Franco Pepe v. Ontario Provincial Council, United Brotherhood of Carpenters and Joiners of America, 1988 CanLII 3654

[1988] OLRB Rep. July 692

0312-88-R Franco Pepe, Applicant v. Ontario Provincial Council, United Brother­hood of Carpenters and Joiners of America and United J3rotherhood of Carpen­ters and Joiners of America, Local 2041, Respondents v. Pino Drywall Construc­tion of Ottawa Ltd., Intervener

BEFORE: Robert Herman, Vice-Chair, and Board Members D. A. MacDonald and C. A. Ballen­tine.

APPEARANCES: Franco Pepe and Michael S. Ruddy for the applicant; Nancy Austin, Don Guil­beauh, Maurice Potvin and Rene Seguin for the respondents.

DECISION OF THE BOARD; July 8, 1988

1. This is an application for a declaration pursuant to section 57 of the Labour Relations Act terminating the bargaining rights of the respondents.

2. Both parties agree that the bargaining unit in question is a bargaining unit in the indus­trial, commercial and institutional sector (I.C.I.) of the construction industry, and that bargaining rights were obtained by virtue of a voluntary recognition agreement entered into on December 17, 1987, recognizing the Ontario Provincial Council and its affiliated bargaining agents. It is also com­mon ground that pursuant to various provisions of the Act, upon the execution of the voluntary recognition agreement the parties became bound to the applicable I.C.I. provincial agreement.

3. This provincial agreement expired on April 30, 1988, and the application would accord­ingly be timely if the provisions of section 57(2) of the Act were applicable, in that the instant application was brought after the commencement of the last two months of the agreement. The respondents, however, assert that the application is untimely by virtue of the operation of section 123(2) of the Act. The applicable sections of the Act read as follows:

57.-(1) If a trade union does not make a collective agreement with the employer within one year after its certification, any of the employees in the bargaining unit determined in the certificate may, subject to section 61, apply to the Board for a declaration that the trade union no longer represents the employees in the bargaining unit.

(2) Any of the employees in the bargaining unit defined in a collective agreement may, subject to section 61, apply to the Board for a declaration that the trade union no longer represents the employees in the bargaining unit,

(a) in the case of a collective agreement for a term of not more than three years, only after the commencement of the last two months of its operation;

(b) in the case of a collective agreement for a term of more than three years, only after the commencement of the thirty-fifth month of its operation and before the commencement of the thirty-seventh month of its operation and during the two-month period immediately preceding the end of each year that the agreement continues to operate thereafter or after the commence­ment of the last two months of its operation, as the case may be.

(c) in the case of a collective agreement referred to in clause (a) or (b) that provides that it will continue to operate for any further term or successive terms if either party fails to give to the other notice of termination or of its desire to bargain with a view to the renewal, with or without modifications, of the agreement or to the making of a new agreement, only during the last two months of each year that it so continues to operate or after the com­mencement of the last two months of its operation, as the case may be.

(3) Upon an application under subsection (1) or (2), the Board shall ascertain the number of employees in the bargaining unit at the time the application was made and whether not less than 45 per cent of the employees in the bargaining unit have voluntarily signified in writing at such time as it determined under clause 103(2)(j) that they no longer wish to be represented by the trade union, and, if not less than 45 per cent have so signified, the Board shall, by a representa­tion vote, satisfy itself that a majority of the employees desire that the right of the trade union to bargain on their behalf be terminated.

(4) If on the taking of the representation vote more than 50 per cent of the ballots cast are cast in opposition to the trade union, the Board shall declare that the trade union that was certified or that was or is a party to the collective agreement, as the case may be, no longer represents the employees in the bargaining unit.

(5) Upon an application under subsection (1) or (2), where the trade union concerned informs the Board that it does not desire to continue to represent the employees in the bargaining unit, the Board may declare that the trade union no longer represents the employees in the bargain­ing unit.

(6) Upon the Board making a declaration under subsection (4) or (5), any collective agreement in operation between the trade union and the employer that is binding upon the employees in the bargaining unit ceases to operate forthwith.

118. Where there is conflict between any provision in sections 119 to 136 and any provision in sections 5 to 57 and 62 to 116, the provisions in sections 119 to 136 prevail.

119. (1) If a trade union does not make a collective agreement with the employer within six months after its certification, any of the employees in the bargaining unit determined in the cer­tificate may apply to the Board for a declaration that the trade union no longer represents the employees in the bargaining unit.

