Labourers' International Union of North America v. Aluma Systems Canada Inc., 1994 CanLII 9895

[1994] OLRB Rep. November 1469

1066-94-G Labourers' International Union of North America, Ontario Provincial District Council on behalf of its affiliated Local Unions 183, 247, 491, 493, 506, 527, 597, 607, 625, 837, 1036, 1059, 1081 and 1089, Applicant v. Aluma Systems Canada Inc., Responding Party v. Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America and United Brother­hood of Carpenters and Joiners of America, Local 18, Intervenor

BEFORE: Gail Misra, Vice-Chair, and Board Members F. B. Reaume and G. McMenemy.

APPEARANCES: John Moszynski, Tony Neil, Robert Leone and Robert Maskey for the applicant; Michael Horan, Ian Steer and Roger Marsland for the responding party; I. James Nyman, Frank O'Reilly and Bud Calligan for the intervenor.

DECISION OF THE BOARD; November 18, 1994

1. This is a referral to the Board, under section 126 of the Labour Relations Act, of a grievance in the construction industry. At the hearing, upon the applicant's request, and with the leave of the Board, E & D Services was deleted from the style of cause as a responding party. That left UMACS of Canada Inc. as a responding party.

2. The applicant and responding party UMACS agreed that the name of this responding party had been formally changed to: Aluma Systems Canada Inc. However, since all of the docu­mentation filed referred to UMACS of Canada Inc., for the purposes of this decision, we will refer to this responding party as "UMACS" or "Aluma Systems Canada Inc.".

3. Aluma Systems Canada Inc. is the largest known supplier of rental scaffolding equip­ment in Canada. It has regional and local offices across the country from which rental and sales of forming, shoring, and access scaffold equipment occurs. With the rental of access scaffolding Aluma also offers services for the erection and dismantling of the scaffold, a service for which the customer pays. Of Aluma's total revenues of approximately $15 million, three million dollars worth is for the labour provided. Aluma spends approximately 82% of that three million dollars to pay for the labour it provides for erection and dismantling of scaffolding.

4. The applicant trade union grieves that the responding party, as a member of the Sarnia Construction Association, is bound by the ICI Collective Agreement between the Employer and Employee Bargaining Agencies. The trade union is therefore seeking a declaration that UMACS of Canada is bound by that collective agreement.

5. The collective agreement in question is the provincial collective agreement between the Labour Relations Bureau of the Ontario General Contractors Association; the Ontario Masonry Contractors Association; the Industrial Contractors Association of Canada; the Waterproofing Contractors Association of Ontario; the Concrete Floor Contractors Association of Ontario (also referred to as the "EBA" or "Employer Bargaining Agency"); and the Labourers International Union of North America and the Labourers' International Union of North America, Ontario Provincial District Council, on behalf of its affiliated Local Unions 183, 247, 491, 493, 506, 527, 597, 607, 625, 837, 1036, 1059, 1081, and 1089 (also referred to as the "union"). The term of the collec­tive agreement is May 1, 1992 to April 30, 1995.

6. The responding party denies it is bound by any provincial collective agreement with the applicant, and in the alternative, takes the position that the applicant has abandoned its bargaining rights outside of the Sarnia area. Prior to the end of the hearing UMACS withdrew its argument that the applicant had abandoned its bargaining rights outside the Sarnia area. The responding party also posits that the applicant is estopped from claiming any bargaining rights with respect to the UMACS scaffolding business outside of the Sarnia area.

APPLICATION TO INTERVENE

7. On the first day of hearing, the Carpenters and Allied Workers Local 27, United Broth­erhood of Carpenters and Joiners of America and the United Brotherhood of Carpenters and Join­ers of America, Local 18 (also referred to as the "Carpenters") appeared, having applied to be intervenors in this case. The applicant objected to their participation on the grounds that the griev­ance it had filed was only seeking a declaration that the responding party was bound by the provin­cial ICI agreement, a matter in which the Carpenters had no interest. The applicant's counsel undertook to inform the intervenor if at any time the applicant decided to arbitrate work assign­ment grievances which have already been filed against UMACS or should any other work assign­ment issues regarding scaffolding arise, related to this responding party, in which the Carpenters may have an interest.

8. After considering the submissions of all of the parties, the Board ruled orally that since the union's section 126 application was only seeking a declaration with respect to bargaining rights vis a vis this employer, the Board was of the view that the Carpenters did not have an interest which required their participation in this hearing. The Board noted for the record applicant's coun­sel's undertaking, as outlined above.

THE FACTS

9. The facts of this case were largely undisputed and are outlined below.

10. Andrew Pilat, the General Manager of the Sarnia Construction Association (also referred to as the "SCA"), gave evidence that the SCA is a constituent member of the Labour Relations Bureau of the Ontario General Contractors Association, which itself is a constituent of the Employer Bargaining Agency which negotiates with the union in this case.

11. The Sarnia Construction Association has been negotiating on behalf of its members with the union since the early 1950's, long before the 1978 advent of provincial bargaining. Prior to 1978 the SCA had a collective agreement with the applicant for work which is now recognized to be work in the ICI sector.

12. There are two categories of membership in the SCA, Associate Membership and Mem­bership. According to the Constitution of the Association, these categories are differentiated as follows:

BY-LAW NUMBER 1

MEMBERS

1. The subscribers to the Memorandum of Agreement of the Corporation shall be the first mem­bers and it shall rest with the directors to determine the terms and conditions on which subse­quent members shall from time to time be admitted.

a. There shall be two categories of membership within the SARNIA CONSTRUCTION ASSO­CIATION knows [sic] as "MEMBERS" and "ASSOCIATE MEMBERS".

