International Brotherhood of Electrical Workers, Local Union 1788 v. International Brotherhood of Electrical Workers, 1996 CanLII 11184

[1996] OLRB REP. FEBRUARY 70

4151-93-U International Brotherhood of Electrical Workers, Local Union 1788, Applicant v. International Brotherhood of Electrical Workers, Responding Party v. The IBEW Electrical Power Systems Construction Council of Ontario and International Brotherhood of Electrical Workers, Local Unions 105, 115, 120, 303, 402, 530, 586, 773, 804, 894, 1687 and 1739; Electrical Power Systems Construction Association and Ontario Hydro; International Brotherhood of Electrical Workers, Local Union 353, Intervenors

BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members F. B. Reaume and G. McMenemy.

APPEARANCES: L. A. Richmond, J. Sprackett, H. Bartlett and J. Rawlings for the applicant I.B.E.W. Local 1788; David A. McKee and Ken Woods for the responding party I.B.E.W.; A. M. Minsky, R. Tersigni and D. Ryan for IBEW-EPSCCO; S. G. Thompson, E. Roberts and Jim Mason for ECAO of Ontario; M. Patrick Moran, Ted Kovacs and Neil Donnelly for EPSCA and Ontario Hydro; William Robinson, Joe Fashion, John Morrow and Bob Gill for International Brotherhood of Electrical Workers, Local Union 353.

DECISION OF THE BOARD; February 9, 1996

I What this application is about

1This is an application under section 96 (section 91 at the time it was made) of the Labour Relations Act, 1995. In the application as filed, the applicant International Brotherhood of Electrical Workers, Local Union 1788 ("Local 1788") alleged that its parent, the International Brotherhood of Electrical Workers (the "International") has violated sections 147, 149 and 73(2) (sections 138.3, 138.5 and 68(2) respectively at the time the application was made) of the Labour Relations Act, 1995 by altering the jurisdiction of Local 1788 as it existed on May 1, 1992 without just cause and without giving Local 1788 the requisite written notice that it intended to do so, thereby interfering with Local 1788's autonomy without just cause. The International denies that it has breached the Act in any way.

2The alleged change in jurisdiction in issue is in the electrical power systems sector, and specifically under two collective agreements commonly known as the Generation Projects Agreement and the Transmission Agreement.

3Ultimately, Local 1788 withdrew its allegations under subsection 73(2) of the Act, and it did not pursue any allegations under section 149. Accordingly, this case concerns the interpretation and application of section 147 of the Act to an alleged alteration of Local 1788's jurisdiction by its parent, the International.

II The Parties and Issues of Status

4By decision dated April 13, 1994, the Board determined that the IBEW Electrical Power Systems Construction Council of Ontario (the "IBEW - EPSCCO"), the International Brotherhood of Electrical Workers, Local Unions 105, 115, 120, 303, 402, 530, 586, 773, 804, 894, 1687 and 1739 (the IBEW - EPSCCO and these Local Unions were all represented by Mr. Minsky), the Electrical Power Systems Construction Association (the "EPSCA") and Ontario Hydro (both of whom were represented by Mr. Moran and subsequently Mr. Kovacs), and the International Brotherhood of Electrical Workers, Local Union 353 ("Local 353") were all entitled to intervene and to participate in this proceeding. The IBEW - EPSCCO and the IBEW Local Unions other than Local 353 have intervened in support of the International. Local 353 has intervened in support of Local 1788. The EPSCA and Ontario Hydro take no position with respect to the internal dispute between the IBEW entities but have intervened to protect their interests with respect to the two collective agreements covering electrical construction work in the electrical power systems sector of the construction industry which are front and center in this application; namely:

a) the collective agreement between the EPSCA and the IBEW -EPSCCO representing IBEW Local Unions 105, 115, 120, 303, 353, 402, 530, 586, 773, 804, 894, 1687, 1739 and 1788; commonly referred to as the "Generation Projects Agreement";

b) the collective agreement between the EPSCA and Local 1788; commonly referred to as the "Transmission Agreement".

5In that same April 13, 1994 decision the Board dismissed the interventions of the IBEW Construction Council of Ontario (the "IBEW - CCO") and the Electrical Contractors Association of Ontario (the "ECAO"). These entities are parties to the provincial collective agreement covering electrical construction work in the industrial, commercial and institutional ("ICI") sector of the construction industry, and to what is commonly referred to as the "Provincial Line Work Agreement".

6A party which seeks to intervene in a proceeding before the Board must demonstrate either that it has a real direct discernible interest in the proceeding, or persuade the Board that it is able to provide the Board with assistance which will ensure that all relevant issues are properly presented such that it should be granted a kind of amicus curiae status. Amicus curiae status, which is granted as a matter of the Board's discretion as the master of its own proceedings, has rarely been granted by the Board. (In Kidd Creek Mines Ltd., [1984] OLRB Rep. Mar. 481, the United Steelworkers of America was granted amicus curiae intervenor status limited to making representations on the legal and policy issues raised by an application for certification by the IBEW, Local 1687 for a bargaining unit of maintenance electricians, notwithstanding that the Steelworkers neither represented any of the employees directly affected by the application nor sought to do so. Intervenor status was granted on the basis that the Steelworkers was the dominant trade union in the mining industry and represented many mine maintenance electricians within broader based bargaining units out of their mines. On the other hand, in New Dominion Stores, [1986] OLRB Rep. Apr. 519, the Steelworkers was denied such intervenor status.)

7In order for a party to be entitled to participate in a proceeding as an intervenor, it must have an interest in the outcome of the proceeding which is direct and substantial. An interest which is merely political, which is anticipatory or speculative, or which is concerned with an indirect economic or commercial effect is not sufficient to entitle a party to participate. Nor is the fact that a decision in the proceeding may be used or referred to as a precedent in another proceeding. (See, New Dominion Stores, supra, at page 521; and more generally, Re Schofield and Minister of Consumer and Commercial Affairs, 1980 CanLII 1726 (ON CA), [1980] 28 O.R. (2d) 764 (Ontario Court of Appeal).)

8It is generally not appropriate to permit an amicus curiae intervention unless the party seeking to intervene on that basis can demonstrate that its participation will provide a real and substantial input on important material issues which the Board is unlikely to receive from the direct parties, and that the participation of such an intervenor will not cause undue delay, or prejudice to a direct party.

9In this case, the Board was satisfied that the IBEW - EPSCCO and all of the IBEW Local Unions have a direct and substantial interest because the primary matter in issue concerns an alleged transfer of work jurisdiction from Local 1788 to the other IBEW Local Unions, all of which are constituents of the IBEW - EPSCCO, and because they are bound by the Generation Projects Agreement. The EPSCA and Ontario Hydro are bound by both the Generation Projects Agreement and the Transmisson Agreement which may be affected by the result herein and as such are entitled to participate.

10On the other hand, this application has nothing to do with the ICI sector of the construction industry, and will at best have only a remote indirect impact on the Provincial Line Work Agreement. Accordingly, neither the IBEW - CCO nor the ECAO has any direct or substantial interest in this proceeding. Nor was the Board persuaded that either the IBEW - CCO or the ECAO could provide any input or assistance which would not be forthcoming from one of the other parties, or that it was otherwise desirable to allow either of them to participate on an anicus curiae basis.

11After the decision issued, Local 1788, accepting what it could fairly have considered to be an implicit invitation in the Board's April 13, 1994 decision to do so, withdrew its allegation that the International has violated section 73(2) of the Act, amended paragraph 4 of its Schedule "A" request for relief accordingly, and submitted that the IBEW - EPSCCO, the various IBEW Local Unions, the EPSCA and Ontario Hydro no longer had any direct interest in the application sufficient to entitle them to intervene, and that their interventions should therefor be dismissed.

12Upon considering the representations of the parties in that respect, the Board ruled, orally, that it was not persuaded that it was appropriate to alter the April 13, 1994 decision with respect to the standing issues, notwithstanding Local 1788's amendment of its application.

III Scheduling Concerns

13Messrs. Richmond, Minsky and McKee (counsel for Local 1788, the IBEW - EPSCCO and IBEW Local Unions other than 353 and 1788, and the International, respectively), then requested that certain of the hearing dates which had been scheduled be adjourned. Because the panel was aware that there had been an administrative decision made to expedite the hearing of this application, that hearings and other matters had been cancelled to accommodate an expedited hearing of the application, that there had been discussions between counsel and the Registrar's office with respect to the scheduling of the application of which the panel had little knowledge, and because of the possible problems or ramifications on the scheduling of both this and other matters, the panel directed that counsel deal with the Registrar with respect to their adjournment requests in the first instance. When counsel did so, they were apparently advised that the hearing of this matter would proceed on the days scheduled.

14Of course, such an administrative decision can always be raised with the panel seized with a matter for adjudicative determination of an adjournment issue. While it is appropriate for a hearing panel to consider the administrative decision as a factor when dealing with a request for an adjournment made directly to the panel, the panel is not bound by such an administrative decision. In this case, when the hearing reconvened, Mr. Richmond requested an adjournment of the April 21, 1994 hearing date. The panel advised the parties that everyone else who had an adjournment request should make it then as well. Mr. Minsky requested an adjournment of a later date. Mr. McKee made no adjournment request to the panel.

