International Brotherhood of Electrical Workers, Local 894 v. Ellis-Don Limited, 1992 CanLII 6752

[1992] OLRB Rep. February 147

2526-89-G International Brotherhood of Electrical Workers, Local 894, Applicant v. Ellis-Don Limited, Respondent

BEFORE: Susan Tacon, Vice-Chair, and Board Members J. Trim and J. Redshaw.

APPEARANCES: A. M. Minsky, Robert Hill and Arlene Huggins for the applicant; Roy Filion, Frank Angeletti and Paul Richer for the respondent.

DECISION OF VICE-CHAIR, SUSAN TACON AND BOARD MEMBER J. REDSHAW; February 28, 1992

1. This is a referral of a grievance to arbitration pursuant to section 124 of the Labour Relations Act. The parties were agreed that the respondent ("Ellis-Don") had sublet electrical con­struction work which would be covered by the Provincial ICI Agreement to a "non-union" electri­cal contractor, i.e., an electrical contractor not bound to the ICI Agreement. The work in question was at the Environmental Science Building, Trent University in Peterborough. It was this subcon­tract which led to the instant grievance by the applicant ("Local 894, IBEW").

2. The Board notes, as well, the parties' agreement to the substitution of Board Member Trim for Board Member Gibson following his untimely death before the completion of the hearing.

3. In reaching its factual findings, the Board has considered the usual the factors going to credibility and has weighed and assessed the evidence, including the documentary material, in that context and in the context of what is reasonably probable in the circumstances. As might be expected when witnesses are asked to recollect events almost thirty years in the past, the evidence was somewhat sketchy at times, although, in the Board's view, the witnesses were sincerely trying to recall those events to the best of their ability.

4. Because of the issues involved and the onus with respect to those matters, the parties reached agreement as to the order of proceeding, including the order for written submissions on the admissibility and probative value of the report and supplementary report submitted by G. W. Adams as Special Counsel, to the Minister of Labour dated April 11 and May 1, 1980 (the Adams' reports) which union counsel sought to file with the Board during argument. As well, following completion of the hearing, the Board afforded the parties the opportunity to make representations in writing regarding the impact, if any, on the instant proceeding of the Board decision in Marineland of Canada Inc., [1990] OLRB Rep. Dec. 1298. Before setting out the Board's factual findings, it is appropriate to summarily recount the able and thorough submissions of counsel on all issues.

ARGUMENT

5. Counsel for the union reviewed the evidence in support of his assertion that Tony Evans had signed Exhibit 5, the working agreement dated December 10, 1962 on behalf of Ellis-Don, and that Evans had the actual or, in the alternative, the ostensible authority to enter such an agreement by virtue of his duties and responsibilities as general superintendent for Ellis-Don. Likewise, the working agreement was properly executed by officials of the Building Trades Council ("the Coun­cil") on behalf of the Council and its affiliates. Further, even if Evans did not have the requisite authority, counsel argued that Ellis-Don effectively ratified the working agreement through its sub­sequent conduct in conducting a pre-job conference at the University of Toronto project and hiring tradesmen. Counsel submitted there was no evidence on which the Board could reasonably con­clude that Evans signed the working agreement under duress. Counsel asserted the statutory scheme of province-wide bargaining extended those bargaining rights to all affiliated bargaining agents province-wide in the ICI sector of the construction industry. That is, the statutory scheme extended the bargaining rights of Local 353 of the IBEW to the applicant in the instant grievance, Local 894, IBEW. Counsel also argued that whether or not Ellis-Don actually had employees as at December 10, 1962 was irrelevant because the agreement was signed in contemplation of trades­men being required for the University of Toronto project scheduled to start shortly thereafter. In any event, Ellis-Don could not properly raise such an argument as that was tantamount to relying on its own impropriety as a defence to the working agreement and/or such an argument could not be invoked by an employer on behalf of its employees.

6. With respect to the issue of abandonment, counsel contended that the company had not satisfied its onus of establishing abandonment by Local 353, IBEW prior to 1978. In that regard, it was argued that only the conduct of Local 353 was relevant and not that of other affiliates of the Council during that period. In any event, the evidence of non-union subcontracts on Ellis-Don projects in that period was sketchy and comprised a very minor component of the value of the projects in question. Specifically, there was no evidence of non-union electrical subcontracting in the period from the signing of the working agreement to 1977, when the province-wide bargaining scheme was statutorily imposed. Counsel asserted that Board caselaw had clearly rejected the con­cept of abandonment of bargaining rights subsequent to the imposition of the statutory scheme. Counsel stressed that the fact that a grievance referral filed by the Teamsters against Ellis-Don in 1980 relying on the 1962 working agreement was withdrawn because the applicant was unable to prove the signatory on behalf of the company in that document and did not constitute prejudice to the company as there was no claim for relief in the period from that withdrawal to the filing of the instant grievance. Nor could that withdrawal constitute an abandonment for all time by all the Council affiliates of their right to seek to prove the 1962 working agreement. In summary, counsel asked that the grievance be upheld.

7. Counsel referred to the following cases: Scherer v. Paletta, 1966 CanLII 286 (ON CA), [1966] 2 OR. 524 (CA); Inspiration Limited, [1967] OLRB Rep. Sept. 561; Sentinel Reliance Products Limited, [1973] OLRB Rep. Jan. 7; Whitney Maintenance, [1973] OLRB Rep. Jan. 26; Re Canada Labour Rela­tions Board and Transair Ltd., (1976) 1976 CanLII 170 (SCC), 67 D.L.R. (3d) 421 (SCC); G.M. Gest Limited, [1978] OLRB Rep. Aug. 747; Canadian Laboratory Supplies Ltd. v. Engelhard Industries of Canada Ltd., (1979) 1979 CanLII 44 (SCC), 97 D.L.R. (3d) 1 (SCC); Rockland Industries inc. v. Amerada Minerals Corporation of Canada Ltd., (1980) 1980 CanLII 188 (SCC), 108 D.L.R. (3d) 513; Vic Starchuk & Associates Inc., [1980] OLRB Rep. April 516; Napev Construction Limited, [1980] OLRB Rep. June 862; Newman Bros. Limited, [1981] OLRB Rep. June 750; Culliton Brothers Limited, [1982] OLRB Rep. Mar. 357; Nicholls-Radtke & Associates Limited, [1982] OLRB Rep. July 1028; M.J. Guthrie Construction Limited, [1982] OLRB Rep. Sept. 1332; M.J. Guthrie Construction Limited, [1983] OLRB Rep. April 576; M.J. Guthrie Construction Limited, [1984] OLRB Rep. Jan. 50; City Plumbing (Kitch­ener) Limited, [1985] OLRB Rep. Nov. 1566; Distribulite Ltd. et al v. Toronto Board of Education Staff Credit Union Ltd. et al, (1987) 1987 CanLII 4162 (ON HCJ), 62 OR. (2d) 225; Eighty-Five Electric, [1987] OLRB Rep. June 833; Lorne's Electric, [1987] OLRB Rep. Nov. 1405; Cumberland Properties Ltd. v. The Min­ister of National Revenue, [1988] 88 DTC 6284; Harbridge & Cross Limited, [1988] OLRB Rep. April 391; R. Reusse Co. Ltd., [1988] OLRB Rep. May 523; Paccar of Canada Ltd. (Canadian Kenworth Company Division) v. Canadian Association of Industrial, Mechanical & Allied Workers, Local 14 et al, (1989) 1989 CanLII 49 (SCC), 62 D.L.R. (4th) 437 (S.C.C.); Harbridge & Cross Limited, [1989] OLRB Rep. July 824 (judicial review aplication dismissed); Harb ridge & Cross Limited, [1989] OLRB Rep. Oct. 1093 (leave to appeal refused); Steelfabco Inc., [1990] OLRB Rep. Jan. 83; Arlington Crane Service Limited et al v. Ontario Minister of Labour et al, [1988] 89 CLLC ¶12,133 (Ont Supreme Ct.); United Brotherhood of Carpenters and Joiners of America, [1978] OLRB Rep. Aug. 776; J. C. Milne Const. Co. (Canada) Inc., [1979] OLRB Rep. Mar. 220; Metropolitan Toronto Sewer and Watermain Contractors Association, (Board Files 1533-88-R, 1534-88-R, unreported, August 28, 1990). (Hereafter, reference to Harbridge & Cross Limited, supra is to the initial Board decision at [1988] OLRB Rep. May 523).

8. Counsel for the respondent reviewed the evidence. He asserted that the evidence sup­ported the proposition that Tony Evans had neither the actual nor the apparent authority to sign the working agreement on behalf of Ellis-Don and, hence, the document was never binding on the respondent. Further, it was argued that one would reasonably infer from the direct and circumstan­tial evidence that the working agreement was signed by Tony Evans under duress. Indeed, counsel contended that the Building Trades Council's entire method of operation (i.e., recognition picket­ing of job sites) was such that no working agreement could be freely signed in that era. In the alter­native, given the Board's jurisprudence, the working agreement was invalid as a matter of law as there were no employees in the bargaining unit at the time the agreement was signed and, specifi­cally, the working agreement could not be characterized as a "pre-hire" agreement with respect to electricians. If the Board found that the working agreement was valid and created bargaining rights, counsel submitted that the document was never intended to create bargaining rights for Local 353, IBEW since Ellis-Don never intended to hire electricians directly and, indeed, on the evidence, has never hired electricians directly in fact. That is, it was contended that the evidence, at most, evinced an intention of Ellis-Don to grant voluntary recognition to only those unions which represented tradespersons who would be direct hires of the respondent. In this regard, coun­sel stressed that Ellis-Don's name did not appear in any of the Board accreditation orders except those of the civil trades. As well, counsel emphasised that no evidence was led by Local 353 to explain why Ellis-Don did not appear on schedule E or F in the Board accreditation order issued in 1975 for the Electrical Contractors Association of Toronto. The only reasonable inference, it was argued, was that, at the time Local 353 completed the requisite forms in connection with the accreditation application, Local 353 did not believe it possessed bargaining rights grounded on the working agreement. Counsel requested the Board to revisit Harbridge & Cross, supra, given that there was no relevant accreditation order in that case, as here, and that paragraph 5 of the working agreement referred to the existing Builders' Exchange, the predecessor of the Toronto Construc­tion Association (the "TCA") noted in the Harbridge & Cross case. That is, only the six civil trades had collective agreements with the Builders' Exchange. Counsel rhetorically queried how paragraph 2 of the working agreement could create bargaining rights as between Ellis-Don and Local 353 when Ellis-Don had never hired Local 353 members. Paragraph 3 of the working agree­ment, dealing with sub-contracting, it was contended, could not be characterized as a recognition clause creating bargaining rights. Finally, with respect to Harbridge & Cross, supra, counsel asserted that the fact that the Divisional Court did not quash the decision reflected curial deference to Board decisions rather than a "stamp of approval" of the Board's reasoning therein. Counsel then proceeded with a detailed exposition of the "construction" provisions of the Act, including the sequence of amendments, in support of his proposition that the Legislature never intended to have bargaining rights created by the type of working agreement before the Board in the instant case.

