[1981] OLRB Rep. June 643
0996-80-M; 1911-80-M Ontario Allied Construction Trades Council, and International Union of Operating Engineers, Local 793 and its Members, Applicant, v. The Electrical Power Systems Construction Association and O'Brien Contracting Inc., Respondent.
BEFORE: D. F. Franks, Vice-Chairman, and Board Members H. J. F. Ade and H. Kobryn.
APPEARANCES: S. B. D. Wahl for the applicant; H. A. Beresford for the respondents.
DECISION OF THE BOARD; June 3, 1981
These two matters are grievances referred for arbitration by the Labour Relations Board under section 112a of The Labour Relations Act. Both grievances involve the same parties and essentially the same grievance, they simply relate to two different Ontario Hydro projects. As a consequence, at the hearing in this matter both referrals were consolidated.
The original grievance in this matter was filed under Article 29.3 of the master portion of the collective agreement between The Electrical Power Systems Construction Association (hereinafter referred to as "EPS A") and the Ontario Allied Construction Trades Counsel (hereinafter referred to as the "Allied Council"). The grievance filed alleges a violation of Article 6 of the Operating Engineers Appendix of the EPSCA Allied Council agreement. For convenience, we shall refer to the agreement between EPSCA and the Allied Council as the master agreement and to that portion of the agreement relating to the Operating Engineers as the Operating Engineers Appendix. Article 6 of the Operating Engineers Appendix refers to benefits and in turn refers to the wage schedules attached to the Appendix. The wage schedule in turn refers to specific welfare, pension and supplementary unemployment benefits. The other part of this grievance relates to Article 12 which refers to the wage schedule attached to the Appendix. The substance of this grievance is not that the employer has not made any such benefit payments, but rather that the employer has paid them in the wrong amounts. Thus, the parties are agreed that the respondent O'Brien Contracting Inc. has made payments to the appropriate funds for employees working on both the Bruce and Darlington generating projects. They are further agreed that the amounts paid by O'Brien are in accordance with the collective agreement relating to Bruce Evans Limited which provides for substantially less welfare and pension payments and for no payment at all concerning training funds. It is this difference in amounts that gives rise to the present dispute.
This grievance arises under an exceedingly complex set of collective bargaining arrangements. The Electrical Power Systems Construction Association bargains on behalf of Ontario Hydro and other contractors with a group of construction trade unions known as the Ontario Allied Construction Trades Council. They are parties to a collective agreement which runs from May 1, 1974 to April 30, 1984 and that agreement covers work in the province of Ontario on Ontario Hydro projects. Thus, for instance, although the Operating Engineers, Local 793 the applicant in the present case, is not party to a collective agreement with O'Brien Contracting Inc., there is no dispute between the parties that this collective agreement applied to O'Brien for work performed on Ontario Hydro projects. The collective agreement between EPSCA and the Allied Council consists basically of a master portion and that master portion allows the negotiation of various trade appendices. The International Union of Operating Engineers is a Member of the Allied Council and, in accordance with the master agreement, EPSCA and the Allied Council have negotiated an appendix for Operating Engineers. That appendix has from time to time been amended and an amendment was made effective May 1, 1980 which results in the Operating Engineers Appendix with which we are concerned in the present matter. Generally the appendix deals with the overall terms concerning the employment of operating engineers on Hydro projects. The appendix itself, however, does not deal with wag s and, indeed, the evidence is that wages are not negotiated at the time such appendices arc negotiated. The wage rates are in fact set out in various wage schedules attached to the appendix. There is a wage schedule for each of the various generating projects in which Ontario Hydro is involved and that wage schedule simply "picks up" the wage rate corresponding to that contained in the provincial agreement relating to the industrial, commercial and institutional sector of the construction industry. There is no doubt, however, that the wage schedules form part of the Operating Engineers Appendix which in turn is part of the agreement between EPSCA and the Allied Council.
The present dispute arises out of the language of the preamble to Operating Engineers Appendix, that preamble reads as follows:
“As provided in the 'Appendices' article of the master portion of the Collective Agreement, EPSCA and the Council have agreed to the following conditions to apply to employees in classifications covered by this Appendix, subject of the following:
The 'Wages', 'Shift Differential Rate' and 'Overtime Rates' articles of this Appendix and the 'Hours of Work' article of the master portion of this Agreement do not apply for driveway and parking lot construction and landscaping. When such work is undertaken, the wages, weekly hours of work, shift differential rate and overtime rates appropriate for the class and character of work shall be as established by the nearest influencing representative agreements between Local 793 of the Union and builders' exchanges, contractors' associations or contractors."
