Ontario Labour Relations Board

[1987] OLRB Rep. November 1405

0977-87-G International Brotherhood of Electrical Workers' Local 586 and Local 594, Applicants v. 291360 Ontario Limited c.o.b. as Lorne's Electric, Respondent

BEFORE: Robert D. Howe, Vice-Chair, and Board Members R. M. Sloan and J. Sarra.

APPEARANCES: Bernard Fishbein, Maurice Walsh and Thomas Moffatt for the applicant; James W. Touhey and Lorne Bretzlaff for the respondent.

DECISION OF THE BOARD; November 27, 1987

1. This is a referral of a grievance to the Board pursuant to section 124 of the Labour Relations Act. The grievance, which was delivered to the respondent (also referred to in this deci­sion as the "Company") on or about May 12, 1987, and filed with the Board on July 9, 1987, alleges a number of violations of the May 28, 1986 to April 30, 1988 provincial agreement between the Electrical Trade Bargaining Agency of the Electrical Contractors Association of Ontario (the "E.T.B.A."), and the International Brotherhood of Electrical Workers (the "International") and the I.B.E.W. Construction Council of Ontario (the "Council").

2. This referral was originally scheduled to be heard on July 23, 1987. However, in a deci­sion dated July 21, 1987, another panel of the Board adjourned the application sine die (for a period not exceeding one year) on the agreement of the parties. Counsel for the applicants (also referred to compendiously in this decision as the "Union") subsequently requested that the matter be rescheduled for hearing. Accordingly, the matter was listed for hearing on October 27, 1987, before the present panel.

3. In a letter dated September 24, 1987 to the Board's Registrar, counsel for the respon­dent wrote, in part, as follows:

I wish to advise you that I have been retained to act on behalf of the Respondent in respect of the Hearing which is to take place before the Board on October 27, 1987 at 9:30 a.m.

I also wish to advise you on behalf of the Respondent that it will be its position at the Hearing that the Applicant has, in fact, abandoned its right to bargain for the employees of the Respon­dent because of an extremely lengthy period of inactivity and, further, the Respondent will be seeking a declaration that the Applicant no longer represents the employees of the respondent.

At the commencement of the hearing on October 27, 1987, counsel for the applicants and counsel for the respondent advised the Board that they were in agreement that the abandonment issue should be determined by the Board as a preliminary matter, and that in the event that the Board found there to have been no abandonment, the merits of the grievance should be dealt with at another hearing. Accordingly, this decision will be confined to that preliminary issue.

4. Although the issue of abandonment was raised by the respondent, the parties were in agreement that it was appropriate for the Union to be the first party to call evidence concerning that issue. Respondent's counsel told the Board during his opening statement that the Company had paid the expenses of its second most senior employee, Mr. Eastman, whom he intended to call as a witness in order to establish that, prior to the grievance which gave rise to these proceedings, there had been no contact between the Union and any of the employees of the respondent since April of 1982, when Mr. Eastman commenced employment with the Company. After the Union had called two witnesses (Thomas Moffatt and Maurice Walsh) and closed its case (in chief) con­cerning the preliminary issue, counsel for the respondent advised the Board that his client would not be calling any evidence. We then heard Union counsel's argument with respect to the prelimi­nary issue, followed by Company counsel's argument and reply argument by Union counsel. After Union counsel had completed his reply argument, Company counsel told the Board that Mr. East­man had advised him that he (Mr. Eastman) had a petition signed by seventeen employees of the Company. However, Company counsel also indicated that he was not acting for Mr. Eastman. After Union counsel objected to that belated reference to a petition, neither Company counsel nor Mr. Eastman sought to have the case reopened for the purpose of hearing evidence regarding the petition. Had such a request been made, it would have been rejected on the basis that argument had already been completed regarding the preliminary matter, and on the further basis that a peti­tion, although potentially relevant in other proceedings (such as an application for termination of bargaining rights under section 57 of the Act), would be of no relevance in determining the issue of abandonment, which is a question of fact to be determined on the basis of the actions, and the inaction, of the Union, not on the basis of the wishes of the employees with respect to representa­tion (or continued representation) by the Union.

