International Brotherhood of Electrical Workers, Local Union 1788 v. International Brotherhood of Electrical Workers, 1999 CanLII 20009

[1999] OLRB REP. MARCH/APRIL 202

3616-98-U; 3972-98-M International Brotherhood of Electrical Workers, Local Union 1788, Hany Tomsett, James McDermott, Bryan Bodkin, John Pearson, Greg Chaffey, Hugh Gillies, Jean Guy Methot, Jim Stark, Bruce Halliday, Richard Buehlow, Alexan­der McAslan and Gaetan Rocheleau, Applicants v. International Brotherhood of Electrical Workers and Don Lounds, Responding Parties; International Brotherhood of Electrical Workers, Applicant v. International Brotherhood of Electrical Workers, Local Union 1788, Harry Tomsett, James McDermott, Bryan Bodkin, John Pearson, Greg Chaffey, Hugh Gillies, Jean Guy Methot, Jim Stark, Bruce Halliday, Richard Buehiow, Alexander McAslan, and Gaetan Rocheleau, Responding Parties

BEFORE: Harry Freedman, Vice-Chair, and Board Members A. Haward and G. Pickell.

APPEARANCES: C. M. Mitchell, H. Tomsett and J. McDermott for Local 1788, Harry Tomsett, James McDermott, Bryan Bodkin et al; David McKee and Don Lounds for the IBEW and Don Lounds.

DECISION OF THE BOARD; March 23, 1999

1. A majority of the construction electricians employed by Ontario Hydro who are members of the International Brotherhood of Electrical Workers and its Local 1788 recently decided they wanted to be members of the Labourers' Union. That decision gave rise to these two applications made under the Labour Relations Act, 1995, S.O. 1995, c. 1 (the "Act") as amended. They relate to a dispute between the leadership of the International Brotherhood of Electrical Workers, Local 1788 ("Local 1788") and its parent union, the International Brotherhood of Electrical Workers ("IBEW") arising from the decision of a majority of the working members of Local 1788 to change their bargaining agent.

2. Board File No. 3616-98-U is an application under section 96 of the Act alleging the IBEW violated sections 76, 87 and 149 of the Act. Board File No. 3972-98-M is an application for interim relief under section 98 of the Act in relation to the application in Board File No. 3616-98-U.

3. Counsel for the IBEW moves for the dismissal of the application in Board File No. 3616-98-U on the grounds that it does not disclose a prima facie case for the relief requested by Local 1788 and the individual applicants (the "Individuals") and in the alternative, seeks an interim order directing Local 1788 and the Individuals to abide by the supervision and control assumed by the IBEW pending the Board's determination of the application in Board File No. 3616-98-U as to whether the IBEW had just cause to assume supervision or control of Local 1788.

4. Local 1788 had represented its members in two bargaining units under two collective agreements with Ontario Hydro. Local 1788 had jurisdiction only in respect of employees of Ontario Hydro by reason of a decision made by the IBEW to change Local 1788's jurisdiction. See International Brotherhood of Electrical Workers, [1996] OLRB Rep. Feb. 70. The Labourers' International Union of North America Ontario Provincial District Council (the "Labourers") made successful applications to replace Local 1788 as the bargaining agent for the members of Local 1788 employed at Ontario Hydro. See Ontario Hydro, unreported, Board File Nos. 0214-98-R and 0216-98-R, decisions dated January 21, 1999. Following the Board's decision of December 23, 1998 to count the ballots cast in the representation votes in Board File Nos. 0214-98-R and 0216-98-R and the subsequent decision to certify the Labourers, the executive of Local 1788 began taking steps to wind down the affairs of Local 1788. Discussions which took place prior to the counting of the ballots at the beginning of January (the parties expected that the Labourers would be successful) between Local 1788 and the IBEW about the future of Local 1788 and the winding down of its affairs were not fruitful. The IBEW then sent letters to members of Local 1788 suggesting that members of Local 1788 who wished to remain employed with Ontario Hydro (and be represented by the Labourers) would not be permitted to remain members of Local 1788 which Local 1788 and the Individuals allege were unlawful as being contrary to sections 76 and 87 of the Act. Those letters also indicated that if those members wished to remain as members of Local 1788 or the IBEW they would have to resign their employment with Ontario Hydro. Counsel for Local 1788 characterized those letters as a reprisal for voting in favour of the Labourers and as intimidation in order to compel people to cease being members of Local 1788.

