[1980] OLRB Rep. July 961
0133-80-R Graphic Arts International Union London Local 517, Applicant, v. Devon Studio WalkerVille Printing Company Limited, Respondents.
BEFORE: M. Picher, Vice Chairman, and Board Members T.G. Armstrong and M.J. Fenwick.
APPEARANCES: Brian A. Foster and Ron Burman for the applicant; Fred C. Clark for the respondents.
DECISION OF THE BOARD; July 23, 1980
The applicant has applied to the Board for an Order under section 1(4), and section 55 of The Labour Relations Act. It asks the Board to declare that the respondent, Devon Studio, is party to a collective agreement dated the 8th day of August, 1979, and that employees covered by the agreement are entitled to retroactive compensation from January 1, 1979 to the date of their termination. It further requests a determination that the respondent Walkerville Printing Company Limited is bound by the same collective agreement or, in the alternative that it is required to bargain with the applicant with a view to making a collective agreement.
Walkerville Printing Company Limited has been in the printing business in the Windsor area for sixty-three years. In 1972, it formed a partnership with Windsor Print and Litho Ltd. to establish a printing business under the name of Devon Graphics. Both Walkerville Printing Company Limited and Windsor Print and Litho Ltd. are in the business of selling printing on a brokerage basis. Having contracted to provide printing to their customers, they then purchase the component parts of the printing service that a particular contract calls for. They set up Devon Graphics to provide them with printing services. Employing approximately fourteen people, principally in the operation of presses and bindery equipment, Devon Graphics in fact has only two customers, its parent partners Walkerville Printing Company Limited and Windsor Print and Litho Ltd.
Devon Studio is a sole proprietorship of Mr. Fred Charles Clark, who is also president, treasurer and a member of a family with controlling shares in Walkerville Printing Company Limited. Devon Studio provides photo composition services, art work and typesetting services to its customers. It is now a shell, having gone out of business on or about August 7, 1979. Prior to that, from the time it was established in 1966, its principal customers were Walkerville Printing Company Limited and Windsor Print and Litho Ltd.
The evidence establishes a close interrelationship between Walkerville Printing Company Limited, Windsor Print and Litho Limited, Devon Graphics and Devon Studio. They all occupy one building at 3005 Marentette Avenue in Windsor. Although the evidence is not precise on this point, the building appears to be owned either by Windsor Print and Litho Ltd. or by its two controlling shareholders, Mr. Harold Rindilsbacher and Mr. Ulrich Ireson. While there appears to be no corporate relationship between Windsor Print and Litho Ltd. and Devon Studio, the evidence establishes that before going out of business Devon Studio occupied its portion of the premises rent free.
There is also a considerable amount of supervisory interchange among the four entities. While Mr. Clark would normally manage Devon Studio during its operation, in the event of his absence, that business was also supervised by Mr. Fraser Lobban, the general manager of Walkerville Printing Company Limited. It appears that Mr. Lobban also runs Devon Graphics along with Mr. Rindilsbacher, Mr. Ireson and Mr. Clark. The capital equipment of Devon Studio was entirely owned by Walkerville Printing Company Limited.
As complicated as it may appear, the evidence discloses a fairly simple arrangement whereby Walkerville Printing Company Limited and Windsor Print and Litho Ltd. engaged in a joint venture, all under one roof, to better service their respective printing contracts. While the Board is not called upon in this application to determine the entire extent of the relationship between all four of the entities involved, we are satisfied on the basis of the evidence before us that Walkerville Printing Company Limited and Devon Studio, both under the substantial control and direction of Mr. Clark, are associated or related businesses within the meaning of section 1(4) of The Labour Relations Act.
We turn to consider the legal consequences of that determination and to consider the union's allegation that Devon Studio was bound by a collective agreement between January 1, 1977, and the day it closed on August 7, 1979. On June 27, 1978 the applicant was certified as exclusive bargaining agent of the employees of Devon Studio. Thereafter it commenced bargaining with Mr. Clark with the view to making a collective agreement for the two employees then in the bargaining unit. The parties were unable to conclude an agreement and proceeded to conciliation. A "No Board report" was issued by the Deputy Minister of Labour on October 2, 1978 and shortly thereafter the parties were in a position to strike and lock out.
During the same period Mr. Clark was also negotiating with the applicant the renewal of a collective agreement of the employees' of Devon Graphics. That negotiation was part of a joint bargaining arrangement in which Mr. Clark was the spokesman for two other unrelated Windsor printing companies, Curtis Company Limited and Commercial Printing Company, as well as Devon Graphics. On November 23, 1978 Devon Studio and the union jointly executed a document entitled "Memoradum of Basis of Settlement". It provides as follows:
"The undersigned parties agree that Devon Studio will join with Curtis Company Limited, Commercial Printing and Devon Graphics in the negotiations for the renewal of the collective agreement covering letter-press and typesetting personnel which terminates December 31, 1978. The results of these negotiations will determine the term, language, wages and fringe benefits."
Subsequently, on August 8, 1979 the applicant and the three companies named in the memorandum of agreement concluded a collective agreement effective from January 1, 1979. The union submits that the terms of that collective agreement apply mutatis mutandis, to the employees of Devon Studio as a direct result of the memorandum of agreement signed November 23, 1978. It maintains that the purpose of the memorandum was to effectively bring Devon Studio to the joint bargaining table and have the parties bound by the collective agreement issuing from the multi-party negotiations.