9. Counsel also asserted that, should the Board find bargaining rights were created in some fashion, whatever bargaining rights were created were abandoned prior to the introduction of the statutory scheme for province-wide bargaining in 1977. In that regard, the absence of Ellis-Don's name from the accreditation order noted above was critical particularly given the absence of any explanation for the failure of Local 353 to include Ellis-Don on schedule E or F in that applica­tion. Counsel noted that abandonment is a question of fact and urged the Board to find abandon­ment in the instant case. In the final alternative, counsel argued that bargaining rights had been abandoned subsequent to 1978. Counsel reviewed the documentation on the subcontracting of various work on Ellis-Don projects tendered in evidence. The Board jurisprudence that bargaining rights with respect to a provincial agreement cannot be abandoned was directly challenged particu­larly in the context of the recent Board decision regarding Ontario Hydro, infra. It was submitted that abandonment by one or more affiliated bargaining agents should bind the employee bargain­ing agency as the latter was a legal fiction, an agent of the former. In the instant case, there was a pervasive pattern of inaction by the applicant and the other affiliated bargaining agents on a prov­ince-wide basis for many years. Counsel submitted it was unfair and improper to utilize a 1962 working agreement to create bargaining rights for the applicant where Ellis-Don had never employed electricians. To do so would be tantamount to giving the IBEW voluntary recognition with respect to non-existent employees. Counsel argued that voluntary recognition should be restricted to circumstances where certification was a possible route to bargaining rights. Otherwise, it was emphasised, the IBEW would be able to do indirectly (through voluntary recognition grounded in the 1962 working agreement) that which it could never have accomplished directly through certification as there had never been any employees of Ellis-Don to organize.

10. Cases cited included: Collegiate Sports Ltd., [1977] OLRB Rep. Aug. 487; Hussey Seat­ing Company (Canada) Limited, [1981] OLRB Rep. Aug. 1138; Sunrise Paving and Construction Co. Ltd., 72 CLLC ¶16,060; C. Strauss (1973) Limited, [1975] OLRB Rep. July 581; Nicholls-Radtke & Associates Limited, [1982] OLRB Rep. July 1028; Gerald Davidson Plumbing & Heating Limited, [1984] OLRB Rep. March 462; F. D. V. Construction Ltd., [1984] OLRB Rep. May 719; Eighty-Five Electric, [1987] OLRB Rep. June 833; Catalytic Enterprises Limited, [1974] OLRB Rep. April 264; J.S. Mechanical, [1979] OLRB Rep. Feb. 110; John Entwisde Construction Limited (#1), [1979] OLRB Rep. March 211; Hugh Murray Limited, (1979] OLRB Rep. July 664; John Entwistle Construction Limited (#2), [1979] OLRB Rep. Nov. 1096; John Murray (1974) Limited et al and John Eniwistle Construction Limited et al (1980), 1980 CanLII 1826 (ON HCJ), 33 OR. (2d) 670; Eastern Con­struction Company Limited, [1989] OLRB Rep. Nov. 1105; R. Reusse Co. Ltd., [1988] OLRB Rep. May 523; Edland Construction (1960) Ltd., (1963), 1963 CanLII 615 (ON HCJ), 39 D.L.R. (2d) 536; Smith Bros. Con­struction Co. Ltd., 1955 CanLII 152 (ON HCJ), [1955] 4 D.L.R. 255; Acton Excavating and Contracting Limited, 64 (3) CLLC ¶14,006; Ontario Hydro, (1990) OLRB Rep. March 305.

11. In reply, union counsel reiterated his position that Evans had actual, implicit authority or at least ostensible authority to sign the working agreement. Counsel sought to distinguish the cases cited by respondent counsel with respect to "pre-hire" agreements. Further, it was asserted that persons were hired on the University of Toronto job pursuant to the working agreement and, even if Ellis-Don did not intend to hire electricians, the working agreement was valid and covered all trades affiliated with the Council, not just the civil trades. With respect to absence of Ellis-Don's name on the 1975 accreditation order, counsel suggested that the fact that Ellis-Don was not put forward by the union on Schedule "F" (as a company with whom the union had bargaining rights but who did not employ electricians in the previous year) was not evidence of abandonment. Moreover, it was asserted that factor should not be given weight since the accreditation order was statutorily revoked in 1977 with the inauguration of the province-wide ICI bargaining. Counsel argued the principles established in Harbridge & Cross, supra, should not be reversed as respon­dent counsel was seeking. Counsel disagreed with respondent counsel's interpretation of section 144(4) of the Act and reviewed the relevant legislative history in Bills 22, 17, 204 and 73. Union counsel argued that the discussion of estoppel in Ontario Hydro, supra, was not relevant to the line of jurisprudence elaborating on the mandatory statutory scheme for bargaining in the ICI sector of the construction industry.

12. In "surreply" as agreed by the parties, respondent counsel stressed that Ellis-Don had never hired electricians directly and this distinguished the instant case from the Nicholls-Radtke, supra, jurisprudence. Counsel rejected the proffered explanation by union counsel for the absence of Ellis-Don's name on schedule F of the 1975 accreditation order and asserted there was no com­pelling explanation for that absence except abandonment. Counsel did not dispute that Bill 73 did not operate so as to confer bargaining rights which were not already present. With respect to Ontario Hydro, supra, counsel argued that equitable concepts were compatible with the Act and queried the public interest in protecting IBEW bargaining rights vis-a-vis Ellis-Don. Finally, with reference to Lorne's Electric, supra, counsel asserted that not to hold the employee bargaining agency responsible for the actions (or inaction) of its affiliated bargaining agencies was tantamount to granting an independent existence to the employee bargaining agent, a status inconsistent with the statutory scheme.

13. With respect to the Adams' reports, the Board ruled (Board Member Trim dissenting) that the documents were admissible to show the mischief, in Mr. Adams' view, which existed prior to the amendments in question of the Labour Relations Act. Submissions on the probative value of the reports were in writing and, accordingly, need not be reiterated here except in summary form. The essence of the argument by counsel for the union is found in the following excerpt from his written submissions:

In conclusion, the Board ought to accord considerable weight to the Adams Reports which clar­ify and confirm the purpose and history of the province-wide bargaining legislation and, in par­ticular, its recognition and coverage of bargaining rights created by voluntary recognition agree­ments, including working agreements. The Adams' Reports thus have the effect of invalidating the far-reaching and, with respect, anomalous interpretation placed by the Respondent on the scope of the designation provisions of the Act as well as providing the historical context and pur­pose of Section 144 thereof.

Respondent counsel argued that the Adams' Reports have no probative value, providing no assis­tance in determining legislative intent.

14. As noted earlier, the Board afforded the parties the opportunity to comment on the impact, if any, of the recent decision in Marineland, supra. Again, as those extensive submissions were in writing, the Board herein merely highlights the positions taken. Counsel for the union con­tended that the decision in Marineland, supra, was internally contradictory and inconsistent with established Board jurisprudence to the effect that bargaining rights cannot be abandoned subse­quent to the issue of the statutory designation orders. In the alternative, the evidence before the Board in Marineland is not similar or parallel in that there is no evidence of abandonment of bar­gaining rights by Local 353 prior to 1978. Any non-enforcement of the electrical workers' Provin­cial Agreement by certain affiliated bargaining agents in the 1980's vis-a-vis the respondent was explained by the evidence led in these proceedings, i.e., the obstacle to proving the identity of the respondent's signatory to the working agreement prior to the summer of 1989. Respondent counsel argued that the Marineland decision held that the question of abandonment was one of fact and, in reaching that factual finding, it was appropriate to consider events subsequent to, as well as prior to, the designation orders. Counsel stressed the asserted similarities in the evidence before the Board in Marineland and in the instant case. Finally, respondent counsel submitted that the Marineland decision was not inconsistent with earlier jurisprudence which held the bargaining rights could not be abandoned subsequent to the designation orders, although counsel also submit­ted that jurisprudence was now of questionable validity in view of the Board's decision in Ontario Hydro, supra.

FACTS

15. Ellis-Don is a large general contractor. Ellis-Don originated and initially operated in the London area. In late 1962 the firm won the contract to construct the Zoological Building at the University of Toronto. The $4 to $5 million building was considered a substantial project for the time. This contract was the first for Ellis-Don in the Toronto area. Jim Burns, an estimator with the firm, was relocated to Toronto to open an office there in early 1963. His position was Toronto manager; his responsibilities included letting the subcontracts on the University of Toronto project, monitoring performance, scheduling, costs, change orders, and progress billings.

16. Tony Evans joined Ellis-Don in the Fall of 1962 as a general superintendent. He super­vised a number of job sites across Ontario including the University of Toronto project, travelling regularly to those sites from the London head office. The various project supervisors on site reported to Evans who assisted in hiring, expediting materials, ensuring schedules were main­tained, liaison with client owners and such like. The project supervisor at the University of Toronto site was Jim Peden. While Evans was not authorized to sign commercial contracts on behalf of the company, he did handle labour relations functions including direct hires, grievances, jurisdictional disputes and signing collective agreements and working agreements. Ellis-Don, at that time, hired workers directly for several trades such as labourers, carpenters, bricklayers and masons. Electricians were not hired directly by Ellis-Don at any point; rather, that work was sub­contracted. Evans testified he visited the University of Toronto project every week or two from the project's start in late 1962. Evans identified his signature on Exhibit 5, the working agreement dated December 10, 1962, although he could not recall signing the document. He did not recognize the various union signatories to the working agreement except for Albert Hull whom he recalled as the business agent on the site. Evans could not recollect a specific reason for signing the working agreement except that he would likely have signed "to get (union) men". In December, work had not actually started on the project except perhaps for preliminary work; excavation did not com­mence until late February or early March 1963. Evans could not recall whether a pre-job meeting had been held on the project nor further comment on that correspondence. Evans left Ellis-Don in August 1963.

17. Burns and Evans met weekly during 1963 until Evans left the company. Burns testified that he never saw Exhibit 5, the working agreement, nor did Evans raise the matter with him after Bums arrived in Toronto as Toronto manager. Burns indicated he let subcontracts for the Univer­sity of Toronto project and other projects without considering the "union status" of the subcon­tractors. He did not have any contact with the Building Trades Council during the project to its completion in late 1964. Although Peden reported to Evans with regard to his "line" functions, Peden reported to Burns with regard to "project" functions (such as subcontracts, costs, materials reporting). Burns was shown the correspondence mentioning a pre-job meeting at the University of Toronto site. He could not recall any such meeting although he thought he would have expected to attend any pre-job meetings at the University of Toronto project as Toronto manager. Burns acknowledged that in early 1963 he was just in the process of setting up the Toronto office and might not have been included in these matters for that reason. Bums did state he would have learned of any union grievances concerning the presence of non-union subcontractors on site. Burns could not recall any grievances on the University of Toronto project either concerning sub­contractors or direct hires. Finally, Burns testified that the president of Ellis-Don, Don Smith, visited the University of Toronto project perhaps six or seven times.

18. Edward Greeley testified that in the early 1960's he was Assistant Business Manager of the Toronto Building and Construction Trades Council, Albert Hull was Business Manager and George Allan (from Local 721 of the Ironworkers) was Council president. Local 353 of the IBEW was affiliated with the Council. He identified his signature and those of Allan and Hull on the December 10, 1962 working agreement and recalled the document being signed in the Council offices. Greeley remembered meeting with Evans and Peden at the University of Toronto site. He stated he did not know Evans' actual title but knew he (Evans) was Peden's superior and Peden was project manager. Greeley assumed Evans had sufficient authority to sign the working agree­ment. Greeley could not recollect actually seeing Evans sign the working agreement. Greeley could not remember attending a pre-job meeting although he thought he visited the site two or three times. As to the state of the project in December 1962, Greeley thought the hoarding might have been erected but there were not yet tradesmen on site. Greeley characterized Ellis-Don as having a good working relationship with the Council and could not recall any complaints about Ellis-Don using non-union subcontractors at the Council's executive board meetings.

