Ontario Labour Relations Board
File No.: 0343-01-R Date: September 18, 2001
Antonio Stirpe, Applicant v. The International Brotherhood of Electrical Workers and IBEW Construction Council of Ontario, and International Brotherhood of Electrical Workers, Local Union 1687, Responding Parties v. Phase 4 Electrical Contracting Ltd., Intervenor.
BEFORE: Harry Freedman, Vice‑Chair.
APPEARANCES: Martin Pawelek and Antonio Stirpe for the applicant; Lorne A. Richmond and S. Ayotte for International Brotherhood of Electrical Workers, Local Union 1687; Daniel Leone and Anthony Barban for the intervenor; no one appearing for The International Brotherhood of Electrical Workers and IBEW Construction Council of Ontario.
DECISION OF THE BOARD
1This is an application under section 63(2) of the Labour Relations Act, 1995, S.O. 1995, c. 1, as am. (the "Act") for a declaration that The International Brotherhood of Electrical Workers and IBEW Construction Council of Ontario (the "IBEW CCO") no longer represents the employees in the bargaining unit described in section 5, paragraph 500 of the Principal Agreement between the IBEW CCO and the Electrical Trade Bargaining Agency of the Electrical Contractors Association of Ontario that expired on April 30, 2001. The Alternate Chair of the Board authorized me pursuant to section 110(14)(a) of the Act to sit alone to hear and determine this matter.
2The Board (differently constituted), in its May 3, 2001 decision in this matter observed that this application had been fi1ed on April 26, 2001. That decision described the responding party as the IBEW CCO and noted that the responding party had submitted that the application was untimely because the applicant had failed to serve the employee bargaining agency. In fact, it was the International Brotherhood of Electrical Workers, Local Union 1687 ("Local 1687") and not the IBEW CCO that had filed a response and challenged the timeliness of the application. The Board in that decision also noted that the responding party named in the application was International Brotherhood of Electrical Workers and The IBEW Construction Council of Ontario and pointed out that Local 1687 was served with the application. The Board's May 3, 2001 decision directed a representation vote and indicated that the issue can be dealt with by the panel hearing this application.
3As none of the material facts were in dispute, I received the facts through the representations of counsel at the hearing. The applicant delivered the application to Local 1687 by facsimile transmission on April 26, 2001. It was addressed to the attention of Bruce McNamara who was the business representative of Local 1687 and the person who had had dealings with the bargaining unit employees affected by this application. After Local 1687 had received the application, Mr. McNamara contacted one of the employees in the bargaining unit and drove from Sudbury to Sault Ste. Marie to see him. Local 1687, after receiving the application, took steps to deal with it. Local 1687 filed a response to the application in which it stated that the correct name of the responding was the IBEW CCO, and expressly stated in the response that the response was being filed by Local 1687. The response filed by Local 1687 also provided the correct address for the responding party. The transmittal letter from counsel for Local 1687 sending its response to the Board stated that Local 1687 had been served with the application and went on to state: "The responding party, the International Brotherhood of Electrical Workers and the IBEW Construction Council of Ontario has not been served with the application by the applicant." The applicant did not deliver the application directly to the IBEW CCO at any time up to the hearing of this matter. The IBEW CCO did not file a response to the application. When counsel for Local 1687 was asked by the Board how he had standing to make submissions with respect to inadequate service of the application on the IBEW CCO if he was acting only for Local 1687, counsel submitted that he was also counsel for the IBEW CCO for the limited purpose of arguing the inadequacy of service of the application on it and to support the position taken by Local 1687. Counsel for Local 1687 (and the IBEW CCO with respect to the service issue) candidly acknowledged that the IBEW CCO had received the application and other relevant material and had had notice of this proceeding as early as May 1, 2001. He also acknowledged that Local 1687 could have provided that material to the IBEW CCO shortly after having been served with it. He emphasized that the applicant had not delivered the application directly to the IBEW CCO.
