Ontario Labour Relations Board
Parties and Appearances
[1986] OLRB Rep. May 640
0757-84-M International Association of Heat and Frost Insulators & Asbestos Workers and the International Association of Heat and Frost Insulators & Asbestos Workers, Local 95, Applicant, v. Inscan Contractors (Ontario) Inc., Respondent
BEFORE: N. B. SatterJield, Vice-Chairman, and Board Members I. M. Stamp and C. A. Ballentine.
APPEARANCES: S.B.D. Wahl and J. de Wit for the applicant; R. A. Werry and R. Kurki for the respondent.
DECISION OF THE BOARD; May 16, 1986
The applicants International Association of Heat and Frost Insulators and Asbestos Workers ("the International") and International Heat and Frost Insulators and Asbestos Workers, Local 95 ("Local 95") have referred a grievance in the construction industry to the Board for final and binding arbitration pursuant to section 124 of the Labour Relations Act. For ease of reference, the Board will refer throughout this decision to Local 95 as though it was the sole applicant except where the text requires reference to both applicants or the International.
The general nature of the grievance is that the respondent Inscan Contractors (Ontario) Inc. ("Inscan") is bound together with Local 95 to two collective agreements between the Master Insulators' Association of Ontario Inc. and the International and Local 95. The parties refer to one as the construction agreement and the other as the maintenance agreement. It is alleged that Inscan applied the wrong agreement to certain work on which it employed Local 95 members. The work in question involved the repair of damage resulting from an explosion and fire at the Clarkson Refinery of Gulf Canada Limited ("Gulf'). Inscan applied the terms and conditions of the maintenance agreement. Local 95 contends that the terms and conditions of the construction agreement should have been applied. It seeks to have Inscan pay the Local 95 members employed by Inscan on the project the difference between what was paid to them under the maintenance agreement and what Local 95 claims should have been paid under the construction agreement.
The grievance raises several major issues and they are:
(1) Is the work performed by Inscan at the Clarkson Refinery work in the construction industry within the meaning of section 1(1)(f) of the Act?
(2) Which of the two agreements applies to the work in question?
(3) Insofar as the maintenance agreement may purport to apply to construction work in the industrial, commercial and institutional sector of the construction industry, is it void under section 146(2) of the Act?
(4) If Inscan has violated the construction agreement, is Local 95 estopped from claiming damages because of a past practice in the industry of doing fire restoration work under the terms of the maintenance agreement?
(5) If Inscan has violated the Act, should Local 95 be denied relief in the form of damages because of undue delay in filing the grievance?
The work performed by Inscan arose out of fire damage to the hydrotreater unit at the Clarkson Refinery. It is one of 11 producing units which make up the refinery. The hydrotreater represents 2 per cent of the physical area of the total refinery. Approximately 15 per cent of the unit was damaged by the fire. The area of the hydrotreater unit affected by the fire was, at most, 12,000 square feet. The end product of the hydrotreater unit is the base stock from which lubricating oils are made. There are two stages to the unit's operation, each of which can operate independently of the other. The day before the fire, both were operational. The day after the fire, neither was operational.. Within three weeks the second stage was producing its normal product using feedstock from storage. It operated for approximately five weeks when it was shut-down for a previously scheduled overhaul. That shut-down was for approximately five weeks. At the end of the overhaul shut-down the first stage was operational and by then both stages were restored to full operating capacity.
Gulf established a special group to restore the fire damaged area. Richard Ives was construction superintendent of the group and testified at the Board's hearings. Gulf awarded a contract to Adam Clark Company Limited for all electrical and mechanical work. The contract included the repair or removal and replacement of fire-damaged insulation on 6,000 to 7,000 feet of piping, storage vessels, three cooking and reactor towers and other equipment. The piping which required insulating was about 40 per cent of the unit's total piping. Adam Clark sublet the removal of damaged insulation to KLT Insulation Incorporated ("KLT") and the installation of the replacement insulation to Inscan. The value of Inscan's contract was approximately $378,000.00. KLT was on the job for less than 11 days. Inscan came on the job on April 2nd, 1984, the fourth day after the fire and was on it for nine weeks. Al Taggart, at the time business manager of Local 95, also was aware that Inscan was applying maintenance terms and conditions to the work. He spoke on the telephone with Danny Millington, President of Inscan, on April 6th about the job. He asked Millington if there was not some way Inscan could pay construction terms and conditions because they were both embarking on troubled waters.
