Ontario Labour Relations Board

[1981] OLRB Rep. November 1680

2323-80-M International Union of Operating Engineers, Local 793, Applicant, v. Traugott Construction Limited, Respondent.

BEFORE: D. E. Franks, Vice-Chairman, and Board Members W. H. Wightman and W. F. Rutherford.

APPEARANCES: S.B.D. Wahl, E.A. Ford and G. Steers for the applicant; Paula M. Rusak and Jim Schwindt for the respondent.

DECISION OF VICE-CHAIRMAN D. E. FRANKS, AND BOARD MEMBER W. H.

WIGHTMAN; November 27, 1981

1. This is a referral of a grievance to arbitration under section 124 of the Labour Relations Act. The subject matter of the grievance alleges the violation of an alleged collective agreement between the applicant and the respondent on a job in Picton. However, the respondent employer in this matter has challenged the arbitrability of the grievance by way of a preliminary objection to these proceedings. The respondent employer objects to these proceedings on a number of grounds and the Board heard the evidence and representations of the parties on the matter of the arbitrability of this grievance.

2. The respondent employer in this matter, Traugott Construction Limited, (hereinafter referred to as Traugott), is a general contractor whose base of operations is the Kitchener area. The events through which the respondent challenges the arbitrability of this grievance occurred during the spring of 1980. At that time the respondent had four jobs, in what is roughly the Toronto area or in Board certification terms, Board Area 8. On some of these jobs Traugott was acting as a construction manager and on other jobs Traugott was acting as a general contractor. The events questioned, however, seem to be limited to one site only, that is the construction of a K-Mart and Loblaws Store in the Newmarket area. On the Newmarket job Traugott was acting as both construction manager and as a general contractor in that although most of the contracts were let over the signature of the purchaser of the construction, Traugott also had employees on the job. On Monday morning, March 18th a picket line appeared on the Newmarket site. There were three or four men on this picket line carrying signs which said "non union labour on this job" and "unfair contractor". There was nothing on the signs to identify who the picketers were or on whose behalf they were picketing, and the evidence of Mr. Schwindt, the general manager of Traugott, is that when he tried to speak to the picketers there was no communication with them. At this time there were about 40 to 50 construction workers on the job site. The effect of the picket line was to shut the project down. Some crossed the picket line but did not work, others didn't cross the line. In any event it is clear that a project with a fixed deadline came to a halt on March 18th.

3. The evidence of Mr. Schwindt is that in view of the picket line his first action was to call his head office in Kitchener. His second action was to phone the Toronto Central Ontario Building and Construction Trades Council (hereinafter referred to as the Building Trades Council). His evidence is that he spoke to a Mr. Michael Lloyd concerning the picket line. His evidence was that Lloyd's reply was that he didn't know who was picketing or why, but that he would use his offices to attempt to find out what the problem was. Apparently, Schwindt made an appointment to see Lloyd on March 20th. The work stoppage continued throughout the 18th and the 19th and the 20th. On the 20th, as arranged, Schwindt went to the offices of the Building Trades Concil to meet with Lloyd.

4. At the start of the meeting he asked Lloyd if he had found out anything concerning the picket. Lloyd's reply was that he said he didn't know who was picketing, however, he had found out that there was a non-union steel erecting contractor and a non-union plumbing contractor on the Newmarket project. Schwindt advised Lloyd that these were matters out of his control, that basically the owner had subcontracted the steel and in any event there was nothing that could be done about it at this point because the structural work was virtually completed. Schwindt was however surprised about the plumbing contractor since he was under the impression that the plumbing contractor was a union contractor. As a consequence, Schwindt phoned the plumbing contractor, a company called Dalton Mechanical, and then turned the phone over to Mr. Lloyd. It appears that some reference was made to another firm called Urban Mechanical 1979, however, the evidence of Schwindt was quite clear that all of the invoicing on the job was done to Dalton Mechanical and that the people on the job never changed as a consequence of the telephone conversation.

5. Things however did change on the job. Mr. Lloyd indicated that he was satisfied. Mr. Schwindt's evidence was that if Lloyd was satisfied he was satisfied. Work resumed later that day.

