Sheet Metal Workers' International Association, Local Union 47 v. H. G. Francis and Sons Limited, 1984 CanLII 935

[1984] OLRB Rep. March 449

1042-83-M Sheet Metal Workers' International Association, Local Union 47, Appli­cant, v. H. G. Francis and Sons Limited, Respondent

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

APPEARANCES: Den is Power, Mike Polowin, Bob Belleville and Ross Mitchell for the ap­plicant; M. G. Horan and Hugh Francis for the respondent.

DECISION OF THE BOARD; March 26, 1984

1. 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.

2. The grievance alleges that the respondent is bound to the residential collective agreement ("the Residential Agreement") between Local Union 47 of the Sheet Metal Work­ers' International Association ("Local 47") and The Mechanical Contractors Association of Ottawa (Sheet Metal Division) effective from October 21, 1982 to April 30, 1984. The griev­ance further alleges that the respondent has violated the residential agreement by failing and refusing to apply it to residential construction projects on which sheet metal workers employed by the respondent have been engaged.

3. The central issue in the grievance is whether the employer is bound to the resi­dential agreement as a result of having granted voluntary recognition to Local 47 on or about September 29, 1972. Clause 2.1 of the Residential Agreement includes the following descrip­tion of its scope:

2.1 SCOPE, PURPOSE AND INTENT

This Agreement is applicable to Sheet Metal Journeymen and Apprentices working in New Rssidential [sic] construction of single and double houses, row houses, town houses and apartments of not more than six (6) units. Included are renovations and retrofit of air heating and cooling systems in existing residential accommodations.

It is to be noted that the specific provisions of the Residential Agreement do not apply to all residential construction. Rather, it appears to adopt the provisions of another collective agree­ment for certain work. This is evident from the note which ends clause 2.1 of the Agreement. It reads as follows:

NOTE: Although high rise apartments are not included in the ICI Sector, the ICI rates of pay and fringe benefits and all other provisions of the ICI Agreement shall prevail for all journeymen and registered apprentices working on apartment houses of more than six (6) units.

The ICI Agreement referred to in the note is the sheet metal workers provincial agreement. Neither the Mechanical Contractors Association Ottawa ("the MCAO") nor Local 47 are par­ties to the provincial agreement, although Local 47 is a party bound by it. The parties to that agreement are:

the Sheet Metal Workers' International Association and The Ontario Sheet Metal Workers' Conference of the Sheet Metal Workers' International As­sociation, and the Ontario Sheet Metal and Air Handling Group.

5. There is little dispute between the parties about the material facts in this grievance, although there was some conflict in the detailed evidence of some of the witnesses with re­spect to those facts. Where it was necessary for the Board to resolve conflicts in the evidence of witnesses, the Board has assessed all of that evidence, the reliability of the witnesses' rec­ollection of events, their ability to relate clearly to the Board the matters and events about which they were testifying, the specificity of their evidence, their ability to resist the influence of self interest and their general demeanour as witnesses.

6. Local 47 and the MCAO have been parties to construction industry collective agree­ments with respect to sheet metal workers employed by those members of MCAO for whom it was the bargaining agent since at least 1966. Prior to May 1, 1973, the scope clauses of those agreements contained no reference to sectors of the construction industry and purported to apply to all sectors of the industry. Beginning with the collective agreement which by its terms became effective on May 1, 1973, the agreements between Local 47 and the MCAO described their scope with reference to the industrial, commercial and institutional (the "ICI") sector and the residential sector of the construction industry. There were three consecutive agreements with scope clauses so described: May 1, 1973 to April 30, 1975; May 1, 1975 to April 30, 1977; and May 1, 1977 to April 30, 1978. Effective May 1, 1978, the first sheet metal workers provincial agreement came into effect. A provincial agreement by definition is a collective agreement which pertains to the ICI sector of the construction industry, although the parties to a provincial agreement can make specific provisions to have it apply to other sectors. There is no evidence before the Board that the sheet metal workers provincial agree­ments in effect at the times material to this grievance described their scope to apply outside of the ICI sector. The Board is satisfied, however, on the evidence before it, that those sheet metal contractors who had been bound to the collective agreements between Local 47 and the MCAO continued to apply the terms of the provincial agreement to the construction of high-rise apartment buildings. Indeed, the evidence supports the conclusion that Local 47 and these contractors consistently treated the construction of high-rise apartments as though it was one and the same as ICI construction.