5. Following the filing of the application in Board File No. 3616-98-U, the IBEW assumed supervision or control of Local 1788. Some of the Individuals and Local 1788 have taken active steps to wind down the affairs of Local 1788.

6. Local 1788 is responsible for significant assets despite it no longer holding bargaining rights for employees of Ontario Hydro or for anyone else. Counsel for Local 1788 and the Individuals at paragraph 17 of Schedule B to their application states:

“….Local 1788 has very considerable assets, protected by trust documents and by-laws as follows:

(a) Local Union 1788 Pension Trust Fund;

(b) Electrical Workers Local 1788 Building Association;

(c) IBEW Local 1788/Ontario Hydro Joint Apprenticeship Council;

(d) IBEW Local 1788/Ontario Hydro Joint Lineman Apprenticeship Council;

(e) Local Union 1788 Sick Benefit Fund;

(f) Local Union 1788 Welfare Trust Fund;

(g) Local Union 1788 General Fund."

[references to documents omitted]

7. Local 1788 took prompt action in January to begin winding down its affairs. It purported to amend, for example, the Local Union 1788 Pension Trust Fund agreement (the "Pension Trust Agreement") effective January 18, 1999 to provide that it be wound up if Local 1788 should lose its bargaining rights. Article VI, section 6.01 of the Pension Trust Agreement provides:

'This trust Agreement may be amended in any respect from time to time by written declaration executed by the Union, except that no such amendment shall:

(a) divert the Trust Fund or any part thereof as constituted immediately prior to such amendment to a purpose other than a provision of Benefits as herein defined;

(b) change the manner of designation or number of Trustees; or,

(c) eliminate the requirement of an annual audit; or,

(d) make any provision inconsistent with any Collective Agreement; or

(e) amend this Article VI."

[emphasis added]

The "Union" referred to in section 6.01 of the Pension Trust Agreement is Local 1788. See section 1.14 of the Pension Trust Agreement.

8. The two amendments to the Pension Trust Agreement stated:

'The Agreement and Declaration of Trust as Restated January 25, 1986 is hereby amended pursuant to Article VI as follows:

(1) Article 1.16 is amended to read:

The term "President" shall mean the President of the Union who is elected by the members of the Union or is appointed to fill a vacancy by the Executive Board members, the majority of whom were themselves elected by the members. It shall not apply to a person who is designated the President of the Union by the International Brotherhood of Electrical Workers. A person who was the President of the Union on January 1, 1999 does not cease to be the President of the Union for the purpose of this Agreement and Declaration of Trust because he is removed from such office by the International Brotherhood of Electrical Workers, but continues to be the President of the Union for such purposes until any windup or termination of the Trust is completed or until a new President is elected by the members of the Union in the event there is no windup or termination of the Trust.

(2) Article 6 is amended by adding the following provision:

Article 6.04 Notwithstanding the other sections of Article 7, the Trust shall be wound up if the Union loses its bargaining rights under either the Transmission or Generation Projects Collective agreements The Trustees as of the date of the counting of the ballots that resulted in the loss of such bargaining rights shall continue as Trustees for the purpose of winding up the affairs of the Trust, despite any actions by the International Brotherhood of Electrical Workers to remove such Trustees."

While the Board is not in a position to comment upon the propriety of those amendments, it does appear as if Local 1788 sought to insulate the President of Local 1788 from the consequences of the IBEW imposing supervision or control on Local 1788, at least for purposes of the Pension Trust Agreement. We also observe that the January 18, 1999 amendment purported to amend Article VI of the Pension Trust Agreement in the face of Article VI, section 6.01 (e) expressly prohibiting amendments to Article VI.

9. Local 1788 purported to make similar amendments to the Local 1788 Benefit Trust Agreement (the "Benefit Trust Agreement") also effective January 18, 1999. Article VII, section 7.01 of the Benefit Trust Agreement contains the amending power, permitting the amendment of the Benefit Trust Agreement by written declaration executed by Local 1788, except that section 7.01 (e) of the Benefit Trust Agreement precludes any amendment to Article VII. One of the two amendments purported to amend Article VII. The other amendment related to the President of Local 1788.

10. The test for dismissal of an application for disclosing no prima facie case for the relief requested is a strict one. In our view, the allegations made by Local 1788 and the Individuals ought not to be dismissed on a prima facie motion, particularly where, as here, there are significant labour relations issues with respect allegations that the conduct of the IBEW violated sections 76 and 87 of the Act. It is by no means clear that a trade union can lawfully revoke or threaten to revoke a person's membership if that person chooses to be represented by another trade union in collective bargaining or lawfully require a person to choose between remaining employed or ceasing membership in that union.

