3206-00-R Jeff Jessup, Applicant v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 46, Responding Party v. Jack Bird Plumbing & Heating Ltd..
BEFORE: John Morgan Lewis, Vice-Chair.
APPEARANCES: Cyril J. Abbass and Jeff Jessup for the applicant; A. M. Minsky, Graham Williamson and Garth Cochrane for the Ontario Pipe Trades Council; A. M. Minsky, Graham Williamson and Jim Hogarth for United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 46; J. Paul Wearing for Jack Bird Plumbing & Heating Ltd.
DECISION OF THE BOARD; April 26, 2001
This is a termination application pursuant to section 63 of the Labour Relations Act, 1995 (the “Act”).
The applicant, Jeff Jessup, seeks a declaration from the Board that the responding party, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 46 (“Local 46”) no longer represents the employees of Jack Bird Plumbing & Heating Ltd. (the “company”) in the following bargaining unit:
all qualified and/or Certified Journeymen or Apprentices employed by the company as a plumber, steamfitter, pipefitter, welder and apprentice or job foreman in the province of Ontario.
The application was filed on February 1, 2001. The employees who are affected by this application are covered by a collective agreement between the Mechanical Contractors Association Ontario and the Ontario Pipe Trades Council (the “OPTC”) with an effective date of May 1, 1998, until April 30, 2001 (the “collective agreement”). In its decision dated February 19, 2001, the Board (differently constituted) found the application to be timely in accordance with section 63(2) of the Act. The Board directed that a representation vote be conducted. The representation vote took place on February 21, 2001.
A timely intervention was filed by the company. A response was filed by Local 46 and by the OPTC in which they both assert that this application should be dismissed on the basis that the applicant did not name the correct responding party and failed to deliver the application in accordance with subsection 63(3) of the Act and Rules 139 and 140 of the Board’s Rules of Procedure. In light of the position taken by Local 46 and the OPTC with respect to the validity of the application, the Board directed that the ballots cast in the representation vote be individually segregated and the ballot box sealed unless the parties otherwise agree or the Board so orders.
The Board notes parenthetically that the applicant filed a second application in which he named both Local 46 and the OPTC as the responding party. This second application was filed on March 22, 2001. It would therefore appear that the arguments raised by Local 46 and the OPTC are somewhat moot in light of the second application. Nevertheless, the arguments addressed in this decision have been raised in a number of other applications, making a determination by the Board in this application not only appropriate but also necessary.
Local 46 and the OPTC raised four issues to be determined by the Board:
a) Who is the proper responding party in this application?
b) Were the delivery requirements for the application satisfied in accordance with subsection 63(3) of the Act and Rules 139 and 140?
c) What is the appropriate bargaining unit?
c) The adequacy of production by the company with respect to a number of status disputes.
The company did not take a position with respect to the first three issues. On the agreement of the parties, the fourth matter, the adequacy of production with respect to the status challenges, was not argued pending the determination by the Board of the other three items. With respect to the third issue, the applicant, Local 46 and the OPTC agreed that the appropriate bargaining unit with respect to this application is as set out in the collective agreement and which is referred to in paragraph 2 of this decision.
Before addressing the first two issues, which are interrelated, it is necessary to briefly summarize the manner in which the application was delivered. The parties chose not to call any evidence as many of the relevant facts were obvious on the face of the documents filed with the Board.
Mr. Jessup is a member of Local 46 and was working within the geographic jurisdiction of Local 46 on the date of application. The application names Local 46 as the responding party. Local 46 is an affiliated bargaining agent as defined in section 151 of the Act. The application was filed on February 1, 2001. The applicant filed a completed Certificate of Delivery (Form A-81) indicating that the application and related documents were given to Canada Post’s Priority Courier Service on February 1, 2001 which guaranteed that the application would be delivered by no later than February 2, 2001 at 4:00 p.m. The application was received by Jim Hogarth, a business representative for Local 46, on February 2, 2001. The applicant did not deliver the application to the OPTC. The OPTC is an employee bargaining agency as designated by the Minutes under section 153 of the Act. Mr. Hogarth is not an official of the OPTC. The Board served the OPTC on February 6, 2001 with Form B-99 (Notice to Employee Bargaining Agency of Application for Termination of Bargaining Rights Under Section 63 or 132 of the Act, Construction Industry) in which the OPTC was directed to deliver, inter alia, a copy of the application and other required documents to all of the affiliated bargaining agents.
