The Toronto-Central Ontario Building and Construction Trades Council v. M. J. Guthrie Construction Limited, 1984 CanLII 954

[1984] OLRB Rep. January 50

1556-82-M The Toronto-Central Ontario Building and Construction Trades Council on its own behalf and on behalf of The International Association of Heat and Frost In­sulators, Local 95; The Marble Tile and Terrazzo Workers Union, Local 31; The United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local Union 46; and The Labourers' In­ternational Union of North America, Local 506, Applicants, v. M. J. Guthrie Con­struction Limited and Rosedale Construction, Respondents

BEFORE: R. A. Furness, Vice-Chairman, and Board Members H. Kobryn and E. J. Brady.

APPEARANCES: Alex Ahee and James David Johnson for the applicants; Brian P. Smeenk and M. J. Guthrie for the respondents.

DECISION OF THE BOARD; January 25, 1984

1. The applicants have referred a grievance concerning the interpretation, application, administration or alleged violation of a collective agreement to the Board for final and binding arbitration.

2. The applicants have alleged that M. J. Guthrie Construction Limited ("Guthrie") is signatory to and bound by the working agreement of The Toronto-Central Ontario Building and Construction Trades Council (the "Council") and that Rosedale Construction ("Rose­dale") is a proprietorship under the direction of Mr. M. J. Guthrie.

3. It is the position of the applicants that Guthrie and Rosedale constitute one em­ployer for the purposes of the Act by virtue of a decision of the Board dated September 27, 1982 (see Board File Nos. 2524-81-R and 0144-82-M). It is the position of the applicants that Guthrie, by signing the working agreement with the Council has voluntarily recognized the applicant trade unions and any other trade unions which are affiliated to the Council. It is also the position of the applicants that Guthrie is bound by the operation of section 147 of the Act to such provincial agreements as also bind affiliates of the Council.

4. The applicants have alleged that on the St. Williams School project (the "project"), in the City of Toronto, Guthrie violated the aforesaid provincial agreements in that it has (a) employed persons who are not members of the applicant trade unions in violation of their provincial collective agreements, and (b) engaged the use of subcontractors who were not in collective bargaining relationships with the applicant trade unions.

5. The applicant trade unions have requested that the Board direct that (i) Guthrie abide by the provincial collective agreements of the affiliates of the Council as they apply to the industrial, commercial and institutional sector, and (ii) Guthrie be directed to pay compen­sation and damages to the applicant trade unions for violating their respective provincial col­lective agreements on the project.

6. In its reply, the respondents disputed that counsel for the applicants had been re­tamed by each and every named applicant. It was the position of the respondents that the pre­vious grievance was dismissed and that, since the previous grievance concerned the same conduct complained of in the instant grievance, the matter was res judicata and the applicants were estopped from pursuing this matter.

7. The respondents denied that it was bound by any collective agreement applicable to the work in question to which any of the applicants are a party. The respondents further denied that work had been subcontracted on the project in violation of any of the provincial collective agreements to which any of the applicants are a party. The respondents also denied that any of the applicants suffered any damages as a result of any alleged violations of any collective agreements and put each and every applicant to the strict proof thereof. The re­spondents requested the Board to dismiss this referral under section 124.

8. The names of the applicants appearing in the style of cause of this referral are her­eby amended to read: "The Toronto-Central Ontario Building and Construction Trades Council on its own behalf and on behalf of The International Association of Heat and Frost Insulators, Local 95; The Marble, Tile and Terrazzo Workers Union, Local 31; The United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local Union 46; and The Labourers' International Union of North America, Lo­cal 506".

9. The working agreement referred to by the parties reads as follows:

WORKING AGREEMENT

Agreement dated the March 10th day of A.D. 1960.

Between:

M.J. Guthrie Construction Ltd., 8 Arden Crescent, Scarborough, Ont.

PL. 5-1822

hereinafter referred to as "The Company"

• and -

The Building and Construction Trades Council of Toronto and Vi­cinity

hereinafter referred to as "The Council"

The parties hereby expressly covenant and agree as follows:

PURPOSE

1. The general purpose of this agreement is to establish mutually sat­isfactory relations between the Company and its employees; to elim­inate unfair practices; to establish and maintain satisfactory working conditions, hours of work and wages and to stabilize and encourage the construction industry.