15The Board granted Mr. Richmond's request for an adjournment. In all of the circumstances, including the consent of all the other parties, and because it appeared (at the time) that the adjournment requested would not result in any undue delay in the hearing, the Board considered that the adjournment requested should be granted.

16However, the Board denied Mr. Minsky's adjournment request. Although the request was not opposed, Mr. Minsky conceded that the difficulties which prompted his request were not insurmountable. Accordingly, and having regard to the nature of the proceeding and its scheduling history, the Board concluded that the matter should not be adjourned merely for the convenience of counsel or one of his clients with respect to another, unrelated proceeding (see Re Flamboro Downs Holdings Ltd. and Teamsters' Local 1879, 1979 CanLII 1669 (ON HCJ), [1979] 24 O.R. (2d) 400 (Ontario Div. Court)).

17Subsequent hearing dates were scheduled on agreement of the parties.

IV Order of Procedure

18The parties were unable to agree on the order of procedure. Upon considering the representations of the parties in that respect, the Board ruled, in a decision issued on April 21, 1994, that the parties would be heard in the following order:

i) the applicant International Brotherhood of Electrical Workers, Local Union 1788;

ii) the intervenor International Brotherhood of Electrical Workers, Local Union 353;

iii) the intervenors Electrical Power Systems Construction Association and Ontario Hydro;

iv) the responding party International Brotherhood of Electrical Workers;

v) the intervenors the IBEW - EPSCCO and IBEW local unions 105, 115, 120, 303, 402, 530, 586, 773, 804, 894, 1687 and 1739;

vi) the applicant Local 1788 in reply.

19The Board further ruled that argument would follow the same order.

20Although a significant part of the parties' submissions with respect to what the order of proceedings focused on the issue of onus, the Board's determination of the order of proceeding did not include a determination of where the onus in this case lies. Nor was it intended to suggest that Local 1788, which was directed to proceed first, bears the entire onus of proof in this case.

21This being a case of first impression (being the first application filed under a Bill 80 provision which proceeded to litigation), the Board did not find it appropriate to finally determine where the onus in this case lay at that early stage of the proceeding. Nevertheless, the nature of the issues in this case~ as raised in the pleadings, suggested that there may well be a mixed onus in this case, and that it would be convenient and probably expeditious to have Local 1788 proceed first. In the circumstances, and because it is generally appropriate to require an applicant to proceed first unless there is a statutory direction or practical reason to proceed otherwise, the Board ruled that Local 1788 should proceed first. The balance of the order of proceeding followed naturally once the Board determined who would proceed first.

V The Question and The Answer

22The question in this case is in two parts and comes down to this: How has the International altered Local 1788's jurisdiction, and did the International have just cause to make that alteration?

23In the interests of issuing a decision in this matter without further delay, we do not intend to attempt to review the extensive evidence or comprehensive representations of the parties. We find it unnecessary to do so. Having carefully considered the evidence and the representations of the parties, the Board is satisfied that the International has altered the jurisdiction of Local 1788 as alleged, but that it had just cause to do so.

VI The Bare Facts

24The International is the "parent" and source of jurisdiction for all IBEW local unions, and specifically the fourteen IBEW Local Unions involved in this case. The activities of the International and the relationship between the International and the IBEW Local Unions are governed by the International's Constitution. Over the years since the late 19th century, the International has chartered various Locals with various geographic and work jurisdictions. In 1952, there were thirteen IBEW Locals in the construction industry in Ontario. These Locals had given and continue to have their own distinct geographic jurisdictions within the province. On August 20, 1952, the International, acting under the IBEW Constitution as it then was, granted the Charter which constitutes Local 1788. By the terms of that Charter, Local 1788 was granted the jurisdiction which was to be defined in its by-laws, as approved by the International. In that respect, the relationship between the International and its Local Unions is governed by the provisions of the Constitution, of which articles IV, XIV, XVI, XVII, XVIII and XXVII are particularly applicable in this case. Article XVI empowers local unions to make their own by-laws and rules, but precludes by-laws or rules which conflict with the Constitution, and specifically provides that:

"all by-laws, amendments and rules, all agreements, jurisdiction, etc., of any kind or nature shall be submitted. . . to the [International President] for approval"

(emphasis added)

That is, all matters of Local Union jurisdiction, whether contained it~ by-laws or otherwise are subject to the approval of the International in the person of the International President. Further, articles XIV Sec. 2 and XXVII Sec. 3 respectively, provide as follows:

ARTICLE XIV

Sec. 2. The type of work and the territory or jurisdiction covered by a charter must be defined in approved local union bylaws. The I.P. has the right and power to divide or change the territory or jurisdiction covered by any LU., or to take charge of and direct certain jobs or projects in or passing through any territory, when in the judgment of the I.P. such should be done.

ARTICLE XX VII

Sec. 3. Keeping in mind progress for the I.B.E.W., and that all electrical work be done by its members, it is impractical to classify or divide jurisdiction of work in every detail between the various branches in this organization to meet all situations in all localities. Therefore, the classifications and divisions outlined below are necessarily of a general nature, and L.U.'s whose jurisdiction with other L.U.'s of the IBEW., or whose agreements are harmonious and conducive ro the progress of the I.B.E.W., shall not be disturbed. But when harmony and progress do not prevail, or when disputes arise, the I. P. shall determine what L. U. will do certain work or jobs, consistent with the progress and best interests of the 1. B. E. W. in obtaining and controlling the work in question.

(emphasis added)

25It is common ground between the parties that Local 1788 was chartered as a province-wide electrical construction Local Union for Ontario Hydro employees. This is reflected in its original by-law which provided that:

ARTICLE I

Name - Jurisdiction - Objects

Sec. 1. This organization shall be known as Local Union No. 1788 of the International Brotherhood of Electrical Workers, Toronto, Ontario. Local 1788 shall have jurisdiction over all Outside and Inside electrical work as defined in Article XXVIII, Sec. 4 and 5 of the Constitution when performed by employees of the Hydro Electric Power Commission of Ontario.

However, the right of the International Office to change this jurisdiction is recognized, as provided in the IBEW Constitution.

(emphasis added)

The reference in the by-laws to "Outside and Inside electrical work" was and is specifically referred to in the International Constitution.

26Over the years, Local 1788's by-laws were amended many times, sometimes at its request and sometimes initiated by the International. With the exception of changes made in November 1971, March 1989 and June 1993 (the latter being the change in issue herein), these changes were technical, cosmetic, or otherwise had nothing to do with Local 1788's jurisdiction as such. In addition to the original version as aforesaid, Article I of Local 1788's by-laws is the significant provision in that respect. Prior to the change in 1989, article I variously read as follows:

ARTICLE I

Name - Jurisdiction - Objects

Sec. 1. This organization shall be known as Local Union No. 1788 of the International Brotherhood of Electrical Workers, Toronto, Ontario. Local 1788 shall have jurisdiction over all Outside and Inside electrical work as defined in Article XXVIII, Sec. 4 and 5 of the Constitution when performed by employees of the Hydro Electric Power Commission of Ontario.

However, the right of the International Office to change this jurisdiction is recognized, as provided in the IBEW Constitution."

Approved July 30, 1953

ARTICLE I

Name - Jurisdiction - Objects

Sec. 1. This organization shall be known as Local Union No. 1788 of the International Brotherhood of Electrical Workers, Toronto, Ontario, Canada. Local No. 1788 shall have jurisdiction over all Outside and Inside electrical work as defined in Article XXVIII, Sec. 4 and 5 of the IBEW Constitution when performed by employees of Ontario Hydro.

However, the right of the International Office to change this jurisdiction is recognized, as provided in the IBEW Constitution."

Approved June 17, 1974

(emphasis added)

27Prior to the 1974 by-law adjustment, on November 23, 1971, the International President authorized a transfer from the International to Local 1788 of:

"jurisdiction, including all rights, privileges, and duties under the Ontario Labour Relations Act or otherwise which the International Brotherhood of Electrical Workers has by reason of it being the bargaining agent for those employees of the construction field forces of [Ontario Hydro] coming within the.. . bargaining unit [described in its current collective agreement]."

28Ontario Hydro, which wanted to bargain with all construction trades through the EPSCA as its representative, and preferably with the trades being represented by a council of trade unions, opposed this move. Accordingly, Local 1788 brought an application to the Board under section 68 (formerly section 63 - section 54 at the time of the application for a successor rights declaration) (Board File No. 1604-81-R) The International supported the application. Ontario Hydro opposed it. On June 22, 1972, the Board allowed the application and declared that:

"the applicant [Local 1788] by reason of a merger, amalgamation or a transfer of jurisdiction has acquired the rights, privileges and duties of International Brotherhood of Electrical Workers, which was the bargaining agent for a unit of employees of the respondent defined in a collective agreement between the Hydro-Electric Power Commission of Ontario and the International Brotherhood of Electrical Workers, effective July 17, 1970 until July 16,1971, and from year-to-year thereafter subject to notice."

29Accordingly, it appears that until 1972 it was the International which held bargaining rights for construction electricians employed by Ontario Hydro. It was then that the International decided to get out of the representation business (except as required by law) and tried to transfer its bargaining rights, in this case to Local 1788, which led to the Board proceedings as aforesaid. It appears that it was as a result of those Board proceedings that Local 1788 first obtained bargaining rights and that these bargaining rights were limited to employees of Ontario Hydro. There is no suggestion that Local 1788 held bargaining rights for the employees of any employer other than Ontario Hydro prior to 1980 and the first Transmission Agreement.

