0664-81-M Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftsmen and International Union of Bricklayers and Allied Craftsmen, Local 23, Applicants, v. Fred Jantz Masonry Construction Company Limited, Respondent.
BEFORE: N. B. Satterfield, Vice-Chairman and Board Members J. A. Ronson and C. A. Ballentine.
APPEARANCES: S. B. D. Wahl, D. DeMonte and H. Kroening for the applicants; Mark Conini and Fred Jantz for the respondent.
DECISION OF THE BOARD; September 29, 1981
The applicants have referred a grievance concerning the interpretation, application, administration or alleged violation of a collective agreement to the Board for final and binding arbitration pursuant to section I 12a of The Labour Relations Act.
The applicant's grievance contains allegations that the respondent has violated certain specific articles of a collective agreement, which the applicant claims is binding on the respondent, and which deal with such matters as union security, wages and welfare benefits, etc. The grievance may be characterized as alleging that the respondent is ignoring the collective agreement altogether.
The respondent neither replied to the grievance when it was served on it by the union nor filed a reply with the Board as required by section 104(1) of the Board's Rules of Procedure. At the hearing into the referral, counsel for the respondent disputed the Board's jurisdiction on grounds that the applicants have no collective agreement with the respondent, or in the alternative, if there was a collective agreement, it applied only to the industrial, commercial and institutional sector of the construction industry. Counsel contended as well that, if ever the applicants have held bargaining rights for employees of the respondent in the past, these rights were improperly obtained and in any event had been abandoned. Finally, counsel advised the Board that it would be arguing that the grievance was barred by operation of the doctrines of laches and estoppel. While counsel for the applicants admitted that the challenge to the Board's jurisdiction was procedurally proper, he contended that, since the respondent had not filed a reply to the referral, the Board should apply section 47(4) of its Rules of Procedure and refuse the respondent's assertion that bargaining rights were improperly obtained. The Board ruled that it would hear evidence and argument on the threshold issue of whether the respondent was a party to, or bound by, a collective agreement with the applicants or to which the applicants were bound and, if need arose, would deal with other issues in the course of determining the threshold issue.
In the course of the proceedings, respondent counsel advised the Board that he would not pursue the argument that the applicants had abandoned their bargaining rights. The evidence before the Board not only would not support a finding of abandonment, it does not support the claim that the applicants obtained bargaining rights for employees of the respondent improperly and does not provide any basis for operation of the doctrines of laches and estoppel. Therefore the issues before the Board are whether the respondent and the applicants are bound to a collective agreement thus giving the Board jurisdiction to hear the applicants' grievance and determining the respondent's liability, if any.
The applicants are relying on a collective agreement entitled Provincial Agreement for Ontario Bricklayers, Stone Masons and Plasterers, effective May 1, 1980 to April 30, 1982, between the International Union of Bricklayers and Allied Craftsmen and the Ontario Provincial Conference of the International Union of Bricklayers and [Allied] Craftsmen and The Masonry Industry Employers Council of Ontario. The parties to this agreement are bargaining agents which have been designated by the Minister of Labour pursuant to section 127(1) of the Act. This agreement is the successor to one between the same parties which was in effect from May 1, 1978 to April 30, 1980, which, in turn, was the successor agreement of two earlier ones between the Ontario Provincial Conference of the International Union of Bricklayers and [Allied] Craftsmen ("the Provincial Conference") and The Masonry Industry Employers Council of Ontario ("MIECO"). They were in effect from May 24, 1976 to April 30, 1978 and May 1, 1973 to April 30, 1976 respectively. At the time of the May 1, 1973 agreement, the Provincial Conference was known as the Ontario Provincial Conference of the Bricklayers, Masons & Plasterers International Union of America. The evidence before the Board establishes clearly that the current collective agreement and its immediate predecessor agreement not only are provincial agreements within the meaning of clause of section 125 of the Act, but that they are agreements which, at least within the geographic jurisdiction of the International Union of Bricklayers and Allied Craftsmen, Local 23, also pertain to all sectors of the construction industry, as did the two earlier agreements between the Provincial Conference and MIECO.
