[1998] OLRB REP. SEPTEMBER/OCTOBER 868
0142-98-U; 0581-97-G; 0987-97-U; 2866-97-G; 3938-97-G; Hull Ollivierrie, Chester Joseph and Gerard Dupuis and the Operative Plasterers', Cement Masons', and Steeplejacks' International Association of the U.S.A. and Canada, Local 598, Applicants v. The International Union of Bricklayers and Allied Craftworkers, Local 2 and the Ontario Provincial Conference of the International Union of Bricklayers and Allied CraftWorkers, Responding Parties v. Phoenix Restoration, A Division of Phoenix Gunite Services Limited, Intervenor; International Union of Bricklayers & Allied Craftsmen, Local 10 and the Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftsmen, Applicant v. Phoenix Restoration, A Division of Phoenix Gunite Services Limited, Responding Party v. Operative Plasterers', Cement Masons' and Restoration Steeplejacks' of the United States and Canada, Local Union 598, Intervenor; Ontario Provincial Conference of the International Union of Bricklayers and Allied CraftWorkers and International Union of Bricklayers & Allied Craftworkers, Local 10, Applicant v. Phoenix Restoration, A Division of Phoenix Gunite Services Limited, Vincent Brannigan, Operative Plasterers', Cement Masons' and Restoration Steeplejacks' International Association of the United States and Canada, Local 598 and Livio Balanzin, Responding Parties; Ontario Provincial Conference of the International Union of Bricklayers and Allied Craft Workers and International Union of Bricklayers & Allied Craftworkers, Local 10, Applicant v. Phoenix Restoration, A Division of Phoenix Gunite Services Limited, Responding Party v. Operative Plasterers', Cement Masons' and Restoration Steeplejacks' International Association of the United States and Canada, Local 598, Intervenor; International Union of Bricklayers & Allied Craft Workers, Local 2 and the Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftworkers, Applicants v. Phoenix Restoration, A Division of Phoenix Gunite Services Ltd., Responding Party; Hull Ollivierrie, Chester Joseph and Gerard Dupuis, Applicants v. The International Union of Bricklayers and Allied Craftsmen and the Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftsmen, Responding Parties v. Operative Plasterers', Cement Masons', and Restoration Steeplejacks' International Association of the United States and Canada, Local 598 and Phoenix Restoration, A Division of Phoenix Gunite Services Limited, Intervenors
BEFORE: D. L. Gee, Vice-Chair.
APPEARANCES: David W T Matheson and Livio Balanzin for Hull Ollivierrie, Chester Joseph, Gerard Dupuis and the Operative Plasterers', Cement Masons' and Restoration Steeplejacks' International Association of the United States and Canada, Local 598; Walter Thornton and Vince Brannigan for Phoenix Restoration, A Division of Phoenix Gunite Services Limited; L. A. Richmond and D. Buttazzoni for International Union of Bricklayers and Allied Craftworkers, Local 2; L. A. Richmond and A. Leduc for International Union of Bricklayers & Allied Craftworkers, Local 10; L. A. Richmond and T. Oldham for the Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftsmen.
DECISION OF THE BOARD; October 29, 1998
1On September 14, 1998, these matters were listed for consultation. The purpose of the consultation was to deal with any issues which could be resolved, including but not limited to, preliminary and procedural matters, prior to setting hearing dates.
2At the commencement of the consultation I heard submissions from the parties on the issue of which matter, if any, should proceed first. It was my determination that Board File No. 4878-97-R, an application to terminate the bargaining rights of the International Union of Bricklayers and Allied Craftworkers, Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftworkers (the "Bricklayers") would proceed first.
3It is the position of the Bricklayers that the application for termination of its bargaining rights must fail on the basis that the application was not brought by "employees in the bargaining unit" as required by section 63 of the Labour Relations Act, 1995. Counsel for the Bricklayers indicated that a number of hearing days would be required in order for the Board to hear the parties' evidence and submissions concerning the issue of whether the applicants were "employees in the bargaining unit".
4Counsel for Phoenix Restoration, A Division of Phoenix Gunite Services Limited ("Phoenix") and counsel for the applicants and the Operative Plasterers', Cement Masons' and Restoration Steeplejacks' International Association of the United States and Canada, Local 598 ("Local 598") both indicated that they were of the view that no evidence needed to be called with respect to the issue of whether the applicants were employees in the bargaining unit as the facts necessary to argue the point were not in dispute. Counsel for Phoenix and counsel for the applicants and Local 598 asserted that, given that there was no need for evidence to be called, the matter could be argued on the day of the consultation.
