Electrical Trade Bargaining Agency v. International Brotherhood of Electrical Workers, 1990 CanLII 5666

[1990] OLRB Rep. March 283

2674-89-G Electrical Trade Bargaining Agency of the Electrical Contractors Association of Ontario on behalf of All Contractor Members of the Electrical Contractors Association of Quinte/St. Lawrence and The Electrical Contractors Association of Quinte/St. Lawrence, Applicants v. International Brotherhood of Electrical Workers, and the International Brotherhood Construction Council of Ontario, and the International Brotherhood of Electrical Workers, Local 115, Respondents

BEFORE: Louisa M. Davie, Vice-Chair, and Board Members W. Gibson and J. Redshaw

APPEARANCES: P. Yudcovitch for the applicants; A. Minsky for the respondents.

DECISION OF THE BOARD; March 20, 1990

1. This grievance has been filed pursuant to section 124 of the Labour Relations Act. When this matter came on for hearing on February 20, 1990, the respondents, International Brotherhood of Electrical Workers, and the International Brotherhood of Construction Council of Ontario, and the International Brotherhood of Electrical Workers, Local 115 (hereinafter sometimes referred to as the "trade union") raised two preliminary matters which go to the jurisdiction of the Board to hear this referral of the grievance, and the arbitrability of the grievance.

2. The respondents assert that the statutory conditions precedent which grant the Board jurisdiction to hear this section 124 referral have not been met insofar as the applicants have not delivered to the respondents "the written grievance" prior to filing this referral with the Board. The respondents also assert that the matter which is being referred to the Board is not "arbitrable" because it is not a "grievance", does not allege a violation or breach of the applicable collective agreement, in any event is premature, and is an attempt by the applicants to obtain a preliminary "advisory opinion" about a hypothetical case. The respondents take the position that as this matter is not arbitrable the Board is without jurisdiction. They therefore ask that these proceedings be dismissed. In so doing, the trade union relies upon the provisions of the Labour Relations Act ("the Act") and in particular, section 124, section 71 of the Rules of Procedure and the jurisprudence of this Board and Boards of Arbitration generally in respect of matters relating to "jurisdiction" and "arbitrability".

3. The applicants, Electrical Trade Bargaining Agency of the Electrical Contractors Association of Ontario on behalf of All Contractor Members of the Electrical Contractors Association of Quinte/St. Lawrence and The Electrical Contractors Association of Quinte/St. Lawrence (hereinafter sometimes referred to as "the employer") take a contrary position. They submit that the Board has jurisdiction to hear this referral and that this grievance is arbitrable.

4. In their submissions counsel for the parties acknowledged that there are a number of other issues which arise in this matter. Although "preliminary" issues, those issues appear to be inextricably tied to the "merits". Thus, for example, counsel for the trade union raised an issue as to whether the Electrical Contractors Association of Quinte/St. Lawrence was an appropriate applicant. The parties agreed however that the Board should deal with the issues relating to "jurisdiction" and "arbitrability" referred to in paragraph 2 prior to any adjudication upon the "merits". Counsel for the respondents submits that the Board should rule on those preliminary matters prior to dealing with the merits of the case. He takes the position that we ought not to proceed with any hearing in respect of the merits unless we conclude that we are unable to rule on the "arbitrability" question in the absence of hearing the evidence and submissions of the parties about the merits. Counsel for the respondents asserts that it makes little sense to conduct a two or three day hearing and have the Board then conclude that it is without jurisdiction or that this matter is not arbitrable. In any event counsel for the trade union asks the Board to render a decision which provides some "guidance" to the parties in respect of the preliminary matters referred to in paragraph 2.

5. Counsel for the applicants agrees that a decision in respect of these issues of jurisdiction and arbitrability prior to the commencement of any hearing on the merits is preferable but submits that such a decision is not necessary. She is prepared to proceed with the hearing on the merits and leave the issues with respect to jurisdiction and arbitrability to the end of the case. In anticipation of the Board decision in respect of these issues the parties have agreed upon April 2nd, 6th, and 17th as hearing dates, if necessary, for the continuation of this matter.

