[1998] OLRB REP. MARCH/APRIL 308
3519-97-R; 3520-97-R Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftsmen, Applicant v. Terrazzo, Tile and Marble Guild of Ontario Inc. and International Union of Bricklayers and Allied Craftsmen, Responding Parties v. Locals 6, 7 and 25, Intervenors; Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftsmen, Applicant v. Masonry Industry Employers' Council of Ontario and International Union of Bricklayers and Allied Craftsmen, Responding Parties v. Locals 6, 7 and 25, Intervenors
BEFORE: Robert Herman, Alternate Chair.
APPEARANCES: L.A. Richmond, J. Coelbo, T Oldham, K. Wilson, A. Leduc, J. Haggis, D. Buttazzoni and L. Scodellaro for the applicant; Donald K. Eady and Andrew C. Lewis for the International Union of Bricklayers and Allied Craftsmen, and its Locals 7 and 25; Damian Rigolo for Masonry Industry Employers' Council of Ontario; Bob Sanelli for Terrazzo. Tile and Marble Guild of Ontario Inc.
DECISION OF THE BOARD; April 28, 1998
These are similar applications filed pursuant to the provisions of section 154 of the Labour Relations Act, 1995. This section was introduced into the Act as part of the 1978 amendments, which imposed a province-wide bargaining scheme for the industrial, commercial and institutional ("ICI") sector of the construction industry. Section 154 reads as follows:
(I) 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.
The Employee Bargaining Agency (the use of capitals is meant to indicate the designated or certified Employee Bargaining Agency, as contrasted with an entity which is an "employee bargaining agency", but not so designated or certified, and therefore is described without capital letters) designated by the Minister on March 29, 1978 for both trades was a combination of the responding party, the International Union of Bricklayers and Allied Craftsmen (the "International"), and the applicant, the Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftsmen (the "OPC"). In each application, the OPC applies under section 154 to be "certified" by the Board to alone become the Employee Bargaining Agency, and as such, to be authorized (as statutorily required) as the exclusive bargaining agent for bargaining in the ICI sector in the province for the unionized employees or members of the particular trade. The OPC seeks to oust the International from being part of the designated Employee Bargaining Agencies.
It is agreed that these applications are timely. This matter was originally heard on February 17, 1998, at which time a preliminary issue was raised by the International: whether the OPC qualified as an "employee bargaining agency", within the meaning of section 154(1) of the Act. The International asserted that the applicant was not an "employee bargaining agency", and did not therefore have standing to bring these applications. The Board reserved on that issue at the conclusion of that day.
The hearing was scheduled to resume on February 20, 1998, and to enable the hearing to proceed, the Board issued a short "bottom line" decision on February 18, 1998, as follows:
For reasons to issue later, the Board is satisfied that the applicant is an "employee bargaining agency" within the meaning of section 151(l)of the Act, and as such, is entitled to bring the instant applications pursuant to section 154 of the Act.
The hearing will continue as scheduled on Friday, February 20, 1998.
At the commencement of the hearing on February 20, 1998, the International advised the Board that it had imposed a receivership on the OPC, and had so advised the OPC approximately 15 minutes earlier. The International had done so, it asserted, in order to become legally authorized to act on behalf of the OPC in these proceedings, and thereby be able to withdraw these applications, ensuring that the International's interests would continue to be represented in bargaining. The International submitted that the effect of the receivership was that it now spoke for the OPC, and the OPC on its own no longer had standing in these applications. The International then sought to withdraw the applications.
After hearing submissions from the parties as to the effects and consequences of these acts by the International, and as to the orders the Board ought to issue in the circumstances, the Board adjourned the proceedings, without ruling upon the request of the International that the applications be withdrawn, in order to permit the applicant an opportunity to file applications with the Board challenging the receivership and the purported withdrawal of the applications.
At the same time, the Board ordered and directed that the International take no action that would seek to or have the effect of withdrawing or ending these two applications, until the Board ordered otherwise or the parties otherwise agreed. The Board also scheduled further dates, on the agreement of the parties, to deal with the applications that the applicant had indicated it would be filing, and other later dates for the continuation of the instant applications.
The OPC subsequently filed with the Board several applications which challenged the actions of the International with respect to the receivership. Ultimately, in a decision dated April 2, 1998 (as yet unreported, Board File Nos. 4532-97-M and 4533-97-U the "MacDowell" decision), the Board (differently constituted) made various orders and directions as follows:
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.
