Ontario Sheet Metal Workers' Conference v. Culliton Brothers Limited, 1982 CanLII 990

[1982] OLRB Rep. November 1602

2245-81-M Ontario Sheet Metal Workers' Conference, Applicant, v. Culliton Brothers Limited, Respondent, v. Ontario Sheet Metal and Air Handling Group, Intervener.

BEFORE: N. B. Satterfield, Vice-Chairman and Board Members W. H. Wightman and C. A. Ballentine.

APPEARANCES: A. M. Minsky for the applicant; G. Grossman and K. A. Culliton for the respondent; Keith Billings and L. Cianfarani for the intervener; R. C. Sills for David Davies, George Warnock, John Brennan, Mike Young and Brian Schade, a group of employees of the respondent's Sheet Metal Division.

DECISION OF VICE-CHAIRMAN, N. B. SATTERFIELD AND BOARD MEM­BER W. H. WIGHTMAN; November 10, 1982

1. The matters herein arise out of a decision of the Board, differently consti­tuted, which issued March 17th, 1982 (reported at [1982] OLRB Rep. March 357) with respect to a referral of a grievance in the construction industry. The Board found in that decision that the applicant and the respondent were bound to a provincial agreement between the Ontario Sheet Metal and Air Handling Group ("the Group") and the Sheet Metal Workers' International Association ("the Association") and Ontario Sheet Metal Workers' Conference ("the Conference"). It was effective from May 1, 1980 until April 20th, 1982. The Board reached that conclusion based on findings of fact that the Association's Local Union 47 ("Local 47") was certified as bargaining agent for "all sheet metal workers and sheet metal apprentices in the employ of [Culliton Brothers Limited] in the United Counties of Stormont, Dundas and Glengarry .. .", which resulted in Local 47 and the respondent becoming bound immediately to a collective agreement between Local 47 and an accredited employers~ association (the Mechanical Contractors' Association Ottawa). They continued to be bound to a series of successive collective agreements with respect to the industrial, commercial and institutional ("ICI") sector of the construction industry culminating with the aforesaid provincial agreement. Prior to May 1, 1980, the respondent was bound to the provincial agreement only to extent of the bargaining rights held by Local 47. Section 137(2) of the Labour Relations Act came into force effective May 1st, 1980 and, pursuant to that section, the respondent was deemed to recognize all of the affiliated bargaining agents of the Conference and the Association, which together comprise a designated employee bargaining agency, as bargaining agents for the sheet metal workers and sheet metal apprentices employed in the ICI sector. Generally speaking, these affiliated bargaining agents are the Conference's constituent local unions.

2. In the course of tracing the events from the certification of Local 47 through to the deemed extension of those bargaining rights pursuant to section 137(2) of the Act,

the Board made the following comments and observations about the conduct of Local 47 and the respondent with respect to those events.

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 April 30, 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 [when the Board's certificate issued to Local 47], and November 2, 1976 [the date when Local 47 and the respondent were advised by the Minister of Labour that no conciliation board would be ap­pointed with respect to the collective bargaining which had been taking place directly between them], 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 stike with respect to the industrial, commercial and institutional sector and the residential sector having regard to the provisions of section 72(1).

The Board also considered and rejected the arguments of respondent counsel that the bargaining rights acquired by Local 47 in August 1976 had been abandoned and that the applicant was estopped by its conduct from asserting that the province-wide collective agreement should apply to the respondent.

3. The respondent's place of business is in the City of Stratford and it has a branch location in St. Mary's, Ontario. When Local 47 was certified by the Board in 1976, however, the respondent was employing sheet metal workers on a construction project in the City of Cornwall. The five employees affected by this referral work out of the respondent's location in the City of Stratford. They all attended the hearing which gave rise to the Board's March 17th decision. Paragraph 22 of the Board's March 17th decision had this to say about those employees:

"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."

(emphasis added)

4. Paragraph 23 of that same decision states as follows:

"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 ."

(emphasis added)

It is that direction which has brought these matters before the Board as constituted herein at a hearing which was held on July 27th 1982. The issue of damages raises the question of the date from which damages should flow. Counsel for the conference advised the Board that it was abandoning any claim for damages prior to January 15th, the date on which he assumed the respondent had first received notice of the grievance. Counsel for the respondent contended the appropriate date was March 17th and wanted protection for any contracts awarded to the respondent prior to the grievance. On the second matter, that is the question of the position of the respondent's present employees, raises important questions for the Board, ones which it has not dealt with before, at least in any reported decision, making this a case of first impression on that matter. When the operation of section 137(2) of the Act has bound an affiliated bargaining agent, an employer and his existing employees to a provincial agreement which contains a requirement that the employer employ only members in good standing of the affiliated bargaining agent, what are the obligations of the agent, the employer and the employ­ees? Can the affiliated bargaining agent require the employer to discharge its employees who, at the time the employer became bound to the agreement, were not members of the agent? Is the affiliated bargaining agent obligated to take the employees into membership if they apply?

5. The Board heard, at the outset of the hearing, the submissions of the parties with respect to some preliminary issues and, as a result, ruled that it would hear the evidence and representations of the parties with respect to the date from which damages, if any, would flow and with respect to the status of the five employees. The Board ruled also that it would remain seized with respect to the amount of damages should the parties be unable to agree thereon.

6. Another preliminary issue was the status of the Group to intervene in this referral. In this respect, the Board's March 17th decision had the following to say at paragraph 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. .

The Group received notice of the hearing in the instant proceedings and its solicitors advised the Board in a letter dated May 12th 1982 that it intended to appear at and participate in the proceedings. The grievance names the Group as an interested party. The grievance also contains allegations that the provincial agreement was violated by the respondent's failure to make payments, which are required of employees bound to the provincial agreement, to an industry fund in which the Group has a beneficial interest under the provincial agreement and for which the grievance seeks relief. Section 147(3) of the Act makes the Group, as a designated employer bargaining agency, a party for purposes of section 124. Having regard for these facts, the Board ruled that the Group was a party to these proceedings with respect to the matters to be heard by the Board but, having chosen not to attend the hearing of the Board, differently constituted, it must take the proceedings as it finds them.

