1526-01-U National Elevator and Escalator Association, Applicant v. International Union of Elevator Constructors, and its Locals 50, 90 and 96, Responding Parties.
BEFORE: Harry Freedman, Vice-Chair.
DECISION OF THE BOARD; August 28, 2001
The applicant filed an application under section 96 of the Labour Relations Act, 1995, S.O. 1995, c.1, as am. (the “Act”) alleging, among other things that the responding parties have violated section 164(1) of the Act by engaging in a selective strike after having commenced a lawful province wide strike on August 25, 2001. The applicant requests that the Board issue cease and desist directions in relation to the strike and other relief in relation to the bargaining between the parties and seeks to have the Board abridge the time limits under the Board’s Rules for responding to the application so that the matter can be heard at the earliest opportunity.
At this point all that is before the Board are the applicant’s allegations. It will have to prove those allegations at the hearing the Board schedules in this matter before the Board would make any direction or grant any relief. Nevertheless, in my view, given the nature of the allegations made, I think it is both necessary and appropriate to set out briefly the statutory framework so that the parties (and the employers and employees affected) will have some understanding of the nature of the issues and the relevant law so that all persons having an interest in this matter can decide what steps are necessary to ensure that they are not in violation of the Act.
The applicant alleges that the bargaining between the parties broke down and the applicant commenced a lawful strike against the applicant and the employers it represents on August 25, 2001. That strike included employers and employees who had been performing work in the industrial, commercial and institutional (ICI) sector of the construction industry. On August 27, 2001 the applicant alleges that it advised the International Union of Elevator Constructors, Local 50 that members of Local 50 were performing construction work in the ICI sector, more particularly, at the IKEA facility in Etobicoke. The applicant alleges that members of the responding parties are continuing to perform ICI sector construction work on the TTC Sheppard subway line, the Toronto Airport Terminal and at the IKEA project.
The applicant points out that the responding parties have advised employers (who are not members of the applicant) that their employees represented by the responding parties may not be assigned to perform construction work in the ICI sector. The applicant also received a letter from the responding parties advising it that as a result of the strike having been called by the responding parties “all employees who are employed on construction work in the ICI sector must participate in the strike. We have communicated that same message to those employers who are not members of the [applicant].”
It seems that the immediate parties to this proceeding understand that the scheme of the Act requires unions engaged in province-wide bargaining in the ICI sector of the construction industry that have called a strike in respect of their ICI sector bargaining to call or authorize a strike of all of the employees represented by those unions in the ICI sector. Simply put, the employees represented by the responding parties are prohibited by the Act from continuing to perform the construction work they were doing before the strike started if that work was in the ICI sector of the construction industry. In the same vein, the Act prohibits employers who were engaged in performing ICI construction work using members of the responding parties before the lawful strike commenced from continuing to have that work performed by members of the responding parties.
In All-Pro Contractors, [1982] OLRB Rep. August 1109 the Board commented at page 1118 that
…an arrangement with any person or employer, whereby employee-members perform, or are permitted by their bargaining agent to perform, work which, but for the strike, would have been performed by the employer who has been struck, is unlawful. The effect of section 146(2) [now section 162(2)] on a striking Union and its members, in other words, is clear and straightforward. If the Union and its members opt for strike action, the members do not thereafter continue to perform the struck work….
The Board noted in Sikora Mechanical Ltd., [1982] OLRB Rep. June 941 at page 951-52 that an affiliated bargaining agent affected by a lawful strike in the ICI sector has an ongoing responsibility to ensure “that the strike called or authorized continues to be called or authorized and on a uniform basis.” The Board in that case then went on at page 952 to describe the obligations of an affiliated bargaining agent when a lawful strike is called in relation to the ICI sector:
It is not enough to call or authorize a strike initially and then to sit back and encourage, through inaction, the return to work of striking employees. An affiliated bargaining agent is obligated to call or authorize the strike in respect of all employees it represents in the ICI [sector] and this obligation must be held to be a continuing obligation. Province-wide bargaining takes away responsibility for negotiations from individual employers and unions and places that responsibility in the hands of central bodies….An affiliated bargaining agent must supervise affected work sites effectively and make reasonable efforts to convey to its members that a strike has been called and that they are not to work. The affiliated bargaining agent clearly cannot, on a selective basis, sanction the working of its members on particular projects by inaction and comply with its obligations under section 148(1) [now 164(1)].
Whether the responding parties have met their obligations in relation to the lawful strike they called is an evidentiary matter that will likely have to be determined at the hearing. Nevertheless, if the responding parties’ members are working in the ICI sector as alleged by the applicant and the responding parties have not taken reasonable bona fide steps to stop them from doing so, then serious consequences might well result.
The applicant alleges that the responding parties, by bargaining to an impasse and calling a strike over employer contributions to the applicant, bargained in bad faith. It also alleges that the responding parties’ communication to employers who are not members of the applicant interfered in the administration of the applicant. The legitimacy of the bargaining positions of the parties and whether the impugned communication between the responding parties and those employers who are not members of the applicant but are represented by it in bargaining are not matters about which I am prepared to comment. If the parties cannot resolve those issues through the bargaining process, then whether the responding parties’ conduct in bargaining violated the Act is a matter that the Board will determine in due course.
I am satisfied that the applicant has alleged that the responding parties are engaged in serious misconduct with respect to the strike that they have called in relation to the ICI sector of the construction industry. The issues raised in respect of the strike in the ICI sector require a speedy resolution. To that end, I am satisfied that it is advisable to abridge the time under the Board’s Rules for filing a response to the application and for setting this matter down for hearing.
The responding parties are directed to deliver their response to the applicant and file it with the Board not later than 10 a.m. Thursday August 30, 2001. The hearing will commence at 1:00 p.m. Thursday August 30, 2001 at the Board’s premises at 505 University Ave., 2nd Floor, Toronto and will continue, if necessary, on Friday.
I am also satisfied that meeting with a labour relations officer prior to the hearing of this matter might well enable the parties to reach either a complete or partial resolution of this matter. Therefore, the parties are directed to attend at the Board’s premises to meet with a labour relations officer on Wednesday, August 29, 2001 at 2:00 p.m.
This panel of the Board is not seized with this matter.
“Harry Freedman”
for the Board