Mechanical Contractors Association Ontario v. Honeywell Controls Ltd.

[1983] OLRB Rep. May 641

1255-82-U Mechanical Contractors Association Ontario, Complainant, v. Honeywell Controls Ltd., Johnson Controls Ltd., United Association of Journeyman and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local Union 46, and United Association of Journeyman and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Respondents, v. Canadian Pneumatic Control Contractors Association, Intervener.

BEFORE: George W. Adams, Q.C., Chairman, and Board Members W. Gibson and M. A. Ross.

APPEARANCES: Mr. C. Grossman, D. Lewis and W. A. Nicholls for the applicant; Paul S. Jarvis and John Mack for Honeywell Controls Ltd.; Richard Nixon and Steven Rosenhek for Johnson Controls Ltd.; and L. C. Arnold and W. Howard for the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local Union 46, and United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada; and Brian P. Smeenk, C. Hepburn and G. Ames for the intervener.

DECISION OF THE BOARD; May 25, 1983

1. This is a complaint filed pursuant to section 89 of the Labour Relations Act alleging a violation of section 146(2) of the Act. In brief, section 146(2) renders any collective agreement or other arrangement other than a provincial agreement null and void in the industrial, commercial and institutional sector of the construction industry where designations of employee and employer bargaining agencies are in effect pursuant to section 139 of the Act. The applicant is a designated employer bargaining agency and the designation issued April 3rd, 1978 provides:

The designation of The Mechanical Trade Bargaining Committee of the Mechanical Contractors Association of Ontario dated March 21, 1978 is hereby revoked and the following designation is substituted therefore:

Pursuant to clause b of subsection 1 of section 127 of The Labour Relations Act, R.S.O. 1970, c.232, as amended, I hereby designate the Mechanical Contractors Association of Ontario as the employer bargaining agency to represent in bargaining all employers whose employees are represented by the following affiliated bargaining agents:

1. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, and the Ontario Pipe Trades Council of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada; or

2. the following Local Unions: 46, 67, 71, 221, 320, 463, 508, 527, 552, 593, 599, 628, 663, 666, 800, and 819; or

3. any other Local of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada which in the future may be chartered to represent Journeymen and Apprentice Plumbers and Pipefitters,

(which Council and Unions are hereinafter collectively referred to as "the Unions"), in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario, and without limiting the generality of the foregoing, to represent in bargaining as aforesaid, all employers bound by or parties to:

(a) certificates of the Ontario Labour Relations Board granted to the Unions or any of them;

(b) voluntary recognition agreements with the Unions or any of them;

(c) collective agreements to which the Unions or any of them have been or are party to or bound by, covering the industrial, commercial and institutional sector of the construction industry in the Province of Ontario.

This designation is subject to the condition that the Mechanical Contractors Association of Ontario file with my office a copy of the appropriate changes in its constitution to accommodate The Industrial Contractors Association's representation on the Mechanical Contractors Association of Ontario.

2. Similarly, the respondent's United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 46 (hereinafter referred to as "Local 46") and United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada (hereinafter referred to as "the International Association") are governed by the terms of a designation dated April 12th, 1978 which provides:

The designation of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, and the Ontario Pipe Trades Council of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada dated March 21, 1978, is amended by substituting the word "employees" for the word "employers" in the thirty-third line thereof; so that the designation reads as follows:

Pursuant to clause a of subsection 1 of section 127 of The Labour Relations Act, R.S.O. 1970, c.232, as amended, I hereby designate the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, and the Ontario Pipe Trades Council of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada as the employee bargaining agency to represent in bargaining all Journeymen and Apprentice Plumbers and Pipefitters, represented by the following affiliated bargaining agents:

1. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, and the Ontario Pipe Trades Council of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada; or

2. the following Local Unions: 46, 67, 71, 221, 320, 463, 508, 527, 552, 593, 599, 628, 663, 666, 800, and 819; or

3. any other Local of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada which in the future may be chartered to represent Journeymen and Apprentice Plumbers and Pipefitters,

(which Council and Unions are hereinafter collectively referred to as "the Unions"), in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario, and without limiting the generality of the foregoing, to represent in bargaining as aforesaid all employees bound by or parties to:

(a) certificates of the Ontario Labour Relations Board granted to the Unions or any of them;

(b) voluntary recognition agreements with the Unions or any of them;

(c) collective agreements in which the Unions or any of them have been or are party to or bound by, covering the industrial, commercial and institutional sector of the construction industry in the Province of Ontario.

3. Sections 146 and 148 of the Act provide for the integrity of the designations in the following manner:

146.-(1) An employee bargaining agency and an employer bargaining agency shall make only one provincial agreement for each provincial unit that it represents.

