[1983] OLRB Rep. March 447
2641-82-M The IBEW Construction Council of Ontario, and the International Brotherhood of Electrical Workers, Local 594, Applicant, v. The Electrical Contractors Association of Ontario, and Ron Pleau Electric Ltd., Respondents
BEFORE: Ian Springate, Vice-Chairman, and Board Members J. A. Ronson and C. A. Ballentine.
APPEARANCES: Alexander J. Ahee, Ralph Tersigni and Pat Walsh for the applicants; Robert Sheppard and Terry V McCann for Ron Pleau Electric Ltd. 77
DECISION OF THE BOARD; March 3, 1983
These proceedings arise out of a purported referral of a grievance to the Board pursuant to section 124 of the Labour Relations Act.
At the commencement of the hearing, it became apparent that no grievance had either been served on the respondents or filed with the Board, although the "referral form" did allege that Ron Pleau Electric Ltd., had violated the provincial agreement entered into between the Electrical Trade Bargaining Agency of the Electrical Contractors Association of Ontario and the International Brotherhood of Electrical Workers and the IBEW Construction Council of Ontario ("the Provincial Agreement").
The Board's jurisdiction to deal with alleged violations of collective agreements in the construction industry is set forth, as follows, in section 124 of the Act:
"124.-(1) Notwithstanding the grievance and arbitration provisions in a collective agreement or deemed to be included in a collective agreement under section 44, a party to a collective agreement between an employer or employers' organization and a trade union or council of trade unions may refer a grievance concerning the interpretation, application, administration or alleged violation of the agreement, including any question as to whether a matter is arbitrable, to the Board for final and binding determination.
(2) A referral under subsection (1) may be made in writing in the prescribed form by a party at any time after delivery of the written grievance to the other party, and the Board shall appoint a date for and hold a hearing within fourteen days after receipt of the referral and may appoint a labour relations officer to confer with the parties and endeavour to effect a settlement before the hearing."
It is clear from the wording of section 124 that if a trade union is of the view that an employer has violated the terms of a collective agreement, and the matter cannot be resolved informally, then its next step is to deliver a written grievance to the employer setting out the alleged violation. Once the grievance has been delivered, then either the union or the employer may elect to refer the grievance to the Board for a determination pursuant to section 124 of the Act rather than have the matter proceed to arbitration under the procedures set forth in the collective agreement. If the grievance is referred to the Board, the Board acts in the same manner as does an arbitration board. That is, the Board assesses the validity of the allegations set forth in the grievance. Having regard to the requirements of section 124, the Board advised the parties that since no grievance had been filed with the respondents, or placed before the Board, the proceedings were clearly deficient. At that point, counsel for the applicants and counsel for Ron Pleau Electric Ltd. agreed that instead of delaying the matter so as to provide the applicant with an opportunity to properly file a grievance, they would prefer to litigate and have the Board determine, the key issue of whether or not Ron Pleau Electric Ltd. is bound by the terms of the provincial agreement. If the company is not bound by the terms of the agreement, then no subsequently filed grievance could be successful. The Board agreed to proceed on the basis of this agreement between the parties.
Ron Pleau Electric Ltd. is a relatively small electrical contractor based in the City of Pembroke. Pembroke is the largest centre in Renfrew County. Prior to 1978 the International Brotherhood of Electrical Workers included Renfrew County within the jurisdiction of its Local 598 based in Ottawa. Indications are that the Ottawa Local never entered into formal collective agreements with any of the Renfrew County electrical contractors.
The International Brotherhood of Electrical Workers, Local 594 (which hereinafter will generally be referred to simply as "the union") was chartered in June of 1978 with jurisdiction in Renfrew County. Mr. Pat Walsh, an outgoing and very friendly individual, was selected as the local's first business manager. Mr. Walsh was known to, and respected by, many of the Renfrew County electrical contractors.
When Local 594 commenced operations, it had no formal agreements with any of the Renfrew County contractors. However, a number of contractors did quickly establish informal links with the local. Apparently most of these contractors had been active members of the International Brotherhood of Electrical Workers earlier in their careers, and they continued to carry IBEW cards. Some of these contractors employed members of the union. Certain, but not all, of these contractors agreed to requests by Mr. Walsh that they forward welfare benefits to the union on behalf of those of their employees who were union members. In addition, if so desired by their employees, some of the contractors also made vacation pay payments to the union rather than directly to the employees. The union kept a list of out-of-work members so that contractors could, if they so desired, contact the union for employees. On a relatively small number of projects, this informal connection between the union and the contractors proved to be of direct benefit to the contractors. These were projects where either the owner-client or a general contractor from "out of town" required that the project be built on a "unionized" basis. Those Electrical Contractors which had informal links with the union were treated as unionized firms for this purpose. Interestingly, even on some of these projects the contractors paid their employees less than full "union rates.
