Ontario Allied Construction Trades Council v. Electrical Power Systems Construction Association, 1998 CanLII 18392

[1998] OLRB REP. SEPTEMBER/OCTOBER 849

4963-97-G; 0258-98-U Ontario Allied Construction Trades Council and International Association of Heat and Frost Insulators and Asbestos Workers, Local 95, Applicants v. Electrical Power Systems Construction Association, Ontario Hydro and Crossby Environmental Ltd., Responding Parties; Ontario Allied Construction Trades Council and International Association of Heat and Frost Insulators and Asbestos Workers, Local 95, Applicants v. Electrical Power Systems Construction Association, Ontario Hydro and Crossby Environmental Ltd., Responding Parties v. Ontario Sheet Metal Workers' & Roofers' Conference, Intervenor

BEFORE: D. L. Gee, Vice-Chair.

APPEARANCES: Bernard Fishbein, J. deWit, and Earl Walsh for the applicants; M. Patrick Moran, B. K Roberts and Doug Wilson for The Electrical Power Systems Construction Association and Ontario Hydro; no one appearing on behalf of Crossby Environmental Ltd.; Jerry Raso and N. Melta for the intervenor.

DECISION OF THE BOARD; October 7, 1998

1. These matters are a referral of grievance to arbitration pursuant to section 133 of the Labour Relations Act, 1995 (the "Act") and an application under section 96 of the Act in which the applicants assert a violation of sections 56, 57(1) and 70 of the Act.

2. The Ontario Sheet Metal Workers' & Roofers' Conference (the "Conference") sought to intervene in the application under section 96 of the Act. At the commencement of the hearing, the Board ruled orally that the Conference would not be granted standing to intervene. The only apparent basis for providing the Conference with standing to intervene is that the decision reached in this case may affect it on a precedential basis. As was noted by the Board in Stratford General Hospital, [1976] OLRB Rep. Feb. 41 at paragraph 9:

9.... Moreover, while the Board considers the instant case to be important, it must be recognized that the Board proceeds on a case by case basis and is prepared to deviate from earlier decisions as the facts, argument and experience of subsequent cases demands. Thus the Society, when it is able to represent an affected employee, will have its "day in court".

In Bridgewood Plumbing Limited Board File 0004-95-R, unreported decision dated June 12, 1995, the Board observed that the fact that a decision in a proceeding may be used or referred to as a precedent in another proceeding is not a sufficient basis to entitle a party to intervene in a proceeding. Furthermore, it is not apparent that the circumstances of this proceeding warrant intervenor status on the basis described in Kidd Creek Mines Ltd., [1984] OLRB Rep. March 481. I am not persuaded that the Conference has a sufficient contingent interest in the outcome of this proceeding so as to deserve "amicus curiae" standing. Accordingly the Conference was denied status to intervene.

3. Prior to the commencement of the hearing, the parties had agreed that the Board would hear and issue a determination in respect of the unfair labour practice complaint prior to hearing the merits of the grievance. It was further agreed that there was no need for the parties to call evidence in relation to the unfair labour practice complaint as the relevant facts were not in dispute. Accordingly, a hearing was held on September 23, 1998, for the sole purpose of the parties making their submissions to the Board on the unfair labour practice complaint. Crossby Environmental Ltd. ("Crossby") did not participate in this portion of the hearing.

4. In order to appreciate the submissions made by the parties in connection with the unfair labour practice complaint, it is useful to set out some of the factual background (which is not largely in dispute) which led to the filing of the grievance.

5. The International Association of Heat and Frost Insulators and Asbestos Workers, Local 95 (the "Insulators") is one of the unions that comprise the Ontario Allied Construction Trades Council ("OACTC") and is bound to the Collective Agreement between the OACTC and The Electrical Power Systems Construction Association ("EPSCA"). Amongst others, the Collective Agreement is binding on Ontario Hydro and Crossby.

6. Article 13 of the Collective Agreement provides for a hiring hall type arrangement for the hiring of all employees whereby the appropriate union affiliate of the OACTC is contacted by EPSCA to fill any labour needs of any employers bound by the Collective Agreement.

7. On or about October 20, 1997, an "EPSCA Help Requisition" was faxed to the office of the Insulators requesting a number of insulators for Crossby which was performing work at the Pickering Nuclear Generating Station ("Pickering"). The help requisition stipulated a number of requirements including a requirement that the persons referred to Crossby obtain security clearance. It is a requirement of Ontario Hydro that all Ontario Hydro building trades employees and all contractors' building trades employees who would have access to an Ontario Hydro Nuclear Facility have a security clearance.

