2347-00-R Brick and Allied Craft Union of Canada, Applicant v. Ontario Power Generation Inc., Responding Party v. Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftworkers; International Union of Bricklayers and Allied Craftworkers; International Union of Bricklayers and Allied Craftsmen, Local 6; International Union of Bricklayers and Allied Craftsmen, Local 7; International Union of Bricklayers and Allied Craftsmen, Local 25, Intervenor.
APPEARANCES: L. A. Richmond and J. Haggis for the applicant; M.P. Moran and Rick Currie for the responding party; Andrea Bowker and Jerry Coelho for the Ontario Provincial Conference of the IUBAC; Michael Gottheil and Lou Mascarin for IUBAC, Locals 6, 7 and 25; Donald K. Eady and Joel Freedman for International Union of Bricklayers and Allied Craftworkers.
BEFORE: David A. McKee, Vice-Chair.
DECISION OF THE BOARD; May 14, 2001
This is a further decision in this application for certification brought pursuant to the construction industry provisions of the Labour Relations Act, 1995 (“the Act”). The application date is November 8, 2000.
In two decisions dated November 15, 2000 and December 20, 2000 I set out the issues which arise from the pleadings in this application. The first of these issues, whether or not there was a collective agreement, and if so, whether it acted as a bar to the application, was dealt with in an interim decision dated February 12, 2001. I concluded that there was no collective agreement in effect which acted as a bar to the application.
This decision deals with issues characterized variously as fraud, abuse of process, estoppel, or a violation of section 96(7) or sections 73 and 74.
In the decision dated December 20, 2000 I stated as follows:
… In order to expedite the proceedings, the Board requests the parties to be prepared to address argument on the issue of whether, assuming all of the facts set out in both the interventions filed by the IUBAC and Locals 6, 7 and 25 are true, any of those facts would cause the Board to dismiss the application. In this regard it may be of assistance if the IUBAC and Locals 6, 7 and 25 file any further particulars on which they wish to rely. If they choose to do so, such particulars should be filed on or before January 10, 2001.
There were no further particulars filed on January 10 or at any other time.
These arguments arise from Minutes of Agreement executed in Board File 0198‑00‑M. That file was a reference by the Minister to the Board of an issue for the Board’s advice as to whether or not the Minister should issue a “No-Board Report” with respect to bricklayers and tilesetters employed by members of EPSCA, and if so, to whom. There had been for many years collective agreements between EPSCA (which bargains on behalf of Ontario Power Generation Inc., among others) and the International Union of Bricklayers and Allied Craftworkers (“IUBAC”) and the Ontario Provincial Conference of the IUBAC (“the OPC”). On May 21, 1998 a request for appointment for a conciliation officer was made in the name of the IUBAC and the OPC. A conciliation officer was appointed June 2, 1998. Shortly after that time, a dispute between 11 of the 14 Ontario Locals of the IUBAC and the OPC of the IUBAC, on the one hand, and the IUBAC and the remaining three Locals in Ontario reached something of a showdown. In October of 1998 the IUBAC purported to revoke the charters of the OPC and the 11 Ontario Locals. In response, the individuals who were members of those 11 Locals established a trade union, the Brick and Allied Craft Union of Canada (“BACU”). From that time until September 2000, the BACU took the position that it was simply the OPC with a new name or alternatively, was the successor to the OPC.
While this dispute was going on, the OPC negotiated with EPSCA and on February 19, 1999, concluded a Statement of Settlement containing terms for a collective agreement from May 1, 1998 to April 30, 2000. EPSCA ultimately refused to ratify it because of the uncertainty over the claim by the BACU that it was the proper union party.
