United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local Union 46 v. Tri-Canada Inc., 1983 CanLII 978

[1983] OLRB Rep. September 1591

0390-83-M The United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local Union 46, Applicant, v. Tri-Canada Inc., Respondent

BEFORE: N. B. Satterfield, Vice-Chairman, and Board Members I. M. Stamp and H. Ko­bryn.

APPEARANCES: Alex Ahee, Sean O'Ryan and Bill Weatherup for the applicant; no one for the respondent.

DECISION OF THE BOARD; September 12, 1983

1. The applicant has referred a grievance concerning the interpretation, application, administration or alleged violation of a collective agreement to the Board pursuant to section 124 of the Labour Relations Act for final and binding arbitration.

2. The grievance as filed alleges that Tri-Canada Inc. ("the company") is bound to the provincial agreement ("the Agreement") between the Ontario Pipe Trades Council ("the Council") and the Mechanical Contractors Association of Ontario ("MCA") operative from August 16th, 1982 to April 30th, 1984. It alleges further that the company has violated the Agreement by failing to give proper notice to employees that no work was available and by failing to make proper payment in the absence of due notice.

3. The applicant ("Local Union 46") has asserted in the referral that the company is bound to the Agreement and in asserting so is relying on the claim that the company is a party together with the United Association of Journeymen and Apprentices of the Plumbing & Pipefitting Industry of the United States and Canada ("the United Association") to two separate agreements:

1. Agreement for Use of United Association Union Label; and

(2) National Minimum Standard Agreement for a Commercial Pipe Fabrication Shop.

Hereinafter those agreements will be referred to respectively as the Union Label Agreement and the Pipe Fabrication Shop Agreement and collectively as the international agreements.

5. The reply filed by the company states in part at paragraph S as follows:

Tri-Canada is a signator to a Fabrication Agreement with the Interna­tional Union, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada (AFL-CIO) and a "Union Label Agreement" with the same association.

The reply contends also that:

(1) the company operates a manufacturing operation and there is no col­lective agreement between Local Union 46 and the company "... covering this manufacturing operation.";

(2) "... the Mechanical Contractor's Association of Ontario does not bargain on behalf of manufacturers."; and

(3) "There is no agreement, no jurisdiction under the Construction In­dustry Section of the Labour Relations Act.".

6. The company did not attend the hearing and was not represented at it. Counsel for Local Union 46 argued at the hearing that paragraph 5 of the reply was an admission of the company that it was bound together with the United Association to the Union Label Agree­ment and the Pipe Fabrication Shop Agreement. Having regard for counsel's argument and the company's statement in paragraph 5 of the reply, the Board made the finding orally at the hearing that the company was bound to the two aforementioned agreements with the United Association. The Board notes that Local Union 46 admits that it is not a party to those agree­ments.

7. Counsel for Local Union 46 argued further that the two agreements were each col­lective agreements in their own right and, as well, their terms operate independently and to­gether to bind Local Union 46 and the company to the collective agreements flowing from a continuing collective bargaining process or processes, including in particular provincial bar­gaining between the parties to the Agreement; that is, the Ontario Pipe Trades Council rep­resenting, inter alia, Local Union 46 and the MCA representing, pursuant to section 143 of the Act, the company. By this means, counsel contends, the company and Local Union 46 are bound to the Agreement. In both respects, counsel relies in particular on the wording of Article IX — Wages and Working Conditions — Building Trades Journeymen of the Pipe Fab­rication Shop Agreement which provides as follows:

The wage scales, working hours and fringe benefit payments, subject to the provisions of Article XI and conditions of employment (other than Trade and Work Jurisdiction, Article VIII) applicable to Building Trades Journeymen and Building Trades Apprentices covered by this agreemen­t shall be those which have been established by bona fide collective bar­gaining between the local union of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada and the local employers' bargaining agent recognized by the Local Union in the area where the permanent commercial pipe fabricating shop is located.

