[1982] OLRB Rep. March 417
1943-81-U Mechanical Contractors Association of Sarnia, Complainant, V. Mechanical Contractors Association of Ontario, Respondent, v. Industrial Contractors Association of Canada, Intervener
BEFORE: George W. Adams, Q. C., Chairman, and Board Members H. J. F. Ade and C. Ballentine.
APPEARANCES: Robert P. Armstrong, Q. C., Anne Molloy, David Butt and Bruce Callum for the complainant; R. A. Werry, .J. McCarron and W. Nicholls; Roy C. Filion, T. J. Westley, L. G. Gauvin and I. Stamp for the internever.
DECISION OF THE BOARD; March 12, 1982
- The complainant, Mechanical Contractors Association of Sarnia (MCAS) complains that it has been dealt with by the respondent, Mechanical Contractors Association of Ontario (MCAO) contrary to the provisions of section 151(2) of the Labour Relations Act. Section 151(2) provides:
A designated or accredited employer bargaining agency shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employers in the provincial unit of employers for which it bargains, whether members of the desgnated or accredited employer bargaining agency or not.
In Dominion Maintenance Limited, [1979] OLRB Rep. Oct. 940 at 950 the Board said that section 151(2) has the same purpose as section 68 which protects individual employees from arbitrary, discriminaory or bad faith treatment at the hands of a bargaining agent trade union. Section 151(2) protects individual contractors against the same kind of conduct and for that reason the jurisprudence of the Board in trade union fair representation cases is directly applicable to the facts and complaint before us in the instant matter.
The facts are not in dispute. On April 3rd, 1978 the Minister of Labour designated the respondent as the province-wide employer bargaining agency for certain employers, which employers included the members of the MCAS. The designation was subject to the express condition that the respondent file with the Minister's office a copy of the appropriate changes to its constitution to accommodate the intervener, the Industrial Contractors Association of Canada (ICAC).
The respondent's membership includes both union and non union employers. The respondent delegated to a subcommittee, the Mechanical Trade Bargaining Committee (MTBC), the negotiation of labour contracts. The complainant, together with other zone affiliates, objected to the participation of non union employers in labour matters on the grounds that this created a conflict of interest which could seriously and adversely affect all of the direct members of the respondent who are unionized employers. As a result of these objections and after considerable debate and review within the respondent organization, certain changes were made to the respondent's by-law and constitution to provide that only union employers would participate in the MTBC and that non unionized members of the respondent would have no right to vote on matters relating to labour relations.
During the period preceding this complaint certain non union members in the Kitchener area complained that they were being expelled from the zone affiliate by union members represented by that zone affiliate. After study and debate within the respondent organization it was decided to permit the formation of zone affiliates made up exclusively of non union members. It was also decided that because a non union member has no interest in the labour relations activities of the respondent through the the MTBC that non union members ought only to pay two cents of the three cents per man hour regular fee for full members. It was also decided that where such new affiliate was being organized that the membership fees could be waived for the first year so that more funds could be available for organizing activities of the new affiliate.
The ICAC is not a member of the respondent but, by virtue of the proviso in the Minister's designation, it has been accorded a seat on the respondent's Board of Directors and on the MTBC. However, the ICAC's participation and voting is limited to labour relations concerns. The MCAS, as a zone affiliate of the respondent prior to its expulsion, was also represented on the respondent's Board of Directors and on the MTBC but in both instances had full voting status. In this respect, the MCAS was one of thirteen zone affiliates and entitled to cast five votes on the basis of one vote per zone plus one vote per 200,000 man hours or a majority thereof. MCAS therefore was the third largest zone affiliate making up the respondent. It is also important to note that Zone 5, Sarnia, had its own appendix to the Ontario Provincial Collective Agreement (1980-1982) between the MCAO and the Ontaro Pipe Trades Council. The appendix is five pages in length and deals with a number of labour relations matters peculiar to the Sarnia area.
The ICAC has been accorded a special financial arrangement with respect to compensation by the respondent organization for certain negotiation expenses. The rationale for this special arrangement arises because the ICAC does not collect the ten cent per hour industry fund collected by other zone affiliates under the Provincial Agreement and thus is not able to retain funds to offset such expenses.
