Ontario Sheet Metal Workers' Conference v. Culliton Brothers Limited

[1982] OLRB Rep. March 357

2245-81-M Ontario Sheet Metal Workers' Conference, Applicant, v. Culliton Brothers Limited, Respondent

BEFORE: R. A. Furness, Vice-Chairman, and Board Members H. J. F. Ade and C. A. Ballentine.

APPEARANCES: A. M. Minsky and R. Belleville for the applicant; G. Grossman, Keith Culliton and George Culliton for the respondent; David Davies, Brian Schade, Mike Young, George Warnock and John Brennan for a group of employees of the respondent's sheet metal division.

DECISION OF THE BOARD; March 17, 1982

1. The applicant has referred a grievance concerning the interpretation application, administration or alleged violation of a collective agreement to the Board for final and binding determination.

2. The Ontario Sheet Metal and Air Handling Group (the "Group") was served with notice of this referral and of hearing. The Group did not attend at the hearing. However, in a letter its counsel informed the Board that the Group endorsed the position of the applicant and submitted that the respondent is bound by the provincial collective agreement in effect between the Group and the applicant.

3. At the outset of the hearing it was agreed that the Board should determine the preliminary question concerning whether there is a collective agreement in effect and remain seized on the question of the amount of damages.

4. Keith Culliton joined R. T. McBride Plumbing and Heating ("McBride") as an employee on September 15, 1947. McBride was engaged in sheet metal work. In 1953, McBride was incorporated. On February 1, 1964, Mr. Cullition and another person purchased all of the shares in McBride, from Helen McBride, the widow of Mr. R.T. McBride. On February 1, 1968, an electric motor rewinding division was opened and on March 1, 1968, an electrical contracting division was opened. In 1976, the name of the company was changed to the name of the respondent. The respondent and its predecessor have performed work in the industrial, commercial and institutional sector of the construction industry since 1947. Over the last ten years about eighty per cent of its work has been in the industrial, commercial and institutional sector. The respondent has its place of business in the City of Stratford.

5. On February 18, 1972, the Mechanical Contractors Association of Ottawa ("MCAO") filed an application for accreditation with respect to the Sheet Metal Workers' International Association, Local Union 47 ("Local 47"). In a decision dated February 16, 1973, the Board accredited the MCAO as "the bargaining agent for all employers of sheet metal workers and sheet metal worker apprentices on whose behalf [Local 47] has bargaining rights in the following area, in the judicial District of Ottawa-Carleton and the United Counties of Prescott and Russell, the United Counties of Stormont, Dundas and Glengarry, the Counties of Grenville, Lanark and Renfrew and that part of the District of Nipissing south of a line from Mattawa on the Quebec border to the Northwest corner of Boyd Township, Southwest to the Northwest corner of Paxton Township in the industrial, commercial and institutional sector and residential sector". The certificate also recites a list of the employers for whom the MCAO became the bargaining agent under the certificate and concluded by stating "and such other employers for whose employees [Local 47] may after February 18, 1972, obtain bargaining rights through certification or voluntary recognition in the geographic area and sector [sic] set out in the unit of employers described herein". The name of the respondent does not appear on the list of employers set forth in either the certificate or the decision. Paragraph thirteen of the decision states:

6. Having regard to all the above findings a certificate of accreditation will issue to the applicant for the unit of employers found to be the appropriate unit of employers in paragraph 5 and in accordance with the provisions of section 115(2) [now section 12 7(2)] of the Act for such other employers for whose employees the respondent may after February 18, 1972, obtain bargaining rights through certification or voluntary recognition in the geographic area and sectors set out in the appropriate unit of employers.

(emphasis added)

6. In 1975 the respondent secured a contract with the City of Cornwall for the performance of most of the mechanical (including the sheet metal work) and all of the electrical work on a civic hall and arena (the "project"). The work on this project commenced in August or September of 1975 and was substantially completed in January of 1977. The respondent employed six or seven persons on the sheet metal work portion of the contract. The respondent also used a local contractor from Cornwall as a subcontractor on the project.

