Ontario Council of the International Brotherhood of Painters and Allied Trades v. Harbridge & Cross Limited, 1988 CanLII 3760

[1988] OLRB Rep. April 391

0277-87-G Ontario Council of the International Brotherhood of Painters and Allied Trades, Applicant v. Harbridge & Cross Limited, Respondent v. Toronto Construction Association, Intervener

BEFORE: Ken Petryshen, Vice-Chair, and Board Members D. A. MacDonald and J. Kennedy.

APPEARANCES: A. M. Minsky, T. Michael and A. Colafranceschi for the applicant; Bruce Binning for the respondent; Bruce Binning and Brian Foote for the intervener.

DECISION OF THE BOARD; April 14, 1988

1. This is a referral of a grievance to the Board pursuant to section 124 of the Labour Relations Act.

2. At the commencement of the hearing, the parties filed with the Board an agreed statement of facts and a number of documents which were entered and marked as exhibits on consent. Neither party called any oral evidence. The agreed statement of facts reads as follows:

OLRB File No. 0277-87-G

BEFORE THE ONTARIO LABOUR RELATIONS BOARD

B E T W E E N:

ONTARIO COUNCIL OF THE INTERNATIONAL BROTHERHOOD OF PAINTERS AND ALLIED TRADES

Applicant

• and -

HARBRIDGE & CROSS LIMITED

Respondent

AGREED STATEMENT OF FACTS

The parties agree on the following facts for the arbitration hearing in this matter:

1. The Respondent and The Toronto Building and Construction Trades Council ("the Toronto B.T.C.") duly entered into a Working Agreement on July 10th, 1967 ("the Working Agreement"). A copy of the Working Agreement will be filed as an exhibit at the arbitration hearing.

2. The Toronto B.T.C. is a council of trade unions chartered in 1943 by the Building and Construction Trades Department of the AFL-CIO ("the Department"). On July 1st, 1979, the Department chartered the Toronto-Central Ontario Building and Construction Trades Council ("the Toronto-Central Ontario B.T.C.") and assigned to it the jurisdiction of a number of existing building trades councils, including the Toronto B.T.C. The Toronto Central-Ontario B.T.C. includes amongst its members all the trade unions that formerly belonged to the Toronto B.T.C. and stands in the same relation to the Respondent as did the Toronto B.T.C. prior to July 1st, 1979.

3. At all times material to these proceedings, including on July 10th, 1967, the Painters' District Council 46, which is affiliated with the Applicant Ontario Council of the International Brotherhood of Painters and Allied Trades ("the Ontario Council of Painters"), was an affiliated trade union of the Toronto B.T.C. and since July 1st, 1979, of the Toronto-Central Ontario B.T.C.

4. Painters' District Council 46 is bound by a Provincial Agreement between The Ontario Painting Contractors Association, Acoustical Association Ontario, Interior Systems Contractors Association of Ontario with The International Brotherhood of Painters and Allied Trades and The Ontario Council of Painters effective from June 16th, 1986 until April 30th, 1988 covering, inter alia, painting and related work in the Province of Ontario ("the Painters' Provincial Agreement"). A copy of the said Provincial Agreement will be filed as an exhibit at the arbitration hearing.

5. In or about mid-March, 1987, the Respondent sublet painting work covered by the Painters' Provincial Agreement at its projects for Bell Canada at 5253 Hurontario Street, Mississauga and for the Chinese United Church at 3300 Kennedy Road, Scarborough to painting subcontractors who are not bound by the Painters' Provincial Agreement. The work has been performed by such non-union subcontractor at the Bell Canada project but as of this date not at the Church project. As a consequence of such subcontracts, the Applicant delivered a grievance dated April 24th, 1987 to the Respondent which grievance is the subject matter of this Referral. A copy of the said grievance will be filed as an exhibit at the arbitration hearing.

6. On March 16th,, 1984, the Respondent gave notice to the Toronto-Central Ontario B.T.C. of its desire to terminate the Working Agreement on July 9th, 1984 to which the said Council responded on March 20th, 1984 but which response was not received by the Respondent. Thereafter, on May 22nd, 1984, the Respondent gave further notice to the said Council of its intention to terminate the Working Agreement on July 9th, 1984 to which the Council responded on May 3rd, 1984. No applications have ever been made by the Respondent or its employees nor has any decision been made by the Board to terminate the bargaining rights of the Toronto B.T.C. or the Toronto-Central Ontario B.T.C. or any of their affiliated trade unions for the Respondent's employees. Copies of said correspondence will be filed as exhibits at the arbitration hearing.

