Appearances:

      Unions — Definition -- s. 1(x) — General President's Committee not a trade union within meaning of Code — Relationship between International union (parent) and Local discussed.

      Collective agreement — Definition -- s. 1(f) — General President's Committee agreement ratified by each union  — Agreement binding on Locals.

      Collective bargaining -- s. 59(2) — "Persons resident in Alberta" — Committee not complying with requirement — Agreement not inevitably set aside — Remedy is direction for future rounds of bargaining.

      Collective bargaining -- s. 59(4) — Bargaining committee must include representative of Local on whose behalf negotiations conducted — Committee not complying with requirement — Agreement not inevitably set aside — Remedy is direction for future rounds of bargaining.

      Unions — Employer support -- s. 146(1)(b) — General President's Committee funding arrangements questioned — No direct or indirect dependency established — Complaint dismissed.

      Unions — Fair representation duty -- s. 151 — Breach established in part.

      Unions — Fair representation duty -- s. 151(1) — "Persons acting on behalf of trade union" discussed — Union liable for acts of its officers — General President's Committee not a "trade union" or  assigned any role in representation of employees under collective agreement — Under Constitution and collective agreement International and Local of trade union jointly assumed responsibility for representation of employees.

      Unions — Fair representation duty -- s. 151(2) — Defence of good faith not available on facts of case.

      Unions — Fair representation duty -- s. 151(3) — Not appropriate case to refer to arbitration — Compensatory order issued.

      Board -- remedial power -- s . 11(2) — Costs — On facts of case order of solicitor/client costs appropriate.

Certain employees, Dezentje, Dombrosky and Roy (the "complainants") complained that each of Bendfeld, Warchow, IBEW Local 424, and the General President's Committee for Plant Maintenance in Canada violated the duty of fair representation in the matter of their grievances which included the termination of their employment.  They also filed complaints that the agreement negotiated by the General President's Committee (the "GPC") was not a collective agreement and that the GPC funding arrangements constituted prohibited employer support for a trade union.

Held, the GPC was not a "trade union" within the meaning of s. 1(x) of the Code.  The GPC acts as an agent for individual International trade unions in the negotiation of the GPC agreement.  The GPC is not a party to the collective agreement in its own right, has no employee members, does not organize employees nor purport to represent any.

The Board discussed the relationship between the International of IBEW and Local 424.  Each is a trade union in its own right, and each are separate legal entities with individual rights and responsibilities.

The GPC agreement is a collective agreement ratified between employers and each signatory International union.  The agreement is entered into by the International union on behalf of its constituent locals and is binding on Local 424.

The Board found that the GPC negotiating committee failed to include a representative of the locals on whose behalf the agreement was being negotiated.  Notwithstanding the failure to comply with s. 59(4), the Board held that it was not inevitable that the collective agreement would be set aside, and instead, the Board provided directions for future negotiations.

The GPC funding arrangements were held not to constitute prohibited employer support and no breach of s. 146(1)(b) was established.  The GPC is not a trade union so there could be no direct violation of the section.  Neither was there an indirect violation.  The funding arrangements posed no threat to the independence of the trade unions involved.  The unions absorbed the costs of their own representatives at bargaining, as well as the costs associated with servicing of the collective agreement.  There was no evidence of the creation of any relationship of dependency.  The GPC has a long history of independent bargaining.  The funding arrangements are not donations, but were negotiated through collective bargaining. The funds are spent independently of the employers and without any accountability to employers either directly or indirectly.

The allegations of a breach of the duty of fair representation against Bendfeld were dismissed as being without merit. Bendfeld conducted appropriate investigations and analyzed the case well.  He was found to have acted reasonably in all of the circumstances.

The allegations against Warchow were sustained.  He was found to have failed to communicate with the complainants, failed to communicate the employer's offer to one of the complainants in a timely manner, failed to take steps to advance the matters in a timely manner, was less that frank with officials of the International and the complainants, failed to allow the complainants to respond to allegations raised against them, and his "investigation" was found to be seriously flawed.

Although Warchow was a "person acting on behalf of a trade union" within the meaning of s. 151(1), the Board found that it was not appropriate to attribute personal liability to him for the loss suffered by the complainants.  Board found doctrine of vicarious liability of employers for acts of employees applicable.  It was open at all times for the International or the Local to bring pressure to bear on Warchow to do his duty.

As the GPC was not a trade union nor assigned any role in the representation of employees under the collective agreement, therefore, the GPC owed no duty to the complainants under s. 151(1) .

Under the collective agreement the International and Local 424 jointly assumed responsibility for the representation of employees under the agreement.  As far as s. 151(1) of the Code is concerned, the International and the Local are jointly responsible.

The defence of "good faith" in s. 151(2) was held not to be available to the respondent Warchow in the circumstances of the case.

The Board held that this was not an appropriate case to send the grievances to arbitration under s. 151(3).  The Board looked to the passage of time and the particular circumstances of the case and found that a order for compensation would be the appropriate remedy.

The Board also found this to be an appropriate case in which to order certain enumerated solicitor/client costs under s. 11(2).

¶ 1      The giant Syncrude and Suncor Oil Sands Plants in Fort McMurray, Alberta take an army of tradespersons to maintain.  Catalytic Maintenance Inc. contracts to provide this maintenance work, supplying some employees year round and many additional employees for periodic "shut-down" bursts of maintenance activity.

¶ 2      Until April, 1991, the three complainants, Jan Dezentje, Gordon Dombrosky and Denis Roy, worked for Catalytic as electricians providing long term maintenance services at Syncrude.  In April 1991, in the circumstances we describe below, the three complainants were either laid off or terminated.  All three filed grievances with their Union, Local 424 of the International Brotherhood of Electrical Workers.  Dissatisfied with the way these grievances were handled, the three filed complaints with the Labour Relations Board.