5. Local 586 was certified by the Board, differently constituted, on January 5,1977 (in File No. 1645-76-R) for the following bargaining unit:

all electricians in the employ of the respondent in the County of Renfrew, save and except non-working foremen and persons above the rank of non-working foreman.

(For ease of reference, the persons within the scope of that bargaining unit are referred to in this decision as the "employees".) Shortly after receiving its certificate, Local 586 served the respon­dent with notice to bargain and arranged for a bargaining meeting to be held at the office of James W. Touhey, counsel for the respondent. At that meeting, Thomas Moffatt, who has been the Busi­ness Manager of Local 586 since 1975 (and had been its Assistant Business Manager for seven years before that), advised the respondent that Local 586 would not attempt to enter into a collec­tive agreement with the Company until it had organized some other shops in the area. There is no evidence before the Board with respect to whether or not any other shops were ever in fact organ­ized. However, it is clear from the totality of the evidence that neither Mr. Moffatt nor any other Union official ever told the respondent that the Union would abandon its bargaining rights if it was unable to organize other shops in the area.

6. On May 24, 1977, Mr. Touhey wrote to Mr. Moffatt as follows, on behalf of the Com­pany:

I have recently been advised by Mr. Lorne Bretzlaff that at the present time he oniy has two employees on his payroll. He is desirous of increasing their hourly rate to $8.00 and also of increasing their vacation pay from 6% to 8%. Would you please advise me whether or not it will be in order for Mr. Breizlaff to do the aforementioned.

On June 9, 1977, Mr. Moffatt telephoned Mr. Touhey and consented to those changes in terms and conditions of employment (pursuant to what is now section 79(1) of the Act). That consent was recorded in the following letter, which was sent by Mr. Touhey to Mr. Bretzlaff (a principal of the respondent), with a copy to Mr. Moffatt:

I this day received a telephone call from Mr. Thomas K. Moffatt of the International Brother­hood of Electrical Workers and he advised me that it would be in order for you to increase the hourly rate of your employees to $8.00 and also increase their vacation pay from six to eight per cent. Hence you may proceed to put into effect these increases as soon as you wish.

7. Since 1970, the territorial jurisdiction of Local 586 had included Board Area 14 (the County of Renfrew) and Board Area 15 (the Regional Municipality of Ottawa-Carleton and the United Counties of Prescott and Russell). However, conflict had arisen between the Renfrew County unit and the Ottawa-Carleton unit, as a result of which representatives of Local 586 approached the International in late 1977 and (in the words of Mr. Moffatt) "requested a divorce". Jurisdiction over Renfrew County was ultimately transferred from Local 586 to Local 594 in June of 1978. However, Mr. Moffatt and other officials of Local 586 knew for some time before then that a transfer was likely to occur. Thus, they "set aside" their bargaining and organizing activities in respect of Renfrew County, as they anticipated that the area was soon going to be transferred to another local.

8. In June of 1978, the International chartered Local 594 and established Renfrew County as its territorial jurisdiction. At that time Local 594 had only twenty-five members. (It currently has about sixty-three.) Maurice Walsh, who has been the (part-time) Business Manager of Local 594 since its inception, was aware that the Local had bargaining rights for employees of the respon­dent by virtue of the aforementioned certificate. On January 19, 1979, he made a (long distance) telephone call to the Company's office and sought to speak with Mr. Bretzlaff, with a view to arranging to meet with him for the purpose of negotiating a collective agreement. Since he was unable to speak with Mr. Bretzlaff, Mr. Walsh left a message for Mr. Bretzlaff to call him. How­ever, his call was not returned. Mr. Walsh visited the respondent's office on August 30, 1979, in a further unsuccessful attempt to speak with Mr. Bretzlaff. It was Mr. Walsh's recollection that he either left copies of sample collective agreements with a secretary in the respondent's office that day, or mailed them to the respondent around that time. On April 29, 1980, he again attended at the respondent's office in an attempt to meet with Mr. Bretzlaff for the purpose of negotiating a collective agreement. In his testimony before the Board, Mr. Walsh said that he did not remember whether or not he met with Mr. Bretzlaff on that occasion. He also told the Board, "I went to the [respondent's] shop three times. Out of the three times, I spoke to Mr. Bretzlaff once." The con­tents of his conversation with Mr. Bretzlaff on that occasion are not disclosed by the evidence. Mr. Walsh made no further efforts to contact the respondent until March 25, 1985, when he once again telephoned the respondent's office, attempted unsuccessfully to speak with Mr. Bretzlaff, and left a message for Mr. Bretzlaff to call him. That call was also not returned. Prior to the grievance which gave rise to these proceedings, Mr. Walsh had never been in contact with any of the employ­ees of the respondent.

