0672-00-M Laborers’ International Union of North America, Local 491 and Laborers’ International Union of North America, Local 493, Applicants v. Laborers’ International Union of North America, and Laborers’ International Union of North America, Ontario Provincial District Council, and Laborers’ International Union of North America, Local 607, and Joseph S. Mancinelli, Responding Parties.
0673-00-U Laborers’ International Union of North America, Local 491 and Laborers’ International Union of North America, Local 493, Applicants v. Laborers’ International Union of North America, and Laborers’ International Union of North America, Ontario Provincial District Council, and Laborers’ International Union of North America, Local 607, and Joseph S. Mancinelli, Responding Parties.
0810-00-U Laborers’ International Union of North America, Local 491 and Laborers’ International Union of North America, Local 491, Applicants v. Laborers’ International Union of North America, and Laborers’ International Union of North America, Ontario Provincial District Council, Responding Parties.
BEFORE: R. O. MacDowell, Chair, and Board Members J. G. Knight and G. McMenemy.
DECISION OF THE BOARD; September 15, 2000
This is a complaint under section 96 of the Labour Relations Act, alleging, among other things, that the responding parties have contravened the so-called “Bill 80 provisions” of the Act (now sections 146-150).
The details of the complaint need not be set out here. Nor is it necessary to canvass the respondents’ reply. These matters have already been described, in a general way, in the Board’s decision of June 29, 2000 (Board File 0673-00-U).
For present purposes, it suffices to say that the complaint involves the “local union affiliation” of certain union members residing in the Kapuskasing area. At one time those union members fell within the geographic jurisdiction of Laborers’ Local 607 in Thunder Bay. Subsequently, this geographic jurisdiction (and the Kapuskasing members) was transferred to Laborers’ Local 491 with headquarters in Timmins. Now the parent union wants to move the Kapuskasing members back to where they were before – which is to say, to shift this geographic area and its members back under the umbrella of the Thunder Bay local.
The complainants contend that the procedure invoked to effect this result was flawed and inconsistent with the provisions of both the union constitution and the Labour Relations Act. The complaints fear that as a result of this restructuring, the members of Local 491 will lose access to work opportunities arising in the Kapuskasing area: if there are construction projects in that area, an employer’s labour requirements will be met from the “out-of-work list” of Local 607, rather than the “out-of-work list” of Local 491 (or Sudbury Local 493 with which Local 491 is to be merged). In other words, the case is not simply about the transfer of members from one Local to another, but also about the transfer of geographic territory, and the preferred access to work in that territory.
The respondents reply that the shift of the Kapuskasing area (and its members) to the Thunder Bay Local is part of a broader restructuring of Northern Ontario Locals, which includes the merger of Local 493 (Sudbury) and Local 491 (Timmins). In the respondents’ submission, the restructuring of these Locals is necessary in order to improve the viability and organizational effectiveness of the union in Northern Ontario. It is an attempt to rationalize the existing fragmented union structure, and (according to the parent union and the Ontario District Council), was undertaken after investigation and consultation with the local unions concerned. Moreover, the change reflects the wishes of the Kapuskasing members themselves, who wish to return to the jurisdiction of Local 607 where they were before.
In the respondents’ submission, the complainants should not have a veto over these organizational changes which, the respondents assert, are in the overall interests of the union in Northern Ontario and meet the particular demands of the union’s members in the Kapuskasing area. In the respondents’ submission, there is no impropriety under the union’s constitution or the Labour Relations Act.
The complainants do not appear to oppose the merger of Locals 493 (Sudbury) and 491 (Timmins) which was a component of the restructuring scheme. However, the complainants do challenge the transfer of Kapuskasing to the geographic jurisdiction of the Thunder Bay Local.
The “Bill 80 amendments” were added to the Act in 1993, and focus on the internal affairs of construction trade unions. Those amendments do not foreclose a sensible restructuring of such unions to meet the collective bargaining challenges that they face. Construction trade unions are not frozen in the form that existed at the time that the statute was amended. Nor do local minorities have a statutory veto over trade union reorganization. On the other hand, the Bill 80 amendments do require a parent union to have “just cause” for any proposed changes, and prevent a parent union from using its institutional or constitutional clout to penalize Local unions that question the parent’s authority, or seek to preserve their local autonomy.
The Board’s job, therefore, is to balance these competing factional and institutional concerns, within the framework provided by the statute.
On the surface, Bill 80 appears to be about internal union affairs. But as this case illustrates, there may also be an impact on the allocation of work opportunities, as between groupings of union members. Moreover, employers may have an interest in these issues as well, because under the existing collective bargaining regime, employers are typically obliged to deal with whatever local union has jurisdiction in the geographic area in which the employer is operating. There is a province-wide scheme of ICI collective bargaining and there are often extended-area agreements in other sectors as well; but quite a bit of business is still carried on between individual companies and local unions – however those local unions are structured or restructured from time to time. So employers have an interest in the clear identification of the union entity with which they must interact.
