1715-99-U International Union of Bricklayers and Allied Craftworkers, Local 6; Luciano Mascarin and Michel Gagliano, Applicants v. Ontario Bricklayers and Allied Craftsmen Organizing Trust Fund, The Brick and Allied Craft Union of Canada and Brian Strickland, Responding Parties.
BEFORE: Harry Freedman, Vice-Chair.
APPEARANCES: Michael Gottheil and Lou Mascarin for the applicants; L. A. Richmond and J. Haggis for the responding parties.
DECISION OF THE BOARD; October 19, 2000
This is an application under section 96 of the Labour Relations Act, 1995, S. O. 1995, c. 1 (the “Act”) alleging that the responding parties violated sections 74, 76, 87(2), 96(7) and 167(1) of the Act by their continuing refusal to reimburse the International Union of Bricklayers and Allied Craftworkers, Local 6 (“Local 6”) for the legal costs it incurred in relation to an organizing drive it carried out in respect of a Windsor contractor. The Chair of the Board authorized me to sit alone to hear and determine this matter pursuant to section 110(14)(a) of the Act.
Counsel for the responding parties moved to have this application dismissed on the grounds that it did not disclose a prima facie case for the relief requested and in particular, submitted that the allegations contained in the application, even assuming they were all true (which is denied by the responding parties) would not establish a violation of the Act. The motion for dismissal was argued before me at the first day of hearing of this matter.
The Board in International Union of Bricklayers and Allied Craftworkers, Board File Nos. 1645-98-U and 1768-98-U, decision dated February 19, 1999, unreported, [1999] O.L.R.D. No. 1392, had occasion to discuss the approach used by the Board when determining whether to dismiss an application because it did not disclose a prima facie case. The Board stated at paragraphs 4 and 5:
The test that a responding party must meet in order to persuade the Board that an application should be dismissed on the basis that there is no prima facie case established in the application is, in my view, a strict one. An applicant should not be deprived of the opportunity to have a hearing on the merits of his or her application simply because the argument is novel or the circumstances giving rise to the application are unusual. In Caravelle Foods, [1983] OLRB Rep. June 875 the Board characterized the test a responding party must meet in seeking to have an application dismissed on a prima facie motion in the following terms at page 881:
The words ‘prima facie case’ in section 71 are meant to allow the dismissal of a case without a hearing where the allegations are insufficient to render reasonable or arguable a conclusion that the Act has been breached.
In J. Paiva Foods Ltd., [1985] OLRB Rep. May 690 the Board set out the test at page 691 as follows:
The Board’s discretion to dismiss a complaint on the grounds that it does not disclose a prima facie case should only be exercised in the clearest of cases, that is, when the Board is satisfied that there is no reasonable likelihood that a violation of the Act can be established on the facts as alleged.
Where, however, the Board is satisfied that the responding party bringing the prima facie motion has met the burden imposed, it is incumbent on the Board to dismiss the application, thereby conserving the limited resources of the Board for matters that do require a hearing. As Mr. Justice Grange said in Shaw v. McLeod, (1982), 1982 CanLII 2140 (ON HCJ), 35 O.R. (2d) 641:
I concede that on this motion if, after a careful review of the law, the Court determines that he [the Plaintiff] cannot possibly succeed, then his action should be mercifully dispatched.
See also Elizabeth Balanyk, [1987] OLRB Rep. Sept. 1121 at page 1123 and Lyndhurst Hospital, [1996] OLRB Rep. May/June 456 at 465-66. Therefore the responding parties must persuade the Board that there is no reasonable likelihood that the applicants can establish a violation of the Act based on the allegations they have made in their application.
- Michel Gagliano is a member of Local 6. Luciano Mascarin is both a member and the business manager of Local 6. Neither of them was alleged to be an employee in a bargaining unit at any time material to this application. Section 74 of the Act requires a union that represents employees in a bargaining unit to act in a manner that is not arbitrary, discriminatory or in bad faith in its representation of any of those employees. The Board in Rheal V. Dionne, [1994] OLRB Rep. May 532 set out the scope of section 74 succinctly at paragraph 46:
The duty of fair representation applies to the way in which the union represents employees in their relationship with their employer. Because the employees cannot bargain on their own, the union must represent them fairly. However, section 69 [now 74] does not regulate the relations of employees to each other, or to their union as an organization. It does not regulate internal union affairs.
A similar conclusion was reached earlier in Irene Gauthier, [1990] OLRB Rep. October 1041 in which the Board dismissed a complaint alleging that the failure to pay strike pay to the complainant was a violation of what is now section 74 of the Act. The Board at paragraph 5 wrote:
A trade union’s refusal to provide “Strike Pay” to a member is also an internal matter which does not involve the representation of a bargaining unit employee in relation to his or her employer. Thus, it does not fall within the scope of the Board’s jurisdiction under section 68 [now 74] of the Act.
