[1989] OLRB Rep. March 234
3291-86-R; 3457-86-R; 0250-87-R United Brotherhood of Carpenters and Joiners of America, Local 27, Applicant v. Ellis-Don Limited, Respondent v. Labourers' International Union of North America, Local 183, Intervener #1 v. The Form Work Council of Ontario, Intervener #2 v. Metropolitan Toronto Apartment Builders Association, Intervener #3; United Brotherhood of Carpenters and Joiners of America, Local 27, Applicant v. Milne & Nicholls Ltd., Respondent v. Labourers' International Union of North America, Local 183, Intervener #1 v. Metropolitan Toronto Apartment Builders Association, Intervener #2; United Brotherhood of Carpenters and Joiners of America, Local 27, Applicant v. Mollenhauer Limited, Respondent v. Labourers' International Union of North America, Local 183, Intervener #1 v. Metropolitan Toronto Apartment Builders Association, Intervener #2
BEFORE: O. T. Surdykowski, Vice-Chair, and Board Members D. A. MacDonald and P. Grasso.
DECISION OF THE BOARD; March 7, 1989
The Board has received three requests that it reconsider its decision dated December 8, 1988 (since reported at [1988] OLRB Rep. Dec. 1254 and hereinafter referred to as the "Decision") in these applications.
The basis of the request by the Labourers' International Union of North America, Local 183 ("Local 183") and the Form Work Council of Ontario (the "FWCO"), made by letter dated January 24, 1989, can be summarized as follows:
(a) that the Board erred in law and thereby misinterpreted the collective agreement between the Metropolitan Toronto Apartment Builders Association ("MTABA") and Local 183 dated May 9, 1985 (the "MTABA Agreement") and the collective agreement between Ellis-Don Limited and Local 183 dated August 22, 1985 (the "Ellis-Don Agreement") by finding that they contained no relevant patent or latent ambiguity;
(b) that the Board erred in permitting the applicant United Brotherhood of Carpenters and Joiners of America, Local 27 ("Local 27") to carve out its craft (that is, carpenters and carpenters' apprentices) from the bargaining unit covered by the collective agreement between Ellis-Don Limited and the FWCO dated August 22, 1985 (the "Ellis-Don Form Work style Agreement").
By letter dated February 15, 1989, the MTABA "concurs with Local 183's [sic] submissions and on its own behalf requests the Board to reconsider the Decision" on the basis that the Board erred in its determination of three issues; namely, (1) the admissibility of extrinsic evidence related to the evolution of residential high-rise construction, bargaining history in the industry and practices under the collective agreements made between Local 183 and the MTABA; (2) the representational nature of the rights created by the collective agreements between Local 183 and the MTABA from 1970 to the present; and (3) the relevance of previous decisions of the Board interpreting other collective agreements between Local 183 and the MTABA and Local 183 and the Toronto Housing Labour Bureau. In the result, asserts the MTABA, the Board misconstrued the MTABA Agreement.
The respondents, together, by letter dated February 16, 1989, also "concur" with the submissions of Local 183 and the FWCO, and make their own submissions which, in effect, supplement those of Local 183 and the FWCO. The respondent Ellis-Don Limited also submits that the Board ought to reconsider its decision to permit Local 27 to carve out its craft from the Ellis-Don Form Work Style Agreement on the merits, or, failing that, that the parties have not had a fair opportunity to address that issue and should be given one.
Section 106(1) of the Labour Relations Act provides:
-(1) The Board has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it, and the action or decision of the Board thereon is final and conclusive for all purposes, but nevertheless the Board may at any time, if it considers it advisable to do so, reconsider any decision, order, direction, declaration or ruling made by it and vary or revoke any such decision, order, direction, declaration or ruling.
The Board's power to reconsider its decisions is a broad one. However, both the Act and the realities of labour relations dictate that the premise from which the Board must operate is that its decisions should be final and conclusive. The Board's approach to request for reconsideration is accurately summarized in Board Practice Note No. 17 (see also Capital Construction Corporation, [1988] OLRB Rep. Aug. 747; Northern and Central Gas Corporation Limited, [1988] OLRB Rep. Jan. 70; The London Soap Company Limited, [1987] OLRB Rep. Feb. 241). In recognition of the need for finality, the Board will not usually reconsider a decision unless an obvious error has been made; or, the request raises important issues of Board policy which have not been addressed adequately or at all; or, the party requesting it proposes to adduce evidence which it could not, with the exercise of due diligence, have obtained previously, and which new evidence would be virtually conclusive; or, if a party wishes to make representations it had no previous opportunity to make.