(2) Notwithstanding subsection 57(2), any of the employees in the bargaining unit defined in a first agreement between an employer and a trade union, where the trade union has not been cer­tified as the bargaining agent of the employees of the employer in the bargaining unit, may apply to the Board for a declaration that the trade union no longer represents the employees in the bargaining unit after the 305th day of its operation and before the 365th day of its operation.

(3) Subsections 57(3) to (6) apply to an application under subsection (1) or (2).

4. The respondents argue that the very wording of section 123(2) makes clear that it sup­plants or nullifies the provisions of section 57(2) and accordingly the only open period for applying for termination is as is contained in section 123(2); that is, after the three hundred and fifth day of the operation of the provincial agreement and before the three hundred and sixty-fifth day of its operation. It is not disputed that the instant application is brought well after the three hundred and sixty-fifth day of the operation of the applicable provincial agreement.. The question is whether the section 123(2) open period supplants, or is in addition to, the open period contained in section 57(2).

5. Before further considering this matter, we comment that it is not clear that the provi­sions of section 123(2) apply to I.C.I. provincial agreements (and therefore to the case at hand) and bargaining within that sector of the construction industry. On its wording, section 123(2) applies only to a "first agreement between an employer and a trade union". In the I.C.I. sector the agreement is between the employer bargaining agency and the employee bargaining agency, and not between "an employer and a trade union" (although employers and trade unions can be bound by the agreement). Secondly, voluntary recognition by the employer caused the parties to become bound by the pre-existing provincial agreement (See, for example, Culliton Brothers Limited [1983] OLRB Rep. March 339), an agreement which was not the "first agreement" between the parties to the provincial agreement in question, but only the most recent in a series of provincial agreements between the same parties. It is not clear, therefore, that the particular provincial agreement is an agreement between an employer and a trade union or that it is, within the meaning in section 123(2), a "first agreement". However, the parties did not suggest that section 123(2) was inapplicable to the I.C. I. sector, and accordingly we have dealt with the matter as if this subsection so applied.

6. In International Union of Operating Engineers, Local 793 Re: Allan Gagnon, [1986] OLRB Rep. August 1097, the Board considered the interaction between section 123(1) of the Act and the general termination provisions contained in the non-construction part of the Act in sec­tions 57 and following. Although the critical question before the Board in that case was the appli­cation of section 61, and in particular section 61(1), the Board's analysis of the interaction between the non-construction termination provisions and section 123 provisions remains applicable. Apply­ing the provisions of section 118 of the Act, the Board therein concluded that the provisions of sec­tion 57, amongst others, would apply to construction industry termination applications, except insofar as such provisions were inconsistent with or overridden by the provisions of, for example, section 123. The Board concluded that the six month protected period contained in section 123(1) was inconsistent with the one year period contained in section 61(1), and to that limited extent the provisions of section 61(1) were held inapplicable. As the Board stated:

7. The only case of the Board to fully consider the relationship between the sections now before us is K. J. Beamish Construction, [1967] OLRB Rep. May 205. In that case the facts themselves were significantly different, in that although that termination application was also brought between six and twelve months after certification, the conciliation process was still ongoing. Sec­tion 123 makes no reference to the conciliation process at all, and the applicant in that case argued that, particularly in light of the "paramountcy" provisions of what is now section 118, section 123 set out the only test for timeliness (i.e., six months from certification). Faced with the prospect that the conciliation process in the construction industry could be interrupted in midstream by a termination application, the Board reasoned as follows, at page 211:

Section 96 [now 123] provides that if a trade union does not make a collective agree­ment within six months after its certification, any of the employees may apply for a declaration that the union no longer represents the employees. It is significant that section 91 [now 118] does not say that sections 5 to 89 shall not apply to the construc­tion industry but declared merely that where there is a conflict between any provisions in sections 92 to 96 and any provisions in sections 5 to 89 the provisions in sections 92 to 96 shall prevail. The plain meaning to be drawn from the language of section 91, therefore, is that where there is a conflict in any of the provisions of section 5 to 89 with any of the provisions of sections 92 to 96, the former sections, less whatever parts of them conflict with the latter, shall, if reasonably capable of pertaining to the sub­ject-matter, apply mutatis mutandis to the construction industry.

