[1995] OLRB Rep. April 565
3016-94-U William MacDonald and Edward Kennedy, Applicants v. United Brotherhood of Carpenters and Joiners of America, Local 249, Responding Party
BEFORE: Christopher Albertyn, Vice-Chair, and Board Members J. A. Rundle and Pauline R. Seville.
APPEARANCES: William MacDonald and Edward Kennedy appearing on their own behalf; David McKee and Dennis Grant for the responding party.
OF THE BOARD; April 19, 1995
This is an application in terms of sections 133(1), 148(1) and (2) and 149(2) of the Labour Relations Act.
An oral decision was issued in this matter at the hearing on April 6, 1995. This decision repeats and expands somewhat upon our reasons.
The applicants are members of the responding party. Neither is currently employed by a carpentry contractor.
The responding party is the local union member (the "affiliated bargaining agent") of the umbrella Employee Bargaining Agent. Terms and conditions of employment of the members of the responding party are governed by the provisions of the provincial collective agreement between the Carpenters Employer Bargaining Agency ("EBA") and the Ontario Provincial Council, United Brotherhood of Carpenters and Joiners of America ("OPC"), (hereafter referred to as "the provincial agreement", or "the I.C.I. agreement").
The applicants contend that the responding party has concluded local collective agree-
ments in Kingston which are at variance from the provincial agreement, and accordingly, that the responding party is in violation of the above provisions of the Act.
- On May 28, 1993 the responding party convened a meeting of its members by notice in the following terms,
The Union has been asked to have a Special called Meeting, to be held on Monday June 28, 1993 at 8:00 p.m. at the Value Inn, 401 and Division St., Kingston, Ontario.
Reason for the meeting is regarding implementing and approving a Residential Agreement at 75% of I.C.I. rate.
Please note a $10.00 (fine) for non-attendance will be in effect. Missed Meetings to date.
At the meeting a motion was moved by Edward Kennedy (one of the applicants) to give the responding party a mandate to offer contractors a concession to work at 85% of the wage rate set in the I.C.I. The motion was carried. The motivation for the decision was to meet the threat of non-union contractors obtaining an increasing share of the available work in the Kingston area. The decision was communicated to the Kingston Construction Association and it has been acted upon since then.
The applicants have recently determined, they assert, that the provisions of the Act in terms of which this application is brought preclude the responding party from concluding the kind of agreement for which it was given a mandate by its members on June 28, 1993. By operation of the said provisions, any such agreement appears to be void by reason of its being at variance with the provincial agreement. This application was intended to remedy the matter.
In response to the application, the responding party sought, and obtained, from the EBA and the OPC a retroactive decision which authorized and validated those agreements concluded between contractors and the responding party pursuant to the members' resolution of June 28, 1993. The terms of the authorization, dated on March 6, 1995, read as follows,
Pursuant to Article 28 of the Carpenters Provincial Collective Agreement, the Parties hereto agree to amend the wage schedule for Local 249, United Brotherhood of Carpenters and Joiners of America, forming part of Article B, Schedule 'D', as follows:
In circumstances where Employers bound to the Collective Agreement are facing substantial non-union competition, the wage rate shall be reduced to 85% of the rate set out herein. Such reduction shall take place only after Local 249 advises the Kingston Construction Association that competition is such that lower wage rates are to be used on a specific project. This arrangement may be terminated by Local 249 at any time but carpenters employed on any project on which the lower wage rate has been agreed shall receive the lower rate for the duration of the project.
This Agreement is effective June 28, 1993.
The effect of this decision is to declare what the responding party has done since June 28, 1993 to be in accordance with the terms of the provincial agreement.
Three issues needed decision in this matter. They are:
whether the applicants have standing to bring this application;
whether the EBA's and OPC's authorization of a variation from the ICI. is enforceable when considered in the context of the provisions of section 148 of the Act;
if so, whether that authorization can legitimately be retroactive to June 28, 1993, when granted on March 6, 1995.
A legal interest
The responding party argued that the applicants had no legal interest in this matter, and therefore, ought not to be give standing in the hearing. The Board was referred to its decision in Barry Fraser, [1986] OLRB Rep. November 1511.
The facts in that case are distinguishable from the facts here, where the applicants would be referred to work under this agreement, and are seeking such work. Our view is that the applicants here have a sufficient interest to file this application, as members of the responding party, working in the I.C.I. under the provision of the provincial agreement. They have an interest in knowing if the rate of pay they will earn, should they obtain employment in the Kingston area, complies with the I.C.I. agreement.
One Provincial Agreement
Section 148 stipulates that there will be one provincial agreement and that no collective bargaining party may conclude a collective agreement other than the provincial agreement.
The issue is whether the agreement here, affecting the responding party and contractors in the Kingston area, constitutes a different agreement.
The provincial agreement provides, at Article 28, that:
28.01 The terms and conditions of this Collective Agreement may be changed or amended by written agreement between the EBA and the OPC.
28.02 Any changes or amendments agreed to by local employer associations or trade associations and local unions or district councils shall not be effective unless and until such change or amendment has the written agreement of both the OPC and the EBA. Any change or amendment shall only be effective in the geographic area involved.
The purpose of section 148 of the Act is to ensure that bargaining is done on a province-wide basis, and that the two provincial organizations, one representing labour and one representing management, have the sole authority to control bargaining. The section was not intended to prescribe to the parties what should be in their provincial agreement, nor that there should never be variation between different areas of the province within their agreement, but rather that any such variation is agreed to by the two umbrella bargaining agencies. The section permits the negotiating parties to conclude any collective agreement which they consider appropriate - it may well contain differences between different sectors and areas, as it does - provided that any variations are regulated in terms of a single agreement, sanctioned by the Employer and Employee Bargaining Agencies.
Here, those two provincial authorities approved the change, and in our view, the OPC and EBA were empowered to amend the provincial agreement as they did, through their joint authorization of March 6, 1995.
Retroactivity
The OPC and EBA amended the provincial agreement retroactively to June 28, 1993. Their decision to do so was made on March 6, 1995. The applicants challenge the legality of the retrospectivity.
Retrospective agreements are common in the context of collective bargaining. Frequently bargaining for a new agreement will continue beyond the expiry date of an old agreement. Upon settlement of differences, the parties are likely to want to ensure continuity between their collective agreements and they may agree that their new agreement has become effective retroactively, from the date of expiry of the old agreement.
Accordingly there is nothing inherently anathema in the conclusion of retroactive agreements between collective bargaining parties. We see no reason why the agreement cannot be amended retroactively, with the effective date being some date already passed. To conclude otherwise would be to inappropriately impede the ability of the provincial bargaining parties to amend their own agreement, and we would not do so in the absence of any legislative direction to this end.
In the circumstances we are satisfied that the application must be dismissed. We made that order.