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

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

c. The Directors shall decide into which category of membership an applicant organization shall be enrolled.

According to Mr. Pilat, if an associate member organization does field work, the Board of Direc­tors can determine member status for that organization. An associate member organization known to be doing work in the Sarnia area, work for which the SCA has collective agreements, would be invited to change its status from associate status to full member status, or could withdraw from the Sarnia Construction Association.

13. In 1989 Anthes Equipment Ltd. (also referred to as "Anthes") was bought by UMACS of Canada Inc. Anthes Equipment had been an associate member of the Sarnia Construction Asso­ciation since 1981. On June 1, 1983, the Branch Manager for Anthes wrote the following letter to the SCA:

"Anthes Equipment Ltd. would like to become full members of the Sarnia Construction Associa­tion, rather than our present status as Associate Member.

In the, not too distant future, we will have need to employ unionized trades people for various projects.

We hope this meets with your approval and await your reply at your earliest convenience."

[emphasis added]

14. By the following letter dated June 14, 1983, full membership in the SCA was approved:

'This will advise that the Directors of the Sarnia Construction Association have approved your request of June 1, 1983 to change the membership of Anthes Equipment from "Associate Mem­ber" to a "Member" with full status in the Sarnia Construction Association.

You are reminded of the requirements of the Bylaws of the Association, and the extract of the Bylaws printed on the application form enclosed herein for your information. As a Member of the Association you are party to, and bound by, the terms and conditions of all collective agreements negotiated through the Association on behalf of all members."

[emphasis added]

15. Thereafter, Anthes renewed its full member status in the Sarnia Construction Associa­tion annually until 1989. By a letter dated April 20, 1989, the SCA was informed that Anthes had been purchased by UMACS. In November 1989 UMACS of Canada Inc. renewed Anthes' mem­bership in its own name and indicated it would be sending one representative to the Association. The membership form contains the following paragraph under which the UMACS representative affixed his signature:

I do hereby state my willingness to cooperate with, and be governed by the laws and rules of the SARNIA CONSTRUCTION ASSOCIATION, and agree not to participate in any unfair busi­ness practices, and also unite with the section of each trade in which I am an employer and cooperate with said group.

SIGNED BY (name illegible)

(cheque to be attached - payable to SCA.)

16. On June 22, 1990, Robert Leone, Business Manager for the Labourers' Local 1089, wrote to UMACS to inform the employer of changes to the collective agreement and the new wage schedule for the Labourers. Included in that letter was detailed information regarding the "LAB­OURERS' ICI WAGE SCHEDULE".

17. By a letter dated October 11, 1990, Mr. Pilat, in his position as General Manager of the SCA, wrote to UMACS of Canada Inc. and informed them that "under the terms of the Provincial ICI and Local Maintenance Collective Agreements with the Labourers' International Union of North America, Local 1089" (emphasis added), they were required to make contributions to the group RRSP which had been established for union members.

18. UMACS renewed its full membership in the Sarnia Construction Association for 1991, 1992, 1993, and 1994. In each year the membership renewal form contained the paragraph outlined in paragraph 14, above, and was signed by a representative for UMACS. The company's name appeared every year in the "Membership List and Trade Directory" for the Sarnia Construction Association as a member of the Association.

19. The establishment of a Labour Relations Council of the SCA is authorized by section 21 of the Association's By-Law Number 1:

20. LABOUR RELATIONS COUNCIL

There shall be established as part of the Corporation, a Labour Relations Council. The objects of the Labour Relations Council shall be -

(a) Firstly; to regulate all negotiations, and to direct all negotiations, in a manner that the Coun­cil may from time to time decide. Each employer, party to any collective agreement, is bound by the decisions of the Labour Relations Council.

(b) Secondly, to regulate all labour relations matters during the term of each agreement.

(c) The Council shall comprise of representatives in the same number as each category specified for representation to the board of directors, except that the Associate Membership category may not be represented. The original establishment of the Council shall be by the Directors, who shall appoint to the Council, in consultation with representatives of each category the chair­man of each management bargaining committee, plus others as required.

20. The Sarnia Construction Association, pursuant to its authority in By-Law Number 1, authorizes a Labour Relations Council to act as follows:

3.1 (a) The Labour Relations Council of the Sarnia Construction Association, or any group to whom they delegate authority, shall have the right to deal with all matters having to do with any area of Labour Relations, related to any of the members of the Sarnia Construction Associa­tion, and any and all groups, companies, firms, corporations, syndicates, or associations who would be covered by any certificate of Accreditation given the Sarnia Construction Association, or the organization they have named. However this does not deny the right of any member organization to belong to a regional or provincial accredited group.

(b) The Corporation shall seek, in its own name, or in the name of any body or group to whom they delegated proper authority, certificates of accreditation for any Area and Sector covering any trade union, council of trade unions, or combination of trade unions, as it may from time to time decide.

