[1983] OLRB Rep. November 1825
1381-83-R International Union of Bricklayers and Allied Craftsmen, Local 2, Applicant, v. The Corporation of the City of Etobicoke, Respondent, v. The Canadian Union of Public Employees, Intervener
BEFORE: R. A. Furness, Vice-Chairman, and Board Members R. Redford and W. F. Rutherford.
APPEARANCES: B. Fishbein, J. Robbins, J. Elliott and L. Steinberg for the applicant; M. Patrick Moran, George Metcalfe and Martin Birmingham for the respondent; Helen 0 'Regan, Rex Herrington and Michael Harper for the intervener.
DECISION OF THE BOARD; November 8, 1983
The applicant is applying for certification with respect to a bargaining unit defined as "all journeymen and apprentice bricklayers and stonemasons in the employ of the respondent: (i) in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario; and (ii) in all other sectors of the construction industry, save and except for the industrial, commercial and institutional sector, in O.L.R.B. geographic area No. 8".
The respondent and the Borough of Etobicoke Civic Employees' Local Union No. 185 ("Local 185") are parties to a collective agreement. It is the position of the respondent that this collective agreement is a bar to this application for certification. The applicant and the intervener agree that this collective agreement is not a bar to this application and propose a clarity note to the bargaining unit described in paragraph one which states "that persons engaged in maintenance work, including maintenance work involving brick, stone and plaster, presently and in the future, performed by persons covered by the intervener's collective agreement are not included in the bargaining unit".
There is no dispute that the respondent employed three bricklayers on September 22, 1983, the date of the filing of this application, and that these three bricklayers have been performing the work of bricklayers for the majority of their time. The initial consideration before the Board is the application and coverage of the collective agreement.
The respondent adopted the position that it was entitled to call evidence that Local 185 and the respondent agreed that the collective agreement covered the employees who are affected by this application. It was the position of the respondent that up to the date of hearing on October 21, 1983, the respondent and Local 185 had agreed that the employees affected by this application and similar employees had been covered by the collective agreement. The respondent argued that the collective agreement described the bargaining unit as an all-employee unit on the active payroll and does not describe work in terms of construction and non-construction. The respondent further argued that the collective agreement included some classifications in construction. It was the position of the respondent that it ought to have the opportunity to call extrinsic evidence. While the respondent conceded that there was no patent ambiguity, there was, in the view of the respondent, a latent ambiguity which would show that the collective agreement was intended to cover all employees whether construction or non-construction employees.
The applicant and the intervener opposed the request of the respondent to call extrinsic evidence and viewed this request as an attempt to expand the language of the collective agreement.
Articles 2.01 and 2.05 provide as follows:
Article 2
RECOGNITION
2.01 The Employer agrees to recognize THE BOROUGH OF ETOBICOKE CIVIC EMPLOYEES' LOCAL UNION NO. 185, chartered with the CANADIAN UNION OF PUBLIC EMPLOYEES, and affiliated with THE CANADIAN LABOUR CONGRESS, as the exclusive bargaining agency for the employees of the Corporation of the Borough of Etobicoke with respect to rates of pay, hours of work and other working conditions of such employees. The term "employee" or "employees" used throughout this agreement shall be interpreted to mean:
(a) every employee on the active payroll of the Employer in the Construction Inspection Section, Sanitation Section, Roads Section, Utilities Section, and Sign Shop Section of the Works Department, Stores Section of the Finance Department, Municipal Properties Department and Parks Section of the Parks and Recreation Services Department, save and except those above the rank of working foreman, salaried personnel and employees covered by subsisting collective agreements with the Employer, and
(b) every employee on the active payroll of the Employer in the Survey Section of the Works Department save and except Assistant Section Heads, persons above the rank of Assistant Section Head, Office Staff and employees covered by subsisting collective agreements with the Employer, and
(c) all employees on the active payroll of the Employer in the Recreation Section of the Parks and Recreation Services Department save and except Recreation Assistants, Assistant Arena Managers, Assistant Stadium Managers, Assistant Managers Facility, Community Centre Assistants and persons above the rank of Recreation Assistant, Assistant Arena Manager, Assistant Stadium Manager, Assistant Manager Facility, Coimmmunity Centre Assistant, office staff, students employed during the school vacation periods and persons regularly employed for not more than twenty-four (24) hours per week.
It is agreed by both parties that those persons exlcuded by the Ontario Labour Relations Board for purposes of clarity in its decision of December 8, 1970, are not included in the Bargaining Unit.
