United Brotherhood of Carpenters and Joiners of America, Local Union 18 v. C. H. Heist Ltd., 1992 CanLII 6351

[1992] OLRB Rep. June 677

3347-91-G United Brotherhood of Carpenters and Joiners of America, Local Union 18, Applicant v. C. H. Heist Ltd., Respondent

BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members W. N. Fraser and J. Redshaw.

APPEARANCES: N. L. Jesin and C. Calligan for the applicant; Robin C. Cumine and Andrew Crowe for the respondent.

DECISION OF THE BOARD; June 24, 1992

1. This a referral to the Board, under section 126 of the Labour Relations Act, of a grievance in the construction industry.

2. The applicant trade union grieves that the respondent has violated the Provincial Collective Agreement between the Carpenters Employer Bargaining Agency, and the Ontario Provincial District Council, United Brotherhood of Carpenters and Joiners of America (the "Carpenters Provincial Agreement") in that it failed to abide by the terms and conditions thereof when it constructed a building referred to as the "C. H. Heist Warehouse and Office Building" on Birmingham Street in Hamilton.

3. The respondent denies that the applicant holds bargaining rights with respect to any of its employees or that it is bound to any collective agreement with the applicant. In the alternative, the respondent asserts that the applicant has either abandoned or should be estopped from asserting any bargaining rights it had or has in that respect. In the further alternative, the respondent asserts that it has not breached the Carpenters Provincial Agreement as alleged by the applicant.

4. At the hearing on June 5,1992, the parties agreed to proceed with only the first issue raised by the respondent; that is, whether the applicant holds relevant bargaining rights with respect to any of the respondent's employees, and whether the respondent is, subject to its other arguments, bound by the Carpenters Provincial Agreement.

5. The applicant asserts that it holds bargaining rights for employees of the respondent in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario as defined by the Carpenters Provincial Agreement and that the respondent was, at all material times, bound by the Carpenters Provincial Agreement in that respect, by reason of the respondent's membership in the Sarnia Construction Association (the "S.C.A."). The applicant relies on the Board's decision in Great Lakes Fabricating, a Division of Glascar Ltd., (Board File No. 2585-81-R, June 3, 1982, unreported) in that respect.

6. The respondent concedes that it was a member of the S.C.A. in 1975 when a collective agreement, styled as being between "Local Union 1256 of the United Brotherhood of Carpenters and Joiners of America, Sarnia, Ontario, and Sarnia Construction Association representing those companies defined "members" of the Sarnia Construction Association", was entered into. However, in what it admits is a very technical argument, the respondent submits that this key link in the applicant's claim to bargaining rights is defective. This defect, which the respondent asserts is fatal, consists of the failure to define who were "members" of the S.C.A. and therefore fails to identify which company it is which were "members" of the S.C.A. for purposes of that collective agreement.

7. Further, the respondent argues that the Great Lakes Fabricating, supra, case is distinguishable on its facts and that its rationale is not applicable to this case.

8. The respondent is a wholly owned subsidiary of the similarly named C. H. Heist Corporation, an American company. It describes itself as an industrial service contractor which specializes in high pressure painting and water-vacuuming services. In Ontario, it operates out of 5 locations: Sarnia, Hamilton, Oakville, Sudbury and Sault Ste. Marie. The respondent admits to being bound to various collective agreements, including the provincial agreement between the Ontario Painters Contractors Association, the Interior Systems Contractors Association of Ontario and the Accoustical Association of Ontario (the Employer Bargaining Agency), and the International Brotherhood of Painters and Allied Trades and the Ontario Council of the International Brotherhood of Painters and Allied Trades (the Employee Bargaining Agency). Although the respondent has a head office in Oakville, the respondent's local offices operate with substantial autonomy and the local area managers are generally responsible for the respondent's labour relations in their respective areas. The respondent applied for membership in something called the Sarnia Builders & Contractors Association on December 20, 1956. There is no evidence to indicate that that is the same thing as the S.C.A. which was incorporated by letters patent issued on June 25, 1948. However, the evidence does indicate that the respondent was a member of the S.C.A. by 1967 and remained a member until 1991. The respondent renewed its membership in the S.C.A. for each year during that period by filing an application form, and paying the requisite membership fee. For every year from 1970 on, the respondent indicated that it wished to be a "member" rather than an "associate member". Since 1948, these terms have been defined in the S.C.A.'s By-law Number 1 as follows:

A "MEMBER" organization shall be bound by all the terms and conditions of all labour agreements entered into and signed in the name and title of the SARNIA CONSTRUCTION ASSOCIATION.