[emphasis added]

21. As mentioned earlier, the Sarnia Construction Association is a member of the Labour Relations Bureau of the Ontario General Contractors' Association. As such, it is governed by the by-laws of the Bureau. According to Jim Thomson, the General Manager of the Labour Relations Bureau, the Bureau was set up after the advent of province-wide bargaining to represent the gen­eral contractors and some trade contractors who had been negotiating collective agreements at the local level prior to provincial bargaining. There are presently fourteen geographic areas which have membership in the Bureau. The Bureau is one of the constituents in the designated Employer Bargaining Agency. Article 1 of By-Law Number 1 of the Labour Relations Bureau defines what the Bureau is responsible for:

22. The Bureau shall be responsible for the regulation of all labour matters, which are defined as matters involving the representation of employers under the Labour Rela­tions Act, involving local employer organization members of the Bureau and employ­ers for whom the Bureau has a right to represent in labour matters. The Bureau shall in its own name be an employers' bargaining agency for employers in any geographical area or areas, or part thereof which includes all or part of the Province of Ontario for the industrial, commercial and institutional sector of the construction industry with any trade union, council of trade unions or combinations of trade unions and each member of the Bureau who is affected shall be deemed to have authorized the Bureau to act on its or his behalf

[emphasis added]

Local employer organization members of the Bureau have representation on the Steering Commit­tee of the Bureau and on bargaining committees for each set of negotiations (Article 6). Sarnia, pursuant to Article 6, is named as having one vote. Members of the Steering Committee must rat­ify, by a simple majority, any settlement reached by a negotiating committee. The General Man­ager of the Bureau and any duly authorized persons execute labour agreements reached by the Bureau. Agreements signed in the name of the Bureau are deemed to be binding on the Bureau and upon all members of the Bureau for whom it was authorized to negotiate (Article 7).

22. According to Mr. Pilat, he has participated, along with others from the Sarnia Con­struction Association, in every round of negotiations since 1980 for the Master Portion of the pro­vincial ICI agreement with the Labourers. He has done so as a representative of a constituent member of the Labour Relations Bureau. The SCA representatives who will participate in the bar­gaining are chosen at the local level at a Sarnia Construction Association Labour Relations Council meeting. The SCA representatives hold regular meetings during negotiations to inform their own members of what is happening in the negotiations. UMACS, as a member of the SCA, can send one delegate or an alternate to the Labour Relations Council meetings.

23. In addition to participating in negotiations for the Master Portion of the ICI agreement, the Sarnia Construction Association negotiates its own local schedule with Local 1089 (also referred to as the "Local 1089 Schedule"). These negotiations are conducted subject to the ratifica­tion provisions of the constitution of the Labour Relations Bureau of the Ontario General Con­tractors Association, the Employer Bargaining Agent for the SCA.

24. Mr. Pilat indicated it was not uncommon for a contractor in the Sarnia area to be bound by collective agreements for both the Carpenters and the Labourers in respect of scaffolding work. It was not disputed that where both carpenters and labourers work together on scaffolding work, they tend to work in a ratio of two carpenters for every labourer.

25. The Sarnia Construction Association, after the advent of provincial bargaining and the Employer Bargaining Agent (also referred to as the "EBA") designations, does not sign the Mas­ter Portion of the ICI collective agreement in its own name and title. Rather, as a member of an Employer Bargaining Agent, the Labour Relations Bureau, it is deemed bound by that EBA. The SCA does sign a local Construction Maintenance Work agreement with Local 1089 in its own name and title. Mr. Pilat explained that when contractors join the Sarnia Construction Association as full members the Association explains to them that they are assigning their bargaining rights to the Association. They are told they will be picking up the provincial ICI agreement and are told what trades are affected by the agreements which the SCA is a party to. That is also apparently the pur­pose of the explanation in the letter sent to Anthes when it joined the Association as a full member (referred to above in paragraph 14).

26. The local Construction Maintenance Work agreement entered into by the SCA is authorized by the Master Portion in Article 7.03 as follows:

7.03 IN-PLANT REPAIR AND RECONSTRUCTION

For in-plant construction work defined as repair and reconstruction, it is understood that the Local Union and the Local Employers Group or Trade Association may adopt special condi­tions by mutual agreement in writing regarding hours of work, overtime, travel allowance and other working conditions on a project basis to better enable them to provide service to specific industrial in-plant sites where it is mutually advantageous. Any such Agreement will be in writ­ing between the Local Union having jurisdiction in the area of the project or projects and the Local Construction Association or trade association which is a party to the trade appendices of this Collective Agreement.

27. The Sarnia Construction Association and Labourers' Local 1089 reached the local agreement to cover in-plant repair and reconstruction work in all local industrial plants covered by the Master Portion of the ICI agreement. This local agreement does not apply to new construction, but only to maintenance-oriented repair and reconstruction work and is negotiated locally as part of the ICI agreement, under the aegis of the EBA.

28. Bob Leone, the Business Manager of Local 1089, indicated that UMACS has continued to employ members of his local in the Sarnia area since the middle of 1989, when UMACS took over from Anthes. Those labourers were employed tending carpenters in the erection and disman­tling of scaffolding. To Mr. Leone's knowledge, UMACS has paid wages to those employees, and has made contributions to the union on behalf of the labourers, in accordance with the ICI agree­ment and the Local 1089 schedule. The union only supplies labourers to those companies with which it has collective agreements. Such employers may be part of the Sarnia Construction Associ­ation or not, but are all bound by the ICI agreement.

29. Tony Neil, an Assistant Business Manager for the District Council of the Labourers, has responsibilities for the ICI sector and for demolition. When he took over his present job in September 1993, he began updating the union's files on its bargaining rights and checked whether the collective agreements the union had with employers were being complied with. When he checked on UMACS, it became apparent that UMACS had only made remittances and pension contributions in the Local 625, Windsor area, and in the Local 1089, Sarnia area. After checking with Mr. Leone, the Business Manager for the Sarnia local, he found that the basis for the bargain­ing rights in the Sarnia local were through UMACS' full membership in the Sarnia Construction Association. The obligations which flow from full membership in the SCA have been outlined above.

