Ontario Labour Relations Board

[1992] OLRB Rep. April 435

3506-91-U Electrical Contractors Association of Sarnia, Complainant v. Electrical Trade Bargaining Agency of the Electrical Contractors Association of Ontario, International Brotherhood of Electrical Workers, and the IBEW Construction Council of Ontario, Respondents

BEFORE: M. G. Mitchnick, Chair, and Board Members D. A. MacDonald and C. A. Ballentine.

APPEARANCES: Bruce Binning, Andy Pilat and Lawrence Brander for the complainant; Scott G. Thompson, Karen Petrie, Eryl Roberts and Peter Bryant for the respondent Electrical Trade Bar­gaining Agency; A. M. Minsky, Ralph Tersigni, Pat Dillon and Donald Lounds for the IBEW and the IBEW Construction Council of Ontario.

DECISION OF THE BOARD; April 3, 1992

1. In this complaint under section 91 (formerly 89) of the Labour Relations Act the com­plainant seeks to set aside the settlement arrived at by the employer and employee bargaining agencies for the "electrical-trade" portion of the ICI sector of the construction industry, with respect to the renewal of the province-wide collective agreement expiring April 30th, 1992. There is a question, as will be seen, whether the complainant really is the "Electrical Contractors Associ­ation of Sarnia", but the respondents have agreed to drop their objection in that regard, rather than simply having the matter brought back on in the name of particular contractors.

2. The complaint and agreed statement of facts before the Board make reference to the R.S.O. 1980 section designations of the Act, and the Board for the benefit of consistency will do so here as well. The complaint states:

The Complainant complains that it has been dealt with by the Respondent contrary to the provi­sions of sections 142, 143, 146 and 151 of the Labour Relations Act.

The Complainant is a member of the Respondent, Employer Trade Bargaining Agency of the Electrical Contractors Association of Ontario ('Employer Trade Bargaining Agency"), and as such represents employers for whom the other Respondents have bargaining rights in the Sarnia Area. The Respondents are the designated Employer and Employee Bargaining Agents respec­tively and are subject to the Province-Wide Bargaining Sections of the Ontario Labour Relations Act ("the Act"), and in particular Sections 142, 143, 146 and 151. On or about the 9th day of December 1992 the Respondents entered into an arrangement, a copy of which is attached hereto as Schedule "B", contrary to the provisions of 5. 146(2) of the Act. Also in entering into that arrangement, the Respondents have exceeded the authority given to them under 5. 142 and 143 of the Act. Further, the Respondents, in attempting to amend the existing Provincial Agree­ment, a copy of which is attached hereto, and changing the terms and conditions of that Agree­ment, have acted in bad faith contrary to 5. 151 of the Act. The Complainant did n t agree with the arrangement set out in Schedule "B".

3. "The arrangement set out in Schedule B" will be described in more detail hereunder, but at the outset it should be noted that the Electrical Trade Bargaining Agency of the Electrical Contractors Association of Ontario (the "ETBA") was designated by the Minister of Labour on December 12, 1977 as the designated employer bargaining agency under section 139(b) of the Labour Relations Act, R.S.O. 1980, c. 228 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 or the IBEW Construction Council of Ontario or any affiliated locals, including IBEW Local 530 of Sarnia. The International Brother­hood of Electrical Workers and the IBEW Construction Council of Ontario (the "IBEW-CCO") were jointly designated by the Minister of Labour on December 12, 1977 as the designated employee bargaining agency under section 139(b) of the Labour Relations Act, R.S.O. 1980, c. 228 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 International Brotherhood of Electrical Workers or any affiliated locals, includ­ing IBEW Local 530. It was agreed that all of the facts on which the case would be argued would be as set out in certain documents and the ETBA's brief, subject to some minor oral elaborations that were made by counsel at the hearing.

4. The current Principal Agreement, which expires April 30, 1992, contains within it the Provincial Section, "the blue pages", setting out those provisions of province-wide application in the ICI sector of the construction industry. The parties note that the Provincial Section must be read in conjunction with the appropriate Local Appendix found in the Local Appendices Section, the white pages, in order to have a complete understanding of what provisions apply in the ICI sec­tor for a particular geographical area. It might be noted that this particular Provincial Agreement goes beyond the ICI sector (and indeed "construction") itself, and covers both Maintenance and Residential work as well.

