Ontario Labour Relations Board

[1990] OLRB Rep. September 947

1011-88-G Sheet Metal Workers International Association, Local 47, Applicant v. Robert Laframboise Mechanical Limited, Respondent

BEFORE: N. B. Satterfield, Vice-Chair, and Board Members D. A. MacDonald and S. Weslak.

APPEARANCES: Bernard Fish bein, Ross Mitchell and Robert Belleville for the applicant; Peter Chauvin and Robert C. Laframboise for the respondent.

DECISION OF THE BOARD; September 27, 1990

1. The Board dismissed this application made under section 124 of the Labour Relations Act for final and binding arbitration of a grievance in the construction industry for reasons which were to be given later. These are the Board's reasons for its decision.

2. The grievance alleges that the respondent failed to employ members of the applicant Sheet Metal Workers International Association, Local 47 ("Local 47") to perform work covered by the collective agreement binding on them on the respondent's construction projects, including the Hotel Dieu Hospital in Cornwall, Ontario, and, in doing so, has violated various provisions of the collective agreement. More specifically, Local 47 alleges that the respondent has employed persons who are not members of Local 47 to prepare "...shop and field sketches used in fabrication and erection..." contrary to the 1986-88 and 1988-90 provincial collective agreements between the Ontario Sheet Metal and Air Handling Group and the Sheet Metal Workers' International Association and Ontario Sheet Metal Workers' Conference. The Ontario Sheet Metal and Air Handling Group is the designated employer bargaining agency for purposes of bargaining a provincial agreement (which the Agreements are). As such, it represents in bargaining all employers who are bound by these agreements, the local trade associations who are bound by them and employers who are members of those associations. The Sheet Metal Workers' International Association ("the Association") and Ontario Sheet Metal Workers' Conference together are the designated employee bargaining agency for purposes of bargaining a provincial agreement on behalf of each other and their affiliated bargaining agents covered by the agreement. Local 47 and 10 other locals of the Association are the affiliated bargaining agents bound to the 1986-88 and 1988-90 provincial agreements. The Board will refer to them individually as "the 1986-88 Agreement" and "the 1988-90 Agreement" and collectively as "the Agreements".

3. The parties agreed that Local 47 and the respondent are bound to the Agreements. They agreed also that the Board should decide only the issue of the respondent's alleged breach of the Agreements and, if found, remain seized in respect of the amount of damages owing, if any.

4. Counsel for the parties agreed at the start of hearing into the application that the specific work alleged to have been performed by persons who are not members of Local 47 contrary to the Agreements is the preparation of interference drawings. While the primary position of each was that the relevant language of the Agreements was unambiguous, they acknowledged that the Board likely would need to hear extrinsic evidence of past practice under the Agreements and of the negotiating history of the parties in order to satisfy itself whether there is a latent ambiguity in the relevant Agreement language. Consequently, they asked the Board to admit such extrinsic evidence subject to final argument on relevance and weight, if any, to be given to that evidence. The Board proceeded according to their agreement.

5. The Board heard the evidence of 21 witnesses during 15 days of hearings extending over a seven month period. The findings of fact herein have been made having regard to the Board's assessment of the witnesses' credibility and to the submissions of counsel on the evidence and the credibility of witnesses. The Board's assessment of credibility took into account the clarity with which witnesses were able to recall and relate the events about which they were testifying, having regard to the fact that many of them were testifying to events which happened as long as 20 years ago, their ability to avoid the influence of self-interest, their general demeanour, the submissions of counsel and what is reasonably probable in the circumstances about which they were testifying. Some witnesses for both parties occasionally succumbed to the influence of self-interest in the process of trying to recall and recount details of events which had occurred 10 to 20 years ago. In assessing their evidence in particular, the Board has had regard for what is reasonably probable in the circumstances. The Board will deal with particular issues of credibility to the extent necessary in setting out its findings of fact.

6. The wording of the specific clauses of the Agreements on which Local 47 relies for its claim that preparation of interference drawings is work covered by the Agreements did not change between the 1986-88 Agreement and the 1988-90 Agreement, but one clause was re-located from the Ottawa Appendix of the 1986-88 Agreement to the Body of Agreement in the 1988-90 Agreement. The parties agree that the meaning of the clause did not change as a result of its re-location. The Agreements are organized into a main part called the "Body of Agreement", a series of appendices and a Wage Schedule. The language at issue about whether the preparation of interference drawings is work covered by the Agreements is located in the Body of Agreement section and in Appendix "E" - Ottawa Area. It is the emphasized passages of the quotations set out below.

Clause 1.1 of the Agreements provides that the appendices and Wage Schedule form part of each Agreement. Clause 1.2 of the Agreements states:

1.2 To the extent that an appendix covers matters dealt with in the body of this Agreement the terms of that Appendix shall govern for its relative geographic area or segment of the sheet metal industry. To the extent that an Appendix is silent on such matters the terms and conditions set out in the body of this Agreement shall govern.

Clause 19.1 - Trade Jurisdiction of the Ottawa Appendix of the 1986-88 Agreement provides in part that:

19.1 The terms of the Body of this Agreement and of this Appendix "E" are hereby recognized and accepted as binding on the Local Trade Association and Local Union No. 47 and shall apply in the manner and under the conditions specified therein to the:

(e) ...preparation of all shop and field sketches used in fabrication and erection;

(f) all other work included in the jurisdictional claims of Sheet Metal Workers' International Association, and none but journeymen sheet metal workers and registered apprentices, recognized by Local Union 47 shall be employed on said work by the employers,... The above specified work must be executed within the geographic area of this Appendix, regardless of prevailing wage rates that exist in other areas.

[emphasis added]

The "Local Trade Association" is the Mechanical Contractors Association - Ottawa (hereafter "the MCA-Ottawa"). Clauses (a) to (d) describe a variety of work claimed to be the work jurisdiction of Local 47 (see clause 19.1 quoted in full at paragraph 16). The relevant part of Clause 19 -Trade Jurisdiction of the Ottawa Appendix of the 1988-90 Agreement states:

Clause 19- TRADE JURISDICTION

Refer to Article 29 Body of Agreement

19.1 The terms of this Agreement including this Appendix" E" are hereby recognized and accepted as binding on the Local Trade Association and Local Union No. 47 and shall apply in the manner and under the conditions specified herein including:

• the preparation of all shop and field sketches used in fabrication and erection;

The above specified work must be executed within the geographic area of this Appendix, regardless of prevailing wage rates that exist in other areas.

[emphasis added]

Article 29 - Trade Jurisdiction in the body of the 1988-90 Agreement provides that:

Article 29- TRADE JURISDICTION

This Article does not apply to Appendix "A", Sheeting and Decking.

Refer to Clause 19, Local Appendices for additional provisions.