The respondent takes a different view. Mr. Clark argues that the memorandum of settlement, signed by himself and Mr. Lobban, was not intended to have any binding effect on parties. He submits that it was merely a precatory document expressing the general intention of both the employer and the union to await the result of the joint negotiations so that they could better frame their respective bargaining positions in light of the joint collective agreement. In other words, he argued that it was an agreement to bargain and not an agreement to be bound by the terms of the collective agreement that would result from the joint negotiations.
This Board can accept neither Mr. Clark's evidence as to his own belief in that regard nor his submission as to the legal significance of the memorandum of agreement which he signed. A document executed in the course of collective bargaining is normally presumed to mean what it says. If it is not ambiguous oral evidence extrinsic to the agreement is not admissible to contradict its terms or affect its interpretation. (Leitch Gold Mines Ltd. v. Texas Gulf Sulphur Co. (1969), 1968 CanLII 405 (ON HCJ), 3 D.L.R. (3d) 161 (Ont. H. Ct.) at pp. 215-216). This Board cannot, on the balance of probabilities, conclude that by executing the memorandum of agreement of November 23, 1978 the parties did not intend to bind themselves to any greater obligation than merely to bargain at some indefinite time in the future. That is simply not consistent with the words of the memorandum, signed as it was during the period when the parties could strike or lock out, and executed as the result of the effort of a mediator who witnessed the document. The clear words of the memorandum do not contemplate that the parties would keep a watching brief on the joint negotiations. On the contrary, it stipulates "that Devon Studio will join with Curtis Company Limited, Commercial Printing and Devon Graphics in the, negotiations for the renewal of the collective agreement... The results of these negotiations will determine the term, language, wage and fringe benefits." (emphasis added.)
The evidence establishes that the union relied on the memorandum of agreement and proceeded on the understanding that thereafter Mr. Clark also bargained for Devon Studio in the joint negotiations. When a tentative agreement was reached in the joint bargaining the union continued to rely on that understanding and conducted itself in a way consistent with its view that Devon Studio was bound by the terms of the joint collective agreement. The union included the two employees of Devon Studio in the ratification vote for the joint contract. On July 4, 1979 it forwarded to Mr. Clark a copy of the Devon Studio contract incorporating the terms of the joint collective agreement, the only formal alteration being the deletion of any reference to Letterpress employees since Devon Studio did not have a letterpress operation. That was done in response to a concern expressed by Mr. Clark.
The position of the union is that the collective agreement between itself and Devon Studio is a composite of two documents, being the memorandum of agreement of November 23, 1978 and the joint collective agreement concluded with Devon Graphics, Commercial Printing Company and Curtis Company Limited on August 8, 1979. On the evidence before it this Board must accept the union's position.
The Act defines "collective agreement" as follows:
"1. 1.
(e) '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;"
The existence of a collective agreement depends on two elements: the agreement of the parties and the reduction of their agreement into writing. (Ferranti-Packard Limited, [1977] OLRB Rep. Mar. 169.) The Board has consistently taken the view that the existence of a collective agreement under the Act need not depend on there being a single comprehensive document signed by the parties. A collective agreement may be evidenced through a number of documents, including memoranda and correspondence, which sufficiently define the terms of parties' agreement (Rossi Bakery Limited, [1964] OLRB Rep. July 266; Crestile Limited, [1967] OLRB Rep. Apr. 41; Graphics Centre (Ontario) Inc., [1976] OLRB Rep. May 221).
In this case the memorandum of agreement of November 23, 1978 effectively adopts by reference the joint collective agreement negotiated by Mr. Clark as the collective agreement governing the terms and conditions of employment of the employees of Devon Studio. Read together, the two documents constitute a collective agreement between the applicant and the respondent Devon Studio for the year 1979. It follows that the respondent Devon Studio is required to provide wages and benefits retroactively to its employees for the period of their service between January 1, 1979 and the day that it terminated its employees.
The evidence establishes that work previously performed by Devon Studio is now being done within Walkerville Printing Company Limited. Given the Board's determination that Devon Studio and Walkerville Printing Company Limited are one employer for the purpose of the Act, it follows that the collective agreement applies as well to any employees of Walkerville Printing Company Limited who would fall within its terms, including the employee performing the transferred work, disclosed by the evidence to be Ms. Sonderhouse. It also follows that the bargaining rights which the applicant had for the employees of Devon Studio continue in respect of the employees of Walkerville Printing Company Limited who would fall within the scope clause of the collective agreement. Given the foregoing determinations, we need not deal with the section 55 aspects of the application.
The Board therefore declares:
(i) that Devon Studio and Walkerville Printing Company Limited are associated business within the meaning of section 1(4) of The Labour Relations Act. They are a single employer for the purposes of the Act;
(ii) that Devon Studio and Walkerville Printing Company Limited are bound by the collective agreement entered into by the applicant and Commercial Printing Company, Curtis Company Limited and Devon Graphics on August 8, 1979;
(iii) that the bargaining rights of the applicant in respect of the employees of Devon studio continue in respect of Walkerville Printing Company Limited to the extent that its employees fall within the terms of the said collective agreement.
- The Board shall remain seized of this application in the event of any disagreement of the parties in respect of its interpretation or implementation.