[1982] OLRB Rep. November 1589
1088-82-M Labourers' International Union of North America Local 183, Applicant, v. C.D.C. Contracting, a division of Patron Contracting Limited, Respondent
BEFORE: Kevin M. Burkett, Alternate Chairman and Board Members P. J. O'Keeffe and J. A. Ronson.
APPEARANCES: W. Jackes, J. Colacci and Michael J. Reilly for the applicant; Robert Statton and Pat Pellitteri for the respondent.
DECISION OF THE BOARD; November 1, 1982
1This is an application brought under section 124 of the Act in which it is alleged that the respondent employer, as party to a collective agreement with the applicant, has failed to make the required remittances in respect of welfare, pension, vacation pay and statutory holiday pay, industry fund, training fund, working dues and regular monthly dues.
2The respondent took the position at the outset that it was not bound by a collective agreement in respect of sewer and watermain work. It is primarily engaged in sewer and watermain work. It is primarily engaged in sewer and watermain work.
3The applicant union introduced into evidence an agreement between itself and the respondent company dated September 9, 1981. This agreement, hereinafter referred to as the short agreement, was signed by both parties and provides in part:
(1) The Union and C.D.C. agree to execute the present standard industry collective agreements in the concrete and drain industry and the sewer and watermain industry forthwith, and the future renewals thereof.
(2) C.D.C. agrees to provide the Union with a list of its projects currently in progress.
(5) The Union and C.D.C. acknowledge and agree that the terms and conditions of the Collective Agreement executed by the Union and C.D.C. shall be only effective as of May 1, 1982 for the concrete and drain agreement and April 28, 1982 for the sewer and watermain agreement, except as provided for in paragraph 4.
The applicant takes the position that this document constitutes a binding collective agreement covering the sewer and watermain work performed by the respondent company.
4The applicant union also introduced into evidence another agreement between the parties dated September 9, 1981, hereinafter referred to as the concrete and drain agreement. This document takes the form of a collective agreement and provides in Article 2 as follows:
RECOGNITION:
2.01 The Employer recognizes the Union as the sole and exclusive bargaining agent for all construction employees of the Employer employed in concrete and drain work while working in and out of Ontario Labour Relations Board geographic area No. 8, save and except non-working foremen and persons above the rank of non-working foreman.
2.02 If and when the Employer, or any shareholder(s) holding a major equity of control therein, shall perform or shall cause to be performed any work covered by this Agreement under its own name or under the name of another as a person, corporation, company, partnership, enterprise, associate, combination or joint venture, provided the Employer has a majority position, this Agreement shall be applicable to all such work performed under the name of the Employer or the name of any other person, corporation, company, partnership, enterprise, associate, combination or joint venture.
This agreement goes on to provide in article 10.04 as follows:
If the Employer performs work covered by the Union's other collective agreements, as set out below, the work shall be performed under this Agreement according to the terms and conditions of the Union's applicable agreement:
(a) "The Roads Agreement" being a collective agreement between the Metropolitan Toronto Road Builders' Association and A Council of Trade Unions acting as the representative and agent of Teamsters Local 230 and the Union.
(b) "The Sewer and Watermain Agreement" being a collective agreement between the Metropolitan Toronto Sewer & Watermain Contractors' Association and A Council of Trade Unions acting as the representative and agent of Teamsters Local 230 and the Union.
(c) "The Heavy Engineering Agreement" being a collective agreement between the Heavy Construction Association of Toronto and the Union.
(d) "The Forming Agreement" being a collective agreement between the Ontario Form Work Association and the Form Work Council of Ontario.
(e) "The Apartment Builders Agreement" being a collective agreement between the Metropolitan Toronto Apartment Builders' Association and the Union.
(f) "The Utilities Agreement" being a collective agreement between the Utility Contractors' Association on [sic] Ontario and Labourers' International Union of North America, Ontario Provincial District Council and its affiliated Local Unions.
5After entertaining extensive submissions from the parties, the Board recessed and then made an oral ruling which it hereby confirms. The Board ruled, relying on the language of para 1. of the short agreement, which stipulates that the parties "agree to execute the present standard industry collective agreements in the concrete and drain industry and the sewer and watermain industry forthwith" and the language of para. 5 which speaks of "the collective agreements executed by the union and C.D.C.", that the short agreement is not a collective agreement within the meaning of the Act. The Board ruled that the short agreement was not a collective agreement but in fact an agreement to enter into two collective agreements.