30The first Generation Projects Agreement was signed in 1980. It appears that the first Transmission Agreement became effective that same year. Prior to 1980, Ontario Hydro did most of its own transmission system work utilizing its own employees, who, on the evidence before the Board in this proceeding, were members of Local 1788. On those occasions when work was contracted out, whether at generation stations or on the transmission systems, it was performed by members of the IBEW Local Union with jurisdiction in the geographic area in which the work was located under the applicable local construction agreement, or under what is commonly known as "Form B". In 1979 and 1980, the fourteen IBEW construction Local Unions, including Local 1788, engaged in extensive internal debate within the IBEW - EPSCCO, over how the bargaining relationship with Ontario Hydro and the EPSCA and Local Union jurisdiction should be structured. On the evidence, it is apparent that even at that early stage the rift which is at the root of the dispute in this case was present and developing between Local 1788 and the other IBEW Local Unions. Indeed, as early as October 1980, there was a question, raised by the then Canadian International Vice-President, Ken Rose, with respect to Local 1788's place in the IBEW - EPSCCO and whether all bargaining rights with the EPSCA should be turned over to Local 1788, a suggestion with which the other IBEW Local Unions clearly did not agree. Local 1788's position at the time as expressed by (Hank Schueler, its representative) at an IBEW - EPSCCO meeting in November 1980 as follows:

Bro. Schueler "If we go on our own it will be only for 1788 employees unless Brother Rose decides otherwise. He has said that if you fellows don't want this kind of an arrangement then that may be an alternative. My viewpoint is that all locals should be involved. We are dealing with an employer as well as an owner and they are different from the contractors you are used to dealing with. We want to change in the way of adding some things and I hope we can do what's best for all concerned. If we fight among ourselves then Hydro will be the only winner. If we can achieve one agreement we will at least then be fighting who we should be and not ourselves. Whatever happens down the road within the I.B.E.W. is their decision to make. As I said before, this agreement is not final. We will look at some of your questions like the hiring ball and try to make more improvements."

Bro. Schueler I would like to say that if our local supplies men to contractors at the Atikocan site we will call your hall for men. If this becomes a problem I hope we can settle it among ourselves. We will try to work with you if this should happen.

Bro. Popovich "I don't think 1788 will supply men to contractors."

Bro. Schueler ~'We don't want to but if Brother Rose says we have to then he will make that decision. Years ago we supplied men to line contractors here in Toronto, then the International changed our jurisdiction and they could change it again." [sic]

At the same meeting, others commented as follows:

Bro. McKenzie "It's okay for you guys who have no projects in your area to sit there and say let L.U. 1788 handle it. What you have to realize is that if we go that way all the contractors working on those sites will phone L.U. 1788 for men and we get nothing. That's fine for you to say give it all away."

Bro. Fraser "We always supplied men to contractors who worked for Hydro. When has LU. 1788 supplied men to Contractors?"

Bro. Tersigni " You are no longer dealing with Hydro. Hydro has turned their bargaining rights over to E.P.S.C.A. If L.U. 1788 signs an agreement for the power sector it will be with E.P.S.C.A. not Hydro. That's the difference that makes this situation different then it has ever been in the past. The right of our local unions to continue to supply menlo contractors has got to be protected.

Bro. Rose ~'lf L.U. 1788 signs an agreement with E.P.S.C.A. it can be for all work performed or subcontracted on their sites. That is the position they have put us in."

Bro. Popovich "Would it be possible to put this agreement on the back burner and explore an alternative with the E.C.A.O. We should have some meeting with them and maybe consult our lawyers to get some ideas. L.U. 1788 can go ahead and sign an agreement with Hydro.

Bro. Tersigni “Local Union 1788, as I understand the management constitution of E.P.S.C.A. can not sign an agreement with Ontario Hydro. Ontario Hydro has surrendered their bargaining rights to E.P.S.C.A. which means LU. 1788 would have to sign the agreement with E.P.S.C.A. The constitution of E.P.5.C.A. includes our contractors as well as Ontario Hydro as a Contractor and this was pointed out to LU. 1788 in a document from our lawyers when they sought their advice. The document also pointed out that LU. 1788 could supply men to contractors and likewise other locals could supply men to Ontario Hydro. As Brother Rose points out management is coming at us from one legal bargaining group who represent all Employers."

Bro. Schueler "What Brother Tersigni has said is correct by law. If you ask Koskie; and we did, he will tell you that Hydro has surrendered their bargaining rights to the E.P.S.C.A. Association. Under successors rights we can sign an agreement with E.P.S.C.A. We could sign a letter saying we would let you continue to supply men to contractors under our agreement. I think we should get back to the bylaws and try to get through them." [sic]

31As it turned out, the IBEW - EPSCCO bargained the Generation Projects Agreement with the EPSCA, although Local 1788 dominated the bargaining from the IBEW side. EPSCA Local 1788 alone bargained the Transmission Agreement with the EPSCA. Under the terms of the Generation Projects Agreement, all work done under it by direct employees of Ontario Hydro was to be performed by members of Local 1788. Work done under that collective agreement by contractors other than Ontario Hydro was to be performed by members of the Local Union with the geographic jurisdiction over the area in which the work was located. Under the Transmission Agreement, Local 1788 was the sole IBEW entity entitled to perform "all construction industry work performed in the Province of Ontario on Ontario Hydro property for the Transmission Systems Division of the Ontario Hydro" (as the latter was defined within the agreement). In the 1980's, all or virtually all transmission systems work covered by the Transmission Agreement was performed by Ontario Hydro using its own employees. The evidence indicates, and indeed the parties agreed, that from 1986 on, all transmission work (other than on miscellaneous hydraulic projects) performed by contractors working under the Transmission Agreement in effect at the time was assigned to members of Local 1788, and was performed by members of Local 1788 or members of other IBEW Local Unions cleared through and by Local 1788.

32It appears that after this debate within the IBEW - EPSCCO there continued to be some question concerning the extent of Local 1788's jurisdiction under the Transmission Agreement (then and sometimes still referred to as the Lines and Stations Agreement), but that Local 1788, with the apparent, but not the actual, approval of the International in the person of International Vice-President Rose, took the position that it had jurisdiction over all such work, regardless of the employer which performed it.

33Of course, the early to mid 1980's was a time of relative prosperity in the electrical power systems sector. Construction activity on Ontario Hydro property was at a peak and there was full employment within the IBEW construction Local Unions. Indeed, some Local Unions had to actively solicit new members in order to fulfil their obligations to supply employers. As a practical matter, the jurisdictional debate within the IBEW abated, but it did not die.

34As construction activity began to slow down, the other IBEW Local Unions again began to examine Local 1788's activity more carefully. In May 1987, for example, Local 586 (Ottawa) raised a question with respect to work contracted out by Ontario Hydro. International VicePresident Rose responded by stating that Local 1788's jurisdiction ". . . extended only to those employees of Ontario Hydro, and such jurisdiction does not extend to any electrical contractor in the private sector." Rose went on to say that correspondence in 1981 (which appeared on its face to suggest otherwise) referred only to Hydro employees in the electrical power systems sector.

35In late October 1987, Local 105 (Hamilton) raised the same issue. By this time, Ken Woods had replaced Rose as Canadian International Vice-President. In a letter dated November 10, 1987 Woods responded to Local 105's question as follows:

This will acknowledge receipt of your correspondence dated October 30, 1987 in which you raised the question of work assignment relative to the supply and installation of one (1) 230KV Pipe Type Cable Circuit in Hamilton, Ontario.

A review of files in this office clearly indicates that several years ago, (1980-81) when the EPSCA Transmission Line Agreement was being negotiated the construction Local Unions in the Province showed little, or, no interest in becoming involved in negotiations for work performed through the EPSCA of Ontario for Transmission Line work. Consequently, Local Union 1788 was granted permission to undertake those negotiations, and that situation is ongoing at this time, with the agreement for the work in question being between EPSCA and Local Union 1788.

In view of the fact Local Union 1788 is a Provincial Local Union and in a position to properly police the work in question; unless I receive compelling information to the contrary, I see no need to alter that situation.

Local 105 did not accept this response, and raised its concerns with the IBEW - EPSCCO. Woods maintained his position, but so far as Local 105 and the other members of the IBEW - EPSCCO (other than Local 1788) were concerned, the issue had not been resolved.

36It appears that Local 1788 was also concerned that the question of which Local Union had the right to supply contractors of Ontario Hydro under the Transmission Agreement remained open. On July 14, 1988, Local 1788 wrote to Woods as follows:

As we now have our Lines and Stations Agreement finalized~ I am writing to request the appropriate by-law change(s) to accommodate the parameters of our jurisdiction. In specific, a change to reflect the existing practice regarding contractors under the E.P.S.C.A., L.U. 1788 Collective Agreement.

(emphasis added)

Woods responded to Local 1788 by letter dated August 18, 1988 as follows:

This will acknowledge receipt of correspondence dated July 14, 1988 over the signature of Local Union 1788 President Brother Spracketi, in which Brother Sprackett requested a Bylaw change to encompass EPSCA Contractors in the jurisdiction of Local Union 1788.

As you are aware, Local Union 1788 was Chartered to have jurisdiction over members employed directly by Ontario Hydro, and the Local Union Bylaws so indicate.

