[1983] OLRB Rep. April 576
2524-81-R; 0144-82-M Toronto-Central Ontario Building and Construction Trades Council (formerly known as the Building and Construction Trades Council of Toronto and Vicinity) on its own behalf of its affiliate, The International Brotherhood of Painters and Allied Trades District Council #46, Applicant, v. M.J. Guthrie Construction Limited, Rose-dale Construction, Respondents; The Toronto-Central Ontario Building and Construction Trades Council (formerly known as the Toronto Building and Construction Trades Council) on its own behalf and on behalf of its affiliates, Applicant, v. M.J. Guthrie Construction Limited, Respondent.
BEFORE: Ian Springate, Vice-Chairman, and Board Members W. Gibson and M. A. Ross.
DECISION OF THE BOARD; April 18, 1983
The respondent has requested that the Board reconsider its decision of September 27, 1982 in these matters. (See, [1982] OL Rep. Sept. 1332).
These proceedings arose out of both an application under section 1(4) of the Labour Relations Act and a referral of a grievance pursuant to section 124 of the Act. The request for reconsideration relates primarily to the section 1(4) application.
In 1950 M. J. Guthrie Construction Limited signed a "working agreement" with the Building and Construction Trades Council of Toronto and Vicinity, a non-certified council of building trades unions. This council operated under a charter granted to it by the Building and Construction Trades Department of the American Federation of Labour and Congress of Industrial Organizations (the "AFL-CIO"). In its decision of September 27, 1982 the Board concluded that on July 1, 1979 the Building and Construction Trades Department of the AFL-CIO had chartered the Toronto-Central Ontario Building and Construction Trades Council and assigned to it the jurisdiction of a number of existing councils, one of which was the Building and Construction Trades Council of Toronto and Vicinity. The Toronto-Central Ontario Building and Construction Trades Council is a non-certified council of trade unions. It includes among its members the trade unions that formerly belonged to the Building and Construction Trades Council of Toronto and Vicinity.
The section 1(4) application was filed by the Toronto-Central Ontario Building and Construction Trades Council "on its own behalf and on behalf of its affiliate, the International Brotherhood of Painters and Allied Trades District Council #46". During the hearing into the application, the primary focus of the parties was whether or not M. J. Guthrie Construction Limited and another firm, Rosedale Construction, should be considered as a single employer for the purposes of the Act. The parties did not address themselves to the issue of what bargaining rights would in fact be affected by a declaration under section 1(4). The parties did deal at some length with the relationship between the two building trades councils, but they did not discuss the issue of what bargaining rights, if any, a building trades council might be able to exercise on its own behalf.
At Common Law a trade union is regarded as an organization of employees who have bound themselves together in a contractual relationship one with another. See: Astgen v. Smith (1977) 1969 CanLII 488 (ON CA), 7 D.L.R. (3d) 657 (Ont. C.A.). The Building and Construction Trades Council of Toronto and Vicinity was not, and the Toronto-Central Ontario Building and Construction Trades Council is not, a trade union at Common Law for although they are groupings of trade unions, they are not themselves organizations of employees. See: Famous Players Limited [1982] OLRB Rep. July 1011. Section 1(1) (p) of the Labour Relations Act sets out the following definition of a trade union for the purposes of the Act:
"'trade union' means an organization of employees formed for purposes that include the regulation of relations between employees and employers and includes a provincial, national, or international trade union, a certified council of trade unions and a designated or certified employee bargaining agency.
This definition appears to be wide enough to qualify as trade unions under the Act all organizations which would be recognized as trade unions at Common Law. However, the section also goes on to define as trade unions for the purposes of the Act two entities which would not otherwise qualify as trade unions, namely "a certified council of trade unions" and "a designated or certified employee bargaining agency". Neither the Building and Construction Trades Council of Toronto and Vicinity nor the Toronto-Central Ontario Building and Construction Trades Council was designated or certified as an employee bargaining agency. Both councils could properly be described as a council of trade unions, however, neither has been certified by this Board. (In this regard see section 10 of the Act which sets out the requirements for the certification of a council of trade unions). Accordingly, neither of the building trades councils comes within the definition of a "trade union" for the purposes of the Act.
