Operative Plasterers' and Cement Masons' International Association, Local 598 v. Labourers' International Union of North America, Local 183, 1981 CanLII 1012

Operative Plasterers' and Cement Masons' International Association, Local 598 v. Labourers' International Union of North America, Local 183

0135-80-R Operative Plasterers' and Cement Masons' International Association, Local 598, Applicant, v. Labourers' International Union of North America, Local 183, Respondent, v. Underground Services Limited, Intervener

BEFORE: D. E. Franks, Vice-Chairman, and Board Members J. A. Ronson and C. A. Ballentine.

APPEARANCES: L. Arnold for the applicant; S. Wahl for the respondent; W J. McNaughton for the intervener.

DECISION OF VICE-CHAIRMAN, D. E. FRANKS, AND BOARD MEMBER J. A. RONSON; July 20, 1981

1. This is an application for termination of bargaining rights made under section 52 of The Labour Relations Act. It is one of a series of cases which arise from the same set of facts; a section 79 case, Board File No. 0134-80-U and a section 112a referral of a grievance, Board File No. 0394-80-M arise from these facts.

2. At the commencement of these proceedings, counsel for the respondent raised two preliminary objections to the application for termination. Namely, that the applicant does not have the status to make an application under section 52 because it does not represent employees in the bargaining unit, and secondly, because an application under section 52 must be made within the first year of the first collective agreement between the parties. The applicant claims to represent the employees affected by this application by virtue of two documents, one dated July 27, 1978 and another dated May 11, 1979. By decision of this Board dated July 11, 1980, the Board allowed the applicant, in this termination proceeding, to adduce evidence concerning a latent ambiguity in these two documents.

3. The document dated July 27, 1978, is in the form of a standard area collective agreement between the General Contractors Section of the Toronto Construction Association and Local 598 of the Operative Plasterers' and Cement Masons' International Association of the United States and Canada. It was signed on behalf of Underground Services Limited by Mr. G. H. Moreau, Area Manager. That collective agreement contains the following recognition clause:

ARTICLE 3— RECOGNITION

(a) The Association recognizes the Cement Masons' Union, Local 598 as the sole and exclusive bargaining agent for its employees engaged in cement finishing work as defined herein on the job site in the Industrial, Commercial and institutional Sector and only members of the Union will be employed to do any and all cement finishing work as defined in Article 9 of this Agreement. (emphasis added)

The document dated May 11, 1979, reads as follows:

VOLUNTARY RECOGNITION AGREEMENT

Between:

OPERATIVE PLASTERERS' AND CEMENT MASONS'

INTERNATIONAL ASSOCIATION, LOCAL 598

(hereinafter referred to as the UNION)

and UNDERGROUND SERVICE LIMITED (hereinafter referred to as the EMPLOYER)

THE EMPLOYER hereby recognizes THE UNION as the exclusive Bargaining Agent of its employees in the Bargaining Unit described as follows:

All working foremen, journeymen and apprentice cement masons and water-proofers engaged in the industrial, commercial and institutional sector of the Construction Industry in Ontario Labour Relations Board Area(s) Number(s)

Dated this 11 day of May 1979

OPERATIVE PLASTERERS' AND CEMENT MASONS' INTERNATIONAL ASSOCIATION, LOCAL 598 PER: (signed) Giovanni Balanzin (signed) C.H. Moreau Business Manager EMPLOYER Local 598 Area Manager

4. The employees affected by this application for termination are employed by Underground Services on the refurbishing of the concrete columns which support the Gardner Expressway in the downtown Toronto area. It appears that the concrete columns have been deteriorating due to salt from the roadway above. As a consequence, over a period of years, the columns are being systematically refurbished. The refurbishing work involves chipping away the concrete and in some cases replacing the reinforcing steel which also in corroded. These are then refinished with a material which is prepared on the ground and forced into place using compressed air. A portion of the work was done in the summer of 1978, another portion done in the summer of 1979 and then a third portion in the summer of 1980. During the 1978 and 1979 seasons, the men performing the work were supplied by the applicant, Operative Plasterers Union. During 1980 the employees were supplied by the respondent, Labourers Union Local 183.

5. The Board heard the detailed evidence of Mr. John Balanzin, the Business Manager of Local 598, concerning the signing of the two documents referred to in paragraph 3 above. The standard agreement dated April 14, 1977, was signed by Mr. Balanzin and Mr. G. H. Moreau on July 27, 1978. It appears that Underground Services had commenced work on the Gardner and Mr. Moreau had called the Union Local to ask if the union would supply men to the job site. As a consequence, men were sent from the union's hiring hall to the job. The following day Mr. Balanzin visited the job site where he and Mr. Moreau signed the agreement. There appears to have been no discussion about the language of the agreement, but it is also clear that that collective agreement was applied to the job during the summer of 1978.

