Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftworkers et al. v. International Union of Bricklayers and Allied Craftworkers et al., 1998 CanLII 18415

[1998] OLRB REP. MARCH/APRIL 285

4532-97-M; 4533-97-U Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftworkers, Jerry Coelho, Tom Gldham, Kerry Wilson, Danilo Buttazzoni, Luigi Scodellaro and John Haggis, Applicants v. International Union of Bricklayers and Allied Craftworkers and John T. Joyce, Responding Parties

BEFORE: R. 0. MacDowell, Chair.

APPEARANCES: Lame Richmond for the applicants; Don Eady for the responding parties.

DECISION OF THE BOARD; April 2, 1998

1. To make this decision easier to read, the institutional applicant, the Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftworkers, will be referred to as "the OPC", and the institutional respondent, the International Union of Bricklayers and Allied Craftw­orkers, will be referred to as the "American parent union".

I - Introduction: What this case is about - in general

2. This is an application for "an interim order" that is sought in connection with ongoing applications under section 154 of the Labour Relations Act (Board Files 3519-97-R and 3520-97-R), and a more recently filed unfair labour practice complaint. Both of these matters ("the main applica­tions") are currently pending before the Board, so it may be useful to briefly describe what these cases are about.

3. The section 154 application was filed by the OPC in December 1997, and came on for hearing before the Board (differently constituted) on February 17, 1998. Sections 153 and 154 of the Act read as follows:

4. (1) The Minister may, upon such terms and conditions as the Minister considers appropriate.

(a) designate employee bargaining agencies to represent in bargaining provincial units of affiliated bargaining agents, and describe those provincial units;

(b) despite an accreditation of an employers' organization as the bargaining agent of employers, designate employer bargaining agencies to represent in bar­gaining provincial units of employers for whose employees affiliated bar­gaining agents hold bargaining rights, and describe those provincial units.

(2) Where affiliated bargaining agents that are subordinate or directly related to the different provincial, national or international trade unions bargain as a council of trade unions with a single employer bargaining agency for a province-wide collective agreement, the Minister may exclude such bargaining relationships from the designations made under subsection (I), and subsection 162(2) shall not apply to such exclusion.

(3) Where a designation is not made by the Minister of an employee bargaining agency or an employer bargaining agency under subsection (I) within 60 days after October 27, 1977, the Minister may convene a conference of trade unions, councils of trade unions, employers and employers' organizations, as the case may be, for the purpose of obtaining recommendations with respect to the making of a designation.

(4) The Minister may refer to the Board any question that arises concerning a designation, or any terms or conditions therein, and the Board shall report to the Minister its decision on the question.

(5) Subject to sections 154 and 155, the Minister may alter, revoke or amend any designation from time to time and may make another designation.

(6) The Regulations Act does not apply to a designation made under subsection (1).

154. (1) During the period between the 120th and the 180th days prior to the termination of a provincial agreement, an employee bargaining agency, whether designated or not, may apply to the Board to be certified to represent in bargaining a provincial unit of affiliated bargaining agents.

(2) Where the Board is satisfied that a majority of the affiliated bargaining agents falling within the provincial unit is represented by the employee bargaining agency and that the majority of affiliated bargaining agents holds bargaining rights for a majority of employees that would be bound by a provincial agreement, the Board shall certify the employee bargaining agency.

4. As will be seen, section 153 allows the Minister of Labour to "designate" an "employee bargaining agency" for the purposes of the provincial ICI bargaining scheme. Under section 153, designation occurs at the instance of the Minister,

5. Section 154 provides a means by which an "employee bargaining agency" can apply for “certification" as the representative of a provincial unit of affiliated bargaining agents. A section 154 application is initiated by an aspiring applicant.

6. The Board has already ruled that the OPC is an “employee bargaining agency" within the meaning of section 151 of the Act, so that the OPC is entitled to bring an application under section 154. As I understand it, what remains to be determined is whether the other requirements for "certification" have been met - which is to say, whether the OPC can demonstrate sufficient local and membership support to warrant certification.

7. I will have more to say later about how the section 154 case unfolded before the Board.

8. The unfair labour practice complaint was filed by the OPC (along with the other applicants herein), on February 26, 1998. That complaint alleges that the American parent and its officers and agents, have breached sections 76, 87(2) and 149 of the Labour Relations Act. Those sections provide:

9. No person, trade union or employers' organization shall seek by intimidation or coercion to compel any person to become or refrain from becoming or to continue to be or to cease to be a member of a trade union or of an employers' organization or to refrain from exercising any other rights under this Act or from performing any obligations under this Act.

10. (2) No trade union, council of trade unions or person acting on behalf of a trade union or council of trade unions shall.

(a) discriminate against a person in regard to employment or a term or condition of employment; or

(b) intimidate or coerce or impose a pecuniary or other penalty on a person.

Because of a belief that the person may testify in a proceeding under this Act or because the person has made or is about to make a disclosure that may be required in a proceeding under this Act or because the person has made an application or filed a complaint under this Act or has participated in or is about to participate in a proceeding under this Act.

149. (1) A parent trade union or a council of trade unions shall not, without just cause, assume supervision or control of or otherwise interfere with a local trade union directly or indirectly in such a way that the autonomy of the local trade union is affected.

(2) A parent trade union or a council of trade unions shall not, without just cause, remove from office, change the duties of an elected or appointed official of a local trade union or impose a penalty on such an official or on a member of a local trade union.

(3) On an application relating to this section, when deciding whether there is just cause, the Board shall consider the trade union constitution but is not bound by it and shall consider such other factors as it considers appropriate.

(4) If the Board determines that an action described in subsection (1) was taken with just cause, the Board may make such orders and give such directions as it considers appropriate, including orders respecting the continuation of supervision or control of the local trade union.

9. Sections 76 and 87(2) are "standard" unfair labour practice provisions, designed to prevent an interference with the exercise of statutory rights. Section 76 is framed in quite general terms. Section 87 is more specific. But both sections protect individuals from improper pressure.

10. Section 149 has a completely different focus. It is part of the so-called "Bill 80" reforms (sections 145-150), which were introduced into the statute in 1993. Those sections apply only in the construction industry and are concerned with internal union affairs, and local union independence.

11. Section 149 of the Act prevents a "parent union" (usually with headquarters in the United States) from suspending the autonomy of a "local union" in Ontario, unless there is 'just cause" to do so. The statute leaves it to the Board to determine what 'lust cause" means in any particular case. However, section 149(4) also gives the Board the power to modify or set aside the terms of supervision, even if the American parent union had just cause to impose it, in the first place.

12. When applying section 149, the Board is not obliged to give overriding weight to a parent union's constitution; for, in addition to section 149(3) [see above], section 145(3) of the Act reads this way:

In the event of a conflict between any provision in sections 146 to 150 and any provision in the constitution of a trade union, the provisions in sections 146 to 150 prevail.

And section 145(2) provides:

In the event of a conflict between any provision in sections 146 to 150 and any other provision of this Act, the provisions in sections 146 to 150 prevail.

So the scheme of the Act is abundantly clear: the "autonomy rights" articulated in section 149 prevail over any provision in the union constitution, and also prevail over any other provision of the Labour Relations Act itself Section 145(2) underlines the importance which the Legislature has given to the Bill 80 provisions respecting local union autonomy.

13. The applicants seek an interim order restricting the authority of the receiver who has been appointed by the American parent to run the affairs of the OPC and its Ontario locals. The applicants maintain that unless the receiver is so restrained, he will try to abort the ongoing section 154 application, and he will assert bargaining positions that have already been repudiated by the Ontario membership. In the applicant's submission, the interference with bargaining will be difficult or impossible to rectify later, and the interference with the section 154 proceeding will impede an application where time is of the essence. The applicants point out that a section 154 application can only be made, once, every three years, and the issues raised in such application probably have to be sorted out, before provincial bargaining takes place.

14. In the applicants' submission, unless such order is given, neither the litigation nor the Ontario bargaining will be conducted in accordance with the scheme of the Act. The interests of the Ontario members will be ignored, and the American parent will profit from what the OPC says are precipitous and unlawful actions. The applicants say that if interim relief is denied, their rights under the statute will be seriously compromised - even if their legal position is ultimately sustained by the Board.