On August 27, 1973, the respondent and the Provincial Conference signed a collective agreement of a type commonly referred to in the construction industry as a short form agreement. This agreement did two things. First, the agreement bound the respondent and the Provincial Conference to the terms and conditions of the collective agreement between the Provincial Conference and MIECO then in effect, that is the collective agreement effective May 1, 1973 to April30, 1976. Second, it granted voluntary recognition to the Provincial Conference as bargaining agent for all of the respondent's employees who would fall within the bargaining unit described in that collective agreement in the following terms: ". . . Bricklayers, Stonemasons and Plasterers, their respective Apprentices, Improvers and Working Foremen [employed by the respondent] in the Province of Ontario described in Appendix "B" hereto.". Appendix "B" describes the geographic scope of the organizing jurisdiction of each local union member of the Provincial Conference and for all practical purposes encompasses the Province of Ontario. Thus the Provincial Conference acquired bargaining rights for the aggregate area comprised of all geographic, organizing jurisdictions of its local unions. Those bargaining rights have not been terminated by this Board between the making of that agreement and this referral and they have not been abandoned, as respondent counsel has acknowledged and the Board has determined. Not only have the bargaining rights flowed through to the making of this referral but, in respect of the industrial, commercial and institutional sector of the construction industry, the Board is satisfied on all the evidence before it that the respondent has been! is bound to the four consecutive collective agreements referred to above. There is no doubt, therefore, that the Board has jurisdiction to hear this matter in respect of the industrial, commercial and institutional sector. It is not clear, however, whether the Board has jurisdiction to deal with this referral insofar as it purports to include other sectors because, while the Provincial Conference has bargaining rights for any of the respondent's employees employed in the trades referred to above, it is not clear that the Provincial Conference and respondent are bound to the current collective agreement insofar as it applies to sectors other than the industrial, commercial and institutional sector. The facts in respect of that issue are set out below.
For the purpose of ease and clarity of reference, each of the two collective agreements between the two designated bargaining agencies and between the Provincial Conference and MIECO will be referred to as a "Provincial Agreement" and the short-form collective agreements between the respondent and the Provincial Conference will be referred to as a "short-form collective agreement". The short-form collective agreement between the Provincial Conference and the respondent signed August 27, 1973 contains, inter alia, the following wording:
"2. The Employer hereby recognizes the Union as the Bargaining Agent of all of its Employees coming within the Bargaining Unit described in Article 1 of the Collective Agreement referred to in Paragraph 3 hereof.
Except as may be otherwise provided for herein, the Employer and the Union hereby agree to recognize, observe and be bound by all of the terms, conditions, provisions and appendices set forth in and forming part of a Collective Agreement made the 1st Day of May, 1973, between the Union and the Masonry Industry Employers Council of Ontario and their Member Contractors (hereinafter called "the Agreement") as if original parties thereto. A copy of the Agreement is attached hereto and marked Schedule "A".
(a) All of the terms, conditions and provisions hereof (including those set forth in and forming part of the Agreement) both monetary and non-monetary are effective and operative as and from the 1st day of May, 1973 and shall remain in effect until April 30, 1976, and thereafter from year to year unless written notice be given not more than 120 days and not less than 60 days before the expiry date (or its anniversary, as the case may be) by the party desirous of change. On receipt of such written notice, the parties to this Collective Agreement shall convene a meeting within 30 days and endeavour to reach an agreement.
(b) Notwithstanding the foregoing, it is agreed that upon the parties to the Agreement entering into a renewal thereof, then the parties hereto shall be bound by the same as if original parties and the Employer shall execute such documents as may be presented to it by the Union in order to confirm and acknowledge such intention.
- In the event of any of the terms, conditions, provisions and appendices of the Agreement are in any way altered, added to or amended by the parties thereto, then the parties to this Collective Agreement shall be bound by the same as if original parties thereto and the Employer shall execute such documents as may be presented to it by the Union in order to confirm and acknowledge such intention.