An "ASSOCIATE MEMBER" organization shall have completely equal status in all the business, functions and aims of the SARNIA CONSTRUCTION ASSOCIATION, except that "ASSOCIATE MEMBERS" will be excluded from being bound by any labour agreement entered into and signed by the SARNIA CONSTRUCTION ASSOCIATION.

9. Except for the word "organization" after the words "ASSOCIATE MEMBER", this passage was set out in every application for membership completed by the respondent from 1969 to 1974. In making the application for membership, the respondent specifically stated its willingness to be governed by the "laws and rules" of the S.C.A. In addition, the respondent checked off the heading under which it wished to be listed in the Trade Directory published by the S.C.A. The respondent has in fact been listed in the S.C.A. 's Membership List and Trade Directory for every year during which it was a member up to and including the one issued for 1991-92.

10. John Dempsey was employed by the respondent in a management capacity (including as the Sarnia area manager) from 1972 to 1987. While he was employed by the respondent, he was on the S.C.A.'s Board of Directors and also on the S.C.A.'s Labour Relations Council. The latter is comprised of representatives of members of the S.C.A. It co-ordinates and regulates collective bargaining with various construction trade unions, including the United Brotherhood of Carpenters and Joiners of America. Since the advent of provincial bargaining in the industrial, commercial and institutional sector of the construction industry, the S.C.A. has been a voting member of the Labour Bureau of the Ontario General Contractors Association (a component of the Employer Bargaining Agency) with respect to several of the civil trades, including carpentry. The Labour Relations Council has, on behalf of the S.C. A. participated in this provincial bargaining scheme and has also negotiated separately signed local schedules to provincial collective agreements.

1I~. The parties also made reference to proceedings before the Board in Board File No. 1321-90-G (an earlier section 126 proceeding between Local 1256 of the United Brotherhood of Carpenters and Joiners of America, a sister local of the applicant, and the respondent herein and the United Brotherhood of Painters and Allied Trades) and Board File No. 2323-90-JD (a jurisdictional dispute complaint filed by the respondent herein naming Local 1256 of the United Brotherhood of Carpenters and Joiners of America, and the Ontario Council of the International Brotherhood of Painters and Allied Trades and International Brotherhood of Painters and Allied Trades, Local Union 1509 as respondents). In this case, the applicant seeks to refer and rely upon an admission by the respondent in the brief it filed in its jurisdictional dispute complaint in Board File No. 2323-90-JD that it "... is, and at all material times was, bound by a Provincial Collective Agreement with the Ontario Provincial Council, United Brotherhood of Carpenters and Joiners of America and Local 1256 of the United Brotherhood of Carpenters and Joiners of America." Both of those previous matters were withdrawn with leave of the Board on the basis of a Memorandum of Settlement dated August 27, 1991 between the parties to those previous proceedings. The respondent objects to the Board receiving or relying on the aforesaid admission, arguing that it would be inappropriate for the Board to go behind the agreement of the parties in that manner.

12. The Memorandum of Settlement in question reads as follows:

O. L. R. B. File No.

2323-90-ID

Between:

C. H. Heist Ltd.

Complainant

and

United Brotherhood of Carpenters and Joiners of America (Local 1256) and the Ontario Council of the International Brotherhood of Painters and Allied Trades (Painters Council) and the International Brotherhood of Painters and Allied Trades, Local Union 1590 (Painters, Local 1590)

Respondents

Memorandum of Settlement

The Parties agree to resolve this matter on the following basis:

1. No party shall rely on the assignment of the work in dispute in this case for any future assignment or in any future case.

2. In any future assignment of the work in dispute, the Complainant shall consider the claim of the Respondent Carpenters Local 1256 in making its decision as to which trade shall perform the work.