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.
It seems to me, therefore, that the only way to preserve the "status quo", pending the litigation of the parties' rights under the Labour Relation 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 America parent.
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.
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.
The instant applications then came back on for hearing, as previously scheduled.
Before turning to the issues that arose at the continued hearing, following are the reasons for the "bottom line" decision of February 18, 1998, deciding that the OPC was an "employee bargaining agency", and as such was entitled to bring the instant applications.
The parties had agreed, for purposes of this issue, that no viva voce evidence was needed, and the Board could rely upon the materials filed.
Both designations name the International and the OPC as the Employee Bargaining Agency. They also both name each of them as affiliated bargaining agents, along with Locals 1, 2, 3, 4, 5, 6, 7, 8,9, 10,11.12,13,14, 16, 17,20,23,25,28,29,30,31,33and36.
The International argued that the applicant had no standing to bring these applications, as it was not itself a designated Employee Bargaining Agency. In its submission, section 154 is only available in two circumstances. First, it can be used by a designated Employee Bargaining Agency, but not by any component or subset of the Employee Bargaining Agency, even if the applicant is a union that qualifies as an "employee bargaining agency", within the meaning of section 151(1). Second, application under section 154 could be made by a union with respect to a new trade, for which there is not and has never been a designation.
The International relies upon the wording of section 151(1), which defines "employee bargaining agency" without reference to whether it is designated or not. As well, it notes that section 154(1) refers to the employee bargaining agency, "whether designated or not". The combination of these two sections, it submits, yields the conclusion that section 151(1) establishes the types of organizations or unions that can be designated by the Minister, but once a designation is made, it "occupies the field" for that trade. The phrase "whether designated or not", in section 154(1), refers to the designated Employee Bargaining Agency (where the Minister has designated), and only the designated Employee Bargaining Agency, or to an employee bargaining agency that is no part of any designation. It does not encompass part of a designated Employee Bargaining Agency.
Further, asserts the International, the fact that there is no provision in the Act which indicates that the effect of becoming certified under section 154 is to become authorized to act as the designated Employee Bargaining Agency formerly did, supports the argument that it is only the currently designated Employee Bargaining Agency, or a union no part of any designation, which can utilize the provisions of section 154. In both these cases, the effect of being certified under section 154 does not create a conflict with an existing Employee Bargaining Agency. In the International's submission, if the Legislature had intended that a subset of a current Employee Bargaining Agency could apply to be certified, it would have stated in the legislation that the effect of being so certified was to supplant or displace the rights of the designated Employee Bargaining Agency. Its failure to describe which Employee Bargaining Agency would be the bargaining agent, the one designated or the one certified, suggests it did not intend that section 154 be utilized in a manner that would create the potential of having two authorized employee bargaining agencies, a state inconsistent with the provincial scheme.
It is helpful to set out other relevant sections of the Act. Sections 151(1), 153, 156, 157, 162 and 163 read as follows:
(1) In this section and in sections 144 and 152 to 168,
"affiliated bargaining agent" means a bargaining agent that, according to established trade union practice in the construction industry, represents employees who commonly bargain separately and apart from other employees and is subordinate or directly related to, or is, a provincial, national or international trade union, and includes an employee bargaining agency; ("agent négociateur affilié")
"bargaining", except when used in reference to an affiliated bargaining agent, means province-wide, multi-employer bargaining in the industrial, commercial and institutional sector of the construction industry referred to in the definition of "sector" in section 126; ("négociation")
"employee bargaining agency" means an organization of affiliated bargaining agents that are subordinate or directly related to the same provincial, national or international trade union, and that may include the parent or related provincial, national or international trade union, formed for purposes that include the representation of affiliated bargaining agents in bargaining and which may be a single provincial, national or international trade union; ("organisme négociateur syndical")
"employer bargaining agency" means an employers' organization or group of employers' organizations formed for purposes that include the representation of employers in bargaining; ("organisme négociateur patronal")
"provincial agreement" means an agreement in writing covering the whole of the Province of Ontario between a designated or accredited employer bargaining agency that represents employers, on the one hand, and a designated or certified employee bargaining agency that represents affiliated bargaining agents, on the other hand, containing provisions respecting terms or conditions of employment or the rights, privileges or duties of the employer bargaining agency, the employers represented by the employer bargaining agency and for whose employees the affiliated bargaining agents hold bargaining rights, the affiliated bargaining agents represented by the employee bargaining agency, or the employees represented by the affiliated bargaining agents and employed in the industrial, commercial and institutional sector of the construction industry referred to in the definition of "sector" in section 126.
