1303-80-M, 1304-80-M, 1305-80-M, 1306-80-M, 1307-80-M, 1308-80-M, 1309-80-M, 1310-80-M, 1311-80-M & 1776-80-U Drywall, Acoustic, Lathing and Insulation Local 675 of the United Brotherhood of Carpenters and Joiners of America, Applicants, v. Interior Systems Contractors' Association of Ontario et al., Respondents; Interior Systems Contractors Association of Ontario, Complainant, v. Drywall, Acoustic, Lathing and Insulation Local 675 of the United Brotherhood of Carpenters and Joiners of America, Respondent.
BEFORE: Pamela C. Picher, Vice-Chairman and Board Members H. J. F. Ade and C. A. Ballentine.
APPEARANCES: A. Minsky, M. Zigler and M. K. Weller for the applicants/complainant; D. F. Hersey and F. Lavalle for the respondent/complainant I.S.C.A.
DECISION OF THE BOARD; July 24, 1981
By a decision dated March 17, 1981 the Board consolidated a series of applications filed under section 1 12a of the Act and a complaint filed by the respondent/complainant, Interior Systems Contractors Association, (hereinafter referred to as I.S.C.A.).
The union alleges that the respondents have violated the collective agreement in effect from May 30, 1980 through April 30, 1982 by failing to provide and/or pay for the screws and nails used by drywall applicators working under the collective agreement. Against the union, I.S.C.A. complains that the union bargained in bad faith during the 1980 negotiations which resulted in the collective agreement now in effect between the parties.
I.S.C.A. further complains that the union engaged in a wrongful stoppage of work contrary to
The Labour Relations Act and seeks damages by way of compensation.
- At the commencement of the hearing the parties agreed to the following statement of fact:
From and after May 30, 1980 and continuing to date each respondent named in each section 1 12a referral has at some time not supplied without charge and/or has not paid for and/ or has not reimbursed employees engaged on a piecework basis for costs of the drywall screws and nails used by such drywall applicators who perform such drywall application with such screws and/ or nails in the performance of their work for the said respondents in residential construction. Where the respondents have provided such screws and nails to such persons the respondents have deducted for the costs thereof from weekly earnings of such employees and/or the said respondents have required these employees to provide drywall screws and nails in respect of their work for the respondents without reimbursement or payment from the respondents for the screws and nails.
The parties further agree that the applicant union, Local 675, is the successor to the Wood, Wire and Metal Lathers International Union, Local 562. Local 562 was a party to the predecessor agreement effective April 30, 1977 through April 30, 1980.
The following sections of the various collective agreements between the parties and amendments thereto are relevant to the determination of the issues before the Board:
From the collective agreement in effect between the parties from April 30, 1977 to April 30, 1980.
JOURNEYMEN WAGE
7.01 The hourly wage rate for journeyman shall be as per the following schedules:
[schedules omitted]
7.03 Employees applying drywall gypsum board and insulation to wood frame construction in the residential construction sector only are exempt from the terms of this agreement.
[emphasis added]
From the first amending agreement to the 1977 - 1980 collective agreement, such amending agreement dated June 5, 1978:
— The full terms and conditions of the same said Collective Agreement shall remain in full force and effect in so far as the residential construction sector with the following amendments thereto.
— Commencing on the signing date of this amendment, employees engaged in the erection or installation of gypsum drywall board and drywall taping may be paid in accordance with the following minimum schedule of piece work rates.
Drywall Board Applicators Tapers
On Signing $62.00* $70.00*
May 1, 1979 $64.O0* $72.00*
Nov. 1, 1979 $65.O0* $75.00*
- — Amounts refer to 1,000 sq. feet of material applied.
- — Drywall board applicators engaged on a piece work basis are required to supply screws and drywall tapers are required to supply the necessary materials.
