CITATION: Allied Construction Employees, Local 1030 v. Bricklayers Masons Independent Union of Canada Local 1, Labourers’ International Union of North America Local 183, 2021 ONSC 3329
DIVISIONAL COURT FILE NO.: 349/20
DATE: 20210505
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Lederer, Penny and Sheard JJ
BETWEEN:
ALLIED CONSTRUCTION EMPLOYEES, LOCAL 1030 and RUI PEDRO COSTA
Applicants
– and –
BRICKLAYERS MASONS INDEPENDENT UNION OF CANADA LOCAL 1, LABOURERS’ INTERNATIONAL UNION OF NORTH AMERICA LOCAL 183, MORE MASONRY INC. and MICHAEL G. HORAN
Respondents
COUNSEL:
David Jacobs and Patrick Enright, for the Applicants
Michael Mazzuca, for the Respondent, More Masonry Inc.
L.A. Richmond, for the Respondent, Bricklayers Masons Independent Union of Canada Local 1, Labourers’ International Union of North America Local 183
HEARD: at Toronto (by videoconference) April 7, 2021
Reasons for Decision
Lederer, J.
Introduction
[1] This is a judicial review. It refers to a preliminary motion made within a labour dispute (a grievance) brought by a union, the Respondent, Bricklayers Masons Independent Union of Canada Local 1, Labourers’ International Union of North America Local 183 (“Bricklayers, Local 183”) against an employer, the Respondent, More Masonry Inc. (“More Masonry”). The Applicants, Allied Construction Employees, Local 1030, a local union of the United Brotherhood of Carpenters and Joiners of America (“Carpenters, Local 1030”) and Rui Pedro Costa both sought to intervene. Both were unsuccessful. It is the decision of the Arbitrator, Michael G. Horan, refusing this intervention that is the subject of this judicial review.
Background
[2] On October 18, 2017, More Masonry entered into an agreement (referred to as a “voluntary recognition agreement”) and thereby became bound to a collective agreement with the Bricklayers, Local 183 (the “Masonry Collective Agreement”). Article 15.08 (a) of the collective agreement prohibits the employer, in this case More Masonry, from performing a subcontract with a contractor that is not bound to the Masonry Collective Agreement. The Article provides:
In no circumstances will a contractor bound to this Collective Agreement perform work as a subcontractor for a masonry contractor which is not bound to this Collective Agreement. [^1]
[3] The grievance alleges that More Masonry subcontracted to do work at a site not bound by the Masonry Collective Agreement and in furtherance of that subcontract sent Rui Pedro Costa, identified as a principal of More Masonry, to work on the project. The contractor carrying out the project was Precision General Construction Inc. (“Precision General Construction”) It is a party to a collective agreement with Carpenters, Local 1030.[^2]
[4] The parties to the motion to intervene see the circumstances from widely different perspectives. In seeking to intervene, Rui Pedro Costa and Carpenters, Local 1030 assert that the grievance could have a broad impact on the ability of Rui Pedro Costa to work, to earn a living in a job for which he has trained and is experienced. More Masonry is dormant and does not provide him the opportunity to work. Carpenters Local 1030 sees this grievance as a means of limiting those it can send to work. Rui Pedro Costa is a member but if, as a result his association with a dormant company, Carpenters, Local 1030 is unable to send him to a hiring hall, its ability to supply workers could be substantially and inappropriately restricted.
[5] Bricklayers, Local 183 sees this circumstance differently. To it, this is a narrow issue. It does not involve Rui Pedro Costa. It does not involve Carpenters, Local 1030. This dispute is between only Bricklayers, Local 183 and More Masonry. The only issue is: Did More Masonry enter into a subcontract with Precision General Construction and in response to that contract send Rui Pedro Costa to the hiring hall? If it did there will be penalties imposed on More Masonry. If it did not, Rui Pedro Costa is free, as a member of Carpenters, Local 1030, to seek out employment with Precision General Construction, which he and More Masonry say is what he did.
