International Union of Operating Engineers, Local 793 v. Employer Bargaining Agency and Williams Contracting Ltd., 1980 CanLII 896

[1980] OLRB Rep. July 1115

0863-79-M International Union of Operating Engineers, Local 793, Applicant, v. Employer Bargaining Agency and Williams Contracting Ltd., Respondents.

BEFORE: George W. Adams, Chairman, and Board Members C. G. Bourne and W. F. Rutherford.

APPEARANCES: S. B. D. WahI and E. A. Ford for the applicant and W. J. McNaughton and W. Kutynec for the respondents.

DECISION OF THE BOARD; July 8, 1980

1. This matter involves the referral of a grievance to arbitration under section 112a of The Labour Relations Act.

2. The grievance dated June II, 1979 is described as a union grievance claiming a violation of a collective agreement between the Operating Engineers Employers Association (including the Toronto and District Excavators Association) and the grieving trade union, the International Union of Operating Engineers, Local 793. The grievance describes the project sites as: a) "Consumers Glass Project — 100 Chesholm Dr — Milton, Ontario", b) "Renforth Dr and Eringate Dr — Etobicoke, Ontario"; it alleges violations of both the Master Portion of the agreement (Articles 3, 15, 16, 21, and 24) and Schedule D (Articles 1, 3, 5, and 6); and describes the relevant time period as "May 13, 1979 and continuing." The nature of the grievance and the remedy requested are set out in the following form.

"1. The Employer is employing non-union personnel to perform work covered under the Collective Agreement.

2. The Employer has failed or refused to pay the proper rate of wages as set out in the Collective Agreement.

3. The Employer has failed or refused to pay overtime rates, travel allowance and reporting allowance as set out in the Collective Agreement.

4. The Employer has failed or refused to remit Pension and Em­ployer Labour Relations Fund contributions at the proper rate and further the Employer has failed or refused to deduct and submit Working Dues at the proper rate.

REMEDY REQUESTED

1. That the Employer immediately replace all non-union personnel with members of the Union and further, that the Employer pay in trust to I.U.O.E. Local 793, all monetary conditions as outlined in

;he Collective Agreement for all hours earned by non-union personnel.

2. & 3. That the Employer immediately pay to all employees concerned all monies owing for wages, overtime rates, travelling and re­porting allowance in accordance with the Collective Agreement.

3. That the Employer immediately correct all Working Dues, Pen­sion Fund and Employer Labour Relations Fund contributions in accordance with the Collective Agreement.

4. The respondent filed a reply to the referral denying the grievance and stating that "it has performed all the work in accordance with the terms of an agreement between the applicant and the Metropolitan Toronto Road Builders' Association, which agreement is binding on the respondent, Williams Contracting."

5. This referral was filed with the Board on August 9, 1979. A hearing was scheduled for August 24, 1979 but was adjourned sine die on the consent of the parties. The matter came on again for hearing on November 5, 1979 and before a panel of the Board differently con­stituted than this panel. At the time of that hearing the Board was in receipt of a letter from counsel to the Operating Engineer Employers Bargaining Agency advising that, although the Agency had been named as a respondent, it did not intend to take part in the proceedings. From a reading of the decision of that panel dated January 3, 1980, [1980] OLRB Rep. Jan. 121, it is apparent that the respondent company, Williams Contracting Ltd., raised a number of preliminary objections to the Board proceeding on November 5,1979. It first argued that the referral did not clearly raise the nature of the grievance and that the decision of the employer bargaining agency not to participate may, therefore, have been misinformed. The Board rejected this argument at paragraph 3 of its decision in writing:

"Since the employer association had, in fact, received proper notice of the November 5th hearing and had chosen not to attend, the Board was not prepared to accede to counsel's request for a further adjournment. Apart altogether from the fact that both named respondents were represented by the same firm of solicitors, the Form 7 notice specifically warns that if a party fails to attend at the hearing, the Board may proceed in its absence.”

The respondent company's second preliminary objection was based on a submission that its defence necessitated giving notice to certain other parties who might be affected by the Board's decision. This defense is revealed in its reply wherein it alleges to be bound to another collective agreement with the applicant (the Metropolitan Toronto Road Builders' Associa­tion agreement) and which agreement in has honoured during the period relevant to the grievance. It ~as the respondent's position that the Board's decision on the availability of this defense could affect both the employers and the association party to this other collective agreement and, possibly, certain other trade unions representing the employees of these employers. However, paragraph 4 of the Board's decision of January 3, 1980 records the admission that none of these entities were parties to, or bound by, the agreement on which this grievance is based nor, in the case of the allegedly interested trade unions, was it alleged that they represented any of the employees covered by this collective agreement. The Board also noted in its January 3rd decision that the respondent company did not file its reply indicating the possible interest of these other entities until the very day of the hearing and that it had made no effort to provide notice to these allegedly interested persons and organizations.

