[1982] OLRB Rep. June 880
2629-81-M International Association of Bridge, Structural and Ornamental iron Workers, Local Unions 721, 736, 759, 765 and 786, Local Unions, v. International Association of Bridge, Structural and Ornamental Iron Workers, International Association, v. Iron Workers District Council of Ontario, District Council
BEFORE: Ian Springate, Vice-Chairman, and Board Members J. Wilson and O. Hodges.
APPEARANCES: Maurice A. Green, David Bloom and Alan MacIsaac for the Local Unions; A. M. Minsky, J. H. Lyons, N. W. Wilson and J. Phair for the International Association; .J. Harrower for International Association of Bridge, Structural and Ornamental Iron Workers Local 700.
DECISION OF VICE-CHAIRMAN IAN SPRINGATE AND BOARD MEMBER J. WILSON; June 23, 1982
This is a reference from the Minister pursuant to section 139 of the Labour Relations Act. The reference deals with the issue of whether the International Association of Bridge, Structural and Ornamental Iron Workers (The "International Association") should be removed from certain designated employee bargaining agencies.
When the Labour Relations Act was amended in 1978 to provide for a legislated system of provincial bargaining in the industrial, commercial and institutional sector of the construction industry ("the ICI sector"), the Minister of Labour was given authority to designate "employee bargaining agencies" to represent in bargaining "affiliated bargaining agents". The term "affiliated bargaining agent" is defined fully in section 137(1) of the Act, but for the purpose of these proceedings one can describe the affiliated bargaining agents of any employee bargaining agency as being the relevant International Union as well as all of its locals and district councils active in the ICI sector in the Province of Ontario. The Minister issued a total of some twenty-five employee bargaining agency designations. It appears that in every case where an international had a number of locals active in the ICI sector in the Province, the Minister jointly designated as the employee bargaining agency both the International union as well as a council comprised of its Ontario Locals. The Minister followed this approach even in those cases where such a council of local unions had to be expressly formed for the purpose. It should be stressed that the only role which the Act envisages for a designated employee bargaining agency is the negotiation of provincial agreements. This point is made clear by section 142 of the Act, which provides that the rights, duties and obligations of affiliated bargaining agencies vest in the employee bargaining agency "but only for the purpose of conducting bargaining and, subject to any ratification procedures of the employee bargaining agency, concluding a provincial agreement".
The International Association does not directly hold bargaining rights for any employees in the ICI sector in the Province of Ontario. Six subordinate locals of the International, however, Locals 700, 721, 736, 759, 765 and 786 do hold bargaining rights for ironworkers and reinforcing rodmen in the ICI sector. These six locals comprise the Ironworkers District Council of Ontario ("the District Council"). Although this point was not definitely settled at the hearing, it appears that prior to provincial bargaining each local bargained on a local basis with respect to the reinforcing rodmen. With respect to the ironworkers, however, all of the locals, with the exception of Local 759 which is based in Thunder Bay, bargained collectively with a single employer's association, namely, the Ontario Erectors Association.
Prior to 1978, the International Association did play at least a limited role in co-ordinating the affairs of its Ontario Locals. Mr. George Allen, an Ontario based representative of the International Association, was the president of the District Council. In 1971, an agreement was negotiated with the Ontario Erectors Association which was executed on behalf of the other four locals which bargained together, but which Local 786 in Sudbury refused to sign. The International Association resolved the impasse by authorizing one of its local officers to execute the agreement on behalf of Local 786. The details of this situation are set forth in the Sentinel Reliance Products Limited case, [1973] OLRB Rep. Jan. 7.
The Minister issued the designation for rodmen and the designation for ironworkers on April 12, 1978. In both instances the Minister, in accordance with her standard procedure referred to above, jointly designated the International Association and the District Council as the employee bargaining agency.
The negotiations for the 1978-1980 and 1980-1982 Rodmen and Ironworkers provincial agreements were carried out by the Provincial Council. In accord with the scheme of the Act, there was no need for each local to execute the provincial agreements. Rather, the agreements should have been executed by the employee bargaining agency, that is, on behalf of the Provincial Council and the International Association. Both the 1978-1980 and 1980-1982 rodmen's provincial agreements indicate that they executed on behalf of the "Rodmen Employee Bargaining Agency". However, the title pages of both agreements wrongly identified the rodmen employee bargaining agency as the District Council and the six locals. The 1978-1980 Ironworkers' provincial agreement was signed on behalf of the District Council and the locals. The 1980-1982 provincial agreement was signed by representatives of the six locals on behalf of the District Council.
