old OPC was in fact now a freestanding document. It was argued that this was the effect of the revocation of the Charter of Affiliation. That is, the OPC continued to exist and all that had been dissolved was its tie to the IUBAC. The delegates then proceeded to “amend” the Constitution of the Old OPC to the Constitution of the BACU. This Constitution, not surprisingly, is very similar to that of the Old OPC, with the addition of a large number of provisions modeled on the IU Constitution to enable the BACU to function as a parent union. (The Old OPC Constitution was insufficient for this purpose.) All references to the IUBAC were removed. The convention then agreed to charter local unions for the 11 local unions in attendance. In addition, charters were also issued for BACU, Locals 6, 7 and 25 and provided that the Executive Board were to hold such charters “in trust”.
52No argument was directed to the form or the precise nature of the wording of these motions. The issue in this case is whether the OPC had the authority to do what it did; except for one issue addressed below there is no doubt that if it did have that authority, these motions were technically sufficient.
53The convention then adjourned for lunch, during which time 68 persons signed cards in the new BACU. After lunch, the convention went into what was described as “Phase 2”. It was announced that this was an alternative to what had been done in the morning in case these events did not produce the desired legal result. In Phase 2, a new union called the BACU was created, as if it were an independent union with no prior history. Again, without going through all the details, suffice it to say that a sufficient number of steps were taken and taken again to ensure that every possible requirement to establish a trade union within the meaning of the Act ever found in any decision ever issued by this Board had been followed. There was then a motion to accept the offer of merger made by the OPC to merge and amalgamate with the BACU and accept transfer of the jurisdiction, bargaining rights, assets, property, rights, duties and privileges of the Old OPC from the Old OPC.
54Following the establishment of the BACU at this convention, the same process was carried out at each of the 11 local unions that had participated. The Board heard evidence only from Kerry Wilson about the events at Local 1. However, given the agreement with respect to the minutes of meetings at other Locals, this was typical of the process followed in each of the other Locals.
55Local 1 called three separate special meetings on November 12, November 26 and December 10, 1998. The BACU Constitution only required two specially called meetings for this purpose; the by-laws of the Old Local 1 required three. At each of these meetings, a parallel process to that which took place at the BACU convention on November 7 was followed. That is, each Local purported to amend its own by-laws to transform itself into the same entity with new by-laws and affiliated to the BACU. As an alternative each Old Local then met and voted to merge, amalgamate and transfer jurisdiction to the new BACU Local. The members then met and established a new BACU Local and then accepted a transfer, merger or amalgamation proposal from the corresponding Old Local.
56Mr. Wilson’s evidence was that there are 450 members of Local 1, of whom 280 are active working members. At the first of these meetings, 30 members attended. There were 50-60 members at the second and third meetings. Mr. Wilson had no idea of how much overlap there was in attendance among the three meetings. In contrast the meeting to ratify the Brick Provincial Collective Agreement drew 110 members. The same process was followed in each of the 11 Locals, with the last meeting taking place on February 18, 1999.
57Following the convention, the BACU moved quickly to establish itself as the de facto representative of bricklayers in Ontario. It established itself as the representative of “The Bricklayers” on organizations such as the Construction Safety Association of Ontario, Provincial Building Trades Council, and the Ontario Secretariat.
58It was during this time that the Tile Provincial Collective Agreement was executed in the name of the BACU and the Brick Agreement printed (though not signed), again bearing the name of the BACU. This was, of course, the entirely legitimate pursuit of independent representative status in which the BACU was engaged. Mr. Coelho in evidence repeatedly suggested that one of the reasons this was done was because of the action commenced in the Superior Court of Justice (referred to below) which sought damages against him and others for breach of the trademark which included the name of the IUBAC. Once again, this may play well at a membership meeting, but strikes the Board as excessively disingenuous. In finalizing the payment of monies arising out of a bankruptcy involving a company called Briecan, Mr. Coelho, quite properly, executed documents where the party was clearly stated to be a Local of the IUBAC. At least in that case the internal fights within the union did not stand in the way of the interest of the members of the union.
59On November 15, 1998, a motion for interim injunctions was brought in two actions commenced by the IU against the BACU and certain individual officers. On December 23, 1998, Mr. Justice Sharpe released his decision denying the motions. He held, essentially, that this Board clearly had the jurisdiction over some of the subject matter of the actions before him, and since the Court generally deferred to the Board on a question of the Board’s jurisdiction, he would not proceed until the Board had determined what was within its jurisdiction, if indeed the Board did not resolve all of those legal issues in a final fashion.
60The BACU was also prepared to defend what it had done in legal proceedings as well. One of these applications is an application for certification filed November 16, 1998. In this application the BACU was quite clear that it was ready, willing and anxious to prove its status before the Board.
61On November 13, 1998 the IU reacted to the establishment of the BACU. It then realized that the 11 Ontario Locals were not going to seek any form of accommodation of the IU. The IU then purported to establish a New OPC and 11 New Locals to replace those whose charters it had purported to dissolve. Over the signature of John Flynn, then Secretary-Treasurer, the IU advised all members in Ontario of the creation of the New OPC and new locals. The latter assured all members that if they joined the new local union, they would retain the status they had as members in good standing if they had it on October 19, 1998. The IU asked for the support and understanding through the upcoming months.
62There may have been some individuals who contacted the IU in response to this letter. Indeed, a number of members in Locals other than Locals 6, 7 and 25 were anxious to retain their membership in the IU to enable them to work on jobs in the United States and did so through the “CWI” program. However, the New OPC and the new Locals were essentially empty shells which had no real presence among members in Ontario. The same could be said of BACU, Locals 6, 7 and 25. That is, both organizations set up parallel structures to entirely absorb the membership of the other. In fact, neither succeeded.
63On January 4, 1999, in other proceedings before a different panel of the Board, all of the parties to this proceeding (other than Kvaerner Jaddco) executed a memorandum to deal with the ongoing functioning of the union during these various proceedings. The parties agreed:
(a) without identifying who the parties are or the legitimacy of any of the names used, that the Brick and Tile collective agreements were the only collective agreements in the ICI sector;
(b) remittances and deductions required by the collective agreement would be sent to “the Brick and Tile employee bargaining agencies at 4800 Dundas Street West, Suite 201, Toronto”. They were to be “administered by the duly-elected Executive Board of the Brick and Tile EBAs as of October 18, 1998”.
Thus, the BACU had control of the collective agreements and funds flowing to the union from those collective agreements during the interim.
64Through 1999 and 2000, the BACU executed a number of one-page, standard-form agreements which bound various employers to the two provincial collective agreements. The recitals to these short-form memoranda are of some significance. The Tile agreement provides as follows:
Whereas the union, formerly known as the Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftworkers, is the certified employee bargaining agency to represent in bargaining all journeymen and apprentice marble, tile and terrazzo cement masons, resilient floor layers and their helper improvers in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario (OLRB File 3520-97-R); and whereas the union and the [Tile EBA] have entered into a collective agreement on August 4, 1998, which is effective until April 30, 2001…
Similarly, the Brick agreement provides:
Whereas the union, formerly known as the Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftworkers, is the certified employee bargaining agency to represent in bargaining all journeymen and apprentice bricklayers, stonemasons, plasterers and improvers in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario (OLRB File 3520-97-R); and whereas the union and MEICO have entered into a collective agreement on September 16, 1998 which is effective until April 30, 2001…
A few other agreements were signed, with slightly different recitals, but all essentially to the same effect. The one exception is a residential sector agreement with Baycrest General Contractors, 929436 Ontario Limited, which provides for a straightforward recognition of the BACU as the sole and exclusive bargaining agent for all journeymen, bricklayers and stonemasons and their respective apprentices in Board Area 8.
Locals 6, 7 and 25
65As the minority position among locals in Ontario, Locals 6, 7 and 25 have found themselves in a very uncomfortable position. They continue to send their per capita dues to the IU. However, working dues are sent to the BACU to be administered by them. The BACU has attempted to limit their access to funds as much as possible. One of the BACU’s actions in this regard has been to limit access to funds collected in the “organizing fund”. That is the subject of another application before the Board and requires no comment here.
66One of the provisions in the BACU Constitution is that, essentially, a member of the BACU may not also be a member of the IU. This provision has been waived with respect to members in Locals 6, 7 and 25 for, initially, a defined period of time and now an indefinite period of time. However, the threat of expulsion at the end of the day is one that the BACU is prepared to use.
67Similarly, the IU has advised Ontario members that, notwithstanding the non-payment of dues, they are all individually regarded as members in good standing of the IU. Mr. Flynn suggested that there was authority for doing this in Article VII-H (7) or XVI-D and XVI-U of the IU Constitution. However these Articles require rules to be enacted by the IU Executive Board; none were introduced into evidence. The IU does not regard the officers of the BACU Locals as officers of the IUBAC. Although the BACU Locals have been invited to the 2000 IU Convention, they are recorded as having no members who have paid dues and therefore no delegates. Mr. Flynn testified that if the locals paid their dues, they would be entitled to sit at the Convention.