6. Before we turn to examine the facts and submissions of the parties, it is useful to set out section 124 of the Act.

124.-(1) Notwithstanding the grievance and arbitration provisions in a collective agreement or deemed to be included in a collective agreement under section 44, a party to a collective agreement between an employer or employers' organization and a trade union or council of trade unions may refer a grievance concerning the interpretation, application, administration or alleged violation of the agreement, including any question as to whether a matter is arbitrable, to the Board for final and binding determination.

(2) A referral under subsection (1) may be made in writing in the prescribed form by a party at any time after delivery of the written grievance to the other party, and the Board shall appoint a date for and hold a hearing within fourteen days after receipt of the referral and may appoint a labour relations officer to confer with the parties and endeavour to effect a settlement before the hearing.

(3) Upon a referral under subsection (1), the Board has exclusive jurisdiction to hear and determine the difference or allegation raised in the grievance referred to it, including any question as to whether the matter is arbitrable, and the provisions of subsections 44(6), (8), (9), (10), (11) and (12) apply with necessary modifications to the Board and to the enforcement of the decision of the Board.

The Facts

7. On January 1, 1990, The Employer Health Tax Act, 1989 (hereinafter referred to as Bill 47) came into force. By letter sent by registered mail to the respondents, counsel for the applicants wrote as follows:

Pursuant to Article 13.04 of the above-noted collective agreement we have been instructed by the Electrical Contractors Association of Ouinte/St. Lawrence and the Electrical Trade Bargaining Agency of the Electrical Contractors Association of Ontario to notify the Union that we will be filing a referral of Grievance to Arbitration Under Section 124, Construction Industry before the Ontario Labour Relations Board. A copy of the grievance is provided herewith for your review.

Enclosed with that letter was a completed copy of Form 104 entitled Referral of Grievance to Arbitration Under Section 124, Construction Industry before the Ontario Labour Relations Board. Paragraphs 5 and 6 of the enclosed form 104 state as follows:

5. The matter referred to be arbitrated:

The Parties disagree as to the interpretation, administration and application of the following provisions of the collective agreement between the Parties:

1. Section 21 -- Local Appendix regarding Local Union 115--Quinte/St. Lawrence and in particular Clause 1000: Deductions and Remittances.

"All employers shall deduct from each employee's wages for all union funds on a per hour earned basis and together with the contribution of the employers ECA Quinte/St. Lawrence Association Fund on a per hour basis and remit the total to a Union - appointed professional administrator," (et cetera).

and Clause 1006:

"In the event that a Government Medicare Plan is established and the Contractors are required to contribute to such a plan, it is expressly understood and agreed that the Contractors contributions to the Medicare Plan are to be paid by the Union Health and Welfare Fund or else the above hourly contributions are to be reduced so that the total contractor combined contribution to both the Union Health and Welfare Fund and the Medicare Plan will not exceed the hourly contribution defined in above item 1000".

The Respondent is requesting that the Applicant Electrical Contractors Association -- Ouinte/St. Lawrence remit full hourly amounts per man hour worked to the Health and Welfare Plan as was done prior to the effective date of the Employer Health Tax Act, 1989, -- Bill 47.

It is the position of the Electrical Contractors Association--Quinte/St. Lawrence, its members, and all employers bound to the aforementioned collective agreement who perform work within the geographic jurisdiction of Local Union 115, that upon the effective date of the Employer Health Tax Act, 1989, Bill 47, that employers are to reduce the amounts referred to in the collective agreement as union funds (Union Health and Welfare Fund) by the amount that the employer is required to pay for each and every employee under the Employer Health Tax Act, 1989--Bill 47, and that this action is totally in compliance with the collective agreement generally and in particular the aforementioned Clause 1006.

6. The date on which the grievance was delivered to the other party:

Jan 23, 1990

8. The parties agree that this letter and Form 104 was sent by registered mail on January 29, 1990 and that nothing was, in fact, delivered on or about January 23, 1990. The parties further agree that there is no question of any prejudice to the respondents because of a lack of notice prior to the filing of the referral of Form 104 with the Board on February 2, 1990. The Form 104 which was filed with the Board on that date is the same as the Form 104 enclosed with counsel's letter sent on January 29, 1990 except for the date upon which it was signed, and except that paragraph 6 indicates that "the date on which the grievance was delivered to the other party" as "January 29, 1990".