15. The OPC does not deny that the American parent has a right to participate in the section 154 proceedings, as well as a limited right to participate in the Ontario provincial bargaining. However, in counsel's submission, the American parent cannot unilaterally abort the proceeding before the Board, nor "hijack" the provincial bargaining process. He argues that unless interim relief is granted, that is what is likely to happen.

16. The American parent union replies that it is entitled - indeed it is required - to ensure that the terms of the international constitution are followed; and it is likewise required to ensure that local unions or groups of members bound by that constitution, do not take positions that are contrary to the interests of the organization as a whole. The American parent does not quarrel with the right of the OPC to promote its local interests. But in counsel's submission, it must do so in accordance with the union constitution, and in a manner that does not conflict with the broader interests of the international union.

17. At the heart of this controversy, therefore, is a dispute within the union about the appropriate role for the American parent - and, in particular, the extent to which the American parent can control Ontario locals and influence collective bargaining outcomes in Ontario. And that, in turn, raises questions about the relationship between the union's constitutional requirements, and the legal frame­work imposed by the Labour Relations Act - especially following "Bill 80".

18. I shall have more to say about these matters later. First, it may be useful to briefly describe the parties and the institutional context in which these various proceedings arise. I will then look at the statutory framework and the availability (or appropriateness) of "an interim order".

II - Who the parties are

19. The American parent is an international craft union with headquarters in the United States. It has membership in both the United States and Canada. A significant number of those members reside in Ontario, and work for Ontario employers.

20. Like many international unions, the American parent is subdivided into geographically-based "local unions", with their own constitution or bylaws. An individual becomes a "member" of the American parent by joining one of these local unions. Article IV A of the International Union constitu­tion provides:

"Every member of a Local Union affiliated with the International Union shall by virtue of such membership become a member of the International, and no person ineligible to become or remain a member of the International Union may be a member of any affiliated Local."

Under the international constitution, the local unions have primary responsibility for negotiating and administering collective agreements, administering the local "hiring hall" and generally addressing the needs of the local members.

21. The OPC was established in 1908, and has always been an affiliate of the American parent union. Basically, the OPC is an umbrella organization of Ontario locals, with its own constitution, bylaws, and independent authority. However, for statutory purposes, the OPC is also a "certified council of trade unions", and thus a "trade union" in its own right (see sections 1(1) and 12 of the Act, and the 1985 decision of this Board in File No. 1913-84-R). The American parent and its Ontario locals are also "trade unions" within the meaning of the Labour Relations Act.

22. As "trade unions", the institutional parties have a variety of rights and obligations under the Labour Relations Act. However, the internal affairs of these "trade unions" are primarily governed by their respective constitutions and bylaws. These constitutional documents determine the institutional relationships between the American parent, its Ontario locals, its Ontario members, and the OPC. Among other things, the international constitution envisages that the president of the American parent will have broad powers to suspend local autonomy, and promote the general interests of the organiza­tion.

23. In other words, when approaching the issues in this case, there are two layers of law to keep in mind: the "private law" arrangements (essentially contractual) which are set out in the unions constitutions; and the "public law" provisions of the Labour Relations Act. The constitution is (primar­ily) interpreted and applied by internal union bodies, and ultimately, by the Courts in the United States or Canada. The statute is interpreted and applied by the Ontario Labour Relations Board. And, as I have already noted, each party emphasizes a different aspect of this legal framework.

24. The American parent is purporting to act under its constitution, to promote what it asserts are the interests of the organization as a whole. That is why (it says) a receiver was imposed to take over some local union affairs. The American parent is concerned - perhaps justifiably - that the Ontario locals will not act in the best interests of the union.

25. The applicants focus on the interests of members in Ontario, and the provisions of the Ontario Labour Relations Act. They argue that from a statutory perspective, Ontario is unique. It is neither Manitoba nor Michigan; and that has to be taken into account when one is weighing these competing sources of "law". In the applicants' submission, the actions of the American parent breach Ontario law, and an interim order is necessary to address the situation while this contention is being litigated.

III - Some institutional and collective bargaining history

26. Under the Labour Relations Act, a trade union can become the exclusive bargaining agent for the employees of an employer by demonstrating that the majority of those employees want the trade union to represent them. Alternatively, a trade union can acquire bargaining rights by voluntary recognition. But whether bargaining rights are established by certification or voluntary recognition (and subject to a construction industry variation that I will come to in a minute), the trade union with bargaining rights is the entity entitled to represent employees and engage in collective bargaining on their behalf.

27. In our system of collective bargaining, the trade union with bargaining rights is the exclusive bargaining agent for employees, and the principal legal actor in the negotiating process. It is the union with bargaining rights which ordinarily negotiates and signs the collective agreement, and has the responsibility for collective agreement administration. This proposition has been modified a little in the context of the construction industry (see below), but the fact remains that the union entity with bargaining rights is an important juridical element in the statutory scheme. Moreover, the trade union with bargaining rights is not only entitled to represent employees to the exclusion of other unions and individual bargaining, it is obliged to do so fairly - whether or not those employees are actually members of the union (see sections 73 and 74 of the Act).

28. In the case of the Bricklayers' Union, bargaining rights have traditionally been acquired either by individual local unions or by the OPC. Bargaining rights have not been acquired or held by the American parent. Employees may ultimately become members of the American parent by virtue of their membership in a local union and/or the OPC; but, (subject to the same construction industry qualification - see below), their bargaining agent has always been the local union or the OPC.

29. To put the matter another way: to the extent that statutory bargaining rights depend upon employee support, it is the local union or the OPC - not the American parent - which has demonstrated such support. It is the local union or the OPC - not the American parent - which first established itself as the employee-members' statutory bargaining agent, then later engaged in collective bargaining on their behalf.

30. The American parent has not played any prominent role in Ontario collective bargaining. On the contrary. The material before the Board shows that the dominant role in collective bargaining has always been played either by the individual local unions or, in the ICI sector, by the OPC. Indeed, although ICI provincial bargaining is now mandated by statute, it is worth noting that the OPC conducted ICI bargaining on a provincial basis, before the introduction of the statutory scheme.

31. In 1971, all of the local unions in Ontario (which together comprise the affiliated members of the OPC), authorized the OPC to bargain on their behalf; and since at least 1973, the OPC has engaged in extended area collective bargaining. Accordingly, when province-wide bargaining was introduced in 1978, the OPC was already negotiating and signing province-wide collective agreements on behalf of its constituent locals in Ontario (and their members). As a historical and institutional matter, the OPC's status as a "provincial bargaining agent" preceded the statutory scheme.

32. The American parent has never had a significant role in such local or provincial bargaining, nor does the international union constitution seem to contemplate a dominant role for the parent union in collective bargaining. As I read it, the thrust of the international constitution is that collective bargaining will be conducted by local unions, or by more broadly-based councils like the OPC. It is the local union or area council (a group of locals) which routinely formulates bargaining demands, engages in collective bargaining, calls strikes, conducts ratification votes, and afterwards administers any negotiated agreement. In fact, under Article VIII H of the international constitution: "the International Union shall not be a party to or administer any collective agreement to which it is not an express signatory"; and, before engaging in collective bargaining with an employer, a local union is obliged to advise that employer that the International Union is not responsible for the results of collective bargaining.

33. In summary, I think that the thrust of the international constitution is accurately captured by Mr. Richmond's comment: "... organizing and bargaining are conducted by the local unions and the International provides a helping hand where necessary ...". He points out, for example, that unlike some other international unions operating in Ontario, the American parent in this case, cannot point to any history of organizing or filing certification applications to acquire bargaining rights for Ontario employ­ees. Nor has it ever had a history of negotiating or signing collective agreements with Ontario employers. Prior to 1978, the name of the American parent did not appear as a party on the collective agreement documents. It was the local or the OPC who performed this collective bargaining role.

34. I have emphasized the phrase "prior to 1978" in a previous paragraph, because there was at least a nominal change with the introduction of province-wide bargaining. That is the "construction industry qualification" to which I referred earlier.

35. In 1978 the Legislature introduced Bill 22 which required compulsory province-wide bargaining, by trade, in the industrial, commercial and institutional sectors (ICI) of the construction industry. As a result of these amendments (now sections 151-168 of the Act), collective bargaining had to be conducted on a province-wide basis by an employer bargaining agency on the one hand (essentially an employer association) and an "employee bargaining agency" on the other (essentially a grouping of local unions). Such bargaining is conducted every three years and embraces, province-wide, all union­ized employers and employees in a trade group (carpenters, plumbers, electricians, bricklayers and masons, etc.).