5Counsel for the Bricklayers took issue with the assertion that the salient facts were not in dispute. He asserted that he intended to call evidence with respect to a number of issues and thus indicated that it was his position that hearing dates should be set. When pressed as to the evidence he intended to call, counsel indicated that it was his intention to call evidence to establish that the applicants were employed on the date of application under the terms and conditions of the collective agreement between Phoenix and Local 598 (the "Local 598 - Phoenix Collective Agreement") and that the applicants were members of Local 598 and were not members of the Bricklayers.
6After discussions to establish if any of the evidence counsel for the Bricklayers intended to call was in dispute, counsel for Phoenix and counsel for the applicants and Local 598 indicated that they would agree to the facts with regard to which counsel for the Bricklayers sought to call evidence. As a result, counsel for the Bricklayers indicated that he was content to argue the issue of whether the applicants were employees in the bargaining unit based on the following agreed facts:
(i) all three applicants at all material times, including on the date of the application, were employed under the terms and conditions of the Local 598 - Phoenix Collective Agreement;
(ii) all three Applicants were not employed under the terms and conditions of the collective agreement between the Bricklayers and Phoenix; and
(iii) all three applicants were members of Local 598 and not members of the Bricklayers.
7As a result, given that no party was seeking to call any evidence, it was further agreed that the issue of whether the applicants were employees in the bargaining unit would be argued by way of written submissions. Dates were set by which, subject to mutual agreement to the contrary, submissions were to be filed. All such submissions have now been filed with the Board.
8The submissions filed by counsel for the Bricklayers assert that, due to the fact that the applicants were members of Local 598 who were employed under the Local 598 - Phoenix Collective Agreement, they were not in a position to file an application to terminate the bargaining rights of the Bricklayers. The fact that the Bricklayers claim jurisdiction over the work that was being performed by the applicants does not make the applicants employees in the Bricklayers' bargaining unit given the facts agreed to above.
9In response to the Bricklayers' written submissions, counsel for Phoenix and counsel for the applicants and Local 598 rely on a number of facts which are contested, or not agreed to, by the Bricklayers. For example, counsel rely on statements attributed to counsel for the Bricklayers which they assert were made during the course of a consultation held in respect of Board File No. 0988-97-JD. At the consultation before me, counsel for the Bricklayers refused to acknowledge that such statements were made in the manner asserted by opposing counsel. Further, counsel for Phoenix and counsel for the applicants and Local 598 assert that the applicants were employees of Phoenix prior to either the Bricklayers or Local 598 acquiring bargaining rights and that the Bricklayers have not afforded the applicants with the opportunity to become members of the Bricklayers. Neither of these facts have been agreed to by the Bricklayers. In reaching my determination, I have considered only those facts which have been agreed to by the parties or matters, such as the existence of an application which has been filed with the Board, that are a matter of record.
10The following facts are a matter of record and are relied on by counsel for Phoenix and counsel for the applicants and Local 598. The Bricklayers claim to have bargaining rights in respect of the work that was being performed by the applicants by virtue of a collective agreement the Bricklayers have with Phoenix. In Board File No. 0988-97-JD work similar to the work being performed by the applicants on the date of application was awarded to the Bricklayers. The Bricklayers filed a grievance on January 28, 1998 in respect of the work performed by the three applicants. In this grievance, the Bricklayers seek the following:
An order that the Employer, forthwith, apply the full terms and conditions of the Collective Agreement with respect to all employees who perform work covered by the collective agreement at any of the projects at which may now [sic] or hereafter be engaging....
11The instant termination application followed the filing of the above-referenced grievance.
12The applicants and Local 598 argue that the Bricklayers are demonstrating an ability to take whatever position suits them at the time. It is argued that in the jurisdictional dispute proceeding and in the grievance, the Bricklayers were/are asserting that the the Local 598 - Phoenix Collective Agreement is invalid and that the Bricklayers' Collective Agreement with Phoenix is to be applied to the applicants. Now, the Bricklayers are saying that the applicants are not in the bargaining unit and that the Phoenix -Local 598 Collective Agreement is valid.