It is agreed by the parties that the "nearest influencing representative agreement" affecting landscaping is the Bruce S. Evans Limited agreement (hereinafter referred to as the "Evans Agreement"'. '[he Evans agreement is a collective agreement between Bruce S. Evans Limited and the International Union of Operating Engineers, Local 793 and Labourers' International Union of North America, Local 183. Its term is from May l, 1980 to April 30, 1982. It is not an agreement by a council of trade unions, but rather a single document which creates a collective agreement for both of the unions. We will be referring to its contents in some detail later in this decision.
The argument by the grievor in support of the grievance is quite simple. The preamble to the Operating Engineers Appendix refers specifically to "wages", "shift differential rate", "overtime rates" and "hours of work". By that preamble, it is only these specific articles of the Operating Engineers Appendix which are varied by the "nearest influencing representative agreement", i.e., the Evans agreement. Indeed, the terms wages, shift differential rate, and overtime rate are headings of specific articles in that appendix, namely, Article 2, Article 4, and Article 5. The grievor thus argues that other articles and, in particular, Article 6 relating to benefits and Article 12 relating to apprenticeship and training programs, are not specifically, referred to in the preamble and are thus not modified by the nearest influencing representative agreement for landscaping. Article 6 referring to benefits, refers to the welfare, pension and supplementary unemployment benefits set forth in the wage schedules attached to the appendix. Similarly, Article 12 refers to training fund amounts also set forth in the wage schedules attached to the appendix. The grievor thus argues that the respondent O'Brien ought to pay the benefits and training fund amounts set out in the appropriate wage schedules attached to the Operating Engineers Appendix rather than the amounts set out in the Evans agreement, which is in fact what O'Brien has been paying.
The respondents take the position that the collective agreement binding O'Brien contains a latent or patent ambiguity and urged the Board to hear extrinsic evidence as to the intention of the parties and as witnessed by the manner in which the parties have interpreted the Operating Engineers Appendix in the past. The grievors denied that there was any ambiguity. The Board reserved its decision on the matter of ambiguity and heard evidence concerning the interpretation given to the documents by the parties.
After careful consideration of the collective agreement upon which the grievance is based, we are of the view that that agreement does contain a patent ambiguity. Simply put, we are of the view that when one tries to apply the Evans agreement to the portions of the Operating Engineers Appendix and the accompanying wage schedules in accordance with the direction set out in the preamble to the Operating Engineers Appendix, the result is ambiguous if not completely meaningless. As noted above, the collective bargaining relationship between the parties is extremely complex and in order to understand where the ambiguity arises, it is necessary to take a very detailed look at the language of the agreements before the Board.
As noted above, the preamble to the Operating Engineers Appendix refers specifically to wages, shift differential rates and overtime rates. For our present purposes we can ignore the hours of work exception. Those terms are the titles of specific articles in the Operating Engineers Appendix, which in turn refer to wage schedules attached to the Operating Engineers Appendix. However, when one examines the Operating Engineers Appendix in detail, the articles, for instance, are entitled as follows:
Article 1—Classifications; Article 2—Wages; Article 3—Hours of Work Miscellaneous Provisions; Article 4—Shift Differential Rate; Article 5—Overtime Rates; Article 6— Benefits; Article 7—Inclement Weather Pay; Article 8—Key Tradesmen; Article 9—Travel and Transportation; Article 10—Tools; Article 11—Protective Clothing and Equipment; and Article 12, which relates to wages, reads as follows in clause 2.1, generation station projects:
"The rates of pay for employees in the classifications covered by this Appendix and working on Generation Station Projects shall be set forth in the wage schedules attached hereto."
Articles 4 and 5, which refer to shift differential rates and overtime rates, do not refer to the wage schedules but are specific provisions and, indeed, the overtime rates set out in Article 5 refer to the hours of work provisions in the master agreement.
- There are, however, a number of other articles in the Operating Engineers Appendix which refer to the wage schedules attached to the Appendix, namely, Article 1, Article 6, relating to benefits, and Article 12, which read as follows:
"Article 1
CLASSIFICATIONS
1.1 Classifications for the electrical power systems sector shall be as set forth in the wage schedules attached hereto.
1.2 Classifications on Lines and Stations Construction work in the electrical power systems sector shall be as set forth in area rate schedules.
1 .3 If classifications are required that are not shown in the wage schedules or area rate schedules, they will be negotiated as required.
