Canadian Union of Public Employees v. Ontario Hydro, 1985 CanLII 941

[1985] OLRB Rep. April 582

1893-84-U Canadian Union of Public Employees — C.L.C., Ontario Hydro Employees Union, Local 1000, Complainant, v. Ontario Hydro, Electrical Power Systems Construction Association, International Brotherhood of Electrical Workers, Labourers International Union of North America, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, International Association of Bridge, Structural and Ornamental Ironworkers, International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, International Association of Heat and Frost Insulators and Asbestos Workers, United Brotherhood of Carpenters and Joiners of America, Operative Plasterers and Cement Masons International Association, International Union of Operating Engineers, International Brotherhood of Painters and Allied Trades, Sheet Metal Workers International Association, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers and International Brotherhood of Bricklayers and Allied Craftsmen, Respondents

BEFORE: R. A. Furness, Vice-Chairman, and Board Members R. McMurdo and W F. Rutherford.

APPEARANCES: S. T. Goudge and G. Holland for the complainant; Harvey Beresford, Barry Brown, W. 5. O'Neill, Vello Medrie and Brian Story for Ontario Hydro and the Electrical Power Systems Construction Association; A. M. Minsky, Q.C. and William Warchow for the respondent trade unions.

DECISION OF R. A. FURNESS, VICE-CHAIRMAN, AND BOARD MEMBER R. McMURDO; April 25, 1985

1. On February 25, 1985, Ontario Hydro and the Electrical Power Systems Construction Association made a motion before the Board to dismiss the complaints against them. At the conclusion of argument a majority of the Board allowed the motion and stated that the complaint was dismissed in its entirety. The reasons for the oral decision of a majority of the Board on February 25, 1985, are now set forth.

2. In its decision dated February 25, 1985, a majority of the Board stated:

For reasons to be given in writing, the motion made on behalf of Ontario Hydra and the Electrical Power Systems Construction Association is allowed. This complaint is dismissed in its entirety.

In a decision dated February 21, 1985, the Board gave reasons for allowing a similar motion by the respondent trade unions. In that decision the Board, in allowing the motion, dismissed the complaints of the complainant against the respondent trade unions under sections 48, 49, 60, 66, 67 and 70 of the Labour Relations Act. The motion by the respondent trade unions was supported by Ontario Hydro and the Electrical Power Systems Construction Association

(EPSCA).

3. The complainant has complained that Ontario Hydro dealt with employees in the complainant's bargaining unit who had been declared surplus by Ontario Hydro contrary to the provisions of sections 48, 49, 50, 64, 66, 67 and 70 of the Labour Relations Act and has requested certain relief. The complaint arises in connection with the work of retubing nuclear reactor units at the Pickering Generating Station (the station) and other work respecting the nuclear plant at that station. It is the position of the complainant that on or about October 2, 1984, Ontario Hydro informed the chief stewards of the complainant that effective October 4, 1984, the work referred to earlier would be performed at the station under the terms and conditions of Maintenance Assist Agreements between EPSCA of which Ontario Hydro is the dominant member and several construction trade unions.

4. Section 48 states:

5. An agreement between an employer or an employers' organization and a trade union shall be deemed not to be a collective agreement for the purposes of this Act,

(a) if an employer or an employers' organization participated in the formation or administration of the trade union or if an employer or an employers' organization contributed financial or other support to the trade union; or

(b) if it discriminates against any person because of his race, creed, colour, nationality, ancestry, age, sex or place of origin.

The complainant seeks to set aside the Maintenance Assist Agreement or Agreements entered into by the respondent trade unions. It is the position of the complainant that at the time the Maintenance Assist Agreement was entered into, the respondent trade unions were not entitled to represent any employees in the bargaining unit(s) contained therein and entered into the collective agreement with the support of Ontario Hydro. The complainant is apparently referring to section 48(a) rather than section 48(b). Section 48 deems certain agreements not to be collective agreements for the purposes of the Act. Counsel for the complainant was unable to refer the Board to any examples where the Board had entertained a complaint under section 89 with respect to section 48. Typically, issues with respect to section 48 arise in representation proceedings where one trade union is seeking to displace another trade union as the bargaining agent of a given group of employees. In a proceeding which involves the provisions of section 48, the trade union which challenges the collective agreement has established its interest in representing the employees who are covered by the impugned collective agreement. In the instant complaint, the complainant is in essence not seeking to represent the workers who are claimed to be represented by the respondent trade unions. Rather, the complainant is seeking to secure the work performed by these workers for its own members who are covered by its collective agreement with Ontario Hydro. The complainant is a stranger to the representational issue involved in the Maintenance Assist Agreement or Agreements and may not use the complaint procedure under section 89 to convert a jurisdictional issue into a representational issue. The complaint against Ontario Hydro and EPSCA in so far as it relates to section 48 is dismissed.

