[1986] OLRB Rep. June 787
0860-86-U Metropolitan Plumbing and Heating Contractors Association, A Division of the Mechanical Contractors Association Toronto, Applicant, v. Sean O'Ryan; The United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 46; Urban Mechanical Contractors Limited; Zentil Plumbing and Heating Co. Ltd.; Lou Pupolin Plumbing & Heating Co. Ltd.; Brady & Seidner Ltd.; DiMarco Plumbing & Heating Co. Ltd.; Keele Plumbing & Heating Ltd.; Municipal Plumbing & Heating Ltd., Respondents
BEFORE; Harry Freedman, Vice-Chairman.
APPEARANCES: S. C. Bernardo, Derwent Lewis, Jack McCarron and Frank Michelucci on behalf of the applicant; Laurence C. Arnold and Chris Thurrett on behalf of Sean O'Ryan and The United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada; M. E. Geiger, M. Z. Rosenbaum, E. J. Winter, Howard Roher, Bruno Bortolus and Luo Pupolin on behalf of the corporate respondents.
DECISION OF THE BOARD; June 30, 1986
This application for relief under section 135 of the Labour Relations Act was filed in the morning of June 26, 1986 and came on for hearing before me in the afternoon of June 27, 1986.
Counsel for the corporate respondents challenged the authority of counsel for the applicant to act on behalf of the applicant on the basis that Mr. Geiger's clients, who are members of the applicant and play a significant role in the affairs of the applicant, did not retain Mr. Bernardo or authorize this application.
Counsel for the respondent union and Sean O'Ryan took no position with respect to the applicant's authority to make this application, but requested an adjournment. Mr. Arnold also suggested that this application was not properly before the Board under section 135 of the Act. Mr. Geiger supported the position of Mr. Arnold.
Counsel for the applicant advised me that the officers of the applicant with the authority to initiate proceedings before the Board on behalf of the applicant had retained him to act in this matter. While counsel submitted that this matter was very urgent and should be heard on June 27th, he did not oppose adjourning this hearing until next week, suggesting Wednesday July 2nd or Thursday July 3rd and also suggested that three members of the Board be assigned to deal with this matter.
At the conclusion of the opening submissions from all counsel, I asked counsel for the applicant if he was content to proceed with this matter as an unfair labour practice complaint under section 89 of the Act to be scheduled for hearing by the Registrar or if he wanted it to proceed before the Board under section 135 of the Act. After a brief recess, counsel advised me that the applicant wished to proceed with the matter under section 135. I therefore heard argument from all counsel as to whether this application was properly before me as an application under section 135 of the Act. Following the conclusion of argument, I recessed and then returned and gave the following decision orally at the hearing:
This is an application made under section 135 of the Labour Relations Act for a broad range of relief that arises out of the corporate respondents entering into an agreement with the respondent union. The applicant is an accredited employers' organization. The corporate respondents are members of the applicant. The respondent union holds bargaining rights for the employees of the applicant's members and bargains with the applicant.
While there were a number of procedural and preliminary matters raised, I asked counsel for the applicant what section or sections of the Act are alleged to have been violated by the respondents. He advised me that the application made under section 135 of the Act is based on alleged violations of section 131 of the Act. I therefore directed the parties to deal with the preliminary issue that was of some concern to me, that is, whether I had the jurisdiction under section 135 to hear an application for relief based on alleged violations of section 131.
Section 135(1) of the Act provides:
"Where, on the complaint of an ... employers' organization, the Board is satisfied that a trade union ... called or authorized or threatened to call or authorize an unlawful strike or that an officer, official or agent of a trade union ... counselled or procured or supported or encouraged an unlawful strike or threatened an unlawful strike, or that employees engaged in or threatened to engage in an unlawful strike or any person has done or is threatening to do any act that the person knows or ought to know that, as a probable and reasonable consequence of the act, another person or persons will engage in an unlawful strike, it may direct what action, if any, a person, employee, employer, employers' organization, trade union or council of trade unions and their officers, officials or agents shall do or refrain from doing with respect to the unlawful strike or the threat of an unlawful strike."
Section 135(1) of the Act provides:
"(1) No trade union or council of trade unions that has bargaining rights for employees of employers represented by an accredited employers' organization and no such employer or person acting on behalf of such employer, trade union or council of trade unions shall, so long as the accredited employers' organization continues to be entitled to represent the employers in a unit of employers, bargain with each other with respect to such employees or enter into a collective agreement designed or intended to be binding upon such employees and if any such agreement is entered into it is void.
(2) No trade union or council of trade unions that has bargaining rights for employees of employers represented by an accredited employers' organization and no such employer or person acting on behalf of the employer, trade union or council of trade unions shall, so long as the accredited employers' organization continues to be entitled to represent the employers in a unit of employers, enter into any agreement or understanding, oral or written, that provides for the supply of employees during a legal strike or lock-out, and if any such agreement or understanding is entered into it is void and no such trade union or council of trade unions or person shall supply such employees to the employer.
(3) Nothing in this Act prohibits an employer, represented by an accredited employers organization, from continuing or attempting to continue his operations during a strike or lock-out involving employees of employers represented by the accredited employers' organization."
Counsel for the applicant submits that once a legal strike occurred, as was the case here, any conduct that prejudicially affected the bargaining between the applicant and the respondent union can be remedied under section 135.
It was agreed before me that the members of the respondent union employed by the corporate respondents went back to work after the agreement with the union was signed. The applicant did not allege, and was unaware of any of its other members not having the respondent union's members working for them.
In my view, since the employees who engaged in a strike against the members of the applicant are back at work, there is no longer a strike taking place.
An alleged violation of section 131 is similar to an allegation that section 146 of the Labour Relations Act, in respect of province-wide bargaining, has been contravened. The Board in Sikora Mechanical Ltd., [1982] OLRB Rep. June 941 specifically held that a violation of section 146 could be remedied under section 89. The Board declined in that case to grant any relief under section 135. In Quinard Ltd., [1982] OLRB Rep. July 1054 an application was made before the Board under both section 135 and section 89 of the Act in respect of entering into an agreement or arrangement contrary to section 146. In that case, the Board specifically held that no violation of the Act was established for which relief could be granted under section 135.
Any doubt about whether section 135 can apply to an allegation of a violation of section 131 is removed when one considers the amendment to the Act in 1984, by which section 135(2a) was added. In my view, that amendment deals with the making of other arrangements contrary to section 146, a section similar in import to section 131. There was no need for the Legislature
to enact section 135(2a) if section 135 applied to the kind of allegations made in the application that is before me.
I have no doubt that this is a very serious matter that strikes at the heart of the accreditation bargaining system in the construction industry. The issues in this case appear to be complex, and the applicant alleges that the matter must be urgently dealt with.
Even if I assume that the applicant has made out its case for urgency, that alone cannot give me the authority to deal with the matter under section 135. Rather, the urgency alleged must be raised with the Board if and when the applicant brings a complaint under section 89 of the Act in respect of this matter.
Since this was an application under section 135 that raises matters outside the scope of section 135, I, as a Vice-Chairman of the Board sitting alone pursuant to section 102(12) of the Labour Relations Act, do not have the jurisdiction to deal with the application as made.
Therefore, this application is hereby dismissed.