Labourers' International Union of North America, Local 506 v. Verdi Forming Limited, 1983 CanLII 954

[1983] OLRB Rep. October 1728

0052-83-U Labourers' International Union of North America, Local 506, Complainant, v. Verdi Forming Limited, The Ontario Formwork Association, Labourers' International Union of North America, Local 183, Rampart Enterprises Limited, Metro Toronto Apartment Builders Association, Respondents, v. The Formwork Council of Ontario, Intervener.

BEFORE: R. A. Furness, Vice-Chairman, and Board Members C. A. Ballentine and F. W. Murray.

APPEARANCES: Chris G. Paliare and Michael Gargaro for the applicant; R. J. Goodman for Verdi Forming Limited and The Ontario Formwork Association; A. M. Minsky, B. S. Fishbein and C. DeToni for the respondent Labourers' International Union of North America, Local 183 and the intervener The Form work Council of Ontario; R. C. Filion and K. Mallette for the Metro Toronto Apartment Builders Association; D. Jane Forbes-Roberts and Janet Trim for the Thronto Construction Association.

DECISION OF THE BOARD; October 6, 1983

1The names of certain of the respondents are hereby amended to read: "The Ontario Formwork Association" and, "Rampart Enterprises Limited".

2The complainant has complained under section 89 of the Labour Relations Act that it has been dealt with by the respondents on its own behalf and on behalf of all of its members contrary to the provisions of section 146 of the Labour Relations Act.

3The complainant seeks the following relief:

1. a declaration that the respondents have violated the Labour Relations Act;

2. a declaration that Labourers' International Union of North America, Local 183 ("Local 183"), and Verdi Forming Limited ("Verdi") have entered into a collective agreement or arrangement which is contrary to the provincial agreement and therefore in violation of section 146 of the Labour Relations Act;

3. a declaration that any agreement or arrangement other than the one contained in the provincial agreement is null and void;

4. an order that Local 183 be prohibited from filling any requests for workmen by any employer to do formwork on this particular project;

5. an order that Verdi be precluded from forwarding welfare, dues, pension or any other related payments to Local 183 or any of its pension funds for any employees who are engaged in performing formwork at the project in question;

6. an order that the respondents are jointly and severally liable to pay to the complainant on behalf of its members all wages, benefits and dues that have already been paid by Verdi to Local 183 and its members;

7. an order that Verdi cease and desist from hiring members of Local 183 to do the forming work on this project; and

8. an order against Verdi, Rampart Enterprises Limited ("Rampart"), and Local 183, jointly and severally in respect of all costs, legal and otherwise arising from the violations of the provincial collective agreement and the Act.

4The complainant alleged in its complaint that it is the exclusive bargaining agent for all formworker labourers on building structures within the Board's geographic area #8 and that article 9 of the Local Union Schedule for the complainant of the provincial collective agreement reads as follows:

For the purpose of Article 2, of the Master Portion of the Provincial Agreement Local 506 shall be recognized as the exclusive affiliated Bargaining Agent for the work of Formworker Labourers on Building Structures within the Ontario Labour Relations Board Area No. 8.

The complainant also alleged that Rampart is the developer and general contractor for a major building project located on the southwest corner of MeCowan and the 401 adjacent to the Scarborough Town Centre (the "project"). It is the position of the complainant that the work in question is work normally done in the industrial, commercial and institutional sector of the construction industry.

5The complainant has further alleged that Rampart is bound by a collective agreement with Local 183 as a result of Rampart being a member of the Metro Toronto Apartment Builders Association (the "MTABA") and that Rampart has subcontracted the formwork on the project to Verdi. There is no dispute that Verdi and Local 183 are each bound by a collective agreement between The Ontario Formwork Association (the "Association") and The Form Work Council of Ontario (the "Council").

6The complainant also alleged that the work on the project started in or about the week of March 21, 1983, with workmen supplied by Local 183 to Verdi. It is the position of the complainant that since the project is in the industrial, commercial and institutional sec­tor of the construction industry if the formwork on the project is to be done by members of Local 183, the work will be done in a manner which is contrary to the provisions of the provincial collective agreement and therefore amounts to an arrangement or a collective agreement which is contrary to the provisions of section 146. It was the position of the complainant that virtually all of the subcontractors that are engaged in the project, with the exception of Verdi, are employers who are bound by provincial collective agreements in the industrial, commercial and institutional sector of the construction industry with the various trades.

