Dewar Insulations Inc. v. International Association of Heat and Frost Insulators and Asbestos Workers, Local 95, 1986 CanLII 1434

[1986] OLRB Rep. October 1329

1627-85-JD Dewar Insulations Inc., Complainant, v. International Association of Heat and Frost Insulators and Asbestos Workers, Local 95, and The International Brotherhood of Painters and Allied Trades and Ontario Council of International Brotherhood of Painters and Allied Trades, Local Union 1891, Respondents

BEFORE: Harry Freedman, Vice-Chairman, and Board Members D. A. MacDonald and C. A. Ballentine.

APPEARANCES: Mark Contini for the complainant; Christine Elwell and Robert 0. Beamish for the International Association of Heat and Frost Insulators and Asbestos Workers, Local 95; Maurice A. Green for the International Brotherhood of Painters and Allied Trades and Ontario Council of International Brotherhood of Painters and Allied Trades, Local Union 1891.

DECISION OF THE BOARD; October 31, 1986

1. This is a complaint made under section 91 of the Labour Relations Act in respect of the assignment of work that relates to the removal of asbestos insulation from the mechanical systems at six residential apartment buildings at Regent Park in Toronto. During the course of the pre-hearing conference in this matter, it became apparent that the parties disagreed over whether the complainant was bound by the collective agreement between the Master Insulators Association of Ontario Inc. and The International Association of Heat and Frost Insulators and Asbestos Workers, and the International Association of Heat and Frost Insulators and Asbestos Workers, Local 95 with respect to the residential sector of the construction industry. The parties agreed to have that issue determined by the Board prior to the continuation of the pre-hearing conference.

2. Ray Kurki, the manager of the Master Insulators Association of Ontario Inc. since 1981, testified that he understood that the negotiations between the parties to the collective agreement related to the industrial, commercial institutional sector of the construction industry and to maintenance work. He also explained that Local 95 had discussed establishing a residential agreement and an agreement relating to asbestos removal during negotiations.

3. Robert Beamish, the business manager of Local 95 also testified about his understanding of the scope of the collective agreement. He said that discussions about a separate residential agreement were held in order that contractors who were bound by the collective agreement in respect of the residential sector could become more competitive. He testified that those employers were bound by the collective agreement which, by its terms, applied to all sectors of the construction industry, save for the electrical power systems sector. In the absence of a separate residential agreement, the terms and conditions of employment applicable to the industrial, commercial institutional sector applied equally to the residential sector.

4. While Mr. Kurki testified about what took place at certain negotiation meetings and his understanding about the scope of the collective agreement without objection, and Mr. Beamish gave evidence about his understanding of the scope of the agreement, also without objection, in our opinion, the starting point of the determination of the issue before us is the collective agreement.

5. The recitals in the collective agreement state in part:

"WHEREAS the Association, on behalf of all Employers whose employees are represented for collective bargaining by the Union and the Union have bargained together collectively in an effort to reach a collective agreement applicable to the Industrial, Commercial and Institutional sector of the Construction Industry pursuant to the provisions of the Labour Relations Act, Revised Statutes of Ontario, 1980, Chapter 228, as amended;

AND WHEREAS the Association, on behalf of each Employer who is a member of the Association and any new Employer becoming a member of the Association subsequent to the date hereof, and the Union have bargained together collectively in an effort to reach a collective agreement encompassing all sectors of the Construction Industry save and except the Electrical Power Systems sector pursuant to the provisions of the Labour Relations Act;

AND WHEREAS the purpose of the Collective Agreement is to govern the wages and working conditions applicable to all work performed by the Employees in the application of those types of insulation which are within the jurisdiction of the Union in the Province of Ontario, provided, however, that under no circumstances shall this Agreement apply to work which is performed by employees of any Employer represented by the Association in that Employer's plant and not on a construction site."

[emphasis added]

6. Additionally, Article 1 of the collective agreement provides in part:

"1.01 'Employers' as used herein means all Employers whose employees are represented for collective bargaining by the International Association of Heat and Frost Insulators and Asbestos Workers or Local 95, thereof with respect to bargaining rights in the Industrial, Commercial and Institutional sector of the Construction Industry, and, in addition, means members of the Association and new Employers becoming members of the Association subsequent to the date hereof, including such other Employers as may become bound to the provisions of this Agreement pursuant to either Article 14 hereof, with respect to all sectors of the Construction Industry save and except E. P.S. CA. or pursuant to the provisions of the Labour Relations Act.

1.03(a) All Employers whose employees are represented for collective bargaining by the Union recognize the Union as the sole bargaining agent for their employees performing work covered by the Agreement within the Industrial, Commercial and Institutional sector of the Construction Industry.

1.03(b) All Employers who are members of the Association and new Employers becoming members of the association subsequent to the date hereof recognize the Union as the sole bargaining agent for their employees performing work covered by this Agreement in all sectors of the Construction Industry, save and except E. P.S. CA."

[emphasis added]

7. The Master Insulators Association of Ontario Inc. is a designated employer bargaining agency under the Labour Relations Act. As such, it is empowered to bargain on behalf of employers whose employees are represented in collective bargaining by Local 95, whether or not those employers are members of the Master Insulators Association of Ontario Inc. In addition, it is not disputed that the Master Insulators Association of Ontario Inc. is an employers' organization within the meaning of the Labour Relations Act, and that the complainant is a member of the Master Insulators Association of Ontario Inc.