5. In the circumstances, the other panel of the Board decided to hear evidence in respect of this second preliminary objection following which it rendered its written decision of January 3, 1980 holding that it was unnecessary to adjourn to give notice to these other persons as the respondent had requested. An application for reconsideration was dismissed by decision dated February 25, 1980. The principal reasoning of the Board's decision of January 3, 1980 on the issue of the adequacy of notice is found at paragraph 12 which reads:

"We accept the respondent's contention that collective bargaining rela­tionships in the construction industry are interrelated and that employ­ers and trade unions will be interested in, and perhaps affected by, the negotiation or interpretation of collective agreements other than those to which they are immediate parties. However, we do not accept that such "third parties" are entitled, as of right, to intervene in proceedings under section 112a, (see: Napev Construction Ltd., [1976] OLRB Rep. Mar. 109; application for judicial review dismissed sub nomine, Bricklayers, Masons, Independent Union of Canada, Local I v. Ontario Labour Relations Board—decision released May 18, 1977—unreported) nor do we think the Board should readily exercise its discretion to add them, simply because they may have a commercial interest in the outcome of the proceeding. If strangers to the agreement were entitled to participate, the speed and economy which section 1 12a was designed to achieve would be seriously undermined, and the procedure needlessly complicated by the intervention of parties who are neither directly af­fected, nor bound by the legal result. Of course, nothing prevents an immediate party to a collective agreement from adducing legally ad­missible evidence of other bargaining relationships where such evidence would be helpful in resolving an ambiguity in the collective agreement in question. Moreover, the existence of an ongoing, quasi-contractual pro­ceeding under section II 2a does not prevent a third party from asserting statutory rights available under other sections (for example, section 81 respecting jurisdictional disputes, section 135 respecting sectoral deter­minations). In appropriate circumstances the Board may consolidate such proceedings with the 112a proceeding or adjourn the I 12a proceed­ing until more general questions have been resolved. (See, for example: Napev Construction Ltd. No. 2, Board File No. 0534-79-M, decision released Sept. 17, 1979 — as yet unreported.) In our view these avenues are sufficient to protect third party interests and it is unnecessary to encum­ber a section 1 12a proceeding with numerous interveners in the same interest as the parties already before the Board. There may well be cir­cumstances in which a section II 2a proceeding raises questions of general interest to the industrial relations community and in those cases the Board might well wish to entertain amicus curiae submissions; how­ever we are not satisfied such circumstances exist in the present case. Accordingly, the Board is satisfied that it is unnecessary to adjourn to give notice to other parties and the Registrar is, therefore, directed to relist the matter for a continuation of the hearing on the merits."

6. Unfortunately, the Board did adjourn to render this decision and before the matter could be continued on its merits or rescheduled by the Registrar, the respondent company served the Board and the applicant with a notice of judicial review together with a notice of motion wherein it sought a stay of the Board's proceedings. However, before the latter matter was heard by the Court, the respondent company decided against seeking an order staying the Board's proceedings and instead agreed to participate in such proceedings as rescheduled but without prejudice to its right to seek judicial review of the Board's ultimate decision in addition to the earlier decisions referred to above.

7. It is against this background that the applicant objected to the constitution of the instant panel because it is composed of members of the Board who did not render the Board's decision of January 3 and February 25, 1980. The applicant further contended that, in any event, a number of issues relating to the respondent's defense had already been determined against the respondent by the Board's decision of January 3, 1980 and that, therefore, such issues were res judicata before this panel. We are unable to accept either the objection of the applicant to the composition of this panel or its submission based on the doctrine of res judicata. In our view, it was unnecessary for the earlier panel of the Board to hear any evidence on the preliminary point that was before it. That panel of the Board was faced with a grievance under a particular collective agreement and any decision of the Board in respect of any defense the respondent company wished to raise would not affect the legal interests of persons not parties to that agreement. At best, such persons or organizations could only be incidentally or commercially affected to use the jargon of the cases relied upon by the Board in its decision of January 3, 1980). It may have been that the availability of such persons was important to the respondent in establishing its defense, but the respondent could achieve their attendance through the exercise of the Board's subpoena power. Accordingly, it was unnecessary for the Board to hear any evidence on the issue of notice or any of the other observations that it did and which impinged on the merits of the grievance. We are of the opinion that it would be unfair to the respondent, having had its preliminary point rejected and which rejection did not require the adduction of evidence, to be burdened by unnecessary and collateral findings of the earlier panel in now defending against the merits of the grievance. Had the respondent not been required or invited to tender evidence on its preliminary objections, the applicant would have been required to proceed with its case and the evidence it adduced would have been available to the respondent and the Board in assessing the respondent's defense. Indeed, some of the points determined against the respondent by the other panel of the Board which related to its defense appear to have been based on a finding of insufficient evidence and, yet, had the case proceeded in the normal way, the respondent would have been under no obligation to adduce evidence on these points until the applicant had put in its case on the merits. For all of these reasons, we do not think this is a proper case for the application of an approach analogous to re's judicata. While the principle is an important one in proceedings before the Ontario Labour Relations Board, the Board is not obligated to apply it thoughtlessly and this is particularly the case where an apparent unfairness would be worked. See Wright Assem­blies Ltd., 61 CLLC ¶116,215. Alternatively, we are prepared to reconsider the decisions of the earlier panel based on the evidence adduced before us and the applicant was advised of this possibility at the outset of the hearing. Accordingly, the panel affirms only that decision of the earlier panel holding that the initial notices of the Board to the two-named respondents were adequate. We reserved our decision on the applicant's submission that the doctrine of res judicata was applicable and required the applicant and the respondent to put in all of their evidence on the merits of the grievance irrespective of the findings of the earlier panel. The remainder of our decision, therefore, reviews this evidence and our related findings.

