Ontario Provincial Conference of Bricklayers Local No. 12 Kitchener, Ontario v. Lavern Asmussen Ltd.
[1980] OLRB Rep. May 730
1669-79-M Ontario Provincial Conference of Bricklayers Local No. 12 Kitchener, Ontario, Applicant, v. Lavern Asmussen Ltd., Respondent.
BEFORE: Ian C. A. Springate, Vice-Chairman, and Board Members M. J. Fenwick and F. W. Murray.
APPEARANCES: D. Demonte for the applicant; R. M. Parry and George Percival for the respondent.
DECISION OF THE BOARD; May 6, 1980
1This is a referral of a grievance to the Board pursuant to section 112a of The Labour Relations Act. The grievance alleges that the respondent has improperly sub-contracted certain plastering and stucco work.
2The applicant contends that the respondent is bound to the terms of a provincial collective agreement dated May 1, 1978 between The International Union of Bricklayers and Allied Craftsmen and the Ontario Provincial Conference of The International Union of Bricklayers and Allied Craftsmen ("the Provincial Conference") on the one hand, and the Masonry Industry Employers Council of Ontario ("MEICO") on the other hand. The respondent concedes that the applicant at one time held bargaining rights for its employees, but contends that those bargaining rights have been abandoned and are now non-existent.
3At the hearing in this matter the Board ruled orally that the applicant had not abandoned its bargaining rights, and that the respondent was bound by the terms of the provincial collective agreement. The reasons for this ruling are set out below.
4On September 18, 1967 the respondent entered into a collective agreement with Local 12 of The Bricklayers', Masons' and Plasterers' International Union ("Local 12") covering a bargaining unit of bricklayers, stonemasons and plasterers. It should be noted that the name of the International Union was subsequently changed to The International Union of Bricklayers and Allied Craftsmen.
5On April 7, 1971 the respondent issued a proxy to a committee comprised of the representatives of a number of masonry firms permitting it to bargain on the respondent's behalf with Local 12. Subsequent negotiations resulted in a collective agreement with Local 12, which the respondent executed, running from May 1, 1971 to April 30, 1972.
6On February 17, 1972 the Ontario Federation of Construction Associations (OFCA) Trade Bargaining Council for Bricklayers forwarded to the Provincial Conference a list of masonry contractors for which it held bargaining rights. Included on the list was the name of the respondent. On May 2, 1972 the Provincial Conference and OFCA entered into a collective agreement which expired on April 30, 1973. An appendix to the agreement listed the respondent as being bound by the agreement within the territorial jurisdiction of Local 12. At about this time MIECO came into existence as a successor to the OFCA Trade Bargaining Council for Bricklayers. From 1973 to 1978 the Provincial Conference and MIECO were signatories to a series of collective agreements which stated that they were binding on the respondent. At no point did the respondent advise the Provincial Conference or MIECO that it no longer desired to have MIECO bargain on its behalf.
7On May 1, 1978, after the advent of province-wide bargaining, MIECO and the Provincial Conference entered into the provincial agreement being grieved under. An appendix to the document listing the names of employers stated to be bound by the agreement includes the name of the respondent.
8The respondent operates as a general contractor in the industrial, commercial and institutional sector of the construction industry. Mr. G. Percival, the respondent's president, testified that the respondent last employed a bricklayer some five or six years ago. At that time the respondent made the appropriate filings and payments to the Provincial Conference. Since that time the respondent has not directly employed any bricklayers but has instead contracted out all of its masonry work to unionized contractors. This would have been in compliance with the sub-contracting provisions of the provincial collective agreement and its predecessors. The respondent also had a small amount of stucco work, along with a larger amount of drywall and acoustic tile work, performed by non-union carpenters. Stucco work is included in the jurisdictional claim for plasterers in the provincial agreement and its predecessors. No evidence was led, however, to show that the applicant knew, or should have known, about the small amount of stucco work let in this manner. In addition, no evidence was led as to any non-stucco plastering work having either been performed or contracted out by the respondent.
9The respondent has let out resilient floor work to certain non-union contractors. Locals belonging to the Provincial Conference represent a number of resilient floor layers, but under a separate collective agreement from that being grieved under. Further, on the evidence it appears that neither Local 12 nor the Provincial Conference ever acquired bargaining rights for resilient floor layers employed by the respondent.
10The respondent's claim that the applicant has abandoned its bargaining rights rests on the undisputed fact that five or six years had passed between the last direct contact between the applicant and the respondent and the filing of the grievance giving rise to these proceedings.
11For the Board to conclude that a union has abandoned its bargaining rights, it must be satisfied that the union has voluntarily given up those rights. In certain circumstances inaction on the part of the union over an extended period of time may indicate that such abandonment has occurred. Such a conclusion, however, cannot be drawn from the facts of this case. The respondent has not directly employed any bricklayers for some five to six years. Further, the respondent sub-let all of its masonry work to unionized masonry firms in accordance with the terms of the applicable collective agreement. Because of this there was no reason for representatives of the applicant to deal directly with the respondent or to file grievances against the respondent with respect to its bricklaying work. The performance of stucco work by non-union carpenters along with drywall and acoustic tile work appears to have involved such a small amount of stucco work that it could easily have been missed by the applicant. In addition to this, year after year MIECO, and before it the OFCA Trade Bargaining Council for Bricklayers, sat down at the bargaining table and not only purported to bargain on behalf of the respondent, but also to sign collective agreements stating that they were binding on the respondent. Given the nature of the respondent's operation, there was in fact not much more that the union could reasonably have done in the exercise of its bargaining rights. Taking all of these facts into account, the Board is not satisfied that the applicant ever voluntarily abandoned or gave up its bargaining rights. Having regard to this conclusion, and to the provisions of sections 125 and following of the Act, we are satisfied that the respondent is bound to the Provincial collective agreement being grieved under.
12At the hearing the parties indicated that they felt they could reach agreement on all other outstanding matters relevant to this referral. If such an agreement cannot be reached, the applicant should so notify the Registrar and the matter will be re-listed for hearing.