Labourers' International Union of North America, Local 493 v. Steds Limited, 1992 CanLII 6795

[1992] OLRB Rep. January 67

1967-89-G Labourers' International Union of North America, Local 493, Applicant v. Steds Limited, Respondent

BEFORE: Louisa M. Davie, Vice-Chair.

APPEARANCES: S.B.D. Wahl and M. A. Ross for the applicant; Walter Thornton and C. Olmsted for the respondent.

DECISION OF THE BOARD; January 8, 1992

1. This is a referral of a grievance to the Board pursuant to section 126 [formerly section 124] of the Labour Relations Act ("the Act"). The grievance was delivered by the applicant on October 26, 1989 and referred to the Board November 8, 1989. For ease of reference the Labourers' International Union of North America will be referred to as "the Labourers" or "the union". The various locals of the union will be referred to only by their local union number.

2. The respondent ("Steds" or "the employer") submits that this grievance ought to be dismissed for reasons of delay, the prejudice suffered by the employer as a result of such delay, and that the equitable doctrine of laches applies to the circumstances of this case. The employer also submits that the union no longer has bargaining rights with respect to its employees as any bargaining rights the union had have been abandoned.

3. At the commencement of the hearing, after hearing the submissions of the parties the Board orally ruled that it would not deal with the issue of delay on a preliminary basis.

4. When the Board commenced its hearing into this referral the panel of the Board consisted of Vice-Chair, L. Davie, with Board Members W. Gibson and C. A. Ballentine. As a result of Mr. Gibson's sudden death prior to the completion of the hearing the parties agreed on December 19, 1990 that this matter be continued before me as a single vice-chair.

Facts

5. The state of the evidence throughout this case was most unsatisfactory. This was undoubtedly due to the fact that the evidence related to events and circumstances which occurred more than twenty years ago. Similarly, the relevant documentary evidence is dated approximately twenty years ago. Some of the "key players" who could testify about particular events or the circumstances surrounding the signing of certain collective agreements have died. In particular, Steds points to the death of William Olmsted in 1987 as a factor which has prejudiced it in the presentation of its defense to this grievance.

6. Notwithstanding the sketchy evidence I have made the following factual findings based on the evidence before me and the usual factors which the Board considers in weighing and assessing such viva voce and documentary evidence including the credibility of the witnesses, what is reasonably probable in the circumstances and the reasonable inferences to be drawn.

7. Steds is a company engaged in construction activities primarily in the institutional and commercial sector of the construction industry. The company began its operations in North Bay in 1958. Since that time it has spent the vast majority of its time doing construction work in and around the City of North Bay in the District of Nipissing. It has also engaged in construction activities in the areas adjacent to the district of Nipissing including the districts of Parry Sound and Temiskaming. These areas were at all relevant times within the territorial jurisdiction of Local 493.

8. With the exception of the incidents referred to in this decision Steds has not performed construction work in the Kapuskasing area or in the area north of the 49th parallel, or in an area within 50 miles of the Timmins Federal Building. This fact took on some significance in the submissions of the parties and will be referred to in more detail.

9. I find that at all relevant times Steds has actively and openly engaged in its construction activities. It has been an active and visible construction contractor in the North Bay area for more than 30 years.

10. I find that throughout this time and more particularly from 1965 to the present Local

493 knew or ought to have known that Steds was engaged in construction activities within its geographic jurisdiction. Further, Local 493 knew or ought to have known that in carrying out its construction activities Steds employed persons to perform work which falls within the work jurisdiction claimed by the Labourers.

11. At all relevant times Steds used trucks which displayed the company name. Its common practice was to erect signs on its projects to indicate its involvement with the project. Steds often acquired jobs through tenders listed in the Daily Commercial News ("DCN"). Its successful tender on jobs advertised in the DCN would be reported in subsequent issues of the DCN. Over the years it performed a number of high profile jobs in Local 493's area. I have evidence of in excess of 80 projects carried out by Steds from 1970 to the time of the filing of this grievance in 1989. Many of these projects involved additions to existing structures located on the main streets of the City of North Bay or surrounding towns. The projects included additions to existing retail stores or LCBO outlets, additions to industrial manufacturing facilities in busy industrial subdivisions, new construction of a much publicized building for the North Bay canoe club, construction of a new building for the OPP headquarters in North Bay, additions to schools etc. In the face of this evidence I do not accept that Local 493 did not or ought not to have known that Steds performed construction work within its territorial jurisdiction.

12. With the exception of the projects referred to hereafter all of these various projects have been performed by Steds on a "non-union" basis. At no time, and more importantly from 1970 until the filing of the grievance in 1989 did Local 493 seek to enforce the bargaining rights which it asserts it has or enforce the collective agreements to which it alleges Steds has been bound.

13. In this case Local 493 has asserted that when province-wide bargaining was introduced, either one or all of Locals 491, 493, 607 and 1036 held bargaining rights. With the introduction of province-wide bargaining these bargaining rights "fed" the Labourers' designation and the scheme of province-wide bargaining. Steds was therefore bound to the 1988-90 provincial agreement under which the grievance was filed. Bargaining rights could not be abandoned after province-wide bargaining was introduced. (Lorne's Electric, [1987] OLRB Rep. Nov. 1405.) Although the union may have been lax in its enforcement of those rights, that fact is irrelevant as the issue of enforcement is distinct from the determination whether bargaining rights existed when the grievance was filed.

14. In addition to his arguments regarding delay and laches, counsel for Steds submits that if the union held bargaining rights at some point in time, those rights had been abandoned prior to the introduction of province-wide bargaining in 1978. Counsel for Steds did not assert that abandonment occurred after 1978. Rather counsel argued that evidence of the work practices of Steds after 1978 was relevant to his submissions regarding the principles of delay and laches, and as corroborative evidence that abandonment had occurred prior to 1978 (see Marineland of Canada Inc., [1990] OLRB Rep. Dec. 1298).

15. It is therefore necessary to detail how the locals obtained the bargaining rights asserted and to determine whether any of the locals held bargaining rights at the commencement of province-wide bargaining in 1978.

Evidence Relating to the Acquisition of Bargaining Rights by Local 493

16. On May 27th, 1965 Mr. William A. Olmsted returned to Mr. E. Poitras a signed copy of a collective agreement between Steds Limited and the International Hod Carriers Building and Common Labourers Union of America, Local 493. That agreement was effective from April 30, 1965 to April 30, 1967. The relevant parts of Articles 3, 4, and 5 of that collective agreement state as follows:

Article 3- AREA OF AGREEMENT

This Agreement shall be effective within a radius of fifty (50) miles from the Timmins Federal Building.

Article 4- RECOGNITION

The Contractor recognizes only the International Hod Carriers' Building and Common Labourers' Union of America, as sole collective bargaining agents for all Labourers employed on the project of the Contractor with respect to rates of pay, hours of work and other conditions of employment....

Article 5- UNION SECURITY

The Contractor agrees to hire only members of the Union during the term of this Agreement.

