The International Association of Bridge, Structural and Ornamental Ironworkers, Local 700 v. John Hayman & Sons Company, Limited

[1986] OLRB Rep. April 513

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.

APPEARANCES: S. B. D. Wahl, J. Harrower and Win. Howard for the applicant; Bruce Binning, James Thomson, George Hayman and John Tiefenback for the respondents.

DECISION OF THE BOARD; April 10, 1986

1. The application in Board File No. 0807-85-R is an application under sections 63 and 1(4) of the Labour Relations Act. The application in Board File No. 0808-85-M is a referral of a grievance in the construction industry for final and binding resolution pursuant to section 124 of the Act. The applicant The International Association of Bridge, Structural and Ornamental Ironworkers, Local 700 ("Local 700") seeks a declaration from the Board that there has been a sale of a business within the meaning of section 63 of the Act between the respondents John Hayman & Sons Company, Limited ("Hayman") and Ontario and King Limited. In the alternative, Local 700 seeks a declaration from the Board that Hayman and Ontario and King Limited are one employer for the purposes of the Act.

2. The parties agreed that the application in Board File No. 0808-85-M should be adjourned sine die pending disposition of the application in Board File No. 0807-85-R.

3. With respect to the application in Board File No. 0807-85-R, the parties proposed and the Board agreed that the Board should first resolve a preliminary issue of whether Local 700 has bargaining rights for ironworkers employed by Hayman on structural steel work thereby causing Hayman to be bound to the current ironworkers provincial agreement between the Ontario Erectors Association and the designated employee bargaining agency for iron-workers. This decision is restricted to that issue. Local 700 seeks to found its claim that Hayman is bound to the current ironworkers provincial agreement based on the following sequence of events: an application made by the Ontario Erectors Association ("the Erectors Association") for certification as the accredited bargaining agent for all employers who employed iron-workers represented in collective bargaining by Local 700; the subsequent issuing by the Board of a certificate of accreditation to the Erectors Association; and the later subsuming in the ironworkers provincial agreement of the bargaining rights held by the Erectors Association for employers of ironworkers represented by Local 700 and of Local 700's bargaining rights for those ironworkers, by operation of the province-wide bargaining provisions of the Act.

4. The parties agreed to the following facts in the course of dealing with the preliminary issue. Hayman was the general contractor on the construction project which gave rise to the referral in Board File No. 0808-85-M. The project involved structural steel work coming within the trade jurisdiction claimed by Local 700. Hayman subcontracted the structural steel work to Sass Manufacturing Ltd. and Sass in turn subcontracted it to Belder Steel Erectors Ltd. Neither Sass nor Belder have a collective bargaining relationship with Local 700.

At the times relevant to Local 700's claim that it holds bargaining rights with respect to iron-workers employed by Hayman, Hayman was represented in collective bargaining respecting rodmen represented by Local 700 by the London and District Construction Association ("the Construction Association"). Pursuant to that bargaining relationship, Hayman had been bound to a series of collective agreements between the Construction Association and Local 700. These included collective agreements for the term May 1, 1971 to April 3, 1983, signed March 20, 1971; May 1, 1973 to April 30, 1975, signed April 1, 1973; and, May 1, 1975 to April 30, 1977, signed May 1, 1975. The 1971-73 and 1973-75 collective agreements contained the following provision:

Article 29 - Jurisdiction

Any work undertaken by the Employer within the acknowledged jurisdiction of the Union that requires employment of other than Rodmen, such as Structural Ironworkers, Welders, Ornamental Ironworkers, Riggers and Finishers shall be employed in accordance with all the provisions of the representative Collective Agreements covering such classifications.

The Erectors Association made application on June 15, 1972, to be certified as the accredited bargaining agent for all employers who employed ironworkers (not rodmen) who were represented in collective bargaining by Local 700. By a decision which issued May 31, 1974, the Board directed at paragraph 18 that a certificate of accreditation be issued to the Erectors Association for " ... [all employers of ironworkers for whom (Local 700) has bargaining rights in the Counties of Elgin, Essex, Kent, Lambton and Middlesex in the industrial, commercial and institutional and heavy engineering sector of the construction industry], and in accordance with the provisions of section [127(2)] of the Act for such other employers for whose employees the respondent may after June 15, 1972, obtain bargaining rights through certification or voluntary recognition

5. The parties are in disagreement as to whether Article 29 - Jurisdiction as it appears in the 1971-73 and 1973-75 collective agreements creates bargaining rights respecting ironworkers employed by Hayman. The parties are content, however, to put the interpretation of article 29 aside and have the Board decide whether there is a continuum of collective bargaining relationships between Hayman, the Construction Association, the Erectors Association and Local 700 through to the current provincial agreement which has bound Hayman to it. The Board agreed to proceed in that manner and to do so the Board assumes, without finding, that the wording of article 29 creates bargaining rights with respect to ironworkers.