(2) On and after the 30th day of April, 1978 and subject to sections 139 and 145, no person, employee, trade union, council of trade unions, affiliated bargaining agent, employee bargaining agency, employer, employers' organization, group of employers' organizations or employer bargaining agency shall bargain for, attempt to bargain for, or conclude any collective agreement or other arrangement affecting employees represented by affiliated bargaining agents other than a provincial agreement as contemplated by subsection (1), and any collective agreement or other arrangement that does not comply with subsection (1), is null and void.

(3) Every provincial agreement shall provide for the expiry of the agreement on the 30th day of April calculated biennially from the 30th day of April, 1978.

148.-(l) Where an employee bargaining agency desires to call or authorize a lawful strike, all of the affiliated bargaining agents it represents shall call or authorize the strike in respect of all the employees represented by all affiliated bargaining agents affected thereby in the industrial, commercial and institutional sector of the construction industry referred to in clause 117(e), and no affiliated bargaining agent shall call or authorize a strike of such employees except in accordance with this subsection.

(2) Where an employer bargaining agency desires to call or authorize a lawful lock-out, all employers it represents shall call or authorize the lock-out in respect of all employees employed by such employers and represented by all the affiliated bargaining agents affected thereby in the industrial, commercial and institutional sector of the construction industry referred to in clause 117(e) and no employer shall lock out such employees except in accordance with this subsection.

4. The effect of this legal arrangement is to create single trade province-wide bargaining in the industrial, commercial and institutional sector of the construction industry referred to in section 117(e) of the Act. Section 117(e) provides:

117. In this section and in sections 118 to 136,

(e) "sector" means a division of the construction industry as determined by work characteristics and includes the industrial, commercial and institutional sector, the residential sector, the sewers and water-mains sector, the roads sector, the heavy engineering sector, the pipeline sector and the electrical power systems sector.

5. The applicant on May 25th, 1982 was engaged in collective bargaining for a province-wide industrial, commercial and institutional agreement with its designated employee bargaining agent counterpart which includes the two respondent trade unions. The applicant submits that Honeywell Controls Ltd. (hereinafter referred to as "Honeywell") and Johnson Controls Ltd. (hereinafter referred to as "Johnson") work within the industrial, commercial and institutional sector employing members of the two respondent trade unions and that, accordingly, Honeywell and Johnson are subject to its designation and were to be covered by the terms of any provincial collective agreement negotiated by it. On or about May 25th, 1982, a strike was commenced by the designated employee bargaining agent. Notwithstanding the strike, the respondent trade unions continued to supply employees to the respondents Johnson and Honeywell. The applicant submits that in doing so the respondent trade unions violated sections 146(2) and 148(1) of the Act. The applicant further submits that in continuing to employ such employees and in continuing to operate their businesses, Johnson and Honeywell acted contrary to section 146(2) and 148(1) of the Act. Examples of projects on which Johnson continued to operate during the course of the strike included the computer centre for the Royal Bank at 325 Front Street in Toronto and the IBM headquarters on Victoria Park Avenue in Toronto. Examples of Honeywell projects worked on during the strike included Ship Corporation at 4 Robert Speck Parkway in Mississauga and General Foods at Moatfield Road in Don Mills.

6. The respondent employers and trade unions admit that this work was carried on but submit that they are not in respect of pneumatic control work subject to the above designation orders and, further, that the work was carried out pursuant to a national agreement between the Canadian Pneumatic Control Contractors Association and the International Association (hereinafter referred to as the "Pneumatic Control agreement"). This agreement "picks up" the rates of pay of any local union agreement prevailing in a work area (i.e. in the industrial, commercial and institutional sector in Ontario this would be the provincial agreement) but goes on to deal with many other terms and conditions of employment including crew size, the supply of men, and use of personal cars. The provincial agreement either conflicts or does not deal with these three areas of working conditions. The expiration of the Pneumatic Control agreement in effect at the time this matter arose was December 31st, 1982. The applicant submits that this agreement is contrary to section 146(2) and seeks a declaration to this effect.

7. The trade or work jurisdiction of the International Association is set out in the Pneumatic Control agreement at paragraph 13 in the following terms:

13. This Agreement covers the rates of pay, hours and working conditions of all workmen employed by the Employer doing plumbing and pipe fitting as related to the installation, service, and maintenance of all pneumatic control systems, and component parts thereof, including calibration, commissioning and start-ups, fabrication, assembling, erection, installation, dismantling, recording, adjusting, altering, and servicing of said pneumatic control systems, and the handling, unloading, distributing, reloading, tying on, and hoisting of all piping materials, and appurtenances and equipment used in connection with said pneumatic control systems by any method, including all hangers and supports of every description, and all other work included in the trade jurisdiction claims of the United Association. This Agreement also covers workmen engaged in servicing, field repair, and maintenance of all phases of process control systems. No other classification of workmen shall be created or introduced which will have the effect of circumventing the provisions of this Agreement.