You are also aware that all Construction Local Unions in this Province have Inside and Outside jurisdiction over all work performed by Contractors, thus posing a conflict between defined jurisdiction and the existing practice relative to EPSCA Contractors involved in Lines and Stations Work [ie. transmission systems].

This office is in receipt of correspondence from several of the Construction Local Unions expressing their concern and displeasure over the existing EPSCA Contractors arrangement for Lines and Stations Work.

The crux of the problem for some of the Local Unions revolves around the fact that in some cases where a Contractor working within a Local Union jurisdiction employs members from that Local Union, only the total amount of 1788's Health-Welfare and Pension contributions and per capita portion only of dues is reciprocated to the Local Union in whose territorial jurisdiction the work is being performed. Thus leaving the Local Union with men working in their 'Home" jurisdiction with a short-fall in contributions to the various plans.

Therefore, in order to address the issues raised by the other Local Unions, I would like to discuss this matter further with those concerned.

Please contact the writer for a mutually agreeable time to discuss the matter.

37It is not entirely clear what "discussions" did in fact take place, although it is apparent that there were discussions, both at the IBEW - EPSCCO and otherwise, about Local 1788's request for an alteration to its jurisdiction. However, at least three things are clear:

(1) that Woods did not fully understand the nature of the dispute, what Local 1788 was seeking, the history of the situation, or the impact of the change being sought would have on the other IBEW construction Local Unions;

(2) the other Local Unions did not fully understand the intent or implications of Local 1788's request;

(3) the other Local Unions would have opposed it had they perceived Local 1788's request to 1,e what it in fact was; that is, an attempt by Local 1788 to consolidate an expansion which it had managed to obtain in bargaining.

38In any event, on March 17, 1989, Woods advised Local 1788 that he had recommended to the International that Article 1, section 1 of Local 1788's by-laws be amended to grant the jurisdictional change requested (which he had done on February 17, 1989) as follows:

ARTICLE I

Name - Jurisdiction - Objects

Sec. 1. This Organization shall be known as Local Union 1788 of the International Brotherhood of Electrical Workers Toronto, Ontario, Canada. Local 1788 shall have jurisdiction over all Outside and Inside work, as defined in Article XXVIII, Section(s) 4 and 5 of the IBEW Constitution, when performed by employees of Ontario Hydro, and all Outside and Inside work done by the Electric Power Systems Construction Association (EPSCA) on Ontario Hydro property for the transmission systems and miscellaneous hydraulic projects of Ontario Hydro.

(emphasis added)

39On March 3, 1989 this amendment had been approved by International President J. J. Barry (who is still the International President) acting upon the recommendation of International Vice-President Woods following from the latter's discussion with Local 1788 and at the IBEWEPSCCO as aforesaid.

40The term "miscellaneous hydraulic project" is a defined term under the Transmission Agreement as follows:

A "miscellaneous hydraulic project" is any hydraulic work undertaken by Ontario Hydro which will require less than one year to complete and comprise a total employers' workforce of not more than 100 employees at one time.

This term, and the concerns with it, has it origins in 1985 when the International and various Locals became concerned about the performance of work on small projects in remote areas in Northern Ontario. Such work appears to fall within the scope of the work covered by the Generation Projects Agreements in effect between 1980 and April, 1986. The nature and location of such projects were such that the only IBEW Local Union which might reasonably have become aware

of them in the absence of formal notice, or who would be physically able to supply members to do the work, was Local 1788, as a result of having Local 1788 crews working for Ontario Hydro on the associated or nearby transmissions systems projects. The International was concerned that this work could be assigned to non-IBEW electricians and, as far as the International knew in 1985, all such work was being performed by direct employees of Ontario Hydro. Further, even John Sprackett, Business Manager of Local 1788, testified that the contracting out of work by Hydro "wasn't an issue because no one thought much work would be contracted out."

41It was determined to be appropriate to address these projects, called "miscellaneous projects" at the time, in the 1986 to 1988 Generation Projects and Transmission Agreements. In the result, it was agreed with the EPSCA that "any work performed by Ontario Hydro on a miscellaneous project" was excluded from the scope of the Generation Projects Agreement. On the other hand, the Transmission Agreement between the EPSCCO and Local 1788 was amended to include ". . . all construction industry work performed in the Province of Ontario on Ontario Hydro property for the Transmission Systems Division and miscellaneous projects of Ontario Hydro." A miscellaneous project was defined in the same way as a miscellaneous hydraulic project is now defined with the exception that it was not limited to hydraulic work.

42The term miscellaneous project disappeared and was replaced by "miscellaneous hydraulic project" in the 1988 to 1990 Generation Projects and Transmission Agreements, and continued through in the 1992 to 1995 agreements.

43It does not appear that any of this was any secret. The IBEW - EPSCCO and all of its constituent IBEW Local Unions were party to the Generation Projects Agreement negotiations and must have known that work (that is, miscellaneous projects, subsequently miscellaneous hydraulic projects) which had been covered under that agreement was being removed from it and placed under the Transmission Agreement. The International knew because it was its concern which led to this in the first place, and it is its responsibility to vet and approve all collective agreements, including these two. While it is clear that they knew or ought to have known this, these changes were presented by Local 1788 as "housekeeping" and it is apparent that the International and the other Local Unions did not appreciate the implications of these changes.

44By 1991, there had been a significant decline in the electrical construction work in the electrical power sector. In May 1992, the IBEW's internal jurisdictional dispute came to a head.

45By 1991, the downturn in Hydro's construction activity was being felt more acutely, and was manifesting itself in unemployment within the IBEW Local Unions. At the same time, it appears that Ontario Hydro began to contract out more of its miscellaneous hydraulic projects work. The issue crystallized at the Sir Adam Beck Generating Station where work declared to be a miscellaneous hydraulic project was contracted to Ravine Construction Ltd. The electrical work involved was contracted to Ontario Electric Construction Co. Ltd. Both Local 303 (St. Catharines) and Local 1788 claimed the right to supply electricians to Ontario Electric in that respect. The EPSCA adopted the position that the work should be assigned to Local 1788. Collective bargaining with the EPSCA was ongoing at the time.

46By letter dated May 8, 1992, the International advised Ontario Electric that the work in question was in Local 303's jurisdiction. By letter to Local 1788 dated May 29, 1992, the International, in the person of International Vice-President Woods, confirmed its position as follows:

In furtherance to our discussions relative to the above captioned matter, this will confirm the writer's position that work performed for Ontario Hydro by electrical contractors is the work of members of the Local Union in whose territorial jurisdiction that work is performed.

Further, as discussed with yourself and the Business Managers from the IBEW-CCO, IBEW jurisdiction is not subject to negotiation and is determined by the International President.

Notwithstanding the foregoing, it is obvious there is a potential encroachment on the inside jurisdiction of the thirteen (13) IBEW Inside Locals in Ontario, and in fact at present there is a violation of the inside jurisdiction of Local Union 303 at the job at Sir Adam Beck.

That encroachment is brought about by the language in the various collective agreements; (1) between EPSCA and the IBEW EPSCCO which "excludes work done by Ontario Hydro on a Miscellaneous Hydro Projects" by that exclusion the work flows to the agreement (2) covering Transmissions Systems Work, which the thirteen Construction Local Unions are not a party to.

Such encroachment of jurisdiction has to be rectified immediately, therefore, by copy of this correspondence Representative C. McKenzie is being advised of the problem, and assigned to ensure the language in the agreement(s) is modified to reflect the actual jurisdiction of all Local Unions concerned.

47Although the letter itself is somewhat obscure, the message was clear: the International's position was that Local 1788's jurisdiction was limited to direct employees of Ontario Hydro and it intended to take steps to have the language in the Generation Projects and Transmission Agreements modified to reflect this view.

48At the same time, Woods assigned an International Representative, Charles McKenzie, "to take the necessary action, short of making it a strike issue, to have that situation rectified." The modifications McKenzie was to try to have incorporated in the agreements were as follows:

Section 2. Scope of Agreement

200A. Change and sentence to read:

"This work includes the building of generating stations, hydraulic works, heavy water facilities, microwave and repeater stations, and any work performed for Ontario Hydro on a miscellaneous hydraulic project, but excludes the building of commercial type of office facilities at urban location remote from operating facilities."

Section 8. Hours of Work

800B. Change to read:

A. Miscellaneous project is any work undertaken for Ontario Hydro which will require less than one year to complete and comprise a total employer's work force of not more than one hundred employees at one time. When such work is performed by Ontario Hydro it shall be the work of Local Union 1788 IBEW and when such work is done by an Electrical Contractor it shall be the work of the Local Union in the territorial jurisdiction as awarded by the International President and as set out in the approved Bylaws of the respective Local Union.

Section 2. Scope of Agreement

200A. Amend to read:

EPSCA recognizes the Union as the exclusive bargaining agency for a bargaining unit as defined in Item B. engaged in all construction industry work performed in the Province of Ontario by Ontario Hydro on Ontario Hydro property for the transmission systems, division and by Ontario Hydro on miscellaneous hydraulic projects for Ontario Hydro. When such work is done by an Electrical Contractor it shall be the work of the Local Union in the territorial jurisdiction as awarded by the International President and as set out in the approved Bylaws of the respective Local Union.

(emphasis added)

49McKenzie attended at the negotiations and told the IBEW representatives, and specifically Local 1788, that they were to have the collective agreements changed to include these provisions, and that if they refused or failed to do so, the International would exercise its authority to do so itself.