[emphasis added]
From the second amending agreement to the 1977 - 1980 collective agreement, such amending agreement dated October, 1978:
Article 7.03 of the Collective Agreement is hereby deleted and replaced with the following new article 7.03:
7.03 The employer members of the Association and Independent Employer signatory hereto hereby agree that the full terms and conditions, of this agreement including recognition and Union Security apply to the wood frame residential construction sector, including single and semidetached houses, row town houses less than four stories and any other like residential construction.
A new article 7.04 is hereby added to the Collective Agreement as follows:
7.04 Employer shall pay employees engaged in the above described article 7.03 in accordance with the following schedule.
Drywall Taping Insulation
Application
On Signing $52.0O* $60.00* $34.00*
May 1, 1979 $54.00* $62.00* $35.00*
Nov. 1, 1979 $56.00* $64.00* $36.00*
- — Amounts refer to 1000 square feet of material erected and completed.
A new article 7.05 is hereby added to the Collective Agreement as follows:
7.05 Drywall board applicators engaged on a piece work basis are required to supply screws and nails and drywall tapers are required to supply the necessary materials.
[emphasis added]
From the existing collective agreement effective May 30, 1980 to April 30, 1982:
6.02 The parties hereto agree that gypsum board drywall applicators may be paid on a renumeration related to production (piece work) basis on residential construction only in accordance with the following schedules. Rates mentioned herein refer to one thousand square feet of drywall applied and substitute for any other monetary clause herein.
Apartment Benefits
Buildings
(metal Furring)
May 1, 1980 $68.00 $7.00 per thousand
May 1, 1981 $75.00 $7.00 per thousand
Nov. 1, 1981 $80.00 $7.00 per thousand
WOOD FRAME RESIDENTIAL CONSTRUCTION INCLUDING SINGLE AND SEMI DETACHED HOUSES AND ROW TOWN HOUSES.
Benefits commencing Dec. 1, 1980 May 1, 1980 $60.00 $7.00 per thousand May 1, 1981 $65.00 $7.00 per thousand Nov. 1, 1981 $70.00 $7.00 per thousand
ARTICLE 16 — SAFETY
16.01 Foreman, journeymen and apprentices shall supply themselves with and wear at all times on the job, an approved safety helmet, safety shoes and safety glasses when required. All other safety devices and equipment shall be supplied by the employer.
ARTICLE 17 — TOOLS
17.01 The employee shall supply himself with the following kit of tools: I suitable metal or wooden tool box; 1 set of nippers; 1 pair of No. 8 Tin Snips; one hammer; one gyproc axe; I pair of aircraft snips; 1 magnetic nail holder; 1 pocket rule, 12 feet minimum; 1 50 foot measuring tape; 1 plum bob and chalk line; I medium size level; 1, 3/4 inch cold chisel; 1 centre punch; 1 adjustable hacksaw; I utility gypsum knife, 1 keyhole gypsum saw; 1 tool pouch; 1 screw gun; 1 one-hundred foot extension cord.
17.02 All other tools and equipment are to be supplied by the employer. In case of breakdown of the employee's screwgun the employer shall make available a temporary replacement for one (1) week only.
[emphasis added]
[NOTE: The 1980 - 1982 collective agreement contains no provision related expressly to the supply of screws and nails.]
The 1977-1980 collective agreement was an all sector agreement covering both the industrial, commercial, institutional (ICI) sector and the residential sector. It excluded, though, from the residential sector, low rise residential. Pursuant to section 7.01 of the 1977 - 1980 collective agreement persons working in the drywall and acoustics field were paid an hourly rate.
It is apparent on the evidence that problems developed with the hourly rate method of payment. Accordingly, the 1977 - 1980 collective agreement was amended so that employees engaged in drywall work would from that point forward be paid piece work rates in accordance with the schedule set out in the amending agreement. Clause 4 of the amending agreement further stipulated that "drywall board applicators engaged on a piece work basis [would be] required to supply screws. . .". While drywall applicators working piece work had previously supplied screws and nails, this was the first time it had been set out as an obligation in the collective agreement.