7. The Toronto-Central Ontario B.T.C. referred a grievance dated January 4th, 1985 to arbitration by the Board on January 10th, 1985 (O.L.R.B. File No. 2728-84-M). The grievance dated January 4th, 1985 did not involve the same work, project, subcontractor or Provincial Agreement as the grievance dated April 24th, 1987 which is referred to in para. 5 above. Subsequent to the arbitration hearing but before the Board had rendered any decision, the Council requested the Board's leave, under cover of July 31st, 1985, to withdraw the said Referral. By decision dated August 9th, 1985, the Board without prior notice to the Respondent dismissed the Referral having regard to the stage of the proceedings at which the request was made. By letter dated November 12th, 1985, the Respondent requested reconsideration of the Board's decision which request has never been disposed of by the Board. Copies of the said grievance, Referral, decision and request for reconsideration (with attachment) will be filed as exhibits at the arbitration hearing.

8. At all times material to these proceedings, the only collective agreements existing between any of the affiliated trade unions of the Toronto B.T.C. or the Toronto-Central Ontario B.T.C. with the Toronto Construction Association have been between the Carpenters' District Council of Toronto and Vicinity on behalf of Locals 27, 666, 681, 1133, 1747, 1963, 3227 and 3223, International Association of Bridge, Structural and Ornamental Iron Workers, Local 721, International Union of Bricklayers and Allied Craftsmen, Local 2, International Union of Operating Engineers, Local 793, Labourers' International Union of North America, Local 506 and Operative Plasterers and Cement Masons International Association of the United States and Canada, Local 598 with the General Contractors' Section of the Toronto Construction Association.

9. Since signing the Working Agreement, the Respondent has only employed employees represented by the six trade unions referred to in para. 8 above.

DATED at Toronto, this 17th day of August, 1987.

ONTARIO COUNCIL OF THE INTERNATIONAL BROTHERHOOD

OF PAINTERS AND ALLIED TRADES

Per: "Illegible"

HARBRIDGE & CROSS LIMITED

Per: "Illegible"

The parties amended paragraph 9 of the agreed statement of facts at the hearing and advised the Board it should read: "At the time the Working Agreement was signed (July 10, 1967) and since that time, the Respondent has only employed employees represented by the six trade unions referred to in paragraph 8 above".

3. Counsel for the respondent raised two matters which the parties agreed the Board should deal with in a preliminary fashion. After entertaining the parties' submissions with respect to the respondent's preliminary motions, the Board advised the parties that it would reserve its decision. Prior to the next scheduled hearing date, the Board advised the parties in a decision dated September 11, 1987 that it dismissed the respondent's preliminary motions and that its reasons for doing so would follow in due course. Before proceeding to address the merits of the referral, the Board will provide its reasons for dismissing the respondent's preliminary motions.

4. The factual basis for the respondent's motions is contained essentially in paragraph 7 of the agreed statement of facts. Counsel for the respondent also directed our attention to Exhibits Nos. 8, 9, 10 and 11. On January 10, 1985, the Toronto-Central Ontario Building and Construction Trades Council ("Toronto-Central Ontario B.T.C.") on its own behalf, and on behalf of its affiliates listed in Scheduled "A" attached to the referral, referred a grievance dated January 4, 1985 against Harbridge & Cross Limited to the Board (hereinafter referred to as "the 1985 referral") pursuant to section 124 of the Act. One of the affiliates listed in Schedule "A" is the International Brotherhood of Painters & Allied Trades District Council 46 ("District Council 46"). As noted in paragraph 3 of the agreed statement of facts, District Council 46 is affiliated with the applicant in the present referral, the Ontario Council of the International Brotherhood of Painters and Allied Trades ("Ontario Council of Painters"). Counsel for the respondent submitted that the first referral in effect was brought on behalf of the Ontario Council of Painters through District Council 46.

5. The material before us discloses that Harbridge and Cross Limited challenged the effect of the Working Agreement dated July 10, 1967 in the first referral. It took the position then that bargaining rights were created by the Working Agreement only for those affiliates of the Toronto-Central Ontario B.T.C. listed in paragraph 8 in the agreed statement of facts. In other words, the Working Agreement did not create bargaining rights for the other affiliates, including District Council 46. The material before us also discloses, and the parties have agreed, that the first referral did not involve the same work, project, subcontractor or provincial agreement as the present referral. The first referral concerned roofing and electrical work at the Alloid Colloides project in Brampton which Harbridge & Cross sublet to certain subcontractors.

6. After the Board completed the hearing with respect to the first referral, by letter dated July 31, 1985 the Toronto-Central Ontario B.T.C. requested the Board's leave to withdraw the first referral before the Board rendered any decision. Without prior notice to the respondent, the Board dismissed the first referral in a decision dated August 9, 1985 having regard to the stage of the proceedings at which the request was made. In a letter dated November 12, 1985, the respondent made a request under section 106(1) of the Act seeking from the Board "a clarification of its decision". Specifically, the respondent requested that "the Board clarify its dismissal of this application [the first referral] by confirming that the respondent is only bound to Provincial Agreements with the Affiliates with whom the General Contractors Section of the Toronto Construction Association has a bargaining relationship". When the referral before the present panel of the Board came on for hearing, the respondent's request under section 106(1) had not been disposed of by the Board.