7. There was also a preliminary issue whether the Group, being a party to the proceedings, could rely on the assertion of claim made on its behalf by the Conference. There was a further question of the effect, if any, on this claim of the Board's decisions in J. G. Rivard Limited, [1976] OLRB Rep. Sept. 540, upheld on review by the Divisional Court in an unreported decision which was released November 23rd, 1976, and J. G. Rivard Limited, [1980] OLRB Rep. July 1009. The Board reserved its decision on those issues subject to any further evidence and representations the parties might make in the hearing.

8. The five employees made application under section 57(2) of the Act to have the bargaining rights of the applicant terminated. (See Board File No. 0207—82—R, an application made on April 26th, 1982). The Board in that case adjourned the proceed­ings pending determination of the question referred to in paragraph 23 of the March 17th decision with respect to these employees. The Board in the instant case must deal with their status for the purposes of determining the relief, including damages, if any, to which the Conference may be entitled because of the respondent's employment of these persons. Whether these findings affect the status of the employees to make application under section 57 of the Act will be a matter to be determined by the panel of the Board which hears that application.

9. Therefore, in summary, the issues with which this decision will deal are:

(a) whether Culliton has breached the provincial agreement and, if it has, whether the Conference is entitled to relief, including damages;

(b) the appropriate date from which to determine damages or any other relief;

(c) the status of the five employees of the respondent with respect to the relief sought by the Conference; and

(d) whether the Group can rely on the Conference's assertion of claim on its behalf for the damages which the Group is seeking.

10. The Board makes the following findings of fact from the evidence adduced at the hearing on July 27th, 1982.

11. The parties are agreed that David Davies, George Warnock, John Brennan, Mike Young and Brian Schade were employees of the respondent at all times material to this referral. They were not members of any of the constituent locals of the Conference at the time of the hearing, nor have they ever been members of any of those locals and, since the March 17th decision, they have not sought to become members or make formal application to become members. The parties are further agreed that Local 473 of the Association is a constituent local of the Conference and has administrative responsibili­ties under and for the provincial agreement for the geographic area which includes Stratford with respect to the matters at issue in this referral. Appendix "D" is the appendix of the provincial agreement applicable to that geographic area.

12. The respondent concedes and the Board finds that:

(a) the respondent received on January 15th 1982, the letter from the Conference's solicitor dated January 14th, 1982, setting out the grievance herein together with a copy of the provincial agreement which expired April 20th, 1982;

(b) the respondent received on January 27th, 1982, the letter dated January 25th, 1982, from the Conference's solicitor advising that the grievance was being referred to the Board pursuant to section 124 of the Act;

(c) the respondent is bound to the new provincial agreement be­tween the Group and the Association and the Conference which is effective from May 1st, 1982 to April 30th,

(d) the respondent did not apply the terms and conditions and of the successor provincial agreement which expires April 30th, 1984.

13. The five employees whose status is at issue herein are the only sheet metal employees employed by the respondent. They work and have worked exclusively on sheet metal work and gas fitting with respect to the heating, air conditioning and ventilation work contracted by the respondent. Since January 15, 1982, the five of them, at one time or another, have performed work on the Regional Police Centre in Cambridge, Ontario, and on a few small "time and material" jobs within a fifteen mile radius of Stratford. They also performed a small amount of sheet metal work at a Hamilton hospital, although the respondent was uncertain whether this was just before or just after January 15th. The respondent obtained the contract for the Regional Police Centre job in August or September 1981 on bids made during that summer on the rates being paid at the time.

14. The five employees are usually sent out from the Stratford office to work at the various locations. Two of them, Brennan and Davies, worked on the Cornwall project which gave rise in August 1976 to the certification of Local 47, but were not on the project at that time. It may be inferred from the evidence that they were not there during the time when the union's campaign would have been taking place either. Brennan worked on that project during November and December 1976 and January 1977, following the certification but was not aware of it. Schade is the employee with the longest service, having been employed in September 1974. Brennan was employed in February 1975 and Davies in early 1976. The other two employees, Warnock and Young were hired in August 1979 and September 1981, respectively. Brennan, Davies and Schade are certified tradesmen under the Apprenticeship and Tradesmen's Qualification Act, R.S.O. 1980, c.24. Young and Warnock are registered apprentices under that Act.

15. The respondent has not attempted to hire members of the Conference or its constituent locals since it received the Conference's January 14th letter. Nor has it acted to terminate the employment of the five employees, but following the March 17th decision, it did advise them that they should apply for membership in the Association. This advice was given after the respondent consulted with its solicitors. The respondent did not pursue the matter any further after it received notice of the application for termination of bargaining rights. The employees were not approached by the Confer­ence or any of its locals with respect to joining the Association or with respect to the requirements of membership contained in Article 8 of the provincial agreement.

16. The respondent has admitted and the Board has found that since January 15th, 1982, it has not performed under the terms of the provincial agreement which expired April 30, 1982 or its successor. It follows and the Board finds, therefore, that the respondent has been in violation of the applicable agreement since January 15th. Its violation of the successor agreement was continuing on July 27th, 1982. The respond­ent's violations included employing employees who were not members of any of the Conference's local unions contrary to the requirements of Article 8 — Union Security —of the provincial agreement. Article 8 states as follows:

8.1 The employer agrees it shall be a condition of employment for all employees covered by the terms of this Agreement, to be a member of, and to maintain membership in good standing, in one of the local unions.

That violation, according to counsel for the Conference, has resulted in the respondent being in violation of other articles such as those with respect to the payment of wages, vacation and holiday pay, contributions to Local 473's welfare and pension plan and to the London Sheet Metal Contractors Association industry fund. It is evident that the respondent has violated the provincial agreements independent of the union membership provisions. For example, the respondent has not paid contributions to the various trust funds as the agreements require. Furthermore, while the Board has no evidence before it about the actual wages paid, to the extent that the respondent has paid less than the rate of wages, vacation and holiday pay, it would be in violation of the two agreements.

