1904-99-U International Union of Bricklayers and Allied Craftsmen, Locals 6, 7 and 25, Applicants v. Brick and Allied Craft Union of Canada, Jerry Coelho, Tom Oldham, Kerry Wilson, John Haggis and Luigi Scodellaro, Responding Parties v. IUBAC Locals 1, 2, 4, 5, 10, 12, 20, 23, 28, 29, and 31; Masonry Industry Employers’ Council of Ontario; Terrazzo, Tile and Marble Guild of Ontario Inc., Intervenors.

2532-98-U 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, Applicants v. International Union of Bricklayers and Allied Craftworkers, John T. Joyce, John J. Flynn, Frank Stupar, and James Bowland, Responding Parties v. 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, Intervenors.

2736-00-R Brick and Allied Craft Union of Canada, Applicant v. The Terrazzo, Tile and Marble Guild of Ontario Inc. and Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftworkers, Responding Parties.

2737-00-R Brick and Allied Craft Union of Canada, Applicant v. Masonry Industry Employers’ Council of Ontario and Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftworkers, Responding Parties.

BEFORE: David A. McKee, Vice-Chair.

APPEARANCES: Lorne Richmond, John Haggis and Tom Oldham for the Brick and Allied Craft Union of Canada; Don Eady and Graham Aiken for the International Union of Bricklayers and Allied Craftworkers; Michael Gottheil and Lou Mascarin for the International Union of Bricklayers and Allied Craftsmen, Locals 6, 7 and 25: Carl Peterson and Bob Sanelli for The Terrazzo, Tile and Marble Guild of Ontario; David Bannon for the Masonry Industry Employers’ Council of Ontario

DECISION OF THE BOARD; May 2, 2001

1These four applications all represent a different facet of the same dispute. All represent a desire on the part of eleven local unions of the International Union of Bricklayers and Allied Craftworkers (the “IUBAC” or the “IU”) in Ontario to be independent of the IUBAC. In this they are opposed by the IUBAC and the other three local unions in Ontario (“Locals 6, 7 and 25”).

2The question for the Board, posed in different ways in each of the four applications is “should the Ontario Locals of the IUBAC be granted a status independent of the IU, and if so, to what extent can or should they retain bargaining and other statutory rights, organizational structures, property and assets?” The answer is ultimately “no”. The Act does not contain any process by which the Ontario Locals may, as of right, demand such status. While such a remedy might be within the Board’s power under section 96, it is neither appropriate nor necessary to grant such a remedy in this case.

The Four Applications

3Board File 2532-98-U is chronologically the first of these applications, but hardly the beginning of the story. It was filed in 1998. It is an allegation that the IU violated sections147, 149 and others in revoking certain local union charters. These revocations came after a lengthy struggle for greater autonomy by the Ontario Provincial Conference of the IUBAC (“the OPC”) and Locals 1, 2, 4, 5, 10, 12, 20, 23, 28, 29 and 31 of the IUBAC (collectively the locals in the OPC will be referred to as “the Ontario Locals”) from the IUBAC. This struggle led the IUBAC to revoke the charters of the Ontario Locals in 1998. In a decision in this file dated July 19, 1999 the Board (differently constituted) found that this was a violation of sections 147 and 149 of the Act. This decision deals with the appropriate remedy for this breach.

4The Ontario Locals also undertook their own response to the IU’s action independent of any relief sought from the Board. They acted upon the revocations of the charters and created a new trade union, the Bricklayers and Allied Craft Union of Canada (“BACU”). Initially, they took the position that the BACU was simply the old OPC which had been transformed into a new independent entity. Similarly, they asserted that the IUBAC Locals had been transformed into BACU Locals. Alternatively, they asserted that the Ontario Locals had transferred all of their rights, duties and privileges to the BACU and the BACU Locals.

5One of the practical steps taken by the BACU was to execute a provincial collective agreement (which had been originally negotiated in the name of the OPC prior to the revocation and ratified by their members prior to the revocation) in the name of the BACU. This action was the subject of the complaint in Board File 1904-99-U.

6Board File No. 1904-99-U is a complaint filed by IUBAC Locals 6, 7, and 25 against the BACU and certain individuals about the Provincial Collective Agreement which was negotiated with the Terrazzo, Tile, and Marble Guild of Ontario. This panel of the Board heard evidence in Board File 1904-99-U and another file (Board File No.2784-98-R, a certification application involving Kvaerner Jaddco). In a decision released September 15, 2000 in those files (the “September 15 Decision”), the Board dealt with the voluminous evidence that had been led about the events leading up to the revocation of the charters and those which followed it. While I was not seized of Board File No. 2532-99-U at that time, I heard virtually all of the evidence relevant to that application in hearing the initial part of Board File No. 1904-98-U. The Board did not accept the submissions of the BACU with respect to its alleged transformation or successorship and declared that the Ontario Locals were still affiliated with the IUBAC and retained all of their bargaining rights as such affiliated local unions.

7Part of the September 15 Decision dealt with discretionary reasons why the Board would not issue a declaration of successorship. Certain evidence in this proceeding was directed to steps taken by the BACU since that time in its attempt to respond to those discretionary concerns. In this application the BACU renewed its request that it, and each of the BACU locals be declared successors to the OPC and the IUBAC locals. That application is also dealt with in this decision.

8Board Files 2736-00-R and 2737-00-R are applications made by the BACU for certification under section 154 of the Labour Relations Act, 1995, S.O. 1995, ch. 1 (“the Act”). Board File 2737-00-R is an application by the BACU to be certified as the employee bargaining agency in place of the OPC for bricklayers in the ICI sector in the Province of Ontario. Board File 2736-00-R is a mirror image application in respect of tilesetters in the ICI sector in the Province of Ontario.

9This decision represents a final decision with respect to all four files, with the exception, possibly, of Board File 1904-99-U.

The Story So Far

10Much of the facts which are relevant to this decision are set out in two other decisions of this Board. First is the September 15 Decision referred to above. In fact, that is an interim decision in Board File 1904-99-U of which this is a nearly final decision. However, the facts may be briefly summarized as follows.

11At some time before 1995, a movement began to take shape in Canada, or at least Ontario, seeking greater autonomy for Canadian Locals within the IUBAC. In 1995 there was a General Convention of the IUBAC. Those Canadian locals in favour of this autonomy attended the Convention and supported the slate which lost the election.

12Nonetheless, a convention of the OPC and the Ontario Locals was called for December 2, 1995 to discuss further autonomy measures. In response, the IUBAC placed the OPC in receivership (the term in the IUBAC constitution for a trusteeship). The Convention was held anyway and certain resolutions with respect to autonomy were passed.

13A complaint under section 96 alleging a violation of sections147 and 149 was filed in response to the receivership. (Board File No. 3041-95-U). This was settled in March 1996. The parties agreed to talk further about concrete steps for greater Canadian autonomy.

14In February 1997 the Ontario locals held a mailed ballot referendum. The results of this referendum were largely in favour of self-government and autonomy within the IUBAC for Canadian Locals. These general resolutions were distilled to more specific plans to take action leading to local autonomy at an OPC Convention in June of 1997.

15In December of 1997 the OPC filed two applications under section 154 seeking to have itself declared as the sole Employee Bargaining Agency for the two Provincial Collective Agreements under which members of the union work in Ontario. The Board heard these matters starting in February 1998.

16In the midst of those proceedings, the IU imposed a receivership on the OPC and, on the authority of that receivership, purported to withdraw the applications. The Board did not permit it to do so. The OPC filed another complaint alleging a violation of sections 147 and 149 (Board File No. 4532-97-M). In an interim decision in April, 1998, the Board suspended the receivership under its then interim powers. The matter never came back on for hearing.

17The Board ultimately granted the relief sought in the section 154 applications. The OPC bargained as the Employee Bargaining Agency without the IU at the table at all. It then proceeded to bargain with its two counterparts Masonry Employers Industrial Council of Ontario (“MEICO”) for the “Brick” agreement and the Terrazzo, Tile and Marble Guild of Ontario Inc. (“Tile Guild” or “TTMGO”) for the “Tile” agreement. As will be discussed further below, one of the issues that arose in the bargaining was a demand by the OPC for an “autonomy” clause (more properly called an “independence clause”). MEICO filed a bad faith bargaining complaint against the OPC (Board File No. 1745-98-U). The IU intervened. This matter too was settled.

18One of the matters agreed to at the OPC Convention and in bargaining was that the Provincial Collective Agreements with MEICO and the Tile Guild would no longer contain an hourly “dues check off” provision for dues to the International. The IU was given no notice of this bargaining agenda. In July of 1998 the OPC and the Ontario Locals ceased to send any dues to the IU. Ultimately, the IU was so incensed that it revoked the charters of the OPC and of the 11 Locals which had withheld dues. It set up a new OPC and 11 new Locals to supplant the old locals in Ontario. Ultimately the “New” OPC and “New Locals” failed to gain any acceptance at all.

19This act of the IU was also met by a complaint alleging a violation of sections 147 and 149 – Board File No. 2532-98-U, one of these applications. In addition to these applications, the OPC and the Ontario Locals decided to declare independence and take certain steps to achieve that end. They held a founding convention of the Brick and Allied Craft Union of Canada (“BACU”). They represented to the entire world that they were either the same organization as the “Old OPC” (and “Old IUBAC Locals”) with a new name, or alternatively they were the successors to the OPC and the Old Locals.

20In two decisions of this Board (differently constituted) in Board File No. 2532-98-U, the Board found that the IU had violated sections 147 and 149 in revoking the charters of the OPC and the Ontario Locals.

21The focus of litigation thereafter shifted from Board File No. 2532-98-U. In an application for certification involving Kvaerner Jaddco (Board File No. 2784-98-R), and in Board File No. 1904-99-U (one of these applications) the BACU attempted to persuade the Board that it was in fact either the OPC transformed and renamed, or that it was the successor to the OPC. In the September 15 Decision, this panel of the Board rejected that assertion. The facts outlined above are set out in much greater detail in the September 15 Decision, and those findings of fact are relied on, to the extent necessary for this decision.

September 15 Decision

22This decision was a disappointment to the BACU. Aside from the result, there were a number of bases on which they criticized that decision. These are summarized briefly in Hyde Park Masonry, [2000] OLRB Rep Nov/Dec 1133. Some time was devoted by the BACU in the course of the evidence in this application to attempting to contradict findings of fact in the September 15 Decision. As noted in the Hyde Park decision, that decision does contain one error in paragraph 30. That is, the trusteeship of Local 10 (Kingston) of the IUBAC referred to in that paragraph in fact occurred after the meeting in Boston rather than before that meeting. That much is evident from reading the decision in International Union of Bricklayers and Allied Craftworkers, [2000] OLRB Rep. Jan. 70. It is evident that the departure of Ontario representatives from that meeting had nothing to do with the imposition of a trusteeship on Local 10. However, that error was of no consequence to the result in the September 15 Decision. The other evidence proffered to challenge the findings of fact or assessments of credibility in the September 15 decision (which I permitted to be led over the objections of the IUBAC and Locals 6, 7 and 25) did not persuade me that there was anything else in that decision which was incorrect.

Trusteeship 2000

23In October of 2000 the IU again imposed a receivership. Essentially, the IU wrongly interpreted the September 15 Decision as meaning that they had won everything. They had not. However, in their belief that they had done so, the IU moved in a heavy handed and authoritarian manner to re-establish their ultimate control over the Ontario Locals. When they met resistance from the OPC and the Ontario Locals, they imposed a receivership. The OPC filed a complaint alleging a violation of section 149 and other sections of the Act (Board File No. 2148-00-U). The Board scheduled a consultation to deal with the one issue of whether or not the receivership constituted a violation of section 149. I was the Vice-Chair appointed to hear and decide that case. All the union parties in that case were the same as the union parties in this case and were represented by the same counsel. A brief decision was issued on January 17, 2001. A fuller decision is being issued contemporaneously with this decision. Because this was a consultation, no evidence was heard. The parties addressed some further evidence in this case on the issue (primarily by the BACU in its cross-examination of Mr. Flynn). I rely on the facts and the analysis in the final decision I am issuing in that case, supplemented by the evidence heard in these proceedings. Ultimately I conclude in that decision:

37. The actions of the IU were not simply errors of judgement or a misplaced sense of timing. The IU did not display, on the facts of this case, any interest in paying more than lip service to the idea of re-establishing a working relationship with the Ontario Locals. It quickly revealed its primary interests and agenda: a demand for absolute obedience and immediate control of the assets and operations of the Union in Ontario. Only when it had established these “non-negotiable” objectives was it prepared to sit down and talk to the Ontario Locals about whatever else was on their mind. To proceed from that basic position was fundamentally to misconceive the role of a parent union under the Act. A parent union does have a role, but it is not that of an absolute dictator. This appears to be something the IU has not learned, despite ample opportunity to do so over the past five years.

Evidence in these Applications

24The Board heard from three witnesses: Mr. John Haggis, Mr. John Flynn, and Mr. Kerry Wilson. In addition, counsel were able to agree on a large number of documents and some facts which substantially shortened the proceedings and placed the evidence in much sharper focus than might otherwise have been the case. The findings of fact set out below are those I have come to as a result of the evidence led in this proceeding.

Pension Funds

25The Board heard a considerable amount of evidence about two pension plans which are applicable to officers and members of the IUBAC and the BACU. The first is a pension plan covering officers and employees of local unions. This was originally known as the Local Officers and Employees Pension Fund (“LOEPF”). It was found in Board File No. 3514-97-U to be a plan which covered officers and employees of local unions in Canada only and was distinct from a mirror plan covering officers and employees of locals in the United States. Its name was later changed to the Canadian BACU Representatives Pension Trust (“CRPT”). Notwithstanding the change of name, this is the same plan.

26The second is a plan for the benefit of bricklayers and tilesetters working in the Province of Ontario and who are members of the union. Its name is the Bricklayers and Trowel Trades International Pension Fund – Canada (“IPF”). The structure of this plan is a matter of some debate between the parties and not one that the Board can or should resolve. It was the evidence of Mr. Flynn that there is a single trust fund which operates two pension plans, one in the United States and one in Canada. The BACU takes the position that the IPF in Canada is a single trust fund. There is no dispute, however, that this plan is regarded as a separate pension benefit plan for the purposes of the Pension Benefits Act and is treated as a separate trust fund with different trustees and separate assets from the IPF plan covering members in the United States.

27When the evidence was first led with respect to the pension plans, there was an objection by the IUBAC and by Locals 6, 7 and 25 that the evidence ought not to be heard. This objection was dealt with in a decision dated January 24, 2001 wherein I ruled that I would hear the evidence for certain limited purposes. In that decision I said:

4. The basis of the objection was that the propriety of the actions of the Trustees of these two plans is to be determined in a trial which has been placed on the Trial List in the Superior Court of Justice (the International Union of Bricklayers and Allied Craftworkers et al v. Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftworkers et al, Court File No. 00-CV-184822), or in an application for windup or partial wind up before the Financial Services Commission of Ontario (“FSCO”). Further, the IU asserts that since the Board cannot grant any relief in respect of the dispute involving the two pension plans (that being within the jurisdiction of the Superior Court of Justice or FSCO), the evidence is not relevant to any issue in this application.

5. The response of the applicant is that it does not seek any relief in respect of the two pension plans from this Board. It seeks, ultimately, a declaration that the ties between the IU and the Ontario Locals be dissolved. Such an order would be, it is asserted, appropriate in the exercise of the Board’s jurisdiction to fashion the appropriate remedy for the IU’s violation of the Act. While counsel for the applicant asserts that my earlier characterisation of this relief as “extraordinary” was an overstatement, he did agree that the Board had never granted this remedy before. In his submission, the evidence will assist in demonstrating that there is irrevocable damage to the relationship between the IU and the Ontario Locals, and that there are irreconcilable differences between them. He stated that he would ask me to find at the end of the day that the IU was motivated by a desire to punish the Ontario Locals and by a determination that, if the IU could not control the administration of the pension plans (and by extension anything in the union), it would destroy them.

6. I ruled that I would hear the evidence for a limited purpose. The matters which are before FSCO and the Superior Court of Justice are not before me in any way. The issue of the relationship between the IU and the Ontario Locals is before me, in the sense that I must decide the appropriate relief to be granted in this application. In determining that question I conclude that I can and should hear the evidence which the applicant seeks to lead. I can draw conclusions that are relevant to my task in this case from the parties’ stated objectives and how far they are prepared to go in achieving those objectives. These facts will assist in determining whether the relationship between the IU and the Ontario Locals is no longer viable or whether it may be viable with certain adjustments to it. I will not and do not intend to make any finding of the lawfulness or otherwise of any act of any party nor will I make any finding as to the motives of the parties for their actions. Those issues are central to the matters before the Superior Court of Justice and FSCO.

7. Not only are they central to those proceedings, they are not necessary findings for the Board to make. The evidence is relevant to the issue of the relief sought by the Ontario Locals. However, what is relevant to that determination is what the parameters of the dispute are, what the parties (rightly or wrongly) believe their position to be, what their objectives and ambitions are, and the lengths they are prepared to go to achieve them. That is relevant to any question of the ongoing relationship of the parties. What is irrelevant is whether any party has been acting on the basis of a motive which can only be described as unlawful.

8. Indeed, if I were to determine that the IU’s actions were unlawful and that as a consequence of that finding make certain orders affecting the IU, it would be hard to avoid the conclusion that the remedy was, in some sense, punitive. Remedies for a violation of the Act are compensatory and restorative; they are not and should not be punitive.

