[1981] OLRB Rep. January 26
1467-80-M; 1824-80-M The Ontario Pipe Trades Council of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada and Local Union 71 of the Council, Applicant, v. Eastern Sheet Metal and Mechanical Contractors, Respondent, v. Mechanical Contractors Association of Ottawa, Intervener #1, V. Mechanical Contractors Association of Ontario, Intervener #2: Mechanical Contractors Association Ontario, Mechanical Contractors Association Ottawa, Applicants, v. Eastern Sheet Metal and Mechanical Contractors, Respondent
BEFORE: N.B. Satterfield, Vice-Chairman, and Board Members C.G. Bourne and W.F. Rutherford.
DECISION OF THE BOARD; January 26, 1981
1These are two referrals under section 11 2a of The Labour Relations Act which were consolidated by the Board at a hearing on December 4, 1980. The Board issued an interim decision on December 10, 1980 in which it determined the grievance in Board File No. 1467-80-M. The decision herein deals with the grievance referred in Board File No. 1824-80-M. The interim decision set out the latter grievance in the following terms at paragraph four thereof:
The grievance referred in Board File No. 1 824-80-M alleges that the employer is bound to a current collective agreement between the Mechanical Contractors Association of Ontario and the Ontario Pipe Trades Council of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada and was also bound to its predecessor collective agreement. The grievance further alleges that the employer has violated both of these collective agreements by failing to pay since April 1, 1980, the required contributions to the industry fund established under those agreements to and on behalf of the Mechanical Contractors Association of Ottawa which is the zone association within the meaning of these agreements that operates within the geographic jurisdiction of the union.
2For ease and consistency of reference, the Board will refer to the parties in the same terms as were used in the interim decision which were as follows: the Ontario Pipe Trades Council of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada ("the council"); its Local Union 71 ("the union ); Eastern Sheet Metal and Mechanical Contractors ("the employer"); and the applicant Mechanical Contractors Association of Ontario ("the association"). The applicant, Mechanical Contractors Association of Ottawa, will be referred to as "the MCA-Ottawa". The decision will refer to the interveners collectively as "the associations".
3The unusual feature of the grievance before the Board in Board File No. 1824-80-M is that it is brought by the associations against the employer who is represented by the association in collective bargaining in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario. The association is the designated employer bargaining agency for the employer pursuant to section 127(1) of the Act. Similar circumstances were dealt with by the Board in its decision in J. G. Rivard Limited, [1980] OLRB Rep. July 1009. The associations were the applicant in that case, also. The grievance in that case was brought under the Ontario Provincial Collective Agreement between the association and the council which expired April 30, 1980, and is the predecessor agreement to the one under which the grievance at hand was filed. the Board in Rivard, supra, considered whether the association, or one of the contractors for which it was the designated employer bargaining agency, could refer a grievance against the other under the provisions of section 112a of the Act. Rivard was a contractor represented in collective bargaining by the association. The Board held that, while either of them could refer a grievance under that section, the wording of numerous other sections of the Act made it clear that a collective agreement is between parties of opposing interests and only grievances between such parties might be referred to the Board under the provisions of section 11 2a. In other words, the Board held that it did not have jurisdiction under section 112a of the Act to determine the issue between the association and Rivard. In so doing, the board was following its earlier reasoning in J. G. Rivard Limited, [1976] OLRB Rep. Sept. 540, a decision affirmed by the Divisional Court. In the interval between the Board's two decisions, section 112a was amended and section 134(3) was added to the Act. The Board's decision in the later case makes it clear that, in its view, these changes in the Act were procedural in nature and did not alter the correctness of its earlier decision. In this respect, see paragraph twenty of the Board's decision in Rivard [1980], supra.
4Counsel for the associations contends that section 112a requires the Board to interpret a collective agreement whenever a grievance is referred to it concerning the interpretation, application, administration or alleged violation of the agreement. More specifically, the Board in the instant referral must interpret clause 17.2 of the agreement, which gives the association the right to bring a grievance against the employer. Counsel contends that the Board in Rivard [1980], supra, failed to deal with the fact that clause 17.2 had been amended since the Board's decision in Rivard [1976], supra, to provide specifically for the association to bring grievances against the employers for which it was the bargaining agent.
5The Board cannot agree with counsel's argument. It ignores the fact that the Board in both Rivard decisions found that it did not have jurisdiction pursuant to section 112a to determine the grievance between parties of like interest under a collective agreement because a dispute of that nature was not a grievance within the meaning of section 112a. This is not to say that the provisions contained in the Ontario Provincial Collective Agreement between the association and the council for dealing with disputes of this nature is invalidated by the Board's decision. The Board is declining to make a determination under those provisions because it lacks jurisdiction to do so. Therefore, it would still remain for this type of issue to be determined within the grievance and arbitration mechanisms of the Ontario Provincial Collective Agreement. Nor is the Board's decision to say that it is without jurisdiction to provide relief to the associations in the circumstances of the case at hand. The Board in Rivard [1980], supra, at paragraph twenty-five, reasons that the non-payment of industry fund dues by an employer, where the collective agreement provides that they be paid, ". . . is a deviation from the terms of a collective agreement and an employer who is bound by such a collective agreement is in violation of section 134(2) [of the Act]. The substantive provisions of section 134(2) are available to the applicants thereby grounding a request for relief under sections
79(1) and 79(4).".
6The grievance at hand was brought under the successor collective agreement to the one with which the Board was concerned in Rivard [1980], supra. Moreover, the grievance alleges also that the predecessor collective agreement, that is the collective agreement in the Rivard case, has been violated by the employer. The language of the relevant sections of the predecessor agreement remained unchanged in the current agreement. The specific grievance in the Rivarcl case involved the failure of the contractor to pay the contributions to the industry fund required under that agreement, which is precisely the issue in the case at hand, wherein the grievance alleges failure to pay those contributions under the current and predecessor collective agreement. In view of these circumstances, the Board adopts the reasoning of the Board in Rivard [1980], supra, at paragraph twenty as well as paragraph twenty-five, et seq. Thus, if the fact in the instant case support the finding of a violation of section 134(2) of the Act, relief is available to the associations under sections 79(1) and 79(4) of the Act even though they have not pleaded section 79. In future, however, if a party is claiming to be aggrieved under a collective agreement by another party to that agreement who is of like interest and the claimant elects not to plead section 79 of the Act, it does so at the risk of the Board declining to exercise its discretion to apply section 79.
[The Board made findings of contravention of the agreement and ordered payment to the applicant].