Labourers' International Union of North America, Local 183 v. Metropolitan Toronto Apartment Builders' Association, 1994 CanLII 9890

Ontario Labour Relations Board

[1994] OLRB Rep. November 1568

1047-94-G Labourers' International Union of North America, Local 183, Appli­cant v. Metropolitan Toronto Apartment Builders' Association, Responding Party

BEFORE: Robert Herman, Vice-Chair, and Board Members M. M. Vukobrat and J. Redshaw.

APPEARANCES: L. A. Richmond, M. J. Reilly, A. Dionisio and R. Lotito for the applicant; Joseph Liberman and Richard Lyall for the responding party.

DECISION OF THE BOARD; November 4, 1994

I

1This is an application brought pursuant to the provisions of section 126 of the Labour Relations Act, in which the applicant L.I.U.N.A., Local 183 (hereinafter, "Labourers 183" or the "Labourers"') allege that the Metropolitan Toronto Apartment Builders' Association (hereinafter, "MTABA") has breached the collective agreement. The particular clause in question is found in an attached Letter of Understanding and it requires that the MTABA only subcontract bricklaying to companies in contractual relations with Bricklayers Local 1 or Labourers' 183, provided how­ever, that "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." The parties later extended the deadline to April 30, 1994.

2A hearing was held into this matter on September 28th and 29th, 1994, and the Board issued a short "bottom-line" decision on October 3, 1994. By majority decision, Board Member Redshaw reserving, the Board was satisfied that no "common Union" was formed by April 30, 1994 within the meaning of the Letter of Understanding, and accordingly, the subcontracting clause, insofar as it dealt with bricklaying, was of no force and effect after April 30, 1994. We pro­vide our reasons for that decision. Mr. Redshaw now concurs.

3There was one preliminary matter dealt with by the Board. Several parties sought intervenor status, essentially on the basis that their ability to continue to work in the industry would be directly affected if the Board should conclude that the subcontracting clause in question was still in effect. The Board ruled that standing would not be granted to any of the three parties seeking such status.

4This case involves the interpretation of a subcontracting clause, which appears in the collective agreement between Labourers' 183 and the MTABA. The parties seeking to intervene might benefit commercially if the subcontracting clause is found to have expired. However, they are not parties to or bound by the collective agreement, nor did any of them participate in its nego­tiation. They are strangers to the contractual relationship at issue and the subject of this proceed­ing. Their interest is purely commercial — the interpretation of the clause may effect their business opportunities. This does not entitle them to the right to intervene.

5They were not entitled as of right to participate, and the Board was not satisfied that there was good reason to nevertheless allow them to participate. All sub-contracting clauses poten­tially affect other players in the industry in a negative fashion. That is the purpose of these clauses.

The fact that a subcontracting clause was at issue here did not justify granting standing to the par­ties so seeking and the Board so ruled. At the same time, we indicated that our ruling did not affect any rights the parties might have to bring or participate in a jurisdictional dispute, if one arose, or to raise concerns they might have with respect to ICI bargaining rights, if an issue arose in the ICI sector and became manifest.

6In the result, the case proceeded with only the participation of Labourers' 183 and the MTABA.

II

7The facts were not in dispute. The Board heard the evidence of two witnesses.

8Negotiations between Labourers' 183 and the MTABA for the renewal of their collec­five agreement began around February, 1992, and continued into the spring. Labourers' 183 wanted to obtain subcontracting protection over bricklaying, and proposed this amendment. The MTABA was not initially prepared to agree to such a term.

9Ultimately, the parties agreed that the collective agreement would contain a "no sub­contracting" clause with respect to bricklaying (amongst other trades or types of work not here in issue), but their agreement to this clause was predicated upon the requirement that the MTABA would only have to deal with Labourers' 183 in the future. The MTABA was aware during negoti­ations that Labourers' 183 and Bricklayers Local 1 had been developing an association, and the MTABA wanted assurances that it would only have to deal in the future with Labourers' 183.