9. For these reasons I ruled that I would hear the evidence about actions concerning the pension plans for the limited purposes set out above.

28My ruling about the purpose for which I would review the evidence with respect to the LOEPF and the IPF, of necessity restricted the amount of evidence which was led and subject to cross-examination. As a matter of jurisdiction, it is not for this Board to comment on the propriety or legal correctness of any decision, or to come to any conclusion about the good faith or otherwise of any of the parties. It should be noted in reading this decision that the Board had only part of the full facts with respect to these plans (although that in itself was voluminous) and that a different focus or emphasis might emerge from an examination of the same issue by either FSCO or by the Superior Court of Justice. As a matter of fairness, I cannot comment on any of these issues since I did not hear all of the evidence or argument that was relevant to them. Issues that appear to raise a question in my mind may easily be answered in the context of evidence I did not hear. For the purposes of this decision, I shall proceed on the basis that all parties acted in good faith and that all of their actions were in conformity with statute law (Pension Benefits Act, Trustee Act, etc.) and with general trust law.

Officers’ and Employees’ Plan

29There was a plan established at some time in the 1970’s to cover officers and employees of local unions. The LOEPF was governed by a Board of Trustees composed of five Trustees appointed by the union. Historically, the International Union had appointed all of the Trustees. The Ontario Locals brought an application pursuant to section 150 to require the trustees to be elected by members in Ontario. In a decision among these parties dated July 19, 1999 (reported at [1999] OLRB Rep. July 628) the Board declared that the Ontario Locals were entitled to elect three persons, namely Mr. Coelho, Mr. Wilson and Mr. Haggis. The International Union sought a stay of that decision which was denied by the Superior Court of Justice on October 27, 1999. Following that decision, the Board of Trustees was composed by a majority of persons appointed by the Ontario Locals. Ultimately the application for judicial review was dismissed.

30I heard evidence from John Haggis, who is both an officer of the BACU and a trustee on the LOEPF. Neither in his examination-in-chief nor in cross-examination was there any attempt to distinguish between these two roles. He was frequently asked questions of the sort: “What was your intention…?” without clarifying whether he was speaking as a trustee or as a union officer. In keeping with the restriction noted above, I will assume that when a decision ought to have been made by trustees, Mr. Haggis was speaking about what he did as a trustee, and when a decision was or ought to have been made by the union, he was speaking as a union officer. I also heard evidence from Mr. Flynn, the International President of the IUBAC. Mr. Flynn is a trustee of the IPF – US, but not of the IPF – Canada or of the LOEPF.

31Following the release of the results of the stay application, the Board of Trustees of the LOEPF met and took steps to replace the other two trustees appointed by the International Union and replaced them with two Canadian trustees. These individuals were representatives of locals outside of Ontario. The name of the plan was changed to the CRPT. Mr. Haggis said that the purpose of replacing the two IU trustees in the LOEPF was to “ensure that the plan would not be used against “the officers of the Ontario Locals”. He further stated that the purpose of allowing officers of locals outside of Ontario who were still within the IUBAC to continue as members of the plan, was to ensure the financial viability of the plan and “to take the club away from the International”. The IUBAC has commenced an action in the Superior Court of Justice with respect to this action.

32At the meeting in February of 2000, Mr. Flynn stated that the IU had received complaints from locals outside of Ontario and from Locals 6, 7 and 25 in Ontario, that they did not wish to participate in a plan controlled by, in their view, a rival trade union. On March 2, 2000 Mr. Flynn sent a letter to all Canadian Locals which stated:

“Many Canadian locals and their officers have told us they are unhappy at the prospect of having their Local Officers’ and Employees’ Pension Fund (“LOEPF”) coverage continue under the Canadian plan now controlled by the breakaway Ontario group. They have asked whether they can become a part of the LOEPF that currently covers United States locals and their officers and employees.

I am pleased to advise you that the trustees of the BAC – LOEPF that now covers United States locals have agreed to accept contributions from Canadian locals. The BAC – LOEPF will provide benefit credits to officers and employees of those local unions for future periods during which contributions are made to our plan. You will also receive vesting credit for your past service under LOEPF – Canada.

As to the past periods, we have been advised by Canadian counsel that you cannot be deprived of the benefit entitlements already earned under the Canadian plan now controlled by the breakaway Ontario group”.

Most, but not all, Canadian locals accepted this option.

33The BACU was outraged at the IU’s invitation to other local unions. In their view, this would trigger a windup of the plan under the Pension Benefits Act. In evidence and argument before me, the IUBAC took no position on whether or not the windup was necessary or appropriate. However, Mr. Flynn repeatedly testified, without contradiction, that when the change in governance of the plan took place in late 1999, the last figures in the International’s hands indicated that the assets of the plan represented 114% of the accumulated liabilities of the plan. That is, it was in a surplus position and would have been able, on a windup, to pay for all outstanding pension benefits, and still have a surplus left over.

34On April 10, 2000 the trustees of the plan sent a letter to all members which stated in part:

“If enough local unions cease making contributions to the Canadian plan, there is a serious risk of a partial windup of the Canadian plan. If that occurs, the benefits you have earned over the years may be reduced by an actuarial percentage that cannot be ascertained at this time, but which will have to be determined at the time of the windup”.

35It was suggested (and denied) in cross examination that the surplus referred to by Mr. Flynn was predicated on the assumption of continuing contributions by all local unions to the LOEPF. I am, of course, unable to resolve that factual issue.

36The efforts of the trustees of the LOEPF, now called the CRPT, to expand their membership beyond the borders of Ontario met with limited success. The trustees met in Calgary and Halifax and, on one occasion in San Francisco (in conjunction with another conference in which all the trustees were in attendance). However, I heard evidence of only one local in Alberta, which continues to contribute to the CRPT. Mr. Flynn was at pains to point out that this was an option that local was free to pursue and testified that the IU had in fact increased the geographic jurisdiction of that Alberta local since it made that decision.

37One of the non-Ontario trustees, Mr. Vautour, from New Brunswick, was removed by a motion of the trustees as he personally and his local were “participating in a competing pension plan”, i.e. the plan covering American officers and employees.

38An exchange of correspondence was put into evidence. On September 25 the trustees of the CRPT proposed to permit the IU to appoint two trustees provided all local unions in Canada were required to make the payments required into the plan. It was suggested this would eliminate the need for the ongoing litigation.

39By letter dated October 31, 2000 the IU replied rejecting this offer. It stated that the civil action related to more than simply the identity of the trustees. The major issue for the IU was whether or not the trustees were free to amend the “constating documents of the plan, including the 1983 Restated Agreement and Declaration of Trust to which the International Union is a party”. Finally the IU took the position that it could not compel locals to participate or to refuse to participate in the plan.

40On January 15, 2001 Dan Plunkett, an officer of Local 7, was advised that his pension benefits would be reduced by eliminating what were termed “future service credits”. Since the text of the LOEPF or CRPT was not in evidence, it is impossible to determine what future service credits in fact are. That is, I am unable to say whether this letter represents a reduction in benefits to which Mr. Plunkett would otherwise be entitled, or simply an indication that his ability to continue to increase the level of benefits available has come to an end.

41The BACU continues to take the position that the actions of the International Union, which have reduced the number of contributors to the plan by 40%, will ultimately trigger a partial windup of the plan. Both the BACU and the IU have sent many letters and leaflets on this subject to Ontario locals. As of the date of the hearings in these applications, the action was still pending before the Superior Court of Justice (a trial date has been set) and no application to FSCO for a windup has been made.

The Members’ Plan

42The governance structure of the IPF – Canada is somewhat different. The plan is jointly trusteed with three trustees appointed by “the union” and three by employer groups. In fact, only two employer trustees have been appointed at this time, although pursuant to the plan documents, those two trustees cast three votes at any meeting of the board of trustees. The three union trustees, originally, were Mr. Frank Stupar, an Officer of the IU, Mr. Coelho, and Mr. Plunkett. Mr. Plunkett is an Officer of Local 7 of the IUBAC. Following the refusal of a stay by the Superior Court of Justice, Mr. Wilson replaced Mr. Plunkett.

43The IPF was not in particularly good financial health. Both sides accepted the proposition that in March of 2000, the assets were sufficient to fund only 85% of the liabilities of the plan, that is, there was an actuarial deficit in the plan. (There was some suggestion made at one point that this was the result of favourable treatment to a group of new members to the plan resident in Alberta, but this assertion was not pursued in evidence) In addition, there was a demand among Canadian members to remove a 25-year “cap”. That is, although members continued to contribute to the pension plan after they had been contributing for 25 years, such contributions had no effect whatsoever on the level of benefits ultimately received. This appeared enormously unfair to Ontario members.

44To eliminate such a cap would of course require additional funds, since to do so without increasing the level of contributions would simply create a further unfunded liability for the plan. Mr. Flynn testified that the IU agreed in principle with the elimination of the cap. It had been instituted at the founding of the Plan in order to fund a liability created by allowing up to 24 years of “past service credits” to older members of the Union. Many members of the union at that time were likely to retire long before they had worked 25 years. The cap had been removed in the IPF-US Plan. The IU would be happy to see the cap removed from the Canadian Plan, provided that the funding to pay for this increased benefit (and the existing 15% unfunded liability) was found.

45One of the employer trustees is Mr. Eugene George, who is a bricklaying contractor from the Kitchener area. Mr. George did not testify. The BACU frequently suggested that he simply acted as the nominee or instrument of the IU. Mr. Flynn denied this and pointed out that Mr. George had been instrumental in the creation of the plan in the first place and had devoted a considerable amount of personal time to “selling” the idea of participating in the plan to various locals across the country. On the evidence, I cannot find that the two employer trustees acted at the behest of the IU at any time.

46The administrator of the plan is Mr. David Stupar. He is the son of Frank Stupar. His office is in the offices of the IU in Washington. No meetings of the board of trustees occurred before March 30, 2000. Meetings were set in various locations, including Windsor and Ottawa. Mr. Coelho and Mr. Wilson refused to attend those meetings and insisted that a meeting be held in Toronto. Counsel for the IU offered to make available a meeting room in his offices in Toronto for the purpose of such a meeting on April 13, 2000. This meeting did not take place as Mr. Coelho and Mr. Wilson insisted on a right to bring counsel with them and to have the proceedings transcribed by a court reporter. When Mr. Coelho and Mr. Wilson do not attend a meeting, there are insufficient numbers of trustees to constitute a quorum.

47By letter dated March 3, 2000 the BACU, and Jerry Coelho and Kerry Wilson as trustees, advised the IU of their position. The BACU, relying on a provision in the provincial collective agreement, asserted it had the right to require contributions to a single pension plan at any time, and to change the identity of the plan to which contributions were made. In its March 3 letter, the BACU stated:

“Unless the parties can agree to changes to the governance of this Plan as indicated in this letter, all contributions to this Plan under the BACU collective agreements will cease beginning with the May 2000 work month. From that point onwards, contributions will be made to a new pension plan. Notice to this effect will be sent to the employers, in accordance with the terms of the collective agreements”.

The terms set out were as follows:

(1) The BACU was prepared to increase contributions to eliminate the solvency deficiency but only if they were provided with the actuarial valuations and other financial information from the plan.

(2) The 25-year cap rule had to be eliminated.

(3) The administrator would have to be replaced by a different administrator.

(4) Meetings of the trustees were to be set on a “cooperative and convenient basis”.

(5) The trust plan and documents were alleged to be “out of date” and required amendment, specifically “the trust and plan documents require membership in the International Union, a qualification not held by the vast majority of active members. This legally ambiguous situation cannot continue and the trust and plan documents should be amended to provide for eligibility for members of the BACU.”

The letter then stated:

“In short, the Ontario members will not have their pension plan run by hostile trustees and service providers whose first priority is to use the plan for political ends, and whose only loyalty is to the International Union instead of to the beneficiaries of the plan through all of the trustees who have been lawfully appointed to protect their interests.

The BACU executive board members invite the members of the Executive Board of the International Union to meet with them and to discuss the solution proposed here before the Board of Trustees’ meeting. If satisfactory arrangements can be made, then contributions will not only continue, but will be increased. If satisfactory arrangements cannot be made, contributions will be increased but made to a new plan. Winding up procedures for this pension plan can be expected shortly thereafter”. (Emphasis added).

48Mr. Haggis testified the purpose of this letter was to “put the IU on notice that we wanted to take over the pension plan and keep it going but had to make changes that our members have been screaming about for years”.

49On March 16, the IU through counsel replied suggesting a meeting at their counsel’s office, but indicated that this would be a meeting of the trustees only and would not be a meeting with the BACU executive board.

50On March 27 the BACU sent a letter to MEICO and to the Tile Guild relying on provisions of Article 30 of the provincial collective agreement to direct the payment of pension contributions to a new pension fund commencing in the work month of May 2000 and inviting the associations to participate in the governance of the plan by appointing trustees.

51As indicated, the trustees’ meeting was brief and resolved none of the issues set out in the BACU’s letter. Accordingly, commencing with the work month of May 2000, contributions to a pension plan were diverted from IPF – Canada to a new plan.

52On June 29 the actuary of the plan indicated that, as predicted by the BACU, the plan would be required to undergo a partial windup for Ontario members. The actuary put three proposals to the trustees. Essentially, the options available were a 15% reduction of benefits across the board, an uneven reduction of benefits falling more heavily on persons still working than on those dependent on their pensions, and a different reduction of benefits and a total elimination of past service credits. A majority of trustees voted for the overall reduction of all benefits. Mr. Wilson and Mr. Coelho were opposed, although I heard no evidence about what plan of action they did favour.

53In cross-examination, Mr. Flynn stated that he understood Canadian law would require a windup of the plan if contributions ceased. The IU was prepared to refuse to deal with the BACU or to meet their demands and understood that a windup of the plan with reduced benefits for pensioners would be the result.

54On November 7 counsel for the IU proposed a “stand-pat” agreement until these applications were resolved before the Board. This was not acceptable to the BACU.

55On November 9, 2000 the Board of Trustees of IPF-Canada made application to FSCO for a windup of the plan.

56By letter dated November 14, 2000 counsel for the BACU wrote to counsel for the IU and, presumably, the IPF – Canada stating:

“I am instructed by Mr. Wilson and Mr. Coelho to advise that if Mr. George, Mr. Kardy and Mr. Stupar take actions to wind up this pension plan, my clients will immediately institute court proceedings to have them removed as trustees. My clients will also ask FSCO to deny permission for the windup. If your clients do wind up the plan and penalize existing pensioners by cutting their pension by any amount, or if your clients otherwise fail to maintain an even hand as between all cestuis que trust, we will commence a class action for all damages caused by, or arising from, any breach of fiduciary, statutory or other duties owed to all members of the plan by Mr. George, Mr. Kardy and Mr. Stupar.

Mr. Coelho and Mr. Wilson repeat that there is no need to wind up this plan. All that is needed is that the trust document be amended, so that the majority of trustees on this board, both union and employer, are elected from among participating unions and participating employers in Ontario where the vast majority of beneficiaries work and live.

My clients also reiterate their earlier position that the windup of this plan, as proposed by your clients, is completely unnecessary and is manifestly being carried out by Mr. George, Mr. Kardy and Mr. Stupar for improper purposes, that is, to retain the control of the International Union on the board of trustees and to ensure that Mr. Stupar’s son remains the administrator of this plan”.

57During the summer of 2000, Locals 6, 7 and 25 each sent a letter to the trustees of the IPF and to the IU. The letter stated that by virtue of a unanimous vote of the members of Locals 6, 7 and 25, each Local wished to continue its participation in the IPF in some fashion. This request has not yet been resolved.

Pension Plans – Conclusion

58Within the parameters set out above, I draw the following conclusions from the evidence. All parties recognize the importance of the pension plans, both to the continuing viability of the trade union in the construction industry in present-day Ontario, and as a means of providing much-needed income to members at the end of their working lives. In that context, both were willing and able on an organizational and a financial level to do whatever was necessary to maintain both pension plans as economically viable and sound vehicles for the delivery of pension benefits to members and officers of their union. Similarly, both the IU and the BACU saw an institutional advantage in being in control of healthy and viable pension plans. Again, I do not ascribe to the trustees or, to the extent that they have legal responsibilities with respect to either pension plan, the BACU or the IU, any improper or unlawful motivation. However, the reality is that a pension plan has become, in Ontario, in the year 2001, a significant benefit of organization for workers in the construction industry.

59For the BACU, the pension plans were seen to be of major importance in protecting itself, and making itself independent of the IU. As noted above, Mr. Haggis said that the purpose of replacing the two IU trustees and the LOEPF was to “ensure that the plan would not be used against” the officers of the Ontario Locals. For its part, the IU was not prepared to allow the BACU to use the pension plans as a means of strengthening its hold over members in Ontario or of forcing the IU to recognize the BACU as anything like an equal partner.

60Neither the IU nor the BACU is prepared to compromise on this principle. The BACU is not prepared to avert the windup of the LOEPF (CPRT) if to do so means to give up the prospect of being able to appoint trustees who may amend the basic trust documents at any time. Similarly, the BACU was prepared to cease to direct contributions from Ontario members to the IPF – Canada and to direct them to a new plan, even when it recognized that one of the likely responses to that decision would be a windup of the plan.

61For its part, the IU was prepared to facilitate the withdrawal of local unions from the CPRT. This withdrawal would put the Trustees in a position of, potentially, being forced to wind up the plan. Similarly, the IU was prepared to see a partial windup of the IPF – Canada rather than give the BACU any control or role in the governance of that plan.