Local 46 and the OPTC maintain that the application is flawed and ought to be dismissed as the proper responding party is the OPTC and not Local 46. Local 46 and the OPTC further argue that the applicant never delivered the application to the OPTC and by doing so has breached the delivery requirements referred to in section 63 of the Act and Rules 139 and 140. It is asserted that this failure is substantive in nature and, in keeping with the Board’s jurisprudence in Associated Contracting Inc., [1998] OLRB Rep. November/December 903 and Communications, Energy and Paperworkers Union of Canada, [1999] OLRB Rep. March/April 189, cannot be cured in accordance with the exercise of the Board’s discretion under Rules 44 and 49.
The cornerstone of the union’s argument rests upon the proposition that the only entity which can be named (and to which the application can be delivered) as the responding party in the application is the OPTC. For the reasons that follow, the Board disagrees with this proposition. Local 46, as an affiliated bargaining agent, holds bargaining rights with respect to those employees in the bargaining unit who are affected by the application. It is therefore entirely appropriate that Local 46 was named as the responding party in the application. Furthermore, the applicant complied with the delivery requirements set out in the Act and the Rules as he delivered the application to Mr. Hogarth at Local 46 on February 2, 2001.
Section 63(3) speaks to the delivery requirements with respect to an application for termination and reads as follows:
63(3) The applicant shall deliver a copy of the application to the employer and the trade union by such time as is required under the rules made by the Board and, if there is no rule, no later than the day on which the application is filed with the Board.
The Board has established rules with respect to the delivery requirements for an application for termination. The relevant portions of Rules 139 and 140 read as follows:
The applicant must deliver the following to the union not later than two (2) days after filing its application with the Board:
Delivery by the applicant to the responding party under Rule 139 should be made to the senior union official responsible for the bargaining unit.
Local 46 and the OPTC maintain that the reference to the term “trade union” in subsection 63(3) requires an applicant to name an employee bargaining agency as the responding party and to effect delivery of the applicant to same in an application which seeks to terminate bargaining rights pursuant to a provincial collective agreement (as defined in section 151 of the Act).
The term “trade union” is defined in section 1(1) of the Act as follows:
“trade union” means an organization of employees formed for purposes that include the regulation of relations between employees and employers and includes a provincial, national, or international trade union, a certified council of trade unions and a designated or certified employee bargaining agency.
Clearly an employee bargaining agency such as the OPTC fits within this definition. This does not provide much assistance, however, as an affiliated bargaining agent like Local 46 also meets this definition. Accordingly, the use of the term “trade union” in section 63(3) does not indicate, at least with respect to the definition contained in section 1(1) of the Act, that it only refers to an employee bargaining agency and not to an affiliated bargaining agent as well.
Local 46 and the OPTC argue that the reference to a trade union in subsection 63(3) can only refer to an employee bargaining agency because, in accordance with section 156, the bargaining rights of the affiliated bargaining agents are vested with the employee bargaining agency. Section 156 reads as follows:
Where an employee bargaining agency has been designated under section 153 or certified under section 154 to represent a provincial unit of affiliated bargaining agents, all rights, duties and obligations under this Act of the affiliated bargaining agents for which it bargains shall vest in the employee bargaining agency, but only for the purpose of conducting bargaining and, subject to the ratification procedures of the employee bargaining agency, concluding a provincial agreement.
