[1985] OLRB Rep. November 1566
0953-84-M The Ontario Pipe Trades Council of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 527, Applicant, v. City Plumbing (Kitchener) Limited, Respondent
BEFORE: N. B. Satterfield, Vice-Chairman, and Board Members J. D. Bell and P. J. O 'Keeffe.
APPEARANCES: Stanley Simpson and Jack Porter for the applicant; Gary P. McNeil and Terence J. Billo for the respondent.
DECISION OF THE BOARD; November 14, 1985
The applicant has referred a grievance in the construction industry 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 applicant, the Ontario Pipe Trades Council of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 527 ("Local 527") made this referral on July 9th, 1984. The referral states that the grievance was delivered to City Plumbing & Heating Service on June 11th, 1984. The grievance is in the form of a letter from the solicitor for Local 527 and dated June 11th, 1984. The second and third paragraphs of the grievance read as follows:
Pursuant to instructions received, please consider this as a grievance filed by the union under a provincial agreement between the union and the Mechanical Contractors Association of Ontario by which you are bound through agreement with respect to the 1978-1980 agreement.
On behalf of the union, please consider this as a grievance pursuant to the grievance procedure set out in the provincial collective agreement.
The referral names City Plumbing & Heating Service as the respondent. A reply to the referral was duly filed with the Board. It states that the correct name of the respondent is City Plumbing (Kitchener) Limited. Since counsel for Local 527 did not take issue with that assertion when it was repeated at the outset of the hearing by respondent counsel, who also asserted that the respondent was incorporated June 18, 1980, the name: City Plumbing & Heating Service in the style of cause of the referral is hereby amended to read: "City Plumbing (Kitchener) Limited". The reply further states, in part, that:
(a) The Respondent states that the Board has no jurisdiction in this matter because the Respondent is not a party to a collective agreement nor is it bound by a collective agreement with the Respondent;
(b) The Respondent states that it did not execute a collective agreement with the Applicant;
(c) The Respondent states that in the alternative, should the Board find that it is bound by a collective agreement, the Applicant has abandoned its rights under this collective agreement vis-a-vis, the Respondent;
(d) The Respondent further states that if it is bound by a collective agreement with the Applicant, the Applicant is estopped by its conduct from pursuing its rights under any collective agreement.
When the referral came on for hearing on July 23rd, 1984, counsel for the respondent reiterated those statements. They raise three issues: whether the respondent is or was bound to a collective agreement together with Local 527; if the respondent has been bound, whether Local 527 has abandoned its bargaining rights; and, if the respondent and Local 527 are bound to a collective agreement, whether Local 527 should be estopped from asserting any rights under the agreement. At least the first two of those issues go to the Board's jurisdiction to hear the grievance. After receiving the submissions of the parties as to how it should proceed in light of these issues, the Board ruled that it would hear the parties' evidence and submissions with respect to all three. When the hearing was adjourned at the end of the day, Local 527 had not completed the calling of its evidence and, after consulting with the parties, the Board scheduled the matter for continuation of hearing on October 22nd, 1984. Subsequently, that date was rescheduled to November 22nd on consent of the parties. The ill-health of a board member prevented the matter from proceeding on November 22nd and, after further consultation with the parties in December 1984, it was scheduled for continuation of hearing on April 24th, 1985. That hearing proceeded as scheduled and, while the parties completed the calling of evidence, it was necessary to schedule a further hearing to receive the submissions of the parties as to the conclusion the Board should reach on the evidence. After consultation with the parties at the hearing, the matter was scheduled for continuation of hearing on July 9th, 1985, at which time the hearing into the preliminary matters was concluded.
Gary McNeil is the president and sole shareholder of City Plumbing (Kitchener) Limited ("City"). He formed City after deciding in April or May, 1980 to go into business for himself. He had been a member of Local 527 since 1968 and in April 1980 he was laid off after working approximately one and a half years with the same contractor. He made his decision to start his own business shortly after his lay-off. He started his business under the name of City Plumbing & Heating Service and, as noted above, incorporated the business in June 1980 in the name of City Plumbing (Kitchener) Limited. Throughout the time that he has operated the business, however, his trucks and vans have borne the name "City Plumbing & Heating Service", on their sides. "City" is in very large lettering relative to "Plumbing & Heating Service". A photograph which was placed in evidence through McNeil shows this clearly. If the corporate name appears on the vehicle, it is not evident in the photograph.