17. The relief sought by the Conference on its own behalf, its local unions and their members includes monetary damages, including interest, for all violations of the provincial agreement resulting from failure to make the various payments required under the agreement and its appendices. Counsel for the Conference claims that it is entitled to relief on grounds similar to those on which a board of arbitration in Re Blouin Drywalll Contractors Ltd. and United Brotherhood of Carpenters and Joiners of America, (1973) 1973 CanLII 2044 (ON LA), 4 L.A.C. (2d) 254 (O'Shea) made a monetary award to a union on behalf of its members because of the employer's violation of the union security clause in the collective agreement which required preferential hiring of the union's members through a hiring hall procedure. The arbitration Board's jurisdiction to award damages on behalf of members of the union who were not employees was upheld by the Ontario Court of Appeal in Re Blouin Drywall Contractors Ltd. and United Brotherhood of Carpenters and Joiners of America, (1975) 1975 CanLII 707 (ON CA), 57 D.L.R. (3d) 199. The court's reasons for its judgment includes the following comments about the union's right to make a claim on behalf of such members with respect to benefits under the agreement of preferential hiring and welfare and vacation pay trust fund:

"..., the union as a party to the agreement may claim on behalf of its members the loss of these benefits and this quite independently of the member's right to grieve.".

The Conference asserts that its local unions had members in good standing at all material times when the respondent was employing the five employees, who were not members in good standing of any of these locals, to perform work covered by the collective agreement. These members, it claims, were entitled to the benefit of Article 8 and Article 21 — Hiring Procedure of the provincial agreement. It is contended, therefore, that the Conference is justified in asserting a claim on their behalf for any monetary benefits of which they were deprived by the respondent's violation of Article 8.

18. The opportunity to pursue that claim, however, depends on whether Local 473, the affiliated bargaining agent holding jurisdiction, can require the respondent to discharge them. If it can, the Board is satisfied that the Conference would be entitled to monetary damages of the type it seeks provided it satisfies the other parties, or if necessary the Board, that umemployed members who would satisfy the requirements of Article 8 or Article 21 were available to the respondent. The Board does not have any evidence before it that unemployed members of the Conference's local unions were available for employment by the respondent on and after January 15th, 1982 in the process of agreeing that the Board should remain seized with respect to damages, the parties also agreed it was not necessary for the Conference to call that evidence. The Board is not persuaded by the suggestion of counsel for the respondent that the circumstances under which the respondent became bound to the provincial agreement and came to violate it do not warrant application of the principles of the Blouin Drywall case. Once the respondent was put on notice of its potential liability by the January 14th letter from the Conference's solicitors, which included the notice that the respondent is required to adhere to and apply all of the terms and conditions of the Provincial Agreement in respect to [its] employment of sheet metal workers and their apprentices at their projects in Ontario, .. .", the continuing violations were deliberate and not inadvertent or innocent as inferred by counsel.

19. The general principle applied by arbitrators for the calculation of damages for the violation of a collective agreement is that damages run from the date of the breach of the agreement. An arbitrator may make an exception to this general principle in circumstances where the respondent could not reasonably have had knowledge of the breach or where the conduct of the party asserting the claim for damages cause the arbitrator to apply such doctrines as equitable estoppel. In such circumstances, the date of filing of the grievance may be used instead of the date of the breach. Respondent counsel contends that the facts in this matter support the use of another date, March 17th, 1982, the date of the Board's decision in which it found that the respondent was bound by the then current collective agreement between the Group and the Association and Conference. A further branch of counsel's argument is that any damages to the Group should run only from May 12th, 1982, the date of the letter from its solicitors advising the Board that it would attend at the hearing to support its claim for damages. Moreover, respondent counsel contends that damages should apply only on contracts obtained after the March 17th decision. The Conference has abandoned any claim for damages for breaches of the collective agreement prior to the filing of its grievance and seeks damages instead from January 15th, 1982, the date when the respondent received the letter dated January 14th from the Conference's solicitors setting out the grievance. The date proposed by respondent counsel represents another exception to the general principle of damages running from the date of the breach of the collective agreement. Do the facts of this case require the exception?

20. Applicant counsel argues that his January 14th letter set out in detail the legal basis for its claim that the respondent was bound to the provincial agreement then in effect and to which the Conference was bound and, further, that the basis for the claim was later affirmed by the Board's March 17th decision. When there was no response to this letter, the January 26th letter was sent advising the respondent that the grievance was being referred to the Board and setting out the relief sought by the Conference. There was no reply to this letter and no performance under the collective agreement. Counsel asserts that the only action taken by the respondent with respect to its obligations under the agreement was to seek the advice of its solicitors with respect to the five employees and counsel them to contact Local 473 and that action was not pursued after the filing of the application for termination of bargaining rights. In short, counsel contends that the respondent has neither performed under the collective agreement nor acted to mitigate its damages since January 15th, 1982 up to and including this hearing and is not entitled to exceptional consideration with respect to the date from which relief should be determined.

21. Counsel for the respondent submits that there are a number of significant factors which support the respondent's position. The Conference and Local 47, since November 1976, when the "no board" report was issued to Local 47 and the respondent, until February 16th, 1981 when Local 47 sent the respondent notice to bargain (see paragraph 10 of the March 17th decision), have conducted themselves as though the respondent was not bound to a collective agreement. After February 16, 1981 there was no further contact by the Conference or its constituents until the respondent received the January 14th. 1982 letter from the Conference's solicitors. Counsel suggests that it is not surprising that the respondent also has believed that it was not bound to any collective agreement with those parties and acted accordingly. All of the respondent's actions which are now the basis of the Conference's claim for damages and other relief were taken at a time when neither the Conference nor Local 47 were acting as though the respondent was bound to an agreement with either of them. He claims that these actions during the period February 16, 1981 to January 15, 1982 included successfully bidding on fixed-price jobs such as the Regional Police Centre job. Furthermore, the respond­ent's conduct has not been that of an employer who, knowing he was bound to a collective agreement, chose to ignore the terms of the agreement with respect to hiring and payment of his employees. Now, to saddle the respondent because of its innocent actions with damages which could result in the respondent paying twice for the work performed by the five employees since January 15th, 1982, would be to saddle it with a liability approaching bankruptcy. With respect to the period since the March 17th decision, counsel argues that the respondent could not act to mitigate its damages until it had clarification of the position of its employees with respect to the reference quoted in paragraph 3 hereof from the March 17th decision. In this respect, he claims that the respondent did all it could do when it advised the employees that they could apply for membership in the Association. Counsel contends that the Board should have due regard for all of these circumstances and for the need for economic certainty, particularly in the construction industry where fixed-price contracts are the rule, in setting the date for the determination of relief. In this respect he argues that, to adopt the date of March 17th, 1982 when the respondent's liability was established by the Board's decision and to calculate damages with respect to future contracts, would be analogous to how the Board has exercised its discretion under section 1(4) of the Act in those cases where the Board's decision has excluded from its effect commercial commitments made prior to the decision issuing.