*** Articles marked with three (3) asterisks (***) do not apply to employees as defined in Article 2.01(c)
(d) All employees on the active payroll of the Employer employed in the Etobicoke Olympium save and except Aquatics Assistants, Gymastic [sic] Assistants, Assitant Building Superintendents, Assistant Food Services Manager and persons occupying equivalent positions and persons above the rank of Aquatics Assistant, Gymnastic Assistant, Assistant Building Superintendent, Assistant Food Services Manager and persons occupying equivalent positions and the Administrative Office Staff, Students employed during the school vacation periods and persons regularly employed for not more than twenty-four (24) hours per week.
(e) Every employee on the active payroll of the Employer in the Radio Control Section of the Utilities Division of the Works Department classified as Radio Control Clerks, Clerk of Works 7 and Senior Clerk.
(f) Every employee on the active payroll of the Employer classified as Animal Patrol Officer in the Animal Control Section of the Clerk's Department
2.05 Definition of "on the active payroll":
A permanent employee will be on the active payroll while he is receiving wages, vacation or holiday pay, sick pay. Benefits will be maintained for all permanent employees on the active payroll.
A permanent employee absent through illness or non-compensable injury will have all benefits maintained while he is in receipt of sick pay subject to Articles 6.02(a) and 11.02(c).
A permanent employee absent through illness or non-compensable injury whose sick leave credits expire before a period of six (6) consecutive months absence has elapsed will have all of his benefits, except pension, maintained by the Borough for the balance of the six (6) months period subject to Article 6.02(a). A permanent employee in receipt of L.T.D. payments will have all benefits except Life Insurance suspended.
A permanent employee absent through illness or injury will have his job held open for the period of his absence, subject to a maximum of twelve (12) consecutive months. For a further twelve (12) months the Employer will make every effort to place that employee in a position that may become vacant provided that such employee has the necessary qualifications for such a position and is medically certified as being physically and mentally fit for the position.
Upon being eligible for L.T.D. payments an employee will be entered into a holding unit for a period of eighteen (18) months. If during that period the employee has recovered sufficiently to become available for work, the Employer will make every effort to place that employee in a position that may have become vacant provided that such employee has the necessary qualifications for such a position and is medically certified as being physically and mentally fit for the position.
In this context "benefits" means Life Insurance, L.T.D.I., O.H.I.P., E.H.C., Sick Leave Accumulation, Dental, Pension, Vacation. However, notwithstanding the definition of benefits given above, Vacations will cease to accrue at the end of a six (6) months period of absence, or the expiry of sick leave, whichever is the earlier
Article 2.01 provides that the term "employee" or "employees" used throughout the collective agreement shall be interpreted to mean employees on the active payroll. Article 2.05 defines "on the active payroll" in terms of permanent employees. There is no dispute that the three bricklayers affected by this application are being employed by the respondent under the Canada-Ontario Employment Incentive Programme for periods up to but not exceeding one hundred and twenty days and are not permanent employees. The collective agreement resembles an industrial or non-construction industry collective agreement and appears to have its origin in a non-construction certificate issued by the Board on December 8, 1970. There is nothing in the collective agreement which suggests an expansion of bargaining rights to cover construction employees. There is no mention of craft jurisdiction, no reference to a hiring hall and no specific classification for bricklayers in the collective agreement. The only reference to construction is with respect to "the Construction Inspection Section" in article 2.01(a).
The classifications in the collective agreement are to be read with the recognition clause in article 2.01 and clearly do not relate to construction work performed by bricklayers. While the bricklayers may have been assigned a rate ostensibly under article 12.01 of the collective agreement, any negotiated rate under that article only refers to a classification within the bargaining unit. Bricklayers performing construction work are not included in the bargaining unit. The payment of an employee of a rate under a collective agreement and the payment of dues do not in themselves mean that such an employee is covered by that collective agreement. (See Ecodyne Limited, [19791 OLRB Rep. July 629.)
The Board is not prepared to find that there is an ambiguity, either patent or latent in the terms of the collective agreement, which would cause the Board to permit the respondent to call extrinsic evidence.
The respondent requested clarification of the above decision of the Board and requested permission to call evidence with respect to its alleged negotiations with the intervener regarding the exclusion or inclusion of bricklayers from the collective agreement between the respondent and the intervener. The evidence which the respondent proposes to adduce before the Board is, in our opinion, extrinsic evidence which would purport to vary the written terms of a collective agreement. Section l(l)(e) of the Labour Relations Act provides that a collective agreement is an agreement in writing. The Board is not prepared to permit the respondent to adduce the extrinsic evidence it has referred to in argument.
[Balance of decision finding union status, bargaining unit, membership evidence etc. and issuing certificate omitted]