Ontario Labour Relations Board
[1984] OLRB Rep. February 393
1813-83-R; 2001-83-M International Brotherhood of Electrical Workers, Local 303, Applicant, v. Twin Electric and Ermac Power & Control Ltd., Respondents
BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members W H. Wightman and F. S. Cooke.
APPEARANCES: B. Fishbein, A. Glen and R. Tersigni for the applicant; no one for the respondent Twin Electric; R. A. Werry, J. Tascona and F Krause for the respondent Ermac Power & Control Ltd.
DECISION OF THE BOARD; February 23, 1984
This is an application under sections 1(4) and 63 of the Labour Relations Act, together with the referral of a grievance to the Board under section 124 of the Act. The trade union seeks a declaration and relief against Ermac Power & Control Ltd., whom it claims to be a successor or related employer to a company called Twin Electric.
Twin Electric was formed to carry on an electrical-contracting business in 1973. It has been operated by John Krause, who, with his wife, was co-owner of the business. Mr. Krause himself has always been a member of the applicant trade union. He has throughout the history of Twin Electric abided by all of the terms and conditions of the applicant's collective agreement, and has acted as if Twin were a member of the Niagara Peninsula Electrical Contractors Association, an employers' organization which carried on the local area bargaining with the applicant in the days before province-wide bargaining. It was only subsequent to the filing of this application for Ermac, and for whom Mr. Krause has now gone to work, that Mr. Krause first raised with either the applicant or the employers' organization the possibility that he was not bound by their successive collective agreements, nor even a member of the Niagara Peninsula Electrical Contractors Association.
The facts are not in dispute. As stated, Twin Electric has always abided by the full terms of the collective agreements negotiated with the applicant by the Association. The only dues payable to the Association are through the trustee established by virtue of the Employers' Fund under the collective agreement, and Twin has always paid them. The Association included Twin Electric on its list to the union of employers for whom it bargained, and the union included Twin on its list of approved union subcontractors for the area. When Mr. Krause needed employees, he obtained them through the union hiring hall, and he always employed apprentices approved under the provisions of the applicant's collective agreement. Mr. Krause regularly attended the meetings convened by the Association to discuss the status of negotiations with its members, and in fact took part in the voting to ratify successive settlements. Mr. Krause acknowledges that portion of the Minutes of the May 8, 1980 ratification meeting which reads:
"J. Krause commented that while the contract is reasonable, it is going to result in more work lost to non-union contractors and in-plant forces."
(emphasis added)
Mr. Krause regularly attends the annual general meeting of the Association as well and concedes, as the Minutes disclose, that he has participated in those meetings to the extent of moving or seconding motions, including a motion to establish a separate schedule of dues for "nonunion contractors" wishing to become members. When the Association became incorporated in 1979 for the first time, it asked its "members" to execute a new form of "Membership Application" in the name of the incorporated Association, and Twin's application was routinely returned with the corporate seal on it. Mr. Krause testified that he has no knowledge of who in his office executed the application form in that manner.
Counsel for Twin now argues that Twin never did join the Association prior to the advent of province-wide bargaining, and that in fact it could not have, because membership had been restricted under the constitution to contractors for whom the trade-union party already had bargaining rights. Counsel argues that such bargaining rights never had been obtained, through either the certification or voluntary-recognition route.
The Board agrees that the province-wide bargaining provisions of the Act, like the accreditation provisions before them, do not confer bargaining rights with respect to an employer in the first instance. The initial source of bargaining rights must be a certification or voluntary recognition. The Niagara Peninsula Electrical Contractors Association has, however, purported to enter into successive collective agreements on behalf of Twin Electric, inter alia, and those collective agreements specifically provided:
5.00 The Association, on behalf of its member companies agrees to recognize the Union as the Collective Bargaining Agent for all employees of the Association who perform electrical work coming within the scope of this agreement, while working within the boundaries of the jurisdictional area of the Local Union.
Not only did Twin Electric specifically authorize the Association, by its conduct, to enter into those collective agreements on its behalf, but it at all times behaved as if it were a "member" of the Association as well. The only thing which Twin could have done to demonstrate its membership that it did not do would have been to make formal application to be admitted some time prior to 1979. But it appears from the Association's records that that kind of formality was not engaged in by any member companies in the earlier years of the Association. We note that eligibility under the Association's constitution is extended to contractors who have "expressed a willingness to enter into negotiations for [a collective agreement]", but even if that is not technically sufficient to extend membership to Twin Electric in the first instance, we find that Twin has participated in the benefits of full membership for too long to now deny that status. There is, in the circumstances, no reason to find that the full effect of section 51(1) of the Act, which provides:
A collective agreement between an employers' organization and a trade union or council of trade unions is, subject to and for the purposes of this Act, binding upon the employers' organization and each person who was a member of the employers' organization at the time the agreement was entered into and on whose behalf the employers' organization bargained with the trade union or council of trade unions as if it was made between each of such persons and the trade union or council of trade unions and upon the employees in the bargaining unit defined in the agreement, and, if any such person ceases to be a member of the employers' organization during the term of operation of the agreement, he shall, for the remainder of the term of operation of the agreement, be deemed to be a party to a like agreement with the trade union or council of trade unions
does not apply to Twin. This case is a far cry from one like Bechtel Canada (unreported), Board File No. 0745-75-R, released September 3, 1975, in which the company appears to have had nothing whatever to do with the employers' association other than to apply the terms of the collective agreement which it negotiated for the area.
We accordingly find that the first collective agreement entered into on Twin's behalf at the same time conferred voluntary recognition on the applicant, and that bargaining rights were continued under each successive collective agreement to the present.
In light of this finding, it will, of course, not be necessary to call upon counsel for the applicant for further argument, and the Registrar is directed to list this matter for continuation of hearing on the successor ship and/or "related" employer issues.