9. In 1977, the amendments contained in The Labour Relations Amendment Act, 1977, S.O. 1977, c. 31, introduced concepts of province-wide bargaining and province-wide collective agreements between employee bargaining agencies and employer bargaining agencies in the indus­trial, commercial and institutional sector of the construction industry (the "ICI sector"). Pursuant to what is now section 139(1)(a) of the Act (then section 127(1)(a)), on December 12, 1977 Dr. Bette Stephenson, who was then the Minister of Labour (the "Minister"), designated the Interna­tional and the Council as the employee bargaining agency to represent in bargaining in the ICI sec­tor of the construction industry all journeymen and apprentice electricians and linemen repre­sented by the International or by various locals (including Local 586). (For ease of exposition, the International and the Council are also referred to compendiously in this decision as the "Employee Bargaining Agency".) On the same day, the Minister also designated the E.T.B.A. as the employer bargaining agency, pursuant to what is now section 139(1)(b) of the Act. (For ease of exposition, the E.T.B.A. is also referred to in this decision as the "Employer Bargaining Agen­cy".) Negotiations between the Employer Bargaining Agency and the Employee Bargaining Agency (pursuant to the provide-wide bargaining provisions of the Act) culminated in a provincial agreement which became effective on May 5, 1978, and expired on April 30, 1980. Since that time, provincial agreements have been negotiated by those bargaining agencies every two years (in accordance with section 146(3) of the Act, which requires that every provincial agreement "pro­vide for expiry of the agreement on the 30th day of April calculated biennially from the 30th day of April, 1978").

10. On May 1, 1980, the scope of the Employee Bargaining Agency's bargaining rights was expanded by the "deemed recognition" provision contained in what is now section 137(2) of the Act (enacted by The Labour Relations Amendment Act, 1979 (No. 2), S.O. 1979, c. 113, s. 1), which provides:

Where an employer is represented by a designated or accredited employer bargaining agency, the employer shall be deemed to have recognized all of the affiliated bargaining agents repre­sented by a designated or certified employee bargaining agency that bargains with the employer bargaining agency as the bargaining agents for the purpose of collective bargaining in their respective geographic jurisdictions in respect of the employees of the employer employed in the industrial, commercial or institutional sector of the construction industry referred to in clause 117(e), except those employees for whom a trade union other than one of the affiliated bargain­ing agents holds bargaining rights.

11. Neither Local 586 nor Local 594 filed a grievance or took any other steps prior to March of 1987 to assert that the respondent was bound by the provincial agreement. Mr. Moffatt and Mr. Walsh were both uncertain about how the Union's bargaining rights in respect of the respondent's employees were affected by the province-wide bargaining provisions of the Act. However, neither of them sought any legal advice concerning that matter until March of 1987, although they were both aware that the respondent was openly carrying on business as an electrical contractor within their respective territorial jurisdictions during the intervening ten-year period, without employing any Union members, remitting any Union dues, or otherwise complying with the provisions of the provincial agreement. As indicated above, Mr. Walsh had no contact with any of the employees of the respondent at any time prior to 1987. Mr. Moffatt's sole contact with employees of the respon­dent between 1978 and 1987 occurred in 1985, when he spoke with Mr. Eastman (who had once been a member of the Union) and another employee of the respondent, both of whom told Mr. Moffatt that they did not want to have anything to do with the Union.

