Grand Valley Construction Association (General Contractors Section) v. Labour Relations Bureau of the Ontario General Contractors Association
[1988] OLRB Rep. June 593
0454-88-U Grand Valley Construction Association (General Contractors Section), T. B. Taylor Construction Limited, XDG Limited, Complainants v. Labour Relations Bureau of the Ontario General Contractors Association; Ontario Masonry Contractors Association; Industrial Contractors Association of Canada; Water Proofing Contractors Association of Ontario; Concrete Floor Contractors Association of Ontario, James Thomson and Provincial Employer Bargaining Agency - Labourers, Respondents v. Labourers Employee Bargaining Agency, Intervener
BEFORE: Harry Freedman, Vice-Chair, and Board Members D. A. MacDonald and H. Kobryn.
APPEARANCES: Paul Young and Frank Sheppard for the complainants; Joseph Liberman for the Labour Relations Bureau of the Ontario General Contractors Association, James Thomson, and Provincial Employer Bargaining Agency - Labourers; no one appearing on behalf of Ontario Masonry Contractors Association, Industrial Contractors Association of Canada, Water Proofing Contractors Association of Ontario, Concrete Floor Contractors Association of Ontario; S. B. D. Wahl, J. Steffanini and E. Bairos for the intervener.
DECISION OF THE BOARD; June 3, 1988
This is a complaint under section 89 of the Labour Relations Act alleging a violation of section 151(2) of the Act. During the course of opening submissions, counsel for the complainants advised that the complainants are withdrawing this complaint against the respondent James Thomson. Therefore, in view of the request made by the complainants, this complaint is hereby withdrawn against the respondent James Thomson by leave of the Board.
The Board permitted the complainants to amend the complaint by adding the Provincial Employer Bargaining Agency - Labourers as a respondent to this proceeding. Counsel appearing on behalf of the Labour Relations Bureau of the Ontario General Contractors Association and James Thomson advised the Board that he was authorized to act on behalf of the Provincial Employer Bargaining Agency - Labourers.
Counsel for the complainant also sought to add T. E. Taylor Construction Limited and XDG Limited as complainants to this proceeding.
After hearing submissions from counsel with respect to certain preliminary matters raised by counsel for the respondents who appeared and counsel for the intervener, the Board delivered the following oral decision at its hearing in this matter on June 2nd, 1988:
This is a complaint alleging that the respondent, Provincial Employer Bargaining Agency - Labourers violated section 151(2) of the Labour Relations Act by the manner in which it came to agree to a Memorandum of Agreement with the intervener, Labourers Employee Bargaining Agency which contained the following provision:
"3(b) Schedule D
Schedule 'D' of the Provincial Agreement shall be amended effective April 29, 1990 by removing paragraph 2 there from dealing with Local 1081's area in order to provide for the uniform application of the sub-contracting provision contained in Article 2.05 of the Master Portion of the Provincial Agreement to all areas of the Province."
Counsel for the complainant Grand Valley Construction Association (General Contractors Section) sought to add as party complainants two contractors, T. E. Taylor Construction Limited and XDG Limited. The Board hereby permits the addition of those two employers as complainants.
Counsel for the intervener and counsel for the respondent Provincial Employer Bargaining Agency - Labourers have raised preliminary matters that relate to whether the complaint establishes a violation of the Act.
Section 151(2) states:
"A designated or accredited employer bargaining agency shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employers in the provincial unit of employers for which it bargains, whether members of the designated or accredited employer bargaining agency or not."
It is clear, in our view, that the duty owed under that section by the Provincial Employer Bargaining Agency - Labourers is a duty owed to individual employers. The province-wide bargaining provisions of the Labour Relations Act create, on the employer side, a bargaining structure in which employers are represented by an employer bargaining agency. How the employer bargaining agency constitutes itself is not explicitly governed by statute. While in this case the Provincial Employer Bargaining Agency - Labourers is comprised of five employers' organizations and those employers' organizations may be comprised of local trade or employer groups, section 151(2) imposes the statutory obligation on the employer bargaining agency, and not on its constituent organizations, to represent employers in a manner that is not arbitrary, discriminatory, or in bad faith.
The way in which the employer bargaining agency discharges that obligation is a matter that is properly before the Board when an employer represented by an employer bargaining agency complains about the manner in which it is represented by the employer bargaining agency.
In this case there are no facts pleaded which indicate how the two complainants, XDG Limited and T. E. Taylor Construction Limited have in any way been dealt with by the Provincial Employer Bargaining Agency - Labourers contrary to section 151(2) of the Act. The complaint alleges conduct by a constituent organization of the employer bargaining agency affecting the complainant Grand Valley Construction Association (General Contractors Section).
Counsel for the complainant relied on Mechanical Contractors Association of Ontario, [1982] OLRB Rep. Mar. 417 to submit that the Grand Valley Construction Association (General Contractors Section) may bring this complaint. In that case the complainant was the Mechanical Contractors Association of Sarnia. The Board wrote at paragraph 2, page 417 of that case:
"In Dominion Maintenance Limited, (19791 OLRB Rep. Oct. 940 at 950 the Board said that section 151(2) has the same purpose as section 68 which protects individual employees from arbitrary, discriminatory or bad faith treatment at the hands of a bargaining agent trade union. Section 151(2) protects individual contractors against the same kind of conduct and for that reason the jurisprudence of the Board in trade union fair representation cases is directly applicable to the facts and complaint before us in the instant matter."
[emphasis added]
In granting relief, however, the Board wrote at paragraph 12, page 419:
"Having regard to the able submissions of counsel and the evidence before the Board, we find that the respondent has acted in an arbitrary manner by the MTBC (Mechanical Trade Bargaining Committee failing to properly consult with the former zone affiliate with respect to the preparation, conduct, and progress of negotiations. It is our further view that only the granting of observer status in the affairs of the MTBC for the current round of negotiations will clearly avoid an ongoing violation of section 151(2). ln coming to this conclusion we rely heavily on the fact that the complainant is not an individual employer but rather an organization that formerly had the status of a zone affiliate; the complainant in previous negotiations has played a fundamental and pivotal role in the negotiation of the Sarnia appendix; and the fact that the Sarnia area has a number of labour relations problems that tend to be unique to that area."
[emphasis added]
It is clear from that decision that the issue of whether any duty is owed to an employers' organization, as opposed to an employer was not dealt with or considered by the Board in that case. This is therefore a matter of first impression before us.
There is nothing in the complaint as pleaded which alleges that T. E. Taylor Construction Limited or XDG Limited have been adversely affected by the conduct of the employer bargaining agency. Additionally, in our view, the Grand Valley Construction Association (General Contractors Section) is not owed any duty under the Labour Relations Act by the Provincial Employer Bargaining - Labourers since it is not an employer "in the provincial unit of employers" for which the Provincial Employer Bargaining Agency - Labourers bargains.
We are therefore persuaded that this complaint must be dismissed as it does not set out a violation of the Labour Relations Act in respect of any of the complainants.
We wish to make clear however that our dismissal at this stage of the proceeding is without prejudice to the complainants or any of them filing a further complaint alleging that an employer or employers have been dealt with by the Provincial Employer Bargaining Agency - Labourers contrary to section 15 1(2) of the Act.