Shortly after Mr. Walsh became business manager of the union he set himself the task of formally acquiring bargaining rights with respect to the electrical contractors in the country. A number of contractors who had informal dealings with the union were more than willing to cooperate in this regard. These contractors seem to have been of the view that the union could have a stabilizing influence on the industry, and that through the union the incomes of local electricians might be increased. Although these contractors were willing to cooperate with Mr. Walsh, they were very concerned that they not be put in a position where because of high wages, they would not be able to compete against other area contractors who refused to deal with the union. One of the contractors most willing to cooperate with Mr. Walsh was Mr. Ron Pleau, the owner of Ron Pleau Electric Ltd. Before setting up his own shop in Pembroke, Mr. Pleau had served as the president of the Oshawa local of the International Brotherhood of Electrical Workers. It was Mr. Pleau's hope that a Renfrew County electrical contractors association could be established to both act as a "lobby" with respect to relevant municipal by-laws, and also be a vehicle by which the area contractors could deal jointly with the union. Mr. Pleau envisaged that such a contractors association could bargain the terms of the Renfrew County appendix to the provincial agreement with the union local, and also have some input into provincial bargaining generally.
On July 6, 1978 Mr. Walsh met with Mr. Pleau and a few other contractors who were sympathetic to the union. At this meeting, it was agreed that the contractors would each sign a document indicating a connection with the union, but that the documents would only be used by Mr. Walsh as a device to get other contractors interested in dealing with the union. Mr. Walsh expressly told Mr. Pleau and the other contractors present at the July 6, 1978 meeting that the documents would not be used against them. Mr. Walsh himself testified that "I told Pleau I wouldn't use the document, and I didn't use the document." Later during the hearing Mr. Walsh testified that when he told Mr. Pleau that the document would not be used, both he and Mr. Pleau understood that he only meant that any reference in the document to wages would not be used against him. We are satisfied, however, that this was not Mr. Pleau's understanding of Mr. Walsh's comments. In this regard, we would note that the document in fact contained no reference to wages.
The typed document which Mr. Walsh asked the contractors to sign, read as follows:
"Local Union No. 594 I.B.E.W., Pembroke, Ontario.
LETTER OF ASSENT
THIS IS TO CERTIFY that the undersigned firm has examined a copy of the approved collective bargaining agreement between _______________ and Local Union No. 594, I.B.E.W., AFL-CIO & CLC, dated the day of __________________ 1978.
THE UNDERSIGNED FIRM hereby agrees to comply with all of the terms and conditions of employment contained in the above-mentioned agreement and all approved amendments thereto. It is further agreed that the signing of this LETTER OF ASSENT shall be as binding on the undersigned firm as though it had signed the above referred-to agreement and any approved amendments thereto.
THIS LETTER OF ASSENT, when approved by the International President of the I.B.E.W., in accordance with its Constitution, shall become effective on the 6th day of July, 1978, and shall remain until April 30th, 1980."
It is apparent that the document is in the nature of a "standard form" by which a contractor can agree to bind himself to the terms of some other pre-existing agreement between the union and another employer. In this case, however, the name of "Ron Pleau Electric Ltd." was inserted in the space where normally would go the name of the other employer. Accordingly, what Mr. Pleau signed was a statement indicating that he would comply with the terms of a pre-existing agreement between the union and Ron Pleau Electric Ltd. Since there was, in fact, no such pre-existing agreement, the document signed by Mr. Pleau made little or no sense.
Mr. Walsh was true to his word, and did not seek to alter the union's relationship with Ron Pleau Electric as a result of the July 6, 1978 document. For his part, Mr. Pleau continued his practice of employing both members and non-members of the union. The company made benefit payments to the union for its employees who were union members but did not do so for non-members. Except for one "union job" of five days' duration during the summer of 1981, the company paid its employees, including those who were union members, in accordance with local wage rates and not the higher rates provided for in the provincial agreement. Mr. Walsh testified that at some point in 1979 Mr. Pleau hired Mr. Paul Jones, a non-member of the union, and sent him down to the union hall to become a member. The evidence, however, establishes that at the time that Mr. Jones joined the union he was not in the employ of Ron Pleau. Mr. Jones testified that he had decided on his own initiative to join the union and that he did so without any directions or urging from Mr. Pleau.
In November of 1979 Mr. Pleau and two other contractors, namely, Mr. R. Davidson and Mr. J. Malette, signed yet another docuement at Mr. Walsh's request. The document which they signed read as follows:
"SECTION 20 SIGNING PAGE
Dated at Nov. 22, 1979, Ontario this 22, 1979
Day of November, 1979..
For the IBEW Construction of Local 594, Renfrew [sic] County, Pembroke
For the Contractor For IBEW Local 594
"Ron Pleau" "Maurice S. Walsh" 386 Rowan St. Business Manager Pembroke, Ont.
K8A-1B2
'Ray Davidson" "Maurice S. Walsh"
Electric Ltd.