Inscan finished its work on June 8th. All of the insulators employed by Inscan were requested from Local 95 and referred by it to the project. Inscan had told Local 95 that it required the men to work on the repair of fire damage at the Clarkson Refinery and that it would be doing the job "maintenance". Referral slips signed by Joe De Wit and Earl Walsh, Business Agents of Local 95 at the time, bear the word "maintenance". It was their evidence that they did so because the person calling from Inscan to request men had told them the men were for a maintenance job. de Wit testified that it was not the Local's practice to check to see if a job was maintenance or construction when requests were received for men to be referred for maintenance work. This was because Local 95 covers the whole province and refers men to jobs anywhere in the province. Both de Wit and Walsh had been to the Gulf site and had seen the fire damage that insulators were working on for KLT before they referred Inscan's insulators. They also knew that the insulators referred to KLT were being paid construction rates while working on the fire damage and that Inscan's insulators would be working on it as well. Walsh had written the notation "construction" on the referral slips of insulators whom he had dispatched to KLT.
Robert Beamish was Local 95's steward on the Inscan job and began work on it on April 10th. During two of the three prior years he had been employed by Local 95 as one of its business agents. He knew when he was dispatched to the job that Inscan was referring to the work as maintenance. Beamish testified that he had been on the job only a couple of hours when he concluded that the work was not maintenance. Approximately three days later, when he was appointed steward, employees began asking him why they were not being paid construction rates. He claims that, between April 10th and May 2nd he had four informal conversations with Inscan's foreman Frank Kapralik about the complaints which he was getting from employees concerning the rate of pay. Beamish states that, on May 2nd after an employee told him that he wanted a grievance filed, he called Taggart and asked for a business agent to be sent to the job site in order to file a grievance. He sent de Wit to the site. That visit was made on May 11th. According to Beamish, de Wit first toured the site, then spoke with Beamish and, together with him, went to see Kapralik. They told Kapralik that they were grieving at Step No. 1 of the grievance procedure that Inscan should be paying construction rates. Beamish said that he asked Kapralik to advise his office, but did not personally pursue the matter any further.
de Wit's testimony about the visit to the site on May 11th differs from Beamish's only to the extent that he recalls that the two of them toured the site together. de Wit reported the results of his site visit to Taggart and asked him to file a grievance. Taggart's response was for de Wit to make further investigations. He started by contacting Mr. A. Chartrand, a Vice-President of the International and a member of the General Presidents' Committee for Contract Maintenance in Canada ("the Presidents' Committee). The Presidents' Committee is a committee formed of the presidents of 11 international building trades unions affiliated with the Building Trades Department of the AFL-CIO together with the president of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers. It is responsible for administering or interpreting the "Definitions" article of a form of agreement referred to amongst the building trades unions as the Presidents' Agreement, although it is formally titled Project Agreement for Maintenance By Contract in Canada. One such document is an exhibit in these proceedings, being an agreement between Stearns Catalytc Ltd. ("Catalytic") and the aforesaid unions for maintenance work at Gulfs Clarkson Refinery. As a result of his conversation with Chartrand, de Wit contacted Robert Watson, Chairman of the Presidents' Committee. He spoke to other building trades representatives as well, including Joe Duffy who was President of Local 95 at the time and is also Secretary-Treasurer of the Ontario Provincial Building Trades Council.
