[1990] OLRB Rep. March 347
1644-89-U Ted Stothers and Bruce Skreptak, Complainants v. International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers Local 128, Respondent v. Hydra-Dyne Industrial Cleaning Services Ltd., Intervener
BEFORE: K. G. O'Neil, Vice-Chair.
APPEARANCES: Lyle F. Curran, Bruce Skreptak and Ted Stothers for the complainants; David McKee, Joe Maloney and Michael McCabe for the respondent union; Joe Dynes for the intervener.
DECISION OF THE BOARD; March 12, 1990
This is a complaint under section 68 of the Act.
The complainants were employed by the intervener (referred to as Hydra-Dyne or the employer in this decision) between February 1986 and October 1987. They allege that the collective agreement between the union respondent (referred to as "the union" or "the Boilermakers" in this decision) and Hydra-Dyne covered them and that the union consented to the employer's failure to apply it to them in breach of its duty of fair representation. The employees would have earned substantially more money at the union rate of pay than what they were paid by the employer; they claim the difference as remedy. The employer and the union agree that these two employees were part of a list of casual employees who had always been outside the collective agreement. It is common ground that dues have never been deducted from the complainants' pay, nor the collective agreement applied to them in any way.
At the outset of the hearing, the union moved for dismissal of the complaint on the basis of delay. The complainants' last work for Hydra-Dyne was in October of 1987. The complainants allege that as of May 1986 they both ought to have been treated as within the bargaining unit, having worked long enough to be admitted to the union if they were covered by the collective agreement. However, the union alleges it heard nothing definite of the complaint until April 3, 1989 at which time it was served with notice of a statement of claim in a civil court action suing for the difference between the rate paid to the complainants and the union rate. That action was stayed pending this Board's determination of the matter. The Board dismissed the union's motion orally at the hearing indicating that despite the lengthy delay, which would be taken into account in the fashioning of a remedy, if any, it would exercise its discretion to hear the complaint given the allegation that the complainants were intentionally misled as to their rights by the respondent.
Hydra-Dyne operates a high pressure water cleaning business in what the parties refer to as "Chemical Valley" in Sarnia. It is the successor to a number of previous corporate entities. Joe Dynes, President of Hydra-Dyne, has worked in the high pressure water industry since 1967 when he started as a casual labourer. In this capacity he worked 80-hour weeks but was not covered by the collective agreement in place for full-time employees.
Mr. Dynes was a manager for Vacuum Industrial Pollution Industrial Inc. (sic), ("VIP"), Hydra-Dyne's immediate corporate predecessor in late 1984 when it went into receivership. He arranged to keep the business going and rented VIP's trucks, commencing operation as Hydra-Dyne Industrial Cleaning Services Ltd. He voluntarily became the successor employer to VIP's collective agreement.
VIP had been the successor to the first collective agreement in evidence, between Vacuum Anchor Corporation ("Vacuum Anchor") and the International of the Boilermakers, effective from April 13, 1981 to April 12, 1983. By way of a January 30, 1984 related employer declaration this collective agreement bound VAC Services, Division of 464555 Ontario Limited ("VAC"). Prior to the hearing of a section 63 application VIP and the union agreed that VIP was the successor to VAC. This agreement is recorded in an unreported decision of the Board dated August 28, 1984, Board File No. 1156-84-R.
Wages for the years 1983-84 were dealt with by way of an Appendix attached to a signature page dated April 22, 1983 signed by the principal of VAC and the Boilermakers, Lodge No. 128. The union party to both the related employer declaration and the agreement which bound VIP is Local 128 of the Boilermakers whereas it was the International which signed the Vacuum Anchor agreement. No issue was made of the different naming of the union party and there is no question that from the date of the above signature page, April 22, 1983, the relevant union party was Local 128 and not the International. Appendix "A" to the signature page provides a wage schedule for various classifications (identical titles to those in the agreement with Vacuum Anchor).