6. Normal operations continued until the 12th of May. That also was a Monday. On that morning three or four workmen appeared carrying picket signs, as a consequence of which the Newmarket job was again closed down. Mr. Schwindt had been warned by the electrical contractor on Friday that there was going to be trouble on the Monday morning. As a consequence, when he came to the job site on Monday morning he was armed with a camera in order to take pictures of the events. There was, however, one major difference between the events of May 12th and the earlier events in March. On this occasion there were about a dozen "gentlemen" dressed in business suits off the site around the perimeter of the job. Mr. Schwindt's evidence is that he went over to these gentlemen and attempted to talk to the gentleman he described as their "ring leader". He identified him as "ring leader" because he had been going from group to group. This person, Mr. Schwindt later came to realize was Mr. Dave Johnson, the business manager of the Building Trades Council. He asked Johnson what was going on and was told that Traugott had better clean up its act or "he would shut us down". At this time Schwindt also talked to a number of employees and was told by the employees that they had been told by their respective business agents not to report to work.

7. As mentioned earlier, Schwindt had been warned on Friday that there would be trouble on thejob on Monday. As a consequence of that information, he had telephoned Mike Lloyd on Friday afternoon. Lloyd had set up a meeting between Schwindt and Johnson on Monday morning at 10:00 a.m. in the Building Trades offices. Schwindt left the Newmarket job site and drove to the Building Trades offices where he met Mr. Johnson for the second time that morning. They retired to the council's board room where Johnson informed him that he was aware of all four of Traugott's jobs in the Toronto area and he would picket them all unless Traugott signed the working agreement (we shall discuss this document in detail later in this decision). Schwindt explained to Johnson that he didn't have the authority to sign such a document without consulting others, and arranged to meet again later that day. Schwindt went to Kitchener and met with various officers of Traugott. Later in the day he and the corporate secretary, Mr. Yatze, returned to the offices of the Building Trades Council.

8. In the afternoon meeting it is clear that Johnson went over the terms of the working agreement with both Schwindt and Yatze. It appears that Johnson would not allow any variation of the terms of the agreement, however, he was prepared to allow for exemptions for current non-union contractors working on current jobs. After some discussion it was agreed that Traugott would sign the agreement. It was however not signed that afternoon. Subsequently, an appendix was prepared and sent to Traugott, together with the agreement. The evidence is that Traugott attempted to alter some of the terms. This was sent back to Johnson which brought a follow-up call which reiterated that he couldn't allow changes and a new copy was sent to Traugott, it was signed and sent back. At this point Schwindt denies that Traugott ever received a copy of the agreement signed by the council. However, the evidence of Mr. Johnson is that such would have been sent in the normal course of events and we are prepared to accept the evidence of Mr. Johnson in this regard.

9. As a consequence, from the 13th of May on, work continued on the various Traugott jobs without incident.

10. The working agreement signed by Traugott is as follows:

THIS COLLECTIVE AGREEMENT made as of the 23rd day of May, 1980.

BETWEEN: TRAUGOTT CONSTRUCTION LIMITED,

9 Centennial Drive,

Kitchener, Ontario.

N2B 3E9

(hereinafter referred to as "the Company")

—and­—

TORONTO-CENTRAL ONTARIO BUILDING

AND CONSTRUCTION TRADES COUNCIL

(hereinafter referred to as "the Council")

The Company and the Council, on its own behalf and on behalf of its affiliated local unions (the "Affiliated Unions") agree each with the other as follows:

1. The general purpose of this collective agreement is to establish and maintain satisfactory relations with the Council, the Affiliated Unions and their members, the Company, its employees and any contractors and their employees who may be engaged in construction work at any project or job in which the Company is engaged in all sectors of the Construction Industry, within the geographic area hereinafter set forth; and, to establish and maintain satisfactory working conditions, hours of work, wages and other employee benefits on such projects or jobs.

2. The Company hereby recognizes the Council and the Affiliated Unions as the exclusive bargaining agent for all its construction employees engaged in all sectors of the Construction Industry, in the Counties of Northumberland, Peterborough, Victoria and Simcoe, the Provisional County of Haliburton (and the Geographic Townships of Lawrence and Nightingale), the District Municipality of Muskoka, the Municipality of Metropolitan Toronto, the Regional Municipalities of Durham, York, Peel and that portion of the Regional Municipality of Halton, East of Trafalgar Road (Regional Road No. 3).

3. The Company agrees to:

(a) Employ only members in good standing of the Affiliated Unions;

(b) Let or sublet contracts only to contractors who are in contractual relationship with the Affiliated Unions;

(c) Ensure and require that only contractors who are in contractual relationship with the Affiliated Unions shall be let or sublet any contracts or sub-contracts with respect to any of the subject construction work at any project or job in which the Company is engaged within the geographic areas described in Article 2 hereof, regardless of whether the Company has a contractual relationship or otherwise with any contractor or sub-contractor performing any work at such project or job.

