London Sandblasting & Painting Limited v. International Brotherhood of Painters & Allied Trades, 1982 CanLII 1038

[1982] OLRB Rep. September 1322

0001-82-M London Sandblasting & Painting Limited, Employer, v. International Brotherhood of Painters & Allied Trades and the Ontario Council of the International Brotherhood of Painters & Allied Trades, and International Brotherhood of Painters & Allied Trades, Local 1783, Trade Unions, v. Painters' Employer Bargaining Agency, Ontario Painting Contractors Association and Labour Relations Bureau of the Ontario General Contractors Association, Interveners

BEFORE: Ian Springate, Vice-Chairman, and Board Members J. Wilson and C. A. Ballentine.

APPEARANCES: P. M. Rusak, Anthony Sleegers and Wm. Sleegers for the Employer; A.M. Minsky, L. Banack and A. Colafranceschi for the Trade Unions; Robin B. Cumine, Q. C., Herb Butcher and Cliff Haney for the Employer Bargaining Agency and the Ontario Painting Contractors Association; G. Grossman for the Labour Relations Bureau of the Ontario General Contractors Association.

DECISION OF THE BOARD; September 9, 1982

1. This is a reference to the Board from the Minister pursuant to section 107 of the Labour Relations Act.

2. London Sandblasting & Painting Limited ("London") is a sandblasting and painting contractor located in the City of London. Although the firm has apparently done some construction work, the parties are in agreement that most of its work has been outside of the construction industry.

3. London does not seriously dispute the claim that with respect to the industrial, commercial and institutional sector of the construction industry (the "ICI sector") it is bound by the terms of a provincial agreement between a designated employer and a designated employee bargaining agency. The employee bargaining agency is comprised of the International Brotherhood of Painters and Allied Trades and the Ontario Council of the International Brotherhood of Painters and Allied Trades, of which Local 1783 was a member until its merger with Local 1590. For ease of reference, the Unions and the Council of Unions will henceforth be referred to simply as "the Union". The employer bargaining agency is comprised of three employer associations. Two of these, namely, the Acoustical Association of Ontario and Interior Systems Contractors Association of Ontario, are concerned primarily with drywall taping, plastering and related work. The third employer association is the Ontario Painting Contractors Association (the "OPCA"), which has as members employers engaged in painting, sandblasting and related work.

4. While London does not seriously dispute the claim that it is bound to the terms of the provincial agreement in the ICI sector of the construction industry, it takes strong issue with the contention of the Union and the OPCA that the terms of the agreement are also binding on London in the other sectors of the construction industry, as well as on non-construction work.

5. In November of 1981, the Union filed a grievance against London contending that it was failing to abide by the terms of the provincial agreement. This grievance was referred to the Board for determination under section 124 of the Act. (See File No. 1975-81-M.) In February of 1982, the Union filed yet another grievance against London for allegedly violating the agreement, and this too was referred to the Board for determination. (See File No. 0060-82-M.) In that the Board's jurisdiction under section 124 is limited to grievances arising out of the construction industry, the Union decided that a "private" arbitration board or boards should be constituted to hear the grievances. London, however, declined to appoint a nominee to an arbitration board, claiming that the work in issue was all non-construction work and hence outside the scope of the agreement that the Union was purporting to grieve under. The Union then requested that the Minister exercise his authority under section 44(4) of the Act and appoint a nominee to act on London's behalf. London objected to the Minister making such an appointment, and the Minister referred the matter to the Board.

6. At the hearing, the parties were in agreement that there had been a misunderstanding among the Ministry of Labour officials handling this matter concerning the true basis for London's objection to having the Minister appoint a nominee to an arbitration board on the Company's behalf. The parties were also in agreement that as a result of this misunderstanding, the Minister had posed the "wrong" question to the Board. The question posed by the Minister was whether he had the authority to appoint a member to an arbitration board "having regard to the pending proceedings before the Labour Relations Board under section 124 of the Act". The parties agree that since this Board cannot concern itself with non-construction industry grievances, the two section 124 referrals cannot by themselves bar a consideration of the grievances insofar as they relate to non-construction work by one or more "private" arbitration boards. Indeed, the parties reached agreement that if one or more such boards are established, it or they should deal with all aspects of the grievances, both construction and non-construction, notwithstanding the two section 124 referrals. In these circumstances, we propose to concern ourselves with the real issue in dispute between the parties, and to advise the Minister as to our views thereon.