At the hearing, counsel for the International Association acknowledged that the International had not executed the various provincial agreements even though it formed part of both of the designated employee bargaining agencies. Counsel also acknowledged that when the provincial agreements were sent to the International Association for approval, as required by the International Constitution, inappropriate form letters were sent out in reply. These replies did not take into account either the provincial bargaining provisions of the Act or the Minister's designations. Rather, they utilized language aimed at protecting the International Association from liability arising out of any possible future breaches of the agreements. An example of the type of letters sent is the following which was sent to the District Council from the International Association with respect to the 1978-1980 Ironworkers' provincial agreement:
Mr. George Allen, President District Council of Ontario Suite 216 - Union Building 212 King Street West Toronto, Ontario, Canada M5H 1K5
Dear Sir and Brother:
The General Executive Board of this International Association has examined the Agreement which Local Union Nos. 700, Windsor, Ontario, 721, Toronto, Ontario, 736, Hamilton, Ontario, 759, Thunder Bay, N. Ontario, 765, Ottawa, Ontario and 786, Sudbury, Ontario entered into with The Ontario Erectors Association dated June 26, 1978 which you submitted to this International Association for approval pursuant to Section 29 of Article XXI of the International Constitution.
The International Association hereby approves the said Agreement generally as to form, as of its effective date. However, it is noted that certain specific sections conflict with the provisions of the General Working Rules which are subject to review by the General Executive Board from time to time. It is further noted that this is a District Council Agreement and should be signed by the President of the District Council and said approval is applicable to this particular contract only.
It is understood that said approval is merely as to form and such approval does not make this International Association a party to the Agreement or subject to any liability of any kind growing out of the provisions or operation of said Agreement.
Any provision in your Agreement with regard to maintenance, repair, replacement or renovation work shall have no binding force or validity. Such provisions, to be valid, must be in the standard form of National Maintenance Agreement and signed by a contractor for a specific project.
It must be expressly understood that any negotiated sections contained in said Agreement which are found to be contrary to the General Working Rules or policies of this International Association will be subject to immediate revocation by the General Executive Board.
Fraternally yours,
GENERAL EXECUTIVE BOARD
“Juel D. Drake”
General Secretary
(emphasis added)
It was the contention of counsel for the International Association that at the time the International Association had sent out these letters it had not understood the implications of being designated as part of the employee bargaining agencies, and did not appreciate that it should sign the provincial agreements. Counsel also stated that he had been advised by Mr. J. Lyons, the General President of the International Association, who was in attendance at the hearing, that the International was now aware of the provisions of the Ontario Act and was prepared to play a more active role in the negotiation process, including signing provincial agreements as part of the employee bargaining agency.
The position being taken by the Locals, other than Local 700, is that the International Association should be removed from the designations and that henceforth the District Council and the locals should constitute each of the two employee bargaining agencies. In support of this position counsel for the Locals contended that the intent of the original designations had been to "mirror" the existing situation and not to create or take away any bargaining rights. Accordingly, submitted counsel, in that the International Association had never been a party to the earlier agreements, the Minister must have made a mistake in designating the International as part of the employee bargaining agencies. Counsel also relied on the fact that when the International Association had approved the various Provincial agreements it had done so with the express statement that it was not a party to the agreements. Counsel added that, in his view, there would not be any detriment in dropping the International Association from the designations in that under the union's constitution the International must give final approval to any collective agreement. Counsel for the International Association strongly opposed having the International removed from the designations. According to counsel, the International could lend "maturity" to the bargaining process in that it was above local rivalries and interests. Counsel also contended that the Locals were not concerned with the fact that the International Association had played a passive role in provincial bargaining in the past, but were concerned that it might now start to play a more active role.
A review of the various employee bargaining agency designations leads us to the conclusion that when they were made, the Minister was not necessarily attempting to "mirror" existing bargaining patterns. Indeed, in some instances, such as with the Carpenters, the effect of the employer and employee designations was to replace a myriad of local bargaining situations with a single province-wide bargaining relationship. As already noted, what the Minister did do was to adopt the general practice of designating as employee bargaining agencies both the relevant International Union and a Provincial Council of its locals. Presumably, since the Rodmen and Ironworkers' designations both followed this pattern, the Minister did not make a "mistake" in the designation as contended by counsel for the locals, but rather the Minister felt the same considerations applied to them as with respect to the other trades.