6. The thrust of the argument made by counsel for Local 700 is as follows. When the 1973-75 collective agreement between the Construction Association and Local 700 was signed on April 1, 1973, to be effective from May 1, 1973, Hayman became bound to the agreement, and thus by article 29. Article 29 is voluntary recognition by Hayman of Local 700 as bargaining agent for ironworkers employed by Hayman. Since the act of recognizing Local 700 occurred subsequent to June 15, 1972 when the Erectors Association application for accreditation was made, Hayman, pursuant to section 127(2) of the Act became bound by the certificate of accreditation issued to the Erectors Association May 31, 1974. By further operation of sections 128(4) and 129(2) of the Act Hayman also became bound to the collective agreement then in effect between the Ontario Erectors Association and Local 700 and, when that agreement expired in 1975, to the 1975-77 collective agreement and subsequent renewals thereof. Under the province-wide bargaining provisions of the Act, the bargaining rights held by the Erectors Association under its certificate of accreditation with respect to Hayman and other employers covered by it and Local 700's bargaining rights for the ironworkers employed by them were subsumed by the provincial bargaining designations. The Erectors Association became the designated employer bargaining agency for bargaining under the province-wide scheme for, amongst others, the employers bound by its accreditation certificate. Local 700 became part of the designated employee bargaining agency for ironworkers under the scheme. The Erectors Association and the ironworkers employee bargaining agency eventually entered into a first provincial agreement which was effective from May 1, 1978 to April 30, 1980, and have entered into subsequent renewals thereof until the current agreement which expires April 30, 1986. Local 700's bargaining rights for Hayman's ironworkers have been preserved through those collective agreements. Counsel concludes, therefore, that the bargaining rights which Local 700 acquired by Hayman' s voluntary recognition of it at the time it became bound to the 1973-75 collective agreement between the Construction Association and Local 700 survive in the current provincial agreement.

7. Counsel submits further that his thesis of the issue is strongly supported by the principles enunciated in several Board decisions, particularly Newman Bros. Limited, [1981] OLRB Rep. June 750; Culliton Brothers Limited, [1982] OLRB Rep. Mar. 357; and, Thomas Construction (Galt) Limited, Board File No. 0035-82-M, an unreported decision which issued July 9, 1982. Counsel asserts that the decision in Thomas Construction is closely analogous to the circumstances in the instant case, differing only for the fact that the trade union in Thomas Construction acquired its bargaining rights by means of a certificate issued to it by the Board instead of voluntary recognition from the employer. The bargaining rights were acquired by the trade union after a successful application for accreditation had been made by an employers' association to represent employers of employees for whom that trade union held bargaining rights. The certificate of accreditation had been issued on March 11, 1974. In 1982, when an issue arose as to whether Thomas Construction was bound to a provincial agreement to which the trade union was bound, the Board found that Thomas Construction had become bound by the certificate of accreditation and, pursuant to what is now section 127(2) of the Act by subsequent collective agreements between the Association and the trade union. The Board found further that the bargaining rights underlying those agreements eventually became subsumed in the provincial agreements under the province-wide bargaining scheme and that Thomas Construction was bound to those agreements.