The complainant became increasingly concerned about the involvement of non union members in the activities and programs of the respondent and finally came to the decision that it was no longer in its interest to remain a full member of the respondent, although it still desired to participate in the MTBC. The complainant thereafter notified the respondent by letter dated March 13th, 1981 that it no longer wishes to participate in the respondent's affairs, save and accept at the MTBC level and that, accordingly, as of March 13th, 1981 it would pay fees of only one cent per man hour, representing the labour relations portion of the membership fees. Thereafter, the complainant forwarded to the respondent each month cheques for membership fees calculated at one cent per man hour for the remainder of March 1981 and for the months of April, May, June, July, August and September. The respondent refused to accept all such payments. Paragraph 26 at page 16 of the Constitution provides:
All members shall be liable to the Corporation for such fees as are imposed from time to time by the directors. A member who does not pay any fee determined by the directors or any assessment made by the directors and approved by the members as aforesaid within the time fixed for payment (or within 30 days after notification has been mailed to him by prepaid registered post requiring such payment if that is later) shall automatically cease to be a member but on payment of all unpaid fees and assessments may be reinstated in the discretion of the directors.
By letter dated September 10th, 1981 the respondent advised the complainant that its membership was terminated effective June 19th, 1981 by reason of its failure to submit the current membership fee. The said letter also states "... that as MCA Sarnia is no longer a member of this Association it is not eligible to participate in Associating committees, and therefore cannot send a representative to the MTBC for the 1982 negotiations."
Finally, it was established that while a representative of the complainant was permitted to attend the October 15th, 1981 meeting of the MTBC, the complainant has not been given adequate notice of subsequent meetings nor has it been invited to attend such meetings. Numerous witnesses called by the complainant were of the opinion that the respondent would not adequately and fairly represent the complainant and its members unless the complainant had a "voice and a vote" on the MTBC for the forthcoming negotiations. Evidence established that the Sarnia area has many unique problems relating to construction associated with the petro-chemical industry. There was also evidence to suggest that a"boom" in construction in that area was about to commence.
Reducing the arguments of the parties to their simplest form, it was submitted on behalf of the complainant that section 151(2) of the Labour Relations Act required that the complainant be granted a voice and a vote in the activities of the MTBC in order that the MCAO honour and comply with its obligations under the statute. The intervener made submissions in support of this argument. On behalf of the respondent, it was submitted that the dispute between the complainant and the respondent related to the internal affairs of the respondent organization and should not be a concern to this Board under section 15 1(2).
Having regard to the able submissions of counsel and the evidence before the Board, we find that the respondent has acted in an arbitrary manner by the MTBC failing to properly consult with the former zone affiliate with respect to the preparation, conduct, and progress of negotiations. It is our further view that only the granting of observer status in the affairs of the MTBC for the current round of negotiations will clearly avoid an ongoing violation of section 151(2). In coming to this conclusion we rely heavily on the fact that the complainant is not an individual employer but rather an organization that formerly had the status of a zone affiliate; the complainant in previous negotiations has played a fundamental and pivotal role in the negotiation of the Sarnia appendix; and the fact that the Sarnia area has a number of labour relations problems that tend to be unique to that area. However, we do not accept that the failure to accord the complainant a vote in the affairs of the MTBC relating to the negotiation of the Provincial Agreement constitutes a failure of section 15 1(2). The scheme of the Act, and particularly section 72(5), reveals that where such a right is intended it is provided for specifically. In all other situations the non-member of a bargaining unit is entitled only to the protection of "fair representation" as provided for in section 68 and 151. While these latter sections may require the bargaining agent to accord the non-member a number of procedural privileges in order that the non-member's interests be fully appreciated and understood, we do not understand these sections to require the respondent to extend to the complainant the right to vote in MTBC Affairs. The opinions to the contrary of witnesses called by the complainant were interesting but they amount to no more than opinions on the very issue before us. The product of the negotiations must, however, withstand the scrutiny of the fair representation sections of the statute. We also find that the treatment to date of ICAC and non-union members have reasonable rationales and, thus, do not violate the Act. This is not to say that the concern of the complainant over the involvement of non-union contractors in the affairs of the respondent in areas relating to the designation is without considerable merit.
For all of these reasons, the Board finds that the respondent has violated section 151(2) of the Labour Relations Act and directs the respondent to accord the complainant observer status in the activities of the MTBC relating to current negotiations of the provincial Agreement. This means the complainant is entitled to notice of and attendance at all meetings and negotiating sessions of the MTBC, but is not entitled to cast a vote in the decision-making process of that body.