[1998] OLRB REP. MAY/JUNE 452
1429-97-U; 1434-97-G United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Ontario Pipe Trades Council an United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 552, Applicants v. Mechanical Contractors Association of Ontario, Mechanical Contractors Association of Windsor, State Group Ltd. - Mario Cossarmni, Vollmer & Associates Contractors Limited - John Volimer, Southern Mechanical Contractors Ltd. - Louis Panontin, Lekter Industrial Services Inc. - David Holek, Fahrhall Mechanical Contractors Ltd. -John Fahringer, Mid-South Contracting Limited - Robert Nantais and Haller Mechanical Contractors Inc. Richard Haller, Responding Parties; Ontario Pipe Trades Council, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 552, Applicants v. Mechanical Contractors Association of Ontario and Employers listed on Schedule "A", Responding Parties
BEFORE: R. 0. MacDowell, Chair.
APPEARANCES: S. B. D. Wahl, R. Pearn and J. Boyle for the applicant; Richard J. Charney, J.
Timothy Lawson and Stephen Coleman for MCAO; L. P. Kavanaugh, Q. C., Mario Cossarini, Richard Haller and David Holek for MCAW.
DECISION OF THE BOARD; May 20, 1998
I
This is an arbitration proceeding under section 133 of the Labour Relations Act, that was launched together with a related complaint under section 96 of the Act. The "section 133 application" alleges various breaches of a provincial collective agreement. The "section 96 complaint" alleges various breaches of the Labour Relations Act itself.
In each case, the Board is being asked to examine the relationship between the provincial collective bargaining scheme for ICI construction, and a Windsor-based pension and welfare benefit plan that has existed outside the ambit of that scheme for many years. The Board is being asked: whether provincial collective bargaining can properly require changes to the local plan; whether the 1995 round of bargaining properly effected such changes; and whether the response of local employers and the MCAW has contravened both the collective agreement and the Labour Relations Act - especially those provisions of the Act prohibiting "local bargaining".
The union says that in the course of the 1995 round of provincial bargaining (i.e. for the 1995-1998 collective agreement), the bargaining parties at the provincial level entered into an agreement (inter alia) to change the structure of the Windsor benefit plan. In accordance with this agreement, the beneficiaries of that plan (primarily union members or former members) were to be given an option to maintain the current structure, where the local union and local employers each appoint trustees, or, alternatively, to opt for a new arrangement in which there would no longer be trustees appointed by the local employers. In other words, the members were to be given the option of switching from a 'jointly-trusteed plan" to one in which only the union and its members selected the trustees.
The union says that, following the negotiation of this provision, the overwhelming majority of local members have rejected the jointly-trusteed model and have opted, instead, for a structure in which trustees are selected by the union. But the employer-appointed trustees have refused to withdraw, and have refused to bring their plan into compliance with provincially-negotiated norms. According to the union, the local employers have said that they are only prepared to yield on this issue if they receive, in return, other concessions on local wages and working conditions.
The union asserts that the local employers are in breach of the provincial agreement, and that their resistance to change is being used as a "bargaining chip" to support "local bargaining" -something that is expressly prohibited by section 162 of the Labour Relations Act:
(1) An employee bargaining agency and an employer bargaining agency shall make only one provincial agreement for each provincial unit that it represents.
(2) Subject to sections 153 and 161, no person, employee, trade union, council of trade unions, affiliated bargaining agent, employee bargaining agency, employer, employers' organization, group of employers' organizations or employer bargaining agency shall bargain for, attempt to bargain for, or conclude any collective agreement or other arrangement affecting employees represented by affiliated bargaining agents other than a provincial agreement as contemplated by subsection (1), and any collective agreement or other arrangement that does not comply with subsection (I) is null and void.
(3) Every provincial agreement shall provide for the expiry of the agreement on April 30 calculated triennially from April 30, 1992.
The term "provincial agreement" is defined this way:
"provincial agreement" means an agreement in writing covering the whole of the Province of Ontario between a designated or accredited employer bargaining agency that represents employers, on the one hand, and a designated or certified employee bargaining agency that represents affiliated bargaining agents, on the other hand, containing provisions respecting terms or conditions of employment or the rights, privileges or duties of the employer bargaining agency, the employers represented by the employer bargaining agency and for whose employees the affiliated bargaining agents hold bargaining rights, the affiliated bargaining agents represented by the employee bargaining agency, or the employees represented by the affiliated bargaining agents and employed in the industrial, commercial and institutional sector of the construction industry referred to in the definition of "sector" in section 126.