5. The current Principal Agreement, which expires April 30, 1992, was settled after a strike/lockout which lasted approximately eight weeks and concluded on July 5, 1990. This was not the first strike/lockout for these parties. In fact since the advent of province-wide bargaining in 1978 the negotiations between the parties have resulted in a strike in 1982, which lasted approxi­mately one week (5 working days); a strike in 1986, which lasted approximately two and one half weeks (14 working days); a strike in 1988, which lasted approximately three weeks (17 working days); and a strike/lockout in 1990, which lasted approximately eight weeks (39 working days). This means that the parties were only able to settle a collective agreement without resorting to a strike/lockout in 1978, 1980 and 1984. This pattern, including the increasing duration in time and severity in lost person hours of these strikes, was of serious concern to both the IBEW-CCO and the ETBA, because it was recognized that the economic harm inflected by the strike/lockout pro­cedure was detrimental to both the members represented by the IBEW-CCO and the contractors represented by the ETBA. Therefore, a commitment between the ETBA and the IBEW-CCO was made, at the time of the 1990 settlement, to explore other methods of resolving disputes without resorting to the strike/lockout procedure, which commitment was embodied in a handwritten memo from the Ministry of Labour to the parties, and appended to the 1990 Memorandum of Set­tlement. That memo provided:

MEMO TO: ETBA OF ECAO and IBEW/IBEW-CCO

In view of the fact that the above parties to the 1990 negotiations have expressed ver­bally a willingness to meet during the term of the collective agreement to explore the concept of CIR or a similar program with a view to its use between the parties in Ontario ICI negotiations, the Ministry of Labour undertakes to convene a series of meetings commencing within 90 days of ratification. The meetings will conclude not later than October 31, 1991. The purpose of the meetings will be to ensure that a full and intensive effort is made to establish a CIR type of program.

The terms and conditions agreed to by the parties will be subject to ratification by the IBEW membership.

6. As a consequence of this commitment to explore other methods of resolving disputes without resorting to the strike/lockout procedure, the contractor representatives of the ETBA, including a representative of the Complainant, and the business agents of the affiliated locals, among others, jointly spent three days in the fall of 1990 visiting Washington, D.C. to observe how the Council on Industrial Relations for the Electrical Contracting Industry in the United States resolved disputes. The Council of Industrial Relations ("CIR") has existed in the United States since 1920 as a method of resolving both contract renewal and grievance disputes without work stoppages. Although it was recognized that the Council on Industrial Relations could not simply be transplanted into Ontario, the parties remained committed to developing a made-in-Ontario proce­dure for resolving contract renewal disputes without resorting to work stoppages.

7. In January 1991 the contractor representatives of the ETBA, including a representative of the Complainant, and the business agents of the affiliated locals, among others, attended a three-day seminar in negotiation technique at Alliston, Ontario, presented by Bernie Flaherty of Cornell University, based on the principles of "Getting to Yes

8. In late May of 1991, pursuant to the memo attached to the 1990 settlement, the contrac­tor representatives of the ETBA, including a representative of the Complainant, and the IBEW­CCO attended meetings convened in Alliston, Ontario which resulted in a Joint Proposal (the "Joint Proposal") being developed by the parties on May 23, 1991, and which provided as follows:

The Joint Proposal by

the Electrical Trade Bargaining Agency

and

the IBEW Construction Council of Ontario

1. There is a joint union-management commitment to promote unionized con­struction similar to that established in British Columbia. In support of this joint commitment there is to be an assessment of $0.20 over and above the total wage package. This is to be divided equally into two funds to be estab­lished, effective May 1, 1992. One fund which will deal with promoting unionized electrical construction will be jointly trusted by union and man­agement, the other fund will promote union organizing throughout the province and will be trusted solely by the union.

2. The parties agree to develop the Joint Board as an ongoing policy and grievance settlement device. The Joint Board will provide policy decisions and guidelines for the administration of the collective agreement. (It will not however, alter the language of the collective agreement.)