Before long the parties further amended the 1977 - 1980 collective agreement. Through a second amending agreement the parties agreed to extend the coverage of the collective agreement to wood frame or low rise residential which had until that point been excluded. Article 7.04 of the collective agreement was amended to provide piece rates for drywall applicators engaged in low rise residential. A new article, 7.05, was added stipulating in explicit terms that such "drywall board applicators engaged on a piece work basis [would be] required to supply screws and nails ..
The issue before this Board is whether today, under the successor collective agreement, employees engaged in drywall work are still required to pay for their own screws and nails.
Notice to bargain was given by the successor union, Local 675, to I.S.C.A. on March 4, 1980. In the proposal the union submitted to I.S.C.A. the union included a piece work provision which was to be tied in to hourly rates. The union did not include any reference to the two provisions in the two amending agreements which required employees to supply their screws and nails.
It is apparent on the evidence that through its deliberate silence on this issue the union intended to place on the employer the obligation to supply the screws and nails. Mr. Harold K. Weller, Business Representative, testified that union officials had agreed that the union would not raise the issue in bargaining. Weller explained the union's position by saying that they felt that if the issue was of such concern to the employers then they would leave it to them to raise it and to propose, if they saw fit, that it be included once again as a term of the agreement. Weller candidly acknowledged that the union was pursuing a strategy of non-discussion in the belief that if the collective agreement was silent on the issue the employer would assume the obligation of supplying screws and nails.
The collective agreement that was ultimately signed by the parties, unlike the previous amending agreement, contains no explicit reference to the supply of or payment for screws and nails. As soon as the parties ratified the collective agreement the union declared that employees were no longer under an obligation to supply them.
A series of union and employer meetings occurred on June 17th and 18th of 1980. June 16th was the strike deadline for employees performing work in the I.C.I. sector. Employees engaged in residential work, however, had by that time become bound by the collective agreement in issue in this case and were thus under an obligation to perform work. Because some projects were simultaneously engaged in both I.C.I. and residential work, employees were highly confused over where they could and could not work. Mr. A. Simone, Business Manager, testified that in addition to this confusion employees were complaining that the employers were not supplying screws and nails for the residential work as in their view they were obligated to do under the new collective agreement. It is apparent that some employees, though the evidence does not reveal who, declined to work until the matter was resolved.
To clarify each of these issues the union called a series of meetings to be attended by employers and their employees over the course of June 17th and 18th. The union then explained to small groups of employers and employees the significance of the I.C.I. and residential distinction and the significance of bargaining for separate collective agreements. Both Simone and Weller further testified that the union told the employers that no material charges were to be deducted for screws and nails from the gross amount due to employees pursuant to the rates established under the collective agreement. As each group ended its meeting the employees working under the instant collective agreement returned to work.
Counsel for the union argues that it is the natural obligation of employers to supply materials. For employees to become obligated to bear some or all of this responsibility, counsel contends, the obligation must be spelled out explicitly in the collective agreement. As the collective agreement is silent on the matter of who should supply the screws and nails, it is the union's position that the responsibility falls to the employer. Counsel maintains that silence cannot provide the foundation for imposing a positive obligation on the employees. While counsel for I.S.C.A. argues that the Board should look to past practice to interpret this agreement, counsel for the union, citing Standard Bread(1963), 13 L.A.C. 377 (Thomas) for support, maintains that silence does not create an ambiguity to open the way to the application of past practice.
In further support for this position counsel for the union points to sections 16 and 17 of the collective agreement. Section 16 requires foremen, journeymen and apprentices to supply their own safety helmets, safety shoes and safety glasses. It further stipulates that all other safety devices and equipment are to be supplied by the employer. Similarly section 17.01 itemizes tools that each employee is obligated to supply such as a tool box, a magnetic nail holder, a hammer, an extension cord and a screw gun. Section 17.02 recognizes the employer's obligation to supply all other tools and equipment.
