Millwright District Council of Ontario v. E. S. Fox Limited, 1992 CanLII 6797

[1992] OLRB Rep. January 29

0204-91-G Millwright District Council of Ontario on its own behalf and on behalf of its Local 1007, Applicant v. E. S. Fox Limited, Respondent

BEFORE: Janice Johnston, Vice-Chair, and Board Members J. A. Rundle and B. L. Armstrong.

APPEARANCES: T. Hawtin and Fred Vormittag for the applicant; W. J. McNaughton and H. Miron for the respondent.

DECISION OF VICE-CHAIR JANICE JOHNSTON AND BOARD MEMBER, B. L. ARMSTRONG; January 10, 1992

1. The name of the respondent is amended to read: "E. S. Fox Limited".

2. The applicant, the Millwright District Council of Ontario on its own behalf and on behalf of its Local 1007 has referred a grievance concerning the interpretation, application, administration or alleged violation of a collective agreement to the Board for final and binding determination pursuant to section 126 [formerly section 124] of the Labour Relations Act (the "Act").

3. The respondent, E. S. Fox Limited ("Fox") did not dispute that it was bound to the current provincial collective agreement between the Association of Millwrighting Contractors of Ontario Inc. (the designated employer bargaining agency hereinafter referred to as the Association) and the Millwright District Council of Ontario (the designated employee bargaining agency hereinafter referred to as the Council) governing work in the industrial, commercial and institutional sector of the Construction Industry within the province (the "collective agreement"). The respondent's name appears in the membership list at the end of the collective agreement. The respondent did not dispute that it is a member of the association.

4. The grievance in this case deals with an alleged violation of the collective agreement by Fox in that Fox did not pay travel time in accordance with article 17(a) of the collective agreement. The grievance itself was not placed before the Board however there was no dispute as to its existence. The parties agreed that it had originated sometime prior to August, 1990.

5. It was the position of the applicant in this case that the matter in dispute between the parties had been settled pursuant to the grievance procedures set out in the collective agreement. This issue was raised as a preliminary matter to be dealt with by the Board. After having given the parties the opportunity to outline their positions, the Board moved directly to argument. No one sought to adduce any evidence.

6. The relevant provisions of the collective agreement state:

Article Two

UNION SECURITY AND RECOGNITION

(h) The Association recognizes the Council as the sole and exclusive Collective Bargaining Agency for all Employees as defined in Article One of this Agreement in all matters pertaining to wages, hours of work and all other working conditions, and conditions of employment.

The Council recognizes the Association as the sole and exclusive Collective Bargaining Agency for the Employer in the unit of Employers for whom the Association has been accredited in all matters pertaining to wages, hours of work, and all other working conditions and conditions of employment.

Article Eleven

GRIEVANCE PROCEDURE

(a) Where a difference arises between the parties hereto, or between any of the parties hereto, and any person upon whom this Agreement is binding, relative to the interpretation, application or administration of this Agreement, including any question as to whether the matter is arbitrable, or where an allegation is made that this Agreement has been violated, the matter shall be adjusted as follows:

It is generally understood that there is no grievance until an opportunity is given to adjust a complaint. All complaints must be filed within a period of two (2) weeks from the commencement of the circumstances from which the complaint arose. A period of three (3) working days shall be allowed to adjust a complaint before proceeding to Step One of the Grievance Procedure failing a satisfactory adjustment.

Step One

The Representative of the affiliated Local Union and the General Superintendent on the job shall endeavour to settle the matter by negotiations between them. In the event that the matter cannot be settled within a period of one (1) regular working day, then the matter shall be referred to Step Two.

Step Two

After exhausting the procedure set out in Step One and before submitting the matter in dispute to Arbitration, the aggrieved party shall submit a report in writing to the other party, and an attempt to settle the matter shall be made within three (3) days of receipt of the letter by direct negotiation between them and/or their designated Representative.

Step Three

If the matter is not settled in Step Two the complaining party shall rever [sic] the written complaint forthwith to the Labour-Management Relations Committee of the Association and the Council. Both parties shall be entitled to have representatives at the meetings of this Committee to present their side of the matter.