This Agreement covers the rates of pay, rules and working conditions of all employees of the employer engaged in but not limited to:

(a) the manufacture, lay out, fabrication, assembling, handling, erection, installation, dismantling, conditioning adjustment, alteration, repair and servicing of all ferrous or non-ferrous metal work and all other materials used in lieu therefore;

(b) all pollution control systems, dust collecting and control systems, vacuum systems, grain spouting, material blowing, any and all types of product moving systems air or otherwise and including recovery systems;

(c) all heating, ventilating and air-conditioning systems and all other forms of air handling systems regardless of material used, all humidifiers, de-humidifiers (dryers), all associated ducting for a complete air handling system regardless of gauge, all hoods, cabinets, including the setting of all equipment and all reinforcements and hangers in connections therewith;

(d) all lagging over insulation and all duct lining regardless of gauge or material used, all internal insulation thermal, acoustical regardless of material used, sound attenuators and silencers;

(e) testing and balancing of all air handling equipment and duct work;

(f) all metal working aspects of the showcase, display neon and metal sign industry;

(g) all metal cabinets, custom built tables, counters, fixtures, etc. normally associated with hospital and kitchen equipment work and environmental control rooms, clean rooms, including walk-in coolers erected on site;

(h) all sheet metal cladding, sheeting, enamel panels, fascia, soffits and decking regardless of the type of structural frame involved;

(i) the placing and installation of standard metal, production items such as metal shelving, metal lockers, window frames, toilet partitions and all metal ceiling systems etc.;

(j) any and all sheet metal work in connection with laundry shutes and garbage chutes which are a permanent part of the building;

(k) the erection of ventilators, ovens and spray booths;

(1) all rigging, lifting and placing of all sheet metal trade materials and equipment on the jobsite (subject to trade practice);

(m) all metal roofing including but not limited to sheet metal gutters, flashings, copings, vents, etc. or materials used in lieu thereof and all grouting associated with the roofing industry;

(n) the fabrication and installation of computer floors;

(o) the installation of radiator covers, convector covers and all continuous grilles and all support brackets, carrier brackets used in association therein;

(p) installation of all draft curtains, fire stops;

(q) fabrication and installation of catch pans and guards, covers for conveyor systems regardless of type, edge dryers, lubrication bot coolers associated with pulp, paper, gypsum and cement plants;

(r) all tools powered or otherwise, used on all projects and shops for work under the jurisdiction of a local union covered by this Agreement shall be operated only by bona fide members of the Sheet Metal Workers' Union;

and all other work included in the jurisdictional claims of the Sheet Metal Workers' international Association;

Only certified journeymen and registered apprentices and other qualified sheet metal workers recognized by the local union shall be employed on any of the said work by the Employer;

[emphasis added]

The Body of Agreement of the 1986-88 Agreement does not contain an article for trade jurisdiction.

7. Local 47 claims that the preparation of interference drawings is included in the phrase "...the preparation of all shop and field sketches used in fabrication and erection,..." which appears in Clause 19.1 of the Ottawa Appendix in the Agreements. In any event, if it is not included in that language, Local 47 claims that work is captured by the basket clause "...and all other work included in the jurisdictional claims of Sheet Metal Workers' International Association,..." which is part of sub-clause (f) of Clause 19.1 of the Ottawa Appendix of the 1986-88 Agreement and part of Article 29 -Trade Jurisdiction of the Body of Agreement in the 1988-90 Agreement.

8. There was no dispute between Local 47 and the respondent about what was an interference drawing. Exhibit 3 in these proceedings is one of the respondent's drawings from the Hotel Dieu Hospital project. The parties agree that it is an interference drawing. They agree also that, for a sheet metal contractor, the purpose of preparing interference drawings is to identify, display and resolve conflicts between duct work and air handling equipment for the heating, ventilation and air conditioning system of a building project and the structural and architectural elements of the building or other building services like plumbing and electrical. Not all building projects require the use of interference drawings to reveal and resolve interferences. Sometimes the engineering drawings which are part of the contract documents will show the interferences. When they do not, if drawings identifying interferences are needed, the contractor prepares them or has them prepared. It is when the contractor prepares them or has them prepared that Local 47 claims the preparation must be done by sheet metal workers employed under the terms and conditions of the Agreements. The respondent obviously disagrees with that claim. The respondent prepares interference drawings for 10 to 15 per cent of the sheet metal jobs it does. It does a lot of industrial construction jobs. While the respondent encounters interferences more often on that type of work, it is able often to use drawings prepared for a job by the clients' engineers or draughtspersons to serve the purpose of interference drawings. The respondent admits that the interference drawings for the Hotel Dieu Hospital were not prepared by sheet metal workers employed under terms and conditions of the Agreements. Rather, they were prepared by the staff of the respondent's engineering department.

9. Interference drawings serve other uses as well. It was common to all witnesses who had used and/or prepared them that the drawings become the source of the dimensions and shapes of the various sheet metal fittings for duct work, such as elbows, tees and flanges which are fabricated on the job site or in an off-site shop. That information is used to prepare what most witnesses referred to as fab sheets. These are dimensioned drawings, done in a single plane, of various sheet metal shapes required for the job. The fab sheets are used for the shop fabrication of the parts. The parties agree that Exhibit #5 in these proceedings displays such drawings. It is a series of freehand and mechanical drawings of a rather elementary nature and not drawn to scale. When interference drawings are not available, fab sheets are prepared from measurements taken in the field and usually displayed on a rough freehand drawing of the particular shape to be fabricated. Such drawings and measurements are a source of the information which goes on interference drawings as well. Exhibit #4 in these proceedings, which was admitted by agreement of the parties, was put forward by the respondent as an example of field drawings used in the preparation of fab sheets. While it was not proven to have been prepared for that purpose, Mr. Robert Belleville, the business agent and business manager of Local 47 over some 18 years until October 1, 1987, acknowledged that Exhibit #4 looked like something drawn on site and could be a "field sketch" as in Clause 19(1) of the Ottawa Appendix of the Agreements. Similarly he acknowledged that Exhibit #5 could be called a "shop sketch" as in clause 19(1), but he considered the normal term for such drawings to be "fab sheet".

10. Interference drawings are prepared either on background drawings, made for the purpose, which show the architectural and structural elements of the building or on the engineering drawings which are part of the contract material. When interference drawings are prepared, they also serve uses other than fabricating and erecting the sheet metal. For example, the respondent uses them to prepare a labour plan for a job and for scheduling a job. The respondent and other contractors also used them for "as built" drawings. These are drawings which are given to the building owner to show how the building was actually built, as compared with its design.

11. When drawings like Exhibits #4 and #5 are compared with an interference drawing like Exhibit #3, even allowing for the fact a number of witnesses said that some fab sheet drawings are more detailed and sophisticated than Exhibit #5, there is a very substantial difference in their complexity and the amount and variety of detail shown. The drawings in Exhibits #4 and #5 are quite simple and elementary compared with the interference drawing which is Exhibit #3. It is drawn to scale and displays the location of the sheet metal duct work and heating, ventilating and air conditioning equipment in relations to the architectural and structural features of the particular area of the hospital building illustrated by the drawing. The drawing displays such detail as the dimensions of the duct work and sheet metal fittings, the elevation of the duct work relative to the floor level, its slope and the angles or radii of its bends. None of the witnesses who were knowledgeable in heating, ventilating and air conditioning systems hesitated to say that drawings like those in Exhibits #4 and #5 were not interference drawings and would be caught by the words "shop and field sketches' from Clause 19.1 of the Ottawa Appendix of the Agreements. If the same could be said of Exhibit 3, there would be no grievance to arbitrate. Not surprisingly, all but one of Local 47's witnesses took the position that interference drawings like Exhibit #3, and even more detailed and complex ones, fell within that clause, while the respondent's witnesses expressed the opposite view.

12. Respondent counsel asked the Board to conclude from the stark contrast drawn by comparing the interference drawing in Exhibit #3, and others like it in evidence, with the drawings in Exhibits #4 and #5 and the ease with which all witnesses distinguished interference drawings from them, that the words "...the preparation of all shop and field sketches used in fabrication and erection;..." used in clause 19.1 do not include the preparation of interference drawings, and it would be foolish to say they did. Counsel for Local 47, on the other hand, argues that those words are broad enough to encompass interference drawings of the kind in evidence whether or not the Board were to agree with respondent counsel that the drawing in Exhibit #3 is a quantum leap from those in Exhibits #4 and #5.