19. Greeley testified about the structure of the Council in the early 1960's and Council efforts to organize contractors through the signing of working agreements like the one before the Board in the instant case. The Council's counterpart was the Toronto Builders' Exchange, the pre­decessor of the TCA. Greeley could not recall the arguments used to convince Evans to sign the working agreement but indicated that generally his position was that the Council wanted working agreements signed, that such an agreement would ensure the contractor a supply of skilled men and that, in the absence of a working agreement, labour difficulties might arise, especially if union men had to work along side non-union men. Greeley noted that, in some instances, the Council would not interfere with subcontracts which had already been let if the general contractor signed the working agreement. Greeley could not recall that sort of discussion with Evans. Greeley did have the impression that there was a verbal undertaking by the University to the Council that the job would be union in the interests of good labour relations by a large public institution. It was the responsibility of the various local business agents to police the working agreement, once signed, for their respective trades. The Council would likely get involved if a business agent could not resolve a complaint against a general contractor and raised the matter at a Council executive board meeting. In certain circumstances, the Council would declare a job "unfair" and approve picketing at the job site in an effort to pressure the general contractor.

20. Tony Michaels, business manager/financial secretary of the Council, indicated that the Council, to which Local 353 of the IBEW was affiliated, expanded its jurisdiction to become the Toronto-Central Ontario Building and Construction Trades Council. Local 894 of the IBEW, the applicant in these proceedings, became affiliated to the Council in 1979. In 1980, a section 124 grievance referral brought by the Teamsters was withdrawn because the Ellis-Don signatory to the working agreement could not be identified. Michaels testified that, after he became a Council offi­cial in 1986, he initiated a search involving the affiliates and other Councils in the province to iden­tify the Ellis-Don signatory. That process ultimately resulted in the identification of Evans' signa­ture. Ellis-Don was then put on notice that the Council had identified the Ellis-Don signatory to the working agreement and that the Council considered Ellis-Don bound by the agreement. Michaels conceded that, had the Council earlier exercised due diligence, the identifying documen­tation would have been unearthed much sooner. Michaels testified that both Hull and Allan, the other union signatories, were deceased. Michaels also testified as to the Council's practices in the 1960's regarding recognition strikes and the use of picketing of job sites to get working agreements signed. Michaels added that picketing sometimes occurred without the Council's knowledge and essentially ceased when the Board proscribed such conduct through cease and desist orders. Michaels agreed with Greeley, that if subcontracts had already been let at the point the general contractor signed a working agreement, the Council might waive compliance with the working agreement's subcontracting clause for that project. In general, local business agents were responsi­ble for policing job sites in respect of each trade although the Council used "survey teams" on a regular basis to canvas job sites in a designated geographic area, monitoring adherence to working agreements. Local business agents would be unlikely to monitor compliance with a working agree­ment by a contractor in respect of another trades' jurisdiction. Pre-job conferences were frequently held to review the project in advance and dealt with manpower requirements, jurisdictional dis­putes, subcontracts, etc. Michaels testified that general contractors usually subcontracted work other than that of the civil trades but had collective agreements with those six civil trades as those trades were "direct hires". The Toronto Builders' Exchange (the predecessor, as noted, to the TCA) negotiated collective agreements on behalf of its members, including Ellis-Don, with these six civil trades but did not have a collective agreement with the IBEW. Michaels conceded that Ellis-Don was a well-known general contractor which has operated throughout the province since the 1960's; its project sites are readily identifiable.

21. Paul Richer, director of legal and labour relations for Ellis-Don, testified as to the com­pany's efforts to document its various projects from the early 1960's onwards. Not surprisingly, evi­dence of various projects, including the union or non-union status of subcontractors, was sketchy for the early 1960's. A number of exhibits were filed with the Board breaking out such information as project size, value and type of non-union subcontracts on various projects, particularly in the Toronto area. It was conceded that the value of the non-union subcontract component of Ellis-Don projects over the years has been less than one percent of the project cost and there were no verifia­ble non-union subcontracts in the Toronto area in the 1962 to 1969 period. Richer testified that Ellis-Don was bound by collective agreements to the civil trades in the ICI sector (namely, carpen­ters, labourers, operating engineers, operative plasters and rodmen) but could not determine when and how Ellis-Don first became so bound. Further, in 1975, the Board certified the International Association of Bridge, Structural and Ornamental Ironworkers Local 721. In 1986, the Interna­tional Union of Bricklayers and Allied Craftsmen and Local Union 7 Canada were certified for marble masons, tile layers and terrazzo workers. Ellis-Don also has an agreement with the Form-work Council.

22. Bruce Binning, a partner with the law firm of Mathews, Dinsdale, has acted as counsel for the General Contractors section of the TCA for many years. He testified that the predecessor Toronto Builders' Exchange historically negotiated collective agreements with the six civil trades; generally those trades were direct hires and other work was subcontracted. Binning indicated that he was familiar with the accreditation legislation and acted as TCA counsel in respect of a number of accreditation applications. He stated that Ellis-Don's name appeared in the accreditation orders only with respect to the civil trades. Binning added that the general contractor members of the TCA were advised over the years to indicate, in their interventions if named by a union applicant, that no bargaining rights existed except for the six civil trades. He testified that a few general con­tractors had bargaining relationships with more than the six civil trades but very few general con­tractors ever employed electricians directly. Binning was not aware of any accreditation applica­tions beyond those involving the civil trades where the source of bargaining rights relied on was a working agreement type of document.

DECISION

23. The Board has roughly grouped the various issues under three headings, the working agreement, the "reach" of the working agreement and abandonment/estoppel. While the three groupings are useful for analytical purposes, it is recognized that the issues are not amenable to rigid compartmentalization.

THE WORKING AGREEMENT

24. The Board is satisfied that Exhibit 5, the working agreement, was signed by Evans on behalf of Ellis-Don and by Allan, Hull and Greeley on behalf of the Council on or about Decem­ber 10, 1962. It appears likely that the document was initially signed by Evans and, some few days thereafter, the Council officials affixed their names rather than the document being executed by all parties at the same meeting. Such a brief delay would explain the reference in the executive board minutes of December 13, 1962 wherein Greeley reported that Evans and Peden agreed to sign the working agreement but did not report the working agreement as having yet been signed. It is not unexpected that, after almost thirty years, the recollection of Greeley and Evans would have faded. However, Evans clearly identified his signature; Greeley not only identified the signatures of the Council officials but recollected meeting Evans at the University of Toronto site and the lat­ter's willingness to sign a working agreement. As well, there is some correspondence between Hull and Evans regarding a pre-job conference at the Zoological Building Project. Taken together, the Board finds the evidence is sufficient to constitute proof of the execution of the working agree­ment.

25. Respondent counsel argued that Evans did not have the authority to sign the working agreement on behalf of Ellis-Don. With respect, the Board does not agree. As noted above, Evans was the general superintendent of Ellis-Don responsible for the University of Toronto project, among others. Peden, the project superintendent, reported to Evans. The Board need not recount herein the duties and responsibilities outlined earlier except to emphasise that Evans was responsi­ble for labour relations for Ellis-Don at its various projects. Evans testified that he had signed other working agreements and collective agreements on behalf of Ellis-Don. In the Board's view, the fact that Evans could not, under the company's corporate structure, sign commercial contracts is not determinative of his authority vis-a-vis labour relations. The Board is satisfied that Evans had actual authority to sign the working agreement on behalf of Ellis-Don implicit in his duties and responsibilities for the firm. It was reasonable for Greeley to assume Evans, Peden's superior, pos­sessed the requisite authority to bind Ellis-Don to the working agreement given his (Evans) posi­tion in the Ellis-Don hierarchy and his functions. Thus, the Board finds the working agreement was properly executed by Evans acting on behalf of Ellis-Don and binds the company. The fact that Evans apparently did not tell Burns or others at Ellis-Don of the signing of the working agree­ment may well be unfortunate but does not serve to release Ellis-Don from its obligations. In reaching its conclusion, the Board has reviewed the various authorities cited by both counsel. The Board does not consider it necessary to recount those authorities in detail. Rather, the Board con­siders its finding consonant with the principles expressed therein. The Board would note that the circumstances in Inspiration Limited, supra, and Vic Starchuk and Associates Inc., supra, are par­ticularly apposite, although the latter case also dealt with the question of ratification. Conversely, the senior position of Evans within the company and his duties and responsibilities are not analo­gous to those in Collegiate Sports, sup ra, or in Hussey Seating Company, supra, which led to the conclusion that the persons involved in those cases did not have the apparent, ostensible or actual authority to bind the company to a collective agreement (again, although the latter case also dealt with the issue of ratification apart from apparent or actual authority).

26. Respondent counsel also argued that the working agreement was a nullity because, it was asserted, Evans would have signed the agreement under duress. The Board did hear some evi­dence of the practices of the Building Trades Council in that era and has reviewed the minutes of various Council meetings filed with the Board. There is no doubt that there were instances in that period of what could be termed "recognition picketing". However, the evidence falls far short of establishing that the practice was so wide spread and consistently used that is must be assumed that Evans, in this instance, signed a working agreement under duress. Moreover, in the specific cir­cumstances of the instant grievance, there is no compelling evidence to warrant such a finding. Greeley could not specifically recall the arguments used to convince Evans to sign but gave a num­ber of arguments "generally used" in such circumstances, only one of which might be construed as threatening recognition picketing. More critically, Evans himself did not recall why he signed the working agreement except "to get (union) men". In the Board's opinion, it would have been more probable than not for Evans to have recollected the circumstances if he had actually felt threatened or pressured by the prospect of a picket line into signing the working agreement. There was no evi­dence whatsoever of a picket line having been established at the University of Toronto job site. The Board is not herein condoning recognition picketing; the Board caselaw has proscribed such conduct (see, for example, United Brotherhood of Carpenters and Joiners of America, supra, and the cases cited therein). It is simply that the facts in the instant case do not warrant a finding that the working agreement was signed under duress. Thus, the Board finds that the working agree­ment is not nullified or without force and effect on this ground as well.

REACH OF THE WORKING AGREEMENT

27. Respondent counsel asserted that, because Ellis-Don had no employees at the date the working agreement was signed, the agreement itself was not valid. In so arguing, counsel relied on the line of cases beginning with Sunrise Paving, supra, through C. Strauss (1973) Limited, supra, to Gerald Davidson, supra, F.D. V. Construction, supra, and Eighty-Five Electric, supra. The com­mon thread in those cases is that a voluntary recognition agreement signed at a point when no employees have been hired constitutes unlawful employer support for the trade union contrary to section 48 of the Act; the employees subsequently hired would have been deprived of the opportu­nity to choose their bargaining agent.

28. The Board does not accept respondent counsel's analysis for several reasons. On a gen­eral level, the Board has serious concerns as to whether a party can raise its own wrong-doing to defeat a contract to which it is bound: Whitney Maintenance Limited. supra; Re Canada Labour Relations Board and Transair Limited, supra. The individuals on whose behalf the respondent asserts the working agreement should be struck down are not before this Board.