17. Mr. Charles Olmsted testified that it was his understanding this collective agreement was signed by his brother as a result of a job that Steds had at Nellie Lake near Iroquois Falls. He further testified that Allied Chemical, the owner/client for whom Steds was performing the work required that the work be performed pursuant to a collective agreement with the Labourers union. As his brother was manager of the project and dealt with both the owner/client and the Labourers at the time, Charles Olmsted had little direct knowledge of the circumstances and events surrounding the signing of this collective agreement.

18. On August 3, 1967 Charles Olmsted acting on behalf of Steds signed a collective agreement with Local 493. This agreement was effective from June 14th, 1967 until April 30th, 1970. Articles 3, 4, and 5 of that agreement are similar but not identical to the expired collective agreement earlier signed by William Olmsted. The primary difference is in the "Area of Agreement" article which states:

Article 3- AREA OF AGREEMENT

The rates of wages and working conditions shall be effective in the Town of Timmins and within a radius of fifty (50) miles from the Town of Timmins Federal Building.

19. Charles Olmsted testified that he remembered very little about signing this collective agreement. He recalled that at the time Steds had a contract to construct an addition to the Northern Telephone office in New Liskeard and that this owner/client also required Steds to have contractual relations with the Labourers union. New Liskeard however does not fall within the fifty mile radius of the Timmins Federal Building referred to in Article 3 of that collective agreement.

20. The trade union called no evidence about the events and circumstances surrounding the execution of these documents. At the time these agreements were signed Local 493's jurisdiction extended well beyond the 50 mile radius of the Timmins Federal Building referred to in Article 3 of each of the collective agreements. With the exception of the Allied Chemical project Steds has not performed any work in the 50 mile radius of the Timmins Federal Building.

21. On or about May 15th, 1970 Mr. William Olmsted signed a collective agreement between Steds Limited and Local 493. That agreement remained in effect until April 30, 1971 ("the 1970-71 agreement"). The relevant provisions of that collective agreement are found in Article 300 and Article 400 which state as follows:

ARTICLE 300 - AREA OF AGREEMENT

The rates of wages and working conditions shall be effective in the City of Sudbury and within a radius of thirty-five (35) miles from the city of Sudbury Federal Building.

ARTICLE 400 - RECOGNITION

The Employer recognizes only the Union as the sole collective bargaining agent for all Labourers and Working Foremen employed by the Employer with respect to rates of pay, hours of work, and other conditions of employment.

The agreement was signed on behalf of Local 493 by Mr. Bill Tyreman and Mr. Guy Papineau. Neither of these persons testified before the Board.

22. The evidence with respect to the events and circumstances surrounding the signing of this document is extremely sparse. There is no evidence for example to indicate that at this time Steds was performing or had performed work within the 35 mile radius referred to in Article 300 of the Agreement.

23. Michael Ross testified on behalf of the union. Mr. Ross first served as Local 493's business agent in 1968. He became one of the business managers at the local in 1970-1971 and continued to serve in that capacity (and others) until the fall of 1990.

24. Mr. Ross testified that at the time this agreement was signed Local 493 had already established a pattern of bargaining with the Sudbury Construction Association (SCA). The SCA was an organization of employer contractors formed for purposes that included inter alia collective bargaining with the local unions who had contractual relations with the employers. I find that in 1970 there did exist a separate and distinct collective agreement between the SCA and Local 493 for the Sudbury area.

25. There was also some vague and sketchy evidence about a local North Bay collective agreement. That agreement covered the twenty mile area in and around North Bay. Negotiations with respect to that agreement may have been carried out by the SCA on behalf of certain North Bay contractors. It was also carried out directly between Local 493 and individual contractors resident in the North Bay area. Although counsel for the employer argued to the contrary I find that a "local" North Bay agreement did exist in or about 1970. Steds however was never a signatory to such a local North Bay agreement.

26. I find further that Steds has never been a member of the SCA. Having regard to the totality of the documentary evidence and the reasonable inferences that can been drawn from that evidence I conclude that when William Olmsted signed the 1970-71 agreement on or about May 15, 1970, Steds was not automatically bound to any collective agreement negotiated between the SCA and Local 493. There is no evidence before me to suggest that Steds had agreed to be bound to any collective agreement between the SCA and Local 493. Neither is there any evidence that prior to May 1970 Steds had authorized the SCA to bargain on its behalf or to act as its representative in negotiations with Local 493. I have therefore determined that in May 1970 (when William Olmsted signed this agreement) in order to assert any bargaining rights vis-a-vis Steds it was necessary for Local 493 to negotiate and conclude a collective agreement directly with Steds.

27. There are no further or other collective agreements between Steds and Local 493 signed by either Charles or William Olmsted. Neither is there any other document to which Local 493 can point signed by either Charles or William Olmsted or some other officer or official of Steds which has the effect of recognizing Local 493 as bargaining agent of any employees of Steds.

28. Local 493 submits that after the May 1970 collective agreement expired Steds nonetheless continued to be bound to recognize Local 493 in particular regions of Ontario because Steds was bound to certain collective agreements negotiated between Local 493 and the SCA.

29. The first piece of evidence led by Local 493 in support of its contention that Steds was represented by the SCA in negotiations with Local 493 and was thereby bound to the various collective agreements negotiated between the SCA and Local 493 is in the form of a registered letter dated March 24, 1971 in which Local 493 seeks to give notice to bargain for the renewal of a collective agreement.

30. Accompanying this letter is a Canada Post registration receipt containing the names and addresses of approximately 90 contractors throughout the Province of Ontario to whom the registered letter was sent. Next to 27 of these names are certain hand printed notations stating variously "okay SCA", "reply received March 29th", "Okay", "SCA", "Will sign", or some combination of these notations. The name and address of Steds appears on that registration receipt together with a hand printed notation "okay SCA". Both the letter and the registration receipt came from Local 493's file relating to the SCA.

31. There is no first hand or direct evidence about this notation. Mr. Ross testified the handwriting was that of Ms. Y. Cote, the secretary at his office. Having not made the notation himself Mr. Ross could not testify as to its meaning and had no knowledge when it was made and from where or whom the information "okay SCA" had been received.

32. Local 493 points to a letter dated March 30th, 1971 which William Olmsted wrote to Mr. Ross as authorization from Steds to the SCA to negotiate on its behalf. That letter states as follows:

Following your telecon to this office of March 29th, we confirm our statement that if, as and when, Steds Limited proposes to perform work in Sudbury, we will then pickup the current agreement in force as between your local and the Sudbury Builders Exchange, General Contractors Section.

Mr. Ross did not testify about his "telecon to [Steds] office of March 29th".

33. The remaining items of documentary evidence upon which Local 493 relies to assert that Steds was bound to a series of collective agreements it had with the SCA (and later the Construction Labour Relations Association of Ontario (CLRAO) acting on behalf of the SCA) consists of Steds placement on a number of lists prepared by either the SCA or Local 493.

34. There is no evidence as to the compilation of any of these lists. The evidence discloses that the various lists were received and relied upon by Local 493. There is no evidence however about how or why or whom placed Steds' name on these lists.