50Woods' initiative in this respect was prompted by complaints from the IBEW -EPSCCO and IBEW Local Unions (other than Local 353), and some contractors. The other IBEW local unions wanted to supply electricians to Ontario Hydro's contractors, and some contractors had expressed the desire that they do so. When the issue crystallized at the Sir Adam Beck job, Local 804 (Kitchener) specifically requested that the International intervene and resolve the dispute.

51Negotiations with the EPSCA continued. They concluded when, on June 18, 1992, the

1992-1995 Transmission Agreement was settled by the execution of a Statement of Settlement which was ratified on July 17, 1992. On September 9,1992, the 1992-1995 Generation Projects Agreement was settled by a Statement of Settlement ratified on October 9, 1992. On December 14, 1992, the Transmission Agreement in its present form (which incorporates the Statement of Settlement and the preceding collective agreement) was executed. On June 4, 1993, the Generation Projects Agreement in its present form (incorporating the Statement of Settlement and preceding collective agreement) was executed. The collective agreements which were negotiated and ratified did not include the changes which the International had instructed the IBEW representatives to include in them as aforesaid.

52The dispute concerning the jurisdiction to supply contractors continued into 1993. Locals 773 and 804 wrote to the IBEW - EPSCCO demanding that the issue be resolved. The IBEW - EPSCCO passed this correspondence on to Woods. By letter dated February 8, 1993, McKenzie reported to Woods that the issue remained unresolved and that Local 1788 refused to implement the changes to the collective agreement as directed. At a meeting of February 22, 1993, and subsequently by letter dated March 15, 1993, Local 1788 presented its side of the story to Woods and maintained its objection to the changes to the collective agreements and its jurisdiction which had been directed.

53The International was unmoved by Local 1788's representations. By fax dated April 5, 1993, Woods advised the EPSCA to ensure that work done for Ontario Hydro by contractors was assigned to the IBEW Local Union in whose geographic jurisdiction the project was located, not to Local 1788. By fax dated April 23, 1993, Woods wrote to Local 1788 stating, in part, as follows:

As noted above, this correspondence is [sic] no way, implicity or explicitly, recognizes the jurisdictional claim of Local Union 1788 over work performed for Ontario Hydro by private contractors, that work is clearly the work of the Local Union in whose territorial jurisdiction such work is being performed.

Further, in accordance with the instructions given at the meeting of IBEW Business Managers including yourself, held on March 23, 1993, you are to cooperate with the IBEW and those Business Managers in making the necessary amendments to the Collective Agreement(s) involved in order that the negotiated jurisdiction over private sector work is determined to be that of the thirteen IBEW Construction Local Unions in the Province of Ontario in compliance with that jurisdiction awarded by the International President.

Please be governed accordingly.

54In addition, the IBEW Locals (other than Local 353) continued to protest to the International that Local 1788 should not be the Local supplying electricians to contractors performing work for Ontario Hydro under the Transmission Agreement. This internal jurisdictional dispute

was also addressed by Woods. In a letter dated May 5, 1993 to International President Barry, Woods recommended that Local 1788's jurisdictional by-law be amended to restrict its jurisdiction to direct employees of Ontario Hydro as follows:

Local Union 1788 was originally chartered to do all construction work performed by their members employed by Ontario Hydro. That jurisdiction was subsequently amended to include work on transmission systems and miscellaneous hydraulic projects of Ontario Hydro. In view of the fact there are thirteen construction locals in the Province of Ontario with jurisdiction over all construction work performed in their respective jurisdiction when performed by contractors in the private sector, there was actually a hybrid type of jurisdictional assignment in this Province. However, at no time was it ever considered by the writer that Local Union 1788 had jurisdiction over work contracted out to the private sector when not done by employees of Ontario Hydro.

Approximately one-year ago it came to the writers' attention there was an overlap of jurisdiction between the above captioned Local Union [1788] and the thirteen construction locals of the IBEW in the Province of Ontario. That problem arose through negotiations of two agreements covering work done by or for Ontario Hydro, i.e., a Generation Projects Agreement and a Transmission Systems Agreement, see attached "A", dated May 29, 1992, last para, first page.

Subsequent negotiations have not resulted in rectification of that problem, to the contrary, notwithstanding my directive to Sprackett, the Business Manager of Local Union 1788 to clean the situation up during negotiations, he has actually solidified that Local Unions' hold over Miscellaneous Hydraulic Projects work when done by "private" sector contractors.

That has lead to a deluge of phone calls from electrical contractors complaining bitterly of two things, (1) they don't want to use Local Union 1788 men, and (2) Local Union 1788 won't let the contractor take one man into the jurisdiction to look after his interests, (see B attached).

The reasons for (1) above, is that the members of Local Union 1788 have worked almost exclusively on Nuclear/Steam Generating Plants and have little experience in the "real" world, in that regard, in a call from the Electrical Contractors Association of Ontario the writer was advised that if they had to use 1788 members they might just as well get "aids".

We have enclosed copies of miscellaneous correspondence relative to this issue for your reference and information.

It is obvious that in addition to the two (2) collective agreements being modified by the International President in accordance with our Constitution, so do the Local Union Bylaws.

We therefore recommend that 1788 Bylaws be amended as per the following.

Article I In the last line of Section I, after_____________ projects of Ontario Hydro, add the following:­

__________Hydro, when such work is not contracted out to an electrical contractor.

In view of Local Union 1788 support for Bill 80, i.e., amendments to the Ontario Labour Relations Act which would prohibit an International Union from changing jurisdiction, be it work, sector or territorial, from what it was on May 2, 1992 without consent of the Local Union, the local will probably appeal this amendment to all who will listen in this Province. In that regard, everyone involved in the fight against Bill 80 wondered why the magic date of May 1, 1992 relative to jurisdictional changes in the proposed legislation, the foregoing may be coincidental, however, I doubt it.

Notwithstanding the fact Bill 80 is still not law, the matter of changing the jurisdiction may be challenged under existing sections of the Labour Relations Act. If that occurs I recommend that we obtain the services of a Labour Lawyer, and suggest Koskie & Minsky.

Should you have any questions or require more information please feel free to contact the writer.

[sic]

55Under cover of letter dated May 14, 1993, Woods sent a copy of what has come to be known as the "Knight-Woods letter" to Local 1788, and instructed Local 1788 to act in accordance with it. The Knight-Woods letter reads as follows:

JURISDICTION. MISCELLANEOUS HYDRAULIC PROJECTS

Further to your letters of April 27 and May 5, 1993, this agreement is to confirm the interpretation of the Recognition Clause in Section 2 of the IBEW-EPSCCO/EPSCA Collective Agreement.

The parties agree that the exclusion for "any work performed by Ontario Hydro on a Miscellaneous Hydraulic Project" applies only when International Brotherhood of Electrical Workers (IBEW) members are directly employed by Ontario Hydro.

Work by contractors on a Miscellaneous Hydraulic Project will be performed by IBEW members of the local in the area under the Project Agreement.

When Hydro uses its own forces to perform work on Miscellaneous Hydraulic Projects, the work will be done by Local 1788 under the Transmission Agreement.

Please sign and return a copy of this letter to confirm your agreement.

"J. G. Knight" "K. Woods" "R. Tersigni" J. G. Knight K. Woods R. Tersigni General Manager Int'l Vice- Exec. Secretary­- EPSCA President IBEW Treasurer IBEW-EPSCCO

56On June 7, 1993 Woods wrote to International President Barry enclosing a copy of the Knight-Woods letter and requesting that Local 1788's by-laws be amended to reflect the resulting change in its jurisdiction. On June 18, 1993, Woods wrote to Local 1788 advising that its by-laws had been reviewed and "corrections. . . made to reflect the proper work jurisdiction of the local union.. ." and enclosing a copy thereof as follows:

ARTICLE I

Name - Jurisdiction - Objects

Sec. 1. This Organization shall be known as Local Union 1788 of the International Brotherhood of Electrical Workers, Toronto, Ontario, Canada. Local 1788 shall have jurisdiction over Outside and Inside electrical work as defined in Article XXVII, Section 4 and 5 of the IBEW Constitution when performed by the employees of Ontario Hydro and all work done by the Electric Power Systems Construction Association (EPSCA) on Ontario Hydro property for the transmission systems and miscellaneous hydraulic projects of Ontario Hydro, when such work is not contracted out to an electrical contractor.

However, the right of the International President to change this jurisdiction is recognized, as provided in the IBEW Constitution.

(emphasis added)

57In short, the International orchestrated a change to Local 1788's by-laws, and to the Generation Projects and Transmission Agreements, such that any jurisdiction with respect to contractors of Ontario Hydro which Local 1788 had achieved through practice or negotiations was removed from it and redistributed among the other thirteen IBEW construction Local Unions. Local 1788 was restricted to representing direct employees of Ontario Hydro under both the Generation Projects Agreement and the Transmission Agreement.

58Local 1788 continued to resist this change. By letter dated June 30, 1993, Local 1788 wrote to the EPSCA (Mr. Knight), the International (Woods) and the IBEW - EPSCCO (Tersigni) as follows:

Local 1788 has received a document dated May 6, 1993 signed by J.G. Knight, K. Woods and R. Tersigni, which attempts to remove Local 1788's jurisdiction over work on miscellaneous hydraulic projects when performed by subcontractors to Ontario Hydro, and to give that jurisdiction to other local unions of the IBEW.