22. Counsel for the employees did not make any representations bearing directly on the question of the date for determining relief. Counsel for the Group adopts the same position as the Conference, in other words, that damages should flow from the date when the claim for damages was first brought to the respondent's attention by the January 14th, 1982 grievance letter.

23. The Board does not consider the circumstances of this case to warrant adoption of respondent's position that damages and other relief should be determined from March 17th, 1982, whether with or without the codicil that damages should only apply to commercial commitments made after that date. While it may have been understandable and reasonable for the respondent to believe prior to January 15th that it was not bound to a collective agreement, it was not reasonable for the respondent to continue to believe and act as though it was not bound after that date. Certainly, from January 15th the respondent was aware of the claim that it was bound and that there was an issue to be litigated and an obligation to mitigate potential damages.

24. Furthermore, the facts indicate that earlier opportunities existed for the respondent to assess the risk of potential liability, notwithstanding the confusion surrounding the events following upon the issuing of the Board's certificate to Local 47 on August 24, 1976, and the failure of the parties to realize that they were bound by operation of statute to a collective agreement already existing pursuant to a regime of accreditation. The renewed interest of Local 47 when it sent the February 16th, 1981 letter referring to its certificate and containing notice of its desire to bargain was an indication at least that it considered that those bargaining rights continued to exist. By that time two major changes had taken place in construction industry collective bargaining pertaining to the ICI sector. There were the changes brought about by Bill 22 referred to in paragraph 19 of the March 17th decision and by Bill 204 referred to in paragraph 20. There was a great deal of publicity in the construction industry attendant upon the passage and ensuing implementation of both bills. The respondent has been operating a business in the construction industry continuously since February 1964 and in the last 10 years 80 per cent of its business has been in the ICI sector. (See paragraph 3 of the March 17th decision.) It is incumbent on it to be aware of any law and statute which might affect the operation of the business and of any obligations or potential liabilities which they pose for the business. Thus the February 16th, 1981 letter from Local 47 should have alerted the respondent to at least seek to satisfy itself whether it was exposed to any potential liability arising out of the outstanding bargaining rights and the Labour Relations Act as amended by Bill 22 and Bill 204.

25. As a result of those same circumstances, even if the Board were attracted in principle to respondent counsel's proposition that in an appropriate fact situation the date of a decision establishing liability is the date from which damages should flow, the Board would not apply that principle here. The same warning signs referred to above were there for the respondent to read when it bid on the Regional Police Centre job. It had the opportunity to be aware of the potential risk of being bound by statute to a collective agreement and to take that risk into account in bidding the job. So it cannot be reasonably argued that the respondent could not have known the risk when it entered into that commercial commitment.

26. The Board directs, therefore, that January 15th, 1982 shall be the date from which relief, including damages, shall be determined for any breaches of the collective agreement continuing after or occurring on or after that date.

27. The relief sought by the Conference with respect to the five employees was set out in the following terms in the letter from its solicitors dated January 25, 1982 advising the respondent that the grievance filed in the January 14th letter was being referred to the Board.

"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."

"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."

At the hearing counsel for the Conference asked that the Board direct the respondent to discharge the five employees because they are not members of a constituent local of the Conference as required by Article 8 (see paragraph 16 above).

28. Counsel argues that when the respondent became bound to the provincial agreement by operation of section 137(2) of the Act, it was automatically and instantly bound by all provisions of the agreement. The Act does not provide for any grace period during which an employer is to be brought under a provincial agreement when it is caught by those provisions. Therefore when the Board's March 17th decision confirmed that the provincial agreement applied to the respondent, it was clear that article 8.1 would apply to the five employees and required that they be and remain members in good standing of one of the constituent local unions of the Conference. Yet they made no approach to any of the local unions to apply for membership even though the respondent advised them that they should do so. According to counsel, not only does their failure to seek membership in the Association signify that they do not want to be members, their application to terminate bargaining rights makes it clear that they do not want the Association to represent them in collective bargaining. These circumstances, counsel contends, leaves the Conference no alternative but to ask that the Board issue a direction to the respondent to discharge forthwith the five employees. To allow them to remain as employees and not require them to be members would be to grant them different terms of employment than employees of other employers bound to the provincial agreement. That, counsel contends, would be a violation of the Act as well as the provincial agreement because section 146(2) of the Act provides that there cannot be any other arrangement than the provincial agreement and excepting the five employees from the membership provisions of article 8.1 would constitute another arrangement.

29. Counsel for the Group supports the Conference's request for a direction from the Board that the employer discharge the five employees on the further grounds that the Board would be acting in excess of its jurisdiction under section 124 of the Act if it fashioned a remedy which permitted the employees not to become members of the Association and yet remain employed by the respondent on work coming within the scope of the provincial agreement. To do so, counsel argues, would constitute an alteration in the terms of the agreement.

30. Counsel for the employees argues that section 137(2) of the Act refers only to the deemed recognition by employers of trade unions in a particular fact situation. He points out that the section is silent with respect to employees' wishes and that the Board made the same observation in its March 17th decision and argues that, if the legislature had intended the application of section 137(2) to have the effect on their employment status contended by counsel for the Conference, it would have said so in clear terms. Therefore section 137(2), being silent with respect to employees, should not be applied to abridge important rights of employees under the Act; for example, the freedom of employees to join a trade union of their own choice, which is protected by section 3 of the Act and the right to select their bargaining agent. Counsel argues that their right to decide who will represent them in collective bargaining should be decided by those sections of the Act which deal with representation rights and not by the windfall effect of section 137(2). Counsel for the respondent agrees fully with the proposition that the legislature could not have intended section 137(2) of the Act to abridge important rights of employees. Counsel sees this case as raising fundamental principles relative to the freedom of employees to join a trade union and to the concept of trade unions, as freely designated representatives of employees, bargaining with employers, a concept ex­pressed in the preamble to the Act. It is inconsistent with this concept, counsel submits, for the bargaining agent responsible for representing the five employees with their employer to be seeking their discharge by the employer. Therefore any application of section 137(2) which would allow that result would be contrary to the objects of the Act referred to in the preamble.

31. Furthermore counsel for the employees contends that the Conference had an obligation to approach the employees and offer them the opportunity to become members of the Association as soon as the Conference began to assert its rights to represent them, and particularly after the March 17th decision confirmed that right. Its failure to do that and now to be seeking their discharge is a violation of clauses (b) and (f) of section 46(2) and of section 68 of the Act.