35. Steds was not aware that its name appeared on any of these lists. It was never a member of the SCA and was not aware that the SCA purported to negotiate on its behalf. As between Steds and the SCA there is no evidence Steds ever authorized the SCA by way of proxy or otherwise to act as its representative in negotiations with the union or its locals; It did not ever receive copies of any of the collective agreements negotiated by the Labourers with either the SCA or CLRAO to which Local 493 asserts it was bound. Steds did not receive any notification or communication from anyone to indicate that the SCA and/or the trade union and its various locals considered Steds bound to these collective agreements. Rather Steds continued to operate its business in a visible and non-union fashion. It did not consider itself bound to any collective agreements (at least at the expiration of the May, 1970 agreement on April 30th, 1971) and did not apply the terms or conditions of any collective agreement to the labourers it employed. It would seem from the evidence that in this regard Steds and Local 493 were truly like ships passing in the night with neither knowing the position of the other.

Evidence Relating to Locals 491 and 1036 Bargaining Rights

36. As between Locals 491 and 1036 and Steds there are no direct collective agreements signed by Steds. Any bargaining rights that exist for either of these two locals at the time of the commencement of province-wide bargaining arise by reason of the collective agreements signed by William Olmsted in 1965 and Charles Olmsted in August 1967 and later collective agreements negotiated by the SCA and/or the CLRAO with the union.

37. In November 1974 a new local of the Labourers' Union was chartered. This new local, known as Local 491 was given jurisdiction over the Timmins area (that area which the Board now refers to as Board area #19).

38. On May 1, 1973 prior to the chartering of Local 491 the SCA had entered into a collective agreement with Local 493 which contained the following provisions relating to recognition and union security:

2.01 The Employer for itself, its Employers section and members, recognize the Local Union as the sole and exclusive bargaining representative of their members for the purpose of entering into this Collective Agreement covering the City of Sudbury and within a radius of 35 miles from the City of Sudbury Federal Building; and similarly, the Local Union recognizes the Employer as the sole representative of its Employer sections and the Employer members of its sections, for the purpose of entering into this Agreement.

2.02 The Employer recognizes the Union as Bargaining Agent for Labourers outside the geographic area of this Agreement for those areas in the Province of Ontario where the Union holds bargaining rights.

39. Counsel for the Labourers submitted that although there was no evidence that the 1967 agreement with Steds was re-negotiated by Local 493 after its expiry in 1970, Local 493's bargaining rights for the "Timmins area" were acknowledged and continued by virtue of Article 2.02 of the 1973 collective agreement with the SCA. These bargaining rights were transferred to Local 491 when it was chartered and given jurisdiction over the Timmins area.

40. Counsel for the Labourers further asserted that in 1975 Local 493, Local 491 and Local 1036 and Steds were all bound to a collective agreement between the CLRAO "on behalf of the Sault Builders Exchange and the Sudbury Construction Association, for their listed members attached hereto, hereinafter referred to as ('the employer')" and "Labourers' International Union of North America, Ontario Provincial District Council, on behalf of Local Unions 491; 493 and 1036 and said locals individually to be hereinafter called ('the union')". A list of contractors apparently compiled by the SCA and which included Steds' name was appended to that agreement. That agreement provided as follows:

The Employer recognizes the local Union as the bargaining agent for all employees covered by this Agreement while working within the District of:

Algoma

Sudbury

Manitoulin Island

Nipissing

Parry Sound

Temiskaming

and that portion of the District of Cochrane lying south of the 49th Parallel, where the local Union holds bargaining rights.

That agreement was subsequently re-negotiated between those same parties and without change to the recognition provision until province-wide bargaining was introduced.

41. The trade union asserts that the CLRAO collective agreement constitutes voluntary recognition by Steds of the unions' bargaining rights in the District of Algoma over which Local 1036 has jurisdiction.

42. Local 493 asserts that these events establish a clear and clean chain of bargaining rights in the Timmins and Sault Ste. Marie areas up to 1978. Steds did not perform any work in the Timmins area after 1970. It has not performed any projects in the district of Algoma since 1975 (and has done only one project in that area since 1970).

Evidence Relating to Local 607's Bargaining Rights

43. The only evidence regarding Steds' recognition of Local 607 at any point in time came through the viva voce evidence of Charles Olmsted and certain documents which were placed in evidence on consent.

44. On or about June 23, 1970 Charles Olmsted signed a "working agreement". That working agreement is a simple, single page document which in its entirety states as follows:

WORKING AGREEMENT

AGREEMENT DATED the 23 day of June 1970 AD.

BETWEEN: STEDS LIMITED

Hereinafter referred to as the Company

• and -

LOCAL 607, LABORERS INTERNATIONAL UNION OF NORTH AMERICA

Hereinafter referred to as the Union

PURPOSE

1. The general purpose of this Agreement is to establish mutually satisfactory relations between the company and its employees; to eliminate unfair practices; to establish and maintain satisfactory working conditions, hours of work and wages and to stabilize conditions in the construction industry.

RECOGNITION

2. The Company recognizes the Union as the sole and exclusive collective bargaining agency for all construction laborers in all matters pertaining to wages, hours of work and working conditions, as in the current collective agreement between Local 607 and certain employers.

WAGES. HOURS AND WORKING CONDITIONS

3. The Company agrees to recognize and be bound by the Agreements existing from time to time between Local 607 and certain employers with whom the Union normally bargains with in the industry and specifically agrees that the provisions relating to wages, hours and working conditions set forth in the said agreements shall be binding on the Company. In the event any of the said conditions set forth in said agreements are altered or amended to at any time by negotiations, the Company shall be bound by such alternations and amendments. The agreements referred to herein are maintained in a registered file at the office of the Union at Room 17, Lakehead Labour Centre, Fort William Road, Thunder Bay, Ontario and are available for inspection by the Company at all reasonable times.

TERMINATION

4. This Agreement will remain in force for a period of one year, from the date hereof, and shall continue in force from year to year thereafter, unless in any year not less than 60 days, before the date of its termination either party shall furnish the other with notice of termination of or proposed revision, of this agreement.

IN WITNESS WHEREOF the parties hereto have caused this Agreement to be executed by their duly authorized representatives.

SIGNED ON BEHALF OF THE COMPANY

STEDS LIMITED

("C. E. Olmsted")

SIGNED ON BEHALF OF THE UNION

("Carl Schelle")

45. Mr. Olmsted could remember very little about signing this agreement. He recalled the project upon which Steds was engaged at the time was the Andre Carey School in Kapuskasing. He testified Kapuskasing was a "union oriented" town and that Steds was therefore obliged to employ members of the Labourers union to ensure an adequate labour force and avoid any possible job interruptions as the other trades on site were unionized.

46. Mr. Olmsted recalled he signed the agreement on one of his visits to the job site and thought that a meeting for that purpose had been set up by his site superintendent. At the time Mr. Olmsted discussed with the union representatives his obligations pursuant to the agreement including such matters as rates of pay etc. He could not recall whether or not he ever received any collective agreement then applicable between Local 607 and certain employers as referred to in article 3.