- (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 (1), 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 (1) 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 (I).
Where an employee bargaining agency has been designated under section 153 or certified under section 154 to represent a provincial unit of affiliated bargaining agents, all rights, duties and obligations under this Act of the affiliated bargaining agents for which it bargains shall vest in the employee bargaining agency, but only for the purpose of conducting bargaining and, subject to the ratification procedures of the employee bargaining agency, concluding a provincial agreement. ~
Where an employer bargaining agency has been designated under section 153 or accredited under section 155 to represent a provincial unit of employers,
(a) all rights, duties and obligations under this Act of employers for which it bargains shall vest in the employer bargaining agency, but only for the purpose of conducting bargaining and concluding a provincial agreement; and
(b) an accreditation heretofore made under section 136 of an employers' organization as bargaining agent of the employers in the industrial, commercial and institutional sector of the construction industry, referred to in the definition of “sector" in section 126, represented or to be represented by the employer bargaining agency is null and void from the time of such designation under section 153 or accreditation under section 155.
162.(1) An employee bargaining agency and an employer bargaining agency shall make only one provincial agreement for each provincial unit that it represents.
(2) Subject to sections 153 and 161, no person, employee, trade union, council of trade unions, affiliated bargaining agent, employee bargaining agency, employer, employers' organization, group of employers' organizations or employer bargaining agency shall bargain for, attempt to bargain for, or conclude any collective agreement or other arrangement affecting employees represented by affiliated bargaining agents other than a provincial agreement as contemplated by subsection (I), and any collective agreement or other arrangement that does not comply with subsection (1) is null and void.
(3) Every provincial agreement shall provide for the expiry of the agreement on April 30 calculated triennially from April 30, 1992.
163.(1) Section 57 does not apply to a designated or accredited employer bargaining agency or a designated or certified employee bargaining agency.
(2) A provincial agreement is, subject to and for the purposes of this Act, binding upon the employer bargaining agency, the employers represented by the employer bargaining agency, the employee bargaining agency, the affiliated bargaining agents represented by the employee bargaining agency, the employees represented by the affiliated bargaining agents and employed in the industrial, commercial and institutional sector of the construction industry referred to in the definition of "sector" in section 126, and upon such employers, affiliated bargaining agents and employees as may be subsequently bound by the said agreement.
(3) Any employee bargaining agency, affiliated bargaining agent, employer bargaining agency and employer bound by a provincial agreement shall be considered to be a party for the purposes of section 133.
The OPC was organized as a provincial conference, pursuant to the provisions of the constitution of the International, on October 7, 1908. It has its own constitution, also approved pursuant to the constitution of the International. The powers and responsibilities of the OPC, described in its constitution and by-laws, include the power to organize and the authority to promote or establish wages, hours and other working conditions. These powers are derived from the provisions of the International Constitution itself, which authorizes the OPC to "bargain collectively on behalf of the members of some or all of its constituent locals, if these locals have authorized the [OPC] to do so ...". All the Ontario locals are members of the OPC, and have authorized the OPC to undertake negotiations on their behalf.
Under the OPC constitution, provincial bargaining is to be done by the OPC, through the vehicles of a Bargaining Committee and a Steering Committee, and since 1973, the OPC has in fact been bargaining on a province-wide basis for all the Ontario Locals. As well, almost all bargaining rights have been acquired and held in the name of the individual local, or the OPC, and not the International. Through an accreditation of the OPC, issued by the Board in May, 1975, the OPC by law became entitled to exercise bargaining rights for locals across the province.
In 1978, the new ICI provisions became part of the Act, and the Minister named the International as a component or part of the designation of the Employee Bargaining Agency for these trades. Only then did the International acquire any right to bargain on behalf of members or to execute the provincial agreements. For practical purposes, it remained the OPC that bargained for the affiliated bargaining agents (as the locals were now referred to in the ICI sector), and the members they represented. The role of the International was primarily to endorse any provincial agreement that was negotiated.