30. Mr. Neil reported his finding, that UMACS was bound to the provincial ICI agreement, at a District Council Delegate meeting and informed the Business Managers across the province that the union had bargaining rights with respect to UMACS and that they should assert those bar­gaining rights. On February 28, 1994, Mr. Neil filed the first grievance asserting bargaining rights on behalf of a Local other than the Windsor or Sarnia locals. It was uncontroverted that UMACS had not recently utilized Labourers' members anywhere except in the Windsor and Sarnia areas.

31. The evidence of contributions made in the Windsor area was limited to two instances of contributions being made on two occasions in 1991, for unspecified work.

32. According to Ian Steer, the Ontario Regional Manager for Aluma Systems Canada Inc., people are hired for the erection and dismantling of scaffolding on an "as needed" basis through the hiring halls. Medium-sized locations have a working supervisor on staff at all times and that individual would supplement his workforce as necessary. Aluma Systems has had a province-wide collective agreement with the Carpenters since around 1986. In the Toronto and Hamilton areas the employer has only used carpenters and their apprentices, and has not utilized any labour­ers. To Mr. Steer's knowledge, the London area office also uses carpenters and carpenters' apprentices, except for the two occasions in Windsor of which he was made aware at the hearing.

33. Mr. Steer indicated that the Sarnia area had always been treated differently as both car­penters and labourers were hired there to do the erection and dismantling work. According to him, most of the work in the Sarnia area is inside chemical plants. The practice was to hire labourers to fetch, carry, lift, and hand pieces to the carpenters who actually erect the scaffold. He confirmed that the ratio of hiring was one labourer for every two carpenters hired, and did not dispute that when working for UMACS, labourers were likely paid in accordance with the Local 1089 Schedule in the ICI agreement. Mr. Steer indicated that the Carpenters had bargaining rights through the certification process, but to his knowledge there was no certificate or voluntary recognition agree­ment with respect to the Labourers.

34. According to Mr. Steer, the Sarnia office is a small office and is therefore a training ground for new managers who tend to come there for short periods of tenure. He accepted that his managers had called both the Sarnia Construction Association and the union to find out what the practice was with respect to hiring for the erection and dismantling of scaffolding. While Mr. Steer maintained his managers only followed the local practice, he was not aware of any manager in Sar­nia indicating to anyone that UMACS was not bound by the collective agreement with the Labour­ers.

35. Mr. Leone indicated he had been called by Mr. Jack MacDowell, a Sarnia UMACS employee, on a number of occasions for clarification of clauses of the collective agreement. Mr. Steer suggested in his evidence that Mr. MacDowell was not a person with authority in the Sarnia office as he was the working foreperson and estimator for jobs. However, it is clear that Mr. Mac­Dowell was the UMACS alternate voting member to the Sarnia Construction Association. Mr. MacDowell was not called as a witness.

36. According to Mr. Steer, his managers did have the authority to bind the corporation in labour relations matters and to deal with the Sarnia Construction Association, and they did renew their full membership in the Association every year after UMACS bought Anthes.

37. UMACS called Brian Forester, the Erection and Dismantling Supervisor for the Toronto and Hamilton areas, as a witness. He is responsible for the hiring and termination of all of the staff in the erection and dismantling area, manages the job sites, and does some estimating. Mr. Forester had worked for Anthes in the Toronto and Hamilton areas from 1986 to 1989 as a scaffolder and then as a scaffold foreman. He recalled that in 1986 and 1987 Anthes was using lab­ourers on its job sites but then stopped doing so. Although Mr. Forester gave some evidence of having worked "up north" while employed at Anthes, he gave no indication of where this work was or how far up north he was referring to. He also referred to some hearsay in testifying to the use of labourers "up north". We decline to accept his evidence on work outside of the Toronto and Hamilton areas as it lacked specificity and was of a hearsay nature.

THE ARGUMENTS

38. The union argued that Aluma Systems Canada Inc., and its predecessors UMACS and Anthes, were all bound by the by-laws of the Sarnia Construction Association by virtue of their full membership in that Association. The union relied on the decision in Great Lakes Fabricating, [1982] OLRB Rep. June 872, wherein the Board found that full membership of Great Lakes Fabri­cating in the Sarnia Construction Association meant that employer was bound by the by-laws of the SCA and therefore the employer was bound to the collective agreements reached by the SCA. The Board found this was the case even though Great Lakes Fabricating did not itself have a certif­icate with the union in question and did not itself have a collective agreement with that union.

39. The distinguishing feature of the Great Lakes Fabricating case, however, is that the Board there specifically found that the employer had been a full member of the SCA since 1961, and that the Sarnia Construction Association had bargained on behalf of its members with the civil trades prior to the advent of province-wide bargaining in the construction industry in 1978.

40. In pointing to the similarities between the Great Lakes case and the one before us, the union indicated that UMACS has been a full member of the Sarnia Construction Association, it has permitted the SCA to bargain on its behalf, and, in Sarnia and Windsor it has observed the col­lective agreement which binds the SCA and its members to the Labourers' Union. In accordance with sections 52(1) and 52(2) of the Labour Relations Act, the union argues the Sarnia Construc­tion Association bargained with the Labourers, it gave the union a list of the names of the employ­ers on whose behalf it was bargaining (including UMACS), and UMACS never indicated to the union it was NOT bound by the collective agreement reached between the employers' organization and this trade union. In any event, the union argued that the SCA also signed the local Construc­tion Maintenance Work agreement in its own name and title and UMACS has accepted and adhered to that agreement.