7. Before the present panel, counsel for the respondent took the position that the instant referral should be deferred and not heard until the Board disposes of the respondent's request under section 106(1) of the Act in the first referral. Counsel argued that this matter should not proceed until the process concerning the first referral is completed. Secondly, counsel argued that if the Board did not accept the respondent's first position, the Board should dismiss the instant referral on the grounds that matters raised in the referral are res judicata by virtue of the Board's decision with respect to the first referral. Counsel noted that the issues in the present referral regarding the effect of the Working Agreement are the same as those in the first referral. Counsel argued that the dismissal by the Board of the first referral in circumstances where it heard the evidence and where the effect of the Working Agreement was argued is sufficient to support its res judicata argument. In support of his position, counsel for the respondent relied on the following cases: Kinna v. Reilander et al., [1978] 7 C.P.C. 70 (B.C.S.C.); Staff Builders International Inc. v. Cohen et al.; Cohen et al. v. Staff Builders International Inc. et al., [1983] 38 C.P.C. 82 (Ont. H.C.0); Losereit Sales and Services Ltd., [1983] OLRB Rep. July 1090; and Montgomery Elevator Co. Limited, [1985] OLRB Rep. Dec. 1776. Counsel for the applicant requested that the Board not defer nor dismiss the referral.

8. In the circumstances of this case, the Board was satisfied that it should not defer the present referral until the respondent's section 106(1) request is disposed of. As section 106(1) of the Act indicates, the Board's decision dated August 29, 1985 dismissing the first referral is final and conclusive for all purposes. Although section 106(1) gives the Board the power to reconsider decisions and to vary or revoke decisions, the decisions of the Board are final until the Board varies or revokes a decision. Therefore, the Board's decision dated August 29, 1985 represents a final disposition of the first referral until the Board varies or revokes it. The Board's decision of August 29, 1985 is consistent with the Board's practice when faced with a withdrawal request late in the proceedings. In such circumstances, the Board will dismiss the matter before it having regard to the stage of the proceedings. There is nothing in the circumstances of this case which would lead us to conclude that the Board did anything but follow its usual practice when the applicant in the first referral requested that that matter be withdrawn. Although it is unnecessary for the Board to decide the issue for the purposes of this ruling, we have some doubts as to whether a request to clarify a decision is a proper request under section 106(1) where, as appears to be the case here, the respondent is not requesting the Board to vary or revoke its decision. In a particular case, there may very well be sound labour relations reasons which would cause the Board to defer a matter until a reconsideration request is dealt with. In the Board's view, those circumstances were not present in this case.

9. The Board was also satisfied that it should not refuse to hear the present referral on the basis that the matters raised therein were res judicata as a result of the Board's decision dated August 29, 1985 dismissing the first referral. The principle of estoppel by res judicata is based on public policy considerations and is designed to avoid repetitious litigation and to ensure that the same person is not sued twice for the same cause. See The Law of Evidence in Civil Cases, Sopinka and Lederman, at pg. 365 and Losereit Sales and Services Ltd., [1983] OLRB Rep. July 1090 at paragraph 13. In Angle v. Minister of National Revenue, 1974 CanLII 168 (SCC), [1974] 47 D.L.R. (3d) 544 (S.C.C.), at page 555, the Court refers to the two aspects of estoppel by res judicata as follows:

In earlier times res judicata in its operation as estoppel was referred to as estoppel by record, that is to say, estoppel by the written record of a Court of record, but now the generic term more frequently found is estoppel per rem judicatam. This form of estoppel, as Diplock, L.J. said in Thoday v. Thoday, [19641 p. 181 at p. 198 has two species. The first, "cause of action estoppel", precludes a person from bringing an action against another when that same cause of action has been determined in earlier proceedings by a Court of competent jurisdiction. ... The second species of estoppel per rem judicatam is known as "issue estoppel", a phrase coined by Higgins, J., of the High Court of Australia in Hoysted et al. v. Federal Commissioner of Taxation (1921), 1925 CanLII 607 (UK JCPC), 29 C.L.R. 537 at pp. 560-561:

I fully recognize the distinction between the doctrine of res judicata where another action is brought for the same cause of action as has been the subject of previous adjudication, and the doctrine of estoppel where, the cause of action being different, some point or issue of fact has already been decided (I may call it "issue estoppel").

Lord Guest in Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 2), [1967] 1 A.C. 853 at p. 935, defined the requirements of issue estoppel as:

... (1) that the same question has been decided: (2) that the judicial decision which is said to create the estoppel was final: and, (3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.

