International Union of Elevator Constructors, Local 50 v. Escalator Handrail Company Inc., 2001 CanLII 3910

International Union of Elevator Constructors, Local 50 v. Escalator Handrail Company Inc.

File No.: 0731-01-M Date: August 15, 2001

Before: David A. McKee, Vice-Chair.

Appearances: Barrie Chercover, Charles Murray, Tom McCann and Rick Baxter for the applicant; M. Patrick Moran, Pat Cole and Cassandra Priede for the responding party.

Introduction

1This is a reference from the Minister of Labour of two questions to the Board for its advice pursuant to section 115 of the Labour Relations Act, 1995, S. O. 1995 ch. 1 (the "Act"). The questions relate to the exercise of the Minister's power to appoint a conciliation officer. The application for the appointment of a conciliation officer has been made by the International Union of Elevator Constructors, Locals 50, 90 and 96 ("IUEC" or the "Union") in respect of a collective agreement between it and Escalator Handrail Company Inc. ("EHC"). The questions are:

"1.) Does the Minister of Labour have the authority to make the requested appointment of a conciliation officer?

2.) If so, what would be the parameters for such an appointment -- the ICI sector? the non-ICI sectors? all sectors? non-construction work?"

Facts

2The factual background is as follows. EHC is an employer which employs a small number of people performing work typically performed by members of the Union. On May 29th, 2000 it entered into an agreement with the Union which provides:

"The Employer agrees to be party to the Ontario Provincial Agreement in effect from May 1, 1998 to April 30, 2001, and the renewal thereof, and to adhere to and be bound by the terms and conditions of the said agreement, a copy of which is appended hereto."

3A notice to bargain was given on March 30, 2001 and a request for the appointment of a conciliation officer was made May 16th 2001. Ordinarily this would be a straightforward matter. In this case it is not, give the nature of the Ontario Provincial Agreement.

4The Ontario Provincial Agreement is the latest in a series of collective agreements which have prevailed in the elevator construction industry for several decades. The parties are the National Elevator and Escalator Association ("NEEA") and the "International Union of Elevator Constructors as the designated Employee Bargaining Agency, for and on behalf of its Locals 50, 90 and 96". (It should be noted that the union party to the voluntary collective agreement is Local 50 and that the application for conciliation was made by Locals 50, 90 and 96. Since the parties made no issue of the identity of the union party, I assume that is not an issue, and I shall use the term "Union" to refer to any or all of them.) The history of collective bargaining between the IUEC and employers in the elevator industry is set out in National Elevator and Escalator Association, [1992] OLRB Rep. Mar. 345 ("NEEA 1992"):

6. The parties to this complaint share a lengthy bargaining history in the elevator industry. From approximately 1930 until 1972, bargaining in the elevator industry in Canada was national in scope, as reflected by a series of national collective agreements between employer associations which are the predecessors of the complainant and the International Union on behalf of its respondent Local Unions and other Canadian locals of the International Union. The last national collective agreement was replaced by a series of provincial agreements between the predecessors of the Association and the International Union after a national strike which took place in 1973. The last province-wide collective agreement in Ontario in effect between the Association and the International Union prior to the making of this complaint expired on April 30, 1988 ("the Agreement"). During the extensive bargaining history of the parties up to the expiry of the agreement, the member employers of the Association and its predecessor employer associations were always subject to a single collective agreement for an all-employee bargaining unit covering all sectors of the construction industry and all non-construction aspects of the elevator industry for which the International Union or its locals had bargaining rights. In the circumstances, the history of bargaining between the parties to this complaint or their predecessors has been broader than that created by the province-wide bargaining scheme under the Labour Relations Act.