Delivery of the written grievance

9. Counsel for the respondents submits that the delivery of the "written grievance" to the other party prior to making a referral of the grievance to the Board is a condition precedent to the Board entertaining a section 124 application. He refers to section 124(2). Counsel submits that the letter sent January 29, 1990, and enclosed Form 104 is not, and cannot be treated as, a "written grievance". A "written grievance" is not the same as a "referral of grievance". He argues that a "written grievance" must be a written, separate document and that section 124 envisions a two-step process. The first step is delivery of that separate document, the "written grievance" under the collective agreement. The second step is the referral of the grievance to arbitration by the Board and the filing of Form 104 with the Board. Counsel asserts the purpose of this two-step process is to enable the parties some time prior to the referral to the Board to attempt to resolve the matter. Counsel submits that the "written grievance" referred to in section 124(2) is the "statement of claim in collective bargaining litigation". It is therefore a separate document which sets forth inter alia, the nature of the impugned conduct, the date and place when the impugned conduct occurred, the provisions of the collective agreement which are alleged to have been violated and the relief claimed. The Form 104 mailed by counsel for the applicant does not set out these matters. That is because Form 104 is simply the prescribed form for processing or "referring" another document, namely "the written grievance" to the Board. In support of these submissions, counsel points to paragraph 6 of Form 104 and argues, in effect, that this paragraph is superfluous if delivery of Form 104 itself is sufficient to constitute delivery of "the written grievance". Counsel cited the Lummus Company Canada Ltd., [1976] OLRB Rep. January 980, Arthur G. McKee of Canada Ltd., [1978] OLRB Rep. April 351, Arlington Crane Service Ltd., [1986] OLRB Rep. April 417, Ontario Hydro, [1987] OLRB Rep. April 574 and Ontario Hydro, [1987] OLRB Rep. Aug. 1079 in support of these submissions.

10. In view of the determination we have made in respect of the "arbitrability" of this grievance, we find it unnecessary to address these submissions of counsel. In the circumstances we have found it necessary to address only the submissions of the parties as to whether the applicants have referred a "grievance", in the sense of a matter that is arbitrable pursuant to the terms of the Act and the collective agreement to which the parties are bound.

Arbitrability of the grievance

11. Counsel for the respondents submitted that this matter is not arbitrable and is not a grievance as it does not set out, or allege a breach of the Provincial agreement. Paragraph 5 of Form 104 merely indicates that the parties disagree about a particular clause in the collective agreement and recites the respective position of the parties as to their interpretation of that clause. The grievance does not set forth any conduct or misconduct and is premature. Counsel argued that at the time of its delivery a grievance had not yet "crystallized" or "matured" to a stage where it was capable of being litigated. Counsel submitted this was so for two reasons. First, Bill 47 came into force on January 1, 1990. Pursuant to clause 1006 of section 21 of the collective agreement remittances to the Union Health & Welfare Fund (hereinafter referred to as "The Fund") for the month of January 1990 need not be made until February 15, 1990. Therefore, until remittances are due, or must be paid, a cause of action in respect of those remittances has not "jelled" and cannot be litigated.

12. Secondly, counsel argued that at the time of its delivery, conduct which could give rise to a grievance "against" the union had not yet occurred. In fact, counsel for the respondents asserts, it is only when a contractor fails to remit, or reduces the contributions to the fund (with which the respondents do not agree) that a grievance crystallizes and a violation of the collective agreement occurs. In that instance, counsel submits it is only the trade union which has carriage of the grievance and which decides whether and when to grieve against a particular contractor who is in default.

13. Counsel argues that until there is either default by a contractor, and/or until the contractors request the trustees of The Fund to pay the amounts required to be paid by the employer pursuant to Bill 47 with monies from The Fund (which is not the grievance before us) no grievance has "materialized". Upon the happening of either of these events the matter is arbitrable, but the proper parties to that grievance are the local union and the contractor. Until one of those events occurs there is no grievance but merely a disagreement between the parties.