The Provincial Conference gave the respondent a copy of the Provincial Agreement, referred to in the short-form collective agreement as "the Agreement", which was in effect at the time. Prior to the expiry date of the Provincial Agreement, the Provincial Conference gave notice of its desire to bargain to the respondent. The evidence does not establish whether the Provincial Conference saw itself as giving notice under the terms of the short-form collective agreement or the Provincial Agreement. In any event, it concluded a new Provincial Agreement with MIECO and in due course it had the respondent sign a new short-form collective agreement containing the same language as quoted above, except where it refers to the period of operation of the Provincial Agreement. The respondent is named in Appendix "A" of that Provincial Agreement. The respondent is named in Appendix "A" of that Provincial Agreement which, according to the applicant, lists the names of contractors who are members of MIECO together with those contractors who are not members and are signed to short-form collective agreements.
- Prior to the April 30th, 1978 expiry date of the Provincial Agreement which had come into force on May 24, 1976, the Provincial Council again gave notice of its desire to bargain to the respondent. This was done in the form of a letter addressed to the respondent, dated January 31st, 1978 and sent by registered mail on February 2nd, 1978. The contents of the letter are as follows:
"In accordance with Article 2 (Schedule "A") of the Collective Agreement between your Company and The Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftsmen, effective May 24, 1976 April 30th, 1978, which reads as follows: -
Article 2 — Conditions of Amendments and Duration of Agreement
"This Agreement shall be in effect from May 24th, 1976, until April 30th, 1978, and thereafter from year to year unless written notice be given not more than 120 days before the expiry date (or its anniversary as the case may be) by the Party desirous of change. On receipt of such written notice the Parties to this Agreement shall convene a meeting within thirty days and endeavour to reach an agreement".
Please be advised that The Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftsmen will be seeking changes and/or amendments to the aforementioned Collective Agreement.
We trust you will give this matter your immediate attention in compliance with the above-mentioned Article 2.
Please advise by return mail which course you will be following:-
(a) Will Bargain on your own behalf.
(b) Will assign bargaining rights to M.I.E.C.O. (Masonry Industry Employers Council of Ontario).
Should you decide in favour of course (b), please follow instructions that will follow from M.I.E.C.O. (Masonry Industry Employers Council of Ontario)."
The wording in the letter which appears within quotation marks under the heading "Article 2 — Conditions of Amendments and Duration of Agreement" is the wording of Article 2 of the Provincial Agreement which expired April 30, 1978. The other three Provincial Agreements use the same language, except the two latter ones refer to the duration of the agreements as continuing bi-annually rather than from year to year, in order to conform with the requirement of the Act that Provincial Agreements in respect of the industrial, commercial and institutional sector, be for two year terms expiring on April 30th in each even year.
It was the applicants' evidence that, when a Provincial Agreement was about to expire, the Provincial Conference served notice of its desire to bargain on MIECO and on the individual contractors who were signed to short-form collective agreements with the Provincial Conference. MIECO supplied the Provincial Conference with the names of the contractors who were its members and on whose behalf it was bargaining and the Conference in turn supplied MIECO with the names of the contractors who were signed to short-form collective agreements. The respondent's name did not at any time appear on the lists supplied by MIECO. It was not at any time material to this reference a member of MIECO and there is no evidence that it ever assigned its bargaining rights to MIECO. In fact, the evidence supports the opposite inference that the respondent did not assign its bargaining rights to MIECO. During the negotiating of the Provincial Agreements, the Provincial Conference and MIECO would settle the list of employers who would be bound by the agreement and these would then be set out in Appendix "A". The respondent's name appears in Appendix "A" in the three Provincial Agreements beginning with the one which expired April 30th, 1978. When a new Provincial Agreement was settled, the Provincial Conference would send it to each contractor which had been bound to the prior one along with a new short-form collective agreement to be signed by the contractor. In most instances the business agents of the local unions would call personally on the contractor to get his signature on the new short-form agreement. The evidence of Mr. Danny DeMonte, President of the Provincial Conference, was that, after the 1978-1980 Provincial Agreement was settled, the respondent was not required to sign a new short-form collective agreement because by then MIECO had been designated as the employer bargaining agency for those employers for whose employees the Provincial Conference, its locals and the International Union held bargaining rights. Beginning with the 1978-80 Provincial Agreement, MIECO also assumed responsibility for sending copies of the new agreement to all of the contractors listed in Appendix "A", not just to its own members.