[6] Bricklayers, Local 183 pointed out that this is not the first time this issue has arisen. On January 16, 2020 and, again, on February 4, 2020, Bricklayers, Local 183 grieved that More Masonry had subcontracted with Precision General Construction. Those grievances were settled. In both cases, in minutes of settlement, More Masonry acknowledged that it had “performed work as a subcontractor for a masonry contractor which is not bound to the [Masonry] Collective Agreement”, agreed to “cease and desist from violating the [Masonry] Collective Agreement, in particular the provision dealing with subcontracting restrictions” and “also agrees to abide by the full terms and conditions of the [Masonry] Collective Agreement.”[^3]
[7] The problem is that, despite the acknowledgment and the settlement, the issue has arisen again. The grievance at issue in this case was commenced on the basis that, on July 16, 2020, More Masonry was “again observed performing masonry work for Precision General Construction at a private home in Brampton”[^4]. In seeking to intervene, Carpenters, Local 1030 asserted that this grievance was in violation of s. 76 (and other sections) of the Ontario Labour Relations Act,1995[^5] in that it was “an attempt to harass and ‘punish’ the former principals of More [Masonry] for their having become members of the Carpenters [Local 1030]”[^6]. Even with this, the dispute continues to grow. Bricklayers, Local 183 says that More Masonry was, again, observed performing masonry work for Precision General Construction at another private home in Brampton. A further grievance was filed. Bricklayers, Local 183 followed this with a letter to More Masonry and to the Arbitrator seeking to have the two grievances, then extant, heard together.[^7]
Analysis
[8] Clearly this situation is ongoing and requires resolution. Generally, labour disputes have been removed from the courts. In large part, this is in recognition of the specialized nature of these concerns and the need that they be resolved expeditiously by those with an expert understanding of the relationships involved. In this case the need to move quickly has been acknowledged and accommodated by the “Bricklaying Enforcement System” which is part of a Schedule C to the Masonry Collective Agreement[^8] and, in particular, s. 2.02 “Expedited Arbitration Procedure” and s. 2.03 “Powers of the Arbitrator”[^9] both of which have provisions dedicated to making the process both efficient and expeditious.[^10] The underlying grievance was referred to arbitration in accordance with this approach and procedure.[^11]
[9] The ability to move with expedition is assisted by the limited ability to participate:
Arbitrators and the courts have been cautious in granting standing to third parties in grievance arbitrations, given that arbitration is a private dispute resolution process.[^12]
[10] Collective agreements are not entered into between individuals and their employers. They are not arrangements between competing unions. They are contracts between unions representing, collectively, the members of the union and employers, sometimes separately, sometimes collectively, across all or part of an industry. It follows that:
Normally the parties to a grievance arbitration are the parties to the collective agreement — the union with bargaining rights and the employer.^13
[11] The specialized nature of this area of the law, the desire and need for these matters to be resolved quickly, and the recognition that labour grievances are essentially private matters between unions and employers, all point to the understanding that these issues can be and should be left to the parties that are directly involved, and the impact limited to the interests they do, can and will represent. That is the substance of the determination made by the Arbitrator. The reasons of the Arbitrator touch on each of them:
The significant issue in these proceedings is whether the Employer, More breached the provisions of the Collective Agreement by subcontracting work from Precision, a company that is not bound to that agreement. Precision is bound to another collective agreement with the Carpenters. There is no competing jurisdiction between unions in this case. Each has a collective agreement with a different employer. Regardless of the result of the Grievance arbitration, and regardless of whether a cease and desist order is made, there will be no effect upon the bargaining rights of either union. The bargaining rights of both unions will remain intact. Any cease and desist order which could be issued will be to the Employer, More and not to the Carpenters, Costa, or Precision.
The Carpenters have alleged that they have a legal interest in these proceedings by virtue of their allegation of violation of the provisions of Section 76 of the Labour Relations Act. I reject that submission. Any determination in respect of an alleged violation of the Ontario Labour Relations Act is within the exclusive jurisdiction of the Ontario Labor Relations Board. It is well outside the scope of my arbitral authority in dealing with this Grievance. The Carpenters have also alleged that the cease and desist order issued at the conclusion of this arbitration could affect Costa personally.
In order to qualify for Intervener status at a private arbitration between the Union and the Employer, the Carpenters and Costa must establish that they have a direct and legal interest in the Grievance proceedings. I have found that their interest, if any, is neither direct nor legal. I agree with and adopt the observations of Vice Chair McKee who stated in Ontario Power Generation Inc. [2002] OLRB Rep. Dec. 1:
A grievance is a private dispute resolution mechanism between two parties, designed to resolve disputes arising out of the collective agreement between them. The dispute, like the collective agreement, is a matter between two parties and no one else. That is not to say that others will not likely be keenly interested in the outcome of the dispute, and desire to lead evidence and make submissions to the Board as to what the outcome should be. The Board has long distinguished between those parties with a “direct and legal interest” in the dispute and those with a “commercial or incidental interest”.[^14]
[Emphasis added]
[12] The considerations to be brought to bear on this grievance are limited. The decision of the Arbitrator reflects the narrow view as prescribed by the union. Was there a subcontract between More Masonry and Precision General Construction? If there was, More Masonry will be found to be in breach of the Masonry Collective Agreement and subject to a penalty. Its interest is the same as that of Rui Pedro Costa; both seek a finding that that there was no such subcontract. That interest is one that can be expected to be represented by the employer, More Masonry, which is a party to the Masonry Collective Agreement and the grievance. In this case, everything else is likely to flow from the determination of that issue. If there is no subcontract the Masonry Collective Agreement will not have been breached. It will follow from such a finding that Rui Pedro Costa was not working on the projects of concern as an employee of More Masonry. If that is found to be the situation, it would seem he worked as a member of Carpenters, Local 1030 and as an employee of Precision General Construction. If there is a subcontract and that is the foundation for Rui Pedro Costa to have been working on the projects supervised by Precision General Construction, it will affect this case and any other circumstance in which it is the operative arrangement under which Rui Pedro Costa is found to have been working. If there is a subcontract, Rui Pedro Costa will have to extricate himself from it (and presumably More Masonry) in order to work with Precision General Construction. If there is no functioning subcontract or Rui Pedro Costa is appropriately separated from More Masonry and its direction, he should be free to work for Precision General Contracting. Ultimately, this will be for the Arbitrator to determine.