29. More specifically, the reasoning in Sunrise Paving, supra, and C. Strauss, supra, has been excluded in its applicability to circumstances where the seminal document may properly be characterized as "pre-hire" agreement: Nicholls -Radtke, supra. It is useful to set out the following somewhat lengthy excerpt from Eighty-Five Electric, supra, which reviews the Nicholls-Radtke rea­soning:

30. Further, beginning with Nichdlls-Radtke, supra, the Board recognized that in order to accommodate the scheduling and the working realities of the construction industry, the union's hiring hall function had to be acknowledged and appreciated to be able to operate in such a way as to cause no offence to the protections inherent in section 48 of the Act. In the Nicholls-Radtke case, supra, the company entered into an agreement incorporating a collective agreement between the General Contractors of the Construction Association and the union. At the time the agreement was signed, the company had no employees. The agreement was signed on the understanding that the local union would supply workers when they were required. The hiring began within four days. The agreement showed on its face the intention to hire employees in the future. In that decision, the Board reviewed its previous case law that focused on the con­cern over employer support when agreements were signed before employees were in place. But in the Nicholls-Radike case, supra, the Board concluded the document was signed in contempla­tion of members being employed on that project. Thus, the Board held that the union was sim­ply acting in its capacity as a trade union in the construction industry trying to obtain work for its members rather than the employer trying to recruit members for the union. This was said to cause no offence to section 48 of the Act. Further, the Board was convinced that the employer needed someone to perform the work and that the union simply undertook to refer its members in exchange for voluntary recognition from the employer as the exclusive bargaining agent for those persons. This was said not to be equal to union support. The full analysis of the case bears repeating.

31. In view of the arguments put forward by the applicant and the intervener, the present case comes down to a very basic policy choice for this Board. Should the Board continue to follow the policy set out in the C. Strauss case, that the mere signing of a collective agreement, when there are no employees in the bargaining unit, of itself constitutes employer support for a trade union? The agreed Statement of Facts signed by the parties in this matter indicates in paragraph three that the agreement was signed on the understanding that Local 2693 would supply workers if and when requested to do so by the respondent to the project which would be commenced at a later date. In making such an agreement, the intervener was merely acting as a lot of construction trade unions do in attempting to obtain work for its members. In this regard, reference should be had to section 46 of the Act which deals with certain permitted provisions of collective agreements, in particular union security provisions.

Subsection 1 of section 46 reads as follows:

46. (1) Notwithstanding anything in this Act, but subject to subsection (4), the parties to a collective agreement may include in it provisions,

(a) for requiring as a condition of employment, membership in the trade union that is a party to or is bound by the agreement or granting a preference of employment to members of the trade union, or requiring the payment of dues or contributions to the trade union;

(b) for permitting an employee who represents the trade union that is a party to or is bound by the agreement to attend to the busi­ness of the trade union during working hours without deduction of the time so occupied in the computation of the time worked for the employer and without deduction of wages in respect of the time so occupied;

(c) for permitting the trade union that is a party to or is bound by the agreement to use the employer's premises for the purposes of the trade union without payment therefor.

[original emphasis]

Subsection 4 reads as follows:

(4) A trade union and the employer of the employees concerned shall not enter into a collective agreement that includes provisions requiring, as a condition of employment, membership in the trade union that is a part to or is bound by the agreement unless the trade union has established at the time it entered into the agreement that not less than 55 per cent of the employees in the bargaining unit were members of the trade union, but this subsection does not apply.

(a) where the trade union has been certified as the bargaining agent of the employees of the employer in the bargaining unit; or

(b) where the trade union has been a party to or bound by a collec­tive agreement with the employer for at least one year; or

(c) where the employer becomes a member of an employers' organi­zation that has entered into a collective agreement with the trade union or council of trade unions containing such a provision and agrees with the trade union or council of trade unions to be bound by such agreement, or

(d) where the employer and his employees in the bargaining unit are engaged in the construction, alteration, decoration, repair or demolition of a building, structure, road, sewer, water or gas main, pipe line, tunnel, bridge, canal, or other work at the site thereof.

[original emphasis]

It is of course obvious that section 46(4)(d) uses the exact same language as clause 1(1)(f), the definition of construction industry in the Act. Taken together, subsection 1 and subsection 4 of section 46 can be said to contemplate as permissive, provisions in a construction industry collec­tive agreement requiring as a condition of employment membership in the trade union. And fur­ther, the structure of subsection 4 seems to indicate that, in the construction industry, compul­sory membership or a preferential hiring clause may be inserted into a first collective agreement signed when voluntary recognition creates the bargaining rights which the union holds. If the Act contemplates as permissive conditions in construction collective agreements, preference of employment for union members extending to membership in a trade union as a pre-condition of employment, are we to find that the signing of such an agreement in the absence of any other factor is to be interpreted as support for the trade union within the meaning of section 48(a)? In the Sunrise Paving case [72 CLLC ¶16,060], for instance, there was evidence upon which such a conclusion could be drawn. That is, the employer on hiring employees did the membership recruiting for the union. However, in the C. Strauss case, and in the present case, no such impli­cation arises.

11. In the Sunrise Paving case, the Board commented that "the employees of the respondent did not have an opportunity to select their bargaining agent". While in a case where the employer recruits employees who are subsequently forced to join the union, without a previous history of membership that may constitute support for the trade union. The simple fact is that in the con­struction industry, the unemployed members in a union's hiring hall have in fact selected their bargaining agent as their union, and once they are referred to a job, that selection normally con­tinues. As a consequence, one is faced with a rather difficult problem in interpreting how far the stated policy of the Board in the C. Strauss case should be carried. If an agreement is invalid because it was signed when there were no members in the bargaining unit, does the agreement become valid when, in the same circumstances it is signed after the employees have arrived at the job site. Thus, in the present case, would it really have made any difference concerning the wishes of employees if instead of signing the agreement on October 8, 1975, with an intention to supply at a later date, an agreement to supply had been made between the respondent and the intervener on the 16th of October, when there were two members of the intervener union employed in the bargaining unit? To say that the document is valid then, but not valid if signed on the 8th, in completely similar circumstances, is to propose a distinction without a difference.

12. On the other hand, it may be argued that the C. Strauss case, simply recognizes a limitation on the acquisition of bargaining rights that is implicit in the Act, namely, there must be employ­ees in the employ of the employer at the time bargaining rights are acquired. Obviously, this is so in the case of certification, but also in the case of voluntary recognition. In this regard the latent policy in the Labour Relations Act is implicit in section 121 of the Act which reads as fol­lows:

"An agreement in writing between an employer or employers' organization, on the one hand, and a trade union that has been certified as bargaining agent for a unit of employees of the employer, or a trade union or a council of trade unions that is enti­tled to require the employer or the employer's organization to bargain with it for the renewal, with or without modifications, of the agreement then in operation or for the making of a new agreement, on the other hand, shall be deemed to be a collective agreement notwithstanding that there were no employees in the bargaining unit or units affected at the time the agreement was entered into."

That provision primarily recognizes that special circumstances are required for the construction industry due to the cyclical nature of employment in the construction industry. There may be times when an employer has no employees, but never the less as a matter of the on-going labour relations in the construction industry, the employer is bound by the results of collective bargain­ing. It would appear that such a provision which deems a collective agreement to be valid when there are no employees in the bargaining unit would only be necessary if in fact there was a problem with the validity of collective agreements signed when there are no employees in the bargaining unit.

13. It is our view, however, that when the document in the present case was signed on October 8th, 1975, the respondent and the intervener were performing two distinct, but related acts at the same time. The respondent employer was voluntarily recognizing the intervener union as the exclusive bargaining agent for employees in the bargaining unit, and contemporaneously agreed to certain terms and conditions of employment for those employees who would be affected by the recognition agreement. There would have been no arguable issue in this case as to the valid­ity of the collective agreement if the respondent employer had signed it after the union's mem­bers had reported for work. For this Board to hold that, in the circumstances of this case, where no other persons were working or had worked for the employer in the bargaining unit, and no other trade union held bargaining rights in respect of that bargaining unit, the agreement is not a valid collective agreement would have us place a premium on a strict, and technical interpreta­tion of the Act, rather than giving the statute a practical and purposive one, particularly having regard to the common and sensible methods used by employers and trade unions in the con­struction industry to create bargaining rights without resorting to the certification procedures under the Act.

14. The respondent employer required persons to do work for it, and went to the intervener union, who had members available to do that work, for those persons. In the same way that the Courts in the Blouin Dryall [(1975) 1975 CanLII 707 (ON CA), 57 D.L.R. (3d) 199J and Maritime Employers' Association [(1978), 1978 CanLII 158 (SCC), 89 D.L.R. (3d) 289] cases, held that members of a trade union who are not actually working for a particular employer but are associated with the union's hiring hall to seek work are employees, the members of the intervener trade union on whose behalf the collective agree­ment was entered into are "employees" whom the union represents. Section 121 of the Act indi­cates that an agreement in writing which is signed when there are no employees in the bargain­ing unit is deemed to be a collective agreement if, for example, the union is renewing a collective agreement or making a new agreement after an earlier collective agreement had

expired, thus implying that an agreement signed after voluntary recognition when there are no employees in the unit may not be a collective agreement. The Board notes that section 121 of the Act merely deems an agreement in writing to be a collective agreement under certain cir­cumstances; it does not provide that an agreement signed when there are no employees in the unit is not a collective agreement. (See section 48 of the Act for a specific provision deeming an agreement not to be a collective agreement.) Therefore, section 121 of the Act has no applica­tion to the facts of this case.

15. The Board in C. Strauss and Voland [OLRB File No. 0802-75-R, decision dated 17th November, 1975] held that there was no collective agreement by applying section 49 [now 48] after finding that the union had received "other support" from the employer when it signed a collective agreement without employees in the bargaining unit. We are satisfied that, in the cir­cumstances of this case, although the agreement was signed on October 8th, 1975, when, as the parties have stipulated, "The respondent had no employees in the purported bargaining unit...", the intervener union did not receive "other support" from the employer. To the con­trary, the employer needed persons to perform work, and the union, which had members avail­able with the skills necessary to do that work, undertook to refer its members to the employer in exchange for receiving voluntary recognition from the employer as exclusive bargaining agent for those persons. In our view this arrangement in the circumstances presently before us is not "other support" from an employer which calls for the application of section 48 of the Act.

16. The cases since Nicholls-Radtke, supra, have understandably been based on similar facts. In the M. J. Guthrie Construction case, supra, the company already had employees and, like the facts in Nicholls-Radtke, supra, signed an agreement in contemplation of future work. As able and thorough as counsel for the union was in his presentation, he did not present the Board with a case where the Board had recognized a collective agreement between an employer and a trade union in the construction industry where there were no employees at the time of signing and only a hopeful anticipation of the need and ability to hire employees on future projects.

17. In Eighty-Five Electric, supra, the Board held that the reasoning in Nicholls-Radtke was not applicable as there was no immediate or realistic or expectation there would be employees hired in the near future. In F. D. V. Construction, supra, there was no evidence of the actual supply of members nor of the ability of the union relying of a purported voluntary recognition agreement to supply workers pursuant to that agreement. In the circumstances, the Board found that the employer had given support within the meaning of section 48 of the Act to that union.

18. In the instant case, there is no doubt workers were hired on the University of Toronto project both directly by Ellis-Don and through subcontracts. Indeed, Evans testified that he would have signed the working agreement "to get men". In the circumstances and for reasons given in more detail in paragraph 32, the Board finds that the reasoning in Nicholls-Radtke is applicable and the working agreement was valid at the time signed. In passing, the Board notes that the cir­cumstances in Gerald Davidson, supra, are so dissimilar to those in the instant proceeding that the reasoning therein is not applicable.

