International Brotherhood of Electrical Workers Local Union No. 1739 v. Gilmar Electric Inc., 1990 CanLII 5719

[1990] OLRB Rep. January 20

1063-89-R International Brotherhood of Electrical Workers Local Union No. 1739, Applicant v. Gilmar Electric Inc., Respondent v. Group of Employees, Objectors

BEFORE: Louisa M. Davie, Vice-Chair, and Board Members R. M. Sloan and R. R. Montague.

APPEARANCES: L. A. Richmond for the applicant; James E. Bowden for the respondent; Kaye Joachim for the Ontario Human Rights Commission.

DECISION OF THE BOARD; January 16, 1990

1. By decision of the Board dated September 13, 1989, we found the applicant to be a trade union within the meaning of section l(l)(p) of the Labour Relations Act ("the Act"). We further found that the applicant was an affiliated bargaining agent of a designated employee bar­gaining agency. We also found that this was an application for certification within the meaning of section l(l)(p) of the Act and is a application made pursuant to section 144(1) of the Act. In our decision, we also determined and described the unit of employees of the respondent appropriate for collective bargaining, and determined whether a number of challenged individuals were or were not employees within that bargaining unit on the date of application.

2. As a result of the disagreement of the parties as to whether Mr. Ron Sewell was or was not employed in the bargaining unit on the date of application, a Labour Relations Officer was appointed and authorized to inquire into and report to the Board on the nature of work performed by Ron Sewell on the date of application. The Labour Relations Officer conducted such examina­tion and prepared a report for the Board.

3. A hearing was convened on January 11, 1990 to hear the submissions of the parties as to the conclusions the Board should reach in view of the report and to hear the evidence and repre­sentations of the parties in respect of all matters arising out of this application including but not limited to the request for reconsideration contained in a letter to the Board dated November 8, 1989 from counsel for the respondent.

4. At the commencement of the hearing before us on January 11, 1990, the respondent withdrew its request for reconsideration and, inter alia,the allegations of fraud upon which that request was based and thereby agreed that Mr. Ron Sewell was a registered apprentice electrician.

5. In counsel's letter requesting reconsideration of the Board's decision dated September

13, 1989, counsel also stated:

The respondent also objects to certification on the grounds that the applicant discriminates against its constituents on the basis of age. The Respondent relies on s. 13 of the Labour Rela­tions Act. The Respondent alleges that the Applicant is a party to agreements purporting to be collective agreements including agreements in both the Residential and the (province wide) Industrial, Commercial and Institutional sectors of the construction industry, which on their face discriminate on the basis of age, contrary to the Human Rights Code. The Respondent alleges the applicant is the party which has encouraged such discriminatory language.

6. At the hearing on January 11, 1990, counsel for the Human Rights Commission sought status to intervene in these proceedings. After consideration of the submissions of counsel of the applicant, the respondent and the Human Rights Commission, the Board orally ruled as follows

In this application for certification, the Human Rights Commission seeks Intervener status in view of the fact that the respondent has notified the Commission that it intends to object to the certification of the applicant on the grounds that the applicant discriminates against its members on the basis of age. In this regard, the respondent relies on section 13 and section 48(1)(b) of the Labour Relations Act.

Counsel for the Commission argues that, in as much as this Board may interpret or attempt to interpret what constitutes "discrimination" pursuant to the Human Rights Code, the Commis­sion is "affected" by these proceedings and ought therefore to be granted Intervener status. Alternatively, counsel for the Commission offers its assistance as "friend to the Board" because the Commission is charged with certain responsibilities under the Human Rights Code as out­lined in section 28 of the Code and can therefore offer its expertise to the Board in determina­tions under section 13 and section 48. Counsel argues that as master of our own proceedings, we can grant status to the Commission.

Counsel for the applicant objects to granting the Commission status to intervene. Counsel for the respondent takes no position with regard to the status of the Commission to intervene.

After considering the submissions of the parties, we have determined that the Commission does not have status to intervene in these proceedings and decline to grant the Commission such status. The Board also graciously declines the Commission's offer of assistance as a friend to the Board.