8. The applicant trade union has had bargaining rights for employees of the respondent company coming within its jurisdiction for a considerable period of time. This relationship was documented by the filing of Board Decision File No. 488-71-R (and cer­tificate) in which the respondent was among the employers for whom a certificate of accredi­tation was issued to The General Contractors' Section of the Toronto Construction Associa­tion with respect to the applicant trade union. Two of the interveners in that matter were the Toronto and District Excavators Association ("the excavators association") and The Metro­politan Toronto Road Builders' Association ("the roadbuilders' association"). The evidence establishes that the respondent company was a member of the former association (the excavators' association) as early as August 1, 1973 and was bound by a collective agreement between that association and the applicant trade union executed on August 23, 1973. It is instructive to examine a few provisions of this earlier agreement to gain a flavour of the bargaining relationship at that time. They include:

"ARTICLE 2— RECOGNITION

2.1 The Employer recognizes the International Union of Operating Engineers, Local Union No. 793, as the sole and exclusive bargaining agent for all employees coming within the jurisdiction of the Internation­al Union of Operating Engineers.

ARTICLE 4-CRAFT JURISDICTION

4.1 The jurisdiction of this agreement shall be the operating, repairs, maintenance or servicing of all equipment as set out in Article 15 of this agreement.

ARTICLE 5—GEOGRAPHICAL AREA

5.1 This agreement shall be effective within Metropolitan Toronto, the Counties of York and Peel, the Township of Esquesing and the Towns of Oakville and Milton in the County of Halton and the Township of Pickering in the County of Ontario. (Labour Board Area #8).

ARTICLE 15- WAGES AND CLASSIFICATIONS

July 18 Nov. 1 May 1 Nov. 1 May 1 Nov. 1

1973 1973 1974 1974 1975 1975

CLASS 1 $ $ $ $ $ $

Engineers operat-

­ing shovels,

backhoes, hop-

­ties, drag-lines, 7.60 7.80 8.15 8.35 8.75 9.05

July 18 Nov. 1 May 1 Nov. 1 May 1 Nov. 1

1973 1973 1974 1974 1975 1975

CLASS 1 $ $ $ $ $ $

gradalls, cranes

and similar equip-

­ment. heavy duty

mechanics.

CLASS 2

Welders 7.45 7.65 8.00 8.20 8.60 8.90

CLASS 3

Operators of bull­-

dozers, tractors,

scrapers, emcos,

graders, overhead

loaders, front-end 7.10 7.30 7.65 7.85 8.25 8.55

loaders, indus-

trial tractors with

excavating

attachments,

compressor

operators.

CLASS 4

Oiler-grademen

and oiler-drivers,

mechanics hel- 6.20 6.40 6.75 6.95 7.35 7.65

pers and service-

men.

a) When engineers are required to operate equipment of a lesser rate, they shall maintain their established rate.

b) Equipment in Classification 1 shall be manned by an Engineer and oiler-grademan, or oiler-driver. This shall not be abused by either party.

c) Other types of equipment or classifications under the jurisdiction of the International Union of Operating Engineers, not appearing in this wage schedule, shall be classified as per appropriate rates, under the recognition of such classifications listed in the agreement between the Toronto Construction Association and the Union."

A successor agreement with the appropriate membership list of the excavators' association bearing the respondent's corporate name was introduced and was for the period May 1, 1976 to April 30, 1978. It can be noted that these agreements, on their face, applied to all sectors of the construction industry for the equipment and classification listed.

9. On March 31, 1978, the Minister of Labour designated the Operating Engineers Employers Agency, consisting of The Canadian Association of Foundation Specialists, Crane Rental Association of Ontario, Industrial Contractors Association of Canada, Labour Relations Bureau of Ontario General Contractors Association, Ontario Erectors Association, Ottawa Crane Rental Association, Toronto and District Excavators Association and Heavy Equipment Services Section of the Windsor Construction Association, as the employer bargaining agency to represent in bargaining all employers whose employees were repre­sented by I) the International Union of Operating Engineers; 2) Local Union 793; and 3) any other local union of the International Union of Operating Engineers as specified (our emphasis). This designation, of course, related only to employees of the employers subject to collective agreements, certificates and voluntary recognition agreements as those agreements and certificates pertained to the industrial, commercial, and institutional sector of the con­struction industry in the Province of Ontario ("the ICI sector"). Accordingly, the respondent company being a member of the excavators association and being an employer whose employees were represented by the applicant union became subject to this designation for the ICI sector. The evidence establishes that the designation order for the ICI sector and the multi-sector bargaining relationship of the applicant and the excavators association were accom­modated by the entering into of a composite collective agreement between the employer bar­gaining agency, the excavators association and the applicant trade union dated July 17, 1978 and having a term of June 19, 1978 to April 30, 1980. This being the agreement or agreements under which this grievance is referred, a number of its provisions are worthy of mention. They include:

"ARTICLE 2— RECOGNITION

2.1 The Employer recognizes the Union as the exclusive bargain­ing agent for all employees of the Employer for whom the Union has bargaining rights engaged in work covered by the schedules and classifications set out in this agreement, and any additional classifications as may be agreed to by the parties.

ARTICLE 11—PA YMENT OF WAGES AND LAY-OFF

11.1 b) Accompanying each payment of wages shall be a retainable statement identifying both the Employer and the employee, showing the pay period, total hours marked "regular" and “overtime", the hourly rate, the total earnings, the amount of vacation pay, the amount and purpose of each deduction, and the net earnings. (Where the Employer does not presently show all of this information he will be given until January 1, 1979 to comply).

ARTICLE 15— HOURS OF WORK

15. 1 Eight (8) hours hall constitute a day shift except as noted here­in, the said regularly assigned hours to be from 8:00 am. to 5:40 p.m. with a one-half hour lunch period without pay. The starting time and the quitting time may be varied up to one hour by agreement between the Union and the Employer. Such agreement shall not be unreasonably withheld.