de Wit sought Chartrand's interpretation of whether fire damage restoration work came under Local 95's construction or maintenance agreement. He asked Duffy whether he knew of any prior jobs in Ontario where fire damage had shut down an operating unit and it was repaired under a subcontract let by the owner pursuant to Local 95's maintenance agreement. Duffy's advice was that he was unaware of any, but that some companies like Catalytic had performed fire restoration work under project agreements. de Wit queried Watson on his and the Presidents' Committee's interpretation of fire restoration work and was advised by Watson that the project agreements have a section which refers to fire damage. It was into the last week of May by the time de Wit had finished his various inquiries, reported the results to Taggart and repeated his request that a grievance be filed with Inscan. de Wit learned on May 31St that Taggart had resigned as business manager. de Wit became interim business manager of Local 95 on June 3rd. He addressed a letter dated June 5th to Inscan advising it that Local 95 was going to take the dispute over payment of maintenance rates on the Gulf job to the Board. Next he obtained a formal grievance letter dated June 7th from Local 95's solicitors and served it on Inscan. This formal grievance letter was referred to the Board eight days later.
At the same time that Inscan was obtaining insulators from Local 95 and performing its contract at Gulf, Local 95 and the Association were in negotiations to renew the construction and maintenance agreements. Local 95 sent to the Association separate notices of its "... intention to bargain for the renewal with revisions .. ." of the construction and maintenance agreements. Each was dated January 24, 1984. de Wit was appointed by Taggart as chairman of Local 95's bargaining committee for both agreements and Local 95 tabled proposals on March 15th respecting both agreements. One of the proposals for revision to the maintenance agreement was that "On major shutdowns I.C.I. Sector conditions and rates of pay will apply.". The parties had five meetings from January 10th to April 19th and reached a settlement on the construction agreement on that latter date. The same day they commenced bargaining on the maintenance agreement. A few days after May 7th they settled that agreement and it was signed prior to June 1st.
The evidence is in substantial conflict with respect to whether there was discussion of rates of pay for fire restoration work during the negotiations. John Beernink, Chairman of the Association's bargaining committee who testified on behalf of Inscan, stated that Local 95 representatives expressed their dissatisfaction at the April 12th bargaining meeting that Inscan was paying the rates of the maintenance agreement on the Gulf job. According to Beernink, Local 95 wanted to have the maintenance agreement amended to provide for the payment of construction rates on fire restoration work. At the April 19th meeting, after the construction agreement was settled, Beernink proposed that they deal with the maintenance agreement and settle it by adjusting the wages pro rata to the construction agreement. After an initial protest from Duffy that they were not there to bargain the maintenance agreement, they began to negotiate for its renewal. Beernink' s testimony is that de Wit demanded that the agreement be amended to include specific wording requiring payment of construction wages on fire damage restoration and that this be agreed to before there be any settlement on wages and benefits. Beernink refused. At a meeting on May 7th, Beernink presented Taggart and Walsh with a draft maintenance agreement. A few days later that became the basis of the settlement. The only revisions to the expired agreement were in respect of wages and benefits which were pro-rated to the rates and benefits of the construction agreement.
de Wit and Duffy presented a different version of what was discussed in negotiations in their testimony. They claim that Beernink raised the maintenance agreement from time to time and, whenever he did, Duffy responded by saying that they were there to negotiate the construction agreement, not the maintenance one. Duffy has no recall of the Local 95 representatives making any reference at the April 12th meeting to fire restoration with respect to either collective agreement, or of Local 95 making proposals to do such work at construction rates. Duffy did not remain at the April 19th meeting after the construction agreement was settled. It was also Duffy' s testimony that throughout the negotiations, Local 95 did not table any proposals to do with fire restoration and that members of Local 95's bargaining committee did not participate in any discussions about fire restoration. de Wit also denies presenting any proposal for Local 95 dealing in any way with fire restoration, or that there was any discussion of fire damage restoration during bargaining about the construction agreement.