7. Thereafter, we heard the submissions of the parties as to the conclusions we should reach in view of the Labour Relations Officer's report. At the conclusion of those submissions, the Board orally ruled as follows:

The Board finds that on the date of application, Mr. Sewell was engaged primarily in tying down conduit and not in pulling cable or Corofiex. The Board finds that the work of tying down con­duit is part of the installation of conduit and is work of an electrician or an apprentice electri­cian. The mere fact that someone who is not a journeyman or apprentice electrician can or may from time to time perform this work is not determinative. The Board has long recognized that there is an overlap of work, functions and work jurisdictions between and amongst trades. The mere fact that someone who is not a journeyman or apprentice electrician, such as a labourer, can or may do this work does not mean that this is not journeyman or apprentice electrician work, anymore than the fact that if a labourer does the work, that labourer does not become a journeyman or apprentice electrician by reason of performing the work.

We therefore find that Mr. Sewell was employed in the bargaining unit on the date of applica­tion and is properly included on the list of employees.

8. The only issue which remained outstanding thereafter was the respondent's assertion that the applicant could not be certified by reason of the provisions of section 13 of the Act. At the hearing, reference was also made to section 48(1)(b) of the Act. These sections provide:

9. The Board shall not certify a trade union if any employer or any employers' organization has participated in its formation or administration or has contributed financial or other support to it or if it discriminates against any person because of any ground of discrimination prohibited by the Human Rights Code, 1981 or the Canadian Charter of Rights and Freedoms.

10. 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,

(b) if it discriminates against any person because of any ground of discrimina­tion prohibited by the Human Rights Code, 1981 or the Canadian Charter of Rights and Freedoms.

9. Counsel argued that the provisions of the collective agreement between the Electrical Trade Bargaining Agency of the Electrical Contractors Association of Ontario and the Interna­tional Brotherhood of Electrical Workers and the IBEW Construction Council of Ontario (herein­after referred to as the Provincial ICI collective agreement) to which this respondent would become automatically bound by operation of law upon certification (by reason of the province-wide bargaining provisions found in the Act) were discriminatory. Counsel argued that the collec­tive agreement discriminates against persons by reason of their age, that such discrimination is pro­hibited by the Human Rights Code, 1981 ("the Code") and that therefore the Board could not cer­tify the applicant. In support, counsel pointed to the following articles found in the collective agreement.

704 OLDER EMPLOYEES

Where five or more Journeymen are employed every fifth Journeyman shall be 50 years of age or older, where available.

1906 STOREKEEPER

Where there is a full time Electrical Storekeeper required on a project, he shall be a journeyman electrician and preference shall be given to older members.

SECTION 21- LOCAL APPENDIX - L.U. 105 - HAMILTON

Clause 603

The Contractor agrees to exercise sound reasoning in the proper placement of employees, with respect to age and ability to climb. No employee shall be discriminated against for refusal to climb.

SECTION 21- LOCAL APPENDIX - L.U. 804- CENTRAL ONTARIO

Clause 900 J.5

HEIGHT PAY - CONDITIONS AND RATES

(c) Contractor agrees to exercise sound reasoning in the proper placement of employees with respect to age and ability to climb.

10. Counsel for the applicant asserted that these provisions were not discriminatory. In the alternative, he submitted that if these provisions were discriminatory, they were nevertheless not prohibited by the Code by reason of the "affirmative action" or "special programs" provision found in section 13 of the code. That section provides:

13.-(1) A right under Part I is not infringed by the implementation of a special program designed to relieve hardship or economic disadvantage or to assist disadvantaged persons or groups to achieve or attempt to achieve equal opportunity or that is likely to contribute to the elimination of the infringement of rights under Part I.

11. We heard the evidence of Mr. Ralph Tersigni. Mr. Tersigni is an International Presi­dent of the International Brotherhood of Electrical Workers. He is, and has been involved in both the negotiation and administration of the Provincial ICI collective agreement. Mr. Tersigni tes­tified that each of the impugned articles has been in the province-wide ICI collective agreement at least since the advent of province-wide collective bargaining. Mr. Tersigni testified that clause 7.04 is applied only in lay-off situations and was negotiated to provide some measures of job security for the older tradesmen who had been employed in the construction trade for many years. In view of the hiring hall system prevalent in the construction industry, the temporary nature of work in that industry and the transient nature of persons employed in the industry, "typical" seniority provi­sions which attempt to equate job security with length of service are rare in collective agreements pertaining to the construction industry. Mr. Tersigni testified that the impugned provision was an attempt by the union to provide some security for older workers because, the trade union's experi­ence had been that, in cases of lay-off, employers were laying off older members of the union before the younger members. Mr. Tersigni attributed this fact to the perception that perhaps the older members were somewhat slower than younger members either by mere reason of age or because they might have experienced a previous accident on site. Similarly, clause 1906 and the "climbing provisions" in the local appendices were designed to provide job security to older mem­bers of the union by providing them preferred access to the less physically demanding jobs. Mr. Tersigni spoke of all these provisions as indicative of the respect which younger members of the trade accorded older members who had, in the past devoted themselves to working in the trade.