36. The statutory language is a bit complex, but the bargaining institutions themselves can be fairly simply described. The employer bargaining agency can be thought of as an umbrella employer association of unionized specialty/trade contractors (e.g. carpentry contractors), who bargain as a group, province wide. The employee bargaining agency can be thought of as an umbrella organization of geographically-based local unions (called "affiliated bargaining agents") much like the OPC was prior to 1978 (and still is). The provincial employee bargaining agency may - but need not - include a parent union. (See the definitions in section 151(1) of the Act.)

37. A provincial employee bargaining agency can be created in two ways: by Ministerial designation under section 153 of the Act, or by certification by the Ontario Labour Relations Board under section 154 of the Act. Designation is an exercise of Ministerial discretion. Certification depends upon whether the application is timely, whether the applicant meets the statutory definition of an "employee bargaining agency", and whether the applicant can demonstrate the requisite degree of local and membership support (see the "double majority" prescribed in section 154(2) of the Act).

38. Designation can (in theory) take whatever form the Minister considers appropriate. There is no requirement that the organization created by the Minister will be structured in any particular way, or will be representative of any particular mix of interests. There is no reference to local or membership support. By contrast, "certification" depends upon a substantial degree of membership and institutional support from local unions ("affiliated bargaining agents") across Ontario.

39. Once certified, the employee bargaining agency can engage in provincial collective bar­gaining, with a view to concluding a 3-year provincial agreement. It is useful to note, though, that certification can only be sought towards the end of an existing provincial agreement - which is to say, just prior to the commencement of a round of provincial bargaining.

40. In other words, the scheme of the Act contemplates that the identity of the provincial bargaining agency must be sorted out in the months before bargaining commences; and this poses a practical limitation on the ability of any rival employee bargaining agencies to seek certification. An organization seeking to displace an incumbent employee bargaining agency will have only one opportu­nity to do so every three years. And, from a practical point of view, the Board may have to sort out who the provincial bargaining agent will be, before meaningful bargaining can take place.

41. When the provincial bargaining scheme was first established in 1978, the then Minister of Labour designated the employee bargaining agencies. In the case of the Bricklayers, the designation included the OPC and the American parent. That is how the American parent acquired at least a nominal role in the statutorily-regulated bargaining process. And that is the arrangement which the OPC seeks to change by its application under section 154 of the Act.

42. It is not clear now, why the American parent was added to the designation in 1978, when collective bargaining was already being conducted on a provincial basis through local unions and the OPC. Presumably, the Minister of the day thought that the American parent would have some role to play, assisting or coordinating the Ontario locals. I decline to speculate. What is clear is that the OPC's section 154 application is intended to replace a designated organization which includes the American parent, with a certified organization that does not.

43. The OPC makes no bones about its objective. The purpose of the section 154 application is to oust the American parent from the provincial bargaining scheme, by replacing the organization designated by the Minister with a certified organization that is directly representative of the Ontario members. That is the objective of the reference to the Minister as well: the OPC urges the Minister to amend the existing designation (under section 153(5) of the Act) so as to include only local unions or institutions situated in Ontario. And since the American parent holds no direct bargaining rights, either determination could significantly reduce its influence over Ontario collective bargaining.

44. However, I think that it is important to reiterate that, despite the presence of the American parent on the designation order for the last 20 years, the material before me indicates that the American parent has not really played a significant role in ICI provincial bargaining, which has always been conducted by the OPC in accordance with its own constitution. The American parent seems to have had a consultative role. But its representatives did not sit on the bargaining or steering committees of the OPC unless such persons were elected as delegates from their own local union in Ontario. The American parent (as such) did not give notice to bargain, did not participate in any significant way in the formulation of bargaining demands, did not participate in the conduct of strike or ratification votes, and did not pay the costs associated with collective bargaining. These mechanics were undertaken by the OPC which, directly or through its constituent locals, held bargaining rights and consulted directly with the local Ontario membership. In practice, collective bargaining demands were formulated and pressed in accordance with the wishes of the Ontario membership, as reflected by the local leadership and the officers of the OPC.

45. The American parent does not really dispute that, until recently, it did not play a prominent role in Ontario collective bargaining. However, in counsel's submission, neither was there any occasion when the OPC contemplated bargaining positions that, according to the American parent, were contrary to international union policy. The American parent did not assert an active bargaining role because, prima facie, bargaining is a local matter and, until recently, bargaining in Ontario was conducted within acceptable constitutional norms.

46. Be that as it may, the fact remains that both before and after the advent of provincial bargaining, negotiations were conducted by the OPC and the American parent had, at most, a residual role. It is only in the most recent round of bargaining that the American parent has asserted itself, and has insisted that the OPC take to the bargaining table positions which, the OPC says, were expressly rejected by the Ontario membership. In particular, the OPC refuses to table bargaining positions which might result in the transfer of $1.35 per hour worked by Ontario members to the coffers of the American parent union. In the OPC's view (apparently supported by the membership) this sum should be directed to the Ontario members or to uses approved by those members.

IV - The dispute over Canadian autonomy

47. I do not propose to dwell at any length upon internal union politics - not least because each party asserts that the other is acting in the best interests of the membership, and these matters may have to be canvassed, eventually, in the context of the unfair labour practice complaint. For present purposes, it suffices to say that, since at least the fall of 1995, there has been an active debate about Canadian autonomy, and whether the Ontario membership should exercise more control over the affairs of their local unions.

48. In October 1995, at the international convention in Chicago, John Joyce was elected president of the American parent union. All of the Ontario locals publicly supported the "slate of officers" that was defeated by the "slate" headed by Mr. Joyce. As things turned out, the Ontario membership is not just a minority within the international union as a whole, but the Ontario locals did not succeed in having their preferred representatives on the international executive Board. And, in the wake of the convention, certain Canadian officials were removed from their positions.

49. The validity of this election is still before the Courts of the United States.

50. In late 1995, a steering committee of the OPC, composed of elected delegates from each Ontario local union, began to develop recommendations for more autonomy for the Ontario locals. The OPC steering committee condemned the actions taken against the union's Canadian Director, and demanded his immediate reinstatement. In addition, the OPC developed a number of proposals for Canadian autonomy, including: the right to elect its own Canadian officers by secret ballot; the right to elect its own Canadian trustees on all international union pension and benefit plans by secret ballot; self-determination in the selection of affiliation to any central or provincial labour body; the right to keep dues money in Canada for the purpose of servicing the Canadian membership; etc. An OPC task force recommended that a special convention be called to discuss these recommendations.

51. These actions and proposals did not sit well with the union headquarters in Washington. In November 1995 Mr. Joyce placed the OPC in "receivership".

52. Under the constitution of the American parent, a receivership can be imposed in the discretion of the international president, is not reviewable, and can only be terminated by the president. There is no requirement to have a formal hearing before the receiver takes over, and the rights of appeal are significantly circumscribed. The terms of the receivership are prescribed by the international president, and when he exercises his discretion in this way, the receiver can assume total control over the local union, and displace the officers selected by the local membership.

53. Following the imposition of the 1995 receivership, Mr. Joyce filed charges under the international constitution against the individuals who had developed the proposals for Canadian auton­omy, against the executive board members of the OPC, and against all elected business managers and presidents of the local unions in Ontario (that, as noted, had not supported him in the most recent election). Among other things, those charges could result in the officers' removal from office. In response, the locals and a number of individual applicants filed a complaint under section 96 of the Labour Relations Act alleging, inter alia, a breach of section 149 of the Act (which is reproduced above). The applicants claimed, as they do in the instant case, that the motives of the American parent were tainted, and its actions were taken without just cause.

54. Despite the receivership, the delegates to a special Ontario convention endorsed the recom­mendations for local autonomy.

55. In the spring of 1996, the unfair labour practice ("Bill 80") complaint was settled on terms not here relevant. In September 1996, Kingston Local 10 was put under receivership. Once again, this action was challenged in an application under section 96 of the Act alleging, inter alia, violations of section 76, 149 and 96(7) of the Act (a breach of the earlier settlement terms). Hearings before the Board on this new Bill 80 complaint were protracted and were only concluded in February 1998. No decision has yet been issued.

56. In or about February 1997, the OPC conducted a referendum among all of the membership in Ontario, which asked the following question:

"Do you authorize the Ontario Provincial Conference and your Local Union to take all steps necessary to establish Canadian self-government and autonomy for the members of our union in Canada?"