At some point in the year 2000, the BACU applied for a “No-Board Report” which would have enabled it to commence strike action against the members of EPSCA, including in particular the responding party to this application, OPGI. EPSCA objected to the release of a “No-Board Report”. The Minister referred the matter to the Board and asked for the Board’s advice with respect to certain questions arising from this dispute. At the hearing into this reference, the parties concluded Minutes of Agreement which provide as follows:
BOARD FILE 0198-00-M
MINUTES OF AGREEMENT
B E T W E E N :
ELECTRICAL POWER SYSTEMS CONSTRUCTION ASSOCIATION
(“EPSCA”)
- and -
INTERNATIONAL UNION OF BRICKLAYERS
AND ALLIED CRAFTWORKERS
(“the “IU”)
- and -
BRICK AND ALLIED CRAFT UNION OF CANADA
(“BACU”)
THE PARTIES agree as follows:
(1) Effective June 15, 2000, all terms and conditions contained in the Statement of Settlement dated February 19, 1999 (excluding faceplate and bargaining agent changes) shall be applied until amended pursuant to the Labour Relations Act.
(2) No later than July 30, 2000, EPSCA shall pay $20,000 to the BACU to be distributed pro rata among members employed by Ontario Hydro or its successor companies from February 19, 1999 until June 14, 2000.
(3) BACU states its name is THE BACU. The IU states the name of The BACU is the OPC of the IU.
(4) The amount referred to in paragraph 2 will be administered by the BACU.
(5) The BACU will provide an accounting of the monies distributed in accordance with paragraph 2 if requested by the IU.
(6) The parties agree to adjourn Board File 0198-00-M sine die pending the decision of Vice-Chair McKee in Board File No. 1904-99-R and 2784-98-R.
(7) This Settlement is without prejudice to the IU’s and BACU’s positions with respect to trade union status, change of name, successorship or bargaining rights including any positions taken by the IU or BACU in Board Files 1904-99-R and 2784-98-R.
(8) Without prejudice to the positions of the IU and/or the BACU that each has bargaining rights for the Brick and Tile Trades under the EPSCA Brick and Tile Trade collective agreements, the IU and BACU agree that EPSCA may negotiate for the renewal of the EPSCA agreements for the period commencing May 1, 2000 covering the Brick and Tile trades with the Executive Board of the BACU.
(9) Any settlement reached will not be implemented without prior discussion of the BACU and the IU. The IU and BACU each agree that the settlement negotiated with EPSCA will be binding on whichever of them is subsequently determined (agreed) to hold the bargaining rights for the Brick and Tile trades with EPSCA.
(10) The IU and BACU agree that EPSCA may implement the terms of such renewal settlement and the IU and BACU shall have no claim arising out of the negotiation and implementation of the settlement against EPSCA or contractors working under the settlement. This does not affect the rights of an employee or the proper union party grieving an alleged breach of the settlement.
(11) Administration of the Settlements shall be in accordance with past practice.
(12) The International Union of Bricklayers and Allied Craftworkers and the Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftworkers/BACU (the Unions) hereby withdraw the request to the Minister for the issuance of a “No Board” report.
(13) The Signatories agree that the withdrawal and the Minutes of Agreement are without prejudice to any union’s position in this or any other matter or proceeding.
(14) These minutes constitute a settlement made pursuant to s.96 (7) and are enforceable as such.
DATED at Toronto, this 15th day of June, 2000.
“Richard Currie” “R.G. Aitken”
EPSCA IUBAC
“Jerry Coelho”
BACU
The issue of whether the BACU was a “transformed” OPC or whether it was the successor to the OPC was answered in the negative by a decision of the Board dated September 15, 2000 in Board File Nos. 1904-99-U and 2783-98-R. This application was filed on November 8, 2000.
The pleadings of the IU and Local 675 define the facts giving rise to their various arguments. The IU pleaded:
In paragraph 8 of the Minutes of Agreement, it was agreed that the BACU would negotiate for the renewal of the EPSCA agreements for the period commencing May 1, 2000 covering the brick and tile trades. It is the understanding of the intervenors that notice to bargain was given by the BACU in or about August, 2000 but that the BACU failed to attempt to bargain a collective agreement and stated that they were unable to negotiate a new collective agreement.
Moreover, the actions of the BACU in failing to even attempt to bargain a new collective agreement and in making this application for certification violate the Minutes of Agreement which are by their terms Minutes of Settlement made pursuant to section 96(7) of the Act. The International Union will be filing an unfair labour practice complaint against the BACU as a result. In connection with the intended unfair labour practice application, the International Union will be alleging that the BACU breached section 73 and 74 of the Act.