7. The evidence establishes that it is not unusual for a painting and sandblasting contractor to do both construction and non-construction work. Although the proportion between ICI construction and other types of work varies from contractor to contractor, over half of all the work performed by all "unionized" painting and sandblasting contractors in Ontario is non-ICI work. We are satisfied that prior to the advent of provincial bargaining in 1978, a practice had developed of negotiating collective agreements covering all types of construction and non-construction work as well.

8. London had been involved with negotiations with the Union at least as far back as 1971. In that year a collective agreement was entered into between the Union's Ontario Council and the Painting & Decorating Contractors Section of the London and District Construction Association. Not only was London a member of this association, but one of its officers signed the collective agreement. The "scope of work" clause of the collective agreement was very broad and appeared not to be limited only to construction work. The evidence indicates that the agreement was in fact applied to both construction and non-construction work.

9. The collective agreement referred to above was replaced by a similar agreement in 1973. In 1975, a single province-wide agreement was entered into between the Union and the Labour Bureau of the Painting & Decorating Contractors Association. There is no evidence before us to indicate that London was a member of this association or bound by the terms of the collective agreement. It is of some interest to note, however, that the "scope of work" clause in the agreement was almost identical to that found in the earlier London area agreements to which London had been bound.

10. In late 1976 or early 1977, the OPCA was formed. On February 10, 1977, London applied for membership in the association. London's application, which was accepted at an OPCA meeting held on February 16, 1977, stated as follows:

"The undersigned hereby applies for membership in Ontario Painting Contractors Association and agrees to abide by and be bound by the provisions of the Letters Patent and By-laws of the said Association as amended from time to time."

The By-laws of the OPCA provided as follows:

"7. Duties and Obligation of Membership

Each member of the Association shall, by virtue of his application for and admission into membership in the Association be deemed to have agreed to and accepted all of the conditions, duties, rights and obligations contained in the letters patent and supplementary letters patent, if any, or the by-laws as amended from time to time, and without limiting the generality of the foregoing shall be deemed to have agreed as follows:

(a) To assign to the Association his rights to bargain collectively on his behalf with each and every trade union or council of trade unions with which he is required or becomes required during his membership to bargain collectively with respect to any of his employees in Ontario employed in the painting and decorating industry; provided that this shall not apply to the right to bargain with those unions or council of trade unions with which he is obligated at law to bargain collectively through another employers' association;

(b) To authorize and appoint the Association as his exclusive agent to bargain collectively on behalf of himself and all other members with those trade unions or council of trade unions with respect to which the member has assigned his bargaining rights to the Association, and to enter into a collective agreement or collective agreements or other agreements, undertakings or contracts with such trade unions or council of trade unions in accordance with the provisions of this by-law and on such terms as the Association considers proper, and to amend, vary, modify, extend, suspend or terminate such agreements."

(emphasis added).

11. On February 10, 1977, Mr. A. Sleegers, the President of London, executed the following document:

"THE LABOUR RELATIONS ACT

AUTHORITY OF EMPLOYER TO ONTARIO PAINTING

CONTRACTORS ASSOCIATION

LONDON SANDBLASTING & PAINTING LTD.

(Name of Employer)

(hereinafter called 'the Employer') hereby appoints the ONTARIO PAINTING CONTRACTORS ASSOCIATION to act on behalf of the Employer in all aspects of and all matters concerning or arising out of any collective agreement currently in force between the Employer and the Brotherhood of Painters, Decorators and Paperhangers of America, any Local Union thereof or Council of Local Unions thereof; and

hereby assigns to and vest in the ONTARIO PAINTING CONTRACTORS ASSOCIATION all rights to bargain on its behalf and enter into collective bargaining agreements or any renewal thereof or extension or modification thereto with the Brotherhood of Painters, Decorators and Paperhangers of America, any Local Union thereof or Council of Local Unions thereof in connection with any of the employees of the Employer, and hereby vests in the ONTARIO PAINTING CONTRACTORS ASSOCIATION all necessary and appropriate authority to enable it to discharge all of the responsibilities of an accredited bargaining agent pursuant to the Labour Relations Act of Ontario;

and further appoints the ONTARIO PAINTING CONTRACTORS ASSOCIATION as its agent and representative to make an application or applications for accreditation or to apply to be designated as an employer bargaining agency under the Labour Relations Act of Ontario with respect to such sector or sectors and for such geographical area or areas as it may deem appropriate."

