[1986] OLRB Rep. February 209
0243-84-U Canadian Pneumatic Control Contractors Association, Complainant, v. The Ontario Pipe Trades Council of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, and United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada and Mechanical Contractors Association of Ontario, Respondents
BEFORE: R. A. Furness, Vice-Chairman, and Board Members H. Kobryn and J. Wilson.
APPEARANCES: Brian P. Smeenk, Clifford A. Hepburn, Al P. De Wachter and Win. J. Scrafton for the complainant; Alex Ahee and G. Meservier for the United Association of Journeymen and Apprentices of the Plumbing and Pipefititing Industry of the United States and Canada; G. Grossman and H. .1. Buchmueller for the Mechanical Contractors Association of Ontario; no one appearing for the Ontario Pipe Trades Council.
DECISION OF THE BOARD; February 19, 1986
The complainant has complained that it has been dealt with by the respondents contrary to the provisions of sections 15, 146 and 151 of the Labour Relations Act. In a decision dated October 12, 1984, the Board made the following direction:
Having regard to the foregoing and pursuant to the remedial provisions of section 89(4) of the Labour Relations Act, the Board determines and directs that:
I The United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada and the Ontario Pipe Trades Council of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada as the Employee Bargaining Agency by refusing to continue to bargain respecting the proposals of the Mechanical Contractors Association of Ontario as the Employer Bargaining Agency for an appendix to the current provincial collective agreement (covering journeymen and apprentice plumbers and pipefitters) respecting employers (and their employees) which perform pneumatic control installation work in the industrial, commercial and institutional sector of the construction industry have contravened section 15 of the Labour Relations Act;
II The United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada and the Ontario Pipe Trades Council of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada as the Employee Bargaining Agency shall forthwith cease and desist from their contravention of section 15 of the Labour Relations Act;
III The United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada and the Ontario Pipe Trades Council of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada as the Employee Bargaining Agency by insisting upon negotiating a separate pneumatic control collective agreement on a national basis have attempted to bargain for employees represented by affiliated bargaining agents for other than a provincial collective agreement have contravened section 146(2) of the Labour Relations Act;
IV The United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada and the Ontario Pipe Trades Council of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada as the Employee Bargaining Agency shall forthwith cease and desist from their contravention of section 146(2) of the Labour Relations Act.
V The United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada and the Ontario Pipe Trades Council of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada as the Employee Bargaining Agency shall forthwith return to the bargaining table and bargain in good faith with the Mechanical Contractors Association of Ontario as the Employer Bargaining Agency over the inclusion of the proposals contained in the letters dated February 1 and 29. 1984 (referred to in paragraphs 10 and 11 in this decision), in an appendix as an amendment to their current collective agreement.
- On October 24, 1984, the Board received the following letter:
Your October 16, 1984 letter attached to the Board Decision has been received.
Please be advised that the writer on behalf of the United Association cannot accept any decision which causes a violation of the Constitution of the United Association namely Sections 203 and 229 of the U.A. Constitution (copies enclosed herewith). The United Association is prepared to negotiate all the provisions mentioned in the Board's report except the two provisions mentioned above. As the senior U.A. Officer in Canada I shall not place myself in a position of losing my job even if it causes incarceration of the writer.
The case at hand is a ploy to force our organization to violate Sections 203 and 229 of our Constitution which we shall not do.
Our Local Union cannot violate Sections 203 and 229 and the only exceptions to the above rule was established by convention action which allows our General President to waive Sections 203 and portions of 229 while negotiating a National Control Agreement. Should the writer or our Local Unions ever ignore the provisions of Sections 203 and 229 with any local or provincial organization of employers it would only brush off on other sectors of our industry. we shall not allow our plumbers, pipefitters and welders to use their personal cars to transport the employer's tools and materials.
It should be clearly understood that the I.C.I. Sector of work covered by the National Pneumatic
Control Agreement covers less than 20% of the work performed by the Pneumatic Control Companies. More than 80% of the work performed by our Pneumatic Control Mechanics involves mainly service work and a much smaller degree of Residential and Power Sector work.
Even though the I.C.I. Control work is adequately covered in the I.C.I. Sector Agreement without change, we are prepared to negotiate any change or addition to the IC .1. Sector Agreement except the two provisions covered by our Constitution in Sections 203 and 229.
Should the Mechanical Contractors Association not agree to meet on that basis there shall be no meeting.
Yours very truly,
"J. R. St.Eloi"
J.R. St. Eloi,
Director of Canadian Affairs, U.A.