10. The Board agrees with counsel for the union's argument that the facts before us do not support a cause of action estoppel. The grievance before us does not involve the same work, project, subcontractor or provincial agreement as the grievance which gave rise to the first referral. In order to establish the basis for the application of issue estoppel, one must establish that there has been an earlier adjudication which should preclude a further adjudication on the matter between the same parties. As noted earlier, the Board's decision dated August 29, 1985 dismissing the first referral was consistent with its practice when confronted with a request to withdraw a matter late in the proceedings. The decision to dismiss the first referral was not based on any adjudication on the merits. Although the hearing was completed, the withdrawal request from the applicant pre-empted an adjudication on the merits of the first referral. Therefore, the Board concluded that the nature of the first referral and the Board's decision of August 29, 1985 dismissing it should not cause the Board to dismiss the present referral.

11. We turn now to the substance of the grievance dated April 24, 1987 which forms the basis of the present referral. The grievance, which was filed by the applicant's solicitors, reads as follows:

We are solicitors for the Ontario Council of the International Brotherhood of Painters and Allied Trades ("the Union") and are retained with respect to the following grievance.

By virtue of the Working Agreement dated July 10th, 1967 between Harbridge & Cross Limited ("the Employer") and the Toronto-Central Ontario Building and Construction Trades Council and by operation of the Labour Relations Act, the Employer is bound by the Provincial Agreements binding upon the unions affiliated with the said Council, including the above-noted Provincial Agreement binding upon the Union.

We herewith give notice that the Union on its own behalf and on behalf of its unemployed members grieves that the Employer has violated the said Provincial Agreement at its projects for Bell Canada at 5253 Hurontario Street, Mississauga and for the Chinese United Church at 3300 Kennedy Road, Scarborough ("the Projects") in that the Employer has failed or refused to subcontract painting work covered thereby only to a sub-contractor bound by the said Provincial Agreement, contrary to Article 23 of Append~~ "A" thereto. At all material times to this grievance, there have been, and still are, contractors who are bound by the said Provincial Agreement who are qualified to perform such work at the Projects and who are, and have been, ready, willing and able to perform such work for the Employer.

RELIEF SOUGHT:

1. A Declaration that the Employer has violated the above-noted Provincial Agreement and continues to violate the Provincial Agreement as hereinbefore set forth;

2. An Order that the Employer cease and desist from continuing to violate the Provincial Agreement as hereinbefore set forth;

3. An Order that the Employer subcontract work covered by the Provincial Agreement only to subcontractors who are bound by the said Provincial Agreement in accordance with Article 23 of Appendix "A" thereto;

4. Damages against the Employer by reason of the aforementioned violations of the Provincial Agreement including interest at the current bank rate;

5. Such further and other relief as may be appropriate in the circumstances.

We wish to advise that we have been instructed to refer this grievance to arbitration by the Labour Relations Board pursuant to Section 124 of the Ontario Labour Relations Act.

12. The Ontario Council of Painters takes the position that the Working Agreement dated July 10, 1967 created bargaining rights in its favour with Harbridge & Cross Limited which have never been terminated. It is argued that the existence of these bargaining rights and the operation of the province-wide bargaining provisions of the Labour Relations Act bind Harbridge & Cross Limited to the Painters' Provincial Agreement. Counsel for the applicant argues that Harbridge & Cross Limited contravened the Painters' Provincial Agreement when it sublet painting work covered by that agreement to non-union subcontractors. In essence, the dispute between the parties centres on the nature and effect of the Working Agreement.

13. The Working Agreement reads as follows:

WORKING AGREEMENT

Agreement dated the 10th day of July AD. 1967

Between: HARBRIDGE & CROSS LIMITED,

1920 Weston Road, Suite 214,

Weston, Ontario.

hereinafter referred to as "The Company"

• and -

THE TORONTO BUILDING AND CONSTRUCTION TRADES COUNCIL

hereinafter referred to as "The Council"

The parties hereto hereby expressly covenant and agree as follows:

PURPOSE

1. The general purpose of this agreement is to establish mutually satisfactory relations between the Company and its employees; to eliminate unfair practices; to establish and maintain satisfactory working conditions, hours of work and wages and to stabilize and encourage the construction industry.

RECOGNITION

2. The Company recognizes the Council and its affiliated unions as the collective bargaining agency for all its employees.

3. The Company agrees that it will employ only members of the unions affiliated with the Council and will let contracts or sub-contracts only to individuals or companies whose employees are members in good standing in the unions affiliated with the Council and will do all things necessary to insure that only members of the unions affiliated with the Council are employed in construction work in which the Company is engaged.