Counsel argues also that Section 4 of the Union Label Agreement complements and reinforces the provisions of Article IX above. Section 4 states:

The Employer agrees, as a condition for granting of this license to use the United Association Union Label, that the Employer has signed and executed the National Minimum Standard Agreement for a Commercial Pipe Fabricating Shop with the United Association, and has a signed lo­cal collective bargaining commercial fabricating shop agreement with one of its affiliated local unions providing for the payment of building and construction wage rates, working hours and fringe benefits to building and construction trades journeymen and building and construction trades apprentices employed in the designated shop or shops under the terms and conditions established by a bona fide collective bargaining agreement between the local union and the local employer. The Employer agrees, as a condition of this Agreement, that he will pay the wage scale, work­ing hours and fringe benefits applicable to the Metal Trades classification of employees covered by this Agreement which have been established by a bona fide collective bargaining agreement between the Employer and a local union of the United Association having territorial jurisdiction in the area where the Employer's permanent commercial pipe fabricating shop is located. This license to use a United Association Union Label is conditioned upon the Employer remaining in agreement with the local union covering the designated fabricating shop or shops. The Employer agrees to abide by and carry out the terms and conditions of the National Minimum Standard Agreement for a Commercial Pipe Fabricating Shop and the terms and conditions of the collective bargaining agreement be­tween the local union and the local employers. A breach of any of the terms and conditions of the local union fabricating shop agreement or the National Minimum Standard Agreement for a Commercial Pipe Fabricating Shop shall be grounds for the cancellation of this United Asso­ciation Union Label Agreement.

8. The company's fabrication shop is located within the geographic jurisdiction of Lo­cal Union 46 and the Board heard the evidence of Sean O'Ryan, its business manager, with respect to the relationships of the parties and the role of the two agreements between the United Association and the company. O'Ryan told the Board that the companies which sign the Union Label Agreement and the Pipe Fabrication Shop Agreement are usually mechanical contractors whose business has developed to a point where the contractor wants to establish a shop to fabricate piping assemblies for sale to other contractors or to clients instead of just for in­stallation with his own forces. The contractor will apply to the head office of the United As­sociation to become a party to the Union Label and Pipe Fabrication Shop Agreements. The international representative for the contractor's location will assess the contractor's equipment and facilities and, if satisfied that the contractor demonstrates the potential to be a fabricator of piping assemblies, has the contractor execute both agreements. The local union, for ex­ample Local Union 46, in whose geographic jurisdiction the shop is located has nothing to do with that part of the procedure and has no authority to execute those agreements. One of the benefits claimed to accrue to a fabricator from signing these agreements relates to the geo­graphic area which he can supply from his shop and have his piping assemblies accepted for installation by members of the United Association. If the contractor was simply bound by a construction collective agreement containing pipe fabrication shop provisions, he could supply pipe assemblies within the relevant local area without limit to the diameter of the piping, but outside of the local area it would be limited to piping greater than two inches in diameter. As a party to the Union Label and Pipe Fabrication Shop agreements~ he can ship piping as­semblies of any diameter outside of the local area.

9. According to 0' Ryan, once the two agreements are signed between the pipe fab­ricator and the United Association, the local union does not negotiate a local collective agree­ment with the fabricator covering the building tradesmen and apprentices who fabricate the piping assemblies in the shop or for the building tradesmen and apprentices employed by the fabricator, if any, to install the products in the field. He cited the example of the six shops within Local Union 46's geographic jurisdiction, none of which has a collective agreement with Local 46. It is satisfied as long as materials supplied from one of these shops is installed by building tradesmen and apprentices who are members of the United Association and are paid the wages and benefits of the relevant United Association collective agreement.

10. Pursuant to the two international agreements, the company is required to employ building tradesmen and apprentices to do the pipe bending, welding and assembly of piping systems in its fabricating shop. It employs for the purpose approximately 18 tradesmen and apprentices who are members of Local Union 46, amongst whom are included plumbers, steamfitters and welders. It may employ from time to time another four or five members, usu­ally steamfitters, for field installation of its products. Local Union 46 has dispatched its mem­bers to the respondent within the three or four months preceding the filing of this grievance. O'Ryan claims that the referral procedure set out in the Agreement was followed in dispatch­ing its members which allowed the company some latitude to hire by name.

11. Persons other than building tradesmen and apprentices employed by a shop fabri­cator for unskilled jobs such as materials handling would not be paid pursuant to the terms of a building trades agreement. If there was need for a collective agreement for this type of employee, it would be a separate metal trades agreement with the local union of the United Association holding geographic jurisdiction. The company is not a party to a metal trades agreement with Local Union 46.