7. When Local 47 and MCAO entered into the Residential Agreement on October 21, 1982, it was the first agreement signed between them since April 30, 1978, the expiry date of the agreement immediately preceding the first sheet metal workers provincial agreement. Local 47 is the exclusive bargaining agent for sheet metal workers employed by the contrac­tors who are bound to the Residential Agreement. As indicated at the outset, Local 47 and the respondent are in dispute over whether the respondent is an employer bound to that Agree­ment. Local 47 bases its claim that the respondent is bound to the Residential Agreement on the fact that Local 47 was granted voluntary recognition by the respondent on or about Sep­tember 29, 1972 following which, on February 16, 1973, the MCAO became the accredited employer bargaining agent for all employers for whose employees Local 47 held bargaining rights in the ICI and residential sectors of the construction industry within the geographic area described in the collective agreement which was in force between Local 47 and MCAO from May 10, 1971 to April 30, 1973. That is the same geographic area which is described in the Residential Agreement.

8. The MCAO had filed two applications for accreditation to represent in collective bargaining employers of sheet metal workers for whom Local 47 held bargaining rights. One application was with respect to the ICI sector and the other to the residential sector. Sub­sequent to their filing, but prior to the Board issuing a certificate to the MCAO, Local 47 and the respondent entered into an agreement on September 29, 1972. The form of their agreement was Local 47's collective agreement with the MCAO. They also signed an adden­dum bearing the date September 29, 1972 which states that the agreement signed between them ..... does not include Jurisdiction over the domestic or (single home dwellings)". After the April 30, 1973 expiry date of the collective agreement which they signed, no further col­lective agreement was executed between them. There were, however, the three successive col­lective agreements referred to above between the MCAO and Local 47 covering the period May 1, 1973 to April 30, 1978 and applying to the ICI and residential sectors of the con­struction industry.

9. The respondent's construction business includes the installation of plumbing, heat­ing, air conditioning and sprinklers and sheet metal work. It does both new construction and renovation or what the parties referred to as "retrofitting". The respondent started in business in the Ottawa area in 1933 and it's sheet metal work is managed by Mr. Hugh Francis who is secretary of the respondent and one of its principals. The other two principals are his two brothers. At the time of the hearing~ the respondent employed twelve sheet metal workers, six in its sheet metal shop and six in residential construction. The six shop employees do the respondent's work in the ICI sector and high-rise apartment construction. That is the pattern which prevailed prior to and after Local 47 acquired it's bargaining rights for employees of the respondent.

10. There is no issue between the parties about the ICI and high-rise apartment work. The respondent has applied the provisions of the sheet metal workers provincial agreement to that kind of work, and before the first provincial agreement came into effect, it applied the provisions of the MCAO agreements. On the other hand, the respondent did not apply the agreement it first signed with Local 47 to residential construction other than high-rise apart­ment buildings, nor did it apply any of the subsequent agreements between Local 47 and the MCAO. In other words, the respondent has not applied any of those agreements to the con­struction of single and double houses, row houses, town houses and apartments of not more than six units. For ease of reference, that work will be referred to hereafter as "low-rise res­idential construction".

11. There is no evidence before the Board to show that Local 47 has sought to enforce any of the agreements prior to the residential agreement which became effective October 21, 1982 to any of the work which the respondent has done on low-rise residential construction. In fact, it is reasonable to infer from the evidence before the Board that Local 47 did not enforce its first agreement with the respondent or the three subsequent MCAO agreements on that kind of work when it was performed by the respondent's sheet metal workers.

12. Following expiry of the MCAO agreement on April 30, 1978, Local 47 did not negotiate with the MCAO again until 1982. The MCAO bargaining committee was comprised of William Chauvin, it's executive director, and three sheet metal contractors who were not active in residential construction. According to Chauvin, the MCAO has seventeen members who are sheet metal contractors and only the respondent and one or two others are substan­tially involved in residential construction. While Mr. Francis was chairman of the MCAO at the time, he was unwilling to serve on the negotiating committee because he considered the respondent to be a "non-union" employer in residential construction. With so few of its sheet metal contractor members engaged in residential construction, the MCAO was unable to put together a negotiating committee of members with any special knowledge of residential con­struction, excluding high-rise apartments. During the latter stages of the negotiations, the two bargaining committees arranged to have Mr. Francis attend a meeting. At this meeting the parties discussed various accommodations which were aimed at assisting contractors who would be bound to the agreement in meeting non-union competition. Some of these accommodations were made part of the final bargain included in the Residential Agreement which was signed on October 21, 1982. These were mostly the suggestions of Francis.

