Antonio Valente v. Local 247 of the Labourers' International Union of North America
[1980] OLRB Rep. May 733
1482-78-U Antonio Valente, Complainant, v. Local 247 of the Labourers' International Union of North America, Respondent.
BEFORE: Rory F. Egan, Vice-Chairman.
APPEARANCES: Moira Bartram for the applicant; B. Fishbein and M. Sullivan for the respondent.
DECISION OF THE BOARD; May 6, 1980
1This is a complaint under section 79 of The Labour Relations Act in which the complainant alleges that he has been dealt with by The respondent contrary to the provisions of section 60a of the Act.
2Section 60a reads as follows:
"Where, pursuant to a collective agreement, a trade union is engaged in the selection, referral, assignment, designation or scheduling of persons to employment, it shall not act in a manner that is arbitrary, discriminatory or in bad faith."
The respondent made two preliminary motions and the Board heard the submissions of the parties with respect thereto.
3The respondent moved for dismissal of the allegations in the complaint with respect to the period of time when its collective agreement was not in effect and had not been replaced by a provincial collective agreement. The motion has its basis in the opening words of section 60a quoted above.
4In Local 247 of the Labourers' International Union of North America, [1979] OLRB Rep. July 675, the respondent, which is the same respondent in the instant case, brought a similar motion. In that case the Board stated in paragraph 9:
"The Board finds that effect must be given to the words 'pursuant to a collective agreement' as meaning a collective agreement current at the time the incident occurred. That being the case, it is incumbent upon the applicant under section 60a to prove the existence of a collective agreement applicable to the situation and containing provisions governing the selection, referral, assignment, designation or scheduling of persons to employment in order to sustain allegations of a breach of section 60a."
5In the above-cited case the Board reserved its decision on the question raised by the motion and heard all the evidence concerning the incidents alleged by the respondent. The Board then found that even if it were to be assumed that all the evidence is admissible, the complainant had not established a case under section 60a. The Board consequently was not required to decide the question as to whether a collective agreement 'current at the time the incidents arose' was actually present or not.
6The Board has also considered the submissions of the parties herein on the question as to whether a collective agreement was in force during the period covered by the allegations and particulars relied upon by the complainant.
7The evidence shows that there had been a collective agreement in force binding upon the respondent union and the Kingston Construction Association which was effective from My 1, 1977 to April 30, 1978, and from year to year thereafter subject to notice. The agreement contained provisions dealing with the hiring of employees through the union office.
8Notice to bargain was given and negotiations finally resulted in the issuance of a "No Board" report by the Minister.
9It was the contention of the respondent that the legislation governing province-wide bargaining which came into effect on April 30, 1978, affected the relationship between the parties and therefore put an end to the collective agreement in any event.
10Section 132(2) of the Act provides:
"Notwithstanding subsection 1 of section 44, every collective agreement in respect of employees employed in the industrial, commercial and institutional sector of the construction industry referred to in clause e of section 106 and represented by affiliated bargaining agents entered into after the 1st day of January, 1977 and before the 30th day of April, 1978 shall be deemed to expire not later than the 30th day of April, 1978, regardless of any provision respecting its term of operation or its renewal."
11The complainant argued that by the use of the words "deemed to expire" in section 132, the Legislature was contemplating the possibility of the provincial agreement not being completed by April 30, 1978. It was observed by counsel for the complainant that the legislation contains no specific provision dealing with any period of time during which, after April 30th, there would be no agreement in force and no provincial agreement had been concluded. The submission was that the Legislature would not intend to leave a hiatus between April 30th and whatever date the province-wide agreement might be signed in which the union, in this instance, could do as it pleased while a member could not know if its actions were in accordance with the union conduct to which he had been accustomed under the collective agreement. It was submitted that in the absence of a collective agreement, there is a duty on the union to honour the terms of the old agreement and the Board should require the union to honour the intent of the old agreement until the coming into effect of the province-wide agreement.
12It is clear from the legislation [section 132 (1)] that except for collective agreements which were in operation at the time the sections came into force, every agreement entered into after January 1, 1977 and before April 30,1978 shall be deemed to expire not later than April 30, 1978 "regardless of any provision respecting its term of operation or its renewal". The word "deemed" in this instance has finality and its use is made necessary only for the reason that most agreements contain provisions with respect to continued operation or renewal in the event of failure of a party to give notice of intent to bargain. The notion of finality is emphasized in section 133(2) which provides that there shall be no bargaining for or attempting to bargain for nor no concluding of a collective agreement or any other arrangement affecting employees represented by affiliated bargaining agents other than a provincial agreement and that any other agreement shall be null and void. Subsection (3) of section 133 again marks April 30,1978 as the commencement date for the new agreements and, consequently, the expiry of the old.