7. In a decision dated August 24, 1976, the Board issued a certificate to Local 47 with respect to a bargaining unit of employees of the respondent. The certificate which was issued pursuant to the decision dated August 24, 1976, defines the bargaining unit as "all sheet metal workers and sheet metal apprentices in the employ of Culliton Brothers Limited in the United Counties of Stormont, Dundas and Glengarry, save and except non-working foremen and persons above the rank of non-working foreman". The geographic area included in the definition of the bargaining unit is within the geographic jurisdiction of Local 47 and is also within the geographic area set forth in the certificate of accreditation.

8. In a letter dated September 3, 1976, to the respondent, Local 47 served written notice of a desire to bargain for a collective agreement. Local 47 proposed that a meeting be held at a certain hotel in Cornwall and stated that it looked forward to an early reply so that a meeting could be established at an early date. The solicitors for the respondent replied in a letter dated September 10, 1976, and asked for proposals. The solicitors added that after reviewing the proposals Raymond Guertin, the business manager of Local 47, would be contacted and a mutually satisfactory meeting date would be arranged.

9. In a letter dated Setember 13, 1976, Mr. Guertin sent Local 47's proposals to the respondent's solicitors. The proposals were apparently an unsigned copy of the collective agreement between Local 47 and the MCAO which by its terms was effective from May 1, 1975, until April 30, 1977, and a sheet of paper in the following form:

COLLECTIVE AGREEMENT

Between

LOCAL UNION 47

of the

SHEET METAL WORKERS'

INTERNATIONAL ASSOCIATION

AND

THE MECHANICAL CONTRACTORS

ASSOCIATION OF OTTAWA

(SHEET METAL DIVISION)

Effective From May 1,1975 to April 30, 1977

THE UNION - LOCAL UNION 47 SHEET METAL WORKERS'

INTERNATIONAL ASSOCIATION

AND

THE EMPLOYER - CULLITON BROTHERS LTD.,

Hereby agree to be bound by all provisions of this Collective Agreement.

Signed in the city of Ottawa, County of Carleton

this day of 19

FOR THE UNION FOR THE EMPLOYER

______________________ _____________________

_____________________

WITNESS

10. The respondent and Local 47 did not meet and on September 29, 1976, Robert Belleville, the business representative of Local 47, completed a request for the appointment of a conciliation officer. In a letter dated October 14, 1976, the Deputy Minister of Labour advised the respondent and Local 47 that a conciliation officer had been appointed and further advised that the conciliation officer would convene a meeting at a certain hotel in Ottawa on October 29, 1976. Keith Culliton and a solicitor who was acting for the respondent met with the conciliation officer and representatives of Local 47 in Ottawa on October 29, 1976. The respondent adopted the position that it would not sign the collective agreement as presented by Local 47. In a letter dated November 2, 1976, the Deputy Minister of Labour advised the parties that the Minister of Labour had decided not to appoint a Board of Conciliation in reference to the dispute between them. Since January of 1977, Local 47 has not been aware of the respondent working within its geographic jurisdiction. Local 47 has never filed a grievance with the respondent under a collective agreement and no contact occurred between the respondent and Local 47 from October of 1977 until Mr. Belleville (who has succeeded Mr. Guertin as business manager of Local 47) sent a letter dated February 16, 1981, to the respondent which stated:

Further to our Certificate from the Ontario Labour Relations Board awarding us the bargaining rights for all Sheet Metal personnel in your employ.

In accordance with the provisions of the Ontario Labour Relations Act, we request that you accept this letter as a written notice of a desire to bargain for a Collective Agreement.

We look forward to your early reply so that a meeting be established at an early date.

Mr. Belleville informed the Board that his intention was to see if the respondent would state its position with respect to whether it was bound by a collective agreement for the industrial, commercial and institutional sector. The respondent did not respond to this letter.

