[1986] OLRB Rep. November 1525
0807-85-R; 0808-85-M The International Association of Bridge, Structural and Ornamental Ironworkers, Local 700, Applicant, V. John Hayman & Sons Company, Limited, and Ontario and King Limited, Respondents
BEFORE: N. B. Satterfield, Vice-Chairman, and Board Members J. Wilson and L. C. Collins.
DECISION OF THE BOARD; November 13, 1986
The Board has received a request from the solicitors for the applicant for reconsideration of its decision in these matters. Since the parties had agreed that the application in Board File No. 0808-85-M be adjourned sine die pending disposition of the application in Board File No. 0807-85-R, the Board's decision related to the latter application. This is an application made pursuant to sections 1(4) and 63 of the Labour Relations Act. The Board's decision was with respect to a narrow issue relating to whether the applicant had bargaining rights for ironworkers employed by the respondent John Hayman & Sons Company, Limited ("Hayman") on structural steel work pursuant to the provincial agreement between the Ontario Erectors Association and the ironworkers designated employee bargaining agency. The Board had accepted the parties' request to decide that issue before proceeding further with the application. To that end, the parties agreed that the Board should assume, without finding, that the article set out below established bargaining rights for the applicant respecting ironworkers employed by Hayman on structural steel erection. The article is contained in the collective agreement for rodmen between the applicant and the London and District Construction Association ("the Construction Association"), in effect from May 1, 1971 to April 30, 1973 to which Hayman was bound. The issue is whether those bargaining rights, through a chain of events leading up to the first and subsequent ironworkers (not rodmen) provincial agreements, have operated to bind Hayman to the ironworkers provincial agreement in effect at the time these applications were made.
The Board found that Hayman had not become bound to the ironworkers provincial agreement as a result of the bargaining rights assumed to have been established by Article 29 in the 1971-73 collective agreement between the applicant and the Construction Association.
The letter requesting that the Board reconsider its decision reads in substantial part as follows:
This request for reconsideration is based on the failure of the Board in its Decision to consider the arguments advanced by counsel in the course of the Board hearing. The aspects of the representations which were not dealt with at all in the course of the Decision are as follows:
(a) At the time of the making of the Application for Accreditation, there had been no abandonment of steel erection bargaining rights set forth in Article 29 in the succession of collective agreements from 1965 to 1971. Hence, such bargaining rights, if voluntarily recognized upon a true construction of Article 29, remained in effect at the time of the subject Application for Accreditation and thereafter within the Provincial Bargaining provisions of the Act;
(b) in the alternative, if the Board considered the Union's bargaining rights to have been abandoned by the omission of Hayman from the list of employers filed in the Application for Accreditation, then such rights were voluntarily recognized anew by the inclusion of Article 29 within the terms of the 1973-75 Collective Agreement.
No Abandonment of Bargaining Rights prior to the 1973-75 Collective Agreement
The parties acknowledged before the Board that a series of collective agreements from 1965 to and including the Collective Agreement May 1, 1971 until April 30. 1973 contained the operative provision creating steel erection bargaining rights in Article 29, subject to the Board construing the said provisions. The Board acknowledges in its Decision that,
'The bargaining rights of a trade union under a Collective Agreement flow from the Agreement and remain in effect until they are terminated by the Board (see the Board's Decision in Dravo of Canada Limited [1977] O.L.R.B. Rep. Sept. 568 at para. 10), or are voluntarily abandoned by the trade union.'
Further, the Board notes that the Applicant argued the continuation of bargaining rights and the inapplicability of the principle of abandonment by citing the decisions of the Board in Newman Bros. Limited [1981] O.L.R.B. Rep. June 750; Culliton Brothers Limited [1982] O.L.R.B. Rep. Mar. 357; and Thomas Construction (Galt) Limited O.L.R.B. File No. 0035-82-M, unreported, July 9, 1982. The Board however failed to deal with the argument and applicability of these cases to the principle of abandonment and its inter-relationship with the Accreditation and Provincial Bargaining provisions of the Act.
Clearly, the parties acknowledged that Hayman at all material times prior to the current grievance either performed steel erection with its own employees or sub-contracted such work in accordance with the terms and conditions of the operative steel erection collective agreements. Accordingly, there is no evidence upon which the Board can base a determination of voluntary abandonment of bargaining rights. Nor did the Board explicitly rule in the Decision that such abandonment had taken place.
As admitted before the Board, Hayman was omitted inadvertently from the lists prepared in the course of the Accreditation Application and accordingly was omitted from the Accreditation Certificate. It is respectfully submitted that inadvertence cannot constitute voluntary abandonment.
Accordingly, it is our submission that prior to 1971 bargaining rights in respect of steel erection were created through Article 29 and continue in the operative Accreditation Collective Agreements current to 1978 and thereafter with the advent of Provincial Bargaining and have not been abandoned. The Board Decision in fact specifically denies that the Applicant abandoned its bargaining rights with respect to steel erection by stating,
'On the contrary, to whatever extend [sic] Article 29 created any bargaining rights, the Board finds that those bargaining rights