United Brotherhood of Carpenters and Joiners of America, Local 38 v. Marineland of Canada Inc., 1990 CanLII 5633

Ontario Labour Relations Board

[1990] OLRB Rep. December 1298

0709-89-G United Brotherhood of Carpenters and Joiners of America, Local 38, Applicant v. Marineland of Canada Inc., Respondent v. Group of Employees, Objectors

BEFORE: Robert Herman, Vice-Chair, and Board Members W. Gibson and C. A. Ballentine.

APPEARANCES: Douglas J. Wray and Art Varty for the applicant; Harvey A. Beresford and John Holer for the respondent; B. W. Adams and G. Saxton for the objectors (May 15, 1990).

DECISION OF VICE-CHAIR, ROBERT HERMAN, AND BOARD MEMBER, W. GIBSON;

December 6, 1990

1. The name of the respondent is amended to: "Marineland of Canada Inc."

2. This is a referral of a grievance to the Board pursuant to section 124 of the Labour Relations Act. The applicant grieves that in April, 1989 the respondent Marineland advertised for a carpenter and did not follow the hiring hall procedures set out in the provincial collective agree­ment.

3. The respondent submits that the applicant no longer has bargaining rights with respect to its employees, as those bargaining rights have been abandoned. In the alternative, the respon­dent argues that the applicant is estopped from asserting that it has bargaining rights or that the provincial agreement applies. The instant decision deals solely with this preliminary issue.

4. The applicant submits that the respondent ought not to be allowed to assert that aban­donment has occurred, because of the position it has taken in another proceeding in response to an application brought by employees to terminate the bargaining rights. In that proceeding, it did not assert that bargaining rights had already been abandoned. Having reserved on this matter at the hearing, we find that the fact that the respondent took a position in a termination application alter­native to its position here does not preclude it from asserting that abandonment has occurred.

5. The applicant was certified to represent carpenters and carpenters' apprentices of the respondent in May, 1976, prior to the onset of the province-wide bargaining regime in the indus­trial, commercial and institutional ("ICI") sector of the construction industry. Various communica­tions and interactions took place between the applicant, Local 38, and the respondent, from the time of certification until a No Board Report was issued on September 12, 1977, involving attempts to begin bargaining. The respondent asserts that abandonment occurred after the issuance of the No Board Report.

6. On March 3, 1978, approximately 6 months after the No Board Report, the designation order, pursuant to the amendments to the Act which created the province-wide system of bargain­ing in the ICI construction sector, became effective with respect to the applicant and other affili­ated bargaining agents ("A.B.A.'s") and with respect to the employee bargaining agency repre­senting those A.B.A.'s and Local 38. Even after the imposition of the province-wide scheme, Local 38 did nothing to suggest it had or was exercising its bargaining rights. To the contrary, approximately 3 years later, during the summer of 1981, Local 38's business agent, Arthur Varty, attempted to organize the carpenters (and carpenters' apprentices). He approached several employees to encourage them to join the union and sign membership cards, telling them that the union could make it difficult for them to get work if they didn't join. Unable to successfully orga­nize the carpenters, Local 38 again disappeared from Marineland, this time for a further 8 year period. In a letter dated May 5, 1989, counsel for the applicant wrote to Marineland indicating that Local 38 was aware that Marineland had advertised for a carpenter to work for it and asserting that the provincial agreement was binding upon Marineland and that the agreement required Marine-land to hire carpenters through the hiring hall. That letter also indicated that it should be treated as a grievance alleging a violation of article 5 and any other relevant provisions of the collective agreement. The instant proceeding was referred to the Board on June 14, 1989. Throughout the entire 12 year period between the No Board issuing in September, 1977 and the grievance being filed in May, 1989, there was no interaction between Local 38 and Marineland. No evidence was led by the applicant and we therefore have been provided with no explanation for Local 38's activi­ties (or lack thereof).