Mr. Dynes received the following letter dated February 14, 1985 from union counsel:
We are solicitors to the International Brotherhood of Boilermakers', Ironship Builders, Blacksmiths, Forgers & Helpers.
Mr. McManus has asked me to inform you that pursuant to our Collective Agreement with your company, casual labour is not recognized. Be advised that all employees covered by the Collective Agreement must have their vacation pay deducted at source and remitted to the Administrator for the Boilermakers' Health, Welfare and Vacation Pay Trust Funds.
Mr. McManus also informs me that the Company is now operating under the business style of HYDRODYNES.
Be advised that pursuant to the Labour Laws of the Province of Ontario, Hydrodynes and V.I.P. International Inc., are deemed to be one and the same for the purposes of our Collective Agreement. For greater certainty we wish to inform you that Hydrodynes or any other company carrying on related or successorship business with or for V.I.P. International Inc. is bound to the full terms of our Collective Agreement.
Mr. Dynes contacted Mr. McManus, the union's International Representative, and told him that he had agreed to successorship so they could go ahead with the contract he had just gotten and that he could not function without the "casual - collective agreement split". Mr. McManus agreed to put the question to the membership "to continue as it had been before." To Mr. Dynes this meant a group was under the collective agreement and a group was on a casual basis. He acknowledged that casuals do the same work as those paid the rate under the collective agreement. He maintains he referred to no particular document in making these arrangements with Mr. McManus; he was strictly interested in the "bottom line" so he could get on with business.
We note there is no evidence before the Board to base a conclusion that any improprieties and/or crimes committed by Mr. McManus and/or Mr. Mott (the principal of VAC and Mr. Dynes' former employer) affected this matter, despite the suggestions of counsel for the complainants in cross-examination. The possibility of fraud on the part of the union and himself was also put to Mr. Dynes in cross-examination. He denied these allegations, defending the different treatment of the complainants and others on the list of casual employees on the basis of the practice in the industry. Mr. Dynes himself worked four years in the business before being "let into the union."
On January 21, 1986, Joe Maloney took over from Mr. McManus as International Representative and became responsible for Local 128. Mr. Dynes told Mr. Maloney that things would have to continue "the same as in the past in order [for him] to survive." They reached an agreement to have a wage reduction of twenty-five cents per hour for a year which was voted on by the union membership. Some time after this Mr. Maloney became aware that there was an industry practice to work with two groups, one organized and one not. He had nothing to do with the latter. When asked in cross-examination what a full-time employee was (as opposed to a casual), he answered, "whichever the company hires as full time."
The next written evidence of a collective agreement is entitled "Memorandum of Settlement" between Hydra-Dyne and Local 128 running from February 1, 1987 to January 31, 1990. With the exception of minor changes not relevant to this dispute the pertinent portions of the Recognition, Scope and Union Security Clauses are identical to the collective agreement with Vacuum Anchor and provide as follows:
ARTICLE ONE RECOGNITION
A) The employer agrees to recognize the Union as the sole bargaining representative for all its employees which will include but not be limited to Hydra-Blast Technicians and Vacuuming Technicians Trainees employed within the scope of this work save and except office and sales staff, foreman and those above the rank of foreman, engineers and time keepers.
B) The company agrees to recognize the Water and Vacuum Council of Trade Unions as bargaining agent for the employees covered by the terms of this agreement as described in paragraph ONE (A). This provision will take effect upon receipt of written notice from the officers of Local 128 to the company, only after the members covered under the terms and conditions of this agreement shall ratify by way of vote, then duly transfer such authority to the said council.
ARTICLE TWO SCOPE
A) This agreement shall apply in respect to all Hydra-Blasting work performed by the Employer; also on all Vacuum work done by the Employer and any maintenance of equipment involved with the above mentioned work by the employer or by any person, firm or corporation owned by the company or financially controlled by the Employer in Canada.
B) This agreement shall cover all areas of work except that which fall within the field of Boilermaker's jurisdiction. For example, on Building Trades jobs, the opening and closing of towers, drums and any internal work; also loading of Catalyst, ect. [sicl is work done by field Boilermakers from Lodge 128 in the area in which the work is being done.
