[1993] OLRB Rep. March 219
3164-92-M International Union of Bricklayers and Allied Craftsmen Local 2, Ontario, Applicant v. Metropolitan Toronto Apartment Builders Association and Labourers' International Union of North America Local 183, Responding Parties v. Metropolitan Industrial & Commercial Masonry Contractors Inc., Responding Party (Intervenor #1) v. Masonry Contractors Association of Toronto Inc., Responding Party (Intervenor #2)
BEFORE: S. Liang, Vice-Chair, and Board Members F. B. Reaume and G. McMenemy.
APPEARANCES: N. L. Jesin and Mario Dos Santos for the applicant; Bruce Binning and Richard Lyall for Metropolitan Toronto Apartment Builders Association; C. M. Mitchell, Q. Ceolin and R. Lotito for Labourers, Local 183; Jason Hanson, David Mombourquette and Brian McKinley for Metropolitan Industrial & Commercial Masonry Contractors Inc.; C. E. Humphrey and J. DeCona for Masonry Contractors Association of Toronto Inc.
DECISION OF THE BOARD; March 15, 1993
The name of the first responding party is amended to: "Metropolitan Toronto Apartment Builders Association".
This is an application for interim relief made pursuant to the provisions of section 92.1 of the Labour Relations Act. On February 8, 1993, after hearing the submissions of the parties, the Board dismissed the application. These are our reasons for the ruling.
The application relates to a complaint under section 91 of the Act filed by the International Union of Bricklayers and Allied Craftsmen Local 2, Ontario ("Local 2") against the Metropolitan Toronto Apartment Builders Association ("MTABA") and the Labourers' International Union of North America, Local 183 ("Local 183"), among others. In the complaint, Local 2 alleges that the MTABA and Local 183 and others have violated sections 65, 67, 68 and 71 of the Act. The actions complained of include alleged misrepresentations and threats made by Local 183 and the Bricklayers, Masons, Independent Union of Canada, Local 1 ("Local 1") to a number of bricklayer contractors with whom Local 2 has bargaining rights and the signing of collective agreements between Local 183 and Local 1 and a number of these contractors. The complaint also contains allegations that Local 183 and the MTABA have violated the Act by agreeing to a sub-contracting clause in the collective agreement between them which requires that all bricklaying work be performed by companies bound to an agreement with Local 183 or Local 1.
The application is supported by the declaration of John Robbins. The declaration states:
D E C L A R A T I O N
I JOHN ROBBINS, hereby declare that the facts contained in paragraphs 1, 2, 11, 12, 13, 14, 15, 16, 17 and 18 of Schedule "A" herein are within my knowledge and are correct. This declaration has been prepared under my instruction and I hereby confirm its accuracy.
Dated at North York this 2nd day of February, 1993.
"John Robbins"
John Robbins
- The Schedule "A" referred to in the above declaration is contained in the complaint made under section 91 of the Act, attached to this application. The paragraphs which have been incorporated into Mr. Robbins' declaration are as follows:
SCHEDULE "A"
The International Union of Bricklayers and Allied Craftsmen, Ontario Provincial Conference and its local, Local 2 (the "Applicants") are designated in the industrial, commercial and institutional sector as the representative for all bricklayers, stone masons and their respective apprentices. In addition, the Applicants represent employees involved in bricklaying and masonry work in all other sectors of the construction industry.
Specifically within the residential sector, the Applicant Local 2, has for may [sic] years held bargaining rights in the greater Toronto area with employers active in the residential sector, both high rise and low rise.
In or about the Spring of 1992, Local 183 commenced negotiations with the Metropolitan Toronto Apartment Builders Association ("MTABA") for a renewal of the collective agreement between them. The MTABA represents many employers engaged in the construction of high rise residential housing.
Local 2 has subsisting collective agreements covering bricklaying and masonry work with employers who are signatories to the MTABA-Local 183 agreement. Those employers include Konvey Construction Company Ltd., Mollenhauer Limited, Mime & Nichols Limited and West York Construction Ltd.