10It received these assurances. In essence, the parties agreed that Labourers' 183 would take over Bricklayers Local 1, 50 that Bricklayers Local I would cease to exist insofar as the MTABA and matters covered by its agreement with Labourers' 183 were concerned. Indeed, the parties specifically discussed the concept of Labourers' 183 and Bricklayers Local 1 forming a merger, with the result that Labourers' 183 would have effectively taken over Bricklayers Local 1.

11On this basis, the MTABA agreed to a subcontracting clause for bricklaying requiring it to subcontract only to companies with agreements with Labourers' 183 or Bricklayers Local 1, from February 1, 1993 until December 31, 1993. By this latter date, Labourers' 183 was required to have taken over Bricklayers Local 1, failing which the subcontracting clause would automatically terminate.

12This arrangement was to be reflected in a Letter of Understanding attached to the col­lective agreement. Before this Letter was drawn up and signed, counsel for the MTABA received a phone call from counsel for Labourers' 183. Union counsel indicated that Labourers' 183 was not sure how it would accomplish the taking over of Bricklayers Local 1 by December 31, 1993. The union was not confident that a merger was the appropriate mechanism.

13Because of this uncertainty over the mechanism, the MTABA agreed with the Labour­ers that the text of the Letter of Understanding would not contain the word "merger", as had been agreed previously, but would use the term "common Union". Counsel did not discuss what this phrase might mean, but it was intended to provide some flexibility to Labourers' 183 in terms of how it might accomplish taking over Bricklayers Local 1. Thereafter, the Letter of Understanding was drawn up and signed, and it read (in this respect) that "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."

14We jump ahead to late November and December, 1993. Both Bricklayers Local 1 and Labourers' 183 had meetings of their respective members, for the purpose of trying to meet the condition that they form a "common Union". Both unions made significant and time consuming efforts to comply with this requirement in the Letter of Understanding. The method they adopted was for the two unions to form a "certified counsel of trade unions", with Labourers' 183 and its officers constitutionally and practically having the dominant role in all meaningful aspects of the new Council.

15To this end, Bricklayers Local 1 amended its constitution, to specifically authorize a merger, amalgamation or transfer of jurisdiction to any other trade union or council of trade unions. It also passed numerous motions. One authorized it to become a member of the Masonry Council of Unions Toronto and Vicinity (hereinafter "MCUTV"), a newly created council of trade unions comprised solely of Bricklayers Local 1 and Labourers' 183. Other motions appointed MCUTV as agent and representative for Bricklayers Local 1 in respect of all bargaining rights held by Bricklayers Local 1 in the residential sector of the construction industry, and authorized the MCUTV to bargain on behalf of members of Bricklayers Local 1 and to administer and enforce all collective agreements of Bricklayers Local 1 in the residential masonry sector of the construction industry, including the making of applications for certification before the Ontario Labour Rela­tions Board on behalf of members of Bricklayers Local 1 in the residential sector of the construc­tion industry.

16Labourers' 183 also took the requisite steps to set up and authorize MCUTV.

17On December 20, 1993, the MCUTV constitution was approved and adopted. Under that constitution, the Executive Board of MCUTV was to be comprised of five persons, including the Business Manager of Labourers' 183 and the Secretary-Treasurer of Bricklayers Local 1. Of the remaining three Executive Board Members, two were to be appointed by Labourers' 183. A quorum of the Executive Board consisted of three members, two of whom had to be members appointed by Labourers' 183.

18The Business Manager of the MCUTV is, under the constitution, the Business Manager of Labourers' 183. The Business Manager has the right to delegate his authority to another Board Member, provided that the delegation is to a member of Labourers' 183. Effectively, Labourers' 183 personnel do dominate MCUTV, as intended by the two unions.

19The constitution indicates that MCUTV is currently composed of Labourers' 183 and Bricklayers Local 1. Although a union can withdraw from membership in the Council, such with­drawal can only be effective sixty days prior to the expiry date of the collective agreement to which the Council was agent or party. Upon withdrawal by any of the member unions, the Council would be dissolved, and the bargaining rights would remit back to entities that had them prior to the establishment of the Council.