The Committee shall consist of three (3) members from the Association and three (3) members from the Council. No member directly involved in the Grievance shall sit on the Committee.

If the Labour-Management Relations Committee fails to resolve the matter to the satisfaction of both parties within a period of two weeks from the time the written complaint was received by the Committee or such further period as may be agreed upon between the parties, this step shall be deemed to have been complied with.

A decision of the Labour-Management Committee in favour of the Union or the Association may be enforced by the Union or the Association by filing of the Grievances and the Decision with the Ontario Labour Relations Board pursuant to Section 124 [now section 126] of the Ontario Labour Relations Act (any successor section).

(b) Any Agreement arrived at between the Parties during, or subsequent to the above step shall be binding upon both parties and on the persons concerned.

(c) Should either of the Parties to this Agreement have a misunderstanding, complaint or dispute under this Agreement against the other party, a period of two (2) weeks shall be allowed to adjust the said misunderstanding, complaint or dispute and failing a satisfactory adjustment, the Grievance Procedure shall commence with Step Three and this procedure must not be unduly delayed.

(d) It is agreed by both parties to this Agreement that no complaint or dispute under this Agreement may be submitted to Arbitration until after exhausting the above Grievance Procedure in connection with it.

Failing settlement as outlined above, the matter shall then be submitted to Arbitration in accordance with the provisions of Article Twelve.

All time limits mentioned in the Grievance and the Arbitration proceedings may be extended by written mutual agreement between the parties.

No Grievance or Arbitration shall be invalidated by reason of the time limits mentioned or by reason of any defect or form or by any technical irregularity, however, unwarranted or unnecessary delays will not be accepted.

So that better continuity and communication be maintained, the Association requires that a copy of all Grievances sent to either a Contractor or the Labour Relations Board under Section 124 [now section 126] or any other Section of the Act, be forwarded to the Association.

7. Article 11 provides that if the individual employer and local union are unable to resolve the matter at Step One of the grievance procedure it shall then be referred to Step Two of the grievance procedure. Where no resolution results at Step Two, as occurred here, it shall be referred to Step Three. Step Three is the referral to the Labour-Management Relations Committee (the "Committee") which is composed of 3 members from the Association and 3 members from the Council. The parties to the case before us agreed that this matter had been heard at Step 32 Three of the grievance procedure and that the Committee had issued a decision in this case. That decision was attached to the Form 104 (Referral of Grievance to Arbitration under Section 126, Construction Industry) as Schedule "A". It states:

SCHEDULE "A"

MINUTES OF LABOUR-MANAGEMENT COMMITTEE MEETING HELD TUESDAY, JANUARY 29th, 1991, AT THE CONSTELLATION HOTEL:

Meeting held to deal with Grievance filed by Local Union 1007. Niagara Falls, against ES. Fox Ltd.

In attendance were:

FOR THE ASSOCIATION: FOR THE UNION:

Ken Niepage Harvey Jardine: Paul Mesley John Irvine: Henry Franzen Edward P. Ryan:

Representing the Union was Business Representative of Local Union 1007, Mr. Fred Vormittag.

Representing the Company were Mr. Mike Whittaker and Mr. Henry Miron.

The Union alleged violation of Article 17, Section (a) of the Collective Agreement in that the Company had failed to pay travel time on the Page Hersey project in Welland Ontario, and claimed all travel allowance due all Millwrights employed on the project.

The Company stated that they had never paid travel to that particular project, and they used the Allenburg Post Office as the focal point in estimating travel.

The Union stated that when the Local had moved from St. Catharines to Thorold it used the Municipal Building in Thorold to calculate travel, and all Contractors working on this project for the past number of years have paid travel.

This issue had been dealt with on a previous occasion by a joint Committee of the Association and the Union whose decision was that travel was applicable on that particular job.

DECISION OF COMMITTEE:

The Committee decided that in accordance with Article 17, Section (a) travel is calculated from the City Hall, Town Hall, or Municipal Buildings of the Municipality, District or Township where the Local Union office is situated.