14. Counsel submits that the present matter is therefore an attempt by the applicants to obtain an advisory opinion from this Board about the interpretation of the provincial agreement. Counsel asserts that until the current disagreement between the parties has crystallized in one or the other methods referred to in paragraphs 12 or 13 herein, the issue between the parties is hypothetical and moot. Counsel argues that the applicants' attempt to get an advisory opinion on an academic question ought not to be condoned by the Board for it can lead to untenable results if parties to a collective agreement can come before the Board to determine if a proposed course of conduct violates a collective agreement. Counsel points to the "relief' requested in the grievance as supportive of his position that the applicants are seeking an advisory opinion. The relief requested appears to be a declaration that the employer can reduce the amounts referred to in the collective agreement as "Union Funds" by the amount that the employer is required to pay for each employee under Bill 47. In support of his assertion that the Board does not render advisory opinions or decide academic or hypothetical questions in the abstract, counsel referred to Daynes Health Care Ltd., [1983] OLRB Rep. May 632 and Beverly Enterprises Canada, [1985] OLRB Rep. April 519.

15. Counsel for the applicants submitted that the provisions of the Act specifically provided for the arbitration of grievances concerning the "interpretation, application and administration" of the collective agreement (section 124(1)). She argued that this wording is broad and expansive and does not limit arbitration only to instances where a grievance alleges a violation of the collective agreement. Counsel pointed to the use of the disjunctive word "or" which precedes the phrase "alleged violation of the agreement" in support. Similarly, it was argued, section 124(3) gives the Board jurisdiction to "hear and determine the difference or allegations raised in the grievance". It was asserted that the present application discloses that there is a "difference" between the parties in respect of the "interpretation, administration and application" of a provision in the collective agreement.

16. Counsel for the applicants distinguished both Daynes Health Care Limited, supra (an application under section 63 of the Act) and Beverly Enterprises Canada, supra, (an application under section 89 of the Act) as neither of those two cases involved arbitration by the Board. Counsel submitted that in those cases the jurisdiction of the Board was predicated upon the happening of some event, either a complaint "alleging a contravention" of the Act, or a consummated sale of business (as evidenced for example, by the words "to whom the business has been sold" in section 63). The applications or complaints before the Board in Daynes Health care Ltd. and Beverly Enterprises Canada therefore did involve the Board in an attempt to provide an advisory opinion about a hypothetical situation because the events giving rise to the application or complaint had not yet occurred.

17. Counsel argued, however, that in this instance the applicants were not seeking an advisory opinion about a hypothetical situation or a moot problem. She characterized the dispute between the parties as a "real" problem that arose after the enactment of Bill 47. She submitted that the dispute or differences between the parties would only have been hypothetical had the applicants filed this application prior to January 1,1990 and in effect asked "what do we do if (or when) the Legislature passes this legislation.

18. Counsel states that the applicants are before the Board with a grievance concerning the interpretation of Article 1006 of section 21 of the agreement. She asserted that sound labour relations (and legislative direction in the Act) dictated that this type of dispute between the parties, involving as it does the interpretation of the collective agreement and its continued administration and application, should be resolved in an expeditious fashion through third party arbitration. The applicants should have access to a mechanism of obtaining interpretations other than by unilaterally deducting the amounts the employer is required to pay for each employee under Bill 47 from the remittances it makes to The Fund (thereby, at least according to the respondents, violating the collective agreement). Counsel for the applicants disagreed with counsel for the trade union's position that it is only the trade union (and not these applicants) which can have carriage of this type of grievance involving remittances to The Fund. Counsel also disagreed that the union has carriage only after a contractor has failed to remit what the union considers are the appropriate amounts. Counsel submits that the type of difference which has arisen between the parties is in respect of a "policy matter" where there has not been a breach by either party. In those instances, either party should have available a mechanism as to how this difference is to be resolved.