4. The Company and the Council, on its own behalf and on behalf of the Affiliated Unions agree to:

(a) Recognize and be bound by the collective agreements made between or binding upon any of the Affiliated Unions on the one hand, and any employers' organization on the other hand ("the Collective Agreements"); and

(b) Without limiting the generality of the foregoing, specifically agree that all provisions relating to wages, hours of work and working conditions set forth in any of the applicable Collective Agreements shall be binding on the Company and the contractors referred to in Article 3 hereof. In the event that any of the terms and conditions of any of the Collective Agreements are altered, amended or renewed at any time during the currency of this collective agreement, the Company and the Affiliated Unions shall be bound by such alterations, amendments or renewals as if original parties thereto. The Collective Agreements are available for inspection by the Company or by the said contractors at the offices of the Council, located at Suite 402, 15 Gervais Drive, Don Mills, Ontario.

5. (a) Any failure by the Company or any of the contractors referred to in Article 3 hereto to comply with any of the obligations set forth in this collective agreement and the Collective Agreements referred to in Article 4 hereof, shall entitle the Council and! or its Affiliated Unions to grieve and invoke Section 1 12a of the Ontario Labour Relations Act.

(b) In the event that any contractor hereinbefore referred to fails to comply with any of the obligations described in this collective agreement and the Collective Agreements referred to in Article 4 hereof, then in addition to the remedy outlined herein, the Company shall forthwith upon the request of the Council terminate or secure the termination of any contract or sub-contract with the said contractor and thereafter, ensure and require that the said work be performed with members of the Affiliated Unions or that another contractor be engaged to perform the said work in accordance with the provisions of Article 3 hereto.

6. This collective agreement shall remain in force for a period of one (1) year from the date hereof and shall continue in force from year to year thereafter unless either party shall furnish the other with written notice of termination of or proposed revision of this collective agreement not less than sixty (60) days before the date of its termination or in any like period in any year thereafter; provided, however, that this collective agreement shall remain in full force and effect until completion of all jobs and projects that have been commenced during the operation of this collective agreement.

7. This collective agreement shall be binding upon the Company, its successors, assigns, substitutes and associated or related entities.

IN WITNESS WHEREOF the parties hereto have caused this collective agreement to be executed by their duly authorized representatives in that behalf as of the date and year first above written.

FOR THE COMPANY: FOR THE COUNCIL:

(Signed) Arthur Traugott (Signed) James “Dave” Johnson

President Business Manager

(Signed) J.M. Schwindt (Signed) James “Dave” Johnson

President Business Manager

ADDENDUM TO AGREEMENT

BETWEEN:TRAUGOTT CONSTRUCTION LIMITED

—and-­

TORONTO-CENTRAL ONTARIO BUILDING

AND CONSTRUCTION TRADES COUNCIL

The Council agrees to exclude from the terms and conditions of the agreement herein referred to, the sub-contractors listed in Schedule "A" for work on their respective projects, understanding, however, that all other work performed on said projects must meet with the terms and conditions of the Collective Agreement entered into between Traugott Construction Limited and the Toronto-Central Ontario. Building and Construction Trades Council.

SIGNED ON BEHALF SIGNED ON BEHALF OF

THE COMPANY THE COUNCIL

(Signed) Arthur Traugott (Signed) James “Dave” Johnson

President Business Manager

(Signed) J.M. Schwindt (Signed) Michael E. Lloyd

General Manager Business Representative

Date: May 23, 1980

SCHEDULE "A"

PROJECT: Zehrs Store and Plaza

LOCATION: Highway 47 south of Uxbridge, Ontario

SUB-CONTRACTORS: Cooksville Steel (Ed Belder)

Schwartz Roofing

Metcon - Misc. Iron

County Mechanical - H.V.A.C.

Musselman Plumbing

PROJECT: Syndicated Developments

LOCATION: South east corner of Davis Drive

and Yonge Street, Newmarket, Ontario.

SUB-CONTRACTORS: Cooksville Steel (Ed Belder)

Metcon - Misc. Iron

Brantco Asphalt Paving & Concrete - Curbs

Landscaping

PROJECT: Gateway Shopping Mall

LOCATION: Collingwood, Ontario

SUB-CONTRACTORS: Cooksville Steel (Ed Belder)

Kitchener Forging – Misc. Iron

Smith Peat Roofing

Collingwood Glass

Barrie Plastering

Reidel Painting

Anderson & Hiltz – Paving

County Mechanical – Plumbing & H.V.A.C.