We want all parties to clearly understand Local 1788's position concerning this document.

First of all, this document is a complete misstatement of reality. Since at least 1986, Local 1788's members and only Local 1788's members have performed work on miscellaneous hydraulic projects when that work was performed by either Ontario Hydro or subcontractors from Ontario. Ontario Hydro, the IBEW and IBEW-EPSCCO all know that this is the practice. The document, therefore, is false. The understanding of the parties is exactly the opposite of what the document claims the understanding to be.

Local 1788 takes the position that this document is in violation of the Labour

Relations Act, as well as the Constitution of the International Brotherhood of Electrical Workers.

Signing this document and attempting to take away the jurisdiction of Local 1788 is contrary to Bill 80, which is presently before the Legislature, and which, when it becomes law, will be effective June 25, 1992. Under that law, any amendment to the jurisdiction of a Local Union done in a manner that the May 6 letter attempts to do is prohibited.

We view the action of EPSCA, IBEW and the Executive Secretary of the IBEW-EPSCCO as arbitrary, discriminatory and illegal. If any Local 1788 member or Local 1788 itself suffers any loss of work as a result of this activity, we will hold all three signing parties liable for damages. If any parties attempt to enforce this May 6, 1993 document, once Bill 80 becomes law, Local 1788 intends to commence proceedings at the Board against the signatories and the parties they represent in reliance on the provisions of Bill 80.

This is exactly the kind of arbitrary action exercised by international construction unions and assisted by compliant employers which Bill 80 is supposed to protect us against. We intend to use Bill 80.

We ask you to reconsider the May 6, 1993 document as it would have serious ramifications for all of us. We await your responses.

[sic]

59In December 1993, Woods advised the EPSCA and Ontario Hydro of the changes to Local 1788's jurisdictional by-law, and specified that Local 1788's jurisdiction was limited to direct employees of Ontario Hydro and that contractors working under any collective agreement were to be supplied by the IBEW Local Union in whose territorial jurisdiction the work was located. However, Local 1788 filed this application, on March 7, 1994, which, pursuant to section 147(5) (then section 138(5)) meant that the alteration to Local 1788's jurisdiction was deemed not to have been made. Pursuant to this, Local 1788 secured the EPSCA's agreement to continue to recognize Local 1788 as having jurisdiction over all work, including work on miscellaneous hydraulic projects, under the Transmission Agreement, until such time as a change is required as a result of a Board decision or collective bargaining amendments.

VII The Change in Jurisdiction

60Local 1788 asserts that the International has altered its jurisdiction in a manner contrary to section 147. It challenges both the process by which the change to its jurisdiction was made and the substance of the International's decision. Local 1788 submits that the process was unfair, dishonest and failed to take into account all relevant facts while taking into account irrelevant ones. It submits there was no cause, just or otherwise, to change its jurisdiction.

61Virtually all events material to this case took place prior to December 14, 1993, when section 147 (then section 138.3) was proclaimed as part of Bill 80. While there was some suggestion that the Board should take this into consideration in dealing with this application, no one took the position either that section 147 is inapplicable, or that the Board otherwise has no jurisdiction to deal with this application on its merits.

62On the evidence, the Board is satisfied that the International has purported to alter Local 1788's jurisdiction in two ways: (a) by removing its jurisdiction over line work covered by the Transmission Agreement by other than employees of Ontario Hydro; (b) by removing its jurisdiction over work performed by other than employees of Ontario Hydro in connection with miscellaneous hydraulic projects covered by the Transmission Agreement. In both cases, the work which the International has purported to remove from Local 1788's jurisdiction (that is, work contracted out by Hydro to other electrical contractors) would be redistributed among the other thirteen IBEW construction Local Unions in that the contractor performing the work supplied by the Local Union which has jurisdiction in the geographic area in which the work is being performed. In other words, Local 1788's loss is the other Local Unions' gain; or, to put it another way, the International has taken from Local 1788 and given to the other Locals.

VIII The Decision - The Process

63We turn first to the process through which this re-distribution of jurisdiction was accomplished.

64With respect, the "process" which the International adopted, through the person of International Vice-President Woods, was less than optimal. It not only resulted in Woods obtaining information which was incomplete and sometimes incorrect, but also unduly delayed the disposition of the matter and itself became part of the problem. However, the International is a trade union, not a quasi-judicial body, and the defects in the procedure it adopted, although significant, are not necessarily fatal.

65The International's Constitution gives the International President plenary jurisdiction and powers over many significant matters including the jurisdiction and activities of the Local Unions which the International has chartered. Specific to this application, the International President is empowered to divide or change the jurisdiction of Local Unions (article XIV, section 2), particularly "when harmony and progress do not prevail, or when disputes arise" in which case the International President is empowered to determine which local union will have jurisdiction over the work in issue "consistent with the progress and best interest of the IBEW in obtaining and controlling the work in question" (article XXVII, section 3).

66In this case, the International President did not testify and there was no suggestion that there was anything which prevented him from doing so. Accordingly, Local 1788 was unable to cross-examine the International President on the correspondence which purports to be from him, or his "decision" with respect to the issues herein.

67However, the International Constitution also provides, in article IV section 4, that: "the [International President] can, in any situation, delegate the powers of his office to an International Representative, Vice-President or Assistant." [sic]

68On the evidence before the Board in this case, we are satisfied that the International President has effectively delegated his responsibilities under the constitution with respect to IBEW affairs in Ontario to the Canadian International Vice-President as s/he may be from time to time, although the International President has retained and exercised a limited supervisory role in that respect. Accordingly, and notwithstanding that the International President has on what appear to be rare occasions not accepted the recommendations of the Canadian International Vice-President, the Canadian International Vice-President has an effective power of recommendation such that for practical purposes, s/he is the decision-maker. Here, it is clear that the International President deferred entirely to Woods' assessment of the situation and his recommended solution. It is not apparent that the International President made any independent assessment or decision. In effect, he "rubber stamped" Woods' decision. That is, in this case, it was International Vice-President Woods who was the effective decision-maker regarding the question of Local 1788's jurisdiction under the Generation Projects and Transmission Agreements. Further, notwithstanding its protestations at the hearing, it is clear that Local 1788 knew and treated Woods as the decision-maker. All of its efforts to forestall any change to its jurisdiction were directed at or to Woods. Local 1788 made no effort to address the International President with respect to the matter.

69Further, the jurisdictional change about which Local 1788 complains in this application was handled in the same way as the jurisdictional change which was made to Local 1788's jurisdiction in March 1989, which gave Local 1788 constitutional jurisdiction over contractors other than Ontario Hydro in the first place.

70Woods did testify.

71International Vice-President Woods was slow to appreciate both the nature and the extent of the problem he was ultimately required to deal with. Indeed, we are not sure that he really understood the full extent of the problem or the implications of the conduct of the IBEWEPSCCO, Local 1788 and the other IBEW Local Unions, or of his own conduct in 1989 and subsequently in 1992 to 1993 until the hearing of this application began. Because of that, he was slow to act (although in fairness we observe that he suffered from health problems which interfered with his ability to deal with the matter for a period of time in 1992), and he failed to appreciate what information he should be looking for, or that some of the information which he did obtain was either inaccurate or incomplete. For example, Woods did not fully appreciate that the long smouldering dispute between Local 1788 and the other IBEW Locals concerned the issue of which Local Unions have the jurisdiction to supply contractors of Ontario Hydro under the Transmission Agreement until 1992. And it was not until the hearing that Woods became aware that members of Local Unions other than Local 1788 who had performed work under the Transmission Agreement prior to 1993 (but after 1986) had done so after being cleared by Local 1788. As a result, he made statements in correspondence which he admitted were inaccurate, incorrect, or exaggerated (such as in his May 29, 1992 letter to John Sprackett of Local 1788), and his correspondence to the International President was incomplete in that he either did not describe or failed to include pertinent information concerning the history of the dispute and Local 1788's explanation of its position in that respect. Indeed, Woods' own notes indicate some vague awareness that he might require additional information which he neither had nor subsequently obtained.

72Notwithstanding these failings, the Board is satisfied that International Vice-President Woods managed to obtain sufficient information and developed a sufficient understanding of the

issue to make an adequately informed assessment of the problem and what needed to be done to enable him to recommend, in his May 5,1993 letter to the International President, the amendment to Local 1788's by-laws about which Local 1788 complains, and to adequately explain why that amendment was appropriate.

73In that respect also, Local 1788 submits that it had neither notice of the possibility that its jurisdiction might be altered, nor opportunity to address the decision-maker in that respect, either in accordance with section 147(2) of the Act or otherwise.

74We observe that there was nothing like section 147(2) in Bill 80 when that legislation was given first reading on June 22, 1992. It was not until second reading, on October 12, 1993, after the amendment to Local 1788's by-laws which altered its jurisdiction had been made, that what is now section 147(2) first surfaced. Consequently, the International could not have known that Bill 80, which it was clearly aware was coming, would include such a provision. In any event, contrary to Local 1788's assertions, its Business Manager, John Sprackett, testified that "I was aware throughout that Woods wanted to change our jurisdiction." Further, Local 1788 availed itself of every opportunity to explain its position and make its representations with respect to the issue, both at various meetings with Woods and the IBEW-EPSCCO, and in correspondence like the March 15, 1993 submissions, for example. In our view, Local 1788 had sufficient notice of the proposed change to its jurisdiction, and had an adequate opportunity to explain its side of the issue.