5. With respect to section 49, the thrust of the allegations of the complainant is that the collective agreement or collective agreements between Ontario Hydro and EPSCA on the one hand and the respondent trade unions has or have duplicated the collective agreement between the complainant and Ontario Hydro. Section 49 states:

There shall be only one collective agreement at a time between a trade union or council of trade unions and an employer or an employers' organization with respect to the employees in the bargaining unit defined in the collective agreement.

A plain reading of section 49 supports the motion before the Board. The section uses the words a trade union or council of trade unions and an employer or an employers' organization with respect to the employees in the bargaining unit defined in the collective agreement. The Labour Relations Act is grounded on the principle of exclusive bargaining rights rather than the concept of proportional bargaining rights. The use of the indefinite article in section 49 is in conformity with the principle of exclusive bargaining rights and, in our view, refers to the collective bargaining relationship between one trade union or one council of trade unions and one employer or one employers' organization. If the Legislature had intended section 49 to apply to more than one trade union or council of trade unions, it would have used, in our opinion, any rather than the indefinite article and referred to any trade union or any council of trade unions. The purpose of section 49 is to declare that there may be only one collective agreement at a time with respect to the employees in the bargaining unit defined in the collective agreement. Section 49 addresses and clarifies the relationship between a collective agreement and other agreements between a trade union and an employer which may fall within the definition of a collective agreement in section l(l)(e) as respecting terms or conditions of employment or rights, privileges or duties of a trade union or an employer. Such other agreements may be for different periods of operation and may refer to such matters as health, welfare and pensions. Section 49 also addresses the situation where there is a master agreement between a trade union and an employer and also local agreements with respect to various locations of the employer. In these instances, section 49 makes it clear that there may be only one collective agreement. Other documents may constitute a part of one collective agreement or may be separate, apart and in no sense a collective agreement. The complaint against Ontario Hydro and EPSCA in so far as it relates to section 49 is dismissed because section 49 has no application to the alleged facts before the Board.

6. Section 50 states:

7. A collective agreement is, subject to and for the purposes of this Act, binding upon the employer and upon the trade union that is a party to the agreement whether or not the trade union is certified and upon the employees in the bargaining unit defined in the agreement.

Section 50 is a declaratory provision in the Labour Relations Act. There are at least two and possibly more alleged collective agreements and there are no allegations in the particulars that Ontario Hydro and/or EPSCA have asserted that any collective agreement does not have the binding effect referred to in section 50. The gravamen of the complaint, in our view, relates not to representational rights but rather to a dispute over the assignments of certain work by Ontario Hydro. There is no exact equation between bargaining rights and work jurisdiction. See Metropolitan Toronto Apartment Builders Association, [1978] OLRB Rep. Nov. 1022 and Toronto Star Newspapers Limited, [1979] OLRB Rep. May 451. Even assuming, without deciding, that section 50 gives rise to substantive rights, there is nothing in the particulars supplied by the complainant which alleges a violation of representational rights by Ontario Hydro or EPSCA. The complaint in so far as it relates to section 50 is dismissed.

7. Sections 64 and 66 of the Act state:

8. No employer or employers' organization and no person acting on behalf of an employer or an employers' organization shall participate in or interfere with the formation, selection or administration of a trade union or the representation of employees by a trade union or contribute financial or other support to a trade union, but nothing in this section shall be deemed to deprive an employer of his freedom to express his views so long as he does not use coercion, intimidation, threats, promises or undue influence.

9. No employer, employers' organization or person acting on behalf of an employer or an employers' organization,

(a) shall refuse to employ or to continue to employ a person, or discriminate against a person in regard to employment or any term or condition of employment because the person was or is a member of a trade union or was or is exercising any other rights under this Act;

(b) shall impose any condition in a contract of employment or propose the imposition of any condition in a contract of employment that seeks to restrain an employee or a person seeking employment from becoming a member of a trade union or exercising any other rights under this Act; or

(c) shall seek by threat of dismissal, or by any other kind of threat, or by the imposition of a pecuniary or other penalty, or by any other means to compel an employee to become or refrain from becoming or to continue to be or to cease to be a member or officer or representative of a trade union or to cease to exercise any other rights under this Act.

