Power Workers' Union - Canadian Union of Public Employees, Local 1000 v. International Brotherhood of Electrical Workers, 1996 CanLII 11196

Power Workers' Union - Canadian Union of Public Employees, Local 1000 v. International Brotherhood of Electrical Workers

[1996] OLRB REP. SEPTEMBER/OCTOBER 822

4077-95-U Power Workers' Union - Canadian Union of Public Employees, Local 1000 and J. Caskanette, G. D. Chaffey, M. D. Collins, L. Crausen, H. R. Gillies, R. C. Hansen, G. O'Donnell, J. Stark, R. Thorns, H. Tomsett and R. R. Young on their own behalf and on behalf of all members of International Brotherhood of Electrical Workers, Local Union 1788, Applicants v. International Brotherhood of Electrical Workers, Ken Woods, Allan Diggon, Tom McGreevy and International Brotherhood of Electrical Workers, Local Union 1788 by its Trustee, International Brotherhood of Electrical Workers and Ontario Hydro and Electrical Power Systems Construction Association and IBEW Electrical Power Systems Construction Council of Ontario, Responding Parties

BEFORE: G. T Surdykowski, Vice-Chair.

APPEARANCES: L. A. Richmond for the Applicants; Michael Church for the IBEW; A. M. Minsky for the IBEW-EPSCCO; Michael Wright for the IBEW, Local 1788; Robert Little for Ontario Hydro and EPSCA.

DECISION OF THE BOARD; September 30, 1996

1This is a complaint under section 96 of the Labour Relations Act, 1995 in which the applicants alleged that the responding parties have breached sections 53, 70, 72, 74, 76, 86, 87 and 149 of the Act. In their amended request for relief, the applicants request as follows:

AMENDED SCHEDULE 'A'

RELIEF REQUESTED

(1) A Declaration that the Responding Parties have violated the Act as set out in this application;

(2) An Order that the Responding Parties cease and desist from violating the Act as set out in this application;

(3) With respect to the Generation Projects Collective Agreement:

(a) a Declaration that there is no Generation Projects Collective Agreement in effect as the Memorandum of May 23, 1996, was not ratified in accordance with the Labour Relations Act, and in particular, Section 79 thereof;

(b) an Order that any Memorandum of Settlement reached be ratified in the same manner as a Memorandum of Settlement would have been ratified in April of 1995;

(c) a Declaration, whether or not the Memorandum of Settlement was ratified, that the Memorandum of Settlement of May 23, 1996 is of no force and effect and, in particular, is not applicable to the bargaining unit of Local 1788;

(d) an Order that none of the terms and conditions of the Memorandum of Settlement of May 23, 1996 be implemented in the bargaining units of Local 1788, to the extent that they constitute alterations of the rates of wages or any other term or condition of employment, or any right, privilege or duty of the employer or the employees, without the consent of the PWU, or until the application for certification by the PWU is dismissed or terminated by the Board, or withdrawn by the trade union.

(4) With respect to the Transmission collective agreement:

(a) A Declaration that there has been no legal transfer of the bargaining rights of Local 1788 to IBEW-EPSCCO in accordance with Section 68 of the Act;

(b) an Order that any Memorandum of Settlement reached be ratified in the same manner as such a collective agreement would have been ratified in April of 1995;

(c) Such further and other relief as my be required in the circumstances.

(5) An Order that all individuals adversely affected by the actions of the Responding Parties be fully compensated by them, with interest for all damages suffered; and

(6) Such further and other relief as may be appropriate in the circumstances.

2On agreement with the parties, the Board heard their representations with respect to the applicants' allegation that there has been a breach of section 79 of the Act. In that respect, the parties filed an agreed statement of facts as follows:

AGREED FACTS RESPECTING SECTION 79 ARGUMENT

1. On March 15, 1996, IBEW-EPSCCO and EPSCA signed a Memorandum of Settlement for a renewal of the Generation Projects collective agreement, which Memorandum of Settlement was subject to ratification and the parties agreed to recommend such ratification to their respective principals (IBEW Documents - Tab 2). The vast majority of employees working under that collective agreement were on March 15, 1996, members of IBEW Local 1788.

2. A ratification vote was conducted by mailed secret ballot of all members of IBEW Local 1788, except those working under the Transmission collective agreement, and all other members of IBEW local unions who were working in the Electrical Power Systems Sector, or who had worked in that sector (except for working under the Transmission collective agreement), within the six monthspreceding the time that the vote was held, in accordance with the by-laws of IBEW­EPSCCO, Article VIII, in effect at that time, and in accordance with the practice in effect since the origin of IBEW-EPSCCO in 1980 (EPSCCO Documents - Tab 11).