68The three Locals have also attempted to execute collective agreements using the short-form agreement that was in use prior to 1998. The BACU refuses to sign them because they have a reference to the OPC of the IUBAC. (Again, in this regard, I do not accept Mr. Coelho’s evidence that he refuses to sign these documents because of the outstanding trademark action.) Both sides have made assertions about how and in what manner those collective agreements may or may not have been effective. Little point would be served by going through those details here. Suffice it to say that this dispute is sufficiently bitter that BACU is prepared to risk forfeiting bargaining rights rather than to compromise its position. The Board also heard evidence about various matters, including the Briecan bankruptcy, a certification in respect of Belluz Brothers and indeed, even the payment of dues by Mr. Coelho to his home Local, which is Local 7. Again, the details do not bear recitation here. Suffice it to say the BACU was proceeding forward to establish as many “facts on the ground” as possible and Locals 6, 7 and 25 were defending themselves from this to the extent that they could. I do not accept the submission of counsel for the three Locals that this demonstrated some level of dishonesty or bad faith on Mr. Coelho’s part. What it did demonstrate however was a determination to eliminate Locals 6, 7 and 25 if possible, and take every advantage that the circumstances offered. It also demonstrated a level of hostility that tends to undercut counsel’s submission that the membership and Executive Boards of the three locals were welcome to join the BACU at any time.
The Bloch Decisions
69On May 12, 1999 and July 19, 1999 the Board issued two decisions in Board file 2532-98-U. In the May 12, 1999 decision (the “First Bloch Decision”), the Board found that the IU had failed to comply with the requirements of its own Constitution in revoking the charters of the OPC and the Old Locals. In the July 19, 1999 decision (the “Second Bloch Decision”) the Board found that the IU had violated sections 147 and 149 in revoking the charters. Following this second decision, the IU filed a revised statement of the relief it said was appropriate in Board File 2532‑98-U. This included an acknowledgement that the revocations were null and void. For whatever reason, the IU did not dissolve the new OPC or the New Locals.
70Following the July 19 decision, the IU was asked to state its position as to the appropriate remedy in that application. On August 16, 1999 the IU wrote to the Board and advised that one of the remedies it stated was appropriate was an order that the Old Local charters “are valid and continue in force without interruption from October 18, 1998” and that the revocations were null and void. Mr. Flynn in his evidence was unclear about the details of this position. He was, however, clear that from the IU’s point of view, the Bloch decisions reinstated the charters which had been revoked: “When the Board told us we were wrong, we recognized them”. He could not explain why the New Locals and the New OPC were still in existence. From July 19, 1998 forward, at any rate, the IU no longer purported to have revoked the charters of affiliation.
Death Benefits
71Repeatedly during the hearing of this matter the BACU asserted that the Death Benefit Fund (the significance of which will be seen below) did not exist. This is a fund that pays a benefit to the estate of members who have remained in good standing for a certain number of years. The evidence was that the Death Benefit Fund paid out all claims made by Ontario members after October 19, 1998. The establishment of the BACU did not prevent any member’s estate from making a claim and the BACU encouraged members’ estates to apply. The BACU asserted that these payments were made only because, when there appeared to be a delay with respect to the first such claim (by the estate of a Mr. Looney), the BACU filed an application under section 96 of the Act in respect of this alleged non-payment. The evidence is not sufficiently strong or clear to enable me to come to that conclusion. In any event, the Death Benefit Fund did make payments to all Ontario members’ estates up to the last day of hearing. On this basis I conclude it existed.
III LEGAL ISSUES
1. The Issue of Status – Common Law and Statute
72As stated, the issue before the Board is the “status” of the BACU, that is, is it the Old OPC transformed, the successor to the Old OPC in both organizational and statutory terms, an independent trade union, or something else? However, this basic and fundamental issue is not one which is easily addressed in any context. For example, the BACU has asked the Board, among other things, to issue “ an Order that the Registrar of the Board replace the certificate of status of the [Old OPC] with a new certificate of status for the BACU”. The certificate of status is not a statutory document. It is an administrative convenience used by the Board internally to signal in any one file that an entity asserting that it is a trade union has previously been found by the Board to be one in a different proceeding, and that the presumption of section 113 applies.
73The issues as framed by the BACU are typically dealt with in a section 68 application. There is no formal section 68 application before the Board, primarily because the BACU’s primary position is that it is not a successor, but is one and the same trade union as the Old OPC and the Old Locals. To bring a section 68 application would be counterintuitive since the relief sought would, by definition, be a request to dismiss the application (see, for example, Coca-Cola (No. 2), [1987] OLRB Rep. May 658.). There is, however, a “claim” within the meaning of section 68 that the BACU and its locals are the successors to the Old OPC and the Old Locals contained in the BACU’s alternate argument, and it will be dealt with as such.
74The BACU takes the position that its actions in either transforming itself into a new union or transferring everything from the Old OPC and the Old Locals to the BACU and BACU locals are actions over which the Board has little or no jurisdiction. It argues that the Act does not regulate or control the action of any trade union in reorganizing or transforming itself. The Board’s jurisdiction, it argues, is limited to finding, essentially as a factual matter, that the transformation has or has not occurred. Although section 68 clearly applies to a claim of a transfer, the BACU’s argument is that the Board has a limited jurisdiction to deal with the act of successorship. The BACU argues that once the constitutional or contractual act of transfer has been found to have occurred, the Board’s discretion is limited to determining whether or not to hold a vote.
75As will be seen below, the Board does not agree with this argument about its jurisdiction in the context of section 68, or in the context of the argument that the Old OPC transformed itself into the BACU. However, the Board must first analyze the process, primarily a constitutional process, undertaken by the BACU, before it can assess the impact the statute has on that process.
Trade Union Constitutions: The Legal Nature of a Trade Union
76The argument of the BACU suggests that there is some clearly articulated legal definition of a trade union “at law” and a recognizable legal theory about the nature of trade unions and how they operate. In fact, this is not the case at all. “The precise legal character of unions… is a matter of some conjecture” according to the Ontario Court of Appeal (Berry v. Pulley (2000) 2000 CanLII 5703 (ON CA), 48 OR (3d) 169). This is, in part, because both the courts and the Board have shared, for different purposes, the task of defining what a union is. The different purposes, and the different jurisdictional bases from which the Board and courts have proceeded, have occasionally produced results which, while appropriate resolutions of the case at hand, seem to be at variance with one another.
77Business corporations are and always have been creatures of statute. It is the statute which defines what a corporation’s powers are and, in much greater detail, how and in what manner their internal governance operates. A corporation is entitled to appear as a party without debate as to its institutional status in court and before most tribunals in this Province.
78Trade unions are different. Originally, they were unlawful conspiracies in restraint of trade. Even though the taint of criminality was removed by amendments to the Criminal Code in the nineteenth century, trade unions had little legal status until the 1940’s with the creation of the first statutory labour relations regimes. The first was in fact a regulation under the War Measures Act. The first Labour Relations Act in Ontario was enacted in 1948. This statute and regulation did little more than provide a mechanism for the granting of certificates as bargaining agents to unions for groups of employees. Neither that statute, nor any version of the Labour Relations Act since, has contained a mechanism by which the Board or the statute “creates” a trade union. A union’s existence originates outside the operation of any statute or legal process. The Labour Relations Act simply deals with unions as they seek to make use of the procedures under the Act.
79For courts, a trade union is simply another unincorporated association. Like a stamp club or a religious congregation, its legal existence derives exclusively from the written documents which describe the organization and the common law. These documents are treated as a species of contract. Thus, in Orchard v. Tunney, 1957 CanLII 57 (SCC), [1957] SCR 436, the Supreme Court of Canada described unions as follows:
… Apart, then, from statute, that a union is held together by contractual bonds seems obvious; each member commits himself to a group on a foundation of specific terms governing individual and collective action, a commitment today almost obligatory, and made on both sides with the intent that the rules shall bind them in their relations to each other. That means that each is bound to all the others jointly. The terms allow for the change of those within that relation by withdrawal from or new entrance into membership. Underlying this is the assumption that the members are creating a body of which they are members and that it is as members only that they have accepted obligations: that the body as such is that to which the responsibilities for action taken as of the group are to be related.
… The contractual rights of a member are, then, with all members except himself, otherwise it would be the group as one that contracts; and what ordinarily is complained of as a breach toward a member must, in the light of the rules and the agreement to be bound by a majority, be such as at the same time is a violation in respect of all the other members and not of one or more only. Not having contractual capacity, it follows, a fortiori, that a union as such cannot incur liability in tort….
The executive board here is vested with authority to require the employer to comply with the terms of the union contract, including the feature of the close or union shop. The board, purporting to act within the scope of its authority, may, by way of analogy with a corporation, commit either an ulta vires act, that is, one that does not become an act of the membership body, or an act intra vires that brings about a breach of contract through an improper exercise of authority.
80This remains the analytic basis for courts in issues which must be resolved before them. Although there is sometimes overlap with the jurisdiction of this Board, such disputes may include disputes over the property and assets of the union, internal union matters, and questions of discipline and expulsion of members. However, there is a recognition among some jurists that the contractual doctrines developed by courts were developed to deal with specific kinds of disputes, and ought not to be extended beyond the purposes for which they were developed. In the Motion Court’s decision in Berry v. Pulley (1999) 1999 CanLII 15079 (ON SC), 45 OR (3d) 449, Mr. Justice Winkler stated:
While I accept the theory that unions are a complex of individual contracts, and that this applies to CALPA, this does not complete the analysis. This view of the organization is a legal fiction adopted to create an identifiable legal personality for a construct which otherwise has neither common law nor statutory status. It does not follow by logical extension from the contract theory alone that individual union members have a remedy in damages against other union members for alleged breaches of those contracts. For, as Jessel M.R. stated in Rigby at p. 490:
… it was not intended that the contracts entered into by the members … should be made legal contracts inter se so that the Courts of Justice should interfere to enforce them.