RECOGNITION

2. The Company recognizes the Council and its affiliated unions as the collective bargaining agency for all its employees.

3. 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.

4. The Council through its affiliated unions will supply comptetent workmen to do the work of any trade or calling that may be required by the Company in the trades represented by the Council.

WAGES, HOURS AND WORKING CONDITIONS

5. The Company agrees to recognize and be bound by the agreements exisiting between each of the unions affiliated with the Council and the Toronto Builders' Exchange and specifically agrees that the pro­visions relating to wages, hours and working conditions set forth in the said agreements shall be binding on the Company. In the event any of the said conditions of any of the said agreements are altered or amended at any time during the currency of this agreement, the Company shall be bound by such alterations and amendments. The said agreements are available for inspection by the Company at the office of the Council at 67 Harbord Street; at the Toronto Builders' Exchange, 1104 Bay Street, Toronto; and at the Department of La­bour, Parliament Buildings, Toronto. The Council shall notify the Company of any amendments or alterations of the said agreements.

TERMINATION

6. This agreement shall remain in force for a period of one year from the date hereof and shall continue in force from year to year there­after unless in any year not less than sixty days before the date of its termination, either party shall furnish the other with notice of ter­mination of, or proposed revision of, this agreement; PROVIDED, however, that this agreement shall remain in full force and effect until completion of all jobs that have been commenced during the oper­ation of this agreement.

IN WITNESS THEREOF the parties hereto have caused this agreement to be executed by their duly authorized representatives.

Signed on behalf Signed on behalf

of the Company of the Council

"M. J. Guthrie" "Albert Hull"

(Seal) "James J. Black"

10. II was agreed that Guthrie was incorporated on April 30, 1958, and on March 2, 1960, Mr. Guthrier registered the name Rosedale Construction ("Rosedale") as the name un­der which he would and did carry on business in his personal capacity. There are no formally signed collective agreements between Guthrie, Mr. Guthrie or Rosedale and any trade union.

11. Malcolm Guthrie testified that he read and signed the working agreement on March 10, 1960, and believes he signed it at Council's offices on Harbord Street in Toronto. Mr. Guthrie informed the Board that he attended at the Council's offices to sign an agreement so that Guthrie could operate on union jobs. He understood his employees would have to be un­ionized. The agreement was signed in front of Albert Hull and nothing much was said on that occasion. No one indicated any level of support in the trade unions and there was no dis­cussion of whether Guthrie's employees were members of any of the affiliated members of the Council. In 1960, Guthrle had been in business with employees for two to three years. Prior to signing the agreement, Guthrie was for the most part engaged in small renovation jobs on houses. None of these jobs were union jobs and Guthrie employed carpenters and labourers and subcontracted painting and plumbing work. Mr. Guthrie was unable to remem­ber whether any of his employees who were carpenters and labourers joined a carpenter's trade union or a labourer's trade union.

12. After the agreement was signed, Mr. Guthrie made sure, in accordance with his understanding, that union subcontractors were used by Guthrie. In cross-examination, Mr. Guthrie agreed that Guthrie is still operating and is still employing members of the Council's trade unions. In further cross-examination, Mr. Guthrie agreed that he went voluntarily to the offices of the Council to sign the agreement. While he did not recall what he said to Mr.

Hull, Mr. Guthrie did recall that there were no promises or threats made to or against him and that he left Mr. Hull on good terms.

13. There is no dispute that the working agreement was entered into on a voluntary basis at the desire of Mr. Guthrie. He sought out the representatives of the Council and signed the working agreement with the anticipation that certain benefits would enure to Guthrie and Guthrie apparently lived up to the intent of the working agreement. The present differences between the parties arise from the duties and obligations which result from the signing of the working agreement. The precise nature of the working agreement has never been analyzed by the Board, even though working agreements of the Council have appeared in various forms for more than a quarter of a century. Working agreements have become very much a part of the unionized portion of the construction industry in the Toronto area and have been regarded as peace treaties and instruments for harmony in the construction industry. However, regard­less of these characterizations, the working agreement has traditionally been used, as in the instant case, as an entry into unionized construction work and as a method for an employer to stay on side from the point of view of the craft trade unions in the construction industry. The instant referral is similar to the facts in Nicholls-Radtke, infra, in that there was an agree­ment to supply employees to Guthrie as and when required. Moreover, and it cannot be em­phasized too strongly, there was no evidence that the original employees of Guthrie were not members of the affiliates of the Council.

