Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftworkers v. International Union of Bricklayers and Allied Craftworkers, 2001 CanLII 17365

Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftworkers v. International Union of Bricklayers and Allied Craftworkers

File No.: 2532-98-U Date: September 20, 2001

Applicants: Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftworkers and the International Union of Bricklayers and Allied Craftworkers, Locals 1, 2, 4, 5, 10, 12, 20, 23, 28, 29, and 31, Jerry Coelho and Tom Oldham Responding Parties: International Union of Bricklayers and Allied Craftworkers, John T. Joyce, John J. Flynn, Frank Stupar, and James Bowland Intervenors: Terrazzo, Tile & Marble Guild of Ontario Inc., Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftworkers on its own behalf and on behalf of all its affiliated Locals, and the International Union of Bricklayers and Allied Craftworkers, Locals 6, 7 and 25, Masonry Industry Employers’ Council of Ontario

Before: David A. McKee, Vice-Chair.

DECISION OF THE BOARD

1. This is a request for reconsideration by the applicant in Board File 2532-98-U. The applicant in this file is in fact the Ontario Provincial Council of the International Union of Bricklayers and Allied Craftworkers (the "OPC"), Locals 1, 2, 4, 5, 10, 12, 20, 23, 28, 29 and 31 of the International Union of Bricklayers and Allied Craftworkers and certain named individuals. The request is made by "the OPC and the BACU". While this is technically incorrect, this request is not surprising. The group who are the officers the OPC and the BACU are the same individuals. They seek independence from the parent union, the International Union of Bricklayers and Allied Craftworkers (the "IUBAC"). For easy reference in this decision I shall, at times, refer to them as the OPC/BACU.

2. The dispute in this file is a dispute between two groups over which one of them will control "the Bricklayers Union" in Ontario. The BACU, while it is an independent trade union, is simply a vehicle for the group within the Union in Ontario seeking independence from the IUBAC. As I said in the May 2, 2001 decision, the BACU, if it had simply sought to establish itself as a rival trade union to the IUBAC and the OPC, had the opportunity earlier in 2001 to "raid" any number of bargaining units where the OPC held bargaining rights. It chose not to do so. Nothing in the correspondence from the applicant in this case suggests it has changed its position, nor is it obliged to do so.

3. To succeed, ultimately, requires severing the ties between the Union in Ontario and the IUBAC. To date, those seeking independence have been unable to do so using procedures under the Labour Relations Act, 1995. As I said paragraph at 185 of the May 2, 2001 decision:

185. Second, and far more important, is the absence of any statutory reason for severing the relationship between the IU and the Ontario Locals. The statute creates and protects local autonomy. This is a value which the statute defines in opposition to the well-known institutional values of most trade unions. Independence or disaffiliation is not a value protected by the statute or a procedure which is contemplated under the Act. The attempts by the Ontario Locals to use the various existing processes of the Act - trade union status, successorship, and applications under section 154, have been ingenious, careful, thoughtful and exceedingly well-planned. The attempts have failed, not through any lack of care and attention to detail, but because they seek to achieve a result to which none of these statutory provisions is directed. Indeed, the legislature did, in the second reading of Bill 80, contemplate a type of process for disaffiliation of locals in Ontario (albeit a timid and hesitant one in the proposed section 138.6), but that provision was never passed into law. The Act remains without a process for disaffiliation. Independence is not a value the Act seeks to protect. For that reason, the severing of the ties between the Ontario Locals and the IU is not an appropriate remedy.

There is nothing unlawful about continued attempts by those who favor independence to continue to seek their goal. So far they have been unsuccessful. It is neither necessary nor appropriate to comment about the future here.