As this application revolves around the refusal of the responding parties to reimburse Local 6 for the legal fees it incurred and alleges nothing about the representation of employees in relation to their employer, there is no reasonable basis on which the Board could find a violation of section 74 of the Act.
- Section 167(1) of the Act is the employee bargaining agency counterpart to section 74. Section 167(1) prohibits an employee bargaining agency from acting “…in a manner that is arbitrary, discriminatory or in bad faith in the representation of the affiliated bargaining agents in the provincial unit…for which it bargains…and in the representation of employees….” The focus of section 74 of the Act is on a union’s representation of employees; it appears to me that section 167(1) is also focussed on representation. While no Board decisions were cited by the parties (and I am not aware of any) dealing with section 167(1) of the Act, the parallel employer bargaining agency obligation imposed by section 167(2) of the Act has been considered by the Board. In Dominion Maintenance Limited, [1979] OLRB Rep. Oct. 940 the Board commented at paragraph 22:
Although this is the first case to come before the Board in which it is alleged that section 136(2) [now 167(2)] of the Act has been violated, the Board has dealt with complaints under section 60 [now 74] of the Act since its enactment in 1971. Section 60 [now 74], which is framed in essentially identical language to section 136(2) [now 167(2)], prohibits a trade union from acting in a manner which is arbitrary, discriminatory or in bad faith in the representation of employees in the bargaining unit.
The Board in Dominion Maintenance Limited then held at paragraph 24:
Section 136(2) of the Act serves the same purpose as section 60; that is “to protect individuals from the collective so sanctioned to act on their behalf.” Section 60 protects individual employees from arbitrary, discriminatory or bad faith treatment at the hands of the bargaining agent. Section 136(2) protects individual contractors from arbitrary, discriminatory or bad faith treatment at the hands of their designated or accredited bargaining agency. The standard of representation is the same in each case and in the view of the Board its section 60 jurisprudence is relevant and directly applicable to cases coming before it under section 136(2).
The Board in Mechanical Contractors Association of Ontario, [1982] OLRB Rep. 417 in which the applicant zone affiliate alleged that the designated employer bargaining agency which represented it and its employer members had violated what is now section 167(2) of the Act, adopted the approach used by the Board in Dominion Maintenance Limited when it stated at paragraph 2:
…section 151(2) [now 167(2)] has the same purpose as section 68 [now 74] which protects individual employees from arbitrary, discriminatory or bad faith treatment at the hands of the bargaining agent trade union. Section 151(2) protects individual contractors against the same kind of conduct and for that reason the jurisprudence of the Board in trade union fair representation cases is directly applicable to the facts and complaint before us in the instant matter.
Since both the structure and language of section 167(1) of the Act are strikingly similar to the language of section 74 and also parallel the structure and language of section 167(2) and based on the Board’s analysis in Dominion Maintenance Limited and Mechanical Contractors Association of Ontario, I am satisfied that section 167(1) imposes on the certified or designated employee bargaining agency the obligation to act in a manner that is not arbitrary, discriminatory or in bad faith in its representation of affiliated bargaining agents.
Counsel for the applicants submitted that the Board has considered that the representation obligation under section 167 may relate to matters that go beyond the negotiation, ratification and administration of a provincial collective agreement in the industrial, commercial and institutional sector of the construction industry. Counsel relies on the Board’s decision in Mechanical Contractors Association of Ontario, [1998] OLRB Rep. May/June 452. One of the issues in that case was whether the employer bargaining agency had the authority to agree to a change in the governance of an existing benefit plan that was established and in place well before the advent of province wide bargaining. The Board at paragraph 14 noted that the parties to a provincial agreement had the authority to establish province wide benefit funds and “subject to section 167 of the Act, they can probably do so whether or not the individual employers or union locals agree with such arrangements.” The Board also expressed concern at paragraph 15 of that decision over “whether or how collective bargaining can tinker with an existing benefit plan with its own trust arrangements and its own fiduciary obligations-especially where, as here, that plan pre-dated provincial collective bargaining and has been left untouched, for years, despite successive rounds of provincial bargaining.” The Board went on to state in that paragraph:
The fact that the provincial bargaining parties may be able to create a new benefit arrangement and compel contributions to it, does not necessarily mean that they can absorb or materially change a pre-existing fund. That depends-at least in part-upon the permissible reach of provincial bargaining under the Labour Relations Act, whether the bargaining objective collides with legal obstacles outside the ambit of labour law, and perhaps whether the bargaining objective is congruent with vested pension or property rights. And, given the history of this particular arrangement, section 167 of the Labour Relations Act may be engaged as well.