ARTICLE THREE UNION SECURITY
A) The employer agrees to employ as employees members of the union in the performance of all work within the scope of this agreement. The employer will deduct from the first pay period of each month, union dues covering all employees engaged on work coming within the scope of this agreement; also initiation fees, or reinstatements covering new employees and promptly remit same together with a list of names of the employees whose union dues, initiation fees or reinstatements are so deducted to the Secretary Treasurer of Local 128.
B) The union dues remissions required shall be remitted not later than the 15th day of the following month and shall be accompanied by the official forms and include all employee's social insurance numbers.
C) The employer shall be entitled to hire and train persons for work as Technicians or Trainees although such persons may not at the time of hiring be members of the union. The technician shall be initiated into the union within (10) ten days of hiring and all deductions under this agreement shall apply. The Probationary Member (Trainee) will have a ninety (90) day probationary period after which he will be initiated into the union and all deductions under this agreement shall apply.
D) All parties agree that during the life of this agreement there will be no strike or lock out.
Wages are dealt with in Appendix A with a list of classifications which is shorter and different from, but apparently comparable to, that in the collective agreement with Vacuum Anchor. Mr. Dynes considered it an extension of the "existing" contract from VIP.
Mr. Dynes testified that during discussions which resulted in the '87-'90 agreement the conversation about casuals was that "they would all remain the same except the wages." In Mr. Dynes' view, there was no limit on his right to engage casual employees. However, Mr. Dynes claims never to have read the entire agreement, including the union security clause, since his main concern was the wage rate and the documents had been in the hands of the R. C.M.P. for some period of time during its investigation of Mr. Mott's activities.
The cleaning equipment used in the employer's business is operated from a truck with two people; the lead hand is the more experienced of the two on the truck. The classification of lead hand is dealt with in both the agreement with Vacuum Anchor and Hydra-Dyne by payment of a premium of 50 cents per hour. Both complainants started as apprentice-mechanics for Hydra-Dyne and later became lead-hands for which they received an hourly premium of 50 cents over their regular rate of pay, which, as noted above, is much lower than the union rate. The complainants had been aware of the differential since early on in their employment with Hydra-Dyne. Messrs. Stothers and Skreptak complained to Dynes about their pay, asking for more, and he gave them increases on unspecified dates.
The complainants, as well as most others doing the same work for the employer, worked on call with no regularly scheduled hours. When Mr. Dynes obtains a job he calls people in to work from two phone lists. He calls everybody who is "covered by the collective agreement", who are listed in order of seniority, before he goes to the casual list. With the exception of one major client who requires two men on a daily basis, all the work is call-in. The call-in system is used because there are great fluctuations in the volume of work and very little notice when a job does come in.
Bruce Skreptak thought that the process for getting into the union under the 1986 contract was to be voted in but "they were not doing it then." He also heard that at the time of the 1987 contract negotiations five men were to be admitted to the union. After it was signed a number of the union men informed him he would not be getting into the union. Mr. Skreptak had also worked for VAC and then VIP under Mr. Dynes in 1983 - 1984 as a "non-union man". He left that job before he had what he considered enough hours to get into the union. It was his impression from co-workers that it was a just matter of time before he would be initiated into the union.
After hearing from fellow employees in the spring of 1987 that they were not going to be "let in" to the union Mr. Skreptak and Mr. Stothers went to see Mr. Maloney at the union hall. The complainants' desire to talk to Mr. Maloney was partially prompted by "talk" that they were going to have to pay union dues. The complainants wanted to tell Mr. Maloney that they would not pay union dues unless they were covered by the collective agreement.
There was a fair amount of conflicting evidence about conversations between the complainants and union representatives. It is not necessary to set it out in detail here. What is important in the view I take of this matter is that the complainants made themselves and their situation known to the union and asked to join; it never took the position it represented them. That much was common ground.