3. This Complaint, as well as the grievance in O.L.R.B. File No. 1321-90-G are hereby withdrawn without prejudice to the position of any party as to the propriety of this assignment.

Dated at Toronto this 27th day of August, 1991.

13. In response to the grievance filed in Board No. 1321-90-G, the respondent denied that it was bound to the Carpenters Provincial Agreement. However, in its own complaint in Board File 2323-90-JD, made subsequent to that denial, it specifically conceded that it was so bound. The Memorandum of Settlement deals with the assignment of work in the context of the two proceedings to which it relates. In the Board's view, looking to the brief of the respondent (the complainant in the jurisdictional dispute proceeding and the assignor of the work in dispute) in the manner requested by the applicant herein does not amount to looking behind the agreement reached by the parties in the Memorandum of Settlement. At the hearing, the Board therefore (orally) overruled the respondent's objection, although without prejudice to its right to present whatever arguments it wished with respect to what weight, if any, the Board should give this evidence.

14. There is also some evidence before the Board with respect to a jurisdictional dispute between Local 1256 of the United Brotherhood of Carpenters and Joiners of America and Local 1509 of the International Brotherhood of Painters and Allied Trades in 1976 regarding the building and dismantling of scaffolding on a job site in the Sarnia area. In the course of an attempt to resolve this dispute, the S.C.A. recommended that the work be assigned to members of the Carpenters Local. The respondent declined and instead assigned the work to members of the Painters Local. There is nothing in the evidence before the Board which indicates the basis for that decision. More specifically, there is nothing in the evidence which suggests that part of the basis for the respondent's decision was that it believed it was not bound to an applicable collective agreement with the Carpenters Local, or even that the respondent took that position at the time.

15. In Great Lakes Fabricating, supra, it was asserted that the respondent employer, a Sarnia area contractor and "member" of the S.C.A., was not bound to a collective agreement merely because it was a member of the S.C.A. After referring to the definition of member and associate member in S.C.A. By-Law Number 1 (which definitions are identical to those set out in paragraph 8 above), the Board ruled as follows:

4…..

There is no question that the respondent in the present case is a member within the meaning of 1(a) of the by-law and further that in an annual publication of the Sarnia Construction Association which is a Membership and Trade Directory, the respondent has for many years now been listed and designated as a full member rather than an associate member in that directory.

5. The evidence is also clear that for a number of years the Sarnia Construction Association has bargained on behalf of its members with the various trade unions loosely referred to as the "civil trades" which include the carpenters, operating engineers, labourers, teamsters, cement finishers and bricklayers. This pattern existed prior to the advent of province-wide bargaining in the construction industry, although, for some time prior to that the bricklayers had been bargaining provincially and the Sarnia Construction Association had ceased to bargain for bricklayers.

6. The position taken by the applicant is that there is no collective agreement between the respondent and the intervener because there is neither a certificate creating bargaining rights, nor an individual collective agreement, nor a list of contractors transferred by the Sarnia Construction Association to the union. While it is clear on the facts that there is no individual collective agreement between the intervener and the respondent, and it is not disputed that there is no certificate, the evidence is clear that the respondent was bound by the bargaining of the Sarnia Construction Association prior to the commencement of province-wide bargaining in 1978.

7. In this regard, the by-law setting out the position of membership in the Sarnia Construction Association could not be clearer. Since 1961, the respondent had been bound by that by-law and indeed listed as a member of that organization. There can be no doubt that from the period from 1961 through 1978, the Sarnia Construction Association was very specifically bargaining upon the behalf of the respondent amongst others.

8. Although there is no doubt that the respondent has observed the collective agreement with the intervener, this is not a case, as suggested by the applicant, where it is alleged that bargaining rights are created by the mere observance of a collective agreement. Rather we are satisfied that section [52] subsections (1) and (2) have from 1961 on, been complied with in such a manner as to make the agreement binding on the respondent. Section [521(1) and (2) read as follows:

"(1) A collective agreement between an employers' organization and a trade union or council of trade unions is, subject to and for the purposes of this Act, binding upon the employers' organization and each person who was a member of the employers' organization at the time the agreement was entered into and on whose behalf the employers' organization bargained with the trade union or council of trade unions as if it was made between each of such persons and the trade union or council of trade unions and upon the employees in the bargaining unit defined in the agreement, and, if any such person ceases to be a member of the employers' organization during the term of operation of the agreement, he shall, for the remainder of the term of operation of the agreement, be deemed to be a party to a like agreement with the trade union or council of trade unions."

