Ontario Labour Relations Board
[1982] OLRB Rep. June 958
2323-80-M International Union of Operating Engineers, Local 793, Applicant, v. Traugott Construction Limited, Respondent
BEFORE: D. E. Franks, Vice-Chairman, and Board Members W. H. Wightman and W. F. Rutherford.
DECISION OF VICE-CHAIRMAN D. E. FRANKS AND BOARD MEMBER W. H. WIGHTMAN; June 30, 1982
- Counsel for the applicant has by letter requested the Board to reconsider its decision of November 27, 1981, in this matter. The grounds upon which the request for reconsideration is based are set out as follows:
"It is respectfully submitted that the Board exceeded its jurisdiction as follows:
(i) the Board does not have the jurisdiction to determine the "non‑operation or avoidance of a collective agreement" whether sitting as an arbitration board with restricted powers or under the general powers granted to it under the Act. The Board does not have any residual, general, equitable or inherent jurisdiction and must operate within those specific powers given to it under the Act (see: Re Shopmen's Local No. 734 and Brayshaws Steel Limited et al, [1972« 2 O.R. 529 (C.A.); Libby, McNeill and Libby of Canada Ltd. and United Automobile, Aerospace and Agricultural Implement Workers of Canada Ltd., et al (1978) 1978 CanLII 1392 (ON HCJ), 21 O.R. (2d) 340 (Div. Ct.) (appeal allowed by Court of Appeal on procedural grounds (1978) 1978 CanLII 1373 (ON CA), 21 O.R. (2d) 362 (C.A.)). Further, it should be noted that the Board in Williams Contracting Limited [1980] O.L.R.B. Rep. July 1115, rejected the applicability of equitable principles when faced with the application of a collective agreement;
(ii) section 124(1) and (3) imposed a mandatory requirement upon the Board to hear and determine grievances referred to it for arbitration. The Board specifically found the Working Agreement to have been executed by the parties in the absence of misrepresentation and duress. Further, to "decline to give effect to the Working Agreement" and "find there is no collective bargaining relationship between the applicant and the respondent" is tantamount to applying the doctrine of duress and in effect grants relief for precisely the reasons rejected. The Board does not have the jurisdiction to grant such equitable relief after recognizing that it had no jurisdiction to declare the Working Agreement void. We respectfully submit that the Board's conclusion to decline to give effect to the Working Agreement is "patently unreasonable" in view of its mandatory requirement to hear and determine grievances referred to it under the Act (see: Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corporation (1979) 1979 CanLII 23 (SCC), 97 D.L.R. (3d) 417 (S.C.C.).
(iii) further and in any event, there is no requirement at law of "acceptance" in the nature of affirmation or ratification subsequent to the execution of an agreement in order to create a binding contract between the parties thereto in the absence of misrepresentation (see: Panzer v. Zefman (1978) 1978 CanLII 1658 (ON CA), 20 OR. (2d) 502 (C.A.); Walton v. Landstock Investments Ltd. (1976) 1976 CanLII 669 (ON CA), 13 O.R. (2d) 693; Bevan v. Anderson 1957 CanLII 257 (AB SCTD), [1957] 12 D.L.R. (2d) 69; Consolidated Investments Ltd. v. Acres (1917) 1917 CanLII 374 (AB SCAD), 32 D.L.R. 579; and Clough v. London & Northwestern Railway (1871) L. R. 7 Ex. 26).
(iv) in the alternative, assuming but without admitting that such affirmation or ratification is a neccessary requirement at law for a binding contract, the Board has failed to give effect to the evidence that the respondent expressly refrained from subcontracting interior construction work at the Collingwood Gateway Shopping Mall project to avoid breaching the Working Agreement and fulfilled the terms of paragraph 3(b) of the said Agreement by subcontracting the work to Losereit Sales & Service.
It is respectfully submitted that this request for reconsideration raises significant and important issues in respect of the Board's jurisdiction and therefore, we request that the Board reconsider and revoke the decision and continue to process this referral of grievance to arbitration."
The matters raised by counsel for the applicant in paragraphs 1 and 2 of his letter were arguments that were made to the Board at the hearing in this matter and were considered in its decision. It is our view, however, that they do not reflect the reasoning of the Board in arriving at the conclusion it arrived at in its previous decision in this matter. Although the net effect with respect to the present application may be the same as a finding of an avoidance of a collective agreement "or the granting of equitable relief", that was not the reasoning of the Board in its previous decision.
In view of this possible misunderstanding, it is advisable to outline the reasoning followed by the Board in its previous decision. In paragraph 21 of its decision dated November 27, 1981, the Board noted that in a referral of a grievance under section 124 of the Act, the Board has the power to apply the various provisions of the Labour Relations Act and cited the example of the application of section 1(4) and section 63 of the Act. In the present case, the Board found a clear violation of sections 74 and 76 of the Act. On the facts in the present case, the violations of these sections were not technical violations of the Act but in a very real sense strike at the very heart of the Labour Relations Act. It is clearly trite to say that there are two major thrusts of the Labour Relations Act. First the representation of employees by trade unions and the orderly acquiring of bargaining rights through the certification process. This orderly process, of course, is an alternative to the recognition strike. The other main thrust of the Act deals with the lawfulness and unlawfulness of strikes in certain circumstances. In the present case, we found that there was clearly an unlawful strike as a result of which certain bargaining rights were acquired by the affiliates of the Building Trades Council through the Working Agreement.
In the present case, therefore, the Board was faced with the problem that a grievance had been referred to the Board under section 124 of the Act and that grievance was founded on a collective agreement that came into existence as the result of an unlawful strike. That is, the very bargaining rights on which the applicant claimed to have a collective agreement were the result of an unlawful strike which clearly was intended to avoid the certification proceedings in the Labour Relations Act. For the Board to deal with such a grievance would be tantamount to the Board turning a blind eye on violations of the Act which go to the very purpose of the Labour Relations Act. In these circumstances, the Board did not strike down the collective agreement as suggested by counsel for the applicant, but rather found in paragraph 23, "there is no collective bargaining relationship between the applicant and the respondent, such as would entitle the Board to hear the referral of a grievance under section 124 of the Act." In making this finding, the Board refused to put its stamp of approval on the unlawful conduct which gave rise to the alleged collective bargaining relationship.
With respect to the matters raised in paragraphs 3 and 4 of the letter by the applicant, the Board was not suggesting there was any requirement at law "of an acceptance" but rather, as suggested in paragraph 4, that where there has been an acceptance by an employer of an agreement obtained under unlawful circumstances that the employer may subsequently not be entitled to raise the initial illegal conduct. However, the Board specifically found that the changing of the subcontract at the Collingwood Gateway Shopping Mall was not conduct sufficiently unambiguous in its nature as to indicate an acceptance by Traugott of the Working Agreement.
For the foregoing reasons, the request for reconsideration by the applicant is therefore denied.
DECISION OF BOARD MEMBER W. F. RUTHERFORD;
- My dissent of November 27, 1981 still stands.