32. Finally, counsel expressed the view that to require the employer to discharge the five employees as a consequence of the application of section 137(2) of the Act might violate their rights protected by the Ontario Human Rights Code, R.S.O., 1981, c. 53 ("the Code") and the Canadian Charter of Rights and Freedoms ("the Charter"). He referred the Board to sections 4 and 5 of the Code and 2, 7 and 15(1) of the Charter. While any complaint under the Code should be made to and be dealt with by the Ontario Human Rights Commission, it seems to the Board in any event that section 4 of the Code, which deals with employment and section 5, which, inter alia, deals with membership in any trade union, prohibit discrimination on grounds entirely unrelated to the facts herein. Sections 2, 7 and 15(1) of the Charter are set out below together with section 1:

33. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

34. Everyone has the following fundamental freedoms:

(a) freedom of conscience and religion;

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

(c) freedom of peaceful assembly; and

(d) freedom of association.

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

8. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

9. One of the difficulties of dealing with the parties' arguments in this matter with respect to the status of the five employees is that the arguments have intermingled two separate issues, one before this Board and one before the Board as constituted to hear the application for termination of bargaining rights. The issue in the termination application is whether, at the time that application was made under section 57(2) of the Act, they were employees in the bargaining unit defined in the provincial agreement so as to have status to bring the application. As indicated already in paragraph 7 of this decision, that is a matter for that panel of the Board, not this one. The issue before the Board herein is whether, for purposes of determining any relief to which the Conference may be entitled, any of the five employees were employed and/or continued to be employed by the respondent in violation of the provincial agreement. Seen in that light then, the issue with respect to whether employees will be represented in collective bargaining in the ICI sector by the Conference and the Association will be determined under section 57(2) of the Act, one of its sections dealing with representation rights, as counsel for the employees argues it should be determined, and not by the windfall effects of section 137(2).

10. Section 137(2) of the Act was introduced into the Act for sound labour relations reasons; that is to promote stability in province-wide collective bargaining in the ICI sector of the construction industry. During the first round of province-wide bargaining in that sector in 1978 under the then new framework of Bill 22 (The Labour Relations Amendment Act, 1977, S.O. 1977, c. 31), demands to extend bargaining rights from recognition in a specific local geographic area to province-wide emerged as a major bargaining objective of the trade unions. The difficulty experienced in 1978 in attempting to deal at the bargaining table with that issue threatened to disrupt the 1980 round of province-wide bargaining. That threat was eliminated by removing the issue from the table by means of the deemed recognition provisions of section 137(2) which took effect on and after May 1st, 1980 and its companion section 144 which requires an affiliated bargaining agent which is seeking to represent employees in the ICI sector to represent all of an employer's employees in that sector in the Province of Ontario. Section 137(2) states as follows:

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 purpose of 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, 1979, c. 113, s.l.

It clearly contains no reference to the wishes of employees as counsel for the five employees correctly observed. Counsel for the Conference was equally correct in stating that neither the section nor any other section of the Act provides for any grace period before the deeming provision has its effect. None of which assists the Board in determining what effect the Legislature intended the section to have in the circum­stances confronting the Board here.

35. While the Board does not agree with the argument of counsel for the employees and the respondent that the Legislature did not intend that the application of section 137(2) would accommodate the result sought by the Conference, the section is silent with respect to the rights, obligations and duties of employees. Therefore, in considering the application of section 137(2) of the fact situation herein, the Board must look to the Act as a whole, its purpose and the relationship of section 137(2) to any other section or sections of the Act which its operation brings into play. The Board should not decline to do so merely because it is functioning as an arbitrator. That fact does not deprive the Board either of the right or obligation to do so, rather, since the section clearly impinges on the provincial agreement with which the Board must deal, the Board has a duty to construe the Act. This seems particularly appropriate when the application of section 137(2) is the very reason why the Conference has bargaining rights on which to found its claim. The Courts have recognized the authority, and therefore the need of an arbitrator to apply a relevant statute when interpreting a collective agreement [McLeod vs. Egan, (1974) 1974 CanLII 12 (SCC), 46 D.L.R. (3d) 150 (S.C.C.)]. The Courts have also suggested that, when the Board is proceeding under section 124 of the Act, it can exercise its other powers under the Act [Re International Association of Heat & Frost Insulators & Asbestos Workers Local 95 and Master Insulators Association of Ontario et al (1980), 1979 CanLII 1622 (ON HCJ), 25 O.R. (2d) 8 (Divisional Court)]. Furthermore, in The Ontario Erectors Association and Sheaffer — Townsend Limited v. International Union of Operating Engineers, Local 793, an unreported judgment of the Supreme Court of Ontario (Divisional Court) which issued February 19th, 1980, the Court found that section 108 of the Act (then section 97), the so-called privitive section, applies to the Board when it is sitting under the Act as an arbitrator. Finally, the Courts have instructed the Board that it should ..... exercise any jurisdiction given to it under the Act, notwithstanding that a particular section of the Act is referred to in the formal application. "(Regina vs. Ontario Labour Relations Board ex parte Genaire Ltd., 1958 CanLII 130 (ON HCJ), [1958] O.R. 637, a decision of the Ontario High Court).

36. Section 137(2) of the Act was proclaimed to be effective on May 1st, 1980. At that time all of the employees except Young were already employed by the respondent in Stratford, employment which was clearly outside of the geographic area in which Local 47 of the Conference held bargaining rights. Young was employed at Stratford in September 1981, after the section was in effect but three or four months before the Conference first asserted its claim. Coincident with section 137(2) coming into effect, the bargaining rights held by Local 47 were extended by the section's deeming provisions to Local 473 in London; in other words, the respondent was deemed to have recognized Local 473, an affiliated bargaining agent, as the exclusive bargaining agent for its sheet metal worker employees in Stratford. The relevant words of section 137(2) provide that "..., the employer shall be deemed to have recognized all of the affiliated bargaining agents ... as the bargaining agents for the purpose of 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.. . ." (emphasis added). The definition of a provincial agreement in clause e of section 137(1) of the Act employs the words "..., containing provisions respecting terms or conditions of employment or the rights, privileges or duties of ... the employees represented by the affiliated bargaining agents and employed in the indus­trial, commercial and institutional sector of the construction industry.. . ." (emphasis added). When the respondent was deemed on May 1st, 1980 to have recognized Local 473, they became bound to the provincial agreement by operation of section 145(4) of the Act which provides as follows:

After the 30th day of April, 1978, where an affiliated bargaining agent obtains bargaining rights through certification or voluntary recognition in respect of employees employed in the industrial, commercial and institutional sector of the construction industry referred to in clause 117(e), the employer, the affiliated bargaining agent, and the employees for whom the affiliated bargaining agent has obtained bargaining rights are bound by the provincial agree­ment made between an employee bargaining agency representing the affiliated bargaining agent and an employer bargaining agency representing a provincial unit of employers in which the employer would have been included.