Therefore, the Committee ruled that all Employees on the Page Hersey would be paid travel at $5.20 per day from the start of the project.

FOR THE ASSOCIATION: FOR THE UNION:

"Ken Niepage" "John Irvine"

"H. Franzen" "H. Jardine"

"P. Mesley" "Edward P. Ryan"

8. It was the position of counsel for the applicant, that this document was a "settlement decision" issued in accordance with Step three of the grievance procedure, and as such was binding on the employer. He asserted that the procedures in the collective agreement make it clear that the Committee has the authority to settle the grievance. It was Counsel's position that if there was a problem implementing the decision of the Committee, that the decision could be enforced by the Board.

9. It was the position of counsel for the respondent, that a "settlement" within the meaning of the language in the collective agreement had not been reached. It was his position that the word "parties" in the sentence "... fails to resolve the matter to the satisfaction of both parties referred to the individual contractor and the local union. In other words, if Fox did not agree with the decision rendered by the Committee at Step 3, then there was no settlement. It was his submission that unless there was a settlement to the satisfaction of Fox, there was no "settlement" and therefore there was no "decision" which could be enforced by the Board. Counsel indicated that if the Committee had the authority to make a final and binding decision then there would be no need for a grievance arbitration process. The Committee would assume the role of an arbitrator and no access to arbitration would be possible. He contended that this would be against the Act which requires that every collective agreement provide for the final and binding settlement of grievances by arbitration.

10. Counsel for the respondent referred to Beckett Elevator Company Limited, [1982] OLRB Rep. Sept. 1244 and the reconsideration of that decision at [19831 OLRB Rep. March 309. It was his position that the Board in dealing with a clause giving authority to representatives of the employer bargaining agency to settle grievances filed against individual contractors, similar to the one in our case, made it clear that a clause which purports to deny the access of a "party" to arbitration is unenforceable. It was his position that as the decision of the Committee in the case before us had that effect, that it too was unenforceable.

11. In response, counsel for the applicant argued that the Beckett case could be distinguished on its facts. In the Beckett case, the individual employer Beckett, was a member of the Canadian Elevators Contractors Association ("CECA") an association which had no bargaining status for the purposes of the Act. A rival employer association, the National Elevator and Escalator Association ("NEEA") had been designated as the sole employer bargaining agency in the elevator industry and therefore did have bargaining status. Beckett, although not a member of NEFA, was bound by the industry collective agreement negotiated by NEEA. In our case, there is no competing employer association and Fox is a member of the Association of Millwrighting Contractors of Ontario, Inc. (the "Association"). Counsel pointed out, and this was not disputed by the respondent, that Fox has willingly participated in the process outlined in Step Three before, and has delegated authority to resolve grievances to the Committee.

12. Counsel for the applicant also argued that although the Board in Beckett focused on section 145 [formerly section 143], they did not consider section 139 [formerly section 137] of the Act. Section 139(d) and (e) and section 143(a) provide:

139.-(1) In this section and in sections 137 [formerly section 1351 and 140 [formerly section 138] to 154 [formerly section 151],

"employer bargaining agency" means an employers' organization or group of employers' organizations formed for purposes that include the representation of employers in bargaining;

"provincial agreement" means an agreement in writing covering the whole of the Province of Ontario between a designated or accredited employer bargaining agency that represents employers, on the one hand, and a designated or certified employee bargaining agency that represents affiliated bargaining agents, on the other hand, containing provisions respecting terms or conditions of employment or the rights, privileges or duties of the employer bargaining agency, the employers represented by the employer bargaining agency and for whose employees the affiliated bargaining agents hold bargaining rights, the affiliated bargaining agents represented by the employee bargaining agency, or the employees represented by the affiliated bargaining agents and employed in the industrial, commercial and institutional sector of the construction industry referred to in the definition of "sector" in section 119 [formerly section 117].

