[1984] OLRB Rep. April 653
1898-83-M Labourers' International Union of North America, Local 1059, Applicant, v. Sandercock Construction (1976) Ltd., Respondent.
BEFORE: N. B. Satterfield, Vice-Chairman and Board Members F. W. Murray and L. Collins.
APPEARANCES: Manuel Simoes, Dos Reis and David Strang for the applicant; D. L. Brisbin and R. S. Bettridge for the respondent.
DECISION OF THE BOARD; April 17, 1984
The applicant has referred a grievance concerning the interpretation, application, administration or alleged violation of a collective agreement to the Board for final and binding arbitration pursuant to section 124 of the Labour Relations Act.
The referral was made November 14th, 1983 and was adjourned sine die on consent of the parties. It ultimately came on for hearing on March 13th, 1984. The referral raises the issue of whether the applicant, Labourers' International Union of North America, Local 1059 ("Local 1059") has jurisdiction to bring this grievance against the respondent, Sandercock Construction (1976) Ltd. ("Sandercock"). The issue is both a preliminary one and a substantive one. It is preliminary in terms of whether Local 1059 is bound to a collective agreement with Sandercock which would give the Board jurisdiction to hear and determine the grievance. If they are bound to a collective agreement, the substantive issue is whether Local 1059 is a proper party under the terms of the collective agreement to bring the grievance. There is a related issue of the timeliness of the grievance if the Board finds that Local 1059 has jurisdiction to bring it.
It is common ground between the parties that there is no signed collective agreement between Local 1059 and Sandercock. Sandercock admits to being bound to the labourers provincial agreement in the industrial, commercial and institutional sector of the construction industry in which it applies, but the issues between the parties do not involve that sector. It is Sandercock's uncontested evidence that the only collective agreement which it has signed with any local of the Labourers International Union of North America is one which it has with Local 1089 in Sarnia, Ontario ("the Agreement"). According to its terms, it is in effect from June 23, 1982 until January 31, 1985. That Agreement is the one on which Local 1059 relies in order to bring this grievance. Local 1059 contends that the terms of the Agreement bind Sandercock to another collective agreement which it refers to as the provincial civil engineering collective agreement ("the civil engineering agreement"). On the evidence, the civil engineering agreement is not a single collective agreement. There are several of them, identically worded except with respect to the name of the employer party. Each one is an agreement between the named employer and the Labourers' International Union of North America, Ontario Provincial District Council ("the Council") on behalf of it's affiliated locals. Local 1059 and Local 1089 are affiliated locals of the Council. There are four such documents in evidence, each one signed by a different employer. Sandercock is not one of them. In the same way that Sandercock is not a party named to any of the individual civil engineering agreements with the Council, the Council is not a party named to the Agreement between Sandercock and Local 1089.
Local 1059 bases its claim that Sandercock is bound to the civil engineering agreement primarily on two provisions of the Agreement. These provisions are Article 2 — Recognition, clause 2.1 and Article 5 — Geographic Area, clause 5.3. These clauses provide as follows:
ARTICLE 2 - RECOGNITION
- 1 The employer recognizes [Local 1089] as the exclusive bargaining agent for all employees of the Employer in all sectors of the construction industry in the Province of Ontario engaged in work covered by the Schedules and classifications set out in this Agreement, and any additional classifications as may be agreed to by the parties, save and except non-working foremen and persons above that rank.
ARTICLE S - GEOGRAPHICAL AREA
- 1 This Agreement shall be effective within the County of Lambton.
5.2 Wages and conditions as outlined in this Agreement shall be effective within Labour Board Area 2 (County of Lambton) as defined by the Labour Relations Board.
5.3 If an Employer works in other areas of the Province of Ontario, where there exists an agreement between a contractor or association of contractors and [Local 1089], the Employer agrees to abide by the wage rates and conditions of the said agreements.
(emphasis added)
It is also common ground between the parties that the agreement has no application to the industrial, commercial and institutional sector of the construction industry; the work Sander-cock was performing in London which gave rise to this grievance was work in the sewer and watermain sector of the construction industry; and, the schedules referred to in clause 2.1 of the Agreement cover that work at least. That being the case, counsel for Local 1059 argues, clause 5.3 of the Agreement operates to incorporate into the Agreement the terms and conditions of the civil engineering agreement.
- Article 2 — Recognition of the civil engineering agreement provides as follows:
ARTICLE 2 - RECOGNITION
2.01 The Employer recognizes the Union as the sole and exclusive bargaining agent for all employees engaged in construction work covered by the classifications in this Agreement within the Province of Ontario, save and except non-working foremen and those above that rank, camp staff, office staff, those employees covered by a subsisting Collective Agreement and engineering staff for Civil Engineering Construction Work, which includes the Sewer and Watermain, Roadbuilding Heavy Construction Sectors, but excludes Tunnel Work, T.T.C. Rapid Transit System Construction and Utility Work as defined in the Collective Agreement between the Union and The Utility Contractors' Association of Ontario.