11. Mr. Belleville, who is also the secretary-treasurer of the applicant, and other officers of the applicant have monitored the commercial activity of the respondent throughout Ontario in a trade paper. With the coming into effect of Bill2O4 in May 1, 1980, the applicant has taken an increasing interest in the application of its provisions to the respondent. On the suggestion of Mr. Belleville, the applicant consulted its own solicitors and on January 14, 1982, its solicitors wrote the following letter to the respondent:

Dear Sirs,

Re: Provincial Agreement between Ontario Sheet Metal and Air Handling Group with Sheet Metal Workers' International Association and Ontario Sheet Metal Workers' Conference for its affiliated local union effective from May 1st, 1980 until April 30th, 1982 ("the Provincial Agreement")

Re: Violations of said Provincial Agreement by Culliton Brothers Limited

____________________________________________________

We are solicitors for Ontario Sheet Metal Workers' Conference ("the Union") and are now retained with respect to the following matter.

By certificate dated August 24th, 1976, the Ontario Labour Relations Board certified Sheet Metal Workers' International Association, Local Union No. 47 ("Local 47") as bargaining agent of all sheet metal workers and sheet metal workers' apprentices in the employ of Culliton Brothers Limited ("Cullition") in the United Counties of Stormont, Dundas and Glengarry, save and except non‑working foremen and persons above the rank of non-working foreman (O.L.R.B. File No: 0895-76-R).

On February 16th, 1973, the Board accredited the Mechanical Contractors' Association of Ottawa as the bargaining agent for all employers of sheet metal workers and sheet metal workers' apprentices on whose behalf Local 47 had bargaining rights in the Judicial District of Ottawa-Carleton and the United Counties of Prescott and Russel, the United Counties of Stormont, Dundas and Glengary, the Counties of Grenville, Lanark and Renfrew and that part of the District of Nipissing south of a line from Mattawa on the Quebec border to the north-west corner of Boyd Township, south-west to the north-west corner of Paxton Township in the industrial, commercial and institutional sector and residential sector (O.L.R.B. File Nos: 1635-71-R). Accordingly, upon the certification of local 47, as aforesaid, by operation of the Labour Relations Act, Culliton became bound to the then existing collective agreement between the accredited Association and Local 47 and, thereafter, the successive collective agreement between those parties which was effective from May 1st, 1977 until April 30th, 1978.

As a result of designation orders issued by the Minister of Labour in 1978, the Ontario Sheet Metal and Air Handling Group entered into a Provincial Agreement with the Sheet Metal Workers' International Association and the Union herein for the period May 1st, 1978 until April 30th, 1980 and thereafter, entered into the current Provincial Agreement effective from May 1st, 1980 until April 30th, 1982. By operation of the Labour Relations Act, Culliton was, therefore, bound by the initial such Provincial Agreement and has been and remains bound by the current Provincial Agreement between the aforementioned bargaining agencies.

We herewith give notice to you on behalf of our client and its affiliated bargaining agents that you are required to adhere to and apply all of the terms and conditions of the Provincial Agreement in respect to your employment of sheet metal workers and their apprentices at your projects in Ontario, including the projects at which our client is now aware, namely, Richmond Place, London, Ontario and the Hamilton General Hospital, Hamilton, Ontario. We wish to inform you that in the event of your failure to forthwith honor all of the terms and conditions of the Provincial Agreement, a copy of which is enclosed herewith, we have been instructed to commence grievance/arbitration proceedings as against Culliton pursuant to Section 124 of the Labour Relations Act to enforce the rights of our client and its affiliated local unions in this matter.