Section 64 refers to a prohibition against participating in or interfering with the formation, selection or administration of a trade union or the representation of employees by a trade union or the contribution of financial or other support to a trade union. The allegations of the complainant as presented at the hearings before the Board do not constitute participating in or interfering with the complainant with respect to its formation, selection or administration or the representation of employees by Ontario Hydro and EPSCA. Similarly, these allegations as presented to the Board do not allege the contribution of financial or other support to a trade union by Ontario Hydro or EPSCA. The allegations are bereft of any substance with respect to a refusal to employ, or the imposition of any term in a contract or condition of employment or threats of any kind against any person or employee as set forth in section 66. It was argued that the respondent trade unions do not claim to represent employees who are covered by the collective agreement between the complainant and Ontario Hydro and that the complainant has never represented in collective bargaining the employees who are covered by the Maintenance Assist Agreement. The issues between the complainant and the respondents arise not as a result of any violation of sections 64 and 66. The issues among the parties arise as a result of conflicting claims to the assignment of work as a result of more than one regime of collective bargaining and not from violations of sections 64 and 66. The complaint with respect to sections 64 and 66 is dismissed.

8. Section 67 states:

67.-(1) No employer, employers' organization or person acting on behalf of an employer or an employers' organization shall, so long as a trade union continues to be entitled to represent the employees in a bargaining unit, bargain with or enter into a collective agreement with any person or another trade union or a council of trade unions on behalf of or purporting, designed or intended to be binding upon the employees in the bargaining unit or any of them.

(2) No trade union, council of trade unions or person acting on behalf of a trade union or council of trade unions shall, so long as another trade union continues to be entitled to represent the employees in a bargaining unit, bargain with or enter into a collective agreement with an employer or an employers' organization on behalf of or purporting, designed or intended to be binding upon the employees in the bargaining unit or any of them.

Section 67(2) refers to No trade union, council of trade unions or person acting on behalf of a trade union or council of trade unions. Section 67(1) does state an offence which an employer, employers' organization or a person acting on behalf of an employer or employers' organization may commit. The Board has considered the complaint, the exhibits filed in evidence by the parties and the opening statement by counsel for the complainant. It appears to the Board that the agreements which are referred to as collective agreements and to which Ontario Hydro and EPSCA are neither intended to be binding on members of the complainant nor are Ontario Hydro and EPSCA attempting to enter into collective agreements with respect to employees in the bargaining unit represented by the complainant. In our opinion, the complainant and Ontario Hydro and EPSCA are confronting each other over a perceived overlap in work jurisdiction and not with respect to bargaining rights. The Board has previously considered complaints under what is now section 89 of the Act with respect to section 67 (formerly section 59). In Metropolitan Toronto Apartment Builders Association, [1978] OLRB Rep. Nov. 1022, the Board stated at page 1034:

Nor can it be said that the subcontracting clause interferes with another union's bargaining rights contrary to sections 56 [now section 64] and 59 [now section 671 of the Act. In the Board's view, there is no exact equation between bargaining rights and work jurisdiction, as the complainant attempted to make out. While the Board recognizes that, without a supporting work jurisdiction, bargaining rights in the construction industry may wither, the two concepts are not congruent. Under the Labour Relations Act, bargaining rights acquired either through the certification process or by voluntary recognition only entitle a union to be recognized as the exclusive bargaining agent for a particular group of employees. The bargaining rights conferred by law do not give a union any particular work jurisdiction, and any claim to a work jurisdiction must be asserted and established in the bargaining process through such means as a sub-contracting provision. Sections 56 [now section 64] and 59 [now section 67] of the Act are intended to protect bargaining rights only and these sections cannot be interpreted as providing protection to a work jurisdiction. Conflicting claims to particular work receive much different legislative treatment, being subject to the procedure established in section 81 [now section 91] of the Act for the resolution of jurisdictional disputes.

The Board dismissed the complaints with respect to the sections referred to in the quotation and several other sections of the Act.