6The Board went on to rule that the concrete and drain agreement, under which the employer recognizes "the union as the sole and exclusive bargaining agent for all construction employees of the employer in concrete and drain work .. ." constitutes a collective agreement within the meaning of the Act to which the applicant trade union and the respondent employer are bound. There is no other collective agreement between the parties.
7With the exception of a limited amount of concrete and drain work performed in the late fall of 1981, the respondent employer has worked exclusively in sewer and watermain construction since entering into the concrete and drain collective agreement with the applicant union on September 9, 1982. The respondent argues that because it is not a party to a collective agreement with the applicant covering sewer and watermain work, it is not liable for any remittances in connection with the sewer and watermain work performed by it. The applicant union, relying on article 10.04 of the Concrete and Drain Agreement, maintains that the employer is liable for all of the remittances required under the Sewer and Watermain Agreement. The employer responds by arguing that article 10.04 of the Concrete and Drain Agreement covers only those employees of the company who have performed concrete and drain work for the company and are subsequently assigned to sewer and watermain work. In any event, the respondent takes the position that because the Sewer and Watermain Agreement ceased to operate on August 25, 1982 there can be no obligation under article 10.04 of the Concrete and Drain Agreement to make remittances in accord with the Sewer and Watermain Agreement from that date forward. There is no dispute that the Sewer and Watermain Agreement ceased to operate in accord with the Act on August 25, 1982.
8We hereby confirm our oral ruling given at the hearing that article 10.04 of the Concrete and Drain Agreement obligates the employer to perform sewer and watermain work under the Concrete and Drain Agreement according to the terms and conditions set out in the Sewer and Watermain Agreement. Article 10.04 is framed to cover all sewer and watermain work performed by the employer. It brings that work within the scope of the concrete and drain agreement but incorporates by reference the terms and conditions contained in the Sewer and Watermain Agreement. The employer cannot escape the effect of article 10.04 by maintaining a separate group of employees to perform sewer and watermain work. If the employer performs sewer and watermain work, as did the respondent in this case, that work is performed under the concrete and Drain Agreement and the terms and conditions of the Sewer and Watermain Agreement apply.
9Having regard to the foregoing, the Board ruled that from the period September 9, 1982 to August 25, 1982 the employer was bound by article 10.04 of the Concrete and Drain Agreement and accordingly, was required to make all of the remittances stipulated in the Sewer and Watermain Agreement for all sewer and watermain work performed in the period September 9, 1981 to August 25, 1982. The Board did not rule on the quantum but remitted the matter back to the parties and remained seized in the event the parties could not agree.
10Turning to the period after August 25, 1982. Article 10.04 of the Concrete and Drain Agreement does not expressly address the intent of the parties in the eventuality that one of the "applicable agreements" referred to in article 10.04 ceases to operate during the term of the Concrete and Drain Agreement. In the absence of express language in this regard, there are two possible interpretations which can be given the language of article 10.04. The parties may have intended to give the employer an absolute discretion with respect to determining the terms and conditions which are to govern the performance of work under an "applicable agreement", pursuant to article 10.04 of the Concrete and Drain Agreement, after the "applicable agreement" has ceased to operate but before it is renewed. Conversely, the parties may have intended that in these circumstances the terms and conditions contained in the "applicable agreement" prior to its ceasing to operate would continue to govern the performance of this work until a renewal "applicable agreement" is in place.
11In the face of the obvious intention of the parties to regulate the performance of this work and to provide for specified terms and conditions of employment in respect of it under article 10.04, we are inclined to the view that the parties intended the terms and conditions of the "applicable agreement" to continue to govern the performance of work under article 10.04 of the Concrete and Drain Agreement after it ceases to operate but before a renewal "applicable agreement" is in place. We do not accept that the parties would have intended to regulate the terms and conditions pertaining to this work except in the event, and for however long, an "applicable agreement" ceases to operate. The better interpretation, and the one that we adopt, requires the employer, if performing work under article 10.04, to provide the terms and conditions under the "applicable agreement" even where the "applicable agreement" has ceased to operate and has not yet been renewed.
12The evidence in this case is that the employer performed sewer and watermain work under article 10.04 of the Concrete and Drain Agreement after August 25, 1982; the date after which the Sewer and Watermain Agreement (the "applicable agreement") ceased to operate. Having regard to all of the foregoing, the employer is required under article 10.04 of the Concrete and Drain Agreement to provide terms and conditions in accord with the expired Sewer and Watermain Agreement in respect of this work and we hereby so declare. Accordingly, the employer is hereby directed to make the remittances to the union which would have been made had it abided by the provisions of article 10.04 of the Concrete and Drain Agreement. We will remain seized in the event of any difficulty with the implementation of our award in this matter.