On the basis of these provisions counsel contends that the collective agreement was addressed the matter of the employees' obligation to supply. He argues, pursuant to the principle of contract interpretation, inclusio unius est exclusio alterius (the inclusion of one is the exclusion of another), that because the collective agreement has itemized what things employees are to supply it is appropriate to conclude that the intention apparent on the face of the agreement is that they need not supply anything else.
Referring to the negotiating history counsel emphasized the stark change that took place from the provisions of the 1977- 1980 collective agreement to the 1980- 1982 agreement. The 1977 - 1980 agreement, as amended, explicitly provided that the employees supply their own screws and nails. Those provisions and any explicit reference to this obligation was eliminated in the existing collective agreement. Counsel for the union argues that the parties must be taken to be negotiating from the immediate past collective agreement and that this omission, viewed together with articles 16 and 17 and the collective agreement's silence on the obligation to supply screws and nails leads, inevitably, to the conclusion that under this collective agreement employees are no longer obligated to supply their own screws and nails.
In the respondent's argument counsel emphasized that throughout the history of the drywall industry drywall applicators on piece work have supplied their own screws and nails. I.S.C.A. contends that for the union to remain silent on the issue of the supply of screws and nails throughout negotiations and to seek through that silence to dramatically change the industry practice constitutes bargaining in bad faith. I.S.C.A. maintains that nothing was said or done during negotiations to cause I.S.C.A. to believe that the old practice would not be continued. Counsel asks the Board, therefore, to find that the union's "ploy" or their bargaining strategy was carried out in breach of section 14 of the Act.
In addition to alleging that the union bargained in bad faith, counsel for I.S.C.A. asks the Board to find that because the union did not raise the matter of screws and nails in bargaining and voice its position concerning the legal effect of the wording of the memorandum of settlement, it is now estopped from so doing.
Regarding the interpretation of the collective agreement counsel for I.S.C.A. argues that section 6.02 of the collective agreement setting out the wage rates is ambiguous and should, accordingly, be interpreted in a manner consistent with past practice. More specifically he argues that the word "applied" in section 6.02 ("Rates mentioned herein refer to one thousand square feet of drywall applied.. .") is ambiguous because it does not answer the question of who is to pay for the materials that are required in the application of the drywall. Instead, he maintains, the article simply answers what money flows to the applicator once the drywall is up.
Counsel for the respondent further argues that the second amending agreement to the 1977 - 1980 collective agreement should be given no persuasive weight in interpreting the existing collective agreement because it virtually "sat on the shelf' for two years without being applied. In contrast to this assertion, however, we note the uncontradicted evidence of Mr. Simone that the terms of the 1977 - 1980 collective agreement as amended by the second amending agreement relating to houses were applied by some, though clearly not all or even a majority, of the employers. As well there seems to be no question that the first amending agreement relating to apartments was fully applied.
Finally it is the position of I.S.C.A. that work stoppages which occurred on June 17th and 18th were illegal work stoppages in violation of the collective agreement.
The Board cannot conclude on the evidence that the union's conduct during negotiations was in breach of section 14 of the Act. The employer in this case must be taken to have been aware of the terms of the preceding collective agreement upon which the union s proposals were based. The piece rate provisions and schedules were contained in the two amending agreements. To evaluate the union's new piece rate proposals the employer would have to have had regard to, for the purposes of comparison, the two amending agreements as well as the original collective agreement. In any event, in responding to the union's proposals the employer, in the Board's view, had the responsibility for knowing the terms of its collective agreement, as amended, and for evaluating the effect of the union's proposals on that agreement, including the effect of leaving articles from the preceding agreement out of the proposed agreement.
No one gave evidence for I.S.C.A. The Board therefore has no evidence upon which to conclude that the employer was in fact misled by what they have characterized as the union s "ploy". It may be, in fact, that I.S.C.A. understood that the union's proposals were silent on the issue of the obligation to supply screws and nails and decided it was in I.S.C.A.'s best interest for them to remain silent too. Perhaps both parties were content during bargaining to dispose of this sensitive issue with silence each hoping, down the road, to win the inevitable interpretation argument presently before the Board.