13. Each counsel contends that the words "...the preparation of all shop and field sketches used in fabrication and erection,..." in Clause 19.1 of the Ottawa Appendix of the Agreements are clear and unambiguous and support their respective and opposite conclusions. Each argued, in the alternative, however, that the Board should rely on the extrinsic evidence as an aid in applying the language of the Agreement to the facts should the Board find the application of that language to the facts to be unclear. They agree that the general standard for admitting and relying upon extrinsic evidence, with respect to the specific language at issue, is that set in Leitch Gold Mines Limited et al. v. Texas Gulf Sulphur Inc. et al, 1968 CanLII 405 (ON HCJ), 1 OR. 469, cited and affirmed by the Ontario Court of Appeal in Noranda Metal Industries and International Brotherhood of Electrical Workers, 1983 CanLII 1690 (ON CA), 44 O.R. (2d) 529:

Where the language of the document and the incorporated manifestations of initial intention are clear on a consideration of the document alone and can be applied without difficulty to the facts of a case, it can be said that no patent ambiguity exists. In such a case, extrinsic evidence is not admissible to affect its interpretation. On the other hand, where the language is equivocal, or if unequivocal but its application to the facts is uncertain or difficult, a latent ambiguity is said to be present. The term "latent ambiguity" seems now to be applied generally to all cases of doubtful meaning or application.

[emphasis added]

14. The Board in The Brant County Board of Education, [1984] OLRB Rep. Oct. 1349, at paragraph 4, commented as follows on the Noranda Metal case in relying on it to admit extrinsic evidence of the negotiating history of the parties to a provincial agreement:

. . . the Court of Appeal in the Noranda Metals case at page 536 has condoned the utilization of the opportunity to explore evidence of the negotiating history to reveal a latent ambiguity and then clarify the meaning of collective agreements. This then assists in applying the language of the contract to the facts of the case.

The question for the Board in the instant case is whether the language of Clause 19.1 of the Ottawa Appendix to the Agreements and the language of Article 29 of the Body of Agreement in the 1988-90 Agreement includes the preparation of interference drawings when neither expressly refers to such drawings. The parties have presented two different interpretations of the language of clause 19.1 and the language itself is ambiguous as to whether "shop and field sketches" includes "interference drawings". The language can be read exclusively and narrowly to exclude them because they are not expressly included, or it can be given an expansive and inclusive reading to include them along with any drawing that is used in the shop or in the field for the fabrication and installation of sheet metal. With respect to Article 29. the language at issue is not equivocal. It says that the parties to the 1988-90 Agreement have agreed that it "...covers the rates of pay, rules and working conditions..." of employees of the employer engaged in the work specified in clauses (a) to (r) of Article 29 "...and all other work included in the jurisdictional claims of the Sheet Metal Workers International Association;...". Those parties have agreed also that employers shall employ on that work "[o]nly certified journeymen and registered apprentices and other qualified sheet metal workers recognized by the local union.". Local 47 is the "local union" for the purpose of that language in this case. The problem arises in applying the language of Article 29. particularly the "and all other work" basket clause, to the facts in this case, exclusive of the extrinsic evidence. The 1988-90 Agreement does not expressly identify the jurisdictional claims of the Association, making it uncertain and difficult to apply the language to the facts.

15. Therefore, the Board is satisfied that there is an ambiguity in the face of the language of the Agreements which is at issue in this grievance. Accordingly, it is appropriate in this case for the Board to consider the extrinsic evidence adduced in these proceedings of past practice respecting preparation of interference drawings, past collective agreements and the negotiating history of the parties.

16. The words ". . .the preparation of all shop and field sketches used in fabrication and erection;..." appearing in the Ottawa Area appendix of the Agreements pre-date the first sheet metal workers provincial agreement. The words were introduced as clause 3.3(d) of the 1971-73 collective agreement between Local 47 and the MCA-Ottawa. Robert Belleville was a business agent for Local 47 and a member of its bargaining committee when the clause was negotiated. He remained the local's business agent until 1979 when he became business manager, a position he held until 1987. Belleville was on Local 47's bargaining committee for negotiations with MCA-Ottawa in 1973, 1975 and 1977, the last negotiations before provincial bargaining began in 1978. Clause 3.3(d) remained unchanged through those negotiations. He testified that Local 47's members had been preparing interference drawings prior to 1971 and the local has had jurisdiction over the work since 1971. He claims that, in the 1971 negotiations, the employers' bargaining committee agreed that clause 3.3(d) included preparation of interference drawings even though there is no specific reference to interference drawings in the clause. Neither Belleville nor any other witness testified about the advent of the words "...and all other work included in the jurisdictional claims of the Sheet Metal Workers' International Association,..." which are now part of Article 29 of the Body of the 1988-90 Agreement. They form part of clause 3.3(e) of the 1971-73 agreement. It may be seen from comparing it with its predecessor 1969-71 agreement that the same clause was not included in the earlier agreement. However, Clause 3.1 of Section 3.0 - Recognition of that agreement includes similar words. It reads:

RECOGNITION

3.1 The terms of this agreement are hereby recognized and accepted as binding on both parties hereto and shall apply in the manner and under conditions specified herein to the manufacture, fabrication, assembling, handling, hoisting, erecting, and/or installation, dismantling, reconditioning, adjustment, alteration, repairing and servicing of all sheet metal work of No. 10 U.S. or its equivalent or lighter gauges, and all other work in connection with air displacement systems or incidental thereto included in the jurisdictional claims of the Sheet Metal Workers' International Association, and none but journeymen sheet metal workers and registered apprentices, recognized by Local Union 47 shall be employed on said work by the employers. The above specified work must be executed within the geographic area of this agreement, regardless of prevailing wage rates that exist in other areas.

[emphasis added]

17. That clause was amended in the 1971-73 collective agreement and became part of Clause 3.3 - Recognition of Jurisdiction in Clause 3 - Recognition. Clause 3.3 states as follows:

3.3- RECOGNITION OF JURISDICTION

The terms of this agreement are hereby recognized and accepted as binding on both parties hereto and shall apply in the manner and under conditions specified herein to the

(a) manufacture, fabrication, assembling, handling, erection, installation, dismantling, conditioning, adjustment, alternation, repairing and servicing of all ferrous or non ferrous metal work of U.S. No. 10 gauge or its equivalent or lighter gauge and all other materials used in lieu thereof and of all airveyor systems and air handling systems regardless of material used including the setting of all equipment and all reinforcements in connection therewith;

(b) all lagging over insulation and all duct lining;

(c) testing and balancing of all air-handling equipment and duct work;

(d) the preparation of all shop and field sketches used in fabrication and erection;

(e) all other work included in the jurisdictional claims of Sheet Metal Workers' International Association, and none but journeymen sheet metal workers and registered apprentices, recognized by Local Union 47 shall be employed on said work by the employers, excepting the loading and unloading by the company truck driver for transportation purposes only. The above specified work must be executed within the geographic area of this agreement, regardless of prevailing wage rates that exist in other areas.