¶ 3      The three employees worked for Catalytic under the terms of an agreement called The General Presidents' Committee Agreement for Maintenance (the "GPC agreement").  GPC agreements are agreements entered into by the General Presidents of each of the various building trade unions, including the IBEW.

¶ 4      Stripped of side issues, this case raises two broad questions.

¶ 5      While in a general sense these two issues can be isolated; factually and legally they have become intertwined at every turn.  Reasons for this include:

¶ 6      For clarity we will deal with the legality of the GPC agreement first, separate from the duty of fair representation questions, alluding as necessary to the interrelationship between the two.

¶ 7      A description of industrial maintenance helps explain how the GPC system of collective bargaining has developed in Canada.  It is a phenomenon that has developed on a Canada wide basis, straddling the various provincial labour law regimes.  It predates some provincial labour laws, particularly the amendments introduced into Alberta law in 1988.

1.   The Nature of Industrial Maintenance Work

¶ 8      Large industrial plants are built by construction employees.  Construction unions customarily exist along craft lines - electricians, millwrights, labourers, pipefitters and so on, each with their own Union.  Normally, these Unions operate hiring halls that supply the trades persons to the construction contractor as needed to build the project for the owner.

¶ 9      Once a plant is built, the construction contractor leaves and hands the plant over to the owner, who generally retains a work force to operate the plant.  If the employees in that work force choose to unionize they must generally do so on an "all employee" basis, in bargaining units that transcend the craft lines of the construction trades.  Some owners do all their maintenance "in-house" using their own work force.  However, this is unworkable in some plants where major maintenance can only be undertaken by shutting down the production process.  Syncrude is one such plant.

¶ 10      The cost of a shut-down, in lost production, can be astronomical.  Therefore, any maintenance work that requires a shut-down must, wherever possible, be planned in advance and carried out as quickly as possible.  This requires assembling a large but temporary workforce of skilled trades people to work flat out for as short a shut-down period as possible.  Once this work is over this work force leaves and production resumes.  Only those trades people required for day-to-day plant maintenance remain.

¶ 11      Several companies have grown to meet this market for routine and shut-down maintenance work.  Catalytic is one such company.  What such companies can offer owners is the ability to maintain their plant, both routinely and for shut-downs, without having to engage their own workforce of construction trades persons.  Such contractors develop expertise in the timing and execution of such work.  They also maintain labour relations agreements with the craft or building trades Unions that give them access on an "as needed" basis to the large pool of construction trades persons needed for short-term work.  As a result, plant owners have found it advantageous to contract out their maintenance work.

¶ 12      Before moving on to the structure of collective bargaining, we note a couple of realities of maintenance work that affect the collective bargaining processes.  First, for many of the trades persons involved the short-term shut-down maintenance work is very much like construction work.  It is carried out on a call-out system through the Union hiring hall, each call lasting only as long as the job.  Second, for those who work on the longer-term day-to-day maintenance, their work begins to look much more like the steady employment of the plant operators working directly for the plant's owners.  They develop a familiarity with the plant, work regular schedules rather than the frantic pace of shut-down work, and often settle into the local community.  Thus, within the maintenance contractor's work force there are employees with significantly different outlooks and interests - those who see the work as analogous to short-term construction employment and those who see it as analogous to long-term plant work.  At the root of this case rests the inherent tension between those two different outlooks.

¶ 13      An off-shoot of this difference involves the question of managerial independence and Union involvement in supervision.  In a traditional workplace, the Union/Management dividing line is often clear (turning on the definition of an employee).  There is a presumed inherent conflict between Union employees and those by whom they are managed.  On a construction project these lines are sometimes less clear. First, there is the high degree of control and direction exercised by the (non-employer) owner, and by the architects or engineers who represent the owner's interests.

¶ 14      Second, it is common to have Union trades persons acting as working supervisors, lead hands and so on, directing other Union employees.  The power to hire and fire issue diminishes in importance (along with the inherent conflict question) because, in construction work, the job in any event only lasts for so long.  Construction employees can usually be dismissed on a few hours notice, so concepts of just cause and seniority play virtually no part in the labour relations arrangements, in sharp contrast to industrial labour relations where such issues are paramount.  Here again one sees the tension between the construction versus the industrial outlook.

¶ 15      Lastly, the same high costs of a shut-down make plant owners, and the maintenance contractors they employ, highly vulnerable to work stoppages caused by collective bargaining.  This has led employers and unions to search for ways to arrive at satisfactory collective agreements without the threat of a strike during a plant shut-down.  The method historically adopted has been a "pick-up contract" which is an agreement to incorporate by reference into the maintenance contract, the prevailing local construction trades rates negotiated from time to time.  Article 12.000 of the collective agreement in this case (Exhibit 1, Tab 72) and the attached Wage and Benefits Schedule provides an example of this pick-up rates mechanism.

2.   The General President's Committee

¶ 16      The maintenance industry bargaining structure that has emerged in Canada involves the building trade unions forming a type of consortium to negotiate site specific multi-trade collective agreements with those contractors who have maintenance contracts with the owners of major plants.

¶ 17      In order to qualify for a GPC agreement, a contractor must be unionized and have a relationship with a building trade union that participates in the GPC.  The contractor must have demonstrated its commitment to unionized work for at least a one-year period.  The contractor must employ three or four different trades at the project owner's site and agree to hire others from the hiring halls as needed. The contractor must apply to the GPC and have a letter of commitment from the project owner.

¶ 18      Building trade unions, like many other Unions, are bi-level structures.  They consist of an International Union with a Constitution and Bylaws.  These International Unions each create or "charter" Local Unions that operate with their own local bylaws but within and subject to the International Constitution.  This chartering arrangement creates many constitutional links between the various Locals and the International Unions.  For example, members customarily belong to a local as well as the International. International bodies or their officials act on appeal from local decisions, and delegates from locals constitute the voting delegates at International conventions.