Some time in October 1980 McNeil went to the offices of Local 527. While he was there he signed what he called a "paper". That paper is the source of Local 527's claim that the respondent is bound to the plumbers provincial agreement to which Local 527 is also bound. McNeil's account of what took place in the union office and the accounts of the representatives of Local 527 differ on some critical points.
McNeil told the Board in his examination-in-chief that he became concerned about the possibility of losing his union pension after he started his business. He went to the office of Local 527 to speak with its business manager, Jack Porter. McNeil states that he told Porter he wanted to drop his union membership but did not want to lose his pension. Porter's response was that McNeil had three choices. He could quit the union, he could take out a withdrawal card or he could continue to pay his dues to Local 527 and remit contributions for his benefits and pension for 144 hours of work per year. McNeil claims Porter told him that, if he wanted to act to preserve his pension, he would have to sign a paper which Porter produced and McNeil signed. Porter took the paper to a secretary in the office who typed the name "Kitchener Plumbing and Heating Services" and the address of the respondent in the space provided above McNeil' s signature. She inserted the paper with other pages of paper and handed the assembled papers to McNeil. She also gave him some blank forms for remitting contributions to pension and welfare funds along with some sheets of paper with wages and other information on them. McNeil left the office and went to his truck where he looked through the papers which he had been given. He told the Board that he had not seen any collective agreement before he signed the piece of paper and if he had known what he was signing or the implications of what he had signed, he would not have signed it. He said that he did not seek any advice after signing the paper. He further stated that the only reason why he would sign a collective agreement would be if he wanted to be a union contractor in which case he would have gone to a lawyer for advice. The only reason he signed anything was to protect his pension and he would not have signed if he had known that he was signing a collective agreement. When he went through the papers in his truck and realized that he had signed a collective agreement, he thought it would only last for three years because that's what he was accustomed to as an employee of contractors. In earlier testimony-in-chief, McNeil had told the Board that he thought the agreements which he had worked under as an employee of contractors had been negotiated every couple of years between the contractors and the union.
In cross-examination, McNeil testified that he had decided to leave the union when he started his own business in April 1980. He began by doing some repair work. Then, in October 1980, he went to the union office to see what would happen to his pension if he did leave. He knew if he needed to remit contributions for 144 hours of work per year in order to retain his pension, he would have to sign something, but he did not realize what it was he was signing. It was only after he received the full set of pages that he realized he had signed a collective agreement. He did not do anything to revoke what he had signed and decided that he had bound City and would be bound for two years. During that time he knew that he would have to abide by the agreement, but after the end of two years he thought that the union would have to approach him to sign another one if his company was to be bound any longer.
Porter's evidence was that McNeil came to see him at Local 527's office in October 1980. McNeil told Porter that he had formed his own company and wanted to be a union contractor. He told Porter that he would call the Local if he needed any workers. McNeil also asked Porter about his union status and his benefits. According to Porter, McNeil wanted to remain a member of the union in good standing. Porter claims that he had two copies of the 1978-1980 plumbers provincial agreement. The signing page of the agreement was taken out to have the name of McNeil's company typed on it and McNeil was given a page to sign. He was also given a copy of the agreement for himself. The reason the 1978-80 provincial agreement was used was because Local 527 had not received printed copies of the newly negotiated 1980-82 provincial agreement. McNeil was also given a "spread sheet" showing the new monitory conditions for the 1980-82 provincial agreement.
Thomas Crystal, Business Agent of Local 527 testified that he was in the room at the union office when McNeil signed the 1978-80 agreement. He could not say whether McNeil signed one or two agreements or whether the signing page was separate from or in the agreement when McNeil signed. He further testified that there were two agreements and the signing pages were taken out in order to type the information with respect to the respondent and then put back in the presence of everyone. McNeil did not ask any questions about what he was signing and there was no discussion about whether his signing of the 1978-80 provincial agreement would bind him to future ones. Crystal thought that McNeil would have been given blank remittance forms and sheets showing the new rates of wages and benefits to apply under the 1980-82 provincial agreement because that was the union's normal practice.