- The role of an uncertified council of trade unions was discussed as follows by the Board in The Board of Education for the City of Toronto case, 111982] OLRB Rep. March 496:
"It was agreed that the Council is not a certified council of trade unions as defined in section l(l)(d). The Act contemplates that the role of an uncertified council of trade union is to act act as an agent of the trade unions which it represents rather than as an independent participant and bargaining agent. The decision of the Board in Bathe & McLellan Const. Ltd. [1969] OLRB Rep. Jan. P. 1041, held that 'trade union' does not include an uncertified council of trade unions. It follows that the Council may neither hold nor exercise bargaining rights in its own name. However, the Council may act as an agent of other trade unions which possess bargaining rights."
- As already noted, the Board in its decision of September 27, 1982 concluded that in 1979 the Toronto-Central Ontario Building and Construction Trades Council was chartered by the Building Trades Department of the AFL-CIO and assigned the jurisdiction previously held by the Building and Construction Trades Council of Toronto and Vicinity. In the respondent's letter of February 1, 1983 it submitted, in part, as follows:
"During the hearings of these matters the Respondent denied that the Building and Construction Trades Council of Toronto and Vicinity was the same as the Applicant Council, and denied that the latter could exercise any of the contractual or other rights of the former. The Respondent put the Applicant Council to the strict proof of those matters.
The only evidence which the Applicant Council tendered with respect to its purported assumption of jurisdiction or other rights from the Building and Construction Trades Council of Toronto and Vicinity was hearsay evidence, which was objected to by the Respondent. More specifically, no evidence whatsoever was presented with respect to the winding-up of the Building and Construction Trades Council of Toronto and Vicinity. No first hand evidence was preferred as to the procedures followed in constituting the Applicant Council. The only documentary evidence as to the Applicant Council's charter from the Building and Construction Trades Department of the American Federation of Labour and Congress of Industrial Organizations was a photo static facsimile of such a charter. No evidence was led as to the authority of the Building and Construction Trades Department of the AFL-CIO to "assign the jurisdiction of' the Building and Construction Trades Council of Toronto and Vicinity to the Applicant Council. No evidence was led by the Applicant Council as to any of its constitutional documents nor those of the Building and Construction Trades Council of Toronto and Vicinity or those of the Building and Construction Trades Department of the AFL-CIO. Nor was any evidence led as to unanimous concurrence having been given by members of the Building and Construction Trades Council of Toronto and Vicinity to any transfer of jurisdiction or any other rights to any other entity.
It is respectfully submitted that while the Board may, pursuant to section 103(c) of the Act, accept evidence which is not admissible in a court of law, it exceeds its jurisdiction where it bases its decision on such evidence. The Ontario Court of Appeal clearly established this principle in R. V Barber et al., [1968] OR. 245, where it dealt with the similar provisions of what is now section 44(8) (c) of the Act. At p. 252 the Court stated:
'However that provision does not relieve a board from acting only on evidence having cogency in law.'
Moreover the Courts have made it clear that a voluntary association such as a council of trade unions can only merge or transfer jurisdiction under certain circumstances. As stated in Astgen v. Smith (1969), 1969 CanLII 488 (ON CA), 7 D.L.R. (3d) 657 at p. 664, "There is no inherent power in a voluntary association to merge with another. It was held that such an arrangement can only be accomplished by unanimous approval of the membership or by some action which each of the contracting members of the voluntary association have expressly or implicitly agreed to.
It is therefore respectfully submitted that there was no evidence upon which the Board could properly base its finding that the Applicant Council "stands in the same position" vis-a-vis M. J. Guthrie Limited as the Building and Construction Trades Council of Toronto and Vicinity, keeping in mind that such a finding was central to the matter before the Board.
Secondly, it is respectfully submitted that the Board does not have jurisdiction to make such a finding with respect to the relationship of the two Councils in question. It is trite law that the Board's jurisdiction must be found within the ambit of the legislation under which it is constituted. Section 62 of the Labour Relations Act gives the Board the power to declare that a successor trade union has acquired the rights, privileges and duties of its predecessor where a merger, amalgamation or transfer of jurisdiction is claimed. The Applicant Council is not, however, a trade union within the meaning of section 1(1) (p) of the Act, as it is not, insofar as we are aware, a "certified council of trade unions". Section 62 is therefore inapplicable to these proceedings. Indeed the Board did not purport to make the determination in question under that section. Barring the applicability of section 62, it is submitted that the Board does not have jurisdiction to render the determination in question under any other section of the Act."