In 1985, the OPC was found to be a "council of trade unions", within the meaning section 12 of the Act.
On these facts, does the OPC meet the definition of "employee bargaining agency" set out in section 15 1(1)? The short answer is yes. The OPC is itself an "affiliated bargaining agent", within the meaning of this phrase in section 151(1). The OPC is also an "employee bargaining agency", as it is also an organization of affiliated bargaining agents which are subordinate or directly related to the same international trade union, here the responding International, which was formed for purposes that include the representation of the affiliated bargaining agents in bargaining. Not only was the OPC formed in part for this purpose, it has also in fact represented all the affiliated bargaining agents in provincial bargaining, and for some considerable time. Since approximately 1973, the OPC has both bargained for all locals and been the representative provincial body responsible for administering the province-wide collective agreement, or the "provincial agreement", as it has been referred to since 1978. The OPC therefore both meets the statutory definition of "employee bargaining agency" in section 15 1(1) and has in fact acted as such.
As an "employee bargaining agency" within the meaning of section 151(1), can the OPC apply under section 154(1)? The words used in that section state that an "... employee bargaining agency, whether designated or not, may apply to the Board to be certified ...". These words are clear and unambiguous. If an organization meets the definition of "employee bargaining agency", within the meaning of section 151(1), as the OPC does, then whether or not it has been designated as the Employee Bargaining Agency by the Minister, it is entitled to bean applicant under section 154(1) of the Act.
Both the statutory scheme and labour relations policy support this interpretation. The MacDowell decision discussed the statutory scheme and policy at some length. In that decision, the Board wrote:
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.).
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.)
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).
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
This question of "subordination" is worth some further reflection.
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.
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.
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.
It seems tome 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.
Under the province-wide statutorily imposed scheme, the Employee Bargaining Agency has exclusive authority to bargain on behalf of the affiliated bargaining agents it represents (section 156), and there can only be one provincial agreement in effect (section 162(1)). It must follow that there can only be one Employee Bargaining Agency, at any point in time, holding and exercising the exclusive authority enjoyed by an Employee Bargaining Agency. To have two employee bargaining agencies, each with some overlapping, co-existent, or partial authority to bargain, would be inconsistent with other provisions of the Act, and would effectively undermine the statutory province-wide structures and mechanisms of bargaining in the ICI sector.
The structure of bargaining in the ICI sector requires a single representative organization for each trade, solely responsible for all bargaining in the province. One organization represents the unions, and one represents the employers. These are the Employee Bargaining Agencies and the Employer Bargaining Agencies, and they are similarly established, either through Ministerial designations or certification by the Board. These are mirror organizations, the "yin and yang" of provincial bargaining, if you will, and they bargain with each other, to achieve one provincial agreement. Where an Employee Bargaining Agency has been certified, it becomes the only Employee Bargaining Agency with bargaining authority in the ICI. To have two Employee Bargaining Agencies at any one time (that is, two employee bargaining agencies with any legal authority to be the exclusive bargaining agent for the statutory purposes and with the statutory powers set out in the Act) would completely upset the core aspects of the province-wide scheme: one Employee Bargaining Agency, one Employer Bargaining Agency, one provincial agreement.
Section 156 makes this reality clear. It refers to the vesting of rights in the Employee
Bargaining Agency, whether designated under section 153 or certified under section 154. Whatever method of becoming the Employee Bargaining Agency has been chosen or utilized, only one Employee Bargaining Agency will have the authority to bargain.
The words used in section 154 also reflect the same two procedures for becoming authorized as the Employee Bargaining Agency, where they say "whether designated or not". Surely these words indicate two methods by which an employee bargaining agency can acquire the status of Employee Bargaining Agency, authorized under the statute to bargain in this sector. The timeliness limitation in section 154(1) is further support for this view. The open period is defined as between the "120th and 180th days prior to the termination of a provincial agreement", limiting applications to change the Employee Bargaining Agency to the period at least four months before the end of the agreement. The intent is to have the new, exclusive, Employee Bargaining Agency in place when bargaining begins. If the certified Employee Bargaining Agency did not replace the designated Employee Bargaining Agency in bargaining, why link this time limitation to the end of the term of the agreement?