41. Although the union referred the Board to section 52 of the Act, this section does not apply to a designated or accredited employer bargaining agency nor to a designated or certified employee bargaining agency. However, section 149 of the Act does apply, and it states as follows:

149.-(l) Section 52 does not apply to a designated or accredited employer bargaining agency or a designated or certified employee bargaining agency.

(2) A provincial agreement is, subject to and for the purposes of this Act, binding upon the employer bargaining agency, the employers represented by the employer bargaining agency, the employee bargaining agency, the affiliated bargaining agents represented by the employee bar­gaining agency, the employees represented by the affiliated bargaining agents and employed in the industrial, commercial and institutional sector of the construction industry referred to in the definition of "sector" in section 119, and upon such employers, affiliated bargaining agents and employees as may be subsequently bound by the said agreement.

(3) Any employee bargaining agency, affiliated bargaining agent, employer bargaining agency and employer bound by a provincial agreement shall be considered to be a party for the pur­poses of section 126.

42. The union also relies on section 139(2) of the Labour Relations Act for the proposition that when the Sarnia Construction Association bargains with the trade union, it does so pursuant to the constitution of the Labour Relations Bureau, a designated employer bargaining agent. Since UMACS is represented in provincial bargaining by a designated employer bargaining agent, it is bound to the product of that bargaining, the provincial ICI collective agreement (sections 145 and 149(2) and (3) of the Act). Pursuant to section 148 of the Act, there can be only one provincial agreement for each provincial unit which is represented by an employer and employee bargaining agency.

43. For ease of reference, the sections of the Act relied on by the union are outlined below:

139.-(l) In this section and in sections 137 and 140 to 155,

"affiliated bargaining agent" means a bargaining agent that, according to established trade union practice in the construction industry, represents employees who commonly bargain sepa­rately and apart from other employees and is subordinate or directly related to, or is, a provin­cial, national or international trade union, and includes an employee bargaining agency; ("agent negociateur affilie")

"bargaining", except when used in reference to an affiliated bargaining agent, means province-wide, multi-employer bargaining in the industrial, commercial and institutional sector of the construction industry referred to in the definition of "sector" in section 119; ("negociation")

"employee bargaining agency" means an organization of affiliated bargaining agents that are subordinate or directly related to the same provincial, national or international trade union, and that may include the parent or related provincial, national or international trade union, formed for purposes that include the representation of affiliated bargaining agents in bargaining and which may be a single provincial, national or international trade union; ("organisme negociateur syndical")

"employer bargaining agency" means an employers' organization or group of employers' orga­nizations formed for purposes that include the representation of employers in bargaining; ("or­ganisme ndgociateur patronal")

"provincial agreement" means an agreement in writing covering the whole of the Province of Ontario between a designated or accredited employer bargaining agency that represents employers, on the one hand, and a designated or certified employee bargaining agency that rep­resents affiliated bargaining agents, on the other hand, containing provisions respecting terms or conditions of employment or the rights, privileges or duties of the employer bargaining agency, the employers represented by the employer bargaining agency and for whose employees the affiliated bargaining agents hold bargaining rights, the affiliated bargaining agents represented by the employee bargaining agency, or the employees represented by the affiliated bargaining agents and employed in the industrial, commercial an institutional sector of the construction industry referred to in the definition of "sector" in section 119. ("convention Provinciate")

(2) Where an employer is represented by a designated or accredited employer bargaining agency, the employer shall be deemed to have recognized all of the affiliated bargaining agents represented by a designated or certified employee bargaining agency that bargains with the employer bargaining agency as the bargaining agents for the purpose of collective bargaining in their respective geographic jurisdictions in respect of the employees of the employer employed in the industrial, commercial or institutional sector of the construction industry, referred to in the definition of "sector" in section 119, except those employees for whom a trade union other than one of the affiliated bargaining agents holds bargaining rights.

145. Where an employer bargaining agency has been designated under section 141 or accredited under section 143 to represent a provincial unit of employers,

(a) all rights, duties and obligations under this Act of employers for which it bargains shall vest in the employer bargaining agency, but only for the pur­pose of conducting bargaining and concluding a provincial agreement; and

(b) an accreditation heretofore made under section 129 of an employers' orga­nization as bargaining agent of the employers in the industrial, commercial and institutional sector of the construction industry, referred to in the defi­nition of "sector" in section 119, represented or to be represented by the employer bargaining agency is null and void from the time of such designa­tion under section 141 or accreditation under section 143.

44. The union argues that the scheme of the Act does not permit an employer to be bound by the provisions of a provincial ICI agreement in only one part of the province and that the action of UMACS is therefore prohibited. Counsel drew the Board's attention to the correspondence between Anthes and then UMACS, and the SCA, which reminded the employer of the SCA by­laws and that the employer was bound by all the collective agreements reached by the Association on behalf of its members.