13. At the bargaining session which Francis attended, Local 47 took the position that the respondent would be bound to the collective agreement ultimately negotiated because of the voluntary recognition agreement made in 1972. Francis, on behalf of the respondent took the contrary position and maintained that the respondent had never granted voluntary recog­nition with respect to the residential construction work covered by the Residential Agreement which the parties were seeking to negotiate and which was ultimately concluded between them. Once the agreement was signed, Local 47 sought to get the respondent to acknowledge that it was bound to the new agreement. Its efforts included visiting and seeking to enroll as mem­bers the employees of the respondent who worked on residential construction. Ross Mitchell, the business representative of Local 47 who visited the employees, told the Board that he took this step in order to avoid the need to submit the issue to arbitration, even though it was Local 47's position throughout that the respondent was bound to the Residential Agreement. An em­ployee of the respondent testified, however, that, when Mitchell talked to the "residential" employees, he did not mention Local 47's claim that the respondent was already bound to a collective agreement with Local 47.

14. The MCAO's two applications to be certified as an accredited employer bargaining agency were processed separately by the Board, although there were common hearings into the applications. The Board ultimately issued a single certificate to the MCAO on February 16, 1973. That certificate describes in the following terms the bargaining unit of employers for which the MCAO was made the accredited bargaining agent:

... all employers of Sheet Metal Workers and Sheet Metal Worker ap­prentices on whose behalf [Local 47] has bargaining rights in the fol­lowing [geographic] area, ... in the industrial, commercial and institutional sector and residential sector.".

The Board's certificate goes on to list the employers for whom the MCAO was to be the bar­gaining agent under the certificate and, having done so, ends the paragraph with the following statement:

"... and such other employers for whose employees The Sheet Metal Workers' International Association, Local Union 47 may after February 18, 1972 obtain bargaining rights through certification or voluntary rec­ognition in the geographic area and sector set out in the unit of employers described herein.".

That provision reflects the Board's mandate set out in section 127(2) of the Act [at the time of the certificate, section 115(2)] which provides as follows:

127.-(2) If the Board is satisfied

(a) that a majority of the employers in clause (l)(a) is represented by the employers' organization; and

(b) that such majority of employers employed a majority of the employees in clause (l)(c),

the Board, subject to subsection (3), shall accredit the employers' or­ganization as the bargaining agent of the employers in the unit of em­ployers and for such other employers for whose employees the trade union or council of trade unions may, after the date of the making of the ap­plication, obtain bargaining rights through certification or voluntary rec­ognition in the appropriate geographic area and sector.

[emphasis added]

Paragraph 13 of the Board's decision to issue the certificate of accreditation to the MCAO acknowledges the authority of section 127(2) in the following words:

13. Having regard to all the above findings a Certificate of Accreditation will issue to the applicant for the unit of employers found to be the ap­propriate unit of employers in paragraph 5 and in accordance with the provisions of section [127(2)] of the Act for such other employers for whose employees the respondent may after February 18, 1972, obtain bargaining rights through certification or voluntary recognition in the geographic area and sectors set out in the appropriate unit of employers.

[emphasis added]

15. The respondent's name does not appear on the list of employers set out in the cer­tificate or in paragraph 5 of the decision. It is undisputed between the parties, however, that the respondent extended voluntary recognition to Local 47 for sheet metal workers employed by the respondent within the identical geographic area set out in the certificate and the de­cision. The dispute between them is with respect to the sector or sectors of the construction industry for which the respondent granted voluntary recognition to Local 47 and the related issue of what effect the subsequent accreditation of the MCAO had on those bargaining rights.

16. The sections of the Act which bear on the issues herein are sections 16(3), 125, 126, 127(2), 128(1) and 128(4). The text of section 127(2) is set out above. The remaining sections, which, at the time of the MCAO's accreditation applications, were respectively sec­tions 15(3), 113, 114, 116(1) and 116(4) provide as follows:

17. -(3) Where an employer and a trade union agree that the employer recognizes the trade union as the exclusive bargaining agent of the em­ployees in a defined bargaining unit and the agreement is in writing signed by the parties, the Minister may, upon the request of either party, appoint a conciliation officer to confer with the parties and endeavour to effect a collective agreement.