According to the OPC, some 65% of the membership responded to the request, and of that group, 88% endorsed the OPC's position on local autonomy. There was a significant majority of Ontario workers in favour of loosening the ties with the American parent union (although not, be it noted, breaking away from the American parent).

57. In June of 1997 the OPC held its biennial convention, which is attended by elected delegates from all of the local unions in Ontario. At that convention, the delegates passed a number of resolutions respecting the relationship between the OPC and the international union. Among them was a resolution that all "international dues checkoff (33— per member per hour for each hour worked in Ontario) be withheld from the American parent until all differences were resolved.

58. The "check-off issue" refers to clauses in collective agreements that require an employer to deduct or remit a certain sum to the union - ordinarily the union that is the bargaining agent, but in this case, the American parent. Deductions of this kind are contemplated by sections 47 and 52 of the Labour Relations Act; and were it not for this statutory authorization bolstering the terms of the collective agreement, it is not at all clear that an employer would be entitled - much less required - to make such deductions or remittances. However, dues deductions - like compulsory union membership are a common feature of construction industry collective agreements, and typically include remittances for a variety of pension, welfare and benefit funds, as well as, sums to support the services supplied by the union.

59. In June 1997, the delegates to the OPC convention also authorized the OPC to take whatever legal or political action was necessary to remove the American parent from the provincial bargaining designation. It was this authorization which prompted the OPC to file its application under section 154 of the Act, as well as ask the Minister to change the designation under section 153(5) of the Act.

60. In late January 1998, the American parent sent notices to all local unions in Ontario, indicating that those locals were required to press for a new deduction of 3% of gross wages for each member in Ontario. The money so deducted would be sent to the International Masonry Institute (IMI), which is an organization sponsored by the American parent that undertakes trade training. The Ontario locals do not currently support the IMI. They do make training fund contributions for use by Ontario workers, in Ontario.

61. The IMI checkoff, together with the international union checkoff, represent 4% of the members' gross wages, or about $1.35 per hour for every hour worked. The American parent's position is that the OPC and its Ontario locals are obliged to press for a collective agreement provision requiring Ontario employers to remit this money to the IMI. The OPC is refusing to table a demand to this effect, because, it says, the Ontario membership does not support it. The OPC submits that the Ontario members have little appetite to see $1.35 per hour transferred to the union headquarters in Washington; and there is no evidence before me to suggest that the OPC is wrong in this regard.

62. In summary, over the last few years, there have been a number of disputes over "Canadian autonomy", culminating in a debate over whether the OPC should press a bargaining demand (amounting to $1.35 per hour) which the American parent wants but the Ontario membership, by and large, opposes.

V - The American parent's response to the OPC's communication with the Minister of Labour, and the OPC's application under [section 154](https://www.canlii.org/en/on/laws/stat/rso-1990-c-l2/latest/rso-1990-c-l2.html#sec154_smooth) of the [Labour Relations Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-l2/latest/rso-1990-c-l2.html)

63. As I have already noted, in December 1997, the OPC requested the Minister of Labour to delete the American parent from the provincial designation. At the same time, the OPC brought two applications under section 154 of the Act. Both of these initiatives had the same objective: to remove the American parent from the designation, and thereby restrict its right to participate in provincial collective bargaining in Ontario. Both initiatives were undertaken in accordance with a process contem­plated by the Labour Relations Act of Ontario. And in both cases the OPC maintained that it enjoyed the support of Ontario locals and members, so that it should be the designated or certified "employee bargaining agency".

64. I do not know whether the Minister of Labour has completed his consideration of the OPC's request. However, hearings in the "certification matters" were scheduled to take place before the Ontario Labour Relations Board (differently constituted) on February 17, 1998 and February 20, 1998.

65. On or about January 23, 1998, the president of the OPC received a letter from the Secretary-Treasurer of the American parent. The OPC describes this letter as a "threat", which was made by the American parent, because the OPC had communicated with the Ontario Minister of Labour and had filed an application to the Ontario Labour Relations Board. As a result of these communications from the American parent, the OPC filed an unfair labour practice under section 96 of the Act (Board File 4077-97-U).

66. The hearings in the section 154 applications commenced before this Board (differently constituted), as scheduled, on February 17, 1998. The American parent intervened, and took the position that the OPC was not entitled to bring the application, and was not a proper "applicant" within the meaning of section 154. Following argument on that issue, the Board reserved its decision.

67. On February 19, 1998, the Board hearing the section 154 matter issued a short endorsement which stated, in part:

For reasons to issue later, the Board is satisfied that the Applicant is an "employee bargaining agency" within the meaning of section 151(1) of the Act, and as such, is entitled to bring the instant applications pursuant to section 154 of the Act.

The hearings were to continue the following day, February 20, 1998.

68. At the commencement of the hearing on February 20, 1998, counsel for the American parent asserted that the proceeding should not continue, and provided the OPC with a copy of an order from president Joyce, imposing a new receivership over the OPC (the 1998 receivership). The receivership was imposed for the purpose of withdrawing the request to the Minister to amend the designations filed with the Minister, and withdrawing the two applications to the Ontario Labour Relations Board, under section 154 of the Act.

69. Counsel for the American parent asserted that since the receiver now controlled both the OPC and its constituent locals, their officers no longer had any authority to speak for the Ontario locals, or for the Ontario members. In counsel's submission, the receiver was now the legally designated spokesman for the Ontario locals and their members, and clothed with that authority, he had the power to withdraw the two applications under section 154 of the Act. Counsel asserted that, in effect, the receiver was now the legal representative and spokesman for the applicants, and in light of his request to withdraw the applications, the proceedings under section 154 could not continue, because there was no longer any "applicant".

70. The OPC submitted that the American parent - a party to the section 154 application - had no authority to derail an ongoing proceeding in this way. The OPC submitted that this was merely a continuation of the unfair labour practices of which the OPC had already complained, and it was a breach of section 149 of the Act as well. In the OPC's submission, these "highhanded" actions were an "affront" to the Board, that amounted to contempt and an abuse of process.

71. The Board panel seized with the section 154 application adjourned the matter, so that the OPC could make application for interim relief.

72. It is evident, therefore, that the primary purpose of the receivership is to abort the section 154 application and prevent the officers of the OPC from communicating with the Ontario Minister of Labour. However, I am also satisfied on the basis of the material before me (including the interchanges between counsel at the hearing) that the receiver will be instructed to take steps to secure in bargaining the $1.35 per hour remittance referred to above - something that the American parent claims is constitutionally required and in the general union interest, but something that the OPC and the Ontario members appear to oppose. I am satisfied that the purpose of the receivership is threefold: to take control of the Ontario locals; to prevent the Ontario locals and members from effecting a change to the designation using the processes prescribed in the Labour Relations Act; and to secure the $1.35 per hour payment, whether the Ontario members want it or not.

73. Counsel for the American parent submits before me that it is not his client's intention to interfere with local bargaining or to usurp the role of the OPC and its Ontario locals. The role of the receiver is limited and relatively benign. However, at the same time, counsel asserts that the American parent is entitled to insist that its reading of the constitution prevail, and that its bargaining agenda be adhered to. In counsel's submission, sectional interests (meaning Ontario locals) should not prevail in these circumstances, and the receiver is entitled to demand compliance with the international union's constitutional and organizational objectives.

74. The OPC replies that the receiver is a political response to legitimate demands for Canadian autonomy, as well as an instrument to secure the $1.35 per hour remittance which the American parent knows the Ontario members oppose. The OPC asserts that its bargaining proposals are derived from the Ontario membership and will reflect the wishes of those members. The OPC will not sign a collective agreement over the heads of those members, without putting that agreement to them for ratification. While ratification is not required by the Labour Relations Act, it is required by the OPC constitution; and, in counsel's submission, that is the protocol which has been followed in the past, and will be followed in the 1998 round of bargaining.

75. The OPC is prepared to make that undertaking to the Board, and its counsel observes, pointedly, that the American parent union is not prepared to make a similar undertaking. In OPC counsel's submission, the American parent is reserving an alleged right, based on its constitution, to "take over" provincial bargaining, and sign a collective agreement, without ratification, over the heads of the Ontario members and despite the fact that the OPC is also a party to the Minister's designation order. And that is so, despite the allegedly moderate language of the president's receivership order.