(emphasis added)

While section 145(4) refers to bargaining rights obtained either by certification or voluntary recognition it must be read to apply to bargaining rights born of the deeming provisions of section 137(2) because by the single stroke of the Legislative pen, an employer is placed in the same position as though it had voluntarily recognized the affiliated bargaining agents. Section 147(2) of the Act, which was in effect prior to May 1st, 1980, makes a provincial agreement binding upon, inter alia "... such employers, affiliated bargaining agents and employees as may be subsequently bound by the said agreement.".

37. The two provincial agreements in question cover a provincial bargaining unit of sheet metal workers employed by the employers bound to those agreements. Section 137(1), 137(2), 145(4) and 147(2) all speak of employees represented by an affiliated bargaining agent and employed by an employer in the industrial, commercial and institutional sector of the construction industry. The consistent use of those terms in such closely connected sections of the Act compels the Board to the conclusion that, as of May 1st, 1980 when section 137(2) came into effect, the respondent's four sheet metal workers, Young excluded, being employees of an employer bound to the provincial agreement, became employees in the bargaining unit of the provincial agreement and were bound to it. Young became an employee in the unit when he was hired in 1981 and became bound to the provincial agreement pursuant to section 147(2) of the Act.

38. One of the difficulties for the Board in dealing with the question of the status of the five employees arises from the fact that a question comes before the Board more than two years after the triggering event as a result of a grievance referral which itself was made twenty-one months after that event. The intervening acts and omissions of the parties operate to obscure the answer to the question. It is useful therefore to examine the question in the context of the relevant circumstances at the point in time when, by operation of statute, Local 473 became the exclusive bargaining agent for the respond­ent's employees. That was May 1st, 1980 when section 137(2) of the Act was given effect. On that date, in addition to Local 473 becoming the exclusive bargaining agent under the Act for four of the five sheet metal worker employees then employed by the respondent, Local 473, the respondent and those employees simultaneously became bound by operation of statute to the provincial agreement then in effect. One of Local 473's responsibilities under the provincial agreement was to oversee its application and administration within the Local's geographic jurisdiction. This responsibility includes insuring that the uniform conditions of the agreement were uniformly applied. This is the normal responsibility of any trade union which is a party to a collective agreement, but it becomes an even greater obligation for trade unions bound to provincial agreements because of the multiplicity of parties bound by them. Thus when a party or person within Local 473's geographic jurisdiction does not comply with the union security provisions in the provincial agreement. Local 473 is obligated to its own members and to all of the employees, employers and affiliated bargaining agents bound to the provincial agreement to enforce them. In that context then, if the respondent is employing employees who are not in compliance with Article 8 of the provincial agreement, Local 473 is within its rights to direct the respondent to discharge the employees and to bring a grievance if it fails to do so. The right of unions generally to seek such relief has been recognized by arbitrators who have issued compliance orders to that effect. See generally Brown, D.J.M. and Beatty, D.M., Canadian Labour Arbitration, (Agincourt, Ontario: Canadian Law Book Limited, 1977) at 62, 63 and

40. Does this mean that Local 473, had it been aware of its bargaining rights on May 1st, 1980, would have been entitled to have this Board direct the immediate discharge of the four employees for non-compliance with Article 8 if it had filed a timely grievance to this effect? The answer to that question, in the Board's view, would depend on whether Local 473 had given them notice of their obligation and of the fact that it would be seeking their discharge if they did not satisfy the obligation. The entitlement to notice of the obligation and the reasonable opportunity to respond is implicit in the awards of arbitrators who have granted discharge as a relief for violation of union security provisions of a collective agreement. Generally arbitrators grant that relief only after satisfying themselves that the union has acquitted itself properly of any obligation and then they make the discharge conditional upon the employee failing to join the union within a specified time period. In other words discharge takes effect if employees fail to heed the notice that they are obligated to be members of the union and will be discharged if they fail to become members. In this respect see Brown & Beatty, supra, at page 491 and those cases cited therein at footnote 10.

41. This approach of arbitrators to violations of the union security provisions in collective agreements has developed largely in the context of industrial unions and with respect to collective agreements negotiated directly between an employer and the bargaining agent for its employees. Thus in that context arbitrators were dealing with union security provisions which had been arrived at by the mutual consent of the contracting parties directly affected by them. The context herein is one in which the parties affected, particularly the employees and their employer, find themselves bound on May 1st, 1980 by force of statute to the provincial agreement, a collective agreement in which they have had no voice in negotiating. The Board cannot accept that these employees would be entitled in such circumstances to any less consideration than arbitrators have given to employees bound by union security provisions arrived at by the mutual consent of their bargaining agent and their employer. Having regard to the overall scheme of the act, it is inconceivable that sections 137(1), 137(2), 145(4) and 147(2) could be seen to operate in a manner which would deny the respondent's employees reasonable notice of their obligation with respect to union membership and the opportunity to act on that notice and join the union if that is their decision. If they were given that opportunity and failed or refused to act on it to join the union, then the union would be entitled to demand that the r6spondent discharge them and in which case they would have to be dismissed.