62Ultimately, what is of significance is that both the IU and the BACU are prepared to see pension plans wound up, notwithstanding that for the members of the unions in Ontario this would inevitably result in some reduction of benefits, rather than to agree to the terms of operation which were demanded by the other party.

Other Factual Matters Relating to Relief in Board File 2532-98-U

1998 Bargaining

63The BACU pointed to the intervention filed by the IU in an application before this Board in 1998 as a further example of improper activity by the International Union. Briefly, the background is this. In 1998, bargaining with MEICO reached an impasse and the union commenced a strike. MEICO brought an application before the Board alleging that the OPC was bargaining in bad faith (Board File No. 1745-98-U). Its allegation was that the main items left on the table were a demand that MEICO acknowledge it was bargaining on behalf of a specified list of employers (not all of whom were known to MEICO) and second, that MEICO agree to an “autonomy clause”. Essentially, the concern of MEICO on this issue was that its bargaining was being held up by the fallout from what was, for their purposes, an internal union dispute.

64The IU filed an intervention. With respect to the primary issue, the IU pleaded: “The OPC is clearly not bargaining on behalf of its members but is bargaining with employers to achieve autonomy which cannot be granted pursuant to its own constitution”. The matter was never litigated and a Memorandum of settlement was ultimately signed and ratified.

65In evidence, Mr. Haggis stated that this had never happened before. Historically, negotiations were often tense, and allegations of bargaining in bad faith were often made at the table, but neither side had ever taken the issue to the Board. Cooler heads prevailed and a collective agreement was always concluded. He concluded that the IU’s position was designed “to derail our chances of getting a collective agreement and designed to get the employers on their side and insinuate themselves into negotiations since the OPC would not permit them to do so”. He stated that the IU was essentially on the side of the employers and, along with Locals 6, 7 and 25, preventing the OPC from getting a collective agreement. Alternatively, the IU was intervening in negotiations in an attempt to insert into the collective agreement “things that were not the true wishes of the employees”.

66Although more will be said of this later, one would have thought that the protection so vociferously claimed by the OPC to exercise or attempt to exercise statutory rights without interference from the International Union, would apply equally to the International Union when it seeks to promote its own interests through intervening in litigation before the Ontario Labour Relations Board.

Trademark Issues

67The BACU asserted that one of its complaints about the International Union was that it had essentially appropriated a trademark logo and design developed for the Ontario Locals and presented to the International Union at the meeting in South Bend, Indiana in 1996 as part of the Ontario Locals’ proposal for Canadian autonomy. The argument of the BACU appears to be that as the originator of the design, they are the true “owners” of the design. The International Union in fact took the design and registered it, or something like it, as a trademark in Canada owned by the International Union.

68The BACU sought, as part of the relief granted by this Board, that the Board order, in some fashion, that the trademark be transferred from the International Union to the BACU, or that the IU be ordered to transfer it to the BACU. Its claim appears to be founded on a claim of initial creation.

69The IU took the position that the Board had no jurisdiction to make any orders with respect to the ownership of a trademark. It referred to various sections of the Federal Court Act and of the Trademark Act. It also referred to some case law.

70The Board has absolutely no expertise with respect to trademarks in particular or intellectual property in general. It also has no jurisdiction to deal with questions of ownership of a trademark or an “intellectual property asset”. I decline to make any comment or finding about what ought to be done with a trademark, or to draw any conclusions about the appropriateness of any party’s behaviour with respect to the trademark. The Board simply has no jurisdiction to do so because it does not relate to any issue arising under the Act. Nothing further will be said about trademark issues in this decision.

Trusteeship 2000

71Mr. Flynn gave some evidence in chief about the trusteeship. This added no new facts to those set out in the decision in the Trusteeship application (Board File No. 2148-00-U) issued at the same time as this decision. At the time Mr. Flynn gave his evidence, of course, the IU had not received the full decision, simply the bottom-line. His evidence essentially attempted to demonstrate the good faith of the IU in its correspondence. He characterized it as “offering an olive branch” or a need to clarify the position of the OPC and the officers. It is evident to me that he believed the IU’s approach was simply flawed by an error in its understanding of its September 15 Decision. Otherwise, he saw the IU’s actions as a reasonable, accommodating and measured response to the situation, and a course of action that the IU was entitled to pursue, had it been right about the effect of the September 15 decision. As is evident from the full decision issued along with this decision, it was no such thing, regardless of how one interprets the September 15 decision.

72In the course of Mr. Flynn’s evidence, counsel attempted to introduce evidence about settlement discussions which took place, or may have taken place, around the same time as this correspondence was being exchanged. Counsel for the BACU objected on the grounds that these discussions were often “off the record” and privileged. Counsel for the IU agreed that the discussions were held on an “off the record basis” and indicated that he simply wanted to introduce evidence that these meetings had been held, without getting into the content of the discussions. I ruled that I would not admit this evidence. The same reasons that create a privilege for the content of discussions at settlement meetings ought to give rise to the same privilege with respect to the fact that such meetings have occurred. No party would make a settlement offer if that were to be used later to indicate some doubt or weakness about its position. Similarly, no party would agree to a settlement meeting if the fact of agreeing to such a meeting would later prejudice its position. Further, it is impossible to know whether the holding of a settlement meeting had any meaning at all without hearing evidence about what occurred at the meeting. Otherwise, it is possible to envision a circumstance where a party, having no intention of discussing settlement in good faith, nonetheless sets up or attempts to set up a number of settlement meetings so that it can rely on the fact of those settlement meetings to disguise the fact that it had no interest in any form of settlement.

Autonomy Discussions

73During the course of these proceedings, the IU continued to negotiate with other Canadian Locals, including Locals 6, 7 and 25 in Ontario, with respect to the creation of an autonomous body within the International Union to which all Canadian Locals would be bound. This was finally completed and passed at the 2000 general convention of the union.

74There was some considerable discussion about the details of this Canadian Congress. It is not the function of this Board to sit in judgement on whether trade union constitutions are “good” or “bad” or to engage in a comparative analysis of the desirability of the IU and the BACU proposals. What the Board can do is to examine the provisions of the IU Canadian Congress to determine the level of autonomy for Canadian Locals that the IUBAC is prepared to accept.

75The answer is: not much.

76The Congress consists of 17 delegates representing locals from across Canada. The IU President and the IU Secretary-Treasurer are members of the Congress ex officio. The IU President calls meetings twice a year, except that “the IU President shall have the power to call such additional meetings as the President deems necessary for proper Congress consideration of issues raised by the Congress Co-Chair or to meet other exigencies”. In other words, it is the IU President who will, except for the semi-annual meetings, determine when a matter needs to be dealt with by the Canadian Congress.

77The powers of the Congress are unclear in the Congress document. The Congress does appear to have the following powers:

(1) “To advise the IU President on the proposed IU Canadian program for the succeeding calendar year as presented to the Congress by the President, and to grant or withhold its consent thereto”. Mr. Flynn testified that the words “grant or withhold” amount to a veto. I heard no evidence as to what happens to a “Canadian program” if it is vetoed. There appears to be no authority in the Congress to create an alternative Canadian program.

(2) “To advise the IU President on the appointment of the IU Canadian Director and field staff and professional staff” and “to grant or withhold its consent thereto”. The President may make interim Canadian staff appointments between Congress meetings. The Congress may, on a two-thirds vote of the delegates, request the IU President “to reconsider the tenure of a Canadian staff person who has served for a period of two years or more” or further “to discuss with the Congress at the Congress’ next succeeding meeting the staff person’s continued tenure”.

(3) “To act on policy matters referred to the Canadian Congress by the IU President” and to pass policy resolutions presented to Congress by a delegate. However, the Congress may not commit IU resources or personnel to anything.

(4) “To formulate coordinated programs for IUBAC Canadian Local Unions…”

(5) “The Canadian Congress shall become the Board of Appeals for appeals from charges under the constitution dealt with in Canada”. There is, of course, a further right of appeal to the general convention.

78In cross-examination, Mr. Flynn agreed with the proposition that the IU refused to negotiate any changes that treated Ontario Locals differently from the rest of Canada. He also confirmed that the IU’s position was that Ontario Locals were bound by the constitution and were obliged to follow the constitution and that that position has not changed since 1995. When asked, somewhat rhetorically, whether he proposed to treat Ontario members just like those in Nebraska, his answer was in the affirmative “given all the good things that the union can do for them”.

79Mr. Flynn also testified that the locals created in 1998, which were intended to displace the Ontario locals whose charters had been revoked, were still in existence although they were not active and had nothing to do. He did seem somewhat surprised that they still existed and did say that the IU would get them revoked. No such evidence was ever presented to the Board, however.

80This evidence is consistent with the evidence given by Mr. Flynn in the first phase of the hearings in Board File No. 1904-99-U in early 2000. He was invited at the end of his examination in chief to describe his view of autonomy for Canadian locals. Mr. Flynn articulated a view of the IUBAC as one defined by its craft identity. Like most tradespeople in the construction industry, he places a high value on his union as the embodiment of his craft. The value of his union is synonymous with his sense of himself as a valuable person possessed of certain skills and abilities. To lose this craft identity in a larger, less craft-oriented union would be to diminish the value of that union as his representative. I have no criticism of this view of unions, particularly in the construction industry.

81However, he translates this view of a craft union, unnecessarily, into a monolithic, inflexible union structure. He believes that a single union speaking for all the trowel trades across North America will produce higher wages everywhere (an assertion which is not intuitively obvious). While all members have and should have an equal voice, he asserts none should have a “greater” voice because of their Canadian nationality. This would lead to a form of discrimination against US members. He said specifically Canadian issues could be dealt with by a Canadian Congress (this evidence was given before the constitution of the Canadian Congress was agreed upon).

82When asked what he envisioned happening if the Board were to grant a remedy which would, in effect, require the Ontario Locals to be reintegrated into the IU, Mr. Flynn replied “if we operate within our constitution, I don’t see any problem”. As the events following the September 15 Decision demonstrate, this is not true. More importantly, the evidence demonstrates that the IU, in the person of its President, is unable to grasp the concept of autonomy for Ontario locals in any meaningful way.

The Section 154 Application

83In an interim decision in this application, I determined that, in order for the BACU to bring this section 154 application, it was required to demonstrate that it was a trade union as defined in section 126 of the Act. Considerable evidence, mostly documentary, was led on this topic.

Status of the BACU as a Section 126 Trade Union

84Essentially, the position of the BACU Locals was that they had transferred all assets, rights, liabilities and activities from the IU Locals and the OPC to the BACU Locals and the BACU. That is, the BACU asserts it now does all of the things that the OPC used to do, except in the geographic jurisdictions of Locals 6, 7 and 25. It collects dues, pays for the administration of collective agreements, pays for the maintenance of union offices, employs and pays business representatives and clerical staff, files grievances under collective agreements, organizes, with the assistance of the organizing trust fund, bricklayers and tilesetters employed in the Province of Ontario, and prepares to bargain with the employer bargaining agencies.

85The IU and Locals 6, 7 and 25 did not challenge this evidence. The reality is that since January 4, 1999 the BACU has been de facto in control of the union in Ontario outside of the geographic jurisdictions of Locals 6, 7 and 25. While the IU and Locals 6, 7 and 25 have challenged the lawfulness and validity of this control, that is an issue in litigation rather than the practical reality on the ground. The BACU has taken great pains never to use the words IUBAC or Ontario Provincial Council unless absolutely necessary. What this means is that the BACU has exhibited all of the characteristics of a section 126 trade union, or to be more precise, it has behaved in a manner which, according to trade union practice, pertains to the construction industry.

86The one disputed element, which has been described in decisions like Ontario Hydro, [1997] OLRB Rep Feb. 82 and United Brotherhood of Carpenters and Joiners of America Local 1072, [1997] OLRB Rep. Oct 942 as the essential element, is the issue of whether or not the BACU is a party to a “construction industry collective agreement” in its own right. In this respect, the BACU filed 59 collective agreements. Many of them are drafted in a similar fashion and I will deal with them in groups. However, no party disputed that, if these were collective agreements with the BACU, they were clearly “construction industry” collective agreements. They applied to persons working in the construction industry and provided for terms and conditions of employment which are typical of construction industry collective agreements in Ontario.

87The first agreement is the provincial collective agreement with the Terrazzo, Tile and Marble Guild of Ontario Inc. (the “Tile Guild” or the “TTMGO”). This agreement covers marble, tile, terrazzo, cement masons, resilient floor layers and their helpers (“tilesetters”). There was a collective agreement between the Tile Guild and the OPC effective 1995 to 1998. This Board certified the OPC as the sole entity making up the employee bargaining agency in 1998. It concluded negotiations in that year and the OPC and the Tile Guild executed a memorandum of settlement. The members of the IUBAC locals in Ontario ratified it in accordance with the rules for ratification set out in the OPC By-laws. The memorandum of settlement included what was termed “an autonomy clause”. A portion of this provision read as follows:

If during the course of the collective agreement the union, by its convention, votes to merge or amalgamate with another trade union or council of trade unions, or transfers jurisdiction or bargaining rights to another union or council of trade unions, or declares itself independent of the International Union, then the employer agrees to recognize the independent union, amalgamate or merge the unions…. As the successor to the Ontario Provincial Conference within the meaning of the Labour Relations Act, 1995 and for all other purposes…

A letter from the Ontario Provincial Conference confirming that action described in this Article has occurred shall be conclusive evidence that the new entity is the exclusive bargaining agency, and the employer will conduct itself accordingly and will not require any further court or Labour Board action in order to implement this provision, and in such proceeding the employer shall support the position taken by the union and the new entity.

Pursuant to this provision, the BACU advised the Tile Guild that it was the successor union to the OPC. The collective agreement was then drafted, incorporating the memorandum of settlement and executed in the name of the Tile Guild and the BACU.

88In the September 15 Decision I found that the BACU was neither a transformed OPC nor its successor. Hence, in 1999, even if one ignored that fact that it was negotiated by the OPC of the IUBAC and ratified by members of the IUBAC in accordance with the OPC By-laws, there is no basis for any other party other than the OPC to sign the provincial collective agreement. The authority of the Tile Guild to do so derived from its status as the employer bargaining agency. The designation order which designated the Tile Guild as the employer bargaining agency gave it only that authority and no more. In addition, section 73(2) provides as follows:

73. (2) No trade union council of trade unions or person acting on behalf of a trade union or council of trade unions shall, so long as another trade union continues to be entitled to represent the employees in a bargaining unit, bargain with or enter into a collective agreement with an employer or an employers' organization on behalf of or purporting, designed or intended to be binding upon the employees in the bargaining unit or any of them.

Thus, the Tile Guild could execute a collective agreement only with the OPC or a successor to the OPC.

89The BACU, of course, did not purport to interpose itself between the OPC and the Tile Guild, or to do anything which constituted a violation of section 73. It regarded itself as the OPC, which, in the language of the “Autonomy Clause” voted to transfer jurisdiction or bargaining rights to another trade union. It acted on the basis of a right to exercise that option under the terms of the collective agreement. However, that contractual right springs from the language of the parties and is triggered by an internal union decision. Those contractual rights, whatever they may be, are limited by the mandatory provisions of the Labour Relations Act, 1995. Unless the BACU can demonstrate that it had or had acquired the lawful authority of the OPC, it was not entitled at law to sign that collective agreement.

90There is no question that there is a collective agreement in existence. The 1995-1998 collective agreement was renewed. A memorandum of settlement was finalized and ratified. There appears to be agreement on the text of the combination of the two documents. Therefore, whether or not that agreement is executed, and whichever names appear on it, that is the provincial collective agreement for tilesetters in the Province of Ontario. The parties are the Tile Guild and the OPC.

91The BACU filed a number of collective agreements between employers and the BACU which purported to bind those employers to the Provincial (Tile) Agreement. All of them contain the following recitals:

WHEREAS the Union, formerly known as the Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftworkers, is the certified Employee Bargaining Agency to represent in bargaining journeymen marble, tile and terrazzo, journeymen cement masons, journeymen resilient floor layers and their respective apprentices, improvers and helpers in all sectors of the construction industry in the Province of Ontario (OLRB File No. 3520-97-R);

AND WHEREAS on March 29, 1978, the Terrazzo, Tile and Marble Guild of Ontario Inc. (“TTMGO”) was designated by the Minister of Labour for Ontario as the Employer Bargaining Agency to represent in bargaining all employers whose employees are represented by the Union;

AND WHEREAS the Union and TTMGO have entered into a collective agreement on August 4, 1998, which is effective until April 30, 2001 (the “Provincial Collective Agreement”);

The BACU was not the certified employee bargaining agency. The OPC was. Again, the BACU was not the successor or the transformed OPC. Further, the third paragraph of the agreement provides that:

The employer and the union hereby agree … to recognize, observe and be bound by all the terms, conditions, provisions and appendices, letters of understanding and practices forming part of the provincial collective agreement, including any renewals thereof and any amendments thereto, as if the employer were represented by TTMGO at the time the provincial collective agreement, and any amendments thereto or renewals thereof were or are executed.

If the employer had been represented by the Tile Guild on the day the collective agreement was concluded, it would have been bound to a collective agreement with the OPC, since the Tile Guild was required by law to bargain with the OPC in respect of tilesetters. By incorporating the terms of that agreement so thoroughly, the parties simply bound themselves to the provincial collective agreement between the OPC and the Tile Guild.

92The BACU signed one agreement with a company called “Europa Ceramica” which does not contain the recitals quoted above. However, it still contains a paragraph similar to paragraph 3 quoted above. This agreement therefore falls into the same category as the others.