¶ 19      Much legal debate goes on about the separate or integrated nature of such trade union structures, which do not easily fit with normal corporate notions.  In practice, there is a three-in-one relationship with members, locals and Internationals linked together by a variety of constitutional, and thus contractual, commitments.

¶ 20      The International Trade Unions, through their respective International Presidents (acting through delegates) formed the General President's Committee for plant maintenance in Canada.  This committee has a constitution and bylaws of its own (Exhibit 12 - Tab 2).  The organization's objectives are set out as follows:

¶ 21      The constitution goes on to say the member International Unions have organized the committee "... to act in concert through the Committee in the negotiation and administration of the collective agreements and to ensure relative equity and uniform interpretation and application ...".  This same clause goes on to say the International Unions "... have empowered the Committee to act as the exclusive and irrevocable agent of the Member International Unions and of each Member International Union."

¶ 22     The Committee has a one delegate per International Union system, with an ability to appoint alternatives.  The Committee's Officers, as its agent, shall handle all matters pertaining to certification and/or collective agreements for Maintenance.  The Committee also appoints an Executive Director to handle its day-to-day business.  Mr. Steve Smillie has held this position throughout the time covered by these events.

¶ 23      Article X Section 1 makes it clear that, while the GPC negotiates the collective agreements, it is up to each Member International Union to sign and accept the agreements thus negotiated.

¶ 24      Section 5 provides that the negotiating committee must have one delegate from each Member International Union. We will review below the way GPC negotiations have been carried out, but first we will review the way in which the Committee's work is funded.

3.   Funding the GPC structure

¶ 25      Funding for the GPC's operations comes from a per-employee-hour payment provided for in the various site-specific collective agreements.  Catalytic's Syncrude and Suncor site agreement for 1991 provides, for example:

¶ 26      Remittances to this fund go directly to the GPC. They are not channeled through the Local Unions or through the member International Unions.  There are no deductions from the employee's pay cheques.  The monies are paid by the Employers directly.  Figures from 1990 show that there were GPC contracts in place at 20 sites in Canada, and that the Suncor and Syncrude sites in Fort McMurray were by far the largest. Together, the GPC contracts from these two sites covered 44% of the total person-hours worked.  This in itself is not surprising given the massive size of these two plants in comparison to virtually any other industrial site in Canada. These figures are for all trades.  Across Canada, the 1990 figures show that electricians worked 10.8% of the hours worked.  These figures fluctuate depending on the hours worked, both in total, and by trade, and on the activity in the industry.  For example, the electrician's hours at Catalytic's Syncrude site varied between 126 thousand hours in 1991 down to 60 thousand hours in 1993.

¶ 27      Mr. Smillie explained that the GPC fund began in Alberta in 1985 with the renewal of the Alberta maintenance agreements that year.  The GPC put forward the argument that the size and complexity of their multi-trade union operation required money if they were to be organized in a business like and professional way.  The Employers agreed to a 2 cent-per-hour-worked formula to go into a fund for the Committee.  The Committee in turn took responsibility for publishing the collective agreements and some other administrative matters.  This arrangement was modeled on similar arrangements in the steel and power industries.  It is used in other industries as well (see Exhibit 36 for examples).  Before the GPC funding arrangement in 1985, the bargaining costs were assessed to each International Union. In 1993 the income from such payments for all of Canada amounted to $312,766, while GPC expenses for the year were $309,206.  Beyond some minor interest income, the GPC's funding comes entirely from these cents-per-hour remittances.

¶ 28      Mr. Smillie outlined the Committee's expenses and produced its accounts.  Basically, the Committee spends its money on maintaining an office in Oakville, Ontario, Mr. Smillie's salary as Executive Director, and the travel and related expenses for the GPC annual general meeting.

¶ 29      Mr. Smillie's role as Executive Director is set out in Article 5 of the GPC constitution.  In addition to his support role in bargaining, described below, he provides ongoing advice on the meaning of the various contracts, trying to maintain consistency and uniformity between the various unions, employees and provinces.

¶ 30      None of the funds remitted to the GPC are used for welfare benefits for Union members.  Such matters are handled through other funds.  Nor do such funds go to pay the wages or expenses of the International Representatives of the individual unions who are paid directly by their unions.

¶ 31      Mr. Smillie says the Employers who remit the cents-per-hour payments to the GPC have no input into the decision as to how the funds will be expended nor are they given any accounting.  Mr. Burton from Catalytic confirmed this.

4.   GPC Negotiations

¶ 32      Mr. Smillie described his role in the negotiation of the various GPC site agreements as being to provide administrative support.  He facilitates getting input from people at the local level and reviews that input for the Committee.  He arranges meeting rooms, prepares background materials and, once negotiations are complete, he arranges the signing, printing and filing of the resulting contracts. During negotiations it is the members of the Committee who act as spokespersons at the bargaining table, not Mr. Smillie.

¶ 33      Mr. Smillie says his standard routine for getting negotiations going is to send out notices to the Committee members (the delegates of the Presidents of the International Unions) telling them to contact the Local Unions affected and to get suggestions for change and input.  Once the responses start coming in, Mr. Smillie and Committee members meet with the local business agents to sort out the main issues for presentation to the Employers.  Once the bargaining demands are established, the negotiating committee meets with the Employer as often as needed to get a contract.

¶ 34      The negotiating committee has one representative from each International Union.  Mr. Smillie says local representatives are involved in the initial meetings, but the formal bargaining committee just has one representative from each International Union.