14. As was stated earlier, the Board has never analyzed the precise nature of the work­ing agreement. However, it is clear that the Board has previously regarded the working agree­ment as giving rise to bargaining rights, see, for example, a grievance filed by the Council under section 1 12a [now section 124] with respect to Napev Construction Limited and Vepan Leaseholds Limited in Board File No. 0945-75-M. That decision, however, did not state why the working agreement was a collective agreement. In other decisions, such as Napev Con­struction Limited, unreported decision in File No. 1 179-79-R, dated January 15, 1980, the Board was not prepared to find that the Labourers' International Union of North America, Local 183 held bargaining rights for employees of Napev Construction Limited under a work­ing agreement and proceeded to issue a certificate to the trade union. In that decision, neither party was prepared to address argument on the issue of any outstanding bargaining rights. More recently, in M. J. Guthrie Construction Limited, Rosedale Construction, [1982] OLRB Rep. Sept. 1332, the Board dismissed a grievance which alleged a violation of the working agreement on the grounds that on the project in question the working agreement could not have had any force or effect either as a collective agreement or as some other type of en­forceable arrangement.

15. The instant grievance places the characterization of the working agreement before the Board and it is necessary for the Board in order to make a determination on the grievance to analyze and characterize the working agreement before it.

16. The working agreement is a brief document which names the parties and states its purpose as the establishment of mutually satisfactory relations between Guthrie and its em­ployees and satisfactory working conditions, hours of work and wages. In the recognition por­tion, Guthrie recognizes the Council and its affiliated unions as the collective bargaining agency for all of its employees. Guthrie has also agreed to employ only members affiliated with the Council and to subcontract only to individuals or companies whose employees are members in good standing in the unions affiliated with the Council and to do all things necessary to ensure that only members of the unions affiliated with the Council are employed in construc­tion work in which Guthrie is engaged. The Council has agreed through its affiliated unions to supply competent workmen to do the work of any trade or calling that may be required by Guthrie in the trades represented by the Council. Guthrie has also agreed to recognize and be bound by the agreements existing between each of the unions affiliated with the Council and the Toronto Builders' Exchange and has specifically agreed that the provisions relating to wages, hours and working conditions set forth in these agreements are binding on it. Guthrie has also agreed to be bound by any alterations and amendments to these agreements and the Council has agreed to notify Guthrie of such alterations or amendments. Finally,the working agreement is said to remain in effect for one year and to continue in effect from year to year subject to notice.

17. The working agreement clearly addresses itself to labour relations and may be either

a collective agreement or a voluntary recognition agreement or neither of these agreements.

The definitions in the Labour Relations Act are of assistance in characterizing the working

agreement. Section 1 (l)(e) refers to a collective agreement and states:

l.—(l) In this Act,

(e) "collective agreement" means an agreement in writing between an employer or an employers' organization, on the one hand, and a trade union that, or a council of trade unions that, represents employees of the employer or employees of members of the employers' orga­nization, on the other hand, containing provisions respecting terms or conditions of employment or the rights, privileges or duties of the employer, the employers' organization, the trade union or the em­ployees, and includes a provincial agreement.

Section 16(3) refers to a recognition agreement and to its place in the scheme of collective bargaining. A recognition agreement is an agreement in writing signed by the parties, whereby an employer recognizes a trade union as the exclusive bargaining agent of the employees in a defined bargaining unit.

18. There is no dispute that Guthrie is an employer. Is the Councl a trade union or a

council of trade unions as defined in section l(l)(p) of the Act which may enter into either

a collective agreement as defined in section l(1)(e) or a recognition agreement in its own

name? Section l(l)(p) states:

"trade union" means an organization of employees formed for purposes that include the regulation of relations between employees and employers and includes a provincial, national, or international trade union, a cer­tified council of trade unions and a designated or certified employee bar­gaining agency.