In addition, the Applicants hold bargaining rights for employers that are primary subcontractors of bricklaying and masonry work from the majority of the signatories to the MTABA agreement. Employers that fit in this category include:
Arcadia Group Investments Ltd.
Belmont Construction Company Ltd.
Bradscott Construction Co. Ltd.
Bramalea Limited
The Camrost Group Inc.
Coscan Development Corporation
Dirpam (1983) Limited
Erskine Building Corporation
Garcon Construction Inc.
Goldlist Construction Company
H & R Developments
Jaltas Inc.
Matthews Group Limited
Menkes Properties
New Style Developments
Ronto Development Limited
Shipp Corporation Limited
Sky Top Developments Limited
Tactix Construction Limited
Toddglen Construction Limited.
Local 183, did not and does not, represent any bricklayers employed by MTABA employers. Notwithstanding that they did not represent any affected employees they demanded that the revised collective agreement with the MTABA contain a subcontracting provision which requires that all bricklaying work be performed by companies bound to an agreement with Local 183 or Local 1.
As a result of Local 183's demands, the MTABA and its member companies agreed to revise the collective agreement and include as Article 1.04(a)(ix) the aforementioned subcontracting clause covering bricklaying. Article 1 .04(a)(ix) is to take effect on February 1,1993 in accordance with the provisions of the Letter of Understanding contained in Schedule "B" of the collective agreement. A copy of the collective agreement is included in Appendix "C".
Employers who are bound to a collective agreement with Local 2 have been advised that they will not be able to tender on bricklaying contracts on MTABA jobs.
The result of the circumstances as alleged, is that contractors bound to collective agreements with Local 2 will be put out of business. It is submitted that Local 183 and the MTABA have has [sic] interfered with the contractual relations between Local 2 and the employers which are bound to it.
It is submitted that Local 183 obtained the sub-contracting clause covering bricklaying work with MTABA for reasons other than the preservation of bargaining rights. Moreover, it is submitted that Local 183 and MTABA sought to undermine the bargaining rights held by Local 2.
The application also states:
The applicant makes the following representations as to why the specific interim order(s) should be made:
It is requested that the order be of 12 months duration in order that employers bound to Local 2 may bid on upcoming jobs during the current building season and complete those jobs using Local 2 members. The term of the collective agreement which is the subject of the order has already effectively prohibited companies bound to Local 2 from submitting bids on bricklaying jobs. As a result Local 2 members have lost employment opportunities to which they are otherwise entitled.
The Local 183 - MTABA collective agreement has been filed with us. We note that in addition to setting out the effective date of the sub-contracting provision in question, Schedule "B" of that agreement also states: "The formation of a common union of Local 183 and Local 1 must take place before December 31, 1993, failing which such provision will expire as of that date."
As is apparent, therefore, the interim relief requested pertains to one aspect of the complaint, the negotiation of sub-contracting language covering bricklaying work between the responding parties. Indeed, there are a number of parties to the main complaint, the bricklaying contractors whom it is alleged have signed collective agreements with Local 183 and Local 1, who have not been named as responding parties on this application for interim relief. To the extent that we review the allegations contained in the complaint for the purposes of this application, therefore, we confine our consideration to the portion of the complaint which is relevant to this application.
At the hearing into this application, the Metropolitan Industrial & Commercial Masonry Contractors Inc. ("MIC") and the Masonry Contractors Association of Toronto Inc. ("MCAT") sought to intervene. In addition to making submissions on the issues, MCAT sought to rely on a declaration filed with its response. After hearing submissions the panel ruled that, although neither MIC nor MCAT have a strictly legal interest in this proceeding, in the exercise of its discretion, the Board would give them standing to make oral submissions on the issues before it. However, having regard to the fact that the interests asserted are more of a commercial nature than a legal one, the Board restricted their participation to oral submissions. The Board, therefore, did not rely on the declaration submitted by MCAT on the merits of the interim relief application.