76. Counsel for the applicants reiterates that the OPC is seeking to displace the American parent in accordance with the process which is expressly prescribed in section 154 of the Labour Relations Act and is based upon the support of Ontario locals and members, while the American parent is attempting to take over local institutions and the provincial bargaining agency by means of the receivership. The OPC says that it is content to submit its position to the judgement of the Ontario members - both in a representation vote under section 154 (if the Board orders one), and a ratification vote to confirm any negotiated collective agreement. The American parent will commit to neither form of ratification; and in counsel's submission, that is something that the Board should take into account when determining the availability of interim relief. It is at the very least a "labour relations fact" that the Board can properly consider.

77. The OPC submits that if the receivership prevails in this regard, the provincial bargaining agency will no longer reflect the interests of the Ontario locals, but, for practical purposes, will be composed solely of delegates of the international union. The designation order will still read as if the Ontario locals have some say in the process. Their names will also appear on the ultimate collective agreement. But the only real voice at the bargaining table will be that of the appointee of the American parent; and, a proceeding properly launched under the Act will be aborted by one party to that proceeding exercising a purely contractual power.

78. In counsel's submission, the Legislature could never have intended these results - particu­larly in light of Bill 80 and the statutory provincial bargaining scheme.

79. In response, the American parent maintains that it is not its intention to dominate provincial bargaining - only to preserve constitutional proprieties, discourage factionalism, and promote the welfare of the union as a whole. Nevertheless, the American parent is not prepared to undertake that there will be a ratification vote, so that Ontario members can confirm their acceptance of the collective agreement by which they will be bound. Nor is the American parent inclined to renounce what it claims as its right to step into the shoes of the OPC for the purposes of negotiating or signing a collective agreement.

80. In the circumstances, I think that I have to conclude that the fears articulated by the OPC are not without foundation. After all, the receiver did assert the "right" to withdraw the section 154 proceeding then ongoing before the Board, and the international constitution may well give him the authority to sign a collective agreement without reference to the Ontario locals or members. And if the receiver is able to get its $1.35 per hour clause into the provincial collective agreement, but the receivership is later set aside as unlawful, it is not at all clear how the Board would remedy the situation. Section 96 allows the Board to fashion a remedy despite the provisions of a collective agreement; but the labour relations consequences of doing that are difficult to predict.

81. It will be seen, therefore, that the OPC's argument is based upon the scheme of the Labour Relations Act, and the efficacy of legal proceedings or collective bargaining conducted under the auspices of the Labour Relations Act. The American parent's argument focuses on the rights accorded to its officers under the international union constitution. That is why I earlier indicated that this case involves the relationship between "private law" and "public law".

VI - The basis for an Interim Order - [section 98](https://www.canlii.org/en/on/laws/stat/rso-1990-c-l2/latest/rso-1990-c-l2.html#sec98_smooth) of the [Ontario Labour Relations Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-l2/latest/rso-1990-c-l2.html), and section 16.1 of the Statutory Powers Procedure Act

82. The legal basis for an "interim order" can be found in section 98 of the Labour Relations Act, and section 16.1 of the Statutory Powers Procedure Act (which operates despite anything in the Labour Relations Act, and in addition to it). Those provisions were discussed at some length in Ontario Public Service Employee s Union v. The Crown in Right of Ontario, [1996] OLRB Rep. Sept./Oct. 780 and Power Workers' Union - CUPE Local 1000, et al. v. International Brotherhood of Electrical Workers, [1996] OLRB Rep. Sept./Oct. 826. (See also the comments of the Saskatchewan Court of Appeal in Burkhart v. Dairy Producers Co-op Ltd. (1990), 1990 CanLII 7774 (SK CA), 74 D.L.R. (4th) 694.) I will not repeat that analysis here. I simply adopt it.

83. In my view, the remedial arsenal of the Board includes the power to make interim orders in proceedings that:

(1) regulate the way in which the litigation before it unfolds; and

(2) preserve the status quo and scheme articulated in the statute, until the parties' rights are adjudicated in accordance with law.

Accordingly, where the behaviour under review interferes with the statutory balance - arguably unlaw­fully - in ways that may be difficult to remedy later, I think that the Board has an obligation to consider whether some interim order is advisable to preserve the statutory rights and processes contemplated by the statute. For as the Board said many years ago in Radio Shack, [1979] OLRB Rep. Dec. 1220 (upheld by the Divisional Court at 80 CLLC parag. 14017):

It is trite to say that all rights acquire substance, only insofar as they are backed by effective remedies. Labour law presents no exception to this proposition.

84. No doubt, an "interim order" is an extraordinary remedy which should be exercised spar­ingly, lest its availability draw the parties into additional layers of litigation in pursuit of tactical advantage; moreover, the Board must be sensitive to both the limits of the law and the complexity of collective bargaining phenomena. Tinkering with one element of the system may be ineffective, or have quite unforeseeable results. That is especially so in the context of an "interim" order, where, by definition, the parties have not yet had an opportunity to fully present their case. But by the same token, interim relief has the same rationale for the Board as it has for the Courts: to enhance the efficacy of the litigation process, and ensure that unilateral action does not blunt its remedial thrust.

85. This is not to say that the approach of the Board should always parallel that of the Courts. I think that the Board is obliged to take a forensic approach, applying its labour relations experience to the particular mix of facts, and the particular private and public interests in play. In the The Bay -Kingston case, [1993] OLRB Rep. Dec. 1350, the Board put it this way (at page 1381):

86. In both Loeb Highland [1993] OLRB Rep. May 1971 and Tate Andale [[1993] OLRB Rep. Oct. 1019], the Board noted that its approach to [the interim relief provisions] would not necessarily parallel that of a Court - anymore than its approach to strike-related cease-and-desist orders parallels that of a Court in picketing/injunction situations. The Board is a different kind of institution. It is animated by regulatory and policy considerations that are different from those of a Court (see generally Toniko v. Nova Scotia Labour Relations Board. et al, 1975 CanLII 183 (SCC), [1977] 1 SCR. 112, and Re Tandy Electronics Ltd. & United Steelworkers of America (1979) 1979 CanLII 1914 (ON HCJ), 26 OR. (2d) 68). In Tate Andale, the Board put it this way:

87. In the first place, we might observe that the Board is not a court; and there is no reason to expect that either its adjudicative or remedial approach should mirror that of a court. Civil practice may sometimes provide a useful analogy, but when the Act so clearly involves policy considerations, so systematically modifies common-law premises, and so clearly excludes judicial involvement (see section 110), it would be curious for the Board to make common-law criteria a governing principle of interpretation. This is not to say that the Board's approach to dispute resolution will never resemble that of the courts; however, the criteria applied, and the result reached, are more likely to be based upon the scheme and purpose of the Act, the Board's own experience, and the norms and needs of the industrial relations community. (See generally: Alex Tomko v. Labour Relations Board of Nova Scotia, et al (1975) 76 CLLC ¶14005 (per Laskin, C.J.C.).)

See also: Morrison Meat.r Ltd. supra, paragraphs 14-16.

142. That said, though, the Board has in fact looked at some of the things which would influence the Court on an application for interim relief. The Board has considered such factors as: the relationship between the interim Order sought and the final Order if the party seeking it were entirely successful; the desirability or possibility of preserving the status quo; the definition of the status quo in a dynamic system; whether the harm suffered by the party seeking interim relief is purely economic, and thus more readily ascertainable and recoverable after the merits have been decided; what the balance of harm may be - that is, whether the “harm" of not granting an Order exceeds the ~~harm" occasioned by granting the interim relief requested; and whether the "harm", in this sense, extends to third party interests. To these the Board adds a policy component based upon its own experience of labour relations, its understanding of the statutory scheme, and whether there is a public interest element to be considered.

143. Ordinarily, the Board will have to be persuaded that there is at least an "arguable case" for the relief requested on the "main application" (here the section 154 proceedings, and the collateral unfair labour practice complaint). If it were otherwise, a litigant with a doubtful claim on the merits, might obtain an unwarranted advantage through the device of interim relief. However, if a litigant makes out a plausible case on the main application, one then has to consider what kind of interim order, if any, would appropriately balance the range of legal and collective bargaining interests under review - especially if time is of the essence, and there is some doubt whether at the end of the day the Board's remedial order can fully compensate for the delay. And in determining the content of any interim order, it seems to me that the starting point must be the statutory scheme. As the Divisional Court observed in Radio Shack (1980), 80 CLLC ¶14,016 and ¶14,017, the Board's remedial order ultimately "flows from the scope, intent, and provisions of the Act itself'.