The page which McNeil signed bears at the top, left hand margin, the title "CONCLUSION" under which the following text appears:
In witness whereof each of the parties hereto has caused this Agreement to be signed by its duly authorized representatives as of the day and year first above written.
Under that text, at the left hand margin and in two lines of type the heading "SIGNED ON BEHALF OF THE CONTRACTOR" appears. Opposite that at the right hand margin in two lines of type, the heading "SIGNED ON BEHALF OF THE UNITED ASSOCIATION LOCAL 527" appears. Under the contractor heading, provision is made for setting out the name, address and telephone number of the signing party. On the document in evidence, the name "City Plumbing and Heating Service", the address and telephone number of City have been typed in. McNeil's signature appears under that information. On the right hand side under the signature heading for Local 527, Jack Porter has signed as business manager and Thomas Crystal has signed as business agent. In the lower left corner of the page the words are printed "Affix Contractor's Seal Here". No seal has been used in this instance. The agreement is styled as the "Ontario Provincial Collective Agreement" between The Mechanical Contractors Association Ontario and The Ontario Pipe Trades Council of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada. Under the heading "DURATION OF AGREEMENT" the following words appear:
This Agreement shall be effective from June 15, 1978 and shall remain in effect until the 30th day of April, 1980 and thereafter from year to year unless it is terminated by either party giving to the other party written notice that the Agreement shall be amended or terminated on the 30th day of April, 1980.
In Article 2 - Recognition, of the agreement, the Association recognizes the Council as the sole collective bargaining agent for journeymen and apprentice plumbers, steamfitters, pipefitters and welders employed by employers performing mechanical work in the industrial, commercial and institutional (ICI) sector of the construction industry under the terms of the agreement. The Council in turn recognizes the Association as the sole collective bargaining agent for all employers performing mechanical work in the ICI sector of the construction ~tndustry under the terms of the agreement.
McNeil had one earlier experience signing a collective agreement. In or about May 1975 he formed a partnership with another member of Local 527 to do repair plumbing. Approximately one month later, on behalf of the partnership, he signed a collective agreement which on its face was effective from May 26, 1975 to April 30, 1977. The parties to the agreement are the Mechanical Contractors Association - Zone 7 and Local 527. The signing page is identical in printed wording and style to the one which he signed in October 1980. The name, address and telephone number of the partnership is typed in and McNeil's signature appears under that information. The partnership ended approximately a year later. The rest of McNeil's experience with collective agreements has been as an employee of contractors.
In cross-examination he testified that he did not pay too much attention to collective agreement booklets sent to him by the Local from time to time as new agreements were negotiated respecting his employers. He stated that he usually looked at them and then discarded them. He also testified that he had stopped attending union meetings, including ratification meetings, by the mid-1970's. When he was challenged with respect to that testimony, he admitted that he had attended the membership meeting of Local 527 in May 1980 when the Local voted to ratify the new provincial agreement which had been negotiated between the Association and the Council and which was binding on Local 527. It was at this time that McNeil was just starting into business for himself. Crystal testified that McNeil's attendance at the membership meeting had been challenged by some members because of this, but he was entitled to be in attendance and remained in attendance for the meeting. McNeil also acknowledged that the agreement was ratified after a province-wide strike of plumbers covered by the expired provincial agreement.
