[1988] OLRB Rep. May 523
1590-87-G United Brotherhood of Carpenters' & Joiners of America, Local Union 27, Applicant v. R. Reusse Co. Ltd., Respondent
BEFORE: S. A. Tacon, Vice-Chair, and Board Members J. A. Rundle and H. Peacock.
APPEARANCES: David McKee and Tony Bucci for the applicant; Peter J. Thorup, Karen Reynolds and Rob Reusse for the respondent.
DECISION OF THE BOARD; May 25, 1988
1This is a referral of a grievance to arbitration in which the applicant asserts that the respondent is bound to the Carpenters' provincial collective agreement and, in violation of that agreement, assigned work to persons other than members of the applicant. The respondent denies being bound to the Carpenters' provincial agreement.
2The Board heard testimony from four witnesses and a number of exhibits were tendered in evidence. In addition, the parties reached a partial agreement on facts. The Board has assessed the credibility of the witnesses according to the usual criteria and, having weighed and assessed that testimony in the context of the relative credibility of the witnesses, the documentary evidence and what is reasonably probable in the circumstances, makes the following findings of fact.
3The respondent was incorporated in 1962 and has always been controlled by R. Reusse. For several years previously, Reusse had operated as a home improvement contractor. In that year, the respondent commenced acting as a general contractor, often having its own carpenters and labourers and contracting out mechanical or electrical work. Over the years, the respondent has operated as a general contractor on numerous projects in the industrial, commercial and institutional (ICI) and residential sectors. A list of the projects was filed in evidence giving details as to sector, location, type of project etc. The Board is satisfied that significant carpentry work was involved in those projects. The Board is also satisfied that the respondent at all times carried out those activities openly by, for example, erecting conspicuous signage on the sites, bidding for projects and seeking sub-contractors through the relevant publications (e.g., The Daily Commercial News).
4In 1965, the respondent commenced work on a public school construction project in Whitby (Fairman Public School). Reusse was approached by representatives of the United Brotherhood of Carpenters and Joiners of America, Local 397, and signed a Working Agreement with the Joint Building and Construction Trades Council of Oshawa, Port Hope, Cobourg and vicinity. In the following year, during construction of another school project (Fairport Beach Public School) in Pickering, Reusse was again approached by union representatives for the United Brotherhood of Carpenters and Joiners of America and entered into a Working Agreement with the Toronto Building and Construction Trades Council.
5In the years since completion of those two projects, the Board is satisfied that the respondent continued to operate openly without abiding by the terms of the Working Agreements or collective agreement throughout the Toronto area, Local 397's jurisdiction and elsewhere in Ontario, including Sudbury, Barrie, Collingwood, Kapuskasing, Waterloo, in both the ICI and residential sectors. The projects range in size up to major developments such as LuCliffe Place on Bay Street in Toronto (1974 to 1976). The most recent project (and the one which prompted this grievance) is as an owner/builder of a nine-storey commercial office complex, the Parkway Corporate Centre, in Markham commenced in the spring of 1987 and scheduled for completion in approximately April 1988. Again, signage was conspicuously displayed on site, bidding and sub-contracting was openly conducted through the daily commercial news.
6At no time in the over twenty-years from completion of the Fairport Beach Public School and Fairman Public School projects to date of the instance grievance was the respondent contacted by the union to negotiate renewals of the Working Agreements or collective agreement, nor were copies of renewal agreements forwarded to the respondent. It was not disputed that the respondent was never a member of any employers' organization for any labour relations or collective bargaining purposes and was not listed in the Ontario Labour Relations Board Carpenters' Accreditation Order (Board File No. 1322-71-R). In 1972, the United Brotherhood of Carpenters and Joiners of America filed a certification application for Board Area 11 in respect of a construction project of the respondent on a Senior Citizens Centre in Peterborough. The applicant subsequently sought to withdraw that application which was ultimately dismissed by the Board given the stage in the proceedings at which the request was made (Board File No. 2862-72-R, unreported decision, January 15, 1973). It should be noted that that application lists the respondent's address as Suite 215, 120 Eglinton Avenue East, Toronto.
7Q. Begg, currently Business Manager for the Lake Ontario District Council which includes Local 397 (Oshawa), 1450 (Peterborough), 1071 (Cobourg) and 572 (Belleville), testified that records are kept of all companies with which the union has agreements. The District Council was formed in 1971, although the Belleville local joined in 1974. He further testified that the agreement signed by the respondent (Exhibit 2) was in the standard form negotiated with the local Builders Exchange in Oshawa. Renewal agreements, he stated, were first negotiated with the Oshawa Builders Exchange and then the union would approach non-members of the Exchange to sign that collective agreement. If a contractor was no longer working in the area, the approach would be made on the firm's return. Begg also testified that, despite the wording of the agreements, the union did not consider those agreements as applicable to the residential sector but, rather, signed separate residential agreements with contractors building projects in that sector.