7. Marineland is a large development in Niagara Falls, over one thousand acres in size, which includes a large amusement park, a game farm, and a seaquarium, amongst other exhibits and attractions. Since its beginnings in 1961, and particularly from the time of certification in May 1976 to date, Marineland has been engaged in a constant series of construction projects, upgrading and expanding its facilities. Carpentry work was performed by the respondent from the time of cer­tification to the time of imposition of the designation scheme in March, 1978, and generally from that time until the grievance was filed. Much of this carpentry work would have been obvious to anyone passing anywhere within the vicinity of the Marineland grounds. To take the most apparent example of the ongoing construction and the ongoing carpentry work, Marineland constructed a Dragon Mountain Ride in the central area of the grounds. Construction of this project took approximately two years, and involved the building of a man-made mountain, rising to approxi­mately three hundred feet high and covering over 30 acres. When completed, it represented at the time the world's largest steel roller coaster.

8. It would have been difficult to have lived in the Niagara Falls area and have remained unaware of the regular construction and expansion of Marineland. The union was obviously aware when Mr. Varty approached employees of Marineland, in the summer of 1981, to seek to organize them. As it happens, Mr. Varty lived within several blocks of Marineland. Although he did not testify, the Board infers that he would have been aware of Marineland, and indeed have driven past it many times during the 13 year interval between certification and the notice of the grievance. He would have observed the building of the mountain from its early stages to completion, along with many of the other construction projects. There can be no question that during this period Mr. Varty would have been aware of the construction being engaged in throughout the Marineland complex, and the fact that carpentry work was involved in much of the construction.

9. Based on these facts, the respondent employer argues that between September 12, 1977, when the No Board Report issued, and the imposition of the province-wide bargaining scheme upon the parties in March, 1978, the applicant had abandoned its bargaining rights by its failure to take action to represent the employees in the bargaining unit, or to actively seek to bar­gain with the respondent. In the alternative, if the applicant had not abandoned bargaining rights by the time the province-wide scheme was imposed, it did so after the imposition of province-wide bargaining in 1978, by virtue of its inactivity and abdication of its rights during the 11 following years. Two decisions of the Board referred to were Culliton Brothers Limited [1982] OLRB Rep. March 357 and Lorne's Electric [19871 OLRB Rep. Nov. 1405.

10. Insofar as it is asserted that abandonment occurred after March 1978, counsel for the respondent argues that there is nothing in the legislation concerning the province-wide scheme of bargaining in the construction industry which precludes the Board from applying the concept of abandonment. The question of whether abandonment has occurred remains a question of fact. The Act sets up a provincial designation system, and establishes a system by which a single provincial agreement is negotiated by an umbrella employer bargaining agency and an umbrella employee bargaining agency for all constituent employers or local unions (affiliated bargaining agents) in the province. There is nothing in those provisions, submits counsel, which bars the Board from con­cluding that a particular local union has abandoned its bargaining rights. For example, Section 137(2) reads as follows:

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

It was submitted that this section merely deems the employer to have recognized all of the affili­ated bargaining agents and the employee bargaining agency ("E.B.A.") but, on its express word­ing, it limits this deemed recognition "for the purpose of collective bargaining in their respective geographic jurisdictions". (In dealing with the import of section 137(2), and certain other sections of the Act relevant to the province-wide scheme, neither party relied upon the fact that some of the deeming sections were amendments to the Act (S.O. 1979, c. 113), effective as of May 1, 1980.)

11. Section 142 reads as follows:

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

Similarly, counsel submits, this section vests all the rights, duties and obligations of the A.B.A.'s in the E.B.A., but again for a limited purpose, the purpose of conducting bargaining and concluding a provincial agreement. It is clear, asserts the respondent, that the only bargaining rights enjoyed by the E. B. A. are bargaining rights with respect to the process of bargaining towards and the con­clusion of a provincial agreement. These are the rights that the A.B.A.'s initially acquire which are deemed to transfer to the E.B.A. Counsel asserts that the E.B.A. has no bargaining rights other than those it gets from the A.B.A., and those rights are limited to the right to bargain for a provin­cial agreement.