From November 1980 through the end of May 1982 City conducted itself as though bound to a collective agreement. It filed a remittance form for the month of November reporting 144 hours of work for McNeil on which contributions were calculated and paid for the various funds set out in the 1980-82 provincial agreement. On January 5th, 1981 McNeil requested Local 527 to refer to him for employment two journeymen plumbers, one of whom he requested by name. This procedure is referred to in the Local as a "name call". The journeyman requested by name was referred to City and employed for approximately two and a half weeks. McNeil cancelled the order for the second journeyman after the name call order was filled. City filed remittances for the journeyman for 89 1/2 hours worked in January. City hired a new apprentice in February 1981 and referred him to the union for clearance in accordance with the practice of Local 527. The apprentice worked for City until the latter part of May 1981 and remittances were filed on his behalf for the months of February through May. On June 4th McNeil called Local 527 for another apprentice and the union referred Kevin Benn. Benn worked for City until approximately the end of January, 1982, and the respondent made remittances on his behalf for all of those months. A remittance was filed in the month of September 1981 on behalf of McNeil for 160 hours. The remittance forms filed by City show contributions made with respect to the various benefits and to their respective trust funds at the rates required under the 1980-82 provincial agreement. The remittance filed for Benn for the month of January 1982 was the last one filed on which any employees are named. Those filed for the months of February through May 1982 indicated no employees had worked. These are referred to as "nil reports". It is a requirement of the agreement that reports be filed each month even though no employees were working under the agreement.
The May 1982 remittance form was accompanied by a letter signed with the name of McNeil's wife, the text of which states: "We will remit benefits when money is owing". McNeil disclaims any knowledge of the letter having been sent or why those words were used.
He presumed it meant that money would be owing and paid if members of the union were hired by the respondent. He told the Board that he had expected to hear from the union by April 1982, that it wanted City to sign another collective agreement. When nothing happened, he went in May to see City's accountant. As a result of his conversation with the accountant, McNeil concluded two things. First, that his pension was secure whether or not he remained a member of Local 527. Second, the document which he had signed in October 1980 was void at the time because it had already expired when he signed it. On the basis of his conclusion, he decided that he did not have to go to the union for employees and would not have to file any more remittance forms including the "nil reports".
It is unclear from McNeil's evidence when in May he spoke to his accountant, but on May 10th, he requested another apprentice from Local 527. As a result of a province-wide, lawful strike of plumbers in the ICI sector of the construction industry which was underway at the time, the union cancelled his order without filling it. On May 12th Porter confronted McNeil about a person he had seen driving City's van whom Porter did not recognize as being a member of Local 527. McNeil told him that he had hired a person by the name of Al Lewis on March 25th, 1982 and that Lewis had been doing work for him since then. Porter told McNeil that he should not be employing persons who are not members of Local 527. McNeil in turn told Porter that he would let Lewis go and had been going to do so in any event because he was getting too many complaints about his work. McNeil also told Porter that he would be calling the union for apprentices. In fact, the respondent employed Lewis for a further two or three weeks. During the conversation with Porter, McNeil said nothing about his thinking that the respondent was now a non-union company for the reason that he did not want to invite problems.
There was no further contact between City and Local 527 until the filing of this grievance, except City paid McNeil's union dues for 1983. His 1982 dues had been paid for twelve months in advance by City as well. When McNeil was challenged in cross-examination that the payment of his 1983 dues was inconsistent with his testimony that he had decided, after talking to his accountant, to leave the union, he responded that the cheque had been sent by his wife. McNeil admitted that he signed all of City's cheques and would have signed that one, but would have done so without realizing it. He testified that his wife prepared cheques to suppliers and bills to customers once a month and he signs the cheques as prepared without looking to see who is the payee or what is the amount of the cheque. He said that this sometimes resulted in City paying the same account twice.
The grievance at issue was filed after Crystal had tried unsuccessfully to have McNeil contact him about two separate complaints he had received from members of the Local. The complaints were that persons other than McNeil might be working for City. Crystal had received a telephone message that McNeil had nothing to discuss with the union. In addition to filing the grievance, Crystal checked the records of McNeil's membership dues and found him to be in arrears in his dues. A letter was sent to McNeil to that effect and McNeil admits that he was expelled from union membership during the summer of 1984 for the non-payment ofhis monthly dues. Crystal told the Board that it was not his practice to routinely check the "one man shops" under collective agreements with Local 527 to make sure they are complying with the agreement. This is because the owners are usually members of Local 527 and know the requirements of the collective agreement when they hire employees. Therefore, he had not been checking between May 1982 and June 1984 to see if City was doing any work under the collective agreement using persons other than McNeil.