15.2 Site Preparation, Sewer and Watermains

a) Site preparation shall mean the excavating of ground to sub-grade level and shall be include pile driving, drilling, boring, dockwork, tunnel work or underground services.

b) The standard work week shall be forty-five (45) hours from Monday to Friday inclusive. The standard work day shall not be more than nine (9) hours per day at straight time between 7:00 a.m. and 6:00 p.m.

ARTICLE 26

The parties agree that Appendix "A" and Schedules "A" to "0" attached hereto are incorporated into and form part of this Collective Agreement.

We note that following Article 26 the agreement is executed by the employer bargaining agency and each constituent employer association including the Toronto and District Excava­tors Association.

10. Schedule "A" is said to apply to employers engaged in the "Crane and Equipment Rental Business" within the Province and, as in all the schedules, the classifications, wages, and other terms and conditions of employment peculiar to that activity are set out in detail therein. Schedule "B" applies to employers in the "Steel Erection or Mechanical Installation Business" within the Province. Schedule "C" pertains to employers engaged in the "Founda­tion, Piling and Caisson Boring Business" within the Province. The schedule under which this grievance is filed is Scheduled "D" which is described as applying to "Employers that are member Companies of the Toronto & District Excavators Association engaged in the EX­CAVATING BUSINESS within Labour Board Area #8." Schedule "E" applies to employers engaged in all work other than the work covered by Schedules "A", "B", "C" and "D" and "without limiting the generality of the foregoing BUILDING AND CONSTRUCTION WORK within the Counties of Essex and Kent." Schedule "F" is the same as "E" but for the County of Larnbton. The remaining schedules are similar in description to Schedule "E" but for other geographic areas as set out. The most important of these schedules for the purposes of this grievance is Schedule "J" described as applying to:

"... Employers engaged in and work other than the work covered by Schedules "A", "B", "C" and "D" hereof and without limiting the gene­rality of the foregoing BUILDING AND CONSTRUCTION WORK within Metropolitan Toronto, the Regional Municipalities of Peel, York, Durham, the Counties of Simcoe, Muskoka, Victoria, Haliburton, Peterborough and that portion of Northumberland lying West of a line running north from Colbourne to MoCrackens Landing and that portion of the Regional Municipality of Halton lying East of #25 Highway."

11. Key provisions of Schedule "D" include:

"ARTICLE I—CLASSIFICATIONS AND WAGES

1.3 Operators of bulldozers, tractors, scrapers, emcos, graders, over­head, loaders, front-end loaders, industrial tractors with excavating attachments, compressor operators.

June 19, 1978 $ 10.72 1.07 .30 .10 12.19

May 1, 1979 11.13 1.11 .30 .30 12.84

1.7 Other types of equipment or classifications under the jurisdiction of the International Union of Operating Engineers, not appearing in this wage schedule, shall be classified as per appropriate rates, under the recognition of such classifications listed in Schedule "J".

ARTICLE 3- OVERTIME

3.1 All time worked by an employee before or after his regular shift on Monday to Friday inclusive as provided for in Article 15.2 of the Master Portion of this agreement and all hours worked on Saturday and Sunday shall be considered overtime and paid for as follows:"

And these Schedule "D" rates should be contrasted to the higher wage rates stipulated in Schedule "J" for the same work (See Schedule J, Article 1 .4).

12. Mr. William White, Manager of the Toronto and District Excavators Association testified. He confirmed the membership of the respondent company in his association and that the respondent had changed its corporate name from William Excavating Limited to Williams Contracting some four to five years ago. He indicated that in the early 1970's the respondent sold his backhoes and loading equipment, retaining only scrapers and bulldozers. He identi­fied Exhibit 12 as the list of employers who were members of the Association on whose behalf the Association was bargaining at the advent of province-wide single trade bargaining under Bill 22. He testified that excavation work under Schedule D is considered site preparation within the meaning of Article 15.2 of the master portion of the provincial agreement, a fact confirmed by Article 3.1 of Schedule D. He testified that the wage rates in Schedule D applied to all sectors in Board area #8 other than the electrical power systems sector and the pipeline sector. These rates, the Board was advised, represented a "mid-range" of rates for all sectors to avoid having to compute a different rate of pay each time the employee worked in a different sector (a situation which could occur many times in a single day). He testified that this sched­ule therefore applied to the members of his Association whether they were digging a hole in the ICI sector or setting a sub-grade for a commercial or residential subdivision or railway siding.

13. On cross-examination, he admitted that a few members of his Association were also members of The Metropolitan Toronto Road Builders' Association and were parties to that association's agreement with the applicant trade union. These contractors, he said, had a choice over which collective agreement to apply when bidding a road building job and that, be­cause the "roadbuilders" rates were lower than the excavator rates, White had spoken to the union about the potential unfairness of the situation to members of his association who did not have access to the two agreements. However, he went on to way that those of his members who were also party to the roadbuilders agreement were "prime" contractors and by prime contractor he meant a contractor responsible for the whole of a roadbuilding contract. Such a contract could include the excavating of the grade to subgrade, the spreading of aggregate, the setting of concrete curbing, and the laying of asphalt sewers and culverts. However, a prime or general contractor might set the subgrade according to the plan and then sub-contract the moving of earth and other obstacles to an excavator contractor or specialty contractor like the respondent company.