7The complainant also alleged that in a telephone conversation on or about January 18, 1983, Tony Neil, field representative of the complainant, asked Mr. Verrilli, a principal of Verdi, to enter into a collective agreement with the complainant with respect to the project. The complainant viewed the project as being in the industrial, commercial and institutional sector of the construction industry. It is alleged that Mr. Verrilli responded that he was unable to sign a collective agreement with the complainant because he was "with Local 183" and that Rampart, the developer on the project, had advised Verdi to "bid this job 183". It is further alleged that Mr. Verrilli refused to discuss the matter any further with Mr. Neil or any other representative of the complainant.

8The complainant has further alleged that Verdi, Rampart and Local 183 have entered into an agreement or arrangement which is contrary to the provisions of the provincial collective agreement such that members of Local 183 are being used to do the formwork on the project and thereby Verdi, Rampart and Local 183 are contravening the provisions of section 146 of the Labour Relations Act. The complainant also alleged that the Forming Contractors' Association and the MTABA as the bargaining agent for Verdi and Rampart, respectively, knew, or ought to have known, that one of their members was engaging in conduct contrary to section 146 and took no steps to prevent such breach.

9At the hearing Local 183 made a motion to dismiss this complaint because no cause of action arose on the facts alleged by the complainant. It was the position of Local 183 that section 89 is a procedural or remedial section and permits enforcement of the unfair labour provisions of the Labour Relations Act. Local 183 characterized the issue as whether it is a contravention of section 146 to supply workers on a project in the industrial, commercial and institutional sector of the construction industry and that this strikes at the question of the bargaining between the Association and the Council. Local 183 posed the question of whether a collective agreement arising from such bargaining is in any way affected or recognized by the designation orders of the Ministry of Labour under section 139 of the Labour Relations Act.

10The employee bargaining agency designation states:

The designation of The Labourers' International Union of North America and The Labourers' International Union of North America Ontario Provincial District Council dated April 21, 1978 and amended July 13, 1978 is further amended by including amongst the employees affected by the designation plasterers and plasterers' apprentices. The designation is also amended by substitution of the words "Formwork Council of Ontario" for the words "Form Work Council of Ontario" in the last paragraph. Accordingly, the amended designation reads as follows:

Pursuant to clause a of subsection 1 of section 127 [now section 139] of The Labour Relations Act, R.S.O. 1970, c. 232, as amended, I hereby designate The Labourers' International Union of North America and The Labourers' International Union of North America Ontario Provincial District Council as the employee bargaining agency to represent in bargaining all construction labourers, including masons' or bricklayers' tenders, plasterers and plasterers' apprentices and all employees engaged in cement finishing, waterproofing or restoration work, represented by the following affiliated bargaining agents.

1. The Labourers' International Union of North America; or

2. The Labourers' International Union of North America Ontario Provincial District Council; or

3. The following Local Unions: 183, 247, 491, 493, 506, 527, 597, 607, 625, 749, 837, 1036, 1059, 1081 and 1089; or

4. Any other Local of The Labourers' International Union of North America which, in the future, may be chartered to represent construction labourers, including masons' or bricklayers' tenders, plasterers and plasterers' apprentices, and employees engaged in cement finishing, waterproofing or restoration work;

(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 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.

For purposes of clarity, it should be noted that notwithstanding the fact that locals set out in paragraph 3 above are affiliated bargaining agents within the meaning of clause a of section 125 [now section 137] certain of them have or may acquire bargaining rights, or are, or may become bound by, certain collective agreements affecting all sectors of the construction industry covering all employees engaged in concrete forming construction~ namely the agreement between Locals 183 and 1081, and the Ontario Form Work Association and between Local 493 and Romm Construction Company Limited, whereby they represent employees who do not commonly bargain separately and apart from other employees. Therefore, with respect to bargaining on behalf of employees of members of the Ontario Form Work Association and Romm Construction Company Limited, and such other employers for whom any of the local unions have or may acquire bargaining rights for all employees engaged in concrete forming construction, such locals are not affiliated bargaining agents within the meaning of clause a of section 125 [now section 137], nor are they included in or covered by this designation under subsection 1 of section 127 [now section 139], nor are they or the said collective agreements and bargaining thereunder affected by section 133 [now section 146] of The Labour Relations Act.