[13] For its part More Masonry supports the applications to intervene. In his submissions counsel for More Masonry pointed to the Ontario Labour Relations Act, s. 70[^15] and submitted that his client is unable to comment on, or deal with, the collective agreement between Precision General Construction and Carpenters, Local 1030. No one is being asked to. What More Masonry can comment on and has a direct interest in is whether it is in breach of Article 15.08 of the Masonry Collective Agreement. Insofar as Rui Pedro Costas is concerned, counsel for More Masonry submitted that it is no longer operating, that Rui Pedro Costa has moved on and joined Carpenters, Local 1030. These facts, however, do not demonstrate that Rui Pedro Costa has a separate and independent interest in the Bricklayers, Local 183 grievance. If what counsel submitted is proved, it will demonstrate that More Masonry did not breach its agreement with Bricklayers, Local 183. Nothing was said to suggest that Rui Pedro Costa was not available to assist More Masonry in the grievance. To the contrary, he was identified as a principal of the company.
[14] It was submitted that the application of Rui Pedro Costa to intervene was not separately dealt with by the Arbitrator in his determination not to allow the interventions. In the Factum of the Applicants, it is said that the Arbitrator failed to address “in a substantive way” the manner in which Rui Pedro Costa was “directly, personally and adversely affected by the arbitration process…”.[^16] The reasons of the Arbitrator that I have quoted refer to Rui Pedro Costa. They point out:
• that any cease and desist order which could be issued will be to More Masonry and not to Carpenters, Local 1030, Precision General Construction or Rui Pedro Costa.
Go on to note the countervailing view:
• that the Carpenters have also alleged that the cease and desist order issued at the conclusion of this arbitration could affect Costa personally.
Sets the test to be met to qualify for intervener status at what is a private arbitration:
• the Carpenters and Costa must establish that they have a direct and legal interest in the Grievance proceedings.
And find that:
• that their interest [Carpenters, Local 1030 and Costa], if any, is neither direct nor legal.
In coming to this conclusion, the Arbitrator relied on the accepted understanding that:
• the dispute, like the collective agreement, is a matter between two parties and no one else.
This was said recognizing that:
• others may have an interest in the outcome, wish to take part but have an interest which is “commercial or incidental” and not “direct and legal”.
[15] The Arbitrator did not refer specifically to Rui Pedro Costa in the concluding sentence of his reasons, not because he did not consider the position of Rui Pedro Costa but because, on the motion to intervene Carpenters, Local 1030 applied “on their own behalf” and “on behalf of Rui Pedro Costa” as “one of their members as well as a principal of the Employer More Masonry Inc.”[^17]
Conclusion
[16] For these reasons the application is dismissed.
Costs
[17] As agreed to by the parties, costs to the Bricklayers, Local 183 in the amount of $10,000, to be paid $5,000 by Carpenters, Local 1030 and $5,000 by More Masonry.
Lederer, J.
I agree _______________________________
Penny, J.
I agree _______________________________
Sheard, J.