13Counsel for Phoenix describes the issue to be determined as follows:
It is submitted with respect that the most significant issue in relation to the Application is whether, without offering them the opportunity to join or become members of the Responding Party, the Responding Party may require Phoenix to terminate the employment of the Applicants (and other long-standing employees, who are currently members of Local 598) and replace them with members of the Responding Party.
As indicated above, there is no evidence before the Board with respect to whether the applicants have requested or been offered membership in the Bricklayers or whether such a request has been denied. Further, there is no evidence before the Board as to when the applicants commenced employment with Phoenix. Given that none of those facts are before me it cannot be said that this decision in any way addresses the question posited by counsel for Phoenix.
14Counsel for Phoenix relies on the Board's decision in Culliton Brothers, [1983] OLRB Rep. March 339 in which the Board declined to apply the principles articulated in April Waterproofing, [1980] OLRB Rep. Nov. 1577 on the basis that the applicants in issue in Culliton Brothers were "pre-existing employees who were swept into the ambit of collective bargaining by operation of law." Again, the facts counsel for Phoenix relies upon in support of his assertion that this matter falls squarely with Culliton Brothers are not before me.
15Counsel for Phoenix relies on comments it is asserted were made by counsel for the Bricklayers during the course of the consultation conducted in relation to Board File No. 0988-97-JD to the effect that the Bricklayers would not seek to replace the applicants if the Bricklayers were successful. Counsel for Phoenix suggests that the Bricklayers should be held to this representation or "if the Board decides that the regular/long standing employees of Phoenix can be unilaterally replaced by the Responding Party, Phoenix intends to seek Reconsideration of the Board's decision in 0988-97-JD". As indicated above, on the day of consultation before me, counsel for the Bricklayers would not agree that the comments alleged were made. Accordingly, I have no evidence before me that counsel for the Bricklayers represented to the Board in the course of the jurisdictional proceedings that the Bricklayers would not seek to replace the applicants. In any event, I am unclear as to how the making of such a representation would affect the issue before me. Assuming the representation to be made, I have no evidence as to whether the applicants subsequently sought out membership in the Bricklayers and whether such membership was unreasonably denied. Absent such evidence I am unable to see how the making of the representation itself is of assistance to the Board. Again, the issue of whether or not the Bricklayers can seek to remove the applicants and have them replaced is in no way addressed or determined by this decision.
16Counsel for Phoenix then addresses the implication of the grievances which have been filed by the Bricklayers. In this regard, counsel refers the Board to Phoenix's intervention filed in connection with the termination application. Phoenix's intervention reads, in part, as follows:
The International Union of Bricklayers and Allied Craftsmen and the Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftsmen ("the O.P.C.") have asserted, in its Response (Form TA-21) in this proceeding (4878-97-R), inter alia, that the Applicants are a) not members of the O.P.C., and 2) are not working under any Collective Agreement binding on the O.P.C..
In this regard, the Intervenor wishes to bring to the Board's attention that Bricklayers Local 10 ("Local 10") (2866-97-G) and Local 2 ("Local 2") (3938-97-G) have filed Grievances in relation to the Intervenor, and referred these Grievances to the Board, wherein it is asserted that,
(a) work performed by employees of the Intervenor, which is not different in any material respect by comparison to the work assigned to and performed by the Applicants on the date of this Application, falls within the scope of the Provincial/ICI Collective Agreement that is binding on the O.P.C. ("the P.C.A."), and that is the subject of this application; and
(b) the said employees of the Intervenor should be required by Order of the Board to "work under" the P.C.A. and become members of the O.P.C. and/or one or more of its affiliated Locals.
Relying on Construction 2000, [1988] OLRB Rep. Oct. 1017 at paragraphs 5 and 6, counsel for Phoenix argues that, having taken the position set out above, the Board ought not permit the Bricklayers to maintain an inconsistent position in the instant proceedings.
