[1984] OLRB Rep. May 719
1398-83-R; 1399-83-R; 1503-83-M International Brotherhood of Electrical Workers, Local 1687, Applicant, v. F.D.V. Construction Ltd., Bluebird Construction Company, 556631 Ontario Limited, Carrying On Business As G. P. Construction, Respondents, v. The Electrical Trade Bargaining Agency Of The Electrical Contractors Association Of Ontario, Intervenor
BEFORE: R. A. Furness, Vice-Chairman, and Board Members W. F. Rutherford and W. H. Wightman.
APPEARANCES: Michael Mitchell, Steven Barrett, Lou Popovich and Gary Bouchard for the applicant; Raimo T Heikkila for F D. V Construction Ltd. and Bluebird ~9onstruction Company; L. Girones and G. R. Pope for G. P Construction; and Alex Ahee and Michael Zangari for United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 800.
DECISION OF THE BOARD; May 8, 1984
The applicant is seeking relief with respect to sections 1(4) and 63 of the Labour Relations Act, and has also filed a grievance under the provisions of section 124 of the Act. In a decision of a differently constituted panel of the Board, the Board ruled that while it refused to grant the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 800 (“ Local 800") status in any of these three applications, it provided for notice to be given to Local 800 so that it might on a subsequent occasion attempt to prove its status.
At the continuation of hearing before the present panel, Local 800 adduced evidence with respect to its claim to have status to intervene in these proceedings by reason of the existence of certain bargaining rights. Local 800 relied upon a document entitled “Maintenance Agreement" between itself and F. D. V. Construction Ltd. Under the terms of this collective agreement, F D. V. Construction Ltd. recognized Local 800 as the sole bargaining agent for all employees involved in maintenance, repair and renovation work, excluding those above the rank of general foreman. The Board heard evidence with respect to the execution of this document. The document was apparently executed on November 2, 1982. Although there is some difference in the testimony between William Moffat who signed on behalf of F. D. V. Construction Ltd. and Michael Zangari, the business agent of Local 800, who gave evidence surrounding the execution of the document, the document appears to have been signed initially on behalf of Local 800. It was the position of Local 800 that J. R. St. Fbi, the Canadian Director of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, initially executed a document which was then presented to F D. V. Construction Ltd. to sign.
F. D. V. Construction Ltd. is engaged in maintenance repair and renovation work in the Timmins area of Ontario. It has been faced with competition from employers who use non-union labour. Local 800 and F. D. V. Construction Ltd. in order to provide competitive rates to compete with non-union labour, signed the maintenance agreement with respect to all employees involved in maintenance repair and renovation work. Prior to the signing of the maintenance agreement, Mr. Zangari and Mr. Moffat, the general president of F. D. V. Construction Ltd., had had meetings with representatives of the millwrights, ironworkers and carpenters to see if an acceptable agreement could be reached. It appears that the ironworkers and electricians were unwilling to be a part of this agreement. Moreover, initially the Carpenters' union refused to be a part of this agreement, but subsequently entered into a separate collective agreement which provided for even more favourable rates to F D. V. Construction Ltd., than the rates provided under the maintenance agreement under consideration.
At the time the maintenance agreement was signed, Local 800 did not have any members working for F. D. V. Construction Ltd. Subsequently, it provided plumbers, labourers and other persons for maintenance work performed by F. D. V. Construction Ltd. for Kidd Creek Mines in the Timmins area. The maintenance agreement has no fewer than twenty-eight modifications to it which have been initialled by the signatory for F. D. V. Construction Ltd., but apparently have not been initialled by Mr. St. Eloi. Initially, office and clerical staff were covered by the agreement. Subsequently, their coverage from the agreement was deleted by striking out "office and clerical staff" and having it initialled by the signatory for F. D. V. Construction Ltd. It was the evidence before the Board that while the carpenters were initially covered by this maintenance agreement, they were subsequently no longer covered by the maintenance agreement after they entered into their own collective agreement.
At the time the maintenance agreement was entered into, there were no employees at work. Moreover, the maintenance agreement purports to cover all employees for maintenance work. Local 800, from the evidence, was not able and did not supply electricians since 1978. The question arises whether under these circumstances Local 800 has received support from F. D. V. Construction Ltd. so as to cause the maintenance agreement not to be a collective agreement by virtue of the provisions of section 48(a) of the Labour Relations Act. That section provides that an agreement between an employer and a trade union shall be the Labour Relations Act if the employer participated in the formation or administration of the trade union or if the employer contributed financial or other support to the trade union. In earlier decisions of the Board in Sunrise Paving, 72 CLLC ¶16,060, and in C. Strauss (1979) Limited, [1975] OLRB Rep. July 581, the Board took the position that the collective agreement which was signed when there were no employees at work was not a collective agreement by virtue of the provisions of section 48(a) of the Act because an employer is in these circumstances had contributed other support to the union. Subsequently, in Nicholls Radtke & Associates Limited, [1982] OLRB Rep. July 1028, the Board made an exception to this position where a trade union had entered into an agreement and had shortly thereafter supplied employees pursuant to that collective agreement who were members of that trade union. This decision was followed in M. J. Guthrie Construction Limited, [1984] OLRB Rep. Jan. 50. The issue arises whether in the circumstances of the signing of the maintenance agreement the Board ought to follow the Sunrise Paving and Strauss line of decisions or whether it ought to follow the Nicholls-Radtke and M. J. Guthrie line of decisions. At the hearing the Board ruled orally that the maintenance agreement is not a collective agreement because of employer support within the meaning of section 48(a) of the Act and that the facts were closer to the Sunrise Paving decision than to Nicholls-Radtke. In doing so, the Board declared that Local 800 did not have status to participate in the section 1(4) and section 63 proceedings based upon such an alleged collective agreement. At the hearing, Board Member Wightman reserved his decision with respect to this ruling. The Board now sets forth its reasons for finding that the maintenance agreement between Local 800 and F. D. V. Construction Ltd. is not a collective agreement under the Labour Relations Act.