81The limited utility of this type of contractual analysis in a labour relations context is evident immediately upon examining the typical attributes and activities of any trade union under the Labour Relations Act, 1995. As the Board said in Waterloo Spinning Mills Ltd., [1984] OLRB Rep. Mar. 542:
- A modern trade union is very different from a typical club. It is concerned primarily with the acquisition and exercise of statutory bargaining rights. What club or mere voluntary association has the exclusive statutory right to determine its members’ terms and conditions of employment – regardless of what those members might think from time to time? What voluntary association in pursuit of its constitutional objectives has the right to act on behalf of and fundamentally affect the rights of persons who are not its members and who may never have voluntarily subscribed to those objectives? What club has a statutory obligation to fairly represent non-members, where necessary, expending membership funds to do so? How realistic is it to treat a trade union as a “voluntary” association when the reality is that membership may be made a compulsory condition of employment? In the present case, membership in the Association has been made a condition of employment for a number of employees. The fact is that while at common law a trade union may still be only a voluntary association, under the Labour Relations Act it is much more than that, and when considering the acquisition, exercise or transfer of rights rooted in the statute, one cannot ignore either the practical or legal differences. Likewise, in trying to ascertain a union’s essential objects (in an Astgen v. Smith sense) we think the statute provides a guideline – at least in the absence of explicit conditions in the union’s own constitution.
82Clearly anything found in the Labour Relations Act, 1995 will govern, rather than judge-made law. However, the statute does not purport in any way to be exhaustive in its regulation of unions as entities. As noted above, a union is created by a group of individuals who take all the necessary steps as an entirely private matter to constitute a union. In determining whether the organization created is a trade union for purposes of the Act, the Ontario Court of Appeal has enjoined the Board from inquiring into the characteristics of the union beyond those issues specifically defined by statute: CSAO National (Inc.) v. Oakville Trafalgar Memorial Hospital Association (1972) 1972 CanLII 563 (ON CA), 26 DLR (3d) 63 (OCA).
83Similarly, section 68, which deals with successorship questions, does not give the Board the power to effect the succession. The Board must first find that some act has occurred which can constitute a transfer of jurisdiction, merger or amalgamation, an act founded in the particular constitutional documents created by the parties. However, as will be seen below, the question of whether the Board will exercise its discretion to grant a declaration under section 68 is a matter of statute, rather than of private contract.
84Thus, in dealing with either issue, the Board is engaged solely in the application of the statute. In order to do so it must examine the actions of the parties and interpret the constitutional documents that give meaning to those actions.
Trade Union Constitutions: General Matters
85The Board is engaged in different tasks when it (a) finds whether an organization is a trade union within the meaning of section 1(1) or section 126 of the Act, or (b) considers whether to declare that a trade union is a successor to another trade union. The difference between these two tasks will be dealt with in greater detail below. However, in both types of decisions, the Board must focus to some extent on the constitution of the trade union, and how the steps it took fit into its constitutional framework. In the end, the Board is governed by the requirements of the statute, but like the parties themselves, it must begin with the union’s constitution to give meaning to the actions taken.
86The IU argued, as a general legal principle, that the nature of the bonds between an international union and a local union are such that the local union has no existence separate and apart from its international parent (see, for example, McMillin et al v. Yandell et al, 1971 CanLII 587 (ON HCJ), [1972] 1 OR 146 (OHC). A somewhat more perceptive distinction is drawn in Lakeman & Barret v. Bruce, 1950 CanLII 246 (BC SC), [1950] 3 DLR 146 (BCSC):
… I was concerned on the trial with how the union came into existence and obtained a charter. Was it necessary that the union should be in existence and having such existence apply simply for affiliation with the national body and was the charter merely a certificate that the union applying was only an affiliate of the national organization? Of course, if that had been the case, then the cancelling of the charter would be only the cancelling of the affiliation of the union as existed at the time of making application for affiliation and the mere cancelling of the affiliation would only have the effect of leaving the parties as they originally were and the union, of course, under such circumstances, would not be defunct.
It is clear, therefore, that no union in existence had to write to apply for affiliation with the national organization. A group of ten could apply for a charter and when granted a charter, such group became the local union. This union, therefore, came into existence only when it was so granted its charter by the national body. The national body alone gave the breath of life to and created the union and so when the charter was revoked, the body giving the breath of life to the union, took the same away and then the union no longer existed. It was dead or defunct.
87Since the Board is concerned with a different focus from the court in Lakeman & Barrett v. Bruce, it is of only limited importance to the Board to know the historical nature of the initial relationship between the IU and the Old Locals in Ontario. Of greater importance is the extent to which that historical reality is reflected in the current constitutional documents and practical realities of the parties’ relationships. The Board was advised that the charter to the Old OPC was issued in 1908. No doubt, both the charter and the constitution in 1908 were drafted with a view to avoiding the civil (though no longer by that date criminal) sanctions that would be levied if the activities of the union were characterized as a restraint of trade. The Board also surmises that locals in older urban centres, such as Hamilton and Toronto, may have had an independent existence prior to their affiliation with the international union and that other local unions came into existence solely as a result of a charter from the IU. The dates of the charters for Locals 1 and 2 (Hamilton and Toronto) are said to be 1881. Although this is after the date on which the IU was founded (1865), it is conceivable that the Locals had a prior independent existence. Local 29 in Sault Ste. Marie was chartered in 1941 and likely had no prior existence. This history (if it were known) might be of academic interest, but it has no legal significance.
88The question for the Board is whether the constitutions of the IU, the OPC and each local union were such that the OPC and the locals continued to exist after the revocation of the charters with all bargaining rights and other attributes intact. If so, the next question is whether they were constitutionally able to effect the changes they made, including the successorship.
89At one end of the spectrum of constitutional arrangements is the constitution examined in Coca-Cola (No. 2), supra, a case on which the BACU relied heavily. In that case, the Board dealt with a very explicit and detailed disaffiliation provision in a constitution. This provision was the result of the dissolution of the International Union of Brewery Workers at the time of its partial merger with the Teamsters Union. Since Local 385 of what became the Canadian Brewery Workers emerged from that dispute independent of its parent international union (see Coca-Cola (No. 1), [1975] OLRB Rep. Nov. 862), the constitution of the Canadian Brewery Workers contained a very explicit provision dealing with disaffiliation:
ARTICLE XV – DISAFFILIATION
Right of Local Union to Disaffiliate
Sec. 1. Affiliation of Local Unions with the National Union is voluntary and the right of Local Unions, which are not part of a bargaining unit comprised of more than one (1) Local Union, to disaffiliate from the National Union at any time shall be inviolate irrespective of any other provision of this Constitution including the provisions of Article XIV, provided, however, that in any case of disaffiliation there shall be compliance with the following procedures and conditions.
(e) Upon disaffiliation in accordance with these procedures, the Local Union shall have no claim for monies paid to the National Union and the National Union shall have no claim upon the assets, funds, contracts, bargaining rights or other properties of the Local Union.
The Board said of this provision:
- … The constitution adopted at the Winnipeg convention in January 1974 was born of the unhappy experiences at Cincinnati, of the frustration of the Canadian Branch which unsuccessfully sought to persuade the “old” International to refuse a merger with the Teamsters. The founders of the “new” International were determined to prevent a repetition. That is, the “new” International was to be grounded in the autonomy of the member locals. The hallmark of the new organization was voluntariness and the right of the member locals to disaffiliate was sacrosanct (see paragraph 9 supra where Article XV, section 1 of the constitution is cited). Article 15(1)(e) expressly confirmed that, upon disaffiliation in accordance with the appropriate procedures, the National “shall have no claim upon the assets, funds, contracts, bargaining rights or other properties of the local”. The Board regards the addition of the phrase “bargaining rights” to the original draft of that section and the transcript of the Winnipeg proceedings as further confirmation that the National was not intended to usurp or encroach upon the autonomy of the member locals with respect to matters critical to that autonomy such as assets, funds, contracts, bargaining rights and other properties. Wagner’s testimony, which the Board accepts, is to the same effect…. Obviously, in the formation of any umbrella organization there is some ceding of power from the membership. That is inherent in the concept of “affiliation”. However, it is clear that the intention of the constitution was to provide a framework for member locals to achieve common objectives without thereby rendering nugatory the “inviolate” right of the members to disaffiliate. This philosophy permeates the constitution. The Board has noted article XV (1)(e) but other examples could be given.
90In that case the Board found that the independent and separate identity of the local union was so clear that it, in fact, dismissed a section 68 application on the grounds that the disaffiliated local was “the very entity which held and continues to hold these [bargaining] rights”. See also Hartley Gibson Company Limited, [1986] OLRB Rep. Nov. 1517 and Great A & P, supra.
