United Brotherhood of Carpenters' and Joiners of America Local Union 27 v. 704039 Ontario Limited

[1988] OLRB Rep. October 1017

0424-88-R; 0658-88-U United Brotherhood of Carpenters' and Joiners of America Local Union 27, Applicant v. 704039 Ontario Limited, carrying on business as Construction 2000, Respondent v. Labourers' International Union of North America, Local 183, Intervener v. Group of Employees, Objectors; United Brotherhood of Carpenters and Joiners of America, Local 27, Complainant v. 704039 Ontario Limited, carrying on business as Construction 2000, Respondent

BEFORE: N. B. Satterfield, Vice-Chair, and Board Members M. Eayrs and H. Kobryn.

APPEARANCES: J. David Watson and Joe Almeida for the applicant/complainant; B. L. Mendrycki for the respondent; J. Sack and Tanya Lee for the intervener; Jeff Robinson and Rocco Urlando for the objectors.

DECISION OF THE BOARD; October 21, 1988

1. At a hearing held July 21, 1988, into these matters, the Board received the evidence of the parties with respect to a threshold issue of whether the application for certification was barred by an alleged pre-existing collective agreement between the respondent and the Labourers International Union of North America, Local 183 ("the Labourers"). In other words, the Labourers are claiming that, pursuant to an alleged collective agreement with the respondent, it holds the bargaining rights for the respondent's employees whom the applicant is seeking to represent. The issue had been raised by the Labourers' intervention. The Labourers' claim was contested by the applicant in a letter to the Board dated July 15, 1988. At the hearing, Al Mendrycki, President of the respondent, acknowledged that he was aware at the time the application was made of the Labourers' claim to represent the respondent's employees affected by the application. He also stated that there was a collective agreement between the Labourers and the respondent which had been signed on August 5, 1987 to be effective from May 4, 1987 to April 30, 1989. This application was made May 12, 1988.

2. The applicant's July 15th letter challenged the claimed collective agreement bar on two grounds. First, the applicant alleged that the Labourers were not entitled to represent the employees in the bargaining unit at the time the collective agreement was entered into and, in this respect, was relying on section 60 of the Labour Relations Act. The applicant also took the position that the collective agreement was entered into contrary to clause (a) of section 48 of the Act. These sections provide as follows:

3. An agreement between an employer or an employers' organization and a trade union shall be deemed not to be a collective agreement for the purpose of this Act,

(a) if an employer or an employers' organization participated in the formation or administration of the trade union or if an employer or an employers' organization contributed financial or other support to the trade union; or

60.-(1) Where an employer and a trade union that has not been certified as the bargaining agent for a bargaining unit of employees of the employer enter into a collective agreement, or a recognition agreement as provided for in subsection 16(3), the Board may, upon the application of any employee in the bargaining unit or of a trade union representing any employee in the bargaining unit, during the first year of the period of time that the first collective agreement between them is in operation or, if no collective agreement has been entered into, within one year from the signing of such recognition agreement, declare that the trade union was not, at the time the agreement was entered into, entitled to represent the employees in the bargaining unit.

(2) Before disposing of an application under subsection (1), the Board may make such inquiry, require the production of such evidence and the doing of such things, or hold such representation votes, as it considers appropriate.

(3) On an application under subsection (1), the onus of establishing that the trade union was entitled to represent the employees in the bargaining unit at the time the agreement was entered into rests on the parties to the agreement.

(4) Upon the Board making a declaration under subsection (1), the trade union forthwith ceases to represent the employees in the defined bargaining unit in the recognition agreement or collective agreement and any collective agreement in operation between the trade union and the employer ceases to operate forthwith in respect of the employees affected by the application.