4During the course of legal argument, I pointed out to the parties that the Registrar had delivered a Form B-99 Notice to Employee Bargaining Agency of Application for Termination of Bargaining Rights Under Section 63 or 132 of the Act, Construction Industry to the IBEW CCO by facsimile transmission on April 30, 2001. Included with Form B-99 was a copy of the application in this matter. The IBEW CCO, in compliance with the directions from the Registrar contained in paragraph 3 of Form B-99, delivered a copy of the requisite application material to each of its affiliated bargaining agents on April 30, 2001. Thus, the IBEW CCO had, at a minimum, received a copy of the application on April 30, 2001.
5The application was filed on April 26, 2001. Section 63(3) of the Act requires that the applicant deliver a copy of the application to the union within the time prescribed by the Rules. Rule 139 requires that the applicant must deliver the requisite material (a number of other documents in addition to the application) including the application to the union not later than two days after filing its application with the Board. Two days after April 26, 2001 (not including days on which the Board is closed) is April 30, 2001. Thus it was clear that the IBEW CCO was served with the application within the time prescribed by the Act (as was Local 1687). The issue, therefore, is whether the applicant's failure to deliver the application directly to the IBEW CCO by April 30, 2001 renders the application untimely, or to put it another way, whether the applicant's failure to deliver a copy of the application directly to the IBEW CCO was non-compliance with the express and explicit requirement set out in section 63(3) of the Act that must result in the dismissal of this application. (See Associated Contracting Inc., [1998] OLRB Rep. Nov./Dec. 903; Communications, Energy and Paperworkers Union of Canada, [1999] OLRB Rep. March/April 189.)
6The opening clause of section 63(2) of the Act states:
Any of the employees in the bargaining unit defined in a collective agreement may, subject to section 67, apply to the Board for a declaration that the trade union no longer represents the employees in the bargaining unit
The trade union referred to in section 63(2) is, at a minimum, the trade union party to the collective agreement in which the bargaining unit description is found. See Fritz Electric Ltd., [1999] OLRB Rep. Sept./Oct. 836. In this case, the trade union party to the collective agreement is obviously the IBEW CCO. The obligation upon the applicant to deliver the application to the "trade union" is found in section 63(3) which provides:
The applicant shall deliver a copy of the application to the employer and the trade union by such time as is required under the rules made by the Board and, if there is no rule, not later than the day on which the application is filed with the Board.
If the trade union referred to in section 63(2) is only the IBEW CCO and it is also the trade union to which the application must be delivered pursuant to section 63(3), then the applicant did not meet the requirement of section 63(3) since he did not deliver the application to the IBEW CCO; rather he delivered it to Local 1687 and it was either or both the Board and Local 1687 that delivered the application to the IBEW CCO. Counsel for Local 1687 argues, in essence, that as the IBEW CCO is the party to the collective agreement referred to in section 63(2) of the Act it must therefore be the union to which the applicant was required to deliver the application by reason of section 63(3) of the Act.
7In Jack Bird Plumbing & Heating Limited, [2001] OLRB Rep. March/April 375 the Board considered and rejected a similar argument. In that case the applicant for a declaration terminating bargaining rights had named only the affiliated bargaining agent (United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 46) ("Local 46") as the responding party. The employer and the employees affected in that case were bound by the provincial collective agreement between the Mechanical Contractors Association of Ontario and the Ontario Pipe Trades Council ("OPTC"). Both Local 46 and the OPTC appeared at the hearing and took the position that the term "trade union" in 63(3) must mean the employee bargaining agency as the party to the collective agreement and the entity that holds the bargaining rights that are the subject of the application. The Board did not accept that submission when it wrote at pages 378-79:
Local 46 and the OPTC argue that the reference to a trade union in subsection 63(3) can only refer to an employee bargaining agency because, in accordance with section 156, the bargaining rights of the affiliated bargaining agents are vested with the employee bargaining agency. Section 156 reads as follows:
- 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.