8A letter dated March 16, 1971 over Reusse's signature was filed with the Board by the union. That letter gives notice of termination of the working agreement with the Toronto Building and Construction Trades Council dated May 20, 1966. Reusse identified his signature but testified that he had no recollection of signing the letter. Reusse also stated that he would have terminated the agreement with Local 397 had he thought his obligations under the 1965 working agreement continued past the Fairman Public School project. Reusse could not recall sending a similar termination letter to Local 397, just as he could not recall the May 20, 1966 document, but testified that the company records for that period had long since been destroyed, i.e., files were destroyed after ten years.
9The Board next sets out the submissions of counsel in a highly abbreviated form. It should be noted that, in its factual findings, the Board has not dealt with the conversations between Reusse and the various union representatives at the Fairman Public School and Fairport Beach Public School sites which resulted in the signing of the Working Agreements and collective agreement. In the Board's view, the testimony of those conversation was understandably vague after the passage of over twenty years. Moreover, in this casey those imprecise recollections are outweighed by the probative value of the written documents, even if the Board were prepared to consider the assertion by respondent's counsel that, notwithstanding the express wording of the documents, the respondent was only bound for those two school projects. That is, the Board has proceeded on the basis that the respondent was bound to the agreements in respect of all construction in those geographic areas, as stated in the relevant scope clauses. Accordingly, the Board has not set out counsels' submissions dealing with the effect of those initial conversations.
10Counsel for the applicant reviewed the evidence in support of his assertion that Local 397 had never abandoned its bargaining rights. Although counsel acknowledged that the bargaining rights created by virtue of the Working Agreement with the Toronto and District Building Trades Council had been terminated, he submitted that there had been no evidence of abandonment of Local 397's bargaining rights, and with the advent of province-wide bargaining, the respondent became bound to the applicant province-wide in 1978. Specifically, it was contended that, having not abandoned its rights prior to province-wide bargaining, Local 397 was incapable of abandoning those rights thereafter. Counsel argued the appropriate test for abandonment was not merely the passage of time or lack of contact with an employer who is no longer active in the geographical area but conduct or a knowing acquiescence in walking away from its rights. In this regard, counsel stressed that, following the Fairman Public School project, the respondent had completed only four projects in Local 397's area, namely, the Bowmanville Municipal Garage, the Newcastle Labour Building and two senior citizens housing projects. With respect to the latter housing projects, it was submitted that union practice was to negotiate separate residential agreements. As to the first two projects, counsel contended both were relatively small and not so notorious that the union "ought" to have known of their existence. With respect to the respondent's assertion that the lengthy delay amounted to a denial of natural justice, counsel submitted that there was no evidence to suggest the applicant had deliberately waited until 1987 to file the instant grievance so as to hamper the respondent's evidentiary case. Cases referred to in support include: M. J. Guthrie Construction Limited, [1984] OLRB Rep. Jan. 50; 1. S. Mechanical ,[1979] OLRB Rep. Feb. 110; Able Construction (Kitchener), [1963] OLRB Rep. Sept. 317; Inducon Construction (Northern) Inc., [1982] OLRB Rep. Mar. 390; Culliton Brothers Limited, [1982] OLRB Rep. Mar. 357; John Miller & Sons Ltd., [1979] OLRB Rep. June 540; Barkman Builders Ltd., [1984J OLRB Rep. Apr. 565; City Plumbing (Kitchener) Limited, [1985] OLRB Rep. Nov. 1566; York-Finch General Hospital, [1987] OLRB Rep. Apr. 641; Pinkerton's of Canada Limited, [1986] OLRB Rep. June 818; Vincent Spirito & Sons Ltd., [1986] OLRB Rep. Feb. 288; Eagle Mountain Contracting Limited, [1981] OLRB Rep. Apr. 442; Losereit Sales and Services Ltd., [1983] OLRB Rep. Apr. 569; 291360 Ontario Limited c.o.b. as Lorne's Electric, [1987] OLRB Rep. Nov. 1405; Re Carpenters' District Council of Lake Ontario and Hugh Murray (1974) Ltd. et al., Re Labourers' International Union of North America, Local 527 et al. and John Entwistle Construction Ltd. et al. (1980) 1980 CanLII 1826 (ON HCJ), 33 O.R. (2d) 670 (Ont. Div. Ct.).
