[1993] OLRB Rep. November 1117
1700-93-U; 1701-93-M Associated Contracting Inc., Applicant v. Michael Gallagher and International Union of Operating Engineers, Local 793, Responding Parties
BEFORE: Jules Block, Vice-Chair.
DECISION OF THE BOARD; November 2, 1993
- This is an application under section 137 of the Labour Relations Act ("the Act") and a related request for interim relief under section 92.1. The applicant, Associated Contracting Inc. ("the Employer" or "Associated") asserts, among other things, that officials of the respondent International Union of Operating Engineers, Local 793 ("the Union" or "Local 793") have threatened to encourage an unlawful strike and or picket at sites of Associated pursuant to what it described as an invalid "No Board Report", contrary to section 76 and 78 of the Act. Further, assuming that there is a valid "No Board Report", it is alleged that the union is picketing the Associated sites for an unlawful purpose and that the picketing is, therefore, unlawful. In its application under section 137, the employer seeks the following:
(a) A declaration that Local 793 abandoned its bargaining rights/collective agreement in relation to Associated Contracting.
(b) A declaration that the Appointment Of A Conciliation Officer and the subsequent issuance of a "No Board Report" by the Minister were without authority and of no effect.
(c) A declaration that M. Gallagher and the IUOE, Local 793 violated the Labour Relations Act as alleged in this Appendix 2.
(d) An order that M. Gallagher and the IUOE, Local 793 cease and desist from violating the Labour Relations Act in relation to any of the Responding Parties in OLRB File No. 2283-92-R.
(e) An order that no proceedings involving any of the Responding Parties in OLRB File No. 2283-92-R may be instituted by IUOE, Local 793, except with leave of the Board.
(f) Such further or other relief as the Board may consider to be appropriate.
These matters were expedited by Vice-Chair Sherry Liang in a decision dated September 2, 1993 and a hearing was scheduled on September 3,1993. At the commencement of the proceedings on September 3, the Board was asked to deal with two preliminary matters. The Board delivered several oral rulings in respect of the preliminary matters.
These are the Board's written reasons in respect of the preliminary matters. These reasons expand upon the oral rulings which issued during the course of the proceedings.
The Board was asked by the parties to decide whether Associated should be permitted to lead evidence to show that Local 793 had abandoned bargaining rights. The second matter involved a determination by the Board in respect of Local 793's reliance on the "No Board Report" for an allegedly unlawful purpose.
Most of the facts in this matter are not in dispute and can be succinctly summarised. Associated voluntarily recognized and signed a collective agreement with Local 793 on August 31, 1990. That collective agreement, which was filed with the Board, had an expiry date of April 30, 1992. It is the contention of Associated that during the currency of the collective agreement it did not abide by the terms and conditions of that collective agreement and that it operated in the construction industry as a non-union contractor with the express knowledge and acquiescence of Local 793. Local 793 denies these allegations. It is sufficient for our purposes that Associated was prepared to produce evidence in support of its assertion that Local 793 had abandoned its bargaining rights.
On February 6, 1992 (that is, within the period of ninety days before the agreement would cease to operate), Local 793 sent Associated "notice to bargain" a renewal collective agreement between the parties. On October 30, 1992, Local 793 filed its Request For Appointment of A Conciliation Officer with the Ministry of Labour. There was extensive correspondence between the Minister of Labour's office, Associated, and Local 793 with respect to this matter. Specifically, Associated objected to the appointment of a Conciliation Officer on the grounds that Local 793 had abandoned its bargaining rights. In a letter dated November 10, 1992 addressed to the Assistant Deputy Minister of Labour, counsel for Associated asserted that the employer had indicated its willingness to meet with the union after it received the February 6 "notice to bargain". Counsel advised the Ministry that:
“Despite this willingness, the union took no steps to arrange such a meeting at that date or any subsequent date up to and including today's date [November 10, 1992]"
Counsel for the Union, in a letter to the Ministry dated December 7, 1992, denied the employer's assertion and indicated that it had "sought to bargain with representatives of the employer by requesting meetings at various times over the last several months". It is interesting to note that at one point in this chain of events both Associated and Local 793 requested that, pursuant to section 109 of the Act, a ministerial reference be made to the Board to determine the status of the trade union's bargaining rights. On June 21, 1993, the Minister advised the parties that it would not be referring this matter to the Board and a conciliation officer was subsequently appointed. The Minister, as evidenced by the correspondence, took the position that it is within the jurisdiction of the Board to make determinations about bargaining rights. In its letter dated June 21, 1993, the Ministry noted that, although the employer asserted as early as November 1992 that the union had abandoned its bargaining rights "there had been no declaration from the Ontario Labour Relations Board that the union no longer represents the employees in the bargaining unit". On August 10, 1993 the Minister issued a "No Board Report".