3. There will be early negotiations by both the ETBA and the CCO commit­tees authorized to settle for early implementation.

4. The parties will agree to settle the collective agreement by February 14, 1992. If the parties fail to settle the collective agreement by February 14, all outstanding monetary issues will be referred to final offer selection on Feb­ruary 15, the selector will be appointed before hand by the mutual agree­ment of the parties. The selector will render his decision within one week and that decision will be effective from February 15.

5. After all the other construction trades have settled the Joint Board will review the monetary settlement in comparison with the other trades, whether agreed to or selected by the selector. If the parties fail to agree on an adjustment, the matter will be referred back to the selector who will adjust the settlement to the average of the two highest settlements of the Ontario construction settlements effective as of the date of the ratification of the highest trade.

6. The above procedure is agreed to for the 1992 round of bargaining on a trial basis only. It is agreed that for that round there will be no strike or

lockout.

7. Voting on this matter will be province wide on a one man one vote basis by the membership of the affiliates of the IBEW-CCO.

(emphasis added)

The Joint Proposal was ratified by the ETBA on June 20, 1991 and by the membership of the affili­ates of the IBEW-CCO on October 17, 1991. It had previously been approved by the IBEW (i.e., the International), and by the IBEW-CCO, subject to such ratification by the membership. The Ministry of Labour was present for the tabulation of the mail-in ballot from the membership, and the count was 5,068 in favour, versus 1,749 against. On the ETBA side, the vote was 12-1 in favour of the Proposal, the representative from the Sarnia Association being the only one that voted against it. The Proposal also was approved by the Electrical Contractors Association of Ontario's Board of Directors, which includes a director from Sarnia, on a unanimous basis.

9. The Joint Proposal was executed by the parties on December 9, 1991, and by letter dated the same day, the IBEW-CCO gave the ETBA written notice to enter into negotiations to amend the current Principal Agreement for the period between February 15, 1992 and April 30, 1992, as well as written notice to commence bargaining for the renewal of the current Principal Agreement effective May 1, 1992. Throughout January 1992 and the first two weeks of February 1992 the contractor representatives of the ETBA, including a representative of the Complainant who was on the ETBA's core negotiating committee, and the IBEW-CCO negotiated to amend the current Principal Agreement for the period from February 15, 1992 until its expiry on April 30, 1992, and for the renewal of that Principal Agreement for a further term from May 1,1992 until April 30, 1995. As a result of those negotiations the ETBA and the IBEW-CCO voluntarily settled their outstanding differences on Friday, February 14, 1992, without going to the selector, and entered into two documents which will be set out, being a Memorandum of Amendment and a Memorandum of Settlement. As far as the parties are aware, all electrical contractors in the prov­ince of Ontario have implemented the Memorandum of Amendment, effective February 15, 1992, except for three of the fifteen Sarnia contractors that are represented by the Complainant.

10. The Memorandum of Amendment deals with the changes to the existing collective agreement made effective February 15, 1992, and provides as follows:

MEMORANDUM OF AMENDMENT dated as of the 14th day of February, 1992.

Between:

THE ELECTRICAL TRADE BARGAINING AGENCY

OF THE

ELECTRICAL CONTRACTORS ASSOCIATION OF ONTARIO

(the "Contractor")

• and -

THE INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS

AND

THE IBEW CONSTRUCTION COUNCIL OF ONTARIO representing the following affili­ated Local Unions 105, 115, 120, 303, 353, 402, 530, 586, 773, 804, 894, 1687 and 1739

(the "Union")

The Contractor and the Union agree to amend the current Principal Agreement between them, including any Residential and Maintenance Agreements referred to in Sections 15 and 16 of the Principal Agreement, the Provincial Linework Agreement, the Communications Agreement and the Local Union Appendices of the Principal Agreement which expires April 30, 1992, (the Principal Agreement") on the following terms:

1. Effective February 15, 1992, the Wage Package for the Journeyman Electrician is amended by increasing the Wage Package by One Dollar and Ten Cents ($1.10) per hour.

2. Effective February 15, 1992, the Mileage Allowance, where applicable, will be increased One Cent ($0.01/kin) per kilometer, from Thirty Cents ($0.30/kin) per kilometer to Thirty-One Cents ($0.31/kin) per kilometer.