Pursuant to subsection 2 of section 127 [now section 139] of The Labour Relations Act I hereby exclude from this designation the bargaining relationship between the Formwork Council of Ontario and the Ontario Form Work Association.

[emphasis added]

11Local 183 argued that the relationship between itself and the Council is specifically and clearly exempted and precluded from the employee bargaining agency designation of The Labourers' International Union of North America and The Labourers' International Union of North America Ontario Provincial District Council. Local 183 further argued that the collective agreement between itself and the Association continues to be a lawful one and has been excluded by the Minister of Labour pursuant to section 139(2) [formerly section 127(2)] of the Labour Relations Act, thereby declaring that Local 183 is not an affiliated bargaining agent with respect to bargaining on behalf of employees of members of the Association and such other employers for whom any of the local unions have or may acquire bargaining rights for all employees engaged in concrete forming construction.

12Local 183 reasoned that it was not affected by section 146 [formerly section 133] because of the very clear language of the designation and that there could be no violation of section 146 because Local 183 and Verdi are working outside the provincial collective agreement. Local 183 characterized the complainant's complaint as resting upon a claim of exclusive rights in the Board's geographic area #8 and that the defence to the complaint is based on the provisions of the Labour Relations Act.

13MTABA, Rampart and Verdi supported the motion of Local 183. It was pointed out that there was no allegation that Rampart was bound by the provincial collective agreement and that, in fact, Rampart is not bound by the provincial collective agreement. Rampart volunteered that it is bound by an exclusively residential collective agreement with MTABA. Rampart and MTABA argued that whether or not the complainant could make out a case against Local 183, Verdi and the Association, a case could not be made out against Rampart and MTABA. The employee bargaining agency designation was viewed by Rampart and MTABA as a complete answer to the complaint. Verdi adopted the position that it was not an employer bound by the provincial collective agreement and that in these circumstances it could not be conducting itself contrary to the provisions of section 146.

14The complainant opposed the motion to dismiss its complaint and urged the Board to exercise caution. The complainant argued that all it was required to do was to establish that a prima facie case has been made out and that construction work was being done in the industrial, commercial and institutional sector of the construction industry pursuant to an agreement or arrangement other than the provincial collective agreement. It was pointed out that if the complainant's allegations are proven then there is an arrangement between an employer and a trade union to specifically circumvent the provisions of the provincial collective agreement. The complainant urged the Board to consider the whole notion of provincial bargaining in the industrial, commercial and institutional sector of the construction industry. The complainant argued that the exemption in the designation ought to be narrowly construed and be read with the overall purpose of the Labour Relations Act in mind. It was pointed out that the Board had never certified Local 183 in the industrial, commercial and institutional sector to do formwork and it was urged that the Board consider the historical perspective on bargaining in the construction industry. The Toronto Construction Association supported the position of the complainant.

15The complainant has alleged a violation of section 146 of the Labour Relations Act and urges the Board to hear the evidence in support of its complaint and argued that all it was required to do was to establish that a prima facie case has been made out. The motion for the dismissal raises an even more fundamental issue, namely, whether the alleged conduct discloses a violation of section 146. The provincial collective agreement purports to state that the complainant shall be recognized as the exclusive affiliated bargaining agent for the work of formworker labourers on building structures in the Board's geographic area #8. The Minister of Labour, pursuant to section 139(1) and (2) of the Act has designated an employee bargaining agency with respect to essentially construction labourers. However, the Minister of Labour has made an exclusion of certain bargaining relationships including all sectors of the construction industry covering all employees engaged in concrete forming construction. The agreement between Locals 183 and 1081 and the Association is specifically contemplated as a collective agreement excluded thereunder and not affected by section 146. Moreover, the exclusion in the employee bargaining agency designation expressly contemplates not only presently existing bargaining rights but also prospective bargaining rights which may be obtained in the future. Indeed, in Matterhorn Construction (Hamilton) Limited, [1981] OLRB Rep. Sept. 1276, the Board granted interim certification to Local 183 as the exclusive bargaining agent of all employees of an employer engaged in concrete forming on residential building projects in the Board's geographic area #8 in an application for certification made pursuant to section 144(5) of the Act.