Clause (b) of Article I of the current Provincial Agreement defines MIECO's bargaining rights in the following terms:
"The Union recognizes [The Masonry Industry Employers Council of Ontario] as the exclusive bargaining agent for all members as outlined in Appendix "A" and any other Employers desirous of entering into a contractual agreement with the Union in the geographic areas as described in Appendix "B" hereto.".
(emphasis added)
Appendix "B" sets out the geographic jurisdictions of the local unions bound to the Provincial Agreement. This identical language appears in the other three Provincial Agreements.
Fred Jantz, president of the respondent, testified that some time in February 1978 he went to the offices of Local 23 in Sarnia, Ontario and orally notified three persons in the office whom he named to the Board and whom he believed to be officials of the Local, that he was no longer a member of the union and from then on was not going to be a union contractor. The union denies that this event ever occurred. For reasons which will be apparent later in the decision, it is unnecessary for the Board to resolve that difference.
The Board heard evidence that the respondent employed persons on a project which would appear to fall within the scope of the current Provincial Agreement insofar as it relates to the industrial, commercial and institutional sector without regard for the applicable terms of that Agreement.
The applicants contend that, by the respondent's act of signing the two short-form collective agreements with the Provincial Conference, the respondent made an irrevocable assignment of bargaining rights to MIECO. They contend further that, when the respondent signed the second of these two documents following the renewal of the Provincial Agreement which was effective May 24, 1976, it was fulfilling the obligation contained in paragraph S of the extract from the first short-form agreement quoted above. Counsel for the applicants argues that it is because of the irrevocable assignment of bargaining rights to MIECO created when a contractor signs the short-form collective agreement that the Provincial Conference and MIECO followed the practice in collective bargaining of first exchanging lists of contractors at the commencement of bargaining and then incorporating those lists into Appendix "A" of the renewed Provincial Agreement at the conclusion of collective bargaining.
The applicants' contentions are not supported by the facts before the Board. The two short-form collective agreements which the respondent signed contain no specific assignment of its bargaining rights to MJECO, nor do they contain even an undertaking by the respondent to make such an assignment. If those two documents viewed alone do not support the applicants' claim, is it supported when they are viewed in conjunction with the Provincial Agreements to which they each refer and to the terms of which the respondent was bound as a result of having signed the two short-form documents? Clause (b) Article 1 of the Provincial Agreements establishes an undertaking of the Provincial Conference to recognize MIECO as the exclusive bargaining agent for two groups of employers: (1)". . . all members as outlined in Appendix 'A'. . ." and (2) ". . . any other Employers desirous of entering into a contractual agreement with the union.. .". (emphasis added). Since the respondent falls within the second group of employers, the Provincial Conference has recognized MIECO as the exclusive bargaining agent for the respondent. That recognition alone, however, only makes MIECO the exclusive bargaining agent for the respondent if it has the authority to represent the respondent in collective bargaining. It is clear that it has such authority in respect of the industrial, commercial and institutional sector of the construction industry pursuant to its designation as the employee bargaining agency under section 127(1) of the Act. That designation, however, does not bestow any bargaining rights upon MIECO in respect of other sectors of the construction industry. Therefore, in order for MIECO to bargain on behalf of the respondent, it must have authority independent of the designation.
The facts before the Board establish that MIECO has neither actual nor ostensible authority to bargain on behalf of the respondent. There is no evidence that the respondent ever made a specific assignment of bargaining rights to MIECO, it has not been a member of MIECO at any time material to this matter and, since the respondent has never been named on the lists of contractors supplied by MIECO to the Provincial Conference at the onset of collective bargaining, MIECO has not represented itself as acting for the respondent, therefore there is no evidence of it having ostensible authority to do so. On these same facts, it may be said that the deeming provisions of section 43(2) of the Act do not apply in these circumstances. Consequently, whether the wording of the two short-form collective agreements is viewed independent of or together with the Provincial Agreements to which they refer, no assignment of bargaining rights from the respondent to MIECO has been made by the fact of the respondent having signed the short-form agreements. There is no evidence and it was not argued that MIECO is an accredited employers association, therefore it does not have any statutory rights, duties or obligations arising out of section 116(1) of the Act which would empower it to bargain on behalf of the respondent.