Local 183 filed a response, a declaration by Rocco Lotito, and written representations. No materials were filed by the MTABA. The materials filed by Local 183 take issue with most of the facts relied on by Local 2 in this application. In addition, the declaration sets out the facts that Local 183 relies on. These relate to, among other things, the delay in bringing this application, and the harm that would come to Local 183 if interim relief were granted.
The parties referred the panel to a number of court decisions. These cases deal with either the standards applied in determining whether to grant interlocutory injunctions, or the standards applied in determining whether to grant an interim order staying the operation of a decision of the Board, pending appeal. We find the latter group of cases of limited assistance to our deliberations. The factors taken into account by a court in deciding interlocutory injunction applications are somewhat more helpful. In particular, we find it necessary, as a first step, to assess whether there is any apparent merit to the complaint which forms the basis of this request for interim relief. Although we need not determine for the purposes of this application whether it is likely that Local 2 will succeed in its complaint, the apparent lack of an arguable case would be a relevant consideration in the exercise of our discretion to grant interim relief.
After spending a day of hearing reviewing the issues with the parties, it appears to us that there are considerable obstacles to the success of the complaint by Local 2.
As we outlined above, the complaint alleges violations of sections 65, 67, 68 and 71 of the Act. Having regard to the portion of the complaint relevant to this application, we have serious doubt as to whether it discloses any arguable case under sections 65, 67 and 71 of the Act, which read as follows:
No employer or employers' organization and no person acting on behalf of an employer or employers' organization shall participate in or interfere with the formation, selection or administration of a trade union or the representation of employees by a trade union or contribute financial or other support to a trade union, but nothing in this section shall be deemed to deprive an employer of the employer's freedom to express views so long as the employer does not use coercion, intimidation, threats, promises or undue influence.
No employer, employers' organization or person acting on behalf of an employer or an employers' organization,
(a) shall refuse to employ or to continue to employ a person, or discriminate against a person in regard to employment or any term or condition of employment because the person was or is a member of a trade union or was or is exercising any other rights under this Act;
(b) shall impose any condition in a contract of employment or propose the imposition of any condition in a contract of employment that seeks to restrain an employee or a person seeking employment from becoming a member of a trade union or exercising any other rights under this Act; or
(c) shall seek by threat of dismissal, or by any other kind of threat, or by the imposition of a pecuniary or other penalty, or by any other means to compel an employee to become or refrain from becoming or to continue to be or to cease to be a member or officer or representative of a trade union or to cease to exercise any other rights under this Act.
No person, trade union or employers' organization shall seek by intimidation or coercion to compel any person to become or refrain from becoming or to continue to be or to cease to be a member of a trade union or of an employers' organization or to refrain from exercising any other rights under this Act or from performing any obligations under this Act.
In our view, having regard to the material before us and the submissions of the parties, the only aspect of the complaint which appears to support any arguable case is that relating to section 68, which reads:
68.- (1) No employer, employers' organization or person acting on behalf of an employer or an employers' organization shall, so long as a trade union continues to be entitled to represent the employees in a bargaining unit, bargain with or enter into a collective agreement with any person or another trade union or a council of trade unions on behalf of or purporting, designed or intended to be binding upon the employees in the bargaining unit or any of them.
(2) No trade union, council of trade unions or person acting on behalf of a trade union or council of trade unions shall, so long as another trade union continues to be entitled to represent the employees in a bargaining unit, bargain with or enter into a collective agreement with an employer or an employers' organization on behalf of or purporting, designed or intended to be binding upon the employees in the bargaining unit or any of them.
Reduced to its essentials, if Local 2 holds bargaining rights for bricklayers engaged in the construction of apartment buildings (which is the scope of work covered by the Local 183-MTABA collective agreement and which, for ease of reference, will be referred to hereinafter as the “residential sector"), employed by the four companies named in Schedule "A" who are also party to the Local 183-MTABA agreement, then it is arguable that Local 183 and the MTABA have negotiated a collective agreement which is in conflict with the bargaining rights held by Local 2.