20The Letter of Understanding required that a "common Union" be formed by Labour­ers' 183 and Bricklayers Local 1 by December 31,1993. The MCUTV was formed in late Decem­ber, 1993. In early January, 1994, Labourers' 183 wrote to the MTABA, indicating that it had formed a "common Union" by the deadline, and advising that it would continue to rely upon and insist upon the subcontracting clause. The MTABA took the position that a "common Union" had not been formed, and that the subcontracting clause covering bricklaying had expired.

21The parties continued to disagree. In February, 1994, the parties signed a Memorandum of Agreement by which they agreed to extend the deadline for the formation of a "common Union" from December 31, 1993 to April 30, 1994, and by which it was agreed that Labourers' 183 would not enforce the subcontracting clause (with respect to bricklaying) between January 1, 1994 and April 30, 1994.

22On April 27, 1994, the Board (differently constituted) issued a decision certifying the MCUTV as a "certified council of trade unions". Section 1(1) of the Labour Relations Act defines the term "trade union", and that definition includes a "certified council of trade unions

23The issue is easy to define. Did Labourers' 183 and Bricklayers Local 1 form a "com­mon Union" by April 30, 1994, within the meaning of the Letter or Understanding? In our view, the answer is no. The clear and shared intention of the parties was that Labourers' 183 would take over Bricklayers Local 1 in some fashion, and that Bricklayers Local 1 would cease to exist insofar as dealings with the MTABA were concerned. The parties agreed that a merger would not be the only method of accomplishing this. But Labourers' 183 had still to take over Bricklayers Local 1, so that it was Labourers' 183 itself that the MTABA was to deal with in the future. The parties do not dispute this shared intention.

24The MCUTV, as a certified council of trade unions, is a trade union in its own right, but it is not the same entity as Labourers' 183. The MCUTV is a separate and distinct trade union with its own separate and independent existence. In dealing with MCUTV, the MTABA is not dealing with Labourers' 183, but with a different union. This fact remains true even if the individual people who act on behalf of the MCUTV are the same people who act on behalf of Labourers' 183. They are still acting in different capacities for a different entity. The dominance of Labourers' 183 per­sonnel does not mean that it is now with Labourers' 183 that the MTABA would have to bargain.

25More importantly, Labourers' 183 suggests that what has taken place is akin to a succes­sorship under the Labour Relations Act. As Labourers' 183 put it, MCUTV meets the require­ments of a successor union with respect to Bricklayers Local 1 and Labourers' 183. However, no union successorship application has been brought or is pending. Although the constitution of Bricklayers' Local 1 was amended to authorize a merger, amalgamation, or transfer of jurisdiction to another union, the motions later passed only authorized the MCUTV to act as agent and repre­sentative. The motions did not transfer any jurisdiction away from Bricklayers Local 1.

26The formation of a certified council of trade unions does not have the same legal or practical effect as a union successorship under the Act. Under the latter, the predecessor union givesup all its bargaining rights as exclusive bargaining agent. This is not true in the case of a certi­fied council of trade unions. The constituent members still retain significant and meaningful authority. Again, the motions passed by Bricklayers Local 1 authorizing the MCUTV to act on its behalf do not indicate that Bricklayers Local 1 itself could no longer exercise its bargaining rights. Its delegation of authority to MCUTV does not eliminate its own authority in the area delegated. Bricklayers Local 1 may well remain able to file certification applications and assert existing bar­gaining rights with respect to MTABA members.

27The formation of the MCUTV goes a long way towards satisfying the requirement for a "common Union", but not far enough. Neither legally nor practically is the MCUTV a "common Union" of Labourers' 183 and Bricklayers Local 1, within the meaning of this phrase in the Letter of Understanding. Accordingly the Board issued its prior decision indicating that no "common Union" had been formed, and that the subcontracting clause was by its own terms of no force and effect after April 30, 1994.