The wording of section 153 is to the same point. Section 153 is the section granting the Minister the power to designate the Employee Bargaining Agency, and the Employer Bargaining Agency. Subsection 153(5) limits the power of the Minister to change designations, making the power subject to the overriding authority of the Board to certify under sections 154 or 155. The Minister would be unable to designate an Employee Bargaining Agency for a trade if an Employee Bargaining Agency had been certified by the Board under section 154, suggesting that a certified Employee Bargaining Agency has the powers previously enjoyed by the designated Employee Bargaining Agency.
The International argues that only a trade union engaged in a new trade, one not covered as yet by any designation, or the currently designated Employee Bargaining Agency, can utilize the provisions of section 154. Such an interpretation makes little sense. With respect to a new trade, it is unclear how a new trade in construction could be represented by a "trade union" that would qualify as a "trade union" within the meaning of section 126 of the Act, or an "employee bargaining agency" within the meaning of section 151(1). If such a union were not so qualified, it could not utilize section 154 (cf. Ontario Hydro, [1997] OLRB Rep. Jan./Feb. 82, at ¶31 and following). Nor is it apparent how any new trade could develop in a way or to a point where none of the current craft construction unions could legitimately claim jurisdiction under their current designation orders, constitutions, or jurisdictional practices. This theoretical suggestion for a different meaning and application of section 154(1) is so unlikely as to be virtually impossible.
The other asserted use of section 154, as an avenue that only the currently designated Employee Bargaining Agency can use in order to immunize itself from any Ministerial amendment to its designation, appears quite unlikely on the language of the section. Even if the language could be said to support this interpretation, no rational policy for such a reading is evident. It is difficult to discern the policy thrust behind an interpretation that holds that the section is there to allow the currently designated Employee Bargaining Agency to attempt to protect itself from Ministerial change to its bargaining rights, and to do so by establishing the double majority required by section 154(2), while at the same time denying an employee bargaining agency the right to apply to be able to exercise the same bargaining rights by establishing the same double majority. For any employee bargaining agency that can satisfy the Board that it represents a majority of affiliated bargaining agents, which hold bargaining rights for the majority of employees, it should be able to become authorized legally to bargain on their behalf. This is not to suggest that the designated Employee Bargaining Agency cannot utilize section 154; only that other employee bargaining agencies can as well.
To adopt the International's interpretation would have the effect of overriding the legislative direction that makes the Minister's power to amend designations subject to the certification by the Board of an Employee Bargaining Agency. If the International is correct, then once a designation issued, only the designated Employee Bargaining Agency would be entitled to apply to become certified as the Employee Bargaining Agency. On this theory, a designation order would itself have the effect of precluding an entity not designated from applying to be certified. In practical terms, the exercise of the designation authority of the Minister would preclude any certification by the Board inconsistent with the designation, yet it is clearly the intent of sections 153(5), 154(1), and 156 that Ministerial designations constitute only one method of becoming the Employee Bargaining Agency, and that that method be subject to an override by a certificate.
For all these reasons, the Board issued the "bottom line" decision of February 18, 1998, concluding that the OPC was an "employee bargaining agency" within the meaning of section 15 1(1) of the Act and was entitled to apply to be certified under section 154(1) of the Act.
When the hearings in these applications resumed, on April 16, 1998, the Board dealt with whether the OPC met the requirements of section 154(2). Again, section 154(2) reads:
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.
There were some additional facts placed before the Board, but they again were agreed to, and no viva voce evidence was heard.
It is worth setting out some of the facts. Prior to 1978, the OPC, by virtue of both its constitution and the constitution of the International, had represented all the locals for many years, and since 1973, had represented them in provincial bargaining in the province. In 1975, the OPC was accredited by the Board for bargaining on a provincial scope. During this period, the International had a very limited role in provincial bargaining, but it did hold some bargaining rights in its own name.
After 1978, and after the Minister had designated the combination of the International and the OPC as the Employee Bargaining Agency for these two trades (i.e. bricklaying and terrazzo, tile and marble), the OPC nevertheless remained the entity that was the active and predominant negotiator for the provincial agreements, although both the OPC and the International signed each provincial agreement. In 1985, the OPC was certified by the Board as a "council of trade unions", within the meaning of section 12 of the Act.
In June, 1997, an OPC Convention was held for both trades. The Convention was called and held pursuant to the appropriate procedures under the constitutions of both the International and the OPC. Also according to those constitutional provisions, delegates were chosen to attend. A Resolution was passed at the Convention, which read, in part, as follows:
"The Executive Board is directed to take all legal and political action necessary to remove the International Union from the provincial bargaining designations."