(emphasis added)

12. The other parties did not dispute the contention of counsel for London that the corporate seal of the Company had never been affixed to the assignment of bargaining rights document set out in the preceding paragraph. In our view, however, the lack of a corporate seal does not make the document defective. In any event, section 51 (then section 43) of the Act provides that unless a union is notified to the contrary, an employers' association is deemed to bargain on behalf of all of its members and accordingly, all of its members are bound by the terms of any resulting collective agreement. The Union was never advised to the contrary, and accordingly, London became bound to any collective agreements entered into by the OPCA. We would note that shortly prior to the hearing in this matter London purported to withdraw its membership in the OPCA. We are satisfied that this purported withdrawal cannot affect the matters dealt with in these proceedings, albeit that it may well affect the future relationship between the parties.

13. It is to be noted that the by-laws of the OPCA as well as the authorization form set out above did not restrict the OPCA's ability to bargain on behalf of London to the construction industry. In these circumstances, and in light of the accepted practice in the industry of bargaining for both construction and non-construction work together, we are satisfied that London, through its membership in the OPCA, authorized the OPCA to bargain on its behalf with respect to both construction and non-construction work.

14. In July of 1977, the OPCA and the Union entered into a province-wide collective agreement. As a member of the OPCA, London was clearly bound by this agreement. The scope of work clause contained in the agreement was virtually identical to that contained in the London area agreements and the earlier province-wide agreement referred to above. No distinction was made between construction and non-construction work. The evidence indicates that the agreement was in fact applied to both types of work.

15. The next relevant collective agreement in time was the first provincial agreement in 1978. As already noted, the OPCA and two other employer associations were together designated as the employer bargaining agency. The provincial agreement was comprised of a brief "master agreement" and a number of appendices. Appendix "A", which was negotiated by the OPCA, was referred to as the Painters' Appendix. The 1980 provincial agreement had a similar format, except that the OPCA negotiated portion of the provincial agreement was not headed up "Appendix 'A'" but rather "Agreement 'A'". There was also an Agreement "B" relating to employees such as drywall tapers and plasterers, as well as an Agreement "C" relating to employees engaged in floor laying. It should be noted that with respect to both the 1978 and 1980 provincial agreements the appendix and the agreement negotiated by the OPCA contained a scope of work clause in the previous collective agreements referred to above. At the end of the 1980 "Agreement 'A'" was a signing page with signatures on behalf of the Union and the OPCA. This was in addition to the signing page at the end of the master portion of the provincial agreement which was signed on behalf of the Union and all three employer associations. The heading and first three articles of "Agreement 'A'", including the scope of work clause, are set out below:

"AGREEMENT 'A'

BETWEEN:

THE ONTARIO PAINTING CONTRACTORS ASSOCIATION

(hereinafter referred to as the 'Employer')

• and-

THE INTERNATIONAL BROTHERHOOD OF PAINTERS AND ALLIED TRADES AND THE ONTARIO COUNCIL OF THE INTERNATIONAL BROTHERHOOD OF PAINTERS AND ALLIED TRADES

(hereinafter referred to as the 'Union')

WHEREAS The Ontario Painting Contractors Association is a member of the designated Employers Bargaining Agency;

AND WHEREAS the said Employers Bargaining Agency has authorized and directed The Ontario Painting Contractors Association to negotiate Agreement 'A' with respect to employees engaged in painting and related fields;

ARTICLE 1

PURPOSE AND RELATIONS

1.01 It is the general purpose of this Agreement to promote and improve industrial and economic relations between the Employer and the Union; to assure the continuous, harmonious, efficient, economical and profitable operation of the Employer, to prevent strikes and lockouts, and other disturbances or interferences with production; to secure and sustain high productivity during the term of this Agreement and to obtain the highest level of Employee efficiency and performance; and to set forth the entire Agreement between the Employer and the Union, and the Employees in the Bargaining Unit concerning rates of pay, hours of work and working conditions of employment. It is therefore agreed that the understanding contained herein shall be binding upon all members of both parties, either individually or collectively by facilitating just and peaceful settlements of disputes and grievances.

ARTICLE 2

THE SCOPE OF THE WORK

2.01 The application and/or removal of protective and/or decorative coatings which might be referred to as paints, which in the general sense are; — paints, stains, varnishes, emulsions, bituminous coatings and other organic coatings or inorganic coatings which are applied in the same manner as paints or plastics or mastics, hypalon coatings, fiberglassing and caulkings, clear sealer applications, application of all seamless floor coatings, sandblasting for decorative purposes and all other types of sandblasting, all phases of

metallizing, the application of under water coatings, all markings, stenciling or equipment, machinery, etc., with paint, adhesive stickers or spray bombs, the use of reflective tapes in this field of work and the application of all other material used in the various branches of the Trade.

The hanging of all wall covering applied with paste or other adhesives, such as papers, cottons, muslings, burlap, grass cloth, vinyl wall coverings, epoxy [sic] combination coverings, resin cambric backed, etc., and all other wall coverings including the application of rubber sheeting for tank lining and the application of gold or silver and all other metal leaf, etc.