93With the exception of the Tile Guild, no notice was given to any of these employers as to the possible consequences of an inquiry into these collective agreements that might arise. While it appears that these collective agreements, like the agreements they incorporate, can only lawfully be between the OPC and each employer, the Board cannot, in the absence of notice to those employers, make any final finding. However, for the purposes of this decision, it is both sufficient, and in keeping with the rules of natural justice, to find that these collective agreements are not collective agreements upon which the BACU can rely to establish that it has status as a section 126 trade union.

94A number of agreements were filed which were agreements in the residential sector covering tilesetters. All of these agreements were in a form described as “the Residential Appendix to Provincial Agreements for Ontario, May 1, 1998 to May 31, 2001”. The text of this agreement refers to the provincial collective agreement a number of times. Indeed, the document purports to be an appendix to that document. Finally, the last paragraph of the agreement contains an agreement to be bound to the provincial collective agreement in the same terms as paragraph 3 quoted above. The only union party to that provincial collective agreement is the OPC. Accordingly, these collective agreements are not agreements which the BACU may rely on to demonstrate that it has status as a section 126 trade union.

95Seven further agreements under the heading “Residential and ICI” were filed as Exhibit 61E. The same analysis applies to these seven collective agreements which contain either similar recitals to those quoted above, or are in the form of a combined ICI agreement and a residential appendix. Accordingly, these agreements are also insufficient for the BACU to rely on to establish that it has status as a section 126 trade union.

96The course of negotiations for the “Brick” provincial collective agreement took a slightly different course. From 1995 to 1998, there was a provincial collective agreement between the OPC and the Masonry Employers Industrial Council of Ontario (“MEICO”). In 1998, the OPC was certified as the employee bargaining agency for Bricklayers, Stonemasons and Plasterers (“Bricklayers”) represented by locals of the OPC. MEICO and the OPC bargained to renew the collective agreement. A lengthy strike ensued before the matter was settled. Ultimately, a memorandum of agreement was executed and was ratified by the members of the Ontario locals of the IUBAC in accordance with the By-laws of the OPC.

97The BACU purported to rely on the same “Autonomy Clause” as had been negotiated with the Tile Guild. MEICO did not agree. The BACU produced a document purporting to incorporate the memorandum of settlement into the provincial collective agreement. By letter dated June 21, 1999 MEICO wrote indicating a number of disagreements with the draft text of the collective agreement. MEICO was not trying to take sides in this dispute. Its position with respect to the name of the union was as follows:

Delete all references to the Brick and Allied Craft Union of Canada/BAC Canada, and replace with Brick employee bargaining agency. This is the only party with authority to sign the provincial collective agreement at this time, this authority coming as a result of the minutes of settlement of January 4, 1999 entered into at the Ontario Labour Relations Board.

Although there never was any final agreement on the text of the collective agreement, the BACU had printed a document which purports to be between the BACU and MEICO. Indeed, it even purports to reproduce signatures on a document which was never signed by any of the representatives of MEICO. Accordingly, the only collective agreement in existence covering bricklayers is the provincial collective agreement between the OPC and MEICO.

98The BACU filed a number of collective agreements in the ICI sector in respect of bricklayers. Like the tile agreements, all of them contain the following recitals”

WHEREAS the Union, formerly known as the Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftworkers, is the certified Employee Bargaining Agency to represent in bargaining all journeymen and apprentice bricklayers, stonemasons, plasterers and improvers in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario (OLRB File No. 3520-97-R);

AND WHEREAS on March 29, 1978, the Masonry Industry Employers’ Council of Ontario (“MIECO”) was designated by the Minister of Labour for Ontario as the Employer Bargaining Agency to represent in bargaining all employers whose employees are represented by the Union;

AND WHEREAS the Union and MIECO have entered into a collective agreement on September 16, 1998, which is effective until April 30, 2001 (the “Provincial Collective Agreement”).

In addition, a third paragraph of the actual text of the agreement provides:

3. The Employer and the Union hereby agree, effective [date] to recognize, observe, and be bound by all the terms, conditions, provisions and appendices, letters of understanding, and practices forming part of the Provincial Collective Agreement, including any renewals thereof and any amendments thereto, as if the Employer were represented by MIECO at the time the Provincial Collective Agreement, and any amendments thereto or renewals thereof were or are executed.

99Some of the later collective agreements contain variations but contain the same, or substantially the same language as paragraph 3 cited above. For example, the agreement with Baycrest General Contractors (929436 Ontario Limited) contains the recital that the BACU “was designated by the Minister of Labour for Ontario as the employee bargaining agency to represent in bargaining all journeymen and apprentice bricklayers … in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario”. The Minister of Labour, of course, did no such thing. The agreement with Great Northern Industries, and others, purports to be an amendment to the provincial agreement for Ontario Bricklayers, Stonemasons and Plasterers. None of these agreements may found a section 126 trade union status claim. The analysis above with respect to the tile agreement applies even more forcefully to these collective agreements. Again, no notice has been given to these employers and it is sufficient for the purposes of this agreement to state simply that these collective agreements are not agreements on which the BACU may rely to establish section 126 trade union status.

100Five of the seven residential brick agreements are also insufficient for the BACU’s purpose. Again, Baycrest General Contractors signed a collective agreement but incorporated an agreement between IUBAC Local 2 and the Metropolitan Industrial and Commercial Masonry Contractors Inc. (“MICMC”), entered into on July 1, 1995, “… as if the employer was a member of the Association at the time of entering into this memorandum of agreement”. On July 1, 1995 the BACU did not exist. Although, as an association which is not an Employer Bargaining Agency, the MICMC might have had other authority to bargain (of which we heard nothing) it does not appear to have entered into any agreement with the BACU. This agreement standing alone points to a party other than the BACU as the signatory. The other four agreements all incorporate elements of the provincial collective agreement to such an extent as to make them inseparable from the residential agreements and therefore not clearly collective agreements with the BACU.

101There are two exceptions: Maple Leaf Construction and AJV Masonry. Maple Leaf Construction is bound to a collective agreement with the BACU on its own behalf and on behalf of its Locals 1, 2, 4, 5, 10, 12, 20, 22, 28, 29 and 31. The recognition clause states simply:

Recognition

1. The Employer requires the Brick and Allied Craft Union of Canada (“BACU”) to supply skilled tradespersons who are members of the BACU and the BACU agrees to supply such persons to perform residential construction work in the Province of Ontario.

2. The Employer recognizes Local 10 as the exclusive bargaining agent for all journeyman and apprentice bricklayers, stonemasons, plasterers and drywall tapers, and their respective foremen, on all residential construction projects in OLRB Areas 10, 11, 12, 13, 14 and 15, and recognizes the Union as the exclusive bargaining agent for the rest of Ontario. The BACU shall advice [sic] the Employer of the appropriate Local Union of BACU that will supply the tradespersons required by the employer.

The ICI agreement is referred to at paragraph 12, but only for the purposes of identifying wage rates.

102The IU, Locals 6, 7 and 25 point to the fact that both of these contractors have ICI bargaining relationships with the OPC. However, that does not affect the validity of the residential collective agreement with the BACU. For example, it is not uncommon in the Toronto area to find concrete forming contractors who sign a Carpenter’s Provincial Collective Agreement in the ICI sector and a different form of collective agreement covering non-ICI sectors with Labourers, Local 183. Indeed, at times these two unions have attempted to formalize that relationship. It has been examined by the Board a number of times (see, for example, Hardrock Forming Co., [1987] OLRB Rep. July 1003.).

103Does the close relationship between the BACU and the OPC (however one chooses to characterize it) nullify the BACU collective agreement? As I said in a rather hastily written interim decision:

16. It is necessary to distinguish between the facts that each party wishes to prove and what is to be made of those facts in argument. Locals 6, 7 and 25 assert that “the agreement[s] were based on the collective bargaining history with the OPC and/or the IU Locals rather than on the employer’s desire to have a relationship with a new and distinct trade union – the BACU.” The IU characterizes the history of the BACU as one which constitutes the “theft of the practice of the IU and the IU Locals”. The BACU, of course, rejects such pejorative terms and describes its history as having its genesis in the “unlawful and intemperate acts of the IU”. However, the BACU does not dispute that the history of the BACU is a development from and a growth out of the IU. It asserts that it is the Ontario members who “own” the history, who have created it out of their own labour, and were entitled to take it with them when they were unlawfully expelled by the IU in 1998. The disagreement is one over the characterization and legal consequences of this history, rather than what acts it consists of. That is, it is a matter of argument, not evidence.

17. … The BACU represented to the Board that it was the successor of the OPC or that it was simply the OPC transformed into a different version of the same entity with a new name. It was less than entirely courteous when told by the Board it was not. It represented itself this way to its members and to other building trade unions and to the Provincial Building Trades Council (with its many swinging doors). Most of its collective agreements describe it as “formerly the Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftworkers”. As the IU puts it, the BACU operated out of the same business addresses, with the same officers representing the same travel trades workers after November 1998 as before that date. If the BACU or any local wishes the Board to believe it actively represented something different to any contractor, it will be incumbent on the BACU to prove it.

18. Again, it is not relevant to the issue to know precisely what motivated an individual employer. It may have had a previous collective agreement with an IU affiliate. It may have signed because of a threatened section 1(4)/69 application. It may simply have found it expedient to sign a collective agreement. The Board will require evidence from any party who wishes to assert that it is more likely than not that any employer had no knowledge of construction trade unions in Ontario until the day it signed the collective agreement. An employer may have identified the BACU as the successor to the OPC. It may have felt that it was legally bound to sign an agreement because of an old bargaining relationship. It may have signed an agreement to avoid litigation. It may have signed the agreement because it had to in order to obtain work from a general contractor (which itself derives from the ICI collective agreements), or it may have done so because it needed skilled trades people. In all cases, on the basis of the considerable evidence heard so far, the Board would be forced to conclude that an employer did so because, whether it understood some or all of the history that the Board has heard in evidence, the employer saw the BACU as “the only game in town”. That is, it was the only union that the employer could or would be forced to deal with because it was the only bricklayers/tilesetters’ union in the Province. For the purposes of determining section 126 status, it does not matter which of these reasons motivated any one employer.

19. It seems highly unlikely that any single one of these collective agreements would have been signed with the BACU if the IU, the OPC and the IU Locals had been an active and vigorous force in the industry. Again, any party wishing the Board to come to a different conclusion will have to lead very specific evidence to prove otherwise.

This decision changes nothing. The fact is that the BACU was, in practical terms, the only source for bricklayers in the residential sector. The collective agreement is simply a reflection of the fact that the BACU was in control of the “labour supply market” and the IU was not. There was nothing unlawful about the fact that this was the case. In fact, it was agreed to by the parties in the memorandum of agreement of January 4, 1999. It is worth remembering that this memorandum was signed as an interim measure during the litigation of a complaint wherein the IU was found to have violated the Labour Relations Act, 1995.

104Accordingly, nothing renders the collective agreement unlawful or void.

105The parties to the Maple Leaf agreement are the BACU and all of its locals. Only Local 10 is bound to the collective agreement with AJV Masonry. Therefore, the BACU and all of its locals have entered into at least one collective agreement in the construction industry. As the Board said in Ontario Hydro, that is the one element that the Board has found to be necessary for section 126 status. Indeed, in terms of any other criteria that might be applied, the BACU certainly has those characteristics as well.

106Therefore, I find that the BACU is a trade union as defined in section 126 of the Act.

Section 154 applications and successorship revisited

107The BACU led evidence about a set of events leading up to the applications in Board Files 2736-00-R and 2737-00-R. The viva voce evidence related to events at Local 1 (Hamilton) and at a convention of the BACU and, at least in theory, of the OPC. Certain other facts were stipulated by the parties with respect to events occurring at the other 10 BACU Locals. The effect of these series of events was two-fold. First, the meetings of the local union were held as a joint meeting of the IU Local and the BACU Local. Once again, various motions were passed which purported to transfer all rights, privileges and duties of each IU Local to each BACU Local. Second, a meeting which has been described as a meeting of both Locals passed a motion with respect to a BACU convention and these two applications under section 154. Finally, delegates from all locals (other than Locals 6, 7 and 25) met at a BACU/OPC convention. Motions were passed with respect to the BACU constitution and these two applications.

Local 1 Meeting

108Local 1 called a “special-called meeting” on November 9, 2000. The notice declared “As a result of a recent OLRB decision, this will be a meeting of both BACU, Local 1 and IUBAC, Local 1”. At that meeting, the following resolution was passed by a vote of 35 to 9:

Local Union Resolution to authorize Section 154 application

Whereas Section 154 of the Labour Relations Act gives construction workers the right to change employee bargaining agencies every three years;

And whereas this Local Union as an affiliate of the OPC and the majority of other affiliates of the OPC made such an application in 1998;

And whereas the actions of the International Union of Bricklayers and Allied Craftworkers since 1995 and continuing has demonstrated that the relationship between the Ontario members and the IU is over;

Now therefore it is resolved by the members of BACU Local 1 and IUBAC Local 1 (hereinafter referred to as the affiliated bargaining agent or “ABA”), which is an ABA of the current certified employee bargaining agency:

1. That this ABA in 1998 and 1999 transferred its bargaining rights from IUBAC Local 1 to BACU Local 1 and if it is deemed necessary for certification of the BACU pursuant to section 154 of the Labour Relations Act, hereby transfers its bargaining rights in the ICI sector of the construction industry from IUBAC Local 1 to BACU Local 1.

2. That the members of this ABA are members of the Brick and Allied Craft Union of Canada and its Local 1 and confirm that they and the Local are bound to and agree to comply with all the provisions of the constitution of the BACU including the BACU Local Union Constitution and any amendments thereto, and in particular all of the provisions of the BACU constitution concerning the conduct of bargaining provincial collective agreements in the ICI sector of the construction industry in Ontario.

3. That the Brick and Allied Craft Union of Canada is authorized by this ABA to act as the employee bargaining agency to represent in provincial ICI bargaining all journeymen and apprentice bricklayers, stonemasons, plasterers and improvers represented by this ABA.

4. That the Brick and Allied Craft Union of Canada is represented by this ABA and authorized by this ABA to make application for certification as the employee bargaining agency of this ABA for the bargaining unit referred to in paragraph 3 pursuant to section 154 of the Labour Relations Act.

109Although the notice of meeting states that the vote on this resolution will be restricted to “persons affected by the provincial agreement”, there is no evidence about whether members who attended the meeting were excluded on that or any other basis. Mr. Wilson testified that the membership of Local 1 at the time was divided as to working status as follows: 128 working under the provincial collective agreement, 40 working under non-ICI agreements, 90 persons out of work and the remainder (presumably) retired or disabled. The vote was conducted by a standing vote rather than by a secret ballot. Mr. Wilson testified that all persons who were admitted to the meeting were members in good standing of the BACU and fully paid up on their dues. As far as he knew, none of them had paid dues to the IU. Some 50-60 persons had joined Local 1 since October 1998 and were therefore members of the BACU but had never been members of the IU.

110With respect to the other local unions, the parties filed a Statement of Agreed Facts and agreed on the authenticity of certain documents. The essence of these facts is that essentially the same process was followed at all other local unions (other than Local 6, 7 and 25). Only Local 12 conducted a secret ballot vote at the request of a member. The facts include the following agreements on issues of fact and law:

“6. All I.U. locals and officers were bound by the I.U. Constitutions.

7. All local meetings were conducted in accordance with the BACU Constitution and not the International Union Constitution (after the initial founding meetings occurring in late 1998 and/or 1999).

8. All local executive elections held after October 19, 1998 were held in accordance with the BACU Local Constitution and not the International Union Constitution. All eleven locals had elections after October 19, 1998 which were held in accordance with the BACU Constitution [and all terms of office by persons elected before that date had expired by November 2000].

9. Delegates to the December 9, 2000 convention were delegates from the BACU Convention in 1999 and not necessarily delegates at the 1997 OPC Convention [although Mr. Wilson testified that the delegate selection process set out in the BACU Constitution is “lifted” word for word from the IU Constitution].

10. None of the eleven locals paid dues to the International Union [although Mr. Flynn in his evidence repeated his assertions that the Ontario members remained IU members throughout this dispute notwithstanding the non-payment of dues].

11. All local union affairs after November, 1998 or after adoption of the BACU Constitution in the fall of 1998 or early 1999 were run in accordance with the BACU and BACU Local Constitution and not the I.U. Local Constitution, the OPC Constitution or the International Union Constitution (except Locals 6, 7 and 25).”

BACU Convention

111The BACU then held a special convention in accordance with the BACU constitution. Notice was sent November 21, 2000 and a meeting was held December 9, 2000. The delegates were delegates (a) by virtue of their office, or (b) because they had been selected as delegates to the local OPC convention in June of 1999 or (c) because they had been elected by local unions to replace delegates who had left office. The delegates did two things. First, they passed a motion amending the BACU constitution in a manner described more fully below. Second, they passed two resolutions with respect to the section 154 applications. The first said:

WHEREAS the International Union has again unlawfully placed the OPC under Receivership;

AND WHEREAS the International Union has thereby attempted to take control of province-wide bargaining in the ICI sector of the construction industry;

AND WHEREAS the delegates to the BACU are gathered in Special Convention;

AND WHEREAS the delegates to the BACU are the same delegates from the Local Unions to the OPC;

AND WHEREAS the delegates of Locals 6, 7 and 25 have been invited to this Convention, but refused to attend;

AND WHEREAS the delegates assembled today have been authorized by their members of the BACU Local and the IUBAC Local to ask the BACU to make an application under section 154 of the Labour Relations Act for both brick and tile bargaining units.

