Ontario Labour Relations Board
[1988] OLRB Rep. March 279
0974-87-M Ellis-Don Limited, Employer v. United Brotherhood of Carpenters and Joiners of America, Local 1946, Trade Union
Before: Owen V. Gray, Vice-Chair, and Board Members J. A. Rundle and C. A. Ballentine.
Appearances: Bruce Binning and Leonard Finegold for the employer; Douglas J. Wray, Frank Manoni and Magnus Graham for the trade union.
Decision of the Board; March 30, 1988
1This is a reference from the Minister under section 107 of the Labour Relations Act ("the Act") in which he asks "whether or not the trade union holds bargaining rights for the employer for carpentry in all sectors other than the ICI sector in Board Area 3, and following there from, whether or not the trade union's request for conciliation is proper."
2On May 11, 1987, the Minister received a request from the trade union for the appointment of a conciliation officer. The request described the nature of the employer's business affected by the application as: "all construction work related to carpentry in all sectors, other than the industrial, commercial and institutional sector, of the construction industry." It stated that notice had been given to bargain for the renewal of a collective agreement dated September 8, 1982 by which the trade union claimed it and the employer had been bound. A conciliation officer was appointed on May 19, 1987. On May 25, 1987, the Minister received a letter from the employer in which it objected to the appointment and asserted that it had no contractual agreement with the union "in the residential sector" and that "this union has no bargaining rights." After inviting and receiving the union's comments on the employer's objection, the Deputy Minister, acting in the name of the Minister, revoked the appointment of the conciliation officer and, on July 8, 1987, referred the matter to the Board under section 107. We heard the parties' evidence and argument with respect to this reference on September 29, 1987 and January 18, 1988 and received certain further written submissions in mid February, 1988, as a result of which a hearing scheduled for February 15, 1988 was cancelled.
3It is common ground that the trade union and the employer were bound by a collective agreement dated July 26, 1965 between the General Contractors' Section of the London Builders' Exchange (which was referred to in that agreement as "the Employer") and the Western Ontario District Council of the United Brotherhood of Carpenters and Joiners of America (which was referred to in that agreement as "the Union"). Article 5 of that agreement (hereafter referred to as "the 1965 agreement") provided that:
ARTICLE 5- RECOGNITION:
The Employer, for itself and its members, recognizes the Union as sole Bargaining Agent for all Employees performing work coming within the acknowledged jurisdiction of the Union and similarly the Union recognizes the Employer as sole Bargaining Agent for members of the Employers organization,
It is acknowledged that the General Contractors' Section of the London Builders' Exchange was then an employer organization within the meaning of the Act and that Ellis-Don Limited was a member of that organization for whom it had authority to enter into this agreement. It appears from the 1965 agreement that the Western Ontario District Council ("the Council") consisted of three locals of the United Brotherhood of Carpenters and Joiners of America: Locals 1946, 2222 and 2451. Article 2 of the Appendix to that agreement provided that "the area covered by this Agreement is the six counties of Oxford, Perth, Huron, Middlesex, Bruce and Elgin" which collectively constitute Board Area 3. Article 8(a) of the Appendix describes the Counties of Huron, Perth and Bruce as "the area of jurisdiction covered by Locals Nos. 2222 and 2451", from which we conclude that the Counties of Oxford, Middlesex and Elgin comprised the area of jurisdiction of Local 1946 under that agreement.
4The 1965 agreement was in effect from July 26, 1985 to April 30, 1968. During the period May 1, 1968 to April 30, 1971, the employer and trade union were bound by the Carpenters' Appendix to a multi-trade agreement between the London & District Construction Association and the London Building and Construction Trades Council. The terms of that agreement were extended to April 29, 1972, with certain amendments, by an agreement dated August 12, 1971 between the General Contractor and Carpentry Section of the London & District Construction Association ("the Association") and the Western Ontario District Council of the United Brotherhood of Carpenters and Joiners of America, AFL-CIO-CLC, Locals 1946, 2222 and 2451 ("the Council"). The Association and the Council then entered into a collective agreement covering the period May 1, 1972 to April 30, 1973. That agreement was extended, with certain amendments, to April 30, 1975. The Association and the Council then entered into a further collective agreement covering the period May 1, 1975 to April 30, 1977. That agreement was extended to April 30, 1978 by a Memorandum of Agreement dated April 29, 1977. It is common ground that the trade union and the employer were bound by all of these agreements. While the language of those agreements differs from that of the 1965 agreement, it is not suggested that the trade union's bargaining rights under the 1965 agreement were modified or qualified by any provision of any of the agreements between 1968 and 1978.