All incidental preparatory work necessary to carry out work outlined above, such as patching small defects in surfaces, puttying, sanding, rubbing, cleaning surfaces with steam or other processes to include hydrojet cleaning (high pressure water), sandblasting, pickling, bleaching, buffing, sealing, machinery and manual scraping, flame cleaning, the application of cleaning fluids, rust inhibitors, taping covering surfaces for their protection from paint, etc., including the use of miscellaneous hand and power driven tools and equipment required for work coming under this jurisdiction, the filling of spray pots and sand pots, the application of all sealers inside or outside, the application of all colour code distinguishing marks and the application of all protective and decorative coatings on all piping, insulated or otherwise.

Building cleaning is defined as the process of removing dirt, stain or discoloration or any unwanted films by use of manually operated scrubbing techniques or by power operated machinery or equipment such as steam blast, water jet blast and/or such other process as will suffice to accomplish the cleaning of buildings, ships, structures, etc.

ARTICLE 3

EMPLOYEE DEFINITION AND RESPONSIBILITY

3.01 An Employee is defined as a Journeyman painter, apprentice painter, paperhanger, fabric hanger, decorator, sandblaster, spray applicator, swingstage man, foreman or sub-foreman, working for any individual firm, co-partnership or corporation. He shall be in good standing with the Union and have completed his apprenticeship and have passed a required examination as to his proficiency as a mechanic to perform the duties pertaining to the painting and decorating industry as an Employee.

3.02 It is the responsibility of each Employee to provide the

appropriate personal equipment."

16. The evidence establishes beyond any doubt that when the OPCA and the Union negotiated "Agreement 'A'" they understood and intended that it would apply to both construction and non-construction work, and that by and large members of the OPCA have in fact applied it to both types of work. It is alleged by the Union, however, that commencing in 1981, London failed to apply the terms of the agreement.

17. The position of the Union and the OPCA is that London was bound to the terms of "Agreement 'A'" between the Union and the OPCA with respect to both construction and non-construction work. London, however, contends that it was, at most, bound by the agreement only in the ICI sector of the construction industry. In support of this contention, London relies on the fact that the provincial bargaining sections of the Act relate only to the ICI sector of the construction industry, that section 137(e) defines a "provincial agreement" as one covering employees in the ICI sector, and that pursuant to section 143(a), the rights of individual employers vest in an employer bargaining agency only for the purpose of concluding a provincial agreement.

18. Having regard to the scheme of provincial bargaining as set out in the Act, and section 143(a) in particular, we are satisfied that with respect to any painting or sandblasting contractor for whose employees the Union holds bargaining rights, but which contractor is not a member of the OPCA, the contractor is bound by the terms of the provincial agreement, including Agreement "A", only with respect to the ICI sector of the construction industry. See Fred Jantz Masonry Construction Company Limited, [1981] OLRB Rep. Sept. 1229. With respect to other sectors of the construction industry, and non-construction work, it would be up to the Union and such a contractor to negotiate one or more separate agreements.

19. London, however, is not in the position such as that described in the preceding paragraph, for London did become a member of the OPCA. Accordingly, the OPCA did have the right to negotiate on behalf of London for the non-ICI sectors of the construction industry as well as for non-construction work. Rather than negotiate a separate agreement or agreements for this work, the Union and the OPCA decided to negotiate a single document which relates to all types of work. We are satisfied that in so far as the ICI sector was concerned, the OPCA was acting on behalf of the designated employer bargaining agency and exercising rights vested under section 143(a). With respect to the other sectors of the construction industry and non-construction work, however, we are satisfied that it was acting as an employers' association on behalf of its members, including London. Accordingly, we are of the view that London is bound to the agreement not only as a provincial agreement covering the ICI sector, but as a collective agreement covering the other sectors of the construction industry and non-construction work as well.

20. London's objection to having the Minister appoint a nominee on its behalf to a board or boards of arbitration is based on its claim that the agreement being grieved under does not cover non-construction work. We are satisfied that the agreement does in fact cover non-construction work, and that accordingly the Minister does have the authority to appoint a nominee on behalf of London to a board or boards of arbitration to deal with the grievances filed by the Union.

21. As commented earlier, the parties are in agreement that if a board (or boards) of arbitration is to be established, it would be preferable if it (or they) dealt with the grievances in their entirety, rather than have any construction industry component dealt with under section 124. This being the case, the referrals in File Nos. 1975-81-M and 0060-82-M are hereby terminated.