[emphasis added]

The clause remained unchanged through the last collective agreement between Local 47 and the MCA-Ottawa prior to provincial bargaining and then became part of the Ottawa Appendix of the provincial agreement. It appears as clause 19.1 of Clause 19 - Trade Jurisdiction of the 1986-88 Agreement which states:

Clause 19- TRADE JURISDICTION

19.1 The terms of the Body of this Agreement and of this Appendix "E" are hereby recognized and accepted as binding on the Local Trade Association and Local Union No. 47 and shall apply in the manner and under the conditions specified therein to the:

(a) manufacture, fabrication, assembling, handling, erection, installation, dismantling, conditioning, adjustment, alteration, repairing, and servicing of all ferrous or non-ferrous metal work and all other materials used in lieu thereof and of all airveyor systems and air handling systems regardless of material used including the setting of all equipment and all reinforcements in connection therewith;

(b) all lagging over insulation and all duct lining;

(c) testing and balancing of all air handling equipment and duct work;

(d) the fabrication and installation of computer floors;

(e) the preparation of all shop and field sketches used in fabrication and erection;

(f) all other work included in the jurisdictional claims of Sheet Metal Workers' International Association, and none but journeymen sheet metal workers and registered apprentices, recognized by Local Union 47 shall be employed on said work by the employers, excepting the loading and unloading by the employer's truck driver for transportation purposes only. The above specified work must be executed within the geographic area of this Appendix, regardless of prevailing wage rates that exist in other areas.

(g) the employer shall endeavour to procure and embrace on his job, contract and specifications, all sheet metal work, ventilation and air-conditioning work including balancing and all apparatus and equipment required for the complete installation of same.

[emphasis added]

When the employee and employer bargaining agencies bargained the 1988-90 Agreement, Article 29 - Trade Jurisdiction was added to the Body of Agreement. Clauses (a) through (r) which are quoted above at paragraph 6 were based on work which was included in the Trade Jurisdiction Clauses of the various Local Appendices which the parties were prepared to make binding on all of the employers, local trade associations and affiliated bargaining agents bound by the Agreement. They did not agree to include Clause 19.1(e) of the Ottawa Appendix of the 1986-88 Agreement.

18. Belleville was the only member of Local 47's 1971 bargaining committee who testified about the 1971 negotiations and the 1973, 1975 and 1977 negotiations. Ray Guertin, Belleville's predecessor as business manager had been on Local 47's committee during those negotiations and died a few years prior to these proceedings. Ross Mitchell, the present business manager of the local was a member of Local 47's bargaining committee during those years as well. He was present throughout the proceedings, but did not testify. The Board heard the testimony of several members of MCA-Ottawa's bargaining committees. Leonard Fraser, who testified for Local 47 under summons, was a member of the committee which represented MCA-Ottawa in the 1973 and 1975 negotiations. John Robertson, Un Goldberg, Terry Burchell and Robert Irving testified for the respondent. All except Burchell were owners or management representatives of contractors who employed members of Local 47. Burchell was the senior full-time, paid executive of MCA-Ottawa. He testified about all of the above negotiations, but was not at the 1971 negotiations with Local 47. Robertson was a member of the 1973 and 1975 committees; Goldberg was a member for all four negotiations; and Irving was Chairman of the 1971 committee and a member of the 1973 committee.

19. Neither party was able to produce in evidence the wording of Local 47's original proposal for what became clause 3.3(d) of the 1971-73 collective agreement. Nor did any of the witnesses who testified about the 1971 negotiations claim to recall the wording of the proposal. Fraser recalled that interference drawings were discussed when clause 3.3(d) was negotiated, but he was unsure whether the parties intended that they be covered by the language finally adopted. He had no recollection that the parties arrived at an understanding that interference drawings were covered by the clause. Goldberg could not recall the word "sketches" being part of Local 47's original proposal, but he recalled that Local 47 wanted general drafting to be included in the wording of the clause. The MCA-Ottawa bargaining committee disagreed and the parties eventually agreed to language which refers to neither drafting nor drawing. Irving denied that Local 47 had taken the position in the 1971 negotiations that clause 3.3(d) was broad enough to include interference drawings or that the MCA-Ottawa bargaining committee had assured Local 47 at the bargaining table that the wording finally agreed covered such drawings. Irving testified also that the parties had agreed to language for clause 3.3(d) which would have incorporated interference drawings, but deleted it in the final stages of bargaining as a trade off for an additional wage settlement. His description of the context in which that occurred was quite specific. While the Board does not doubt that his testimony on that point was his best recall eighteen years later, neither Fraser nor Goldberg made reference to the circumstances described by Irving. Also, while Burchell was not present at the bargaining table in 1971, he would have been involved in part of the process described by Irving. Burchell's evidence lacks any reference to the circumstances. In the Board's view, the events described by Irving are of a nature that Fraser, Goldberg and Burchell, or at least one of them, would have recalled and related the events described by Irving had they occurred. In these circumstances, the Board does not rely on Irving's evidence on how the language of clause 3.3(d) was settled.

20. Robertson, Goldberg and Burchell testified also that the topic of whether the preparation of interference drawings was covered by the terms of the collective agreement between MCA-Ottawa and Local 47 was discussed during the three rounds of bargaining after 1971, either as a formal proposal of Local 47 to expand the agreement language to include sheet metal drafting so as to include interference drawings, or in connection with other work jurisdiction issues. Their evidence, however, does not go so far as to claim that Local 47 acknowledged that clause 3.3(d) did not include interference drawings.

21. Belleville testified that, after 1971 when clause 3.3(d) became part of the collective agreement between MCA-Ottawa and Local 47, contractors bound to the agreement and its successors observed clause 3.3(d) and used sheet metal workers to prepare interference drawings when the contractor required them to be prepared. Had that not been the case, he testified, Local 47 would have filed a grievance and none had been filed until the one at hand. The only problem Local 47 encountered until this grievance, according to Belleville, was in 1976 with Comstock International Ltd. ("Comstock"), a major sheet metal contractor in the Ottawa Area. The problem arose as a result of Comstock using persons who were not in the bargaining unit of the collective agreement to prepare sheet metal interference drawings. It began when Belleville sent a telex to Comstock stating that he would file a grievance unless Comstock ceased using "...non-members of Local 47 in [Comstock's] drafting dept...". When Rudy Jetzelsperger, manager of Comstock's mechanical department, contacted Belleville for clarification of his complaint, he learned that the problem involved the use, for sheet metal work, of interference drawings prepared in Comstock's draughting office by persons who were not Local 47 members. According to Jetzelsperger, Comstock had experienced prior difficulties with Local 47 over the use of interference drawings not prepared by its members. Therefore, when he and Belleville were unable to resolve the dispute, he told Belleville to proceed with a grievance so that the issue of whether Local 47 had jurisdiction under the collective agreement could be resolved once and for all. Belleville's response was that Local 47 would not file a grievance but would tell its members to prepare fabrication sheets only from original mechanical drawings and to install sheet metal only from drawings prepared by Local 47 members. Original mechanical drawings are the drawings supplied to the sheet metal contractor with the contract documents. Local 47 did not file a grievance. It did instruct one of Comstock's sheet metal employees not to prepare fabrication sheets from drawings prepared by Comstock. Comstock advised Local 47 that it would treat the employee's refusal to work from its drawings as a quit and would hold Local 47 liable in damages if it did not withdraw its instruction. The dispute came to an end eight weeks later when Comstock agreed that it would not use persons who were not members of Local 47 to prepare interference drawings.