- On November 5, 1992, Local 793 and the Labourers International Union of North America, Local 183 filed separate applications for certification in respect of employees of Associated and various other related companies (the "Capobianco Companies"). In the reply to the certification application, the respondents (including Associated) acknowledged the followings facts:
a) Associated Contracting Inc. and Capo Contracting Inc. are the only corporations (of the responding parties) employing construction industry field personnel.
b) Associated Contracting Inc. and Capo Contracting Inc. are associated or related businesses or activities under common direction and control within the meaning of section 1(4) of the Act.
- As a result of the applications for certification, Associated has, to date, attended at 14 days of Labour Relations Officer examinations. As well, there are at least two outstanding grievances in respect of Associated. Local 793's position with respect to these matters is best summed up by a December 23, 1992 letter from its counsel to the Registrar of the Board. The letter is reproduced below:
In connection with the above-captioned proceedings we wish to confirm the following:
(i) I.U.O.E. Local 793 currently holds bargaining rights pursuant to a voluntary collective agreement signed in the name of Associated Contracting Inc. which expired April 30, 1992;
(ii) I.U.O.E. Local 793 served timely notice to bargain by registered letter dated February 6, 1992 activating a Section 81 freeze period for all terms and conditions of employment under the collective agreement;
(iii) The most recent reports received from Associated Contracting Inc. forwarded to the I.U.O.E. Local 793 Trust Funds by President I. Capobianco are "nil reports" indicating that the business was inactive;
(iv) However, construction activity by the Respondent Corporations was observed by I.U.O.E. Local 793 which initiated its organizing drive leading to this Application for Certification filed on November 5, 1992;
(v) The Reply filed by the Respondent Corporations acknowledged the following facts:
(a) Associated Contracting Inc. and Capo Contracting Inc. are the only Respondent Corporations employing construction industry field personnel; and
(b) Associated Contracting Inc. and Capo Contacting Inc. are associated or related businesses or activities under common direction or control within the meaning of Section 1(4) of the Act.
(vi) I.U.O.E. Local 793 made an Application for the Appointment of a Conciliation Officer on October 30, 1992.
(vii) I.U.O.E. Local 793 filed a grievance dated November 12, 1992 against Associated Contracting Inc. which is presently being referred to the Ontario Labour Relations Board pursuant to Section 126.
Accordingly, it is the position of I.U.O.E. Local 793 that it already holds bargaining rights for its craft for the entirety of the "Associated Paving" enterprise consisting of the Respondent Corporations. Further I.U.O.E. Local 793 will pursue its bargaining rights and violations of the operative collective agreement.
I.U.O.E. Local 793 will also pursue a formal declaration that the Respondent Corporations are associated or related businesses or activities under common direction or control within the "Associated Paving" enterprise pursuant to Section 1(4) of the Act and are bound to the collective agreement and the bargaining rights thereunder.
Finally, in the alternative, I.U.O.E. Local 793 relies on this Application for Certification as against all Respondents pursuant to Section 1(4) to confirm and/or establish bargaining rights for its craft.
Yours truly,
KOSKIE AND MINSKY
(SIGNED)
for: Stephen Wahl
- Associated takes the position that this letter is evidence of the inconsistent nature of Local 793's positions. Counsel submits that, having elected to proceed with its application for certification against all of the Capobianco Companies, including Associated, Local 793 should not be permitted to pursue its rights through the conciliation process in the alternative. In the above-noted application for certification, the only mention of previously existing bargaining rights is found at paragraph 10 (x). The applicant states:
(x) Contracting (associated) and the Applicant were bound by a collective agreement which expired on April 30, 1992. Contracting has ceased to observe the provisions of this collective agreement.
Associated's counsel submits that the application for certification is in relation to the same employees who have continued to work for Associated at the sites of the threatened picketing. Further, the application for certification involves a petition, which may be affected by the various positions of Local 793 before this Vice-Chair.
Counsel for 793 submits that the Minister of Labour and the Board have a shared jurisdiction under the Act. The appointment of Conciliation Officers and the release of "No Board Reports" are within the exclusive jurisdiction of the Minister. So long as the statutory preconditions are met, the Minister, subject to a reference to the Board pursuant to section 109, must appoint a conciliation officer, and, subsequently, upon request, issue a "No Board Report".