14. Finally, White testified that access to the excavators' agreement dependend on the consent of both the association and the applicant trade union. He said a contractor would first apply to the Association for membership and enclose an initiation cheque. The application is then presented to the Association's board of directors and, if approved, the trade union is notified. On being notified, it is then up to the trade union to determine whether the excavating agreement will apply to that contractor or not. He said the only time he would hear from the union is when it did not accept a particular contractor. When the trade union has refused in the past, the Association was told the reasons for the refusal.

15. Mr. Ford, Labour Relations Manager for the applicant trade union, testified. His evidence was consistent with Mr. White's understanding of the provincial agreement's pur­pose (i.e. the mid-range rates of Schedule D). He said that, as a general matter, the payment to employees does not depend so much on what the employees are doing as it does on which col­lective agreement is applicable. He testified that a contractors access to either the excavation or the roadbuilding agreement depended on that contractor joining the respective association and on the con sent of the applicant trade union. Examples of contractors joining the excava­tors association during the currency of the collective agreement were documented in the form of two "pick-up" agreements for Colosimo Bros. Excavating and Sent Construction Ltd., re­spectively (Exhibits 15 and 16). Also adduced through Mr. Ford were employee deduction forms for a number of the respondent's employees indicating that until December 1978 the re­spondent paid employees and made deductions in accord with Schedule D of the provincial agreement. However, the forms show that beginning in January 1979 the respondent paid its employees an5 made deductions in a way that appears to accord with the roadbuilders agree­ment, although after the filing of the grievance the pattern of deductions is less clear. Ford testified that the applicant trade union had only one collective agreement with the respondent and that was the excavating agreement (i.e. Schedule D). He specifically denied having ever executed a "roadbuilder style" agreement with the respondent and he denied that the Metro­politan Toronto Road Builders' Association agreement applied to the respondent.

16. The roadbuilders agreement was executed on July 28, 1978 and a list of members of the roadbuilders association furnished to the applicant union over the signature of S. E. Dins­dale by letter dated August 10, 1978 did not include the respondent company. Also filed with the Board war; a list of members dated October 22, 1976. When the two lists are compared, a number of changes are apparent and Mr. Ford was cross-examined on each of these variances. One change involving Dufferin Materials and Construction Ltd., appears to be the result of a change in business name and location. Ferpac Paving Inc. was added in 1978 and was explain­ed as an "off shoot" of Ferman Paving Limited, a company on both lists. Ontario Paving Company was added in 1978 but Ford testified that the union had an "independent" agree­ment with it for the road building industry. Ford stated that he knew of no company being added to the 1.976 list which did not already have an agreement for roadbuilding with the ap­plicant union. He pointed out that this had also been the case for Pave-Al Limited and Ven­trella Bros. Construction Ltd. when these two companies were added to the 1976 list. Corres­pondence dated August 1976 was filed with the Board and indicated that the union had specif­ically accepted the application of the roadbuilders agreement to Prospect Paving Limited, King Town Paving Company, John Cucci Limited and Repac Construction and Materials Limited. Also filed with the Board was a "pick-up" agreement executed by Ferpac Paving Inc. dated May 30, 1977. A somewhat similar agreement dated January 20, 1975 executed by the union and Pave-Al Ltd. was filed as well. It was Ford's evidence that any new member of the association who did not already have a roadbuilding agreement with the union would have signed a pick-up agreement with the union as Ferpac and Pave-Al did.

17. On cross-examination, Ford acknowledged familiarity with the following letter dated May 4, 1979 sent to the union by Mr. Dinsdale and advising that the respondent com­pany was now a member of the association.

"Re: The Metropolitan Toronto Road Builders' Association, and Re: In­ternational Union of Operating Engineers

Please be advised that Williams Contracting has become a Member in good standing of this Association effective January 4th, 1979 and should be added to the list of Companies to be bound to the Collective Agree­ment between you Union and this Association.”

Ford testified that the union did not reply to this letter but that he had told William Kutynec, the president of the respondent company, that the roadbuilders' agreement was not available to him unless he became a "prime" roadbuilder.

18. Ford acknowledged that Rumble Contracting Limited was a party to both the ex­cavating and roadbuilding agreements and that it could, therefore, choose between them when bidding a job. However, he said that it was the union's position that Rumble could not use the roadbuilding agreement unless it was acting as a prime contractor (or, in the case of another contractor, unless it was the only agreement with the union). Ford said the rationale to this approach is that the specialty contractor is able to operate under the excavating agreement regardless of the sector involved whereas the road building agreement is available to the prime roadbuilder only in the roadbuilding sector. Once the prime moves out of that sector and into the ICI or heavy engineering sectors, it has to pay the higher rates associated with the agree­ments for these sectors. Ford testified that the respondent is a subcontractor not a prime road-building contractor and, therefore, cannot have access to the roadbuilding agreement. Ford said that if the respondent was granted access, the union would have to do the same for all other members of the excavating association and the concept of the "mid-line rate" of the excavating agreement would be rendered useless. The end result would require a different rate for each sector and a subcontractor often finds himself operating in five different sectors in a single day or week. He said specialty or subcontractors move in and out of different sectors more frequently than most other contractors do and that the mid-line rate was devised to recognize and accommodate this fact. Ford acknowledged that the excavating agreement may be a disadvantage to the sub-contractor operating in the roadbuilding sector most of the time, but stressed that it was a definite advantage to a subcontractor performing work in the ICI sector. Ford also disputed the accuracy of three letters to the respondent in 1979 emanating from the consultant group administering the employee benefit plans. It was Ford's position that the consultant group was in error and that many mistakes of this type have occurred. The benefit plan administrators rely on lists of employees furnished by the trade union, but that errors have been made on occasion.