Furthermore, it is the position of the I.U.B.A.C. that the terms of the Minutes of Agreement create an estoppel in the sense that the BACU is estopped from bringing such an application for certification by the intent and terms of the Minutes of Agreement of June 15, 2000. The I.U.B.A.C. relied on the BACU to negotiate a new collective agreement in accordance with the terms of the Minutes of Agreement and the BACU made representations that it would do so. The I.U.B.A.C. relied on these representations to its detriment and therefore the BACU is estopped from bringing this application for certification. At no time during any of the relevant periods did the BACU indicate to the I.U.B.A.C. that it was failing to and/or refusing to bargain a new EPSCA agreement.
Paragraph 9 of the Minutes of Agreement states,
“Any settlement reached will not be implemented without prior discussion of the BACU and the I.U. The I.U. and BACU each agree that the settlement negotiated with EPSCA will be binding on whichever of them is subsequently determined (agreed) to hold the bargaining rights for the brick and tile trades with EPSCA.”
Furthermore, it is the position of the I.U.B.A.C. that the BACU is attempting to obtain certification by fraud contrary to section 64 of the Labour Relations Act. With respect to the fraud allegations, it is respectfully submitted that the BACU by failing to use its best efforts to conclude a collective agreement with EPSCA and indeed failing to bargain at all with EPSCA, and by concluding the settlement of June 15, 2000 has effectively misled the other parties to the settlement, and the Board as to its intentions with respect to negotiating an EPSCA collective agreement for the brick and tile trades.
IUBAC, Locals 6, 7 and 25 pleaded:
iv) As will be more fully set out in a companion unfair labour practice complaint to be filed early next week, it is the position of the Intervenor that the Board ought not to entertain the present application as if it is successful the Applicant will have obtained its certificate through fraudulent acts.
v) As can be seen from the June 15, 2000 Minutes of Agreement, the BACU undertook to negotiate a collective agreement to replace the current one (ref. paragraph 8, Schedule “A”). To the knowledge of the Intervenor, in August 2000 the BACU served notice of desire to bargain on representatives of EPSCA. At a September 25, 2000 negotiating meeting, however, representatives of the BACU refused to enter into any bargaining. The BACU made no proposals to amend the collective agreement and refused to respond to those proposed by EPSCA. In October 2000 representatives of the BACU confirmed their position that they would not negotiate the collective agreement.
vi) In the submission of the Intervenor, the BACU’s refusal to bargain was an attempt to set the stage for the instant displacement application. At the time of the September meeting, the Board (by decision of Vice-Chair David McKee dated September 15, 2000) had ruled that the BACU was not the successor to the OPC. This finding clearly resolved any dispute over the identity of the bargaining agent for the OPGI bargaining unit – it is the OPC and the IU, not the BACU. As a result, the only way that the BACU could obtain the bargaining rights for the OPGI bargaining unit, was to raid the OPC and the IU, something it could only do if there was no collective agreement bar to a displacement application. As set out in subparagraph ii) above, however, the BACU’s tactics could not accomplish the results the applicant desired as notice to bargain was untimely and the open period, if any, ended April 30, 2000.
vii) The Intervenor submits that the BACU nonetheless had a duty either to abide by the terms of the June 15, 2000 agreement and negotiate the EPSCA collective agreement amendments or to advise EPSCA and the IU that it did not intend to do so. What the representatives of the BACU did instead was to attend at a negotiating meeting scheduled as a result of notice to bargain served by the BACU and then ensure that no agreement was reached.
viii) In the submission of the Intervenor the Applicant’s actions breach the Act in several ways. First, in attending at the negotiating meeting with EPSCA in September, the BACU clearly represented that it was there, at least in part, as the representative of the OPC and the IU. From the conduct of the BACU representatives it is evident that this was a lie. The Intervenor submits that this misrepresentation amounts to fraud.
ix) In attending negotiations not as the representative of the OPC and the IU but rather as a rival trade union, the BACU interfered with or attempted to interfere with the bargaining rights of the OPC and the IU contrary to section 73(2) of the Act.