11. Furthermore, while the allegation that the IBEW did not have just cause to impose supervi­sion or control over Local 1788 in the face of the action taken by Local 1788 and the Individuals to wind down its affairs is more problematic, we are not prepared, as a matter of the exercise of the Board's discretion, to find that there is no prima facie case in respect of that issue.

12. The Board in International Association of Bridge, Structural and Ornamental Ironworkers, [1982] OLRB Rep. Feb. 233 made the following comments about dismissing applications on the basis of no prima facie case at page 225:

"...where as in the present proceedings, the complaint raises subtle questions of fact that are largely dependent upon the inferences that may properly be drawn from the circumstances and events that occurred over a relatively lengthy period of time, combined with important and relatively complex issues of labour relations law and policy, the Board is of the view that it is not appropriate to dismiss the matter pursuant to section 71(1) without a full hearing on the merits."

In our view, the allegations concerning the IBEW's response to the conduct of Local 1788 and the Individuals gives rise to important labour relations considerations where the raison d'etre of a local union disappears and its members, through their duly elected executive want the affairs of their local union wound down, against the wishes of the parent union. Thus, the motion by counsel for the IBEW to dismiss the application in Board File No. 3616-98-U is, in the exercise of the Board's discretion, dismissed.

13. Counsel for the IBEW seeks an interim order in the event that the Board dismissed the motion to dismiss the application in Board File No. 3616-98-R. It is somewhat unusual for the responding party in an application to seek an interim order, but in our view, there is nothing in section 98(1) of the Act that precludes any party to a proceeding from seeking interim relief. The IBEW seeks an order requiring Local 1788 and the Individuals to allow the IBEW to exercise the supervision or control it has assumed over Local 1788.

14. In our view, the Board's power to grant interim orders under section 98 must be assessed by reference to section 98(2) of the Act. The parties did not address the scope of the Board's power to make interim orders. The IBEW simply submitted that the Board had broad power to grant the interim relief it was seeking while counsel for Local 1788 did not dispute the Board's remedial authority. Rather he submitted that the IBEW could not make a request for an interim order because it was not the party seeking relief in Board File No. 3616-98-R and therefore could not itself establish a prima facie case for interim relief since it was not seeking any relief in that proceeding, the proceeding in which the interim order is being sought. In our view, if the Legislature saw fit to exclude specifically the Board's ability to reinstate an employee from the Board's power to grant interim orders concerning procedural matters, then procedural matters must mean more than simply dealing with evidentiary matters and issues relating to the conduct of a hearing.

15. The IBEW submits that Local 1788 and the Individuals have simply ignored the attempts by the IBEW to assume control and supervision of Local 1788. Counsel for the IBEW points out that the Act does not require a parent union to establish just cause to the satisfaction of the Board before it assumes supervision of a local union under section 149 of the Act. He contrasts section 149 with section 147(5) of the Act which provides that a parent trade union's change of jurisdiction of a local union where the local union affected files a complaint with the Board is not effective until the Board determines the matter. Counsel submits that the Individuals and Local 1788 have, in effect, turned matters on their head by refusing to comply with the direction and supervision assumed by the IBEW until the Board determines the matter.

16. The IBEW was faced with a situation where one of its local unions lost its bargaining rights and as a result, seeks to wind down and distribute all of its assets, albeit in accordance with the terms of the applicable trust agreements and by-laws that govern the situation. The IBEW objects to the effective dissolution of one of its local unions. Counsel for Local 1788 does not agree that his clients are dissolving Local 1788. The pleadings of Local 1788 and the Individuals in Board File No. 3616-98-U and their response to the application in Board File No. 3972-98-M suggest that the IBEW's characterization of the situation is more accurate. In that regard, the relief sought by them in Board File No. 3616-98-U is significant. They asked for the following Board order:

"In any event, and pursuant to Section 149(4) of the Act, an Order that the individual Applicants be reinstated to the positions in Local 1788 they occupied prior to the actions herein complained of for the purposes of and with the authority to:

(i) wind down and terminate the International Brotherhood of Electrical Workers Local Union 1788 Benefit Trust Fund, in accordance with the Agreement and Declaration of Trust of that Fund;

(ii) wind down and terminate the International Brotherhood of Electrical Workers Local Union 1788 Sick Benefit Fund, in accordance with the Agreement and Declaration of Trust of that Fund;