In the Spring of 1987 subsequent to the meeting of the complainants and Mr. Maloney, Joe Dynes talked to Messrs. Skreptak and Stothers in the dispatch office saying that he would have to close shop if they were going to be oriented into the union, that he could not afford to pay the union rate to non-union men. Dynes told them they should not try to get into the union - that they would not be successful.
Michael McCabe took over Maloney's job in the summer of 1987. Mr. Stothers went to see Mr. McCabe "to see the contract and go over it." Mr. McCabe explained to Mr. Stothers his understanding that he was a casual employee, and that he had not been hired on a full time basis. Mr. McCabe spoke to Mr. Maloney a day or two later and had the files sent down with a copy of
the collective agreement which he did not have when he spoke to Stothers. He did not do anything about Stothers after that. Mr. McCabe testified that the understanding in the industry was that casuals were hired on for temporary peak periods.
Argument
Counsel for the complainants argues that nothing could be more clearly discriminatory under section 68 than an arrangement sanctioned by the union whereby there are two groups of employees, one subject to the collective agreement and the other subject to whatever the employer says. He submits that the union made a deliberate decision to tell the complainants that they were not entitled to the benefit of the collective agreement when it knew they were so entitled. The fact that it appears to have been done with the knowledge of the other union members means they should share the responsibility for this deliberate course of conduct. Counsel maintains that is clearly illegal for the union to ignore the union security provisions as was done here. He dismisses the notion that this can be considered a case involving serious delay in that the union intentionally misled the complainants as to their rights. The complainants then found it difficult to get assistance as they were advised to deal with their union first. He submits that this is not the type of delay that should bar remedy.
Union counsel characterizes the case as one in which there is no duty to represent these men as the union is not entitled to represent them. He submits the threshold conditions of section 68 have not been established. Further, he submits that the evidence of a course of conduct between the union and a series of companies shows that this bargaining unit does not include the group of people known as casual. The fact that the complainants have worked enough hours to be initiated into the union if they were covered does not make them covered by the collective agreement, particularly after the 1985 letter in which the union raised the issue and then dropped it. It is clear that both parties understood that the collective agreement did not apply to these employees. Since a certificate merges in the collective agreement, the bargaining rights extant are those in the most recent collective agreement. Regardless of the wording of the collective agreement these parties are agreed that these employees are not covered; they are free to organize. Counsel submits that it is particularly understandable in an industry with a very fluctuating workload that there would be a core group of employees, with the casuals separate and apart.
Counsel distinguishes Consolidated Fast Frate Limited, [1984] OLRB Rep. May 691 on the basis that the union in that case had taken money from and negotiated on behalf of the employees, neither of which facts pertain in this case. The union's position is that there is no unfairness here. The union never held out it was doing anything for these men; it is not a case where they took from them and gave nothing in return.
Additionally, counsel argues that even if the union had ever been entitled to represent casuals (and there is no evidence of that) the most that can be said is that the union has abandoned its bargaining rights, which has never been treated as an unfair labour practice by the Board.
In the alternative, the union takes the position that if a duty existed, there was no breach because the complainants did not pursue their complaint with the union in an effective manner. Counsel maintains that all the complainants asked the union was if they could get into the union. Further counsel argues that the complainants have represented to the union by their course of conduct between the summer of 1987 and April 1989 that they have no complaint - that there is nothing they want the union to do.
In any event, it is argued, the interpretation taken by the union of the collective agreement was not perverse in the light of nine years practice to the contrary. The union did direct its mind to the relevant issue: were these men in the bargaining unit. If the union is incorrect in its understanding of the current composition of the bargaining unit, that is the worst that can be said. It is wrong, not arbitrary, discriminatory or acting in bad faith.
Counsel submits it would be necessary to find that a properly filed grievance on these employees' behalf would have been successful to give them the remedy they seek. He submits that the employer would have had good reason to raise an estoppel argument which would have run at least the course of a collective agreement.
Mr. Dynes submitted that if the arrangement with the union had been working for all these years and throughout the industry he had no reason to "assume anything different".