x) In the alternative, if the BACU was purporting to fulfill the duties of the bargaining agent for the purpose of negotiating an amended collective agreement, it breached its duty under section 74 of the Act and acted in bad faith in regards to the members of the OPC and the IU by refusing to negotiate a collective agreement with the intention of setting up a favourable stage for a raid.
xi) Locals 6, 7 and 25 further submit that the Applicant is estopped from seeking to displace the OPC and the IU. Pursuant to the June 15, 2000 agreement and the notice to bargain issued in August 2000, the BACU undertook to bargain an amendment to or renewal of the collective agreement with EPSCA. The IU and the OPC relied upon that undertaking and left the negotiations to the BACU. As is clear from the facts set out above, the BACU breached the settlement and its obligation to bargain so that it could apply to displace the IU and the OPC as the bargaining agent. At no time following the notice to bargain or the issuance of the McKee decision did the Applicant advise the IU that it did not intend to fulfill its obligations under the agreement. By its conduct the BACU ensured that the IU, relying upon the June 15, 2000 settlement did not enter into negotiations with EPSCA on its own behalf and on behalf of the OPC and enter into a renewal of the collective agreement. Should the Board accept the Applicant’s argument that the instant application for certification was brought during a valid open period, which the Intervenor submits it should not do, it will be because of the egregious misconduct of the Applicant.
xii) Given the positions taken by the BACU in numerous other applications and proceedings before the Board, including those in Board File Nos. 1904-99-U and 2784-98-R, the Intervenor submits that the present application for certification is an abuse of the Board’s processes and ought to be dismissed as such.
Despite paragraph (iv) no “companion unfair labour practice complaint” was filed.
- Although OPGI took no position on this motion, the IU and Locals 6, 7 and 25 relied on certain statements in the response filed by OPGI. These are:
(E) E.P.S.C.A. representatives met with representatives of the B.A.C.U. executive on September 25, 2000 to commence bargaining a new agreement to replace the one that expired on April 30, 2000, but B.A.C.U. representatives refused to bargain and advised that they would not bargain.
Estoppel
The argument of estoppel must fail for a number of reasons. Estoppel cannot operate to prevent the operation of a public statute. Even if it can, on the facts as alleged, there is no allegation of a representation on which the IU was entitled to rely, nor is there any allegation of fact which could constitute detrimental alliance by the IU.
The doctrine of estoppel cannot be invoked to prevent the operation of a public statute: see Culliton Brothers Limited, [1982] OLRB Rep. Mar. 357. It is a doctrine which arises out of the law of contract. The IU and Locals 6, 7 and 25 attempted to draw a distinction between what they characterized as “private rights” created by the Act, which a party may waive or about which it may make a representation leading to an estoppel, and “public rights” which may not be the subject of a waiver or an estoppel. Even if one accepts this analysis, an application for certification is by definition a species of public right which may not be waived. This is principally because an application for certification involves the rights of employees to be represented by a trade union or to change the trade union which represents them. All parties referred to the decision of this Board in Alcan Aluminium Ltd., [1997] OLRB Rep. June 305. In that case, the Board said:
Even if the relationship between Alcan and the U.A. was one which could give rise to an estoppel, the doctrine does not apply in the circumstances.
There can be no estoppel, or waiver, of a public right or statutory requirement. In that respect, it is both trite and an over generalization to say that the Labour Relations Act, 1995 is remedial legislation which is an instrument of public policy designed to protect or advance the public interest. Indeed, there are a few public statutes which do not involve the protection or advancement of the public interest. This does not mean that equitable doctrines such as estoppel or waiver do not apply to any part of the Labour Relations Act, 1995. It is well‑established, for example, that the unlawful strike and unlawful lock‑out provisions cannot be contracted out of and are therefore not subject to estoppel or waiver (which are after all doctrines which apply to both "contractual" relations). On the other hand, section 56 of the Act provides an example of a provision in which can be affected by an equitable doctrine. It is well‑established that notwithstanding that section 56 provides that a collective agreement is binding on the employer, trade union and employees in the bargaining unit defined in the collective agreement, a party may be estopped from enforcing a right or obligation under the collective agreement in appropriate circumstances.