In the union's submission, the statutory scheme permits the negotiation of benefits at the provincial level, and prohibits local negotiations which have not been sanctioned by the employer and employee provincial bargaining agencies. That is what provincial bargaining is all about. It does not matter that some local employers may not like what was bargained at the provincial level. Nor does it matter that the Windsor-based plan has historically existed outside the collective agreement, because in 1995, the provincial bargaining agencies removed that anomaly, giving the union members an option that they did not have before. The union asserts that provincial bargaining and the provincial agreement override the local arrangement.
The local employers reply that the pension and welfare benefit plan pre -dated the provincial collective bargaining scheme introduced in 1978, and has operated entirely outside that provincial scheme for almost 20 years. The local fund has its own legal foundation found in its own constituting trust documents; moreover, it operates within its own statutory framework which includes inter alia, the Pension Benefits Act. Through all these years, the plan has been 'jointly trusteed", and in MCAW's submission, the provincial bargaining agencies are neither entitled to modify it, nor have they effectively done so.
MCAW asserts that the union has not shown a "prima facie case" of a breach of the collective agreement or the statute; and, in any event, the Board should either defer to the dispute settlement mechanism found in the trust documents, or should defer to the Courts who, MCAW says, have primary jurisdiction to address pension/benefit/trust matters. The MCAW points out that the "Pension Commission" may also have some role to play because it, too, has some regulatory authority in this area. MCAW denies that the discussions with a view to resolving this dispute should be construed as unlawful local bargaining.
This is a very abbreviated summary of what this case is about. So how do these assertions fit within the scheme of the Labour Relations Act?
II
Under the Labour Relations Act, unions and employers are mandated to engage in collective bargaining with a view to concluding a provincial collective agreement; and as will be seen, the definition of "provincial agreement" is exceptionally wide. It is clearly elastic enough to encompass welfare or pension arrangements for employees or former employees. Indeed, it is not really disputed that construction collective agreements normally do provide for pension and welfare benefit funds, to which individual employers are obliged to contribute. Prima facie, this is a permissible subject of collective bargaining.
Nor can it be disputed that in the ICI sector of the construction industry, collective bargaining does not take place at the local level between individual employers and individual "local unions". Since 1978, the Labour Relations Act has required province-wide bargaining by trade, through provincial employer and employee bargaining agencies, designated by the Minister of Labour. The designated employer and employee bargaining agencies are mandated by statute to represent their respective constituencies. Thus, for example, section 157(a) of the Act reads this way:
Where an employer bargaining agency has been designated under section 153 or accredited under section 155 to represent a provincial unit of employers,
(a) all rights, duties and obligations under this Act of employers for which it bargains shall vest in the employer bargaining agency, but only for the purpose of conducting bargaining and concluding a provincial agreement.
In effect, ICI bargaining takes place on a provincial basis between an "employer association" on the one hand, and a provincial grouping of geographically-based local unions on the other. (For a more detailed description of the provincial bargaining scheme see the Board's recent decision in: Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftworkers, 4532-97-M released April 2, 1998, as yet unreported); [now reported at [1998] OLRB Rep. Mar./Apr. 285]. The result of that bargaining is a provincial agreement that is binding on all employers, local unions and employees.
Under the Labour Relations Act, ICI bargaining must take place at the provincial level. This is not a voluntary process. The statute specifically prohibits both local bargaining and local arrangements which collide with the provincial collective agreement, or are not sanctioned by both provincial bargaining agencies.
It is clear, therefore, that the provincial bargaining agencies can establish province-wide pension or welfare benefit funds; and, subject to section 167 of the Act, they can probably do so whether or not individual employers or union locals agree with such arrangements. In this respect, benefit plans are no different from wages or any other term or condition of employment that may be the subject of provincial collective bargaining. The ultimate result may not be what particular employers, employees, or union locals might hope to achieve, but the provincial collective agreement is binding nevertheless.
On the other hand, as counsel for MCAW points out, it is much less clear whether or how collective bargaining can tinker with an existing benefit plan with its own trust arrangements and its own fiduciary obligations - especially where, as here, that plan pre-dated provincial collective bargaining and has been left untouched, for years, despite successive rounds of provincial bargaining. The fact that the provincial bargaining parties may be able to create a new benefit arrangement and compel contributions to it, does not necessarily mean that they can absorb or materially change a pre-existing fund. That depends - at least in part - upon the permissible reach of provincial bargaining under the Labour Relations Act, whether the bargaining objective collides with legal obstacles outside the ambit of labour law, and perhaps whether the bargaining objective is congruent with vested pension or property rights. And, given the history of this particular arrangement, section 167 of the Labour Relations Act may be engaged as well.