Inscan is not the only employer bound to Local 95's construction and maintenance agreements which has paid employees working on fire damage restoration according to the terms and conditions of the maintenance agreement. Ivan Hebert, Manager of the Asbestos Covering Company, Limited ("Asbestos Covering"), testified that it and his prior employer, Canadian Insulation Services ("C.I.S.") had employed insulators from Local 95 on fire damage restoration on four separate fires under the terms of the maintenance agreement, all without complaint from Local 95. Three of them were within the same compound at the Imperial Oil Limited refinery in Sarnia.
Asbestos Covering performed a contract for approximately $50,000.00 to repair damage from a fire in the phenol plant which occurred as a result of an explosion as the plant was being started up after a maintenance shutdown in 1982. Asbestos Covering performed the repair of the fire-damaged insulation after the plant had been brought back into operation following the fire. C.I.S. also did fire damage repair in 1982 on separate fires on two separate power formers, each one a separate producing unit. These units were in the same compound as the phenol plant. The first power former fire did not shut down the unit and insulators were the only trade doing repair on it. The fire to the second unit occurred just prior to a scheduled maintenance shutdown, so the fire damage was repaired while the unit was shut down. In 1981, Imperial's wax plant was entirely disabled for 14 days as a result of a fire. C.I.S. worked two shifts of insulators 12 hours per day for 14 days in order to restore operations. Ninety per cent of the insulators were additional to C.I.S.'s regular maintenance crew and all were cleared through Local 95 for work on the project specifically for that project. The value of C.I.S.'s contract for the fire damage repair was approximately $300,000.00.
C.I.S. and Asbestos Covering were working under regular maintenance contracts from Imperial when all four fires occurred. As noted above, the employees of the two companies who worked on the fire damage restoration were paid according to Local 95's maintenance agreement. Except for the wax plant fire, the employees who worked on the fire repair were some of the same employees who were doing the work covered by C.I.S. 's and Asbestos Covering's maintenance contract with Imperial. On the other hand, 90 per cent of the employees who worked on the fire damage repair at the wax plant were hired specifically for that work.
Beernink told Local 95's bargaining committee during negotiations that Association members had been doing fire restoration work under the maintenance agreement since the first agreement was signed with Local 95 in 1979. The statement was made in response to an assertion of the union at the April 12th meeting that construction rates and conditions should be paid for fire restoration work. When he was cross-examined on this exchange, he testified that Local 95 representatives had expressed dissatisfaction that Local 95's members were the only tradesmen working on the Gulf fire damage repair who were not being paid construction rates and conditions. When Beernink replied that Association members had been doing fire damage repair under the maintenance agreement since the first agreement, Local 95 did not challenge the Association's interpretation of the maintenance agreement, but the union did make an oral demand for a change to the agreement to have construction rates paid for such work. Beernink also discussed the application of the maintenance agreement to fire damage repair on April 19th, the same day on which the Association and Local 95 reached agreement on the construction agreement. He was expressing his concern that, if the parties did not settle quickly the renewal of the maintenance agreement, some fire damage repair work at the Polysar plant in Sarnia would be done by Polysar's own forces instead of Local 95's members. Beernink testified that the Local 95 official to whom he addressed the remarks neither agreed nor disagreed with his suggestion that the work would be performed under the maintenance agreement.
As the Board noted earlier in this decision, in addition to the maintenance agreement between the Association, the International and Local 95, the Board has another maintenance agreement in evidence as an exhibit in the form of the agreement is formally titled "Project Agreement for Maintenance By Contract In Canada". It is styled as a Presidents' Agreement between Stearns Catalytic Ltd. and the twelve unions which comprise the Presidents' Committee, including the International herein. The agreement states that the parties have entered into it .... . for the purpose of maintenance, repair and renovation work for Gulf Canada Limited located at Clarkson, Ontario.". The twelve unions enter into the same form of agreement with other employers who do industrial maintenance work under long term contracts. There is no evidence before the Board that Inscan is a party to a Presidents' Agreement. The Board also heard testimony about the Presidents' Agreement from William Warchow, Secretary-Treasurer of the Presidents' Committee and Robert Watson, an international representative on the committee for 18 years for the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada. Their evidence was with respect to the definition of fire restoration as it appears in an interpretation contained in the Presidents' Agreement of that agreement's definition of maintenance work. The relevant wording is as follows:
Fire Restoration
The restoration of a plant completely destroyed by fire is considered construction work.