7. The 1973 strike in Ontario was ended by Provincial legislation which imposed compulsory arbitration on the parties. That arbitration produced a first provincial agreement in the elevator industry in Ontario. The parties usually refer to that agreement as the Anderson award. That award issued February 28, 1974. One of the products of the award was a unique seniority provision which has continued in each provincial collective agreement from 1974 to the present. Effective 1978, that provision provided industry-wide seniority protection to employees after six months service with a single employer. The employers had opposed seniority protection to long service employees during the Anderson interest arbitration and subsequently have proposed that the industry-wide seniority provisions be removed from the provincial collective agreement in order to provide employers with greater flexibility in their control of manpower. During the 1982, 1984 and 1986 bargaining sessions, the Association proposed the elimination of seniority and the creation of two collective agreements, one covering construction work and the other covering non-construction maintenance and service work. The International Union has consistently taken the position that the industry-wide seniority protection has provided job security for its members which it would be inappropriate to abandon. Accordingly, the International Union has consistently resisted any change in the job security provisions by way of amendment to the seniority provisions or by way of negotiating separate collective agreements for construction and non-construction work.

8. The Labour Relations Act was amended in 1977 to create a province-wide bargaining scheme in the ICI sector of the construction industry in Ontario. The Association became the designated employer bargaining agency in that sector for all employers for whose employees the International Union or any of Locals 50, 90 and 96 held bargaining rights in that sector. The International Union became the designated employee bargaining agent in the ICI sector for those three locals. In 1978 and every two years thereafter, the parties continued to bargain a single provincial collective agreement for an all-employee unit. This agreement applied to all employers in the ICI sector for whose employees the International Union or any of its three Locals held bargaining rights in that sector, whether or not the employers were members of the Association. The agreement continued to apply also to all of the Association's members for all work in other sectors of the construction industry and in non-construction maintenance and service work in the elevator industry. Outside of the ICI sector, employers in the elevator industry who are not members of the complainant and who are bound to the provincial collective agreement as it relates to the ICI sector of the construction industry have acceded to the agreement in other sectors of the construction industry and in non-construction maintenance and service work in the elevator industry and have followed its terms and provisions as their own. From time to time, some of those employers have negotiated separate agreements when no provincial collective [agreement] has been in place. The International Union has always insisted that, when a provincial agreement was in place, the terms of that agreement would supersede those of any other agreement which had been negotiated with individual employers.

Thus there has been a collective agreement covering the Province of Ontario since 1973. Unlike most provincial collective agreements in the construction industry, this agreement covers much more than simply construction work. Article 2.01 of the current Ontario Provincial Agreement provides as follows:

"The Employers recognize the Union as the exclusive bargaining representative for all Elevator Constructor Mechanics and Elevator Constructor Helpers, in the employ of the Employers engaged in the installation, repair, maintenance and servicing of all equipment referred to in..."

5The agreement provides for somewhat different terms and conditions of employment for three types of work: "Construction Work" (defined as "the erecting and assembling of apparatus..."), "Repair Work" (defined as "general repairs and modernization work ..."), and "Maintenance Work" (defined as "any contract obtained by an Employer for regular examination or care of apparatus ..."). However, many terms and conditions of employment are identical, regardless of the type of work performed. Base wage rates do not differ with the type of work (Article 5.13). There is an extensive seniority provision which does not depend on the type of work performed.

6If the Board were to apply the distinction between construction and maintenance found in the Act to work performed under this agreement (likely a very unhelpful exercise) all of the Construction Work and much of the Repair Work would be called construction for the purposes of the Act. Some of the Repair Work and virtually all of the Maintenance Work would be defined as maintenance, and therefore not covered by sections 126 to 162 of the Labour Relations Act, 1995. Even those companies which perform a significant amount of construction work also perform maintenance work to an equal or greater extent. The parties have drawn some distinctions for the purposes of terms and conditions of employment among the three types of work, but have included all of it under one collective agreement.

7What the parties have negotiated since 1973, then, is a province-wide collective agreement which covers elevator constructors for all of the work they perform for employers bound to the agreement, regardless of whether the Board would classify the work as construction work for the purposes of the Act or not.