12. What is not transferred to the E.B.A., submits the respondent, is the right and obliga­tion to represent the unionized employees working for the employer in the Board area where the A.B.A. is designated to represent those employees. In counsel's submission, the right to represent the employees, to administer and to enforce the terms of the provincial agreement insofar as the local employer is concerned, rests solely with the A.B.A., in this case, Local 38. When Local 38 has conducted itself in a manner which would lead the Board to conclude it has abandoned its bar­gaining rights, there is no legal or national impediment to the Board so declaring, and it would both make sense and be fair to so order. Counsel submits that just as decertification only takes into account the wishes of employees working for the employer, the principle of abandonment should be applied by taking into account only the conduct of the bargaining agent (Local 38) that had the authority to represent the employees.

13. Counsel also relies upon the fact that Marineland is not a typical construction contrac­tor, moving from project to project and site to site. Marineland is a construction employer solely

for its own purposes, which has engaged in construction on its own fixed site. It makes little sense, counsel asserts, where such a fixed site employer is concerned, for the Board to take into account either the conduct of A.B.A.'s in other Board areas, which have never and will never have any interaction with the employer or its employees, or the conduct of the E.B.A., which has no role to play with respect to the representative rights of employees, but is limited to bargaining for the pro­vincial agreement every two years. Finally, even if the Board were to consider the conduct of the other A.B.A.'s and the E.B.A., as none of these parties have participated in this proceeding, counsel asserts that they have indicated a lack of interest in this application, and this justifies a finding that they too have abandoned their bargaining rights.

14. Some of the carpenters of Marineland appeared and participated in the proceeding and took the same position as the respondent employer.

15. The applicant argues that it has never abandoned its bargaining rights. With respect to the 6 month period prior to March 1978, the applicant submits that in all the circumstances, 6 months is far too short a period to lead to a finding of abandonment. It argues, in support of this, that no bargaining unit work was being performed during this period. (The Board has found other­wise: see paragraph 7, supra). Insofar as the period after March 1978 is concerned, the applicant relies upon the principles described in Lorne's Electric (supra) and argues that, on the facts, there was clearly no abandonment by the other A.B.A.'s or the E.B.A.

16. We turn first to consider whether Local 38 had abandoned its bargaining rights prior to March 3, 1978. As the question of whether abandonment has occurred is a question of fact, we must take into account all of the circumstances. See Lorne's Electric, (supra) for a discussion of the principles of abandonment. In this respect, we do not consider only the events between Septem­ber, 1977 and March, 1978, in deciding whether abandonment had occurred by the latter date. Events occurring after March 3, 1978 can be relevant in assessing the meaning or effect of the union s inactivity before that date. Just as events occurring after a collective agreement has been negotiated and signed can assist an adjudicator in determining the intended meaning of particular clauses in the agreement, so too can subsequent events shed light on the question of whether aban­donment had occurred by March 3, :L978.

17. After the No Board Report, Local 38 did not again interact with Marineland until 12 years later, when this grievance was filed. While we recognize the disincentive a union might have to act upon a No Board when imposition of a province-wide scheme of bargaining is imminent~ the union led no evidence and therefore provided no explanation. The fact remains that Local 38 remained silent and inactive for a lengthy period even after the new scheme began to apply. The six months inactivity prior to March, 1978 can hardly be characterized therefore as a period during which Local 38 decided to suspend the assertion or enforcement of its bargaining rights on the basis that any individual action would be academic once the province-wide scheme began to apply. It can hardly be described as a temporary lull in active representation, and certainly not in the absence of any explanation. To the contrary, its complete passivity for the following 3 years, and its actions in then trying to organize the employees and obtain bargaining rights, illustrate that Local 38 conducted itself as if it had no bargaining rights.

18. There is no minimum dormant period that must pass before abandonment can be found to have occurred. For example, if weeks after a certificate issued a union unequivocally stated it had abandoned its bargaining rights, the Board might well conclude that bargaining rights had been abandoned as of that time. Any subsequent period of inactivity by the union would merely be confirmatory of the earlier abandonment.