Article 6
BENEFITS
6.1 The Employer agrees to pay into operative welfare, pension and supplementary unemployment benefit plans the amount specified for welfare, pension and supplementary unemployment benefits as set forth in the wage schedules attached hereto for employees covered by this Appendix during the time they are covered.
The Union agrees to supply the Employer with all the information regarding the welfare, pension and supplementary unemployment benefit plans and also all administrative material that is required for the implementation of them.
Article 12
APPRENTICESHIP AND TRAINING PROGRAMS
12.1 The Employer agrees to pay into operative apprenticeship or training funds the amounts specified for apprenticeship or training ~s set forth in the wage schedules attached hereto for employees covered by this Appendix during the time they are employed.
The Union agrees to supply EPSCA with all pertinent information regarding these funds.
12.2. Training programs established by the Employer to provide skills required in the electrical power systems sector shall be funded by reducing the Employer's contribution to the training fund in the specific locality where the training is taking place by an amount of money equivalent to the cost of such programs.
Where apprentice mechanics are employed, there shall be more than (I) apprentice for every five (5) journeymen.
12.3 Employers whose primary function is structural steel erection REVand/or mechanical installations shall assign an apprentice, oiler and oiler-driver to each unit on all conventional truck mounted cranes with a manufacturers' rating of 25 tons capacity and over, all crawler cranes with a manufacturers' rating of 50 tons capacity and over, all truck mounted hydraulic cranes with a manufacturers' rating of 35 tons capacity and over, and all rough terrain type cranes with a manufacturers' rating of 45 tons capacity and over."
The wage schedule for the Bruce project is as follows:
"EPSCA OPERATING ENGINEERS APPENDIX
GENERATION STATION PROJECTS WAGE SCHEDULE
POWER SYSTEMS CONSTRUCTION
SITE PREPARATION AND EARTH DAMS
BRUCE PROJECT
Classification Effective Date and Hourly Rate
OPERATING ENGINEERS May 1/80 May 1/81 Subforeman Rate—Appropriate Rate plus 50c
Group 1
Engineers operating: skyway, climbing, and $13.40 $14.26
hammerhead type cranes; kangaroo, ringer and
skyhorse type cranes, mobile and crawler type
cranes 100 tons capacity and over.
Group 2
Engineers operating: all conventional and hydraulic * 13.22 *14.08
type cranes, save and except those set out in Group
1, including rough terrain cranes, clams, shovels,
gradalls, backhoes, draglines, piledrivers, all power
derricks, gantry cranes, caisson boring machines
(over 25 HP), and similar drill rigs, mine hoists,
and all similar equipment working on land or water,
overhead cranes, chimney hoists, multiple drum hoists,
single drum hoists (over 12 stories), single drum
hoists of manual friction and brake type, and all
similar equipment, dredges—suction and dipper,
Pitman type cranes of 10 ton capacity and over,
hydraulic jacking equipment on vertical slip forms,
hydraulic skocpers. Heavy duty mechanics, qualified
welders and 2nd Class Stationary Engineers
*Base rate
Classification Effective Date and Hourly Rate
OPERATING ENGINEERS (cont'd) May 1/80 May 1/81
Group 3
Operators of: air tuggers used for installation of $12.74 $13.60
vessels, tanks, machinery, and for steel erection;
side booms on land or booms on land or water;
man and material hoists and single drum hoists
12 stories and under not of a manual friction and
brake type; elevators, monorails, bullmoose type
equipment of S ton capacity or over, air compressor
feeding low pressure into air locks, tunnel moles.
3rd Class Stationary Engineers.
Group 4
Operators of: bulldozers, tractors, scrapers, graders, 12.59 13.45
emcos, overhead and front end loaders, side loaders,
industrial tractors with excavating attachments,
trenching machines, and all similar equipment, mobile
pumpcretes, Pitman type cranes under 10 ton capacity,
mobile pressure grease units, mucking machines,
hydraulically operated utility pole hole diggers, and
Dinky locomotive type engines. 4th Class Stationary
Engineers.
Group 5
Operators of: batching and crushing plants, 6" 12.08 12.95 discharge pumps and over, wellpoint systems and
all similar systems, concrete mixers of 1 cubic yard
and over, gas, diesel, or steam driven generators
over 50 HP (portable), 'ork lifts over 8' lifting
height, air tuggers except those in Group 3, caisson
boring machines (25 HP and under), drill rigs, post
hole diggers, potable air compressors 150 CFM and
over, and concrete pumps, Signalmen.