Accordingly, the question which must be addressed is the one posited in Ontario Hydro, [1990] OLRB Rep. Mar. 305: do Alcan's allegations raise an issue concerning an application of the Act which involve the protection or advancement of a public interest? Section 2 of the Labour Relations Act, 1995 specifies its purposes as follows:
The following are the purposes of the Act:
To facilitate collective bargaining between employers and trade unions that are the freely-designated representatives of the employees.
To recognize the importance of workplace parties adapting to change.
To promote flexibility, productivity and employee involvement in the workplace.
To encourage communication between employers and employees in the workplace.
To recognize the importance of economic growth as the foundation for mutually beneficial relations amongst employers, employees and trade unions.
To encourage co‑operative participation of employers and trade unions in resolving workplace issues.
To promote the expeditious resolution of workplace disputes.
Further, section 5 provides, as the Act has long provided, that:
Every person is free to join a trade union of the person's own choice and to participate in its lawful activities.
It is therefore apparent that employees' access to trade unions and collective bargaining is a matter of public interest which is protected in advance by the Act. Accordingly, employees cannot waive or be estopped from exercising their rights under the Act.
Whether trade unions' access to employees and collective bargaining is equally a matter of public interest which is protected and advanced by the Act such that the doctrine of estoppel does not apply to trade unions which apply for certification is perhaps more open to debate. However, I am satisfied that that is the case. First, that is the very reason why trade unions exist. Indeed, without trade unions there can be no "labour relations" under the Labour Relations Act, 1995. Second, this conclusion is consistent with the purposes and scheme of the Act. Collective bargaining cannot be facilitated or even exist without trade unions. One of the workplace "parties" under the Act must be a trade union. Except in limited circumstances, employee involvement in the workplace under the Act must be through their trade union. Communications between employers and employees do not exclude, or give employers the right to seek to exclude, trade unions. Trade unions are specifically recognized as partners in economic growth, and as the employer's partners in resolving workplace issues in dispute.
Accordingly, I am satisfied that a representation of the sort alleged by Alcan herein cannot operate to estoppe a trade union from making an application for certification.
Second, there was no representation that the BACU would not apply for certification. Certainly, such an application is inconsistent with its role as a negotiator for the IU and the OPC, but there is no explicit representation that it would not apply for certification. However, even if there had been such an explicit representation, as the Board said in Alcan, supra, that is not a reason to dismiss an application for certification. In one brief decision, the Board refused to entertain evidence about an explicit promise not to file an application for certification on the grounds that, even if true, this was an attempt to contact out of the statute to which the Board would give no effect: Whitney Maintenance Limited [1973] OLRB Rep Jan 26.
I note as well that paragraph 13 of the Minutes of Agreement is certainly wide enough to cover this application. If the parties wanted to limit the “without prejudice” effect to existing litigation, they could easily have done so. Thus the Minutes of Agreement are “without prejudice” to this application.
Finally, the IU and Locals 6, 7 and 25 assert that they relied on what they understood to be the representations of the BACU and refrained from taking steps which might have “closed the open period” or rendered any application for certification untimely. No facts were pleaded and no argument presented to demonstrate how this could have been done. A conciliation officer was appointed on June 2, 1998, more than one year before the Minutes of Agreement were signed. It is a possibility that the IU could have returned to the Minister to seek what it had opposed earlier, i.e. the issuing of a “No Board Report” and, arguably, extending the “closed period” by another 30 days under section 67(2)(c). An even more remote possibility is the calling of a strike and thus the creation of another “closed” period for six months under section 67(3)(a). However, these steps were hardly steps the IU could have taken as of right. It was not the exclusive bargaining agent, or the only signatory to the collective agreement with the OPC. The Minister might, or the Board might have advised the Minister, that concluding the earlier settlement prevented anyone from applying for a No-Board Report. The dispute between the IU and the OPC might have caused the Minister to create a council under section 146. The IU, even assuming that it could call a strike in the face of the OPC’s opposition, might well have faced unfair labour practice charges as a result.
