[1984] OLRB Rep. July 1011
0316-84-R Steve Crowe, Fred Downer and Mel Davis, Applicants, v. International Union of Bricklayers and Allied Craftsman Local #17, Respondent, v. Stuart Riel Masonry Contractor, Intervener
BEFORE: N. B. Satterfield, Vice-Chairman and Board Members C. A. Ballentine and I. M.
Stamp.
DECISION OF THE BOARD; July 19, 1984
The Board issued an interim decision on July 5th, 1984 in this application for a declaration terminating the bargaining rights of the International Union of Bricklayers and Allied Craftsman, Local #17 ("Local 17"). The Board's reasons for its decision were to follow in writing and that is the purpose of this decision.
The application was scheduled to be heard by the Board at 9:30 a.m. on Tuesday, July 3rd, 1984. At that time, no one appeared to represent Local 17. When the hearing was convened at 10:10 a.m. on July 3rd, there was still no one appearing for Local 17. The Board was advised, at that time by a lawyer from the solicitors for the Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftsmen ("the Conference") that a representative of the Conference was on his way to the hearing. Consequently, the Board advised the applicants and counsel for the respondent that it would stand the application down until 10:45 a.m. When the Board convened the hearing at 10:45 a.m., no one was present to represent Local 17 and no one had appeared from the Conference. The Board commenced the hearing but expressed the caution to the parties that, should the representative of the Conference appear at the hearing, the Board would hear his representations. Should it be determined that the representative was appearing on behalf of Local 17, he would have to take the hearing as it was at that point in time. On the other hand, different consequences would follow should the Conference be a party which was entitled to notice of the application.
Subsequently, a representative of the Conference appeared at the hearing together with counsel just as the Board had completed examining the first witness for the applicants. The Conference is a council of trade unions comprised of the Ontario locals of the International Union of Bricklayers and Allied Craftsmen ("the International"), so Local 17 is a constituent local of the Conference. The International and the Conference together, constitute the employee bargaining agency designated pursuant to clause (a) of section 139(1) of the Labour Relations Act to represent in bargaining all journeymen and apprentice bricklayers, stonemasons and plasterers for whom the International, the Conference and their constituent local unions are the exclusive bargaining agents in the industrial, commercial and institutional ("ICI") sector of the construction industry in the Province of Ontario. As the designated employee bargaining agency, the International and the Conference constitute the "union" party to the provincial agreement applying to journeymen and apprentice bricklayers, stonemasons and plasterers in the ICI sector of the construction industry in the Province of Ontario. This is the only collective agreement permitted by the Act for members of those trades when the International, the Conference or their affiliated locals hold bargaining rights for them in the ICI sector. The International, the Conference and their affiliated locals are affiliated bargaining agents within the meaning of clause (a) of section 137(1) of the Act.
Counsel for the Conference submitted that, because the Conference represented the designated employee bargaining agency and as such was a party to the provincial agreement which sets out the bargaining rights of Local 17, the Conference was a party with a direct legal interest in the proceedings and should have received notice of the application and of the hearing. The Board heard the corresponding submissions from the applicants and counsel for the employer.
Before dealing with the submissions of the parties, it is useful in the Board's view to outline briefly the history of the collective bargaining relationships in operation here. Prior to the appearance of the Conference's representative, the first witness for the applicants had told the Board that he believed Local 17 had been certified to represent employees of the employer approximately two years ago after Local 17 had made an application for certification which had gone unopposed by the employer or any of the employees. Shortly after the Board's certificate issued, the employees and the employer learned that the employer had been bound automatically to a collective agreement applying in the ICI sector of the construction industry. From that time on, according to witness, the employer ceased performing work in the ICI sector. Instead, the employer worked only in the residential sector and that is the sector in which the employees who are affected by this application were working when it was made. Furthermore, witness claims that he and the other applicants are not members of Local 17, have never been approached to become members of Local 17 and had not seen any representative of Local 17 since they became aware that it had been certified by the Board as the exclusive bargaining agent for the employer's bricklayers and stonemasons and their apprentices.
The Board's records show that the application for certification was made by Local 17 on December 2nd, 1981. The application resulted in the Board issuing two certificates pursuant to section 144(2) of the Act to Local 17 with respect to bricklayers and stonemasons and their apprentices employed by the respondent. One certificate was issued to Local 17 on its own behalf and on behalf of all other affiliated bargaining agents of the designated employee bargaining agency (the International and Conference) with respect to the bricklayers and stonemasons and their apprentices employed in the ICI sector in the Province of Ontario. The other certificate was issued to Local 17 with respect to all bricklayers and stonemasons and their apprentices employed by the employer in the Regional Municipality of Durham (except for the Towns of Ajax and Pickering), the geographic Township of Cavan in the County of Peterborough and the geographic Township of Manvers in the County of Victoria, excluding the ICI sector.