47. Charles Olmsted had no specific recollection of any statements made during the meeting which caused him to conclude that the working agreement was only applicable to the specific job at which Steds was then engaged. Nevertheless his recollection of the circumstances was that the agreement was applicable only to that particular project. Although vague his recollection was that the union representative agreed that Steds "could have a site agreement for this project". Although he "might have", Charles Olmsted could not recall whether he or the union representative for Local 607 signed anything other than the working agreement which would limit the union's rights or Steds' obligations to that particular site.

48. The union representative who signed the document on behalf of Local 607, Carl Schelle did not testify. His whereabouts are unknown.

49. On or about October 21, 1971 Mr. William Olmsted signed a "standard form" collective agreement. Mr. J. A. McCutcheon signed the agreement on behalf of Local 607. Neither signatory testified. From the evidence of Mr. Little who has been the business agent and later business manager of Local 607 since 1974 I conclude that this standard agreement is the same agreement to which reference is made in paragraph 3 of the working agreement.

50. The evidence indicates that except for the Andre Carey School job, Steds never again worked within Local 607's jurisdiction and was not working in that area when this standard form collective agreement was signed by William Olmsted.

51. At or around this time however Steds was working on a pipeline project in Ramore. Ramore was not within Local 607's jurisdiction however and at the time fell within the territorial jurisdiction of Local 493. Ramore also is not within 50 miles of the Timmins Federal Building.

52. On September 3rd, 1971 Local 493 applied to be certified for "all construction labourers employed by [Steds] while working within a fifty mile radius of the Timmins Federal Building". On September 16th, 1971 the Board dismissed Local 493's application for failure to file with the Board membership evidence or the declaration concerning membership evidence.

53. In its reply to that application dated September 10th, 1971 Steds named Local 607 as a "trade union known to the respondent as claiming to be the bargaining agent of or to represent any employees who may be affected by the application". It referred to the time period specified in the working agreement in that paragraph of the reply in which it indicated it was "bound by a collective agreement". Finally, in "other relevant statements" Steds states as follows:

54. Other relevant statements (use addition pages if necessary):

While working in Kapuskasing in 1970, Steds Limited signed an agreement with Local No. 607, which claims jurisdiction of the geographical districts of Kenora, Kenora Patricia, Rainy River, District of Thunder Bay and District of Cochrane.

Ramore is in the District of Cochrane.

No further building contracts presently being contemplated in this area.

The reply is signed by William Olmsted.

54. Charles Olmsted stated that the Ramore job was a subcontract from Adam Clark Company and was therefore performed on a "union basis". He did not know however which collective agreement was applied to the job (whether the Labourers pipeline agreement for Canada or some other local agreement) or which local (whether Local 607 or Local 493) was recognized on the job by Steds. It was his brother who attended the pre-job mark-up with Adam Clark and who was responsible for the job.

55. Finally there is a letter dated February 16th, 1978 purportedly sent to Steds by the business manager of Local 607 (who did not testify) by registered mail. The letter gives notice to bargain and makes reference to the newly enacted province-wide bargaining scheme. There is no evidence before me that this letter was every received by Steds. The address on the Canada Post registration receipt was not the then current address of Steds as the company had moved its offices in 1972 or 1973.

The Position of the Union

56. Counsel for the Labourers submitted that there were four separate lines of bargaining rights established by the evidence. First, the Timmins area bargaining rights established by the 1965-1967 and 1967-1970 collective agreements with Local 493. These Timmins area bargaining rights were continued by reason of the agreements negotiated with the SCA and the CLRAO. In particular, Article 2.02 of the 1973-1975 collective agreement, and the recognition article in the 1975-1977 agreement obliged Steds to recognize first Local 493 and later Local 491's bargaining rights in the Timmins area.

57. The second line of bargaining rights related to the Sudbury area. Counsel referred to the 1970-1971 collective agreement signed by William Olmsted to establish Local 493's Sudbury area bargaining rights. He argued these rights were continued through the various collective agreements negotiated between the SCA and the CLRAO and Local 493.

58. The third line of bargaining rights related to those acquired by Local 1036 by reason of what counsel asserts was the voluntary recognition extended to that Local in the 1975-1977 collective agreement between the CLRAO and the three locals.

59. With respect to each of these three lines of bargaining rights counsel argued that William Olmsted's letter of March 30, 1971 was a representation from Steds that it agreed to be bound to the SCA negotiated collective agreements. Having regard to that letter it was reasonable for the union to accept and not question Steds' name on the various lists which it received from the SCA after that letter. Counsel asserted that the various lists served to bring this matter within the purview of section 52 [formerly section 51] of the Act and binds Steds to the SCA negotiated collective agreements. Counsel argued that membership in the employer's organization is irrelevant under that provision.

60. Section 52 states:

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

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

61. Counsel for the Labourers submitted that the first part of section 52(2) which requires an employer's organization such as the SCA to deliver to the trade union a list of contractors on whose behalf it is bargaining is a statutory adaptation of the law of agency principles relating to actual and ostensible authority. Contractors whose names appear on the list provided by the employer organization are bound to the collective agreement negotiated by that organization. The latter provision of section 52(2) deals only with the circumstances where no list is delivered. In that case all members of the organization are bound by reason of the deemed authority given to the organization of which the contractor is a member. The public policy promoted by section 52 and the Board's jurisprudence with respect to that section is to encourage a standard area collective agreement negotiated by employer's organizations. That public policy would be undermined if the trade union were required to look behind the lists and concern itself with whether a contractor was/was not a member of the organization or did/did not authorize the organization to negotiate on its behalf. Section 52(2) and the delivery of the lists negate any concern by the union to determine the indoor management of the employer's organization.

62. In support of his argument that section 52 applied and was dispositive of Steds obligation to be bound to the SCA negotiated collective agreements counsel cited Fullerton-Weston Publishing Ltd. et al v. Brown et al and Toronto Printing Pressmen and Assistants' Union No. 10 (1971) C.L.L.C. 14,083; Bruce Henderson Limited, [1977] OLRB Rep. Aug. 480; Paul D'Aoust Construction Limited, [1976] OLRB Rep. Sept. 529; MacGregor Crane Service Limited, [1979] OLRB Rep. Aug. 777; Delta Plumbing and Heating, [1964] OLRB Rep. Oct. 329; Twin Electric, [1984] OLRB Rep. Feb. 393; Baker Gurney & McLaren Ltd., [1976] OLRB Rep. Mar. 78; David Yan Construction Ltd., [1984] OLRB Rep. May 715; L.M.L. Foods Inc., [1985] OLRB Rep. Aug. 1252.

63. Alternatively, counsel submitted that Steds' letter of March 30th, 1971 and its subsequent appearance on the various lists constituted a representation that the SCA had actual or ostensible authority to negotiate on behalf of Steds. In support counsel referred to Inspiration Limited, [1967] OLRB Rep. Sept. 561; Collegiate Sports Ltd., [1977] OLRB Rep. Aug. 487; Vic Starchuk & Associates Inc., [1980] OLRB Rep. Apr. 516; Hussey Seating Company (Canada) Limited, [1981] OLRB Rep. Aug. 1138; Maple Leaf Taxi Company Ltd., [1982] OLRB Rep. Nov. 1671.