145. Where an employer bargaining agency has been designated under section 141 [formerly section 130] or accredited under section 143 [formerly 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; and

(b) an accreditation heretofore made under section 129 [formerly section 127] of an employers' organization as bargaining agent of the employers in the industrial, commercial and institutional sector of the construction industry, referred to in the definition of "sector" in section 119, [formerly 117] represented or to be represented by the employer bargaining agency is null and void from the time of such designation under section 141 or accreditation under section 143.

13. It was Counsel for the applicant's position that although the role of the Association was primarily to conduct collective bargaining, it could have another purpose such as the role carried out by the Committee at Step Three of the grievance procedure in this case. Section 139(e) [formerly 137(e)] states that a collective agreement may contain provisions respecting "the rights, privileges or duties of the employer bargaining agency". In this case counsel asserted that the employer Fox, a member of the Association, has agreed to a provision in the collective agreement which gives the Association, through its Committee, authority to settle grievances. Fox is bound by statute to allow the association to negotiate on its behalf and must be bound by the collective agreement so negotiated.

Decision

14. This collective agreement, as set out in the title or cover page to the Agreement, is between the Association of Millwrighting Contractors of Ontario, Inc. and the Millwright District Council of Ontario. Sections 144 [formerly 142 and 148(1)(2) [formerly section 146(1)(2)] of the Act state:

15. Where an employee bargaining agency has been designated under section 141 or certified under section 142 [formerly section 1401 to represent a provincial unit of affiliated bargaining agents, all rights, duties and obligations under this Act of the affiliated bargaining agents for which it bargains shall vest in the employee bargaining agency, but only for the purpose of conducting bargaining and, subject to the ratification procedures of the employee bargaining agency, concluding a provincial agreement.

148.-(l) 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 141 and 147, 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.

Therefore, by statutory requirement the only signatories to the provincial agreement are the Association and the Council. In accordance with the statutory framework governing the construction industry in Ontario, E. S. Fox cannot be a signatory to the provincial agreement. The Act provides that the Association and the Council are the entities empowered to negotiate collective agreements on behalf of local employers and local unions.

15. We were unable to find any clause (nor was any clause pointed out to us by counsel) in the collective agreement placed before us, defining the term "parties". There is nothing in the agreement which states that when the term "parties" is used in the grievance procedure that it shall mean anything other than the parties to the provincial collective agreement, the Association and the Council. Nevertheless, when Article Eleven is read in its entirety we are satisfied that individual employers and local unions are "parties" in the sense that they can file grievances and negotiate at Step One of the grievance procedure in an attempt to settle the matter. If the matter is not resolved at Step One or Step Two it proceeds to Step Three. We are satisfied that Fox is a "party" at Step Three to the extent that it is entitled to be represented at the Committee's meeting(s). We do not accept counsel for the respondent's submissions that before a matter can be settled at Step Three and a decision of the Committee issue, the individual employer and local union must agree with the decision. The effect of the Committee's decision is to resolve the grievance. The final paragraph under Step Three makes it clear that the Committee has the authority to issue a decision. This is not qualified by any language requiring the consent or agreement of the individual employer or local union.

16. In this case there was no allegation raised by either of the local parties that the Association or the Council, or their spokespersons on the Committee, had acted in a manner that was arbitrary, discriminatory or in bad faith. Nor was there any suggestion of collusion on the part of the Association or the Council or the members of the Committee (see section 151 of the Act). In the absence of such factors, we should not lightly interfere with the mechanism for the resolution of disputes which the parties have negotiated into their collective agreement.

17. In the Beckett case the relevant language in the collective agreement reads as follows:

Article 14

GRIEVANCE AND ARBITRATION

14.01 Any difference of dispute regarding the application or interpretation of this Agreement or Local Agreements shall be settled locally between the Local Union and the Employer. Upon receipt of a written grievance the Employer Representative and the Union Representative shall meet within five (5) working days to settle the dispute. In the event the matter cannot be settled on a local basis, then either the Union or the Employer shall submit the dispute to the Joint Industry Committee which it is hereby understood and agreed shall have the power to enforce its decision by mutual consent for protection of the public and the entire elevator industry.