4. The Council through its affiliated unions will supply competent workmen to do the work of any trade or calling that may be required by the Company in the trades represented by the Council.

WAGES, HOURS AND WORKING CONDITIONS

5. The Company agrees to recognize and be bound by the agreements existing between each of the unions affiliated with the Council and the Toronto Construction Association and specifically agrees that the provisions relating to wages, hours and working conditions set forth in the said agreements shall be binding on the Company. In the event any of the said conditions of any of the said agreements are altered or amended at any time during the currency of this agreement, the Company shall be bound by such alterations and amendments. The said agreements are available for inspection by the Company at the office of the Council at 1220 Yonge Street; at the Toronto Construction Association, 92 Yorkville Avenue, Toronto; and at the Department of Labour, Parliament Buildings, Toronto. The Council shall notify the Company of any amendments or alterations of the said agreements.

TERMINATION

6. This agreement shall remain in force for a period of one year from the date hereof and shall continue in force from year to year thereafter unless in any year not less than sixty days before the date of its termination, either party shall furnish the other with notice of termination of, or proposed revision of, this agreement; PROVIDED, however, that this agreement shall remain in full force and effect until completion of all jobs that have been commenced during the operation of this Agreement.

IN WITNESS WHERE OF the parties hereto have caused this agreement to be executed by their duly authorized representatives.

Signed on behalf Signed on behalf

of the Company of the Council

"Illegible" "illegible'

"Illegible' "illegible"

14. The Board will summarize the parties' submissions. In his argument, counsel for the union took us through each paragraph of the Working Agreement and argued that the recognition clause was very broad. He submitted that in paragraph 2 of the Working Agreement, Harbridge & Cross Limited recognizes the Toronto B.T.C. and its affiliated unions as the collective bargaining agency for all its employees. District Council 46, which is affiliated with the Ontario Council of Painters is an affiliate of the Council and, therefore, covered by the recognition clause in paragraph 2 of the Working Agreement. In paragraph S of the Working Agreement, Harbridge & Cross Limited agrees to recognize and be bound by the agreements existing between each union affiliated with the Council and the Toronto Construction Association ("TCA"). By operation of paragraph 5, Harbridge & Cross Limited became bound by the collective agreements between the TCA and those unions referred to in paragraph 8 of the agreed statement of facts, namely the civil trades. Counsel argued that the effect of paragraph 5 of the Working Agreement was not intended by the parties to limit the broad application of the recognition provisions of the Working Agreement. It was noted that paragraph 5 of the Working Agreement is of less significance since the advent of provincial bargaining. Counsel described the Working Agreement as a standard form agreement and referred to a number of Board decisions interpreting the Working Agreement and its effect. For example, we were referred to Napev Construction Limited, unreported, dated April 26, 1979, Board File No. 2121-78-M and M. J. Guthrie Construction Limited, [1984] OLRB Rep. Jan. 50.

15. Counsel for the respondent essentially made two arguments in support of the respondent's position that the only effect of the Working Agreement is to bind Harbridge & Cross Limited to the six civil trade provincial agreements. Counsel emphasized that notwithstanding the standard form agreement and the Board's previous decisions, the referral must be decided on the basis of the agreed statement of facts and the Working Agreement signed between Harbridge & Cross Limited and the Toronto B.T.C. Counsel submitted that the facts set out in paragraphs 8 and 9 of the agreed statement of facts are crucial and unique. He noted that the only collective agreements covered by paragraph 5 of the Working Agreement are the six TCA civil trade agreements and that these are the only collective agreements referred to anywhere in the Working Agreement. Counsel noted, as well, that the only employees employed by Harbridge & Cross Limited when the Working Agreement was signed and since that time have been employees represented by the six civil trades.

16. Counsel's first argument centered on the interpretation of the various provisions of the Working Agreement. Counsel noted that the operative words in paragraphs 1 and 2 of the Working Agreement are "its employees" and that no mention is made in paragraph 3 of the Working Agreement to collective agreements. With respect to paragraph 5 of the Working Agreement, counsel emphasized that portion of the paragraph referring to "agreements existing" and noted that at the time the Working Agreement was executed the only agreements in existence were the six civil trade agreements. Counsel submitted that one must read paragraphs 2 and S together in order to discern the intention of the parties which was to create bargaining rights for only the six civil trades. Counsel argued that the specific language in paragraph S should be given preference to the general language in paragraph 2 of the Working Agreement.