Steven Morrison was one of the two Local 527 members who reported to Crystal that someone other than McNeil was driving City's van. Morrison has been a steward of the Local since 1979 and a member of its executive board since January 1983. He has known McNeil for six years. They met through their wives, have mutual friends and belong to the same fraternal order. They have seen quite a lot of each other socially, as a result, except during about one and one-half years from 1982 when Morrison was away from Kitchener. During that period he saw McNeil usually only at meetings of their fraternal order. They did not discuss McNeil's business affairs at those meetings. However, Morrison did know something of City's business from its start in May 1980 until 1982 from discussions with McNeil. He knew City to be a union contractor from the start. Morrison denied in cross-examination that some time early in 1982 McNeil told him that City was employing non-union plumbers, although early in the business, McNeil did mention that City was using persons who were "not plumbers". Morrison chose to do nothing about it because of their personal relationship. When Morrison did report to Crystal the incident about City's van, he did so because he and Crystal had been talking about the need to make sure contractors already under agreement with Local 572 were honouring their agreements before the Local tried to organize non-union contractors. Prior to the incident that Morrison had reported, he had not seen anyone but McNeil driving City's van. Morrison acknowledges that could be because he works mostly outside of Kitchener. McNeil testified in chief that he had told Morrison in May 1982 that City was no longer a union contractor and that Morrison responded by asking how many employees City had. McNeil also named another executive board member and the secretary-treasurer of Local 527 as persons who were aware that City was working non-union. He admitted in cross-examination, however, that he had been talking to Morrison about residential work, not work in the ICI sector, and about drywall and painting work, not plumbing.
The submissions of respondent counsel with respect to the three preliminary issues placed primary emphasis on the contention that the respondent had not entered into any valid voluntary collective agreement or valid voluntary recognition agreement with Local 527 for one or more of the following reasons:
(1) the parties were of different minds about what it was they were agreeing to when they signed the document referred to as the 1978-80 plumbers provincial agreement;
(2) the document was void from the start because it had already expired when it was signed; and
(3) the respondent was never a party to the document because, while it was the company carrying on business at the time of signing, the document was signed in the name of City Plumbing and Heating Services, a company which was not carrying on business at the time of signing.
With respect to the contention that the parties were of different minds about what it was they were signing, counsel argued that McNeil believed he was signing something for the protection of his pension benefits and that he had no knowledge of the document which he actually signed. Furthermore, it was not his document, was fundamentally different from what he thought he was signing and contained terms such as the duration of the document and the provisions for its termination which were not within his control. In any event, if the document which he signed was a provincial agreement which, by statute, could bind his business indefinitely, it was fundamentally unfair that he be asked to sign it without any explanation of what it was in light of his limited, prior experience with such matters. According to counsel, this experience consisted of signing a collective agreement in 1975 for a short-lived business partnership and as an employee in the plumbing and pipefitting trades since 1968 where it was his experience that collective agreements were negotiated every couple of years between Local 527 and individual employers, not with an employers' association. Also, because of his limited experience, McNeil could not be seen to have been negligent in failing to ask for a full explanation.
In dealing with the second branch of his argument, counsel submitted that there was nothing which McNeil could have done or did do which altered the simple fact that the provincial agreement document which he signed had already expired. Therefore, any evidence purporting to show that City had performed under the document cannot be relied upon, particularly since City ceased doing those things which might be seen as performance as soon as McNeil came to the conclusion that it was void at the time of signing.
In support of his argument that City was never a party to the document signed by McNeil in October of 1980, counsel submits that the document purports to be between Local 527 and City Plumbing & Heating Services an unincorporated business which was not conducting any business in October 1980. Rather, at that time, City was carrying on the business for which purpose it had been incorporated in June 1980.
For all of these reasons, but particularly because of the fact the 1978-80 plumbers' provincial agreement document which McNeil signed had already expired and because of his lack of knowledge with respect to what it was he was signing, counsel submits that City has entered into neither a voluntary collective agreement nor a voluntary recognition agreement.