2.02 The work classifications specified in Schedule "C" attached hereto and hereby made part of this Agreement, are hereby recognized as being classifications within the jurisdiction of this Agreement. The parties agree to amend Schedule "C" in the event that both parties hereto agree that additional classifications should be included therein.
2.03 Each Local Union, as specified in Schedule "A", is the administrative party for this Agreement for work performed within the geographic area of such Local Union as defined in Schedule "A". including the right to file grievances under Section 124 of the Ontario Labour Relations Act, for alleged violations of this Agreement. Grievances dealing with the interpretation application and jurisdiction of this Agreement shall only be filed and processed by the Council itself.
(emphasis added)
Schedule "A" referred to in clause 2.03 makes Local 1059 the administrative party for the civil engineering agreement within the Counties of Middlesex, Huron, Bruce, Perth, Oxford and Elgin. They make up the Board's construction industry geographic area No. 3. The City of London where Sandercock was performing the work at issue herein obviously falls within Local 1059's administrative jurisdiction. Therefore, according to Local 1059's counsel, Local 1059 and not Local 1089 is the party having jurisdiction to refer a grievance against Sandercock under section 124 of the Act while Sandercock is performing sewer and watermain work within those three counties.
It is implicit in Local 1059's argument that it considers the Agreement to be provincial in its geographic scope as clause 2.1 purports to make it. Sandercock's counsel contends that it is in fact a province-wide collective agreement. Clause 2.1 standing alone certainly purports to make it that. Neither party, however, argued the effect of clauses 5. 1 and 5.2 and, whatever their effect, they certainly introduce an ambiguity about the true geographic scope of the Agreement. It is unnecessary for the Board to decide whether the Agreement is provincial in scope, however, because, in order for Local 1059's argument to succeed the Board at least must find 's... there exists an agreement between a contractor or association of contractors ..." and Local 1089 in the City of London where Sandercock was working. The civil engineering agreement on which Local 1059 is relying is not an agreement between Local 1089 and each employer who has signed it. It is an agreement between the Council made on behalf of Locals 1059 and 1089, amongst other affiliated locals of the Council and, while there is little doubt that it is binding upon Local 1089 with respect to each employer who has signed the agreement with the Council, the Board is satisfied that it is not binding on Local 1089 in the City of London.
It is clear from clause 2.03 of the civil engineering agreement that the Council is extending to its affiliated locals a limited administrative jurisdiction under the agreement. It makes each affiliated local "... the administrative party for [the civil engineering agreement] for work performed within the geographic area of such [affiliated local] as defined in Schedule "A", including the right to file grievances under Section 124 of the Ontario Labour Relations Act, for alleged violations of [the civil engineering agreement]." But even with respect to grievances the Council reserves to itself the filing and processing of ..... (grievances] dealing with the interpretation application and jurisdiction of the civil engineering agreement. As the Board observed in paragraph 5 above, Schedule "A" gives to Local 1059 administrative jurisdiction for the six counties which comprise Board area #3. Similarly it gives administrative jurisdiction to Local 1089 in the County of Lambton. In turn, a separate appendix to the civil engineering agreement gives Local 1059 administrative jurisdiction in Elgin, Middlesex and Oxford counties over specific provisions with respect to hours of work, overtime, vacation pay, statutory holiday allowance, statutory holidays, travel and reporting pay and other working conditions, including union security. Another appendix gives Local 1089 administrative jurisdiction over specific provisions of a similar nature in the County of Lambton.
Having regard for Article 2, particularly clause 2.03 of the civil engineering agreement, its schedules and appendices referred to above and the overall construction of the document, the Board is satisfied that Local 1089 is not bound to the civil engineering agreement insofar as it applies to the city of London. Consequently, Local 1059 has no access to section 124 of the Act with respect to Sandercock for the work which gave rise to this grievance. Nor is there any evidence before the Board of any agreement between or binding upon Local 1089 and any other contractor or association of contractors which would have created for Sandercock any obligation under clause 5.3 of the Agreement with Local 1089 when Sandercock was performing the work in London which is at issue herein.
The result would be no different for Local 1059 even were the Board to interpret clause 2.3 of the Agreement between Sandercock and Local 1089 to create an obligation for Sandercock to apply the terms of the civil engineering agreement to the work which it was doing in London. In the Board's view, clause 5.3 of the Agreement would not operate to bind Sandercock to the civil engineering agreement. Sandercock has agreed to abide by "the wage rates and conditions" of whatever agreements apply. The term "abide by" according to Black's Law Dictionary (Fifth ed.), St. Paul, Minn.: West Publishing Co. (1979), means "To adhere to, to obey, to accept the consequences of". According to those meanings, therefore, Sandercock has agreed to adhere, to obey or accept the consequences of some other collective agreement, for example the civil engineering agreement. It is the Board's experience that, in the construction industry, it is not uncommon for a trade union and an employer or association of employers to describe in a collective agreement between them conditions such as the hours of work, wage rates, benefits and other working conditions by reference to a particular collective agreement between the same trade union and another employer or group of employers. In other words, the parties to a collective agreement incorporate into it by reference to another collective agreement certain of that other agreement's terms and conditions. That is done without the employer party to the collective agreement becoming bound to the reference agreement as though it were a party to it. Had it been the intent of the parties to the Agreement that Sandercock become bound to some other agreement between Local 1089 and "... a contractor or association of contractors . .." having effect outside of Lambton County as though Sandercock were bound thereto, the parties would have expressed that intent in clear language to that effect.