91At the other end of the spectrum are cases where the parent union has transferred jurisdiction among local unions pursuant to its authority under the constitution without reference to the wishes of at least one local union and its members: MLS Cable Installations Inc., [1987] OLRB Rep. Nov. 1413 and J.E.H. Mueller, [1988] OLRB Rep. May 491 and Sept. 610, application for judicial review denied [1990] OLRB Rep. Dec. 1365, application for leave to appeal denied [1992] OLRB Rep. July 889.
92The conclusion to be drawn from this spectrum of cases is that there are few general principles which can be said to be universally applicable to all union constitutions. Rather, it is necessary to examine the constitution to see what it is the parties have agreed to bind themselves to, and what rights and authority are given to the various entities with which the constitution deals.
2. The IUBAC Constitution and the creation of the BACU
93There are three types of constitutional documents to which the parties referred. First is the Constitution, Rules of Order and Codes of the IUBAC (“the IU Constitution”). Second is the Constitution and By-Laws of the Ontario Provincial Council of the IUBAC (“OPC Constitution”). Last is the constitution and by-laws of each local union of the IUBAC (“Local Union Constitution”). In this regard, we only heard evidence from Mr. Kerry Wilson about the by-laws of Local 1 and the specific references to local union constitutions in this decision are references to the constitution of Local 1 of the IUBAC. The BACU also had a constitution for the parent body (“BACU Constitution”) and constitutions for each of the local unions (“BACU Local Union Constitution”).
94The BACU does not claim a right unilaterally to disaffiliate from the IU, or at least it does not claim to have done so here. Rather, it asserts that the IU revoked the “Charter of Affiliation” for the Old Locals and the Old OPC. This left those entities, so the argument goes, as independent autonomous entities possessed of all the qualities and attributes they possessed before the revocation, but simply cut adrift from the IU. The IU in response asserts that its own revocation was ineffective. Alternatively, even if it was effective, the Old OPC and the eleven Old Locals lacked the authority to amend their constitutions so as to permit the creation of an independent union or to transfer all of the rights and assets from themselves to another independent union in any form of successorship process.
95The three constitutions do not provide a clear answer to the debate. Some portions of the IU Constitution appear to contemplate that ultimate and residual authority rests with the local union. For example:
I – B. The International Union shall be composed of the Local Unions which created it …
VIII – A. Local Unions shall retain all authority not delegated in this Constitution to the International Union, to State or Provincial Conferences, or to District Councils.
VIII – O. Each Local Union is a separate independent organization functioning in conformity with this Constitution.
Further, the use of the phrase “affiliated local union” often appears to suggest a distinction to be drawn between the local union itself and its tie of affiliation to the IU (for example, Article IV – A).
96However, these general principles do not find much reflection in any of the other constitutional documents. Article VIII – B, immediately following Article VIII – A quoted above, provides:
B. The Constitution and By-Laws and all actions of Local Unions shall be in conformity with the IU Constitution, all rules, regulations and Codes promulgated thereunder, and all decisions, rulings and orders issued by the IU Executive Board. If the Board concludes that a provision of the Local Constitution and By-Laws is inconsistent with IU law, that provision shall be of no force and effect. In order to assure compliance with this Section, all Locals shall forward to the IU Secretary-Treasurer their Constitution and By-Laws and any amendments thereto within fifteen (15) days of their adoption.
Similarly, Article X – E (2) provides as follows:
E. (2) The Constitution and By-Laws and all actions of State and Provincial Conferences shall be in conformity with the IU Constitution, all rules, regulations and Codes promulgated thereunder, and all decisions, rulings and orders issued by the Board. If the Board concludes that a provision of the State or Provincial Conference’s Constitution and By-Laws is inconsistent with IU law, that provision shall be of no force and effect. In order to assure compliance with this Section, all State or Provincial Conferences shall within fifteen (15) days of their adoption forward to the IU Secretary-Treasurer any amendments to their Constitution and By-Laws.
More importantly, the Local Union Constitutions do not reflect or contemplate the existence of an autonomous entity which has surrendered a limited and defined portion of its sovereignty to the IU. There is simply nothing there. The basic powers necessary to function as a subordinate local union are found in the by-laws, but they are still very much bound to the IU. For example, Article XVIII (2) provides:
- Amendments shall become effective immediately upon their adoption unless otherwise specified in any particular amendment as adopted, in compliance with Article VIII, Section B of the I.U. Constitution all amendments must be submitted to the I.U. Secretary within fifteen (15) days of their adoption.
Provisions in each Local Union Constitution create oaths of office, obligations upon revocation of charters, and requirements to belong to provincial councils which mirror those found in the International Constitution. Further, the Local Unions are specifically bound to Code 5 and Code 6 of the International Constitution. Code 5 is a disciplinary code which, typically enough, provides for sanctions for anyone seeking to encourage a local union to disaffiliate from the international union.
97The OPC Constitution is, constitutionally, an even more dependent body. It is purely the creation of the IU (see Article I (2)). Constitutionally, it is simply a coordinating body whose existence derives exclusively from a charter from the IU and participation by the Local Unions. Counsel for the IU was correct in stating that the OPC Constitution must be read in conjunction with the IU Constitution. As a constitutional document, the OPC Constitution is insufficient to create a viable trade union. Indeed, it was for that reason that the “amendment” of the OPC Constitution was in fact an amalgamation of provisions from the OPC and IU Constitutions.
98Indeed, it is the International Union alone which has control of the destiny of the IU and affected Locals. Article X-C provides that local unions must belong to a provincial council when the IU charters one (although the IU is also obliged to charter one if a sufficient number of locals demand it). Article XVI (3)-Q reserves to the Executive Board of the IU the power to merge or amalgamate with other national or international labour organizations.
99Further, there are numerous provisions in all three Constitutions which bind the Local Union and the OPC to the IU. These provisions include: a pledge of loyalty required of officers at all three levels; the financial obligations of Local Unions to the IU; the power in the International Union to veto any by-laws passed by the OPC or by a Local Union, which themselves are required to be in conformity with the International Constitution in the first place; the requirements to act in accordance with the IU Constitution at all times; the offences under Code 5 which are designed to ensure loyalty among members and affiliates.
Revocation under the Constitutions
100However, this relationship among the three entities does not define the effect of revocation. Revocation is dealt with separately in these documents. It is the act exclusively of the IU (Article XVI-N) subject to both procedural rules and substantive restrictions. However, the consequences of revocation of a charter are ambiguous. The IU Constitution at Article VII-I provides:
Upon the revocation of a Local’s charter, where such revocation is not due to a consolidation of Local Unions, its funds or assets shall become the property of the Death Benefit Fund. … No Local shall distribute any portion of its funds or other assets to its members.
Although the OPC Constitution does not explicitly reflect this, its failure to do so, is in keeping with its institutionally subordinate nature. Local Union constitutions do reflect this provision. For example, in Article XVI – 2 a Local Union’s by-laws provide:
Upon the revocation of this Local’s charter, where such revocation is not due to a consolidation of Local Unions, its funds or assets shall become the property of the IU Death Benefit Fund. The Local shall not distribute any portion of its funds or other assets to its members.
Two things are immediately apparent. First, that the provision deals only with assets, not with the existence of the Local Union. Nowhere in the IU Constitution or the Local Union Constitution is there a requirement that the Local Union wind up its affairs and dissolve itself. Its attributes, other than assets, are otherwise untouched. Indeed, bargaining rights (which of course are the Board’s focus) are not dealt with to any extent at all. Only the IU Constitution, Article VII in sections G to I and O to P deal with collective agreements or bargaining rights. These provisions are typical of international constitutions, and are designed to insulate the IU from financial liability arising from strike action or collective agreement activity on the part of the Local Union.
101To apply these contradictory constitutional provisions to the facts of this case make the task of determining the effect of revocation even less clear. The BACU does not assert that it relied on a constitutional right to disaffiliate. The only basis for such action would be Article VII-I which requires essentially unanimity of all members of a local union and, curiously, is itself contrary to various other provisions of the Constitution. There is clearly no right to disaffiliate with the assets and bargaining rights intact as there was in Coca-Cola (No. 2), supra, or Great A & P, supra. Indeed, it was Mr. Wilson’s evidence that he believed the IU had done the BACU a favour by revoking the charters. Had they not done so, he expected that the Locals would be forced to remain in the IU, but hoped (for reasons not clear to the Board) that they would retain the status of “B” Locals.
102If the BACU’s theory about its capacity to undertake this action is correct, the process it employed to constitute itself as an independent union and the Locals as new independent Locals was, in the Board’s view, effective. The IU argued that the provisions of the OPC Constitution and the Local Union Constitutions, which tie them to the International Union, would make such amendments ineffective. They rely on Lakeman v. Barrett, supra.
103The Board disagrees. If the IU unilaterally cuts the tie between it and a local union, the local union is surely not shackled by obligations to have the IU (to which it is no longer affiliated) approve changes to its constitution. It is free to order its affairs as it sees fit. It does not lie in the mouth of the IU, having revoked the charter of affiliation, to then argue that the OPC or Local Union By-law amendments are ineffective because they failed to forward the by-law changes to the IU for approval within fifteen days. The revocation of the charter ends that relationship between the two entities.