12. Mr. Tersigni was not aware of any grievances by any younger members who claimed to be materially affected by these provisions, nor was he aware of any hardships placed upon younger members employed in the trade as a result of these provisions. There have been no proposals put forth by any member of the union to remove these provisions, and indeed any proposals which have been made in respect of these provisions have been to "strengthen them".

13. We do not propose to set out the exhaustive arguments made by both counsel or the cases to which they referred. In our view, these provisions of the collective agreement do not dis­criminate against any person because of any ground of discrimination prohibited by the Code, within the meaning of sections 13 and 48(1)(b) of the Act. We agree with and adopt the decision of the Supreme Court of Canada in Andrews v. Law Society of British Columbia 1989 CanLII 2 (SCC), 56 D.L.R. (4th) 1 (S.C.C.) that not every distinction or differentiation between the treatment of groups or individu­als amounts to "discrimination".

14. In our view, the words "discriminate" and "discrimination" contain their own inherent limits. As stated in Andrews, supra and certainly in the context of sections 13 and 48(1)(b) of the Act, we must also look to whether there is a discriminatory effect as a result of these provisions.

15. The effect of the impugned provisions of the collective agreement are to provide some accommodation, security, recognition and assistance to those members of the trade who have spent many of their years employed in the trade. The purpose and effect of the provisions are not motivated by any malice or based on any invidious reasons. Indeed, the purpose and effect of the provisions are reasonable and laudable and were negotiated for sound, cogent labour relations and proper purposes. There is no evidence to suggest that the provisions have caused any adverse or improper effects. We note parenthetically that it is the respondent employer and not any individual employee complaining that these provisions of the collective agreement are discriminatory.

16. Finally, we note that the provisions have been in existence for many years and appear to be well accepted, not only by the trade union but equally by the designated employer bargaining agency with whom the trade union negotiates.

17. Under these circumstances, we are of the view that these provisions in the collective agreement do not prohibit the certification of the trade union by reason of section 13 of the Act. Similarly, the presence of these provisions of the collective agreement do not cause us to conclude that the collective agreement should be deemed not to be a collective agreement pursuant to sec­tion 48(1)(b) of the Act.

18. The Board is satisfied on the basis of all the evidence before it that more than fifty-five percent of the employees of the respondent in the bargaining unit, at the time the application was made, were members of the applicant on August 4, 1989, the terminal date fixed for this applica­tion and the date which the Board determines, under section 103(2)(j) of the Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act.

19. Pursuant to section 144(2) of the Act, which states in part as follows, provides for the issuance of more than one certificate if the applicant has the requisite membership support:

……..,the Board shall certify the trade unions as the bargaining agent of the employees in the bar­gaining unit and in so doing shall issue a certificate confined to the industrial, commercial and institutional sector and issue another certificate in relation to all other sectors in the appropriate geographic area or areas.

[emphasis added]

20. Therefore, pursuant to section 144(2) of the Act, a certificate will issue to the applicant affiliated bargaining agent on its own behalf and on behalf of all other affiliated bargaining agents of the employee bargaining agency named in paragraph 3 of our decision dated September 13, 1989 in respect of all journeymen and apprentice electricians in the employ of the respondent in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario, save and except non-working foremen and persons above the rank of non-working foreman.

21. Further, pursuant to section 144(2) of the Act, a certificate will issue to the applicant trade union in respect of all journeymen and apprentice electricians in the employ of the respon­dent in all sectors of the construction industry in the County of Simcoe and the District Municipal­ity of Muskoka, excluding the industrial, commercial and institutional sector, save and except non-working foremen and persons above the rank of non-working foreman.