The Minutes of the Convention show that this Resolution was passed by the delegates, with no indication that any delegates opposed it.
When the instant applications were filed, the OPC was directed by the Board to serve a copy of the application on every affiliated bargaining agent in the province, and in turn, the affiliated bargaining agents were directed by the Board to file responses, if they wished to participate in the applications or wished to receive further notice of them. In response, three affiliated bargaining agents (Locals 6, 7 and 25) filed representations indicating opposition to the applications, and asking that the International not be removed from provincial bargaining.
There are sixteen affiliated bargaining agents in the province with respect to these trades: the International, the OPC, and Locals 1, 2, 4, 5, 6, 7, 10, 12, 20, 23, 25, 28, 29 and 31. Four of them, including the International, have indicated opposition to the applications of the OPC to remove the International as part of the Employee Bargaining Agency.
Given the Resolution that was passed at the Convention and the fact that the Convention took place relatively recently, and given the notice provided in these proceedings to all the affiliated bargaining agents and the fact that only four of them have indicated they are opposed to these applications, the Board concludes that a majority of the affiliated bargaining agents support the instant applications.
The first question under section 154(2) is whether the OPC has satisfied the Board that "a majority of the affiliated bargaining agents falling within the provincial unit are represented by the employee bargaining agency".
The OPC argues that it has, since at least 1978, "represented" all the affiliated bargaining agents in the province, by virtue of the designation order naming it as part of the Employee Bargaining Agency, and by operation of law. It asserts that the effect of being designated is that the Employee Bargaining Agency is legally entitled to and required to represent all affiliated bargaining agents, regardless of the wishes of the particular affiliated bargaining agent. Further, given the constitutional provisions of the International and the OPC, it is the OPC, and not the International, that in fact has represented all the affiliated bargaining agents in bargaining, since 1973. The OPC submits, therefore, that it "represents" all the affiliated bargaining agents. It also asserts, with respect to the second majority necessary under section 154(2), that it therefore represents all the employees who would be bound by a provincial agreement, by virtue of its representation of all of the affiliated bargaining agents.
The International relies upon the same statutory provisions and designation orders, but to opposite effect. It submits that the Employee Bargaining Agency is not, by operation of law, and regardless of the constitutional provisions and the actual conduct of provincial bargaining, only the OPC. Both the OPC and the International are part of the designated Employee Bargaining Agency, and therefore both together, and indivisibly, represent all the affiliated bargaining agents. It is the designated Employee Bargaining Agency (the OPC and the International) that owes the duty to represent fairly under section 167, and not only the OPC. It is the designated Employee Bargaining Agency (the OPC and the International) that must execute and sign the provincial agreements, not only the OPC. It is the designated Employee Bargaining Agency (the OPC and the International) that has represented all the affiliated bargaining agents, not only the OPC. The International essentially repackages and reasserts the position it took with respect to the preliminary issue (the parties did not have the Board's reasons for its "bottom line" decision when these submissions were reasserted), that a part or component of a designated Employee Bargaining Agency cannot, as a matter of law, "represent" the affiliated bargaining agents, since as a matter of law it is only the designated Employee Bargaining Agency itself which is legally able to do so.
Without repeating the analysis and comments made above in disposing of the preliminary issue, again the Board turns to the language of section 154, and the policy purpose behind it. This section is in the Act to provide a vehicle by which an employee bargaining agency, which has in fact been representing affiliated bargaining agents, can apply to the Board to be certified to replace or supplant the designated Employee Bargaining Agency. This labour relations purpose can be derived from the overall scheme of the legislation, and more particularly, in the use of the phrase, in section 154(1), "whether designated or not", in the imposition in section 154(1) of an open period outside which such applications are not permissible and the linking of that open period to the termination date of the provincial agreements, and in the approach taken in section 154(2) itself.
The language used in section 154(2) is instructive. The Board is to be satisfied that a majority of the affiliated bargaining agents are "represented" by the employee bargaining agency. To give this section meaning consistent with its purpose, this cannot be reference only to the designated Employee Bargaining Agency, and its representation rights. A majority of the affiliated bargaining agents are always by law represented by the Employee Bargaining Agency in provincial bargaining, and by no other entity. The statutory scheme mandates this. To read section 154(2) in this fashion would render the section essentially meaningless since an employee bargaining agency (not so designated) could never, by law, claim to alone "represent" any affiliated bargaining agent in provincial bargaining.