4. This is a request to reconsider the decision of May 2, 2001. That decision fashioned a remedy. The remedy was for the breach by the IUBAC of the Act. It was fashioned in the context of the continued existence of the IUBAC as the "parent union" to the OPC and the local unions in Ontario. As I said at paragraph 189:

189. However, given the violations of the Act, and the motivation from which those violations stemmed, there must be a remedy which limits the organizational authority of the IU on a permanent basis. I stress this is not because the Board has any jurisdiction to regulate generally how trade unions behave, but because the IU has demonstrated it has little, if any, understanding about the limits of its authority imposed by the Labour Relations Act of this Province. Structural change in this union is necessary to protect the values and rights enshrined by the Act. It is not sufficient nor is it appropriate to do as the IU suggests, that is to fashion a remedy which restores the parties to the position they were in prior to the revocation of the charters. As the IU’s actions after the September 15 Decision demonstrate, the status quo ante, and specifically the IU’s belief about its role and authority, and its willingness repeatedly to breach the Act, is the problem that needs to be addressed.

5. Part of the relief requested by the applicant (the OPC) was the publication of a notice by the IUBAC indicating its breach of the Act, the remedial orders of the Board, and any other necessary information and delivery of that Notice to all members of the Union in Ontario. The Board did in fact make that order at paragraph 191 of the decision. To enable the IUBAC to accomplish this direction, the decision goes on to provide:

…the Board directs the IU to deliver by ordinary mail to each member, or to each person who may become a member pursuant to this Order, a copy of the Notice attached to this decision. To facilitate this delivery, the OPC, the BACU, each of the applicant Locals and Locals 6, 7, and 25 are to deliver to the IU a list of the addresses of all persons who are or are entitled to become members of the union within seven days of the date of this decision. The IU is to mail a copy of the Notice attached to this decision to every person on the lists within five days of receipt of the addresses.

6. The reason for this decision was that the IUBAC would not have a complete or up to date list of members and their addresses. It had received no information from the OPC or any of the applicant local unions about those whose address had changed or persons who had joined the Union since 1998.

7. Those favouring independence from the IUBAC objected to this order. They filed an application for judicial review, as they are entitled to do. (This panel is not involved at all in the application, as is the Board's practice. As far as I am aware this application for judicial review has not been perfected although discussions are apparently ongoing among counsel. No stay has been sought.)

8. The original decision in this application was released on May 2, 2001. On the same day, the Board also released a decision in a related application which dealt with the violation of the Act by the IUBAC in imposing a trusteeship on the OPC in October of 2000. That decision was found in Board File No. 2148-00-U and is referred to in paragraph 23 of the May 2, 2001 decision in this application. The OPC had filed the application in Board File No. 2148-00-U challenging that imposition of trusteeship. One of the types of relief sought in that application was:

9. An order that the Responding Parties [the IUBAC and certain officers], at their own expense, send a copy of the Board’s decision to each member of the International Union of Bricklayers and Allied Craftworkers, and each member of the Brick and Allied Craft Union of Canada, and publish the decision in all of the International Union of Bricklayers and Allied Craftworkers newsletters for two (2) consecutive months, and post the decision on its web site for sixty (60) consecutive days.

That is, on May 2, 2001, the OPC was actively seeking the same kind of relief for a similar violation of the Act by the IUBAC that the Board ordered in this matter. It did not amend that paragraph in its schedule of relief sought in Board File No. 2148-00-U until July 5, 2001.

9. It was only after receiving the May 2 decision in this file that the OPC concluded it no longer wanted what it had been asking for before that date. It wrote a letter to the Board suggesting an alternative way of proceeding on May 9, 2001. In response, the Board issued a decision May 11, 2001 which provided:

1. The Board has received a letter from Counsel to the OPC, the BACU and the "Ontario Locals". The letter appears to the Board to be a request for reconsideration, although it is not framed as one.

2. The Board's decision speaks for itself. It continues to do so until it is amended or reconsidered. Obviously in this case the Board would be unlikely to have any hesitation in reconsidering an Order or direction in the decision on agreement of the parties. Until a request for reconsideration is before the Board, on agreement or subject to a dispute, there is nothing for the Board to do.

Despite the invitation, no application for reconsideration was received. On August 27th, counsel for the OPC/BACU wrote to the Board advising:

In its Decision of May 2, 2001, the Board directed the International Union, having been found to have violated sections 147 and 149 of the Act, to send out to each member in Ontario, and persons who are entitled to become members, the Notice attached to the Decision. The International Union never sent out the Notice.