22. The events leading to the filing of this grievance bear some similarity to the Comstock incident. Robert Laframboise was informed by Barry Arbuthnot, the respondent's sheet metal manager, that the respondent's sheet metal workers on the Hotel Dieu project had been told by Local 47 not to install duct work from interference drawings which had not been prepared and initialled by a Local 47 member. Laframboise instructed Arbuthnot to fire anyone refusing to work from the respondent's interference drawings. Later Laframboise and two of his managers met with Mitchell and Terry Belleville, a Local 47 business representative. They told Laframboise that there would be no problem if the employee who was preparing the drawings joined Local 47. The drawings were being prepared by an employee in the respondent's engineering department. When Laframboise rejected their suggestion, he was told that "things could go the same way [for the respondent] as they had for Comstock in 1976". Laframboise replied that the respondent was following the collective agreement and, if they disagreed, they should file a grievance.

23. There was other evidence that the parties to the 1971-73 collective agreement differed over whether clause 3.3(d) required that interference drawings be prepared by employees in the bargaining unit of the agreement. The clause was subject matter of a meeting of the Joint Conference Committee on December 14, 1972. It is a committee established under the collective agreement and is composed of three members from each of the parties to the agreement. The minutes state that the Joint Conference Committee was meeting "...to carry on a dialogue between the two parties in an attempt to retain an harmonious working relationship by attempting to clarify items in the current Collective Agreement.". They also record each party's interpretation of clause 3.3(d). Local 47's interpretation was stated to be that, when interference drawings are provided and used on the job for erection of sheet metal, they should be drawn by Local 47 members. The MCA-Ottawa interpretation was that interference drawings used on the job for erection of sheet metal could be drawn by non-members of Local 47.

24. The evidence of both parties leaves no doubt that, after clause 3.3(d) became part of the 1971-73 collective agreement, contractors bound to that agreement and any of its successors through to the Agreements, employed members of Local 47 to prepare interference drawings. A few of the contractors had been using Local 47 members for that purpose prior to the 1971 agreement. Some of the sheet metal workers who testified for Local 47 began doing interference drawings during their apprenticeship, although preparation of the drawings was not part of the drafting training they took as part of their apprenticeship. The preparation of interference drawings is not part of the apprenticeship requirements for the sheet metal workers trade under the Apprenticeship and Tradesmen's Qualification Act. The drafting which they do as part of their training is quite rudimentary relative to the drafting involved in the preparation of interference drawings. Local 47 sheet metal workers employed by several of the largest sheet metal contractors in the Ottawa area, Comstock, Rexway Sheet Metal (Ottawa) Ltd. and Sayers & Associates Limited, prepared 90 to 95 per cent of the interference drawings which those contractors required be prepared for the installation of sheet metal. Those same contractors, however, have used persons who were not sheet metal workers in the bargaining unit of the Agreements or their predecessors (hereafter "the Local 47 bargaining unit").

25. Comstock used two estimators, Nick Burgess and Jacques Joly, and Barry Riddell, an engineering technician, to prepare interference drawings. Riddell was used for this purpose until 1975. Joly was used for preparation of interference drawings from 1983 to 1988. Burgess prepared them off and on from 1976 to 1980 as an estimator and again in 1985 as a project manager. He was out of the Ottawa area between 1980 and 1985. Clearly, Comstock's practice did not end, as Belleville testified, with the 1976 incident.

26. Rexway used interference drawings for projects in the Ottawa area prepared in a variety of circumstances by persons other than sheet metal workers in the Local 47 bargaining unit or by persons employed under terms and conditions other than those in the prevailing collective agreements between Local 47 and the MCA-Ottawa. From 1972 until province-wide bargaining in 1978, some of the drawings were prepared in the Toronto office of Watts & Henderson Limited ("Watts & Henderson"). Ray Steeles, a design draftsman in the Toronto office, prepared ninety per cent of the interference drawings required for the L'Esplanade Laurier project in 1973. Watts & Henderson was described to the Board as the owner of Rexway which was Watts & Henderson's sheet metal contractor. Rexway performed sheet metal contracts exclusively for Watts & Henderson. Even were the Board to treat Watts & Henderson and Rexway as one employer for purposes of the Act, the drawings prepared in Watts & Henderson's Toronto office were prepared outside of the geographic scope of Local 47's collective agreements with the MCA-Ottawa. Clause 19.1 of the Ottawa Appendix of the Agreements explicitly requires that work specified in the clause "... must be executed within [Local 47's geographic jurisdiction],". Almost identical language was part of clause 3.1 of the 1969-71 collective agreement, prior to the adoption of the language in dispute. It remained in the 1971-73 collective agreement as part of clause 3.3(e) when the parties adopted clause 3.3(d), and in successive agreements after that. Therefore, all drawings prepared in the Toronto office of Watts & Henderson were drawings prepared under terms and conditions other than those of the prevailing collective agreement between Local 47 and the MCA-Ottawa. Between 1975 and 1980, Barry Riddell prepared interference drawings for Rexway's use on several large commercial and institutional projects as an employee of both Rexway and Watts & Henderson. Between 1975 and 1988, Rexway used interference drawings prepared by individual contractors engaged under lump sum contracts. They were Sam Clemmann, Jean-Marie Bouchard, Gerry Kincaid, Alain Breton and Marc Carriere. The drawings were for large commercial and industrial projects. The value of the lump sum contracts was unrelated to any payments required by collective agreements with Local 47.

27. Between 1971 and 1973, Sayers subcontracted the preparation of interference drawings to draftsmen employed by an engineering firm.

28. Other sheet metal contractors bound to the Agreements and their predecessors have used persons other than employees in the Local 47 bargaining unit to prepare interference drawings or persons employed under terms and conditions other than those in the prevailing collective agreements between Local 47 and the MCA-Ottawa. Napko Contractors Inc. had interference drawings prepared by its chief draughtsman, Dave Parkinson and, during 1973-76, by Ellard MacKnight, a supervisor. Megatech Contracting Ltd. has subcontracted the preparation of interference drawings on a fixed price basis since it began business in 1981. For that purpose, it has used Barry Riddell, Alain Breton, Sylvio Paquette and Peter Davies. They prepared drawings for major commercial and institutional projects between 1981 and the making of this application. Breton and Paquette have their own companies. When Breton bids and takes work for the preparation of interference drawings, he does so in the name of his company, MCI Services. While Paquette testified that he made little use of his company S. Paquette Drafting, Megatech has paid invoices from that company for drafting work. As noted earlier, Riddell was not an employee in the Local 46 bargaining unit; nor was Davies. Megatech also uses one of its employees, a mechanical engineer, to prepare interference drawings.

29. Airgo Mechanical Limited has infrequent need for interference drawings because of the nature of its projects. When the need arises, the drawings have been prepared by either its owner, Un Goldberg, or a supervisor. The form of drawing used was an overlay sketch on an engineering drawing of the part of the project affected. Bargaining unit employees have prepared fabrication sheets from these drawings, but have not done the drawings.

30. Interference drawings used by Irving Contracting Limited have been prepared by the four Irving brothers who own or manage the company and by Cleo Hodgins and Ted Turnbull. Hodgins is a shop supervisor and Turnbull is a job supervisor.