The restoration of a major part of a plant including several sections which have been destroyed or damaged by fire, shall be governed by the following criteria:
(a) The removal of damaged equipment and the preparation of the damaged area to make it suitable for new equipment will be Maintenance.
(b) The installation and erection of new equipment will be Construction.
When fire damage is localized to a given operating unit, such as a heater, distillation tower, compressor, pumphouse equipment and the like, then the restoration of same is to be considered Maintenance.
- Turning now to the issues before the Board, it will deal first with the question of whether the work performed by Inscan at Gulfs Clarkson Refinery is work in the construction industry within the meaning of section l(l)(f) of the Act. The section states as follows:
"construction industry" means the businesses that are engaged in constructing, altering, decorating, repairing or demolishing buildings, structures, roads, sewers, water or gas mains, pipe lines, tunnels, bridges, canals or other works at the site thereof.
The Association and Local 95 have been before the Board previously in circumstances where the meaning of the word "repair" in the definition of construction industry was at issue with respect to particular work in evidence before the Board. The Association was complainant, Local 95 was respondent and other parties were interveners in a complaint alleging that Local 95 had violated what is now section 148(1) of the Act by engaging in a selective strike; that is, a strike against certain employers under the provincial bargaining scheme and not others. The Board's decision is reported as The Master Insulators' Association of Ontario Inc., 1980 OLRB Rep. Oct. 1477. The Board was required to distinguish between the meaning of the word repair as used in the definition of construction industry and the word maintenance as it is used in the construction and maintenance agreements. The maintenance agreement which was before the Board on that occasion was styled as a maintenance addendum to the construction agreement. The Board, for reasons set forth in another decision reported as The Master Insulators Association of Ontario Inc., [1980] OLRB Rep. Oct. 1497, found that the addendum was ..... a separate collective agreement covering maintenance work as opposed to the provincial collective agreement which covers work which includes work in the industrial, commercial and institutional sector of the construction industry.". The maintenance agreement before the Board herein is the third renewal of that agreement.
- The Board, in the decision first referred to above, began its analysis of the distinction between repair and maintenance with the following observation at paragraph 21:
The distinction between "maintenance" and "repair" in the construction industry is not one which is easily made. While section l(l)(f) of the Act defines "construction industry" and refers to "repairing", the words "maintenance" and "maintaining" do not appear in the Act...
The Board noted at paragraph 22 that it has regarded maintenance as not included in the section 1(1)(f) definition of construction industry and cited several Board decisions as authorities for that proposition. Nonetheless, the following passage quoted from paragraph 22 demonstrates that the Board, while certain that maintenance is not captured by section 1(1)(f) of the Act, is less certain about what constitutes "maintenance" and, therefore, is not "construction":
... [I]n The Board of Governors of The University of Western Ontario case, [1970] OLRB Rep. Oct. 776, the Board determined that the employer was not operating a business in the construction industry because the employees who were the subject of an application for certification were engaged in maintenance rather than repair. In the Overhead Door Co. of Toronto Ltd. case, [1974] OLRB Rep. July 482, the Board examined the business of an employer who was engaged in the sale, distribution, installation, maintenance and warranty of various types of wood and metal doors and concluded that whether "maintenance" is to be considered as part of "construction industry" depends on the type of "maintenance" being performed and on the context of a given employer's operations.
