Ontario Labour Relations Board

[1991] OLRB Rep. December 1362

3222-90-U; 3223-90-U The Electrical Trade Bargaining Agency of the Electrical Contractors Association of Ontario and the Electrical Contractors Association of Toronto, Complainants v. The International Brotherhood of Electrical Workers, Local 353, Joe Fashion, Bob Gill & Bill Martindale and others, Respondents

BEFORE: Ken Petryshen, Vice-Chair, and Board Members W. N. Fraser and J. Redshaw.

APPEARANCES: Scott G. Thompson, Eryl Roberts and Tim English for the complainants; A. M. Minsky, P. Trudene and Joe Fashion for the respondents.

DECISION OF THE BOARD; December 9, 1991

1. The Board has before it a section 89 complaint and a complaint under section 135 of the Labour Relations Act. In their section 89 complaint, The Electrical Trade Bargaining Agency of the Electrical Contractors Association of Ontario and the Electrical Contractors Association of Toronto allege that the International Brotherhood of Electrical Workers, Local 353 ("Local 353"), Joe Fashion, Bob Gill and Bill Martindale have contravened sections 70, 74, 76, 78 and 146 of the Act. The complainants rely on the identical particulars in the section 89 complaint to support their complaint under section 135 of the Act. This latter application is designed to remedy the respondents' alleged unlawful strike conduct.

2. At the first day of hearing, the Board entertained submissions on motions made by counsel for the respondents. Counsel argued that the Board should not hear the merits of the two matters for three reasons. Counsel argued that the application and complaint do not make out a prima facie case for the remedy requested, that they both lack adequate particulars and should be dismissed and that the essence of both complaints is a contractual dispute between the parties which should be deferred to the arbitration process.

3. In dealing with the motions, the Board has accepted as true the particulars filed with the complaints. Those particulars are as follows:

4. The Electrical Trade Bargaining Agency of the Electrical Contractors Association of Ontario ("ETBA") is the designated employers' bargaining agency which was designated by the Minister of Labour on December 12, 1977 under section 127(1)(b) [now 139(l)(b)] to represent in bargaining in the industrial, commercial and institutional sector of the construction industry all employers whose employees are represented by the International Brotherhood of Electrical Workers, the IBEW Construction Council of Ontario ("IBEW/IBEW-CCO") and the various affiliated bargaining agents including IBEW, Local 353 (the "Local Union").

5. The Electrical Contractors Association of Toronto ("ECAT") is both a constituent member of the ETBA which represents its employer members in the ICI sector as well as an accredited employers organization representing employers whose employees are represented by IBEW Local 353 in the residential sector of the construction industry for Board Area 8.

6. The Local Union is an affiliated bargaining agent affiliated to the IBEW/IBEW-CCO which is the employee bargaining agent which was designated by the Minister of Labour on December 12, 1977 under section 127(1)(a) [now 139(1)(a)] to represent in bargaining in the industrial, commercial and institutional sector of the construction industry all Journeymen and Apprentice Electricians and Journeymen and Apprentice Linemen represented by the affiliated locals of the IBEW.

7. The ETBA as well as the employers it represents, the IBEW/IBEW-CCO and the Local Union as well as the employees they represent are bound by a provincial agreement between the ETBA and the IBEW/IBEW-CCO which expires April 30, 1992 (the "Principal Agreement"). ECAT and the Local Union are also bound by the relevant provisions of the Principal Agreement with respect to the residential sector in Board Areas 8.

8. On or about the week of February 25, 1991 it came to the attention of the ETBA and ECAT that when contractors requested a name hired foreman from the Local Union pursuant to Section 700 of the Principal Agreement, the Local Union is asking the contractor to sign a declaration, a copy of which is attached as schedule "1" (the "Contractor's Declaration"). The Contractor's Declaration is as follows:

DECLARATION

(Name of Company)

ACKNOWLEDGES THAT:

1. THEY HAVE REQUESTED LOCAL 353, IBEW TO DISPATCH

(Name of Member)

TO WORK AS A NAME HIRE FOREMAN TO THE TERMS OF THE COLLECTIVE AGREEMENT.

