[1986] OLRB Rep. November 1511
1427-86-U James Clarke, Norman Davidson, Al Forsyth, Barry Fraser, Terry Fraser, Gerry Maloney, Complainant, v. International Brotherhood of Electrical Workers, International Brotherhood of Electrical Workers, Local 105, K.G. Rose, P. Dillon, T. Beattie, Jaddco Anderson Ltd. and The Hamilton Electrical Contractors Association, Respondents
BEFORE: Harry Freedman, Vice-Chairman and Board Members D.A. MacDonald and H. Kobryn.
APPEARANCES: J. Barry Fraser and Royce S. Arnold for the complainants; A.M. Minsky, Q.C. for the International Brotherhood of Electrical Workers and Kenneth G. Rose; A.M. Minsky, Q. C. and S. Wahl for the International Brotherhood of Electrical Workers, Local 105, P. Dillon and T. Beattie; D. L. Brisbin and B. Timmins for Jaddco Anderson Ltd.; S. C. Bernardo and J. Cameron Nolan for the Electrical Contractors Association of Hamilton.
DECISION OF THE BOARD; November 21, 1986
1The Board delivered the following oral ruling at its hearing in this matter on November 13, 1986;
The respondents have moved to have this complaint (as amended) dismissed by reason of undue delay in the filing of the complaint, and also on the ground that the complaint does not make out a prima facie violation of the Labour Relations Act. The respondents also submit, in connection with that second ground, that the complainants do not have a sufficient legal interest, that is, they lack the status to bring the complaint.
The complainants' representative, in a forceful argument, sought to explain the basis for the time taken to file the complaint and refute the submissions made by the respondents. In our consideration of these issues, we have not addressed ourselves to the issue of delay, but only to whether the complainants have standing to make this complaint and whether a prima facie violation of the Act is made out.
This complaint arises from the respondent Local 105 and the respondent Electrical Contractors Association Hamilton entering into a "maintenance agreement". The complaint as amended alleges that the respondent Jaddco Anderson Ltd. performed work at a Dofasco blast furnace under the maintenance agreement. The complainants claim that such work is construction work coming within the industrial, commercial and institutional sector of the construction industry and therefore should have been performed pursuant to the IBEW provincial agreement.
The complainants concede that there is nothing illegal or improper about the respondents entering into a maintenance agreement. Their complaint is that the respondents are performing industrial, commercial and institutional sector construction work under the maintenance agreement.
The complainants were officers of the respondent Local 105. They bring this complaint as members of that local union.
Assuming that the complainants could prove all of the allegations remaining in the original complaint, after the complainants' withdrawal of several allegations relating to internal union affairs, we find that those remaining allegations do not disclose any violation of the Act. The amendment to the complaint that we permitted at the opening of the hearing yesterday morning states:
- Summary of Material and Facts Relied Upon
(a) There is an I.C.I. Principal [sic] Agreement made and entered into between The Electrical Trade Bargaining Agency Of The electrical Contractors Association Of Ontario and all other Signatories to this Agreement (hereinafter called the Contractor) and The International Brotherhood of Electrical Workers and the IBEW Construction Council of Ontario in place to which E.C.A.O. and I.B.E.W. are signatories with a term of two years. This is a renewal agreement. The new Provincial Agreement will expire on April 30, 1988.
(b) Electrical work has been and is being done at the Number 4 Blast Furnace Reline at the premises of Dofasco in Hamilton ("the blast furnace work"). That work is being performed by Jaddco Anderson Company Limited ("Jaddco").
(c) Jaddco is a member of the Electrical Construction Association of Hamilton who signs the Provincial I.C.I. agreement on behalf of its member contractors.
(d) The Complainants state that the blast furnace work above is construction work within the meaning of Section 1(1)(f) of the Act. Work equivalent to the blast furnace work has historically been performed under the I.C.I. agreement.
(e) The Respondents I.B.E.W. Local 105 and E.C.A.H. have entered into a so-called maintenance agreement dated August 19, 1985 and renewed on or about August 27, 1986.
(f) The Respondents have taken the position that the blast furnace work is covered by the maintenance agreement and not the I.C.I. agreement.
(g) Jaddco, to the knowledge of the Respondent union, has required that employees on the blast furnace work job site sign a written acknowledgement that they will be working under the maintenance agreement before they are hired.
(h) Members of the respondent union who have worked or are working under the maintenance agreement on the blast furnace work receive wages and benefits inferior to those otherwise payable under the I.C.I. agreement.
- Statutory Violations
(a) The Complainants state that the conduct of the Respondent union violates Sections 50, 68, 135(2a), 146(1) and 146(2) of the Act.
(b) The Complainants state that the conduct of the Respondent Association violates Sections 50, 135(2a), 146(1) and 146(2) of the Act.
(c) The Complainants state that the conduct of the Respondent Jaddco violates Sections 50, 66, 135(2a), 146(1) and 146(2) of the Act.
During the complainants' argument, the representative of the complainant submitted that employees had been refused employment when they would not sign the acknowledgment described in paragraph 2(g) above and that many of their fellow members were intimidated into not filing grievances over the application of the maintenance agreement. No particulars of those allegations were set out in either the original complaint or in the amendments to that complaint however, and as the complainants' representative stated, there was no allegation that any of the complainants were refused employment because they would not agree to work at the Dofasco job under the maintenance agreement.
Therefore, it seems to us that the complainants, as members of the respondent Local 105 have not had any of their rights under the Labour Relations Act violated by the respondents. Had the complainants made allegations about such refusals, or had the complaint been made by persons who had been denied employment, our conclusion on this issue might well have been different.
We are also satisfied that as there is no allegation that the complainants have either not been employed, or been refused employment under the maintenance agreement or the industrial, commercial and institutional sector provincial agreement, they have no legal interest in asserting a violation of section 50 of the Labour Relations Act.
Furthermore, since at the times material to this complaint, the complainants were not employees in a bargaining unit, there can be no violation of section 68 of the Labour Relations Act in regard to them. (see Keith MacLeod Sutherland, [1983] OLRB Rep. July 1219; Arthur Joseph Roberts, [1974] OLRB Rep. March 169; and Bricklayers, Masons Independent Union of Canada, Local 1, [1979] OLRB Rep. April 278.)
It is not alleged that any of the complainants have been refused employment, or discriminated in employment by the respondent Jaddco Anderson Limited. Therefore, no violation of section 66 of the Act is made out.
Section 135(2a) is a procedural section. One cannot violate section 135(2a). Therefore, the complainants cannot rely on that section of the Act to found a violation.
As for section 146, we are satisfied that before a person can claim a violation of section 146, that person must have a direct interest that is affected by the agreement or arrangement that is alleged to be unlawful. In our opinion, the complainants' interests are simply too remote at this point. They have not worked under the agreement or arrangement, nor have they sought to work or been refused work under the agreement or arrangement. There is nothing before us alleging that that agreement or arrangement has had any direct impact on the complainants. Therefore, we find that the complaint does not establish a prima facie case.
We note at this point that the complaints against the respondents International Brotherhood of Electrical Workers, K. G. Rose, Patrick Dillon and Thomas Beattie were dismissed on consent at the opening of yesterday's hearing.
For the reasons set out above, this complaint is hereby dismissed against the remaining respondents.
While we have found that the complaint must be dismissed, it seems to us that if construction work in the industrial, commercial and institutional sector is being performed under something other than the provincial agreement, that matter is very serious and ought to be raised in an appropriate manner, either by the complainants through Local 105 or before this Board by a person or union affected by the improper arrangement.