The Board next drew the following conclusions at paragraphs 28 and 29 about the work in evidence before it:
With the exception of the work performed at the premises of Fearman and the work on a new emergency shower and minor work in a change house at Stelco, the work performed by the employers who were named in this complaint was essentially similar in nature. In our view, the work at the premises of Fearman, which involved an addition to an existing facility and involved both relocation of producing units and the expansion of existing capacity, was clearly new construction. Similarly, the work on the emergency shower and change house at Stelco was an addition for the safety and comfort of Stelco's employees and represented new construction. This work is clearly within the industrial, commercial and institutional sector of the construction industry. The rest of the work referred to in the complaint was, for the most part, clearly work which sustained and maintained an operating facility and enabled that facility either to operate efficiently or to attain its designed or production capacity and it to be regarded as maintenance work. Maintenance work is to be distinguished from construction work which involves the addition to an existing facility or which will increase the designed or production capacity of an existing facility. However, in so far as there was work of new construction, which was purportedly done under the maintenance agreement, it was a violation of section 134(a) of the Act.
Maintenance work performed by the employers who were named in this complaint is in reality part and parcel of the production and maintenance operations of the industrial clients for whom the work is performed. These industrial clients may, and frequently do, perform their own maintenance work with their own employees who are included in their own industrial bargaining units. In the context of the work affected by this complaint "maintenance" is difficult to distinguish from "repair". In our view, it is a question of the context of any given work and the degree of addition or subtraction of such work to an existing system or part of a system. Where the work assists in preserving the fl4ncrioning of a system or part of a system, such work is maintenance work. Where the work is necessity to restore a system or part of a system which has ceased to function or function economically, such work is repair work. "Maintenance" and "repair" are not mutually exclusive concepts, and lack of adequate maintenance will surely produce a situation where repair becomes inevitable. In our view, the performance of adequate and timely maintenance forestalls or reduces the requirement for repair.
(emphasis added)
The Board, having found at paragraph 28 that the work at the Fearman and Stelco plants was work within the ICI sector of the construction industry and the remaining work was to be regarded as maintenance work, seems to be offering in the emphasized words in paragraph 29 a definition of maintenance and repair by which to distinguish the remaining work from work which might be captured by the word "repair" in section 1(1)(t). Since the Board ultimately found that the remaining work, which it regarded as maintenance work, was not captured by the scope clause of the provincial collective agreement, that is the construction agreement, it is reasonable to conclude that it also was not captured by section 1(l)(f). It is no less reasonable, then, to conclude that repair work defined as work "... necessary to restore a system or part of a system which has ceased to function or function economically ... is captured by the section l(1)(f) definition of construction just as certainly as it captures work …..which involves the addition to an existing facility or which will increase the designed or production capacity of an existing facility.". Those were the words which the Board used in paragraph 28 of its decision to distinguish the work it regarded as "new construction" from the rest of the work which it regarded as maintenance.
The definition of repair work as work necessary to restore a system or part of a system which has ceased to function or function economically certainly fits the work performed by Inscan at the Clarkson Refinery. Richard Ives' graphic description of the fire damage to the hydrotreater was that both stages of the unit were producing product the day before the fire and incapable of producing it the day after. It was three weeks before the second stage could produce its normal product. There is no doubt that the hydrotreater ceased entirely to operate for three weeks. The installation by Inscan of the replacement insulation on piping and equipment was part of the exercise of restoring normal function to both stages of the hydrotreater. That is work in the construction industry as defined in section l(l)(f) of the Act and clearly is work within the industrial, commercial and institutional ["ICI"] sector of the industry.
The Association is a designated employer bargaining agency under the province-wide provisions of the Act and Local 95 and the International together are a designated employee bargaining agency. By operation of section 146(2) of the Act the only agreement or arrangement which they can make respecting work in the ICI sector of the construction industry is a provincial agreement as defined in clause (e) of section 137(1) of the Act. It is undisputed that the construction agreement includes work in the ICI sector and is a provincial agreement within that definition. Therefore, it is the only collective agreement which the Association and Local 95 can have between them respecting work in the ICI sector. It follows that the maintenance agreement cannot be an agreement respecting work in the ICI sector. Thus, Inscan was bound to apply construction agreement to the work it performed at Gulf. To the extent that it failed to do so, Inscan has violated the construction (provincial) agreement between The Master Insulators' Association of Ontario Inc. and the International Association of Heat and Frost Insulators and Asbestos Workers, and International Heat and Frost Insulators and Asbestos Workers, Local 95.