14.02 Within a period of seven (7) days after receipt of a dispute or grievance by the Joint Industry Committee, said Committee shall meet. If the Joint Industry Committee is unable to reach a decision or is deadlocked on the issue, then within a period three (3) days thereafter, either party may submit the unresolved dispute to arbitration.

14.03 It is agreed that the Employers and the Unions may mutually agree to a permanent Impartial Arbitrator or panel of permanent Impartial Arbitrators for resolution of differences or disputes. It is agreed that the Employers and the Unions may agree to waive the Joint Industry Committee step in the above procedure and may submit an unresolved difference or dispute directly to an impartial Arbitrator.

14.04 It is understood that neither the Joint Industry Committee nor the Impartial Arbitrator shall have any power to add to, subtract from, or modify in any way any of the provisions of this Agreement.

14.05 The decision of the Impartial Arbitrator shall be final and binding upon all parties. The expenses of the Imperial [sic] Arbitrator shall be borne equally by both parties.

14.06 It is agreed that the time limits expressed in this Article may be extended by mutual consent of the parties.

[emphasis added]

The language in the provincial collective agreement before us appears to give the Committee the authority to settle the grievances filed against individual employers such as Fox, by local union's such as Local 1007. The language is not at all similar to the collective agreement language in the Beckett case, as the parties to the provincial agreement (the Association and the Council) placed before us have gone one step further and agreed to a provision providing either party with an "enforcement" mechanism that is not dependent on mutual consent. The language in the provincial collective agreement before us provides that the Board has the authority to enforce a decision of the Committee, if either party refers the matter to it. The wording in the "enforcement" paragraph of article eleven does not stipulate that the Board may only enforce the decisions of the Committee upon mutual consent. Once the Committee has issued a decision either party may refer this decision to the Board for enforcement. The applicant herein, the Council, is clearly a "party" in this sense. The Board in the decision in which it reconsidered its original ruling in the Beckett case, pointed out that the language in that particular collective agreement did not provide for enforceability of the decision of the JIC except by "mutual consent" (see paragraphs 10 and 11). That is not the case in the situation before us where either party may file the grievance and the settlement reflected by the decision of the Committee, to the Board for enforcement. Thus the language in the provincial collective agreement before us is quite different from and may be distinguished from the language in Beckett.

18. The company submits that a clause which purports to deny the access of a party to arbitration is unenforceable. It took the position that the Labour Relations Act requires that all grievances be settled by arbitration. Section 124 does not require that every grievance filed with the employer or union (as the case may be) must lead to arbitration, only that those remaining unsettled are to be resolved through arbitration. The decision of the Committee in our case reflects a resolution of the grievance reached during the grievance procedure. The Committee was not "arbitrating" within the meaning of the Act as alleged by counsel for the respondent, but simply reached a settlement. As a result of this settlement at Step Three of the grievance procedure there was nothing to arbitrate. Here, the company participated in the internal grievance procedure set up in the collective agreement. Only after the matter has been settled through that procedure does it now complain. Even so, no grievance dealing with the merits of the dispute has been filed by the company, nor has it filed a section 126 [formerly section 124] application. Rather, this Board, sitting as an arbitration board under section 126, is asked to apply the specific term in the collective agreement that directs the Board to enforce settlements reached thereunder. In these circumstances we see no reason not to enforce the settlement, as the collective agreement requires. To do so is not, in the circumstances, contrary to the parties' statutory rights.

19. In Beckett the Board observed (in paragraphs 17 and 18) that at the time the Act was amended to provide for province-wide bargaining, the legislature intended that the role of the central bodies was to conduct bargaining and conclude a collective agreement. In Beckett the Board concluded that this was the only role intended for the central bodies. There is nothing in the Act however which prevents the central bodies, the Association and the Council, from negotiating language into the collective agreement providing for a joint committee or labour management committee as they did in this case. In the Board's experience, these kinds of committees are found in many of the province-wide collective agreements governing the other trades. This type of committee is an extremely effective and inexpensive mechanism for dispute resolution. In this case Fox participated in the Committee meeting. It was not disputed that it has willingly participated in this process before and did so in this case. Unfortunately in this case it did not like the result and now wants to argue that the Committee has no authority.