What then were the considerations likely taken into account by the Minister? The advent of provincial bargaining required in some cases that locals which had never bargained together now be bound by a single agreement. In other cases, such as with the Ironworkers, although locals had previously bargained together, the locals no longer retained any right to decline to accept the resulting agreement or to decide to henceforth bargain their own agreements. In these circumstances, it is likely that the International unions were named as part of the designations due to a belief on the part of the Minister that local officials of an International, who because of their positions would have a good overview of the process, could play a key role in ensuring that while the differing interests and concerns of the various locals were taken into account in provincial bargaining, they would not be allowed to stand in the way of formulating a single province-wide bargaining programme and strategy. Presumably, the Minister also felt that local officials of the Internationals could best play this role if the Internationals were an integral part of the employee bargaining agencies instead of leaving to them only the option of using the authority of the Internationals over the locals as set out in the International constitutions.
Although the International Association through its local officials has apparently not heretofore played the type of role referred to above, nevertheless, it has indicated that it is now prepared to do so. We regard the role as an important one which, if carried out in a constructive and sensitive manner, can be of real benefit to both the union’s members and to the whole process of provincial bargaining. In these circumstances, we are of the opinion that at least at this time it would be appropriate to leave the International Association as part of the employee bargaining agencies. Should it be the case that in the future the locals feel that the International has misused its position as part of the employee bargaining agencies, or should it continue to refuse to execute provincial agreements (and thereby continue to place the legal basis of the agreements in jeopardy), then the locals could either seek relief under section 15 1(1) of the Act, which prohibits a designated employee bargaining agency from acting in a manner that is arbitrary, discriminatory or in bad faith in the representation of affiliated bargaining agents, or again seek to have the designations reconsidered.
The question actually put to the Board by the Minister was as follows:
Briefly stated, the question is whether or not the purpose and intent of the province-wide bargaining provisions of the Act would be achieved through the removal of the International Association from the Structural Ironworkers and Rodmen designations.
Having regard to our reasoning set out above, in our view, the purpose and intent of the province-wide bargaining provisions of the Act would not likely be better achieved through the removal of the International Association from the designations. Accordingly, our answer is "No."
DECISION OF BOARD MEMBER O. HODGES;
I dissent.
In March 1978, the Minister of Labour designated the International Association of Bridge, Structural and Ornamental Ironworkers and the Ironworkers District Council of Ontario as the employee bargaining agency to represent Locals 700, 721, 736, 759, 765 and 786.
In effect, the Ironworkers District Council and the Locals have carried out the bargaining. The International has not heretofore desired to be bound by the agreements. In his letter of September 15, 1978 to the District Council, Mr. Drake, General Secretary of the International, expressly states that his body's approval of the District Council Agreement "does not make this International Association a party to the agreement".
In the collective agreements between the Ontario Erectors Association and the Ironworkers District Council of Ontario and the International Association of Bridge, Structural and Ornamental Ironworkers Local Unions 700, 721, 736, 759, 765 and 786 dated May 1, 1978 to April 30, 1980 and May 1, 1980 to April 30, 1982, the Preamble states:
“AND WHEREAS the Iron Workers District Council of Ontario is the designated employee bargaining agency for such iron worker employees with respect to such sector;”
The agreements between the Rodmen Employer Bargaining Agency and the Union covering the same period, mention both the International and the District Council as constituting the "Employee Bargaining Agency".
The Board's practice in applications such as the one before us should be to give great weight to the bargaining practice already established. The existing bargaining rights should be preserved and given recognition. It is clear from the evidence that prior to this application the International specifically severed itself from the employee bargaining agency and abandoned its rights therein. Furthermore, it indicated that it was content to leave the District Council in the position of exclusive bargaining agency. This understanding is given voice in the agreements with the Ontario Erectors Association. In view of the foregoing, I would, in accordance with the labour relations practice in the industry, recommend removal of the name of the International from the designation of the bargaining agency for all the locals, with the sole exception of Local 700, which wishes to use the International as its agency.