5On October 27, 1977, the Labour Relations Act was amended to provide for province-wide bargaining in the industrial, commercial and institutional ("ICI") sector of the construction industry, in accordance with provisions which (with certain subsequent amendments) now appear in sections 137 to 151 of the present Act. On March 3,1978, pursuant to what was then clause 127(l)(b) of the Act (now clause 139(1)(b)), the Minister of Labour designated an employer bargaining agency ("the Carpenters Employer Bargaining Agency") consisting of the Acoustical Association of Ontario, Caulking Contractors Association of Ontario, Labour Relations Bureau of Ontario General Contractors Association and Resilient Flooring Contractors Association of Canada, to represent in bargaining all employers whose employees are represented by various "carpenters" affiliated bargaining agents, including the Western Ontario District Council and Local 1946. By virtue of what was then section 131 (now section 143) of the Act, all rights, duties and obligations under the Act of employers for which it was to bargain vested in that employer bargaining agency, "but only for the purpose of conducting bargaining and concluding a provincial agreement." "Provincial agreement" was defined in clause 125(e) (now clause 137(1)(e)) as an agreement respecting the terms or conditions of employment, etc., of "employees represented by the affiliated bargaining agents and employed in the industrial, commercial and institutional sector of the construction industry referred to in clause (e) of section 106 [now clause 117(e)]" (our emphasis), as well as their employers and the affiliated bargaining agents themselves. Also on March 3, 1978, pursuant to clause 127(1)(a) (now clause 139(1)(a)) of the Act, the Minister of Labour designated the United Brotherhood of Carpenters and Joiners of America and the Ontario Provincial Council of the United Brotherhood of Carpenters and Joiners of America as the employee bargaining agency ("the Carpenters Employee Bargaining Agency") to represent in bargaining certain affiliated bargaining agents, including the aforesaid Council and Local 1946. Under section 130 (now section 142) of the Act this designation vested in the employee bargaining agency all rights, duties and obligations under the Act of the affiliated bargaining agents for which it was to bargain, "but only for the purpose of conducting bargaining and ... concluding a provincial agreement."
6The new province-wide ICI sector bargaining provisions of the Labour Relations Act came into effect on April 30, 1978. Some time thereafter, the Carpenters Employer Bargaining Agency and the Carpenters Employee Bargaining Agency concluded a collective agreement in which the former is described as "the EBA" and the latter is described as "the Union." Articles 3.01, 3.02 and 3.03 of that agreement provided as follows:
ARTICLE 3- RECOGNITION
3.01 The EBA recognizes the Union as the sole and exclusive bargaining agent for all journeymen and apprentices, other than millwrights, engaged in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario for whom the Union has bargaining rights.
3.02 The Union recognizes the EBA as the sole and exclusive bargaining agent for all employers whose employees are represented by the Union and for whom the Union has bargaining rights who are engaged in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario.
3.03 Except in the geographic area of Local Union 1669, Thunder Bay, this Agreement shall also apply to the sectors covered under the collective agreements which were in force in the industrial, commercial and institutional sector immediately prior to the effective date and application of this Agreement provided that the employer may become a signatory to the provincial Heavy Construction Agreement entered into by the United Brotherhood of Carpenters and Joiners of America and the Heavy Construction Association of Ontario, to a Local Union or District Council residential agreement, or to any maintenance agreement that may be negotiated between the parties to this Agreement.
That agreement ("the first provincial agreement") was in effect from May 1, 1978 to April 30, 1980. The language of Article 3.03 of the first provincial agreement did not appear in the next (or any subsequent) provincial agreement concluded between the Carpenters Employer Bargaining Agency and the Carpenters Employee Bargaining Agency.