20. The Board in Beckett in determining that the employer bargaining agency should not have the power to settle the individual employers grievance relied on sections 144 and 145 of the Act. Section 139 of the Act was not raised in Beckett and the Board did not therefore consider it. Section 139(d) and (e) make it clear that provincial collective agreements may contain provisions respecting ". . .the rights, privileges or duties of the employer bargaining agency ...". These "rights, privileges or duties", include the representations of employers in bargaining but are not restricted so as to pertain only to the negotiation of collective agreements. To restrict the application of the language in section 139 to the negotiation process would therefore render it meaningless, as by statute the Association has the right to negotiate the provincial collective agreement. Section 145(a) sets out or limits the extent of the statutory transfer of powers to the central bodies. Any other transfer of rights or powers must be achieved through the negotiation process. The provincial collective agreement may contain articles that give the employer or the employee bargaining agency rights beyond the right to bargain for and conclude a provincial agreement, provided they are consistent with the statutory scheme. In creating the Committee, which consists of representatives of the two central bodies, that is what has been done in this case.

21. In the Beckett Elevator Company case, [1983] OLRB Rep. March 309 (the reconsideration of the case we have referred to as the Beckett case) the Board after noting the statutory limitation set out in section 145(a) went on to say:

For the purposes of this case we need not speculate on the factual or contractual circumstances which might prompt the Board to give binding effect to a body such as the J.I.C. [Joint Industry Committee], nor should our decision be interpreted as a signal that the Board is anxious to deal with problems which traditionally have been, and probably should be, resolved in another less formal forum. But we do not think that this J.I.C., under this agreement, in these circumstances, has given an interpretation of the parties' collective agreement which the Board must merely enforce……..

The contractual circumstances in this case are quite different from those in Beckett. Beckett did not deal with "contractual circumstances which might prompt the Board to give binding effect to a body such as the JIC ...". The issue before us is whether those contractual circumstances are present here. There is no doubt given the statutory framework (see for example section 139(d) and (e), section 145, 149 [formerly section 147]) that the employer and employee bargaining agencies can negotiate into their collective agreement provisions for a JIC as they did in this case. In the circumstances of the case before us and for the reasons outlined in paragraph 15, we feel it is important to give effect to the collective agreement language. Fox participated in the Committee meeting and now seeks to resile from the settlement reached at the meeting. Signatories to the collective agreement, in this case the Association and the Council, have freely negotiated the current language in the collective agreement. This type of clause, providing for a joint committee, is common in the construction industry and the Board should be reluctant to interfere with a process which has been agreed to by the parties. Stability in labour relations is very important and the Board should tread lightly in making decisions which could upset an ongoing relationship. In our view, it is appropriate to enforce the decision of the Committee settling this matter at Step Three of the grievance procedure.

22. The Board upholds the preliminary motion of the applicant and concludes that the grievance before us has been settled. That settlement is binding on the respondent. The respondent is directed to comply with its terms.

23. In the event that the parties should encounter any difficulties in implementing this award, the panel will remain seized.

DECISION OF BOARD MEMBER J. A. RUNDLE; January 10, 1992

1. The concept of an internal labour management relations committee whereby the parties try to resolve their problems internally is not novel. While no evidence was placed before the panel, it is my understanding, that many contracts in the construction industry make provision for an internal dispute resolution procedure. There was also no evidence placed before the panel to indicate that the specific language with respect to the Labour-Management Relations Committee contained in the collective agreement between the Association of Millwrighting Contractors of Ontario, Inc. and the Millwright District Council of Ontario, was found in any other collective agreement in the construction industry. While I agree that it is in the best interests of parties to a collective agreement to resolve matters amongst themselves without having to resort to litigation - I will not support an internal scheme that denies parties access to their full rights under the Labour Relations Act which in my view is the result of this decision. For the following reasons I dissent.