104More fundamentally, each local union is a trade union. As such it is, at least in some limited sense, an organization formed by a group of persons who have agreed by a “constitutional contract” to bind themselves to certain rights and obligations. The agreement is among all of the members with each other. At most, the IU may be able unilaterally to sever the agreement between that group of members and the rest of the members of the IU. When it does so, however, it makes itself a stranger to the “constitutional contract” among all of the members of the local union. As such, it has no authority to alter, much less to abrogate or disallow, any subsequent changes that those members may agree upon.
105Beyond that, the process of transforming the old unions, or creating a new union and transferring all rights and assets to it, need not be further detailed in this decision. The process followed was one which took every possible step this Board has ever suggested was necessary in any decision about the creation of a trade union or about successorship of trade unions. Whatever needed to be done was done at least twice, if not three or four times.
106The question then is whether, on the facts, an effective revocation of the charters of the Old OPC and Old Locals occurred. The IU purported to revoke the charters of affiliation on October 19, 1998. It did not withdraw that revocation until after the release of the Second Bloch Decision and the filing with the Board of the IU’s statement of the relief it asserted was appropriate on August 16, 1999. The BACU states that it accepted the revocation from the outset. Their initial actions and words, and their pleadings in all matters before this Board assert that they did. However, the IU, since it now thinks better of its own actions, asserts that, notwithstanding the BACU’s statements, the BACU has not acted in a manner consistent with an acceptance of the revocation. Rather, it asserts the BACU has sought to take advantage both of its status as an affiliate of the IUBAC for some purposes, and of its status as an independent union for others.
107There is little point in tracing the intricacies of the arguments made by counsel about what the parties did, and what counsel said before which tribunal over the course of the past three years. In the realm of purely private action, if one is looking for the elements of offer and acceptance, only two actions of the BACU appear to be equivocal. First, it participated in the trial of an issue before Vice-Chair Bloch about whether or not the IU revoked the charter properly under the Constitution. Vice-Chair Bloch found that the International Union had not done so. If the BACU’s position was that it had accepted the revocation, it is difficult to understand why it would have bothered to participate in that litigation. If it was content to accept the revocation, it surely had no interest in answering the question at all, or at the very least, not in the way it was eventually answered. The result is also a finding by the Board that the revocations were not effected in accordance with the Constitution. This is binding on the BACU and the IU. The IU argues that this finding makes the decision to revoke a nullity, although the Board does not accept or reject that principle here. On the other hand, this issue seems to have arisen in the course of the litigation and was not an issue that the BACU sought to have adjudicated by the Board.
108More importantly, the BACU did not attempt to treat the revocation as a constitutional act which it fully embraced. It did not accept the consequences of revocation and, in accordance with Article VIII-I deliver or attempt to deliver all of its “funds or assets” to the Death Benefit Fund. The BACU attempted to justify its action on the basis of a proprietary interest in a share of the IU’s assets or alternatively by equating the assets in Ontario as equal to the quantum of damages arising out of the violation of sections 147 and 149. These theories were only outlined by counsel, and the Board has some difficulty understanding how they could have any validity. On the other hand, it is hardly an intuitive or sensible reaction on the part of a local union which is under attack from its international union to hand over all of its funds and assets. To deprive itself of the funds necessary to carry out its responsibilities as a bargaining agent may well be a violation of, at the very least, sections 74 and 75 of the Act. However, this is the theoretical result of the BACU’s attempt to rely so heavily on the actions of the IU in issuing its revocation.
The “Transformation” of the Old OPC
109In the end, it is not necessary to determine whether, as part of a private law, offer-and-acceptance analysis, the Old OPC or the BACU took a step which deprived it of the ability to treat the IU’s revocation as effective. For two reasons the Board finds that the steps taken by the BACU on and after November 7, 1998 were not effective to transform the Old OPC into the entity the BACU claims to be. First, while the BACU may be capable of being an Employee Bargaining Agency, it is not as a matter of statutory definition capable of becoming the specific EBA which it purported to become. Second, once the BACU filed its application in Board File No. 2532-98-U, section 147(5) removed the theoretical underpinning of all of the BACU’s subsequent action. We will deal with each of these issues separately.
110It is important to focus on the specific assertion made by the BACU in this case. It does not assert that it is an EBA. This is not an application under section 154 in which the BACU asserts that it represents a double majority of a group of affiliated organizations, being the new BACU Locals. Rather, the BACU asserts that it is one and the same entity as the Old OPC; that it has made certain internal changes consequent on the revocation of charters by the IU; that it has transformed itself into a new organization; and that notwithstanding that transformation it retains all the organizational and statutory rights, privileges and duties of the Old OPC. The BACU seeks to carry with it all of the attributes of the Old OPC and the Old Locals, and also Locals 6, 7, and 25 which want no part of this new order.
111The BACU’s theory simultaneously attempts to draw too much from, and is ultimately in conflict with, the province-wide bargaining regime created by sections 151-168. The BACU’s theory is an attempt to conflate the institutional existence of the old OPC and the statutory status of an EBA. The theory starts with the proposition that the Herman Decision creates an institutional entity which draws its institutional existence from its status as an EBA. The BACU argues:
It is the position of the Applicant that pursuant to the statute, pursuant to its role as the certified EBA and pursuant to its obligation and right to represent its affiliated bargaining agents, it is entitled to bring an application for certification in any name its members choose and to seek statutory or successor status under section 68 of the Act. The constitutional arrangements of the [IU] should not be read as overriding the rights under the statute. Constitutional breaches, if any are found, cannot constitute obstacles to the exercise of statutory rights. There is no right of veto by an [IU] contained in section 68 as there was no such right in section 154. A request for status or a section 68 application may be made by a union under the statute and so long as its constitution allows for the application, the parental disapproval or the parent’s constitution cannot disallow the exercise of statutory rights.
112In fact, the institutional existence of the OPC and its statutory status as an EBA are quite separate. The Old OPC was the same institutional entity the day before and the day after the Herman decision. When the Board certified it as the sole EBA, it thereby gave it certain statutory rights, duties and powers. But these rights, duties and powers were exercised by the Old OPC. They are not in and of themselves the Old OPC.
113The Old OPC was, as an institution, capable of fulfilling the duties and exercising the rights of an EBA. The definitions of an EBA and an ABA found in section 151 are as follows:
"employee bargaining agency" means an organization of affiliated bargaining agents that are subordinate or directly related to the same provincial, national or international trade union, and that may include the parent or related provincial, national or international trade union, formed for purposes that include the representation of affiliated bargaining agents in bargaining and which may be a single provincial, national or international trade union;
"affiliated bargaining agent" means a bargaining agent that, according to established trade union practice in the construction industry, represents employees who commonly bargain separately and apart from other employees and is subordinate or directly related to, or is, a provincial, national or international trade union, and includes an employee bargaining agency;
The Old OPC was an organization of ABAs (in this case all fourteen Local Unions and the International Union). The ABAs were all directly related to the same international trade union: the IUBAC. The Old OPC was formed for purposes which included the representation of those ABAs in bargaining. The Old OPC met the definition of an employee bargaining agency as part of the EBA in 1978, and met that definition as the sole party making up the EBA after the Herman Decision. It was therefore capable of exercising the statutory authority in sections 156, 158, 162-165 and 167-168. Those statutory rights and privileges attach to, rather than create, the institutional existence of the Old OPC.
114On November 6, 1998, the Old OPC was an organization of ABA’s which, whatever the status of the IU, included all fourteen Locals. All were bound to the same provincial agreement. The Old OPC had been certified pursuant to section 154 to represent those ABA’s in bargaining the two Provincial Collective Agreements it had just concluded. As part of those collective agreements it had negotiated a strong coordinating role for the Old OPC (for example the payment of working dues is made to the OPC).
115On November 7, 1998, the BACU was created. This was an act which those participating in the event were entitled to undertake. However, the primary object of the exercise was to transform the Old OPC into a new organization, the BACU, which retained the organizational, statutory and contractual rights, powers and authority as the OPC (in a constitutional sense) and as the EBA (in a statutory sense). It could not do so as the BACU as an organization, lacked the organizational elements necessary to meet the definition of an EBA.
116On November 7, 1998 there were in fact no ABA’s of the BACU at all. None of the Old Locals had taken any of the steps to constitute themselves as BACU locals. Clearly the charters issued by the BACU that day were not regarded as sufficient by the BACU since every local held subsequent membership meetings. Even after that process had been completed by the last of the 11 locals in February of 1999, Locals 6, 7, 25 and the IU were still not directly related to it in any way. The chartering of BACU Locals 6, 7 and 25 does not assist the BACU. They have only a notional existence. Since they have no members and no executive, other than a “trustee”, they are not even trade unions as defined in the Act. More importantly, Locals 6, 7 and 25 of the IUBAC are all bound to the Provincial Collective Agreements as is, at least to the extent that it holds any bargaining rights, the IU. Thus the BACU could not be the EBA for the purposes of the two Provincial Collective Agreements, because three or four of the parties to that agreement were not affiliated to it.