I do not share counsel’s interpretation of that decision. It is clear to me that the Board in the 1998 Mechanical Contractors Association of Ontario decision was indicating that section 167 of the Act may be engaged because changes to the governance of benefit plans are matters for collective bargaining and can be properly included in a provincial agreement.
- The breadth of the obligation imposed on an employee bargaining agency by section 167(1) can, in my view, be gleaned from the power the Act gives to an employee bargaining agency. Section 156 of the Act provides:
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.
Section 156 when read together with section 167(1) suggests that the employee bargaining agency’s fair representation obligation relates to the conduct of the bargaining and the concluding of a collective agreement (including the ratification procedures established by the employee bargaining agency). Section 156 does not authorize or empower an employee bargaining agency to establish a trust fund to be used for the purposes of paying the costs associated with organizing drives by the affiliated bargaining agents represented by that employee bargaining agency. Such a trust fund and its administration is, in my opinion, a contractual or trust matter among the parties to the trust fund, that is, among the employee bargaining agency, the affiliated bargaining agents and the trustees and is beyond the purview of section 156 of the Act and, more importantly, beyond the scope of section 167(1). How the trustees of an organizing trust fund established to pay the costs associated with organizing by local unions administer those trust funds has nothing to do with the representation of affiliated bargaining agents by the employee bargaining agency even assuming that the employee bargaining agency controls the trust fund. Reimbursing local unions for the costs they incur in organizing does not involve either negotiating or concluding a collective agreement. Therefore, the obligation created by section 167(1) of the Act does not, in my view, extend to the manner in which an employee bargaining agency administers a trust fund established for the purpose of paying the costs incurred by its affiliated local unions in organizing non-union employers.
The parties argued this matter before the Board’s decision in Kvaerner Jaddco, Board File No. 2784-98-R, decision dated September 15, 2000, as yet unreported, was released in which the Board found that the Brick and Allied Craft Union of Canada (the “BACU”) was not the successor union of the Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftworkers (the “OPC”) which had been certified as the employee bargaining agency for bargaining units of affiliated bargaining agents including Local 6. The Board also held that the BACU did not meet the statutory definition of an employee bargaining agency in respect of Local 6 and the other bargaining agents with which Local 6 was affiliated. Both the applicants and responding parties asserted before me that the BACU was the employee bargaining agency and the successor of the OPC which had been certified as the employee bargaining agency in respect of Local 6. Since the Board determined in Kvaerner Jaddco that the BACU was not the employee bargaining agency that can bargain on behalf of Local 6 and as the other responding parties are not an employee bargaining agency, the responding parties can not have violated section 167(1) of the Act because only an employee bargaining agency has the fair representation obligation imposed by section 167(1).
Section 76 of the Act prohibits a person or trade union from using intimidation or coercion to compel a person to become, refrain from becoming, continuing to be or ceasing to be a union member or from exercising any other rights under or from performing any other obligations under the Act. Section 87(2) of the Act prohibits a trade union from discriminating against or imposing a penalty upon a person because that person has made an application or participated in a proceeding under the Act. As Local 6 is a trade union and not a person, it is not protected by either section 76 or 87(2) of the Act. (See Woodall Construction Company Limited, [1979] OLRB Rep. June 597 at 600; International Association of Bridge, Structural and Ornamental Ironworkers, [1982] OLRB Rep. 1487 at 1519.)
The applicants contend that the responding parties in refusing to remit payment for the organizing costs incurred by Local 6 have intimidated or coerced Messrs. Mascarin and Gagliano for the purpose of having them cease supporting Local 6’s opposition to the BACU and to punish them because they are opposed to the BACU. Counsel for the applicants contends that the responding parties are withholding the reimbursement of Local 6’s costs for an improper purpose and that adversely affects Messrs. Mascarin and Gagliano.
The BACU adopted a resolution at its first convention in July 1999 which provided that:
the BACU and the BACU Organizing Trust shall not pay fees, disbursements or taxes for any services rendered on behalf of the BACU Local in any matter to any lawyer or firm who acts against the BACU or the BACU Organizing Trust or any BACU Local in any other matter.
It was common ground between the parties that the organizing trust fund referred to in the resolution was the organizing trust fund established by the OPC. The resolution adopted by the BACU in July specifically identified Local 6 (and two other local unions who are opposed to the BACU) as a local union to which that resolution applied. Other than refuse to pay Local 6 for the legal costs it incurred for the organizing drive in respect of the Windsor contractor, the application does not allege that the responding parties have taken action against Messrs. Mascarin and Gagliano. I believe that even if the resolution adopted by the BACU was not permitted by the terms of the trust agreement or declaration that established the organizing trust fund, the adoption of that resolution and acting in accordance with it has no bearing on whether the responding parties intimidated, coerced, penalised or otherwise punished Messrs. Mascarin and Gagliano. The decision by the responding parties obviously affected who Mr. Mascarin, on behalf of Local 6, might retain as legal counsel in connection with an organizing campaign and certification application. In my opinion, a union or union trust fund, by stipulating that a local union will not be reimbursed for fees charged to that local union by counsel who is involved in proceedings against that union or union trust fund cannot possibly be a basis for finding that it is intimidatory, coercive or punitive conduct in relation to local union members or officers prohibited by sections 76 or 87(2) of the Act.