The Brick and Allied Craft Union of Canada has sent out that Notice, but was not able to do so until the middle of August, 2001.

Accordingly, the OPC and the BACU request that the Board extend the time for persons to signify in writing that they wish to be a member of the IUBAC from August 31, 2001 to September 30, 20001, to give persons an adequate time to respond to the notice.

10. The IUBAC responded by objecting to the allegation that the IUBAC had never sent of the notice. It stated it had never received the addresses as required in the Board's May 2, 2001 decision. It also included copies of documents it alleged had been sent by the OPC/BACU to all members in Ontario urging members not to join the International Union.

11. The Board will deal with a letter from the OPC/BACU as a request for reconsideration, notwithstanding that it was filed well beyond the time required by the Board's rules and has not been filed in the proper format. In any event the request is denied.

12. First, the request is slightly disingenuous. What the OPC/BACU objects to is the obligation to provide addresses to the IUBAC. It does not address the issue squarely however. The request slides over the real issue and asks the Board to amend the decision to permit the modification of the date by which members should respond to the IUBAC. The OPC/BACU's request assumes is that it is entitled to what it really wants (and has not asked for) and simply asks for a slight modification of something the Board has never ordered.

13. As the Board said in its May 30, 2001 decision, it is obvious that there must be a modification of the date for notice to the IUBAC of a wish to become a member by those persons who joined the Union after October 17, 1998 (all those who were members before that date are automatically to be treated as members of the IUBAC) and, perhaps the date on which dues are payable by all members. There is no point in doing so until there is some expectation of compliance with the Board’s direction. However, that modification must be made before the Notice is sent out, not after. To do otherwise can only lead to confusion.

14. More fundamentally, the request of the OPC/BACU has no merit. The purpose of the Board’s order was to provide notice to all persons who were entitled to be treated as, or to become, members of the IUBAC. The order was not designed to create some form of platform for debate. However, there is nothing inherently wrong with free debate within a trade union about its future direction. What the OPC asks the Board to do in this case is to modify its order so as to restrict debate within the Union.

15. Although it reacted strongly to an attempt by the IUBAC to limit debate or dissent within the Union prior to 1998 (as well it should have done), the OPC/BACU and now asserts that it alone should control debate within the Union. Free speech apparently occurs only when those favouring independence speak. All others should be hindered in any attempt to communicate to members.

16. The assertion made is that the Board's order is offensive in that it requires the BACU, an independent trade union, to provide a list of its members to the IUBAC. This is a superficial analysis. First, it is likely that the IUBAC has most of the addresses of members who were members before 1998. When lists of approximately 25 percent of the active membership (in 1998) of Local 1 (Hamilton) were produced by the OPC and the IUBAC in another application, (Kvaerner Jaddco Board File No. 2784-98-U where the Board delivered notices), there were only two of approximately 110 addresses which were different. Further, from the evidence I heard in these proceedings, there are members of the BACU who have joined since 1998 who were never members of the IUBAC. I heard no evidence about their reasons for joining or their perception of what they were joining. However, the BACU presented itself as "the Bricklayers Union" in the Province of Ontario. It was able to do so because the BACU was de facto in control of the Union, although its authority to do so may have been questionable at the time. Certainly there is no suggestion made that the new members were given any explanation about the distinction between the BACU and the IUBAC or any choice about which union they wished to join. They were simply issued cards in the BACU.

17. The purpose of the request for reconsideration, both on the surface and in essence, is to modify the Order of the Board in a manner that would enable the OPC to restrict internal debate about the future of the Union. This is not necessary to give effect to the Board's decision which was, after all, a remedy for a violation of the Act by the parent union adversely affecting constituent local unions and a council of that union. In any event, the Board does not consider it appropriate to permit the OPC now to amend its request for relief, once it finds that the relief has been granted, in order to restrict debate within the Union.

18. The application is dismissed.

“David A. McKee”

for the Board