¶ 35      The General President's Committee has a chairman. Mr. Bill Warchow, the representative of the President of the IBEW, served as GPC Chairman throughout the significant events in this case.  However, most of his activities in this case were carried out in his role as an International representative for the IBEW, not in his role as GPC chairman.

¶ 36      When a settlement is reached it is obviously approved by the bargaining committee.  It is then distributed to each International Union.  Mr. Smillie and Committee representatives then go back into the area and go through the proposed contract with the Local Union representatives from the various trades and explain the changes.  Once this is done, Mr. Smillie goes back and prepares individual collective agreements for signature.  If an International Union does not like a deal negotiated by the GPC it is not obliged to sign. Local trade unions never enter into or sign the GPC agreements directly.

5.   The GPC Negotiations in 1991

¶ 37      On October 23, 1990, the GPC held one of its periodic meetings in Fort McMurray with the Local union members involved in maintenance.  The time for negotiating the next contract was coming due.  A proposal was put forward from some of the local unions that the agreement simply be extended for six months.  This proposal led Mr. George Pheasey, then corporate manager of labour relations for Catalytic, to write to Mr. Bill Warchow in his capacity as chairman of the GPC.

¶ 38      Mr. Pheasey opposed an extension, and instead urged that negotiations be opened up early with a view to completion before the Alberta construction negotiations got underway.  He said, in his letter:

¶ 39      He asked that the GPC address the issue at their AGM scheduled for early December.  They did so, and decided in favour of early negotiations.  On December 13, 1990, Mr. Smillie, on behalf of the GPC sent a notice out to the GPC members to that effect.  It cited as reasons for the decision the hope of early benefits for the members and the ability to give attention to the maintenance contract before the distractions of Alberta construction bargaining.  The members of the GPC (the various International representatives) were asked:

¶ 40      The notice went on to say that the GPC intended to schedule meetings in Alberta to review the input before the end of January 1991.

¶ 41      This led Mr. Warchow to write to the business manager of IBEW Local 424 on January 4th asking the Local to submit their proposals for amendments to the agreement by January 18th.  Mr. Bendfeld says this was in fact done, and discussions were held at the Local level.  On January 14, 1991, suggestions from Fort McMurray were sent in to the GPC for changes to the agreement (Exhibit 40).

¶ 42      Mr. Warchow's letter to the Local also confirmed the dates for two "experience review meetings", one to be held in Fort McMurray on February 5, 1991, and the other in Edmonton for February 6th.  A similar meeting was set for Calgary on February 7, 1991.  Shortly afterwards, Mr. Warchow had Mr. Bendfeld, the IBEW Local 424 business representative resident in Fort McMurray, arrange a meeting to be attended by all the Local 424 maintenance employees in Fort McMurray. This was set for the evening of February 4th.

¶ 43      Mr. Warchow's call for input obviously got circulated, because it led Mr. Dezentje to write directly to Mr. Warchow, on January 26, 1991, with a couple of proposals of his own (Exhibit 30).

¶ 44      Mr. Smillie says the Local meetings Mr. Warchow arranged in February for Calgary, Edmonton and Fort McMurray were part of the process used by the GPC members to ensure that they each understood their Local Union's issues.

¶ 45      The sign-in sheet for the GPC meeting in Edmonton for February 6th (Exhibit 39) shows that Mr. Bob Lynn attended on behalf of IBEW Local 424, as well as Local representatives for most of the other building trade union locals.  The sign-in sheet for Calgary shows that Mr. John Briegel was present on behalf of Local 254 (Local 424's sister Local for southern Alberta).  There is no sign-in sheet in evidence for the Fort McMurray meeting, but Mr. Bendfeld says at least he was present.

¶ 46      The GPC Committee met with the Employer for negotiations towards the Alberta GPC agreements in Calgary between March 5th and March 8th.  While Mr. Warchow was the GPC Committee chair (as well as the IBEW representative) he was away during this period and Mr. George Henry, the International Representative of the Boilermakers, took his place as chair.

¶ 47      Catalytic called Mr. Terry Burton to give evidence.  He is currently the Manager - Labour Relations for Delta Catalytic Corp.  In 1991 he was the Assistant Director of Labour Relations for Catalytic, reporting to George Pheasey who was then the Director.  He was Catalytic's chief spokesperson in the 1991 GPC negotiations.

¶ 48      Mr. Burton's notes of the GPC negotiations (Exhibit 45) are detailed and record the competing issues dealt with in the bargaining.  The discussion at the outset on March 18, 1991, records that both sides recognized that timing was important and that it was in all their interests to get the bargaining out of the way before the 1991 round of construction bargaining started.  There were obviously fears that, on the one hand, announcing the wage rate formula might prejudice construction industry bargaining, and on the other that some might try to strike the Syncrude shut-down to force a high settlement so as to help construction bargaining. This, in the longer term, would harm the maintenance industry.

¶ 49      The parties arrived at a collectively bargained settlement and signed a Memorandum of Settlement (Exhibit 1, Tab 71) dated March 18, 1991, which covered Catalytic's seven Alberta projects.  A similar document was apparently signed for another contractor, Foster-Wheeler.  This memorandum included an Item #2 - Leave of Absence Policy - discussed in detail below.  Based on this memorandum Mr. Smillie drew up separate collective agreement documents for each contractor for each site.  And for each of these he prepared a separate signing page for each International Union. On March 28, 1991, Mr. Smillie sent Mr. Pheasey and Mr. Burton his record of the items which were discussed but did not find their way into the collective agreement (that is, agreed upon items that were not to be dealt with as collective agreement provisions).  This included two issues that are significant for the duty of fair representation complaint - base crew and leave of absence policy.