Local 2 seeks to base its assertion of bargaining rights with respect to these four companies, on its provincial agreement. This is a collective agreement between the International Union of Bricklayers and Allied Craftsmen and the Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftsmen and the Masonry Industry Employers Council of Ontario. The parties to this agreement have been designated as employee and employer bargaining agencies under section 141 of the Act for the purposes of bargaining in the industrial, commercial and institutional (ICI) sector of the construction industry in Ontario. Although the collective agreement is not apparently limited in scope to the ICI sector, there is nothing in the materials indicating how the employer bargaining agency has the authority to bargain for the four named companies with respect to the residential sector. We have not been referred to any Board certificates or voluntary recognition agreements signed by the four companies, covering the residential sector. There is nothing before us which reveals the source of the Local 2 bargaining rights in the residential sector with respect to these four companies. Local 2 does not assert that these four companies are or have ever been bound to a separate residential agreement. Incidentally, it appears that Local 2 does have a separate residential collective agreement, which has been signed by some of the contractors bound to the provincial agreement. It has not been signed, however, by these four MTABA members.
Given that the basis for the complaint by Local 2 with respect to the sub-contracting provision is based on an alleged interference with its bargaining rights in the residential sector, it would not be too onerous to require more particularity with respect to the source of its own bargaining rights. Thus, although it may be said that there is an arguable case, accepting all of the very broad statements made by Local 2 in this complaint, we are reluctant to give it very much weight in the context of this request for interim relief.
All of the parties have urged the Board to look at the relative harm which may arise from a decision to grant or deny interim relief. In support of this application, Local 2 has alleged that if this application is not granted, its members will lose employment opportunities. It has also stated that contractors bound to collective agreements with Local 2 will be put out of business. This panel accepts that members of Local 2 may well have fewer work opportunities as a result of the sub-contracting agreement between Local 183 and the MTABA. The very purpose of the subcontracting provision is to increase the work opportunities for Local 183, or Local 1, members. Presumably, the result of granting the interim relief in favour of Local 2 would be the reduction of work opportunities to the members of Local 183 and Local 1.
Likewise, the bricklaying contractors bound to Local 183 and Local 1 collective agreements are also beneficiaries of the sub-contracting language. The granting of interim relief would therefore diminish the contracting opportunities available to these companies.
This panel has serious reservations about accepting the bald statement made by Local 2 that bricklaying contractors bound to its collective agreements will be put out of business. Firstly, there are absolutely no supporting facts in the declaration for this statement. Although John Rob-bins has attested that this is a fact "within his knowledge and correct", clearly, it can only be speculative. Without any further detail, and without elaboration as to how exactly this fact can be within Mr. Robbins' knowledge (it does not appear to us that he would be the party with the best knowledge on this and we would therefore also be interested to know why the party with the best knowledge is not the declarant), this panel prefers not to rely on such a statement.
In applications for interim relief, the materials on which the Board bases its determinations are essentially the pleadings accompanied by written declarations. Under the Board's Rules of Procedure, there is no provision for cross-examination on these declarations. The Board may schedule an oral hearing, as it did here, to hear the parties' submissions. It is evident that great reliance is placed on the written declarations. Thus, it is reasonable to expect these declarations to contain a certain level of detail and specificity, at least with respect to those matters which should be within the knowledge of the parties, such as the harm that will occur. Absent this, parties will encounter some reluctance from the Board about relying on broad statements without any supporting facts.
Secondly, as we have noted above, this panel views only a very discrete core of the complaint as supporting an arguable case. This "core of a case" relates to the four named MTABA contractors with whom Local 2 claims to have bargaining rights. Given that there are more than thirty member contractors listed in the MTABA agreement, it appears to us that the harm alleged will occur apart from the facts alleged with respect to these four particular contractors in any case.