12. Applicant counsel argues that the wording of Article IX of the Pipe Fabrication Shop Agreement must be read as having the effect of binding the parties to another or other collective agreements and that the company, the United Association and Local Union 46 all understood that to be the case. In support of that claimed understanding, counsel pointed to the fact that neither the United Association nor Local Union 46 entered into any other (coun­sel's adjective) collective agreement following the execution of the two international agree­ments. That circumstance, counsel asserts, is indicative that the respondent understood it was bound by means of those agreements to other collective agreements between or binding upon, inter alia, Local Union 46 and local employers in the area where the fabricating shop is lo­cated and applicable to building tradesmen and apprentices, that is plumbers, pipefitters, steamfitters, welders and their apprentices, the trades represented by the United Association. The fact that the Pipe Fabrication Shop Agreement does not refer to the parties to it being bound to collective agreements between specific parties or to one or more specific collective agreements which exist at a particular point in time, counsel suggests, arises from two aspects of its purpose. First, it is designed for uniform application in the United States and Canada and, as a consequence, must be broadly worded. Second, it is an agreement which is intended to endure over the years. Therefore, in order to satisfy those characteristics of the agreement, the parties purposefully bound themselves, by the words of Article IX of the Pipe Fabrication Shop Agreement, to the wage scales, working hours, fringe benefits and working conditions which are the end product of bona fide collective bargaining taking place from time to time between relevant locals of the United Association and employer representatives in the pipe trades.

13. Counsel argues further that Section 4 of the Union Label Agreement serves the same purpose and has the same effect, so that the one agreement reinforces the other. Should the Board not agree, counsel argues in the alternative that the language of Article IX and Section 4 of the respective international agreements is the stuff of which collective agreements are made and, when Article IX is read in the context of the whole Pipe Fabrication Shop Agree­ment, that document satisfied all of the requirements of the definition of a collective agreement in section l(l)(e) of the Act and is a collective agreement.

14. The Board cannot agree with counsel that the Pipe Fabrication Shop Agreement is a collective agreement within the meaning of section l( l)(e) of the Act. By means of Article IV — Recognition and Article VIII — Trade and Work Jurisdiction — Building Trades and Metal Trades Employee Classifications, that agreement purports to apply to employees of the com­pany including building trades journeymen and apprentices performing work directly con­nected with the fabrication of pipe bends, welded pipe assemblies or pipe formations and employees employed in the metal trades classifications performing work in and around the shop associated with but distinct from the work performed by the building trades journeymen and apprentices. Article IX quoted above requires that building tradesmen and apprentices of the company, that is, those employees engaged in the fabrication of pipe bends, welded pipe assemblies and pipe formations, be paid the wage scales, working hours and fringe benefit payments ..... which have been established by bona fide collective bargaining between the local union of the [United Association] and the local employers' bargaining agent recognized by the Local Union in the area where...." the company's fabrication shop is located.

Article X uses similar language to require that employees in the metal trades classifications receive the "... wage scales, working hours and fringe benefit payments, ... which have been established by bona fide collective bargaining between the Employer or his duly authorized representative and the local union of the [United Association] having jurisdiction in the area where ...." the company's fabrication shop is located.

15. Article IX could be read as creating an undertaking of the company to pay wages and other working conditions established by some other collective agreement making the Pipe Fabrication Shop Agreement, were it to be a collective agreement itself, a "pick-up agree­ment"; that is a collective agreement where the parties agree to subsume into their agreement certain terms and conditions of a collective agreement between other parties, one of those parties being Local Union 46, the local union of the United Association having jurisdiction in the area where the respondent's fabrication shop is located. If that were the case, the same could not be said with respect to the metal trades classifications. Article X is an undertaking to pay the terms and conditions of a collective agreement between the company and Local Union 46. Should the Pipe Fabrication Shop Agreement be a collective agreement between United Association and the company covering employees in the metal trades classifications and should Local Union 46 and the company conclude a separate collective agreement also cov­ering those classifications, the result would be two collective agreements covering the same group of employees, with the company a common party. That situation would be a clear vi­olation of section 49 of the Act which requires that there be only one collective agreement at a time between a trade union and an employer. Furthermore the Act establishes the prin­ciple of exclusivity in respect of bargaining agents, therefore only one trade union can hold bargaining rights for a group of employees. Local Union 46 and the United Association are different trade unions under the Act as far as being bargaining agents of employees is con­cerned. For the company to have separate collective agreements with each of them for the same employees would violate that principle and could have the curious effect of causing a breach of section 67 of the Act by the company. Section 67(1) states that "No employer, so long as a trade union continues to be entitled to represent the employees in a bargaining unit, bargain with or enter into a collective agreement with ... any trade union ... purporting, designed or intended to be binding upon the employees in the bargaining unit or any of them.".