¶ 50      The Memorandum of Settlement's duration clause provided:

¶ 51      Mr. Smillie says the deal was to go into effect immediately because it had improvements in pay and benefits the Union wanted.  There was no specific discussion of implementation being held back pending ratification by each individual Union President.  The Memorandum of Settlement was not made subject to any membership vote.  However, it was understood by all parties to be subject to the signatures of each of the International Presidents as far as each of their unions were concerned, in accordance with the GPC constitution.

¶ 52      Mr. Warchow says the IBEW had no ratification vote for the IBEW version of the GPC agreement.  Mr. Warchow got the printed document at the end of negotiations.  He sent it on to V-P Woods, who in turn sent it to International President Barrie in Washington who eventually signed the document in November, 1991.

¶ 53      Mr. Smillie prepared an information document highlighting the key changes, to go to the local union representatives explaining to them, and through them to the members of the various unions, the changes that had been achieved. This document, picked up by the complainants, figures prominently in their duty of fair representation complaint.

6.   Is the General President's Committee a Trade Union?

¶ 54      The Labour Relations Code contains definitions for the terms "trade union" and "bargaining agent".  It also defines "collective agreement," a term used in the definition of bargaining agent.

¶ 55      The complainants argue that the GPC is, or acts on behalf of, a trade union.  There can be no doubt that it acts on behalf of trade unions, that is its main purpose. However, to be a trade union it must fit the definition in s. 1(x), which requires that it be an organization of employees. The complainants maintain that:

¶ 56      We are unable to accept this logic.  At all times, when the GPC purports to do things that trade unions do it does so on behalf of its member International Trade Unions. It is acting as their agent, not taking over their role as principal.  It is each individual International Trade Union President that signs the collective agreement that results from bargaining.  Despite section 4 and 5 of its objects, the GPC never actually becomes a party to a collective agreement in its own right.  The GPC has no employee members and neither organizes employees nor purports to represent them, except through their status as agents of the constituent Unions.  It is not sufficient to say that, because its constituent members are all organizations of employees, it must be an organization of employees.  Trade Unions form all sorts of entities, many of which clearly would not meet the definition under section 1(x).  Parentage alone is insufficient.  It is not just that the GPC lacks the direct connection with employees.  It is also that, under the GPC constitution, under the collective agreements, and in day-to-day practice, it is the various International Unions working in concert with the Local Unions within the relevant territorial jurisdiction, that maintain that direct connection.

¶ 57      The collective agreement, like Article X, Section 1 of the GPC Constitution discussed above, makes it patently clear that it is the Unions and not the GPC in its own right, that are the contracting parties.  It begins:

¶ 58      The section headed "covenants" reinforces this conclusion:

¶ 59      The GPC's responsibilities under the agreement are set out in summary form in Article 2.000:

¶ 60      The recognition clause includes another provision recognizing the Unions as the principals and the GPC as the Union's agent for administration and interpretation.

¶ 61      We find that the General President's Committee is not a trade union within the meaning of section 1(x) of the Labour Relations Code.

¶ 62      As noted above, IBEW is itself a trade union, yet it carries out most of its local activities through chartered locals, each one a trade union in its own right.  The IBEW Constitution (Exhibit 23) sets out the three-way relationship between Local Unions, the International Union, and the membership.  It provides, in Article XXII Section 3:

¶ 63      Subsection 4 requires each member to "agree to conform to and abide by the Constitution of the I.B.E.W. and its Local Unions.

¶ 64      The law on the relationship between parent trade unions and their locals is complex for several reasons. First, much of the interrelationship depends upon the constitution(s) of the organization involved.  Sometimes the "parent" organization is in fact simply a federation of free-standing trade unions, each with their own independent constitutional existence.  At other times the locals are only creatures of the parent organization, subject to its terms for their governing rules and their very existence.  Questions like whether the parent has members, whether it can represent employees in bargaining and what role it has in the affairs of a local fall, at the outset at least, to be decided by the constitution(s) involved.

¶ 65      Second, labour laws vary over time and across the country.  Statutes have defined trade unions sometimes so as to include parent unions and sometimes so that only local trade unions can hold bargaining rights.  Sometimes definitions are extended so as to allow councils of trade unions or other composite bodies to hold bargaining rights.  A further nuance to these definitions is sometimes added through the statutory provisions granting limited legal personality to trade unions, which might otherwise just be unincorporated organizations not amenable to suit at common law.  Again, sometimes these provisions reflect a distinction between locals and parent unions, sometimes not.  Where each organization meets the statutory definition of a trade union, the effect may be to create two distinct legal personalities out of organizations whose constitutions link them intimately together.

¶ 66      This last phenomenon comes into play here.  Each of IBEW and IBEW Local 424 may qualify as a trade union within the meaning of the Labour Relations Code.  This implies two separate legal actors each with independent rights and responsibilities under the legislation.  Yet constitutionally, and in day-to-day practice, the two organizations are highly integrated.  Constitutionally, the IBEW and IBEW Local 424 are distinct entities, but these entities remain interrelated in ways the Labour Relations Code's structures do not address. One can analyze these interrelationships in terms of agency law, but this is at best artificial for it takes little account of the third party in the triangle, the members who are members both of the Local and the International and have constitutional rights and responsibilities in relation to both levels of the organization.

¶ 67      The Local/International relationship comes up in a number of ways in this matter, including:

¶ 68      We address these points when they arise throughout this decision.  We alluded earlier to this case involving a tension between construction-worker-like short-term maintenance and more industrial style long-term maintenance.  This tension exhibits itself in relation to these IBEW/IBEW Local 424 issues.  Local 424's membership works primarily in construction and maintenance, most of it in jobs that are of limited duration due to the nature of construction or shutdown maintenance work.  Longer term maintenance is the exception to the more general rule. Negotiations for construction collective agreements are carried out under the auspices of the registration bargaining provision of the Alberta Labour Relations Code.  The bargaining is done by the Local Union, under its own rules and procedures, but within that statutory framework.  For some other collective agreements, the Local bargains directly with the Employer, for example when non-GPC maintenance work or shop work is involved.  Again, Local 424's own rules prevail. These processes no doubt create expectations about what might be or ought to be done when the GPC contract comes-up for bargaining.  In particular, it results in demands like those pursued initially by the complainants in this case, for a ratification process so that those within the Local can accept or reject the agreement.