19. William Kutynec, president of the respondent, testified. He told the Board that since 1975 the respondent had been primarily engaged in road building through the operation of scrapers and bulldozers. As a subcontractor, the respondent's participation was usually limited to stripping the topsoil and grading the roadbed. On occasion, it might put the gravel down. He admitted that prior to 1979 the respondent worked under the excavating agreement. However, some time prior to 1979 he had lost a bid for the CN Marshaling Yards near Toronto to a roadbuilder and when hired at that location on an hourly basis by the general contractor he learned that his wage rates were higher than those of the successful contractor. On further inquiry someone told him that he should join "the roadbuilders" because they paid the same wage rates as "Alnor Earth Moving, Finlay-McLaughlin and Armbro." Kutynec testified that he subsequently joined the Ontario Roadbuilders Association (OR BA) and by a letter to Mr. Ford dated July 6, 1978 asked for "information pertaining to procedure concerning union operators when joining this Association." After this, Mr. Giles, the president of the applicant union and Mr. Hill, a business agent, dropped by Kutynec's home about another matter in the late summer of 1978 and Kutynec told Giles about his membership in the ORBA. He testified that Giles told him this was not good enough and that he would have to join the MTRBA. Thereafter, the respondent joined the MTRBA in early January of 1979. The joining of this association apnears to be a very informal procedure and no application form was furnished to the Board. The union learned that the respondent had joined the association by Mr. Dinsdale's letter of May 4, 1979.

20. On cross-examination, Kutynec admitted that while Giles did not tell him he had to be a prime contractor to have access to the MTRBA agreement, this had always been Ford's position and he had had numerous discussions with Ford in this respect. Mr. Frank Giles was called by the union to rebut Kutynec's evidence about the meeting in the late summer of 1978. He agreed that a meeting had taken place but denied ever saying that the respondent could use the MTRBA wage rates. On the contrary, he said he told Kutynec that the MTRBA required you to be a prime contractor to become a member because this is what Mr. Dinsdale had told him. He also denied that Alnor, Armbro and Finlay-McLaughlin were party to the MTRBA agreement "as such." Giles testified that he told Kutynec that if he felt strongly about this issue he would have to provide evidence to Ernie Ford that he was a prime roadbuilder and "come to some kind of understanding with him." He further said that if the respondent got included on the roadbuilders' list and the trade union did not raise any objections, it would have that agree­ment. Finally. Giles denied ever receiving Exhibit 25. The union filed its grievance June II, 1979 and formally objected to the respondent's name on the MTRBA membership list by letter dated March II, 1980.

21. The parties agreed to a description of the kind of work that is the subject matter of this grievance The Consumers Glass contract relates to a site located in Milton which is within Board Area #~. The site originally consisted of a building, parking lot, and field. Consumers Glass wanted to erect another building on the parking lot and field that would itself be sur­rounded by a parking lot. A railway siding was also to be installed. The grade of the existing parking lot was to be lowered to that of the new parking lot. Modern Excavating Contractors was the general contractor. Modern is a member of the Toronto and District Excavators Asso­ciation. The respondent got the contract to strip the existing asphalt, to put the grade of the old parking lot to the subgrade of the new lot, and to put in the railway siding. It did this with its scrapers and bulldozers. The asphalt was stripped and deposited where the railway siding was to go, the top soil was put to one side and earth removed in lowering the grade of the old lot to the new lot was also deposited where the siding was to be installed. Apparently, the respondent also assisted Modern in the removal of earth from the site where the new building was to go. The end result was a hole for the building, a uniform grade for the parking lot, and a three quarter mile long railway siding brought up to grade. The respondent did not have the con­tract for putting on the final grade. Four to six men were used in performing this work and all were paid at the MTRBA wage rates. The respondent has also performed similar work in cut­ting roads within residential subdivisions. The extent of grading and soil removal depends up­on the topography. The more hilly the relief, the more extensive the cut must be for the road­bed. This work also includes smoothing down such hills for them to become adequate building lots. Soil removed from the road is distributed over a subdivision to assist in moderating the relief. The respondent also worked on an industrial park for Armbro, cutting the road and shaping the road banks to a desired slope. Work of a similar kind was also performed at the York Sanitation dump in 1980.