- We must, with respect, disagree with counsel's submissions regarding the alleged lack of evidence before the Board. Although the evidence on point was not as detailed as it might have been, there was sufficient evidence before the Board to lead it to conclude that the Toronto-Central Ontario Building and Construction Trades Council had been chartered by the Building and Construction Trades Department of the AFLCIO and that it was assigned the jurisdiction of the Building and Construction Trades Council of Toronto and Vicinity. We note that part of the evidence took the form of testimony from Mr. David Johnson, currently the business manager of the Toronto-Central Ontario Building and Construction Trades Council and a former official with the Building and Construction Trades Council of Toronto and Vicinity. There was also introduced into evidence a copy of a letter dated August 10, 1979 from Mr. Robert A. Georgine, the president of the Building and Construction Trades Department of the AFL-CIO, to Mr. Johnson, who at the time was the secretary of the Toronto-Central Ontario Building and Construction Trades Council. The letter read as follows:
"Enclosed your [sic] will find the amended charter for the Toronto-Central Ontario Building and Construction Trades Council. This charter has been amended to include the previous jurisdiction of the Peterborough; Oshawa, Port Hope and Cobourg; Georgian Bay and Toronto Councils.
The jurisdiction covered is as follows: Counties of Northumberland, Peterborough, Victoria and Simcoe, the Provisional County of Haliburton (and the Geographic Townships of Lawrence and Nightingale), the District Municipality of Muskoka, the Municipality of Metropolitan Toronto, the Regional Municipalities of Durham, York, Peel and that portion of the Regional Municipality of Halton, East of Trafalgar Road (Regional Road No. 3).
I sincerely regret the delay in sending this charter to you, and wish you every success in your endeavours with the Council.
With kind personal regards, I am
Sincerely and fraternally, Robert A. Georgine, President."
Also in evidence was a copy of a charter of the council, the original of which had apparently been executed by Mr. Georgine and each of the executive council members of the Building and Construction Trades Department of the AFL-CIO. Mr. Johnson testified that the copy of the charter was identical to the original which was kept in his office.
We are of the view that the reasoning of the Court of Appeal in Astgen v. Smith relating to the merging of voluntary associations does not apply to the two building trades councils. The Astgen v. Smith case arose of the purported merger of two fully independent trade unions each with its own constitution, namely, the United Steelworkers of America and the International Union of Mine, Mill and Smelter Workers. The Building and Construction Trades Council of Toronto and Vicinity, however, was not itself an independent association. Rather, it was chartered by, and subordinate to, the Building and Construction Trades Department of the AFL-CIO, and as such would have been bound by the rules and constitution of the Department and of the AFL-CIO. It seems reasonable to assume that since the Department had chartered the council, it was entitled (subject to its own rules and governing statutes), to withdraw the charter and issue a new one to the Toronto-Central Ontario Building and Construction Trades Council giving it an expanded jurisdiction from that of the Building and Construction Trades Council of Toronto and Vicinity.
Given that the trade unions belonging to the old Building and Construction Trades Council of Toronto and Vicinity, an uncertified council of trade unions, are now members of the Toronto-Central Ontario Building and Construction Trades Council, an uncertified council of trade unions exercising the jurisdiction previously exercised by the former council, the Board concluded that "the Toronto-Central Ontario Building and Construction Trades Council stands in the same position vis-a-vis Guthrie as did the Building and Construction Trades Council of Toronto and Vicinity". Again since the issue was not discussed by the parties, the Board did not (and does not) make any findings as to what rights, if any, might be affected by such a conclusion. It would appear, however, that if the signing of the "working agreement" by M. J. Guthrie Construction Ltd. served to create bargaining rights for the various unions belonging to the Building and Construction Trades Council of Toronto and Vicinity, then in line with the reasoning of the Board in the Board of Education for the City of Toronto case, the Building and Construction Trades Council of Toronto and Vicinity could have acted as the agent for its member unions. lf it is the case that those same unions continue to hold such bargaining rights, there appears to be no impediment to the unions now enforcing the terms of their respective provincial agreements either directly or through the Toronto-Central Ontario Building and Construction Trades Council acting as their agent. Whether or not the Council could have any rights of its own to exercise, however, is not at all clear. Again, since the parties did not raise the issue at the hearing, the Board in its decision of September 27, 1982, did not make any decision on point. In that the Council was a party to the 1(4) application, however, the Board did indicate that whatever rights (if any) the Toronto-Central Ontario Building and Construction Trades Council might have with respect to M. J. Guthrie Construction Limited, those rights would also apply to Rosedale Construction.
We trust that this decision will prove to be of some assistance to the parties. Given our reasoning set out above, however, we are not satisfied that the Board's decision of September 27, 1982 should be varied or revoked. The application for reconsideration is accordingly denied.