19. Counsel for the respondent also construed his "pre-hire" argument more narrowly. That is, it was asserted that the working agreement could, at the very least, not properly be depicted as a genuine pre-hire agreement with respect to electricians since Ellis-Don did not at the time nor in fact thereafter directly hire electricians. Rather, electrical work was consistently sub­contracted. In the Board's opinion, where the seminal document is a working agreement of the form in the instant case, entered into by the Building Trades Council on behalf of all its affiliates, the reach of that working agreement is not restricted to only those affiliates who could represent workers who are subsequently direct hires of the respondent. If the working agreement as a whole reasonably may be characterized as a pre-hire agreement so as to come within the Nicholls-Radtke analysis, the fact that some affiliates would rely on the subcontracting provisions of the working agreement as the form in which their bargaining rights are actually expressed does not invalidate the working agreement or disentitle them to those bargaining rights. In Nicholls-Radtke, the Board concluded that the special characteristics of the construction industry alleviated the concerns expressed in the jurisprudence that voluntary recognition of a trade union where there were as yet no employees constituted unlawful support for that trade union. Employment opportunities in the construction industry are channelled through the hiring hall. The working agreement, on the one hand, represents voluntary recognition by the employer of the trade union as bargaining agent and, on the other hand, obligates the union to refer its members who possess the skills needed by the employer to perform work. In the instant case, Ellis Don in executing the working agreement, assured itself of a supply of skilled workers. In return, Ellis-Don voluntarily recognized all the affiliates of the Building Trades Council and bound itself to subcontract only to subcontractors whose employees were members in good standing of affiliates of the Building Trades Council. Whether or not, at the time of executing the working agreement, it was open to Ellis-Don to seek to pick and choose which affiliates were being accorded voluntary recognition, that was not the basis on which the document was offered and signed. In the circumstances, the nature of that working agreement does not raise concerns about employer support so as to invalidate the docu­ment.

20. Thus, the Board is not prepared to conclude, as respondent counsel urges, that the working agreement constitutes employer support in respect of the IBEW Local 353, an affiliate of the Council at the time the working agreement was entered into, on the basis that Ellis-Don did not contemplate hiring electricians directly. In this regard, the Board notes that the fact that Local 353, IBEW was an affiliate at the time distinguishes the instant grievance referral from that in Eastern Construction, supra. [The Board will deal further with the extension of bargaining rights held by Local 353 to Local 894 infra.]

21. The Board is also not persuaded by respondent counsel's argument that the IBEW locals should not be able to rely on the voluntary recognition of their bargaining rights through the working agreement where the certification route to acquire bargaining rights did not exist (since Ellis-Don has never hired directly electricians). That is, counsel contends that voluntary recogni­tion as a route to acquire bargaining rights must be parallel to and delimited by the certification route to achieve those rights. The Board does not agree. In one sense, voluntary recognition may be depicted as an alternate route to certification. However, the statute treats both routes to the acquisition of bargaining rights in quite different ways. For example, bargaining rights acquired through voluntary recognition may be challenged and defeated on grounds and in time periods not paralleled where the bargaining agent has been certified. Further, there Board has previously found that a bargaining unit description agreed to by the parties in the context of a voluntary rec­ognition agreement may properly differ significantly from that for which the Board would have cer­tified a bargaining agent and such variance does not, of itself, constitute employer support: J. C. Milne, supra.

22. Respondent counsel, as well, challenged the Board's reasoning in Harbridge & Cross, supra, and urged the Board to revisit the finding in that case that the working agreement was not restricted to the six civil trades. In the circumstances, it is appropriate to quote extensively from the reasoning in that decision:

23. This is not the first occasion the Board has had to grapple with a working agreement of the type between the Toronto B.T.C. and this respondent. In previous decisions, the Board has concluded that a working agreement can give rise to bargaining rights. We accept Mr. Binning's position that this application must be decided on its own facts and the arguments made before us. However, it is useful to review briefly the way in which the Board has previously analyzed and characterized the type of working agreement we have before us.

24. In M. J. Guthrie Construction Limited, [1984] OLRB Rep. Jan. 50, the Board analyzed at some length a working agreement which had terms virtually identical to those contained in the Working Agreement relied upon by the applicant. In paragraph 13, the Board notes that:

13... .Working agreements have become very much a part of the unionized portion of the construction industry in the Toronto area and have been regarded as peace treat­ies and instruments for harmony in the construction industry. However, regardless of these characterizations, the working agreement has traditionally been used, as in the instant case, as an entry into unionized construction work and as a method for an employer to stay on side from the point of view of the craft trade unions in the con­struction industry....

21. In paragraph 16 of Guthrie, supra, the Board summarizes the substance of the working agreement before it. This summary, which is set out below, has equal application to the Work­ing Agreement between the Toronto B.T.C. and Harbridge & Cross Limited.

22. The working agreement is a brief document which names the parties and states its purpose as the establishment of mutually satisfactory relations between Guthrie and its employees and satisfactory working conditions, hours of work and wages. In the recognition portion, Guthrie recognizes the Council and its affiliated unions as the collective bargaining agency for all of its employees. Guthrie has also agreed to employ only members affiliated with the Council and to subcontract only to individu­als or companies whose employees are members in good standing in the unions affili­ated with the Council and to do all things necessary to ensure that only members of the unions affiliated with the Council are employed in construction work in which Guthrie is engaged. The Council has agreed through its affiliated unions to supply competent workmen to do the work of any trade or calling that may be required by Guthrie in the trades represented by the Council. Guthrie has also agreed to recog­nize and be bound by the agreements existing between each of the unions affiliated with the Council and the Toronto Builders' Exchange and has specifically agreed that the provisions relating to wages, hours and working conditions set forth in these agreements are binding on it. Guthrie has also agreed to be bound by any alterations and amendments to these agreements and the Council has agreed to notify Guthrie of such alterations or amendments. Finally, the working agreement is said to remain in effect for one year and to continue in effect form year to year subject to notice.

23. The Board in Guthrze, supra, proceeded to determine that the Toronto-Central B.T.C. is not a trade union but rather a council of unions. As such, the Toronto-Central B.T.C. could not enter into either a collective agreement or a voluntary recognition agreement in its own name. Each of the affiliates of the Toronto-Central B.T.C. are trade unions which are able to enter into collective agreements and voluntary recognition agreements. The Board concluded that, through the working agreement, the Council entered into a series of recognition agreements on behalf of each of its affiliates with Guthrie.

24. We now turn to the instant application. In essence, the issue before us is whether the Paint­ers acquired bargaining rights by means of the Working Agreement signed between the Toronto B.T.C. and Harbridge & Cross Limited. Harbridge & Cross Limited did not take the position that the Working Agreement was not lawfully executed or that the Painters had abandoned its bargaining rights, if it had any. The parties have agreed that Harbridge & Cross Limited duly entered into the Working Agreement with the Toronto B.T.C., that the Toronto-Central B.T.C. stands in the same relation to the respondent as did the Toronto B.T.C. prior to July 1, 1979, and that, at all times material, District Council 46, an affiliate of the applicant, was an affiliate of the Toronto B.T.C. and since July 1, 1979 of the Toronto-Central Ontario B.T.C. It is not disputed that if the applicant has bargaining rights with the respondent then by virtue of the province-wide bargaining provisions of the Act enacted in 1977, Harbridge & Cross Limited would be bound by the Painters' Provincial Agreement in the industrial, commercial and institu­tional sector of the construction industry. The parties have agreed that Harbridge & Cross Lim­ited sublet painting work covered by the Painters' Provincial Agreement to painting subcontrac­tors who are not bound by the Painters' Provincial Agreement.

25. In determining the issue of whether the Working Agreement creates bargaining rights for the Painters, the Board has relied only on the facts as agreed to in the agreed statement of facts, the exhibits which were all entered on consent and the parties' submissions.

26. The Working Agreement between the applicant and respondent contains a very broad rec­ognition clause. In paragraph 2 of the Working Agreement, Harbridge & Cross Limited agreed to recognize the Toronto B.T.C. and its affiliated unions as the collective bargaining agency for all its employees. The specific words used in paragraph 2 do not contain any indication that the parties to the Working Agreement intended Harbridge & Cross Limited to recognize a limited number of affiliates rather than all of the Council's affiliates as collective bargaining agents for its employees. Reference is also made to the affiliated unions in paragraph 3 and 4 of the Work­ing Agreement and these references, as well, contain no indication that there was an intention to apply these paragraphs to some affiliates but not to others.

27. Paragraph 5 of the Working Agreement provides that Harbridge & Cross Limited agrees to recognize and be bound by the agreements existing between each of the unions affiliated with the Toronto B.T.C. and the T.C.A. It is clear from paragraph 5 of the Working Agreement that the term agreements refers to collective agreements. On the facts before us, paragraph 5 would bind Harbridge & Cross Limited to only the civil trade agreements with the T.C.A. Every col­lective agreement is deemed by the Act to provide for a recognition clause. If the parties to the Working Agreement intended the Working Agreement to create bargaining rights for only those affiliates who had collective agreements with the T.C.A., then paragraph 2 of the Working Agreement would be unnecessary. The parties to the Working Agreement could have easily cre­ated this result by only including paragraph 5 in the Working Agreement. The presence of para­graph 2 of the Working Agreement indicates that the parties did not intend to limit bargaining rights to only those affiliates who had a collective agreement with the T.C.A. This view is sup­ported further by paragraph 4 of the Working Agreement which provides that the affiliated unions will supply competent workmen to do the work of any trade or calling that may be required by the respondent in the trades represented by the Toronto B.T.C. This obligation on the affiliates is not limited to the six civil trades.

28. Both counsel made submissions with respect to which rule of interpretation should be adopted when attempting to interpret the provisions of the Working Agreement. When attempt­ing to interpret an agreement, a general guide to interpretation is to presume that all the words were intended to have some meaning. In utilizing this guide, the Board is satisfied that meaning can be given to both paragraphs 2 and 5 of the Working Agreement and that these paragraphs do not conflict. When reviewing the document as a whole, the Board is satisfied that the parties to the Working Agreement intended that Harbridge & Cross Limited recognize the Council and each of its affiliated unions as collective bargaining agents for its employees. Paragraph 5 addresses what collective agreements Harbridge & Cross Limited will be bound to. Paragraph 2, which creates bargaining rights for all affiliates with the respondent does not conflict with para­graph 5 which simply addresses the question of what collective agreements Harbridge & Cross Limited will be bound by. An examination of the headings used in the Working Agreement fur­ther support the proposition that paragraph 2 and paragraph 5 address separate matters. Para­graph 2 is under the heading "RECOGNITION" while paragraph S is under the heading "WAGES, HOURS AND WORKING CONDITIONS".

29. The Board does not accept counsel for the respondent's first argument with respect to how the Working Agreement should be interpreted. The Board is satisfied that the provisions of the Working Agreement do not disclose that the parties intended to create bargaining rights for only the six civil trades. In addition to the comments above, the Board notes that it is significant that the Working Agreement is an agreement between the Toronto B.T.C. and Harbridge & Cross Limited. Not only does paragraph 2 refer to the Toronto B.T.C.'s affiliates but one would assume that when the Toronto B.T.C. acted it would do so on behalf of all its affiliates unless there is something in the document which would suggest otherwise. Neither paragraph 5 of the Working Agreement nor any other clause in the Working Agreement suggest otherwise.