8. In response to the EPSCA Help Requisition, Brian Bauldry was dispatched to work for Crossby. Bauldry reported to Pickering on or about October 28, 1997. On October 29, 1997, Bauldry was instructed by Crossby to go home because there was a problem with his security clearance. On or about November 19, 1997, Bauldry was advised that he had been denied security clearance to work at Pickering.

9. Sometime after November 28, 1997, Bauldry was informed by an individual in charge of security for Ontario Hydro that he had been denied security clearance because of certain criminal charges outstanding against him. Bauldry explained the incident in question and indicated that the charges were groundless. On or about December 16, 1997 the charges were either withdrawn or dismissed. On or about December 23, 1997, Bauldry returned to work at Pickering for Crossby for the balance of the work that was the subject of the original help requisition.

10. A grievance was filed by the Insulators on December 1, 1997 and referred to the Board on March 26, 1998. The Referral of Grievance to Arbitration names EPSCA, Ontario Hydro and Crossby as responding parties. Crossby filed a response to the grievance in which it is asserted that Crossby owed no duty to employ Bauldry when he failed to receive security clearance as such was a condition of employment, and, in the alternative, that it was entitled to lay Bauldry off as a result of the decision of Ontario Hydro to disallow Bauldry access to the workplace. Ontario Hydro and EPSCA filed a response in which they requested that the grievance be dismissed as against them on the basis that at no time was Bauldry referred to or employed by Ontario Hydro or EPSCA.

11. Ontario Hydro's response to the referral of grievance caused the Insulators considerable concern. If Ontario Hydro was not a party to the grievance and, if Crossby could defend the grievance as against it by asserting that it was justified in not employing Bauldry as a result of Ontario Hydro's denial of a security clearance, the Insulators would be powerless to force Ontario Hydro to defend the application and impact of its security clearance policy in circumstances where it is applied to individuals referred to work for a subcontractor of Ontario Hydro. It is in an effort to obtain a Board order directing Ontario Hydro to defend the Bauldry grievance that the Insulators filed the unfair labour practice complaint that is the subject of this decision.

12. The unfair labour practice complaint alleges a violation of sections 56, 57(1) and 70 of the Act. These sections provide as follows:

13. A collective agreement is, subject to and for the purposes of this Act, binding upon the employer and upon the trade union that is a party to the agreement whether or not the trade union is certified and upon the employees in the bargaining unit defined in the agreement.

14. (1) A collective agreement between an employers' organization and a trade union or council of trade unions is, subject to and for the purposes of this Act, binding upon the employers' organization and each person who was a member of the employers' organization at the time the agreement was entered into and on whose behalf the employers' organization bargained with the trade union or council of trade unions as if it was made between each of such persons and the trade union or council of trade unions and upon the employees in the bargaining unit defined in the agreement, and, if any such person ceases to be a member of the employers' organization during the term of operation of the agreement, the person shall, for the remainder of the term of operation of the agreement, be deemed to be a party to a like agreement with the trade union or council of trade unions.

15. No employer or employers' organization and no person acting on behalf of an employer or an employers' organization shall participate in or interfere with the formation, selection or administration of a trade union or the representation of employees by a trade union or contribute financial or other support to a trade union, but nothing in this section shall be deemed to deprive an employer of the employer's freedom to express views so long as the employer does not use coercion, intimidation, threats, promises or undue influence.

16. There are a number of additional facts the Insulators rely upon in support of its unfair labour practice complaint.

17. The Insulators point to the recognition provision contained in the Collective Agreement between OACTC and EPSCA which provides in part as follows:

1.1 EPSCA recognizes the Council as the exclusive bargaining agency for a bargaining unit comprising employees as defined in Section 1.4 and foremen as defined in Section 1.5 engaged in all construction industry work* performed in the Province of Ontario on Ontario Hydro property for the bulk power system, save and except the building of commercial-type office facilities at urban locations remote from operating facilities.

For the purpose of clarity, the bulk power system comprises generating stations, hydraulic works, heavy water facilities, transmission lines (voltages over 50kv), transmission stations, microwave and repeater stations.