In the event the Board should find Inscan's work at Gulf to be ICI construction covered by the construction agreement, counsel for Inscan argued in the alternative that Local 95 ought to be barred from claiming any damages under the construction agreement on equitable grounds of delay and estoppel.
Counsel's argument that Local 95 is estopped from claiming damages for Inscan's breach of the construction agreement, as the Board understands it, may be summarized as follows. Counsel referred the Board to two reported decisions respecting application of the concept of estoppel: New Vision Construction Limited, [1983] OLRB Rep. Mar. 428 and Losereit Sales and Services Ltd. [19831 OLRB Rep. Apr. 569. Both decisions deal with referrals of grievances under section 124 of the Act. In Losereit the Board adopted the three elements essential for the application of promissory estoppel at common law. They are (1) a finding that there has been a representation by words or conduct intended to be relied on by the party to which the representation was directed; (2) some reliance on the representation in the form of some action or inaction; and, (3) detriment resulting from reliance on the representation. The Board also adopted the proposition from arbitral jurisprudence that "acquiescence or inaction can have the effect of a 'representation’…………”. Counsel contends that there was a representation to Inscan that fire damage restoration could be performed at the wages and working conditions contained in the maintenance agreement and the representation was created by a number of factors: the existence of the maintenance agreement and its link to the General Presidents' Agreement which deals with fire restoration work; the fact that Inscan, the Association, its member contractors, Local 95 and its officials were ad idem when Inscan was on the Gulf project, that fire damage restoration work was done under the terms and conditions of the maintenance agreement; Local 95's "inaction" for more than two months during which it failed to assert a claim that the work should be done under the terms and conditions of the construction agreement; and the past practice of contractors bound to the construction and maintenance agreements doing fire damage restoration work under the terms and conditions of the maintenance agreement.
The Board does not agree with counsel that the mere existence of the maintenance agreement, whether or not linked to the Presidents' Agreement and its definition of fire restoration work contained in the extract quoted above from that agreement, is sufficient to establish the representation counsel seeks to establish without some evidence that the maintenance agreement has been applied to the work in question. Nor does the Board share counsel's view that the evidence establishes that Local 95 and its officials were ad idem with Inscan and others that fire damage restoration work was done under the terms of the maintenance agreement. Taking the evidence at its highest, it still shows the officers of Local 95 to have been uncertain about which agreement applied to the work. With respect to Local 95's failure during more than two months to assert a claim that the work should be done under the terms and conditions of the construction agreement, counsel submits that this "inaction" constitutes acquiescence in a practice. Clause 6.04 of the grievance procedure in the construction agreement gives the parties bound by it 90 days within which to refer a grievance under section 124 of the Act. In that circumstance it cannot be said that a party which asserts a claim within the time limit has acquiesced in a practice because it has used that time to decide whether it had a claim. That leaves the alleged past practice of doing fire damage repair under the terms and conditions of the maintenance agreement.