[my emphasis]
As indicated by the emphasis, the vesting of bargaining rights held by the affiliated bargaining agents to the employee bargaining agency is only for the purpose of conducting bargaining. Affiliated bargaining agents still maintain bargaining rights for all other purposes. There are a number of provisions throughout the Act confirming that bargaining rights are held by affiliated bargaining agents, the definition of which includes an employee bargaining agency. For example, the definition of a provincial agreement in section 151 indicates that the bargaining rights of employees whose working terms and conditions are covered by a provincial agreement are held by the affiliated bargaining agents. In addition, Section 158 provides that one or more affiliated bargaining agents or an employee bargaining agency may bring an application for certification and does so on behalf of all of the affiliated bargaining agents, including the employee bargaining agency.
Thus, it is clear that the Board viewed an affiliated bargaining agent as an appropriate responding party to an application for a declaration terminating bargaining rights in relation to the ICI sector of the construction industry.
8The OPTC and Local 46 also argued in Jack Bird Plumbing and Heating Limited that the Board's decision in Fritz Electric Ltd., supra required that the employee bargaining agency be served with the application and that serving only an affiliated bargaining agent was insufficient. The Board rejected that argument at page 380:
The decision in Fritz Electric Inc., supra, stands for the proposition that an applicant need not serve all of the affiliated bargaining agents with an application for termination, and that the employee bargaining agency can be served as it is a trade union as contemplated in section 63(3). It is not authority, however, for the position argued by Local 46 and the OPTC in this case; that the employee bargaining agency is the only entity to which an application for termination can be delivered. That issue was not before nor decided by the Board in Fritz Electric Inc, supra. The aforementioned comments were merely part of the Board's consideration for the concerns raised in Double S Construction, [1998] OLRB Rep. Aug. 800, cited earlier in its decision and the requirement to provide notice to all affiliated bargaining agents which, by virtue of possessing bargaining rights in accordance with section 158, were interested parties to the application. It is this very concern which prompted the Board to introduce Form B-99 by which it notifies an employee bargaining agency of an application and directs the employee bargaining agency to serve all of its affiliated bargaining agents.
The Board finds that the reference to a trade union in section 63(3) includes both an employee bargaining agency as well as an affiliated bargaining agency. The approach suggested by Local 46 and the OPTC is not supported by the language of the Act and is not consistent with one of the fundamental themes of the Act: ensuring that employees are able to exercise their rights to determine whether they wish to be represented by a trade union for the purposes of collective bargaining. To defeat this application for the reasons set forth is not a sensible result and ignores a basic reality amongst construction trade unions. It is the Board's experience that most, if not all, members of construction trade unions are familiar only with their local union and are not remotely aware of the bargaining structure with respect to the industrial, commercial and institutional sector and the existence of the employee bargaining agency. To require delivery to an organization which most members are not familiar with would make it extremely difficult for an individual to exercise his or her rights under the Act. Such a result is not in keeping with the purpose of the Act nor is it supported by the language of the statute.
9Counsel for Local 1687 also argues that since a single affiliated bargaining agent cannot abandon bargaining rights, an application relating to only a single affiliated bargaining agent cannot be sustained when the bargaining rights are shared by all of the affiliated bargaining agents and the employee bargaining agency. Counsel referred to Lornes's Electric, [1987] OLRB Rep. Nov. 1405 and J.D. Display & Interiors Ltd., [1998] OLRB Rep. March/April 217. In J.D. Display & Interiors Ltd. the Board discussed the structure of the Act and the manner in which bargaining rights are held in the ICI sector of the construction industry at page 222:
...it is important to keep in mind that when the Board considers whether there has been abandonment subsequent to March 1978, any such abandonment would have occurred in the ICI sector, a sector characterized by a provincial agreement and province-wide bargaining rights. Under the statutory scheme for the ICI sector, bargaining rights are held by and enforceable by each affiliated bargaining agent across the province; that is, by each bargaining agent designated by the Minister to be represented in bargaining by the employee bargaining agency for its trade. For virtually all trades that have more than one affiliated bargaining agency in the province, the province has been divided by the parent union into geographical areas (not necessarily contiguous with the Board Areas), and each affiliated bargaining agent has jurisdiction in a particular area. Yet each of them have bargaining rights for all contractors bound by the agreement, regardless of whether they operate in a locale within the jurisdiction of the particular affiliated bargaining agent. Any analysis of abandonment in the ICI sector must take place in the context of this province-wide scheme and the geographically distinct jurisdictions of the affiliated bargaining agents, and the interwoven, shared and province-wide bargaining rights they all enjoy.