The relevant sections of the Act are set out below:
16.-(1) Where notice has been given under section 14 or 54, the Minister, upon the request of either Party, shall appoint a conciliation officer to confer with the parties and endeavour to effect a collective agreement.
If the conciliation officer is unable to effect a collective agreement within the time allowed under section 18,
(b) the Minister shall forthwith by notice in writing inform each of the parties that he or she does not consider it advisable to appoint a conciliation board.
(2) Where no collective agreement is in operation, no employee shall strike and no employer shall lock out an employee until the Minister has appointed a conciliation officer or a mediator under this Act and,
(b) fourteen days have elapsed after the day the Minister has released or is deemed pursuant to subsection 115 (3) to have released to the parties a notice that he or she does not consider it advisable to appoint a conciliation board.
78 (1) No person shall do any act if the person knows or ought to know that, as a probable and reasonable consequence of the act, another person or persons will engage in an unlawful strike or an unlawful lock-out.
(2) Subsection (1) does not apply to any act done in connection with a lawful strike or lawful lock-out.
108-(l) The Board has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it, and the action or decision of the Board thereon is final and conclusive for all purposes, but nevertheless the Board may at any time, if it considers it advisable to do so, reconsider any decision, order, direction, declaration or ruling made by it and vary or revoke any such decision, order, direction, declaration or ruling.
109.-(l) The Minister may refer to the Board any question which in his or her opinion relates to the exercise of his or her powers under this Act and the Board shall report its decision on the question.
Local 793 asserts that the Board has no role in giving unsolicited advisory opinions in respect of matters within the exclusive jurisdiction of the Minister. In this respect Counsel for Local 793 argues that there is a distinction between matters referred to the Board on original invocation of its jurisdiction and matters that are subordinately referred where original jurisdiction rests in another authority. (see: Regina v. Ontario Labour Relation Board, Ex parte Kitchener Food Market Ltd. 1966 CanLII 248 (ON CA), [1966] 2 O.R. 513 at p.522) In this case the Minister specifically declined to refer the question to the Board and, consequently, the Board should not do through the back door what it was not asked to do through the front door. It is clear law that even if the Minister should ask for the Board's opinion, the Minister is not bound by that opinion.
Counsel relies on Mcleod & Sons [1972] O.L.R.B. Rep. Jan. 102 as determinative of this issue. The case involves an attempted raid by the Christian Labour Association of Canada ("C.L.A.C.") in respect of a bargaining unit represented by the International Brotherhood of Painters and Allied Trades, Local Union 1824. This "raid" was commenced by C.L.A.C. after the appointment of a conciliation officer. This appointment closed the so-called "open period". C.L.A.C. wanted to introduce evidence before the Board to establish that the predecessor trade union never had bargaining rights in respect of the employees of Mcleod & Sons. The Board would not entertain this evidence and found the application for certification untimely.
Associated's Counsel submits that the issue of abandonment is an issue of fact and law. Section 108 (1) grants the Board exclusive jurisdiction to determine all questions of fact or law that arise in any matter before it. The issue of abandonment arises collaterally in considering whether the picketing is unlawful. Counsel argues that a finding of abandonment would not technically affect the "No Board Report", as only the Minister can, with a stroke of his/her pen, make it null and void. Counsel relies on Gravel and Lake Services Limited [1990] OLRB Rep. March 262 for this proposition. This case involved a "final offer vote" pursuant to section 40 of the Act and whether the Board was the proper forum to adjudicate matters in relation to voter eligibility. The Board held that the Minister has no authority to adjudicate or determine disputes in which breaches of the Act are alleged. Further Counsel asserts that although the Minister specifically declined to ask the Board's opinion in this matter pursuant to section 109, the Board can make a determination in respect of abandonment in this case. In doing so, counsel submits, the Board is not making an advisory opinion but, rather, a ruling in respect of bargaining rights.