THEREFORE IT IS HEREBY RESOLVED by the delegates to the OPC assembled this date:

1. That the OPC in 1998 transferred its bargaining rights in the ICI sector of the construction industry as both an ABA and an EBA to the BACU, and if it is deemed necessary for certification of the BACU pursuant to section 154 of the Labour Relations Act, hereby transfers is bargaining rights in the ICI sector of the construction industry as both an ABA and an EBA from the OPC to the BACU.

2. That the OPC agrees to comply with and be bound by the BACU constitution and any amendments thereto, and in particular all the provisions concerning the conduct of provincial bargaining in the ICI sector of the construction industry.

3. That the BACU is authorized by this ABA to act as the employee bargaining agency to represent in provincial bargaining the brick and tile units currently represented by the OPC as an ABA and as an EBA; and

4. That the BACU is requested by the OPC as an ABA to make applications for certification as the EBA of this ABA for both brick and tile bargaining units represented by the OPC.

112Second, a resolution by the BACU was passed accepting the resolution and authorizing the BACU to make an application under section 154.

113It was agreed that this application has the support of 11 local unions, who assert that they are both BACU and IUBAC locals, and is opposed by 3 IUBAC local unions and the IU. Those 11 local unions had as members the majority of members of the local unions in the province, whether one looks at the total membership of the local unions or at persons employed in the industrial commercial and institutional sector of the construction industry in the month the applications were brought.

114The IU attacked the formal validity of these resolutions on a number of bases. In addition to the facts quoted above from the agreed statement of facts, the IU pointed out that, for the IU Locals to meet and elect delegates and pass resolutions, it was constitutionally necessary to comply with Article 3A(1) of the OPC constitution. That is, only members in good standing could vote resolutions on. As the invitation to the 2000 IU convention clearly indicates, the IU treated each local union as one having members, but no members in good standing, a situation the locals were invited to “correct” by paying dues at the convention.

115The OPC and the Ontario Locals did not seek the consent of the International Union for these resolutions as required by Article VIII (B) of the International Constitution. Further, the IU followed a process set down in the constitution to respond to this proposed meeting. It received a complaint from a member of Local 1 about the resolution. It invited Local 1 to respond to the allegations that this resolution was contrary to the constitution by 5:00 p.m. November 7. Mr. Wilson wrote in response, asserting a statutory right to pass the resolutions which overruled the constitution. The IU executive board determined that this proposed resolution violated the constitution and that the resolutions were not ones which a local union had any authority to take, were ultra vires the local’s constitution, and were without force and effect. The executive board ordered:

By reason of the foregoing the Executive Board declares that action by an IUBAC Local Union to transfer its bargaining rights to a separate rival labor organization is contrary to the IU Constitution and as such is an ultra vires action beyond its lawful authority as an IUBAC Local Union. That Executive Board declaration is in general terms and as such is a ruling issued by the IU Executive Board that applies to all IUBAC Local Unions and to which all IUBAC Local Unions must by the force of Article VII Section B of the IU Constitution conform their actions.

By reason of that declaration the Executive Board in specific terms orders the Business Manager and President of IUBAC Local Union 1 Ontario to withdraw the resolution attached to this Ruling and Order, to cease and desist from taking any action toward transferring IUBAC Local Union 1 Ontario’s bargaining right to the BACU or any BACU Local Union, and to take any steps necessary to assure that there is no IUBAC Local 1 action purporting to transfer such bargaining rights.

It was agreed that all local unions receive copies of this order prior to passing any of the resolutions.

116Mr. Wilson testified that although he received the communication from the International Union, he did not make mention of it at the November meeting of Local 1. He did not do so as he felt that the Local had a statutory right to undertake this action, and that the statute overrode any provision of the Constitution which sought to prevent it from doing so.

117It is difficult to avoid the conclusion that Mr. Wilson’s analysis (if not his answer) was correct. That is, on a contractual or constitutional level, the IU Locals did not have the authority to do what they did and the process was so flawed constitutionally as to be ineffective. In the alternative, if the Locals had the power to commence the process, the IU’s directive deprived the resolutions of any constitutional validity. However, if the Ontario Locals have a statutory right to make the application, the contractual or constitutional restrictions on that right are, for the purpose of a section 154 application, meaningless.

Amendments to the BACU Constitution

118A number of amendments to the BACU constitution were passed at this convention. Some dealt with the section 154 application. For the most part, however, the purpose was to amend that constitution to permit Locals 6, 7 and 25 to participate in the employee bargaining agency (EBA), whether or not they became BACU Locals. The amendments were essentially as follows:

1. Members of Locals 6, 7 and 25 as of October 18, 1998 were able to become members of the BACU if they indicated a desire to do so in writing or paid dues.

2. References to BACU Locals 6, 7 and 25 were deleted from the constitution. That is, the BACU would not set up a local union specifically to act as a rival to each of those locals.

3. However, the territorial jurisdiction of the three neighbouring locals, that is, BACU Locals 5, 10 and 29, was expanded to encompass the territorial jurisdiction of Locals 6, 7 and 25 respectively. The executive board of the BACU was “authorized” to grant Locals 6, 7 and 25 their territorial jurisdiction if they applied to be BACU affiliates, or if this was necessary to obtain certification in the section 154 application, provided that the Locals paid dues. That was, however, a matter of discretion for the executive. It was not mandatory under the constitution.

4. If the BACU became the EBA, then Locals 6, 7 and 25, as affiliated bargaining agents, were entitled to remain affiliated with the IU. The constitution provides that the BACU executive board “may” grant such ABAs the same rights as an affiliate of the BACU would have if it pays dues.

5. It was no longer an offence under the BACU judicial code to be a member of the IUBAC.

119Mr. Wilson described the effect of these amendments. He described them as giving the BACU “the flexibility to respond to the Board or Local 6, 7 and 25 and to deal with any situation”. The limits of this flexibility were made clear in cross-examination. If Locals 6, 7 and 25 remained affiliated to the IU:

1. Locals 5, 10 and 29 would retain jurisdiction in the geographic territories of Locals 6,7, and 25 for all non-ICI bargaining rights and would in fact be active rivals to them in residential organizing.

2. If the BACU were successful in the Ontario Power Generation application for certification, Locals 6, 7 and 25 would have no rights under any subsequent collective agreement.

3. Locals 6, 7 and 25 would not be permitted to elect members to the steering committee or negotiating committee for bargaining the provincial collective agreement, but would simply have whatever rights were found in the statute. Mr. Wilson did not specify any rights that he believed they had in that regard.

4. Full dues would be extracted from the members of Locals 6, 7 and 25, if necessary by increasing the working dues paid under the provincial collective agreement to cover the $8.00 per moth per capita dues which each BACU Local paid to the BACU.

5. Locals 6, 7 and 25 would “participate” in the organizing trust fund. The meaning of “participate” was not made clear at the hearing. I heard no suggestion that the rules of the Organizing Trust have been changed. Presumably in this context “participate” means that Locals 6, 7 and 25 would pay monies to the fund without being able to receive any benefit, unless they were represented by counsel of whom the BACU approved. Certainly no monies would be available to those locals for organizing in the residential sector in any circumstances.

6. Locals 6, 7 and 25 would not be affiliated with the BACU and would therefore be excluded from the internal governance of the BACU.

120Essentially, the BACU was attempting to respond to the Board’s concerns in the September 15 Decision about a potentially “oppressive” treatment of Locals 6, 7 and 25 if the BACU were the EBA (assuming Locals 6, 7 and 25 remain affiliated to the IU). This accommodation was as limited as possible. Essentially, the BACU will not attempt to eliminate Locals 6, 7 and 25 as ICI locals, but will deprive them of effective participation in the internal governance of the provincial body, or indeed deprive them of participation in the more limited process of bargaining a provincial collective agreement. Locals 6, 7 and 25 would pay the same level of dues to the BACU as other affiliates would. However, they would still be treated as a rival union outside the ICI sector. The potential for conflict is not only potential, it would continue to exist (for example, nothing in these amendments would appear to affect the prosecution of the Hyde Park application (Board File 2158-00-R), a matter which counsel for the BACU has asked the Board to re-list for hearing). In fairness, counsel did suggest in argument that if there were other modifications the Board required, either the BACU would make those accommodations or the Board could simply order them as part of the remedy in either Board File 2532-98-U or in the section 154 applications. However, it is clear that at best the BACU would tolerate Locals 6, 7 and 25’s existence. The possibility for conflict remains real and present.

Decision

The Underlying Dynamics of these Applications

121These applications, and indeed the entire five and a half years of disputes between the Ontario Locals and the IU, highlight the three major tensions inherent in trade union organization in the construction industry in Ontario. In their own way, each of these parties has, in one area, failed to recognize the limits of their own role or identity in these divergent relationships. The existence of these tensions is neither unhealthy nor avoidable. They arise from the historical nature of trade union organization in the construction industry and from the development of the Labour Relations Act, 1995. They will always be present, or at least for the foreseeable future. The task for any party is not to “win” the struggle but to understand their appropriate role in that often-conflicted relationship.

(1) Organizational Tensions

122The first area of conflict is the tension created by the practical result of the different tasks of different components of a building trades union. That is, very different tasks are allocated to an international union and to local unions (which in this context may be either an individual local or a provincial council) by the internal union structure. The local (or sometimes the provincial council) is the structure closest to the member and closest to the basic work that is done by the union for its members: organizing, negotiating collective agreements, representing individual members, obtaining and distributing work opportunities, and enforcing collective agreements, and engaging in strike activity. Even when the international union conveys information to its members, it usually does so through the local union. Within this sphere, a local union may have greater or lesser degrees of autonomy, but bears all of the responsibility. Indeed, this IU constitution explicitly provides that a local union may not commit the IU to anything contractually. The IU may, but is not obliged to, provide assistance in the form of money, resources, or personnel. That is the choice of the IU. From this perspective, it may seem that the international union contributes little or nothing, and that the real accomplishments of the union are those achieved at the local level. Certainly, this is the view of the Ontario Locals of the IUBAC.

123The international union, on the other hand, has as an organizational component, a great deal of authority. As one would expect, a central body must be the one which can formulate the common goals of the organization and must be able to set the outer limits of what is acceptable in the manner in which a local union functions (as the IUBAC did in Kingston in the trusteeship in 1997). If the organization is to mean anything, certain policies must be set centrally and enforced even on locals which disagree. Accordingly, the IUBAC constitution, like many, gives the IU the ultimate authority to determine what the union will do as an organization and what the limits of acceptable local union functioning will be.

124However, many goals of the union will of necessity be local rather than provincial, national or international in scope. Ownership of businesses in the construction industry by Canadians is statistically greater than in any other industry in this province. Wage rates, contrary to the belief of Mr. Flynn, are reflective of local economic conditions and the skill of local unions which do the actual bargaining. Often, a local component will feel that the international union is, without assuming the burden or the risk of local union work (organizing and bargaining) frustrating the desires of members who wish to take their union in a particular direction. On a practical, political level, it is necessary for the international union to identify those issues which are legitimate, central organizational objectives (minimum standards for the conduct of officers of a local, proper regional, national or international programs, etc.) which can and must be required of local unions, and those issues which local unions or councils should be given free reign to handle, provided there is no conflict with the central organization.

125It is worth noting that this organizational tension would continue to exist, even if in a more limited way, for the Ontario Locals, whether the central body was the IU or a provincial body.

(2) Constitutional – Statutory Tensions

126The second tension which is present in internal union affairs is the tension between the centralized authority of the IU, contained in the constitution, and the statutory rights of the local union or provincial council to behave in ways which are autonomous from, and even in conflict with, the International. To some extent, the statutory rights of local unions or provincial councils are a legislative policy choice that certain issues are to be determined by union members in Ontario, whatever the constitution says. The statute, of course, overrides any constitutional or contractual rights or obligations. However, the statute does not operate in a vacuum. It is predicated on the existence of international union constitutions such as that of the IUBAC. This is evident, not only in the ways in which the statute does not regulate internal union affairs, but the ways in which it imposes limits on internal union activity without overriding the constitutional or contractual process. For example, trusteeships of local unions, whether inside or outside the construction industry, are contemplated by section 89 and the statute really imposes no limit other than the need to seek approval for renewal after one year (and arguably imposes a two-year limit). In determining whether an organization has status as a trade union under the Act, the Board expects to see some form of constitution which determines the internal structure and functioning of the union. Sections 145-150, of course, represent the greatest regulation of internal union affairs found in the statute and apply only to unions in the construction industry. Some provisions are mandatory; sections 147 and 149 simply give the Board a supervisory role with respect to powers which the statute contemplates will exist in any international constitution.

127That is, the statute has not set out a complete code for the conduct of internal union affairs. What it does is to remove the international union, or the executive board or a trial committee or a specially appointed tribunal, as the final arbiter of the “correctness” of the decision. It supplements the union constitution with specific statutory criteria against which standard for “just cause” is to be measured.

128In some instances, section 146 and 150, for example, it simply sets out the structure, or the rules by which unions are to operate in areas of bargaining in councils and in the administration of benefit plans. Section 147 adds to the union constitution three criteria by which certain decisions are to be reviewed, and removes the International (or some body appointed by the International) from the position of final arbiter of the appropriateness of the International’s decision. The Act substitutes the Board as adjudicator and, by using the general concept of “just cause”, has freed the Board from virtually any of the constraints of the constitution. Section 149 does not add specific criteria, but again appoints this Board as the arbiter of the appropriateness of the decision against a general standard of just cause. While the Board must have regard to the constitution, the document is not a controlling one. At best, it may provide the context in which concepts of “just cause” operate.

129It is worth noting that in section 146 the Act does give the Minister the power to draft the “complete code” for the internal governance of a council of trade unions. Of course, the type of council contemplated by section 146 exists only for the limited purposes of exercising bargaining rights. Bargaining rights as defined in the Act are largely the creation of the statute and the Act gives the Minister the power to determine the internal rules of conduct within the council. The trade union’s organizational existence is largely independent of the Act in that it does not depend on the statute for its existence or authority as an institution. In that sphere, the Act does not give the Board the role of determining internal governance. The Board simply ensures that when certain well-known powers of the parent union are exercised, those actions adhere to certain statutory standards, in this case “just cause”.

130What is evident from the three additional factors in section 147, the mandatory provisions of section 146, 148 and 150 and the imposition of a “just cause” standard in sections 147 and 149, is that the legislature intended to create a greater degree of autonomy for local unions. In cases of alteration of jurisdiction, or the imposition of trusteeship, where the variation of fact situations may be infinite, the Act does not provide specific criteria or minimum constitutional requirements. The concept of “just cause” is the Board’s only guide.

131However, sections 145 to 150 when read together makes the effect of those sections relatively clear. A local union is intended to operate with a fair degree of autonomy. Interference by the International will be the exception rather than the rule and that interference will have to be justified on the basis of reasons which relate both to the interests of Ontario members and those provisions of the constitution which are both justifiable in their own right (for example, the right to take over the financial affairs of an insolvent local) and which are not in conflict with, or do not have the effect of undermining, any statutorily-protected value (for example, the right to bring an application under section 154 in opposition to the International).

(3) Bargaining Rights versus Bargaining Structures

132The third tension at play in this case arises not from the internal trade union organization, but from the nature of bargaining rights and the statutorily mandated structures for collective bargaining in the construction industry in Ontario. Bargaining rights are the same at any point in the statute. They are based on the right of a trade union to represent employees of one employer in a defined bargaining unit. That right arises from demonstrating, in some fashion, majority support of the persons in the bargaining unit. Bargaining rights are acquired and lost on this basis alone. In the end, a trade union holds bargaining rights for a specific unit of employees of an identifiable employer.

133The difficulty in the construction industry is that such bargaining rights are relatively difficult to use as a basis for bargaining a collective agreement. The Board has long recognized the unique problems of the construction industry: no permanent worksite, a fluctuating workforce, typically short-term employment, lack of any real physical presence of a business beyond the specific tools and equipment needed for a job, and the relative ease with which corporate vehicles may be substituted for business ventures. Bargaining rights may be acquired through certification or voluntary agreement, and preserved through section 1(4) and section 69, but it is necessary to be able to bargain something meaningful with those bargaining rights.

134Single employer bargaining is not and has not been the norm in the construction industry for many years. In the 1950’s and 60’s, unions would negotiate, or attempt to negotiate, collective agreements with groups of employers: local general contractors’ associations or local specialty trade contractors’ associations. Whatever the legal authority, the bargaining leverage of a trade union was not based on a group of Board certificates, but rather on the union’s ability to control the supply of skilled labour. Typically, a trade union would negotiate a “master” or “standard” collective agreement and then seek to compel other employers to enter into that agreement. Occasionally, the means used to persuade other contractors were of dubious lawfulness.

135Typically, the processes under the statute were of limited value to the trade union. Certificates were certainly applied for and issued by this Board in the 50’s and 60’s, but most bargaining rights arose from voluntary recognition agreements. The statutory scheme for acquisition of bargaining rights was of secondary value in the process of union organizing.

136This was not because there was some inherent flaw in the legal nature of bargaining rights as defined in the Act, but because the realities of the construction industry meant that the negotiating strength of a trade union, on an individual employer by employer basis, was not significantly different from its members’ individual bargaining power. Hence, the growth of “pattern bargaining” by construction unions, and the creation of employer associations, often as a defence to the process of pattern bargaining.