7On May 19, 1970, certain persons signed a "Residential Agreement" styled as being between the London and District Construction Association and the London Building and Construction Trades Council, concerning employment of tradesmen in construction of residential buildings. This agreement was to come into effect only if all relevant unions agreed to it. The Western Ontario District Council did with respect to carpenters, but the unions representing some other trades did not. Accordingly, this 1970 residential agreement never came into effect as between the employer and the union.
8In 1979, the union party to these proceedings, Local 1946, entered into a collective agreement styled as being with "the General Contractor and Carpentry Section of the London & District Construction for whom proxies are held" (emphasis added), covering "all construction carpenters, apprentices and working foremen for whom the union has bargaining rights engaged in on-site construction in the residential sector in the Counties of Oxford, Middlesex and Elgin." The term of that agreement was from May 1, 1979 to April 30, 1980. It was subsequently extended to April 30, 1982, and again to April 30, 1984, with changes in the wage rates. It is this agreement, with its extensions, on which the union initially relied in its request for appointment of conciliation officer. The employer, however, takes the position that the words "for whom proxies are held" appended to the name of the employer party in the style of that agreement were intended to mean that an employer would only be covered by that agreement if it had given a proxy to the General Contractor and Carpentry Contractor Section of the London & District Construction Association signifying its willingness to be bound by that agreement. The union does not dispute that interpretation, nor does it dispute the employer's assertion that it never provided the required proxy. It concedes that the employer was not bound by the 1979 residential agreement or any of its successors.
9John W. Tiefenback is the General Manager and Director of Industrial Relations for the London & District Construction Association. He has held that position since 1966. He says that the 1965 agreement and the subsequent agreements referred to in paragraph 4 of this decision only covered what is now known as the industrial, commercial and institutional sector of the construction industry. He bases that view on the fact that the contractors who dealt with the Council through the Association only performed ICI work during the period in question, and on his belief that that was the work about which the Association was negotiating with the Council when they entered into those agreements. He acknowledges that the Association had authority to bargain on behalf of the employer in making those agreements, and that that authority was not expressly limited to any particular sector of the construction industry. He says he did not understand that any of the Carpenters' unions had bargaining rights in the residential sector for any of the members of the Association when the Association negotiated the 1971 Residential Agreement referred to in paragraph 8 above, nor when the Association negotiated the series of residential agreements referred to in paragraph 9. Apart from their involvement in negotiating those agreements, he does not ascribe to the Council or to Local 1946 any behaviour on which he claims to base his belief that neither Local 1946 nor the other members of the Council held bargaining rights with respect to employees of Association members working in the residential sector or, indeed, in any sector outside the industrial, commercial and institutional sector.
10The theory of the employer's case is that:
The union never had bargaining rights for employees of the employer outside the ICI sector.
If the union did have bargaining rights for employees of the employer outside the ICI sector, those rights were abandoned when, or after, it was agreed that Article 3.03 of the first provincial agreement would be omitted from the subsequent provincial agreement.
If the union did and still does have bargaining rights with respect to employees of the employer outside the ICI sector, the last agreement which addressed those rights would have been the first provincial agreement and, as a conciliation officer was appointed in 1980 with respect to the negotiation of the renewal of that agreement, the Minister has no power to make a further appointment in that regard.
