2148-00-U Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftworkers, Jerry Coelho, Tom Oldham, Kerry Wilson, John Haggis, Luigi Scodellaro, and Robert Watson, Applicants v. International Union of Bricklayers and Allied Craftworkers, John T. Flynn and Joe Bognar, Responding Party.
BEFORE: David A. McKee , Vice-Chair.
DECISION OF THE BOARD; November 27, 2000
This is an application under section 96 of the Labour Relations Act, 1995, S. O. 1995 ch. 1 ("the Act"), alleging that the responding party has violated a number of sections of the Act, including sections 147 and 149. At the request of the parties, the date for the hearing of this application has been advanced from December 13, 2000 to December 12, 2000 commencing at 9:30 a.m. at the Board Room, Ontario Labour Relations Board, 505 University Avenue, 2nd Floor, Toronto, Ontario.
The application arises out of the imposition of a “receivership” by the International Union of Bricklayers and Allied Craftworkers (“IUBAC”) on the Ontario Provincial Conference of the IUBAC (the “OPC”). For the purposes of the Act, the OPC is a certified council of trade unions, representing all 14 local unions of the IUBAC in Ontario. Further, it has been certified by this Board as the Employee Bargaining Agency in respect of two provincial bargaining agencies, covering essentially bricklayers and tilesetters who are members of the IUBAC or its locals. The IUBAC is the parent trade union (as defined in section 145 of the Act) of the OPC. It is an affiliated bargaining agency of the OPC, but is not named as a party making up the Employee Bargaining Agency.
The dispute between the Ontario members of the union and the IUBAC has taken up considerable time and resources of the Board since 1995. There are at least 27 written decisions of this Board and numerous forays into the courts. Both parties have reviewed selected portions of this litigation history in their pleadings.
At the risk of oversimplification, there has been a conflict between the IUBAC and the OPC. Eleven of the 14 local unions have supported the OPC. Three of the locals have supported the IUBAC. These statements refer to the officers of each group. There have been membership votes on various questions, but there has never been a vote (Board supervised or otherwise) in respect of the major question between these parties. A second trade union, the Brick and Allied Craft Union (“BACU”) and its locals has been established. Fundamentally it seeks to supplant the IUBAC. The members of that union are all members of the IUBAC locals. The officers are the same as the officers of the OPC and the IUBAC locals.
The facts which are of particular relevance to this proceeding are not in dispute. Following a decision of this Board of September 15, 2000, a series of letters were exchanged between the IUBAC and the persons who were and are the officers of the OPC (who replied using BACU letterhead) and their counsel. This correspondence need not be characterized here. Suffice it to say that the IUBAC made certain demands of the OPC which were not met. In the end these demands were set as an ultimatum. The OPC did not respond. On October 17, a “receivership order” (a form of trusteeship) was issued by the IUBAC.
What is significant is that while both parties set this correspondence in the context of the history between the two parties, neither relies to any great extent on any fact other than the correspondence. To the extent that they refer to previous decisions of this Board, they do so for the effect and consequences of each Board decision rather than specific findings of fact in each one. Needless to say, both seek to portray a different historical context arising from these decisions. Both draw different conclusions from the September 15 decision of the Board. However, to a great extent, they are content to rely on the conclusions in each decision, not the underlying evidence.
Although sections 76, 87(2) and 96(7) are pleaded, the core of this case lies in the allegation that the IUBAC has violated sections 147 and 149. These two sections and section162(2) are sections to which rules 76 and 77 of the Board’s Rules of Procedure apply. These rules provide:
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.
It appears to the Board to be most expeditious to deal initially with the heart of the complaint, the allegation of a violation of sections 147 and 149. That issue appears to be primarily, if not exclusively a matter of argument. Aside from certain allegations with respect to the motivation of the IUBAC contained in one of the interventions, there are no disputed facts, and the context is, as the pleadings indicate, easily drawn from previous decisions of the Board.
Accordingly, the hearing set for December 12, 2000 will be conducted as a consultation with respect to the allegation of a violation of sections 147 and 149. The Board will render a final decision at the conclusion of the consultation unless the Board concludes that evidence must be called. A further hearing may be scheduled, if appropriate, with respect to the matters raised by sections 76, 87(2), 96(7), 162(2) or section 13 of the Statutory Powers Procedure Act that require a hearing, one will be scheduled.