16. While those circumstances alone might not invalidate the undertaking in Article IX in respect of the building trades journeymen and apprentices, and while it is open to argument that the parties to the Pipe Fabrication Shop Agreement intended it to be a collective agree­ment with respect to building trades journeymen and apprentices which picked up certain con­ditions of other collective agreements, or another one, and something else again for the metal trades classifications, it renders the parties' intent equivocal as to what that document is. Their equivocation is intensified by the repeated references elsewhere in that agreement, for example in Article VI — Hiring of Men Article VIII referred to above, Article XI — Fringe Benefit Payments and Article XXI — Strikes and Lockouts, to other collective agreements. Further­more, the Board finds additional support for not viewing the Pipe Fabrication Shop Agreement as a collective agreement. The evidence before the Board is that that agreement and the Union Label Agreement go hand-in-glove; one not being signed without the other. Section 4 of the Union Label Agreement acknowledges that the respondent has signed the Pipe Fabrication Shop Agreement as a condition for the right to use the union label and makes it a further condition that the company enter into and remain bound by collective agreements with the relevant local union, in this case Local Union 46, with respect to building trades journeymen and appren­tices and to the metal trades classifications. The collective agreement with respect to building trades journeymen and apprentices must provide for payment of construction wage rates, working hours and fringe benefits to the building trades journeymen and apprentices. Thus the Union Label Agreement appears to go beyond the Pipe Fabrication Shop Agreement in that it does not simply contemplate a "pick-up" arrangement, rather it sets as a condition precedent to a license for the company to use the union label, the requirement that the em­ployer has signed a local collective agreement as aforesaid. It is difficult, therefore, to un­derstand O'Ryan's evidence that, when a fabricator has signed the international agreements, the local union having geographic jurisdiction in the area where the shop is located does not negotiate a local collective agreement with the fabricator covering the building trader jour­neyman and apprentices who work in the shop.

17. In these circumstances and for the foregoing reasons the Board finds that the Pipe Fabrication Shop Agreement is not a collective agreement within the meaning of section l(l)(e) of the Act. Whatever else it might be, however, the Board is satisfied that it is at least an agreement that the company employ building trades journeymen and apprentices to perform the work directly connected with the fabrication of pipe bends, welded pipe assemblies or pipe formations as described in Article VIII and elsewhere in the Pipe Fabrication Shop Agreement and pay them the wage scales, working hours and fringe benefit payments established by a collective agreement or collective agreements to which Local Union 46 is a party or by which it is bound.

18. That requirement could include paying the wage scales, working hours and fringe benefit payments of the Agreement referred to in paragraph 3. If it does, and the Board makes no finding either way, the payment of those wages, working hours and fringe benefits is with respect to shop fabrication. This is a referral of a grievance in the construction industry pur­portedly dealing with work in the construction industry. Therefore, even were the Board to conclude that the Pipe Fabrication Shop Agreement bound the company to the Agreement, it would only be binding with respect to employees covered by the Pipe Fabrication Shop Agree­ment. While the Board is satisfied that that document, whatever it is, covers the company's shop employees, in order for the Board to conclude that it covered the company's employees who might install the shop's products on construction sites, it would have to be satisfied that the reference in Article IV — Recognition to .... . employees of the employer..." includes such employees. That article, also refers specifically to building trades journeymen and apprentices and metal trades employees classifications. Those two groups of employees are referred to in several other articles of the document, but nowhere is there any reference to any other groups of employees. If the parties to the document intended that it cover employees engaged in on-site installation, whether it be the same building trades journeymen and apprentices who do the shop fabrication, it would have been simple enough for the parties to have made specific reference somewhere in the document to that work. In these circumstances and absent specific reference to employees engaged in on-site installation of pipe assemblies, the Board is not prepared to find that the Pipe Fabrication Shop Agreement binds the company to the Agree­ment with respect to its employees who may be engaged in the construction site installation of the fabricated pipe products of the shop.

19. Counsel for the applicant, in answer to a query from the Board, argued that Article IV of the Pipe Fabrication Shop Agreement is a voluntary recognition by the respondent that the United Association is the exclusive bargaining agent for the company's employees. If it is, by its very wording it is limited to the employees "..., in the employ of the Employer in the Employer's fabricating shop or shops" and, therefore, would not extend to the com­pany's employees in the construction industry.

20. In summary, the Board finds that the National Minimum Standard Agreement for a Commercial Pipe Fabrication Shop Agreement, whether read alone or together with the Agreement for Use of United Association Union Label, is not a collective agreement or any form of agreement including a voluntary recognition agreement binding the respondent to the provincial agreement between the Ontario Pipe Trades Council and the Mechanical Contractors Association of Ontario. In the result, the Board is without jurisdiction to process the grievance herein referred.

21. The application is dismissed.