The terms and conditions of the reference agreement which are incorporated into the signed agreement between the parties become a part of the signed agreement. Therefore, if there is an issue between the parties as to what terms and conditions are incorporated or whether particular incorporated terms have application in a particular situation, it would be a matter for the parties to the signed agreement to sort that out in the grievance procedure or under section 124 of the Act. That being the case, if Sandercock should have applied terms and conditions of the civil engineering agreement when it was performing sewer and water-main work in London, Local 1089 as the trade union party to the Agreement would be the party to enforce those provisions. This is particularly so under section 124 of the Act because it provides that "Notwithstanding the grievance and arbitration provisions in the collective agreement ..., a party to a collective agreement between an employer ... and a trade union ... may refer a grievance concerning the interpretation, application, administration or alleged violation of the agreement, ... to the Board for final and binding determination." (emphasis added).
Local 1059 is not a party to a collective agreement with Sandercock and in particular is not the trade union party to the Agreement. Therefore, it has no jurisdiction under section 124 to refer a grievance against Sandercock to the Board for final and binding determination.
On November 7th, 1983, one week before Local 1059 made this referral, the Board differently constituted, certified Local 1059, pursuant to section 144(3) of the Act, as exclusive bargaining agent for construction labourers employed by Sandercock in the Counties of Oxford, Perth, Huron, Middlesex, Bruce and Elgin ("Board Area #3"), excluding the industrial, commercial and institutional sector of the construction industry. Sandercock's reply to the application for certification had included a reference to the Agreement with Local 1089, its term of operation and to Local 1089 being a party affected by paragraph 10 of the reply which requested from Sandercock:
The name and address of any trade union known to the respondent as claiming to be the bargaining agent of or to represent any employees who may be affected by the application:
In view of those circumstances Sandercock asked the Board during the hearing into this grievance referral to resolve which one of Local 1089 or Local 1059 holds bargaining rights for its construction labourers in Board area #3. The Board's record shows, however, that Sandercock did not cite the Agreement with Local 1089 as a bar to Local 1059's application for certification. This is clear from paragraph 7 of the Board's decision issuing the certificate to Local 1059 in which the matter of the appropriate bargaining unit was discussed in the following terms:
The respondent states that the appropriate bargaining unit is one described in terms of all construction labourers employed in the sewers and watermains sector of the construction industry. The respondent consents also to this application being disposed of ... by the Board without a hearing subject to the scope of the bargaining unit being limited to the sewers and watermains sector. It is the consistent policy of the Board to describe bargaining units in the construction industry without reference to sector except to the extent required by sub-sections 2 and 3 of section 144 of the Act. Prior to those provisions being in the Act, it had been a longstanding policy of the board to describe construction industry bargaining units without reference to sectors, thus including all sectors. In this respect see Lyle West Electric Limited, [1978] OLRB Rep. Nov. 999; Colonist Homes Ltd., [1980] OLRB Rep. Dec. 1729; and Pelar Construction Ltd., [1981] OLRB Rep. Feb. 210. The respondent does not offer any grounds in its reply as to why the appropriate bargaining unit should be limited to the sewers and watermains sector, although it would appear that the project on which the respondent was engaged at the time of the application pertains to sewer [and] watermains. In view of the Board's policy with respect to appropriate bargaining units in the construction industry and absent any reference in the reply to a specific issue with respect to the appropriate unit which the respondent would be seeking to place before the Board if a hearing were held, there apppears to be no useful purpose to list the application for hearing.
The certificate which the Board issued to Local 1059 with respect to Sandercock's construction labourers in the Counties of Oxford, Perth, Huron, Middlesex, Bruce, and Elgin 15 now a matter of record and law and it speaks for which trade union holds bargaining rights for Sandercock's construction labourers in the six counties and that is Local 1059. It was unnecessary for the Board in the instant case to decide whether the Agreement between Sandercock and Local 1089 establishes bargaining rights for Local 1089 for Sandercock's construction labourers in Board area #3. Therefore, if Sandercock believes that the decision of the Board with respect to the application for certification conflicts with bargaining rights held by Local 1089 for Sandercock's construction labourers arising out of the Agreement, it is open to Sandercock to request the Board to reconsider that decision.
For the reasons set out herein and the conclusion reached at paragraph 12 above, the Board is without jurisdiction to hear and decide the grievance referred to it in this application. Therefore the application is dismissed.