United Brotherhood of Carpenters and Joiners of America Local 785 v. Toronto Dominion Bank, 1995 CanLII 9905

[1995] OLRB Rep. May 686

3178-91-G United Brotherhood of Carpenters and Joiners of America Local 785, Applicant v. Toronto Dominion Bank, Responding Party

BEFORE: Louisa M. Davie, Vice-Chair, and Board Members W. N. Fraser and G. McMenemy.

APPEARANCES: N. L. Jesin and J. Gross for the applicant; Douglas K. Gray, Guy Giorno, Sharon Flanagan, R. J. Wright, David Moore, Peter Wong, Thomas Gow, Gord Hafenbrack and J. Bruce for the responding party.

DECISION OF THE BOARD; May 1, 1995

INTRODUCTION

1. This referral of a grievance pursuant to section 124 (now section 126) of the Labour Relations Act ("the Act") was filed with the Board on January 6, 1992. For ease of reference the applicant will be referred to as "the union" or "the carpenters" and the responding party will be referred to as "the employer" or "the bank" throughout the remainder of this decision.

2. This matter was first heard by a differently constituted panel of the Board. That panel rendered its decision on October 30, 1992 ("the Bloch decision"). the employer sought judicial review of that decision. By endorsement dated March 17th, 1993 that judicial review application was dismissed (see [1993] OLRB Rep. June 578). A subsequent motion for leave to appeal that decision to the Court of Appeal for Ontario was dismissed by the Court of Appeal for Ontario on June 14, 1993. A further motion for leave to appeal made to the Supreme Court of Canada was dismissed by that Court on January 27, 1994.

3. When the hearing of this referral resumed before this panel of the Board on November 10, 1994 (an earlier hearing date, August 2, 1994, having been spent in discussions between the parties) the parties agreed that this panel could properly hear and determine the issues that remained outstanding between the parties. No issue was raised with respect to the jurisdiction of this panel of the Board to hear and determine those issues. At the time, the issues that remained outstanding were broadly identified as being:

(a) the outstanding constitutional issue: namely the constitutional validity of the certificates granted to the union in August 1976 with respect to "carpenters and carpenters' apprentices in the employ of the Toronto Dominion Bank Forces (Premises Division)" in the County of Wellington, and June 1978 with respect to "carpenters and carpenters' apprentices in the employ of the Toronto Dominion Bank Forces (Premises Division)" in the Counties of Brant and Norfolk which give rise to the Union's assertion that it holds bargaining rights vis-a-vis the Bank and its employees. We note parenthetically at this point that counsel for the Carpenters disputed the assertion that any constitutional issues remained outstanding and asserted instead that the constitutional issue had been determined by the Bloch decision and the subsequent Court proceedings.

(b) the abandonment or estoppel issue: namely whether the trade union has through its conduct abandoned any bargaining rights it may have had and/or whether it is estopped from asserting its bargaining rights.

(c) any remaining remedial issues including the calculation of damages (of necessity any detennination of this third issue would be largely dependent on the outcome of the first two issues raised).

The Facts

4. Before turning to address these issues and the submissions of the parties we find it convenient to briefly outline the facts and evidence. In this regard we note that the parties agreed to proceed on the basis of a number of stipulated facts. For purposes of the issue as to whether the trade union had abandoned its bargaining rights, the parties further agreed that the issue of abandonment could be decided on the basis of these agreed upon facts without prejudice to whatever position either party may take in any future proceedings that all jobs referred to in the evidence fell within "provincial" jurisdiction. It was further agreed that if this Board found that the Carpenters had abandoned their bargaining rights on the basis of the assumption that all jobs fell within "provincial" jurisdiction, the Carpenters could challenge that assumption in a future proceeding.

5. The following facts were agreed upon by the parties:

(a) In the case of both the 1976 Guelph project and 1978 Brantford project on which the two groups of carpenters who were the subject of the 1976 and 1978 certification applications, respectively, had worked, staff carpenters employed directly by the Bank travelled to Guelph and Brantford to supervise (in each case) two carpenters who were hired from the local hiring hall on a temporary basis and paid directly [by the Bank].