16The complaint is generally framed as a violation of section 146. The respondents are neither employee nor employer bargaining agencies and are therefore incapable of violating section 146(1). Section 146(3) addressed the expiry of provincial collective agreements and can clearly have no relevance to this complaint. There remains section 146(2) which states:

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 the 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.

Section 146(2) is made subject to sections 139 and 145. In the employee bargaining agency designation the Minister of Labour has made the exclusion under section 139(2) as referred to previously. Section 139(2) states that section 146(2) does not apply to such exclusion.

17In Matterhorn Construction (Hamilton) Limited, supra, the Board observed that Local 183 is not a trade union represented by an employee bargaining agency when it comes to employees engaged in concrete forming construction. The employees who are employed by and working for Verdi in concrete forming construction are, in the language of section 146(2), not employees represented by affiliated bargaining agents by virtue of the exclusion in the employee bargaining agency designation. Therefore, any collective agreement or arrangement affecting such employees insofar as it pertains to concrete forming construction is not a violation of section 146(2).

18For the past twenty years there have been accommodations, disputes, concessions, exchanges and confrontations between the complainant and Local 183 on the subject of work jurisdiction in the Board's geographic area #8. These differences have been considered by the Board on several occasions, most recently in Pelar Construction Ltd., [1981] OLRB Rep. Feb. 210; and previously in Cross Town Paving, [1965] OLRB Rep. May 128 and in Peniche Construction Forming, [1974] OLRB Rep. April 208. The complainant and Local 183 have once again confronted each other with the complainant relying on the provisions of a provincial collective agreement and Local 183 relying on the exclusion contained in an employee bargaining agency designation. The Board expresses no opinion on the propriety of article 9 of the Local Union Schedule for the complainant of the provincial collective agreement. It is our finding that on a fair reading of the provisions of the Labour Relations Act the complainant has failed to establish a violation of the Act. It may well be that the evidence which the complainant would propose to adduce in support of its complaint would elaborate its apprehension at the competition from Local 183 and the other respondents. However, the complainant in a complaint under section 146 must persuade the Board that it has at least an arguable case with respect to a violation of that section. This it has failed to do and this complaint is accordingly dismissed.

DECISION OF BOARD MEMBER C. A. BALLENTINE;

1. I must reluctantly agree with the majority to dismiss this complaint because the designation order for the employee bargaining agency comprised of The Labourers' International Union of North America and The Labourers' International Union of North America Ontario Provincial District Council, exempts employees of members of the Ontario Form Work Association and .... . such other employers for whom any of the local unions have or may acquire bargaining rights for all employees engaged in concrete forming construction." [emphasis added]

2. However, I have concern that the present form of the Labourers' designation order undermines the scheme of provincial bargaining in the industrial, commercial and institutional sector of the construction industry with respect to all of the trades involved in concrete forming.

3. I cannot leave this decision without commenting upon the surrounding circumstan­ces that gave rise to this issue being litigated before the Board which I am familiar with be­cause of my background in the construction industry prior to my appointment to the Board in 1979. I was a member of the Construction Industry Review Panel appointed by the Government of Ontario to advise the Minister of Labour from 1972 to 1979. From 1967 to 1975, I was the Business Representative and from 1975 to 1979, the Business Manager of the Toronto Building and Construction Trades Council. It was the Construction Industry Review Panel that recommended the adoption of the concept of province-wide bargaining on a single craft basis to the Minister of Labour following the Report of the Franks Commission; our objective was to bring greater stability to labour relations in the industry by establishing coordinated bargaining. The Panel was at the forefront of providing the information and support for the creation of the legislation that came to fruition in October, 1977 through Bill 22. As a representative of the Toronto Building and Construction Trades Council, I was also heavily involved in the organizing and administration of the residential sector of the construction industry in Board Area 8 (Metropolitan Toronto and surrounding vicinity).

4. In 1969, the Council and the Metropolitan Toronto Apartment Builders' Association entered into a master recognition agreement that established a collective bargaining relationship between the Council and its affiliated unions and the Association and its members that was intended to bring stability to the residential sector in Board Area 8.