64. In response to Steds' position that Local 493 or any of the other locals had abandoned its bargaining rights counsel argued that the union could not enforce rights it did not have. Counsel asserted that prior to the 1975 agreement with the CLRAO none of these locals held bargaining rights for the District of Nipissing and the City of North Bay where Steds performed most of its work. In particular Local 493 held bargaining rights only for the Sudbury and Timmins area where Steds did little if any work.

65. Counsel for the Labourers' argues that prior to the 1973 SCA negotiated agreement its bargaining rights vis-a-vis Steds were limited to the Timmins and Sudbury area and did not extend to any other geographic area within its jurisdiction. As a result of the inclusion of Article 2.02 in the 1973 SCA negotiated agreement, Local 493 could perhaps for the first time assert bargaining rights with respect to Steds' employees in the North Bay area. It was not until the 1975 CLRAO negotiated agreement that the recognition provision was strengthened and the union could assert bargaining rights in the North Bay area.

66. In this regard counsel noted that Steds was not signatory to or otherwise bound to the North Bay local area agreement. As Local 493's bargaining rights did not extend to the North Bay area it could hardly be faulted for any failure to enforce a collective agreement on Steds non-union projects in that area. As its bargaining rights were limited to Timmins and Sudbury, and because Steds did not perform any work in those areas after the Timmins Allied Chemical project which prompted the 1965 agreement, it cannot be said that Local 493 abandoned its bargaining rights for either geographic area. It had no opportunity to enforce collective agreement obligations because Steds did not work in those areas. Neither was there a need to re-negotiate the collective agreements.

67. Counsel argued that throughout the union's bargaining rights with. respect to Steds were being actively exercised and asserted through the negotiations of successive collective agreements by Local 493 with the SCA or the CLRAO. Local 493 may at various times may have been derelict in its enforcement or the administration of those collective agreements, but the fact that it continued to bargain for successive collective agreements to which it considered Steds bound is proof that it did not abandon, and did not intend to abandon bargaining rights. The lack of personal contact between the Local union and the contractor, or the poor enforcement of the collective agreement by a Local union is irrelevant in circumstances where bargaining takes place between the trade union and an employer's organization. In support of this "non-abandonment" argument counsel referred to Newman Bros. Limited, [1981] OLRB Rep. June 750; Inducon Construction (Northern) Inc., [1982] OLRB Rep. March 390; Culliton Brothers Limited, [1982] OLRB Rep. March 357; Lorne's Electric, [1987] OLRB Rep. Nov. 1405; Steelfabco Inc., [1990] OLRB Rep. Jan. 83.

68. Finally, even if Local 493 had through its conduct abandoned its bargaining rights there is no evidence that any of the other locals had done so prior to province-wide bargaining. As long as the trade union can point to one source of bargaining rights or one area of the province in which it maintained bargaining rights at the commencement of province-wide bargaining those bargaining rights feed the designation and fill any void left by the alleged abandonment of bargaining rights by Local 493.

69. The fourth and final line of bargaining rights asserted stem from the rights acquired by Local 607 through the signing of the working agreement by Charles Olmsted in June 1970, and the collective agreement signed by William Olmsted in October 1971. Counsel asserted that extrinsic evidence to vary the clear and unambiguous terms of those agreements or limit their application was inadmissible. As such any evidence that sought to show the agreements were intended to be site or job specific ought not to be considered.

70. Moreover, Steds reply to Local 493's application in September 1971 must be viewed as an acknowledgement of Local 607's bargaining rights. Counsel also pointed to Local 607's letter of February 16, 1978 as evidence that Local 607 asserted and intended to continue its bargaining rights. The lack of any evidence that Steds performed any work within Local 607's jurisdiction after the Kapuskasing job in 1970 negates any suggestion that Local 607 abandoned those rights.

The Employer's Position

71. Counsel for Steds submitted that the equitable doctrine of laches applied and/or that the grievance should be dismissed for reasons of delay (see Ontario Hydro-Darlington G.S. [1986] OLRB Rep. July 1014 and Brown and Beatty, Canadian Labour Arbitration at page 2-64.) Steds asserts that the evidence with respect to the bargaining rights of the various locals indicates that bargaining rights either never existed at all or alternatively were abandoned prior to province-wide bargaining.

72. It is not disputed that in order to succeed in this referral, Local 493 must establish that Steds is bound to the province-wide ICI collective agreement. Steds submits that it did not at any time become bound to that collective agreement because, at the time the Act extended bargaining rights province-wide, it was not bound to recognize the union in any part of the province. Steds submits that because of the inordinate delay of Local 493 it is not now in a position to prove that fact. Steds argues the delay has resulted in the absence of an important witness, the destruction of company records, and a general lessening of its ability to present its case and have a fair hearing. Similarly, the delay has impaired Steds' ability to prove that, if bargaining rights did exist, those bargaining rights had been abandoned.

73. Counsel focused upon the bargaining rights which Local 493 asserts were held by Local 607 at the commencement of province-wide bargaining to make his arguments with respect to laches and delay. It was conceded that if those bargaining rights existed when province-wide bargaining commenced in 1978, Steds became bound to the ICI province-wide agreement. Counsel argued however that because of the unreasonably delay on the part of Local 493 in filing this grievance, Steds was not in a position to fairly put forward all relevant evidence pertaining to the bargaining rights allegedly held by Local 607. The death of William Olmsted in 1987 and the loss or destruction of a number of company records with respect to the company's activities throughout the 1970's had prejudiced Steds in its defense of this grievance.

74. Counsel argued that there was no reasonable excuse for Local 493's delay. Counsel submitted that in his view Local 493 had delayed in asserting its bargaining rights since April 1971 when the Sudbury area collective agreement expired. In so doing he argued that the three collective agreements with Local 493 signed by Steds were not limited to the Timmins or Sudhury area but obliged Steds to recognize Local 493 throughout its territorial jurisdiction including the District of Nipissing. In the alternative, and at the very least Local 493 had delayed in asserting its rights without reasonable excuse since the commencement of province-wide bargaining.

75. Counsel referred to a number of factors as evidence of the prejudice caused to Steds by Local 493's delay. First was the vagueness of Mr. Charles Olmsted's evidence. He argued that it was inequitable to require Mr. Olmsted to testify about events that occurred twenty years ago. His evidence about the representations made to him when he signed the working agreement with Local 607 was necessarily vague because of the passage of time. Had the union not delayed in filing the grievance and asserting its rights, Mr. Olmsted's evidence would not have suffered from fading memory. In any event, in light of Mr. Olmsted's evidence, and in the absence of any evidence from the union to the contrary, the working agreement signed by him was site specific and could not form the basis for a claim of existing bargaining rights with Local 607 at the time province-wide bargaining was introduced.