The Insulators submit that the recognition provision is extremely unique as it is defined in terms of work performed on the property of Ontario Hydro.

5. A copy of EPSCA's Constitution and By-laws as well as a list of EPSCA's Board of Directors was filed with the Board. The Constitution defines EPSCA's purpose as the regulation of labour relations on the property of Ontario Hydro. The Constitution and By-laws provide that Ontario Hydro has 50 per cent of the votes (subject to a deadlock provision which is absent in the case of disciplinary matters). The By-laws provide that the General Manager and Secretary Treasurer of EPSCA shall be selected by Ontario Hydro. EPSCA has no staff or office space of its own. The staff of EPSCA are Ontario Hydro employees who perform their EPSCA duties out of the offices of Ontario Hydro.

6. The Insulators point to the fact that Ontario Hydro circulated and attempted to get approval for its security policy from the building trades as a factor that makes the circumstances underlying the filing of the instant application unusual. Further, the Insulators rely on the fact that, in a previous referral of a grievance to the Board, Ontario Hydro defended its actions in denying a security clearance to an individual referred to work for a subcontractor of Ontario Hydro.

7. Based on the foregoing, the Insulators argue that the present case involves a very unique set of circumstances which, when considered cumulatively, should cause the Board to find Ontario Hydro's refusal to defend the application of its security clearance policy to be a violation of sections 56, 57(1) and/or 70 of the Act. It is argued by the Insulators that Ontario Hydro, by responding to the grievance that Bauldry was not referred to or employed by Ontario Hydro, is seeking to distinguish itself from the logical and intended consequences of its actions because it asserts it is acting as an "owner" and not as an "employer".

8. The Insulators submit that the following unique features of this case distinguish it from other instances where owners have required the removal of an individual from their property and not defended the basis for the individual's removal:

(i) Ontario Hydro is equally bound to the Collective Agreement under which the grievance arose;

(ii) the recognition clause of the Collective Agreement defines the work as work performed on Ontario Hydro property;

(iii) the Collective Agreement is negotiated by an employer association that is effectively run by Ontario Hydro;

(iv) Ontario Hydro consulted the building trades with respect to the security clearance policy;

(v) Crossby would have employed Bauldry but for the actions of Ontario Hydro; and

(vi) Ontario Hydro has previously defended its actions in denying a security clearance to an individual referred to a subcontractor.

Unless the Board rules in the Insulators' favour, Ontario Hydro will not be required to defend what it has done and, in the Insulators' submission, that cannot be the correct labour relations result. The Insulators submit that Ontario Hydro is the prime instigator of what is happening and unless it is required to participate in the grievance proceedings as a respondent, Ontario Hydro will be permitted to avoid its collective agreement obligations.

19. It is my determination that the unfair labour practice complaint cannot succeed.

20. There is no dispute that Bauldry was at no time referred to work at Ontario Hydro or

employed by Ontario Hydro.

21. The Collective Agreement between EPSCA and the OACTC contains the following provision:

13.6 The employment of additional tradesmen

REV and apprentices, excluding key tradesmen and tradesmen employed through the Employment Request article, shall be carried out on the following basis and sequences:

(a) The EPSCA office will request the appropriate local union office for tradesmen and apprentices required. The request will include a description of the work, the number of tradesmen and apprentices required, and the name of the Employer for whom the tradesmen and apprentices will be working.

(b) The Union members who are resident in the designated geographic area will be referred by the Union for employment through the EPSCA office. As much as their out-of-work lists will permit, the Unions will supply members on a fan-out basis from the project or work location.

The Employers will either hire such persons or substantiate their reasons in writing for not doing so. The Union will co-operate with the Employer and advise the EPSCA office of the name, address and telephone number of members being referred for work with Lines and Stations Construction as soon as they are known.

(c) If, after a request has been made, the Union is unable to supply sufficient tradesmen and apprentices to meet the manpower requirements of the Employers, the Employers may employ tradesmen and apprentices who are resident within the geographic area. Such tradesmen and apprentices shall comply with the requirements of Article 12 of this Agreement. EPSCA shall promptly notify the Accredited Union Representative in writing of the names, addresses, date of hire, social insurance numbers, telephone numbers, job location and classification of the persons hired.