The Board has jurisdiction to consider whether bargaining rights exist or have been abandoned in the context of a section 137 application. However the Board has no jurisdiction to set aside a "No Board Report" or to declare that a "No Board Report" issued by the Minister is of no effect or a "nullity", as requested by the employer in this case. The Minister's authority under the Act to appoint Conciliation Officers and to issue "No Board Reports" is exclusive. The Board's decision in Gravel and Lake Services Limited, (supra), does not assist the employer's argument in this matter. The Board in Gravel and Lake Services Limited,(supra) did not in any way affect the ordering of a section 40 final offer vote, which was within the exclusive jurisdiction of the Minister of Labour. Once the Minister ordered the vote~ the Board in reviewing the eligibility of the voters, or the conduct of the vote, was performing functions which were in aid of, and consistent with, the Minister's original determination. We find that Gravel and Lake Services Limited ,(supra) is clearly distinguishable from the case at hand. The employer asserted before the Minister in November 1992 that the union had abandoned its bargaining rights on the grounds of alleged inactivity and an alleged failure to attempt to negotiate a renewed collective agreement. However, at no time prior to November 1992, nor in the ten months following, did the employer seek a declaration from the Board that the union no longer represents its employees. The employer, for reasons known only to it, has never chosen to seek such a declaration from the Board. Associated, prior to the granting of the "No Board Report" could have sought, pursuant to section 60 of the Act a declaration that the union no longer represents the employees in the bargaining unit. Instead, it has sought to raise the issue with the Board only after the issuance of a "No Board Report" and do so only collaterally in the context of a section 137 application. In all these circumstances, and having particular regard to the sequence of events and the timing of this application, the Board was not inclined to inquire into the continued existence of bargaining rights in this case.
In respect of the second matter, Counsel for Associated asserts that Local 793 is relying on the "No Board Report" for an unlawful purpose. It is alleged the the picketing was designed to force Associated and the rest of the Capobianco family to sign collective agreements. This pressure during a certification proceeding, it is said, is tantamount to a recognition strike.
Associated's counsel submits that Local 793 has taken many fresh steps in respect of a multiplicity of proceedings which are on their face inconsistent. An example of this is Local 793 placing on the list of employees in the certification application the very same employees it will prevent from working during a strike. How, it asks, can workers who are properly on the list of employees in respect of a certification application also be the same employees affected by a lawful strike? As well, Local 793 is also asserting bargaining rights in at least two grievances presently before the Board. How, it asks, can the Board entertain grievances in relation to a company that is in the process of being organized? An unorganized company does not have collective agreements.
Associated's counsel relies on the improper purpose doctrine as discussed at paragraphs 26 through to 30 in Bay-Tower Homes Company Ltd. [1988] OLRB Rep March 259. That case involved another in a long series of skirmishes between Local 27, United Brotherhood of Carpenters and Joiners of America and Local 183, Labourers' International Union of North America. In particular, Local 183 was using its "No Board Report" with respect to one company to force other related companies to sign collective agreements. The Board held that Local 183's picketing was not aimed predominantly at exerting pressure on the primary employer in respect of a labour dispute with that employer. In support of this theory counsel relies by analogy on Horton CBI, Limited. [1985] OLRB Rep. June 880, a case where the Board found that picketing in support of jurisdictional claims would as a probable and reasonable consequence, induce persons to engage in an unlawful strike. The Board in that case found that the Ironworkers' union was using the picket line to circumvent other sections of the Act. (For a similar analysis see Traugott Construction Limited, [1981] OLRB Rep. Nov. 1680; Traugott Construction Limited, [1982] OLRB Rep. June 958; upheld on judicial review at 84 CLLC 12,098.)
Counsel for Associated submits that Local 793 should not be allowed to resile from the position it took in the certification application. By agreeing that employees of Associated are properly on the employers' list of employees, Local 793 is asserting that it does not have bargaining rights. In Construction 2000 [1988] OLRB Rep. Oct. 1017 the Board held that the Labourers union abandoned its bargaining rights for carpenters when it withdrew its intervention. It was not open to the Labourers union to refuse to defend bargaining rights, which it claimed to hold, where the existence of those rights had been placed directly in issue and still purport to retain them for some other purpose.
Counsel for Associated argued that the Board must conclude that the purpose of picketing during certification proceedings was to effect voluntary recognition of the union by Associated and other members of the Capobianco family.
Counsel for 793 asserted that Associated wanted a total ban on picketing. Such a ban would totally conflict with the statutory rights flowing from "No Board Report". He further commented that the Board can not order a total ban on picketing as such a ban would nullify the "No Board Report" and that is not within the Board's jurisdiction.