"(2) When an employers' organization commences to bargain with a trade union or council of trade unions, it shall deliver to the trade union, or council of trade unions a list of the names of the employers on whose behalf it is bargaining and, in default of so doing, it shall be deemed to bargain for all members of the employers' organization for whose employees the trade union or council of trade unions is entitled to bargain and to make a collective agreement at that time, except an employer who, either by himself or through the employers' organization, has notified the trade union or council of trade unions in writing before the agreement was entered into that he will not be bound by a collective agreement between the employers' organization and the trade union or council of trade unions.

In the present case, not only is the annual booklet produced by the Sarnia Construction Association, a list of employers sufficient to comply with subsection (2) referred to above, but there is no evidence that the respondent has at any time claimed not to be bound by the agreement and notified the intervener of such a refusal to be bound. Therefore, it is clear that the respondent is bound by a collective agreement with the intervener. We therefore find that the intervener has status to intervene in these proceedings.

9. On the foregoing facts, we have found that the respondent is party to the collective agreements made by the Sarnia Construction Association prior to 1978. Since that time, of course, the respondent has been bound to the appropriate provincial agreements...

[emphasis added]

16. In our view, there is no merit to the respondent's technical argument. The S.C.A. has been in operation for over 40 years. It has long been active in collective bargaining in the construction industry and ascertaining who is a member of the S.C.A. is a simple and straightforward matter. We have no difficulty in finding that all entities which were members of the S.C.A., as defined in By-law Number 1 as aforesaid, were bound by that collective agreement.

17. It is clear that the respondent was for many years, and was at all material times, a member of the S.C.A. The evidence does not support a suggestion that an employer could be a member of the S.C.A. for some purposes and not for others. An employer is either a member or it is not. The listings in the S.C. A. Trade Directory provide information with respect to areas in which members are active but do not operate to restrict the collective agreements to which they are bound. Furthermore, there is no evidence that the respondent ever denied either being bound by the collective agreement between the S.C.A. and Local union 1256 of the United Brotherhood of Carpenters and Joiners of America or by the subsequent Carpenters Provincial Agreement until it took that position in October, 1990 in Board File No. 1321-90-G, and which position it subsequently abandoned in the jurisdictional complaint it filed in Board File No. 2323-90-JD.

18. Although this case is distinguishable from the one in Great Lakes Fabricating, supra, on the facts, the Great Lakes Fabricating analysis is not fact specific. We agree with the Great Lakes Fabricating analysis and find it equally applicable to this case.

19. The respondent was a member of the S.C.A. in 1975 when the S.C.A. became bound to the collective agreement with Local Union 1256 of the United Brotherhood of Carpenters and Joiners of America as aforesaid. This collective agreement applied to all sectors of the construction industry. Subsequently, by virtue of the amendments to the Labour Relations Act which established the province-wide collective bargaining scheme presently in effect for the industrial, commercial and institutional sector of the construction industry in Ontario, this resulted in all members of the S.C.A., including the respondent, and all affiliated bargaining agents of the Employee Bargaining Agency, including Local 1256 and the applicant, becoming bound by the provincial collective agreement between the Carpenters Employer Bargaining Agency and the Ontario Provincial Council, United Brotherhood of Carpenters and Joiners of America; that is, the Carpenters Provincial Agreement.

20. In short we are satisfied that, both on the evidence and by its own admission, the respondent was, subject to the other arguments it has raised, bound to the provincial collective agreement between the Carpenters Employer Bargaining Agency, and the Ontario Provincial Council, United Brotherhood of Carpenters and Joiners of America at the times material to the grievance herein.

21. The Registrar is directed to relist this matter for hearing. The purpose of the hearing is to hear the evidence and representations of the parties with respect to all matters remaining in dispute between them herein.