12. Counsel for the applicants submitted that there was no abandonment of bargaining rights in respect of the respondent's employees during the period between January 5, 1977 (the date of certification) and December 12, 1977 (the date of the aforementioned designations which brought within the purview of province-wide bargaining the Employee Bargaining Agency and all employers for whose employees it or its affiliated bargaining agents (such as Local 586) had bar­gaining rights in the ICI sector). It was his position that this period constituted the only "window of opportunity" during which the bargaining rights could have been abandoned. In this regard, he referred the Board to Culliton Brothers Limited, [1982] OLRB Rep. March 357, and a number of other authorities.

13. Counsel for the respondent submitted that the Union had abandoned its bargaining rights. It was his position that abandonment could and did occur after the province-wide bargaining provisions of the Act came into force. He also submitted, in the alternative, that the Union had abandoned its bargaining right prior to that time.

14. The concept of abandonment is well established in the Board's jurisprudence. See, for example, Hugh Murray Limited, [1979] OLRB Rep. July 664, in which the Board wrote, in part, as follows:

10. At the hearing counsel for the union contended that the Board had no jurisdiction to con­clude that the union had lost its bargaining rights through abandonment. With this we are unable to agree. Although unions generally obtain and lose bargaining rights through the certifi­cation and termination procedures set forth in the Act, the Board has long recognized that bar­gaining rights may also be acquired through the voluntary recognition of a union by an employ­er, and lost through the voluntary abandonment of those rights by a trade union. Apparently the first case where the Board concluded that a union had abandoned its bargaining rights was Guelph Cartage Co. 55 CLLC ¶18,018. In that case a union which had been certified in August 1948 did not serve a notice to bargain on the employer until July of 1955. When the matter came before the Board, the Board ruled that since the union had "slept on its rights" for seven years it could not now call upon the employer to enter into negotiations. A summary of the type of sit­uations where the Board has applied the principle of abandonment since that first case is set out as follows in the J.S. Mechanical case, [1979] OLRB Rep. Feb. 110:

'Over the last 20 years the principle of abandonment has been deeply entrenched in the Board's jurisprudence. Once a union has obtained bargaining rights either through certification or volun­tary recognition it is expected that it will actively promote those rights. If a union declines to pursue bargaining rights it may lose them through disuse. Whether a union has abandoned its bargaining rights is a matter which must be assessed on the facts of each individual case, but once the Board is satisfied that a union has failed to preserve its rights, the union may no longer rely on them to support the appointment of a Conciliation Officer under section 15 of the Act (see Cooksville Sheet Metal, [1974] OLRB Rep. June 365; John Entwistle Construction Limited, [1972] OLRB Rep. Oct. 919; Elgin Construction Co. Limited, [19691 OLRB Rep. April 134; Guelph Cartage Company, 55 CLLC ¶18,018). As well, if a union has abandoned its bargaining rights it may be precluded from relying on them either to bar another agreement that renews itself automatically (see Catalytic Enterprises Limited, [19741 OLRB Rep. April 264; O.& W. Electronics Limited, [1970] OLRB Rep. Jan. 1213; Architectural Acoustics & Drywall, [1970] OLRB Rep. Feb. 1408; N. W. Clayton Sheetmetal and Heating Co. Ltd., [1967] OLRB Rep. April 69), or to require an employer to bargain by giving notice to bargain under such an agree­ment (see Rainee Manufacturing Products Limited, [1967] OLRB Rep. Nov. 796). A union’s abandonment might also obviate the necessity for the Board to determine the merits of a termi­nation application (see Graphic Centre (Ontario) Inc., [1977] OLRB Rep. June 379; Northern Engineers & Supply Co. Limited, [1968] OLRB Rep. Oct. 731; Barrie Tanning Limited, [1966] OLRB Rep. May 128)."

An application for judicial review of that (and another) decision was dismissed in Re Carpenters' District Council and Hugh Murray (1974) Ltd. (1980), 1980 CanLII 1826 (ON HCJ), 33 O.R. (2d) 670, in which the Divisional Court confirmed that it is within the Board's jurisdiction to determine whether or not a trade union has abandoned bargaining rights which it obtained by means of certification (or voluntary recogni­tion).