The Board's approach to request for reconsideration is a stringent one. A less stringent approach would create uncertainty and tend to have a negative impact on the labour relations of this province.
It is asserted that the Board gave no reasons for rejecting the argument that the MTABA and Ellis-Don Agreements contained a patent ambiguity. Assuming, without finding, that section 17 of the Statutory Powers Procedure Act applies to the Decision, we observe that the Board's reasons in that respect are found in paragraphs 18 to 20 of the Decision (which paragraphs must be read together with paragraphs 8, 16 and 17). We find no conflict between Article 1.01 of the MTABA Agreement and Article A.6. 1 of Schedule "A" to the MTABA Agreement. Those two provisions must and can be read together in the manner set out in paragraphs 8, 19 and 20 of the Decision.
In that regard, the request for reconsideration challenged the Board's observation, in paragraph 30 of the Decision, that the decision in Runnymede Development Corporation Limited, [1987] OLRB Rep. Oct. 1305 "... has not been challenged either in these proceedings or elsewhere". That statement was intended to refer to the Board's findings in Runnymede, supra, with respect to the Housing Bureau Agreement between Local 183 and the Toronto Housing Labour Bureau which has been called the "low rise MTABA Agreement". However, The Board in Runnymede did have occasion to consider the MTABA Agreement because of the cross-over provision in Article 1.02 of the Housing Bureau Agreement and it should be evident, from paragraphs 5 and 6 of the Decision, that the Board recognized that those parts of the Runnymede, supra, decision which found or suggested that the MTABA Agreement does not cover carpenters and carpenters' apprentices were being challenged in this proceeding.
It is suggested that the Board misinterpreted the agreement between the MTABA and the Toronto Building and Construction Trades Council (Residential Division) by finding, in paragraph 23, that its general structure and intent was "to provide a mechanism by which various trade unions, including Local 183, could obtain bargaining rights for those employees of members of the MTABA who are members of their trade, and not as a means by which Local 183 could obtain bargaining rights for all employees of such companies regardless of their trade". It is true that there is a significant sub-contracting component to this Building Trade Council Agreement. However, having regard to the agreement as a whole, and particularly Articles 1.03, 3.01, 3.02, the September 20, 1969 addendum, and the various Memoranda of Agreement appended to it, it is evident that it was precisely what the Board has found it to be. While Local 183 is the only trade union mentioned by name in the body of the agreement, it is evident that other trade unions could also obtain bargaining rights (though not necessarily bargaining rights identical to those which Local 183 could obtain) under it. In any event, Local 183 never did obtain bargaining rights under Article 3.02. Instead, it negotiated the MTABA Agreement directly with the MTABA.
While it should not be, it appears to be necessary to point out that it is neither necessary nor appropriate to recite all of the evidence and representations made to the Board, or to review all of the thought processes which went into considering them, in a decision of the Board. In this case, whether it is specifically referred to in the Decision or not, the Board gave careful consideration to all of the evidence before it and to all of the representations of the parties.
In that regard, it should be evident, from paragraphs 15, 18 and 22 to 34 of the Decision, that the Board considered the evidence and representations with respect to the existence of a patent ambiguity in the MTABA and Ellis-Don Agreements, and finding no relevant one, went on to consider whether the extrinsic evidence (and representations with respect thereto) revealed any latent ambiguity. In that regard, we observe that the terms of a collective agreement are those which are agreed to when the agreement is negotiated and settled. The terms cannot be given a different meaning merely because the parties to the collective agreement may subsequently agree that it is correct, particularly when they so agree in the context of a dispute with respect to the application of the agreement in which those parties are allied in interest.
In considering the evidence before it, the Board gave each piece of documentary and viva voce evidence the weight which the Board determined it deserved. In the result, the Board rejected, and now rejects, the characterization given to the evidence in the requests for reconsideration.
It is implicit in the Decision that the Board was not persuaded that the extrinsic evidence called by the respondents and interveners established either a latent ambiguity in, or that carpenters and carpenters' apprentices are covered by, the MTABA and Ellis-Don Agreements. It was evident from the testimony of all of the witnesses that their knowledge, both direct and indirect, and their recollection of material matters was incomplete. The Board also found these witnesses, albeit in varying degrees, unable to entirely resist the influence of self-interest and that their testimony was coloured thereby. Further, taken as a whole, the testimony of these witnesses tended to be equivocal and inconsistent, both with the viva voce evidence of other witnesses and with the documentary evidence before the Board.