(d) Once the supply of suitable tradesmen and apprentices within the geographic area has been exhausted and additional tradesmen and apprentices are required, EPSCA will contact the International Representative for the trade concerned, or his designee, in order to determine whether suitable union tradesmen and apprentices are available outside of the geographic area. EPSCA will co-operate in providing employment to such union tradesmen and apprentices on the basis that they be supplied from the nearest location where they are available.

In the present case, the requisition which led to the referral of Bauldry indicated Crossby Environmental as the name of the employer. Thus, according to Article 13.6 (b) of the Collective Agreement, Crossby Environmental was required to hire Bauldry or substantiate its reasons in writing for not doing so. The Collective Agreement contains no provision imposing an obligation on Ontario Hydro in respect of substantiating or defending another employer's decision not to hire an individual referred.

22. Sections 56 and 57(1) of the Act provide for the binding effect of collective agreements on employers and members of employer organizations. In order to find a violation of either section 56 or 57(1) of the Act, it would be necessary for the Board to determine that the named responding party had failed to apply the collective agreement, or had conducted itself without regard to the collective agreement, as if it was not bound thereto. Absent evidence of a repudiation or denial of the collective agreement, there can be no violation of section 56 or 57(1) of the Act. There is no suggestion of such in the present case and accordingly the application in so far as it relates to sections 56 or 57(1) must fail.

23. Turning to the allegation that Ontario Hydro is in violation of section 70 of the Act, the Insulators rely on the factors set out above in paragraph 18 to distinguish this case from scenarios such as those considered in Re United Plumbers & Pipe Fitters, Local 46, and Samuel Crump (Canada) Ltd. (1963), 1963 CanLII 1016 (CA LA), 14 L.A.C. 39; E.S. Fox Limited, [1989] OLRB Rep. July 746; and Re Babcock & Wilcox and United Association of Journeymen & Apprentices of Plumbing & Pipefitting Industry, Local 488 (1995), 1995 CanLII 18308 (AB GAA), 50 L.A.C. (4th) 266. The ratio of the foregoing decisions can be summarized by quoting the headnote from Samuel Crump (Canada) Ltd.:

Where the collective agreement is between a sub-contractor and its employees, but ultimate control over personnel on a particular job site is vested in the general contractor, it cannot be said that the subcontractor discharges an employee without just cause when the general contractor refuses to permit the employee to continue on the job, and the subcontractor has no other work available for that employee and there are no seniority provisions in the collective agreement.

24. Section 70 of the Act prohibits an employer from interfering with the representation of employees by a trade union. The scenario whereby an employee is removed from a job site or discharged by an employer because of a requirement imposed by a third party is not uncommon in the construction industry. In this regard, the Board's comments in E.S. Fox Limited, at paragraph 20 are illustrative:

25. Whether or not Crump reflects the present law with respect to where the ultimate control over workers on construction sites is vested, it is generally accepted in the construction industry that the general contractor of a project is responsible to the project's owner for the general security of the project. That would include responsibility for allowing access to the project to persons who have business to conduct or who have work to perform on the project, and for denying access to persons whom the general contractor wants to exclude from doing business or working on the project. In this respect, it is interesting to note that a general contractor who undertakes a project for an owner in Ontario has defined, statutory duties in respect of that project for assuring that "the health and safety of workers on the project is protected" and that "every employer and every worker performing work on the project complies with [The Ontario Health and Safety Act [sic] and the regulations". The Ontario Health and Safety Act, [sic] R.S.O. 1980, c. 321, at s. 13. Those duties seem to reflect the reality of a general contractor's control over its job site.

26. Clearly, where for reasons relating to its operations a general contractor requires the removal of a subcontractor's employee from a job site, the general contractor is not in violation of section 70 of the Act. In such circumstances, the general contractor's exercise of its power to require a contractor to remove an employee from the job site does not interfere with the formation, selection or administration of a trade union or the representation of employees by a trade union. The factors relied upon by the Insulators do not warrant a different conclusion. The fact that Ontario Hydro is also bound by the Collective Agreement, is a dominant member of EPSCA and that the scope of the Collective Agreement is defined in terms of work performed on Ontario Hydro property are unique features but do not operate to result in a determination that Ontario Hydro, by refusing to defend the application of its security clearance policy in circumstances where it is not contractually required to do so, has interfered in the representation rights of the Insulators.

27. For the foregoing reasons, this application is dismissed.

28. The hearing of Board File No. 4963-97-G will proceed on October 27 and 28, 1998 as previously scheduled.