5. When the province-wide bargaining legislation was being considered in 1977, there was concern as to which sectors of the construction industry would be covered, and, in particular, whether the residential sector would be subject to it. The Metropolitan Toronto Apartment Builders' Association made strong representations to exclude the residential sector from the legislation. The Toronto Building and Construction Trades Council and its affiliated unions did not oppose the representations made by the Association, primarily because during the period after the signing of the master agreement a fairly good relationship had developed between the Council and the Association and the Council and the Association had set their minds to establishing a clear demarcation between residential and commercial construction. Prior to the preparation and introduction of provincial bargaining legislation, the Association and the Council had negotiated the following clause into the Master Agreement: "those sections of a multi-towered single complex on a common podium which are divided vertically by lines relating directly to commercial and residential sections; each section shall be built according to its base use". It should be noted that until 1977, any commercial building that a member of the Association worked on was generally a mixed commercial/residential project. Apparently this has changed since 1977. Another reason the Council did not oppose the Association's representations to have the residential sector excluded from provincial bargaining was that outside of Board Area 8 residential construction was generally unorganized and there was no labour relations structure involving a major builders' organization outside of Board Area 8 comparable to the relationship between the Council and the Association.

6. I do not believe that any of the parties involved in the implementation of the provincial bargaining legislation; management, labour or the Government envisaged or intended that, by excluding the Trades Council, I was also heavily involved in the organizing and administration of the residential sector of the Building Trades Council or any of its members would have a licence to engage in construction work in the ICI sector using their "residential" agreements to compete against contractors that are bound to the provincial agreements covering the ICI sector.

7. I believe that the province-wide bargaining scheme, legislated in 1977, intended to have collective bargaining and provincial agreements established on a single trade union basis, parallel to the structure of the Building Trades Department of the AFL-CIO. It would not apply to trade unions that organize and represent all employees such as the Christian Labour Association of Canada ("CLAC"). However, the Labourers' International Union of North America, an affiliate of the Building Trades Department, requested the exemption for Form Work Agreements covering all employees. The Labourers' designation order excludes collective agreements covering all employees engaged in concrete forming, namely the agreements between Locals 183 and 1081 and the Ontario Form Work Association and between Local 493 and Romm Construction Company Limited, whereby they represent employees who do not commonly bargain separately and apart from other employees. Therefore, with respect to bargaining on behalf of employees of members of the Ontario Form Work Association and Romm Construction Company Limited, and such other employers for whom any of the local unions, that is, locals of the Labourers' Union, have or may acquire bargaining rights for all employees engaged in concrete forming construction, the scheme of province-wide bargaining does not apply to them in respect of concrete forming construction.

8. Counsel for Local 183 stated at the hearing that because of the Labourers' desig­nation order it is at liberty "to go its merry way." I think he is, unfortunately, correct, notwithstanding that Local 506 apparently believed that their interests were protected under the Labourers' provincial agreement by the Local Union Schedule, Article 9, Sub-Contracting, which states in section 9.01: "For the purpose of Article 2 of the Master Portion of the Provincial Agreement Local 506 shall be recognized as the exclusive affiliated Bargaining Agent for the work of Form worker Labourers on Building Structures within Ontario Labour Relations Board Area No. 8. [emphasis added] It is obvious that Local 506 has bargaining rights in respect of concrete forming only where it has a contractual relationship with contractors who are bound to the provincial ICI agreement, or where it acquires bargaining rights for labourers only.

9. Local 506 may well be justified in having apprehensions about the competition it faces, but there will be many other employee bargaining agencies and employer bargaining agencies that also will have, and probably do already have, apprehensions when members of the Metropolitan Toronto Apartment Builders' Association are at liberty to enter the ICI sector of the construction industry by engaging members of the trade unions affiliated with the Building Trades Department to construct buildings under terms and conditions that are different than those established by the provincial agreements covering the ICI sector.

10. It was the Labourers' International Union of North America and the Labourers' International Union of North America Ontario Provincial District Council, of which Local 506 is an affiliated union, that requested the Minister of Labour in 1977 to exclude concrete forming from the employee bargaining agency designation. It is obvious, therefore, that any redress to Local 506's problem can only come from that same source.