Environmental control systems within buildings or process control systems used in industry are controlled by either air pressure conveyed by plastic, galvanized or copper piping or by electrical signals conveyed by wiring. From the evidence of Donald S. McLeod of Comstock International Limited and Robert J. McLeod of McLeod & Sons Ltd. it is clear that in the past pneumatic control work has been considered part of the mechanical package. A mechanical contractor would include in his bid the pneumatic control work and then in turn might subcontract this work to one of the recognized control contractors. The control contractors are clearly more specialized than a mechanical contractor in this line of work in that the control contractors manufacture, install and service their own pneumatic control systems. However, while the greatest percentage of pneumatic control installations is performed by the pneumatic control contractors in commercial and institutional buildings, mechanical contractors do install these systems with their own forces on occasion and may install upwards of 50% of the control systems in industrial applications. The evidence reveals that in recent years pneumatic control contractors have increasingly been making bids on their own behalf directly to owners or general contractors and thereby depriving the mechanical contractors of the mark-up they would normally take in contracting out this aspect of a mechanical package.

8. Mr. Eryl Roberts, Labour Relations Manager of the Electrical Contractors Association of Toronto and Secretary for the Electrical Trade Bargaining Agency of the Electrical Contractors Association of Ontario, testified with respect to electrical control systems and the coverage of the electricians' provincial agreement with respect to this kind of work. He testified that Johnson and Honeywell employed members of I.B.E.W. Local 353; that they paid into the industry fund pursuant to the electrical provincial agreement; and that they were bound by the provincial agreement with respect to the installation of electrical control systems. The evidence tendered on behalf of the respondent companies confirms that they are bound by the electrical provincial agreement with respect to electrical control installation work in the industrial, commercial and institutional sector of the province.

9. On the other hand, the separate treatment of pneumatic control work by the International Association dates back to 1944. Until the late 60's or early 70's Canadian pneumatic control work was governed by the terms of "a national agreement" negotiated by a United States and Canada labour relations committee made up of representatives of U.S. control companies and their Canadian subsidiaries. Historically, therefore, one agreement applied to the United States and Canada. However, the Canadian Pneumatic Control Contractors Association (hereinafter referred to as "the Association") came to be formed and the International Association consented to its Canadian officers negotiating with this new entity. Accordingly, since at least 1974 there has been a national pneumatic control contract applicable only to Canada. Not all pneumatic control contractors, however, belong to the Association although they are governed by an equivalent agreement made with the International Association in any event. The evidence reveals that certain of the pneumatic control contractors have, in the past, intervened in accreditation proceedings where a mechanical contractors' association was seeking accreditation and obtained the exclusion of the pneumatic control contractors from the issued accreditation orders. Representative of these interventions would be the Johnson Controls' intervention in Board File No. 2776-72-R involving an application by the Mechanical Contractors' Association of London in respect of Local Union 593 of the International Association. The Johnson Controls' intervention in that case pleaded that it had no collective agreement with Local 593 and that it was a member of the Pneumatic Control Systems' Council "which Council entered into a collective agreement with the United Association of Journeymen and Apprentices of Plumbing and Pipe Fitting Industry of the United States and Canada". The evidence further reveals that specific notice of the designation proceedings in 1978 was not given to the Canadian Pneumatic Control Contractors Association or to individual pneumatic control contractors. On the other hand, we are not prepared to find that the Council or its members were unaware of the designation proceedings and it is clear that they did not intervene to seek an exclusion from the designation orders. Indeed, they accept that they are bound by the electrical designation. Finally, the evidence indicates that the pneumatic control contractors have paid into the mechanical trade industry fund since the advent of provincial bargaining and that they have been kept abreast of provincial bargaining through various mailings. Indeed, officials of certain of the companies have attended bargaining policy meetings although it is the position of the pneumatic control contractors that such attendance was aimed only at receiving information about the direction of provincial bargaining, recognizing that their national agreement picks up the rates set out in the provincial agreement.