13It is, of course, obvious that the legislation contains no provisions directly governing the rights of the parties in the event of the failure (as happened here) to conclude a province-wide agreement at or before the expiry date of April 30th. Whatever the reason for that may be, it does not lie within the power of the Board to remedy the situation, as suggested by the complainant, particularly in view of the unmistaken intent of the legislation to bring to an end at April 30th all agreements save those noted above.
14During the hearing, however, the question was raised as to whether section 70(1) could be said to apply to the instant situation. Section 70(1) is as follows:
"Where notice has been given under section 13 or section 45 and no collective agreement is in operation, no employer shall, except with the consent of the trade union, alter the rates of wages or any other term or condition of employment or any right, privilege or duty, of the employer, the trade union or the employees, and no trade union shall, except with the consent of the employer, alter any term or condition of employment or any right, privilege or duty of the employer, the trade union or the employees,
(a) until the Minister has appointed a conciliation officer or a mediator under this Act, and,
(i) seven days have elapsed after the Minister has released to the parties the report of a conciliation board or mediator, or
(ii) fourteen days have elapsed after the Minister has released to the parties a notice that he does not consider it advisable to appoint a conciliation board,
as the case may be; or
(b) until the right of the trade union to represent the employees has been terminated,
whichever occurs first."
15The submission of the union was that section 70(1) did not have any application in a section 60a case since it obviously did not keep a collective agreement in force, whereas section 60a only applied where an agreement was in operation at the time of the alleged offence. The fact that section 70 makes specific provision for arbitration, it was argued, fortifies the view that section 70 does not preserve the collective agreement.
16In view of the manner in which the Menacho case (Local 247 of the Laborers' International case cited above) was decided, it was unnecessary to pursue the question as to the application of section 70 to a section 60a case. The matter is, however, relevant to the present situation.
17Section 70 is clearly designed to deal with the situation where, after notice, no collective agreement is in operation. That was the situation in the present case following April 30, 1978. In the absence of language in the sections governing province-wide bargaining dealing with the question of a hiatus, it must be presumed that the Legislature was aware of the presence of section 70 in the Act and were content to let it govern the situation to the extent of its terms.
18There can be no doubt that the hiring-hall arrangements which obtained under the collective agreement which expired on April 30th fall within the meaning of "any other term or condition of employment" as these terms are used in section 70(1). The unilateral alteration which would include the suspension of these terms is prohibited by section 70(1) until the expiry of the time limits set out in that section. There is nothing in section 70(1) which exempts hiring-hall arrangements from its scope, nor do the words "pursuant to a collective agreement" appearing in section 60a prevent the application of section 70(1). The matter was not dealt with in the Menacho case as already noted, and while that decision refers to a collective agreement "current at the time the incidents occurred", that phraseology does not override, in a section 60a situation, the applicability of the provisions of section 70 within the time limits set out therein. It follows, therefore, that the hiring-hall system as it had operated under the collective agreement is preserved by section 70(1) for fourteen days following the release of the "No Board" report and any alleged breach of the system during that time is properly before the Board, whereas any following the expiry of the time limits are excluded.
19A further objection was taken by the union to the hearing of evidence with respect to allegations of breaches of section 60a occurring as far back as 1975 and 1976 when the application was not made until November 27, 1978.
20With respect to the question of delay as related to complaints brought under section 79, the Board said in CCH Canadian Limited, [1977] OLRB Rep. June 351:
"The Board as a general rule will not refuse to entertain a complaint under section 79 only because of a delay in lodging the complaint. Where unreasonable delay has occurred, the Board in most cases will simply take this factor into account in assessing any compensation which might be awarded. In the instant case, however, we are of the view that because of the extreme delay in the filing of the complaint and, in the circumstances, the lack of any mitigating factors which might justify or excuse such a delay, the Board should exercise its discretion under section 79 of the Act and refrain from inquiring into the complaint."
Similarly in the Concrete Construction Supplies case, [1979] OLRB Rep. Aug. 739, the Board stated:
"It is not the practice of the Board to bar complaints under section 79 unless there has been extreme delay. In the case of complaints involving alleged violations of section 60, the Board's practice has usually been to hear the complaint and consider delay, if it is unreasonable, when considering the relief to be given."
See also The Ontario Paper Company Limited, [1980] OLRB Rep. Jan. 76.
21In view of the fact that the complaints in the present case are alleged to be related to a course of conduct that is said to have been exercised against the complainant despite his protests, and having in mind the views of the Board in the cases set out above, the Board proposes to hear the evidence with respect to all the allegations except those excluded under the ruling of the Board set out above.
22The matter is referred to the Registrar for listing for continuation of hearing in accordance with the foregoing.