30. The other position advanced by counsel for the respondent is that the Working Agreement does not create bargaining rights for the Painters or the other affiliates except the six civil trades, since it does not contain a defined bargaining unit. He argues that the incorporation of the recognition clauses in the collective agreements between the six civil trades and the T.C.A. satisfies the requirement for a defined bargaining unit and, therefore, gives validity to the Working Agreement as a voluntary recognition agreement for only the six civil trades. In the Board's view, the Working Agreement does define the parameters of the bargaining rights to the degree necessary to satisfy the requirement of a defined bargaining unit. The Board agrees with Guthrie, supra, in its characterization of the working agreement. By means of one docu­ment, the Toronto B.T.C. entered into a series of recognition agreements between all of its affiliates, including the Painters and Harbridge & Cross Limited. The Toronto B.T.C. 's affili­ates are trade unions which are representative of certain well-defined trades in the construction industry. Paragraph 2 of the Working Agreement provides, in effect, that Harbridge & Cross Limited recognizes the Toronto B.T.C. and its affiliated unions as the bargaining agent for all of its employees. The term employees can only refer to those employees of the respondent engaged in construction work who would normally perform work performed by members of the Toronto B.T.C.'s affiliates. Paragraph 3 of the Working Agreement makes reference to the phrase "employ only members of the unions affiliated with the Council". As noted earlier, para­graph 4 of the Working Agreement obliges each affiliated union to "supply competent workmen to do the work of any trade or calling that may be required by Company in the trades repre­sented by the Council". In other words, the Plumbers union is required to supply its members to the respondent, and the Carpenters union is required to supply its members, etcetera. When one reviews the Working Agreement as a whole, and particularly paragraphs 2, 3 and 4 con­tained therein, the Board is satisfied that the Working Agreement does contain, in effect, defined bargaining units and constitutes a voluntary recognition agreement under the Labour Relations Act. The Working Agreement contains a defined bargaining unit even in the absence of the incorporation of a collective agreement by the operation of paragraph 5 of the Working Agreement.

31. In support of his second argument, counsel for the respondent referred to certain comments of the Board in Guthrie, supra, and V. K. Mason Construction Ltd., supra. We have reviewed these decisions and were not persuaded that they should lead us to a conclusion different from the one expressed in the previous paragraph of this decision. In Guthrie, sup ra, the Board did not have to address whether the Working Agreement contained a defined bargaining unit in the absence of the incorporation of certain collective agreements, since there existed, it appears, collective agreements which would be incorporated by paragraph 5. This precise issue does not appear to have been argued in Guthrie, sup ra. The working agreement before the Board in the V. K. Mason case supra, is not set out in its entirety in the decision. From those portions which are set out, it appears that the working agreement is significantly different from the Working Agreement before us.

32. The working agreement in the instant grievance referral is in all material respects identi­cal to that before the Board in Harbridge & Cross. The Board is not persuaded by the able argu­ments of counsel that the Board's analysis in Harbridge & Cross is flawed; the Board affirms the reasoning therein. The Board finds that reasoning persuasive in the instant case and warrants a conclusion here that the working agreement entered into in 1962 by Ellis-Don constituted a series of voluntary recognition agreements between Ellis-Don and the affiliates of the Building Trades Council. It was not seriously disputed that Local 353, IBEW was at the time and thereafter an affil­iate of the Council nor that Local 894 later became affiliated with the Council on the latter's expan­sion of its jurisdiction to include Central Ontario. Respondent counsel pointed to the absence of Ellis-Don from schedules E or F of the accreditation order issued for the Electrical Contractors Association as a distinguishing feature of the instant case from Harbridge & Cross. In the Board's opinion, that distinction goes to the abandonment issue not to the question of the reach of the working agreement. The express wording of the working agreement is unrestricted. The evidence pointed to by respondent's counsel (even including the absence of Ellis-Don from schedule F in the accreditation order) is not a compelling basis for delimiting those express words in the recognition clauses. Article five of the working agreement does refer to extant collective agreements. In the Board's view, this reference merely clarifies that the employer signing the working agreement rec­ognizes voluntarily the various Council affiliates and, with respect to those collective agreements negotiated by the Toronto Builders' Exchange, is expressly bound to those documents. As well, the fact that there were two subsequent certification applications as against Ellis-Don by other Council affiliates (see paragraph 48) does not convince the Board that in Harbridge & Cross, or at least herein, the working agreement should be found to have been intended to apply only to the six civil trades which traditionally have had collective agreements with the Toronto Construction Association or its predecessor the Toronto Builders' Exchange. Given that the working agreement is a series of voluntary recognition agreements, the actions of other affiliates do not bind Local 353 IBEW nor do those certification applications nullify the express words of the working agreement as covering all affiliates.

33. It is accurate to note that in some of the cases wherein the working agreement or like document was considered, the evidence indicated that the companies therein had initially sought the benefit of entering into such an agreement or had complied with its terms for some period but then sought to repudiate that agreement. In those circumstances, the Board refused to allow such a repudiation: City Plumbing (Kitchener) Limited, supra; M. J. Guthrie, [1984] OLRB Rep. Jan. 50. Although the evidence is somewhat sketchy in the present grievance referral, the Board is satisfied that Evans, on behalf of Ellis-Don, entered into the working agreement in 1962 to get the benefit of that agreement in respect of the University of Toronto project and cannot now repudiate that document. To be sure, Ellis-Don at the time did not contemplate hiring electricians directly and has not done do subsequently. However, the Board does not consider it necessary to find that the benefits sought related to hiring directly workers from each affiliate covered by the working agree­ment. It is sufficient if the company seeks the benefit of the voluntary recognition relationship taken as a whole and, as in the instant case, had the actual benefit of that working agreement on the University of Toronto project.

34. The Board intends to deal rather briefly with respondent counsel's argument that the various amendments introducing and refining the province-wide bargaining scheme did not intend to validate and broaden the reach of voluntary recognition agreements like the working agreement now before the Board. In the Board's view, that argument cannot succeed. The Board has already referred to to the decision in M. J. Guthrie, supra, wherein the Board found that the Toronto-Cen­tral Ontario Building Trades Council was a council of trade unions (but not a certified council of trade unions) and thus could not enter into a collective agreement or voluntary recognition agree­ment in its own name but merely on behalf of each of its affiliates. As stated in the United Brother­hood of Carpenters, supra,:

35. A reading of the provisions of the Act establishing provincial bargaining indicates that the Legislature intended the foundation of provincial bargaining to be pre-exist­ing local bargaining rights. Section 127(1)(b) clearly provides that the employer bar­gaining agency is to represent only those employers "for whose employees affiliated bargaining agents hold bargaining rights". The bargaining obligation of these employ­ers then vest in the employer bargaining agency by operation of section 131. On the union side, the bargaining rights of the affiliated bargaining agents, by operation of section 130, vest in the employee bargaining agency designated under section 127(1)(a) of the Act. The legal result is simply a consolidation in the bargaining agen­cies of those bargaining rights and obligations existing at the time of designation. No existing bargaining rights are lost and no new bargaining rights are created.

36. Subsequent amendments resulted in the deeming of a voluntary recognition agreement between an affiliated bargaining agency and an employer to be on behalf of all the affiliated bar­gaining agents of the employee bargaining agency. It was not disputed that Locals 353 and 894 are affiliated bargaining agents of the designated employee bargaining agency. Thus, the legislation initially preserved the status quo with respect to bargaining rights, i.e., the bargaining rights which the Council acquired on behalf of Local 353. Subsequently, the bargaining rights were deemed to be between the employer and Local 894 as well. To accede to respondent counsel's argument would result in the loss of the bargaining rights acquired by the Council affiliates simply because those rights were acquired in the form of a voluntary recognition agreement (or more precisely a series of voluntary recognition agreements) between Ellis-Don and the Council on behalf of its affiliated members. The Board does not regard that result as that intended by the Legislature; rather, the statutory scheme intended to opposite result, as stated in the Carpenters case above.

37. The Board, for the reasons given, rejects the various arguments of respondent counsel regarding the reach of the working agreement and finds that document did bestow bargaining rights on the IBEW, Local 353.

ABANDONMENT/ESTOPPEL

41. The Board, in this section, deals first with the effect of the withdrawal of the 1980 griev­ance referral and then the issue of abandonment "pre"-and "post" the introduction of the prov­ince-wide bargaining scheme in the ICI sector.

42. The style of cause in the 1980 grievance referral reads:

Toronto-Central Ontario Building and Construction Trades Council, The Teamster Construc­tion Council of Ontario, and The International Brotherhood of Teamsters, Chauffeurs, Ware­housemen and Helpers of America, Local Union 230,

(Applicants),

• and -

Ellis Don Limited,

(Respondent).

That application was withdrawn by leave of the Board by decision dated July 5, 1980, because the applicants, as stipulated by the parties herein, could not establish the identity of the signatory on behalf of Ellis-Don. There, as here, the applicants were relying on the 1962 working agreement. Also, as noted, Michaels conceded that, had the Council exercised due diligence in searching its records, the identity of Evans as signatory would have been discovered much earlier so that, at the very least, the instant application could have been filed well before January 19, 1990. Counsel for the respondent asserted these circumstances should lead to the dismissal of the grievance based on estoppel. Counsel also tied the withdrawal of the 1980 grievance to his submissions on abandon­ment broadly construed. The earlier grievance referral was brought in the name of the Toronto-Central Ontario Building and Construction Trades Council, the Teamsters Construction Council of Ontario and the Teamsters Local 230. The applicant in the instant case is Local 894, IBEW. There is no doubt that the Building Trades Council is keenly interested in the outcome of the present pro­ceeding. However, that interest (and the presence of the Council's business manager/financial sec­retary as advisor to the applicant's counsel) is not sufficient to render identical the parties to the 1980 grievance and the instant proceedings so that the IBEW Local 894 is estopped on that ground alone from bringing this grievance. The withdrawal of the 1980 grievance, particularly on the grounds stated, does not amount to a representation to Ellis-Don that the 1962 working agreement would never again be relied on by any other of the Council's affiliates (or even by the Teamsters Council and its Local 230) to ground a section 124 referral. Thus, the conditions precedent to a finding of estoppel are not made out (in contrast to the circumstances in Ontario Hydro, supra). The Board notes that a similar argument was raised in Harbridge & Cross, supra, wherein the cir­cumstances were redolent of the instant case. The Board affirms the reasoning therein at para­graphs 8 to 10 inclusive and, as there, rejects the respondent's argument for dismissal of the griev­ance referral on this ground. The Board does not doubt its authority to apply equitable concepts akin to res judicata or issue estoppel, it is merely that the basis for the application of such doctrines are not here present: see also Napev Construction limited, supra. The Board would add that the Board's rejection of the respondent's argument in no way condones the delay involved or the absence of due diligence. The passage of time and that absence may properly be considered in assessing the retrospective nature of damages or other relief. Indeed, as counsel for the applicant stressed, no relief is sought for the period prior to the Trent project and the grievance herein did follow notice through correspondence from Michaels to Ellis-Don that the identity of the Ellis-Don signatory had been discovered and the 1962 working agreement was being relied on as a source of bargaining rights.

43. The concept of abandonment of bargaining rights is not novel in Board jurisprudence, as the following excerpt from a 1979 Board decision in J. S. Mechanical, supra, makes clear:

44. Over the last 20 years the principle of abandonment has been deeply entrenched in the Board's jurisprudence. Once a union has obtained bargaining rights either through certification or voluntary recognition it is expected that it will actively promote those rights. If a union declines to pursue bargaining rights it may lose them through disuse. Whether a union has aban­doned its bargaining rights is a matter which must be assessed on the facts of each individual case, but once the Board is satisfied that a union has failed to preserve its rights, the union may no longer rely on them to support the appointment of a Conciliation Officer under section 15 of the Act (see Cooksville Sheet Metal, [1974] OLRB Rep. June 365; John Entwistle Construction Limited, [19721 OLRB Rep. Oct 919; Elgin Construction Co. Limited, [1969] OLRB Rep. April 134; Guelph Cartage Company, 55 CLLC para. 18,018). As well, if a union has abandoned its bargaining rights it may be precluded from relying on them either to bar another agreement that renews itself automatically (see Catalytic Enterprises Limited, [1974] OLRB Rep. April 264; 0. & W. Electronics Limited, [1970] OLRB Rep. Jan. 1213; Architectural Acoustics & Drywall, [1970] OLRB Rep. Feb. 1408; N. W. Clayton Sheetmetal and Heating Co. Ltd., [1967] OLRB Rep. April 69), or to require an employer to bargain by giving notice to bargain under such an agreement (see Rainee Manufacturing Products Limited, [1967] OLRB Rep. Nov. 796). A union's abandonment might also obviate the necessity for the Board to determine the merits of a termination application (see Graphic Centre (Ontario) inc., [1977] OLRB Rep. June 379; Northern Engineers & Supply Co. Limited, [1968] OLRB Rep. Oct. 731; Barrie Tanning Limited, [1966] OLRB Rep. May 128).