3. This Memorandum of Settlement was rejected by 63% of those voting. The March IS, 1996 Memorandum of Settlement, therefore, did not become a collective agreement.

4. On May 23, 1996, a second Memorandum of Settlement respecting the Generation Projects collective agreement was signed by IBEW-EPSCCO and EPSCA (EPSCCO Documents - Tab 13). Implementation of that collective agreement was contingent upon ratification by both parties. The effective date of the agreement was on the date ot ratification, unless otherwise indicated.

5. On May 23rd, 1996, John Pender, the Executive Secretary/Treasurer of IBEW-EPSCCO, pre­sented the Memorandum of Settlement referred to in para. 4, supra, to a meeting of the accredited delegates of IBEW-EPSCCO for approval. On that occasion, the said Memorandum of Settlement was approved by the majority of the accredited delegates who were present (either in person or by telephone conference) who voted in favour of such Memorandum of Settlement (IBEW-EPSCCO Documents - Tab 14). None of the delegates were employees in the bargaining unit to which the collective agreement applied. None of the employees in the bargaining unit to whom the collective agreement applied were given the opportunity to vote to ratify the May 23rd, 1996 Memorandum of Settlement and none in fact voted by secret ballot or otherwise. The accredited delegates of IBEW Local 1788 who were present at the meeting cast their ballots against the approval of the said Memorandum of Settlement. These delegates had previously been appointed by the Interna­tional Union to their positions as a result of the International Union's supervision of IBEW Local 1788 and were not elected or appointed by members of IBEW Local 1788.

6. IBEW-EPSCCO claims that the process it adopted for the approval on May 23rd, 1996 of the Memorandum of Settlement referred to in paras. 4 and 5, supra, was in accordance with Article VIII of its amended by-laws (IBEW-EPSCCO Documents - Tab 12). The said by-laws were amended effective May 22nd, 1996 by the International Union at the request of IBEW-EPSCCO (IBEW-EPSCCO Documents - Tab 10).

7. Any party to these proceedings is entitled to take the position that any of the above facts are irrelevant for the purposes of the Section 79 argument.

8. The documents referred to above shall be entered and marked as exhibits in this matter on consent of the parties.

3The issue between the parties concerns the "ratification" of the May 23rd, 1996 Memoran­dum of Settlement referred to in paragraph 5 of the agreed statement of facts.

4The following subsections of section 79 of the Act are relevant in this case:

79.(7) A strike vote or a vote to ratify a proposed collective agreement or memorandum of settlement taken by a trade union shall be by ballots cast in such a manner that persons expressing their choice cannot be identified with the choice expressed.

(8) All employees in a bargaining unit, whether or not the employees are members of the trade union or of any constituent union of a council of trade unions, shall be entitled to participate in a strike vote or a vote to ratify a proposed collective agreement or memorandum of settlement.

(9) Any vote mentioned in subsection (7) shall be conducted in such a manner that those entitled to vote have ample opportunity to cast their ballots. If the vote taken is otherwise than by mail, the time and place for voting must be reasonably convenient.

5The applicants argue that once the IBEW-EPSCCO decided upon a ratification process which included a vote, it was required to conduct that vote in accordance with subsections 79(7) through 79(9) of the Act, and because the ratification vote which the IBEW-EPSCCO held in this case was not a vote of employees in accordance with subsections 79(7) through 79(9), the Memorandum of Settlement referred to in the agreed statement of facts has not been properly ratified and is, therefore, not a collective agreement for purposes of the Act.

6The responding parties submit that the provisions of section 79 do not apply to non-employee ratification votes. They say that using the word "ratification" does not necessarily refer to or require ratification by employees, and that ratification can be by the principals of the individuals actually at the bargaining table which ratification may well be by some sort of vote of delegates in the case of a principal which is a council of trade unions like the IBEW-EPSCCO. The responding parties submit that to accept the applicants' position is to require a section 79 type employee ratification vote in every case, something which the Act specifically does not require in the construction industry.

7Section 44 of the Labour Relations Act, 1995 provides that:

44. (1) A proposed collective agreement that is entered into or memorandum of settlement that is concluded on or after the day on which this section comes into force has no effect until it is ratified as described in subsection (3).

(2) Subsection (1) does not apply with respect to a collective agreement,

(a) imposed by order of the Board or settled by arbitration;

(b) that reflects an offer accepted by a vote held under section 41 or subsection 42(1); or

(c) that applies to employees in the construction industry.

(3) A proposed collective agreement or memorandum of settlement is ratified if a vote is taken in accordance with subsections 79(7) to (9) and more than 50 per cent of those voting vote in favour of ratifying the agreement or memorandum.