This complaint was listed for hearing for the purpose of hearing the evidence and representations of the parties on (a) the date of the adoption of and inclusion in the constitution of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada (the "International") of sections 203 and 229, (b) the terms and date of the waiver by the convention and/or the General President relating to sections 203 and 229 of the constitution of the International, (c) the inclusion, if any, in any past or current National Control collective agreement of the proposal referred to in paragraph 20V of the decision of the Board in this matter dated October 12, 1984.
Section 203 and the relevant part of section 229 state:
SEC. 203. The use of vehicles of any description (unless furnished by the employer) will be discontinued by the members of the United Association during working hours, and the Locals of the United Association shall be and are hereby empowered to legislate locally against further use of the same.
SEC. 229(b) There shall be a card known as a travel card issued by the Financial Secretary (or officer designated by him) of the Local Union only to Building Trades journeymen members fulfilling the conditions prescribed by subsection (c) of this section, who desire to travel from one Local Union to another in search of employment. Travel cards shall be furnished to the Local Unions by the General Office and shall be in such form as the General Secretary-Treasurer, with approval of the General Executive Board, shall prescribe. Any Building Trades journeyman member shall obtain a travel card from the Local Union in which he holds membership from the Local Union in which his travel card is deposited before traveling to another Local Union. On leaving the jurisdiction of a Local Union a member may, in accordance with subsection (j), request a Local Union other than his home Local Union to mail a travel card to him at the address indicated by him and the Local Union shall comply with such request promptly.
Upon issuance by his home Local Union, each travel card form shall be signed by the member who receives it in the presence of the officer issuing the same unless a waiver of this requirement is granted by the General Executive Board.
The General Officers, with the approval of the General Executive Board, are authorized to modify the form of travel card in use and waive any of the procedural requirements of this section which become unnecessary as a result of such modification.
At the hearing the parties in attendance were represented by counsel. None of the parties called evidence on the matters set forth in the decision of the Board dated November 20. 1984. However, the parties through their counsel did offer certain facts which were not challenged. The International informed the Board that section 203 was introduced into the constitution in 1896 when the prohibition initially referred to bicycles. By 1957, the prohibition had been changed from bicycles to vehicles. The clauses which the Mechanical Contractors Association of Ontario (the "MCAO") has proposed as an appendix to the provincial collective agreement have been in effect as part of the service and maintenance collective agreement between the Canadian Pneumatic Control Contractors Association (the "CPCCA") and the International for the ten year period preceding 1982. It appears that in 1957 the issue regarding the use of automobiles and travel cards was resolved when the general officers of the International were authorized to modify the form of travel card in use and waive the procedural requirement involved.
It appears to the Board that the parties thereto have been working under the CPCCA collective agreements for ten years and that these collective agreements have contained the provisions which Mr. St. Eloi objects to. Moreover, counsel for the International has informed the Board that these provisions have been waived by the general officers as provided for in the constitution with respect to the CPCCA. There was no explanation before the Board as to why a provincial collective agreement in Ontario is in this regard qualitatively or quantitatively different from the CPCCA collective agreement which was national in scope. In any event, while the constitution governs the internal affairs of a trade union, a trade union may not by virtue of the provisions of its constitution contract out of the provisions of the Labour Relations Act. See Alexander Barna, [1981] OLRB Rep. July 815. More specifically in Canada Cement Lafarge Ltd., [1980] OLRB Rep. Nov. 1583, the Board held that an international's constitution and by-laws did not provide either it or one of its local trade unions with an acceptable defence in refusing to execute a collective agreement. An international's constitution and by-laws are subject to the provisions of the Labour Relations Act and any conflict must be resolved in favour of the Act in the circumstances of this complaint.
The events which give rise to the decision of the Board dated October 12, 1984, initially began in 1982, when the MCAO sought an order to compel members of the CPCCA to cease and desist from performing work in the industrial, commercial and institutional sector of the construction industry in Ontario during the currency of a strike in the plumbing and pipefitting industry. In Honeywell Controls Ltd. [1983] OLRB Rep. May 641 a differently constituted panel of the Board in a decision dated May 25. 1983, determined:
I The members of the CPCCA were subject to the MCAO's designation as the employer bargaining agency in the plumbing and pipefitting trade in the industrial, commercial and institutional sector of the construction industry and that the MCAO owed a duty of fair representation to its constituent employers and would have to be sensitive to possible conflicts of interest among such employer.
II The terms of the National Pneumatic Controls Agreement, between the CPCCA and the International was null and void, in so far as it purported to cover the industrial, commercial and institutional sector of the construction industry. This determination, however, was declared not to be effective until the expiration of the current provincial collective agreement unless the MCAO was willing to adopt the relevant provisions of the said collective agreement as an appendix for the remainder of the current provincial collective agreement.