It is the "interwoven, shared and province wide bargaining rights" that are the subject of this application and therefore, counsel for Local 1687 argues that, at the very least, the employee bargaining agency must be served by the applicant since it is the entity that is both party to the collective agreement and responsible for the province wide bargaining rights held in the ICI sector.
10In J.D. Display & Interiors Ltd., supra, the Board commented on the respective roles and responsibilities of the affiliated bargaining agents and their employee bargaining agency at page 229:
The employee bargaining agency has...a continuing role in the administration and enforcement of the provincial agreement it has negotiated, not limited in purpose or function to bargaining behaviour....
When the full scope of the structure and functioning of the ICI sector scheme is considered, it is extremely difficult to maintain that the employee bargaining agencies' role is limited to bargaining, or that the affiliated bargaining agents representing members in Board Areas where a contractor has not been actively working have no valid and legal interest in the work of that contractor. These affiliated bargaining agents do have continuing enforceable legal rights, as does the employee bargaining agency, with respect to the activities of contractors working anywhere in the province in the ICI sector. This is not to suggest that an affiliated bargaining agent has an obligation to enforce its rights in a particular case, and no doubt, an affiliated bargaining agent having jurisdiction in (for example) Thunder Bay will have little interest in work done by a contractor in Toronto, or seek to enforce the provincial agreement with respect to that work. However, it will certainly have a continuing interest in any work done within its jurisdiction, or for which it can assert a claim....
Certainly, the conduct of the employee bargaining agency, authorized by statute to represent the affiliated bargaining agents in certain respects, can be held against the affiliated bargaining agents, as can the conduct of an individual affiliated bargaining agent. In the latter case, however, an individual affiliated bargaining agent is not authorized, by law at least, to speak on behalf of other affiliated bargaining agents with respect to their jointly held bargaining rights. In practice, an affiliated bargaining agent might become so authorized.
Counsel for Local 1687 submits that the Board was correct in the analysis of the Act undertaken in Fritz Electric Inc., supra but argues that the Board's analysis in Jack Bird Plumbing and Heating Limited, supra was inconsistent with the Act and wrong and therefore should not be followed. Counsel pointed out that in this case the applicant had named the correct entity as the responding party, that is the IBEW CCO, but simply had failed to deliver the application to it, as required by the Act. It is not a case of not knowing what entity is the necessary party to the proceeding; rather it is the applicant failing to do what the Act required him to do.
11The applicant and the intervenor both argued that the IBEW CCO received notice of the application within the time stipulated by the Act. The applicant submitted that he did exactly what the Board in Jack Bird Plumbing and Heating Limited said was acceptable. Counsel for the applicant points out that Local 1687 was the "face of the union" as far as the applicant was concerned. He also referred to the Board's Information Bulletin No. 7 (Termination of Bargaining Rights in the Construction Industry Under Section 63 or 132 of the Labour Relations Act) which provides in section 3:
The applicant must deliver a Construction Termination Package (Union) to the union no later than two (2) days after the Application Filing Date....The Construction Termination Package must be delivered to the senior union official responsible for the bargaining unit. The senior union official may be a paid staff representative of the union, or a senior elected member of the bargaining unit, or the union steward on site.
12Counsel for the intervenor argued that the union referred to in section 63(2) of the Act is the union that represents employees. It was clear, he submitted, that Local 1687 represents the employees since it is the union that has the responsibility for administering the collective agreement in the geographic area in which the employees worked. Although he also submitted that Local 1687 was in a position to accept delivery on behalf of the IBEW CCO, there was no fact before me suggesting that Local 1687 was the agent of the IBEW CCO or that it held itself out as being the representative of the IBEW CCO.