117The Act does not give the EBA the authority to require or force ABA’s into any sort of organizational change. Its authority to bind an ABA to an agreement notwithstanding an ABA’s objection is the limited one set out in section 156:
- Where an employee bargaining agency has been designated under section 153 or certified under section 154 to represent a provincial unit of affiliated bargaining agents, all rights, duties and obligations under this Act of the affiliated bargaining agents for which it bargains shall vest in the employee bargaining agency, but only for the purpose of conducting bargaining and, subject to the ratification procedures of the employee bargaining agency, concluding a provincial agreement.
118The BACU argued that the Old OPC did in fact have this authority because it, rather than the local unions held all bargaining rights. This is not true generally of an EBA. The ABA’s of the EBA continue to hold bargaining rights, subject to the limitation of section 156. By definition, an ABA cannot “represent employees who commonly bargain separately and apart from other employees” unless it holds bargaining rights. Further, the distinction between the holding and the exercise of bargaining rights is one which informs the few decisions of the Board where the distinction is relevant. In the Herman Decision, the Board did not hold a vote. As Vice-Chair Herman pointed out at paragraphs 53-60, section 154(2) specifically does not require a vote, but simply that the applicant demonstrate that it is supported by a majority of ABAs which “hold bargaining rights for a majority of the employees that would be bound by a provincial agreement”. That is, the ABAs were the source of bargaining rights. Indeed, if the EBA held all the bargaining rights, a section 154 displacement application could never be successful since, if the “incumbent” EBA held the bargaining rights, no other entity could ever satisfy the requirements of section 154(2). The concept that it is the ABAs which hold bargaining rights also underlies the Board’s reasoning in cases involving whether or not there has been abandonment in the ICI sector: Lorne’s Electric Limited, [1987] OLRB Rep. Nov. 1405 and J & D Display Interiors Ltd., [1998] OLRB Rep. Mar. 217.
119The BACU further argued that the OPC held, and could therefore deal with and transfer, bargaining rights because it had been, since 1985 a certified council of trade unions. It argued that, as such, even in respect of bargaining rights arising out of certificates issued before 1985, the Old OPC rather than the local unions was the party to the collective agreements. However, a finding under section 12 that a council of trade unions is an appropriate bargaining agent is dependent on the Board satisfying itself that “each of the trade unions that is a constituent local of the council has vested appropriate authority in the council to enable it to discharge the responsibilities of a bargaining agent.” Such vesting is not irrevocable. Nothing in section 12 prevents a local union from withdrawing from a council, and section 61 specifies how and when it may do so. If and when they withdraw, they do so with their bargaining rights formerly held by the council: see General Contractor’s Section of the London Builders Exchange [1965] OLRB Rep. June 229 and Franki Canada Construction [1969] OLRB Rep. July 559, dealing with uncertified councils. Thus the Old OPC did not hold bargaining rights on which the local unions had no claim whatsoever, nor could it transform or dispose of them regardless of the wishes of its constituent locals.
120There is no equivalent to section 61 with respect to an Employee Bargaining Agency. The Minister may amend, withdraw or cancel a designation (section 153(5)). However, when an EBA is certified by the Board under section 154, it is not clear that section 153(5), which refers to designations rather than certificates, applies. There is no process under the Act for the withdrawal (or expulsion) of one or more ABA’s from an organization. The only statutory route would appear to be an application for certification as an EBA, either by way of displacement or by way of seeking a new certificate for a new organization (which would then have to bargain its own collective agreement). However, even in those circumstances an applicant would have to demonstrate that it meets the statutory definition of an EBA.
121The BACU as an organization cannot meet the definition of an EBA of all 14 Local unions and the IU. Thus, the Old OPC could not transform itself into the kind of new entity it purported to create and retain all of the organizational powers and the statutory rights and powers of the Brick and Tile EBA’s.
122The BACU argues that this interpretation of the statute is one which permits a minority (Locals 6, 7, and 25) to dictate the future of the union to the majority. Even if this were so, that would not be a reason to ignore the statute, but the Board does not accept that as an accurate characterization of the result. The BACU did not attempt to create itself as a new organization and attempt to apply for certification as an EBA of 11 new local unions (which would raise the problems of successorship discussed below). It did not attempt to expel Locals 6, 7, and 25 (assuming it could do so without their consent) and reconstitute itself as an organization composed of 11 real and 3 notional locals, as a rival to the IUBAC and Locals 6, 7, and 25. It sought to use a theory of organizational and statutory power to compel the minority to undergo a fundamental organizational transformation to which it was opposed. Indeed counsel was candid in stating that, if the BACU were successful in this decision it expected Locals 6, 7, and 25 to take up their charters and participate in the BACU. If they did not, the ultimate recourse for the BACU would be to shrink the geographic jurisdiction of those Local Unions to zero and expand that of one or more neighboring Local Unions to encompass the Ottawa, Windsor and Thunder Bay areas. The result in this decision is not a case of the minority dictating to the majority. The result is that the majority may not use its power to obliterate a minority.
Constitutional Steps
123In the interests of clarity, the Board wishes to address one further issue. There were certain amendments passed to the OPC Constitution and the Local Constitutions. The constitutional process requires that they be submitted to the IU for approval or rejection. For the reasons set out above, there was no reason to send those amendments to the IU for its approval in 1998 and 1999, in the face of an IU which insisted it had revoked the charters. This decision clarifies the position of the parties and the obligations of the OPC and the Locals under their constitutions. To some extent both parties “know” the position of the other side. In the course of these proceedings the BACU provided copies of these amendments to counsel for the IU as Exhibits in these proceedings. The BACU knows that the IU is opposed to these amendments and knows, through argument, the reasons why. The parties may have felt constrained from acting on the basis of documents or information received during the course of litigation. To the extent that the Board has any jurisdiction over internal organizational matters of these parties, I find as a fact that neither delivery of the amendments to the IU as required by the OPC and Local Constitutions nor rejection by the IU of such amendments has taken place. Now that this phase of the litigation is complete the parties are left to act in whatever manner they see fit; the Board will not infer or deem that any steps have been taken.
The effect of Section 147(5)
124In addition to the statutory impediments discussed above, the effect of the statute in the course of the litigation in Board File No. 2532-98-U (which still stands adjourned sine die at the request of the parties) removes the theoretical underpinnings of the BACU’s actions. The filing of an application alleging a violation of section 147 of the Act brings subsection 147(5) into play automatically. This subsection does provide for consequences that arise solely from the commencement of the litigation, regardless of the apparent merits or ultimate outcome. Section 147(5) provides as follows:
147(5) If a local trade union makes a complaint to the Board concerning the alteration of its jurisdiction by a parent trade union, the alteration shall be deemed not to have been effective until the Board disposes of the matter.
On the facts of this case, once the application in Board File No. 2532-98-U was filed the “alteration”, i.e. the act of revocation which is the subject matter of the complaint, was deemed not to have been effective until the application is disposed of. That is, there is no revocation which could be treated as an “offer” which was available for “acceptance” once the application had been filed. The application was filed October 23, 1998, well before the BACU convention on November 7, 1998.
125Counsel for the BACU attempted to avoid the effect of section 147(5). He argued that its allegation of a violation of section 147 refers to the chartering of the New Locals and New OPC and only section 149 deals with the revocations. Counsel asserted that this theory of the case was not present in the application or the BACU’s mind when the application in Board File No. 2532-98-U was filed, but that nothing prevented it from drawing that distinction now. The Board disagrees.
126First, as a practical matter, the BACU needed section 147(5) to keep the IU at bay after October of 1998. It repeatedly relied on it in proceedings before this Board and before the court in the injunction applications, and the effect of section 147(5) clearly informs the Memorandum of January 4, 1999. The BACU had no choice. Faced with an IU that was behaving in a manner was insensitive, intemperate, and as ultimately found by the Board, unlawful, the BACU quite properly sought every form of protection available to it. There are, however, costs and consequences that come along with that statutory protection.
127Second, section 147 and the effect of subsection 147(5) were pleaded as a very specific issue in Board file 2532-98-U by the BACU. In the original application filed October 23, 1998, the BACU alleged that all of the facts recited in the application constituted a violation of sections 76, 87(2), 147,149 and 162. At paragraph 20 of the application the BACU pleaded:
The actions of the International Union in revoking the charters of all Locals, except 6, 7, and 25, are clearly designed by the International Union to undermine the statutory bargaining scheme of the Act, and maintain power for the International Union in collective bargaining and the administration of collective agreements, which it has been deprived of as a result of the Board’s decision in certifying the OPC as the Employee Bargaining Agency for both the Brick and Tile Collective Agreements, and is therefore contrary to sections 76, 87, 147,149 and 162 of the Act. (emphasis added)
128In its revised pleadings of December 2, 1998 it asserted:
The actions of the IU as particularized in these documents, constitute violations of Section...147, 149(1) and (2).... With respect to section 147 of the Act, the IU altered the jurisdiction of the OPC and all the Local Unions in Ontario, including Locals 6, 7, and 25 without just cause. In revoking the Local Union and OPC charters, and assigning the jurisdiction of these Local Unions and the OPC to either Local 6, 7, and 25, or to a new OPC and new Local Unions, the IU altered the jurisdiction of the applicants, including the geographic, sectoral, and work jurisdiction from that which existed on October 18, 1998 which was all work within the jurisdiction of the IU in Ontario, and in the territorial jurisdiction of Locals whose charters were revoked.