42. What would constitute reasonable notice would depend on the facts in each situation and would in turn establish at what point the employees became obligated to apply for union membership. One of the principal difficulties arising out of the fact that, in this case, Local 473 held the exclusive bargaining rights with respect to these employees for 20 months without realizing it, is determining at what point the obligation of the five employees to apply for membership is triggered. Counsel for the Conference has contended that the employees' membership obligation became clear when the Board's March 17th decision confirmed that the provincial agreement applied to the respondent because that was the point at which it also became clear that Article 8 would apply to the employees and require them to be and remain members in good standing in one of the constituent locals of the Conference. There is no evidence that the union gave notice either to the employees or to the respondent. Sometime between the March 17th decision and April 26th, the respondent advised the employees that they should apply for membership in Local 473, 80 it is presumed that the respondent understood that the employees were obliged to join the union. The evidence does not tell us whether the respondent either knew or advised the employees that it might have to discharge them if they did not join. Even if the respondent had told them in unequivocal terms, there are a number of other grounds, in the Board's view, for the employees to question whether that was advice on which they must act. First, section 137(2) which conferred the bargaining rights on Local 473 speaks only of the obligation of the respondent to recognize the affiliated bargaining agents of the employee bargaining agency (i.e. the Association and the Conference). The Board's March 17th decision expressed uncertainty whether ..... the applicant is under any requirement either to offer these employees membership or not to require the termination of their employment with the respondent." and further stated that the position of the employees could be raised when this matter was heard with respect to damages. Third, the Board has not previously dealt with the problem of employees caught by the extension of bargaining rights pursuant to section 137(2). These are grounds which would lead a reasonable person to believe that he would have the opportunity to put his case to this Board and to have his status decided by it.

43. The Board is satisfied in these circumstances that the employees have not had proper notice of the full import of their obligations under Article 8, a notice to which they are entitled and, therefore they have had no opportunity to meet those obligations. This is not a case where their own conduct or that of the respondent would deprive them of the right to that notice and the opportunity to join the union. The employees were not employed as part of a scheme by the respondent to purposely circumvent either the provincial agreement or the bargaining rights of Local 473 of the Conference, as was the situation in April Waterproofing Ltd., [1980] OLRB Rep. Nov. 1577, a decision on which counsel for the Conference relied in part in arguing for the discharge of the five employees.

44. The Board concludes in these circumstances that the logical point in time for determining when the obligation of the five employees to join the union starts with the issuing of this decision. In other words, the issuing of this decision is proper notice of their obligation and they are entitled to a reasonable period of time thereafter to meet that obligation. That reasonable time may be abbreviated, however, by the fact the February 11th hearing, the March 17th decision and the hearing before this panel of the Board have all served as warning signs to the employees that eventually they might have to meet such an obligation. Therefore the Board deems a reasonable period of notice to be five clear days, excluding Saturday and Sunday, from the date of issue of this decision.

45. Having regard for the foregoing circumstances, the Board directs that the respondent discharge David Davies, George Warnock, John Brennan, Mike Young and Brian Schade if they fail to make application to become members of Local 473 within five clear days, Saturday and Sunday excluded, from the date of issue of this decision and, after making application, fail to become members within the time limits reasonably determined by the union's constitution.

46. Since none of the employees had made application for membership before this matter came back on for hearing, the Board cannot agree with the contention of their counsel that the Conference is in violation of clauses (b) and (t) of section 46(2) of the Act by seeking their discharge. That section, however, would operate to prevent the Conference or Local 473 from seeking their discharge if membership was denied to or withheld from them for any of the reasons set out in clauses (c) through (g) of section 46(2). Should the employees be refused membership for any reasons which might not be protected by section 46(2), such reasons might be seen as a breach of the section 68 duty of fair representation, and that section would be an additional safeguard for the employees. Local 473 and the Conference bear that duty to all employees in the provincial agreement bargaining unit, but section 68 is not an automatic bar to either Local 473 or the Conference seeking to have the five employees discharged, regardless of their conduct, as argued by their counsel. Both Local 473 and the Conference have a duty to protect the provincial agreement, a duty which must be taken into account when construing and applying section 68 of the Act. The Board does not consider the circumstances of the case now before us, particularly the uncertainty surrounding the consequences for employees caught by the application of section 137(2), to be cause for the Board to censure the conduct to date of Local 473 and the Conference with respect to their section 68 duty.

47. Having concluded that the Conference and Local 473 are not entitled to seek the discharge of the five employees until they have been given proper notice of their obligations and reasonable time to respondent thereto, it is unnecessary for the Board to deal with the contention of counsel for the employees with respect to the Canadian Charter of Rights and Freedoms.

48. There remains only the issue related to the Conference's claim with respect to Industry Fund Contributions asserted on behalf of the Group. Clause 18 — Trust Funds of Appendix "D" of the provincial agreement provides in sub-clause 18.5 that an employers' industry fund be established; that contributions be remitted by separate cheque along with remittances to the Local 473 Welfare Plan for the same hours worked as are credited to the Welfare Plan; that the authorized collector of the Local 473 Welfare Plan will administer the fund for the London Sheet Metal Contractors Associa­tion and account for all contributions in a separate account known as The London Sheet Metal Contractors Association Industry Fund. Sub-clause 18.6 provides for a contribu­tion rate of ISC per hour worked by all sheet metal workers and apprentices. The grievance seeks declaratory relief with respect to these contributions as well as damages for the respondent's failure or refusal to make the contributions. It is that assertion of claim which the Group is supporting. The primary beneficiary of a successful claim would be the London Sheet Metal Contractors Association. In the 1980 Rivard decision, supra, two employer associations had referred a grievance under section 124 asserting a claim against an employer bound to a provincial agreement who had failed to make contributions to an employers' industry fund as required by the agreement. The Board refused to hear the grievance because it was a claim between parties of like interest and, therefore, not a grievnce as contemplated by section 124. The assertion of claim here is by the Conference against the respondent, clearly parties of opposite interests under the provincial agreement. The fact that the primary beneficiary of the claim, if it succeeds, would be an employers association does not alter that fact. The Board sees nothing in the provincial agreement nor in section 124 of the Act which would preclude the Conference from asserting the claim and this Board from hearing it.

49. One of the effects of the Board's decision that the five employees are entitled to notice of discharge and that this decision constitutes that notice is to remove any basis on which the Conference would be entitled to the Blouin Drywall type of damages which it is seeking because there would be no basis for awarding such damages. That does not foreclose the Conference from damages or other relief which would flow from violations of the provincial agreements other than the union security and hiring hall provisions. Those, however, are matters on which the parties have agreed to meet and attempt to reach agreement.