These shortcomings were most evident in the quite bald assertion, made in various forms, that "construction labourers" really means "direct employees" of MTABA builders and Ellis-Don. There is no documentary or cogent viva voce evidence to support that proposition. On the contrary, for example, Harold Green, who testified on behalf of the MTABA, said that the first MTABA Agreement was intended to cover to be normal functions of labourers and others on site according to the "Labourers yellow book" (which Michael Reilly, who was, at all material times, a representative of either Local 183 or the Labourers' International Union of North America, Ontario Provincial District Council, testified he knew nothing about). Mr. Green also testified that the different wage rates in the MTABA Agreement were intended to recognize that some construction labourers are more sophisticated (viz, skilled), and therefore valued more highiy, than others.
There was no documentary or cogent viva voce evidence to support the peculiar and, in our view, strained definition of the term "construction labourers" (see paragraph 17 of the Decision) which many of the witnesses, particularly Mr. Reilly, wanted the Board to accept. In that regard, it was suggested that the change, in the agreement dated September 20, 1969, between the MTABA and the Toronto Building Construction Trades Council, from the term "their employees" to the term "their labourers" (see paragraph 22 of the Decision) meant nothing. Having regard to the rather fundamental nature of the change and the reason it was made, the Board found, and still finds, that suggestion to be rather disingenuous. The Board took the same view of Mr. Reilly's explanation that the statement by Local 183 that it was only interested in representing labourers employed by MTABA builders (see paragraph 28 of the Decision) had been made "tongue-in-cheek" and did not mean what it appeared to.
Further, much of Mr. Reilly's testimony with respect to material matters was given in response to leading questions by both counsel for Local 183 and the FWCO, whose witness he was, and by the intervener MTABA and the respondents, all of whom are allied in interest with respect to the issues with which the Decision deals. Accordingly, the Board gave his evidence much less weight than it might otherwise have. Even then, Mr. Reilly never unequivocally stated either that carpenters and carpenters' apprentices, or carpentry work per se, is covered by the MTABA or Ellis-Don Agreements, or under the Heavy Engineering Agreement referred to in paragraph 32 of the Decision. He said only that the MTABA and Ellis-Don Agreements cover work that both the Labourers' International Union of North America and the United Brotherhood of Carpenters and Joiners of America claim is within their respective trade jurisdictions. He did not say, nor could he, that any of the work referred to under either agreement is identified exclusively with carpenters or the carpentry trade. Indeed, he specifically acknowledged that it was not so identified in any sector (including the industrial, commercial and institutional sector) of the construction industry.
The extrinsic evidence also reveals (in addition to what is set out in paragraphs 19, 27 and 34 of the Decision) that in negotiations with respect to Article A.6.1 in Schedule "A" to the MTABA and Ellis-Don Agreements, the list of classifications found there was prepared by, and inserted at the instance of, Local 183. It also reveals that the MTABA refused to include other classifications which Local 183 wanted listed, like, for example, "welders", although "Welders Helpers" are included.
In their requests for reconsideration, the interveners and respondents take issue with the Board's comments (in paragraphs 19 and 31 of the Decision) with respect to Article 1.05 of the MTABA Agreement. The Board found it curious that a collective agreement which the respondents and interveners submitted covers concrete forming work, and which contains a classification for "Form Erectors and Setters", would contain a provision stipulating, as Article 1.05 does, that the employer is bound by the agreement recognized that Local 183 "represents and bargains for its members in various other sectors of the construction industry not covered by this agreement, such as concrete forming ...". However, the Board considered that to be a relatively minor point which made no difference to the Board's conclusions with respect to the scope of the MTABA Agreement. Further, and contrary to what is suggested in their request for reconsideration, the viva voce evidence, particularly that of Mr. Reilly, establishes no more than, as pointed out in paragraph 31 of the Decision, that "flat" concrete forming work was done under the M'I'ABA Agreement. Nor is the interveners' and respondents' assertion that the concrete forming of superstructures in the residential sector is covered by the MTABA Agreement supported by the evidence. Mr. Reilly testified that there is no classification in the MTABA Agreement which covers concrete forming work on superstructures. In addition to what is set out in the Decision in that respect, we note, first that, the omission of a classification for work which is allegedly covered by and done under a collective agreement is a rather significant one. Such a fundamental omission, for which no satisfactory explanation was offered, suggest that such work is not in fact covered. Second, the words of Article 1.05 stipulate that another "appropriate applicable collective agreement", not just a wage rate under the MTABA Agreement, will be negotiated to cover those direct employees of MTABA builders who do concrete forming work.