2. The issue before this panel of the Board was whether the matter in dispute (a grievance over the payment of travel time) had been resolved pursuant to the grievance procedure set out in the collective agreement. In order to determine this matter one must interpret the relevant contract language.

3. The majority in paragraph 14 states: "We are unable to find any clause in the collective agreement placed before us defining the term 'parties'." With respect I disagree. Article Eleven, Grievance Procedure (a) reads as follows:

"Where a difference arises between the parties hereto, or between any of the parties hereto, and any person upon whom this Agreement is binding..."

[emphasis added]

One has to ask why the parties would include this language. It is there, I suggest, because there is an acknowledgement that there are more than two "parties", the "Association" and the "Council" as the majority have found. Reading further - Step Two of the grievance procedure states as follows:

"After exhausting the procedure set out in Step One and before submitting the matter in dispute to Arbitration, the aggrieved party shall submit a report in writing to the other party, and an attempt to settle the matter shall be made within (3) days of receipt of the letter by direct negotiation between them and/or their designated representative.

[emphasis added]

The "aggrieved party" in Step Two can only refer to the "local company" or the "local union" not the Association or the Council. Prior to going to Arbitration a step which is clearly contemplated by the grievance language, the "local parties" have an opportunity to attempt to resolve the matter. If there is no resolution of the dispute the matter is referred to Step Three which states:

"If the matter is not settled in Step Two the complaining party shall refer the written complaint forthwith to the Labour-Management Relations Committee of the Association and the Council."

[emphasis added]

The "complaining party" is one of the local parties as noted in Step Two of the Grievance Procedure, not the "Association" or the "Council". Indeed Step Three also refers to the Labour Management Relations Committee of the Association and the Council - these entities are not referred to as "parties" to the dispute. Step Three goes on to say:

If the Labour-Management Relations Committee fails to resolve the matter to the satisfaction of both parties...

[emphasis added]

From this language it is clear that "both parties" refer to the "local union" and the "local contractor" who must be satisfied with the resolution. To read the language otherwise is inconsistent with the way the Article was drafted. It is the "local parties" who are engaged in the dispute and who have to be satisfied with the resolution. This interpretation of the Agreement is not prejudicial to either party - however to interpret this Article differently gives rise to draconian labour relations practices which can impact quite negatively on either a local contractor or a local union:

Step Three goes on to say:

"A decision of the Labour-Management Committee in favour of the Union or the Association may be enforced by the Union or the Association by filing of the Grievances and the decision with the Ontario Labour Relations Board pursuant to section 124 of the Ontario Labour Relations Act (any successor)."

[emphasis added]

This is the first occasion in the grievance procedure where we see as separate entities the "Union" (not council) and the "Association" not "parties". This language would refer to broad policy matters that are the subject of dispute between the "Association and the Council". The specific use of the words "Union" and "Association" were deliberate and set this paragraph apart from the previous paragraphs. This paragraph is simply a substitution for the enforcement section under the Labour Relations Act - that is all it means. It does not however mean that the Labour Management Relations Committee can make any decision it wants and those decisions are therefore binding on the parties - there are limits.

Step Three(b) reads:

Any Agreement arrived at between the parties during or subsequent to the above step shall be binding upon both parties and on the persons concerned...

[emphasis added]

This section refers to any agreement - not decision - arrived at between the "local parties". In the case before us E.S. Fox was not in agreement with the resolution of the Labour-Management Relations Committee - therefore there is no agreement. The decision of the Labour-Management Relations Committee is not an agreement therefore it is not in my opinion binding on the parties.

4. For the above noted reasons I do not agree with the majority's interpretation of the language in the Collective Agreement. In my view, the majority's interpretation causes me concerns which have very serious labour relations implications for both local unions and local contractors. Step Three describes the composition of the Labour-Management Relations Committee as follows:

"The Committee shall consist of three (3) members from the Association and three (3) members from the Council. No member directly involved in the Grievance shall sit on the Committee."

[emphasis added]

Also Section 45 [formerly Section 44] of the Labour Relations Act states as follows:

(1) Every collective agreement shall provide for the final and binding settlement by arbitration, without stoppage of work, of all differences between the parties arising from the interpretation, application, administration, or alleged violation of the agreement, including any question as to whether a matter is arbitrable.