6. The other document, the one dated May 11, 1979, arose as a consequence of the provincial agreement relating to cement masons and water roofers. That provincial agreement was signed in October 1978. At the time it was signed Local 598 had supplied all of the men on the job at the Gardner. It is not in dispute that the only job that Underground Services had during 1978 and 1979 was the Gardner Expressway job. Nor is it in dispute that during the summer of 1978 and 1979 the documents referred to were applied as the collective agreements for the employees of Underground Services Limited at the Gardner Expressway project.

7. Two points from the evidence of Mr. Balanzin should be emphasized. The first is that the documents tendered as collective agreements are the basic agreements for cement masons and water roofers signed by Local 598. That is, the union does not normally make separate collective agreements for sectors other than the industrial, commercial and institutional sector. Secondly, although Balanzin stated in his evidence that the parties intended the agreement to apply to the work on the Gardner Expressway (and indeed they did apply it to the Gardner Expressway), it is clear that the parties never addressed the problem specifically as to whether the work in question fell within the language of the recognition clause of the two documents. That, in turn, limits recognition to the industrial, commercial and institutional sector of the construction industry.

8. In view of the foregoing evidence, the question arises, has the evidence established a latent ambiguity with respect to the collective agreements referred to in paragraph 3, such that this Board can admit extrinsic evidence to vary the clear language of the document themselves? We are of the view that the evidence does not establish such a latent abiguity. The language of both the May 1979 document and the previous area collective agreement is quite clear in referring to the industrial, commercial and institutional sector. To establish a latent ambiguity, the applicant trade union would have to demonstrate, for instance, that by common practice, the parties considered work by cement finishers on those columns as part of the industrial, commercial and institutional sector. Unfortunately, for the applicant, the evidence does not go that far. The fact that the agreement was applied, or even that the parties thought it applied, in the absence of some justification for this opinion does not create a latent ambiguity in language that is otherwise crystal clear. Indeed there are numerous Board cases which indicate that the mere application of a collective agreement to a particular situation does not lead the Board to the conclusion that the agreement applies, in the face of clear language, to the contrary.

9. Indeed, we should note what is perhaps obvious to everyone, that the term "industrial, commercial and institutional sector" in relation to construction industry collective agreements is a term defined in The Labour Relations Act. It would take extraordinary evidence to demonstrate that when the parties use such a term and mean something other than that contemplated by The Labour Relations Act, that they are being "latently" ambiguous. In fact, one gets the impression from Mr. Balanzin's evidence that the document of May 1979 arose precisely because the term industrial, commercial and institutional sector is a term in The Labour Relations Act relating to the provincial bargaining sections of the Act.

10. Having failed to establish a latent ambiguity we are left with the clear language of the recognition provisions in the two documents in question. It is clear to us that the employees affected by this application, whatever sector they are working in, they are not working in the industrial, commercial and institutional sector of the construction industry (they are probably working in the heavy engineering sector of the construction industry but it is not necessary to make that finding in the present case). In view of the foregoing, we are therefore of the view that the applicant does not have the status to make the present application for termination since it does not represent any employees affected by the application.

11. That being the case that is sufficient to dispose of the present application and it is not necessary for us to deal with the argument of whether or not the application is timely. In view of the foregoing reasons, the present application is dismissed. With respect to the two remaining applications, the section 79 application, Board File No. 0134-80-U and the section 112a reference, Board File No. 0394-80-M in view of our finding that the collective agreements do not cover employees working on the Gardner Expressway columns, we should like the applicant in those cases to show cause why we should proceed with the applications rather than dismissing them forthwith.

DECISION OF BOARD MEMBER C. A. BALLENTINE;

1. It is difficult for me to disagree with the majority decision, "that the applicant has failed to establish a latent ambiguity because of the clear language of the recognition provisions in the two documents in question." However, I am not satisfied that true justice has been served by this technical decision of the Board.

2. ln view of the Board's decision that the work in question is not within the I.C.I. sector of the construction industry, it is unlikely that the applicant will continue with its section 79 and section 1 12a proceedings.

3. Underground Services Limited approached the Applicant to supply cement masons in 1978 and in good faith, signed collective agreements with the Applicant in 1978 and 1979. Members of the Applicant were employed by the Company under the terms of those collective agreements.

4. In 1980, the Respondent, Local 183 of the Labourers' International Union of North America, and the Company came to an understanding, whereby a 1977 Sewer and Watermain Agreement with a cross over clause to include heavy construction would be applicable to the work on the Gardner Expressway. Local 183 supplied its members in 1980 to the Company to perform the identical type of work which had been performed by the members of the Applicant Union in 1978 and 1979.

5. It is my position that the Company in good faith entered into a contractual relationship with Local 598 of the Operative Plasterers and Cement Masons International Association in 1978 and subsequently renewed that contractual relationship in 1979. The Company should not now be allowed to escape from its obligations through a technicality. However, as previously mentioned, it is difficult to see how the applicant could now succeed in its section 79 and 112a proceedings, although sections of the Act may be relied upon by the Applicant Union to obtain a just result.