The evidence before the Board does not establish that the concrete forming of superstructures in the residential sector of the construction industry was either contemplated by, or in fact done under, the MTABA or Ellis-Don Agreements. In addition to the comments the Board has made both herein and in the Decision in that respect, we note that Mr. Reilly testified that it was rare (he gave no examples at all) for an MTABA builder to do any concrete forming work on superstructures work using direct employees. It was also evident that any such work which was done, was done at a wage rate found, not in the MTABA Agreement, but in the Form Work Council Agreement (or the Ellis-Don Form Work Style Agreement). This also suggests that such concrete forming work of superstructures is done under the Form Work Council Agreement or Ellis-Don Form Work Style Agreement, not under the MTABA or Ellis-Don Agreements and also helps explain the apparent ambiguity in Article 1.05 of the MTALBA and Ellis-Don Agreements.
Taken as a whole, the evidence before the Board, including the extrinsic evidence, falls far short of establishing any relevant ambiguity in the MTABA or Ellis-Don Agreements, or that carpenters and carpenters' apprentices are covered thereby.
In paragraph 13 of their request for reconsideration, Local 183 and the FWCO request leave to file evidence in the form of Minutes of Settlement relating to the reinstatement of the exclusion for operating engineers in Article A.6. 1. of the 1987-89 M'TABA agreement referred to in paragraph 19 of the Decision. That deletion was significant because of what it illustrated about the state of the minds of Local 183 and the MTABA. In our view, the evidence which Local 183 and the FWCO seek to adduce would not be "virtually conclusive" with respect to the issues with which the Decision deals. Indeed, the fact that the exclusion has been reincorporated at the instance of a third party is unlikely to have any significant impact at all. Accordingly, leave is denied. In that regard, the Board did not, as the respondents suggest, give no meaning to the exclusionary words. The Board did not disregard the words but found that the exclusion added nothing more than greater certainty with respect to the exclusion of operating engineers from the collective agreement. By definition, words which do nothing more than add certainty tend to be "redundant" in the sense of being superfluous and capable of being omitted without loss of meaning or significance.
With respect to the craft carve out issue, the request for reconsideration by Local 183 and the FWCO states:
In our respectful submission, the Board erred in failing to follow its displacement policy as exemplified by the decision in Duron Ottawa Ltd., [1983] OLRB Rep. Oct. 1639 to construction industry applications for certification made under Section 144(3) of the Act. In our respectful view, Duron Ottawa, is not "... inconsistent with the authorities including the Duron Ontario Limited decision to which it refers..." (at para. 41) but rather is consistent with Duron Ontario Limited and with the Board's decisions in Crown Electric, [1982] OLRB Rep. May 660 and Aero Block and Precast Ltd., [1984] OLRB Rep. Sept. 1166, (referred to in para. 45 of the Decision) which, by inference, the Board must also reject on this point. While we recognize that there are contrary rulings in certain of the cases referred to in para. 41 of the Decision, it is our submission that the factual circumstances in those cases are distinguishable from the facts of these proceedings and that those cases do not represent the general policy by the Board to craft severance considerations. Rather, those decisions represent exceptions to the general rule or policy that the bargaining unit in the encumbent [sic] union's collective agreement is appropriate in displacement cases, including in the construction industry, and are based on the factual circumstances which obtained in those cases. A succinct statement of the principle is found at p. 661 of Crown Electric wherein the Board recognises "...the Board's long-standing policy that, where an applicant seeks to displace an encumbent [sic] bargaining agent and where a collective agreement is in force, the appropriate bargaining unit is the unit described in the collective agreement between the employer and the incumbent."
The MTABA and the respondents have adopted this submission.