There was no response to this letter and on January 25, 1982, the solicitors for the applicant wrote the following letter to the respondent and the Group:

Dears Sirs,

Re: Provincial Agreement between Ontario Sheet Metal and Air Handling Group with Sheet Metal Workers' International Association and Ontario Sheet Metal Workers' Conference for its affiliated local unions, effective from May 1st, 1980 until April 30th, 1982 ("the Provincial Agreement");

Re: Violations of the said Provincial Agreement by Cullition Brothers Limited

____________________________________________________

We are solicitors for Ontario Sheet Metal Workers' Conference ("the Conference") and wrote to Culliton Brothers Limited ("Culliton") under cover of January 14th, 1982 to inform you that, inter alia, Culliton is in violation of the Provincial Agreement in connection with work covered thereby at its construction projects in Ontario and to request that Culliton apply all of the terms and provisions of the said Provincial Agreement. We are informed by our client that Culliton has continued to violate all the terms of the Provincial Agreement, notwithstanding our letter.

Accordingly, we herewith give notice that the Conference on its own behalf and on behalf of its affiliated local unions and their unemployed members, herewith grieves that, from and after May 1st, 1980 and continuing as of the date hereof, Culliton has violated and continues to violate the Provincial Agreement in connection with work covered thereby ("the Work") at its construction projects in Ontario, including the projects referred to in the attached Schedule ("the Projects") in that, Culliton has failed or refused to apply any of the terms and provisions of the Provincial Agreement to its employment of persons at its said Projects and, without limiting the generality of the foregoing, has failed or refused to:

1. employ only members in good standing in any of the affiliated local unions of the Conference, contrary to Article 8.1 of the Provincial Agreement;

2. sub-contract work only to employers who are bound by the Provincial Agreement, contrary to Article 9.1 thereof;

At all material times to this grievance, there have been, and still are,

(a) members in good standing of the affiliated local unions of the Conference; and/or,

(b) employers who are bound to the Provincial Agreement,

who are qualified to perform the Work at the Projects who are, and have been ready, willing and able to perform the Work for Culliton:

3. pay the proper hourly rates of pay, vacation pay, holidays and lost time pay and other premium rates of pay and allowances as set forth in and required by the Provincial Agreement and, in particular, the Appendices thereto;

4. contribute and make the required payments to the applicable local union Welfare Funds, Pension Funds, Supplementary Unemployment Insurance Benefit Funds, the Conference's Promotion Fund and Industry Fund and, where applicable, deductions for Union Dues and remit the same as and when required by the Provincial Agreement and the Appendices thereto;

RELIEF SOUGHT

(i) A Declaration that Culliton has violated and continues to violate the Provincial Agreement and Appendices thereto as hereinbefore set forth;

(ii) An Order that Culliton cease and desist from continuing to violate the Provincial Agreement and Appendices thereto as hereinbefore set forth;

(iii) An Order that Culliton employ only members in good standing of the affiliated local unions of the Conference to perform work in connection with any of its Projects in accordance with the Provincial Agreement and the Appendices thereto;

(iv) Further, or in the alternative, an Order that Culliton subcontract work covered by the Provincial Agreement only to employers who are bound by the said Provincial Agreement in accordance with Article 9 of the Provincial Agreement;

(v) An Order that Culliton cease and desist from employing or continuing to employ persons at any of its Projects who are not members in good standing of any of the affiliated local unions of the Conference;

(vi) An Order that Culliton forthwith apply the full terms and conditions of the Provincial Agreement and Appendices thereto to all of its employees who perform the Work at any of its Projects at which it may now or hereafter be engaged and, without limiting the generality of the foregoing, an Order that Culliton:

(a) pay the proper hourly rates of pay, vacation pay, holidays and lost time pay and other premium rates of pay and allowances as set forth in and required by the Provincial Agreement and, in particular, the Appendices thereto;

(b) contribute and make the required payments to the applicable local union Welfare Funds, Pension Funds, Supplementary Unemployment Insurance Benefit Funds, the Conference's Promotion Fund and Industry Fund and, where applicable, deductions for Union Dues and remti the same as and when required by the Provincial Agreement and the Appendices thereto;

(vii) Damages against Culliton by reason of the aforementioned violations of the Provincial Agreement and Appendices thereto including interest at the current bank rate together with the delinquency penalties provided in the Appendics of the Provincial Agreement;

(viii) An Order that culliton pay to the Conference such fees and expenses, legal or otherwise, as it may have incurred by reason of the aforementioned violations of the Provincial Agreement and the Appendices thereto; and

(ix) Such further and other relief as may be appropriate in the circumstances.