45. In arguing for its position, the union relied on the Board's decision in C.H. Heist Ltd., [1992] OLRB Rep. June 677, which it argued was similar to the case before this panel. In that case, the Carpenters' Union asserted that the employer was bound to the Carpenters' provincial collec­tive agreement by virtue of the employer's full membership in the Sarnia Construction Associa­tion. The employer denied that the union held bargaining rights or that the employer was bound by any collective agreement with the union. Membership in the SCA was defined then exactly as it is in the case before this panel of the Board. C.H. Heist Ltd. had been a member of the SCA prior to the SCA entering into a collective agreement with the carpenters in 1975. Heist had therefore also been a member of the Sarnia Construction Association prior to the advent of the province-wide collective bargaining scheme for the ICI sector in 1978. The Board accepted that the employer was a member of the SCA, it had been listed for many years in the SCA Trade Directory, and the employer had never denied that it was bound by the Carpenters' provincial collective agreement until the instance which was the subject of the grievance before the Board. The Board therefore decided that the employer was bound by the provincial ICI agreement reached by the employer bargaining agency and the Carpenters' Union.

46. The union's alternative argument was that if UMACS is arguing it is only bound by agreements made in the name and title of the Sarnia Construction Association, then the local Con­struction Maintenance Work agreement is such an agreement. However, the union argues, the local Construction Maintenance Work agreement has a "pick-up" clause in Article 4 which acts to bind the employer to the ICI agreement for all new construction in the Sarnia area. Since an employer cannot be bound to an ICI agreement in only one part of the province, the union argues

that the employer is bound to the ICI agreement generally. The relevant portions of Article 4 are outlined below:

4.01 Maintenance work is work performed by replacing or renovating (commonly known as repair work) of existing facility within a plant so as to keep it in efficient operating condition (but excluding adding of new equipment) which is covered by Article 4.02.

4.02 The scope of this agreement shall not apply to work performed by the employer of a new construction nature which is work required to erect new facilities in which event the work shall be performed in accordance with the provisions of the prevailing con­struction agreement.

4.04 Where the term "prevailing construction agreements" is used herein, it shall mean those provincial construction agreements entered into between the respective Employer Bargaining Agency, and Councils of Union, as they apply to Lambton County.

47. The responding party argued that there were no bargaining rights held by the applicant in this case, and in the event that the Board finds that there are such rights, all of the locals other than the Sarnia local are estopped from advancing those rights.

48. The main argument made on behalf of the employer is that neither it, nor its predeces­sor, Anthes, were members of the Sarnia Construction Association at or prior to the introduction of province-wide bargaining, and that therefore any arrangements concluded by the Sarnia Con­struction Association since 1978 cannot be in the ICI sector as such arrangements are not in the name or title of the Sarnia Construction Association, which, the responding party argues, is all the SCA by-law permits. Despite the repeated renewals of membership in the Sarnia Construction Association, UMACS argues that its obligations cannot go any further than what the Sarnia Con­struction Association can legally do, and the SCA cannot sign an ICI agreement in its own right because it is not a designated employer bargaining agent.

49. The employer argues that the local Construction Maintenance Work agreement reached in the name and title of the SCA does not dovetail with the ICI agreement because it was not the type of agreement envisaged by Article 7.03, it is not a site-specific, project-specific agreement for in-plant repair and reconstruction work. To the extent that it purports to be an ICI-related collec­tive agreement, the employer argues it must be null and void as there can be only one provincial ICI agreement, the Master Agreement.

50. UMACS posits that it gave the SCA limited bargaining authority when it became a full member of the Association as it could only give it authority to bargain for collective agreements for non-ICI work. Since the SCA was not a designated employer bargaining agent after 1978, it could not bargain for an ICI agreement. The UMACS position is therefore that the SCA could not con­fer its bargaining authority for post-1978 full members to an EBA, since it did not have that authority any longer. Great Lakes Fabricating, cited above, and C. H. Heist Ltd., cited above, are therefore seen as of little assistance to the Board in deciding this matter.

51. The employer relied on two excerpts from legal texts for the proposition that while the Sarnia Construction Association may be seen as the agent for UMACS, the Employer Bargaining Agency has no strict agency relationship with UMACS and therefore cannot bind the employer to the provincial ICI agreement. The union countered this argument by suggesting that the Sarnia Construction Association was very clear with its new members and renewing members that they were delegating their collective bargaining authority to the SCA and that the members were going to be bound by the collective agreements. Each member was given a delegate and alternate posi­tion so that they could participate in the negotiation process, and UMACS was no exception.

52. The other argument made by UMACS is that it has simply observed the terms of the ICI agreement in the Sarnia area, but it has had no legal obligation to do so.

53. On the issue of estoppel, UMACS argues that the union has not asserted its rights any­where except in Sarnia for twelve years. The employer suggests that the evidence with respect to Windsor is of no assistance to the Board. UMACS, during that period, has adhered to a provincial agreement with the Carpenters' Union and has utilized carpenters for all of the scaffolding erection and dismantling work outside of the Samia area. It therefore envisages 25 jurisdictional disputes if the Board should find that the employer is bound to the provincial ICI agreement. Since neither party has felt bound by or guided by the provincial ICI agreement for twelve years, the employer argues the Board should not now change the status quo.

54. The further prejudice argued by the employer is that if the employer had been put on notice by the trade union earlier with respect to the broad bargaining rights it claimed, UMACS could have resigned from the Sarnia Construction Association and avoided such an obligation.

55. According to the responding party, an estoppel should run for an indefinite period, and at a minimum, beyond the time of the negotiation of the next collective agreement. This would be an attempt to put the employer back in the position it would have been in but for the union's non-assertion of its rights until this late stage when this employer has an established practice of giving its work to carpenters and their apprentices.