31. The respondent is a multi-trade contractor and has an engineering department. When the respondent has required interference drawings to be prepared for sheet metal work, they were drawn by employees of its engineering department. Sheet metal work makes up approximately 20 per cent of its business and it is the fifth largest sheet metal contractor in Local 47's geographic jurisdiction. Robert Laframboise, its owner and president, estimates that interference drawings are required on 10 to 15 per cent of its sheet metal jobs. When they are required, the majority are drawn by engineers, engineering technicians and draughtspersons. The respondent has subcontracted the preparation of interference drawings twice to company's not bound to a collective agreement with Local 47. There is a conflict in the evidence of Laframboise and Paquette about whether Paquette prepared interference drawings for the respondent on two projects and whether, as Laframboise claims, Paquette was the respondent's project manager on a third project when he prepared interference drawings for it. Paquette testified that he prepared interference drawings on three projects within Local 47's geographic jurisdiction for the respondent. These were the Alexandria Footwear Plant, Seafarers' Training Institute and Parks Canada jobs. The first two were during his first term of employment with the respondent. The third one was the first job of his second term. Paquette stated that he was hired for those jobs out of Local 47's hiring hall and that he jumped the out-of-work list because he was hired to "draught" the jobs. His evidence conflicts with that of Laframboise. Laframboise testified that interference drawings were not required for the first two jobs and none were prepared. There is no dispute that Paquette did at least four interference drawings for the third job, but Laframboise testified that Paquette was project manager for the job and not in Local 47's bargaining unit. It is unnecessary to resolve the conflict because, even were the Board to prefer Paquette's evidence, he had been employed during that time on terms and conditions other than those in the collective agreement (see paragraph 32). So, whichever way the conflict might be resolved, there would be no evidence of the respondent having employed sheet metal workers under the terms and conditions of the collective agreements between Local 47 and the MCA-Ottawa since becoming bound to the 1973-75 agreement.

32. When contractors used sheet metal workers to prepare interference drawings, in most instances they were employed under the terms and conditions of the prevailing collective agreement, based on whether they were apprentices, journeymen or working foremen. There is evidence of some employees receiving payments extra to those called for by the collective agreement. For example, when Breton was an employee of Comstock and performing sheet metal draughting work, he was paid for all time off and he believed the others doing that work were similarly treated. At Sayers Associates, he was paid an extra four hours per week without being required to work the time. Paquette was paid "extras" when he worked for the respondent on two separate occasions for a total of approximately five years. Throughout this period his pay was based on the foreman's rate in the collective agreement. The "extras" were in the form of travelling expenses, accommodation and pay for time not worked. The first period of employment by the respondent was in 1981 for approximately six months. The second term began in 1983 and lasted approximately four and a half years. During both terms the respondent provided accommodation at its cost, either in a company trailer or a motel, over and above any room and board allowance provided for in the collective agreement. During the first term, Paquette also was paid 50 dollars per week travelling expense. During the second term, he was paid a salary based on the foreman's rate in the collective agreement, but calculated at an extra four hours per week. He was not required to work the extra time. The majority of the time during the second period of employment, Paquette worked on projects outside of Local 47's geographic jurisdiction.

33. When Alain Breton prepared interference drawings for Rexway and Megatech under lump sum contracts, the contracts were with Breton's company MCI Services. MCI is bound to the Agreements. Breton is a member of Local 47, the owner of MCI and its sole employee. MCI makes monthly contributions to Local 47's welfare and pension plans at the minimum monthly rate required to maintain Breton's benefits. Employers of employees in the Local 47 bargaining unit contribute to those plans for the employees at a rate per hour stipulated by the Agreements. MCI has no employees other than Breton. He does all of the draughting when MCI takes a contract for the preparation of interference drawings. As owner of MCI, he is not an employee within the meaning of the Act and cannot be an employee in Local 47's bargaining unit. This is consistent with MCI having made the minimum contributions to the welfare and pension funds under the applicable collective agreements for Breton to maintain Breton's eligibility for coverage, instead of making contributions at the rates per hour stipulated by the fund for employees in the bargaining unit.

34. The Board will not set out the submissions of counsel. It has reviewed carefully their submissions together with the evidence of the 21 witnesses and the 60 exhibits filed by the parties in reaching the conclusions set out herein.

35. Local 47 bases its primary argument in support of its claim to jurisdiction over the preparation of interference drawings on the words "...the preparation of all shop and field sketches used in fabrication and erection;...", as they appear in Clause 19.1 of the Ottawa Appendix of the Agreements. They have been part of the trade jurisdiction provisions of collective agreements between or binding upon the MCA-Ottawa, its member sheet metal contractors and Local 47 since the 1971-73 collective agreement when they were introduced as clause 3.3(d). While the facts about the extent to which sheet metal contractors bound to successive collective agreements between Local 47 and the MCA-Ottawa since the 1971-73 agreement have used Local 47 members employed under the terms and conditions of the prevailing collective agreement to prepare interference drawings tends to support Local 47's claim that the practice was and is a requirement of those agreements, those facts do not establish conclusively that it is a practice required by the Agreements and their predecessors. There are other facts which tend to deny Local 47's claim and support the conclusion that the words relied upon do not oblige the contractors to have interference drawings prepared by sheet metal workers employed under the terms and conditions of the prevailing agreement. These are the bargaining history surrounding the words of clause 3.3(d) of the 1971-73 agreement currently part of Clause 19.1 of the 1988-90 Agreement; the practice, since the 1971-73 Agreement, of sheet metal contractors, including the several largest contractors who employ Local 47 members extensively for the preparation of interference drawings, employing persons to prepare them who clearly were not employees in the Local 47 bargaining unit, or who were employed on terms other than those in the prevailing collective agreement; and, the conduct of Local 47 towards Comstock in 1976 and the respondent in the events leading up to the filing of this complaint.

36. Indeed, the facts about the bargaining history show that disagreement over whether clause 3.3(d) covered the preparation of interference drawings was evident before the expiry of the 1971-73 collective agreement. That may be seen from the divergent interpretations given the clause by Local 47 and MCA-Ottawa members of the Joint Conference Committee in December 1972 when the Committee was meeting "...to clarify items in the current collective agreement.". That issue of whether clause 3.3(d) included their preparation continued to be a topic of discussion or negotiation between Local 47 and MCA-Ottawa during successive negotiations of renewal agreements until bargaining began under the provincial bargaining scheme. There was no agreement that clause 3.3(d) did or did not include the preparation of interference drawings. The parties simply agreed to disagree on that issue. This is consistent with the testimony of Robertson, Goldberg and Irving that there was discussion about the preparation of interference drawings and general drafting before the parties settled on language which made no reference to either; Irving's denial that MCA-Ottawa either agreed that the clause was broad enough to include the preparation of interference drawings or assured Local 47 at the bargaining table that the wording finally agreed covered that work; and, Fraser's uncertainty whether the parties intended interference drawings to be covered by clause 3.3(d).

37. The fact that, beginning with the 1971-73 collective agreement through to the 1988-90 Agreement, sheet metal contractors such as Comstock, Rexway, Airgo, Irving, Megatech, Napko and the respondent have used persons who clearly were not employees in the Local 47 bargaining unit to prepare interference drawings, or who were employed on terms and conditions other than those in the prevailing collective agreement, including employment under lump sum contracts, is consistent with MCA-Ottawa having neither agreed in the 1971 negotiations that clause 3.3(d) included the preparation of interference drawings, nor assured Local 47 that the wording covered that work.

38. Local 47's conduct towards Comstock in 1976 and towards the respondent immediately prior to the filing of this grievance is inconsistent with its claim that, since the 1971-73 collective agreement, sheet metal contractors have recognized its exclusive jurisdiction over the preparation of interference drawings under the clause now in dispute. It was Belleville's evidence that this grievance and the 1976 Comstock incident were the only disputes with sheet metal contractors over Local 47's claim to exclusive jurisdiction. If Local 47's jurisdiction was as firmly entrenched in the language of the clause at issue as Belleville claimed, one wonders why Local 47 found it necessary to act as it did on the only two occasions in 17 years on which Local 47 admits its jurisdiction was challenged. In the case of Comstock, Local 47 chose not to file a grievance and, instead, instructed one of Comstock's employees to refuse to work from drawings not prepared by members of Local 47. In the respondent's case, prior to filing this grievance, Local 47 representatives threatened the respondent with the same action that had been taken against Comstock. Local 47's conduct is more consistent with an attempt to secure jurisdiction where the contractual claim to jurisdiction is uncertain.