8. There is little room for dispute that, if the facts establish the sequence of events described by counsel for Local 700, the bargaining rights established by Hayman's alleged voluntary recognition of Local 700 following the Erectors Association application for accreditation, would be preserved in the current ironworkers provincial agreement and Hayman would be bound by it. The linchpin of counsel's argument is that Hayman, when it became bound through its agent the Construction Association to the 1973-75 collective agreement between that Association and Local 700, voluntarily recognized Local 700 as the bargaining agent for Hayman's employees covered by that agreement. As the argument goes, those employees were its rodmen (Article 4 - Recognition) and its ironworkers (Article 29 -Jurisdiction). The 1973-75 collective agreement, however, is a renewal of the 1971-73 collective agreement which contained the same articles 4 and 29. Therefore, bargaining rights already existed in the 1971-73 collective agreement for rodmen, and, on the assumption already made that article 29 creates bargaining rights respecting ironworkers, for ironworkers as well. Those bargaining rights were continued in the 1973-75 agreement. 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] OLRB Rep. Sept. 568 at paragraph 10), or are voluntarily abandoned by the trade union. Therefore, it cannot be said that the act of Hayman becoming bound to the 1973-75 collective agreement was an act of voluntarily recognizing Local 700 as bargaining agent for Hayman's ironworkers. On the contrary, to whatever extent article 29 created any bargaining rights, the Board finds that those bargaining rights existed in the 1971-73 collective agreement and were preserved by renewal of that collective agreement in the form of the 1973-75 agreement between the Construction Association and Local 700. The 1971-73 agreement was executed March 20, 1971, to become effective on May 1, 1971. Therefore, when the application for accreditation was made on June 15, 1972, Local 700 already held bargaining rights for the ironworkers if article 29 created such rights.

9. It is useful at this point to describe briefly what the Act requires of parties and of the Board when an application is made by an employers' association for certification as an accredited bargaining agent of employers. For this purpose, the Board will refer to the current sections of the Act which, for all intents and purposes, were the same as those which were in force at the times material to the Board's decision which issued May 31, 1974 certifying the Erectors Association as an accredited employer bargaining agent. The Board must determine the appropriate unit of employers [section 126(1)] and, pursuant to section 126(2), "[the] unit of employers shall comprise all employers as defined in clause 117(c) in the geographic area and sector determined by the Board to be appropriate.". Next, because of section 127(1)(a) the Board must identify the individual employers who are going to be in the unit. The Board relies on lists of employers filed by the applicant and the respondent trade union pursuant to the Rules of Procedure under the Act governing applications for accreditation. Section 110 of the Rules requires the Board to serve the employers on those lists with notices of the application and of hearings into it. The employers so served are required by section 111 of the Rules to file with the Board information respecting, amongst other things, the bargaining rights, if any, which the respondent trade union has for employees of the employers and whether those employees were at work during the twelve months prior to the application. From the material filed, the Board ultimately makes findings respecting the number of employers in the unit and whether the applicant has the requisite membership support as defined by clauses (a) and (b) of section 127(2) of the Act. If the Board is satisfied that the applicant has sufficient support, it issues a certificate of accreditation. That certificate covers two groups of employers: first, those employers identified as being in the unit on the making of the application and, second, those employers for whom the trade union acquires bargaining rights subsequent to the date of application. A certificate of accreditation describes the unit and lists by names the employers which the Board has found to be included in it as of the date of application.

10. In the instant case, the way in which the lists were finally determined is described in detail at paragraph 6 of the Board's decision of May 31, 1974. It is clear that the parties had a full opportunity to participate in the procedure. In paragraph 14, the Board lists the names of employers to be included in the bargaining unit. Those are the same names which appear in the certificate of accreditation. Hayman' s name does not appear in either listing.

11. It is reasonable to conclude, therefore, that either Hayman was not listed by the Erectors Association or Local 700 as an employer for whose ironworker employees Local 700 held bargaining rights as at June 15, 1972, or that the Board dealt with the claim of bargaining rights and concluded that Local 700 did not hold them. Since the decision is silent respecting the latter possibility, the first conclusion is the more likely one. In any event, since Hayman is named neither in the decision nor the certificate of accreditation, it was not included in the unit found by the Board to be appropriate. Nor was Hayman captured by the "basket clause" of the unit described at paragraph 18 of the decision in the phrase " ..., and in accordance with the provisions of section [127(2)] of the Act for such other employers for whose employees the respondent may after June 15, 1972 obtain bargaining rights through certification or voluntary recognition ...", because, if article 29 does constitute a voluntary recognition, Local 700 acquired its bargaining rights prior to the application date.

12. Accordingly, the Board finds that John Hayman & Sons Company, Limited was not bound to the current provincial agreement between the Ontario Erectors Association and the Ironworkers Employee Bargaining Agency as a consequence of the certificate of accreditation which was issued to the Ontario Erectors Association on May 31, 1984.

13. If the applicant wishes to pursue further the application in Board File No. 0807-85-R, it should make its request to the Registrar to have the matter listed for continuation of hearing. Having regard to the parties' agreement to adjourn sine die the grievance referral in Board File No. 0808-85-M, that application is adjourned sine die for a period not exceeding one year. Unless within that time the parties request the Board to proceed with the matter, it will be terminated.