2. UPON THE DEMOTION OF

(Name of Member)

FROM THE POSITION OF FOREMAN, HIS EMPLOYMENT WITH THE COMPANY WILL BE TERMINATED IMMEDIATELY.

3. THE COMPANY FURTHER ACKNOWLEDGES THAT IF IT FAILS TO COMPLY WITH THIS DECLARATION IT WILL BE IN BREACH OF THE COLLECTIVE AGREEMENT AND LOCAL 353 RESERVES THE RIGHT TO PURSUE SUCH BREACH AT THE ONTARIO LABOUR RELATIONS BOARD.

DATED AT THIS DAY OF ,19

SIGNATURE - ON BEHALF OF THE COMPANY

6. At the same time it came to the attention of the ETBA and ECAT that the Local Union is forcing its members, who are name hired as foremen pursuant to Section 700 of the Principal Agreement to sign a document, a blacked out sample of which is attached as Schedule "2" (the "Member's Declaration"). The Member's Declaration is as follows:

DECLARATION OF NAME HIRE FOREMAN

I CARD NO.

ACKNOWLEDGE THAT:

1. I HAVE BEEN DISPATCHED BY LOCAL 353, IBEW TO WORK AS A NAME HIRE FOREMAN FOR________________________

(Name of Company)

2. AS A NAME HIRE FOREMAN I AGREE I DO NOT WORK WITH THE TOOLS AND I WILL NOT TAKE A TRANSFER FROM THE ASSIGNED JOB SITE.

3. THE WORKING RULES AND REGULATIONS OF LOCAL 353 IBEW STATE THAT UPON MY DEMOTION FROM THE POSITION, I MUST FORTHWITH RETURN TO THE OUT OF WORK LIST AT THE OFFICE OF LOCAL 353, IBEW.

4. IF I FAIL TO CEASE EMPLOYMENT WITH _________________ (Name of Company)

UPON MY DEMOTION FROM THE POSITION OF FOREMAN, I UNDERSTAND THAT LOCAL 353 RESERVES THE RIGHT TO LAY CHARGES AGAINST ME PURSUANT TO THE CONSTITUTION OF THE INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, IF I FAIL TO SIGN THE OUT OF WORK LIST.

DATED AT THIS DAY OF ,19

WITNESS

7. In response the ETBA and ECAT sent a letter to the Local Union, a copy of which is attached as Schedule "3", asking the Local Union to cease and desist this practice immediately. (It is unnecessary to reproduce this letter.)

8. It is the position of the ETBA and ECAT that the Local Union, as well as its officers, officials and agents, through this Member's Declaration is directing name hired foremen to breach the Principal Agreement by directing them not to work with the tools, by directing them not to take a transfer from the assigned job site and by directing them to return to the out of work list upon being demoted from the position of foremen. In addition the Local Union, as well as its officers, officials and agents, is intimidating and coercing the name hired foremen into signing the declaration and counselling, supporting and encouraging them to breach the Principal Agreement by threatening to lay charges against the name hired foremen, as members of the Local Union, if they fail to comply with the coerced Member's Declaration and breach the Principal Agreement as directed by the Local Union.

9. It is the position of the ETBA and ECAT that this conduct contravenes Section 70 of the Labour Relations Act, R.S.O. 1980, c. 228 in so far as the Local Union, as well as its officers, officials and agents, through this conduct is seeking by intimidation and coercion to compel the name hired foremen, who are employees covered by the Principal Agreement and represented by the Local Union, to refrain from exercising their rights and from performing their obligations under the Principal Agreement and the Labour Relations Act, R.S.O. 1980, c. 228.