76. Counsel also submitted that the collective agreement signed by William Olmsted in October 1971 could not be relied upon. Given the remainder of the evidence the Board can't be assured that the signatories to that document intended the agreement to operate according to its strict terms.

77. Counsel pointed to a number of unexplained questions or issues surrounding the collective agreement with Local 607 signed by William Olmsted. In particular if the working agreement signed by Charles Olmsted was operative according to its strict terms the signing of the "standard" agreement by William Olmsted was completely redundant. Article 3 of the working agreement already bound Steds to that standard agreement. He noted the fact that at the time Steds was not performing any work within Local 607's area. Counsel cited the circumstances surrounding Local 493's application for certification and suggested that the signing of the collective agreement may have had some relation to that. Counsel argued that these factors should cause the Board concerns that would not be present if the people actually involved in negotiating the agreement had testified. Local 493's delay in asserting bargaining rights or filing this grievance has made that impossible.

78. Counsel referred to a number of other contradictions or inconsistencies in the documentary and viva voce evidence. He argued that these raised considerable doubt that a decision based on sketchy, incomplete evidence some twenty years after the fact and without the viva voce evidence from the persons involved with the various events would be a fair one. He argued that every person who testified suffered from fading memory and of necessity could offer only sketchy evidence in key areas.

79. As an alternative argument counsel submitted that if the grievance was not dismissed by reasons of delay or laches, it ought to be dismissed as Local 493 had abandoned any bargaining rights prior to the advent of province-wide collective bargaining. He argued that the three agreements with Local 493 signed by Steds were not restricted to the Timmins area and the Sudbury area but obliged Steds to recognize Local 493 throughout the area over which it had jurisdiction including the District of Nipissing where Steds performed most of its work. Counsel asserts there is a distinction between the "recognition" given to Local 493 in those agreements, and the geographic "area" to which the terms and conditions of the particular agreement applied.

80. Counsel for Steds took the position, inter alia, that as these collective agreements obliged Steds to recognize Local 493 throughout its geographic jurisdiction, including the District of Nipissing, Local 493's failure to enforce the collective agreement either before or after provincewide bargaining constituted abandonment. In response to the assertion that Local 493 only had Timmins area and Sudbury area bargaining rights, counsel queried Why Local 493 would enter into collective agreements with a North Bay contractor which did not cover North Bay where the contractor usually worked, but did cover a portion of the geographic area over which Local 493 had jurisdiction where the contractor performed little work. He submitted that the collective agreements between Steds and Local 493 were intended to and did cover the North Bay area because Local 493 would not want Steds to operate "non-union" in North Bay (where it did most of its work) but "union" in Timmins and Sudbury (where it rarely worked.)

81. Counsel for Steds asserted that Steds was not bound to any SCA of CLRAO negotiated collective agreement. Section 52 of the Act did not apply as Steds was never a member of either organization. There was no evidence that Steds had ever given the organization authority to negotiate on its behalf. Neither was there evidence of ostensible authority. Steds name on various lists not prepared by Steds and of which it was unaware could not be a representation by Steds that the SCA had authority to act on its behalf. Neither could William Olmsted's letter be viewed as giving the SCA any authority.

82. Finally, counsel referred to the Board's decision in Marineland, supra, in support of his argument that evidence after the commencement of province-wide bargaining was corroborative of the state of affairs that existed at the time province-wide bargaining was introduced. In this instance that evidence corroborated that the trade union had abandoned its bargaining rights prior to province-wide bargaining.

The Union's Reply

83. In response to the employer's arguments with respect to delay and laches, counsel argued that the prerequisites of the application of such principle were not present in this case. He referred to Re Parking Authority of Toronto, 1974 CanLII 445 (ON HCJDC), [1974] 5 L.A.C. (2d) 150. Counsel argued that in this case there had not been any knowing acquiescence on the part of Local 493. In addition, there was no evidence of detriment to Steds or a change in position by Steds as a result of the union's conduct. Rather, Steds has had the advantage of conducting its business on a non-union basis in violation of its contractual obligations for many years (KNK Limited, Agincourt Electric, [1991] OLRB Rep. Feb. 209). He submitted that to the extent that Sleds has suffered any present detriment that matter can be considered in determining the remedy which flows from the violation of the collective agreement.

Decision

84. The principles of abandonment, laches and/or delay are separate and distinct, yet, in the circumstances of this case, they are somewhat intertwined and closely connected. In my view, the inordinate delay of Local 493 in asserting bargaining rights has prejudiced Steds. It has not, however prejudiced it to the extent asserted by Steds.

85. I find that Steds did not at any time become bound to any collective agreement negotiated by either the SCA or the CLRAO on behalf of the SCA.

86. Steds was never a member of the SCA. Moreover, the evidence does not establish that Steds ever authorized the SCA to bargain on its behalf. Although the union could perhaps originally point to Steds' name on the various lists which it has received to support its position, in the circumstances of this case I find that the viva voce evidence of Charles Olmsted is sufficient to shift an evidentiary burden of proof to the union. In light of Mr. Charles Olmsted's testimony, and in the absence of reliable and direct evidence from representatives of either the union or the SCA with respect to such matters as the notation "Okay, SCA" or "the telecon" between Mr. Ross and William Olmsted or the compilation of the lists, I am not prepared to find that Steds became bound to various collective agreements negotiated by the SCA as asserted by Local 493.

87. In the circumstances, I do not view William Olmsted's letter of March 30, 1971 as giving either actual or ostensible authorization to the SCA. The March 30th, 1971 letter is equivocal. In the absence of any evidence from Mr. Ross about the "telecon", I find the letter is no more than an agreement to apply the terms and conditions of the collective agreement between Local 493 and the SCA if Steds engaged in construction activities in Sudbury. The term "pick-up" is not synonymous with any words which indicate authorization.

88. The letter must be assessed in context and with due regard to the surrounding circumstances and the correspondence which preceded it. That evidence discloses that at the time Local 493 continued to require at least some individual contractors including Steds to sign collective agreements with the Local. That action in itself is contrary to a conclusion that the SCA had authority to bind Steds to agreements signed by the SCA. In addition, the original correspondence which requested that Steds negotiate a collective agreement and the act of sending Steds a collective agreement "Identical to what has been signed" with the SCA for signature are both inconsistent with the assertion that Steds was automatically bound to the SCA negotiated collective agreements. These actions also do not establish any representation by Steds that the SCA was acting as Steds' agent in negotiations with the union.

89. Section 52 and the cases referred to by counsel for the Labourers do not apply. All of the cases cited by counsel for the union were properly and readily distinguished by counsel for Steds. Each of those cases involve situations in which the contractor either was or became a member of the employer's organization, or where the contractor had represented that the employer's organization had either actual or ostensible authority to act on its behalf. That is not the case here.