The action was undertaken without just cause as defined in section 147(3), in that, among other reasons:
(1) The IU constitution does not authorize the revocation of the charters of the local unions or a provincial conference for activities carried out in accordance with the statutory regime in Ontario, and the constitution does not authorize the revocation of charters over a dispute on money owing….
In any event, once the section 147 application was filed, the alteration was deemed not to be effective until the Board disposed of the matter. Further, whether or not the Union Constitution actually allows this action, the actions of the IU are unreasonable and unjust in all the circumstances and contrary to the statute.
With respect to section 149 (2) the IU has, without just cause, removed from office all of the elected officials of the applicant local unions and the OPC, imposed penalties on all the named officials, and on the members of the Local Unions, because they were carrying out their duties and responsibilities under the constitution, and exercising their rights under the Act.
129In the Second Bloch Decision, the Board found:
38…I find, pursuant to section 149, that the IU did not act reasonably and therefore did not have just cause to take the actions it took.
Section 147(3)… requires that the Board look at certain enumerated factors prior to making a determination about just cause. In my previous decision, I found that the IU acted without constitutional authority. In reviewing the remaining factors, I find for the reasons set out below, that the IU acted without just cause when it revoked the charters.…
Having regard to the enumerated factors, I find that the IU, pursuant to section 147 of the Act, did not act reasonably in the circumstances, and therefore did not have just cause to take the action it took.
The BACU do not want their charters back. Suffice it to say that section 147(5) and the January 4, 1999 Minutes of Settlement continue to fill the vacuum left by the BACU’s position. (emphasis added).
130Thus the matter was placed in issue by the BACU, litigated, and an adjudicated result obtained. An application alleging that the act of revocation of the charters was a violation of section 147 was filed by the BACU. By operation of section 147(5) the day the application was filed, the revocation was deemed “not to be effective”. Not only is it what the statute says, it is what the BACU pleaded and relied on in its application. The application was filed October 23, 1998, well before the November 6, 1998 convention. In fact, although it is unnecessary for the application of subsection 147(5), the BACU has been proved correct in its assertion. The July 19, 1999 decision is res judicata and binding on all of the parties, including the BACU. Thus, as among these parties, the revocation was an alteration of jurisdiction within the meaning of section 147.
131By virtue of the filing of an application alleging that the revocation was a violation of section 147, the statute deems the revocations not to have been effective. They were not available to be accepted or acted upon on November 6, 1998 by the BACU. As of August 16, 1999 the revocations were withdrawn by the IU.
132This may seem like a harsh result to the BACU. However, this is the effect of the statute. It is a blunt and inflexible provision. An applicant has no choice but to accept all of the consequences of section 147(5) when it files an application. The statute gives the applicant no choice. It gives the Board no discretion to modify or limit the effect of the subsection. For an applicant it is an all or nothing proposition.
3. Successorship and section 68: The Board’s discretion
133The BACU and its locals argue in the alternative, that the Old OPC and the Old Locals transferred all of their property, assets and bargaining rights to the BACU and its locals. They “seek a declaration that these successors have acquired the rights, privileges and duties under the Act of their respective predecessors” under section 68. That section provides:
- (1) Where a trade union claims that by reason of a merger or amalgamation or a transfer of jurisdiction it is the successor of a trade union that at the time of the merger, amalgamation or transfer of jurisdiction was the bargaining agent of a unit of employees of an employer and any question arises in respect of its rights to act as the successor, the Board, in any proceeding before it or on the application of any person or trade union concerned, may declare that the successor has or has not, as the case may be, acquired the rights, privileges and duties under this Act of its predecessor, or the Board may dismiss the application.
(2) Before issuing a declaration under subsection (1), the Board may make such inquiry, require the production of such evidence or hold such representation votes as it considers appropriate.
(3) Where the Board makes an affirmative declaration under subsection (1), the successor shall for the purposes of this Act be conclusively presumed to have acquired the rights, privileges and duties of its predecessor, whether under a collective agreement or otherwise, and the employer, the successor and the employees concerned shall recognize such status in all respects.
134In dealing with the successorship issue, the BACU again asserts that the Board has only a limited discretion under the Act. It argues that the act of merger, amalgamation or transfer of jurisdiction is fundamentally an institutional act determined by the terms of the Constitution. The BACU asserts the Board’s discretion under section 68 is limited to the holding of a vote under section 68(2) if the constitutional process results in what the Board deems to be inadequate consultation with the members of the union. In the Board’s view, this argument misperceives the nature of section 68. The section deals with “rights duties and privileges under this Act”. It is concerned with statutory rights (which are ultimately founded on majority support from employees and members) rather than private rights (arising from institutional or proprietary rights). As the Board said in Melnor Manufacturing Limited, [1989] OLRB Rep. April 360:
Several important principles emerge from the Waterloo Spinning Mills Ltd. case. First, in exercising our jurisdiction under section [68], we are concerned with the acquisition, exercise and transfer of all collective bargaining rights. Secondly, the “essence” of a trade union under the Act is that it is an organization of employees which has, among its objects, the regulation of relations between employees and employers through collective bargaining. All other objects are “ancillary or superfluous”. Thus, the object of regulating relations between employees and employers is the “essential object” of a trade union that Astgen v. Smith is concerned about….
The Labour Relations Act in section [68] does not concern itself with the affiliation of a trade union. But section [68] does concern itself with whether an organization does have as its objective collective bargaining so that it can be capable of acquiring the rights and responsibilities under the Labour Relations Act.
See also Waterloo Spinning Mills Ltd., supra, para 36 and 41 and MLS Cable Installations Inc. [1987] OLRB Rep. Nov. 1413 para 10.
135The analysis of a “claim” under section 68(1) is a different analysis from that which the Board undertakes in looking at the question of whether an organization is a trade union within the meaning of sections 1(1) and 126. Section 68 uses the word “may”; that is, it gives the Board a discretion about whether it will issue a declaration under the Act. This is in contrast to section 69 which deals with successor employers. The Board is not given a discretion about whether or not to declare that there has been a sale of a business. The Act makes the consequences of a “sale” (as defined in section 69(1)) automatic. The Board’s inquiry is limited to determining if the commercial transaction fits the statutory definition of a “sale”. Its discretion arises with respect to some of the consequences of this finding.
136This makes sense given the scheme of the Act. Employers may sell, lease, transfer or dispose of a business or part of a business in an infinite variety of commercial dealings. The bargaining or collective agreement obligations on the employer may be at best a marginal consideration in the transaction. The Board has no role to play in the commercial transaction itself: these are matters of property and contract and disputes about them are dealt with in court. The Board does have jurisdiction to examine the facts of the transaction and to determine if the transaction fits the statutory definition of a sale. The Board may also deal with some of the labour relations consequences of the transaction.
137Similarly a trade union is created by virtue of a “private” contractual agreement among union members. The Board does not regulate the formation of a trade union, but simply finds whether an organization meets the definition of a “trade union” as defined in the Act. As noted above, the Court of Appeal in CSAO (National), supra, has restricted the Board’s role to determining whether an organization meets the definition of the statute. The Board may not impose any other requirements not found in the statute.
138Section 68 deals with bargaining rights. The Board may declare that the successor has “acquired the rights, privileges and duties under this Act of its predecessor”. That is, the Board is dealing exclusively with statutory rights created by or arising under the Labour Relations Act. Bargaining rights (or indeed any right, privilege or duty under the Act) are not a species of private property. They may not, as of right, be sold, leased, transferred or disposed of. They are creatures of the statute. Thus section 68, which deals with statutory rights, gives the Board a discretion to ensure that “successorship” transactions are in accordance with the specific provisions and general labour relations principles of the Act.
139This discretion is evident in the Board’s concern that members of the union be given adequate notice of the proposed events and an opportunity to express their consent or rejection of the proposal. If there is not, then the Board may order a vote under section 68(2). Such a vote will likely have little to do with the unions’ constitutions and almost everything to do with the Board’s desire to ensure that the majoritarian principles of the Act are reflected in the transaction. The Board disagrees with the BACU’s argument that this is the limit of the scope of the Board’s discretion. There is no such restriction suggested in the section and subsection 68(2) simply provides the explicit power to the Board to conduct a vote, if necessary. The vote is simply one factor in the exercise of the Board’s discretion. As the Board said in The Great Atlantic and Pacific Company of Canada Limited [1993] OLRB Rep. Sept 885:
- In other words, section [68] is part of a complex statutory scheme for collective bargaining in Ontario that reflects a marked departure from the common law view of unions as voluntary associations. While common law principles may be helpful in determining applications under section [68], they must be considered in a context which includes both the realities of modern labour relations and the specialized legal structure which regulates them.
140That discretion is, of course, one which must be exercised in a proper fashion. The Board agrees with the BACU that, at least on the facts of this case if not generally, the exercise of that discretion does not favour International, National or Provincial Unions as a preferred form of organization. No such preference is suggested in the Act and there is no labour relations policy which would suggest such a preference. Similarly, many of the arguments made and (as predicted by the BACU) the evidence called on this issue is at best marginally relevant to any issue under section 68. To the extent that these arguments have any weight, such considerations are appropriately directed to the Board’s remedial authority under sections 147 and 149. The Board’s discretion under section 68 will generally be founded on the specific provisions of the Act or a policy issue arising from it.