75In the result, although the process adopted by the International was flawed, the flaws are not, in the circumstances, fatal.

IX Section 147 - What does it Mean

76We turn now to the merits of the International's decision.

77Section 147 of the Labour Relations Act provides that:

147. (1) A parent trade union shall not, without just cause, alter the jurisdiction of a local trade union as the jurisdiction existed on May 1, 1992, whether it was established under a constitution or otherwise.

(2) The parent trade union shall give the local trade union written notice of an alteration at least 15 days before it comes into effect.

(3) On an application relating to this section, the Board shall consider the following when deciding whether there is just cause for an alteration:

1. The trade union constitution.

2. The ability of the local trade union to carry out its duties under this Act.

3. The wishes of the members of the local trade union.

4. Whether the alteration would facilitate viable and stable collective bargaining without causing serious labour relations problems.

(4) The Board is not bound by the trade union constitution when deciding whether there is just cause for an alteration.

(5) If a local trade union makes a complaint to the Board concerning the alteration of its jurisdiction by a parent trade union, the alteration shall be deemed not to have been effective until the Board disposes of the matter.

78The Board heard much argument about what "just cause" means within the context of section 147, and what the test should be for determining whether an alteration of jurisdiction was for just cause. Again, in the interests of time, we do not intend to set out the arguments of counsel in that respect. Instead, we will address those arguments, implicitly or explicitly, in the course of our decision.

79In the past, the Board has tried to avoid becoming involved in internal trade union affairs, or in adjudicating internal trade union disputes, except to the extent it has been necessary to do so in order to dispose of an application to the Board which required an inquiry into statutory rights or obligations. When the Board did find it necessary to do so, it was often in the context of duty of a fair representation (or referral) proceedings (now sections 74 and 75 of the Act), or when an issue was raised with respect to the manner in which a strike or ratification vote was taken (now section 79 of the Act). However, proceedings involving those issues are not purely internal to trade unions in that they involve an employment interest and statutory rights, and have ramifications for parties other than the trade union and its members. (See also paragraph 81, below.)

80Section 147 creates rights and obligations which are purely internal to trade unions. The real issue in this case is whether the International had "just cause" to alter the jurisdiction of Local 1788 (as aforesaid). In our view, this is quite separate from a consideration of the International's conduct in altering the Transmission Agreement as it purported to do, something which would have been an issue had Local 1788 not withdrawn its allegations with respect to what is now section 73(2) of the Act. Although that is clear now, it was not so clear when this case began, although it was apparent that the Board was going to hear evidence in that latter respect as well, which is why we declined to reconsider our decision to grant the IBEW's entities other than the International, and the EPSCA and Ontario Hydro standing to participate in the application even after Local 1788 withdrew section 73(2) as a basis for it.

81Prior to Bill 80 coming into force, the Labour Relations Act was not particularly concerned with the internal affairs or dealings of trade unions, except where otherwise internal dealings were specifically addressed in the Act, or otherwise impacted on statutory rights. (see sections 68, 79, and 89-94 of the Act, for example). Generally, however, neither the Act nor the Board were particularly concerned with a trade union's constitution, or its operation under that constitution. Such constitutional matters were considered to be matters of contract which were properly dealt with by the Courts in the event of a dispute. However, by promulgating Bill 80, the Legislature has determined that an internal trade union adjustment of jurisdiction is something likely to have an impact on the trade union(s) involved in its (or their) role as bargaining agent, and the employees and employers who are inevitably affected by such changes. The Bill 80 provisions give the Board a supervisory role which is similar to, but more intrusive than, the section 68 union successorship provisions, for example.

82Consequently, we reject the suggestion that under section 147, the Board should continue to avoid reviewing internal trade union matters. It is apparent that all of Bill 80, including section 147, evidences a legislative intent that the Board exercise 'a supervisory jurisdiction over internal trade union affairs which the Board did not previously have. It is also apparent that section 147 requires the Board to review and adjudicate upon internal union matters when they concern an alteration of a local trade union's jurisdiction by its parent trade union.

83Section 147 provides that a parent trade union shall not alter the jurisdiction of a local trade union without just cause. In an application relating to section 147, the Board is directed to consider the union's constitution (although it is not bound by that constitution either generally or as a matter of law, and specifically by the provisions of section 147 itself), the ability of the trade

union to carry out its duties under the Act, the wishes of the members of the local union, and whether the alteration of jurisdiction would facilitate viable and stable collective bargaining without causing serious labour relations problems.

84We also reject the suggestion that the Board's approach to section 147 should mimic the approach it takes to fair representation/referral cases, or that a parent trade union has some sort of "right to be wrong" when it alters a local union's jurisdiction. The fair representation/referral provisions prohibit a trade union from acting in a manner which is arbitrary, discriminatory or in bad faith in representation/referral matters. A trade union could act in a manner which is neither arbitrary, discriminatory nor in bad faith and still make a decision in such matters which someone else, like the Board, might consider to be "wrong". This explains the development of the "right to be wrong" part of the Board's fair representation/referral jurisprudence.

85The Legislature could have used those same words in section 147. It could have said that when a parent trade union alters the jurisdiction of the local trade union, it shall not act in a manner which is arbitrary, discriminatory, or in bad faith. But the Legislature did not do so. Instead, the Legislature chose to prohibit a parent trade union from altering a local union's jurisdiction wtthout "just cause", a term which is well known in labour relations.

86In that respect, "just cause" is a term most often encountered in discipline or discharge grievance arbitration proceedings, and has come to mean "well grounded, fair, equitable and proper". It has been suggested that "just cause" requires a higher standard than merely acting reasonably and in good faith in that it requires an examination and evaluation of the basis for the decision under consideration, and the justice and reasonableness thereof.

87The meaning which has been ascribed to the term "just cause" in grievance arbitration proceedings is not necessarily transferable to section 147, however. Care must be taken to examine the appropriateness and applicability of concepts or standards which have developed in one context before adopting them for use in another.

88We are satisfied that "just cause" in section 147 of the Act creates an objective standard which requires something other than that a parent trade union act in a manner which is not arbitrary, discriminatory or in bad faith. While that may be part of the question which is properly asked in any given case, the question to be asked under section 147 is this: "Was the parent union s decision a fair and reasonable one having regard to all of the circumstances?"

89The nature of section 147 and the factors which the Board is directed to consider under it requires that the Board not limit itself to an examination of the parent union's conduct in the decision-making process, and the factors which it considered. It may be that a parent union can do everything wrong in that respect and still end up with a decision which is fair and reasonable in the circumstances. That is, the question is not: "Could a parent trade union, acting honestly and looking at the situation and circumstances as a whole, and weighing the interests of all concerned, have reached the conclusion and made the jurisdictional decision it did?" Instead, the question is: "Having regard to the evidence before the Board, does that parent union's decision yield a result which is fair and reasonable."

90In a proceeding under section 147 the Board is limited to considering the four factors listed in subsection 147(3). The wording of section 147 taken as a whole also suggests that the Board's power is limited to determining whether there was just cause for the alteration of jurisdiction under scrutiny. The wording of the provisions stands in sharp contrast to that of subsections 149(3) and (4) (also part of Bill 80) which also require the Board to decide whether a parent trade union had just cause to interfere with the autonomy of a local trade union, or for removing local union officials from office, or changing their duties, but allows the Board to "consider such factors as it considers to be appropriate", and allows the Board to make whatever orders or directions it considers appropriate.

X Section 147 Applied

91In this case, there is no issue regarding the International's right to alter an IBEW Local Union's jurisdiction, in this case the jurisdiction of Local 1788. It clearly has the right to do so. Indeed, Local 1788 does not suggest otherwise. What Local 1788 asserts, raises the question whether the alteration of Local 1788's jurisdiction in this case was justified under the constitution because "harmony and progress [did] not prevail", or because a dispute had arisen.

92There is also no issue concerning Local 1788's ability to carry out its duties under the Act. It is clear that Local 1788 has been vigilant, forceful and vigorous, both generally and specifically in matters having to do with its jurisdiction. No one disputed Local 1788's ability to carry out its duties under the Act at all material times. There was no suggestion that Local 1788's "ability" in that respect had anything to do with the alteration of its jurisdiction.

93Nor is there any question regarding the wishes of Local 1788's members. Local 1788 has enjoyed very strong support for the position it took in the dispute which is the subject of this application from its members at all material times. In that respect, we did not understand any part of Local 1788's position to be that a jurisdictional change which is opposed by the members of the local union in question is somehow presumptively without just cause. We do not find that to be a tenable position in any event. The "wishes of the members of the local union" is just one of the four factors the Board is required to consider under section 147. Further, in the construction industry, it will be the rare case indeed in which members of a local union will want to give up jurisdiction (which in the construction industry translates into work or opportunities for work). If the Legislature had intended that members' wishes have some sort of veto effect, it could have said so. The Legislature has not said so.

94There are therefor two issues for the Board to consider in this case. The first is the application of the IBEW Constitution to the alteration of Local 1788's jurisdiction, and more specifically, whether the International acted in accordance with the Constitution in that respect. Again, this is but one of the factors which must be considered by the Board, and whether the International did or did not act properly under the Constitution is not determinative of this application. Indeed, subsection 147(4) specifically provides that the Board is not bound by the trade union constitution in deciding whether there was just cause for the alteration of jurisdiction.