17. Counsel also argued that paragraph 2 of the Working Agreement cannot qualify as a recognition agreement under the Labour Relations Act. Counsel submitted that a valid recognition agreement under the Act must contain a defined bargaining unit as evidenced by sections 5(3), 16(3), 60(1) and 144(4) of the Act. Counsel argued that the various paragraphs of the Working Agreement do not contain words which constitute a defined bargaining unit. Counsel notes that paragraph 5 of the Working Agreement has the effect of incorporating the six TCA civil trade agreements with their defined bargaining units contained in their respective recognition clauses. But outside of the six TCA agreements, the Working Agreement contains no defined bargaining unit and, therefore, cannot create bargaining rights for other affiliates, including the Painters. In support of the second argument, counsel relied on M. J. Guthrie Construction Limited, sup ra, and V. K. Mason Construction Ltd., [1969] OLRB Rep. Apr. 131.

18. In reply, counsel for the applicant took the position that paragraphs 2 and S of the Working Agreement deal with different matters and cannot be read together to produce the effect as suggested by counsel for the respondent. The principle of interpretation that specific terms prevail over the general has no application here since paragraphs 2 and 5 deal with different matters. Counsel submitted that the Working Agreement must be read as a whole and that the words in paragraph 2 must be given their normal meaning. Counsel argues that the Working Agreement does contain a defined bargaining unit and that, in any event, the recognition clause of any affiliate's provincial collective agreement is incorporated by the Working Agreement, not just those in the civil trade agreements.

19. This is not the first occasion the Board has had to grapple with a working agreement of the type between the Toronto B.T.C. and this respondent. In previous decisions, the Board has concluded that a working agreement can give rise to bargaining rights. We accept Mr. Binning's position that this application must be decided on its own facts and the arguments made before us. However, it is useful to review briefly the way in which the Board has previously analyzed and characterized the type of working agreement we have before us.

20. In M. I. Guthrie Construction Limited, [1984] OLRB Rep. Jan. 50, the Board analyzed at some length a working agreement which had terms virtually identical to those contained in the Working Agreement relied upon by the applicant. In paragraph 13, the Board notes that:

13. ... Working agreements have become very much a part of the unionized portion of the construction industry in the Toronto area and have been regarded as peace treaties and instruments for harmony in the construction industry. However, regardless of these characterizations, the working agreement has traditionally been used, as in the instant case, as an entry into unionized construction work and as a method for an employer to stay on side from the point of view of the craft trade unions in the construction industry.

21. In paragraph 16 of Guthrie, supra, the Board summarizes the substance of the working agreement before it. This summary, which is set out below, has equal application to the Working Agreement between the Toronto B.T.C. and Harbridge & Cross Limited.

16. The working agreement is a brief document which names the parties and states its purpose as the establishment of mutually satisfactory relations between Guthrie and its employees and satisfactory working conditions, hours of work and wages. In the recognition portion, Guthrie recognizes the Council and its affiliated unions as the collective bargaining agency for all of its employees. Guthrie has also agreed to employ only members affiliated with the Council and to subcontract only to individuals or companies whose employees are members in good standing in the unions affiliated with the Council and to do all things necessary to ensure that only members of the unions affiliated with the Council are employed in construction work in which Guthrie is engaged. The Council has agreed through its affiliated unions to supply competent workmen to do the work of any trade or calling that may be required by Guthrie in the trades represented by the Council. Guthrie has also agreed to recognize and be bound by the agreements existing between each of the unions affiliated with the Council and the Toronto Builders' Exchange and has specifically agreed that the provisions relating to wages, hours and working conditions set forth in these agreements are binding on it. Guthrie has also agreed to be bound by any alterations and amendments to these agreements and the Council has agreed to notify Guthrie of such alterations or amendments. Finally, the working agreement is said to remain in effect for one year and to continue in effect from year to year subject to notice.

22. The Board in Guthrie, supra, proceeded to determine that the Toronto-Central B.T.C. is not a trade union but rather a council of unions. As such, the Toronto-Central B.T.C. could not enter into either a collective agreement or a voluntary recognition agreement in its own name. Each of the affiliates of the Toronto-Central B .T. C. are trade unions which are able to enter into collective agreements and voluntary recognition agreements. The Board concluded that, through the working agreements the Council entered into a series of recognition agreements on behalf of each of its affiliates with Guthrie.

23. We turn now to the instant application. In essence, the issue before us is whether the Painters acquired bargaining rights by means of the Working Agreement signed between the Toronto B.T.C. and Harbridge & Cross Limited. Harbridge & Cross Limited did not take the position that the Working Agreement was not lawfully executed or that the Painters had abandoned its bargaining rights, if it had any. The parties have agreed that Harbridge & Cross Limited duly entered into the Working Agreement with the Toronto B.T.C., that the Toronto-Central B.T.C. stands in the same relation to the respondent as did the Toronto B.T.C. prior to July 1, 1979, and that, at all times material, District Council 46, an affiliate of the applicant, was an affiliate of the Toronto B.T.C. and since July 1,1979 of the Toronto-Central Ontario B.T.C. It is not disputed that if the applicant has bargaining rights with the respondent then by virtue of the province-wide bargaining provisions of the Act enacted in 1977, Harbridge & Cross Limited would be bound by the Painters' Provincial Agreement in the industrial, commercial and institutional sector of the construction industry. The parties have agreed that Harbridge & Cross Limited sublet painting work covered by the Painters' Provincial Agreement to painting subcontractors who are not bound by the Painters' Provincial Agreement.