3. For the reasons given in its decision which issued August 11, 1988, the Board directed the parties to make their submissions on the issues to the Board in writing. The Board has received the submissions as directed. The submissions made by Labourers' counsel in rebuttal of the submissions from the respondent and the objectors are set out in the following text from a letter to the Board dated September 30, 1988:

We have now had an opportunity to review the written submissions filed by Construction 2000, Division of 704039 Ontario Limited, and the Group of Employees, with our client. It is clear that these two parties take the position that Local 183 and Construction 2000 are not parties to a collective agreement.

In these circumstances, Local 183 no longer feels compelled to raise its collective agreement with Construction 2000 as a bar to this certification application. Accordingly, Local 183 hereby withdraws its intervention and the collective agreement bar upon which it is based.

Local 183 is changing its original position in this case, without prejudice to its position that the collective agreement signed between Local 183 and a contractor in the circumstances of this case is a lawful and binding collective agreement. However, in this particular case, Local 183 chooses not to assert its bargaining rights as a bar to the application by the Carpenters'. Local 183 does not intend to take any further part in these proceedings.

Accordingly, in these circumstances, there is no need for the Board to adjudicate on the issues respecting the status of the collective agreement between Local 183 and Construction 2000.

4. There is no doubt that the objectors' submissions dispute the validity of the collective agreement between the Labourers and the respondent. While there are ambiguities in the respondent's submissions, the final paragraph of the submissions contains the following statement:

In conclusion, Construction 2000 does not feel that the collective agreement, [sic] it currently has with Local 183 is a legal one because of the way in which it was presented to both myself and the employees of Construction 2000.

The applicant's submissions, of course, continue to dispute the validity of the collective agreement. Since the Labourers have withdrawn their intervention and chosen not to assert their alleged bargaining rights for carpenters and carpenters' apprentices employed by the respondent, and since the other parties have taken the position that there is no valid collective agreement between the Labourers and the respondent, there is no party to the proceeding who is contending that the bargaining rights sought by the applicant are already held by the Labourers. Therefore there is no bar to the application for certification.

5. In the alternative, even if the Board has erred in reaching the foregoing conclusion, it would still find that the Labourers do not hold bargaining rights for the respondent's carpenters and apprentices. This is because, to the extent that the Labourers held such rights, they abandoned those rights when they withdrew their intervention and decided not ".. .to take any further part in these proceedings." in the face of a clear challenge to their claim that they hold bargaining rights pursuant to a collective agreement with the respondent. Thus the Labourers no longer can claim to represent the respondent's carpenters and carpenters' apprentices.

6. The Board notes the Labourers' assertion that the change in their original position in this case is without prejudice to their claim that "...the collective agreement signed between [the Labourers] and a contractor in the circumstances of this case is a lawful and binding collective agreement." It is not open to the Labourers, in the Board's view, to refuse to defend bargaining rights which they have claimed to hold where the existence of those rights have been placed directly in issue, as clearly they have here, and still purport to retain for some other purpose those rights and the collective agreement which purports to have created them. Pursuant to clause (e) of subsection 1(1) of the Act, a collective agreement must be between an employer and a trade union which represents employees of the employer. Since the Labourers have abandoned any bargaining rights which they might have held for carpenters and carpenters' apprentices employed by the respondent, to the extent that the agreement between the Labourers and the respondent purports to include such employees, it would not satisfy that requirement. Therefore, the Board finds that the agreement between the Labourers and the respondent on which the Labourers had relied to intervene in this proceeding is not a collective agreement within the meaning of the Act respecting carpenters and carpenters' apprentices employed by the respondent.

7. In the result, the Board finds that there is no bar to the application for certification made May 12, 1988 by the United Brotherhood of Carpenters' and Joiners of America Local Union 27.

8. These matters are scheduled for continuation of hearing on November 8 and 9, 1988 for the purpose of receiving the evidence and representations of the parties respecting all matters arising out of and incidental to the application in File No. 0424-88-R and the complaint in File No. 0658-88-U, including in particular the weight, if any, to be given to the statements contained in the respondent's letter dated May 27, 1988, in the application for certification.

9. The application and complaint are referred to the Registrar for listing for hearing.