Group 6
Operators of: boom trucks, 'A' Frames, driver 11.66 12.53
mounted compaction units, bullmoose type
equipment under 5 ton capacity, fork lifts 8'
and under in lifting height and conveyors. Firemen.
Classification Effective Date and Hour/v Rate
OPERATING ENGINEERS (cont'd) May 1/80 May 1/81
Group 7 Operators of: pumps under 6" discharge where 3 or $11.44 $12.30 more pumps are employed on the same job site, hydraulic jacking equipment for underground operations, portable air compressors under 150 CFM where attendant is required and driver mounted power sweepers. Attendants for forced air, gas or oil burning temporary heating units of 500,000 BTU or over per hour, or, 5 or more on the same job site, oilers, oiler-drivers, and mechanics'
helpers.
Miscellaneous Group
Skidder with Hydraulic Attachments 12.08 12.95
%of Heavy Duty Mechanic Journeyman
Apprentice Rates Rate
1st period 50 6.61 7.04 2nd period 60 7.93 8.45 3rd period 70 9.25 9.86 4th period 80 10.58 11.26 5th period 90 11.90 12.67
MARINE CLASSIFICATIONS
Dredge Engineer 11.98 12.58 Welder Deckhand—Dredge 11.98 12.58 In-Shore Tugboat Operator 10.58 11.18 Deckhand—Tugs and Dredge 9.38 9.38
FIREFIGHTERS
Firefighter—to start **68% 8.99 9.57 Firefighter—after 3 months **70% 9.25 9.86
Welfare and Pension payments: $1.00 (30¢ welfare and 70¢ pension) per hour is paid extra to the rate for each of the above Operating Engineer and Firefighter classifications.
Training payments: 2c and 3c May 1, 1981 per hour training is paid extra to the rate for each of the above Operating Engineer and Firefighter classifications.
**Established as a percentage of base rate."
Several things should be noted about the wage schedule. First, it refers to classifications of operating engineers, marine classifications and firefighters, and that wage rates are set out for each specific classification. Of the operating engineers' classifications, it is to be noted that groups 1 and 2 deal with engineers operating various pieces of equipment, whereas groups 3, 4, 5, 6 and 7 refer simply to operators of various pieces of equipment. The other point of importance is to note the specific language referring to the payments in question, namely that welfare and pension payments talk specifically in terms of "to the rate of each of the above operating engineer and firefighter classifications". (emphasis added)
- If we take the preamble of the Operating Engineers Appendix to mean that for wages, weekly hours of work, shift differential rates and overtime rates that the appropriate payments shall "be as established by the nearest influencing representative agreement" and that agreement is the Evans agreement, we must now try and apply the Evans agreement to the Operating Engineers Appendix. Article 12 of the Evans agreement reads as follows:
"ARTICLE XII — ' WAGE RATES AND CLASSIFICATIONS'
For Local 183
May 1/80 Nov 1/80 May 1/81 Nov 1/81
Labourers (including sod roller
operators $9.00 $9.20 $9.75 $.95
Land Gardeners $.l5 $9.35 $9.90 $10.10
Farm tractors without excavating
attachments, fork lifts, truck
drivers, load bearing
boom trucks $9.10 $9.30 $9.85 $10.05
Form Setters, concrete finishers,
landscape stone setters, landscape
brick setters landscape irrigation,
pipelayers, float drivers, Reinforcing
steelman $9.30 $9.50 $10.05 $10.25
May 1/80 Nov 1/80 May 1/81 Nov 1/81
Operators, machine driven
tools
$9.10 $9.30 $9.85 $10.05
For Local 793
Grader Operator $9.80 $9.95 $10.60 $10.70 Dozer & Loader Operator & Backhoe Operator $9.70 $9.85 $10.50 $10.60
Drivers of Farm Tractor with
pulverizing or fine grading
equipment $9.70 $9.55 $10.35 $10.45"
It will be seen at a glance that the classifications for Local 793 under the Evans agreement do not correspond at all to the classifications in the wage schedule. Nor, is it possible to fit them in. For instance, a grader operator, dozer and loader operator may very well fit into group 4 of the wage schedule, but backhoe operators are run by group 2 engineers and nowhere does the wage schedule refer to drivers of farm tractors with pulverizing of fine grading equipment. Even more puzzling is the fact that boom truck operators and fork lift operators rather than being related to group 6 of the wage schedule, are in fact covered by Local 183 in the Evans agreement. In sum, the Evans agreement cannot be applied to the wage schedule without taking both the classification as well as the "wage” and substituting them rather than applying them to the Operating Engineers wage schedule.