90. Section 52(1) specifies that a collective agreement between an employer's organization and a trade union is "... binding upon the employer's organization and each person who was a member of the employer's organization at the time the agreement was entered into and on whose behalf the employer's organization bargained ...". If the employer's organization doesn't deliver a list, it is deemed to bargain on behalf of all of its members provided the trade union holds bargaining rights with respect to employees of that member. On the other hand, if the employer's organization does deliver a list which does not list all of its members for whom the trade union holds bargaining rights the employer's organization bargains only on behalf of the members on the list. For its part the trade union continues to be able to negotiate directly with member contractors not on the list. In those instances, the employer's organization has indicated that such contractor member is not one "on whose behalf it is bargaining". If the employer's organization delivers a list of members and includes on that list an employer for whom the trade union does not then hold bargaining rights, the organization can extend voluntary recognition to the union on behalf of its employer members (see for example, David Yan Construction, sup ra).

91. The employer's organization cannot, however, through the mere delivery of a list which may, through inadvertence, negligence or fraud contains the name of an employer who is not a member of the organization and on whose behalf it has not been authorized to bargain, voluntarily recognize a trade union or in some other manner bind such non-member employer. The trade union generally obtains rights either through the certification proceedings under the Labour Relations Act or voluntary recognition by an employer. A trade union cannot obtain rights with respect to an employer as a result of the unauthorized conduct of a third party. To hold otherwise would be inconsistent with the provision found in section 52(l) that the employer's organization can bind its members and those employers "on whose behalf' the employer's organization bargains.

92. The next issue therefore is whether and to what extent any of the Locals held or obtained bargaining rights outside the scope of the SCA negotiated collective agreements. That necessarily involves a determination with respect to the various agreements signed by either Charles or William Olmsted, and the arguments with respect to laches, delay and abandonment as they relate to those agreements.

93. I find that the three collective agreements signed by Steds with Local 493 are ambiguous on their face. Having regard to the entirety of those collective agreements, I find some merit in counsel for Steds' submission that there may be a difference between the recognition given to Local 493 under those agreements and the geographic scope of the collective agreement. The foremost ambiguities appearing on the face of these documents are the difference, if any, between the "recognition" and "area of agreement" provisions, the lack of any reference to the local union in Article 4 of the 1965 Timmins area collective agreement, the use of the singular "project" in that same Article, the reference to "rates of wages and working conditions" in Articles 3 and 300 of the 1967 Timmins area and 1970 Sudbury area agreements as compared to a reference to "rates of pay, hours of work and other conditions of employment" in the "recognition" articles of those same collective agreements.

94. Moreover, the evidence with respect to surrounding events and circumstances does little to resolve the ambiguity and in fact adds to it. For example, why would Sleds sign either the 1967 Timmins area or 1970 Sudbury area collective agreement when there is nothing which suggests the company was working in either of those areas at the time? If the 1965 Timmins collective agreement did not extend to cover the Sudbury area, why would Steds enter into the Sudbury area collective agreement when there is nothing to indicate that the union held bargaining rights in that area prior to 1970 and Steds was not working in the area at the time? Why would Local 493 in September 1971 apply to be certified for the Timmins area when it now asserts it held bargaining rights for that area at the time? Why would either party enter into agreements covering a limited portion of the area over which Local 493 had geographic jurisdiction in which Steds performed very little work, while ignoring that area where Steds carried out most of its activities? As I have found that the union was or should have been aware of Steds non-union activities, why was there no assertion of rights or enforcement of collective agreement obligations at least since 1973 when, according to Mr. Ross' own evidence, the collective agreement to which the union considered Steds bound covered the District of Nipissing where Steds was openly carrying out its numerous construction activities?

95. These ambiguities in the collective agreement and the evidence which has been led by both parties make it abundantly clear that extrinsic evidence from those directly involved in the various events and circumstances and the negotiation and execution of the collective agreements is required in order to properly and fairly adjudicate this matter. The passage of time and the inordinate delay of Local 493 in asserting bargaining rights however has made the presentation of that evidence impossible. Reliable, cogent evidence with respect to these matters is no longer possible due to the death of Mr. William Olmsted, a key witness, the destruction of company records in the normal course of business, and the general difficulties experienced by all witnesses required to testify about events twenty years past. Had these three collective agreements had been the only source upon which the Labourers based their claim that bargaining rights existed at the time of the commencement of province-wide bargaining, I would have dismissed this grievance by reason of delay. The passage of time and the intervening events have, in the circumstances of this case prejudiced Steds in its defence of the grievance.

96. The three collective agreements with Local 493, however, are not the only source of bargaining rights. There also exists the working agreement with Local 607 signed by Charles Olmsted and the collective agreement with Local 607 signed by William Olmsted. In the circumstances, those agreements are an independent, distinct source of bargaining rights upon which Local 493 can base its claim that Steds is now bound to the province-wide collective agreement.

97. In light of the agreement signed by William Olmsted in October 1971 I find it unnecessary to address the various issues and arguments raised with respect to the working agreement signed by Charles Olmsted. Similarly, I do not consider the Reply filed by William Olmsted in reply to Local 493's application for certification (and prior to his signing of the collective agreement with Local 607) to be of much assistance.

98. Steds has argued that because of Local 493's delay in asserting bargaining rights, it has suffered prejudice with respect to the presentation of its evidence regarding Local 607's bargaining rights or its agreement with Local 607. It refers in particular to the death of William Olmsted, who could or would testify with respect to the circumstances surrounding the execution of the October 1971 collective agreement.

99. In the circumstances, I find that Steds has not suffered the prejudice it asserts as a result of Local 493's delay. I have made that determination because the collective agreement signed by William Olmsted is clear and unambiguous. On balance I find that there is neither latent nor patent ambiguity. There is no issue, for example, with respect to recognition of Local 607 or the scope of the agreement. The collective agreement was signed by the person who was at the time President of the company. In these circumstance, extrinsic evidence, even if it were available, would not be admissible.

100. In essence, Steds' submissions with respect to delay and laches is that the Board cannot rely upon the document or assume that the parties intended the document to operate strictly and according to its clear and unambiguous terms. Counsel argues that there is a distinct possibility that had William Olmsted been alive to testify, Steds could have presented evidence to prove the agreement was not operative according to its terms. In support, counsel refers to the ambiguities and inconsistencies in other documents as well as Mr. Charles Olmsted's evidence that the working agreement he signed was intended to be a site specific agreement. He argues similar evidence might have been forthcoming from William Olmsted had he been alive to testify.

101. Notwithstanding counsel's able argument, I do not agree. In the face of the clear and unambiguous terms of the collective agreement signed by a duly authorized representative of the employer, the Board cannot simply assume that the evidence of William Olmsted is either necessary, relevant or admissible. To tread down the path which counsel for Steds urges upon the Board in this instance would undermine the certainty of written agreements entered into by duly authorized representatives of parties. If the argument were accepted, contracting parties could no longer simply rely upon documents executed years ago unless the signatories to the agreement were available to testify that the document truly means and was intended to mean what it says.