15. Counsel for the respondent sought to rely upon Hugh Murray as an example of bargain­ing rights being abandoned by a trade union in the context of the province-wide bargaining provi­sions of the Act. However, it is clear from the Board's decision in that case that the Board found that the abandonment had occurred prior to the onset of province-wide bargaining; in paragraph 9 f that decision, the Board wrote as follows:

When all of the evidence is considered we are satisfied that although the Act continued the union s bargaining rights and allowed it to serve notice to bargain on Hugh Murray (1974) Lim­ited, for reasons of its own the union chose not to do so, but rather at all times acted as though it did not have bargaining rights for the company's employees. On these facts we can only con­clude that the union voluntarily abandoned, or gave up, its bargaining rights, and that it did so prior to the designation of the employee and employer bargaining agencies by the Minister of Labour in March of 1978.

16. In J.S. Mechanical, [1979] OLRB Rep. Feb. 110, the Board listed some of the factors which it has generally found to be of assistance in deciding whether or not an abandonment of bar­gaining rights has occurred:

5. In assessing the bargaining relationship between the union and the employer to determine whether or not a union has abandoned its bargaining rights, the Board considers various factors. Among other possible indicators, the Board looks to the length of the union's inactivity, whether it has made attempts to negotiate or renew a collective agreement, whether the union has sought to administer the collective agreement through the grievance and arbitration provi­sions in the collective agreement, whether terms and conditions of employment have been changed by the employer without objection from the union as well as whether there are any extenuating circumstances to explain an apparent failure to assert bargaining rights.

17. It is clear from the facts set forth above that Local 586 did not abandon its bargaining rights in respect of the respondent's employees between January 5, 1977 (the date on which it was certified) and December 12, 1977 (the date on which the aforementioned designations came into effect). As noted above, shortly after receiving its certificate, Local 586 served the respondent with notice to bargain, and arranged for a bargaining meeting to be held. At that meeting, Mr. Moffatt advised the Company that Local 586 would not attempt to enter into a collective agreement with the respondent until it had organized some other shops in the area. As is evident from Mr. Touh­ey's letter of May 24, 1977 to Mr. Moffatt, and his letter of June 9, 1977 to Mr. Bretzlaff, the Com­pany recognized that the Union continued to have bargaining rights for the respondent's employ­ees following that meeting. Consequently, it sought and obtained (through its counsel) the Union's consent to the changes in terms and conditions of employment described in that correspondence. The Minister made the aforementioned designations approximately six months later. The fact that Local 586 did not seek to bargain with the respondent during that six-month period did not consti­tute an abandonment of its bargaining rights in the circumstances of this case. As indicated above, Mr. Moffatt had expressly advised the Company earlier that year that Local 586 would not enter into a collective agreement with the respondent until it had organized some other shops in the area. It may reasonably be inferred that this arrangement, under which the Union was voluntarily holding its bargaining rights in abeyance pending further organizational activities, was mutually satisfactory to the Union and the Company.

18. For the foregoing reasons, we find that Local 586 continued to hold bargaining rights in respect of the respondent's employees on December 12, 1977, when the Minister made the afore­mentioned designations. The effect of those designations was to take bargaining in respect of the ICI sector out of the hands of Local 586 and the Company, and to put it into the hands of the Employee Bargaining Agency and the Employer Bargaining Agency; see sections 142 and 143 of the Act, which provide as follows:

142. Where an employee bargaining agency has been designated under section 139 or certified under section 140 to represent a provincial unit of affiliated bargaining agents, all rights, duties and obligations under this Act of the affiliated bargaining agents for which it bargains shall vest in the employee bargaining agency, but only for the purpose of conducting bargaining and, sub­ject to the ratification procedures of the employee bargaining agency, concluding a provincial agreement.

143. Where an employer bargaining agency has been designated under section 139 or accredited under section 141 to represent a provincial unit of employers,

(a) all rights, duties and obligations under this Act of employers for which it bargains shall vest in the employer bargaining agency, but only for the pur­pose of conducting bargaining and concluding a provincial agreement; and

(b) an accreditation heretofore made under section 127 of an employers' organization as bargaining agent of the employers in the industrial, commercial and institutional sector of the construction industry referred to in clause 117(e) represented or to be represented by the employer bargaining agency is null and void from the time of such designation under section 139 or accreditation under section 141.