The interpretation consistent with both the language and policy of the section is to read the first majority referred to in section 154(2) as meaning that a majority of the affiliated bargaining agents are "represented" by the employee bargaining agency, if also "represented" by the International, when together both unions represent the affiliated bargaining agents through the vehicle of being designated together.
The affiliated bargaining agents are therefore "represented" by both the OPC and the International, within the meaning of section 154(2). It matters not that the constitutions of the International and the OPC have given the OPC the sole right and obligation to represent the affiliated bargaining agents, it matters not that the Board accredited the OPC in 1975, and it matters not that the Board certified the OPC as a council of trade unions in 1985. Nor does it matter that defacto the OPC has been representing the affiliated bargaining agents in provincial bargaining, even subsequent to the Imposition of the province-wide scheme. Regardless of these other circumstances or events, and indeed despite them, the Ministerial designation itself entitled and obligated the OPC to "represent" all the affiliated bargaining agents in the province, albeit it was required to do so along with the other half of the Employee Bargaining Agency, the International.
That the OPC can claim it "represents" the affiliated bargaining agents by virtue of the designation of it as part of the Employee Bargaining Agency is not, however, sufficient to meet the first majority required in section 154(2). The OPC must demonstrate more than the fact that it represents the majority of the affiliated bargaining agents in bargaining. For the Board to be satisfied, it must also demonstrate that it represents a majority of the affiliated bargaining agents for purposes of the applications themselves. Section 154 provides a procedure by which an employee bargaining agency, supported by the majority of the affiliated bargaining agents which it represents (which in turn hold bargaining rights for the majority of employees who would be covered by the provincial agreement), can seek to become the Employee Bargaining Agency, the only Employee Bargaining Agency authorized to represent the affiliated bargaining agents. The first majority required by section 154(2) is designed to ensure that the majority of affiliated bargaining agencies actually support the attempt to change the exclusive provincial bargaining agent. This is why a majority of support from the affiliated bargaining agencies is required for the applications themselves, and why a demonstration only that the applicant represents in bargaining all the affiliated bargaining agents will be insufficient.
If an employee bargaining agency could meet the first majority test solely on the basis of its statutorily authorized role in bargaining, then virtually every union that is part of a designated Employee Bargaining Agency could apply under section 154. For many designations, the International and the provincial representative body together comprise the designated Employee Bargaining Agency. If this status was all that was demanded in order to establish representation of the majority of the affiliated bargaining agents, then every International could apply to be certified as the Employee Bargaining Agency, as could every provincial representative body, provided in each case the International or the provincial body was part of the designation. Indeed, one component of the designated entity could apply to be certified, and be successful, only to have the other union apply the next day. On this theory, both unions would, by virtue of being part of the designation, meet the requirements of section 154(1) and (2). An interpretation of the section that makes no assessment of the wishes of the affiliated bargaining agencies would undermine the intent of the section.
On the facts, the Board is satisfied that a majority of affiliated bargaining agents support the instant applications. The Resolution passed at the Convention was quite specific, and reflects support for actions specific to the removal of the International from the designations. The instant applications clearly constitute steps to accomplish that end. The Convention was held relatively close in time to the applications being filed, and it can be reasonably inferred that they still represent the wishes of the affiliated bargaining agents. If any doubt existed that a majority of the affiliated bargaining agents supported these applications, it would have been removed when only four of them, including the International, registered any objection to the applications. It is extremely probable and a logical inference in the circumstances that only affiliated bargaining agents that have indicated so in these proceedings are not supportive of these applications.
The affiliated bargaining agents which are in support of these applications are therefore Locals 1, 2,4, 5,10, 12, 20, 23, 28, 29 and 31 (not all the affiliated bargaining agents in the designation order continue to exist as active locals). These affiliated bargaining agents do represent a majority of those represented by the OPC.
The next question is whether this majority of affiliated bargaining agents (those in favour of these applications) "holds bargaining rights for a majority of employees that would be bound by a provincial agreement".