This is a new provision which has no precedent in the labour relations legislation of this province. Although the Labour Relations Acts prior to the current Act contained provisions which dealt with the manner in which employee ratification votes were to be conducted (namely, what are now section 79, and section 165 which relates to strike and ratification votes in the provincial bargaining scheme for the ICI sector of the construction industry), such votes were never mandatory. Under the current Act, employee ratification votes are mandatory - but not with respect to collective agreements which apply to employees in the construction industry.

8There is no dispute that the May 23rd, 1996 Memorandum of Settlement relates to employ­ees in the construction industry.

9Accordingly, now as before (and as the applicants conceded), in the construction industry it is up to the trade union concerned to determine for itself whether or not to hold a ratification vote.

10I note that the words of subsections 79(7) through 79(9) are not exactly the same as the equivalent provisions (subsections 74(4) through 74(6) in the Bill 40 Act which immediately preceded the current Act here. However, the changes to subsections 79(7) and 79(8) merely make those provisions consistent with section 44 of the current Act. There have been no substantive changes to those two provisions. In subsection 79(9), the sentence "If the vote taken is otherwise than by mail, the time and place for voting must be reasonably convenient." has been added to what was there before in subsection 74(6). This change has no bearing on the issue before me in this case.

11Consequently, the Board's approach in jurisprudence under the various Labour Relations Acts which preceded the current Act remains applicable in the construction industry.

12Accordingly, now as before, there is nothing in section 44, section 79, or elsewhere in the Labour Relations Act, 1995 which requires a trade union to conduct a ratification vote with respect to a proposed collective agreement or Memorandum of Settlement which applies to construction employees. It is clear that the legislature intended to exclude the construction industry from the mandatory employee ratification (end strike) vote provisions of section 44 (and subsections 79(3) and 79(4) in the case of a strike) now in the Act. This means that trade unions continue to enjoy considerable freedom in the manner in which they conduct themselves when it comes to strikes and the settling of collective agreements which relate to construction employees. This includes the right, which all unions previously had, to adopt ratification procedures which do not include an employee ratification vote. Such ratifica­tion procedures may include ratification votes of other than employees, which as a practical matter are common in the case of councils of trade unions (which are recognized as collective bargaining entities under the Act and are common in the construction industry). Indeed, it is not uncommon for negotiating committees to put things to a vote, even when they are not negotiating for a council or trade unions. There cannot be anything improper about such votes, which are clearly not subject to the provisions of subsections 79(7) through 79(9).

13Consequently, when it comes to construction employees, a trade union is free to choose a ratification process which includes a vote which is not a vote of employees. To put it another way, the fact that a trade union chooses to hold a ratification vote with respect to a proposed collective agreement or Memorandum of Settlement which relates to construction employees does not mean that that ratification vote has to be a vote of employees. Like its predecessor provisions, subsections 79(7) through 79(9) apply to the construction industry only when a trade union decides to hold an employee ratification vote. If it does, then subsections 79(7) through 79(9) require the union to conduct the vote in accordance with the minimum standards established by those provisions (except in the ICI sector of the construction industry in which case section 165 governs the manner in which an employee bargaining agency or an employee bargaining agent which chooses to do so must conduct an employee strike ratification vote).

14Cases like Cuddy Food Products Ltd. [1988] OLRB Dec. 1211 and the T Eaton Company Limited [1985] OLRB Aug. 1309 (among others) deal with the conduct of a trade union which chooses to conduct an employee ratification vote, and do not stand for the proposition that every ratification vote must be a vote of employees.

15Nor is it odd or surprising that this results in different treatment of construction and non-construction employees. For most of the history of labour relations in this province, the construction industry has been recognized as requiring different treatment. Accordingly, there has long been a "construction industry" section in the Act which has provided, as it does in the current Act, that where there is a conflict between the "general" provisions and the construction provisions of the Act, the latter will prevail in circumstances to which they apply. This is legislative recognition of the fact that while there are many similarities between the labour relations in the construction industry and the labour relations in non-construction endeavours, there are also significant differences between them.

16In this case, the IBEW-EPSCCO decided not to have an employee ratification vote with respect to the May 23rd, 1996 Memorandum of Settlement. Instead, it decided to hold a vote of the accredited delegates of the IBEW-EPSCCO. It was entitled to do this and the provisions of sections 79(7) through 79(9) do not operate to require that the IBEW-EPSCCO hold an employee ratification vote in that respect, nor to the manner in which the IBEW-EPSCCO conducted its ratification vote. It remains to be seen whether the conduct complained of was otherwise improper.

17The applicants' complaint that the responding parties have breached section 79 of the Act is therefor dismissed. The hearing will continue as previously scheduled for the purposes of dealing with the remaining matters of issue.