To assist the parties, the Board wishes to focus the parties’ attention on the statutory issues in this application. Sections 147 and 149 provide as follows:
- (1) A parent trade union shall not, without just cause, alter the jurisdiction of a local trade union as the jurisdiction existed on May 1, 1992, whether it was established under a constitution or otherwise.
(2) The parent trade union shall give the local trade union written notice of an alteration at least 15 days before it comes into effect.
(3) On an application relating to this section, the Board shall consider the following when deciding whether there is just cause for an alteration:
The trade union constitution.
The ability of the local trade union to carry out its duties under this Act.
The wishes of the members of the local trade union.
Whether the alteration would facilitate viable and stable collective bargaining without causing serious labour relations problems.
(4) The Board is not bound by the trade union constitution when deciding whether there is just cause for an alteration.
(5) If a local trade union makes a complaint to the Board concerning the alteration of its jurisdiction by a parent trade union, the alteration shall be deemed not to have been effective until the Board disposes of the matter.
149.(1) A parent trade union or a council of trade unions shall not, without just cause, assume supervision or control of or otherwise interfere with a local trade union directly or indirectly in such a way that the autonomy of the local trade union is affected.
(2) A parent trade union or a council of trade unions shall not, without just cause, remove from office, change the duties of an elected or appointed official of a local trade union or impose a penalty on such an official or on a member of a local trade union.
(3) On an application relating to this section, when deciding whether there is just cause, the Board shall consider the trade union constitution but is not bound by it and shall consider such other factors as it considers appropriate.
(4) If the Board determines that an action described in subsection (1) was taken with just cause, the Board may make such orders and give such directions as it considers appropriate, including orders respecting the continuation of supervision or control of the local trade union.
The IUBAC has quoted extensively from its constitution. Of course, the task of the Board is to interpret and apply the Act, not the IUBAC constitution. Sections 147 (4) and 149(3) are clear: the Board must consider the constitution in determining the question of just cause under sections 147 and 149, but may give it little or no weight. In deciding that question, the IUBAC will have to persuade the Board that much, or any, weight should be given to the constitution.
Further, since the IUBAC relies on the September 15, 2000 decision, one point is worth making. That decision states that the OPC “retain[s] all the rights duties and privileges it held immediately prior to the revocation”. As a “local trade union” as defined in section 145, one of the rights retained by the OPC was the statutory protections of the Act afforded to an affiliated body of the International Union. It is that statutory right that must be addressed.
There are a number of would-be intervenors who are not listed in the style of cause. These are:
(1)-The BACU and its local unions,
(2)-The eleven locals of the IUBAC which are aligned with the OPC,
(3)-IUBAC Locals 6, 7, and 25, and
(4)-Masonry Industry Employers’ Council of Ontario.
In order to expedite the process, the Board directs all the would-be intervenors to file with the Board and deliver to the other parties full argument as to the basis on which they claim intervenor status and the extent to which they wish to participate. (That is, some of the intervenors may have an interest only if the Board finds a violation of either section, and proceeds to consider the appropriate remedy.) These submissions are to be filed with the Board on or before December 6, 2000. On or before December 8, 2000 all parties are to indicate, without argument, whether they agree that each proposed intervenor has or should be given status. This will be dealt with in whatever fashion is appropriate by the Board, either at the commencement of the consultation, or before. No party whose status is disputed will be given status before argument from the objecting parties is heard.
The Board will not entertain the motion of certain of the parties that the application be dismissed for failure to disclose a prima facie case of a violation of section 147. In light of the expedited nature of this proceeding, there is no useful purpose in entertaining these motions separately from the merits of the applications. Since this is the only application before the Board at this time, the Board will not entertain argument with respect to a variation of the Memorandum of Agreement dated January 4, 1999. Finally, the Board will not hear argument directed at the propriety of an individual lawyer or member of a law firm appearing on behalf of any of the parties. Such arguments are more properly addressed to the Law Society of Upper Canada or by way of application to the Superior Court of Justice.
Without making any comment on the ultimate onus in this case ( a concept which may be unhelpful in any event), the IU will proceed first in presenting its case, followed by any parties allied in interest.
I am not seized of this application.
“David A. McKee”
for the Board