There is not only an absence of facts on which to establish any positive assignment of bargaining rights from the respondent to MIECO, the facts reflect that the respondent retained the right to bargain on its own behalf. This is borne out by the wording contained in paragraphs 4 and 5 of the short-form collective agreement, in the practice of the Provincial Conference giving separate notice of its desire to bargain to contractors signed to short-form agreement and in the wording of that notice. Paragraph 4(a) of the short-form collective agreement gives the respondent the right of serving notice on the Provincial Conference of its desire to bargain under that document. If it had irrevocably assigned its bargaining rights to MIECO, only MIECO could have given notice to bargain and have bargained on behalf of the respondent, and that bargaining could take place pursuant only to the Provincial Agreement. The provision contained in each of paragraphs 4(b) and 5 that".., the Employer shall execute such documents as may be presented to it by the Union in order to confirm and acknowledge such intention" would not be needed if the respondent had not retained bargaining rights independent of MIECO. The Provincial Conference not only served separate notices of its desire to bargain on MIECO and on the respondent, but its notice gave the respondent a clear choice of being represented in collective bargaining by MIECO or bargaining on its own behalf. It is stating the obvious to say that the respondent would not be able to bargain on its own behalf if it had irrevocably assigned its bargaining rights to MIECO.
The Board finds, therefore, that the respondent has not assigned its bargaining rights in respect of sectors other than the industrial, commercial and institutional sector of the construction industry to MIECO. The Board further finds that, since the Provincial Conference gave due notice to the respondent of its desire to bargain a renewal of the short-form collective agreement which was dated to expire April 30, 1978, that agreement was terminated on that expiry date. As a result of these findings and in respect of sectors other than the industrial, commercial and institutional sector, the respondent is neither bound to a collective agreement with the Provincial Conference alone nor with the International Union of Bricklayers and Allied Craftsmen and the Provincial Conference as the employee bargaining agency. In summary, therefore, the Board finds as follows:
(a) the Provincial Conference is bargaining agent for all of the respondent's employees in all sectors of the construction industry who would fall within the bargaining unit described in the current Provincial Agreement between the International Union of Bricklayers and Allied Craftsmen and its Provincial Conference and MIECO;
(b) the respondent is bound to the aforesaid collective agreement in respect of the industrial, commercial and institutional sector of the construction industry;
(c) the respondent was bound to the Provincial Agreements between the Provincial Conference and MIECO which expired April 30, 1976 and April 30, 1978 in respect of all sectors of the construction industry; and
(d) the respondent is not bound to the current Provincial Agreement between the International Union of Bricklayers and Allied Craftsmen and its Ontario Provincial Conference insofar as it relates to sectors of the construction industry other than the industrial, commercial and institutional sector.
- Having regard to the evidence before the Board, its finding of facts thereon and pursuant to section 1 12a of The Labour Relations Act, the Board determines that:
(a) Fred Jantz Masonry Construction Company Limited is bound to the Provincial Agreement for Ontario Bricklayers, Stone Masons and Plasterers, effective May 1, 1980 to April 30, 1982, between the International Union of Bricklayers and Allied Craftsmen and the Ontario Provincial Conference of the International Union of Bricklayers and [Allied] Craftsmen and The Masonry Industry Employers Council of Ontario;
(b) Fred Jantz Masonry Construction Company Limited has violated the aforesaid collective agreement insofar as it applies to the industrial, commercial and institutional sector of the construction industry; and
(c) Fred Jantz Masonry Construction Company Limited shall cease and desist from violating the aforesaid collective agreement insofar as it applies to the industrial, commercial and institutional sector of the construction industry.
- The Board shall remain seized with this matter in the event that the parties are unable to agree on the amount of damages.