144. Now, of course, this observation was made in connection with the Board's authority to remedy unfair labour practices, now found in section 96 of the Act. It referred to "final" not "interim" remedies. But, in my view, it applies with equal force to the open-ended discretion in section 16.1 of the SPPA - which, after all, was designed to bolster a tribunal's remedial arsenal.

145. Accordingly, I think it may be useful to look again at how the statute regards "internal union affairs", and how internal union processes mesh with the collective bargaining regime regulated by the Labour Relations Act.

VII - Some further observations on the scheme of the Act

89. The Labour Relations Act is primarily concerned about institutional collective bargaining relationships - the trade union in its role as statutory bargaining agent for groupings of employees. Except in the construction industry (a significant exception - see below), the statute is not much concerned with internal union affairs. Nor does it prescribe any general code of "democratic practices". The statute is exceedingly (and I think intentionally) sparse in these areas, leaving them to be deter­mined, for the most part, by the trade union's constitution.

90. It is the union constitution which deals with the rights of members within the organization, eligibility for office, elections, dues levels, property distribution, local autonomy, and so on. That constitution is a kind of "contract", which can be enforced in law at the suit of an unhappy member; and outside the construction industry, the statute has nothing much to do with it. These are private, or contractual rights, asserted through the union's own internal mechanisms, or through the general Courts (see, for example, the legal analysis in Astgen et al. v. Smith, et al., [1971] O.R. 129 (C.A.)).

91. On the other hand, the "club" or "private contract model" of trade unionism developed at common law completely fails to capture the statutory dimension of trade unionism, or the statutory rights and responsibilities exercised by a modern trade union under the Labour Relations Act. In this sense, the common law has been eclipsed by the statute - just as the statute provides a legal foundation for collective bargaining which was lacking at common law.

92. A modern trade union is not just a "voluntary organization" like a club or church, held together by some notional contract between the members. These days, membership in the union is not "voluntary" at all, but is required as a condition of employment, by virtue of a collective agreement whose existence and legal attributes depend primarily upon the statute. Likewise, employees are obliged to support the trade union financially because the statute may require it (see section 47), and because a collective agreement contains a "closed shop" or compulsory "dues checkoff”. That is why, in some circumstances, members of a trade union engaging in reasonable dissent, are immunized from the employment consequences of internal union sanctions (see section 51 of the Act). Expulsion from membership need not result in discharge from employment, nor does it terminate the union's obligation to represent the "non-member" in collective bargaining.

93. At common law, a trade union was a group of workers who associated together voluntarily for their mutual aid and comfort, and with the common purpose of improving their working lot by negotiating with their employer as a group. So even at common law, a trade union had a collective bargaining role. But it is this collective bargaining function which defines the trade union for statutory purposes (see the definition of "trade union" in section 1 of the Act), and which receives statutory support under the Labour Relations Act.

94. The statute does not deal with "union democracy" per se. But it does provide a mechanism whereby a trade union can become the employees' exclusive bargaining agent by securing and main­taining majority support. Moreover, once a trade union has attained the status of bargaining agent, it is obliged to fairly represent all employees, whether they are members of the union or not (section 74 of the Act). And to complete the picture, the trade union selected by the employees continues to be their bargaining agent until they reject it, or its bargaining rights are terminated in accordance with the Act. The union’s constitution has nothing to do with it.

95. In this sense, then, a modern trade union is not a wholly private organization that can be satisfactorily analyzed solely in common law or contractual terms. To look only through that lens ignores the fact that today, a trade union is an organization which enjoys statutory support in order to facilitate statutory objectives. And among those objectives is this one, found in section 2 of the Act:

96. The following are the purposes of the Act:

97. To facilitate collective bargaining between employers and trade unions that are the freely-designated representatives of the employees.

98. It is not without significance that the statute envisages that a trade union will engage in collective bargaining as the "freely-designated representative(s) of the employees". The union's status as bargaining agent ultimately rests upon the support of employees.

99. The point is: the constitutional imperatives asserted by the American parent in this case, have to be weighed in the broader statutory context. To put the matter another way: in assessing the role of the American parent and its appointed receiver, one must look not only at the constitutional proprieties, but also at whether their activities are congruent with the overall statutory scheme. For any collision or inconsistency must be resolved in favour of the statute.

100. Under the Labour Relations Act, the principal juridical entity is the "trade union" with bargaining rights (acquired by certification or voluntary recognition). The union with bargaining rights is the exclusive bargaining agent representing employees for collective bargaining purposes. In fact, it is an unfair labour practice for an employer or another trade union to interfere with those rights or purport to exercise them. Thus, section 73 of the Act provides:

101. (1) No employer, employers' organization or person acting on behalf of an employer or an employers' organization shall, so long as a trade union continues to be entitled to represent the employees in a bargaining unit, bargain with or enter into a collective agreement with any person or another trade union or a council of trade unions on behalf of or purporting, designed or intended to be binding upon the employees in the bargaining unit or any of them.

(2) No trade union council of trade unions or person acting on behalf of a trade union or council of trade unions shall, so long as another trade union continues to be entitled to represent the employees in a bargaining unit, bargain with or enter into a collective agreement with an employer or an employers' organization on behalf of or purporting, designed or intended to be binding upon the employees in the bargaining unit or any of them.

99. Against that background, one might wonder how it is that a receiver appointed by another (albeit related) trade union can take over a local union and purport to speak on its behalf. How is it that a parent union, which holds no bargaining rights, can take over a local union which holds bargaining rights, then purport to exercise those rights on the local's behalf'? The statute provides no clear answer. Nevertheless, section 89 of the Act does seem to contemplate that a local union's autonomy may be suspended - at least for a limited period of time:

100. (1) A provincial, national or international trade union that assumes supervision or control over a subordinate trade union, whereby the autonomy of such subordinate trade union, under the constitution or by-laws of the provincial, national or international trade union is suspended, shall, within 60 days after it has assumed supervision or control over the subordinate trade union, file with the Board a statement in the prescribed form, verified by the affidavit of its principal officers, setting out the terms under which supervision or control is to be exercised and it shall, upon the direction of the Board, file such additional information concerning such supervision and control as the Minister may from time to time require.

(2) Where a provincial, national or international trade union has assumed supervision or control over a subordinate trade union, such supervision or control shall not continue for more than 12 months from the date of such assumption, but such supervision or control may be continued for a further period of 12 months with the consent of the Board.

100. On the other hand, section 89 is completely silent on what this means for "local unions" which enjoy the statutory status of exclusive bargaining agent, and it certainly does not follow that a "receiver" may exercise his authority in a way that is contrary to the statute (for example, contrary to the statutory duty to fairly represent employees) or inconsistent with the statutory scheme. The imposition of a receiver is not immune from scrutiny, nor does it alter the locus of bargaining rights. It does not mean that the receiver becomes the employees' statutory bargaining agent - or at least there is no case law that says so, and section 68 of the Act seems to contemplate OLRB involvement in any transfer of bargaining rights occasioned by internal union reordering.

101. There is also a respectable body of jurisprudence (relied upon by the OPC in this case) to the effect that the imposition of a receivership or other internal union sanction may, in some circum­stances, be considered an unlawful interference with statutory rights (see for example: International Association of Bridge, Structural and Ornamental Ironworkers Local 721 et al. v. The International Association of Bridge, Structural and Ornamental Ironworkers, et al., [1982] OLRB Rep. Oct. 1487; John M. Lussier et al. v. United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 46, [1974] OLRB Rep. Aug. 569; William Egan v. Trial Board of the International Brotherhood of Painters and Allied Trades, Local 1783, [1983] OLRB Rep. Feb. 298; and Louis Lauzon v. Teamsters, Chauffeurs, Warehousemen and Helpers, Local 91, [1994] OLRB Rep. June 717; and Hank Brouwers v. Canadian Union of Shinglers and Allied Workers, [1995] OLRB Rep. Sept. 1160). Section 89 does not suspend the operation of the other provisions of the statute, and it is obvious that, in the construction industry, section 89 must now be read in light of the terms of "Bill 80".