Further, this panel is concerned about the effect of granting interim relief on the bargaining relationship between Local 183 and the MTABA. The declaration of Rocco Lotito, submitted by Local 183, states:
If the interim relief is granted, Local 183 will have lost an essential component of the collective agreement which it bargained for in April 1992 at the request of a stranger to that collective agreement, without obtaining any compensating benefits from the party with whom it bargained. Collective bargaining for this collective agreement and others required the giving of concessions in order to obtain advantages. If the relief is granted, the advantage negotiated by Local 183 is lost, and the concessions it had to make to obtain the subcontracting clause have been lost as well. In short, the Board is being asked to change the essential bargain that MTABA and Local 183 arrived at through open and lawful collective bargaining, at the request of a stranger, who cannot claim any direct benefit, and who has had to give up nothing to obtain the relief requested.
In our view, this is a significant factor. There is no doubt that a Board order staying the effect of one of the provisions in the collective agreement would be a serious intrusion into the bargain made between Local 183 and the MTABA.
Local 183 and the MTABA also submit that delay by Local 2 in bringing the complaint and this application ought to lead to the refusal of relief. The collective agreement which is under attack was entered into in April 1992. The complaint was filed on January 21,1993, and the application on February 2. Local 2 submits that it did not know of the existence of the sub-contracting language until December of 1992, although it does not deny that a number of Local 2 sub-contractors took issue with it immediately after the signing of the agreement. Given the purported damaging effect that Local 2 claims the agreement has on its own interests and the interests of Local 2 sub-contractors, the length of time which has elapsed is somewhat surprising. As argued before us, the interests of Local 2 and of the sub-contractors bound to Local 2 agreements are almost the same tn this matter, and we find that Local 2 should have known earlier of it.
We are inclined to agree that delay in starting proceedings is a factor which the Board may take into account. In this case, had the complaint by Local 2 been made immediately, there would have been no need for it to apply for interim relief, since the sub-contracting provision had a delayed effective date, until February 1, 1993. It is arguable, therefore, that the other parties have been prejudiced by the delay, in that they have been denied the opportunity to deal with the matter at a time before the clause came into effect.
In sum, therefore, there is no obvious reason why the harm to Local 2 of denying this application outweighs the harm to the responding parties of staying the sub-contracting provision of their collective agreement. The delay in bringing the complaint has contributed to the harm that would result from granting the application. Further, although we have found that there is a core of an arguable case in the complaint, the lack of specificity as to some of its essential elements leads us to view this with some circumspection, where these facts are within the knowledge of the applicant.
Before we conclude, we wish to comment on a few procedural matters raised during the hearing. Submissions were made by counsel for Local 183 at the hearing, supported by counsel for the MTABA, that the application filed was not in compliance with Rule 86 of the Board's Rules of Procedure requiring "complete written representations in support of the applicant's position". It is true that the materials in the application are sparse. However, the issues raised are disclosed to the extent necessary for the responding parties to know the case they must meet, and the applicant did not seek to go beyond them in oral argument. Parties should be aware, however, that under its Rules, the Board may decide an application for interim relief without an oral hearing. If they choose to rely on scant materials, it is at their peril.
Also, no response and no declarations were filed by the MTABA in this matter. Local 2 submitted that the MTABA should be deemed to have accepted all of the facts stated in its application as a result, pursuant to Rule 19. We did not view this as an appropriate case for the application of Rule 19, and so ruled at the hearing. Counsel for the MTABA did not seek to file any materials at the hearing, and stated that he would be making oral submissions in support of the response and materials filed by Local 183.
Since the hearing in this matter, another panel of the Board has released its decision in 810048 Ontario Limited c.o.b. as Loeb Highland, Board File No. 2912-92-M [now reported at [1993] OLRB Rep. Mar. 197], the reasons for which we consider to be consistent with our findings herein.