18. Where a trade union or council of trade unions has been certified or has been granted voluntary recognition under section 16 as the bar­gaining agent for a unit of employees of more than one employer in the construction industry or where a trade union or council of trade unions has entered into collective agreements with more than one employer cov­ering a unit of employees in the construction industry, an employers' or­ganization may apply to the Board to be accredited as the bargaining agent for all employers in a particular sector of the industry and in the geo­graphic area described in the said certificates, voluntary recognition doc­uments or collective agreements, as the case may be.

126.-(l) Upon an application for accreditation, the Board shall determine the unit of employers that is appropriate for collective bargaining in a particular geographic area and sector, but the Board need not confine the unit to one geographic area or sector but may, if it considers it advisable, combine areas or sectors or both or parts thereof.

(2) The unit of employers shall comprise all employers as defined in clause 117(c) in the geographic area and sector determined by the Board to be appropriate.

128.-(l) Upon accreditation, all rights, duties and obligations under this Act of employers for whom the accredited employers' organization is or becomes the bargaining agent apply with necessary modifications to the accredited employers' organization.

(4) Where, after the date of the making of an application for accre­ditation, the trade union or council of trade unions obtains bargaining rights for the employees of an employer through certification or voluntary recognition, that employer is bound by any collective agreement in ex­istence at the time of the certification or voluntary recognition between the trade union or council of trade unions and the applicant employers' organization or subsequently entered into by the said parties.

17. The means employed by the respondent and Local 47 for entering into a voluntary recognition agreement is one commonly practiced in the construction industry; that is, signing the same collective agreement that the union has made with another employer or other em­ployers. In this case, it was the collective agreement between the MCAO and Local 47 which, by its terms, was effective from May 10, 1971 to April 30, 1973, together with the addendum to that agreement which the parties signed that same day. The MCAO's two applications for accreditation already being before the Board, it would seem from a plain reading of section 128(4) that the documents which the respondent and Local 47 signed were of no legal con­sequence as a collective agreement since the section stipulates that, where the trade union re­spondent to an accreditation application acquires bargaining rights for employees of an employer through voluntary recognition after the making of the application, "... the employer is bound by any collective agreement in existence at the time of the ... voluntary recognition between the trade union ... and the applicant employers' organization ....". The question of whether the two documents are of no legal consequence as a collective agreement does not have to be decided by the Board in this case because they at least constitute a voluntary rec­ognition agreement as referred to in section 16(3) of the Act. That is, they constitute an agree­ment in which the respondent recognizes Local 47 as the exclusive bargaining agent for its sheet metal workers in a defined bargaining unit. The defined bargaining unit is the one de­scribed in the MCAO collective agreement with Local 47, amended by the addendum with respect to work in the residential sector of the construction industry.

18. The Board has already made the finding of fact that the scope of the respondent's voluntary recognition of Local 47 excluded low-rise residential construction. Thus the re­spondent recognized Local 47 as the bargaining agent for the respondent's employees em­ployed in the construction industry, excluding those persons employed in low-rise residential construction. By virtue of that recognition and the operation of section 128(4) of the Act, the respondent would have become bound to the MCAO agreement which was then in effect for the remainder of its term (section 128(7)). That was the agreement effective from May 10, 1971 to April 30, 1973.