102. I do not suggest that the principles articulated in these cases are necessarily applicable to the American parent in this case. That will no doubt be something that the panel hearing "the merits" of the unfair labour practice case will have to decide. I note only that the "constitutional correctness" of a union's actions, is not always a complete answer to a traditional unfair labour practice allegation; and that in the construction industry, it may be no answer at all to a so-called "Bill 80 application" brought under sections 145-150 of the Act.

103. Bill 80 represents a significant accretion to the Board's authority to regulate "internal union affairs", and a significant addition to its authority to determine what impact - if any - internal union actions will have on collective bargaining institutions in Ontario. Looked at differently, Bill 80 significantly reduces the authority of a parent union to dictate to its Ontario locals - whatever the constitution may say.

104. It seems to me, therefore, that the permissive provisions of section 98 of the Labour Relations Act and section 16.1 of the Statutory Powers Procedure Act have to be read in that context. Interim relief, if any, has to be shaped in a way that will both balance the "private interests" of the litigants and, at the same time, enhance the efficacy of the statutory scheme. What the "home statute" says is important - not only in respect of the unfair labour practice regime (including Bill 80) but also with respect to the general regulatory framework.

105. So, with that in mind, it may be useful to return, once more, to the legislative arrangements governing provincial collective bargaining.

106. As I have already mentioned, the shape of the provincial bargaining system is fairly simple to describe: collective bargaining takes place on a provincial basis, by trade (carpenters, bricklayers, etc.) every three years. The employer side of the bargaining table consists of a designated employer bargaining agency, which, for practical purposes, is an employer association representing unionized employers from across the province. The union side of the bargaining table is a council of geographi­cally-based local trade unions - usually with municipal roots (the Toronto local, the London local, the Ottawa local, etc.) or groupings of those locals. Sometimes the EBA is itself a council of locals or has councils of locals among its subdivisions.

107. The provincial bargaining agencies negotiate a collective agreement that applies throughout the province to all unionized employers. There can be no local bargaining (see section 162 of the Act). Accordingly, the provincial collective agreement is expected to reflect both common concerns, prov­ince-wide, as well as any local variations that the provincial bargaining agencies may agree upon. These accommodations must be worked out at the provincial bargaining table, through the auspices of the provincial bargaining agencies, that are themselves composite groupings of employer and union interests.

108. These arrangements were originated by Ministerial designation in 1978, and for the most part, the original designations have remained intact. From time to time a Minister has modified a designation to better reflect sectional interests or address particular concerns. However, by and large, the form and composition of the provincial bargaining agencies have not changed in any material way. Each employee bargaining agency continues to encompass a diverse grouping of local and sectional interests - often, as in the present case, with some presence from the parent union as well.

109. However, designation is not the only way that an employee bargaining agency can be created. Nor need the employee bargaining agency necessarily include the parent international union (see the definition of "employee bargaining agency" in section 151 of the Act). Section 154 of the Act recognizes the possibility of self ordering, so long as the proposed new bargaining agency is sufficiently representative of local unions throughout Ontario, and sufficiently representative of the Ontario mem­bers.

110. It is not quite clear how a new provincial bargaining agency would go about establishing this double majority, because until the present case, no one has ever made an application under section 154. Nevertheless, the statute clearly contemplates that Ontario locals may be able to construct their own provincial employee bargaining agency (by trade), and that the new provincial organization need not, necessarily, include the parent international, to which each local union may be constitutionally "subordinate" (again see the definition of "affiliated bargaining agent"). The statute contemplates that the 1978 designation is not carved in stone, but may be varied or replaced at the instance of locals and members in Ontario.

111. This question of "subordination" is worth some further reflection.

112. It is important to recognize that, by definition, an "employee bargaining agency" is an organization composed of "affiliated bargaining agents" (local unions) which, again by definition, are subordinate to the same parent union. In the typical case, the "affiliated bargaining agents" (for example, the Carpenters' local in Toronto, the Carpenters' local in London, etc.) are geographically-based organizations that are constitutionally linked to each other, as well as to a parent union - normally with headquarters in the United States. To continue the metaphor: an employee bargaining agency is, by definition, composed of related members of the same craft union family. And that will necessarily be so, whoever the employee bargaining agency may be.

113. This means, in practice, that any rival employee bargaining agency that seeks to displace an existing one under section 154, will be composed of some grouping of the same Ontario family members. Moreover, all of the locals will continue to be constitutionally subordinate to their common parent - and thus subject to potential receivership if the parent union opposes any local restructuring. In other words, the entities for which the certification process was designed, are all exposed to the kind of constitutional control by their parent union which the American parent has sought to exercise in the instant case.

114. That is why the applicants argue that the receiver should not be permitted to interfere with an application under section 154. Because if he can, a parent union will always have a veto over any restructuring in Ontario initiated by the locals themselves. A parent union need only put those locals under trusteeship, remove the local leadership, take over direction of the locals, withdraw support for the fledgling employee bargaining agency, and direct that the locals and the fledgling employee bargaining agency withdraw the application for certification.

115. And in fact, that is precisely what the American parent purported to do in this case: it put the OPC in receivership, then purported to act on its behalf in seeking to withdraw the section 154 application. According to the American parent, the receiver now spoke for the local unions and local union members, so the receiver was entitled to withdraw their application to form a new provincial bargaining agency composed only of the Ontario locals/members. Through the use of constitutional controls, the American parent had a veto over institutional change, and a veto over the certification alternative contemplated by section 154 of the Act.

116. The applicants allege that these actions were "politically motivated" because of the Ontario locals' opposition to the current slate of international union officers. The applicants say that the real purpose of the receivership is to extract substantial sums ($1.35 per hour) from the pockets of Ontario members, who otherwise would not willingly agree to pay these amounts. The applicants allege that the American parent is not treating other locals in this way: the Ontario locals and the OPC have been singled out for adverse treatment.

117. Beyond that, though, the applicants contend that this purported exercise of constitutional authority is totally inconsistent with the scheme of the Act - giving an American parent a veto over local restructuring, which would render the section 154 mechanism practically meaningless. Indeed, counsel for the OPC points out that, on the responding parties' legal theory, the receiver's authority could also be exercised in respect of the union representatives who speak for the locals and members in the existing designated provincial bargaining agency. On the responding parties' theory, the American parent, using its receivership power, could take over the locals, eject the local officers, and select their replacements on the provincial bargaining agency; so that although the designation would nominally encompass representatives from the American parent as well as the Ontario locals, the actual delegates would be the nominees of the American parent. And that, too, is what counsel fears will happen, because it is the only way that the American parent can secure a contract clause transferring to its account $1.35 per hour from Ontario workers. Thus, counsel says that, quite apart from the unfair labour practice allegations (especially section 87(2) and the "Bill 80 allegations"), this particular constitutional exercise is inconsistent with the statutory scheme.

118. I do not think that it is appropriate to comment on the American parent's "motives", or say much about the validity of the applicants' unfair labour practice allegations. Those questions will be explored by the panel hearing "the merits" of the case; and it may turn out that the facts, when considered in their totality, do not disclose a breach of the Labour Relations Act, or a situation in which the Board would be inclined to intervene. However, what I have tried to elaborate, and what I think it is important to understand, is the relationship between these internal union developments, on the one hand, and the collective bargaining institutions and processes regulated by the statute, on the other. It is that tension which is being tested in the application under section 154 of the Act, the collateral unfair labour practice litigation, and this application for interim relief.

VIII - Is some "interim order" necessary, and, if so, what form should it take?

119. I am satisfied on the basis of the material before me that the applicants have made out at least an "arguable case" that the responding parties' behaviour involves a "traditional unfair labour practice" (i.e. a breach of section 76 or 87(2)), as well as a breach of the special construction industry regulations found in section 149 of the Act.

120. It is certainly arguable that the actions and sanctions initiated by the American parent were intended to, or had the effect of, interfering with the exercise of rights under the statute. Likewise, it is arguable that those actions might be construed as a form of "penalty" because the OPC and its officers have launched a proceeding under section 154 or propose to participate in that proceeding and give evidence as necessary. Moreover, I think that these propositions are "arguable", whether or not, as the OPC claims, the American parent's actions are tainted by inappropriate political motives.

