[1987] OLRB Rep. November 1423
1836-87-G International Union of Operating Engineers, Local 793, Applicant v. Runnymede Development Corporation Ltd., Respondent
BEFORE: Judith McCormack, Vice-Chair, and Board Members J. Sarra and J. F. Davidson.
DECISION OF THE BOARD; November 5, 1987
This is a referral of the grievance to arbitration pursuant to section 124 of the Labour Relations Act.
The parties were in agreement that the applicant and the respondent were bound to a collective agreement effective November 1, 1986 and running until April 30, 1988. That collective agreement contains the following clause:
2.7 The Employer shall engage only those sub-contractors (or equipment from these sub-contractors) who are in contractual relations with the Union to perform work covered in this Agreement. This provision becomes effective on August 1,1987.
The last sentence has been added in handwriting and initialled by the parties. It was apparent from the evidence that this clause represents a compromise between the immediate prohibition preferred by the applicant and an even longer postponement of the operation of the clause which the respondent desired.
The grievance concerns the sub-contracting of the earthworks at the respondent's residential construction project at Applecroft Village South, which includes four distinct areas. In May of 1987, the respondent sub-contracted the earthworks for phases 1, 2 and 3 of the project to Valleau Construction Inc. or Valleau Construction Limited ("Valleau"). Valleau commenced work in the middle of May, although a written contract in this regard between the respondent and Valleau was not executed until sometime in August of 1987. Valleau and the respondent had agreed that the work was to be done within a certain time period, and in fact the work was completed on phases 1, 2 and 3 by mid-July, 1987. While work was proceeding on phases 1, 2 and 3, the respondent was attempting to obtain the appropriate engineering, design and municipal approvals for phase 4. During this time, there were some discussions between Valleau and the respondent with respect to Valleau doing the earthworks for phase 4 as well. However, work on phase 4 itself (as distinct from work on phases 1, 2 and 3 which incidentally affected the phase 4 area) did not really commence until mid-August of 1987.
The dispute between the parties centered on whether article 2.7 prohibited the use of contractors described as of August 1,1987, regardless of whether the sub-contracting arrangements were entered into prior to August 1, 1987, or whether it merely restricted the respondent from entering into new sub-contracting arrangements after that date. In addition, there was a dispute with respect to whether it could be said that the work with respect to phase 4 was sub-contracted before or after August 1, 1987.
The Board delivered the following oral decision at the hearing:
After carefully considering the parties' evidence and submissions, we conclude that the sub-contracting of the work with respect to phase 4 of the Applecroft Village South project to Valleau was a violation of article 2.7 of the collective agreement between the applicant and the respondent. It is evident on the material before us that article 2.7 was originally intended to prohibit entirely the use of sub-contractors who were not in contractual relations with the applicant. As is apparent on the face of the collective agreement and from the evidence of Mr. Greenbaum, the respondent was successful in getting agreement on a grace period so that article 2.7 would become effective only as of August 1, 1987. In other words, the prohibition on the use of the sub-contractors in question was postponed until that date. But as of that date, we find, the intention of the article was that all non-union contracting work as described would cease. We find some confirmation for this interpretation by the respondent's conduct in arranging for Valleau's work on phases 1, 2 and 3 to be completed prior to August 1, 1987. While the language of article 2.7 is somewhat ambiguous in isolation, when reviewed in the context of both construction industry labour relations and the circumstances of this case, we find the applicant's interpretation to be more cogent than the respondent's. In arriving at this conclusion, we are cognizant of the purpose that this kind of clause serves in this sector in terms of protecting the job security of employees.
In any event, it is our view that the arrangements made with respect to the phase 4 work prior to August 1, 1987 were so tenuous and conditional that it could not be said on any party's interpretation of article 2.7 that Valleau had been engaged by the respondent prior to August 1st. For all these reasons we find that the respondent violated article 2.7 by sub-contracting phase 4 to Valleau.
We remain seized with respect to remedy. We note that in arriving at our decision, we accepted the evidence of Wayne Valleau that all work by Valleau on phases 1, 2 and 3 was completed before August 1, 1987.