5. The scheme of the Act is that all parties, including an employer bound by operation of law to a provincial agreement, have the right to an impartial arbitrator, or board, in dealing with a grievance alleging violation of a provincial collective agreement. It is very clear that the "Committee" in this case that rendered a "decision" does not qualify as an impartial board. The "Committee" is composed of three (3) members from the "Association" and an equal number from the "Council". As counsel for the Respondent pointed out the three (3) members of the Association on this committee would all be contractors and competitors of E.S. Fox who may have been unsuccessful bidders for the job giving rise to the dispute. While there were no accusations of impropriety in this case, counsel for the Respondent properly raised the concern of unsuccessful competitors being in a position to influence the final cost of a project by a decision of the Labour-Management Relations Committee against the contractor on the job. While the same scenario may not exist on the "Council" side, the process is open to abuse that can impact negatively on a local unton. The "Committee" cannot therefore be deemed impartial and as such does not meet the statutory requirement of Section 45 of the Labour Relations Act.

6. In Ontario Hydro and Ontario Hydro Employees' Union, Local 1000 et al (1983), 1983 CanLII 1868 (ON CA), 41 O.R. (2d) 669 (C.A.), Ontario Hydro sought to set aside a decision of a Board of Arbitration which conferred the right to arbitrate their discharge on probationary employees even though the collective agreement precluded them from doing so. The appeal was dismissed. The Court of Appeal determined that any provision in the agreement which blocks resort to arbitration to determine the right is void as contrary to Section 45. The case before us is another fashion of the same problem. How then can the "Association" and the "Council" (the bargaining agents) agree to dispose of that right in this case anymore than they would in the Ontario Hydro case? It is my respectful position that this Board cannot allow the bargaining agents to void the rights of local contractors and local unions. The Board must protect those rights under Section 45 of the Labour Relations Act.

7. The facts in this case bring it squarely within the decision of the panel in the Beckett Elevator case referred to in the majority decision. It is wrong to assume that the panel in the Beckett case did not consider the definition of a "provincial agreement" in Section 139(e) [formerly Section 137(e)I of the Act. The theory behind Beckett Elevator is that the bargaining agencies were created under Section 145 [formerly Section 143] of the Labour Relations Act only for the purpose of conducting bargaining and concluding a provincial agreement. Their mandate does not include the right to deprive individual employers or locals of the right to arbitrate a dispute under the agreement.

8. Section 139(e) of the Labour Relations Act defines a provincial agreement it is not an empowering provision. Under Section 145 the Employer/Employee Bargaining Agents are empowered to conduct bargaining and conclude a provincial agreement - those are limited rights. Section 139(e) does not by itself empower or override the limited rights that flow to the bargaining agencies under Section 145(a) [formerly Section 143(a).

9. What this decision stands for is the unchallengeable right of the Employer/Employee Bargaining Agencies to bargain into a collective agreement whatever they choose. Not only do they bargain what they want, the bargaining agencies also "arbitrate" any disputes under the collective agreement with their decision being final and binding on all the parties. This interpretation does not allow for any impartial appeal process for parties dissatisfied with the outcome of the Labour-Management Relations Committee of the Association and the Council "arbitration". Indeed this "Committee" takes over the role of the Labour Relations Board reducing the Boards role to that of a mere rubber stamp. Indeed that Joint Committee decision becomes an enforceable decision of the Supreme Court of Ontario even though the "parties" have not had the right to an "impartial" hearing as contemplated under Section 45 [formerly Section 44] of the Labour Relations Act.

10. decision leaves dissatisfied parties with only one avenue through which to pursue their complaints - Section 154 [formerly Section 151] of the Labour Relations Act. There is no sound labour relations purpose served by avoiding the arbitration process. As I have indicated earlier the majority interpretation can only lead to abuse and labour relations confusion.

11. For the above stated reasons, I would have dismissed the applicants preliminary motion and commenced hearing the grievance on its merits.