In the alternative, submitted Counsel, Local 793 has done nothing unlawful. All actions taken are properly sanctioned by the Act. A party is entitled to take a multiplicity of steps to properly protect itself in respect of a very complex matter. The Board in Bay-Tower Homes (supra) found that Local 183's predominant purpose was to pressure the four picketed employers to sign agreements with it. This was purely and simply a recognition strike. The case at hand is totally different. The materials filed indicate that Local 793's only motive, for picketing or threatening to picket the sites, was the signing of a collective agreement with Associated. This was in lawful reliance on the No Board Report.
The restriction of picketing in relation to a lawful strike is clearly within the jurisdiction of the Board. (see: Sarnia Construction Association, [1982] OLRB Rep. June 922; Bird Construction Company Limited [1985] OLRB Rep. March 359.) We find that in the circumstances of this case, it is unnecessary to rule on whether a total ban on picketing, pursuant to a valid "No Board Report", would render the No Board Report null and void.
The facts of this case are unusual to say the least. All parties have worked very hard to preserve all their legal rights and positions. Even in respect of the pleadings and processing of this case, the parties insisted on an unusual format which included stipulated positions in an attempt to preserve arguments in a certain way, for proceedings which might or might not take place in the future. With respect to the certification proceeding, neither party was prepared to acknowledge, for the purpose of that proceeding, that Associated had bargaining rights. Associated did not acknowledge bargaining rights because it contended that Local 793 had abandoned bargaining rights. In its view, since the Union was no longer the bargaining agent for the employer, it was willing to put Associated's employees on the employer's list. This position is consistent with the position Associated took before the Board in respect of this case. The Union, for its part, acknowledged that Associated and Local 793 were bound to a collective agreement that expired on April 30, 1992, however took the position that employees of Associated were properly subject to the certification application. In effect the Union was attempting to set up a defence to a finding of abandonment should it be certified. The position of the Union is summed up in the December 23 1992 letter reproduced above. Since the abandonment issue had not been decided or even placed before the Board, neither party was prepared to unleash a legal argument which would affect its overall position until the issue of abandonment had been decided.
Associated asserts that the only purpose for picketing against Associated, was to get it, and the rest of the Capobianco family to sign a collective agreement. Associated bases this conclusion on the fact that Local 793 has applied for certification against Associated and the related companies within the Capobianco family. Associated asserts that the predominate reason for picketing was "voluntary recognition". Counsel asks the Board to find that, on the basis of the certification application alone, Local 793's purpose for picketing is unlawful.
Local 793 has set up a multiplicity of positions which, on their face, seem inconsistent. However in reality, they are answers to positions taken, or about to be taken, by Associated. Local 793 has demonstrated and we so find, that the predominant purpose of the threatened picketing was to put economic pressure on the primary employer so that the primary employer would sign a Collective Agreement. In this case we are unable to find that the threatened picketing was in connection with an unlawful purpose. In fact, the pressure threatened to be exerted on the employer is pressure that is specifically contemplated by the Act.
After the Board ruled on the second preliminary matter, the parties advised the Board that they wished to sign a collective agreement in the presence of the Board. The parties jointly requested an opportunity to stipulate positions prior to signing and they also requested that these stipulations be recorded in this Decision.
The following are the parties stipulated positions. Associated's counsel stipulates that Mr. Capobianco is signing the collective agreement under duress, specifically as a result of what Associated considers to be unlawful picketing. Counsel appreciates that this matter has already been decided in light of the Board's rulings. Counsel further submits that Associated does not intend to voluntarily implement the collective agreement. All of the foregoing is intended to be without prejudice to the position of Associated in relation to any court proceeding which may be commenced. It is Associated's understanding that Local 793 does not agree that there is any duress or unlawful picketing and that Local 793 may or will institute proceedings forthwith to require compliance with the renewal collective agreement. On the basis of these representations, the decisions of the Board herein, and the signing of the collective agreement this matter may be disposed of by the Board.
Counsel for Local 793 stipulates that the renewal collective agreement is not being signed under duress. In particular Local 793 denies that there has been any unlawful picketing and relies on the Board's preliminary rulings in this matter to the effect that the union is in a lawful strike position with a valid "No Board Report" in relation to Associated. Local 793 has put Associated on notice that it is going to enforce compliance with all terms and conditions of the collective agreement, and take all necessary proceedings against Associated in respect of enforcing the collective agreement. Further, the execution of the renewal agreement is without prejudice to all outstanding proceedings. In light of the above stipulations, and the signing of the collective agreement, the respondent requests that both applications be dismissed.
As we ruled orally, after the parties signed the Collective Agreement, which settled all the outstanding issues, and for the foregoing reasons these applications are dismissed.