The facts in the instance case are closer to the Sunrise Paving decision because there was no evidence before the Board in the instant case that Local 800 in fact supplied or was unable to supply electricians or trades other than plumbers pursuant to this maintenance agreement who were members of Local 800.
In the Nicholls-Radtke decision, the Board found that the trade union involved provided its members to work for the employer who was bound by the collective agreement shortly after entering into the collective agreement. In the instant case, Local 800 has not satisfied the Board that it supplied all persons pursuant to the maintenance agreement who were in fact members of Local 800. As stated earlier, with respect to electricians, there was nothing in the evidence to indicate that there were any electricians who were ever members of Local 800, either at the time of the signing of the maintenance agreement or who were subsequently provided pursuant to the maintenance agreement. In these circumstances, it is ED.V. Construction Ltd. who has selected Local 800 as the bargaining agent for its future employees, including future electricians and other trades who are not members of the applicant. In these circumstances, F.D.V. Construction Ltd. has given support to Local 800 within the meaning of section 48(a).
Upon hearing the decision with respect to denying its status due to the Board's finding that the maintenance agreement was not a collective agreement under the Labour Relations Act, Local 800 requested the Board to stand down while it challenged the Board's decision in the courts. In this request Local 800 was supported by the respondents. The applicant urged the Board to continue with the hearing and argued that for the Board to adjourn these proceedings would cause it prejudice and irreparable damage.
The Board heard argument with respect to the prejudice which would be suffered by the various parties to this proceeding and Local 800. The Board after hearing the representations of the parties declined to adjourn the proceedings and stated that it would give reasons in writing. It is the argument of Local 800 that the Board's decision struck at its plans for Ontario in that it was seeking to represent all maintenance workers in Ontario in a manner similar to the way it represented all maintenance workers in Alberta. It was the position of the applicant that the potential damages it was suffering are escalating and that on the balance of convenience rule, it was entitled to have these damages quantified and to have an interpretation of the terms of its collective agreement in terms of its relationship with the respondents. It was also the position of the applicant that witnesses upon which it relied would not be available in distant future proceedings. The respondents also argued in support of the position of Local 800 that they would be prejudiced in having a ruling by the Board which might be reversed in the event that the court ruled against the Board's decision not to adjourn the hearing.
It is not uncommon for parties to seek status to participate in proceedings before the Board and the Board regularly has to rule upon such recognition for status. In effect, the Board is being asked to set a precedent that whenever a party is denied status it should immediately discontinue the hearing, adjourn and wait until a court determines the issue of status upon argument before it. The Board is not satisfied that there would be intolerable inconvenience to Local 800 in not adjourning the proceeding. On the other hand, the applicant is suffering prejudice and the potential for the loss of the evidence of witnesses who are now to give evidence before the Board with respect to its claims against the respondents. With respect to the respondents, the Board is not satisfied that they would suffer prejudice and irreparable harm. It must be remembered that the claim for damages against the respondents is escalating and it is in the best interests, in our opinion, for the respondents to know the extent of their liability and the interpretation of the collective agreements.
The Board has on many occasions declined to adjourn the proceedings when asked to adjourn the proceedings by a party that wishes to challenge a decision of the Board. See, for example, Chrysler Canada Ltd., [1975] OLRB Rep. Sept. 699, Windsor Airline Limousine Services Limited, [1980] OLRB Rep. Feb. 272, and Four B Manufacturing Ltd., [1978] OLRB Rep. Sept. 829.
In Cedarvale Tree Services Ltd. v. Labourers' International Union of North America, Local 183, (1971), 71 CLLC ¶14,087, the Ontario Court of Appeal said at page 383:
It is also clear law that such a tribunal is not required to bring its proceedings to a halt merely because it has been served with a notice of motion for an order of certiorari or prohibition. It is entitled, if it thinks fit, to carry its pending proceedings forward until such time as an order of the court has actually been made prohibiting its further activity or quashing some other order already made by which it assumed jurisdiction.
In the instant case the Board has not been served. Similarly, in Re Flamboro Downs Holdings Ltd. and Teamsters Local 879, (1979) 24 O.R. (2d) 400, at page 404, the Divisional Court stated:
Clearly, an administrative tribunal such as the Labour Relations Board is entitled to determine its own practices and procedures. Whether in a given case an adjournment should or should not be granted is a matter to be determined by the Board charged as it is with the responsibility of administering a comprehensive statute regulating labour relations. In the administration of that statute, the Board is required to make many determinations of both fact and of law and to exercise its discretion in a variety of situations. In the case of requests for adjournment, it is manifestly in the best position to decide whether, having regard to the nature of the substantive application before it, the adjournment should be granted or whether the interests of the employer, the employees or the union who, as the case may be, oppose the adjournment should prevail over the parties seeking it. As a matter of jurisdiction, it is for the Board to decide whether it should adjourn proceedings before it and in what circumstances.
The Board is satisfied on the balance of convenience that the applicant's position is more susceptible to prejudice caused by delaying the proceedings than the position of the respondents or Local 800.
- Having regard to the balance of convenience which, in our view, is clearly in favour of continuing with these proceedings before the Board, the Registrar is directed to list the case for continuation of hearing.