There was nothing before the Board which indicated that the Council is an organization of employees as opposed to an organization of trade unions. Similarly, there was no suggestion that the Council has ever been a certified council of trade unions. The first part of the def­inition in section 1(1 )(p) refers to a trade union as an "organization of employees" and would include all organizations which would qualify as trade unions at common law. In addition, section 1(1 )(p) proceeds to include in the definition of trade union creations of the Act, namely, a certified council of trade unions and a designated or certified employee bargaining agency. The latter has no relevance to this referral. With respect to a council of trade unions, however, section l(l)(g) provides:

council of trade unions" includes an allied council, a trades council, a joint board and any other association of trade unions.

Since the Council is apparently an aggregation of trade unions rather than an association of employees, the Council does not qualify as a trade union at common law. However, under the Labour Relations Act certain councils of trade unions, called certified councils of trade unions, have been given the ability to acquire bargaining rights and to enter into collective agreements with employers. Section l(1)(d) defines a "certified council of trade unions" and states as follows:

"certified council of trade unions" means a council of trade unions that is certified under this Act as the bargaining agent for a bargaining unit of employees of an employer.

Having regard to the fact that the Council is neither a trade union as defined in section l(l)(p) nor a certified council of trade unions as defined in section 1(1 )(d), the Board concludes that the Council may not enter into either a collective agreement nor a voluntary recognition agree­ment in its own name. It appears that the Council has not been structured to represent em­ployees, rather it appears to be structured to represent trade unions.

19. In The Board of Education of the City of Toronto, [1982] OLRB Rep. March 496, the Board at page 506 commented on the role of an uncertified council of trade unions as follows:

20. It was agreed that the Council is not a certified council of trade unions as defined in section l(l)(d). The Act contemplates that the role of an uncertified council of trade unions is to act as an agent of the trade unions which it represents rather than as an independent participant and bargaining agent. The decision of the Board in Bathe & McLellan C'onst. Ltd., 11969] OLRB Rep. Jan. p.1041, held that "trade union" does not include an uncertified council of trade unions. It follows that the Council may neither hold nor exercise bargaining rights in its own name. How­ever, the Council may act as an agent of other trade unions which pos­sess bargaining rights....

The Council in the instant referral has purported to enter into mutual obligations with Guthrie in the working agreement as an agent for or representative of its affiliated unions. There can be no dispute that the affiliated unions are able to enter into collective agreements and rec­ognition agreements on their own behalf. The working agreement in this referral refers to "agreement" in two senses. Firstly, one meaning is clearly a reference to the document en­titled "working agreement". Secondly, the working agreement refers to "the agreements ex­isting between each of the unions affiliated with the Council" and also refers to the alterations and amendments to such agreements. There may be only one collective agreement at a time between a trade union and an employer by virtue of the provisions of section 49 of the Act. Since there are far more detailed agreements for each affiliated union in existence than the working agreement, it is more logical to interpret this working agreement as a recognition agreement signed by the Council on behalf of its affiliates which simultaneously applies the collective agreements of the affiliates to the activities of Guthrie to the extent they may apply. While the recognition agreement does not specifically refer to a defined bargaining unit, the terms of the working agreement incorporate by reference readily ascertainable defined bar­gaining units in the various and appropriate collective agreements. While the Council may not enter into a recognition agreement on its own behalf, it has done so on behalf of the affiliates of the Council. The Council in effect has constructively, through one document, entered into a series of recognition agreements between its affiliates and Guthrie.

20. The next question to be addressed is whether in fact the affiliated trade unions have any bargaining rights with respect to any of the respondents' employees and whether the re­spondents are bound by any collective agreement applicable to the project to which any of the applicants are a party. The respondents placed great stress on the fact that at the time the working agreement was entered into, Guthrie already employed employees and that neither the Council nor its affiliates represented any such employees at that time. It is of course not sur­prising that neither the Council nor the affiliates represented Guthrie's employees at the time the working agreement was entered into. Surely the whole purpose of executing the working agreement was to gain representation or bargaining rights. If the respondents are referring to membership by employees rather than representation, the evidence of Mr. Guthrie is that there was neither discussion nor indication of level of support or membership by the employees. There is no evidence before the Board on this point and after twenty years this is not sur­prising. The respondents also pointed out that all except one of the applicant trade unions have never had any of their members employed by the respondent.