We wish to advise that we have been instructed to refer this grievance to arbitration by the Ontario Labour Relations Board pursuant to Section 124 of the Ontario Labour Relations Act.

On January 28, 1982, this referral was filed with the Board.

12. The respondent raised two issues in support of its position that there is no collective agreement in effect between the applicant and the respondent. The respondent argued that the bargaining rights had been abandoned and, in the alternative, that the applicant was estopped from asserting any bargaining rights which might otherwise exist. The respondent argued that Local 47 never acted from 1976 onwards as if it had a collective agreement and that a delay of four and a half years in pressing its allegations of bargaining rights raised questions of abandonment and estoppel. The respondent emphasized that from August of 1976 until January of 1977, Local 47 did not enforce its bargaining rights and did not file a grievance. The respondent also pointed out that the current provincial agreement had been in effect for approximately twenty months before the applicant alleged that it had bargaining rights with respect to the respondent. The respondent relied on the fact that even though the respondent had been working extensively throughout Ontario it had not previously been approached by the applicant with the suggestion that the provincial collective agreement applied to the respondent. The respondent referred to the fact that Mr. Belleville gave notice to bargain in February of 1981 and then did nothing until December of 1981 when he decided to seek legal advice.

13. The respondent referred to its employees in Stratford and to the fact that, during the period when the applicant is now claiming bargaining rights, the respondent had given two yearly wage increases to its employees who had not had any contact with the applicant.

14. The respondent argued that Local 47 was not entitled to ask the Board to ignore its course of conduct over a period of four and a half years and that the applicant should not be entitled to present itself to the Board and say that a collective agreement is binding on the respondent and its employees. The respondent stressed that the reality is that at best the employees would be forced to become members of the applicant as a condition of employment under the terms of the provincial collective agreement. In the view of the respondent, the applicant was estopped by its conduct from asserting that the provincial collective agreement should apply to the respondent.

15. The respondent concedes that on August 24, 1976, it was bound by the collective agreement between Local 47 and MCAO, which was in effect from May 1, 1975, until April30, 1977, by virtue of sections 127(2) and 128(4) of the Act. The respondent made this concession with hindsight at the hearing. Between August 24, 1976, and November 2, 1976, and for some time thereafter, neither the respondent nor Local 47 were aware of the results which flowed from the certification under a regime of accreditation and an existing collective agreement. On August 24, 1976, the respondent and Local 47 were bound by the terms of the collective agreement with respect to the geographic area set forth in the bargaining unit in the certificate of the Board in the industrial, commercial and institutional sector and the residential sector of the construction industry. It appears that the respondent's solicitor had forgotten about the certificate of accreditation and the results which flowed from it and that Local 47 was unaware of the effect of accreditation on its own certificate. The comedy of errors was compounded when Local 47 requested and received the appointment of a conciliation officer from the Minister of Labour followed by the subsequent decision of the Minister of Labour not to appoint a Board of Conciliation. Unhappily, such conduct in the face of an existing collective agreement is by no means unique. See, for example, Kroman's Electric Limited (Board File No. 1842-76-M, unreported decision dated March 16, 1977); Napev Construction Limited (Board File No. 1112‑77‑M, unreported decision dated December 28, 1977) and Sinclair Welding Limited (Board File No. 1914-79-R, unreported decision dated February 4, 1980).