[my emphasis]
As indicated by the emphasis, the vesting of bargaining rights held by the affiliated bargaining agents to the employee bargaining agency is only for the purpose of conducting bargaining. Affiliated bargaining agents still maintain bargaining rights for all other purposes. There are a number of provisions throughout the Act confirming that bargaining rights are held by affiliated bargaining agents, the definition of which includes an employee bargaining agency. For example, the definition of a provincial agreement in section 151 indicates that the bargaining rights of employees whose working terms and conditions are covered by a provincial agreement are held by the affiliated bargaining agents. In addition, Section 158 provides that one or more affiliated bargaining agents or an employee bargaining agency may bring an application for certification and does so on behalf of all of the affiliated bargaining agents, including the employee bargaining agency. I refer to the Board’s comments on Kvaerner Jaddco, [2000] OLRB Rep. September/October 891, at paragraph 118:
The BACU argued that the Old OPC did in fact have this authority because it, rather than the local unions held all bargaining rights. This is not true generally of an EBA. The ABA’s of the EBA continue to hold bargaining rights, subject to the limitation of section 156. By definition, an ABA cannot “represent employees who commonly bargain separately and apart from other employees” unless it holds bargaining rights. Further, the distinction between the holding and the exercise of bargaining rights is one which informs the few decisions of the Board where the distinction is relevant. In the Herman Decision, the Board did not hold a vote. As Vice-Chair Herman pointed out at paragraphs 53-60, section 154(2) specifically does not require a vote, but simply that the applicant demonstrate that it is supported by a majority of ABAs which “hold bargaining rights for a majority of the employees that would be bound by a provincial agreement”. That is, the ABAs were the source of bargaining rights. Indeed, if the EBA held all the bargaining rights, a section 154 displacement application could never be successful since, if the “incumbent” EBA held the bargaining rights, no other entity could ever satisfy the requirements of section 154(2). The concept that it is the ABAs which hold bargaining rights also underlies the Board’s reasoning in cases involving whether or not there has been abandonment in the ICI sector: Lorne’s Electric Limited, [1987] OLRB Rep. Nov. 1405 and J. & D. Display Interiors Ltd., [1998] OLRB Rep. Mar./Apr. 217.
Local 46 and the OPTC further contend that the OPTC is the correct responding party to the application as it is the party to the collective agreement, and cite with approval the Board’s comments in Fritz Electric Inc., [1999] OLRB Rep. Sept./Oct. 836. In that case, the applicant to a termination application had named and served the IBEW Construction Council of Ontario (the “Council”), an employee bargaining agency. The union sought to have the application dismissed on the basis that the applicant had failed to serve all of the affiliated bargaining agents. The Board rejected that argument, and held that it was sufficient for the applicant to serve the Council and, further, that it was not required to serve all of the affiliated bargaining agents. The Board went on to state at paragraph 8:
In this case, it is clear from the ICI Provincial Agreement that the trade union is the employee bargaining agency comprised of the International Brotherhood of Electrical Workers and the IBEW Construction Council of Ontario. We simply observe that an applicant risks dismissal of his or her application under section 63 if the application is not delivered to the trade union party to the collective agreement in accordance with the Board’s Rules even though the Board provides such notice to all of the affiliated unions. (See Associated Contracting Inc., 1998] OLRB Rep. Nov./Dec. 903 at page 910.)
The decision in Fritz Electric Inc., supra, stands for the proposition that an applicant need not serve all of the affiliated bargaining agents with an application for termination, and that the employee bargaining agency can be served as it is a trade union as contemplated in section 63(3). It is not authority, however, for the position argued by Local 46 and the OPTC in this case; that the employee bargaining agency is the only entity to which an application for termination can be delivered. That issue was not before nor decided by the Board in Fritz Electric Inc, supra. The aforementioned comments were merely part of the Board’s consideration for the concerns raised in Double S Construction, [1998] OLRB Rep. Aug. 800, cited earlier in its decision and the requirement to provide notice to all affiliated bargaining agents which, by virtue of possessing bargaining rights in accordance with section 158, were interested parties to the application. It is this very concern which prompted the Board to introduce Form B-99 by which it notifies an employee bargaining agency of an application and directs the employee bargaining agency to serve all of its affiliated bargaining agents.
The Board finds that the reference to a trade union in section 63(3) includes both an employee bargaining agency as well as an affiliated bargaining agency. The approach suggested by Local 46 and the OPTC is not supported by the language of the Act and is not consistent with one of the fundamental themes of the Act: ensuring that employees are able to exercise their rights to determine whether they wish to be represented by a trade union for the purposes of collective bargaining. To defeat this application for the reasons set forth is not a sensible result and ignores a basic reality amongst construction trade unions. It is the Board’s experience that most, if not all, members of construction trade unions are familiar only with their local union and are not remotely aware of the bargaining structure with respect to the industrial, commercial and institutional sector and the existence of the employee bargaining agency. To require delivery to an organization which most members are not familiar with would make it extremely difficult for an individual to exercise his or her rights under the Act. Such a result is not in keeping with the purpose of the Act nor is it supported by the language of the statute.
The Board hereby finds that the applicant complied with the delivery requirements as set out in section 63(3) of the Act and Rules 139 and 140.
The parties are directed to contact the Registrar in order to schedule further hearing dates with respect to the outstanding matters in this proceeding.
This panel of the Board is not seized.
“John Morgan Lewis”
for the Board