Date: May 23, 1980

11. It should be noted that at the time in question on the Newmarket job, Traugott apparently employed a number of carpenters and labourers and these carpenters and labourers were supplied by and worked pursuant to, apparently, a collective agreement with the Kitchener locals of the carpenters and labourers unions, these being the locals with which Traugott had a collective bargaining relationship through the Grand Valley Construction Association. On the other hand from the evidence of Dave Johnson it is clear that the Building Trades Council did not attempt to sign up of the employees of either Traugott or the subcontractors in March, April or May, 1980. Indeed, the evidence of Johnson was to the effect that picketing such as described above was the common practice in order to obtain an employer's signature on the working agreement, and indeed, Johnson's answer in response to the question as to which trades were actually picketing the job, was simply that the carpenters and ironworkers were picketing the job.

12. The above events took place on the 12th and 13th of May. The document resulting from these events is dated May 23, 1980. As a consequence of Traugott signing the working agreement, the minutes of the meeting of the Building Trades Council which took place on June 9, 1980, indicate that "Traugott Construction Kitchener" had signed the "overall agreement". Further, it is the practice of the Building Trades Council to publish a list of firms which have signed overall working agreements with the Council and in a list dated September 30, 1980, Traugott Construction appears as one of the companies that is signatory to that agreement. This list is updated regularly and is distributed to the affiliates of the Council and various contractors.

13. On the attached Schedule "A" appended to the working agreement, one of the projects listed is the Gateway Shopping Mall located in Collingwood, Ontario. With regard to that project one of the exempted subcontracts is Barrie Plastering. The evidence of Mr. Schwindt is that some time in June of 1980 he had discussions with Mr. Lloyd of the Building Trades Council concerning this job. It appears that there was some problem as to whether the company performing the contract was Barrie Plastering or Al Smith. As a consequence, however, Schwindt decided that rather than subcontract the work to Barrie Plastering he subcontracted the drywall contract to a firm called Losereit Sales and Service, a company that has a collective agreement with the Carpenters' Union, a company which he knew was in good standing with the Building Trades Council and which would not cause a problem on the Collingwood job site.

14. On the foregoing facts the respondent requested the Board to find that there is no collective agreement between the applicant trade union and the respondent. The respondent argues first, that the document was never executed. However, as noted above, we find that as a matter of fact the document was executed by both Traugott and the Building Trades Council. Similarly, the respondent argued that when the document was signed there were certain misrepresentations made concerning the document itself by the Building Trades Council. Again, as a matter of the evidence before the Board we are of the view that there were no such misrepresentations made by either Mr. Johnson or anyone from the Building Trades Council concerning the effect of that document. However, of more concern are the two other arguments put forth by counsel for the respondent, namely, that there was no collective agreement because (a) the document was signed under duress or (b) because at the time of signing there were no employees, i.e. operating engineers in the bargaining unit giving rise to the grievance in the present case.

15. Turning first to the argument of the respondent that the working agreement was signed under "duress" or "economic duress", it is clear on the evidence that the effect of the work stoppages both in March and in May put a substantial amount of economic pressure on Traugott. The evidence in this regard was clear that Traugott itself had outstanding money in the four projects involved. Further, the Newmarket job was a particularly vulnerable job because it had a fixed completion date and was being performed for people who were "good customers of Traugott". The respondent thus argues that when work stopped Traugott had little or no choice but to sign whatever piece of paper it was necessary to sign in order to get the job back to work. In this regard, the respondent argues that the Board ought to render void an agreement signed under this kind of pressure.

16. First it should be noted that the legal definition of "duress" which is sufficient to void a contractual obligation has always been limited by the courts to the fear of physical harm to either oneself or to one's family. In the present case, therefore, since there is no threat or apprehension of any physical violence there is no duress under the Common Law.

17. The respondent, however, urged the Board to adopt a theory of "economic duress" arguing that in effect the harm caused by the disproportionate financial losses which Traugott stood to suffer from the strike constitutes a form of duress sufficient to void the contract. In the context of the Labour Relations Act we are not prepared to develop a theory of economic duress as suggested by the respondent. Clearly, the Labour Relations Act by its very nature deals with activity causing "economic duress". To develop a theory of "economic duress would involve an evaluation of the economic effect of certain types of conduct. This we are not prepared to do in the present case.