The Board must be satisfied that the majority of affiliated bargaining agents supporting the applications also hold the bargaining rights for the majority of employees. The Board is not asked to ascertain the wishes of individual employees, as to whether they support the applications. The wishes or preferences of the employees represented by each affiliated bargaining agent are an internal union matter, presumably canvassed by the affiliated bargaining agents when delegates were selected to the June, 1997 Convention, or even when individual affiliated bargaining agents made the decision to support or oppose the instant applications. Perhaps employee wishes were assessed in some other fashion or not at all. In any event, section 154 leaves it to the affiliated bargaining agents to make the decision as to what position to take. Section 154(2) requires only that those affiliated bargaining agents in favour of the application also hold bargaining rights for a majority of employees. Section 154 provides a platform on which to consider the interplay between the bargaining or representative entities. It does not provide a mechanism which assesses or seeks to assess the wishes of individual employees, except indirectly insofar as the affiliated bargaining agents accurately represent those wishes.
Had the Legislature intended otherwise, it would have been simple to stipulate that employee wishes were to be considered in some fashion, through a required vote or an option to hold a vote, or through any expression that suggested that employee wishes ought to be a factor under this section. To the contrary, section 154(2) is quite clear and speaks only to whether the affiliated bargaining agents in question "hold[s] bargaining rights for a majority of employees ..." The Board is to be satisfied with respect to representational rights, and whether the supporting affiliated bargaining agencies represent the majority of employees.
In order to make the determination of whether the majority of affiliated bargaining agents hold the bargaining rights for the majority of employees, the assessment must be made with reference to some particular point in time. The number of employees represented by the affiliated bargaining agents will fluctuate over time, as new employers become organized by the unions, or as work forces ebb and flow. Terminations of existing bargaining rights will not come into play, since the open period for applications under section 154 ends before the beginning of the open period for terminations in this sector, unless the Board were to focus on a time, for ascertaining this majority, after the end of the open period under section 154(1).
In determining the appropriate focal point, the open period in section 154(1) is helpful. It seems both appropriate and fair to make the assessment as to whether the affiliated bargaining agents in question hold bargaining rights for the majority of employees with reference to this same period, a period set by the Legislature as being appropriate for bringing these applications, and a period ending 120 days before the end of the provincial agreements. It is that period that the Board will focus on.
The application date itself would seem to be the most logical, appropriate, and fair date, within the open period, at which to assess whether the majority of bargaining rights are held by the majority of affiliated bargaining agents in support of the applications. No other date, or principle for picking a date, suggests itself.
In light of the fact that twelve out of sixteen affiliated bargaining agents support the application, or eleven out of fourteen, if one were not to count the OPC or the International in this tally, and that the majority of 11 or 12 includes Local 2, which the Board understands has the largest number of members of any affiliated bargaining agent in the province, it is exceedingly likely that the majority of affiliated bargaining agents also hold bargaining rights for the majority of employees who would be covered by a provincial agreement. This is the logical inference on the facts. Nevertheless, the submissions at the last day of hearing did not focus on this point, and the Board will afford a further opportunity to the parties to address this issue, and to submit any facts that might suggest otherwise.
Because it appears so likely that the applicant satisfies this requirement, and because it is such a logical inference on the evidence which is before the Board, the Board will certify the OPC as the Employee Bargaining Agency unless a party asserts that this inference is incorrect, and provides sufficient information in support of this assertion. If within ten days from the date of this decision no representation is received to the contrary with respect to this fact (whether the majority of affiliated bargaining agents who support this application, as found above, also hold bargaining rights for the majority of employees) then the Board will issue the certificates forthwith.
However, if the International or Locals 6, 7, or 25 wish to contend otherwise, and wish to assert that the affiliated bargaining agents in support of these applications did not as of the application date hold bargaining rights for the majority of employees who would be bound by the provincial agreement, then any of these parties shall file with the Board, within the same ten days, and deliver a copy of their material directly to all the other parties, all representations they might wish to make in this respect. Upon such filing(s), the certificates will not automatically issue.
The OPC shall have seven days to respond to any submissions so filed, and to submit all representations in support of its position as well, and it also shall deliver its submissions directly to the other parties. In turn, any party which initially filed representations within the first ten day period shall have a further seven days in order to file and deliver a reply to the OPC submissions.
Finally, the Board may deal with this remaining aspect of these applications solely on the basis of the written representations, without a hearing or any further opportunity to make representations.
This matter is referred to the Registrar.