The Issue

8The Union seeks the appointment of a conciliation officer. It states that it has given notice under section 59 of the Act, and that on application, it is entitled to the appointment of a conciliation officer under section 18. EHC resists this appointment on the grounds that it would be redundant. It asserts that, having bound itself to the Ontario Provincial Agreement, it is bound by the results of bargaining between NEEA and the Union. That is, there has already been a conciliation officer appointed in respect of "the collective agreement" to which it is bound, and there is no need for a second one for EHC alone.

Analysis

9The problem arises in this instance because the bargaining relationship is also part of the scheme of province-wide bargaining in the industrial commercial and institutional sector of the construction industry. After a brief period when the Canadian Elevator Contractors Association was designated as the Employer Bargaining Agency, NEEA was designated as the Employer Bargaining Agency in 1978. The International Union of Elevator Constructors was designated as the Employee Bargaining Agency.

10Within the ICI sector of the construction industry, this regime of province-wide bargaining has done much to stabilize bargaining and reduce industrial conflict. With a few modifications it has worked well for 23 years. For those parties whose bargaining relationship extends beyond the ICI sector (for example into other sectors of the construction industry), the ICI bargaining regime has sometimes proved to be a cumbersome fit: see for example Fred Jantz Masonry Construction Company Limited, [1981] OLRB Rep. Sept. 1229 and the London Sandblasting & Painters Limited, [1982] OLRB Rep. Sept. 1322. Generally speaking, when the parties are careful to address the limitations of the statutory provisions applicable to a provincial collective agreement, this has not proved to be a problem. In the case of this collective agreement, the province-wide bargaining regime can have a divisive impact on the contractual unity of this collective agreement.

11NEEA is the designated Employer Bargaining Agency. However, at present only two companies are members of NEEA and the Board is advised that no other employers have given NEEA explicit authority to bargain on their behalf. Certainly EHC has not done so.

12It is useful to commence the analysis of this issue at the simplest level. There is a collective agreement. The parties to it are the Union and EHC. By their agreement, they agreed to "pick up" the agreement between the Union and NEEA. That is, they executed a one page document that has the same effect as if they had executed a copy of the full text of the Ontario Provincial Agreement. The fact that the parties picked up a province-wide agreement does not change the fact that this is a single employer bound to a collective agreement with a trade union. The bargaining unit is composed only of employees of EHC. If EHC were to violate the collective agreement, only EHC would be liable for any damages flowing from such breach. Neither NEEA nor any other employer would be liable for any breach. If employees of EHC sought to terminate the bargaining rights of the Union, they would seek to terminate them only with respect to EHC. The bargaining unit would not consist of all employees of all employers bound to the collective agreement: see Roy Construction and Supply Company Limited, [1982] OLRB Rep. Dec. 1904.

13That is not to say that the Union and EHC are unrestricted in their ability to negotiate terms and conditions in the collective agreement. By virtue of section 162, NEEA, and no other party, may negotiate the one provincial collective agreement on behalf of employers in the ICI sector of the construction industry. Further, section 157 provides:

"157. Where an employer bargaining agency has been designated under section 153 or accredited under section 155 to represent a provincial unit of employers,

(a) all rights, duties and obligations under this Act of employers for which it bargains shall vest in the Employer Bargaining agency, but only for the purposes of conducting bargaining and concluding a provincial agreement;"

14EHC is not legally capable of concluding a collective agreement covering ICI construction work. However, with respect to work not falling within the ICI sector of the construction industry, there is no statutory vesting of bargaining authority in NEEA. Nor has EHC done anything to vest that authority in NEEA, either by joining NEEA as a member, or giving it authority to bargain on EHC's behalf.

15Thus when a notice to bargain a renewal of a collective agreement is given, section 59(1) provides:

"59. (1) Either party to a collective agreement may, within the period of 90 days before the agreement ceases to operate, give notice in writing to the other party of its desire to bargain with a view to the renewal, with or without modifications, of the agreement then in operation or to the

making of a new agreement."