Collective bargaining between those designated entities culminated in the aforementioned provincial agreement, which was entered into on May 5, 1978, and remained in effect until April 30, 1980.

19. There is no evidence before the Board regarding whether or not Mr. Bretzlaff (or any other member of the respondent's management) was aware that the Company was legally bound by the provincial agreement, by virtue of what is now section 147(2) of the Act (then section [34(2)), which provides:

A provincial agreement is, subject to and for the purposes of this Act, binding upon the employer bargaining agency, the employers represented by the employer bargaining agency, the employee bargaining agency, the affiliated bargaining agents represented by the employee bar­gaining agency, the employees represented by the affiliated bargaining agents and employed in the industrial, commercial and institutional sector of the construction industry referred to in clause 117(e), and upon such employers, affiliated bargaining agents and employees as may be subsequently bound by the said agreement.

The evidence does, however, clearly establish that neither Mr. Moffatt nor Mr. Walsh were aware 1 hat the Company was bound by the provincial agreement, and that neither they nor any other Union official took any steps (prior to 1987) to require the Company to comply with it. Indeed, after Local 594 was given territorial jurisdiction over Renfrew County in June of 1978, Mr. Walsh made a number of attempts (as described above) to contact Mr. Bretzlaff with a view to negotiat­ing a collective agreement. Although the province-wide bargaining provisions of the Act did not (and do not) preclude local collective bargaining in respect of other sectors, to the extent that Mr. Valsh was attempting to bargain with the respondent for a collective agreement in respect of the ICI sector, his actions were prohibited by what is now section 146(2) of the Act (then section 33(2)), which provides:

On and after the 30th day of April, 1978 and subject to sections 139 and 145, no person, employee, trade union, council of trade unions, affiliated bargaining agent, employee bargain­ing agency, employer, employers' organization, group of employers' organizations or employer bargaining agency shall bargain for, attempt to bargain for, or conclude any collective agree­ment or other arrangement affecting employees represented by affiliated bargaining agents other than a provincial agreement as contemplated by subsection (1), and any collective agree­ment or other arrangement that does not comply with subsection (1) is null and void.

20. In the spring of 1978, the Union's bargaining rights in respect of the respondent's employees in the ICI sector were being actively exercised by the Employee Bargaining Agency which, by virtue of the combined effect of the province-wide bargaining provisions of the Act and the Minister's employee bargaining agency designation dated December 12, 1977, had become their bargaining agent in that sector for the purpose of conducting collective bargaining and con­cluding a provincial agreement. The Employee Bargaining Agency's bargaining efforts culminated in the May 8, 1978 to April 30, 1980 provincial agreement, which was negotiated on behalf of the respondent (and numerous other employers) by the Employer Bargaining Agency. Thereafter, the Employee Bargaining Agency continued to exercise its bargaining rights in respect of the respon­dent's employees in the ICI sector every two years, in accordance with the province-wide bargain­ing provisions of the Act. The exercise of those bargaining rights gave rise to four successive two-year provincial agreements following the initial provincial agreement, the most recent of which is the aforementioned May 28, 1986 to April 30, 1988 provincial agreement.