This is not simply the case where a party may revert to its strict rights under a contract or a collective agreement. All that the IU did was to forego certain litigation strategies which might in the end have proved unsuccessful. Often an arbitrator dealing with an estoppel argument in a grievance under a collective agreement will find that an estoppel not only is a defence to the particular grievance filed, but continues to operate until the end of the agreement. The basis for doing so arises from the detrimental reliance by the other party, which has lost the opportunity to negotiate a change to the private contract between the parties. Anything is, in theory, negotiable. The practical reality is that the cost of insisting on a particular clause in a collective agreement (engaging in a strike or lock-out or agreeing a too costly trade-off) may be more than the party that wants that position is willing to pay. But that is a choice within the control of the party which makes it. The loss of opportunity to engage in doubtful litigation is too remote an interest on which to found a claim of detrimental reliance. Indeed, this analysis is a good example of how very difficult it is to apply the doctrine of estoppel to the operation of a public statute.
Fraud
There is no allegation of fraud in the circumstances of the application. That is, there is no allegation that signatures were forged, that the Declaration concerning Membership Evidence was incorrect, that there were misrepresentations contained in the application, or that employees were prevented from voting or were misled as to the time and place of the vote. The BACU asserts that fraud, as defined in section 64, means fraud on the Board, not a fraud on other parties. In support of this proposition, it referred to Easy Enterprises Inc., [1987] OLRB Rep. July 994; Sisters of Charity of Ottawa Hospital, [1999] OLRB Rep. May 535; Edward Kantowicz, [1976] OLRB Rep. Aug. 450, and R ‑Theta, [1998] OLRB Rep. Nov. 1014.
The complaint of the IU and Locals 6, 7 and 25 is really that the BACU committed a fraud upon them. Although counsel for the IU attempted to characterize the fraud as a fraud on the Board, I do not accept that characterization. The Minutes of Agreement were not even filed with the Board in Board File 0198-00-M. The Board was simply advised of some of the terms of the agreement, and specifically the withdrawal of the request for a No-Board Report and an indication that work would be able to continue on EPSCA’s sites. The Minutes of Agreement were a purely private settlement between the parties.
The “fraud”, in the argument of the IU and Locals 6, 7 and 25 consists of the following: the BACU had no right to negotiate with EPSCA. (This, of course is a statement they can make more certainly with the benefit of hindsight than they could have on the date of execution of the Minutes of Agreement.) It had the lawful ability to do so only by virtue of the Minutes of Agreement. In doing so, it could do so only as agent for the IU and the OPC. However, it did not do so, and in fact failed to engage in any meaningful bargaining, and deliberately did not inform the IU in order to preserve the open period so that it could, at an appropriate occasion, bring an application for certification. They allege that the BACU misled the IU as to what it was doing.
This argument fails on the facts as alleged. The essential element of fraud is a misrepresentation made knowing the statement is false or reckless as to its truth. A finding of fraud requires an element of dishonesty or wilful blindness. The definition of fraud found in Derry v. Peek (1889) Ir A.C. 337 is the one which the Board has applied without exception:
“First, in order to sustain an action for deceit, there must be proof of fraud and nothing short of that will suffice. Secondly, fraud is when it is shown that a false representation was made (1) knowingly, or (2) without belief in its truth, or (3) recklessly, careless whether it be true or false. Although I have treated the second or third as distinct cases, I think the third is but an instance of the second, for one who rules a statement in such circumstances can have no real belief in the truth of what he states. To prevent a false statement being fraudulent, there must I think be an honest belief in its truth. And this probably covers the whole ground, for one who knowingly alleges that which is false, has obviously no such honest belief. Thirdly, if fraud be proved, the motive of the person guilty of it is immaterial. It matters not that there was no intention to cheat or injure the person to whom the statement was made.”