Released: May 5, 2021
CITATION: Allied Construction Employees, Local 1030 v. Bricklayers Masons Independent Union of Canada Local 1, Labourers’ International Union of North America Local 183, 2021 ONSC 3329
DIVISIONAL COURT FILE NO.: 349/20
DATE: 20210505
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Lederer, Penny and Sheard JJ
BETWEEN:
ALLIED CONSTRUCTION EMPLOYEES, LOCAL 1030 and RUI PEDRO COSTA
Applicants
– and –
BRICKLAYERS MASONS INDEPENDENT UNION OF CANADA LOCAL 1, LABOURERS’ INTERNATIONAL UNION OF NORTH AMERICA LOCAL 183, MORE MASONRY INC. and MICHAEL G. HORAN
Respondents
REASONS FOR JUDGMENT
Released: May 5, 2021
[^1]: Application Record: Masonry Collective Agreement beginning at p. 126 (Caselines A214) quoting Article 15.08(a) at p. 147 (Caselines A235)
[^2]: Application Record: Bricklaying and Masonry Collective Agreement, Between: Allied Construction Employees Local 1030, United Brotherhood of Carpenters and Joiners of America and Precision General Contracting Inc. the term of which was March 1, 2020 to April 30, 2022 at p. 34 (Caselines A122) and see: More Masonry Inc. v Bricklayers, 2020 80795 (ON LRB), at para. 6
[^3]: Application Record: Holdback and Grievance Letters dated January 16, 2020 and February 4, 2020, Minutes of Settlement dated April 22, 2020 and a cheque from More Masonry at pp. 82-99 (Caselines A170 to A187)
[^4]: Application Record: Holdback and Grievance Letter dated July 16, 2020 at pp. 74-81 (Caselines A162 to A169)
[^5]: S.O. 1995, c. 1, Sched. A, s. 76 says:
No person, trade union or employers’ organization shall seek by intimidation or coercion to compel any person to become or refrain from becoming or to continue to be or to cease to be a member of a trade union or of an employers’ organization or to refrain from exercising any other rights under this Act or from performing any obligations under this Act.
[^6]: More Masonry Inc. v Bricklayers, 2020 80795 (ON LRB) at para. 8. The Arbitrator in his reasons confirming his earlier determination to dismiss the request to intervene noted with respect to the reliance on a violation of s. 76 of the Ontario Labour Relations Act that:
The Carpenters have alleged that they have a legal interest in these proceedings by virtue of their violation of the provisions of Section 76 of the Labour Relations Act. I reject that submission. Any determination in respect of an alleged violation of the Ontario Labour Relations Act is within the exclusive jurisdiction of the Ontario Labour Relations Board. It is well outside the scope of my arbitral authority in dealing with this Grievance.
(Application Record: Reasons for Pre-hearing Order, Michael G. Horan, dated September 22, 2020 at p. 18 (Caselines A106) quoted at More Masonry Inc. v Bricklayers, 2020 80795 (ON LRB) at para. 9)
[^7]: Ibid at paras. 11 and 12
[^8]: Application Record: Schedule “C” Bricklaying Enforcement System at pp.176-191 (Caselines A264 to A279)
[^9]: Ibid at p. 178 (Caselines A266) and p. 179 (Caselines A267)
[^10]: See for example: s. 2.02(e) begins: “The Arbitrator shall commence the Expedited Arbitration Hearings within ten (10) days from service of the Referral to Expedited Arbitration” and s. 2.03(c) begins with: “It is the intention of the parties that this procedure is an expedited procedure, and the Arbitrator is not required to follow the hearing procedure which might be imposed by a court.”
[^11]: Application Record: Holdback and Grievance Letter dated July 16, 2020 Tab 4 at pp. 74-81 specifically p. 77 (Caselines A162 to A169 specifically A165) and see: More Masonry Inc. v Bricklayers, supra (fn. 6) at para. 13
[^12]: Sunnybrook Health Sciences Centre v. Aramark Canada Ltd. 2019 ONSC 4183, 2019 CarswellOnt 11547, 309 A.C.W.S. (3d) 186, 62 Admin. L.R. (6th) 288 at para. 17
[^14]: Application Record: Reasons for Pre-hearing Order, Michael G. Horan, dated September 22, 2020 at p. 18 (Caselines A106)
[^15]: The Ontario Labour Relations Act, supra (fn. 5), s. 70 states:
No employer or employers’ organization and no person acting on behalf of an employer or an employers’ organization shall participate in or interfere with the formation, selection or administration of a trade union or the representation of employees by a trade union or contribute financial or other support to a trade union, but nothing in this section shall be deemed to deprive an employer of the employer’s freedom to express views so long as the employer does not use coercion, intimidation, threats, promises or undue influence.
[Emphasis added]
Reliance on this section as limiting the ability of More Masonry to participate in the arbitration was not explained. So far as I can see there is nothing here that limits it on the singular issue at hand: whether More Masonry breached the collective agreement between it, as an employer and Bricklayers, Local 183.
[^16]: Factum of the Applicants at para. 48 (Caselines A52)
[^17]: Application Record: Reasons for Pre-hearing Order, Michael G. Horan, dated September 22, 2020 at p. 16 (Caselines A104) and referred to in the Factum of the Applicants at para. 48 (Caselines A52)