56. The union counters the employer's request for an endless estoppel, arguing that the employer cannot show any detrimental reliance resulting from the limited declaration the union is seeking in this proceeding. In any event, the union posits that the employer cannot claim it needs an endless, or twelve-year estoppel, since Anthes is known to have used labourers at least until 1987, on Mr. Forester's evidence. In addition, the estoppel should not be supported everywhere except in Sarnia as there is evidence of UMACS employing labourers in the Windsor area. The union queries whether there can be any detrimental reliance in this case since neither the union nor the employer was aware of the broad bargaining rights held by the union. The union did not know­ingly fail to assert its strict legal rights, and the employer could not therefore argue any detriment, except to accept that it had the commercial advantage of avoiding an obligation for the period in question.

DECISION

57. We have carefully considered all of the evidence and the submissions of the parties in arriving at our decision. The evidence indicates that Anthes became a full member of the Sarnia Construction Association in the full knowledge that it would then become bound to collective agreements. In its letter requesting full membership, it indicated it would be needing "to employ unionized trades people for various projects". When the SCA accepted Anthes as a full member, it reminded Anthes, in writing, of the requirements of its by-laws and indicated to Anthes that as a member Anthes was "party to, and bound by, the terms and conditions of all collective agreements negotiated through the Association on behalf of all members" (emphasis added). Thus the SCA put Anthes on notice that pursuant to the SCA by-laws it would be a party to and bound by all the col­lective agreements entered into through the Sarnia Construction Association. From the evidence before us, it appears that Anthes did apply the Labourers' ICI agreement both in Sarnia and in areas outside of Sarnia at least until 1987.

58. The responding party did not dispute that in 1989 UMACS stepped into the shoes of Anthes. UMACS thereafter maintained full member status in the Sarnia Construction Association and representatives of UMACS annually renewed the company's membership. The annual membership renewal form required member organizations to indicate that they stated their willingness to be governed by the "laws and rules of the SARNIA CONSTRUCTION ASSOCIATION", and UMACS representatives complied by signing the form and paying the full membership fee.

59. The responding party admitted it had applied the Construction Maintenance Work agreement between the SCA and Local 1089 in the Sarnia area, had complied with the area prac­tice of employing one labourer for every two carpenters hired, and the uncontroverted evidence was that its representatives had called the SCA and Local 1089 representatives for clarification of the collective agreements over the years. We find on the evidence that by virtue of its membership in the Sarnia Construction Association, UMACS was bound by the Construction Maintenance Work agreement between the SCA and Labourers' Local 1089.

60. The Sarnia Construction Association, by virtue of Article 3.1(a) of its by-laws, contem­plates that the Labour Relations Council of the SCA, has the power to delegate its authority to deal with all matters having to do with any area of labour relations to "any group". Article 3.1(b) of the by-laws allows the corporation of the SCA to, in its own name or "in the name of any body or group to whom [it] delegated proper authority", to seek certificates of accreditation for any area or sector covering any trade union.

61. There was no dispute about the SCA's membership in the Labour Relations Bureau of the Ontario General Contractors' Association, the designated Employer Bargaining Agency for province-wide bargaining. The by-laws of the Labour Relations Bureau indicate clearly in Article 1 that "each member of the Bureau who is affected shall be deemed to have authorized the Bureau to act on its or his behalf'. Article 6 of the Bureau by-law names Sarnia as having one vote on the Bureau Steering Committee. Pursuant to Article 7 of the Bureau by-laws, agreements signed in the name of the Bureau are deemed to be binding on the Bureau and upon all members of the Bureau for whom it was authorized to negotiate.

62. It is the Labour Relations Bureau of the Ontario General Contractors' Association, with the participation of the Sarnia Construction Association, and others, which negotiates the provincial ICI agreement in question here. After the advent of province-wide bargaining the SCA could no longer enter into an ICI agreement in its own name and title because it was not a desig­nated EBA. However, it could, and did, join with other local construction associations and, through the Labour Relations Bureau of the designated EBA, have a voice in province-wide bar­gaining. The post-1978 bargaining scheme did not allow individual employers to bargain separately for a province-wide collective agreement (a "provincial agreement", cf. section 139(1)), so that a company like UMACS could not on its own bargain for such an agreement. It can, however, have meaningful input into the bargaining of the provincial agreement, by becoming a member of the entity that does bargain the provincial agreement for employers across the province. UMACS did so in the customary way, by joining a local employer or contractor organization, which in turn is a member of the EBA. Membership in the Sarnia Construction Association entails being tied to the collective agreements entered into by the SCA. At the next level, since the SCA is a constituent member of the Labour Relations Bureau, all members of the SCA are bound by the provincial col­lective agreements entered into by the Labour Relations Bureau.

63. Mr. Thomson, the General Manager of the Labour Relations Bureau, indicated that the Construction Maintenance Work agreement entered into by the SCA, is a part of the ICI agree­ment and is entered into under the aegis of the Employer Bargaining Agency. Such an agreement is contemplated by Article 7.03 of the Master Portion of the ICI agreement with the Labourers.

64. As indicated earlier, the responding party was bound to the local Construction Mainte­nance Work agreement through its membership in the Sarnia Construction Association. Similarly, through the SCA's membership in the Labour Relations Bureau, the responding party is bound to the provincial ICI agreement with the Labourers' International Union of North America.

65. We do not accept the responding party's argument that since it, and its predecessor Anthes, became a member of the SCA after the advent of province-wide bargaining, therefore it could only cede its non-ICI bargaining rights to the Association. By virtue of the 1978 amendments to the bargaining schemes in the construction industry, local associations like the Sarnia Construc­tion Association were given the opportunity to participate in province-wide bargaining through designated Employer Bargaining Agencies. The SCA took advantage of that opportunity and became a constituent member of the Labour Relations Bureau. Thereafter, the SCA members were bound by the ICI agreements reached by the designated EBA, and the Sarnia Construction Association regularly reminded all its members of their obligations as full members of the Associa­tion. The SCA also indicated specifically to new members, including Anthes in 1983, that they were bound by all collective agreements negotiated through the Association on behalf of its mem­bers.