19. When the MCAO was accredited on February 16, 1973, it became the bargaining agent for the respondent by operation of section 127(2) of the Act and pursuant to the terms of the Board's accreditation certificate. In that respect, see the emphasized wording of the above extract from the certificate. Those bargaining rights were of the same scope as the bar­gaining rights granted voluntarily by the respondent to Local 47 because the effect of the ac­creditation provisions of the Act was to consolidate existing bargaining rights, not to extend them. That is made clear in Thomas Construction (Gait) Limited, Board File No. 0035-82-M, an unreported decision which issued July 9, 1982. The Board traced the course of bar­gaining rights acquired by the trade union from when it was certified on August 17, 1973 as bargaining agent for a unit of construction labourers employed by Thomas through to the sta­tutory extension of bargaining rights in the ICI sector of the construction industry from local area recognition to province-wide recognition by the introduction of section 137(2) of the Act. The trade union had been certified for construction labourers employed by Thomas in Brant and Norfolk counties, the Board's geographic area #4. At the same time, an application for accreditation made by what is now the Grand Valley Construction Association was before the Board. A certificate of accreditation was later issued to the Association on March 11, 1974 for a unit comprised of all employers which employed construction labourers for whom the trade union held bargaining rights in the counties of Waterloo, Wellington, Dufferin, Grey, Brant and Norfolk. At paragraph 4 of the Thomas decision, the Board quoted an extract from the accreditation decision in which the Board observed that the unit of employers defined in the accreditation certificate includes employers of construction labourers for whom the trade union held current bargaining rights in less than all six counties named above. Then at par­agraph 5 of the Thomas decision, the Board made the following finding:

20. As a consequence of the accreditation order, the respondent employer was bound by the collective agreement negotiated between the Kitchener­Waterloo Construction Association which later became the Grand Valley Construction Association, and the applicant trade union for the counties of Brant and Norfolk.

(emphasis added)

It is clear from the balance of the decision that the geographic scope of the trade union's bargaining rights remained restricted to Brant and Norfolk counties, in spite of the fact that the collective agreements to which Thomas became bound described a unit having a geo­graphic scope of the six counties, until section 137(2) of the Act came into effect. While that part of the Thomas decision concerns itself with the geographic scope of the bargaining rights at issue, the same principle applies with respect to the "sectorial" limits of bargaining rights.

20. Thus, even though the MCAO is an accredited employers' organization empowered by section 128(1) of the Act to bargain on the respondent's behalf with Local 47, when the MCAO and Local 47 negotiated the collective agreement which was in effect from May I, 1973 to April 30, 1975, which, by its terms covers the ICI and residential sectors of the con­struction industry, the MCAO was not empowered to extend its bargaining rights for the re­spondent with respect to sector any more than it could with respect to geographic area. Nor had the respondent given the MCAO express authority to do so on the respondent's behalf. Therefore the respondent was bound by the May 1, 1973 agreement only to the extent of Lo­cal 47's bargaining rights for the respondent's employees. Consequently, the respondent was not bound to the agreement insofar as it purported to cover low-rise residential construction. There was no intervening event which would have altered that relationship during the next two collective agreements between the MCAO and Local 47.

21. When the scheme of province-wide bargaining in the ICI sector of the construction industry became effective on May 1, 1978, the bargaining rights with respect to that sector affected by the accreditation order were subsumed into provincial bargaining designations. The MCAO's bargaining rights for the respondent in ICI sector were merged into the bargaining rights of the Ontario Sheet Metal and Air Handling Group. Local 47's bargaining rights for the respondent's employees engaged in the ICI sector were merged into those of the Sheet Metal Workers' International Association and the Ontario Sheet Metal Workers Conference of the Sheet Metal Workers International Association. These organizations were the designated bargaining agencies for, respectively, the employers and employees. The two designated bar­gaining agencies became parties to a provincial agreement which was in effect from May 1, 1978 to April 30, 1980 and the respondent, by operation of law became bound to the prov­incial agreement and to its successor provincial agreement which was in effect from May 1, 1980 to April 30, 1982 with respect to the ICI sector within the same geographic area to which the MCAO agreement had applied. When section 137(2) of the Act came into effect on May 1, 1982, it deemed the respondent to have recognized in the ICI sector throughout the Province of Ontario all of the affiliated bargaining agents represented by the designated employee bargaining agency. By virtue of that deemed recognition, the respondent became bound throughout the province by the new provincial agreement which was in effect from May 1, 1982 to April 30, 1984. That is the "ICI agreement" referred to in the note to clause 2.1 of the Residential Agreement. While the employers, including the respondent, who had been bound to the MCAO agreement which expired April 30, 1978 had applied the terms of the ICI agreement to high-rise apartment construction during the period May 1, 1978 to October 20, 1982, there was no collective agreement covering the residential sector (except to the ex­tent that the agreement bearing the expiry date of April 30, 1978, may have been extended by its terms beyond that date).