19. Before we proceed to address those submissions we wish to emphasize that what we are being asked to determine at this preliminary stage is whether we can, or should, proceed to hear and rule upon the "merits" of this application. We are not, at this stage, asked to decide which of the opposing positions or interpretations of Article 1006 is correct. Which of the two disputed interpretations of Article 1006 is ultimately found to be correct is a matter which would obviously involve findings of fact and an analysis of the various provisions of the collective agreement. Although both counsel referred to Article 1006 in their submissions as to arbitrability, counsel made no submissions, or at best only certain peripheral comments, about the scope, meaning and application of that article. Counsel did indicate they were in dispute as to whether Bill 47 was a "government Medicare Plan", whether the employer made "contributions" to that plan, whether the contractors made contributions to The Fund or merely remitted monies deducted from employees, and as indicated earlier the standing of certain party applicants to this grievance.

20. Although both counsel characterized this preliminary issue in respect of "arbitrability" as one dealing with whether the Board does or does not have the "jurisdiction" to entertain this grievance, we are of the view that it is a misnomer to refer to this as a matter which goes to our "jurisdiction" as that term is commonly understood. It may be that we have the "jurisdiction" to hear and determine the grievance but that nevertheless we should not arbitrate the grievance at this time because it is premature or seeks an advisory opinion. It is for this reason that we find that the issues raised by counsel in this preliminary motion are more appropriately characterized by asking the question - should this matter be adjudicated by the Board at this time and in this manner? That question and the submissions of counsel highlight the crux of the dispute between the parties regarding this preliminary motion. That dispute centers on what type of "difference" relating to the "interpretation" of an agreement is "arbitrable", and when is that "difference" arbitrable at the instance of either party to the agreement.

21. Both section 44 and the combined effect of sections 124(1) and (3) provide for arbitration of all "differences" between the parties. The differences must "arise from" or "relate to" (to use the language of sections 44(1) and (2)) or "concern" (to use the language of section 124(1)) the "interpretation, application, administration or alleged violation of the agreement." The meaning which is ascribed to the word "difference" can therefore have a significant impact upon when, and what type of matters or issues are arbitrated.

22. We do not view the statutory language or the language found in the collective agreement to be so broad or sweeping as to enable arbitration of any difference regarding the interpretation of a collective agreement at any time. If "difference" is given to the broad, liberal and expansive construction which counsel for the applicants advocates, it would permit the parties to a collective agreement to review, through grievance arbitration, their respective conflicting positions regarding any clause of the collective agreement at any time. It would equally permit either party to a collective agreement to either challenge, or seeks approval for proposed conduct or action so long as that proposed conduct or action could be linked to some collective agreement clause which requires "interpretation, administration or application". Such a construction of what type of "difference" is arbitrable could ultimately lead to "management by arbitration". Either party could turn to a Board of arbitration to seek an "interpretation" about any and all matters pertaining to the collective agreement and its continued "application" and "administration". From a labour relations perspective, to permit either party to obtain an "interpretation" of a collective agreement provision so long as the parties "differed" about the proper interpretation of that provision (without reference to such factors as, for example, the nature of the grievance, the relief requested and the stage which the "difference" has reached) could lead to labour relations discord, and a lack of accountability on behalf of the parties to the collective agreement. Pursuant to such construction, for example, while parties are negotiating for the renewal of an existing collective agreement, either party could apply to have arbitrated their "difference" about the appropriate "interpretation" to be placed on provisions which are or could then be made to be the subject of debate and negotiation at the bargaining table.

23. After consideration of all the circumstances we have determined that, assuming we have the jurisdiction, we ought nevertheless not proceed with a hearing of the merits of this grievance at this time and under the present circumstances. In our view, the grievance is premature. Moreover, although we are asked to "interpret" the collective agreement, we do not view the conflicting positions of the parties in respect of article 1006 to be the type of "difference" for which the statute or their own collective agreement intends to impose binding arbitration in circumstances such as those presently before us. Rather, this grievance seeks an advisory opinion from this Board, by way of a request for discretionary declaratory relief about a "difference" which has not yet crystallized. Notwithstanding counsel's assertions to the contrary, in effect the applicants come before the Board because they want to know what would happen if the contractors made remittances to the Fund but deducted from that the amount each employer is required to pay for each employee under Bill 47.