21. Having regard to all of the circumstances, we find as a fact that there has been no aban­donment of the ICI sector bargaining rights granted to Local 586 by the Board's certificate of Janu­ary 5, 1977, and subsequently vested in the Employee Bargaining Agency (for the purpose of con­ducting bargaining and concluding a provincial agreement) by the combined legal effect of section 142 of the Act and the aforementioned employee bargaining agency designation dated December 12, 1977. In reaching this conclusion, we are not unmindful of the fact that the Union has not, prior to 1987, sought to enforce or administer the provincial agreement vis-a-vis the respondent. As indicated in J.S. Mechanical, supra, one of the factors which the Board has generally consid­ered in cases involving allegations of abandonment of bargaining rights is "whether the union has sought to administer the collective agreement through the grievance and arbitration provisions in the collective agreement". Where a trade union that has years earlier negotiated a collective agree­ment, which purports to have automatically renewed itself without any further bargaining (by vir­tue of a renewal provision), seeks to belatedly negotiate a new collective agreement or to raise the old collective agreement as a bar to a second trade union's application for certification, the fact that the first trade union has not for a number of years sought to enforce or administer the collec­tive agreement by means of its grievance and arbitration provisions is clearly a pertinent factor to be considered in determining whether that trade union has in fact abandoned its bargaining rights. However, that factor is of little or no assistance in determining whether an abandonment of bar­gaining rights has occurred in the context of ICI sector province-wide bargaining, where the party which by law holds the bargaining rights for purposes of conducting collective bargaining and entering into a provincial agreement (i.e., the employee bargaining agency) is not the party which administers the provincial agreement at the local level. The Act's bifurcation of bargaining and administration of the provincial agreement renders an affiliated bargaining agent's failure to administer the provincial agreement vis-a-vis an employer of little or no consequence in determin­ing whether the employee bargaining agency has abandoned its bargaining rights in respect of the employees of that employer. Even if the two-year period between rounds of province-wide bar­gaining were a sufficiently lengthy interval to warrant the drawing of an inference that a particular affiliated bargaining agent had abandoned the provincial agreement vis-a-vis a particular employer in its geographic jurisdiction (which, in our view, it is not), that would not preclude other affiliated bargaining agents from enforcing the provincial agreement vis-a-vis that employer in their respec­tive geographic areas. Moreover, when the next round of province-wide bargaining occurred, the employee bargaining agency would be able to rely upon the "deemed recognition" provisions set forth in section 137(2) of the Act to assert that the employer was, for the purposes of the new round of bargaining, deemed to have recognized all of the affiliated bargaining agents represented by it, including that particular affiliated bargaining agent.

22. An argument similar in substance to that made by Mr. Touhey on behalf of the Com­pany was considered and rejected in Culliton Brothers Limited, [1982] OLRB Rep. March 357, a case involving facts which are not materially different from the facts of the instant case. In doing so, the Board wrote, in part, as follows:

17. The argument that bargaining rights have been abandoned requires consideration, bearing in mind the system of centralized collective bargaining that has been in place, initially, under a sys­tem of accreditation and subsequently under a system of provincial collective agreements which are negotiated between an employer bargaining agency and an employee bargaining agency....

The respondent states that it is arguing the abandonment of bargaining rights. In the Board's jurisprudence the abandonment of bargaining rights has invariably been raised either where there is clearly no collective agreement or where there is a dispute as to whether a collective agreement is in effect through a process whereby a collective agreement has renewed itself due to a failure to give timely notice under the terms of a collective agreement. In subsequent para­graphs, the Board will trace the continuation of the bargaining relationship and the series of col­lective agreements which came into effect and which were binding on the applicant and the res­pondent.

18. While the respondent states that it is arguing the abandonment of bargaining rights, in our view, such an argument is not tenable. The Board characterizes the argument of the respondent as the abandonment of collective agreements, which unknown to the applicant, the respondent, Local 47, and the Ontario Sheet Metal and Air Handling] Group were applicable to them at various times and places. These collective agreements came into effect and were applicable to employers and trade unions beyond the immediate parties to the collective agreements by virtue of provisions of a public statute known as the Labour Relations Act. The application of these collective agreements under the provisions of the Labour Relations Act to the applicant, the res­pondent, Local 47 and the Group arose independently of their awareness by virtue of the opera­tion of law. In these circumstances, the Board is not prepared to find that there has been an abandonment of bargaining rights or collective agreements.

We respectfully agree with that reasoning, and find it to be equally applicable in the circumstances of the instant case.

23. For the foregoing reasons, we find that the Union has not abandoned its bargaining tights in respect of the respondent's employees in the ICI sector.

24. The matter is referred to the Registrar to be listed for hearing on the merits, in consultation with the parties.

25. This panel of the Board is not seized.