Counsel's arguments that Local 527 had abandoned its bargaining rights or should be estopped from enforcing them are made in the alternative should the Board find that City and Local 527 are bound to a valid collective agreement. The factual basis argued for abandonment of bargaining rights is that Local 527 had knowledge, at least from May 1982 until it filed its grievance in June of 1984, that the respondent was not following the collective agreement upon which Local 527 realizes in making this referral, and that Local 527 took no action during that interval to assert its bargaining rights with respect to employees of City. Counsel was relying generally on the Board's jurisprudence with respect to the abandonment of bargaining rights by trade unions, but seeks to distinguish the instant case from the Board's decision in Culliton Brothers Limited, j11982] OLRB Rep. March 357 on its facts. Counsel argues that the Board in Culliton found that their had been no abandonment of bargaining rights primarily because the union had been unaware that it was bound together with the employer to a provincial agreement, whereas in the instant case, Local 527 was aware of its bargaining rights, but failed to act upon them.
Finally, should the Board find that Local 527's bargaining rights have not been abandoned counsel contends that Local 527 should be estopped from exercising any of its rights under the collective agreement because all of the elements are present to allow the Board to apply the doctrine of estoppel. Counsel argues that Local 527 was aware of City's breach of the collective agreement between May 1982 and June 1984 when Local 527 served this
grievance on City. That awareness, counsel states, is in Morrison's knowledge from his conversations with McNeil in which McNeil stated that City was using non-union employees to perform its work. That knowledge notwithstanding, Local 527 did not act to enforce any of the terms of the provincial agreement. City accepted that acquiescence and altered the way it conducted its business. In particular, it ceased 10 request men from Local 527 and to file remittances as required by the provincial agreement. The detriment to City, having relied on Local 527's inaction, is in the fact that City has had to incur expense to defend itself in these proceedings, and, if the union succeeds in this referral, City may have to discharge employees and pay damages with respect to work already performed.
The Board has reviewed and weighed the witnesses' testimony having regard to the firmness of their recall of the events about which they were testifying, their ability to relate those events clearly and to resist the influence of self-interest, and their general demeanor and relative credibility. The Board has also reviewed and considered the submissions of counsel for the parties on the evidence and relevant law. The Board does not propose to set out detailed findings of fact, but the conclusions which it has reached and set out below are based on the Board's assessment of all of the evidence and the submissions of the parties.
The Board is satisfied on the evidence that, on the day in October 1980 when he signed the signing page of the document upon which Local 527 is relying to establish that it holds bargaining rights for City's plumbers in the ICI sector of the construction industry, McNeil knew that he had signed a document both he and Porter believed to be a voluntary collective agreement. He may or may not have gone to the union office with that objective in mind. There is no doubt that he and Porter discussed the alternatives open to McNeil with respect to his union membership and his pension, but the Board is satisfied that was not the sole topic of conversation between McNeil and Porter. Nothing in Porter's demeanor as a witness gives the Board cause not to accept his evidence that McNeil said he wanted to be a union contractor and to get men from the union. McNeil did not deny the conversation. Furthermore, the documents which McNeil was given while there and which he took with him when he left the office, as well as his ensuing conduct lend credence to Porter's evidence.
The Board finds less credible McNeil's response to questions put to him in examination-in-chief and cross-examination about what he thought he had signed that day. In chief, he stated that he thought he was signing something to preserve his pension, there was only the page which he signed and he saw nothing else. In cross-examination he testified that he expected to have to sign something in order to be able to remit annual pension contributions for 144 hours of work. As the Board has noted above in paragraph 10, apart from the signing provisions on the page, the only text on it is the following appearing under the marginal heading "Conclusion":
It witness whereof each of the parties hereto has caused this Agreement to be signed by its duly authorized representatives as of the day and year first above written.
There is no mention of pensions in that wording. Putting McNeil' s evidence at its highest, he did not say that Porter told him he was signing something about pensions. His evidence was that Porter did not tell him what he was signing.
Thus the Board prefers Porter's evidence of the events leading up to the signing and finds that, when McNeil, Porter and Crystal signed the signing page of the document in issue, McNeil knew the page was part of a document Local 527 believed would form a voluntary collective agreement between the Local and Mc Neil's company. The Board finds, therefore, that McNeil intended to bind his company to the document.