24. In determining the issue of whether the Working Agreement creates bargaining rights for the Painters, the Board has relied only on the facts as agreed to in the agreed statement of facts, the exhibits which were all entered on consent and the parties' submissions.

25. The Working Agreement between the applicant and respondent contains a very broad recognition clause. In paragraph 2 of the Working Agreement, Harbridge & Cross Limited agreed to recognize the Toronto B.T.C. and its affiliated unions as the collective bargaining agency for all its employees. The specific words used in paragraph 2 do not contain any indication that the parties to the Working Agreement intended Harbridge & Cross Limited to recognize a limited number of affiliates rather than all of the Council's affiliates as collective bargaining agents for its employees. Reference is also made to the affiliated unions in paragraphs 3 and 4 of the Working Agreement and these references, as well, contain no indication that there was an intention to apply these paragraphs to some affiliates but not to others.

26. Paragraph 5 of the Working Agreement provides that Harbridge & Cross Limited agrees to recognize and be bound by the agreements existing between each of the unions affiliated with the Toronto B.T.C. and the T.C.A. It is clear from paragraph 5 of the Working Agreement that the term agreements refers to collective agreements. On the facts before us, paragraph S would bind Harbridge & Cross Limited to only the civil trade agreements with the T.C.A. Every collective agreement is deemed by the Act to provide for a recognition clause. If the parties to the Working Agreement intended the Working Agreement to create bargaining rights for only those affiliates who had collective agreements with the T.C.A., then paragraph 2 of the Working Agreement would be unnecessary. The parties to the Working Agreement could have easily created this result by only including paragraph 5 in the Working Agreement. The presence of paragraph 2 of the Working Agreement indicates that the parties did not intend to limit bargaining rights to only those affiliates who had a collective agreement with the T.C.A. This view is supported further by paragraph 4 of the Working Agreement which provides that the affiliated unions will supply competent workmen to do the work of any trade or calling that may be required by the respondent in the trades represented by the Toronto B.T.C. This obligation on the affiliates is not limited to the six civil trades.

27. Both counsel made submissions with respect to which rule of interpretation should be adopted when attempting to interpret the provisions of the Working Agreement. When attempting to interpret an agreement, a general guide to interpretation is to presume that all the words were intended to have some meaning. In utilizing this guide~ the Board is satisfied that meaning can be given to both paragraphs 2 and 5 of the Working Agreement and that these paragraphs do not conflict. When reviewing the document as a whole, the Board is satisfied that the parties to the Working Agreement intended that Harbridge & Cross Limited recognize the Council and each of its affiliated unions as collective bargaining agents for its employees. Paragraph 5 addresses what collective agreements Harbridge & Cross Limited will be bound to. Paragraph 2, which creates bargaining rights for all affiliates with the respondent does not conflict with paragraph 5 which simply addresses the question of what collective agreements Harbridge & Cross Limited will be bound by. An examination of the headings used in the Working Agreement further support the proposition that paragraph 2 and paragraph 5 address separate matters. Paragraph 2 is under the heading "RECOGNITION" while paragraph 5 is under the heading "WAGES, HOURS AND WORKING CONDITIONS".

28. The Board does not accept counsel for the respondent's first argument with respect to how the Working Agreement should be interpreted. The Board is satisfied that the provisions of the Working Agreement do not disclose that the parties intended to create bargaining rights for only the six civil trades. In addition to the comments above, the Board notes that it is significant that the Working Agreement is an agreement between the Toronto B.T.C. and Harbridge & Cross Limited. Not only does paragraph 2 refer to the Toronto B.T.C.'s affiliates but one would assume that when the Toronto B.T.C. acted it would do so on behalf of all its affiliates unless there is something in the document which would suggest otherwise. Neither paragraph 5 of the Working Agreement nor any other clause in the Working Agreement suggest otherwise.