The BACU as Successor to the Old OPC
141Generally, the Board will begin its inquiry by examining the constitutional steps taken by the various parties. Many decisions of the Board have dealt exclusively with the issue of whether or not a trade union has complied substantially with its own constitution, with no further analysis of other legal issues. However, such substantial compliance is only the first step in the exercise of the Board’s discretion under section 68.
142In this case, numerous arguments were made by the parties as to the constitutional adequacy of the various motions and resolutions, and the capacity of the Old OPC to engage in the transactions undertaken. The Board finds it unnecessary to deal with these arguments. To a great extent, the effect of subsection 147(5) again undercuts the logical basis of those actions. If the revocations were “not effective” after October 23, 1998, the actions of the OPC and the Locals amount to an attempt to disaffiliate, something they did not intend to do (and Mr. Wilson believed they could not do) and which raises a number of constitutional difficulties.
143Even if the Board were to ignore the provisions of the various Constitutions, or assume that in the circumstances the acts taken constituted substantial compliance, the Board declines to declare that the BACU is a successor to the Old OPC for several reasons.
144First, as the Board has already noted above, the BACU could not have transformed itself in the organizational sense and retained for itself the statutory rights duties and privileges of the EBA certificates. The same analysis applies with respect to a transfer of jurisdiction. It is difficult to accept that an organization which fits the definition of an Employee Bargaining Agency can transfer its bargaining rights as an EBA to an organization which does not meet that definition. Even if it could (which the Board does not accept) the Board would certainly not exercise its discretion to, in effect, undermine the statutory definition of an EBA. The legislature has prescribed a specific manner in which the statutory province wide bargaining rights as an EBA are to be acquired, held and exercised by an organization seeking that status. It would not, in the Board’s view be a proper exercise of its discretion under section 68 to create an alternative scheme not sanctioned by the Act.
145The Board notes the argument of the IU and Locals 6, 7, and 25 that bargaining rights as an EBA are not legally capable of a transfer as defined in section 68. This is based on the Board’s opinion to the Minister found in The Matter of Certain Designations of Certain Employee and Employer Bargaining Agencies, [1980] OLRB Rep. Apr. 497. This was in fact an opinion to the Minister. It dealt with the effect of designations, rather than with certification under section 154. The Board specifically declines to comment on this issue in this decision, as it is not necessary to do so.
146Second, the “transformation theory” was developed by the BACU in part as a way of forcing Locals 6, 7, and 25 to affiliate to and participate in the BACU contrary to their wishes. It has indicated that it will use all sanctions available to it up to and including the elimination of the three locals (assuming such actions could withstand a challenge under section147 and 149). Aside from the issues of statutory interpretation addressed above, the Board declines to exercise its discretion to permit a majority within a union to oppress if not extinguish a minority within the organization.
147The third difficulty arises from the collective agreement with the Electrical Power Systems Construction Association (“EPSCA”). The IU is a party to that collective agreement, as well as the OPC. The IU did not abandon its bargaining rights under this agreement. The act of revocation, on which the BACU theory rests, does not contemplate abandonment of IU bargaining rights. Even if the OPC could transfer its bargaining rights to the BACU, it has no right to affect those of the IU.
148If the Board were to exercise its discretion in favour of finding the BACU to be the successor to the Old OPC, that would create a collective agreement with a recognition clause which recognizes as sole and exclusive bargaining agent two separate and distinct unions with no institutional link between them. There is no statutory or jurisprudential basis for a theory that two different (and in fact hostile) trade unions can share bargaining rights in a kind of joint fashion. When EPSCA calls a hiring hall for bricklayers or tilesetters, which hiring hall do they call? How does one resolve disputes over who should supply tradespersons to EPSCA members? The jurisdictional dispute mechanism under section 99 might fit, but is hardly appropriate. Which union will appoint stewards? Both could file grievances and proceed to arbitration before different boards of arbitration and obtain different results. The result is conceptually impossible. The bargaining rights held under this collective agreement could not be transferred to the BACU so long as the IU is a party to it.
149For all of these reasons, the Board dismisses the alternative application for a declaration that the BACU is the successor to the Old OPC.
Successorship and the BACU Locals
150This raises a final question. Did the Old Locals transfer their bargaining rights to the new BACU Locals as a result of the Local membership meetings held between November 1998 and February 1999? Certainly the BACU Locals “claim” that the Old Locals have transferred their bargaining rights to them as part of the overall process of transferring jurisdiction. No argument was directed by the BACU or any of the parties to the possibility that the eleven locals had transferred their bargaining rights to eleven BACU Locals independent of any other result. The Board is reluctant to comment at great length about a result which was not sought by the applicant or argued by the parties.
151Perhaps the most persuasive argument against the exercise of the Board’s discretion in this fashion is the fact that the BACU did not suggest that it sought a declaration that there had been a transfer of jurisdiction from each of the Old Locals to the corresponding BACU Local independent of any other transfer of jurisdiction. It is not hard to see why. In the ICI sector, what would be transferred? Since each Old Local could only transfer its own bargaining rights, what could each BACU Local receive? Can the Board or a local union carve up a Provincial Collective Agreement into 12 separate pieces? Does such a transfer of jurisdiction create 12 separate Provincial Collective Agreements , one with the OPC and Locals 6, 7, and 25 as the union, and 11 others with separate BACU locals as the union party? Would this mean that one employer would suddenly find itself a party to 12 (or 24) collective agreements, each identical and conflicting? Clearly the BACU did not find any of these prospects worth pursuing. Suffice it to say that the Board would not be inclined to exercise its discretion to issue such a declaration under section 68 in these circumstances.
152Further, the Board’s discretion must be exercised in the context of the circumstances of the purported transfer. While the Act does not favour any particular form of trade union organization (international, national or provincial) the Act does contemplate, in the I.C.I. sector a unified approach to bargaining on a province wide basis for craft-based bargaining. Moreover, to issue such a declaration in this case would result in the dissolution of the structure that the same parties persuaded the Herman panel was appropriate in May of 1998. The only thing that has happened since then is the violation of sections 147 and 149 by the IU. Nothing has changed with respect to the nature of bargaining by these parties or the structure in which they bargain. What is true now was true then. The BACU Locals control the OPC through their double majority and thereby control the bargaining and administration of the Provincial Collective Agreements. They have removed the IU from the Employee Bargaining Agency. Dues are a matter between the IU and the Ontario Locals, but there was a resolution that the applicants were prepared to live with in 1998. Certainly the IU no longer has control of bargaining as a way of enforcing a working dues checkoff. The IU retains some constitutional control, but this is subject to the “Bill 80” provisions of the Act which the applicants have used with great success so far.
153The Board has the power to order whatever remedies are required to remedy the IU’s violation in Board File No. 2532-98-U. Even the IU concedes that these remedies will have to go beyond the mere act of revocation (now withdrawn) and must include remedies dealing with the on-going relations between the parties. The attempt to transfer jurisdiction was a response to the IU’s unlawful behaviour. Until it is demonstrated that remedies in Board File No. 2532-98-U are ineffective to deal with the real concerns of the BACU there is no reason to exercise the Board’s discretion to issue a declaration which faces such enormous statutory and discretionary impediments.
IV CONCLUSION AND DECISION
154Accordingly, the Board finds that the attempt by the Old OPC to transform itself into the BACU, in that it was predicated on the revocation of the charters by the IU was ineffective. The operation of subsection 147(5) rendered ineffective the very action on which the entire constitutional change was based. Further, to the extent that the BACU attempted to assume the role of the Employee Bargaining Agency for the purposes of the existing Brick and Tile Provincial Collective Agreements, it did not as an organization meet the statutory requirements of an EBA. Accordingly, the Board finds for the purposes of the Act that the BACU is not one and the same entity as the Old OPC and that the BACU Locals are not one and the same entities as the Old Locals.
155Further, the Board dismisses the application to declare that the BACU is a successor to the Old OPC, or that the BACU Locals are the successors of the Old Locals, within the meaning of section 68.
156This conclusion means that the OPC and the eleven Locals are therefore still affiliated Local Unions and an affiliated council of the IUBAC. The purported revocation was ineffective after the filing of the s. 147 application and was withdrawn by the IU on August 16, 1999. The OPC and the Locals retain all of the rights duties and privileges which they held immediately prior to the revocation.
157However, it is quite clear that the BACU, and the BACU Locals other than 6, 7, and 25, as organizations, are trade unions within the meaning of section 1(1) independent of the IUBAC. All the necessary steps to create a trade union were taken with meticulous care. The Board finds that the BACU and the BACU Locals other than 6, 7, and 25 are trade unions within the meaning of section 1(1). Thus the BACU has status as an applicant in Board File 2784-98-R.
158The BACU and its Locals are different trade unions from the IUBAC and its Locals, although their memberships may overlap. Whether they are also trade unions within the meaning of section 126 is not clear and depends on the final result in Board File 1904-99-U. In any event, it is not necessary to make that finding at this point, nor is it appropriate to do so.
159The applicants in each file are directed to advise the Registrar of how they wish to proceed. These files will be dealt with separately from this point forward. I remain seized of both matters.
“David A. McKee”
for the Board