Complainants' counsel argues in reply that since there is no ambiguity in the wording of the collective agreement the past practice is of no assistance to the union. He submits that the parties to a collective agreement cannot have a deal the employees cannot see. The union should not be allowed to say it will not enforce the collective agreement.
Decision
The first question to be answered is whether there was a duty owed by the union to the complainants under section 68. This requires a finding as to whether the union continued to be entitled to represent the complainants in a bargaining unit.
A union becomes entitled to represent employees in a bargaining unit either by certification or voluntary recognition. In either case, once the union has concluded a collective agreement with an employer, it is that document which defines the bargaining unit which the union represents. The evidence establishes that the union and employer were bound by successive collective agreements which covered the entire period of the complainants' employ, with recognition and scope language as set out above. That language, on its face, communicates not only coverage of all employees, but also of all work of the sort performed by the complainants. The recognition, scope and wage classification provisions use language which, in the absence of other evidence, would mean that the complainants were covered by the collective agreement while they were working for Hydra-Dyne. Thus, on an interpretation of the wording of the collective agreement, I would find that the complainants were covered by the collective agreement and should have had dues deducted, in the absence of other evidence.
However, there is other evidence. That further evidence establishes that the union had abandoned any rights it may once have had to represent casual employees, and that it did so long before the complainants' employment with Hydra-Dyne. Thus, during their employment with Hydra-Dyne, Messrs. Stothers and Skreptak were not employees in a bargaining unit which the union continued to be entitled to represent. Consequently, they were not owed a duty under section 68. In coming to this conclusion I have assumed, without finding, that the union was once entitled to represent the employees on the casual list. (Although there is no evidence that the union was ever entitled by certificate to represent the casual employees, the broad "all employee" language suggests it may have been so entitled by certificate or voluntary recognition and the 1985 letter from counsel indicates that the union was taking the position it was. Another possibility is that the union never had such rights. The union and the employer may never have intended to cover casuals, but created a latent ambiguity by using the words "all its employees" to mean all its non-casual employees. See Delphis W. Vandette, [1988] OLRB Rep. Feb. 215.)
The statutory provisions dealing with termination of representation rights by the Board contemplate the expression of the wishes of the employees as to whether they do or do not wish to continue to be represented by a union. However, it is not essential to have the majority consent of employees in the bargaining unit for a union to cease being entitled to represent them. Under the circumstances in which section 57(5) applies, for example, a union need only inform the Board that it does not desire to continue to represent employees in a bargaining unit for the Board to be enabled to grant an application for a declaration that the union no longer represents the employees in that bargaining unit. Similarly, a union can abandon bargaining rights by failing to exercise them. On a finding of fact by the Board that bargaining rights previously existing have been abandoned, the union is found to have lost the right to represent the employees in a bargaining unit by its own unilateral action or inaction. See among others, Re Carpenters' District Council and Hugh Murray (1974) Ltd., 1980 CanLII 1826 (ON HCJ), 125 D.L.R. (3d) 568.
After Mr. McManus and Mr. Dynes came to their understanding as a result of union counsel's 1985 letter, it is clear that the union had decided not to exercise any rights it may have had to represent the casual employees. Moreover, the union's total inactivity on behalf of the employees on the casual list prior to that point would undoubtedly have warranted a finding of abandonment prior to the 1985 letter. The letter appears to have been a brief attempt at resurrecting the right to represent these employees. However, having failed to pursue the matter for another two years after this by the time the complainants raised the issue with the union in 1987, the union has demonstrated a complete failure to assert bargaining rights on behalf of the casuals.