Prior to the introduction of province-wide bargaining in the ICI sector, the Board has on several occasions determined, as a matter of fact, that a trade union has abandoned its bargaining rights through inaction. (The question of abandonment subsequent to the introduction of the legislative scheme for province-wide bargaining is dealt with further below). A useful summary of the caselaw and the factors influencing the Board's assessment is found in R. Reusse Co. Ltd., supra:

13. It was not disputed that the question of abandonment is a matter of fact to be resolved by the Board in the circumstances of each case: J. S. Mechanical, supra; Inducon Construction (Northern) Inc., supra; John Entwistle Construction Limited, supra; Re Carpenters' District Council of Lake Ontario and Hugh Murray (1974) et al, Re Labourers' International Union of North America, Local 527 et al. and John Entwistle Construction Ltd. et. al., supra; Twin City Plumbing and Heating, [1982] OLRB Rep. Apr. 631. In making that determination, the Board evaluates the conduct of the union in the context of the duration of the period of inactivity, whether the employer continued to operate in the area, whether the terms and conditions of employment have been changed by the employer without objection from the union, whether the union has sought to negotiate or administer existing collective agreements and any extenuating circumstances which might account for an apparent failure to assert bargaining rights. For exam­ple, as a general rule, the Board has regard to a second automatic renewal of a collective agree­ment but thereafter the onus is on the union to satisfy the Board that its bargaining rights have not been abandoned by showing its interest in maintaining those rights through contact with the employer party to the agreement: The Belleville and District Builders' Exchange, supra; Cooksville Steel Limited, supra; Pinkerton's of Canada Limited, supra. Absent evidence the union actively pursued its bargaining rights, the Board has held the union has "slept on those rights" and must be taken to have abandoned those rights: Elgin Construction, supra; Mattagami Construction, supra; Catalytic Enterprises, supra; John Enrwistle Construction Limited, supra; York Finch General Hospital, supra. The Board's jurisprudence also accepts the notion that a union is not expected to seek actively to pursue its bargaining rights during periods when the employer ceased operating within the geographic scope of the collective agreement (see Able Construction (Kitchener), supra; Inducon Construction (Northern) Inc., supra) partic­ularly where the union did seek to assert those rights at the first opportunity upon the employ­ee's return to the area: John Miller & Sons Ltd., supra.

A finding of abandonment prior to the introduction of province-wide bargaining precludes a trade union from "plugging into" that province-wide bargaining scheme with respect to the particular employer so that provincial agreements are not binding on the employer in question: John Entwistle, supra, Hugh Murray Limited, supra.

44. It is in the above jurisprudential context that the Board must analyse the evidence in the instant case. The working agreement was executed in December 1962. That agreement on its face provides for automatic renewals unless notice of termination is given in any year not less than 60 days before the date of its termination. There was no evidence of any such termination. What is novel in this case is that Ellis-Don has never employed electricians on a direct hire basis. Electrical work has always been subcontracted. (In contrast, Ellis-Don acknowledges it is and has been bound to successive collective agreements negotiated over the years with the six civil trades. Such negotiations were conducted on Ellis-Don's behalf by the Toronto Builders' Exchange and its suc­cessor the General Contractors section of the Toronto Construction Association; Ellis-Don is and was a member of both organizations). The instant grievance, then, is not like those abandonment cases wherein there were employees in the bargaining unit for varying periods of time during which the union did not seek to administer or negotiate collective agreements. Rather, here, the appli­cant is relying on the subcontracting provisions of the working agreement (paragraph 3 of Exhibit 5) to ensure that Ellis-Don lets "subcontracts only to individuals or companies whose employees are members in good standing in the unions affiliated with the Council", namely, Local 894, IBEW, with respect to the electrical work at the Trent project.

45. The Board must, therefore, examine the "electrical subcontracts" of Ellis-Don in the Toronto area prior to the introduction of province-wide bargaining. In this regard, the Board notes the expansion in 1979 of the Council's jurisdiction whereby Local 894 of the IBEW became affili­ated. Local 353, IBEW was affiliated with the Council before the 1962 working agreement was signed and continuously thereafter. In the Board's view, there must be inactivity on the part Local 353 or other conduct indicative of abandonment in the period from 1962 to 1978 when the prov­ince-wide bargaining scheme was introduced to sustain a finding of abandonment. The Board is not persuaded by the able arguments of counsel for the respondent that the applicant should be held accountable for inactivity by other Council affiliates (except Local 353 IBEW) in enforcing rights under the working agreement. The Council acted on behalf of its affiliated bargaining agents in obtaining voluntary recognition from those firms signing the working agreement. The Board accepts the evidence that it is the responsibility of the various business agents to police their respective trades to monitor compliance by the employer with the working agreement only for their respective trades. The Board sees no basis in law or practice to hold the IBEW Local 353 (and then 894) accountable for the failure of other trades to enforce the working agreement. As noted earlier, the working agreement constituted a series of recognition agreements with the vari­ous affiliates. Local 353 is not bound by the actions or inaction of other affiliates. Of course, Local 894 is bound by the actions or inaction of Local 353 as, if that latter local abandoned its bargaining rights prior to the introduction of province-wide bargaining, Local 894 could not rely on that legis­lation to acquire bargaining rights.

46. Richer, on behalf of Ellis-Don submitted and explained the various statistics and records of the firm's operations over the years. There is no doubt that Ellis-Don is a major player

amongst general contractors in Ontario and has been so for many years. Its projects are often high profile and readily identifiable. Richer indicated that, because of the absence of company docu­mentation, there were no verifiable non-union subcontracts let in the Toronto area in the 1962 to 1969 period. Further, it appears (and was conceded by respondent counsel) that there were no non-union electrical subcontracts at all in that area even during subsequent years (but prior to 1978). This absence of non-union subcontracts may be regarded as somewhat equivocal. One could infer that this resulted from the lack of non-union electrical subcontractors in Toronto capable of performing the work or compliance by Ellis-Don with the working agreement in letting electrical contracts to non-union subcontractors. Weighing against this latter conclusion is the testimony of Burns, which the Board accepts, that he let subcontracts without regard to the "union" or "non­union" status of the subcontractors. However, the absence of overt activity by the Local 353 and the absence of contact with Ellis-Don during those years cannot, of itself, be a hallmark of aban­donment where it would appear that Ellis-Don was subletting work only to "union" subcontrac­tors. That is, if the electrical subcontracts were let to union firms, Local 353 would have had no reason to seek to enforce the working agreement. On this point, the following passage from Newman Bros. Limited, supra, is apposite:

45. There is, in the argument of the respondents, the concept that contact is necessary in order to maintain bargaining rights. However, where an affiliated bargaining agent or an employee bargaining agent has no reason to believe that a collective agreement is not being adhered to; the scheme of collective bargaining under the Act, whether under a system of accreditation or under province-wide bargaining, is not conducive to the personal contact which was often a sine qua non in the jurisprudence of the Board with respect to the principle of abandonment. Indeed, the Board has noted in Dravo of Canada Limited, [1977] OLRB Rep. Sept. 568, 572 that the lack of contact by a bargaining agent in the construction industry where there has been an absence of employees who would be covered by successive collective agreements would not support a finding of the abandonment of bargaining rights. While it may be debated that a bar­gaining agent might be more active and play a more investigative role in policing its collective agreements, such debates essentially relate to the adequacy or quality of representation rather than to the principle of abandonment. The disapproval of the Board with respect to the quality of representation has not in itself caused the Board to find an abandonment of bargaining rights. In this regard, see The Borden Company Limited case, [1976] OLRB Rep. July 379, 382.

While Ellis-Don was subcontracting to "union" electrical contractors, absent other indicia of aban­donment, it could not fairly be said that the union "slept on its rights".

47. The documentary material outlining Ellis-Don's construction activity does not buttress the respondent's abandonment argument. The Board noted in the preceding paragraph that the IBEW Locals 353 and 894 should not be held accountable, under the abandonment concept, for the failure of other trades to enforce the working agreement. However, the Board would note here that the evidence of non-union subcontracting by Ellis-Don amounted to such a small percentage over the years prior to 1978 (less than 1 percent) that the evidence would not sustain a finding of abandonment by other trades sufficient to "count against" the applicant even on the broader the­ory espoused by respondent counsel.

48. In the same vein, the Board does not consider the certification applications in 1975 by the International Association of Bridge, Structural and Ornamental Ironworkers Local 721 and in 1986 by the International Union of Bricklayers and Allied Craftsmen and Local Union 7 Canada for Marble Masons, Tile Layers & Terrazzo Workers as a reasonable basis for finding abandon­ment by the applicant. There is no evidence before the Board on which the Board may discern the reason those applications were brought. Moreover, it is not reasonable to conclude on the evidence that these two (or other) Council affiliates acted as agent for the applicant herein so that their cer­tification applications could be regarded as "holding out" to the respondent that all, other affiliates (or at least the IBEW Locals 894 and 353) were abandoning whatever bargaining rights they possessed. Whatever the actual reason, the mere fact of those certification applications does not rea­sonably sustain a conclusion that the applicant in the instant case abandoned its bargaining rights.

49. Parenthetically, it should be noted that Ellis-Don was not taking the position that the letting of non-union subcontracts over the years as described constituted abandonment by any of the six civil trades of their bargaining rights. Yet the evidence of those few "non-union" subcon­tracts generally covered work usually performed by those six civil trades. Apart from the other rea­sons noted, the Board is reluctant to rely on that evidence to ground a conclusion that the IBEW Local 353 abandoned its bargaining rights where that evidence, in the respondent's view, would not sustain a finding of abandonment by the very trades which would usually perform that work.

50. If the foregoing factors do not lead to a finding of abandonment, is there any other con­duct by the union which unequivocally does point to that conclusion? In this regard, the Board must consider the "accreditation" issue. Board File No. 1469-71-R was an application for accredi­tation between the Electrical Contractors' Association of Toronto (applicant) and the International Brotherhood of Electrical Workers, Local Union 353 (respondent) and the Electrical Power Sys­tems Construction Association (intervener). Before dealing further with that decision, it is useful to sketch the accreditation process itself.