11Counsel for the respondent also reviewed the evidence but in support of his contention that the lengthy period of inactivity did amount to abandonment in the circumstances. In particular, counsel stressed the failure of Local 397 to seek to renew the collective agreement in over twenty years or to indicate to the respondent its practice of excluding the residential construction from the apparent scope of the working agreement. Moreover, it was argued that Local 397's conduct and the projects carried out in that area could not be considered in isolation from events in the Toronto area including the numerous projects carried out there by the respondent, the May 16, 1971 termination letter and the omission of the respondent from the 1972 accreditation order. The Board does not consider it necessary to set out counsel's alternative argument that, notwithstanding Lorne's Electric, supra, bargaining rights may be abandoned by an affiliated bargaining agent so as to bind the employee bargaining agent following the institution of province-wide bargaining, given its disposition of this application. Nor need the Board comment on representations by the respondent's counsel that the written reply submitted by counsel for the applicant (a procedure agreed to by the parties) fell outside the proper scope for reply. Finally, counsel stressed that the passage of time in filing the grievance, of itself, should lead to dismissal as the failure of Local 397 to pursue its bargaining rights has denied the respondent a fair opportunity to properly defend against the claim. In this assertion, counsel emphasized the fading recollections as to conversations over twenty years previously and the destruction of the respondent's records for the relevant period. Case cited include: Clifford Masonry Limited, [1981] OLRB Rep. Nov. 1561; Hugh Murray Limited, [1979] OLRB Rep. July 664; John Entwistle Construction Limited, [1979] OLRB Rep. Mar. 211; John Eniwis tIe Construction Limited, [1979] OLRB Rep. Nov. 1096; The Belleville and District Builders' Exchange, [1963] OLRB Rep. May 114; Catalytic Enterprises Limited, [1974] OLRB Rep. Apr. 264; Cooksville Steel Limited, [1974] OLRB Rep. June 365; Mattagami Construction Company Limited, [1965] OLRB Rep. Mar. 648; Elgin Construction C'o. Limited, [1969] OLRB Rep. Apr. 134; Ontario Precast Concrete Manufacturers' Association, [1978] OLRB Rep. Mar. 284; Valentine Enterprises Contracting v. The General Contractors' section of the Toronto Construction Association et al. (1980), 80 CLLC ¶14,042 (Ont. Div. Ct.); Re Carpenters' District Council of Lake Ontario and Hugh Murray (1974) Ltd. et al., Re Labourers' International Union of North America, Local 527 et al and John Entwistle Construction Ltd. et al. (1980) 1980 CanLII 1826 (ON HCJ), 33 O.R. (2d) 670 (Ont. Div. Ct.).
12The Board has reached a decision in this case on the basis that Local 397 had abandoned its bargaining rights prior to the advent of province-wide collective bargaining but that the working agreements signed in 1965 and 1966 were not restricted to the two projects in question. Thus, the Board need not deal with the arguments concerning misrepresentation or estoppel and the assertion by respondent's counsel that an affiliated bargaining agent could be found, by its conduct, to have abandoned bargaining rights following the introduction of province-wide collective bargaining and that such abandonment could bind the employee bargaining agency. The Board is not thereby implying any disagreement with the principles dealt with in such cases as Lorne's Electric, supra; Culliton Brothers Limited, supra; Eagle Mountain Contracting Limited, supra; Losereit Sales and Services Ltd., supra; Vincent Spirito & Sons Ltd., supra; City Plumbing (Kitchener) Limited, supra, just that those decisions are not relevant to the Board's disposition of the instant application.
13It was not disputed that the question of abandonment is a matter of fact to be resolved by the Board in the circumstances of each case: J. S. Mechanical, supra; Inducon Construction (Northern) Inc., supra; John Entwistle Construction Limited, supra; Re Carpenters' District Council of Lake Ontario and Hugh Murray (1974) et al, Re Labourers' International Union of North America, Local 527 et al. and John Entwistle Construction Ltd. et al., supra; Twin City Plumbing and Heating, [1982] OLRB Rep. Apr. 631. In making that determination, the Board evaluates the conduct of the union in the context of the duration of the period of inactivity, whether the employer continued to operate in the area, whether the terms and conditions of employment have been changed by the employer without objection from the union, whether the union has sought to negotiate or administer existing collective agreements and any extenuating circumstances which might account for an apparent failure to assert bargaining rights. For example, as a general rule, the Board has regard to a second automatic renewal of a collective agreement but thereafter the onus is on the union to satisfy the Board that its bargaining rights have not been abandoned by showing its interest in maintaining those rights through contact with the employer party to the agreement: The Belleville and District Builders' Exchange, supra; Cooksville Steel Limited, supra; Pinkerton's of Canada Limited, supra. Absent evidence the union actively pursued its bargaining rights, the Board has held the union has "slept on those rights" and must be taken to have abandoned those rights: Elgin Construction, supra; Mattagami Construction, supra; Catalytic Enterprises, supra; John Entwistle Construction Limited, supra; York Finch General Hospital, supra. The Board's jurisprudence also accepts the notion that a union is not expected to seek actively to pursue its bargaining rights during periods when the employer ceased operating within the geographic scope of the collective agreement (see Able Construction (Kitchener), supra; Inducon Construction (Northern) Inc., supra) particularly where the union did seek to assert those rights at the first opportunity upon the employer's return to the area: John Miller & Sons Ltd., supra.