However, by the grievor's own argument, classifications are not modified by the preamble to the Operating Engineers Appendix. We are thus of the view that since the preamble purports to amend the wages provided in the Appendix without modifying the classifications relating to those wage payments in the wage schedule, the preamble contains an ambiguity on its face.
Indeed, we are of the view that if one tries to fit the classifications in the Evans agreement there is a further ambiguity in interpreting the welfare and pension and pension payment and training payment provision of the wage schedule which in turn refers to "each of the above operating engineer and firefighter classifications". Since, as noted above, the classifications do not refer to drivers of "farm tractors with pulverizing or fine grading equipment", it would thus appear that there is an ambiguity between the preamble and the wage schedules when one attempts to apply the Evans agreement as instructed by the preamble. If one does not vary the classifications, the wage schedule makes no sense, but if one varies the classifications then one is using a different wage schedule than that appended to the Operating Engineers Appendix, in which case there is no reference to welfare, pension benefits and training benefits. There is thus a clear ambiguity on the face of the agreement between the parties and, furthermore, that ambiguity, since it relates to the wage schedule, relates to the very basis of the present grievance, that is, the payment of benefits and training fund as set out in the wage schedule.
In view of the foregoing finding of ambiguity, the Board is entitled to look to extrinsic evidence concerning the intention of the parties and, in particular, the intention of the parties concerning both the preamble and the wage schedule. Here the evidence was quite clear. For landscaping contracts no wage schedule similar to the one quoted above it generated. In fact, what happens is that a letter is sent from The Electrical Power Systems Construction Association to the Ontario Allied Construction Trades Council. This has gone on for a number of years but we will quote in detail from the most recent letter:
"Landscaping Conditions
—EPSCA Agreement
When employing operating engineers on landscaping in the electrical power systems sector of the construction industry, the classifications, wages, weekly hours or work, shift differential rate, and overtime rate shall be as follows:
Classifications and Wage Rates
May 1/80 Nov 1/80 May 1/81 Nov 1/81 Grader Operator $9.80 $9.95 $10.60 $10.70
Dozer and Loader 9.70 9.85 10.50 10.60 Operator and Backhoe
Operator
Drivers of Farm 9.55 9.70 10.35 10.45 Tractor with Pulverizing or
Fine Grading Equipment
Pension Payments: 20¢, 30¢ November 1, 1980 and 40¢ November 1, 1981 per hour is paid extra to the rate for each of the above classifications.
Weekly Hours of Work
The Weekly Hours of work shall be fifty (50) hours per week.
Shift Differential Rate
Employees required to work shift work, other than the regular day shift, shall receive the following shift differential:
Second Shift: 25¢ per hour
Overtime Rate
Overtime shall be paid at one and one-half times the basic rate for hours worked in excess of 10 hours in any one day, Monday to Friday, and for all hours worked on Saturday.
Two times the basic rate for all hours worked on Sunday and Statutory Holidays listed in the master portion of this Agreement.
For ill other conditions relative to landscaping in the electrical power systems sector, the conditions contained in the EPSCA Collective Agreement shall apply.
This advice replaces our previous advice to you dated September 20, 1978
regarding the employment of operating engineers on landscaping."
That letter reflects the Evans agreements. It is to be noted that the pension payments are substantially different from those in the typical wage schedule to the Operating Engineers Appendix.
The evidence is that this sort of communication has occurred since 1975 when the first Operating Engineers Appendix was put into effect under the EPSCA agreement. No issue appears to have been taken with this interpretation of the agreement by EPS CA. and, indeed, the evidence is that this is how employees working on landscaping have been paid. The evidence of Mr. Bill O'Neill, who is the general manager of EPS CA, is that this has reflected the consistent interpretation given by the parties to the preamble to the Operating Engineers Appendix. Further, there is evidence that the issue was raised by Mr. Gauthier in negotiations that the preamble to the Appendix was not being properly interpreted. However, he was not successful in this argument and one can only conclude that the parties to the bargaining accepted the practice of applying the Evans agreement as set out in the letter above.
We are, therefore, of the view that the parties intended the preamble to the Operating Engineers Appendix to modify that Appendix as set out in the letter of November 5, 1980 from EPSCA to the Allied Council. That being the case, the grievances herein must fail and the grievance is therefore dismissed.