9. In Toronto Star Newspaper Limited, [1979] OLRB Rep. May 451, the Board also considered whether work jurisdiction and bargaining rights are synonymous and the relative place of jurisdictional disputes and stated at page 456:

While the Board recognizes that bargaining units are often defined in terms of certain job classifications or work categories, these descriptions do not mean that the bargaining agent has an absolute right to the work being performed by the group of employees falling within such

job classifications. The reference to work categories in the bargaining unit descriptions, although serving to identify the employees falling within the bargaining unit, does not by itself create an unqualified entitlement to that work. The fact is that some other bargaining agent may also have bargaining rights for other employees of that same employer that are defined in terms of different work categories, and some of the work performed by the employees falling within these work categories may overlap to some degree that of the other group of employees. Job categories are not watertight and, in fact, there may be considerable leakage between categories. giving rise to competing claims for work from bargaining agents. This sort of problem, as a general rule, is not treated as one involving representation rights of the competing bargaining agents but as a dispute over work jurisdiction. The Act contemplates that such competing claims to work are to be resolved through the jurisdictional dispute procedures set out in section 81 [now section 91].

and again at page 457:

The Board is convinced that this complaint is nothing more than a latent jurisdictional dispute. It is clear to us that the complainant, by framing its argument in terms of a derogation of bargaining rights, is attempting to assert an absolute claim to the work in question. If the Board were to grant the remedy requested by the complainant, it would have the effect of preventing the respondent union from making any claim to the work in question. Even if Local 35-P has the better claim to the work in question, and we make no finding in this regard, such a claim should be asserted through the jurisdictional dispute provisions under section 81 of the Act, and not by means of an unfair labour practice complaint.

The Board dismissed the complaint under section 79 [now section 89] with respect to offences alleged under, inter alia, sections 56 [now section 64] and 59 [now section 67]. There is nothing in the material before the Board which alleges a violation of section 67 and the complaint is dismissed against Ontario Hydro and EPSCA in so far as it relates to section 67.

10. Section 70 states:

No person, trade union or employers' organization shall seek by intimidation or coercion to compel any person to become or refrain from becoming or to continue to be or to cease to be a member of a trade union or of an employers' organization or to refrain from exercising any other rights under this Act or from performing any obligations under this Act.

The complainant was requested to provide particulars with respect to the alleged violation of section 70. None were provided either prior to or during the hearing on February 25, 1985. The Board is of the opinion that Ontario Hydro and EPSCA are hampered in the preparation of their case by allegations which are indefinite and incomplete. In these circumstances, the Board strikes the allegations with respect to section 70 from the complaint pursuant to section 72(3) of the Board's Rules of Procedure. However, the allegations with respect to section 70 are also dismissed on an additional ground. Section 70 refers to the acts of intimidation and coercion in order to compel persons to refrain from exercising rights under the Act. The Board has previously held that in order for intimidation or coercion to be established in section 70 there must be a threat or other intimidating or coercive action coupled with an express or implied demand that a person refrain from exercising a right under the Act or from performing an obligation under the Act. See Keith MacLeod Sutherland, [1983] OLRB Rep. July 1219. The allegations before the Board do not even remotely suggest such conduct.

11. Having regard to the foregoing reasons and to the decision of the Board in this matter dated February 21, 1985, the complaints against Ontario Hydro and EPSCA are dismissed and the complaints against all the respondents are dismissed in their entirety.

DECISION OF BOARD MEMBER W. F. RUTHERFORD;

I. I dissent. Ontario Hydro and the Electrical Power Systems Construction Association signed a Maintenance Assist Agreement in 1983.

2. The Maintenance Assist Agreement of 1983 had a clause under Scope of Work, Article 2 at 2.1:

The scope of this agreement covers work of a maintenance repair and renovations nature that the owner elects to contract and as a condition of contract the owner elects to stipulate the use of this agreement.

3. Ontario Hydro implemented that Maintenance Assist Agreement on October 4, 1984.

4. The complainant then grieved that Ontario Hydro, by implementing the Maintenance Assist Agreement, was placing a new agreement over their already existing agreement that covered the work in question.

5. I would have allowed the complainant to have proceeded before the Board to prove their case that Ontario Hydro had proceeded illegally by implementing the Maintenance Assist Agreement.

6. The complainant should have had the right to prove that Ontario Hydro had placed an agreement, over an already existing agreement, that covered the maintenance work in question.