Paragraph 8 of the Minutes of Agreement simply describes how bargaining is to take place and who will be conducting it. The IU reserved only the right to be consulted before any settlement was implemented. More importantly, the settlement, if any, achieved “will be binding on whichever of them is subsequently determined (agreed) to hold the bargaining rights for the Brick and Tile trades with EPSCA”. Implicit in this arrangement is an agency relationship between the executive board of the BACU and the IU and OPC. The executive board of the BACU, and Mr. Coelho specifically, were not obliged to do anything. Once Mr. Coelho did do so, by attending the September 25 meeting, he may well have been under certain obligations which he breached. However, the IU’s complaint is that it did not know that the executive board of the BACU was not really engaging in bargaining, and that they were thereby allowing the open period to continue to run. This is not because Mr. Coelho or the BACU reported to the IU that they were engaged in bargaining. There is no allegation to that effect. That is, there is no allegation in the pleadings of a misstatement from the BACU or any member of its executive board to the IU or to Locals 6, 7 and 25. At best, the allegation is the Minutes of Agreement obliged them to conduct bargaining in good faith, and, somehow implicitly, advise the IU if it was not doing that.
The Minutes of Agreement create no such obligation. There is no positive duty to bargain in good faith which is undertaken by the executive board of the BACU. The IU simply assumed that they would do so. However, the IU could have done a great deal more. Pursuant to paragraph 9, once the September 15 decision was issued, the parties knew who held bargaining rights: the IU and the OPC. The parties knew from the litigation in Board File 0198-00-M that there was a Statement of Settlement for a new collective agreement with EPSCA acceptable to all sides, except for the issue of the bargaining agent. The Board had resolved that question. It would have been very simple for the IU, starting on September 16, 2000, to demand that the collective agreement be signed in the name of the IU and the OPC. It did nothing. It made no inquiry of the BACU as to what was going on. It made no demands of the BACU. And the BACU made no representations that it was or was not doing anything.
As set out in a decision of this Board in Board File 2148-00-U, International Union of Bricklayers and Allied Craftworkers, John T. Flynn and Joe Bognar (unreported May 2, 2001), the IU clearly expected the BACU to fall into line after the September 15 decision. It did not. The IU placed the OPC in receivership on October 19, 2000. This receivership was ultimately found to be a violation of section 149. In practical terms the IU was unable to do anything with that receivership in any event. Even after October 19, 2000, the IUBAC did not purport to act as the IU and the OPC and demand that EPSCA sign a collective agreement. There is nothing in the pleadings, and certainly counsel did not suggest that, after October 19, 2000, the IU expected the executive board of the BACU to bargain a collective agreement on behalf of the IU and the OPC. At least from October 19, 2000, any expectation that the executive board of the BACU would do anything to assist the IU was untenable. And again, no allegations of actual misrepresentation had been made. In the absence of anything that could be called a misrepresentation, there is nothing which could constitute fraud, whether or not the meaning of section 64 is as limited as the applicant suggests.
Abuse of Process
For the same reasons, there is no violation of any provision of the Act. Section 96(7) was not violated as, on the pleadings, the BACU did not do anything it was obliged not to do under the Minutes of Settlement, nor did it fail to do anything it was obliged to do. There is no violation of section 73. While Mr. Coelho may not have been acting in the best interests of the IU and the OPC, the allegations do not suggest that he was actively pursuing an attempt to bargain a collective agreement with EPSCA which would undermine, limit, or nullify the bargaining rights of the IU and the OPC. On the allegations, there is no violation of section 74. This is a duty which a trade union owes to members of the union. It is not a duty owed among trade unions. No employee has brought an application under section 74 or sought to intervene in this case. The IU’s complaint is simply that the BACU did not do what the IU wanted the BACU to do, and which the IU believed the BACU was actually obliged to do.
Abuse of process, of course, encompasses more than simply a violation of the Act. However, there is nothing in the course of conduct of the BACU which constitutes an abuse of the processes of the Act or of the Board. To the extent there may be complaints about what the BACU did, they arise from the private agreement between the parties in the Minutes of Agreement.
Conclusion
The allegations of fact contained in the pleadings of the IU and Locals 6, 7 and 25 (even if one includes the allegations contained in the response), even if proved true, could not possibly constitute a violation of the sections alleged. They do not constitute fraud or an abuse of process. They do not found an estoppel against the BACU. Accordingly, the Board will not hear the evidence to prove these allegations, as none of them constitute grounds for dismissing the application.
The parties are directed to advise the Registrar of the number of hearing days which will be required to deal with the remaining issues in this application and to arrange the scheduling of those dates with his office.
“David A. McKee”
for the Board