21. The respondents have raised issues concerning the effect of endeavouring to acquire bargaining rights before employees are actually employed by and working for an employer. In 1972, the Board stated on this point in Sunrise Paving and Construction Co. Ltd. 72 CLLC ¶16,060, at page 795, paragraphs 15 and 16 as follows:

It is readily apparent that the alleged collective bagaining relationship be­tween the Respondent and the intervener arose as a result of an arrange­ment between them without reference to or consultation with the employees who would be affected by this arrangement. Clearly, the Re­spondent selected the• intervener as the bargaining agent for its future em­ployees. Such an arrangement strikes at the very spirit of the Labour Relations Act which envisages the selection of a bargaining agent by the employees concerned without the intervention or influence of their em­ployer.

Employees of the Respondent did not have an opportunity to select their bargaining agent. The Board finds that the actions of the Respondent in all of the circumstances of this application constitute other support to a trade union (intervener) within the meaning of section 40(a) [now section 48(a)] of the Labour Relations Act.

In Sunrise, supra, the Board held that by virtue of the provisions of section 40(a) [now section 48(a)], the collective agreements between the employer and an intervening trade union were not deemed to be collective agreements and accordingly not a bar to an application for cert­ification. This decision was followed in C. Strauss (1973) Limited, [1975] OLRB Rep. July 581 and in Volens Contractors Limited (unreported decision in Board File No. 0802-75-R dated November 17, 1975).

22. Since those decisions, however, the Board has issued its decision in Nichoils-Radtke and Associates Limited, [1982] OLRB Rep. July 1028. In that case an employer signed an agreement with a trade union which incorporated the terms of a collective agreement between an employers' association at the time the agreement was entered into. However, the agreement was entered into on the understanding that the trade union would supply men to the em­ployer's project. These men were supplied on the next day. In these circumstances, the Board held that the employer had not provided the trade union with "other support" and upheld the validity of the collective agreement. In discussing the earlier decisions of the Board, the Board stated in Nicholls-Radtke at pages 1032-1037:

23. In view of the arguments put forward by the applicant and the inter­vener, the present case comes down to a very basic policy choice for this Board. Should the Board continue to follow the policy set out in the C. Strauss case, that the mere signing of a collective agreement, when there are no employees in the bargaining agent, of itself constitutes employer support for a trade union? The agreed Statement of Facts signed by the parties in this matter indicates in paragraph three that the agreement was signed on the understanding that Local 2693 would supply workers if and when requested to do so by the respondent to the project which would be commenced at a later date. In making such an agreement, the inter­vener was merely acting as a lot of construction trade unions do in at­tempting to obtain work for its members. In this regard, reference should be had to section 46 of the Act which deals with certain permitted pro­visions of the collective agreements, in particular union security provi­sions.

It is of course obvious that section 46(4)(d) used the exact same language as clause l(l)(fj, the definition of construction industry in the Act. Taken together, subsection I and subsection 4 of section 46 can be said to con­template as permissive, provisions in a construction industry collective agreement requiring as a condition of employment membership in the trade union. And further, the structure of subsection 4 seems to indicate that, in the construction industry, compulsory membership or a prefer­ential hiring clause may be inserted into a first collective agreement signed when voluntary recognition creates the bargaining rights which the union holds. If the Act contemplates as permissive conditions in con­struction collective agreements, preference of employment for union members extending to membership in a trade union as pre-condition of employment, are we to find that the signing of such an agreement in the absence of any other factor is to be interpreted as support for the trade union within the meaning of section 48(a)? In the Sunrise Paving case, for instance, there was evidence upon which such a conclusion could be drawn. That is, the employer on hiring employees did the membership recruiting for the union. However, in the C. Strauss case, and in the present case, no such implication arises.