Whatever the employer's state of mind the union's silence in this case is readily distinguishable from the employer's silence in Westinghouse Ltd., [1980] OLRB Rep. April 577. In Westinghouse the employer was silent on a substantial issue about which the employer had exclusive knowledge. In this instance the union was silent on an issue about which the employer either did or should have had full knowledge. Strategy is a natural and inevitable part of the bargaining process. In light of all the circumstances of this case the Board is not prepared to conclude that the union s conduct was a breach of section 14 of the Act.
Turning to the interpretation of the existing collective agreement the Board is unable to conclude that section 6.02, specifically the word "applied", raises an ambiguity over the obligation to supply screws and nails to, thereby, open the door to a consideration of past practice. Section 6,02 sets out the piece work rates applicable to one thousand square feet of drywall applied. "Applied" in this section means "fastened" or "put up". The Board cannot conclude that the word contains any ambiguity with respect to whether or not the cost of screws and nails should be deducted from the rates set out in section 6.02 for every 1000 feet of drywall applied. The section simply does not speak to that issue either directly or impliedly and thus does not raise an ambiguity. The section, in sum, is ambiguously silent on the issue. Moreover, an ambiguity cannot be drawn from the existing collective agreement merely because the collective agreement is silent on the issue of the supply of screws and nails. (See for example International Nickel Co. of Canada Ltd. (1974), 1974 CanLII 2345 (ON LA), 6 L.A.C. (2d) 120 (Simmons); Uddeholm Steels Ltd. (1971), 1971 CanLII 1964 (ON LA), 22 L.A.C. 419 (Weiler); and Re Standard Bread (1963), 13 L.A.C. 327 (Thomas).)
In the absence of ambiguity, past practice cannot be relied on to interpret the collective agreement. This principle of contract interpretation was affirmed by the Court of Appeal in Regina v. Barber et Ex parte Warehousemen and Miscellaneous Drivers Union Local 411 1968 CanLII 446 (ON CA), [1968] 2 O.R. 245 at p. 253:
.Nor does the subsection [section 34(7) of The Labour Relations Act] alter the principles of law as to the construction of written documents, and the rule which permits extrinsic evidence of intention to be considered only in construing ambiguous writings is essentially one of construction. Where a writing is unambiguous such evidence, although received, cannot be used to construe it. It is true that at least in some respects a collective agreement is different from an ordinary commercial agreement. But the principle that requires the intention of parties to be derived from their plain written words rather than from extrinsic evidence is one applicable to all writings clearly defining rights between parties.
Looking strictly to the terms of the 1980 - 1982 collective agreement the Board concludes that it is the employer who bears the responsibility for supplying the screws and nails. The agreement is silent on the issue. An obligation for the employees to supply these critical and costly materials cannot be imposed by silence.
The Board's interpretation of the 1980 - 1982 collective agreement is further supported by the negotiating history and the significant change that occurred between the wording of the 1977 - 1980 agreement and the instant agreement. While past practice may not be relied upon in the interpretation of a collective agreement in the absence of ambiguity, prior agreements between the same parties may be. In D. Brown and D. Beatty, Canadian Labour Arbitration (1977) Canada Law Book at p. 167 this principle is summarized as follows:
The histories of agreements, that is, preceding collective agreements,.. are accepted into evidence so as to determine the intention of the parties with regard to any changes made in the relevant section. That is, preceding agreements are utilized to assist in determining the nature of and reason for the change so as to more clearly reveal the parties' intention.
(See also St. Lawrence Starch Co. Ltd. (1947), 1 L.A.C. 44 (Wright); Canada Packers Ltd. (1962), 12 L.A.C. 299 (Curtis); and A. V. Roe Canada Ltd. (1954), 5 L.A.C. 1930 (Laskin).)