13In Fritz Electric Inc., supra, the Board determined that service of an application for a declaration terminating bargaining rights in relation to the province wide ICI sector bargaining unit on the employee bargaining agency was adequate service within the meaning of section 63(3) of the Act. In Jack Bird Plumbing and Heating Limited, supra, the Board held that naming an individual affiliated bargaining agent as the responding party and serving that responding party with an application for a declaration terminating bargaining rights in relation to the province wide ICI sector bargaining unit on the employee bargaining agency was also adequate service within the meaning of section 63(3) of the Act.
14In the matter before me, the applicant named the correct trade union party in accordance with the Fritz Electric Inc. decision but served an affiliated bargaining agent in accordance with the Jack Bird Plumbing and Heating Limited decision. It seems to me that the policy reasons discussed in Jack Bird Plumbing and Heating Limited support the conclusion that the application was properly delivered. But, more importantly, a strict and careful reading of the Act allows me to come to that same result. Local 1687 is a trade union within the meaning of the Act and the definition of trade union under the Act includes a designated employee bargaining agency, that is the IBEW CCO. Section 63(2) refers to an application "for a declaration that the trade union no longer represents the employees in the bargaining unit." While section 63(2) would appear to suggest that there is only one trade union that can represent employees, the construction industry provisions of the Act in relation to the ICI sector have established a regime where there is more than one "trade union" that represents the employees in that sector of the construction industry, depending on the purpose of the representation. Local unions are responsible for administering the collective agreement in their particular area of geographic jurisdiction while the employee bargaining agency is responsible for negotiating the principal terms of the provincial ICI collective agreement. See section 156 of the Act and Kvaerner Jaddco, [2000] OLRB Rep. Sept./Oct. 891 at page 916 where the Board discussed which entity between the employee bargaining agency (EBA) and its affiliated bargaining agents (ABA) held bargaining rights. The Board wrote:
The ABA's of the EBA continue to hold bargaining rights, subject to the limitation of section 156. By definition, an ABA cannot "represent employees who bargain separately and apart from other employees" unless it holds bargaining rights....The concept that it is the ABA's which hold bargaining rights also underlies the Board's reasoning in cases involving whether or not there has been an abandonment in the ICI sector: Lorne's Electric Limited, [1987] OLRB Rep. Nov. 1405 and J & D Display Interiors Ltd., [1998] OLRB Rep. Mar./Apr. 217.
I am of the view that employees in the ICI sector of the construction industry are represented within the meaning of section 63(2) of the Act by both the employee bargaining agency and by the employees' local union (or affiliated bargaining agent). Therefore, it appears to me that an application under section 63(2) of the Act that relates to the ICI sector may be delivered to either the employee bargaining agency or to the local union with jurisdiction in the geographic area in which the employees were working on the date of the application and that such delivery will comply with section 63(3) of the Act and Rule 139 of the Board's Rules, provided, of course, the delivery is otherwise timely.
15The applicant delivered the application to Local 1687 within the time prescribed by Rule 139 of the Board's Rules and therefore satisfied the delivery requirement of the Act. Furthermore, the IBEW CCO had notice of the application and had received the application within that time. Under these circumstances, I am satisfied that the application was properly filed and delivered by the applicant.
16On the taking of the representation vote directed by the Board, more than fifty per cent of the ballots cast by employees in the bargaining unit were cast in opposition to the responding party.
17The Board declares that the responding parties no longer represent the employees of Phase 4 Electrical Contracting Ltd. for whom they had heretofore been the bargaining agent in the following bargaining unit:
all foremen, Journeyman, Wiremen, Instrumentation Electricians, Apprentices, Journeyman Linemen-Splicers, Apprentice Linemen-Splicers, Groundman/Equipment Operators, Groundman/Drivers, Groundmen, Utilitymen and Foresters performing work within the acknowledged jurisdiction of the Union, as defined in Section 151(2) of the OLRA.
18The Registrar will destroy the ballots cast in the representation vote taken in this matter following the expiration of 30 days from the date of this decision unless a statement requesting that the ballots should not be destroyed is received by the Board from one of the parties before the expiration of such 30 day period.
"Harry Freedman"
for the Board