- The applicants contend that the responding parties also violated section 96(7). Counsel for the applicants argued that the resolution adopted in July 1999 and the subsequent refusal to reimburse Local 6 for its legal fees pursuant to that resolution was contrary to the Memorandum of Agreement dated January 4, 1999 (the “January Agreement”) which provided, at paragraph 6 that it “…is a settlement within the meaning of section 96(7) of the Labour Relations Act….” Paragraph 3 of the January Agreement purported to confer upon the Board “such substantive and procedural interim powers as may be necessary.” That paragraph goes on to state: “The intent of this provision is to deal with issues which arise between the parties during the course of these proceedings including the issues of monies paid by some contractors to Locals 6, 7, 25 instead of the Brick and Tile Employee Bargaining Agencies…and the issues relating to a foreman working in the Kitchener area.” The Board in Brick and Allied Craft Union of Canada, Board File No. 3117-98-M, decision dated May 31, 1999, unreported, [1999] O.L.R.D. No. 2011 discussed the purposes of the January Agreement at paragraphs 8 and 9:
In a settlement dated January 4, 1999 the parties agreed that “for purposes of these proceedings the parties agree and recognize the current brick and tile collective agreements as the only collective agreements in the ICI sector of the construction industry applicable to their members”. The purpose of that formulation was to maintain the status quo in the ICI until [sic] matters in dispute are resolved….
During the period of time in which these proceedings are ongoing, the Board, in keeping the status quo, in the ICI sector, has to allow the individuals who work in the ICI sector to continue to benefit from their rights under the collective agreements…. This interim bargaining agency structure is created so that the parties can go about the business of accessing their rights and performing their duties under the ICI collective agreement.
In my view, that January Agreement was focussed on maintaining the status quo in relation to the administration and operation of the provincial collective agreements and to ensure that the rights and obligations arising under those collective agreements were not disrupted by the litigation arising out of the creation of the BACU. While the January Agreement did permit the Board to grant interim relief with respect to the appointment of a trustee to the pension plan which provided benefits to members working under the provincial collective agreements, (see Brick and Allied Craft Union of Canada, Board File No. 3117-98-M, decision dated April 23, 1999, unreported, [1999] O.L.R.D. No. 1984) it does not, in my view, extend to regulating a relationship that does not arise from nor is related to the provincial collective agreements. Therefore, despite applicant counsel’s argument that adopting the resolution of July 1999 and subsequently acting on that resolution changed the status quo between the parties contrary to the January Agreement and therefore violated section 96(7) of the Act, I am satisfied that although the resolution was a change in the status quo, it was not a change to which the January Agreement related because the change did not arise from or relate to the provincial agreement with the result that the adoption of the July resolution was not a violation of the January Agreement and therefore was not a violation of section 96(7) of the Act.
The July 1999 resolution, as counsel for the responding parties submitted, was adopted to ensure that lawyers who acted against the BACU would not receive money from the BACU through the Organizing Trust Fund. (The BACU took over responsibility for the Organizing Trust Fund.) Counsel further pointed out that the resolution did not preclude the applicants from retaining any law firm or lawyer they wished to engage. The lawyers retained by Local 6 would be paid from the Organizing Trust Fund so long as those lawyers did not act in proceedings against the BACU. There was nothing in the July resolution or the conduct of the responding parties pursuant to that resolution which precluded the applicants or any of them from continuing to exercise their rights and perform their obligations under the Act.
The responding parties have satisfied me that the application does not, even accepting that all of the facts alleged in it are true, make out a violation of the Act. Sections 74 and 167(1) have not been contravened as there is nothing in the application which asserts that the responding parties have acted in a manner that is arbitrary, discriminatory or in bad faith in their representation of the applicants. Similarly, the application does not allege any conduct in respect of a person which could be reasonably characterized as coercive, intimidatory or discriminatory under sections 76 and 87(2) of the Act and finally, the January Agreement does not extend to matters that are related to or arise out of the provincial agreement. I am satisfied that there is no reasonable likelihood that the applicants can establish a violation of the Act based on the allegations they have made in their application.
The motion made by the responding parties to dismiss this application is therefore granted and this application is hereby dismissed.
“Harry Freedman”
for the Board