The Board disagrees with counsel for City that the document was not an agreement between City and Local 527 because it was signed in the name of City Plumbing and Heating Services at a time when City Plumbing (Kitchener) Limited had been incorporated, and after the unincorporated business City Plumbing and Heating Services had ceased to operate. McNeil testified that the style City Plumbing & Heating Services had been used on the business' vehicles from the start, and the Board so finds. Therefore, the Board finds that City has been represented to the public as City Plumbing & Heating Services. In those circumstances, when McNeil signed the document on behalf of City Plumbing and Heating Services, the Board is satisfied he was signing it for City.
The form of the document which Local 527 and McNeil signed was in the form of a collective agreement. More particularly it was comprised of the master portion of the plumbers provincial agreement and the local appendix of the plumbers provincial agreement applicable to Local 527's geographic jurisdiction. Pursuant to section 137(e) of the Act, a provincial agreement by definition must be between a designated or accredited employer bargaining agency which represents employers in province-wide, multi-employer bargaining in the ICI sector of the construction industry and a designated or certified employee bargaining agency which represents affiliated bargaining agents in province-wide, multi-employer bargaining in the ICI sector of the construction industry. The document which Local 527 and McNeil signed is, on its face, between designated employer and employee bargaining agencies with respect to plumbers. Pursuant to section 146(1) of the Act, the employer and employee bargaining agencies can only have the one provincial agreement for plumbers. By the definition of provincial agreement in section 137(e), Local 527 and City cannot be parties to the plumbers provincial agreement. Section 146(2), when read together with the definition of bargaining in section 137(b) and provincial agreement in section 137(e), operate to prohibit them from entering into a collective agreement or any other arrangement respecting plumbers employed in the ICI sector, to adopt the words of section 146(2)," ... other than a provincial agreement as contemplated by [section 146(1)], …………(See Diversified Sheet Metal Limited, [1981] OLRB Rep. Nov. 1575, at paragraph 7 and Manacon Construction Limited, [1983] OLRB Rep. July 1104, at paragraphs 13, 14 and 15.)
The document they signed was a copy of the plumbers provincial agreement, albeit on its face expired. While City and Local 527 cannot sign the plumbers provincial agreement as parties to it because that agreement, by definition, is between the employer and employee designated bargaining agencies respecting plumbers, they can sign an arrangement by which they bind themselves to the plumbers agreement. When section 146(2) is read in the context of the entire scheme of the province-wide bargaining part of the Act, it provides amongst other things, for affiliated bargaining agents and employers to enter into voluntary collective bargaining relationships respecting employees in the ICI sector by binding themselves to the relevant provincial agreement. That is what City and Local 527 did when they signed the 1978-80 provincial agreement document.
In the Board's view, the fact that the specific document which they signed had expired on its face does not nullify the binding nature of their act of signing. City and Local 527 signed the document in October 1980. McNeil knew at the time, on his own evidence, that the new plumbers provincial agreement had been ratified and was in effect. The signing page together with the rest of the document of which it is part, form a clear intention of City and Local 527 to be bound to the provincial agreement which was in effect when they signed. At the very least, what they signed is a voluntary recognition agreement, the effect of which would be to bind them to the provincial agreement in effect in October 1980.
Furthermore, City performed under the terms of the 1980-82 plumbers provincial agreement beginning the very next month with respect to the payment of welfare and pension contributions on McNeil's behalf. Beginning in January 1981 thru May 1982, City hired journeymen and apprentices in compliance with the hiring provisions of the agreement and Local 295's hiring hall practices. City remitted contribution and remittance reports pursuant to the 1980-82 provincial agreement. Having conducted itself in that manner, City cannot simply turn around because Local 527 referred this grievance for resolution under section 124 of the Act and seek to repudiate the consequences of its actions. That is not to say that parties who conduct themselves as though they were bound to a collective agreement are bound to it absent a signed, written agreement, whether in the form of a collective agreement or a voluntary recognition. In other words, if the only evidence here was that City had asked the union to supply journeymen and apprentices and had made remittances for benefits the same as set out in the provincial agreement, it would not be evidence that City was bound to the agreement.