50. For all of the above reasons and having regard to the evidence before it, the Board determines pursuant to section 124 of the Labour Relations Act that:

(a) Culliton Brothers Limited ("Culliton") has, by its failure to perform under the provincial agreement which expired April 30th, 1982 between the Ontario Sheet Metal and Air Handling Group ("the Group") and Sheet Metal Workers' International Association ("the Association") and Ontario Sheet Metal Work­ers' Conference ("the Conference") has violated that agreement and its Appendix "D" and by its failure to perform under the successor provincial agreement which expires April 30th, 1982, it has violated and continues to violate the provincial agreement;

(b) Culliton forthwith shall cease and desist from continuing to violate the provincial agreement including its Appendix "D";

(c) Culliton forthwith shall pay the proper hourly rates of pay, vacation and holiday pay, lost time pay and other premium rates of pay and allowances set forth in and required by the provincial agreement and its appendices;

(d) Culliton shall discharge David Davies, George Warnock, John Brennan, Mike Young and Brian Schade if they fail to make application to become members of Local 473 within five clear days, Saturday and Sunday excluded, from the date of issue of this decision and after making application, fail to become members within the time limits reasonably determined by the union's constitution.

(e) the parties to this referral shall meet and agree on the amount of damages, if any, owing to Local 473 or the Conference on their own behalf and on behalf of the members of the Conference's local unions and the London Sheet Metal Contractors Associa­tion resulting from Culliton's violations of the provincial agree­ments occurring on or after January 15th, 1982.

50. The Board remains seized of this matter in the event that the parties are unable to agree on the amount of damages owing or in the event of the disagreement arising with regard to the implementation of this Award.

DECISION OF BOARD MEMBER, W. H. WIGHTMAN;

Counsel for the five employees has raised an interesting issue; that is, whether the application of s. 137(2) of the Labour Relations Act in a manner which requires those employees to become members of Local 473 might violate the guarantee of freedom of association provided by section 2(d) of the Canadian Charter of Rights and Freedoms.

On first consideration, I feel it might not be an issue for this Board to determine but rather we should confine ourselves to making a finding within the terms of the Labour Relations Act. With that proviso, I concur with the Vice-Chairman's decision.

DECISION OF BOARD MEMBER, C. A. BALLENTINE;

1. I disagree that the five employees in question are in the bargaining unit and bound to the collective agreement. Until such time as they obtain membership and maintain that membership in accordance with the Provincial Collective Agreement of Local 473 and the Ontario Sheet Metal Conference, they are not represented by the applicant trade union. However, I agree that Local 473 has an obligation to accept the five employees into membership providing they are eligible for membership in accord­ance with the provisions of the Provincial Collective Agreement.

2. It is my position that the five employees are non-union employees, employed by the respondent company until they become members in good standing of the union, specified by article 8.1, the security clause of the collective agreement. These employ­ees are not entitled to the benefits and conditions of the collective agreement, nor has the applicant union a duty to represent them until they become members in good standing as outlined in the collective agreement. The provincial agreement between the "Ontario Sheet Metaland Air Handling Group" and the "Sheet Metal Workers Interna­tional Association and the Ontario Sheet Metal Workers' Conference" is a closed shop agreement as are all agreements in the construction industry under the provincial bargaining scheme. Section 46 of the Act allows for the construction industry to have such an operation.

3. Section 57(2) defines the bargaining unit of the existing collective agreement as follows, "any of the employees in the bargaining unit defined in a collective agreement may, subject to section 61 apply to the Board for a declaration that the trade union no longer represents the employees in the bargaining unit". (emphasis added). It is clear from this section that the Legislature intended that employees in the bargaining unit, after a collective agreement is in force, are governed by the scope of the collective agreement. The scope of the applicable collective agreement between the above named parties is as follows. Article 2 — Definitions in this agreement 2.6 and 2.8 reads in part,

2.6 "employee" means a certified journeyman sheet metal worker or registered apprentice, recognized by the local union and employed in the shop or on the job site.

2.8 "member" means a certified journeyman sheet metal worker or apprentice, recognized by the local union and employed or eligible to be employed by an employer in the shop or on the job site.

Article 8 — Union Security

8.1 The employer agrees it shall be a condition of employment for all employees covered by the terms of this agreement to be a member of, and to maintain membership in good standing, in one of the local unions.

(emphasis added)

It is clear the five employees are not in the bargaining unit and are not bound by the provincial agreement until they become recognized members and recognized employees by the local union.

4. I am in conflict with the decision of the Board in regard to the interpretation of sections 137(1), 137(2), 145(1) and 147(2) as outlined in paragraphs 36 and 37. In paragraph 36 the Board treats the deeming provisions of section 137(2) as placing the employer in a voluntary recognition position as prescribed by section 145(4). The facts of this case are that the employer was bound by the certificate issued to Local 47 and by operation of 137(2). Local 473 obtained the bargaining rights for the employers' employees. There is no voluntary recognition whatsoever. All of the above named sections speak of the employees represented by an affiliated bargaining agent and employed by an employer bound by the provincial agreement in the industrial, commercial and institutional sector of the construction industry. The key words are represented by an affiliated bargaining agent. Therefore the affiliated bargaining agent does not and cannot represent employees until they become members in good standing according to the terms of the collective agreement.

5. There is a distinct difference between the union obtaining bargaining rights and the union representing the employees in the construction industry, because of the closed shop operation. A trade union in the ICI sector of the construction industry may gain bargaining rights either through certification or voluntary recognition providing it represents more than fifty-five per cent of the employees of the employer who have joined the union. The forty-five per cent who have not joined the union, at the time the union obtained the bargaining rights, may decide ultimately not to join the union and be represented by the bargaining agency. That would be their choice.

6. Although I agree in total with the directions of the Board contained in paragraph 49 as far as they go, I do not concur with paragraph 48 of the decision in regard to the declaration by the Board that the Conference would not be entitled to do the Blouin Drywall type of damages. The Board's direction in paragraph 26 is that January 15th, 1982 shall be the date from which relief, including damages shall be determined for any breaches of the collective agreement continuing after or occurring on or after that date. The company has continued to engage non-union employees in its employ since January 15th and therefore the applicant is entitled to claim damages in accordance with Blouin Drywall Contractors Ltd. and United Brotherhood of Carpen­ters and Joiners of America (1973), 1973 CanLII 2044 (ON LA), 4 L.A.C. (2d) 254 (O'Shea) which made monetary award to a union on behalf of its members because of the employer's violation of the union security clause in the collective agreement. It is my position that the applicant is entitled to the Blouin Drywall type of damages.