14The Board must next evaluate the facts of the instant case in the context of the above noted principles. Counsel for the union asserts that only two projects (the Bowmanville Municipal Garage and the Newcastle Lumber Building) should "count" against Local 397; he disregards the senior citizens apartments projects in Whitby and Oshawa as "residential". Thus, he asserts, the union could not have known of the employer's activity in the relevant geographic jurisdiction and, therefore, could not be said to have abandoned its bargaining rights prior to the institution of province-wide bargaining. The Board disagrees.
15What is most striking about this application is that, having attained bargaining rights in 1965, Local 397 did nothing for almost 15 years (just to the advent of province-wide bargaining) to negotiate renewals of the collective agreement, administer those "existing" agreements or otherwise contact the respondent. Given such an extended passage of time, the Board must carefully scrutinize the reasons proffered by the union as explanation for its inactivity in order to avoid the reasonable inference that the union has abandoned its bargaining rights. Even at its narrowest, the Board is not satisfied that the union exercised due diligence in respect of the Bowmanville Municipal Garage and the Newcastle Lumber Building Projects. Both sites involve significant carpentry work. The Bowmanville project was readily visible from the highway and followed closely upon the Fairman Public School Project. When Local 397's conduct is considered in the other circumstances, the only reasonable conclusion is that the union ought to have known the employer was active (Clifford Masonry Limited, supra; Twin City Plumbing, supra; cf. Barkman Builders Ltd., supra). For example, while the union indicated that it regarded "residential" construction as outside the apparent scope of its collective agreement with the respondent, at no time was that ever communicated to the company nor did the local approach Reusse to request he sign such residential agreements in respect of the senior citizen's complexes he built in Whitby and Oshawa. That is, at the very least, those apartment complexes were a clear indication the respondent was continuing to operate in the area yet Local 397 did not contact Reusse to negotiate renewals of the first collective agreement. As noted earlier, it was the Local's practice where, as here, the company was not a member of the local builder's exchange, to first negotiate an agreement with the exchange and then contact the other firms for which it held bargaining rights to obtain their signatures. The local did not contact the respondent to obtain such renewals. This is not an instance where the respondent moved its operations outside the scope of its bargaining commitments. Rather, the respondent openly continued operating in Local 397's geographic jurisdiction and the surrounding areas as well as elsewhere in the province.
16In addition, it must be emphasized that the respondent's operations had attracted the attention of the other locals of the union. Bargaining rights were obtained for the Toronto area in 1966 with the building of the Fairport Beach Public School project but, despite extensive construction activity thereafter, including several sizeable projects in 1970's, the Toronto Building and Construction Trades Council, as well, failed thereafter to contact Reusse. The applicant acknowledges that the Toronto area bargaining rights were extinguished given the notice of termination letter of May 16, 1971, without any response by the union and that the respondent was omitted from the Board's accreditation order in 1972. Moreover, in 1972, a certification application by the United Brotherhood of Carpenters and Joiners of America in respect of Board Area 11 (Peterborough) was dismissed. In short, this was a firm which carried on its construction activities openly throughout the geographic jurisdiction of Local 397 and the surrounding areas through extensive signage, publication of its successful bids and tendering for sub-contractors through the relevant commercial publications and such like. Indeed, as exhibit 4 outlines, the respondent had been involved in roughly 39 construction projects by the late 1970's.
17The Board does not consider the absence of a letter to Local 397 terminating the collective agreement, like that sent to the Toronto Building and Construction Trades Council, as helpful to the applicant's case. In this regard, the Board notes the respondent's testimony that its records were routinely destroyed after a period of ten years. The Board is not prepared to infer from the failure of Local 397 to find such a letter in its records that a letter never existed or, more to the point, that the absence of such a document assists local 397 in satisfying the Board that it has not "slept on its bargaining rights" over the years.
18Thus, the Board finds, on the totality of the evidence, that Local 397's voluntarily abandoned its bargaining rights prior to the introduction of province-wide bargaining. Consequently, the respondent was not brought within the ambit of that province-wide collective bargaining scheme so as to sustain this application by Local 27 of the United Brotherhood of Carpenters and Joiners of America in respect of the construction project which is the subject of the instant grievance.
19For the foregoing reasons, then, this application is dismissed.