Counsel for City argued that the evidence of requests for journeymen and apprentices and the making of remittances is not evidence of performance under the provincial agreement because there is no evidence that these things were done respecting employment in the ICI sector. The Board finds that argument not to be persuasive. The onus was with City to prove its conduct was not performance under the agreement. It is not sufficient to say that work in the ICI sector represents only 10 per cent of City's construction work. In any event, even if City only did 10 per cent of its work in the ICI sector, that is enough to bind it to the agreement which the Board has found it signed with Local 527. Nor is it relevant to the fact of whether City is bound to the current provincial agreement that McNeil thought City was no longer under a collective agreement obligation to Local 527 because it had not approached him about a new agreement in April 1982. Under the province-wide bargaining scheme for the ICI sector of the construction industry, Local 527 does not bargain for the provincial agreement. That right and duty is vested solely in the designated employee bargaining agency, or for City, the designated employer bargaining agency under sections 142 and 143 of the Act. For the same reason, Local 527 has no legal power to give notice in its own name to bargain respecting the ICI sector. See Spears Brothers, [1980] OLRB Rep. July 977. The designated bargaining agencies have bargained and concluded successive provincial agreements respecting plumbers. By statute, these have been made to expire " ... on the 30th day of April calculated biennially from the 30th day of April, 1978." in accordance with section 146(3) of the Act.
For all of the foregoing reasons, the Board finds that City is bound together with Local 527 to the plumbers 1984-86 provincial agreement which is effective from May 14,1984 to April 30th, 1986 and has been bound to the predecessor provincial agreements which expired April 30th, 1982 and 1984. It is necessary, therefore, for the Board to address the argument of counsel that Local 527 had abandoned its bargaining rights for plumbers employed by City in the ICI sector of the construction industry, or, in the further alternative, that Local 527 should be estopped from pursuing its rights under the provincial agreement.
When counsel made his argument respecting abandonment, which is summarized above, and sought to distinguish the instant case from the Board's decision in Culliton Brothers, supra, counsel for Local 527 argued in rebuttal that the decision stands for the proposition that there cannot be abandonment of bargaining rights under the province-wide bargaining scheme of the Act. It is not necessary for the Board to decide the issue on his reading of the case. A finding of whether there has been abandonment of bargaining rights has always been a finding of fact: either the union has or has not abandoned its rights. In this case, the facts simply do not support a finding that Local 527 has abandoned its bargaining rights respecting City's employees. City obviously has been working on small jobs. Crystal testified that he does not check out the one-man shops because they are owned mostly by members of Local 527 who know their obligations under the agreement. Even if he took a more aggressive approach, it would be an onerous task, if not economically infeasible, to follow contractors like City to see if they are doing work covered by the agreement using employees, as opposed to working themselves. Local 527 representatives have acted diligently when there was reason to believe City might be violating the agreement. When Porter noticed City's truck being driven by someone he did not recognize, he followed it and confronted McNeil. When Crystal received a tip from Morrison, he followed up on it and filed the grievance. This is not evidence of abandonment of bargaining rights, particularly when those rights only apply in the ICI sector and, according to McNeil, City only works intermittently in that sector. On those facts, the Board finds that Local 527 has not abandoned its bargaining rights respecting City's employees in the ICI sector.
With respect to Local 527 being estopped from pursuing its rights under the provincial agreement, the factual basis on which counsel was relying, that is, that Local 527 was aware of City's breach of the provincial agreement and failed to assert its rights at the time, is not made out on the evidence. Counsel argued that Local 527 was vested with the knowledge of the breach through Morrison from a conversation he had with McNeil. McNeil's own evidence of that conversation is that he was referring to drywall and painting work in the residential sector, not to plumbing work in the ICI sector. Therefore, the grounds for applying the doctrine of estoppel are not present.
In the result, the Board reiterates its finding made above that City Plumbing (Kitchener) Limited is bound to the plumbers provincial agreement effective from May 14, 1984 to April 30, 1986 and had been bound to the prior provincial agreements which expired April 30th, 1980 and 1982. The Board makes no finding as to the liability or, of course, to damages. The Board directs the parties to seek to settle those issues. If the parties are unable to do so, the Board will list the matter for continuation of hearing with respect to the remaining issues on the written request of either party.