22. For the applicant it was argued that Schedule D is the "successor" agreement to the earlier Toronto and District Excavation agreements; that Schedule D applies to all relevant sectors for the purposes of this grievance, and that on the respondent president's own admis­sion, the respondent has violated Schedule D since the beginning of 1979. Counsel submitted the underlying basis to the excavating agreement would be destroyed if the respondent's access to the MTRBA agreement was acknowledged by this Board. Counsel further submitted that on the basis of the facts established and on the wording of The Labour Relations Act, the respondent could not be a party or bound by the MTRBA agreement. The applicant referred the Board to section l(l)(e) of The Labour Relations Act and Marsland Engineering Limited [1970] OLRB Rep. April 133; Re Kongetaland Fan (1974), 45 D.L.R.(3d)293; Hacquoil Construction Ltd. [1963] OLRB Rep. June 143; Foundation Company of Canada Ltd. et al (1957), 57 CLLC ¶118,078; Ecodyne Limited, [1979] OLRB Rep. July 629. This subsection, it sub­mitted, required a collective agreement to be in writing and signed by the parties. It stressed the absence of any agreement between the respondent and the applicant union providing the re­spondent with access to the MTRBA agreement. All the evidence relating to such access by other contractors during the term of the MTRBA agreement was associated with independent agreements between the applicant union and those contractors. Mere unilateral observation of a contract was, it submitted, insufficient to create an enforceable collective agreement. The applicant argued that section 44(4) of The Labour Relations Act clearly indicates that where an employer joins an employers' association during the terms of the association's agreement, there must be something signed by that employer and the trade union providing that the asso­ciation's agreement applies to the new employer member. In this regard the Board was referred to MacGregor Crane Service Limited [1979] OLRB Rep. Aug. 777. Alternatively, the appli­cant submitted that section4l( I) of The Labour Relations Act prohibits more than one collec­tive agreement in relation to a bargaining unit of employees and that the earlier agreement in time must prevail. Authorities relied upon for this proposition were Ontario Paging [l977] OLRB Rep. Nov. 760; Spring Plastering Limited [1968] OLRB Rep. Jan. 1060; Aquatite (1971) Limited, Board File No. 1969-77-R dated November 21, 1978 as yet unreported. In the further alternative the applicant submitted that by virtue of section 133(2) of The Labour Re­lations Act the provincial agreement (Schedule D) was the only agreement that could apply to ICI work like the Consumers Glass site (i.e. parking lots and road being within the property line) and the roadbuilders agreement did not apply to the residential subdivision work because that work was in the residential sector of the construction industry. Finally, the applicant submitted that the respondent could not defend against the grievance on the basis of promissory estoppel. It could not because (a) no unequivocal representation or promise made to the re­spondent by the applicant union was made out on the evidence; (b) no evidence of detrimental reliance was adduced; (c) the applicant was seeking only a declaration and relief as to the future; (d) section 133(2) of the Act precluded the application of the doctrine to the ICI sector; and (e) to hold that the MTRBA agreement applied would create substantive contractual rights. The applicant concluded its argument by emphasizing that the Board was dealing with a continuing grievance brought by the applicant on its own behalf and on behalf of all bargain­ing unit employees. It therefore requested that the Board grant its declaration with respect to all past, present and future work.

23. For the respondent, it was stressed that officials of the applicant admitted that some contractors did have access to both Schedule D and MTRBA agreements. It pointed out that there was a meeting between Giles and Mr. Kutynec and that after this meeting the respondent joined the MTRBA and commenced using the wage rates under that agreement. Counsel argued that there was nothing in the MTRBA agreement limiting it to prime contractors and there was no clear and consistent practice on the method of extending the agreement to new association members. On the basis of these submissions, the counsel asked the Board to find that the respondent was a proper party to the N4TR BA agreement. Alternatively, he submitted that the union was now estopped from asserting Schedule D due to the respondent's detri­mental reliance on Mr. Giles' assurances in his meeting with Mr. Kutynec. Finally, counsel to the respond en: argued that Schedule D could only apply to the ICI sector because the employee and employer bargaining agents only had the power of negotiation with respect to this sector.

24. Section l(l)(e) of The Labour Relations Act provides:

""collective agreement" means an agreement in writing between an employer or an employers' organization, on the one hand, and a trade union that, or a council of trade unions that, represents employees of the employer or employees of members of the employers' organization, on the other hand, containing provisions respecting terms or conditions of em­ployment or the rights, privileges or duties of the employer, the employ­ers' organization, the trade union or the employees, and includes a pro­vincial agreement;"

Sections 43(l) and (2) provide:

"(1) A collective agreement between an employers' organization and a trade union or council of trade unions is, subject to and for the purposes of this Act, binding upon the employers' organization and each person who was a member of the employers' organization at the time the agreement was entered into and on whose behalf the employers' organization bargained with the trade union or council of trade unions as if it was made between each of such persons and the trade union or council of trade unions and upon the employees in the bargaining unit defined in the agreement, and, if any such person ceases to be a member of the employ­ers organization during the term of operation of the agreement, he shall, for the remainder of the term of operation of the agreement, be deemed to be a party to a like agreement with the trade union or council of trade unions.

(2) When an employers' organization commences to bargain with a trade union or council of trade unions, it shall deliver to the trade union, or council of trade unions a list of the names of the employers on whose behalf it is bargaining and, in default of so doing, it shall be deemed to bargain for all members of the employers' organization for whose em­ployees the trade union or council of trade unions is entitled to bargain and to make a collective agreement at that time, except an employer who, either by himself or through the employers' organization, has notified the trade union or council of trade unions in writing before the agreement was entered into that he will not be bound by a collective agreement be­tween the employers' organization and the trade union or council of trade unions."

And, finally, section 44(4) reads:

"(4) Notwithstanding anything in this section, where an employer joins an employers' organization that is a party to a collective agreement with a trade union or council of trade unions and he agrees with the trade union or council of trade unions to be bound by the collective agreement be­tween the trade union or council of trade unions and the employers' orga­nization, the agreement ceases to be binding upon the employer and the trade union or council of trade unions at the same time as the agreement between the employers' organization and the trade union or council of trade unions ceases to be binding."