With the issuing of the certificate with respect to the ICI sector, the employer became immediately bound by the provincial agreement then in effect between the International and the Conference, as the employee bargaining agency, and The Masonry Industry Employers Council of Ontario, as the employer bargaining agency, by operation of section 145(4) of the Act. No similar statutory result occurs with respect to the other certificate. In order for the parties to be bound to a collective agreement with respect to the bargaining unit set out in the second certificate, the parties must execute a collective agreement or otherwise act to bind themselves to an appropriate existing collective agreement. In this respect see the Board's decision in Fred Jantz Masonry Construction Company Limited, [1981] O.L.R.B. Rep. Sept. 1229. If the parties fail to conclude a collective agreement or bind themselves to a collective agreement, the employees in the bargaining unit described in the certificate can apply to terminate the bargaining rights of the trade union pursuant to section 123(1) of the Act.
Counsel for the Conference contends that the employer became bound to the bricklayers provincial agreement between the parties referred to above which was in effect from May 1, 1980 to April 30, 1982 insofar as it applied to the ICI sector of the construction industry. Council submits, however, that the provincial agreement is not limited to the ICI sector, rather it is an agreement without reference to sector and applies to all sectors of the construction industry. The employer signed minutes of settlement with respect to a grievance referred to the Board under section 124 of the Act by the Conference on its own behalf and on behalf of all of its affiliated bargaining agents on August 4th, 1982 for final and binding arbitration. In those minutes of settlement, the employer agreed that the Board should issue a declaration that the employer was bound by the provincial agreement. The Board's decision which issued October 12th, 1982 declared:
..... that Stuart Riel Masonry Contractor ("Riel") is bound to the provincial collective agreement between the International Union of Bricklayers and Allied Craftsmen and the Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftsmen and the Masonry Industry Employers' Council of Ontario, effective from May 1, 1982 until April 30, 1984 (the Collective Agreement);"
Therefore, according to counsel, the employer is bound by the provincial agreement for all sectors of the construction industry in the Province of Ontario. Since the Conference and the International are the "union" party to the agreement, the Conference was entitled to notice of these proceedings and should be made a party thereto. Furthermore, counsel contends that the notice to Local 17 was mailed to the address of its former business representative who, at the time, was president of Local 17 and not the incumbent business representative. In the result, counsel argues that Local 17 has not had proper notice of the proceedings. Therefore, in the absence of proper notice to Local 17 and the Conference, the Board should adjourn the hearing, serve proper notice on those two parties and commence the proceedings anew.
Counsel for the employer argued that whether the Conference was entitled to notice or not, proper notice was served on Local 17 and, since it is a constituent local of the Conference, that notice is also proper notice to the Conference. In those circumstances, according to counsel, the Board can and should proceed with the hearing into this application. The applicants adopted the same position as counsel for the employer with respect to notice to Local 1 7.Moreover, since the applicants already had appeared twice before the Board on an earlier application for termination of bargaining rights which was dismissed as untimely, the Board should not grant an adjournment in the instant application and should continue to hear and determine it.
After adjourning to consider the submissions of the parties, the Board ruled orally as follows:
(1) The provincial agreement between the International Union of Bricklayers and Allied Craftsmen and the Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftsmen and the Masonry Industry Employers Council of Ontario is an agreement without reference to sectors of the construction industry and therefore it applies to all sectors of the construction industry.
(2) The Board's decision which issued October 12th, 1982 declared the employer to be bound to the provincial agreement effective from May 1,1982 until April 30, 1984, the same agreement which was in effect at the making of this application. The effect of that declaration is to bind the employer to the provincial agreement and, there being no limitations to the binding nature of the provincial agreement expressed in the declaration, the employer is bound to it with respect to all sectors of the construction industry.
(3) The bargaining rights contained in the provincial agreement with respect to the ICI sector extend to all affiliated bargaining agents of the Employee Bargaining Agency. Consequently, if a declaration terminating bargaining rights were to issue with respect to the ICI sector, it would extinguish the bargaining rights in that sector for all of the affiliated bargaining agents. Therefore, since the bargaining rights in the ICI sector of all of the affiliated bargaining agents may be affected by this application, they are entitled to notice of the application and of hearings into the application.
(4) Since the International Union of Bricklayers and Allied Craftsmen and the Ontario Provincial Conference of the International Union of Bricklayers and Craftsmen, as the designated Employee Bargaining Agency, is the agent for all of the affiliated bargaining agents for purposes of bargaining and concluding a provincial agreement, notice to the Employee Bargaining Agency may be deemed notice to all of the affiliated bargaining agents.
(5) In the result, the Board will adjourn these proceedings so that notice of the application and of hearing into the application can be served on the International Union of Bricklayers and Allied Craftsmen and the Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftsmen, as the Employee Bargaining Agency unless the Conference consents to the Board proceeding with the hearing.
Since consent to continue the hearing was not forthcoming, it was adjourned and is to be continued in Peterborough, Ontario on a date to be set by the Registrar in consultation with the parties.
These are the reasons for the Board's interim decision which issued on July 5th, 1984.