Whether the provisions of the 1977 - 1980 collective agreement as amended by the second amending agreement relating to houses were uniformly applied by employers or not does not alter the conclusion that pursuant to section 44(5) of the Labour Relations Act the two amending agreements duly executed by the parties effectively amended the terms of the 1977- 1980 collective agreement. Accordingly, from 1978 through 1980 the parties were bound by a collective agreement which specifically provided that the drywall employees both in apartments and houses were obligated to supply their own screws and nails. The parties entered negotiations in 1980 with a view to renewing a collective agreement which explicitly required employees to pay for screws and nails. They then negotiated a collective agreement which on its face removed that obligation. Having specifically negotiated the obligation into its previous collective agreement, the Board must conclude that the removal of the clause from the existing collective agreement reflects an intention to remove the obligation.
With respect to the alleged wrongful stoppages of work in June 1980, the Board concludes that even if wrongful conduct occurred', a finding we do not make, we would decline to make a declaration. The complaint in this regard is stale. There is no evidence to suggest precisely who engaged in work stoppages or when. As well, it is common ground that such stoppages are not ongoing.
For the reasons set out above the Board makes the following declarations and orders:
(i) That the employees are not obligated under the terms of the collective agreement in effect between the parties to pay for or supply the screws and nails used in drywall work.
(ii) That the employer must pay the full piece work rate and cannot deduct from that rate or charge back to the employees an amount for screws and nails.
(iii) That the employer abide by the terms of the collective agreement.
(iv) That the employer fully compensate the employees for losses resulting from their violation of the collective agreement.
- The Board remains seized of this matter in the event that a dispute arises between the parties relating to the interpretation or implementation of this determination.
DECISION OF BOARD MEMBER C.A. BALLENTINE;
I concur completely with the decision of the Board in this instant case.
This case raises a great concern to me in regard to justice and fairness to the employees. It is difficult for me to understand how the union could agree to a condition as they did by the amendment of June 5, 1978, that their members would be required to pay for the screws and subsequent in the amendment of October 1978, screws and nails, especially without putting a maximum amount on what the employees would be charged for the screws and nails by the companies.
It is obvious that the union had to correct this situation in the negotiations for the 1980-82 agreement, otherwise it would have allowed the companies to continue to fix a unilateral charge upon the employees for screws and nails on their piece work rate.
Notwithstanding my concern about the charging of employees for screws and nails, I have a concern on the whole practice of piece work. This practice was dealt with by Judge Harry Waisberg in his "Report of the Royal Commission on Certain Sections of the Building Industry, 1974". While dealing with the Drywall Industry, Vol. 1, page 2, His Honour stated: "Piecework is anathema [curse of God] to trade unions"(emphasis added). We find, however, that it has been accepted by some locals faced with serious competition. The contractors prefer piece work; they consider that it is necessary where supervision is difficult, and it also allows for cost control.
With respect to the alleged wrongful stoppages of work in June 1980, I wish to add that the respondents had open to them a remedy under section 123 if they chose to exercise it. The Board dealt with this issue in The Metropolitan Toronto Apartment Builders Association case, [1978] OLRB Rep. Nov. 1022, at p. 1035, paragraph 48:
While there is proof that picketing incidents did occur and that they gave rise to work stoppages, the evidence does not establish to the satisfaction of the Board that these incidents were authorized by the council or its officers. The evidence of these incidents was somewhat scanty particularly in respect of those incidents that occurred sometime ago. If persons wish remedial relief in respect of this kind of activity, as a practical matter, they must bring an application to the Board when the events are fresh and the Board is better able to assess the evidence. At that point, if illegal activity is established, the Board can issue an order restraining this illegal conduct, and prevent any further damage that might result from it.
It is trite for a respondent to raise alleged wrongful activities after a section 11 2a has been filed by a union, some considerable time later.