10. The applicant submits that the work clearly falls within the industrial, commercial and institutional sector and that the respondent companies are just as clearly bound by both the designation order of the applicant and the provincial agreement. Counsel submitted that the Board should view the sectors set out in the Act as exhaustive and, alternatively, argued that there was no justification to create a different or additional sector in the facts at hand. Counsel stressed that the respondent companies were working side by side with mechanical contractors; that they often performed work pursuant to a subcontract for mechanical contractors; and that they considered themselves bound by the electrical provincial collective agreement for the electrical control work. Counsel submitted that at best pneumatic control work was a specialty within the plumbing and pipe fitting craft and pointed to the evidence of joint training programs with respect to this work between the applicant and local trade unions. It was particularly emphasized that the control contractors were not the only contractors performing pneumatic control work. Counsel disputed that the applicant was estopped from bringing this complaint. He argued that the existence of the Pneumatic Control agreement was never brought to the applicant's attention; it made no representation to the respondents on which they could have relied; and that, in any event, estoppel could not be relied upon to defend against the application of a public statute. On behalf of the Canadian Pneumatic Control Contractors Association it was submitted that the provincial agreement does not apply to the work in question and, in the alternative, the Board ought to refuse the remedy having regard to the long history of separate and distinct bargaining engaged in by the Association together with the failure of the applicant formally to negotiate on behalf of pneumatic contractors. Counsel emphasized that single trade province-wide bargaining was intended only to consolidate pre-existing bargaining patterns on a province-wide basis. With this purpose in mind, it was his submission that the long history of separate bargaining by pneumatic control contractors with the International Association suggested that there was no intent to designate the applicant to bargain on behalf of pneumatic control contractors. It was pointed out that pneumatic control contractors were not given notice of the designation proceedings and this fact either precluded a request for exclusion by the Association or indicated an intent that the Association was not affected by the proceedings. Counsel submitted in the alternative that the same facts ought to encourage the Board to exercise its discretion and decline to issue the requested relief. Counsel on behalf of Johnson Controls contended that the designation order could not affect pneumatic control contractors because they were not given notice of the proceedings and, alternatively, that the designation order was a nullity in that there was no evidence that certain conditions subsequent had been complied with. Counsel stressed that the pneumatic control agreement was not a sham agreement or designed to circumvent or undermine the provincial agreement. Counsel on behalf of Honeywell stressed that at the very least the national agreement remained effective outside the ICI sector and that if pneumatic control contractors were to be bound by the provincial agreement the Board ought to fashion an order which maintained the status quo until the next round of provincial bargaining. However, the primary thrust of his argument was in support of the representations made by the other respondents with a particular plea that the Board decline to make the direction requested. On behalf of the respondent trade unions counsel contended that the Pneumatic Control agreement was negotiated by the International Association and local unions were bound by this constitutional arrangement. Counsel submitted that the Board ought to have regard to the distinctive work characteristics of pneumatic control work and create another sector which would embrace the work and avoid the ambit of the provincial agreement in question. As did other counsel, counsel for the trade unions stressed that provincial bargaining was not designed to alter historical bargaining patterns and that at the very least the Board ought to use its discretion to delay the effect of any declaration to the expiration of the current provincial collective agreement.

11. On the evidence before us, we are satisfied that the respondent companies perform pneumatic control installation work within the industrial, commercial and institutional sector of the construction industry. A long history of negotiating national agreements does not and cannot alter this fact. We are further satisfied the work in question is a specialization of the plumbing and pipe fitting trade and the contractors either individually or through their association have collective bargaining relationships with the International Association which is subject to and constrained by the applicant's designation as employer bargaining agent. Accordingly, we are satisfied that the respondent companies are equally subject to the applicant's designation as bargaining agent and that the designation is not defective in any way. It is not for this Board to review the procedure by which the designations were originally made. Some of the respondent companies argued the need for another sector but no such case was made out. Electrical control work has been accommodated by the electrical provincial agreement. There are also many examples under other provincial agreements of parties according distinctive treatment to particular lines of work by appendices. We also point out that any employer bargaining agency owes a duty of fair representation to its constituent employers and the applicant will have to be sensitive to possible conflicts of interest referred to by some of the witnesses in this case. However, pursuant to the Board's remedial authority granted by section 89 the declaration contained above in this paragraph and a related declaration that any pneumatic control agreement insofar as it pertains to the industrial, commercial and institutional sector is null and void shall not be effective until the expiration of the current provincial agreement unless the applicant is willing to adopt the salient terms of the pneumatic control agreement as an appendix to the provincial agreement for the duration of the current provincial agreement. This condition is based on the considerable history of pneumatic control bargaining and the way in which the matter arose. In our view the parties should be given a meaningful opportunity to deal with the various issues involved in integrating pneumatic control work into the provincial agreement. We further provide that these conditions are in turn conditioned upon the respondent companies continuing to pay into the industry fund set out in the provincial agreement.