11The trade union's bargaining rights under the 1965 agreement were not expressly limited to any particular sector of the construction industry. On their face, they unambiguously cover the employment of carpenters and carpenters' apprentices engaged in work within the work jurisdiction of the union in the geographic area to which the agreement applied. The negotiation by the Council and Local 1946 of the "Residential Agreements" referred to in paragraphs 7 and 8 above is not inconsistent with the proposition that the language of the 1965 agreement meant what it appears to say. Subject to sections 15 and 68 and subsection 52(3) of the Labour Relations Act, a union and employer can consolidate or divide bargaining units of employees of the employer for whom the trade union is the exclusive bargaining agent. A construction trade union which holds bargaining rights for persons employed by an employer in all sectors can seek to negotiate a separate collective agreement covering employees of that employer in a particular sector of the construction industry without its being suggested that the union has thereby acknowledged it has no existing bargaining rights in that sector. Thus, the evidence with respect to the residential agreements does not reveal a latent ambiguity in the language of the 1965 collective agreement, nor does any of the other evidence of Mr. Tiefenback. We conclude that the trade union members of the Council had bargaining rights for any and all carpenters or carpenters' apprentices whom the employer might employ from time to time in Board Area 3, not just those employed in the ICI sector of the construction industry or on projects similar to those in which the employer was ordinarily engaged in 1965. Having regard to the language of the 1965 agreement and to what is now subsection 51(4) of the Labour Relations Act, we conclude that in 1965 Local 1946 had bargaining rights for all carpenters and carpenters' apprentices employed by the employer in the Counties of Oxford, Middlesex and Elgin. That disposes of the first of the three propositions on which the employer relies.
12The employer's other propositions depend, in part, on the assertion that the union's bargaining rights with respect to carpenters and carpenters' apprentices employed by the employer outside the ICI sector of the construction industry were dealt with during negotiations for the first and second provincial agreements. Those were negotiations between an employer bargaining agency and an employee bargaining agency. The only statutory bargaining authority those agencies had was with respect to employment in the ICI sector. Any authority to bargain with respect to rights outside the ICI sector would have to have come from something other than the Minister's designation - some action by the affected employers and trade unions conferring actual or ostensible authority to bargain outside the statutory mandate. There is no evidence before us that the employer, or anyone authorized to do so on its behalf, ever took any action which would have conferred on the Carpenters Employer Bargaining Agency actual or ostensible authority to deal with any matter other than the provincial agreement contemplated by the province-wide bargaining provisions of the Labour Relations Act. We note that counsel for the employer sought and was granted an adjournment so that he could introduce such evidence, but did not do so when our hearing resumed.
13Although he initially said he would, counsel for the employer did not argue that the omission from the second provincial agreement of the language of article 3.03 of the first provincial agreement itself amounted to or reflected an abandonment of the union's non-ICI bargaining rights for employees of the employer. He argued, however, that that event together with the failure thereafter to "take steps to protect those bargaining rights" amounted to an abandonment of those bargaining rights. As we understand the material put before us, the omission in the 1980-82 provincial agreement of language similar to article 3.03 of the first provincial agreement followed from the two parties' having acknowledged, at least in the end, that the employer bargaining agency was not then authorized to deal with matters beyond the scope of its statutory authority. Counsel for the employer concedes that the deletion of Article 3.03 did not reflect an intention on this union's part to abandon the bargaining rights in issue here. While the union did not press the employer to negotiate a collective agreement with respect to non-ICI work for some years thereafter, it is common ground that the employer did not engage in any such work in the area covered by the union's bargaining rights until the fall of 1986. It is apparent that the union acted promptly once that occurred.
14The question whether a trade union has abandoned bargaining rights with respect to a unit of employees is a question of fact. The date of expiry of the last collective agreement to cover that unit is one consideration in addressing that question. The union did give notice to bargain on February 8, 1978 under the then collective agreement between the Association and the Council. That notice was not limited to the ICI sector. Both parties agree that notice brought the then subsisting agreement to an end at the conclusion of its term with respect to all sectors. It does not matter to our determination of the question of abandonment whether the last agreement to cover carpenters employed by the employer outside the ICI sector was the agreement which expired in 1978 or, as counsel for the employer argues, the first provincial agreement which expired in 1980. Whenever the period began during which the union thereafter allegedly failed to "take steps to protect" its non-ICI bargaining rights, there was no employment to bargain about until the fall of 1986. Accordingly, the fact that the union did not seek to bargain before then does not logically support an inference that it had abandoned the right to do so. (See Inducon Construction (Northern) Inc., [1982] OLRB Rep. March 390 and Barkmar Builders Ltd., [1984] OLRB Rep. Apr. 565.) We do not find that the union abandoned the bargaining rights in question here.