29. The other position advanced by counsel for the respondent is that the Working Agreement does not create bargaining rights for the Painters or the other affiliates except the six civil trades, since it does not contain a defined bargaining unit. He argues that the incorporation of the recognition clauses in the collective agreements between the six civil trades and the T.C.A. satisfies the requirement for a defined bargaining unit and, therefore, gives validity to the Working Agreement as a voluntary recognition agreement for only the six civil trades. In the Board's view, the Working Agreement does define the parameters of the bargaining rights to the degree necessary to satisfy the requirement of a defined bargaining unit. The Board agrees with Guthrie, supra, in its characterization of the working agreement. By means of one document, the Toronto B.T.C. entered into a series of recognition agreements between all of its affiliates, including the Painters and Harbridge & Cross Limited. The Toronto B.T.C.'s affiliates are trade unions which are representative of certain well-defined trades in the construction industry. Paragraph 2 of the Working Agreement provides, in effect, that Harbridge & Cross Limited recognizes the Toronto B.T.C. and its affiliated unions as the bargaining agent for all of its employees. The term employees can only refer to those employees of the respondent engaged in construction work who would normally perform work performed by members of the Toronto B.T.C.'s affiliates. Paragraph 3 of the Working Agreement makes reference to the phrase "employ only members of the unions affiliated with the Council". As noted earlier, paragraph 4 of the Working Agreement obliges each affiliated union to "supply competent workmen to do the work of any trade or calling that may be required by the Company in the trades represented by the Council". In other words, the Plumbers union is required to supply its members to the respondent, and the Carpenters union is required to supply its members, etcetera. When one reviews the Working Agreement as a whole, and particularly paragraphs 2, 3 and 4 contained therein, the Board is satisfied that the Working Agreement does contain, in effect, defined bargaining units and constitutes a voluntary recognition agreement under the Labour Relations Act. The Working Agreement contains a defined bargaining unit even in the absence of the incorporation of a collective agreement by the operation of paragraph S of the Working Agreement.

30. In support of his second argument, counsel for the respondent referred to certain comments of the Board in Guthrie, supra, and V. K. Mason Construction Ltd., supra. We have reviewed these decisions and were not persuaded that they should lead us to a conclusion different from the one expressed in the previous paragraph of this decision. In Guthrie, supra, the Board did not have to address whether the Working Agreement contained a defined bargaining unit in the absence of the incorporation of certain collective agreements, since there existed, it appears, collective agreements which would be incorporated by paragraph 5. This precise issue does not appear to have been argued in Guthrie, supra. The working agreement before the Board in the V. K. Mason case, supra, is not set out in its entirety in the decision. From those portions which are set out, it appears that the working agreement is significantly different from the Working Agreement before us.

31. During counsel for the respondent's submission, reference was made to paragraph 6 of

the agreed statement of facts which refers to the respondent's notice to the Toronto-Central Ontario B.T.C. of its intention to terminate the Working Agreement in 1984. In Napev Construction Limited and General Contractors Section, Toronto Construction Association, dated December 28, 1977, Board File No. 1112-77-M [unreported], the Board commented as follows at paragraph 13 regarding the effect of such a notice:

13. Bargaining rights between Napev and Local 506 were created upon the signing of the working agreement between Napev and the Council on March 14, 1974. Napev's letter dated January 14, 1976, purported to terminate this agreement pursuant to paragraph six thereof. However, paragraph six is ineffectual in terminating the bargaining rights which in this instance were created by voluntary recognition. Even though notice under paragraph six may terminate the period of operation of a collective agreement which stands by itself or may be the prelude to a new collective agreement, bargaining rights may only be terminated in accordance with the provisions of The Labour Relations Act. There is nothing before the Board which indicates that Local 506's bargaining rights have been terminated pursuant to The Labour Relations Act.

Since the parties have agreed that no applications have ever been made by the respondent or its employees, nor has any decision been made by the Board to terminate the bargaining rights of the Toronto B.T.C. or the Toronto-Central Ontario B.T.C. or any of their affiliated trade unions for the respondent's employees, the notice of the respondent referred to in paragraph 6 of the agreed statement of facts did not have the effect of terminating bargaining rights. We note that at the time the respondent gave notice to terminate the Working Agreement, the scheme of provincial bargaining had been in place for many years.

32. Accordingly, having regard to these findings, the Board:

(a) declares that, by virtue of the Working Agreement dated July 10, 1967 between the Toronto Building and Construction Trades Council and Harbridge and Cross Limited, the applicant obtained bargaining rights for those employees of the respondent who perform work within the applicant's jurisdiction;

(b) declares that the respondent is bound by the Painters' Provincial Agreement;

(c) declares that the respondent contravened the Painters' Provincial Agreement when it sublet painting work in mid-March 1987 covered by that Agreement at its projects for Bell Canada at 5253 Hurontario Street, Mississauga and for the Chinese United Church at 3300 Kennedy Road, Scarborough to painting subcontractors who are not bound by the Painters' Provincial Agreement;

(d) directs the respondent to cease and desist from continuing to violate the Painters' Provincial Agreement;

(e) directs the respondent to pay damages to the applicant on behalf of its members flowing from the violations of the Painters' Provincial Agreement referred to in (c).

33. In the event the parties are unable to agree on the amount of damages owing to the applicant, the Board remains seized of this matter.