137The first statutory response to this bargaining practice was actually at the behest of the employer groups and associations. One of the tactics construction unions began to use was to “whipsaw” bargaining. That is, the trade union would pick one employer, be it a contractor with a large and time-sensitive project about to commence, or a property owner such as a shopping mall with a looming “grand opening date” and a need for community goodwill, and bargain aggressively with that one employer. Having secured a generous wage increase from that employer, the union would then take that as the “pattern agreement” and demand this from other employers. Since the union has “named its price”, even if all other employers initially resisted the increase, as each individual employer came up to a completion deadline or a bid date, they would individually be tempted to purchase two years of labour peace and often get a competitive advantage over other contractors.

138The response of the legislature was to introduce the accreditation provisions of the Act (now sections 134 -143) in 1971. Although accreditation and province-wide bargaining appear to be of advantage to trade unions, and in fact are, they were originally designed to strengthen the bargaining position of employer groups, for whose employees a trade union already had bargaining rights. These provisions essentially imposed a collective bargaining regime on an employer group in a given Board area. No longer would a union be able to engage in whipsaw bargaining within that group. No longer would it be able to negotiate a more favourable wage increase with one or more employers (i.e. below the pattern settlement) in exchange for say, greater scope of work jurisdiction. Fundamentally, accreditation was not about bargaining rights; those were presumed to exist. Accreditation was a statutory structuring of the bargaining itself and affected employers, not trade unions.

139Not surprisingly, trade unions initially tended to resist an attempt by employers to become accredited by employer associations because, once accredited, the bargaining strength of those employer associations was thereby increased. Only an employer association may of course, bring accreditation applications. Trade unions are always the responding parties. Many accreditation applications were actively resisted by trade unions in the 1970’s and few were granted outside the Toronto area or outside the ICI sector. As a legislative response, accreditation was judged to be inadequate. In 1976 the province appointed Don Franks, then a Vice-Chair of the Board, to inquire into bargaining patterns. The result of his report was a regime of province-wide bargaining in the ICI sector in 1978. The 1978 amendments amounted to a mandatory imposition of accreditation in each Board area in the province in the ICI sector. There was no change to bargaining rights. Employers were simply obliged to bargain collectively, albeit in a province-wide fashion, but only in those geographic areas where the unions already had bargaining rights. Once again, this was a change to the pattern of collective bargaining itself, not to the nature of bargaining rights.

140These changes created their own problems. Unions engaged in selective strikes during bargaining to put pressure on the employers whose representatives made up the employer bargaining representatives at the table. Unions proved as adept at whipsawing one region against another as they did one employer against another. The Honourable George Adams, then the Chair of this Board studied this situation. His recommendations led to the 1980 amendments which prevail, with some modifications, today. These amendments changed the nature of bargaining and, in a limited fashion, of bargaining rights. Bargaining rights were expanded in geographic scope. That is, the process of looking at a single Board area as the geographic boundary of a bargaining unit was abandoned in favour of a province-wide geographic area in the ICI sector. This was not so much a “gift” of additional bargaining rights to a trade union as it was recognition that the economic market for many employers in the ICI sector was no longer confined to local areas, but extended across the province. More importantly, this change was necessary to address the structural problems in province-wide bargaining. From this point on, all employers were statutorily obliged to bargain in a disciplined and collective fashion with trade unions which had bargaining rights in the ICI sector for their employees. In some senses, the province-wide regime simply imposed on employers the same discipline (for collective bargaining purposes) that trade unions brought to their side of the table.

141The structure of province-wide bargaining proved to be of considerable benefit to the trade union parties as well. Bargaining in the ICI sector became easier as it was conducted on a centralized basis. Certain issues, such as the abandonment of bargaining rights, became of less legal significance.

142The bargaining structure also created an organizational structure within trade unions. By statute, the Employee Bargaining Agency (“EBA”) is simply a bargaining agent with a limited authority to bargain a provincial collective agreement triennially. It has a limited ongoing relationship with the affiliated bargaining agents (except, of course, for single local unions, such as the Operating Engineers, Insulators, and Boilermakers). The EBAs originally designated were provincial coordinating structures created by building trades unions’ constitutions, but few of them in 1978 had any real power. (Two notable exceptions were the Millwright District Council of Ontario and the Ontario Provincial Council of the IUBAC. Both of them have negotiated province-wide agreements since 1968 and 1973 respectively.) With the advent of provincial bargaining, the provincial body designated as EBA began to take on a more powerful role within the trade union organization. Thus, organizationally, trade unions began to centralize more of the decision-making power and some of the service delivery components of the benefits of provincial bargaining (e.g. some pension plans).

143Those elements of a trade union’s activities which tended to be controlled by the EBA were the most important for building trades unions. The ICI collective agreement is the agreement under which most members of most (but by no means all) unions perform most of their work. It is that collective agreement which binds all employers. The subcontracting provisions of the typical construction agreement serve as a form of claim to certain work opportunities regardless of which contractor actually performs the work. This is particularly important to a union such as the Bricklayers, since much of the work available to members comes, contractually, from general contractors who are bound to an agreement (but never employ bricklayers) by means of a sub-contract to specialty trade subcontractors (who do employ bricklayers). Since the agreement is now province-wide, the activity of one contractor can and will have an effect across the province.

144Along with the actual process of bargaining, some benefits of collective bargaining have been centralized as well. Pensions have become an extremely important factor to workers in the construction industry over the past thirty years. To control the plan is to control a significant source of loyalty and support from members. The legislature has recognized the economic forces at work in province-wide bargaining: the fees levied by the Construction Secretariat under section 163 use the benefit collection mechanisms found in virtually every provincial collective agreement.

145However, all of these elements do not flow out of bargaining rights. They arise from the bargaining structures created by the parties in the industry and by the legislation. These structures are of great importance but are not in and of themselves bargaining rights. They are the manner in which those bargaining rights must be and have been exercised.

146This is the source of the elaborate and careful processes the Ontario Locals of the IUBAC have engaged in. It is a relatively simple matter for bricklayers in Ontario to leave the IUBAC and be represented by the BACU. Cards are signed, an application is filed, the Board conducts a vote, and if the BACU wins, a certificate is issued. In the normal course, a hearing is not even held and the process is completed within a manner of weeks. The BACU has chosen not to follow that route, despite the fact that it has been open to the BACU to do that in the ICI sector for every employer in the province for the past three months. It seeks, not bargaining rights, but the structures that the Act and the IUBAC have created to exercise those bargaining rights. The question posed by this application is whether the Act contemplates such a transfer.

Section 154 Applications

147The parties made numerous arguments with respect to the section 154 applications. Some dealt with the process of meetings of local unions, the authority to take certain steps, the actions of the IU, and the effect of the order to withdraw the motion. Other arguments were directed to the capacity of the BACU to bring this application at all given the framework of the statute. Since I conclude ultimately that the BACU may not, on the facts of this case, bring itself within the definition of the EBA for the purposes of the type of unit sought here, I shall deal only with the latter issues.

148Section 154 is relatively straightforward. It provides:

154. (1) During the period between the 120th and the 180th days prior to the termination of a provincial agreement, an employee bargaining agency, whether designated or not, may apply to the Board to be certified to represent in bargaining a provincial unit of affiliated bargaining agents.

(2) Where the Board is satisfied that a majority of the affiliated bargaining agents falling within the provincial unit is represented by the employee bargaining agency and that the majority of affiliated bargaining agents holds bargaining rights for a majority of employees that would be bound by a provincial agreement, the Board shall certify the employee bargaining agency.

The crucial legal issue is whether, for the purposes of this application, the BACU is an Employee Bargaining Agency. That is, in respect of the affiliated bargaining agents (“ABAs”) it seeks to represent as an EBA, does it meet the definition found in section 151(1)? The definition of EBA and ABA are as follows:

"affiliated bargaining agent" means a bargaining agent that, according to established trade union practice in the construction industry, represents employees who commonly bargain separately and apart from other employees and is subordinate or directly related to, or is, a provincial, national or international trade union, and includes an employee bargaining agency;

"employee bargaining agency" means an organization of affiliated bargaining agents that are subordinate or directly related to the same provincial, national or international trade union, and that may include the parent or related provincial, national or international trade union, formed for purposes that include the representation of affiliated bargaining agents in bargaining and which may be a single provincial, national or international trade union;

149The ABAs for the purpose of this application are:

(a) the 11 IUBAC Locals or alternatively, their corresponding 11 BACU Locals;

(b) IUBAC Locals 6, 7 and 25;

(c) the IUBAC.

By virtue of the definition of ABA, this would also, of necessity, include the BACU after the certificate was granted if the application were to be successful.

150I conclude the IU is an ABA for the following reasons. The IU filed certificates issued by this Board to the IU in its own name. Two of these were in respect of the employees of Mascon Limited (1981) and Culp Brothers Ltd. (1973). Those employers’ names appear on the list of contractors found in the “Brick” Provincial Collective Agreement. I heard no other evidence with respect to the acquisition of bargaining rights. Since the certificate for employees of Mascon Limited was issued after 1980, the bargaining rights would be held by the IU and all of the other ABAs (section 158(1)). Accordingly, the bargaining rights which find their expression in this collective agreement for that bargaining unit of employees are held by the IU. It is therefore an ABA.

151As its first position, the BACU asserts that the BACU does not have to be the “representative” of all the ABAs in the sense of belonging to the same organizational structure. He concedes, quite candidly, that in this case they are not. However, he points to sections 154(2), 156 and 167(1) in support of his assertion. These sections provide as follows:

154. (2) Where the Board is satisfied that a majority of the affiliated bargaining agents falling within the provincial unit is represented by the employee bargaining agency and that the majority of affiliated bargaining agents holds bargaining rights for a majority of employees that would be bound by a provincial agreement, the Board shall certify the employee bargaining agency.

155. 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.

156. (1) A designated or certified employee bargaining agency shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of the affiliated bargaining agents in the provincial unit of affiliated bargaining agents for which it bargains, whether members of the designated or certified employee bargaining agency or not and in the representation of employees, whether members of an affiliated bargaining agent or not.

152The BACU argues that section 154 requires only a double majority, it does not require unanimity for certification. In other words, the Act contemplates opposed factions within the EBA. Section 156 indicates that the EBA has a limited statutory role, and that the ABAs may, without offending the statute, participate in the EBA only for the purposes of provincial bargaining and otherwise have little to do with the EBA or the other ABAs for any other purpose. More significantly, the phrase “for which it bargains” is used rather than “its members”.

153Section 167(1) represents a more substantial argument. In counsel’s submission, this means that the ABA need not be a member of the certified EBA. Therefore, the BACU argues, the phrase “subordinate or directly related to the same … trade union” in section 151 is not equivalent to “membership” in an organizational sense. It argues that the word “related” need not be restricted to the organizational sense, but “related for the purposes of bargaining a provincial collective agreement”. On this theory, the test is, in the BACU’s submission, whether the proposed EBA is a viable organization for that purpose alone. In counsel’s submission, of course, it is.

154At first blush, it is difficult to know what to make of the use of the word “member” in section 167(1). Membership is a phrase more commonly associated with natural persons (or corporate employers with the powers of a natural person) joining a trade union or an employer’s organization. Words like “subordinate” or “related” or “affiliated” are words used more frequently to describe the constitutional organization of trade unions, defined by contractual or constitutional documents rather than by an act of membership. The statutory meaning to this phrase is illustrated by in section 153(2). This section provides:

153. (2) Where affiliated bargaining agents that are subordinate or directly related to the different provincial, national or international trade unions bargain as a council of trade unions with a single employer bargaining agency for a province‑wide collective agreement, the Minister may exclude such bargaining relationships from the designations made under subsection (1), and subsection 162(2) shall not apply to such exclusion.

Two such bargaining relationships have been excluded in various designations: the bargaining relationship between the Form Work Council and the Ontario Formwork Association, and the bargaining relationship between the Stress-Relieving Contractors/NDT Management and the Quality Control Council of Canada. Both of these councils are composed of two unions, the Operating Engineers and Labourers on the one hand, and the UA and Boilermakers on the other. In the case of the UA and Boilermakers, for instance, each of the union components itself is “subordinate or directly related to” their own international union, i.e. they are subordinate or directly related to different international unions. However, both have created an “organization” in the sense that they bargain together and have created a council of trade unions of which they are both members for that purpose. Since one should interpret a statute to give the same meaning to the same words, particularly when they are found in sections so closely related, I conclude that “subordinate or directly related to” in section 151 means affiliated in an organizational sense.

155What does one do with the word “organization” in the definition of Employee Bargaining Agency? Again, comparisons are instructive. The definition of an Employer Bargaining Agency is:

"employer bargaining agency" means an employers' organization or group of employers' organizations formed for purposes that include the representation of employers in bargaining”

That definition distinguishes between an “organization” and a “group of organizations”. Many Employer Bargaining Agencies are composed of several groups which have not formed any sort of council or organization. That is contemplated in the definition of Employer Bargaining Agency. The definition of Employee Bargaining Agency does not contemplate that result. An Employee Bargaining Agency must be an organization, not a group of organizations.

156In the context of that definition, “organization” must mean an entity created by the ABAs themselves rather than one created by a designation or a certificate issued under section 154. For example, a “trade union” is defined in section 1 as a “organization of employees formed for purposes that include…”. The Board has often said that neither the Board nor the statute creates a trade union. That is done by a group of employees who come together and jointly create an organization which is defined by its own constitutional documents. The Board may or may not find that this organization is a trade union as defined by the Act. Its members create the organization. Further, the contrast between the definitions of Employee Bargaining Agency and Employer Bargaining Agency makes it clear that only in the case of an Employer Bargaining Agency can an EBA be created by designation or certification under s. 155, where the Employer Bargaining Agency is not an organization created by its component groups.

157What then does one do with section 167(1)? There are no designated or certified EBAs where more than one union comprises the EBA. The two councils described above are exceptions to designation orders. Clearly any attempt by either the Formwork Council or the Quality Control Council to be certified under section 154 would face considerable statutory difficulties, and is probably not possible at all. However, if either the Form Work Council or the Quality Control Council (or indeed some other yet to be created council) were to be designated as an Employee Bargaining Agency, it is possible that the Council could bargain a Provincial Collective Agreement, and during the term of that collective agreement the unions could have a falling out such that one of them leaves the council. This possibility is contemplated in section 61. Nonetheless, the Employee Bargaining Agency would be obliged to fulfill any obligations created by the collective agreement, if not to bargain a subsequent Provincial Collective Agreement. In doing so it would be obliged to meet the standards set out in section 167(1).

158The fact that the reference to an ABA which is not a member of the EBA in section 167(1) does not apply to any existing Employee Bargaining Agency (nor has there been one for 23 years) simply indicates that the legislature was providing for a hypothetical development which did not exist at the time the section was enacted. In looking for the type of hypothetical entity contemplated by the statute, one must look at the Act as it exists, rather than how it hypothetically might have been drafted.

159Thus the BACU cannot meet the definition of Employee Bargaining Agency for the purpose of these section 154 applications. It is not an “organization” to which local 6, 7, and 25 or the IU have in any way voluntarily agreed to create or in which they have agreed to participate.

160Further all of the ABA’s must be “subordinate or directly related to the same provincial, national or international trade union”. The definition of ABA includes the Employee Bargaining Agency – in this case the BACU. It is not subordinate or directly related to the IUBAC. The BACU may not be an Employee Bargaining Agency because it is a different trade union from all of the ABAs.

161Even if the Board were to accept the argument of the BACU that the application meets all the statutory definitions in the Act, to grant the certificate would be to certify the BACU as an EBA and by so doing, to create an EBA which did not meet the statutory definition. To assert that is to suggest that the statutory definitions only have meaning for the purpose of the application, but cease to have any validity once the certificate is issued. That result makes no sense.

162The result the BACU seeks is also contrary to the entire scheme of the statute in respect of collective bargaining in the ICI sector. The logic of this statutory scheme is easily seen by looking forward to what would happen if the Board were to certify the BACU as the EBA. As the situation stands today, if the IUBAC and/or the OPC were today to transfer part of the geographic jurisdiction of IUBAC Local 6 to IUBAC Local 5 (eg. Kent County) they could do so in both an institutional sense (through the Constitution) and as an amendment to the Provincial Collective Agreement. Section 147 would apply because IUBAC Local 6 is a local union of which both the IU and the OPC are “parent” unions. The BACU, if it were certified, could do little with the institutional existence of Local 6 as there is no organizational tie between the two. However, it could amend the Provincial Collective Agreement to give geographic jurisdiction over Kent County to BACU Local 5, and thus accomplish much the same thing in practical terms. In such a case, section 147 would not available to IUBAC Local 6 but section 167 (1) would. However, to continue this hypothetical, if the BACU as the Employee Bargaining Agency were, at a future date, to transfer responsibility for Kent County from BACU Local 5 back to IUBAC Local 6, the just cause protection of section 147 would be available to BACU Local 5. Thus the same Employee Bargaining Agency (the BACU) would have, in respect of exactly the same type of action, one level of responsibility to 11 locals and a lower level of responsibility to the 3 locals which are not its members and which are in fact its rivals. This is not the kind of situation the statute contemplates.

163Further, as the Board said in the IUBAC 1998 trusteeship case:

112. It is important to recognize that, by definition, an “employee bargaining agency” is an organization composed of “affiliated bargaining agents” (local unions) which, again by definition, are subordinate to the same parent union. In the typical case, the “affiliated bargaining agents” (for example, the Carpenters’ local in Toronto, the Carpenters’ local in London, etc.) are geographically-based organizations that are constitutionally linked to each other, as well as to a parent union – normally with headquarters in the United States. To continue the metaphor: an employee bargaining agency is, by definition, composed of related members of the same craft union family. And that will necessarily be so, whoever the employee bargaining agency may be.