121. I am also satisfied that it is quite arguable that the receivership was undertaken "without just cause", and/or that the particular actions of the receiver in respect of the section 154 application or the Ontario bargaining, might be subject to successful review under section 149(4). It is, to say the least, a novel proposition to suggest that an American parent can effectively insulate itself from challenge under section 154 of the Act, by the simple expedient of putting all of the Ontario locals under trusteeship and dismissing their local officers; and while counsel for the union is correct that section 89 of the Act contemplates the possibility of a "receivership", I am not aware of any body of law supporting what the receiver has tried to do, or reserves his right to do here - especially in light of the Bill 80 provisions referred to earlier.

122. In the context of statutorily-regulated provincial collective bargaining, it is also novel to assert, as the American parent does, that it can require Ontario local unions holding bargaining rights for Ontario workers to assert collective bargaining demands which do not reflect the wishes of the Ontario locals or their members - particularly when the locals are recognized on the designation order (via the OPC) in precisely the same way as the American parent. Moreover, it is not seriously disputed that, until recently, local affairs and local bargaining have been conducted under the umbrella of the OPC, without a prominent role for the American parent.

123. Perhaps the conclusion urged by the American parent does indeed flow from the fact that the Ontario locals and the Ontario members are part of an international union and bound by its constitution. But the proposition is not intuitively obvious.

124. It seems to me, that when the provincial regulatory framework is considered as a whole, section 154 was intended to provide a means by which local unions can restructure their provincial bargaining agency, based upon majoritarian principles. That provincial bargaining agency may, but need not, include the parent union; and I agree with the applicants' submission that the thrust of the section would be substantially undermined if an American parent union could frustrate a section 154 application by means of a receivership.

125. It seems to me that if the Legislature had intended to create a veto for an American parent, it would have done so explicitly - particularly where, as here, the American parent has never acquired bargaining rights for the workers of Ontario employers, has never played a dominant role in bargaining, and is present on the designation solely as a result of the exercise of Ministerial discretion in 1978.

126. Since there have been no previous applications under section 154, it is not quite clear how an application like that should unfold. (I note, for example, that the American parent does not want the application to proceed at all, and resists the possibility of a membership vote, while the OPC welcomes the prospect of a vote but does not think that it is necessary.) What is clear, is that the scheme of the Act suggests that these matters should be dealt with in a timely fashion, prior to the onset of the next round of bargaining, so that that bargaining can be conducted by a bargaining agency representative of the interests of Ontario locals. That is why the statute prescribes that a section 154 application should be made during a 2-month window prior to the termination of the provincial agreement. And that is what the OPC has done.

127. In my view, the appropriate balance of interests in this case - the balance to be preserved by an appropriate interim order - is one in which the section 154 application can proceed in a timely fashion, without interference by the receiver appointed by the American parent union. I agree with counsel for the OPC that it would require very clear statutory language before one party to a legal proceeding was given the right to deprive another party of the right to proceed. No such language is present in this case, nor does it flow from the "private law" considerations spelled out in the constitution of the American parent.

128. It seems to me that the statute itself provides the mechanism by which the parties can sort out their differences on the identity and composition of the provincial bargaining agency. The statute itself provides the formula by which this question should be resolved, in accordance with the majorit­arian wishes of the Ontario locals.

129. As a party to the section 154 proceedings, the American parent would be able to make whatever argument it considers appropriate. However, I do not think that it is entitled to use the terms of its constitution to derail the proceeding, or usurp the role and voice of the Ontario locals - a role and voice which is historically entrenched and recognized in the statute itself. For not only is this constitu­tional assertion apparently inconsistent with the scheme of the Act, and "quite arguably unlawful" under Ontario law, but it must also be remembered that the very purpose of the statute is "to facilitate collective bargaining between employers and trade unions that are the freely-designated representatives of the employees". And in this setting, the "freely-designated representatives of the employees" are the local unions: holding bargaining rights, situated in Ontario, and grouped together under the umbrella of the OPC.

130. With these considerations in mind, and pursuant to section 98 of the Labour Relations Act and section 16.1 of the Statutory Powers Procedure Act, the Board directs that the American parent union and its officers or agents (including the receiver) cease and desist from interfering, directly or indirectly, with the section 154 proceedings currently pending before the Board. In particular, the American parent, its officers and agents (including the receiver), shall not interfere with the applicants' right to retain or instruct counsel, and to extend funds for that purpose that are derived from monies paid to the OPC or to the Ontario locals, by Ontario members of the union.

131. I agree with counsel for the American parent that section 149 - unlike section 147 - does not operate automatically to stay the activities of a receiver, whose status is being challenged. However, neither does section 149 provide that the activities of the receiver are immune from scrutiny by means of an interim order, or that the receiver can ignore the legislative scheme, or obligations under the Labour Relations Act. In my view, it is more important that the proceedings before the Board under section 154 and section 96 (the unfair labour practice case) proceed without interference, than that the American union's internal power structure be maintained.

132. The Board therefore further directs that the American parent, its officers and agents, shall not interfere with the unfair labour practice proceedings currently before the Board. In particular, the American parent union, its officers and agents (including the receiver), shall not interfere with the applicants' right to retain or instruct counsel with respect to the unfair labour practice proceedings, or to extend funds for that purpose derived from monies paid to the OPC or the Ontario locals, by Ontario members of the union.

133. The purpose of these interim orders is to ensure that the statutory rights of the parties will be adjudicated in accordance with the scheme of the Act, without interference by the American parent under the terms of its constitution.

134. The Board will remain seized to make such further or other Orders as seem necessary to effect this purpose.

135. Unless a panel of the Board otherwise directs, these interim orders shall remain in effect until these proceedings are completed.

IX - Should some order be made with respect to the upcoming provincial bargaining?

136. Any interim order respecting the upcoming provincial collective bargaining is much more problematic, because the mix of interests is more complicated (employer interests are involved), and because the process is inherently more dynamic and thus unpredictable. Moreover, as a practical matter, collective bargaining is likely to be postponed until the section 154 proceeding is completed and the identity of the employee bargaining agency is confirmed. So any interim order at this stage may be premature.

137. That said, the involvement of the receiver in bargaining raises the same kinds of concerns as it does in respect of the section 154 proceeding: the receiver is asserting authority which may ultimately be declared unlawful, yet by seizing the initiative in this way, the American parent may achieve an advantage that is difficult to rectify later.

138. There may be a sustainable basis for putting the OPC into receivership, and for asserting bargaining positions that may not reflect the wishes of the Ontario members. An assessment of $1.35 per hour may well be in the overall interests of the union as a whole. And it may be that although the American parent is only one part of the provincial bargaining agency, it can use its constitutional power to drive the collective bargaining agenda in Ontario.

139. However, it is not at all obvious that this is so, and I am troubled by the fact that the American parent seems to be asserting a bargaining position that is not supported by Ontario members. For however delicately it wishes to put it, the American parent is claiming the right to displace the local officers and to sign a collective agreement without ratification by the workers bound by it. Of course, in the construction industry, a collective agreement can be signed without employee ratification, so the scenario is not, for that reason, inconsistent with the scheme of the Act. But it is inconsistent with the practice for the last 20 years; and if such bargaining position does find its way into the collective agreement, the result might be difficult to unwind later without completely reopening the provincial bargaining.

140. It seems to me, therefore, that the only way to preserve the "status quo", pending the litigation of the parties' rights under the Labour Relations Act, is to direct that collective bargaining proceed, through the auspices of the current designated employee bargaining agency, unless it is changed pursuant to sections 153 or 154 of the Act. Such bargaining must proceed, as it has in the past, in accordance with the OPC constitution, without interference by the receiver or the American parent.

141. As a party to the existing designation, the American parent will have an opportunity to participate in the bargaining as it has done in the past. But unless the propriety of the receivership is sustained and the Board makes no Order under section 149(4), the American parent will not have the right to supplant the Ontario locals, to insist on bargaining positions which are opposed by the Ontario organizations, or to sign a collective agreement, without ratification, over the heads of the Ontario membership.

142. Not to put too fine a point on it: in my view, it is more important that the rights of Ontario workers be sorted out in accordance with the scheme of the Act, than that the American parent assert its constitutional authority or collect its $1.35 per hour - however worthy the cause to which those funds may be devoted. Labour relations policy considerations strongly favour the position asserted by the applicants.

143. In accordance with the observations above, the Board will remain seized in case there is any difficulty implementing these interim orders, or in case any further order may be required; moreover, as is perhaps obvious, the panels hearing the "main applications" can vacate these interim orders and make such other orders as may be called for in the situation which then exists.