10. Both the Supreme Court of Canada in Re International Longshore­men's Association, Local 273 et al. v. Maritime Employers' Association et al. (1978), 1978 CanLII 158 (SCC), 89 D.L.R. (3d) 289, and the Ontario Court of Appeal in Re Blouin Drywall Ltd. (1975) 1975 CanLII 707 (ON CA), 57 D.L.R. (3d) 199, have recognized that certain types of collective agreements, one in the longshoring industry, the second in the construction industry, cause problems with the word "employees" in that persons with no direct employment relationship may be employees because they are members of the union. In the Blouin Dry­wall Ltd. case, supra Brook J. A. commented as follows:

"While ss. 37(9) [now section 45(9)] and 42 [now section 50] of the Labour Relations Act do not extend the binding effect of a collective agreement or arbitration award made pursuant thereto beyond 'em­ployees', I do not regard these sanctions as prohibiting the negoti­ating parties from agreeing to confer rights or benefits on non-employee members of the union and that such rights and benefits may then be the subject of grievance procedure and within the jurisdiction of an arbitration board under the agreement. Collective agreements in this industry have developed to include benefits to non-employees who are union members. In this industry, there is no continuing em­ployment and so collective agreements have developed to ensure a source of labour to the contractor, to provide for preference in the employment of trade union members and, while establishing the terms and conditions of such employment, to provide other benefits which may become due or payable at a time when the union member is not employed.

Relevant to this case is the fact that s. 38(l)(a) mow section 46(l)(a)] of the statue contemplates the employer's covenant to give preference in hiring the union members. That section says:

'38(1) Notwithstanding anything in this Act, but subject to subsection 4, the parties to a collective agreement may include in its provisions,

(a) for requiring, as a condition of employment, membership in the trade union that is a party to or is bound by the agreement or granting a preference of employment to members of the trade union, or requiring the payment of dues or contributions to the trade union;'

No doubt the provision contemplated by the statute is, indeed, union security; but equally certain in my yiew is that it anticipates a con­venant in favour of those who are union members, unemployed and available and qualified to do the work, which covenant should be en­forced in their favour. The Divisional Court held that as a primary purpose the clause was union security, the union could not claim on behalf of non-employee union members. With deference, in my view one cannot sever this clause into primary and secondary purposes and give it any effect at all. The enforcement of the preferential hiring of unemployed union members is the crux of the union security. The employment of its members is an assurance of union strength as loss of economic strength of the members collectively can only result in the loss of union strength."

Indeed, as counsel for the intervener points out, there was nothing sin­ister in the making of the agreement referred to in paragraph three of the agreed Statement of Facts.

11. In the Sunrise Paving case, the Board commented that "the em­ployees of the respondent did not have an opportunity to select their bar­gaining agent". While in a case where the employer recruits employees who are subsequently forced to join the union, without a previous history of membership that may constitute support for the trade union. The sim­ply fact is that in the construction industry, the unemployed members in a union's hiring hall have in fact selected their bargaining agent as their union, and once they are referred to a job, that selection normally con­tinues. As a consequence, one is faced with a rather difficult problem in interpreting how far the stated policy of the Board in the C. Strauss case should be carried. If an agreement is invalid because it was signed when there were no members in the bargaining unit, does the agreement be­come valid when, in the same circumstances it is signed after the em­ployees have arrived at the job site? Thus, in the present case, would it really have made any difference concerning the wishes of employees if instead of signing the agreement on October 8, 1975, with an intention to supply at a later date, an agreement to supply had been made between the respondent and the intervener on the 16th of October, when there were two members of the intervener union employed in the bargaining unit? To say that the document is valid then, but not valid if signed on the 8th, in completely similar circumstances, is to propose a distinction without a difference.

12. On the other hand, it may be argued that the C. Strauss case, simply recognizes a limitation on the acquisition of bargaining rights that is im­plicit in the Act, namely, there must be employees in the employ of the employer at the time bargining rights are acquired. Obviously, this is so in the case of certification, but also in the case of voluntary recognition. In this regard this latent policy in the Labour Relations Act is implicit in section 121 of the Act which reads as follows:

"An Agreement in writing between an employer or employers' or­ganization, on the one hand, and a trade union that has been certified as bargaining agent for a unit of employees of the employer, or a trade union or council of trade unions that is entitled to require the employer or the employers' organization to bargain with it for the renewal, with or without modifications, of the agreement then in op­eration or for the making of a new agreement, on the other hand, shall be deemed to be a collective agreement notwithstanding that there were no employees in the bargaining unit or units affected at the time the agreement was entered into."