In Duron Ontario Limited, [1976] OLRB Rep. Nov. 734 (which was decided prior to the enactment of the construction industry province-wide bargaining provisions, including section 144, of the Act), the Board observed that its approach to applications for certification relating to the construction industry was to determine bargaining units pursuant to section 6(2) of the Act where a trade union which satisfies the conditions of section 6(2) requests a (its) craft bargaining unit. Otherwise, the bargaining unit was determined under section 6(1). Consequently, when a non-craft trade union applied to represent employees in an existing bargaining unit, the Board determined the appropriate bargaining unit under section 6(1), and, as a matter of policy, generally found that appropriate unit to be the existing one. Duron Ontario Limited, supra, did not suggest that a trade union which satisfies the conditions of section 6(2), as Local 27 clearly does, and applies to represent a (its) craft unit of employees, could not carve out such a bargaining unit from a broader existing one. It was only to the extent, if it does so at all, that Duron Ottawa Ltd., [1983] OLRB Oct. 1639 suggests otherwise that the Board found it (in paragraph 41 of the Decision) to be inconsistent with the earlier authorities and Board practice. We note that Duron Ottawa Ltd., supra; Crown Electric, [1982] OLRB Rep. May 660, and Aero Block and Precast Ltd., [1984] OLRB Rep. Sept. 1166 all involved, as the Board points out in paragraph 45 of the Decision, applications under section 144(1) of the Act in which a craft carve out from an existing bargaining unit was found to be appropriate. We find ourselves constrained to observe that the passage from Crown Electric, supra, quoted in the request for reconsideration by Local 183 and the FWCO, has been taken out of context by them. Viewed in context, that passage forms part of the Board's recitation of the positions taken by the parties in that case. It was the respondent employer and the incumbent trade union who were asserting, unsuccessfully in the result, that that was the Board's long-standing policy. Except to the limited extent specified in the Decision with respect to Duron Ottawa Ltd., supra, the Board did not reject the analysis or conclusions reached in Duron Ottawa Ltd., supra; Crown Electric, supra, or Aero Block and Precast Ltd., supra. On the contrary, it extended and applied them to the issues before it and concluded that it was appropriate to permit a craft carve out in Board File No. 3291-88-R (the only one in which it remained an issue).
With respect to the submissions of the respondents on the craft carve out question, it was clear throughout the proceedings one of the issues in the phase of the proceedings with which the Decision deals was the description of the bargaining unit in each application. There was, at least potentially, a craft carve out issue in all three applications. Indeed, once the applicant conceded that carpenters and carpenters' apprentices were covered by the Ellis-Don Form Work Style Agreement, it was clear that the appropriateness of permitting a craft unit carve out was clearly an issue in the Ellis-Don Limited application (Board File No. 3291-88-R), which, as it turned out, was the only application in which it was necessary for the Board to deal with the issue. We note that the craft carve out issue in that application is not different in substance from the craft carve out issue in the other two applications. In our view, the parties have had a full and fair opportunity to address themselves to the question of craft carve out in all three applications. The fact that it was agreed that there were no employees covered by the Ellis-Don Form Work Style Agreement on the date of application, a question arises only after the appropriate bargaining unit has been determined, only makes that application easier to dispose of since no run off representation vote between the FWCO and the applicant is necessary. (We also observe that that agreed fact does not, by itself, lead to the conclusion that Ellis-Don employed no carpenters or carpenters' apprentices that day.)
Finally, there is nothing new in any of the substantive submissions made in the request for reconsideration. All of them were made, in one form or another, at the hearing. These applications did raise significant and important policy issues in the phase of the proceedings with which the Decision deals. The parties had an opportunity to argue these at the hearing and it should be evident from the Decision that the Board considered them. In the final analysis, what the respondents and the interveners seek amounts to no more than an opportunity to re-argue the case. The Board finds that there is no cogent reason to give them that opportunity or to reconsider its decision. All of the requests for reconsideration are therefore dismissed.
However, the Board hereby amends the Decision as follows:
(a) the words "Form Work Council Agreement" in the line 9 of paragraph 6 are deleted and the words "Ellis-Don Form Work Style Agreement" are substituted therefor;
(b) the words "and exclusively" are inserted into line 8 of that part of paragraph 20 found on page 16 between the words "specifically" and "suggestive
(c) the word "unequivocal" is inserted into line 19 of paragraph 32 between the words "no" and "suggestion";
(d) the bracket before the word "trenches" in line 27 of the paragraph 32 is deleted and a bracket is inserted before the word "in" at the end of line 26 of paragraph 32;
(e) the word "is" is inserted after the word "Ontario" and before the comma following thereafter in line 9 of that part of paragraph 37 on page 27;
(f) the word "is" is deleted from the end of line 14 of that part of paragraph 37 on page 27 and the words "one which covers" are substituted therefor;
(g) the word "union" in the fourth line after the quote (in paragraph 41) on page 33 is deleted and the word "unit" is substituted therefor.
The Board's Decision dated December 8,1988 in this matter is otherwise affirmed.