The only specific evidence before the Board of a past practice of applying maintenance terms and conditions to fire repair work is that of Hebert's with respect to the four fires at Imperial Oil Limited's Sarnia refinery. There is no evidence that Inscan previously had done such work under those terms. Beernink's evidence is limited to a general claim that fire restoration work has been performed under the maintenance agreement since the first agreement was signed in 1979. That may be so, but, if it is, the only specific evidence in support of the claim is the evidence of the four fires in Sarnia. While it might be arguable that there has been an area practice in Sarnia of performing the work on maintenance conditions, it stops well short of demonstrating anything more widespread. It may also be that there have not been many fire restoration jobs to do and that the four examples are representative of a past practice. Again, if that is the case, the Board does not have that evidence before it. The caution with which arbitrators have applied estoppel in circumstances where an established work practice forms the basis of the promise or representation places a substantial onus on the party seeking to establish the estoppel to adduce evidence which clearly establishes the practice. See Brown and Beatty, Canadian Labour Arbitration (2d ed Aurora: Canada Law Book Limited, 1984) at page 86. The evidence before the Board does not establish clearly that there is a past practice amongst contractors bound to the construction and maintenance agreements between the Association, the International and Local 95 of applying maintenance terms and conditions to fire damage repair work, or a practice amongst Toronto area contractors, or that Inscan has a practice. Therefore, in the Board's view, the facts of this case do not establish the representation essential to the application of estoppel and the doctrine is not applicable to this application.
With respect to the contention that Inscan should be relieved of any award of damages against it because of Local 95's undue delay in bringing the grievance, counsel for Inscan argues that Local 95 was clearly aware of a potential grievance against Inscan virtually from the start of its Gulf project on April 2nd, but delayed filing it until June 8th, Inscan's last day on the project. The alleged prejudice to Inscan flowing from that delay is that it was denied any chance of trying to limit its liability by seeking to re-negotiate the terms of its contract, or by employing extra insulators in order to curtail overtime. Assuming, without finding, that Inscan had no opportunity between April 2nd and June 8th to know of or evaluate whether it was facing a risk of potential liability under the construction agreement, the Board is not satisfied that the circumstances present in this case warrant mitigating the damages which otherwise might be assessed against Inscan. Whether to mitigate damages on the ground of delay is in the Board's discretion. The construction agreement, as the Board noted above in dealing with Inscan's estoppel argument, gives the parties 90 days in which to refer a grievance for final and binding arbitration under section 124 of the Act. That is a condition on which the Association, the International and Local 95 have agreed and it is binding on Inscan and Local 95, amongst others. It might be argued that, for the purposes of deciding whether delay warrants mitigation of damages, the Board is not bound by the time limit because the grievance is brought under section 124 "... [n]otwithstanding the grievance and arbitration provisions of the construction agreement. Even so, in order for the Board to be persuaded by the argument that Local 95 should be denied damages where its grievance was filed at least three weeks before the expiry of the time limit, the Board would, for example, at least want to have evidence that Local 95 had acted purposely to use the time limit in order to file the grievance after the job was finished, or had squandered the time without investigating the potential grievance, or had otherwise substantially abused the time limit to Inscan's detriment. The evidence herein does not support such conclusions. Accordingly, the Board will not mitigate for reasons of delay any damages to which Local 95 might be entitled.
In summary, for all of the foregoing reasons, the Board finds that Inscan has violated the construction agreement between the applicants and the Master Insulators' Association of Ontario Inc. in effect at the time of Inscan's project at the Clarkson Refinery of Gulf Oil Limited. The Board remains seized with respect to the amount of damages should the parties to this application be unable to settle the amount.
CONCURRING OPINION OF BOARD MEMBER I. M. STAMP;
I concur with the conclusions reached by the Board based on the evidence before it. I am concerned, however, with an aspect of delay which is not dealt with in the decision. Taggart, De Wit and Walsh all testified that they were certain from the start that the job was construction. Before Inscan had been on the job a week, they knew its insulators supplied by Local 95 were being paid maintenance terms and conditions and that KLT was paying construction terms and conditions. Their demeanor as witnesses in that respect is in stark contrast to the length of time it took for them to file the grievance. This is not by way of criticizing Local 95 for investigating the grounds for a grievance, but, if its three officials were so convinced that the work was construction, why did they not file the grievance right away and use the investigation to "prepare their case".
The concern which their conduct raises is that some ulterior motive underlays the delay. Certainly that is Inscan's perception of their conduct and conduct which allows that perception can only have a corrosive effect on the prospects for sustaining the trust and co-operation essential to an effective collective bargaining relationship.