That provision primarily recognizes that special circumstances are re­quired for the construction industry due to the cyclical nature of em­ployment in the construction industry. There may be times when an employer has no employees, but nevertheless as a matter of the on-going labour relations in the construction industry, the employer is bound by the results of collective bargaining. It would appear that such a provision which deems a collective agreement to be valid when there are no em­ployees in the bargaining unit would only be necessary if in fact there was a problem with the validity of collective agreements signed when there are no employees in the bargaining unit.

13. It is our view, however, that when the document in the present case was signed on October 8th, 1975, the respondent and the intervener were performing two distinct, but related acts at the same time. The respond­ent employer was voluntarily recognizing the intervener union as the ex­clusive bargaining agent for employees in the bargaining unit, and contemporaneously agreed to certain terms and conditions of employment for those employees who would be affected by the recognition agreement. There would have been no arguable issue in this case as to the validity of the collective agreement if the respondent employer had signed it after the union's members had reported for work. For this Board to hold that, in the circumstances of this case, where no other persons were working or had worked for the employer in the bargaining unit, and no other trade union held bargaining rights in respect of that bargaining unit, the agree­ment is not a valid collective agreement would have us place a premium on a strict, and technical interpretation of the Act, rather than giving the statute a practical and purposive one, particularly having regard to the common and sensible methods used by employers and trade unions in the construction industry to create bargaining rights without resorting to the certification procedures under the Act.

14. The respondent employer required persons to dothe union represents. Section 121 of the Act indicates that an agreement in writing which is signedpersons. In the same way that the Courts in the Blouin Drywall and Maritime Employers Association cases, supra, held that members of a trade union who are not actually working for a particular employer but are associated with the union's hiring hall to seek work are employees, the members of the intervener trade union on whose behalf the collective agreement was entered into are "employees" whom the union represents. Section 121 of the Act indicates that an agreement in writing which is signed when there are no employees in the bargaining unit is deemed to be a collective agreement if, for example, the union is renewing a col­lective agreement or making a new agreement after an earlier collective agreement had expired, thus implying that an agreement signed after vol­untary recognition when there are no employees in the unit may not be a collective agreement. The Board notes that section 121 of the Act merely deems an agreement in writing to be a collective agreement under certain circumstances; it does not provide that an agreement signed when there are no employees in the unit is not a collective agreement. (See section 48 of the Act for a specific provision deeming an agreement not to be a collective agreement). Therefore, section 121 of the Act has no application to the facts of this case.

15. The Board in C. Strauss and Volens held that there was no collective agreement by applying section 40 [now 48] after finding that the union had received "other support" from the employer when it signed a col­lective agreement without employees in the bargaining unit. We are sat­isfied that, in the circumstances of this case, although the agreement was signed on October 8th, 1975, when, as the parties have stipulated, "The respondent had no employees in the purported bargaining unit...", the intervener union did not receive "other support" from the employer. To the contrary, the employer needed persons to perform work, and the union, which had members available with the skills necessary to do that work, undertook to refer its members to the employer in exchange for receiving voluntary recognition from the employer as exclusive bargain­ing agent for those persons. In our view this arrangement in the circum­stances presently before us is not "other support" from an employer which calls for the application of section 48 of the Act.

16. Counsel for the applicant suggested that the C. Strauss case, supra is a necessary Board policy if the Board is not to effectively exempt con­struction unions from the operations of section 60 of the Act. That sec­tion provides in subsection 1 for an application for termination during the first year of an agreement after voluntary recognition. We think rather that section 60 provides the sort of protection necessary to go along with a finding that a collective agreement signed in the circumstances of the present case is not the result of some agreement between employer and the trade union subverting the rights of employees as, for instance, in the Sunrise Paving case. The Board therefore finds that the intervener had a collective bargaining relationship with the respondent in October, 1975.