25. It is beyond dispute that the respondent company has had a collective bargaining relationship with the applicant trade union for many years and that up until January of 1979 the collective agreement between them was the provincial operating engineers agreement of which Schedule D is a part. We also are of the view that there can be no doubt over the validity of Schedule D to that provincial agreement. While it may well be that the authority of em­ployee and employer bargaining agents is limited to the ICI sector, Schedule D is incorporated into an agreement which was executed by the applicant union together with the Toronto and District Excavators Association. Thus, Schedule D derives its efficacy for the ICI sector through the execution of the master portion of the agreement by the employer bargaining agency and its efficacy in relation to all other sectors through the endorsement of the Toronto and District Excavators Association. The evidence also establishes that at the time Schedule D was entered into, the respondent was a member of the excavators association and that associa­tion represented the respondent in bargaining for all sectors (other than the ICI sector). More­over, the respondent lived by that agreement for the year 1978. We are also of the view that the only agreement that can be applicable to the respondent's business in the ICI sector is the pro­vincial operating engineers agreement having regard to section 133(2) of The Labour Rela­tions Act. Accordingly, the only question before the Board is whether the respondent in 1979 properly switched contractual obligations with the applicant union from the excavating agree­ment to the roadbuilding agreement for the roadbuilding sector. If the answer to this question is in the affirmative, the Board will have to determine whether the work in question was per­formed within that sector.

26. After a detailed review of the evidence adduced and the helpful submissions of counsel, we are of the unanimous view that the respondent was bound by Schedule D during 1979; that it violated the provincial operating engineers agreement and Schedule D for all work it has purportedly performed under the MTR BA agreement; and that the applicant is en­titled to the requested relief. We accept that the respondent became a member of the MTRBA in January of 1979 but this membership alone was not and is not sufficient to invoke the pro­visions of the MTRBA agreement. When that agreement was entered into between the associa­tion and the applicant union, the respondent company was not a member of the association. For the respondent to become bound by this agreement subsequent to its execution date, the statute and first principles of contract law require the consent of the applicant union. More­over, we are of the view that this consent must be evidenced in writing and bear the signature of the respective parties. On the evidence adduced, we are satisfied that the applicant trade union's consent to the respondent's adoption of the MTRBA agreement was never obtained, either verbally ~r in writing. Mr. Kutynec did not dispute that Mr. Ford told him at all times that the MTRBA agreement was unavailable to him. Against the clear position of Mr. Ford, we think it extremely unlikely that Mr. Giles advised Mr. Kutynec that membership in the MTRBA was all he needed to obtain access to that agreement. Rather, we accept Mr. Giles' evidence that he left that event up to Mr. Kutynec and Mr. Ford "working something out" if Mr. Kutynec could satisfy Mr. Ford that he was a prime roadbuilder. While the term prime roadbuilder does not appear in the N4TR BA agreement, there can be no objection to the appli­cant union basing its decision to enter into this agreement with other employers on its sub­jective understanding of the term's meaning, application and relevance. The Labour Relations Act, section 44i4) makes it clear that where an employer joins an employers' organization that is a party to a collective agreement, the employer must agree with the trade union that the agreement is to bind the employer and where this mutual agreement is forthcoming the extent of the obligation parallels the duration of the pre-existing collective agreement. While it is un­necessary to this case, it is also our view that consent under section 44(4) must be in writing and signed by both parties. These requirements arise from the definition of a collective agreement in section 1(1 )(e) of the Act in that an agreement to be bound by a pre-existing collective agree­ment under section 44(4) is itself a constituent element of the collective agreement then entered into between the parties. It is our opinion that an agreement to be bound under section 44(4) is no different in practical effect than a memorandum of agreement to he bound by terms similar to a pre-existing collective agreement where the memorandum of agreement represents an adoption or incorporation by reference of all the terms of the pro-existing collective agree­ment. If a signed memorandum of agreement was unnecessary in such circumstances, it would then be possible to create a collective bargaining agreement by an oral exchange of promises and it is the unreliability of just such exchanges that section l(l)(e) is designed to avoid. In­deed, this case represents a classic example of the confusion and uncertainty that would exist if such important contractual relationships could be entered into verbally.

27. Were also satisfied that there is no basis in fact for the respondent's reliance on the defense of promissory estoppel. It failed to establish, to the Board's satisfaction, a clear and unequivocal promissory representation by either Mr. Giles or Mr. Ford. It also failed to estab­lish evidence of detrimental reliance even if the Board was of another view and a claim for damages cannot he equated with such reliance. Finally, we have grave doubts that the doc­trine, in these circumstances, can have any application in the ICI sector having regard to section 133(2) and its underlying purpose.

28. Because Schedule D is a multi-sector agreement that has application to all of the forms of work the respondent has engaged in during 1979 and 1980 (to date), there is no need for the Board :o determine precisely what sector each job and each aspect of each job falls into.

29. The applicant is therefore entitled to a declaration that the respondent was bound by Schedule D at all times material to the grievance and to the related relief it requested in its grievance. The grievance refers to a time period "May 13. 1979 and continuing", but refers to two specific job sites. The respondent did not raise any sound reason why this matter should not be seen as applying to all the work the respondent has performed in 1979 and 1980 outside Schedule D from the date of the grievance up to the date of this decision. It is accepted that a "collective agreement is fundamentally different from an ordinary commercial contract", and this is particularly the case in the construction industry. See Blouin Drywall Ltd. and United Brotherhood of Carpenters and Joiners of America (1976), 57 D.L.R. (3d) 199 (Ont. CA.). The parties to such agreements have ongoing relationships and a continuing violation ought to be the subject matter of one grievance. One arbitrator ought to be able to speak to the totality of the difference between the parties and provide a meaningful remedy. On the other hand, the applicant provided the Board with no compelling justification for our relief to speak to the future in the nature of quia timet relief. There is no evidence before the Board that the respon­dent will continue to avoid its obligations under the schedule now that these obligations are clear. The Board retains jurisdiction in all other issues related to remedy and the implementa­tion of this decision.