22. When finally the MCAO and Local 47 executed the Residential Agreement, they were giving effect to the bargaining rights for the residential sector which previously had been incorporated in the agreement bearing the expiry date of April 30, 1978. In the respondent's case, the Board has found the scope of these rights to be as described in the voluntary rec­ognition agreement signed between the respondent and Local 47 on September 29, 1972. These were the same as Local 47's bargaining rights contained in the May 10, 1971 to April 30, 1973 collective agreement with the MCAO, subject to the express limitation in the "adden­dum" part of the voluntary recognition agreement. This was a limitation which Local 47 ac­cepted in order to obtain voluntary recognition from the respondent and the Board has found that limitation to exclude low-rise residential construction from those bargaining rights. Local 47 has accepted that exclusion for the 10 years intervening between the voluntary recognition agreement and the Residential Agreement. In the result, Local 47's bargaining rights with re­spect to the residential sector on the making of the Residential Agreement were still exclusive of low-rise residential construction. Consequently, the Residential Agreement between the Sheet Metal Workers International Association, Local Union 47 and the Mechanical Contractors As­sociation of Ottawa (Sheet Metal Division) is not binding on the respondent insofar as it ap­plies to "... Sheet Metal Journeymen and Apprentices working on New Residential construction of single and double houses, row houses, town houses and apartments of not more than six (6) units.".

23. This case differs significantly on its facts from the Board's decision in Culliton Brothers Limited, [1982] OLRB Rep. March 357, a decision relied on by applicant counsel in arguing that the bargaining rights for the respondent's sheet metal workers which Local 47 acquired through voluntary recognition in 1972 had survived, through operation of the ac­creditation and province-wide bargaining provisions of the Act, until October 21, 1982 when the Residential Agreement was signed. In Culliton, Local 47 was certified by the Board in August 1976 with respect to a bargaining unit of Culliton' s sheet metal workers. The unit was described so as to include all sectors of the construction industry in a geographic area falling within and being part of the geographic area defined in the MCAO's accreditation certificate. The Board found that, with respect to the residential and ICI sectors in the geographic area described in Local 47's certificate, Culliton had become bound to the collective agreement between Local 47 and the MCAO which was in effect when the certificate had issued to Local 47. The Board found further that Culliton continued to be bound to the same extent by the successor collective agreements between Local 47 and the MCAO until April 30, 1978. When the first sheet metal workers provincial agreement became effective on May 1, 1978, Culliton was bound to that agreement with respect to the ICI sector in the same geographic area de­scribed in Local 47's certificate. Culliton did not perform any sheet metal work in that area after approximately January 1977, but it continued to perform sheet metal work in the ICI sector in another Board area in which its place of business was also located. When section 137(2) of the Act referred to above in paragraph 19 deemed existing bargaining rights in the ICI sector to have province-wide effect, Culliton, on the strength of Local 47's bargaining rights, was deemed to have recognized all of the affiliated bargaining agents of the employee bargaining agency in the Province of Ontario. As a result Culliton and all of its sheet metal workers employed in the ICI sector became bound to the provincial agreement.

24. The introduction of section 137(2) had a similar effect on the respondent to the ex­tent that it should employ sheet metal workers in the ICI sector anywhere in the province. That extension of bargaining rights resulted from a specific statutory provision in the form of section 137(2). There is no similar provision with respect to the accreditation sections of the Act. Absent any statutory provisions which would extend to all of the residential sector, Local 47's bargaining rights for the respondent's sheet metal workers engaged in high-rise residential construction, the only way by which the respondent would become bound to the Residential Agreement with respect to the rest of the residential sector would be for Local 47 to obtain bargaining rights either by certification or voluntary recognition. To put it another way, were the Board on the facts herein to find the respondent to be bound by the Residential Agreement for low-rise construction, it would be enlarging rather than preserving the bargaining rights actually held by Local 47 when the Board's certificate of accreditation issued to the MCAO. That result is neither the purpose nor the intent of the accreditation provisions of the Act.

25. In the result of the Board's findings in paragraph 21, and since the grievance does not allege any violation of the Residential Agreement with respect to high-rise apartment con­struction, the Board has no jurisdiction under section 124 of the Act to deal with the grievance on its merits and, accordingly, the grievance is dismissed. It is unnecessary, therefore, for the Board to deal with the issues raised by respondent counsel with respect to estoppel, aban­donment and the application of the Charter of Rights to the circumstances of this application.