15Finally, there is the question whether either the 1978 or the 1980 appointment of a conciliation officer precludes the Minister's now making another appointment otherwise than under sub-section 16(4) of the Act, which requires a joint request of the parties. A prior appointment could only stand in the way if it had been made with respect to an ultimately unsuccessful attempt by or on behalf of this employer and this union to make a collective agreement with respect to employees of the employer working otherwise than in the ICI sector of the construction industry.
16The only information we have about the appointment of a conciliation officer in 1978 is a copy of the Request For Appointment of Conciliation Officer which was made by the Carpenters Employer Bargaining Agency on or about May 15, 1978. That Request named "Ontario Provincial Council of the United Brotherhood of Carpenters and Joiners of America, United Brotherhood of Carpenters and Joiners of America" as the Trade Union party to the dispute in respect of which the appointment was requested. Paragraph 1(c) of the request described the "specific nature of employer's business affected by this application" as "industrial, commercial and institutional construction." All of the paragraphs of the standard form which address the origin of bargaining rights and particulars of the last expired collective agreement are crossed out. Express reference is made in paragraph 6 of the Request to the designation orders of March 3, 1978. Sub-paragraph 4(1) of the Request indicates that the (only) pertinent notice to bargain was dated February 1, 1978. We do not have before us copies of any of the correspondence in which the Minister or his delegate would have engaged following receipt of this Request.
17With respect to negotiations for the 1980-82 provincial agreement, it was again the Carpenters Employer Bargaining Agency which, on March 28, 1980, filed a Request for Appointment of Conciliation Officer. From the way the Request was filled in, it appears to be limited to the ICI sector bargaining for which the Carpenters Employer Bargaining Agency had statutory authority as a result of the Minister's designations. For example, the request is not accompanied by the list of employers or any of the other information contemplated by Note 2 to the form on which the Request is made. That Note provides:
(2) If a council of trade unions or an employers' organization is involved, the names and addresses of the unions and of their official representatives and a copy of the list of employers as submitted by the employers' organization at the start of negotiations, giving names and addresses of the individual employers, must be given and the list must be appended to this form.
The Carpenters Employer Bargaining Agency made reference to this omission in paragraph 6 of the Request:
In regard to NOTES AND COMMENTS, paragraph (2), it is our submission that this does not apply to the Provincial Designation provisions and where all correspondence between the parties is limited to the addresses given in 1(a) and 1(f).
This certainly leaves the impression that the bargaining in question is only the bargaining which results from the "Provincial Designation provisions", which would be bargaining with respect only to the ICI sector. This seems to have been the understanding of those who dealt with the Request on the Minister's behalf. The caption on the Deputy Minister's letter of March 31, 1980 acknowledging receipt of that Request set out the names of the constituent elements of the employer and employee bargaining agencies and included the following words in parentheses: "journeymen and apprentices, other than millwrights, engaged in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario" (our emphasis). A similar notation appeared in the caption to the Deputy Minister's letter to the Carpenters Employer Bargaining Agency of May 9, 1980, informing it that the Minister had decided not to appoint a Board of Conciliation "in reference to the dispute between the above-mentioned employer and trade union.
18On the evidence before us, we are unable to conclude that either the appointment of conciliation officer in 1978 or the appointment in 1980 was with reference to any bargaining other than the ICI sector bargaining in which the employer and employee bargaining agencies had statutory authority to engage. With respect to the 1978 appointment, there is no evidence either of a request with respect to other than ICI bargaining or that the Minister had notice, before making any appointment, that the bargaining agencies had any bargaining authority other than that conferred on them by statute as a result of the Minister's designation orders. As for the 1980 appointment, it is clear from the correspondence which issued from the Deputy Minister (as delegate of the Minister) that the bargaining with respect to which the appointment was made was ICI bargaining. Whether the last agreement covering non-ICI work expired in 1978 or 1980, there has been no subsequent appointment of a conciliation officer with respect to non-ICI bargaining. The employer's third argument therefore fails.
19In the result, we find that the trade union is the exclusive bargaining agent for carpenters and carpenters' apprentices employed by the employer in sectors other than the ICI sector in the Counties of Oxford, Middlesex and Elgin. We also find that the Minister has the authority to appoint a conciliation officer to confer with the trade union and employer and endeavour to effect a collective agreement covering such employees.