16. The conduct of the respondent and Local 47 in purporting to bargain for a collective agreement in 1976 and the subsequent appointment of a conciliation officer and the subsequent decision by the Minister of Labour not to appoint a Board of Conciliation was of no lawful effect with respect to the bargaining unit contained in the collective agreement which was in effect from May 1,1975, until April 30, 1977. The respondent and Local 47 were prohibited by section 131(1) from individual bargaining with respect to the industrial, commercial and institutional sector and the residential sector. Moreover, the respondent and the employees represented by Local 47 would not have been in a position to engage in a lawful lock-out or a lawful strike with respect to the industrial, commercial and institutional sector and the residential sector having regard to the provisions of section 72(1).

17. The argument that bargaining rights have been abandoned requires consideration, bearing in mind the system of centralized collective bargaining that has been in place, initially, under a system of accreditation and subsequently under a system of provincial collective agreements which are negotiated between an employer bargaining agency and an employee bargaining agency. In Newman Bros. Limited, [1981] OLRB Rep. June 750, 761, the Board considered an argument with respect to the abandonment and stated:

18. There is, in the argument of the respondents, the concept that contact is necessary in order to maintain bargaining rights. However, where an affiliated bargaining agent or an employee bargaining agent has no reason to believe that a collective agreement is not being adhered to; the scheme of collective bargaining under the Act, whether under a system of accreditation or under province-wide bargaining, is not conducive to the personal contact which was often a sine qua non in the jurisprudence of the Board with respect to the principle of abandonment. Indeed, the Board has noted in Dravo of Canada Limited, [1977] OLRB Rep. Sept. 568, 572 that the lack of contact by a bargaining agent in the construction industry where there has been an absence of employees who would be covered by successive collective agreements would not support a finding of the abandonment of bargaining rights. While it may be debated that a bargaining agent might be more active and play a more investigative role in policing its collective agreements, such debates essentially relate to the adequacy or quality of representation rather than to the principle of abandonment. The disapproval of the Board with respect to the quality of representation has not in itself caused the Board to find an abandonment of bargaining rights. In this regard, see The Borden Company Limited case, [1976] OLRB Rep. July, 379, 382.

The respondent states that it is arguing the abandonment of bargaining rights. In the Board's jurisprudence the abandonment of bargaining rights has invariably been raised either where there is clearly no collective agreement or where there is a dispute as to whether a collective agreement is in effect through a process whereby a collective agreement has renewed itself due to a failure to give timely notice under the terms of a collective agreement. In subsequent paragraphs, the Board will trace the continuation of the bargaining relationship and the series of collective agreements which came into effect and which were binding on the applicant and the respondent.

18. While the respondent states that it is arguing the abandonment of bargaining rights, in our view, such an argument is not tenable. The Board characterizes the argument of the respondent as the abandonment of collective agreements, which unknown to the applicant, the respondent, Local 47, and the Group were applicable to them at various times and places. These collective agreements came into effect and were applicable to employers and trade unions beyond the immediate parties to the collective agreements by virtue of provisions of a public statute known as the Labour Relations Act. The application of these collective agreements under the provisions of the Labour Relations Act to the applicant, the respondent, Local 47 and the Group arose independently of their awareness by virtue of the operation of law. In these circumstances, the Board is not prepared to find that there has been an abandonment of bargaining rights or collective agreements.

19. As the Board noted earlier, the collective agreement between Local 47 and the MCAO expired on April 30, 1977. A new collective agreement between the same parties was made on May 20, 1977, and came into effect on May 1, 1977, with an expiration date of April 30, 1978. The respondent was once again bound by the terms of this collective agreement with respect to the geographic area set forth in the bargaining unit in the certificate of the Board in the industrial, commercial and institutional sector and residential sector of the construction industry. The amendments contained in The Labour Relations Amendment Act, 1977, S.O. 1977, c. 31 (often referred to as Bill 22) introduced the concept of province-wide bargaining and province-wide collective agreement between employer bargaining agencies and employee bargaining agencies in the industrial, commercial and institutional sector of the construction industry. In an employer bargaining agency designation dated March 21, 1978, made pursuant to section 127(l)(b) [now sector 139(l)(b)], the Minister of Labour designated the Group as the employer bargaining agency to represent in bargaining all employers whose employees were represented by certain affiliated bargaining agents (including Local 47). In an employee bargaining agency designation dated April 12, 1978, made pursuant to section 127(l)(a) [now sector 139(l)(a)], the Minister of Labour designated the Sheet Metal Workers' International Association and The Ontario Sheet Metal Workers' Conference consisting, inter alia, of Local 47, as the employee bargaining agency to represent in bargaining all journeymen and apprentice sheet metal workers, sheeters, sheeters' assistants and material handlers represented by certain affiliated bargaining agents (including Local 47 and the applicant).