17Paragraphs (a) and (b) set out above from the intervention filed by Phoenix are not a quote from one of the grievances filed by the Bricklayers. I presume they are a characterization of the Bricklayers' submissions as seen by Phoenix. I am unable to agree with such characterization of the Bricklayers' submissions. The grievance letter (which accompanies the grievance referral to the Board) filed in connection with the work the applicants were performing on the date that the application for termination of bargaining rights was filed, reads in part as follows:
The Union hereby grieves that the employer from and after January 1st, 1996 and continuing to date, has violated the collective agreement in that it has failed or refused to:
(1) Employ only members in goodstanding [sic] of the Union for work covered by the collective agreement and without limiting the generality of the foregoing Article 1(a) thereof;
(2) Hire its employees in accordance with the provisions of the collective agreement and without limiting the generality of the foregoing, Article 5 thereof;
(6) in regards to: TORONTO HYDRO BUILDING BAY STREET (SOUTH OF DUNDAS)
More specifically;
Article 1 Recognition and Sub-Contracting (a) "The Employer recognizes the Union as the exclusive bargaining agent for Bricklayers, Stonemasons and Plasterers, their respective Apprentices, Improvers and Working foremen in his employ in the Province of Ontario, in areas described in Appendix "B" hereto."
And;
Article 5 Union Security (a) "the Employer agrees to first hire members of the Local Union on projects within the territorial area of the Local Union. The Employer shall hire through the Local Union Office 50% all Bricklayers, Masons and Plasterers who are members of the Union as long as the Local Union is able to supply members in sufficient numbers to take care of the needs of the Employer."
RELIEF SOUGHT:
(1) A declaration that the Collective Agreement is binding upon the Employer.
(2) An Order that the Employer cease and desist from continuing to violate the collective Agreement as hereinbefore set forth.
(3) An Order that the employer employ only members in good standing of the union for work covered by the Collective Agreement in accordance with the collective agreement and in particular Article 1(a) thereof.
(4) An order that the Employer hire employees in accordance with the Collective Agreement and in particular Article 5 (a) thereof.
18The actual wording of the grievance, does not suggest that the Bricklayers seek to have Phoenix apply the terms of the Bricklayers' Collective Agreement to the applicants as suggested by counsel for Phoenix, but rather, that the Bricklayers want members of the Bricklayers, as required by the terms of the Bricklayers' Collective Agreement, performing work for Phoenix. Whether the Bricklayers would seek to have the applicants become members of the Bricklayers, or displaced by existing members of the Bricklayers, is not known. The propriety of the Bricklayers' seeking to replace the applicants, should they attempt to do so, is not an issue before me.
19Having considered the submissions of all of the parties, it is my determination that this application must fail on the basis that the applicants were not, on the date of application, employees in the bargaining unit.
20It is clear that, on the date of application, the applicants were performing work that is claimed by both the Bricklayers and Local 598. It is the Bricklayers' assertion that the work in question should have been performed under its Collective Agreement with Phoenix. As with most construction industry collective agreements, the Collective Agreement between Phoenix and the Bricklayers requires the employer to use members of the Bricklayers. The facts agreed to indicate that the applicants were members of Local 598, not the Bricklayers. The work in question was performed by the applicants in their capacity of members of Local 598 under the terms and conditions of the Local 598 - Phoenix Collective Agreement. The fact that the Bricklayers asserts a right to the work being performed or seek to have their collective agreement applied to "employees who perform work covered by [the Bricklayers' Collective Agreement with Phoenix]" does not establish that the applicants are employees within the Bricklayers' bargaining unit. On the facts before me, the application of the principles expressed by the Board in April Waterproofing supports the conclusion that they are not. There are no facts before me similar to those considered by the Board in Culliton Brothers which would suggest that April Waterproofing should not be applied.
21For the foregoing reasons, this matter is dismissed. Counsel for the Bricklayers is hereby directed to advise the Registrar of the Board as to whether the Bricklayers wish to proceed with the remaining files in which it is the applicant and, if so, the number of hearing dates required. Counsel for the applicants and Local 598 is likewise directed to advise the Registrar of the Board as to whether they wish to proceed with Board File No. 0142-98-U and, if so, the number of hearing dates required. Upon being so advised by the parties, the Registrar of the Board is hereby directed to list the remaining matters for hearing.
22In the event the applicants and Local 598 advise the Registrar of the Board that they wish to proceed with Board File No. 0142-98-U, should the Bricklayers wish to pursue their motion that such matter should be dismissed on the basis that it does not make out a prima facie case, the Bricklayers are directed to file their submission to such effect in writing with the Board. I will remain seized for the purpose of dealing with any such motion.
23All communications to the Board must be delivered to all other parties prior to such being filed with the Board.
24Except to the extent that I will deal with any no prima facie case motion brought in connection with Board File No. 0142-98-U, I am not seized.