¶ 69      One further element adds to this tension.  Local 424 has jurisdiction over construction and related work for all of Northern Alberta.  The local has several sub-locals (or units) of which Fort McMurray is one.  The membership of this sub-local has a high concentration of those who are employed at either the Syncrude or Suncor plants in longer-term maintenance.

¶ 70      When a shut-down comes, employees from the other sub-locals flood into these sites, but only for the duration of the shut-down.  This gives those working long-term maintenance a disproportionately high influence in the sub-local compared to the total person-hours worked under the GPC maintenance agreement.  There is nothing wrong with this, but it does help to explain why frustration develops when those active locally cannot always carry the day on the decisions that affect the wider group of employees.  This is in part because the concerns of long-term resident employees are different, and at times diametrically opposed to those of the short-term employees.  Nowhere is this contrast more pronounced than on issues like base crew or leave of absence, where some longer-term employees could secure their employment, while shorter term employees would have their work guaranteed only through the strictly managed rotating opportunities available through the hiring hall.

¶ 71      We find the IBEW meets the definition of a trade union under the Labour Relations Code.  The IBEW Constitution provides that membership in the IBEW also involves membership in the Local. It is an organization of employees with a written constitution whose objects quite clearly encompass those required by the statutory definition.

¶ 72      The IBEW Constitution also quite clearly contemplates that the IBEW will at times enter directly into collective agreements, without encroaching upon the Local Union's rights to do so.  This is accomplished through a variety of provisions.  Article IV - International President - provides, in part:

¶ 73      As a matter of constitutional capacity, it is beyond question that the IBEW as well as an IBEW Local can negotiate a binding collective agreement in the circumstances described in Article IV, Section 3.

¶ 74      As we found above, the collective agreement (Exhibit 1-Tab 72) is between the Employer, Catalytic Maintenance Inc., and each individual signatory International Union, including the IBEW.  The fact that each other trade in the GPC has executed a similar agreement does not take away from this basic Union-Employer relationship.  The definition of a collective agreement in section 1(f) of the Labour Relations Code is flexible enough to include such a multi-agreement document.

¶ 75      The collective agreement clearly contemplates a role for the IBEW, for the GPC (as discussed above), and for the Local Union.

¶ 76      Section 2.400 has the GPC "... through a subcommittee, visit the location of each maintenance job prior to commencement or as often as necessary to initiate and maintain the cooperation of the Local Unions."

¶ 77      Article 4.300 links the agreement to the Local's hiring hall:

¶ 78      Article 7.000 sets out the grievance procedure. The Local Union Business Representative has a role at Step II. The International Union Representative handles the grievance at Step III.  Step IV involves a Union Management GPC Committee, while Step V involves traditional arbitration.

¶ 79      Article 10.000 provides "the Business Manager of the applicable Local Union shall be consulted in advance of the termination of the Steward."  Article 11 elaborates on the role of the Local Union in supplying trades persons.  Article 12.000 Wages, and the attached Wage and Benefit Schedule, ties in the wage rates in the Local Construction Agreement (the Registration agreement negotiated, in part at least, by Local 424) to the GPC agreement.

¶ 80      In practice, under this collective agreement, it is through the local trade union that the individual union members exercise their rights of membership. Their union dues are deducted on behalf of and remitted to Local 424, although per-capita dues are then remitted on to the International. Grievances are processed at the outset by Local 424 representatives.  Collective bargaining proposals are drawn from the Local, although they are channeled through the International and the GPC.  Union meetings take place at the Local level.  In substance, although the agreement is entered into by the International Union, almost all the main features of union representation from the point of view of an employee are carried out using Local 424 as the vehicle.

¶ 81      This is not something imposed on Local 424 unwillingly.  It is an active participant, by its constitutional connections, its day-to-day activities and its acquiescence in this long-term symbiotic arrangement. We find that this collective agreement entered into by and in the name of the IBEW is nonetheless binding upon and entered into on behalf of the IBEW and its constituent locals with territorial jurisdiction over the work in question.  In the case of the Syncrude site work carried out by Catalytic Maintenance, this means Local 424.  In substance "the trade union" in this case is an amalgam of the IBEW and it's Local with territorial jurisdiction, Local 424.  Without the Local's existence (its structure, members and resources), the IBEW would be inadequate to act alone as a bargaining agent.

8.   Local Union Bargaining Representatives

¶ 82      The complainants complained at the outset that the GPC bargaining process was flawed in two respects: it included no Alberta representatives on the committee, and it was invalid because the resulting collective agreement was never submitted to the membership for a ratification vote. They subsequently withdrew their complaint about ratification since, under section 59(6) and (7) such ratification is clearly at the option of the trade union involved.  They also withdrew their argument that ratification was a right protected by the Charter of Rights and Freedoms.

¶ 83      The pertinent subsections of section 59 are:

¶ 84      The complainants argue that the 1991 GPC negotiations did not include at least one representative from the trade union local on whose behalf the negotiations were being conducted.  Indeed, they suggest, in face-to-face negotiations with Catalytic, the IBEW had no representative at all since Mr. Warchow was absent.  As Mr. Warchow was at all times an Ontario resident, the IBEW had no Alberta resident at all involved in the negotiations.

¶ 85      In answer to the complaints under section 59, the Employer argues

¶ 86     In a similar vein the GPC argues

¶ 87      All this is true.  However, the 1988 revisions to the Labour Relations Code introduced subsection 59(4).  It is bargaining that must conform to the statute and not the statute to long established patterns of bargaining.