95The second question relates to the broadest and most general factor which the Board is required to consider; namely, "whether the alteration would facilitate viable and stable collective bargaining without causing serious labour relations problems." This requires the Board to consider whether a legitimate collective bargaining purpose would be served by the alteration of jurisdiction which will not create significant labour relations problems; both as between the trade union entities involved, and as between those trade unions and their employer collective bargaining partners. It is important to consider the former not only because section 147 deals with what is fundamentally an internal trade union matter, but also because such questions also involve important issues of statutory rights, and generally have an impact on collective bargaining relations with employers (which is why the latter must also be considered).

96Local 1788 was created for the purpose of representing direct employees of Ontario Hydro, and for no other purpose. Until 1972, Local 1788 held no bargaining rights of its own, but merely administered bargaining rights held by the International for employees of Ontario Hydro, in 1971, the International transferred bargaining rights limited to employees of Ontario Hydro to Local 1788. This transfer was confirmed by this Board in 1972. Local 1788 exercised and administered these bargaining rights, with respect to Ontario Hydro employees only, until 1980.

97Prior to 1980, Ontario Hydro did virtually all of its transmission and miscellaneous hydraulic projects work using its own employees. On the evidence before the Board in this case, those Hydro employees were represented by Local 1788. On those few occasions when such work was contracted out, it was performed by members of the IBEW Local Union with geographic jurisdiction in the area in which the work was located, or the work was performed non-union. As Hydro began to contract out work, a debate began within the IBEW with respect to how to deal with this development. The result of this was that Local 1788 continued to represent only employees of Ontario Hydro and the other IBEW Local Unions represented employees of contractors of Ontario Hydro according to their geographic jurisdiction. The first Generation Projects and Transmission Agreements were negotiated with the EPSCA and came into effect in 1980. Although the words of the 1980 Transmission Agreement are somewhat ambiguous, we are satisfied that these agreements were intended to reflect this Local 1788 and Ontario Hydro vs. the other IBEW Local Unions and Hydro contractors division of jurisdiction. Between 1980 and 1986, all or virtually all transmission systems work continued to be done by Hydro using its own employees. To the extent that there was such work which was contracted out it was also performed by members of Local 1788. In the circumstances, however, including the boom in electrical power systems sector construction work during that period, we are not satisfied that the amount of contractors work performed by Local 1788 is particularly significant. During that time, Local 1788 tried unsuccessfully to have its jurisdiction amended to include work performed by contractors for Ontario Hydro (which attempt was rebuffed by the Canadian Vice-President Rose).

98In 1986, however, Local 1788 and the EPSCA negotiated a change to the Transmission Agreement which gave Local 1788 jurisdiction over such contractors. It appears, that the International, which vets and approves all collective agreements, was asleep at the switch and did not notice this. Nevertheless, the internal debate over jurisdiction continued, with the IBEW Local Unions other than Local 1788 insisting that, they, not Local 1788, had jurisdiction over Ontario Hydro's contractors. By 1987. Woods was Canadian International Vice-President. It is apparent from his evidence that he did not understand the true nature of the jurisdictional issue and as a result erred in the position he expressed in that respect, to Local 105 for example. Local 1788 seized upon this opportunity to request a change to its jurisdiction to accord with its "practice". In our view, the change it requested, namely to give it jurisdiction over employees of contractors as well as employees of Ontario Hydro, could not be justified on the basis of "practice", because prior to 1986 it had no significant practice in that respect. However, it was consistent with the Transmission Agreement Local 1788 had managed to negotiate with the EPSCA.

99After discussing Local 1788's request with the IBEW-EPSCCO and the other IBEW Locals, Woods took the request at face value and recommended the jurisdiction change requested, which recommendation was in effect rubber stamped by International President Barry. Although Woods is not blameless, this time it was the IBEW-EPSCCO and the other Local Unions which were asleep at the switch.

100The other Local Unions awoke from their slumber when the boom in construction work in the electrical power systems sector ended and work shortages developed. They complained to Woods and demanded that the International intervene and resolve the dispute. Woods also received some telephone calls from contractors and the ECAO (although not the "deluge" of telephone calls he described in his letter to Barry). In any event, the true nature of the problem began to dawn on Woods; that is, that there was a dispute between Local 1788 and the other IBEW Local Unions concerning jurisdiction over Ontario Hydro's contractors, and that he had inadvertently given Local 1788 a leg up in that respect by agreeing to amend its jurisdiction as it had requested in 1989. Woods then engaged in the rather tortuous process which eventually led to the alteration of Local 1788's jurisdiction - back to what it was prior to the unwarranted change in 1989.

101The Board is satisfied that there was an internal jurisdictional dispute which had to be addressed by the International. In the words of the constitution, "harmony and progress [did] not prevail", because of "a dispute" between the Local Unions which was affecting the employers with which the various Local Unions had collective bargaining relationships. Further, we are satisfied, on a balance of probabilities having regard to the evidence before the Board, that something had to be done to resolve the dispute, and that the International's decision, made by International Vice-President Woods and approved by International President Barry, was a fair and reasonable resolution of the dispute and solution to the problem. It was a solution which returned the IBEW construction Local Unions to their jurisdictional positions as they were intended to be, and as they were prior to 1986; that is, with Local 1788 representing employees of Ontario Hydro and the other IBEW Locals representing employees of all other employers in the electrical power systems sector, whether as Ontario Hydro contractors or otherwise, according the their geographic jurisdictions. The anomaly in this case is the period between 1986 and 1993. That anomaly was created by Local 1788's relative size and presence in the electrical power systems' sector, which it used in its aggressive approach in negotiations and in the field, to jurisdiction (something which we do not criticize) combined with the International's error in altering Local 1788's jurisdiction in 1989, and with the inability of the International, the IBEW-EPSCCO and the other IBEW Local Unions to recognize or deal with the situation created by Local 1788 and the International's error.

102Further, we are satisfied that changing Local 1788's jurisdiction back to what it was intended to be, and which for most of its history it was, will more probably than not facilitate viable and stable collective bargaining without causing serious labour relations problems. There is nothing in the evidence which suggests that there were any collective bargaining problems prior to 1986 which resulted from restricting Local 1788's jurisdiction to employees of Ontario Hydro, or that collective bargaining was other than viable and stable. On the other hand, it is clear that there was much discord and a distinct lack of harmony within the IBEW, and that there were some concerns among employers other than Ontario Hydro after 1986, which created some collective bargaining difficulties and ultimately led to this application and other proceedings before the Board, all of which have been rather rancorous. We are satisfied that a correction of the error which the International made in 1989 and a return to the pre-1989 de jure and pre-1986 de facto jurisdiction will facilitate a return to viable and stable collective bargaining. We are further satisfied that this will not create any serious labour relations problems.

103In arriving at these conclusions, we have considered Local 1788's assertions that it would "better" to allow it to retain its expanded jurisdiction because of what it means to itself, the IBEW as a whole, and to employers in the electrical power systems sector. There is nothing in the evidence or Local 1788's submissions which we find compelling in that respect. It is true that this could result in IBEW members performing the same work on the same project working under different terms and conditions of employment depending on who their employer is. But that distinction will be drawn on the basis of whether the persons concerned are employed by Ontario Hydro or some other contractor, and no one can deny that Ontario Hydro has always been treated differently from other contractors. Nor are we satisfied that allowing Local 1788 to retain its expanded jurisdiction would create a more efficient or "better" situation in the perspective of any IBEW entity other than Local 1788 itself, or from the perspective of the IBEW as a whole. In that respect, we find Local 1788's argument that the International and the other locals have "ganged up" on it to be misplaced and rather disingenuous. On the evidence, it is apparent that it is Local 1788 which has been the dominant IBEW player in the electrical power systems sector over the years and that it has used its "muscle" to further a strategy of expanding its jurisdiction at the expense of its sister Locals. Finally, resolving this issue in the manner in which the International did was a sensible and rational way of finally putting an end to the internal IBEW discord and putting the jurisdictional issue to rest. From a labour relations perspective, that can only be a good thing.

XI Conclusion

104In the result, the Board is satisfied that the International had just cause to alter the jurisdiction of the application Local 1788 in the manner it did. This application is therefor dismissed.

XII One More Thing

105Having regard to the submissions of counsel for the EPSCA and Ontario Hydro we find ourselves constrained to make one further comment. Neither the fact that this application has been dismissed, nor anything in the decision should be read or taken to mean that the International or the IBEW-EPSCCO was entitled or able to alter or amend either the parties to or the terms of the Transmission Agreement as they purported to do, either unilaterally or with the agreement of the EPSCA. No non-party, whether an international union, a council of trade union or anyone else, is entitled to thrust itself into a collective bargaining relationship to which it is not a party. Bargaining rights can only be dealt with under the applicable provisions of the Labour Relations Act. Provisions of a collective agreement can only be altered by agreement of the parties (or the Board in appropriate circumstances). In this case, the parties to the Transmission Agreement were and are the EPSCA and Local 1788. Neither the International nor the IBEW-EPSCCO were entitled to make any change to the Transmission Agreement. The fact that an internal union jurisdictional change has been made does not necessarily alter collective bargaining relationships or collective agreements. Under the Labour Relations Act, then and now, those are separate, although not necessarily unrelated, matters.