39. Local 47 counsel argued, in part, that the exceptions to interference drawings being prepared by Local 47 members employed under the terms and conditions of its collective agreements with MCA-Ottawa were few and they occurred under circumstances in which Local 47, exercising reasonable diligence, either could not have known of them or could not have grieved them successfully even if it had been aware of them. Counsel offers several reasons to support his contention. Most of the persons in jobs outside of the Local 47 bargaining unit who prepared interference drawings or who did them for a fixed price were members of Local 47. For many of them, the contractor was continuing to make full contributions to the Local 47 welfare and pension funds and deducting union dues. For similar reasons, Local 47 could not have known, even with reasonable diligence, about the extras paid to some of the persons who prepared sheet metal interference drawings. In respect of persons outside of the bargaining unit, counsel argues that, even if Local 47 had been aware that they were doing work covered by the collective agreement, Local 47 could not have grieved successfully because the agreement does not expressly prohibit that practice. Finally, with respect to interference drawings prepared in the Toronto office of Watts & Henderson for Rexway, counsel submits that it cannot grieve work done outside of its geographic jurisdiction by an employer who may be the responsibility of another local of the Sheet Metal Workers' Association. For these reasons, he argues, these exceptions do not establish grounds for finding that, by its conduct, Local 47 has waived its claim to exclusive jurisdiction over preparation of interference drawings under clause 19.1 of the Agreements.

40. That might be a matter for the Board to decide if it was dealing with a defence to the grievance based on a claim that Local 47 was estopped from relying on an unambiguous, express condition of the collective agreement. However, that is not the issue. The question for the Board is whether the phrase "...preparation of all shop and field sketches used in fabrication and erection; ..." in Clause 19.1 of the 1988-90 Agreement includes the preparation of sheet metal interference drawings or, in the alternative, whether their preparation is captured by the requirement of Article 29 of the 1988-90 Agreement which says that certified journeymen sheet metal workers and registered apprentices and other qualified sheet metal workers recognized by Local 47, shall be employed on "...all other work included in the jurisdictional claims of Sheet Metal Workers' International Association". It is undisputed that, if either provision includes the preparation of interference drawings, all of the terms and conditions of the Agreements apply to employees who perform the work. In turn, that would make the respondent in contravention of the Agreements because it has admitted that interference drawings for the Hotel Dieu Hospital were not prepared by sheet metal workers in the Local 47 bargaining unit under the terms and conditions of the Agreements.

41. Extrinsic evidence of past practice and bargaining history is a useful aid to resolving ambiguities in collective bargaining language to the extent that it reveals through later events what was the state of mind of each party to the agreement when they agreed to language, the meaning of which is later disputed. Having regard to the dispute in this case over the meaning of Clause 19.1 of the 1988-90 Agreement, it is not surprising that there is extrinsic evidence which tends to support each party's interpretation of the clause. The extent to which sheet metal contractors have employed sheet metal workers under the terms and conditions of the prevailing collective agreements to prepare interference drawings, from and including the 1971-73 agreement to the 1988-90 Agreement, favours the conclusion that the parties had agreed in 1971 that the preparation of interference drawings was included in the words "...shop and field sketches used in fabrication and erection...", which are now part of Clause 19.1 of the Ottawa Appendix of the 1988-90 Agreement. The past collective agreements, the bargaining history respecting those words, the practice since the 1971-73 collective agreement of contractors having interference drawings prepared by persons who clearly were not in the Local 47 bargaining unit and by persons employed under terms and conditions other than those in the prevailing collective agreement, and Local 47's conduct towards Comstock in 1976 and the respondent immediately prior to the filing of this grievance, on the other hand, favour the conclusion that there was no agreement in 1971, or subsequently, that the words "...shop and field sketches used in fabrication and erection..." now in Clause 19.1 of the Ottawa Appendix of the Agreements. Accordingly, the Board finds that Clause 19.1 of the Ottawa Appendix of the 1988-90 Agreement does not bring the preparation of interference drawings under the terms of the Agreement.

42. The Board finds support for its conclusion that an interference drawing is not a shop or field sketch within the meaning of that clause from the ordinary meaning of the word "sketch". A sketch is usually a rough depiction of some object or scene, outlining the main features but not the details of what it depicts; for example, the drawing made by an artist in the field which later becomes the basis for a finished canvas, or part of it. The drawings which are Exhibits #4 and #5 in these proceedings are more in keeping with that ordinary meaning. Those drawings are of individual sheet metal fittings, drawn in a single plane, not to scale and may be freehand or mechanical. On the other hand, Exhibit #3, which the parties agree is an interference drawing from the respondent's Hotel Dieu Hospital project, and the other interference drawings in evidence are complex, detailed mechanical drawings, drawn to scale and showing the location of sheet metal duct work and heating, ventilation and air conditioning equipment in relation to other services like plumbing and electrical services, and to the architectural and structural features of the particular area of a building in which they are being installed. They show the systems of which fittings of the type shown in drawings like Exhibit #4 and #5 form only parts and they show it in all of the detail necessary for proper installation of such fittings. In the Board's view, those drawings are not in keeping with the ordinary meaning of the word "sketch".

43. It remains for the Board to determine whether the basket clause "...and all other work included in the jurisdictional claims of the Sheet Metal Workers' International Association." in Article 29 - Trade Jurisdiction in the Body of Agreement of the 1988-90 Agreement includes the preparation of sheet metal interference drawings. If the basket clause includes that work, then the .rates of pay, rules and working conditions..." of the 1988-90 Agreement apply to "...all employees of the employer engaged in..." the preparation of interference drawings, and the employer shall employ ". . . [o]nly certified journeymen and registered apprentices and other qualified sheet metal workers recognized by the local union..." on that work. The past collective agreements show the basket clause, in its present form, to have been introduced in the 1971-73 agreement as clause 3.3(e) at the same time as the other disputed wording from clause 19.1 was introduced as clause 3.3(d). Unlike clause 3.3(d), however, clause 3.3(e) has its antecedent in the emphasized wording of the quotation at paragraph 16 above from clause 3.1 of the 1969-71 collective agreement between Local 47 and the MCA-Ottawa. Yet it was Belleville's evidence that Local 47 acquired jurisdiction over the preparation of interference drawings in 1971 with the introduction of clause 3.3(d). It was also his evidence that, prior to this grievance, with the exception of the 1976 Comstock incident, sheet metal contractors bound to the 1971-73 agreement and its successors observed clause 3.3(d) and used employees in the Local 47 bargaining unit to prepare interference drawings when they were required by the contractors. Belleville made no reference to the basket clause in his evidence in support of Local 47's claim to jurisdiction.