¶ 88      Subsection 59(3) requires the naming of bargaining committees.  The first question we must answer is what group, in the context of the GPC negotiations, constituted "the bargaining committee."  Is it the representatives of each of the General Presidents, as specified in the GPC Constitution, or is it a broader group, including all those persons invited to be present at the pre-negotiation meetings conducted in Calgary, Edmonton and Fort McMurray?  We find it is the former.  While the larger meetings no doubt functioned to provide the General President's representatives with valuable input for the bargaining process, they did not purport to do more than that. The negotiations themselves, conducted in Calgary on March 5th - 8th, included no representatives from this wider group.

¶ 89      The next question is whether subsection (4) applies at all.  The resulting collective agreements are all entered into by the parent international building trade unions.  In this situation, can it be said that there are trade union locals "on whose behalf the negotiations are being conducted"?  While we can envision circumstances where this might not apply, in this case we find that it does.  The negotiated collective agreement, as detailed above, clearly involves and even depends upon the local unions. They are the source of labour through their hiring halls.  They are directly involved in many aspects of the agreement.  On the facts of this case we find the GPC negotiations are conducted on behalf of the various building trade union locals, including Local 424.

¶ 90      Reviewing the membership of the GPC, we find none of the individuals acted as a representative of any of the trade union locals on whose behalf the negotiations were conducted.  All were appointed as representatives of the General Presidents and none as representatives of a local.

¶ 91      We agree with the complainants that subsection 59(4) is designed to "... ensure that the collective bargaining process is not unduly remote from the needs and interests of the employees who are being represented." Section 59(1), however, serves a more mechanical purpose of ensuring that the bargaining process can be commenced in Alberta.

¶ 92      We do not accept the GPC's submission that only a trade union local can complain under this section, precluding complaints from affected individuals like the three individuals in this case.

¶ 93      Subsection (4) clearly contemplates multi-party bargaining.  Its minimum requirement is for one representative of the trade union local on whose behalf the negotiations are being conducted.  The GPC negotiating committee bargains on behalf of a variety of different building trade locals.  The section does not require a representative from each local, nor a representative from a local from each International Union. However, even this minimum has not been met.

¶ 94      A breach of section 59(4) might, in some cases, lead the Board to set aside a collective agreement.  However, we do not see that as an inevitable result.  In this case the complainants withdrew their request to void the agreement. Even if they had not done so, the evidence of substantial pre-and post-negotiation consultation with officials and members of the locals would have led us to restrict our remedy to the one we now grant.  In future rounds of collective bargaining, if conducted under the GPC structure, the IBEW and the General Presidents' Committee are directed to ensure that the bargaining committee includes at least one representative of the local unions on whose behalf the negotiations are being conducted.  That representative (or those representatives) must be selected by the trade union locals who will be involved in the resultant collective agreements rather than by the General Presidents' Committee itself.

¶ 95      While section 59(1) may have been ignored, it is in our view a moot issue.  Bargaining actually commenced and agreements were concluded.  We see no purpose to issuing an order for the future, since the Board can respond to any difficulties at the time.  The difficulties to which section 59(1) is directed have not been a problem in GPC bargaining.

9.  Complaints under Section 146(1)(b)

¶ 96      The complainants allege that the GPC per-hour remittance made by Catalytic (and all other GPC contractors) contravenes section 146(1)(b) of the Labour Relations Code. That section reads:

¶ 97      The Code contains two other provisions supportive of the same public policy.  Section 36(1) provides:

¶ 98     Section 131(1) provides:

¶ 99      We have found that the GPC is not a trade union. The applicants argue that section 146(1)(b) nonetheless applies.

¶ 100      The GPC argues that, because of a decision made early in these proceedings, the complainants cannot now, directly or indirectly, challenge the validity of the collective agreement under section 131.  It argues that the complainants realized early that their efforts to set aside the agreement were at odds with their section 151 claim that they were not fairly represented under that same agreement. They chose to accept the agreement as valid and proceed under section 151.  We agree with this submission. However, while this precludes any order vacating the agreement, it does not preclude us considering the propriety of the GPC funding arrangements and, if appropriate, granting any appropriate directives short of voiding the collective agreement.

¶ 101      The GPC advocates a purposive interpretation of the prohibitions in section 146(1).  It refers us to the early decision of:

¶ 102      The case involved the question of whether a union dues check-off arrangement prior to certification constituted company domination under a provision equivalent to Alberta's section 36.  The Board said, in that case:

¶ 103     The GPC also referred us to:

¶ 104      In that case, the Union sought to certify some employees of Super City, a grocer connected to Loblaws.  The Union had been the bargaining agent for Loblaws employees for many years.  Under the Loblaws collective agreement, a couple of Union officials who were Loblaws employees had received paid time-off for Union business to the extent that Loblaws had been paying for them for several years while they worked full-time for the Union.  An intervenor in the Super City certification alleged this contribution by Loblaws to the Union rendered the Union unfit to be certified at Super City because of employer domination.  The Board found that, since the Loblaws contribution was protected by the equivalent of section 146(2)(a)(i) it could not amount to employer domination of the Union.