10. It is the position of the ETBA and ECAT that this conduct also contravenes Section 74 of the Labour Relations Act, R.S.O. 1980, c. 228 in so far as the Local Union, as well as its officers, officials and agents, have through this conduct called or authorized or threatened to call or authorize an unlawful strike or have counselled, procured, supported or encouraged an unlawful strike or threatened an unlawful strike.

11. It is the position of the ETBA and ECAT that this conduct also contravenes Section 76 of the Labour Relations Act, R.S.O. 1980, c. 228 in so far as the Local Union, as well as its officers, officials and agents, through this conduct have done acts they know or ought to know that, as a reasonable and probable consequence of those acts, the name hired foremen will engage in unlawful strikes.

12. It is the position of the ETBA and ECAT that this conduct also contravenes Section 78 of the Labour Relations Act, R.S.O. 1980, c. 228 in so far as the Local Union, as well as its officers, officials and agents, through this conduct have indicated their intent to suspend, expel or penalize name hired foremen if they refuse to engage in or to continue to engage in strikes that would be unlawful under the Labour Relations Act, R.S.O. 1980, c. 228.

13. It is the position of the ETBA and ECAT that this conduct also contravenes Section 146 of the Labour Relations Act, R.S.O. 1980, c. 228 in so far as the Local Union, as well as its officers, officials and agents, through this conduct have bargained for or attempted to bargain for or conclude a collective agreement or other arrangement affecting employees represented by the Local Union as an affiliated bargaining agent other than the Principal Agreement.

14. The complainants request the Board to make the following directions and orders:

a) The Complainants request the Board to direct and order the Respondents to cease and desist from engaging in any conduct that contravenes sections 70, 74, 76, 78, or 146 of the Labour Relations Act, R.S.O. 1980, c. 228.

b) The Complainants request the Board to direct and order the Respondents to cease and desist from requiring their members who are name hired foremen to sign the Member's Declaration and to cease and desist from asking contractors to sign the Contractor's Declaration.

c) The Complainants request the Board to direct and order the Respondents to post a notice and mail a copy to all affected persons acknowledging their breaches of the Labour Relations Act, R.S.O. 1980, c. 228 and confirming their intention to cease and desist from similar breaches in the future.

d) The Complainants request the Board to direct and order that any executed Member's Declarations or Contractor's Declarations are null and void.

e) The Complainants request the Board to direct and order the Respondents to cease and desist from bargaining for, attempting to bargain for or concluding any similar arrangements that differ from or undermine the provisions of the Provincial Agreement in the future.

f) The Complainants request the Board to direct and order the Respondents to compensate all contractors and name hired foremen who may have suffered damages, including interest, as a result of the Respondents' conduct.

g) Such further and other relief as may be appropriate in the circumstances.

5. Section 700 of the Provincial Agreement portion of the Principal Agreement provides that:

700 HIRING

The Contractor agrees to hire and employ only members of the International Brotherhood of Electrical Workers on all electrical work. The Contractor shall have the right to select and name-hire all Foremen. When making appointments to the Foreman level, the Employers will give consideration to those Journeymen they presently employ. All hiring will be done through the Local Union Office and no one will be employed unless they are in possession of a clearance card from the Local Union Office.

6. The Board does not propose to set out counsel's submissions in detail. Counsel for the complainants took the position that both complaints disclose a prima facie case for the relief requested and submitted that the Board should entertain both matters. The essence of the complainants' position is that the declarations on their own constitute a contravention of Section 700 of the Provincial Agreement. The complainants submit that the conduct of the respondents has resulted in an "other arrangement" within the meaning of section 146(2) of the Act. By threatening to lay charges under its Constitution against the name-hired foremen, as members of Local 353, the complainants argue that the respondents contravene section 70 of the Act when they attempt to compel Local 353 members to execute the members' declaration and allegedly breach the Principal Agreement. With respect to the alleged contraventions of sections 74, 76, 78 and 135 of the Act, the complainants argue that the effect of the respondents' conduct constitutes at least a threat of an unlawful strike since members acting as name-hired foremen could engage in conduct which would constitute a strike.