III The parties ought to be given an opportunity to deal with the issues arising from the integration of the relevant provisions of the said collective agreement into the provincial collective agreement.
The Board indicated that a method of accommodating the interests of members of the CPCCA could be by including the relevant provisions of the National Pneumatic Controls Agreement as an appendix to the provincial collective agreement.
In the instant complaint the CPCCA has filed a complaint under section 89 of the Act arising from the refusal of the employee bargaining agency to negotiate any terms of the appendix which had been referred to by the Board in the decision in Honeywell Controls Ltd. In its decision in this matter dated October 12, 1984, the Board made the determinations and orders referred to in paragraph one herein. The Board is satisfied that the MCAO and the CPCCA have made every reasonable effort to comply with the decision of the Board in Honeywell Controls Ltd. On the other hand, the employee bargaining agency through Mr. St. Eloi has refused even to meet with the MCAO and/or the CPCCA to discuss any provisions relating to the use of vehicles and mobility provisions involving travel cards - two of the most significant and important provisions contained in the National Pneumatic Controls agreement which the CPCCA seeks to have included in an appendix to the provincial collective agreement. Mr. St. Eloi has disregarded the decision of the Board in Honeywell Controls Ltd. and the direction of the Board referred to in paragraph one and insists that these provisions may only be adopted within a National Pneumatic Controls Agreement and not as an appendix to a provincial collective agreement. The Board finds that the International and the Ontario Pipe Trades Council (which constitute the employee bargaining agency) have continued to contravene sections 15 and 146(2) of the Act.
The complainant has requested, in view of these continued flagrant violations of the Act, that the Board order that the MCAO and the employee bargaining agency include an appendix to the current provincial collective agreement the relevant provisions of the National Pneumatic Controls agreement as referred to in the decision of the Board dated October 12, 1984.
The Board has in the past made orders requiring a party to sign a collective agreement, see for example, The Municipality of Casimir, Jennings & Appleby, [1978] OLRB Rep. June 507; Wilson Automatic (Belleville) Ltd., [1980] OLRB Rep. Sept. 1337; Fotoinat Canada Limited, [1981] OLRB Rep. Feb. 145; and Treco Machine & Tool Limited, [1982] OLRB Rep. Dec. 1954. The Board has long recognized the principle of voluntarism in collective bargaining and has, in providing relief for violations of section 15, generally avoided imposing a collective agreement upon an unwilling party. See The Journal Publishing Company of Ottawa Limited, [1977] OLRB Rep. June 309. However, the Board has considered both the conduct of parties and the stage of the negotiations and to the degree to which the parties have themselves reached agreement on the terms of a proposed collective agreement. Thus in Wilson Automotive (Belleville) Ltd., an employer requested that the trade union, which had accepted the employer's offer, conduct a ratification vote. The Board held that the employer had no right to request such a vote and directed the employer to sign a draft collective agreement. In The Municipality of Casimir, Jennings & Appleby, the Board ordered an employer and a trade union to sign a document, which had been prepared as a collective agreement, by placing thereon the signatures of their authorized representatives. Similarly, in Selinger Wood Limited, [19801 OLRB Rep. Nov. 1688, the Board ordered an employer to executive the proposed collective agreement which reflected the memorandum of settlement which had been reached between the employer and the trade union.
II. In the instant complaint the Board notes that the appendix was negotiated among the parties to the provincial collective agreement and was ready for signature before Mr. St.Eloi instructed that it not be signed. The Board notes that it was the same language which had been included in the National Pneumatic Controls agreement. The conduct of Mr. St.Eloi in unilaterally repudiating an agreement which had been negotiated and which contained such language underlines the violation of sections 15 and 146(2) by the employee bargaining agency.
The bargaining which occurred between the parties was the result of a direction by the Board and Mr. St. Eloi had not complied with any of the Board's directives. As stated earlier, the provisions of the constitution which were raised by Mr. St. Eloi are not a defence to signing the appendix. After the last hearing of the Board Mr. St. Eloi requested an opportunity to address the Board. This request came after the hearings had been concluded. Mr. St. Eloi has been given every opportunity to call evidence and to make representations before the Board. In these circumstances, the Board is not prepared to allow Mr. St. Eloi yet a further opportunity to do what he had an ample opportunity to do on earlier occasions.
Having found that the employee bargaining agency has breached the duty to bargain in good faith, the Board hereby orders the employee bargaining agency to include in the current provincial collective agreement and execute the appendix which is attached within seven days of its having been prepared, executed and presented to the employee bargaining agency by the MCAO.
(Appendix omitted: Editor)