¶ 105      The Board in the Super City case took a purposive view of section 146.  It was influenced by the longevity and, by implication, the robustness, of the Union-Loblaws relationship.  It obviously felt this arrangement, sanctioned by the collective agreement, did not create a dependency that undermined the Union's independence or fitness to act.  The GPC argues from this:

¶ 106      While the GPC maintains, as we have found, that it is not a trade union, it concedes that it acts as the representative of the International Unions and their respective locals.  "Therefore payments to the GPC may be characterized as indirect payments to the Unions."  Should we so hold, the GPC referred us to:

¶ 107      In that case, the employer, pursuant to a collective agreement between Pacific Maritime Agencies Ltd. and the Seafarers International Union, had made payments for the operation of the Union hiring hall upon which the employer drew for its labour supply.  The Canada Board analyzed the equivalent terms to section 146, 36 and 131 in light of the basic freedoms guaranteed by the Canada Labour Code - the freedom of employers and of employees to freely join organizations or trade unions and to participate in their activities.  They said, at page 169:

¶ 108      It is this second aspect that is important in the case before us.  The complainants are not suggesting the employer has or can influence the employees' selection of the Union, only that the funding arrangement impairs the Union's freedom to act in the employees' best interests.  The Board went on to discuss how the equivalent of s. 141(1)(b) and s. 146(2) should be interpreted using a purposive approach.

¶ 109      Catalytic also relies upon the Mons White decision.  It suggests the payments to the GPC are very similar to the fee for service arrangements in that case.  It argues that:

¶ 110      In answer, the complainants argue that, unlike the facts in Amalgamated Meat Cutters, the contributions sent to the GPC are not union dues obtained through check-off, they are funds coming directly from the Employer.  They argue that none of the exceptions in section 146(2) apply.  They also argue that, contrary to the Mons White decision, the exceptions to section 146(1) set out in section 146(2) are exhaustive.  The Mons White decision, in their view "is driven by its unique facts" and "is unpersuasive and does not rely upon authority."  Taken literally, the complaints suggest, it "would reduce section 146(1)(b) to virtual meaninglessness." Instead, the  general complaints refer us to Adams, Canadian Labour Law, second edition, pages 10-15 to 10-24.1 where the author reviews, in a general sense, the scope of the section and its exceptions.

¶ 111      In this situation, since the GPC is not a trade union, there is no direct violation of Section 146(1). However, payments to a non-union might amount to indirect payments to a union, and thus still constitute a violation. The Board must look at the substance of the transaction, not just its form.  In doing so in this case, we find the approach in the Mons White case helpful. We agree that the express purposes of the Alberta Labour Relations Code, as set out in its preamble, do contain strong parallels to the Canada Code. It speaks of maintaining a "mutually effective relationship" and "a common interest in the success of the employing organization". We accept the proposition that the GPC arrangement does cost money and does provide benefits to both sides, both in terms of its attention to the necessary administration and in its coordinating role. A major challenge for unionized construction has been to maintain productivity by avoiding inter-union disputes (and often the attendant work stoppages) over work jurisdiction or differences in employment terms between trades. The GPC adds value for unions and employers alike in achieving this goal.

¶ 112      On the other side of the equation, we do not see the GPC funding arrangement as creating a threat to the ability of the trade unions to act as vigorous and independent spokespersons for the employees they have the statutory license to represent. Each of the signatory unions is a major trade union in its own right. While the unions are relieved of some of the added cost of conducting integrated multi-trade bargaining, they still absorb the cost of their own representatives, the costs of servicing the collective agreements and so on.  There is no substantial evidence of the creation of any dependency from the monies going to the GPC.

¶ 113      The GPC structure has a long history of successful and independent bargaining.  It is not unlike other industry bargaining arrangements operating elsewhere, both in the construction and maintenance industries, and in the industries described in the Mons White decision. These funds are not donations, they are collectively bargained payments into a fund maintained and spent independently of the employer and without accountability, directly or indirectly.  The fund arose at the Union's request, not that of the Employer.

¶ 114      Weighing these factors, and adopting a purposive interpretation of section 146 that accords with the Code's objectives, we find that section 146 has not been breached. There has been no direct contribution to a trade union, since the GPC is not a trade union within the meaning of the Code. While a payment to an organization like the GPC might amount to an indirect contribution, and thus still violate the section, we do not find that to be the case in this situation. The payments are not a contribution of support.  They are like the payments referred to in Mons White, payments for a service of benefit to the industry.  We therefore dismiss the complaints under Section 146.

¶ 115      In early April 1991, the three complainants all worked as electricians for Catalytic on long-term maintenance. A scheduled shut-down was about to occur.  All three sought to move from long-term maintenance over to the shut-down crew because of the opportunity for extra overtime hours.  During this period, Mr. Roy's father became ill and Mr. Roy took a leave of absence to visit him in Ontario.

¶ 116      In the past, when work was short, Catalytic had followed a policy of offering short-term leaves of absence to long-term electricians to avoid laying them off. Near the end of this shut-down, Catalytic laid off Mr. Dezentje, Mr. Dombrosky and Mr. Roy without offering a leave of absence. The complainants all believed their lay-offs were improper and all filed grievances.  These grievances were handled initially (Step II) by Local 424 Assistant Business Representative Jim Bendfeld and then (Step III and beyond) by IBEW International Representative William Warchow.

¶ 117      The grievances were filed in March and April 1991.  Fourteen months later, in May 1992, Mr. Warchow wrote to them indicating essentially that their grievances were over.  The grievors allege that their Union and both men failed to represent them fairly under Section 151 of the Labour Relations Code, which provides, in part:

¶ 118      We heard much evidence about the grounds alleged in the grievances and the interaction between the three grievors and the Union while these grievances were being processed.  We also heard evidence falling into four categories that provided the context within which these events played out.  These areas concerned: (1) the complainants' involvement in the Union, particularly in opposing certain Union members; (2) a prior grievance involving Mr. Dezentje and Mr. Dombrosky; (3) a prior grievance involving Mr. Roy; and (4) charges laid by the complainants under the Union's constitution against some of the same Union members referred to under (1).

¶ 119      In analyzing this evidence, we must distinguish between:

¶ 120      In evidence and argument, the parties tended to present some of the evidence about the motives alleged for the Union's lack of diligence as if that evidence was relevant to, a