Comparing the time limits provided in the general provisions with those in the construction industry part of the Act, the Board then wrote, again at page 211:

Section 46(1) [now 61(1)1 provides that where a trade union has not made a collective agreement within one year after its certification and notice has been given under sec­tion 11 and the Minister has appointed a conciliation officer of mediator, no applica­tion for a declaration that the trade union no longer represents the employees in the bargaining unit determined in the certificate shall be made unless the conciliation pro­cess has been exhausted and the additional period of thirty days has gone by as pro­vided for in either clause (a) or (b) of the section. Obviously, the only provision of section 46(1) which appears to conflict with section 96 [123] is the one year period. Section 91 [118], however, states that where there is such a conflict the provisions of section 96 are to prevail. It is manifest that if the period of six months provided for in section 96(1) is, following the direction of section 91, allowed to prevail and is, accordingly, substituted in section 46(1) for the one year period stated therein, any conflict existing between sections 96(1) and 46(1)(a) and (b) is automatically recon­ciled, with the result that the two sections may then co-exist and operate in harmony.

And, further, at page 212:

..It is obviously more compatible with legislative consistency and with the policy and sense of the legislation when read as a whole, that sections 45 and 46 were intended to complement and not to conflict with section 96. It is obvious that the provisions of sections 91, 93, 96, and 46, readily lend themselves to an interpretation which on the one hand permits them to co-exist in harmony and on the other manifestly serves to promote and advance the plain spirit and object of the legislation as a whole (i.e., to foster the conciliation process).

The application was accordingly dismissed.

7. What that case decided was that the one-year period referred to in section 61(1) was to be read, for construction applications under section 123, as a six-month period, and that the additional time limits relating to completion of the process of conciliation were applicable to the construction industry as well, and could, as in non-construction industries, extend the time dur­ing which bargaining rights are protected.

8. We agree with those comments as they reflect the view that the general provisions of section 57 continue to apply to termination applications in the construction industry, unless such application would result in conflict. Both open periods (in sections 57(2) and 123(2)) could stand without conflicting, but can the sections themselves both survive, given the opening phrase of sec­tion 123(2): "Notwithstanding section 57(2)".

9. The respondents rely upon R.L.D. Electric, [1986] OLRB Rep. August 1145. In that case, a decision had issued certifying a union with respect to the I.C.I. sector and dismissing a sep­arate certification application with respect to the same group of employees filed by an employee Association. Shortly after that decision issued, some employees applied to terminate bargaining rights, the application filed within the open period set out in section 57(2) of the Act. The Board was asked to apply its discretion pursuant to section 103(2)(i) and to bar the termination applica­tion, on the basis that there had only recently been a representation vote and consequent dismissal of the Association's certification application, and the members of the Association were really seek­ing a further representation vote. The union argued it would be inappropriate to test the wishes of the employees so recently after the wishes had been tested during the certification process. As the certification had been for the I.C.I. sector and therefore upon certification the parties became immediately bound to the provincial agreement, the provisions of section 123(1) were not applica­ble. The Board in that case exercised its discretion to dismiss the termination application, basing its decision upon policy considerations suggesting that collective bargaining parties require a period of time in order to develop and nurture a bargaining relationship. The Board was satisfied that a termination application brought nine days after the certification decision did not provide that requi­site period. As the Board stated in dismissing the application:

10. If this application is permitted to proceed and the applicant is able to establish that his peti­tion represents a voluntary expression of those employees who signed it, the Board would direct the taking of a representation vote to determine if the employees wanted Local 353 to continue to be their bargaining agent. However, that very representation issue was determined a mere three weeks prior to the filing of this termination application by means cf a representation vote. When the employees were confronted at that time with a choice between Local 353, the Associ­ation, or remaining non-union, the majority chose Local 353 as their bargaining agent. With this termination application, the applicant is requesting the Board to direct a further vote in which the bargaining rights of Local 353 would again be placed in issue a very short time after Local 353 acquired those bargaining rights by means of a representation vote. It appears to us that parties are entitled to a reasonable period of stability after a representation issue has been decided by a vote.

11. The respondents submit that they too are entitled to a period of stability without risk of termination in order to be afforded a realistic and meaningful opportunity to develop a sound bar­gaining relationship. That the respondents before us were voluntarily recognized by the employer is not, in the respondent's submission, a distinguishing feature. They submit that section 60 pro­vides a basis upon which employees affected by the voluntary recognition can challenge such recog­nition, and that reading section 123(2) as overriding the provisions of section 57(2) would not deprive employees disenchanted with the voluntary recognition from challenging it. In this sense, the respondents submit that R.L.D. Electric is analogous, as here too an alternative test of employee wishes is available, albeit pursuant to the provisions of section 60.