That is, the notice is given to the other party to the collective agreement, in this case EHC. If EHC were a member of NEEA, or had given NEEA authority to bargain on its behalf, then section 59(3) would apply. That section provides:

"59(3) Where notice is given by or to an employers' organization that has a collective agreement with a trade union or council of trade unions, it shall be deemed to be a notice given by or to each member of the employers' organization who is bound by the agreement or who has ceased to be a member of the employers' organization but has not notified the trade union or council of trade unions in writing that he, she or it has ceased to be a member."

However, EHC is not a member of NEEA and has not taken any steps to give NEEA authority to bargain for it.

16The precondition for the appointment of a conciliation officer in the case of a renewal collective agreement is the giving of notice under section 59. When that has been done, then section 18 of the Act provides that the Minister "shall appoint a conciliation officer to confer with the parties and endeavour to effect a collective agreement." In this case the collective agreement is between EHC and the Union.

17I accept the arguments made by EHC that the agreement executed binds it to a single collective agreement which covers both construction work (in all sectors) and non-construction work. I also accept that, if the union does not seek and obtain the appointment of a conciliation officer, the agreement continues in full force and effect and continues to bind EHC to the provincial collective agreement as it may be amended in this round of bargaining or otherwise. However, the issue at this point is whether the union, having chosen to seek conciliation, has a right to have a conciliation officer appointed.

18EHC argues that it does not. It argues that there is a single collective agreement between NEEA and the Union binding on EHC and that once the union has obtained the appointment of a conciliation officer for the collective agreement with NEEA, then it has obtained the appointment of a conciliation officer for "the collective agreement" (i.e. with EHC) and is not entitled to another one for EHC alone. It argues that if a province wide strike were to ensue, the "no-board" report obtained in respect of the conciliation process involving NEEA would be operative for the purposes of section 79 (2) and would permit the union to commence a strike against EHC regardless of whether EHC was performing work in the ICI sector of the construction industry, some other sector, or even non-construction work.

19The Board does not accept that proposition. It makes too much of the limited authority of an EBA under section 157. A trade union holds bargaining rights in respect of the employees of a single employer. The collective agreement created out of those bargaining rights may be negotiated by the parties themselves, or they may agree to "pick up" a standard area agreement. The statute may impose an agreement if there is a relevant designation or accreditation order. However, the fact remains that the bargaining rights of the union are in respect of a single bargaining unit, that is the employees of a single employer: see from a different perspective International Union of Bricklayers and Allied Craftworkers (unreported decision, May 2, 2001, Board File No. 2532-98-U) at paragraphs 132 to 146.

20In this case, when it comes to bargaining a collective agreement, the parties are EHC and the Union. Sections 156 and 157 vest their authority to bargain for terms and conditions of employment in the ICI sector of the construction industry in their respective EBA's. However, there is nothing in the statute or the parties' conduct which vests the authority for bargaining a collective agreement in respect of terms and conditions of non-ICI work in any other body. If EHC wishes to become bound to whatever collective agreement NEEA negotiates, or have decisions made by NEEA with respect to strike and lock-out action, without being further involved in bargaining, it has two choices – join NEEA or give it authority to bargain on its behalf.

21Thus the conciliation officer appointed in respect of the application for conciliation for NEEA does have the statutory mandate to assist the parties to conclude a renewal of the entire agreement – ICI, non-ICI, and non-construction work. The entire agreement must be the subject of the negotiations between NEEA and the Union (whether those negotiations lead to the renewal of a single collective agreement or two collective agreements). However, the results of this bargaining will be binding, for the entire agreement, only on the members of NEEA. The only wider application of the results of bargaining to employers who are not members of NEEA is the one mandated by sections 156 and 157, i.e. that the agreement concluded by NEEA and the Union is binding on all parties in the ICI sector of the construction industry. The authority of NEEA to bind other parties by the results of its bargaining extends no further.