8. In our opinion the first paragraph of the recital to the collective agreement and section 1.03(a) of the collective agreement relate to the role of the Master Insulators Association of Ontario Inc. as a designated employer bargaining agency.

9. There was no evidence before the Board as to whether the Master Insulators Association of Ontario Inc. was an accredited employers' organization in respect of the residential sector of the construction industry. Therefore, contrary to the submissions of counsel for Local 95, section 127(2) of the Labour Relations Act has no application. That section of the Act refers only to accredited employers' organizations. However, as an employers' organization, it is clear that the Master Insulators Association of Ontario Inc. recognized Local 95 as the bargaining agent of the employees of members of the Master Insulators Association of Ontario Inc. "performing work... in all sectors of the construction industry, save and except the electrical power systems sector". It appears to us therefore that the second paragraph of the recitals and section 1.03(b) of the collective agreement relate to the collective bargaining relationship between Local 95 and the Master Insulators Association of Ontario Inc. in respect of members of the Master Insulators Association of Ontario Inc.

10. Section 51 of the Labour Relations Act provides in part:

"(1) A collective agreement between an employers' organization and a trade union or council of trade unions is, subject to and for the purposes of this Act, binding upon the employers' organization and each person who was a member of the employers' organization at the time the agreement was entered into and on whose behalf the employers' organization bargained with the trade union or council of trade unions as if it was made between each of such persons and the trade union or council of trade unions and upon the employees in the bargaining unit defined in the agreement....

(2) When an employers' organization commences to bargain with a trade union or council of trade unions, it shall deliver to the trade union, or council of trade unions, a list of the names of the employers on whose behalf it is bargaining and, in default of so doing, it shall be deemed to bargain for all members of the employers' organization for whose employees the trade union or council of trade unions is entitled to bargain and to make a collective agreement at that time, except and employer who, either by himself or through the employers' organization, has notified the trade union or council of trade unions in writing before the agreement was entered into that he will not be bound by a collective agreement between the employers' organization and the trade union or council of trade unions.

[emphasis added]

11. The complainant was a member of the Master Insulators Association of Ontario Inc. and was also named on Schedule A to the collective agreement which lists employers that were active members of the Master Insulators Association of Ontario Inc. as of May 7, 1984, the date that the relevant collective agreement was executed. It is also undisputed that Local 95 holds bargaining rights in respect of the complainant's employees. Therefore, in the absence of any evidence to the contrary, and by virtue of section 51 of the Act, we are satisfied that the complainant is bound by the collective agreement, since it was a member of the Master Insulators Association of Ontario Inc. at the times material to this matter and Local 95 held bargaining rights in respect of its employees. See London Sandblasting & Painting Ltd., [1982] OLRB Rep. Sept. 1322 at 1329; The Little Falls Dining Room, [1985] OLRB Rep. Nov. 1624; Delta Plumbing and Heating Ltd., [1964] OLRB Rep. Oct. 329; Bruce Henderson Ltd., [1977] OLRB Rep. Aug. 480; Fullerton-Weston Publishing Ltd. v. Brown, (1971), 71 CLLC 14,083; Twin Electric, [1984] OLRB Rep. Feb. 393; Paul D'Aoust Construction Ltd., [1976] OLRB Rep. Sept. 529; and Baker, Gurney & McLaren Ltd., [1976] OLRB Rep. Mar. 78. Furthermore, by the express terms of the collective agreement, Local 95 is the bargaining agent in respect of employees of the complainant in all sectors of the construction industry except the electrical power systems sector.

12. Counsel for Local 1891, while conceding that Local 95 holds bargaining rights in respect of the residential sector, submits that the collective agreement does not apply to the residential sector. He relies on the admission made by Mr. Beamish that the terms of the collective agreement make employers who apply the terms and conditions of that collective agreement uncompetitive in the residential sector and Local 95's attempt to negotiate a separate residential agreement.

13. In our opinion, the desire on the part of Local 95 to negotiate a separate residential agreement cannot be considered as an admission that the collective agreement does not apply to the residential sector of the construction industry. Rather, we view it as an attempt to negotiate specific terms applicable to the residential sector with the Master Insulators Association of Ontario Inc. on behalf of its members in order to secure more work in that sector. However, the absence of specific terms applicable to that sector does not mean that the collective agreement does not apply to that sector. Section 1.03(b) of the collective agreement is quite clear in stipulating that the collective agreement, in respect of members of the Master Insulators Association of Ontario Inc., covers the residential sector of the construction industry. The absence of specific terms applicable to the residential sector simply results in having the same provisions applicable to both the industrial, commercial institutional sector and the residential sector of the construction industry.

14. Therefore, for the reasons outlined above, we are satisfied that the complainant was bound by the collective agreement between the Master Insulators Association of Ontario Inc. and The International Association of Heat and Frost Insulators and Asbestos Workers, and the International Association of Heat and Frost Insulators and Asbestos Workers, Local 95 in respect of the residential sector of the construction industry.

15. This matter is referred to the Registrar for the continuation of the pre-hearing conference before the Vice-Chairman of this panel on November 24 and 25, 1986.

16. This panel of the Board is not seized with this matter.