18. In effect the Labour Relations Act deals with economic activity as either lawful or unlawful collective action. Thus, in the context of the Labour Relations Act, the respondents argument concerning "economic duress" becomes one of the effects of unlawful activity on the signing of the working agreement. Indeed, the respondent also framed its argument in terms of alleged violations of the Labour Relations Act. That is, that the Board should declare void a collective agreement or recognition document signed as a consequence of a violation of the Labour Relations Act, in particular sections 74 and 76. These sections read as follows:

"74. No trade union or council of trade unions shall call or authorize or threaten to call or authorize an unlawful strike and no officer, official or agent of a trade union or council of trade unions shall counsel, procure, support or encourage an unlawful strike or threaten an unlawful strike."

"76.-(l) No person shall do any act if he knows or ought to know that, as a probable and reasonable consequence of the act, another person or persons will engage in an unlawful strike or an unlawful lock-out.

(2) Subsection (1) does not apply to any act done in connection with a lawful strike or lawful lock-out."

In view of the facts recounted above, was there a violation of either or both section 74 or section 76?

19. On the facts in this matter it is clear that in setting up the picket line which ultimately led to the working agreement, the Building Trades Council through Mr. Johnson violated both section 74 and section 76 of the Act. The picketing and strike at the Newmarket job site commenced on the morning of May 12th. Counsel for the applicant submitted a "No Board Report" from the Minister of Labour dated May 9, 1980. Since it is clear on the evidence that Traugott had a bargaining relationship with the Carpenters Union through its membership in the Grand Valley Construction Association there is no possible way that the strike of the carpenters, when they refused to work on May 12th, could have been within the time limits for a lawful strike set out in section 72 of the Act. It is therefore clear that the carpenters employed by Traugott were on an unlawful strike as of May 12th. It therefore follows that Mr. Johnson, on behalf of the Building Trades Council, "counselled, procured, supported or encouraged an unlawful strike" on that Monday morning. Further, there was also a violation of section 76 in that he new or ought to know that a reasonable consequence of his act that morning would be that the carpenters employed by Traugott would engage in an unlawful strike. In fact, Johnson's intent was quite clear. He intended to "close down Traugott's jobs" until Traugott signed the working agreement. There is, thus, no question on the evidence that Johnson set out on a course which included the violation of section 74 and 76 in order to obtain Traugott's signature on the working agreement.

20. In fact, it is clear that Johnson intended to go outside of the orderly processes of the Labour Relations Act and through a strike which was unlawful, obtain adherence to the Building Trades Council working agreement. In such circumstances, the questions which arise are, can the Board remedy the consequences of such unlawful conduct? Further, if the Board can remedy such conduct, what is the appropriate remedy which the Board can issue? Counsel for the respondent employer could cite no case in which the Board had struck down a collective agreement made as a consequence of a recognition strike. Nor could the Board find such a case.

21. The present case is a referral of a grievance under section 124 of the Labour Relations Act. As such the Board sits as an Arbitration Board to hear and to adjudicate upon grievances under a collective agreement. Counsel for the applicant takes the position that the Board can only act as an Arbitration Board and exercise the powers which exist in such Arbitration Boards. We cannot accept such a narrow construction of the Board's powers in these circumstances. Indeed, the Board has in numerous section 124 cases, applied other powers and other provisions of the Labour Relations Act, for example, section 1(4) and section 63. (For a discussion of this point, applying still the provisions of the Labour Relations Act, see J. G. Rivard Limited [1980] OLRB Rep. July, 1009.)

22. In any event, we are not convinced that even if we were limited to those powers exercised by a Board of Arbitration under a collective agreement as required by section 44 of the Act, that the result would be different in the present case. It would be open to such a tribunal to decide whether a grievance is arbitrable by just determining if there is a valid collective agreement in existence between the parties. (See Carpenters District Council of Toronto and Vicinity and Engineering Structures and Components Limited, 1978 CanLII 1499 (ON HCJ), 19 O.R. (2d) 445; 85 DLR (3d) 443 (Div. Ct.).)