19. It is clear that Local 38 thought it had no bargaining rights when it tried to obtain them

in the summer of 1981. We must decide whether those rights had been abandoned at some point prior to March, 1978. Six months of inactivity followed by conduct asserting bargaining rights would not, one would expect, lead to a finding of abandonment. Here the 6 months was not fol­lowed by any conduct asserting rights, but only by conduct demonstrating the belief that no bar­gaining rights were held. The statutory imposition of the province-wide scheme in March, 1978 does not assist us in deciding whether Local 38 had by that point already abandoned its bargaining rights. The fact remains that, after the No Board and until the grievance was filed, Local 38 acted as if it did not hold bargaining rights, and the statutory province-wide scheme does not alter this fact. Where there is such a long period of inactivity, the more reasonable inference is that the bar­gaining rights were abandoned at the beginning of the inactive period. The intervening organizing attempt reinforces this conclusion. In these unusual circumstances therefore, we conclude that Local 38 abandoned its bargaining rights before the province-wide scheme began to apply to it.

20. Because of this conclusion, we need not deal with the issue of whether bargaining rights were abandoned after the imposition of the province-wide scheme in 1978.

21. In the result, this application is dismissed.

(Board Member Gibson died before this decision was released. However he participated fully in

the proceedings, and signed the majority decision prior to his death.)

DECISION OF BOARD MEMBER C.A. BALLENTINE, December 6, 1990

1. I dissent from the majority decision, as it applies to the Local Union abandoning its bar­gaining rights prior to the advent of province-wide bargaining, in the industrial, commercial and institutional ("I.C.I") sector of the construction industry.

2. I am satisfied that Culliton Brothers Limited (1982) OLRB Rep. March 357 and Lorne's Electric Limited (1987) OLRB Nov. 1405 continues to be good law. In this regard, I note that the majority decision does not suggest otherwise. Those cases stand for the proposition that bargaining rights in the I. C. I sector cannot be abandoned by the inactivity of a Local Union. However, not­withstanding that this remains the law, the majority still finds abandonment based only on the actions of one A.B.A. (Local 38).

3. I cannot agree with the majority decision because I cannot agree that the six month period prior to March 3, 1978 when province-wide bargaining became applicable to these parties is sufficiently long on which to conclude that abandonment has occurred. In both Culliton Brothers Limited and Lorne's Electric Limited the period of inactivity, prior to the onset of province-wide bargaining, was much longer.

4. However, as an employee representative of the Board I am troubled by the Local Union's negligence in this particular case. Carpentry work was performed at this project at Marine-land in Niagara Falls Ontario from the time of certification, May 1976, to the time the grievance was filed in May 1989.

5. During this 13 year period Marineland has build many structures and a man made mountain approximately three hundred feet in height, which covers an area of 30 acres on a 1,000 acre site, all of which was publicized across the whole province of Ontario.

6. The scheme of "Province Wide Bargaining" not only has brought collective bargaining stability to the construction industry in Ontario, it has specifically benefited the International Unions by giving them a very excellent expedited process of obtaining bargaining rights through certification, as well as maintaining those bargaining rights. It is the local union's obligation to per­form their responsible duties in a prudent manner.

7. This is not the first case before this Board where the Affiliated Bargaining Agents' (Local Unions) of the (International Unions) which are part of the Employee Bargaining Agencies have been less than vigilant in the policing their bargaining rights. In Culliton Brothers Limited it was the Sheet Metal Workers, and in Lorne's Electric Limited it was the Electrical Workers.

8. In all of these cases and other similar situations, the workers' job opportunities, fair wages and working conditions have been neglected because the Unions' have failed to represent the members in a proper manner, in accordance with the scheme of province-wide bargaining.

9. In this particular situation the International Union has recently taken remedial action to correct this incident by placing the Local Union involved under trusteeship. It is hoped that this International Union and other International Unions will be more diligent in the future seeing to it that Local Unions are protecting their bargaining rights before the imposition of trusteeship becomes necessary.