[1982] OLRB Rep. November 1657
1364-82-R Labourers' International Union of North America, Local 183, Applicant, v. J. D. S. Investments Limited, Respondent, v. Labourers' International Union of North America, Local 506, Intervener
BEFORE: R. A. Furness, Vice-Chairman, and Board Members W. Gibson and H. Kobryn.
APPEARANCES: B. Fishbein, C. De Toni, O. Zanin and A. Pinto for the applicant; Robin B. Cumine, Q. C., and Ed Kletke for the respondent; and no one for the intervener.
DECISION OF THE BOARD; November 30, 1982
The Board notes that the applicant has withdrawn its request that the Board apply the provisions of section 1(4) to the respondents who were formerly named in this application for certification. The Board consents to this withdrawal.
Initially the applicant applied for certification with respect to a bargaining unit of construction labourers under section 144(1) of the Act. Subsequently, the applicant informed the Board that its application for certification was being made pursuant to section 144(3), and, that the bargaining unit sought by the applicant was defined as "all construction labourers employed by the respondent in the Board's geographic area #8 in the residential sector of the construction industry, save and except non-working foremen and persons above the rank of non-working foreman". During the course of the hearing the respondent agreed that if there was an appropriate bargaining unit then the bargaining unit defined by the applicant was the appropriate bargaining unit.
The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act.
The Board further finds that this is an application for certification within the meaning of section 119 of the Labour Relations Act.
The Board further finds that this application for certification does not relate to the industrial commercial and institutional sector of the construction industry referred to in section 117(e) of the Labour Relations Act.
On July 10, 1969, the respondent and the Toronto Building and Construction Trades Council (the "Council") entered into a Working Agreement (the "agreement"). The agreement consists not only of the usual one page (at that time) but also included an addendum and a schedule "A" which by the terms of paragraph seven of the agreement are made part of the agreement. Paragraphs two and three of the agreement state
The Company recognizes the Council and its affiliated unions as the collective bargaining agency for all its employees.
Subject to the Addendum, the Company agrees that it will employ only members of the unions affiliated with the Council and will let contracts or sub-contracts only to individuals or companies whose employees are members in good standing in the unions affiliated with the Council and will do all things necessary to insure that only members of the unions affiliated with the Council are employed in construction work in which the Company is engaged.
Article 1.00 of the addendum states:
"The Council" agrees that the "Working Agreement" shall not apply to "Residential" construction and shall not apply to the labourers and carpenters directly employed by "The Company" until December 15, 1969.
At the hearing the respondent relied on its reply which had stated that the respondent is bound by the provincial collective agreement with the Labourers' Employee Bargaining Agency and that the respondent is bound by and subject to an agreement with the Council dated July 10, 1969. In addition, the respondent argued that it be permitted to adduce evidence that an understanding existed between the respondent and the Council with respect to the residential field. It was the position of the respondent that a representative of the Council had undertaken to organize the residential field and had agreed not to place the respondent in a non-competitive position and that looking at the working agreement it really deals with the bargaining rights in all sectors for all employees. The respondent adopted the position that the residential bargaining rights have been dealt with in that no attempt had been made to enforce such bargaining rights until the circumstances were such that the respondent would not be effectively destroyed. The respondent also argued that the Council has bargaining rights in the residential field which have been dealt with in an overall manner.
The applicant opposed the request by the respondent that it be allowed to introduce evidence. At the conclusion of the argument, the Board ruled orally that, having considered the representations of the parties and for reasons to be given in writing, it was not prepared to permit the respondent to call the evidence which had been outlined before the Board. These reasons are now set forth.
The working agreement and the addendum which was entered into between the respondent and the Council on behalf of its affiliates is clear and unambiguous and clearly excludes residential construction from its coverage. The Board was not prepared to hear the evidence outlined by the respondent for three reasons. Firstly, the Board's jurisdiction is set forth in the Labour Relations Act and providing the requirements of the Act have been satisfied the Board has no jurisdiction to impose any equitable bars, see Christie, Brown & Company Limited, [1975] OLRB Rep. June 524; Firestone Steel Products of Canada Limited, [1970] OLRB Rep. Sept. 660 and The Shopmen's Local Union No. 743 of the International Association of Bridge, Structural and Ornamental Iron Workers v. Brayshaws Steel Ltd., 71 CLLC ¶14,084. Secondly, the respondent and the Council are not competent by private agreement to contract out of the provisions of the Act, see, for example; Whiteny Maintenance Limited, [1973] OLRB Rep. Jan. 26, Pigott Construction Company Limited, [1969] OLRB Rep. June 399, Belmont Plastering Company Limited, [19701 OLRB Rep. March 1459 and Hutchison Mechanical Installations Ltd., [1973] OLRB Rep. May 240. Thirdly, the doctrine of estoppel may not be evoked to prevent the operation of a public statute such as the Labour Relations Act, see Culliton Brothers Limited, [1982] OLRB Rep. March 357, Maritime Electric Co. v. General Dairies Ltd., 1937 CanLII 293 (UK JCPC), [1937] A.C. 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 Walls v. Hanson, (1965) 1964 CanLII 594 (NB COCT), 49 D.L.R. (2d) 435, 438.
The Board finds on the basis of the evidence and argument before it that the Council does not possess bargaining rights for employees of the respondent in the residential sector of the construction industry and that the applicant is entitled to make an application for certification with respect to the residential sector of the construction industry. Having regard to the circumstances of this application and pursuant to the provisions of section 144(3), the Board further finds that all construction labourers employed by the respondent in the residential sector of the construction industry in the Municipality of Metropolitan Toronto, the Regional Municipalities of Peel and York, the Towns of Oakville and Halton Hills and that portion of the Town of Milton within the geographic Township of Esquesing, and the Towns of Ajax and Pickering in the Regional Municipality of Durham, save and except non-working foremen and persons above the rank of non-working foreman, constitute a unit of employees of the respondent appropriate for collective bargaining.
A Labour Relations Office is authorized to inquire into and report to the Board on the list and composition of the bargaining unit.