22In some sense, the legal issues raised by EHC are premature at this point. Essentially EHC argues that once the parties have entered into a single collective agreement, it is not "possible" to insist that it be divided for the purposes of conciliation and "recombined" when the final collective agreement is executed. EHC did not use the phrase "bad faith bargaining", but it is clear that the parties may agree to divide a single agreement into two agreements (as NEEA has requested repeatedly). I infer, then, that EHC is asserting that it would be a breach of the duty to bargain in good faith if the union were to engage in strike action in only the ICI sector or only in all other sectors. This is the same issue raised in NEEA 1992, and more will be said of this below. However at this point the question is not one of whether some of the options apparently open to the Union if the Minister were to appoint a conciliation officer would be, if exercised, bargaining in bad faith. The question at this point is whether the union is entitled to have a conciliation officer appointed for the renewal of the collective agreement with EHC.

23If the only possible reason for seeking the appointment of a conciliation officer were to pursue a course of conduct which would be clearly and indisputably unlawful, the arguments of EHC might have some force. However, this is not the case. The authority of NEEA to negotiate the renewal of the collective agreement for EHC does not extend beyond the ICI sector. Thus the scope of any conciliation officer's appointment is similarly limited. If NEEA and the Union are unsuccessful in concluding a renewal collective agreement, a strike might ensue. The Union would be unable to commence a strike against EHC in respect of any non-ICI work, as that portion of the collective agreement would continue to be in effect because the conciliation process would not have been exhausted. That is, the Union needs the appointment of a conciliation officer in respect to EHC ultimately to engage in a strike to press its demands in the process of renewing the agreement which it seeks to preserve as a single unified agreement. The issue of whether or not the union might choose an option which the Board might find to be bad faith bargaining, is speculative at this time. The only question is the entitlement to the union to commence a process which, if the Union were to pursue one set of options, EHC views as entirely proper.

24What this means is that part of the collective agreement (dealing with ICI construction) will be determined by NEEA regardless of EHC's wishes (subject to section 167 (2)). In respect of any other work covered by the collective agreement, NEEA has no statutory authority to bind EHC, and EHC has not voluntarily given that authority to a NEEA.

25This can lead to an unusual position in bargaining. In NEEA 1992, the Board described the situation that developed in that round of bargaining. That year, negotiations were not successful and a strike ensued. One of the issues was whether there should be two collective agreements or one. NEEA proposed two collective agreements, but the Union was determined to enter into a single collective agreement. Indeed that is one of the issues that led to a strike.

26During the strike, this issue took a number of twists and turns. The Board described them as follows:

12. The Association reintroduced the issue of two collective agreements during the strike after some of the local unions had executed collective agreements with some of the individual employers who were not members of the Association. These agreements did not relate to the ICI sector of the construction industry. They came about after York Elevators Limited informed the Union that the Association did not bargain for York outside of the ICI sector of the construction industry. When the Union took a contrary position, York filed a complaint under the Act alleging that the Union was engaged in an unlawful strike against York. The complaint was settled when the Union negotiated a collective agreement with York. The Union then negotiated collective agreements containing the same terms with a few other independent employers, including J. Schindler Elevator Corporation. All of these agreements contained a provision which purported to modify them to be consistent with the terms of the "... usual Provincial agreement..." once it is settled. Upon learning of Schindler's agreement, on June 27 Reistetter told J. Warner Baxter, the senior executive officer of the International Union in Canada, that the Association was prepared to bargain a collective agreement similar to the ones which they had negotiated with York and Schindler. Baxter's response after a couple of minutes discussion was that there would be one collective agreement for the elevator industry in Ontario. On July 11, the Association requested the Union to resume formal negotiations for the purpose of bargaining a collective agreement excluding the ICI sector similar to the one executed with Schindler. The Union replied that it was prepared to resume bargaining for the renewal of the Ontario Provincial Agreement.

13. Bargaining did resume, although the evidence does not reveal when that happened or how many meetings the parties held. ... With respect to the two collective agreements, the Association had made an amended proposal for one collective agreement applying to the ICI sector of the construction industry and another applying to the rest of the elevator industry. The Union's position on that issue was that a single collective agreement was essential for the protection of its members. ... [T]he parties executed a memorandum of agreement on July 27th to renew the expired collective agreement, amended in accordance with the terms of the memorandum of agreement. ... The memorandum also contains the parties' acknowledgement that its terms constitute full settlement of all matters in dispute.