66. We adopt the findings made by the Board in Great Lakes Fabricating, cited above, wherein the Board held it was not necessary for the applicant to have been certified as the bargain­ing agent for the employees of Great Lakes Fabricating for the employer to be bound to the collec­tive agreement with that bargaining agent. The Board found in that case that full membership in the Sarnia Construction Association meant that the employer was bound by the SCA by-laws and was bound to the collective agreements reached by the SCA. Having found that UMACS is also bound by the by-laws of the SCA, we have no difficulty finding that even though the Labourers do not have a certificate with UMACS and have not been directly voluntarily recognized as the bar­gaining agent for UMACS employees, nonetheless, this employer is bound by the provincial ICI collective agreement. In any event, section 139(2) of the Act deems that an employer, who is rep­resented by a designated or accredited employer bargaining agency, has recognized all of the affili­ated bargaining agents represented by an employee bargaining agency with whom that employer bargaining agency is negotiating, for employees working in the ICI sector. By virtue of section 145 of the Act, a designated or accredited employer bargaining agent is vested with all the rights, duties, and obligations under the Labour Relations Act of the employers it represents for the pur­pose of conducting bargaining and concluding a provincial collective agreement.

67. Having decided this matter as outlined above, we do not need to address the applicant's alternate argument that the local Construction Maintenance Work agreement has a "pick-up" clause which acts to bind the employer to the provincial ICI agreement.

68. Since the Act does not allow an employer being bound by the provincial ICI agreement in only one area of the province, UMACS, if bound in Sarnia, is bound in the whole province of Ontario. As we have found that UMACS is bound to the provincial ICI agreement, it is necessary to determine the estoppel issue raised by the responding party.

69. We agree with the responding party that the union's evidence with respect to the Wind­sor area is of little assistance to us in determining the extent of the estoppel. However, we do not agree with the responding party that the Board should impose an indefinite period for the estoppel to run, or alternatively, that the Board should impose an estoppel until after the next provincial ICI collective agreement has been concluded. The Board finds the suggestion of an indefinite estoppel untenable in this case, as such an estoppel would be more akin to a penalty, which is unwarranted. The purpose of an estoppel running till the end of a collective agreement is that the parties can then be in a position to bargain for changes to the collective agreement, which they may have been deprived of doing mid-term in the agreement when one party had decided to revert to the application of its strict legal rights.

70. However, we are not disposed to this result. First, the provincial bargaining scheme is such that it is unlikely UMACS could itself have any meaningful negotiations directly with the Lab­ourers' Union at the end of the term of the present ICI agreement. But, more significantly, estop­pel is an equitable concept utilized in appropriate circumstances to fashion a fair and appropriate remedy. Here, there is little reason to immunize the employer from its legal obligations until the agreement has expired. All that is truly "suffered", because of the union's lack of insistence on its legal rights, is that UMACS has been able to conduct affairs without regard to the provincial agreement. Once on notice that the union will be insisting on its legal rights, and thus once in a position to make informed decisions about future costs and methods of operating, there appears to be little reason to decline to apply the terms of the provincial agreement. We therefore see no vir­tue in imposing an estoppel to run to the end of the present ICI collective agreement.

71. The responding party was put on notice of the province-wide claims of the union when the union filed its first grievance in early 1994. However, the union chose not to pursue that griev­ance, or another grievance filed in April, 1994. The grievance which is the subject of this case was filed on June 27, 1994. Hence, since at least June, UMACS has known of the union's claim. This matter did not come on for hearing until the end of September 1994. We have considered the amount of time that UMACS has known about its alleged obligation under the provincial ICI agreement, and the absence of any cogent evidence of prejudice to UMACS as a result of the union's failure to assert its provincial bargaining rights. The one area of prejudice which was asserted by counsel for UMACS which we would like to address is the assertion that had UMACS known of the bargaining rights sooner, it could have withdrawn from membership in the Sarnia Construction Association. Being bound by the terms of a collective agreement is not like joining a club - one cannot simply withdraw whenever one no longer wants to participate. We cannot see how, if UMACS had found out earlier, it could have extricated itself from being bound by the col­lective agreements entered into through the Sarnia Construction Association. In our view, it was UMACS' responsibility, prior to making its purchase of Anthes Equipment, to make whatever inquiries were necessary to find out what obligations and employment relationships Anthes had, and what UMACS would inherit if it purchased that company. There is no dispute that Anthes was the predecessor employer to UMACS. Since Anthes was the predecessor employer bound, through the SCA, by the provincial ICI collective agreement with the Labourers, so UMACS step­ped into the shoes of Anthes as the successor employer. Withdrawing from membership in the Sar­nia Construction Association would not have negated UMACS' relationship to the Labourers.

72. In this case, we are of the view that the appropriate time frame for the estoppel is in ref­erence to the date of issuance of this decision. Thus, any contracts which UMACS had bid on or any projects commenced prior to the date of this decision may be completed in the manner to which the employer had already committed. However, any work tendered and received after the date of this decision would have to be done in compliance with the responding party's obligations under the provincial ICI agreement with the Labourers' International Union of North America. Our intent is that the terms of the agreement are to be applied to work obtained after the issuance of this agreement.