Although most of the cases of abandonment in the Board's jurisprudence involve an entire bargaining unit, the Board has also found abandonment of part of a bargaining unit. In York-Finch General Hospital, [1987] OLRB Rep. April 641, the union had negotiated language describing a bargaining unit which did not exclude part-time employees. The Board found that the 1974 certificate and successive collective agreements included part-time employees in their scope, but that the collective agreement had never been applied to part-time employees. At various times from 1977 onward the union raised the issue but took no steps to enforce any rights they may have had pertaining to part-time employees. The Board cited the following excerpt from J. S. Mechanical, [1979] OLRB Rep. Feb. 110:
Over the last 20 years the principle of abandonment has been deeply entrenched in the Board's jurisprudence. Once a union has obtained bargaining rights either through certification or voluntary recognition it is expected that it will actively promote those rights. If a union declines to pursue bargaining rights it may lose them through disuse. Whether a union has abandoned its bargaining rights is a matter which must be assessed on the facts of each individual case, but once the Board is satisfied that a union has failed to preserve its rights, the union may no longer rely on them....
In assessing the bargaining relationship between the union and the employer to determine whether or not a union has abandoned its bargaining rights, the Board considers various factors. Among other possible indicators, the Board looks to the length of the union's inactivity, whether it has made attempts to negotiate or renew a collective agreement, whether the union has sought to administer the collective agreement through the grievance and arbitration provisions in the collective agreement, whether terms and conditions of employment have been changed by the employer without objection from the union as well as whether there are any extenuating circumstances to explain an apparent failure to assert bargaining rights.
It is apparent that considering these or any other indicators, the Boilermakers have failed to assert bargaining rights on behalf of the casuals. Thus, any such rights which they may have had have lapsed and neither they nor the complainants can rely on them.
This is how the Board has treated the non-enforcement of bargaining rights in most of the relevant jurisprudence. An exception is Day & Campbell Ltd., [1964] OLRB Rep. May 85, where on a displacement application the applicant argued abandonment because the collective agreement had never been applied to a group of stationary engineers who were covered by the language of the collective agreement. Based on considerations of unfairness to the employer party to the collective agreement, a majority of the Board said it would be unthinkable to allow the respondent union to unilaterally abandon all or any part of its bargaining rights during the life of the subsisting collective agreement. Even if this line of thinking had been adopted in later Board decisions, there is simply no evidence before me that the original abandonment of any bargaining rights for casual employees the Boilermakers had was not at a point when a subsisting collective agreement had expired. Any unfairness to the employer in this case would be in enforcing rights that he, too, considered non-existent.
This is not to say that abandonment is an absolute defence to a complaint of unfair representation. If a union abandons its rights to represent a group of employees in a manner which itself is arbitrary, discriminatory or in bad faith, abandonment may not be an answer to a complaint under section 68 by a member of that group at the time of the abandonment. Notionally at least, at the very point in time when the union says it is abandoning its representation rights, it is still entitled to represent those for whom it is about to abandon its rights. If, for example, the union abandoned the rights to represent specific employees because they were political opponents of the current executive it is likely that the act of abandonment alone would not be a defence. In this case no such personal discrimination against the complainants was alleged. Moreover, if the union ever did have bargaining rights for casuals, it abandoned them before the complainants became employees at Hydra-Dyne. Thus, it is unnecessary to determine in this case whether such abandonment would have constituted a contravention of section 68 if the complainants had been employed by Hydra-Dyne at that time.
Evidence as to exactly when the decision was originally made to agree to the casual/collective agreement split, as the parties call it, is not before me. It had apparently been in place for a period of time measured in years when Mr. Dynes took over from his predecessor in 1984. A person not in the bargaining unit at the time of an alleged breach cannot successfully complain of it since no duty is owed to an employee not in the bargaining unit. See, for example, C. U.P.E., [1974] OLRB Rep. Mar. 176. If the union ever did have bargaining rights for casuals, it had abandoned them by 1985 at the very latest. Thus, even if agreeing to the above state of affairs were a breach of section 68, it occurred long before the complainants were working for Hydra-Dyne. It would not be a breach of which they can complain. The abandonment had become effective to terminate any pre-existing representation rights long prior to the complainants' presence on the scene. This is not a question of delay on the part of Messrs. Skreptak and Stothers. Even if they had filed this complaint in April, 1987, it would have been too late as the bargaining rights had already lapsed. It is therefore unnecessary to deal with the union s argument that their delay in filing the complaint deprives them of any right to a remedy for any breach.