113. This means, in practice, that any rival employee bargaining agency that seeks to displace an existing one under section 154, will be composed of some grouping of the same Ontario family members. Moreover, all of the locals will continue to be constitutionally subordinate to their common parent – and thus subject to potential receivership if the parent union opposes any local restructuring. In other words, the entities for which the certification process was designed, are all exposed to the kind of constitutional control by their parent union which the American parent has sought to exercise in the instant case.

This analysis does not spring from the familial metaphor found in sections 145-150. It arises from the nature of an EBA. It is not the embodiment of bargaining rights: it is a bargaining structure through which those bargaining rights are exercised. Provincial bargaining is an elaborate statutory scheme which grew out of the way in which bargaining rights have been exercised in the construction industry since the 1950’s. It is meant to facilitate bargaining, to enhance the ability of the union and the employers they deal with to bargain in real economic terms in the real economic market in which they operate, and it allows both unions and employers to impose a level of internal discipline on the bargaining process which they would otherwise not have.

164The BACU, much as its membership overlaps with the IUBAC, is not a part of the IUBAC. It is a rival trade union which seeks to displace the IU and drive it from the province. Outside the ICI sector, it is quite prepared to engage in organizational rivalry with Locals 6, 7 and 25. What the BACU really seeks is to displace the IUBAC as bargaining agent. That is done by “raiding” the bargaining rights held by the IUBAC and its locals, not by trying to seize control of the structures through which those bargaining rights are exercised.

165Indeed, this is why almost all of the collective agreements executed by the BACU are drafted in a manner which is fatal to the purpose for which they were drafted. It would have been easy to sign a collective agreement in the name of the BACU. The BACU did so with Maple Leaf Construction and AJV Masonry. It chose not to do so with any other employer. The drafting of these collective agreements is designed, not to define the union’s bargaining rights, but to attempt to incorporate a bargaining structure which is created by statute and was not a structure into which the BACU can fit. In attempting to capture this bargaining structure, the BACU has failed to define bargaining rights as rights held by the BACU.

166The two section 154 applications must be dismissed. The BACU is not an organization which can meet the definition of “employee bargaining agency” for the purposes of these applications.

Successorship Revisited

167The Ontario Locals and the BACU renewed their application in these proceedings for a declaration that the Ontario locals and the OPC had transferred their bargaining rights to the BACU and the BACU locals. It attempted to meet both the statutory requirements set out in the September 15 Decision and the discretionary concerns identified therein. I do not propose to set out these arguments in any detail since they depend ultimately on success in the section 154 applications. I have concluded that these two applications must be dismissed, and accordingly these arguments fail for the same reason.

Remedy in Board File No. 2352-98-U

168To determine the appropriate remedy, the Board must, of course, examine the unfair labour practice committed and the actual harm done. An appropriate remedy must also be set in a larger context of the statutory regulation of the relationship between the parties, and how, if at all, that relationship is to continue to function.

169However, I start from the fact that in any context, the act of the IU in this case was an extremely serious step. The extinction of a local union is the most extreme form of action a parent union can take. The revocation of a local union charter may, in certain circumstances, be appropriate. At one extreme, if a local has ceased to function, has lost all or virtually all of its members, and there is so little materially or legally left of the local union that even merger with another local is of no value, then the revocation of a charter, on notice to any remaining members, may be the parent union’s only realistic option.

170Nothing could have been further from the truth here. The OPC and the 11 local unions were functioning quite healthily – too much so for their parent’s liking. They were fully capable of, and were in fact quite competently performing, all of the duties and functions of a trade union. They were organizing, negotiating collective agreements, administering and enforcing those agreements, actively defending their bargaining rights, participating in the organizational and statutory bodies that are important to building trades unions in Ontario, and were carrying out the union functions associated with benefit provision through various trust funds.

171There was a dispute between the Ontario Locals and the IU. It was about money. Even assuming the IU was correct in its position in that dispute, revocation was an utterly inappropriate response in the circumstances. While I do not believe the IU was motivated by a desire to harm any member as a member, in Ontario, the following appear not to have entered into the IU’s consideration at all, or at least not to the extent to cause it to do anything differently:

• the continuing existence of a collective agreement if the trade union party disappears;

• the ability of the EBA to continue to negotiate a provincial agreement if the OPC has been vaporized;

• the statutory rights of the OPC as employee bargaining agency;

• the effect on on-going litigation of the disappearance of a trade union party (particularly where it is the applicant);

• the continuing entitlement to participate in benefit plans by members where membership in the union is a condition of membership in a plan;

• the ongoing commitments of the “vaporized” union to pay its support staff and to honor contracts with third-party suppliers.

Mr. Flynn, when he was on the stand, did not give any indication that any of these considerations even crossed his mind. It is not that the IU came to the wrong conclusion about these issues or gave them insufficient weight. It did not consider them at all.

172The IU’s approach was purely institutional. It believed that it was justified in taking some action. The simplest act, from its point of view, was to abolish the opposition and to create new and parallel locals and OPC to replace the old ones, and to place in charge of these new bodies persons more likely to do the IU’s bidding. Even within a purely institutional framework, such absolute and authoritarian behaviour is breathtaking. What is of much greater significance is that it was an approach which is entirely blind to both practical realities, and to the entire statutory framework of trade union activity in Ontario (with or without sections 147 and 149). As noted above, there is always a tension between parent and local, and a tension between the organizational “private law” on the one hand of the union and the statutory “public law” rights of locals on the other hand in internal trade union functioning. The IU exhibited no understanding of the existence of these two tensions and behaved as if the organizational authority given to the IU (which is not absolute even under the IU constitution) was the only relevant consideration.

173The IU pointed to the fact that the Ontario Locals assert that there was little, if any, harm done to them as a result of the IU’s actions. Mr. Wilson testified that he felt the IU had done the Ontario Locals a favour, and that they were the stronger for this act of the IU. That is a relevant consideration in determining the proper remedy. That is, there are not specific acts of damage that require a specific remedial solution.

174That does not, however, answer the primary issue: i.e. the failure of the IU to recognize its proper role in a relationship that has inherent in it competing and contradictory interests and independent sources of power and authority to promote those interests. The act of revocation was not an isolated instance. The IU placed the Ontario Locals in receivership in 1995 for meeting to discuss autonomy. That is, the Ontario Locals had not, at that point, done anything other than agree to talk. The complaint about this receivership was settled with an agreement to discuss concrete steps for Canadian autonomy. The IU did little to follow up on that commitment. In February of 1998, the IU imposed another receivership on the Ontario Locals for exercising a statutory right they had every right to exercise. When the OPC exercised its strength as the sole component of the employee bargaining agency to eliminate the IU dues check-off from the two provincial collective agreements (something to which the IU might well have had a legitimate objection), the IU’s reaction was excessive in the extreme. The revocation represents an assertion of constitutional authority without the slightest consideration of any limits of that authority or the effect of the revocation on its own members or the union as a trade union in Ontario.

175Nor can it be said that the IU has learned anything from the extensive litigation which followed the complaint about the revocation. After the September 15 decision, the IU believed (incorrectly) that it had won more than a case about whether or not the actions of the Ontario Locals were sufficient to cut the ties with the IU. Even though the IU believed that the decision disposed of some of the relief in Board File 2583-98-U, the question of remedy still remained open. Nonetheless, in October of 2000, its response once again was concerned purely with institutional authority. The “non-negotiable demands” that officers sign a pledge, acknowledge the authority of the IU, and hand over their books and records, represents nothing of substance in the ongoing dispute between the IU and the Ontario Locals. It was simply an assertion of absolute authority and a demand that this authority be acknowledged and supported in what would, presumably, then become a simple fight over assets with the BACU. Although all the parties are the same in these applications as appeared in the application with respect to the 2000 Trusteeship (Board File 2148-00-U) and all parties referred to it in evidence and argument, I do not mean to suggest that the 2000 Trusteeship is a matter for which a remedy needs to be fashioned in this application. Rather, it is evidence which demonstrates the real problem that needs to be addressed: the fact that the IU has little or no idea that its relationship with the Ontario Locals is based on anything other than its own absolute organizational authority.

176In fashioning a remedy, the IU and Locals 6, 7 and 25 have asked the Board to find that the Ontario Locals are not “blameless” in this matter. In some sense, this may well be true. The Ontario Locals at times went out of their way to provoke the intemperate responses of the IU. Rarely did anyone pass up the opportunity to offend and annoy. The Ontario Locals were less than open and forthright about what they had done and were doing, although given the reaction of the IU to almost any form of dissent, this is perhaps not surprising. The precipitating incident, the withholding of IU check-off dues, was not an insignificant event, and might well have provided the justification for a more measured response. However, this Board is not given the role as arbiter of good manners in internal union relations. There are conflicts inherent in the tensions between parent unions and local unions, and those conflicts will, from time to time, produce bitter and deeply felt disputes. Trade unions are not noted for the niceties of parliamentary procedure in their internal workings, and the Board is not about to write a manual of etiquette for them. The simple fact is that the Ontario Locals have not violated the Act. They have committed no unfair labour practice against the IU. They have not engaged in any unlawful behaviour. It does not assist the IU to assert that some response was appropriate, or that it was provoked into taking excessive and inappropriate action (assuming it understood the concept of appropriate action). The fact is the IU did revoke the charters of the OPC and 11 locals and it did so without just cause. The IU has a statutory obligation not to use its institutional authority without just cause. There is no corresponding duty on a local union, because the local union lacks the institutional authority to take unilateral action binding on the IU.

177In fashioning a remedy in this case, the Board seeks to deal with the real issue between the parties. The statute (which is what this Board administers and applies) provides for a large measure of local autonomy. That is the value that is inherent in specific sections of the Act and which is protected by the Act. The IU has demonstrated that it has failed utterly to grasp this single concept at any time in the last five years. Accordingly, a remedy must be fashioned to change the structural relationship between the IU and the Ontario Locals. Since the IU has and will apparently persist in abusing its institutional authority to attempt to override the statutory rights of the locals, the remedy must affect and limit the use of that institutional authority in a permanent and structural way.

178But this statutory protection of local autonomy is not absolute. The just cause requirement implies that there may be trusteeships and there may be alterations of jurisdiction (acts lawfully accomplished only through the use of the parent union’s constitutional authority) which do meet that standard. A parent union can and should play an important and valuable role in the internal workings of a local trade union. When acting within its proper role, an international union may have a larger perspective than the officers of a local union about a particular dispute (especially inter-local conflicts) or about new challenges that the existing union structure is incapable of meeting. It may also be that when its advisory and persuasive power is insufficient, it may need to rely on an institutional authority to effect a change notwithstanding the views of a local union.

179What is frustrating about this five and a half year battle is that it is not about anything but power. In the many days of evidence I heard and the boxes of documents filed, there is no substantive debate about any internal issue for this union. The Ontario Locals have insisted on taking greater control of their own affairs, and the IU has met all such efforts with a rigid insistence that it be in absolute control of all activity within the union. But this debate never crystallised around any substantive issue. This is why the Ontario Locals had to seize on the issue of the IU’s rather perfunctory request for an IMI check-off – they needed a real issue to fill the void.

180Perhaps the best example of this exclusive focus on issues of control is the dispute over the two pension plans. The actuarial deficit in the IPF-Canada plan was a real, substantive and important issue. Both the IU and the Ontario Locals were prepared to address it. Both agreed on the method – increased contributions from working members – and both agreed this was possible and practical. The dispute (if there was one) about the removal of the 25 year cap was tied exclusively to funding. However, the substance of the issue was never addressed. Both sides insisted on control of the pension fund before they were prepared to address any issue of substance. Neither was prepared to meaningfully compromise their insistence on control of the plan. Both were prepared to see partial wind ups of the plans with the inevitable decrease in pensions for members (and possibly for officers and employees of the union). The interests of members near or past retirement, if not all members, have been sacrificed in the ongoing struggle over governance and control.

181The IU dues check-off might have been a substantive issue. A local union does not have an absolute and unfettered right, in the name of local autonomy, to unilaterally readjust the dues structure of the entire union. However, there might have been some legitimate debate about the level of dues or the value received, the need to assist other locals outside Ontario, or the unavailability of certain benefits under the Constitution in Ontario (or Canada for that matter). Notwithstanding all the evidence I heard, I cannot determine if any of these were real issues for this union. The Ontario locals simply abolished the IU dues check-off entirely (though they say they expected a slight rise in per capita dues as a result) because they were in control of bargaining and could do so. The IU simply responded to this as a challenge to its authority rather than as a substantive issue within the union and exercised its authority under the constitution because it could do so.

182Local unions do not have a statutorily protected right to do whatever they please in the name of local autonomy. Parent unions do not have the right to exercise their institutional authority without regard to any standards of local autonomy at all. However, nothing in this case helps to define the boundary between these two competing interests. The fact is that the IU never engaged in this debate at all. It never looked beyond the challenge to its institutional authority, and never responded with anything other than a “scorched earth” policy. Some response to the entire removal of the IU dues check-off might have been appropriate. Nothing in this decision should be read to indicate any conclusion one way or the other. It was not an issue that received two minutes worth of evidence or argument. This case is solely about the action of the IU which asserted a right in absolute terms to exercise its institutional authority when and as it chose to. It did not have that right. It did not, and does not, understand that. It is that violation of the Act that the remedy in this case needs.

183The Ontario Locals say that the only way to achieve this is to cut the Ontario Locals free from the IU. Since the IU can never be trusted not to abuse its authority, if the two parties are left in any sort of relationship, the result will be endless litigation before this Board. I reject that argument for two reasons.

184First, the remedies set out below address the basic problems of the IU’s use of its institutional authority and the need for structural change. The Act does not contemplate the abolition of that institutional authority, but rather sets limits on its use. In my view, the remedies below are sufficient to balance the institutional rights of the IU with the statutory rights of the Ontario Locals.

185Second, 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.

186The Ontario Locals advance two other arguments in favour of independence. They say that they are simply acting on the basis of the IU’s original decision. The IU decided to revoke the charters of the Ontario Locals and they are willing to accept that decision. They say that the IU should not be able to rescind its action under the guise of a remedy for an unfair labour practice upon discovering that its action is unsuccessful to achieve the result sought. The Ontario Locals are not, of course, interested in accepting the full extent of the IU’s action. Revocation of the charters in constitutional terms, means that the local unions cease to exist and all rights and assets revert to the IU. Clearly the Ontario Locals want no part of that arrangement, nor should they. They are not, however, entitled to pick and choose among the pieces of the IU’s acts; it is an all or nothing proposition.

187More seriously, the Ontario locals urge the Board not to “yoke the parties in a hostile relationship”. They predict nothing but further assaults by the IU and endless litigation before the Board. The remedies below will effectively put the IU in a position where it is unable to operate as it has in the past. The Board of course has no control over the number of applications that are filed by the Ontario Locals or what action the BACU takes. However, the threat of more litigation from one party is not a reason for the Board to grant a remedy that the party seeks, simply to pacify that party.

188There are always conflicts inherent in any union structure. As discussed above they are neither unhealthy nor avoidable. The fact that there will be tension, and a high degree of it, in a relationship is no reason to sever it. It will always be a matter of degree. If internal conflict were a reason to dissolve a union organizational structure, the structure of the BACU as Employee Bargaining Agency suggested in the section 154 applications (and which would presumably be the model for an independent provincial union) is far more likely to generate conflict and hostility than what has been ordered below. Locals 6, 7, and 25 would be “yoked” in a relationship with a provincial body which is actively hostile to them, which will be a rival and a competitor in the non-ICI sectors, and which will use its power as an Employee Bargaining Agency to ensure that the three locals do whatever the provincial body requires them to do. Worse yet, locals 6, 7, and 25 will not be “subordinate to or affiliated with” the independent union so long as they maintain their ties with the IUBAC. They will be unable to rely on sections 145-150 and particularly 147 and 149. If the sole object of the exercise were to find the organizational structure with the least internal conflict and hostility, the proposal of the Ontario locals would not present itself as the most favourable option.

189However, 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.

190The remedy is not perfect, and it is not a model template of how an international trade union should operate. It is not an endorsement of the Ontario locals’ behaviour. It is what is necessary in 2001 for the International Union of Bricklayers and Allied Craftworkers given its demonstrated history and its perception of its role with respect to local unions in Ontario. It is a less than ideal structure for any union, but it is the only appropriate response to the IU’s behaviour.

Orders and Directions

191All of the remedies set out below are collected in the attached notice which the Board directs the IU to send to every member in Ontario. Such comments as are necessary for fuller explanation of each remedy follow each of the remedial paragraphs:

Declarations

The Board declares that the International Union of Bricklayers and Allied Craftworkers (the “IUBAC”) violated sections 147 and 149 of the Act by revoking the charters of the Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftworkers (the “OPC”) and Local Unions 1, 2, 4, 5, 10, 12, 20, 23, 28, 29 and 31.

The Board declares that the orders of the IUBAC revoking the charters of the OPC and the Local Unions are null and void and their charters are valid and continue in force without interruption from October 18, 1998 to the present day.

These declarations are in fact simply statements of what the Board, differently constituted, has already found in Board File 2532-98-U.

Constitution

The Constitution of the IUBAC is the constitution for purposes of the international union. Any change made to the IUBAC Constitution after October 17, 1998 shall have no general effect in Ontario unless it is specifically adopted by the OPC. If one or more of the Local Unions adopt such constitutional change, such changes will be binding on the Local Union in its relationship to the IUBAC, but shall not be binding on the OPC and will always be subordinate to the by-laws and constitution of the OPC.