23. What then is the appropriate remedy to apply in a situation where a collective agreement or recognition agreement arises as a consequence of unlawful conduct? Counsel for the respondent has asked the Board to render the agreement void. That is, that the Board should declare that the working agreement between Traugott and the Building Trades Council, having been signed as a consequence of a violation of the Act should be declared void and hence unenforceable. While it may be that the Board could in an application under section 89 of the Act develop such a remedy, we are of the view that we cannot go that far in the present case. Indeed, we note that such a proceeding under section 89 would directly involve the Building Trades Council as a party whereas in the present referral under section 124 the Building Trades Council is not a party. We are therefore of the view that in the course of these proceedings, this Board cannot declare the working agreement void. We can only, in the circumstances of the present case, decline to give effect to the working agreement. That is, find that there is no collective bargaining relationship between the applicant and the respondent, such as would entitle the Board to hear the referral of a grievance under section 124 of the Act.

24. Counsel for the applicant argued that the respondent, having signed the working agreement, could not subsequently challenge its validity. He argued that where the respondent was faced with a work stoppage the appropriate remedy for such a work stoppage is section 135 of the Act. Counsel thus argued that the respondent made a distinct choice at the time of the work stoppage. The respondent could have brought a section 135 complaint to direct that the picketing cease, however, the respondent, for whatever reasons, having chosen not to do that but rather to sign the working agreement was now estopped from questioning the validity of that working agreement. We cannot agree with this argument by counsel for the applicant. If signing the working agreement ends what is patently an illegal work stoppage, then the conduct of the respondent is simply mitigating as much as possible the consequences of the illegal activity of the picketers. We see no reason why the respondent should be required to undergo the delays inherent in an adjudication directing the picketers to cease their illegal conduct.

25. All that remains in the present case is to decide whether in the circumstances of this case, the Board should refuse to recognize the fruits of the working agreement obtained through unlawful conduct? Clearly, the respondent did not complain after the agreement was signed but proceeded to finish the various jobs which it had going in the Toronto area at that time. In view of the pattern of two work stoppages prior to the signing of the working agreement, such a reaction by the respondent is clearly understandable. All the respondent did was wait until the present applicant attempted to rely on the working agreement as a valid document, and then the respondent raised the issue of its illegality.

26. Further, in the circumstances of the present case, it is not open to the applicant to argue that the respondent accepted the working agreement as valid. The applicant did not and cannot show that the conduct of Traugott was such that the Building Trades Council or its affiliated members could reasonably believe that Traugott accepted the working agreement. The appendix to the working agreement set out in paragraph 10 above makes certain exemptions to its application. Given such extensive exemptions, the working agreement had no effect on Traugott's conduct until the jobs listed therein were completed. Simply put, it would be impossible for anyone to tell whether or not Traugott was either complying with the working agreement or was refusing to comply with the working agreement on the basis of Traugott's conduct on those jobs. It was not until the job which gives rise to the present grievance commenced, that the effect of the working agreement was called into question. Indeed, Traugott's reaction to a call from the Building Trades Council concerning the Collingwood job site, (see paragraph 13 above) is consistent with the view that Traugott was not going to antagonize the Building Trades Council until the jobs purportedly affected by the working agreement were finished. In these circumstances, therefore, it is not open to the applicant to say that either the Building Trades Council or its affiliates relied upon the conduct of Traugott, subsequent to the signing of the working agreement, as showing that Traugott did not contest the validity of the working agreement. We wish to emphasize, however, that had Traugott performed a positive act to indicate that it had accepted the working agreement, the result in the present case would have been different. Thus, had Traugott accepted the terms of the working agreement, it could not later deny such an acceptance. In the present case, however, there was no evidence of such a positive act of acceptance.

27. For the foregoing reasons, we find that the working agreement executed by Traugott with the Building Trades Council does not give the applicant any bargaining rights for employees of Traugott because it was signed as a consequence of the unlawful conduct of the Building Trades Council. That being the case, there is no document upon which the applicant can rely to establish that it has bargaining rights for the employees of Traugott. For those reasons, the present application is dismissed.

28. In view of the foregoing result, it is not necessary for us to deal with the second argument raised by counsel for the respondent concerning the effect of recognition of employees at a time when it is alleged that there are no employees in a bargaining unit.

DECISION OF BOARD MEMBER W. F. RUTHERFORD;

1. In May, 1980 Traugott signed the working agreement with the Toronto Central Ontario Building and Construction Trades Council. In June, 1980 Traugott changed to a Plastering Sub-Contractor known to be a contractor recognized by the council, thereby leaving the impression to the Building Trades Council and its affiliates that Traugott had accepted the working agreement with the exemptions negotiated between the two parties.

2. Traugott should not be allowed to now plead he signed under duress months later when he did not charge the Building Trades Council of wrong doing until a grievance was submitted on the Piction job. I would have allowed the grievance to proceed to arbitration.