That said, it seems to me that there is no reason for this Board to defer to some other tribunal or delay its own consideration of these matters. On the contrary, the issues lie at the core of the Board's jurisdiction under sections 133 and 96 of the Labour Relations Act. To put the matter another way: the issues under review in this case involve the statutory scheme over which the Board has exclusive jurisdiction, as well as a collective agreement, for which the Board is the statutorily-designated arbitrator.
Under section 48 of the Labour Relations Act, the parties to a collective agreement are obliged to submit to arbitration any dispute concerning "the interpretation, application, administration or alleged violation of the collective agreement, including any question as to whether a matter is arbitrable", and under section 133 of the Act, the Board is the designated arbitrator for construction industry collective agreements. When acting as arbitrator, the Board is mandated to determine whether there is or is not a collective agreement in existence, whether a particular document is or is not affected by or incorporated by reference into that collective agreement, whether the negotiated collective agreement is or is not congruent with the law (Bd. of Education for Etobicoke 1972 CanLII 1195 (ON HCJDC), [1973] 1 O.R. 437; McLeod v. Egan (1974), 1974 CanLII 12 (SCC), 46 D.L.R. (3d) 150; section 48(12) of the Act), how the agreement (or changes to the agreement) may affect "the rights, privileges or duties" of the employers; and so on. Moreover, given the decisions of the Courts in St. Anne-Nackawic Pulp and Paper Co. Limited (1986), 1986 CanLII 71 (SCC), 28 D.L.R. (4th) 1 (S.C.C.); Weber v. Ontario Hydro (1995), 1995 CanLII 108 (SCC), 125 D.L.R. (4th) 583 (S.C.C.); The Queen in Right of New Brunswick v. O'Leary (1995), 1995 CanLII 109 (SCC), 125 D.L.R. (4th) 609 (S.C.C.); Re Dayco (Canada) Ltd. (1993), 1993 CanLII 144 (SCC), 102 D.L.R. (4th) 609 (S.C.C.) and especially Pilon v. International Minerals Chemical Corporation (Canada) Limited et al. (1996), 1996 CanLII 1178 (ON CA), 141 D.L.R. (4th) 72 (Ont. C.A.), it is arguable that the Board - acting as arbitrator - has primary jurisdiction to consider disputes "arising from the collective agreement" (to use the words of the Court in Weber).
It may be, as MCAW says, that the local trust document creating the fund is not itself a "collective agreement" or is not incorporated into the provincial agreement. But that is an issue that the Board will have to decide; and even if MCAW is right, the Board may still have to decide whether the local arrangement now collides with the provincial agreement.
In addition, (and quite apart from its role as arbitrator) the OLRB has the exclusive jurisdiction to interpret and apply the Labour Relations Act within which, of course, the provincial bargaining scheme is embedded (see sections 151-168 of the Act). That jurisdiction not only allows the Board to consider the ambit of provincial collective bargaining, but also permits the Board to determine whether particular arrangements or behaviour contravene provisions of the statute - as the union here alleges. And the Board's remedial jurisdiction under section 96 of the Act operates both in addition to and "despite the provisions of any collective agreement" (see section 96(4) of the Act, and the observations of the Divisional Court in Tandy Electronics Ltd. (1980) 1980 CanLII 1738 (ON HCJ), 115 D.L.R. (3d) 197).
In summary, while there may be some force to the MCAW's position "on the merits" of this case, I see no reason why the Board should not deal with these issues on their merits. I see no reason to defer to the Courts or anyone else.
In my view, the union's allegations make out a prima facie breach of both the collective agreement and the Labour Relations Act, so that the Board should hear the case on its merits, decide whether a breach of the Act or the agreement has been made out, and determine what remedy, if any, should flow.
For the foregoing reasons, these matters will be relisted for hearing.
However, I do not wish to leave this matter without one concluding observation.
It appears to me that, at the heart of the dispute, is the interplay between provincial collective bargaining and any limitation on bargaining outcomes that might flow from: trust or other law extrinsic to the labour relations scene; pension or benefits regulations; or the exercise of the Board's remedial discretion even if some violation of the collective agreement or statute are made out. Accordingly, it seems to me that, with a little bit of effort, counsel may be able to address these legal concerns on the basis of facts that are more or less agreed - or agreed for the purpose of argument. For while many factual assertions are made, it is not at all clear to me that the Board need hear the evidence with respect to all of these matters in order to resolve the legal issues that are at the core of the parties' dispute.
Be that as it may, the Registrar is directed to relist these matters for hearing before a "construction panel". I am not seized.