51. That process was briefly summarized in Metropolitan Sewer and Watermain Contractors, supra, as follows:

52. Once the Board is satisfied that an application has been duly brought under section 125 of the Act by a properly constituted employers' organization, vested by the employers whom it repre­sents with the appropriate authority "... to enable it to discharge the responsibilities of an accredited bargaining agent." [subsection 127(3)], and the Board has determined the unit of employers that is appropriate for collective bargaining pursuant to section 126, the Board acquires jurisdiction under subsection 127(2) to accredit the employers' organization if the Board is satisfied that the organization has met the double majority test prescribed by that sub­section. The double majority is based on a count of employers and employees prescribed by sub­section 127(1). The two subsection state as follows:

127.-(1) Upon an application for accreditation, the Board shall ascertain,

(a) the number of employers in the unit of employers on the date of the mak­ing of the application who have within one year prior to such date had employees in their employ for whom the trade union or council of trade unions has bargaining rights in the geographic area and sector determined by the Board to be appropriate;

(b) the number of employers in clause (a) represented by the employers' orga­nization on the date of the making of the application; and

(c) the number of employees of employers in clause (a) on the payroll of each such employer for the weekly payroll period immediately preceding the date of the application or if, in the opinion of the Board, such payroll period is unsatisfactory for any one or more of the employers in clause (a), such other weekly payroll period for any one or more of the said employers as the Board considers advisable.

(2) If the Board is satisfied,

(a) that the majority of the employees in clause (1)(a) is represented by the employers' organization and

(b) that such majority of employers employed a majority of employees in clause (1)(c), the Board, subject to subsection (3), shall accredit the employers' organization as the bargaining agent of the employers in the unit of employers and for such other employers for whose employ­ees the trade union or council of trade unions may, after the date of the making of the applica­tion, obtain bargaining rights through certification or voluntary recognition in the appropriate geographic area and sector.

3. It can be seen from the wording of those subsections that, of all the employers for whose employees the respondent trade unions held the requisite bargaining rights as at the date of making of the application, only those who employed such employees within one year prior to the application date were "counted" for purposes of determining whether the Board was required to accredit the employers' organization. Once the Board acquired that jurisdiction, however, subsection 127(2) required it to accredit the organization as exclusive bargaining agent for all of the employers for whose employees the respondent held the requisite bargaining rights as at the date of making of the application, whether or not those employers employed such employees within one year prior to the date of making of the application. In other words, for the Board to satisfy its mandate under subsection 127(2), it must accredit the employers' organi­zation as bargaining agent of all of the employers who were in the unit of employers as at the date of making of the application.

4. In that case, the Board ultimately determined that it need not and should not conclu­sively identify those employers for whose employees the respondent trade union had bargaining rights as at the date of the application but who had not employed such employees within one year prior to that date in order to acquire jurisdiction to accredit the applicant and make final disposi­tion of the applications. The earlier Board practice had been to firstly determine a list of such employers, referred to as "schedule F". In contrast, schedule E named those employers who would be included in the count of employees in section 127(1) and the double majority count in section 127(2). The rationale for the change in practice is not relevant to the issue before the Board in the instant case. What is important is that, as part of an accreditation application, the respondent trade union files with the Board a "schedule F" wherein the union lists those employers with whom it asserts it has bargaining rights but who did not have employees within one year prior to the accred­itation application date. In reviewing Board File 1469-71-R, wherein an accreditation order was issued on January 9, 1975, it is apparent that Ellis-Don's name does not appear on the final sched­ule F nor was Ellis-Don's name struck off an initial schedule F as were other employers who chal­lenged their inclusion on schedule F by the respondent trade union. Quite simply, it appears that Local 353 did not include Ellis-Don's name on schedule F which the union filed with the Board. (There can be no dispute that Ellis-Don's name would not have appeared on schedule E as Ellis-Don never hired electricians directly. That is, the respondent union would not list Ellis-Don on schedule E as an employer with whom it asserts the union has bargaining rights and who did have employees within one year of the accreditation application date.)

5. The accreditation process is lengthy and complex. Certainly under the Board practice in force in January 1975, the process involved a detailed examination of the schedules filed with the Board and a final determination as to whether employers named on the schedules filed by the union had granted bargaining rights or were otherwise bound to the respondent union. Local 894, the applicant herein, called no evidence to explain the failure of Local 353 to include Ellis-Don on schedule F. Respondent counsel asserts that the most reasonable conclusion from the absence of Ellis-Don's name on schedule F as submitted by the respondent union in the accreditation applica­tion is that Local 353, IBEW had abandoned by that point any bargaining rights which it may have earlier acquired.

6. The absence of evidence to explain the omission of Ellis-Don from the schedule F filed by Local 353, IBEW in the accreditation application is of concern to the Board. The question for

the Board is whether this omission, of itself, is sufficient, in the context of all the other circum­stances, to cause the Board to conclude that Local 353 had abandoned the bargaining rights it had earlier obtained. The omission of Ellis-Don's name is not inconsistent with abandonment and, thus, may signify what respondent counsel asserts. However, that omission is also consistent with an assumption on the part of the Local that the accreditation application affected only specialty contractors or that schedule F speaks only to employers for whom the Local held bargaining rights but who had had employees in the past (albeit not within the previous year). It appears (and there is no cogent evidence to suggest otherwise) that the employer association represented specialty electrical contractors, not general contractors. In that context, the name of Ellis-Don may have been omitted, in the respondent union's reply, as apparently were the names of other general contrac­tors who had signed the working agreement, to reflect the framing of the original application. The question is not what is the most reasonable or a reasonable inference from the omission of Ellis-Don's name but whether the omission signifies abandonment. In the Board's opinion, it is more probable than not that the omission of Ellis-Don's name from schedule F did not reflect an aban­donment of bargaining rights. As well, the context of a consistent pattern of Ellis-Don's subletting electrical work to "union" contractors prior to the accreditation application, although not neces­sarily conclusive proof of the existence of bargaining rights (see paragraph 46 above), cannot be ignored. Given the Board's finding that the working agreement was duly executed by the parties and constituted a series of voluntary recognition agreements, including the voluntary recognition of Local 353, and given that the working agreement was never terminated but, rather, that at least with respect to the subcontracting of electrical work, Ellis-Don fully complied with that agreement for many years with Ellis-Don receiving the advantages of the working agreement during that period, the Board is not satisfied, as a matter of fact, that the bargaining rights of Local 353 were abandoned because of the omission of Ellis-Don's name from schedule F. In short, considering all the circumstances, the Board does not find that Local 353 abandoned its bargaining rights prior to the introduction of province-wide bargaining.

55. Both counsel addressed the issue of abandonment subsequent to the introduction of the province-wide bargaining scheme. Arguments similar to those by respondent counsel were found in R. Reusse Co. Ltd., supra. In that case, given the Board's finding of abandonment prior to 1978, the Board did not deal with those arguments except to state that the Board was not implying any disagreement with the principles dealt with in cases such as Lorne's Electric, supra, Culliton Broth­ers Limited, supra, etc. The Board has carefully considered the arguments of respondent counsel herein with respect to "post province-wide bargaining abandonment". However, the Board is not persuaded that the reasoning in such cases as Lorne's Electric, supra, or Culliton Bothers Limited, supra, is erroneous or no longer applicable. The Board sees no reason to set out those principles in this decision but, rather, adopts that reasoning. The Board does not regard the reasoning in Ontario Hydro, supra, as undermining the Lorne's Electric line of cases. Further, and without departing from the reasoning in Lorne's Electric, the Board notes that the evidence of subcontract­ing by Ellis-Don post 1978 would not sustain a finding of abandonment in any event. The Board's comments in paragraphs 45 - 49 above are apposite in the instant case to the post 1978 period as well. The Board does not accept respondent counsel's argument that, post 1978, any non-union electrical subcontracts outside the geographic jurisdictions of Local 894 and/or 353 should be "held against" those Locals in the context of abandonment. Outside those geographic jurisdictions, there were some examples of non-union electrical subcontracts although the Board can not ascertain the value of those subcontracts in terms of the total value of all projects in those areas in that period. However, even without that comparison, those non-union subcontracts may not properly serve, in the Board's view as evidence of abandonment by Locals 894 and/or 353. The Board, in passing, would add that the Board's decision in Marineland of Canada, supra, is consistent with the Lorne's Electric jurisprudence. In Marineland , supra, the Board looked at conduct subsequent to 1978, not to find abandonment post the imposition of the province-wide scheme, but to assist in assessing the meaning or effect of the union's inactivity before that date. In the instant case, examination of the post 1978 period does not ground a finding that bargaining rights were abandoned prior to 1978. Rather, as noted, the pattern continued as before, i.e., Ellis-Don continued to subcontract electri­cal work overwhelmingly to "union" contractors (until the Trent project which is the subject of the instant grievance).

56. For the foregoing reasons, this grievance is hereby upheld. The 1962 working agree­ment created bargaining rights as between Local 353, IBEW and Ellis-Don through voluntary rec­ognition. Those bargaining rights were not abandoned prior to the introduction of the statutory province-wide bargaining scheme and, by amending legislation, were extended to other affiliated bargaining agents, including Local 894. Nor were those bargaining rights abandoned subsequent to the introduction of province-wide bargaining. The parties agreed that Ellis-Don had sublet electri­cal construction work which would be covered by the provincial ICI agreement to a "non-union" electrical contractor. That subcontract violated the Provincial Agreement. The Board notes the applicant's position that no relief is sought for the period prior to the Trent project. The question of damages is remitted to the parties. Should they be unable to resolve that issue between them, the Board retains jurisdiction to deal with that matter or any other matter arising from the inter­pretation or implementation of this award.

DECISION OF BOARD MEMBER J. TRIM; February 28, 1992

1. I can agree with the finding of my colleagues that the Company representatives signed the working agreement and that the agreement is therefore binding on the Company. However, I regret that I must dissent with the majority in the remainder of the decision.

2. I am of the opinion that my colleagues have failed to properly interpret the effect of the working agreement and have improperly interpreted the applicable provisions of the Labour Rela­tions Act.

3. I have difficulty with the concept that an employer can grant voluntary recognition to a trade union in a situation where the union could not obtain bargaining rights by certification, i.e. there are no employees in the bargaining unit for which the employer gave the union bargaining rights. It was admitted in this case and in the case of Harbridge & Cross that the employer has never employed tradesmen represented by the union in question.

4. The majority in this decision, in interpreting the working agreement, based their deci­sion on the Harbridge and Cross case. That decision was, in my view, in error. The Board found, by interpretation that paragraph two of the working agreement granted voluntary recognition to the painters' union for "all employees engaged in painting". In my opinion you cannot interpret paragraph 2 to support that finding. Under section 16(3) of the Act a voluntary recognition agree­ment must provide for a defined bargaining unit. It is clear that under paragraph 5 of the working agreement the employer did recognize the applicable unions for the defined bargaining units in the six civil trade agreements between the General Contractors' Section of Toronto Construction Association by reason of agreeing to be bound to those agreements. Paragraph 2 cannot be inter­preted to apply to the balance of the tradesmen represented by the affiliated unions of the council and in particular for "all employees engaged in painting".

5. The legislation which created province-wide bargaining in 1978 and the amendments which extended bargaining rights in 1980 recognized voluntary recognition obtained by affiliated local unions or councils of those affiliated trade unions. References to councils in that legislation, as amended, cannot, therefore, be interpreted to include local Building Trades Councils that have as members local unions not affiliated by trade and craft.

6. In regard to abandonment by reason of the accreditation procedure, it is my opinion that the failure of the affiliated unions, not within the scope of paragraph five of the working agreement, to list employers who signed the working agreement supports the interpretation of the working agreement that I have set out above. In other words, those affiliated unions did not hold bargaining rights for the employers who had signed the working agreement. Under the accredita­tion provisions if an employer is not listed on Schedule "E" and "F" the union has acknowledged that it does not hold bargaining rights for such employer. That is why in the recent Sewer and Watermain Accreditation the Board did not create a Schedule "F" but simply noted that the union would have to prove their bargaining rights for employers not listed on Schedule "E" in future Board proceedings involving such employers.

7. For these reasons, I would dismiss this grievance by the IBEW.