In deference to arguments made by both counsel on the effect of past practice, I will address that issue, although the above disposes of the complaint. It is my finding that even if there had been representation rights outstanding on which the complainants could have relied when it first raised the matter with the union in the spring of 1987, the union would not have been in a position to effectively assert them. Because of its previous conduct, it would have been prevented from asserting them at least for the term of that collective agreement (until 1990), by operation of estoppel.
Estoppel is a rule of evidence aimed at promoting fairness. The idea is that the union should not be allowed to act as if it did not have the right to represent casual employees, even if it had the legal right to do so, and then turn around and take a contrary position insisting that it did have the right to represent them when it would be unjust to allow it to do so. The Courts, the Board and arbitrators have all showed a willingness to apply this principle when appropriate, but have required that certain conditions be present - an unambiguous representation, intended to affect legal relationships, which was relied on to its detriment by another party. Estoppel has not been found to exist where the promise or assurance was not clear and unequivocal, Candesco (1978) Ltd., [1982] OLRB Rep. Nov. 1587, or when there was no intention to modify the legal relationship between the parties, as in Mechanical Contractors Association of Ontario, [1986] OLRB Rep. June 768. Nor has it or can it be applied to prevent the performance of a duty required by statute. See Maritime Electric Company v. General Dairies Limited, 1937 CanLII 293 (UK JCPC), [1937] 1 D.L.R. 609, applied in Culliton Brothers Limited, [1982] OLRB Rep. Mar. 357, and K Mart Canada Limited, [1983] OLRB Rep. May 649, among others. In Metropolitan Toronto Civic Employees Union and Metropolitan Toronto, 1985 CanLII 2088 (ON HCJ), 50 OR (2d) 618, the Divisional Court noted that the application of estoppel was not at odds with the Act's requirement that a collective agreement be in writing.
In the Board's view, there is no doubt that the essential elements of an estoppel would have existed in this case even if the bargaining rights had been technically outstanding. As between the employer and the union, a promissory estoppel would have operated to prevent the union from enforcing the collective agreement language set out above in a manner which asserted rights to represent casual employees. This would be consistent with a variety of cases in which the Board and arbitrators have applied an estoppel or its functional equivalent when considering the question of the composition of a bargaining unit. This is a matter of applying estoppel as a matter of evidence pursuant to a statutory duty rather than its application to prevent the performance of such a duty. See, among others, Ramsay Industries Limited, [1966] OLRB Rep. June 192, Lloyd Bank Company Limited, [1960] OLRB Rep. May 71, Westburne Industrial Enterprises Ltd. [1989] OLRB Rep. June 658. A fact situation involving parties other than the parties to a collective agreement is Silverstein's Bakery Limited, [1983] OLRB Rep. Dec. 2095. See also, in the arbitral context, Re Hypernetics Ltd. and I.A.M.A.W., Local Lodge 1542, 1982 CanLII 5045 (ON LA), 7 L.A.C. (3d) 211 (K. P. Swan). In that case the union was held to be estopped from asserting that students performed jobs falling within a bargaining unit which arguably, by the collective agreement language, covered them, because the union had given the employer an assurance it had no intention of representing students and had failed to take any action in the face of the employer's failure to apply the collective agreement to them.
In the same vein, see General Concrete of Canada, 9 CLLC ¶14,205. In that case, the Divisional Court considered an arbitration decision which had found "all employee" bargaining unit language in a collective agreement to be unambiguous and therefore to include "independent truckers" whom the Board had earlier found to be employees under the Act. A majority of the Court, Krever, J. dissenting, overturned the decision, finding the language "all employees" to be ambiguous and the arbitrator to have erred in relying on the Board's finding. The Court specifically approved the application of the doctrine of estoppel (presumably if properly made out before a new board of arbitration) to exclude the "independent truckers".
Based on all of the above, the Board finds that the union did not continue to be entitled to represent the complainants during their employment with Hydra-Dyne. Therefore it owed them no duty under section 68. The complaint is dismissed.