27The decision quoted from above arose from a section 96 application brought by NEEA against the union alleging bargaining in bad faith. By the time the Board issued a decision a collective agreement had been executed by the parties, and the Board concluded the issue was moot. However, in what was either an additional set of reasons for dismissing the application or obiter, the Board did analyze two legal issues. In that decision, the Board held:

1.) The union did not breach section 15 in bargaining to impasse its insistence on a single collective agreement.

2.) The union did not breach section 15 in negotiating with individual employers who were not members of person NEEA a separate collective agreement for elevator work excluding the ICI sector.

28Counsel for EHC suggested that the reasoning in the Board's decision was incorrect and should be rejected in favour of what he argued that was a different analysis in a decision from the British Columbia Labour Relations Board: Construction Labour Relations Association and the Schindler Elevator Corporation vs. IUEC Local 82 (unreported, August 19 1994 case No. 19913). With respect, I do not read that case as necessarily in conflict with the reasoning of the Board in NEEA 1992. The result therein is based on a finding that the strike was untimely because all of the steps leading to a lawful strike necessary under the British Columbia regime of multi-trade bargaining had not been completed. At p. 7 of that decision the B.C. Board was careful to say that it was not dealing with the case of "a partial strike" taking place after the collective agreement had been properly terminated. However, none of these issues is before me, and it would be inappropriate to engage in what would essentially be speculation about what the legal consequences of a possible or hypothetical set of future steps might be. The issue on which the Minister has asked the Board for its advice is simply whether he has the authority to appoint a conciliation officer as requested.

Conclusion

29I conclude that the Minister does have the authority to appoint a conciliation officer, but only for the purposes of assisting the parties in the renewal of that portion of the collective agreement which deals with work not in the ICI sector of the construction industry. Fundamentally, the union is entitled to apply for conciliation in respect of the collective agreement between it and EHC. The only limitation is with respect to construction work in the ICI sector, where the right of the Union and EHC to conclude a collective agreement has vested in the two EBA's by virtue of sections 156 and 157.

30This does mean that EHC is vulnerable to having its collective agreement determined by others it has no knowledge of. It appears to be content to allow NEEA to bargain a collective agreement, and then simply to abide by the terms of that agreement whatever they may be. However, as NEEA 1992 demonstrates, the terms of that collective agreement may well be determined by parties other than a NEEA or EHC. It is clearly possible for the Union, and one or two employers (such as York and Schindler in NEEA 1992) to decide to strike a deal for non-ICI work which may become the pattern for the provincial collective agreement. In that scenario bargaining would be decided, not by NEEA, but by one or two employers which are either susceptible to Union pressure (if the Union wishes to engage in "whipsaw" bargaining) or which are seeking an advantage for themselves, and are prepared to sacrifice long-term bargaining goals for immediate relief from a strike or threatened strike.

31The fact is that an independent employer such as EHC cannot rely on a NEEA without participating in that organization to some extent. Even if NEEA were to become accredited for non-ICI construction work, and therefore by statute become the bargaining agent for all employers in those other sectors, there is no equivalent process for non-construction work. Section 57 is a purely voluntary process. So long as EHC or other "independent" employers decline to give NEEA the actual authority to bargain for them, they will be vulnerable to the possibility that the real terms of the collective agreement will be set by one or two employers of whom they know little or nothing.

Answers

32The answers to the Minister's questions then, in the opinion of the Board, are as follows:

1.) Yes the Minister does have the authority to appoint a conciliation officer as requested by the International Union of Elevator Constructors, Locals 50, 90 and 96 in respect of Escalator Handrail Company Inc.

2.) The role of the conciliation officer would be to assist the parties to renew the collective agreement between them, subject to the limitation that they may not conclude any portion of the collective agreement that applies to work in the ICI sector of the construction industry.

"David A. McKee"

for the Board