24. In this instance, the identity of the grieving party and the nature of the grievance, and the relief requested are critical factors in determining whether the asserted "difference" should be adjudicated upon its merits at this time. The applicants seek declaratory relief that their interpretation of clause 1006 is correct and that if the contractors deduct the amounts they must pay under Bill 47 from the amounts they remit to the Fund "... this action is totally in compliance with the collective agreement ..." We note that declaratory relief is a matter of discretion. Assuming we have the jurisdiction we would not grant such declaratory relief in the circumstances of this case. The only purpose for such declaratory relief in this case is to constitute some authority for use by these applicants or other similarly situated as justification for deducting certain amounts from the monies they would otherwise remit to the Fund.

25. In this instance, the applicants who want the Board to exercise its discretion in their favour have control over whether the present "difference" between the parties regarding the interpretation of clause 1006 ever becomes more than a mere difference of opinion. In effect, then the applicants wish to adjudicate the "difference" between the parties about the interpretation of clause 1006 although they have not taken any action (save for the filing of this grievance) in which their position is asserted in concrete form. They are in effect seeking approval for proposed conduct although there is no indication that such conduct will actually occur. Moreover, the applicants wish to adjudicate this "difference" between the parties about the interpretation of clause 1006 essentially on the basis of assumed conduct (i.e. deductions from the amounts otherwise remitted to the Fund) notwithstanding their position that clause 1006 may provide another option namely payment of the amounts required to be paid by the employer pursuant to Bill 47 by the trustees of the Fund with monies from the Fund. From the submissions of the parties it is apparent that their "difference" in respect of clause 1006 can occur in more than one context or fact situation i.e. contractors fail to remit monies and/or Trustees fail to pay amounts required under Bill 47 with monies from the Fund. Yet the applicants desire adjudication of the "difference" regarding the appropriate interpretation of clause 1006 without the establishment of a firm factual context and without having exercised either of the two options it asserts are open to contractors bound to the collective agreement. In our view, the grievance is therefore premature because, at this stage of the "difference" there is no concrete issue between the parties, only a potential issue. In our view, the statutory language is not so broad as to require arbitration of "differences" if such arbitration is premature and a predetermination of potential disputes. Certainly these are not circumstances in which we would grant declaratory relief of the type requested here assuming we had the jurisdiction to arbitrate this difference in respect of the interpretation of the agreement.

26. The labour relations adjudicative process generally deals with and interprets language (found in either a statute such as the Labour Relations Act or a collective agreement) in the context of a particular situation and determines what rights or consequences flow from that language in light of that situation or context. Thus, for example, the collective agreement between these parties provide for the grieving and arbitration of individual and policy grievances (by either party) after the grieving party became aware, or reasonably should have been aware, of the "incident" giving rise to the grievance.

27. In the circumstances of this case whether the "incident" which can give rise to an arbitrable "difference" actually occurs lies within the control of the applicant grievors and the contractors on whose behalf it has filed this grievance. In our view, this grievance is premature because there has not been any "incident" which can give concrete form to the difference between the parties. We do not agree that the enactment of Bill 47 can be characterized as the "incident". It is not the enactment of Bill 47 which gives rise to this grievance. It is the parties differing opinions about clause 1006 which gives rise to this grievance.

28. Neither the Act nor the collective agreement provides for the arbitration of policy grievances which have not yet crystallized. Neither the Act nor the collective agreement provide for a prospective determination of issues that have not yet become clear and definite. Indeed, by the very language of the collective agreement the parties have indicated that it desirable to have a concrete dispute for adjudication and not merely a difference of opinion. At this stage and in the absence of some further action which focuses the "difference" in respect of the "interpretation" of the agreement we find this grievance has not crystallized and is premature.

29. For these reasons, we dismiss this grievance. This dismissal is without prejudice to either party filing a grievance in the appropriate circumstances. The Registrar is directed to cancel the hearing dates scheduled for the continuation of this matter.