20. Province-wide collective agreements were entered into with respect to the industrial, commercial and institutional sector of the construction industry between the employee bargaining agency and the employer bargaining agency referred to in the preceding paragraph. The first collective agreement was effective from May 29, 1978, until April 30, 1980. The second collective agreement became effective from May 1, 1980, until April 30, 1982. However, this second collective agreement became effective on the date that The Labour Relations Amendment Act, 1979 (No. 2) S.O. 1979, c. 113 (often referred to as Bill 204) came into effect. One of the effects of this amendment is now to be found in section 137(2) of the Act which provides:

Where an employer is represented by a designated or accredited employer bargaining agency, the employer shall be deemed to have recognized all of the affiliated bargaining agents represented by a designated or certified employee bargaining agency that bargains with the employer bargaining agency as the bargaining agents for the purposes of the collective bargaining in their respective geographic jurisdictions in respect of the employees of the employer employed in the industrial, commercial or institutional sector of the construction industry referred to in clause 117 (e), except those employees for whom a trade union other than one of the affiliated bargaining agents holds bargaining rights.

The respondent is represented by a designated employer bargaining agency and is deemed to have recognized all of the affiliated bargaining agents represented by a designated employee bargaining agency as the bargaining agents for the purpose of collective bargaining in their respective geographic jurisdictions in respect of the employees of the respondent employed in the industrial, commercial or institutional sector of the construction industry. It is through the series of steps referred to in this paragraph and paragraphs 16, 17, 18, 19 and 20 that the respondent is bound by the province-wide collective agreement which became effective from May 1, 1980, and which remains in effect until April 30, 1982.

21. The argument that the applicant is estopped by its conduct from asserting that the province-wide collective agreement should apply to the respondent raises the issue of whether estoppel may be raised by a party to prevent the operation of a public statute. The application and coverage of the present province-wide collective agreement and the extent to which previous collective agreements, which have been binding on the respondent since 1976, have come into operation as a result of the operation of a public statute - the Labour Relations Act. It is well established that the doctrine of estoppel cannot be evoked to prevent the operation of a public statute, see Maritime Electric co. v. General Davies Ltd., 1937 CanLII 293 (UK JCPC), [1937] AC. 610; MacKenzie v. Moore's Taxi Co. Ltd., 1938 CanLII 270 (MB KB), [1938] 2 D.L.R. 195, 199; Southend-on-Sea Corporation v. Hodgson (Wickford, Ltd., [1961]2 All E.R. 46;and Wallsv. Hanson (1965) 1964 CanLII 594 (NB COCT), 49 D.L.R. (2d) 435, 438. The Board is not prepared to find that the applicant is estopped by its conduct from asserting that the province-wide collective agreement applies to the respondent.

22. The position of the respondent's present employees who are not members of the applicant raises an important question. In section 137(2), the Legislature extended bargaining rights by means of deemed recognition of affiliated bargaining agents. This section is silent on the wishes of such employees. It was not suggested that the applicant is under any requirement either to offer these employees membership or not to require the termination of their employment with the respondent.

23. The Board has determined that there is a collective agreement in effect and directs the Registrar to list the matter for continuation of hearing on the issue of the amount of damages. The question of the position of the respondent's present employees may be raised at that time.