3. Effective February 15, 1992, the Travel Zone Rates, where applicable, will be increased by Ninety Cents ($0.90) per day.

4. Effective February 15, 1992, the Room and Board Rates in Local Areas 402 and 1687 will be increased by Twenty-Five Cents ($0.25) per hour.

5. Effective February 15, 1992, the Room and Board Rates for all other Local Areas, where applicable, will be increased by One Dollar and Fifty Cents ($1.50) per day.

EXECUTED BY THE PARTIES this 18th day of February, 1992.

The Memorandum of Settlement deals with the period of the renewal collective agreement, now 3 years under the Act, and provides:

MEMORANDUM OF AMENDMENT dated as of the 14th day of February, 1992.

Between:

THE ELECTRICAL TRADE BARGAINING AGENCY

OF THE

ELECTRICAL CONTRACTORS ASSOCIATION OF ONTARIO

(the "Contractor")

• and -

THE INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS

AND

THE IBEW CONSTRUCTION COUNCIL OF ONTARIO representing the following affiliated Local Unions 105, 115, 120, 303, 353, 402, 530, 586, 773, 804, 894, 1687 and 1739

(the "Union")

The Contractor and the Union agree to amend and renew the Principal Agreement between them, which expires April 30, 1992, including any Residential and Maintenance Agreements referred to in Sections 15 and 16 of the Principal Agreement, the Provincial Linework Agree­ment, the Communications Agreement and the Local Union Appendices of the Principal Agree­ment as amended by the Memorandum of Amendment dated as of the 14th day of February, 1992 (the "Principal Agreement") on the following terms:

1. Except where specifically amended by this Memorandum of Settlement, the Principal Agree­ment is renewed for a term of three years from May 1, 1992 until April 30, 1995.

2. Effective May 1, 1992 the attached language changes to the Principal Agreement will be incorporated and take effect in accordance with their terms.

3. Effective May 1, 1992 Local Appendices shall be amended as agreed and signed off by the area ECA and Local Union on or before February 14, 1992.

YEAR ONE

1. The Contractor and the Union acknowledge that the Principal Agreement was amended, effective February 15, 1992 with respect to the Wage Package, Mileage Allowance, Travel Zone Rates and Room and Board Rates, which amendments are reflected in a Memorandum of Amendment dated as of the 14th day of February, 1992, and the Contractor and the Union agree that those amendments shall continue in full force in the new Principal Agreement effec­tive from May 1st, 1992.

2. Effective May 1, 1992 the total Package will be increased by Twenty Cents ($0.20) per hour, as contemplated in the Memorandum of Agreement between the Contractor and the Union dated December 9, 1991, 50 that the Wage Package will be increased by Ten cents ($0.10) per hour, which dime will be applied to the IBEW/CCO Fund increasing the Two Cents ($0.02) per hour to Twelve Cents ($0.12) per hour. In addition, a new Marketing and Promotion Fund will be established which shall not form part of the Wage Package and which shall be funded by Ten Cents ($0.10) per hour being deducted from the Total Package.

YEAR TWO

1. Effective May 1, 1993, the Wage Package for the Journeyman Electrician is amended by increasing the Wage Package by One Dollar and Ten cents ($1.10) per hour.

2. Effective May 1, 1993, the Mileage Allowance, where applicable, will be increased Two Cents ($0.02/kin) per kilometer, from Thirty-One Cents ($0.31/kin) per kilometer to Thirty-Three Cents ($0.33/kin) per kilometer.

3. Effective May 1, 1993, the Travel Zone Rates, where applicable, will be increased by Ninety Cents ($0.90) per day.

4. Effective May 1, 1993, the Room and Board Rates in Local Areas 402 and 1687 will be increased by Twenty-Five Cents ($0.25) per hour.

5. Effective May 1, 1993, the Room and Board Rates for all other Local Areas, where applica­ble, will be increased by One Dollar and Fifty Cents ($1.50) per day.

YEAR THREE

1. Effective May 1, 1994, the Wage Package for the Journeyman Electrician is amended by increasing the Wage Package by One Dollar and Twenty cents ($1.20) per hour.