44. It was part of Belleville's evidence that Local 47 pursued and secured jurisdiction under the 1971-73 agreement because some Local 47 members already had been preparing them for some contractors for a few years. Several of the witnesses testified that they were preparing interference drawings prior to the 1971-73 agreement. Why then was it necessary to negotiate clause 3.3(d) if the basket clause includes interference drawings, particularly when, for all practical purposes, the basket clause was part of the prior collective agreement. Furthermore, it was Belleville's evidence that the MCA-Ottawa bargaining committee assured him that clause 3.3(d) was broad enough to include the preparation of interference drawings. That assurance, if given, would have been superfluous if the basket clause already included them. The evidence provides no satisfactory explanation of why the agreement required two clauses in the same article of the agreement which, according to what Local 47 has contended here, include the preparation of interference drawings. Nor does the evidence explain why the Joint Conference Committee members bothered to discuss their conflicting interpretation of clause 3.3(d) or why Local 47 and the MCA-Ottawa bothered to continue to discuss in the next three rounds of negotiations whether clause 3.3. (d) covered interference drawings and general drafting if clause 3.3(e) did. Furthermore, while Local 47's initial notice to Comstock in the 1976 dispute does not refer expressly to clause 3.3(d) in its claim that Comstock was in breach of the collective agreement, that evidence and the viva voce evidence of the dispute leave no doubt that the dispute was about clause 3.3(d) and not 3.3(e). The fact that there is no evidence of Local 47 having relied on the basket clause for its claim to jurisdiction over the preparation of interference drawings until this grievance is consistent with that analysis of the past collective agreements. Finally, just as the Board has found the past practice evidence to be indicative of an employer state of mind that there was no agreement between the parties in 1971, or subsequently, that clause 3.3(d) included the preparation of interference drawings, so is it indicative of a similar state of mind respecting the basket clause.

45. Therefore, in the Board's view, the past collective agreements, the bargaining history and the past practice of the parties point towards a conclusion that the preparation of interference drawings is not included in the basket clause.

46. Counsel for Local 47 argues that the words themselves are clear, simple and unambiguous and there can be no confusion what they mean. According to counsel, they say that the Sheet Metal Workers International Association gets whatever work it claims, and, if there is any doubt what the Association's claims are or what the words mean, one only needs to look to the Association's constitution. Counsel submits that the Board is entitled in law to do so as an aid to interpreting the Agreements. In that respect counsel directs the Board's attention to Section 5 - Trade Jurisdiction of Article One of that document for the words which he claims clearly include interference drawings. The words on which counsel relies are found at the start of subsection 5(a):

This Association has established and claims full jurisdiction over the estimating, manufacture, fabrication, assembling, handling, erecting, hanging, application, adjusting, alteration, repairing, dismantling, reconditioning, testing and maintenance of all sheet metal work, all working drawings or sketches (including those taken from original architectural and engineering drawings and sketches) used in fabrication and erection;...

[emphasis added]

Interference drawings, counsel submits, are "...working drawings.. .taken from original architectural and engineering drawings.. .used in fabrication and erection;..." and, therefore are included in the jurisdictional claims of the Association.

47. For the Board to rely on the constitution in the manner argued by counsel for Local 47 would have the same effect as incorporating section 5 of the constitution by reference into the Agreements, or at least any of it which is not represented in the work described in clauses (a) to (r), which the parties to the 1988-90 Agreement have agreed is the trade jurisdiction of the affiliated bargaining agents bound by Article 29. The Association is one of those affiliated bargaining agents. When the designated employer and employee bargaining agencies negotiated Article 29, they consolidated into the Article work described in the work jurisdiction clauses of the various local appendices which the parties to the Agreement were able to agree should apply to all of the local trade associations and the affiliated bargaining agents bound to the 1988-90 Agreement. A comparison of Clause 19.1 of the Ottawa Appendix of the 1986-88 Agreement with Article 29 of the 1988-90 Agreement shows that Local 47's trade jurisdiction under that Agreement was substantially expanded by the change. The work descriptions in clauses (a) to (r) are clearly language of the making of the parties to the 1988-90 Agreement and not language imported from section 5 of the constitution. One bears little resemblance to the other. Were the Board to use section 5 to interpret the basket clause as argued by Local 47 to conclude that the clause includes the work described in the quotation above from subsection 5(a) of the constitution, there would be no reason why the basket clause could not be used in the same manner to import into Article 29 any work described in section 5 which is not described in clauses (a) to (r) of Article 29.

48. It was open to Local 47 and the MCA-Ottawa to do that expressly when they negotiated the language in 1971, or the three subsequent renewals of the agreement prior to provincial bargaining, if their intent was to recognize the Association's trade jurisdiction claims expressed in its constitution. The same can be said for the parties to the Agreements. In the Board's experience, it is not uncommon to find the jurisdictional claims of a building trade union incorporated into collective agreements between the union and construction industry employers by specific reference to the union's constitution. The current provincial agreement between the designated bargaining agencies for electricians and electrical contractors is an example. For whatever reason, the parties to the 1988-90 Agreement did not do so and the Board is not prepared to do by implication that which they have not been prepared to do expressly for themselves.

49. However, that still leaves unanswered the question of what meaning the parties intended for the words "...all other work included in the jurisdictional claims of the Sheet Metal Workers International Association;...". It falls to the Board as the arbitrator to interpret those words so as to give effect to them, consistent with the context within which the words appear and with all of the other terms and conditions of the 1988-90 Agreement.

50. If the Board accepts the interpretation asserted by Local 47 counsel, the Association gets whatever work it claims for its members. Some of the contractors bound to the Agreements and the Ottawa Appendix employ plumbers as well as sheet metal workers. The respondent also employs those trades and electricians, amongst others. Surely the words do not mean that, if Local 47 claimed for its members the installation of plumbing fixtures or the placing of light fixtures, an employer would have to employ ". . .certified journeymen and registered apprentices and other qualified sheet metal workers recognized by [Local 47]..." and apply to those employees ". . .the rates of pay, rules and working conditions..." of the 1988-90 Agreement. There must be a clearer reference point than "whatever the union wants, the union gets".

51. No matter how comprehensively clauses (a) to (r) might describe the trade jurisdiction of the unions bound by Article 29, and even though the descriptions are written to be broadly inclusive, it is clear that the parties to the 1988-90 Agreement have agreed that they are not exhaustive of the trade jurisdiction of those unions. When the basket clause is considered in the context of the savings phrase "...but not limited to..." and the broadly inclusive nature of the work descriptions which follow it in clauses (a) to (r), the provision "... and all other work included in the jurisdictional claims of the Sheet Metal Workers International Association means no more, in the Board's view, than other work which is similar in nature to the work described in clauses (a) to (r) of the 1988-90 Agreement. Those Clauses describe the work which that Agreement recognizes to be the work jurisdiction of the Sheet Metal Workers International Association and its affiliated bargaining agents bound to the Agreement. The preparation of interference drawings is not work similar in nature to any of the work described in clauses (a) to (r).

52. In the result, in all of the circumstances of this grievance and for the reasons given above, the Board finds further that Article 29 of the 1988-90 Agreement does not include the preparation of interference drawings. Accordingly, since the Board has found also that Clause 19.1 to the Ottawa Appendix of that Agreement does not bring the preparation of those drawings under the terms of the Agreement, that work is not work on which the employer is required to employ [o]nly certified journeymen and registered sheet metal workers and other qualified sheet metal workers recognized by [Local 47]..." and apply to them "... the rates of pay, rules and working conditions..." of the 1988-90 provincial collective agreement between the Ontario Sheet Metal and Air Handling Group and the Sheet Metal Workers' International Association and Ontario Sheet Metal Workers Conference. Thus the respondent did not violate that Agreement by employing persons who were not employees in the Local 47 bargaining unit to prepare interference drawings for its Hotel Dieu Hospital project in Cornwall, Ontario.

53. These are the reasons for the Board's earlier decision dismissing this application.