102. A board of arbitration cannot simply admit extrinsic viva voce evidence which seeks to contradict, vary or add to the written terms of a collective agreement. The parties' intentions must be ascertained from the written words they have used. In addition, boards of arbitration don't generally inquire into the reasons why a collective agreement was signed. It is only in cases where the language of the agreement is ambiguous (patently or latently) that extrinsic evidence is admissible. Evidence of statements or conduct during negotiations or at the time of signing the agreement is not generally admissible. If such evidence is not admissible in any event, Steds cannot be prejudiced by its inability at this stage to call the evidence. In my view Steds' arguments with respect to delay and prejudice in the presentation of its case do not apply to the issue as to whether Local 607 acquired and held bargaining rights.

103. There remains the issue of abandonment. Was there an abandonment of bargaining rights by Local 607 prior to province-wide bargaining?

104. The law with respect to abandonment is well settled and need not be detailed here. A clear and concise synopsis of the law can be found in the Board's decision in R. Reusse Co. Ltd., [1988] OLRB Rep. May 523, where at page 527, the Board stated:

105. 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 at., 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 is 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 Entwistle 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 employer's return to the area: John Miller & Sons Ltd., supra.

106. The facts in this case do not support a finding of abandonment by Local 607. Steds did not ever again operate in Local 607's area after the signing of the collective agreement in 1971. As such, Local 607 did not have an opportunity to assert collective agreement obligations. Nor was it required to engage in collective bargaining to renew a collective agreement for non-existent employees. There is no evidence from which it can be inferred that Local 607 was not interested in maintaining its bargaining rights.

107. 1 find therefore that Local 607's bargaining rights continued to exist when province-wide bargaining was introduced. Local 607 had not abandoned those bargaining rights and the conduct of the other locals (and in particular Local 493) which failed to assert bargaining rights although provided with ample opportunity to do so cannot be held against Local 607. Local 607 cannot be held accountable under the abandonment concept for the inactivity of the other Locals. By operation of statute, Local 607's bargaining rights were extended to the other Locals, including Local 493. Steds became bound to the province-wide collective agreement and continued to be bound to that ICI province-wide collective agreement at the time the grievance was filed.

108. Although Steds is bound to the collective agreement, that is not the end of the matter. There remains to consider the conduct of Local 493 and its delay in asserting its bargaining rights. That delay issue is separate and distinct from Steds' arguments that the delay has prejudiced it in presenting evidence that none of the locals held bargaining rights.

109. For many years Local 493 has failed to enforce its bargaining rights. By its conduct Local 493 has lulled Steds into believing certain facts, namely that it was not bound to recognize the union or work pursuant to the terms of the province-wide ICI collective agreement. On the basis of this representation by conduct, Steds developed its business. Contracts were bid and obtained, work was commenced and completed, relationships were established and terminated with employees and sub-contractors alike, while Local 493 stood by and did nothing. Relying as it did on the union's inactivity and non-assertion of either bargaining rights or a collective agreement, Steds has conducted and continues to conduct its business. In these circumstances, it would be most unfair and inequitable for Local 493 to now suddenly insist upon its strict legal rights. As a result of its conduct, I find that Local 493 is estopped in this grievance from asserting its rights pursuant to the terms of the ICI province-wide agreement. The grievance is therefore dismissed.

110. How long is Local 493 estopped from asserting rights under the province-wide agreement? The parties made brief submissions with respect to this issue. Counsel for Steds argued the estoppel is permanent. Over the course of the years Steds has developed its business in a particular fashion on the basis that it was not bound to recognize Local 493 and was not bound to the ICI province-wide agreement. He stated that decisions were made daily about the direction of the business on the basis of Steds' understanding that it was a non-union company. Those decisions are irreversible. Counsel argues in effect that the clock can't be turned back. In argument he submitted that Steds' business today would or could have been quite different if Local 493 had asserted its rights earlier. For example, Steds might not have concentrated its energies on its general contracting construction activities but might have developed its consulting engineers business instead. No evidence was led to support those submissions.

111. Counsel for the union on the other hand submitted that if Local 493 is estopped from asserting its bargaining rights, it is estopped only until the time Local 493 gave notice to Steds that it was reverting to its strict legal position and its strict legal rights. That notice came with the filing of this grievance. Thereafter Steds was aware of Local 493's assertion of bargaining rights. Alternatively, counsel argues the estoppel runs until the end of the agreement under which the grievance was filed (1988-90 collective agreement).

112. Normally a board of arbitration in adjudicating upon a grievance in which an estoppel argument is raised will go on to determine the length of that estoppel. Strictly speaking such a determination is mere obiter and unnecessary to dispose of the particular grievance before the arbitration board. Arbitrators deal with the issue however largely to assist the parties in their future conduct and continued relations. The facts and circumstances here however are quite different from the "ordinary" or "normal" estoppel cases.

113. In the unique circumstances of this case the estoppel issue and the parties' positions with respect to the length of that estoppel are inextricably tied to issues revolving around the statutory scheme of province-wide bargaining in the ICI sector, and how that scheme of bargaining has affected the principles of abandonment. The scheme of province-wide bargaining and the concept of abandonment (or in this case a permanent estoppel) of statutorily granted bargaining rights are not matters normally dealt with by arbitrators. In my view there are significant policy considerations raised by the positions of these parties when the estoppel issue is viewed against the background of province-wide bargaining. For example can or should there be an estoppel of Local 493's rights beyond this grievance when those rights exist and will continue to exist by reason of the statutory scheme and irrespective of Local 493's past conduct? Is it appropriate to rely upon "traditional" estoppel cases which determine that an estoppel may run until the expiry of a collective agreement when the parties can re-negotiate the agreement in this particular situation where the parties to the grievance are not, strictly speaking the parties that negotiate the agreement? In the circumstances was Steds required to change its practices or alter the manner in which it conducted its business merely because it received notice of the grievance? How does the conduct of one local affect the rights of the other locals also bound to the province-wide agreement?

114. In a referral of a grievance under section 126 of the Act, the Board generally acts as a

traditional board of arbitration. Empowered under the Act to hear and determine grievances in the construction industry the Board should not lose sight however of the fact that it is also an administrative tribunal established by statute to interpret, administer and enforce the Act. In exercising its jurisdiction matters are normally heard by a tripartite board consisting of a neutral vice-chair and Board members representing labour and management. These Board members have special expertise in labour relations matters and provide valuable insight and perspective in all areas including, various policy considerations which impact upon the Board's deliberations.

114. The issue with respect to the length of the estoppel raises the type of policy considerations which in my view are more appropriately dealt with by a tripartite Board.

115. In light of the policy considerations and implications I have determined not to render a decision which deals with the length of the estoppel. Rather I have adjudicated only the specific grievance referred to the Board and which because of the circumstances the parties agreed could be decided by a single vice-chair. Perhaps the parties can resolve the length of the estoppel issue as between themselves. If they are unable to do so, the issue will inevitably be raised again in any future litigation between them. At that time a tripartite Board can address the many policy considerations which surround the estoppel issues having had the benefit of hearing all relevant evidence on the issue and the full and complete submissions of the parties with respect to that evidence.

116. In the result therefore, although I have determined that Steds is bound to the province-wide ICI collective agreement, the grievance referred to the Board on November 8, 1989 is dismissed.