12. In our view, section 123(2) (assuming it applies to termination applications in the I.C.I. sector) ought to be read as providing an open period for bringing termination applications in addi­tion to the open period provided in section 57(2) of the Act. Although the wording of section 123(2) seems capable of either interpretation, from a labour relations policy perspective it makes considerably more sense to read this provision as providing an additional open period.

13. Section 123 contains provisions applicable generally to the construction industry, and they are clearly applicable to the non-I.C.I. sectors of the industry. In these sectors, we must keep in mind that the statute does not compel provincial agreements (see section 146 of the Act), by which parties are automatically bound upon the acquisition of bargaining rights. Rather, in the non-I.C.I. sectors, when bargaining rights are obtained by a bargaining agent, the parties meet and attempt to negotiate a collective agreement. Section 123(1) speaks to this scenario and provides a period of protection of six months during which termination cannot be sought. Thus, after the rep­resentation wishes of employees have been ascertained (whether through joining the bargaining agent or through a representation vote) the bargaining agent is afforded a six month grace period in which to try to establish a stable bargaining relationship. In the construction industry this period of protection afforded by the Act is only six months, as compared to the longer twelve month period for non-construction bargaining relationships (see Gagnon, supra). This difference reflects the transient and constantly changing nature of the work force and the labour relations environ­ment in the construction industry, and the Legislature's acknowledgement that a shorter protected period is accordingly appropriate. But again, the period of protection is only six months when employees have been given an opportunity to demonstrate their wishes.

14. To read section 123(2) as suggested by the respondents would create a substantially longer protected period in circumstances where an employer had voluntarily recognized a union, and therefore in circumstances in which the employee wishes had never been tested and in which employees had never been given an opportunity to express their views. The provincial agreement in question is a two year agreement, and at the time of voluntary recognition, the three hundred and sixty-fifth day of the agreement's operation had already passed. The open period in section 123(2) runs from after the three hundred and fifth day of the operation of the agreement until before the three hundred and sixty-fifth day of its operation. In this circumstance, as the open period contained in section 123(2) has already expired, there will be no open period for any of the employees to apply for termination for the balance of this agreement (accepting the respondents' interpretation). The first open period available to employees (who have never had a chance to express their views with respect to representation by the bargaining agent) would occur after the commencement of the last two months of the subsequent agreement, pursuant to the provisions of section 57(2). In other words, where a voluntary recognition occurs after the three hundred and sixty-fifth day of an agreement's operation, and adopting the respondent's submissions, there would be no open period whatsoever during the balance of the operation of that particular agree­ment. The first open period would occur only after the commencement of the last two months of the subsequent agreement. The provisions of section 60 would not remedy this deficiency, as sec­tion 60 considerations are different than those that apply pursuant to sections 57 or 123, and in any event are available only for one year after voluntary reognition. It makes little sense to read sec­tion 123 as providing a protected period (during which a union can establish a bargaining relation­ship) of only six months after employee wishes have been ascertained, but providing a protected period potentially quite substantially longer when employee wishes have never been tested.

15. We recognize that reading section 123(2) as providing an additional period for applying for termination would in given circumstances afford employees two open periods during the tenure of a particular agreement, the period between three hundred and fifth and the three hundred and sixty-fifth days of the agreement (per section 123(2)) and the period as set out in section 57(2), commencing after the last two months of operation of the agreement. But this scenario exists only when a bargaining agent has been voluntarily recognized and is in the construction industry, two factors which distinguish this situation from the typical non-construction bargaining context, and the Board, in the exercise of its discretion pursuant to section 103(2)(i) of the Act, could bar a sec­ond application brought within ten months of a prior unsuccessful termination application. Poten­tial abuse could be dealt with through this mechanism, as it was in R. L. D. Electric (supra).

16. We read section 123(3) as merely incorporating the procedural code set out in subsec­tions three to six of section 57, rather than as an indication that section 123(2) nullifies section 57(2). Section 123(3) establishes that the provisions of 57(3) to (6) remain applicable whether the application is brought pursuant to section 123(2) or section 57(2).

17. Accordingly, and for the above reasons, we find that this application is timely as it has been brought during the open period set out in section 57(2) of the Act. This section is not overrid­den by the provisions of section 123(2) of the Act; rather, when voluntary recognition occurs in the construction industry, there are potentially available two open periods during which termination applications can be brought.

[Balance of decision omitted: Editor]