2. Effective May 1, 1994, the Mileage Allowance, where applicable, will be increased One Cent ($0.01/kin) per kilometer, from Thirty-Three Cents ($0.33/kin) per kilometer to Thirty-Four Cents ($0.34/kin) per kilometer.

3. Effective May 1, 1994, the Travel Zone Rates, where applicable, will be increased by Ninety Cents ($0.90) per day.

4. Effective May 1, 1994, the Room and Board Rates in Local Areas 402 and 1687 will be increased by Twenty-Seven Cents ($0.27) per hour.

5. Effective May 1, 1994, the Room and Board Rates for all other Local Areas, where applica­ble, will be increased by One Dollar and Fifty Cents ($1.50) per day.

EXECUTED BY THE PARTIES this 18th day of February, 1992.

11. The purpose of the complaint, as indicated, is to persuade the Board to set aside the above-described (and much-publicized) electricians' settlement. In the final analysis, however, there was one ground only which the complainant asserted gave the Board the right to set aside this product negotiated by the two designated e.b.a.'s. The monetary value of the settlement, while perhaps a driving factor behind the bringing of the complaint, obviously is not something that this Board is called upon to consider. Nor is the potential impact on industry bargaining of a prolifera­tion of post-settlement "ratchet" clauses like the present. The sole ground for challenging the set­tlement is that it purports to amend the existing ICI agreement "mid-term", i.e., effective Febru­ary 15th, 1992, some ten weeks prior to its April 30th expiry date. And because that action was illegal and forms an integral part of the overall settlement, submits the complainant, the whole set­tlement must fall (the respondent Unions, it should be noted, agree with the complainant's charac­terization of the settlement as an integrated one, which must stand or fall in its entirety).

12. The complainant puts forward a number of arguments in support of its challenge. The principal one is the authorizing language of sections 142 and 143 (now 144 and 145) themselves. Section 143(a), for example, provides:

13. Where an employer bargaining agency has been designated under section 139 or accredited under section 141 to represent a provincial unit of employers,

(a) all rights, duties and obligations under this Act of employers for which it bargains shall vest in the employer bargaining agency, but only for the pur­pose of conducting bargaining and concluding a provincial agreement.

The complainant stresses the word "only", and submits that that makes it clear that once the e.b.a.'s have completed their negotiations for a collective agreement, their powers are entirely exhausted until the next round of province-wide bargaining. In further support of this argument, the complainant refers to the comparable section of the Act setting out the powers of an accredited employers' organization, which reads:

128.-(1) Upon accreditation, all rights, duties and obligations under this Act of employers for whom the accredited employers' organization is or becomes the bargaining agent apply with necessary modifications to the accredited employers' organization.

Counsel for the complainant is, of course, entirely familiar with section 146 (now 148) and this Board's interpretation of it, and in particular subsections (1) and (2):

146.-(1) An employee bargaining agency and an employer bargaining agency shall make only one provincial agreement for each provincial unit that it represents.

(2) On and after the 30th day of April, 1978 and subject to sections 139 and 145, no person, employee, trade union, council of trade unions, affiliated bargaining agent, employee bargaining agency, employer, employers' organization, group of employers' organizations or employer bargaining agency shall bargain for, attempt to bargain for, or conclude any collective agree­ment or other arrangement affecting employees represented by affiliated bargaining agents other than a provincial agreement as contemplated by subsection (1), and any collective agree­ment or other arrangement that does not comply with subsection (1) is null and void.

Those sections make it clear, as the Board has ruled a number of times, that no one other than the two e.b.a.'s could possibly have any power to amend the e.b.a.'s provincial agreement. Counsel's argument, then, as he concedes, is that no one in the ICI sector has the power to adjust the provin­cial agreement to respond to conditions or circumstances that may arise, in any way. And that, notwithstanding the fact that everyone else under the Act is expressly empowered to do so by sec­tion 52(5) (now 53(5)), which provides:

Nothing in this section prevents the revision by mutual consent of the parties at any time of any provision of a collective agreement other than a provision relating to its term of operation.

13. Counsel in further support of his argument refers to section 146(3) of the Act, which at the time of these negotiations read:

Every provincial agreement shall provide for the expiry of the agreement on the 30th day of April calculated biennially from the 30th day of April, 1978.