The by-laws and constitution of the OPC, and the by-laws and constitution of each local union of the IUBAC in Ontario, as at October 17, 1998 are the by-laws and constitutions of the OPC and each local union of the IUBAC in Ontario, despite any conflict between the constitution of the IU as a result of any amendment made after October 17, 1998.

If the OPC determines, pursuant to its by-laws and constitution, to alter or amend or change its by-laws, it may do so and shall provide a copy of all amendments to the IUBAC for approval. If the IUBAC does not accept such changes or amendments, it must, before or at the same time as it exercises any right to reject or withhold approval from the OPC, provide its reasons in writing. Such a rejection or withholding of approval shall be deemed to be an alteration of jurisdiction within the meaning of subsections 147(1) to 147(4) of the Act, but not for the purposes of subsection 147(5) of the Act, and may be made the subject of an application under section 147.

The Board directs the IUBAC, if it has not already done so, to dissolve or revoke the charters of the local unions and the provincial council chartered in 1998 to replace the existing Local Unions and the OPC.

The Board has concluded that the IU may not use its institutional authority to attempt to override the statutory rights of Ontario Local Unions. In order to ensure it does not, this direction is designed to ensure that the basis of that authority is not altered without the consent of the Ontario Local Unions on matters affecting the autonomy of Ontario Local Unions. To that end, this Order provides that any refusal of a change requested by the OPC will be deemed to be an alteration of jurisdiction as defined in subsections 147(1) to 147(4) inclusive. That is, that decision will be subject to the scrutiny of a “just cause” analysis. Subsection 147(5) cannot apply in these circumstances since the proposed change would not be a change proposed by the parent union. That is, the OPC may not, by filing an application, “freeze” a refusal, and thereby create a situation which does not exist pursuant to subsection 147(5). That subsection is, essentially, a provision which freezes the status quo in the face of a disputed proposal for change.

The Board has no desire or jurisdiction to supervise the ongoing process of governance within the IUBAC. The Board does not expect to hear any litigation with respect to any change which does not deal directly or indirectly with the autonomy of Ontario Local Unions.

Membership

The Board directs the IUBAC to accept, and record as members in good standing as of June 1, 2001, all persons who are members of the IUBAC or of an Ontario Local as at October 17, 1998 or who, between October 17, 1998 and the date of this decision, joined a local of the IUBAC or the BACU and who signifies his or her wish to be a member of the IUBAC in writing on or before August 31, 2001. No further or additional initiation fees or dues are to be paid by such persons beyond the dues payable by all members in Ontario on and after June 1, 2001.

The Board directs the IUBAC to take no steps under the constitution or otherwise against any person on the ground that that person is a member of the BACU, or has engaged in the lawful activity of the BACU, whether or not that person is also a member of the IUBAC.

It is neither possible nor desirable to compel any person to become or to refrain from becoming a member of a trade union. However, if the IUBAC is to move forward from this point, there must be a wiping clean of the slate of the past, and an acceptance of all persons who wish to become members of the union in Ontario.

Dues

The Board directs the IUBAC to classify the locals of the IUBAC in Ontario as “B” locals within the meaning of the IU constitution. All locals of the IUBAC in Ontario will pay per capita dues on the basis of “B” local dues at the same rate as all other “B” locals from on or after June 1, 2001.

This is a remedy proposed by the IU itself. It is what Mr. Wilson stated that the Ontario Locals expected to happen to them after the IU dues check-off had been removed from the provincial collective agreements. Nothing in this decision, of course, prevents the IU and Ontario Locals, or any of them, from agreeing to pay dues at the “A” local level or at any other level. However, it will be up to the IU to persuade the Ontario Locals of the value of such payments.

Provincial Bargaining

The Board declares that the OPC is the employee bargaining agency for the purposes of the “Brick” and “Tile” certificates issued by the Board under section 154. The IUBAC is not entitled to be a party in its own right to the bargaining for the provincial collective agreements, not to have any more influence on the negotiating position of the union than any other affiliated bargaining agent (“ABA”), and on the same terms as any other ABA. As an ABA, it is entitled to receive notice of proposal meetings, any intra-union communication sent to a majority of ABAs, and a copy of any minutes of settlement put to members for ratification.

The IU is an ABA and as such is entitled to information. However, given that there are no “IU” members separate from any local union members, its right to participate under the terms of the OPC constitution and under the terms of the Act governing bargaining of a provincial collective agreement is extremely limited. The 1997 trusteeship and the 1998 revocations all flowed out of provincial bargaining. The IU clearly does not understand the very limited role it now has in provincial bargaining. This order should make it clear to them. The OPC of the IUBAC, and no other party, is the EBA and it alone has the right to bargain and conclude the provincial collective agreements.

Further Action by the International Union

The Board directs the IUBAC, within 5 working days after it imposes a trusteeship (or takes any other action described in section 149(1) of the Labour Relations Act, 1995) on any local union in Ontario or on the OPC to provide the persons who were the officers of the Local Union or the OPC immediately before the trusteeship with a complete statement in writing of all the facts on which it relies in imposing the trusteeship and its reasons for so doing.

The Board further orders the IUBAC, in the event that it determines to alter the jurisdiction of a local trade union or of the OPC, at the same time that it gives notice of the change to the Local Union or the OPC under section 147(2), to provide the Local Union of the OPC with a statement of reasons. Such a statement of reasons shall set out all of the facts on which the IUBAC relies, and the reasons for which it proposes to take action.

The IU has been too prone to use its unilateral power to effect unlawful ends. Further, it is precisely those areas of jurisdictional autonomy that the IU has been most inclined to ignore. Sections 147(2) and (5) provide certain protections, and the Ontario Locals have been vigilant in defending themselves. However, given the history of this union, it is appropriate to have the IU articulate what it is doing and why it wishes to do it before any action is taken.

Trusteeship may be a different matter. At its simplest level, a local union may become insolvent for reasons which require quick intervention. This would be a legitimate unilateral use of the IU’s institutional authority. The Board is not prepared to foreclose that possibility. However, there is still a need to require the IU to justify its actions quickly and coherently.

The Ontario Locals have asked the Board to require the IU to obtain the consent of the Board before altering jurisdiction or imposing a trusteeship. It is very tempting to do so in the case of an alteration of jurisdiction. However, it is conceptually difficult to draft an order which requires a party to bring an unfair labour practice complaint against itself before it takes certain action. There might be some statutory basis for doing so in the case of a trusteeship, given the provisions of subsection 149(4). There is no equivalent in section 147, an area in which the justification for such a remedy is more pressing. However, the effect of subsection 147(5) virtually duplicates the relief sought by the Ontario Locals in this regard. Further, there is no need to require litigation unless one party is actually prepared to take the dispute to that stage.

The Ontario Locals have been able to utilize the remedial provisions of the statute to deal with the IUBAC’s breaches of the Act to date. This entire order will significantly reduce the IUBAC’s ability to act independently. Should there continue to be conflict which needs to be resolved by litigation, such litigation will start with a complete and exhaustive statement of the IU’s reasons for action, and the facts on which it relies to justify that action. Complaints under section 147 and 149 may be dealt with by way of consultation (as the 2000 trusteeship was in Board File No. 2148-00-U). Even if a hearing were held, the IU’s position would be clear from the statement. Attempts to add to or alter those facts and reasons would be subject to particularly intense scrutiny.

This obligation is in addition to any notice and disclosure requirements set out in the IUBAC Constitution.

Damages

The Board orders that no damages are to be paid by any party to any other party, nor are there any dues to be paid in respect of any period of time before June 1, 2001.

Both parties made various monetary claims against one another. For the reasons set out below, none of these claims is appropriate or justified in its own right. However, a more important consideration is the fact that the relationship between the IU and the Ontario Locals has suffered major damage. While this damage is primarily the result of the IU’s breaches of the Act, the Ontario Locals bear some responsibility for this state of affairs. To award some form of monetary compensation would simply be to extend and exacerbate the disputes of the past when there is no need to and no value in doing so.

The IU has acknowledged that the Ontario Locals should pay dues on a “B” local status, but seeks payment of those dues from May 12, 1998 (i.e. just after the last check-off dues were paid) to the present. It was the IU which revoked the charters of the Ontario Locals from whom they now demand dues. Even after August 16, 1999, when the IU acknowledged the revocations were a breach of the Act and should be declared null and void by the Board, the situation which was created by those revocations continued to exist and would continue until this decision. It is not without significance that the IU did not give up its claim to be entitled to revoke the charters until after the Board declared that it had violated the Act. In that context it was hardly a change of heart. The IU is responsible for the non-payment of dues during this period. I do not consider it appropriate to order the Ontario Locals to pay dues during that time, nor to pay for any arrears that may have existed prior to the revocation.

The Ontario Locals made various monetary claims, all of which I reject. These are as follows:

(a) “One million, two hundred thousand dollars, or 7% of the total assets of the IUBAC as the Ontario Locals’ share of the net worth of the IU”. There is no basis in law for this sort of claim, and certainly no authority was cited by the Ontario Locals, even if one assumes the Board, rather than the Superior Court of Justice, has jurisdiction to determine a distribution of assets based on a purely proprietary interest. In any event, this remedy would be appropriate only if the Ontario Locals were being disaffiliated from the IU, which they are not.

(b) Eight million dollars, or some lesser amount, to purchase insurance to cover the cost of the death benefit to which Ontario members are entitled under the constitution. Since there is no evidence that the fund is not paying members’ estates as they become entitled (even if one were to conclude that the IU dragged its heels on the first payments to the estate of Mr. Looney), there is no reason to conclude that payments will not be made in the future. Accordingly, setting up a separate fund to pay death benefits is not necessary.

(c) Legal costs as follows:

(1) “Legal costs incurred by the applicants over and above the costs ordered by the court in the injunction application”. Courts determine what costs are appropriate for actions tried before courts. The Board does not.

(2) “Twenty thousand dollars for the cost of the November 7/98 convention”. This was entirely an initiative of the Ontario Locals, and of the BACU (which is, after all, a separate organization) and is a matter they took on their own account. The IU is not responsible for that.

(3) “One hundred and twenty-five thousand dollars for the costs of newsletters and mailings to members to advise of the activities carried out to defend against the unlawful actions of the IU”. The Ontario Locals did well to communicate with their members. The IU is not responsible for the costs incurred by the Ontario Locals.

(4) “Five hundred thousand dollars in legal and related costs apart from the injunction and two million dollars in exemplary and aggravated damages”. The Board has no jurisdiction to award costs (Bellai Bros. Ltd. [1994] OLRB Rep. Jan. 2) and no jurisdiction to award punitive remedies in the form of exemplary and aggravated damages. In any event, in this case, it would be inappropriate to do so.

Locals 6, 7 and 25

Both the IU and Locals 6, 7 and 25 on the one hand and the Ontario Locals on the other hand made various submissions, all of which dealt directly or indirectly with Locals 6, 7 and 25. To some extent, those Locals have supported the IU or have received some assistance from the IU in their actions in this dispute. That is their right and the IU’s right, and there is no reason to restrict any of them from exercising the organizational and statutory rights they possess. The officers of Local 6, 7 and 25 are elected as democratically as those of the other Ontario Locals and are entitled to the same level of respect as the officers of the other Ontario Locals demand. Although I have some concern about the level of hostility directed at these three Locals by the Ontario Locals, there is no reason to grant the kind of relief sought by Locals 6, 7 and 25 in their August 16, 1999 submissions (paragraphs 17, 18, 21 and 22). The Ontario Locals, and specifically the OPC have not been found to be in violation of the Act in respect of these Locals. For the future, suffice it to say that the OPC is a “parent trade union” as defined in section 145(1) in respect of Locals 6, 7 and 25 and owes them the same legal obligations under section 146-150 that the IU owes to the OPC.

Notice

The Board orders the IU to send a copy of the notice attached to this decision to each member in Ontario (including persons who are entitled to become members).

Finally, the Ontario Locals request that the Board order the IU to send a “notice of violation of the Act by the IU to each member of the union” and to publish this in all newspapers, communications and on its website. It is appropriate to require communication of the essence of this decision to members in Ontario. It is not necessary to communicate this to every member of the IU in the world. Accordingly, 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.

Conclusion

192This is a final decision in three of these applications. The applications for certification under section 154 of the Act (Board File No. 2736-00-R and 2737-00-R) are dismissed. The remedies ordered above represent the conclusion of the application in Board File No. 2532-98-U. If further relief is sought in Board File 1904-99-U, the parties are directed to advise the Registrar as soon as possible. I am seized of Board File No. 1904-99-U.

“David A. McKee”

for the Board

The Labour Relations Act, 1995

NOTICE TO BRICKLAYERS AND TILESETTERS IN ONTARIO

This Notice has been mailed to you pursuant to an Order of the Ontario Labour Relations Board. The OLRB has found that the International Union of Bricklayers and Allied Craftworkers has violated sections 147 and 149 of the Labour Relations Act, 1995. As a consequence of this violation, the Board has made certain Orders restricting the right of the International Union from intervening in the affairs of Local Unions in Ontario. These orders and directions are set out below. Please read them carefully, particularly the Order with respect to Membership, which may affect your rights and interests.

The Board has made the following orders and declarations:

Declarations

The Board declares that the International Union of Bricklayers and Allied Craftworkers (the “IUBAC”) violated sections 147 and 149 of the Act by revoking the charters of the Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftworkers (the “OPC”) and Local Unions 1, 2, 4, 5, 10, 12, 20, 23, 28, 29 and 31.

The Board declares that the orders of the IUBAC revoking the charters of the OPC and the Local Unions are null and void and their charters are valid and continue in force without interruption from October 18, 1998 to the present day.

Constitution

The Constitution of the IUBAC is the constitution for purposes of the international union. Any change made to the IUBAC Constitution after October 17, 1998 shall have no general effect in Ontario unless it is specifically adopted by the OPC. If one or more of the Local Unions adopt such constitutional change, such changes will be binding on the Local Union in its relationship to the IUBAC, but shall not be binding on the OPC and will always be subordinate to the by-laws and constitution of the OPC.

The by-laws and constitution of the OPC, and the by-laws and constitution of each local union of the IUBAC in Ontario, as at October 17, 1998 are the by-laws and constitutions of the OPC and each local union of the IUBAC in Ontario, despite any conflict between the constitution of the IU as a result of any amendment made after October 17, 1998.

If the OPC determines, pursuant to its by-laws and constitution, to alter or amend or change its by-laws, it may do so and shall provide a copy of

all amendments to the IUBAC for approval. If the IUBAC does not accept such changes or amendments, it must, before or at the same time as it exercises any right to reject or withhold approval from the OPC, provide its reasons in writing. Such a rejection or withholding of approval shall be deemed to be an alteration of jurisdiction within the meaning of subsections 147(1) to 147(4) of the Act, but not for the purposes of subsection 147(5) of the Act, and may be made the subject of an application under section 147.

The Board directs the IUBAC, if it has not already done so, to dissolve or revoke the charters of the local unions and the provincial council chartered in 1998 to replace the existing Local Unions and the OPC.

Membership

The Board directs the IUBAC to accept, and record as members in good standing as of June 1, 2001, all persons who are members of the IUBAC or of an Ontario Local as at October 17, 1998 or who, between October 17, 1998 and the date of this decision, joined a local of the IUBAC or the BACU and who signifies his or her wish to be a member of the IUBAC in writing on or before August 31, 2001. No further or additional initiation fees or dues are to be paid by such persons beyond the dues payable by all members in Ontario on and after June 1, 2001.

The Board directs the IUBAC to take no steps under the constitution or otherwise against any person on the ground that that person is a member of the BACU, or has engaged in the lawful activity of the BACU, whether or not that person is also a member of the IUBAC.

Dues

The Board directs the IUBAC to classify the locals of the IUBAC in Ontario as “B” locals within the meaning of the IU constitution. All locals of the IUBAC in Ontario will pay per capita dues on the basis of “B” local dues at the same rate as all other “B” locals from on or after June 1, 2001.

Provincial bargaining

The Board declares that the OPC is the employee bargaining agency for the purposes of the “Brick” and “Tile” certificates issued by the Board under section 154. The IUBAC is not entitled to be a party in its own right to the bargaining for the provincial collective agreements, not to have any more influence on the negotiating position of the union than any other affiliated bargaining agent (“ABA”), and on the same terms as any other ABA. As an ABA, it is entitled to receive notice of proposal meetings, any intra-union communication sent to a majority of ABAs, and a copy of any minutes of settlement put to members for ratification.

Further action by the International Union

The Board directs the IUBAC, within 5 working days after it imposes a trusteeship (or takes any other action described in section 149(1) of the Labour Relations Act, 1995) on any local union in Ontario or on the OPC to provide the persons who were the officers of the Local Union or the OPC immediately before the trusteeship with a complete statement in writing of all the facts on which it relies in imposing the trusteeship and its reasons for so doing.

The Board further orders the IUBAC, in the event that it determines to alter the jurisdiction of a local trade union or of the OPC, at the same time that it gives notice of the change to the Local Union or the OPC under section 147(2), to provide the Local Union of the OPC with a statement of reasons. Such a statement of reasons shall set out all of the facts on which the IUBAC relies, and the reasons for which it proposes to take action.

Damages

The Board orders that no damages are to be paid by any party to any other party, nor are there any dues to be paid in respect of any period of time before June 1, 2001.

This is an official notice of the Ontario Labour Relations Board