In this context, it is quite important that “Bill 80 cases” be resolved expeditiously, so as not to interfere with ongoing collective bargaining needs – particularly in an environment in which economic activity and employment are transitory (i.e. employers and employees move from job to job or area to area in accordance with the vagaries of the marketplace). Indeed, the very structure of section 147 suggests that complaints which cite that section be resolved quickly, because section 147(5) undoes the organizational changes under review, until the Board has had an opportunity to consider the challenge – regardless of the ultimate merits of that challenge. In other words, the mere filing of a complaint prevents or reverses the organizational changes or actions initiated by the parent union, even if it ultimately turns out that they were entirely justified; and given the fluidity of the construction industry, it is not at all clear that the Board can (or should) redress the consequences of a challenge that turns out to be unfounded. Accordingly, it is desirable for the Board to deal with Bill 80 complaints as expeditiously as its resources permit.
That said, to the extent that a complaint relies upon the “Bill 80 provisions” of the Act, the statute gives the Board some tools to address these matters expeditiously. Section 110 of the Act contains these provisions:
(16) The Board shall determine its own practice and procedure but shall give full opportunity to the parties to any proceedings to present their evidence and to make their submissions.
(17) The chair may make rules governing the Board's practice and procedure and the exercise of its powers and prescribing such forms as the chair considers advisable.
(18) The chair may make rules to expedite proceedings to which the following provisions apply:
0.1 Section 8.1 (Disagreement by employer with union's estimate).
Section 13 (right of access) or 98 (interim orders).
Section 99 (jurisdictional, etc., disputes).
Subsection 114(2) (status as employee or guard).
Sections 126 to 168 (construction industry).
Such other provisions as the Lieutenant Governor in Council may by regulation designate.
(19) Rules made under subsection (18) come into force on such dates as the Lieutenant Governor in Council may by order determine.
(20) Rules made under subsection (18),
(a) may provide that the Board is not required to hold a hearing;
(b) may limit the extent to which the Board is required to give full opportunity to the parties to present their evidence and to make their submissions; and
(c) may authorize the Board to make or cause to be made such examination of records and such other inquiries as it considers necessary in the circumstances.
(21) Rules made under subsection (18) apply despite anything in the Statutory Powers Procedure Act.
(22) Rules made under subsection (17) or (18) are not regulations within the meaning of the Regulations Act.
And under this legislative umbrella, the Board has introduced the following Rules:
PART IV – RULES FOR OTHER SPECIFIC APPLICATIONS
Applications under the Public Sector Labour Relations Transition Act, 1997, Part X.1 of the Education Act, Part IV of the Crown Employees Collective Bargaining Act, 1993, and Sections 8.1, 13, 98, 99, 114(2) and 126 to 168 of the Labour Relations Act
In order to expedite proceedings, the Board may, on such terms as it considers advisable, consult with the parties, conduct a pre‑hearing conference, issue any practice direction, shorten or lengthen any time period, change any filing or delivery requirement, schedule a hearing, if any, on short notice, or cancel such hearing, make or cause to be made such examination of records or other inquiries as it considers necessary in the circumstances, or limit the parties' opportunities to present their evidence or to make their submissions.
Where the Board is satisfied that a case can be decided on the basis of the material before it, and having regard to the need for expedition in labour relations matters, the Board may decide an application under the Public Sector Labour Relations Transition Act, 1997, Part X.1 of the Education Act, Part IV of the Crown Employees Collective Bargaining Act, 1993, and sections 8.1, 13, 98, 99, 114(2) and 126 to 168 of the Labour Relations Act, without an oral hearing.
No doubt the Board has a discretion whether or not to inquire into any section 96 complaint, and may exercise that discretion if the complainant does not establish a prima facie case for the relief requested, or if there are labour relations reasons for not initiating an inquiry. However, in addition, the above-mentioned sections permit the Board to address (inter alia) construction industry cases without the kind of formal “trial-like” hearing familiar in the Civil Courts. The Board is entitled to hear and determine these matters without any “oral hearing” at all, or in the modified hearing format commonly referred to as a “consultation”. In that format, the Board may make a determination based upon written materials and/or the parties’ representations, or may hear evidence on one or more issues as it considers appropriate.
The point is: for the case categories identified above, the Board may, but need not, hold a full-blown trial-like hearing. And “Bill 80 complaints” fall within those parameters.
We do not at this point rule that this case must be determined by means of this “consultation” format, even though the complainants’ challenge can be resolved in that way. However, it appears to this panel of the Board that the consultation mechanism may well be able to address the legal and labour relations concerns raised in this case; moreover, for the reasons identified above, it is desirable to deal with these matters economically and expeditiously. For the fact is, the mere filing of this complaint has put a cloud over organizational changes which might otherwise have been in place during the current construction season, and it is obviously desirable to sort out these restructuring issues before there is an adverse impact on any of the competing union factions – or indeed upon employers who are obliged to deal with whatever union structure the parent union creates, and the Board permits.
For the foregoing reasons, this matter is set down for a “consultation” before the Board on October 4, 2000, continuing as necessary on November 10. The hearing will take place at the Boardroom, 2nd Floor, 505 University Avenue, Toronto, beginning at 9:30 a.m.
To be clear: it remains for the panel assigned to the “consultation” to ultimately determine whether, or the extent to which, it will receive viva voce evidence about one or other of the issues raised in the material, and the process it will use to determine the mattes in dispute. However, it appears to this panel that the case should at least begin in “consultation format”; and the parties should be prepared to make their representations in that context. The panel can also, of course, fix whatever additional hearing dates, for whatever purposes, the panel considers appropriate.
The matter is referred to the Registrar for processing.
This panel is not seized.
“R. O. MacDowell”
for the Board