J. I. Malette Elect. Ltd. 'Maurice S. Walsh" "Joseph J. Malette"
When this document was filed with the Board it was attached to the back of a lengthy document comprised of copies of both the "Principal Agreement" section of the 1978—80 provincial agreement and the Renfrew County appendix to the agreement. Mr. Walsh testified that the signing page was attached to the other material when it was executed by Mr. Pleau, Mr. Davidson and Mr. Malette. According to Mr. Walsh, when the three contractors signed the document he advised them that they would not actually have to adhere to the wage provisions of the provincial agreement on all jobs, but only on jobs where the general contractor was a unionized firm from out of town.
The testimony of Mr. Pleau and the other two contractors contradicts Mr. Walsh's testimony on a number of points. According to the three contractors, Mr. Walsh asked them to sign the document, which he described as a "letter of intent," so that along with a covering letter, which he would draft later, he could use it as an aid in approaching other contractors. In this regard he specifically referred to the county's two largest electrical contractors, neither of which had any dealings with the union. Mr. Pleau testified that Mr. Walsh also stated that he needed the document to show the IBEW that he was making progress in organizing the contractors. According to Mr. Pleau, Mr. Walsh told him that he would tear up the document after one year if he could not also get the other contractors to sign it. Of particular interest in this regard is the testimony of Mr. Pat Wise, the president of the union local. Mr. Wise testified that at the meeting in question "Walsh did say it (the document) would never be enforced or he would rip it up if they wanted." Given this evidence, we are satisfied that Mr. Walsh asked Mr. Pleau to sign the document in question so that he could use it in approaching other contractors, and that Mr. Walsh indicated that no use would be made of the document, at least unless those other contractors also signed it, which they did not.
Mr. Pleau, Mr. Malette and Mr. Davidson all testified that when they put their signatures to the document in question, it was only a single page, not attached to either the provincial agreement or the local appendix. We accept their evidence on this point over that of Mr. Walsh. Given what we have found to be the intent of the document, as well as the discussion surrounding it, it is more reasonable that only a single page was involved as opposed to an entire agreement. Further, the condition of the signing page is quite different from that of the other material to which it was attached when filed with the Board. The signing page is creased in a number of places, one edge is tattered and in one corner there is what appears to be a coffee stain. In short, the page gives the appearance of having been well handled. The pages to which it was attached, however, do not show signs of having been similarly handled.
On April 25, 1980, Mr. Walsh met with Mr. Pleau and two other contractors. Mr. Walsh asked the contractors if they would sign a document indicating a willingness to, in the future, negotiated the terms of a local appendix to the 1980—82 provincial agreement. The document which they signed is set out below. Although the document states that tentative agreement had been reached with respect to the terms of a local appendix, it is clear on the evidence that this was not, in fact, the case.
"April 25, 1980
The undersigned Electrical Contractors and Local 594 I.B.E.W., have reached tentative agreement on the Local Appendix of the 1980 Provincial Agreement.
Signed by Contractors Signed by Union "Joseph J. Malette" "Maurice S. Walsh" "R. C. Electric" "Maurice S. Walsh" "Ron Pleau" "Patrick J. Wise" "Keith Jackson
On May 23, 1980 Mr. R. Tersigni, the Provincial Secretary for the IBEW Construction Council of Ontario and Mr. J. Wilson, Labour Relations Consultant to the Electrical Contractors Association of Ontario, travelled to Pembroke to discuss the establishment of a Renfrew County contractors association. Mr. Pleau was the only local contractor to show up at the meeting. During the course of the meeting, Mr. Wilson stated that given the existing circumstances, only the provincial employer bargaining agency had the right to negotiate the terms of the Renfrew County appendix to the Provincial agreement.
In January of 1982, Mr. Walsh called two meetings of local contractors to discuss the terms of a new Renfrew County appendix to the provincial agreement. Mr. Pleau and only one other contractor showed up at both meetings. In consequence, Mr. Pleau advised Mr. Walsh that since the other contractors were not interested in the project, he could not continue. It was at this point that the union commenced these proceedings. The union claims that by signing the various documents referred to above, Mr. Pleau legally recognized the union as the bargaining agent of his employees, and in the result he is by law bound by the terms of the provincial agreement.
Having been told that the union would not be relying on the documents, we have some doubt as to whether, even if Mr. Pleau had signed a voluntary recognition agreement, it would be enforceable by the union. However, there is no need for us to answer this question. None of the documents signed by Mr. Pleau contained an express recognition of the union as the legal bargaining agent of his employees. The original "letter of assent" stated that Mr. Pleau would be bound to the terms of a non-existing agreement. The second document was headed up only "signing page." The third stated that tentative agreement had been reached on a local appendix. This document comes the closest to containing an implicit recognition of the union as the legal representative of the company's employees. However, it is clear from the discussion surrounding the document that such was not its intent. In these circumstances, we can only conclude that Ron Pleau Electric Ltd. never formally recognized the union as the bargaining agent of its employees. It follows that the firm is not legally bound to the provisions of the provincial agreement. In the result, these proceedings are hereby terminated.