(iii) wind down and terminate the International Brotherhood of Electrical Workers Local Union 1788 Pension Trust Fund, in accordance with the Agreement and Declaration of Trust of that Fund;

(iv) implement the obligations of the Board of Directors of the Electrical Workers Local 1788 Building Association, as set out in its by-laws;

(v) instruct counsel for James McDermott, Bryan Bodkin, John Pearson, Hugh Gillies, Stu Turner, Jean Guy Methot, Greg Chaffey, and Harry Tomsett, on behalf of all members of the International Brotherhood of Electrical Workers, Local Union 1788, and counsel for Electrical Workers Local 1788 Building Association, in Court File No. 95-CU-84514, being a legal proceeding com­menced by Ken Woods on his own behalf, and on behalf of all members of the International Brotherhood of Electrical Workers, and Tom McGreevy, Allan Diggon, and Joseph Havnlla;

(vi) pay severance payments to employees and staff of Local 1788 in accordance with any outstanding obligations;

(vii) act on behalf of the members of Local 1788 in assisting in transferring of membership of such members to other Local Unions of the IBEW in Ontario, should the members so wish;

(viii) any other purposes as required to wind down the affairs of Local 1788 in a reasonable manner.

In addition, in their response to the application in Board File No. 3972-98-M, they stated at paragraph 4:

"The International Union also apparently complains that the officers are winding down the affairs of Local 1788. Local 1788 has no incoming revenue, no bargaining rights, and no source of funding, except non-working dues. It cannot continue in this matter, not as a question of policy, politics, or posturing, but simply because it has no revenue, no bargaining tights, and no purpose, therefore, in continuing its existence. In fact, the only purpose in continuing its existence would be to provide employment for one or two members. The Executive Board and Business Manager of Local 1788 do not propose to waste the members' money in that fashion. In any event, the issue is now largely academic, since the affairs of Local 1788 have been essentially wound down. In this respect, all the employees have been given notice and paid severance in accordance with the collective agreements and policies of Local 1788; the full-time Business Manager is returning to his job at Ontario Hydro in respect of which he was on union leave of absence; provisions have been made for the Business Manager to obtain mail and telephone messages so that he can carry out his duties while employed at Ontario Hydro; the Trustees are in the process of winding up the Trust Funds in accordance with the Trust Funds and the laws of Ontario, exactly as specified in the response of the International Union."

17. In this decision, the Board is not in a position to determine that the IBEW assumed supervision or control of Local 1788 with just cause. That determination can only be made following a hearing on the merits where there will be evidence and argument on the issues raised. Local 1788 and the Individuals have made allegations which, if proved, might satisfy the Board that the IBEW acted without just cause. The Board is also satisfied that there are substantial grounds for arguing that the IBEW did have just cause to impose supervision or control over Local 1788. Counsel for the IBEW pointed to the applicable provisions of the IBEW constitution which clearly give it the authority to impose supervision and control over a local union and the conduct of Local 1788 and the Individuals which would leave Local 1788 to exist as an empty shell.

18. In our opinion, based on the submissions made by counsel for the IBEW and on the material filed in support of the request for an interim order, we are satisfied that there are prima facie grounds for finding just cause for the IBEW's assumption of supervision and control over Local 1788. We do not, however, make any conclusive determination with respect to just cause at this time as that finding can only be made after hearing all of the evidence and argument at a hearing on the merits of the application in Board File No. 3616-98-R. Therefore, pending a final disposition of the application in Board File No. 3616-98-R, the Board, on an interim basis, pursuant to section 98 of the Act hereby:

i. declares that Local 1788 is under the control and supervision of the IBEW;

ii. directs Local 1788 and its executive officers to transfer control of the assets (including all books, records, documents, funds and money) of Local 1788 forthwith to the supervisor appointed by the IBEW;

iii. directs the IBEW to exercise the powers it has in relation to the Pension Trust Agreement, Benefit Trust Agreement and the other benefit funds and trust funds as a result of assuming supervision and control of Local 1788, in accordance with the lawful terms of those trust agreements and applicable laws;

iv. prohibits the IBEW from suspending or expelling any person who was a member of Local 1788 on February 5, 1999 from either Local 1788 or the IBEW except for non payment of dues or after the procedures established by Article XXV of the IBEW's constitution have been ex­hausted;

v. prohibits Local 1788 and its executive officers from interfering with the IBEW's supervision and control of Local 1788.

19. The application in Board File No. 3616-98-R is hereby referred to the Registrar to be listed for hearing at the earliest dates available to this panel of the Board.

20. This panel of the Board is seized with this matter.