7. As noted earlier, counsel for the respondents takes the position that the complaints do not disclose a prima facie case. Concerning the alleged breach of section 70, counsel submitted that the complainants have no status to obtain a remedy on behalf of members of Local 353. Alternatively, counsel submitted that even if the complainants did have status, they did not plead any facts concerning the purpose and conduct elements of section 70 from which one could conclude a prima facie case has been made out. With regard to the illegal strike allegations, counsel asserted that the complainants have not pleaded any facts to support the alleged contraventions of sections 74, 76, 78 and 135 of the Act. Counsel notes as well that the complainants have no status to seek a remedy for the alleged section 78 contravention. Counsel submits that the complainants' allegations that the respondents have contravened section 146(2) of the Act is misconceived. This is not a situation, he argues, where an attempt is being made to circumvent the provisions of a provincial agreement. Rather, he suggests that the respondents are attempting to enforce Section 700 of the Agreement and that the essence of the dispute between the parties centres on the interpretation of Section 700. This is why, as well, counsel maintains in the alternative that the complaints should be deferred to the arbitration process.

8. The positions advanced by counsel for the respondents have considerable merit. The complainants do not have status to complain on behalf of members of Local 353 concerning the sections 70 and 78 allegations. If Local 353 members have concerns about the conduct of the respondents, it is up to them to complain. See, Rexdale Heating Limited, [1974] OLRB Rep. March 115 and Re: C.L.R.B. and Transair Ltd., 1976 CanLII 170 (SCC), 67 D.L.R. (3d) 421 (S.C.C.). In any event, the facts pleaded by the complainants do not disclose a prima facie case for the remedy requested with respect to the section 70 allegation. The Board has reached the same conclusion concerning the allegations made in support of a contravention of sections 74, 76, 78 and 135 of the Act. The complainants have not pleaded facts, which, if true, would lead the Board to conclude that illegal strike activity has occurred or had been threatened having regard to the definition of "strike" in the Act. In response to a question about where in the pleadings is there the assertion that two employees refused to work in concert, counsel for the complainants responded that when all the evidence is before the Board, the facts may reveal a contravention of the strike provisions. In other words, counsel was unaware of circumstances where two name-hired foremen employed by the same contractor refused to work in concert. The complainants are merely speculating that such circumstances might exist and are not in a position to assert that they do. Therefore, the Board finds that the complaint under section 135 of the Act does not disclose a prima facie case for the remedy requested and accordingly, dismisses the complaint in Board File No. 3222-90-U. The Board also finds that the section 89 complaint in Board File No. 3223-90-U does not disclose a prima facie case for the remedy requested with respect to the allegations that the respondents contravened sections 70, 74, 76 and 78 of the Act and accordingly, the complaint is dismissed with respect to those allegations.

9. Even if the Board had determined that a prima facie case had been made out with respect to the above allegations, it would nonetheless have refused to hear the complaints and would have deferred them to the arbitration process. As the submissions of counsel for the complainants disclose, the complainants' positions are based on their conclusion that the respondents are violating Section 700 of the Collective Agreement. The same can be said with respect to the complainants' position in the section 146(2) allegation. Armed with their interpretation of Section 700, the complainants argue that the respondents are engaging in conduct with contractors which constitutes an "other arrangement". Believing that their interpretation of Section 700 is the correct one, the respondents take the position that they are simply attempting to ensure that their members and contractors comply with the provision. The Board agrees that the dispute between the parties is essentially a contractual dispute concerning the interpretation of Section 700 of the Collective Agreement. In the Board's view, the situation before us is factually distinct from the circumstances before the Board in C.F. Lummus Canada Ltd., [1983] OLRB Rep. Sept. 1504. After considering the nature of the section 146(2) allegation, the Board finds it appropriate to exercise its discretion to defer that aspect of the section 89 complaint to the arbitration process.

10. Accordingly, the section 89 complaint in Board File No. 3223-90-U and the section 135 complaint in Board File No. 3222-90-U are hereby dismissed.