That, counsel submits, is reflective of the fact that the province-wide bargaining legislation was clearly aimed at bringing certainty and stability to the industry for this set period of two (now three) years - and with every contractor governed by this province-wide agreement, which they have no direct say in negotiating, at least having the benefit of knowing for bidding purposes what the expiry date of the existing agreement will be. What the employer bargaining agency has done in this case is so inimical, so contrary to that, and so clearly illegal, the complainant submits, that it must be taken on its face as being in breach of the duty of fair representation provided in section 151 (now 154)(2) of the Act, which 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.

14. Notwithstanding the concerns raised by Mr. Binning, it obviously would take the clear­est of language to convince this Board that the designation of the e.b.a.'s to negotiate the prov­ince-wide agreement would not carry with it the traditional and incidental power to amend it as cir­cumstances arise or require - particularly when it is clear that no one else would be in a lawful position to do that because of section 146(2). To discount Mr. Binning's argument, however, it is necessary to provide a meaning to the words "but only for the purpose of conducting bargaining and concluding a provincial agreement", as specifically used in section 143(a). But in fact, that meaning can be gleaned from a comparison with section 128(1) itself, which once again provides:

Upon accreditation, all rights, duties and obligations under this Act of employers for whom the accredited employers' organization is or becomes the bargaining agent apply with necessary modifications to the accredited employers' organization.

The Board, in giving a meaning to those words, has made it clear that what they accomplish is to leave the accredited organization responsible not only for the negotiation of the collective agree­ment on behalf of all of the employers affected, but also the party responsible for administering it. That very point was addressed early on in the case of Ainsworth Electric, [1977] OLRB Rep. July 399, in which the Board had this to say:

6. It is our view that where an accredited employers' organization, as here, has concluded a col­lective agreement as exclusive bargaining agent, it must accept the responsibility of enforcing the terms of that contract. The exclusive bargaining agent has no right to abandon any part of this responsibility in favour of some other designated person;…..

7. Section 120 of the Act provides for the fair representation of employers represented by the accredited employers' organization. If, as the applicant submits, either the employers' organiza­tion or an individual employer in the unit represented may exercise the right (or the responsibil­ity) of enforcing the collective agreement, then section 120 becomes meaningless and mere sur­plusage. Indeed, to accept the applicant's submission would be confusing a situation, as here, where the employers have appointed an exclusive bargaining agent which has entered into a col­lective agreement on their behalf, with a more fractionated situation where the parties might have bargaining jointly but concluded a multiplicity of separate collective agreements.

8. Further, our decision in the instant case that the only proper party to bring an application under section 112a is the accredited employers' organization is consistent with the reasoning of the Board in the Electrical Power Systems Construction Association case, [1976] OLRB Rep. Dec. 825.

9. Accordingly, the application is dismissed for want of status by the applicant to carry the mat­ter under section 112a.

Thus the words in sections 142 and 143, written later, appear intended to do exactly the opposite:

that is, to make it clear that it is only the power to negotiate the collective agreement on behalf of the contractors or affiliated bargaining agents that is removed and assigned by the statute to the e.b.a.'s, and not the responsibility to be involved at every formal step in the administration of it, as the Board (in theory at least) had found section 128 to provide. And that, we agree with counsel for the ETBA, is why the expansive listing of potential "parties" in section 147(3) (now 149(3)), for the purposes of a grievance application under section 124 (now 126) of the Act, was considered a necessary clarification. In the Board's view, therefore, the normal power to vary or amend the terms of the e.b.a.'s' own agreement is not removed from them or affected in any way by the clos­ing words of either section 142 or 143(a).