17. In applying the reasoning and distinctions made in Nicholls-Radtke and Associates Limited, supra, to the facts of this referral, the Board finds that the working agreement was signed on the understanding that the affiliates would supply competent workmen if and when requested to do so and that in the circumstances of the signing of the working agreement a valid recognition agreement was signed by the Council as an agent for its affiliates. As stated earlier, the collective agreements of the affiliates which are incorporated by reference then become applicable to the work performed by the respondents.

18. The respondents have also argued that the working agreement does not have validity as a voluntary recognition agreement because a working agreement does not comply with the requirements of sections 5(3) and 144(4) of the Act. These sections provide:

19. -(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 and the parties have not entered into a collective agreement and the Board has not made a declaration under section 60, another trade union may, subject to section 61, apply to the Board for certification as bargaining agent of any of the employees in the bargaining unit defined in the recognition agreement only after the expiration of one year from the date that the recognition agreement was entered into.

144.-(4) A voluntary recognition agreement in so far as it relates to the industrial, commercial and institutional sector of the construction indus­try shall be between an employer on the one hand and either,

(a) an employee bargaining agency;

(b) one or more affiliated bargaining agents represented by an em­ployee bargaining agency; or

(c) a council of trade unions on behalf of one or more affiliated bar­gaining agents affiliated with the council of trade unions,

on the other hand, and shall be deemed to be on behalf of all the affil­iated bargaining agents of the employee bargaining agency and the de­fined bargaining unit in the agreement shall include those employees who would be bound by a provincial agreement.

The respondents argue that the working agreement was not made by an employee bargaining agency, one or more affiliated bargaining agents represented by an employee bargaining agency, or a council of trade unions on behalf of one or more affiliated bargaining agents affiliated with the Council and does not contain a "defined bargaining unit". The working agreement was entered into many years prior to the enactment of section 144(4). However, the working agreement, as the Board has found, has been entered into by a council of trade unions as an agent of and on behalf of its affiliates who are affiliated bargaining agents with the Council. As the Board stated earlier, the "defined bargaining unit" is incorporated by reference into the working agreement. The purpose of the provisions of sections 144(4) and 5(3) is to define and limit the employees who may be covered by a recognition agreement. The working agree­ment by its own terms and by incorporation by reference satisfied this purpose.

25. The parties have argued the effect of accreditation orders on the bargaining rights attributed to Guthrie. The decisions of the Board establish that Guthrie is included in and bound by five accreditation orders of the Board. One of these accreditation orders is with respect to bargaining rights held by the Labourers' International Union of North America, Local 506 ("Local 506") and Labourers International Union of North America Provincial District Council. Local 506 is one of the applicants in this referral. In various decisions with respect to accreditation, the Board has accepted the working agreement as evidence of a rec­ognition agreement. See, for example, The General Contractors' Section of the Toronto Con­struction Association (Board File No. 1322-71 -R, unreported decision of the Board dated April 18, 1973). In argument, the respondents challenged the jurisdiction of the Board to include Guthrie in an accreditation order. The position of Guthrie with respect to the accreditation certificate is beyond the terms of the referral in the matter. If Guthrie desires to challenge an accreditation order it may do so in a request for reconsideration to that proceeding. In this regard, the Board refers to Ontario Precast Concrete Manufacturers' Association, [1978] OLRB Rep. March 284, where the Board considered and dismissed a request to reconsider a cer­tificate of accreditation.

26. After initially abiding by the intent of the working agreement, the respondents now seek to deny the existence of bargaining rights based on that working agreement which was entered into freely at the behest of Guthrie. Guthrie has challenged the efficacy of the working agreement more than twenty years after it was freely executed without any evidence regarding membership in trade unions by its employees at that time. Having, presumably, reaped benefits from the working agreement in 1960 and subsequently having been included in accreditation certificates, Guthrie is belatedly seeking to repudiate and avoid the effects of collective bar­gaining relationships which arose as a result of its own initiative. The Board has found that the working agreement is a recognition agreement entered into by the Council as the agent for the affiliated trade unions and that by virtue of incorporation by reference the collective agreements of the affiliated trade unions are to be applied having regard to the trade and type of work being performed. The Registrar is directed to list this reference for continuation of hearing on all outstanding issues.