15. That conclusion, it might be added, is consistent with the sort of thing the Board has always intuitively been saying with respect to the question of how mid-term modifications are to be dealt with under the regime of province-wide ICI bargaining. In Lummus Canada, for example, [1983] OLRB Rep. Sept. 1504, the Board had a situation where the employer-contractor was fac­ing heavy pressure from the owner to increase productivity, and wished to vary the Electricians' province-wide agreement to provide for a 4-day work-week (as it had with the Plumbers). The Board observed:

16. At the root of the present case is the arrangement between Lummus and the UA which as we have found Lummus is coercing the complainant [IBEW Local 8941 to accept. It is not for this panel of the Board to decide whether that arrangement between the UA and Lummus is itself a violation of section 146(2) of the Act. That complaint is not before this Board nor are the parties to such an arrangement before this Board. We cannot help but notice, however, that in all the evidence relating to that arrangement no mention was made of either the Employer or the Employee Bargaining Agency which are the designated parties to that provincial agreement. We mention this because with reference to the present case we are of the view that the problem faced by Lummus and Eldorado is not insoluble. Nothing prevents the complainant provincial council and its counterpart, the Employer Bargaining Agency, from amending the present elec­tricians' provincial agreement to specifically accommodate the kind of problem faced by Lummus at the Eldorado job site. The employer and Employee Bargaining Agencies have exclusive bargaining rights and it is their obligation to be responsive to the needs of the construction industry. The point, however, is that it is the two bargaining agencies which must ultimately for­mulate any amendment to that provincial agreement, and this is not something that Lummus can do on its own.

Similarly, see Fahrhall Mechanical Limited, [1982] OLRB Rep. Aug. 1174, at paragraph 11, and

C. E. Lummus Canada Ltd., [1983] OLRB Rep. Oct. 1688, at paragraph 19. And more indirectly, see Peter Walter Dow, [1981] OLRB Rep. June 692.

16. Nor do we find the complainant's argument on the basis of the expiry date set out in section 146(3) to have merit. What that section does, of course, is to set a common expiry date for the entire ICI sector. And more to the point, that means that all the parties who bargain within that sector reach their "open period", and the right to strike or lock-out, at exactly the same time. That, in our view, is the "stability", or containment of the potential damage to the industry of law­ful strikes or lock-outs, that section 146(3) went into the Act to provide. Mr. Binning does not dis­pute that one set of bargaining parties can sit down and settle the terms of their new collective agreement as much in advance as they like - so long, he would add, as those new terms and condi­tions are not purported to be made effective any earlier than the original April 30th expiry date. Indeed, one of the trades in the sector is always going to have to settle first. Thus Mr. Binning's challenge, once again, is solely with respect to the Memorandum of Amendment, i.e. that aspect of the settlement that put the new rates and benefit adjustments into effect as of February 15th. But that was carried out in exactly the same way that it is carried out by everyone else seeking to com­ply with the provisions of section 52(5) of the Act. Because that section permits an amendment to any of the provisions of a collective agreement except for that pertaining to its term, any "ad­vance" revisions to the collective agreement must be done in just the manner that was followed here: i.e. with one agreement amending the conditions of the existing collective agreement for the remainder of its term, and another dealing with the conditions that will be contained or continued in the parties' new collective agreement, when it comes into effect on its originally-determined commencement date. None of that has the effect of permitting the parties on their own to alter the "open" (or "strike") period established by the term of the agreement, and the principle behind section 146(3) (and 52(5)) is maintained.

17. What it does do, we fully recognize, is to alter the date at which the various contractors bound by this statutorily-mandated provincial agreement have to deal with an increase. And for that reason, if there is going to be some legal ground upon which the exercise of the e.b.a's author­ity to amend their own agreement has the potential for being challenged, it appears to us that it would be through the provisions of section 151 (now 154), referred to in the third ground of Mr. Binning's argument. In particular, given the way commercial contracts are bid and entered into in the construction industry, as Mr. Binning fairly points out, and the fact that the e.b.a.'s become the sole and exclusive bargaining agents with the power to bind the whole industry, the question of adequate notice to the contractor-group takes on added significance.

18. In the present case, however, the contractors were on notice from the time of initial cir­culation for ratification of the Joint Proposal signed on May 23, 1991, that any province-wide changes that would ultimately come to be agreed to, or imposed through the procedure negotiated for third-party selection, would go into effect on February 15th, 1992. The contractors knew back then, in other words, that the next adjustment date for their costs under the province-wide collec­tive agreement was not going to be April 30th, 1992, but rather February 15th.

19. On the facts before us, therefore, we all are of the opinion that the present complaint must be dismissed.