(b) In both cases, the carpenters were renovating a building to prepare it to accommodate a bank branch.

(c) While the carpenters were working, there was no banking activity at either site. However, the carpenters were making the buildings suitable so that banking could be carried on inside them.

(d) The main branch in Guelph had been designated a historic site, which prompted renovations to that building. The nature of the renovations required that the main branch be moved, temporarily, until work on the historic building was complete.

(e) The temporary location of the Guelph branch was to be on Quebec Street. It was at this temporary site, not at the branch's permanent location, that work was performed by the carpenters who were the subject of the certification application.

(f) The 1978 Brantford project involved work on a new facility to house an existing branch (i.e., renovating a Dominion store).

(g) The carpenters' job was to ready the site for banking.

(h) The primary activity of the carpenters was to prepare formwork for the bank vault. The vault itself was made of concrete and, for security reasons, had to be constructed precisely to the Bank's standards (e.g., conduits angled down, out of the vault, so nothing could be dropped into the vault from outside). No structural weaknesses were permitted.

(i) There is no banking industry standard for the construction of vaults. Each bank sets its own standards. However, the insurance industry also has standards for the construction of bank vaults.

(j) The purpose of the vault, obviously, was to keep money and valuables safe.

(k) Once the formwork was complete, concrete was poured into directly it [sic] by a concrete delivery company. The Bank did not employ members of other trades to pour concrete.

(I) The carpenters were also involved in partitioning the building and creating work stations. The branch was built to comply with applicable federal (not provincial) standards: e.g., standards governing ventilation, washrooms, sinks, etc.

(m) The carpenters also installed counters and fittings. At Guelph, these items were used (i.e., taken from other bank branches).

(n) Preparation for the carpenters' work was performed by a site foreperson from the Bank's Church Street workshop in Toronto.

(o) The foreperson's supervision of the two local carpenters was direct and very close.

(p) The foreperson was a working foreperson.

(q) Overall responsibility for the project belonged to the General Manager (the position is now called Senior Vice-President) for the Bank's Ontario South-West Division. The General Manager was responsible for all banking functions within the Division, including real estate.

(r) Senior Bank officials from the Division made regular inspections of the ongoing work, and checked on the site supervisor (i.e., the working foreperson from the Bank's Church St. workshop). These officials were Tom Gow (who during 1976-1978 was the Premises Supervisor for the Bank's Ontario South-West Division) and Gord Hafenbrack (who at the relevant times was Gow's assistant).

(s) As Premises Supervisor, Gow was responsible for all Bank premises within the Division. In the case of these two projects Gow's job was to interpret the needs of banking and apply them to the work being performed on the job sites.

(t) Both Gow and Hafenbrack were so familiar with the Bank's needs (as they related to the buildings in which banking was performed) that no plans were drawn for the Guelph project. Plans were unnecessary because Gow and Hafenbrack knew what had to be done to ready the building for banking. (There were drawings for the vault, but no architect's plan for layout of the branch.)

(u) As indicated, the working foreperson on each site came from the Bank's Church St. workshop, where the Bank employed a permanent staff of carpenters, labourers and carpenters. This was a trained labour force intimately familiar with the Bank's requirements.

(v) The direct labour force at the Church Street workshop was involved in everything from the installation of Green Machine shells and counters to renovations to work on new branches.

(w) Continuity of service is a legislated, federal requirement, and approval from the Superintendent of Financial Institutions is required if a branch is to remain closed for more than a set number of days.

(x) The requirement of continuity of service was a factor in the work performed by the carpenters at Guelph and Brantford. In each case, an existing bank branch needed a temporary home (Guciph) or a new home (Brantford). Thus, the carpenters' work was required to allow continuity of the banking activity at the branches. This was different than the situation in the Elora case, where an entirely new branch was being created and there was no pre-existing banking activity.

(y) When the existing bank branches were moved to the temporary site (Guelph) and the new site (Brantford) prepared by the carpenters, carpenters were either present or on-call in order to make last-minute adjustments required to facilitate the move.

(z) The Bank performs both construction and maintenance work through either its own forces ie. persons employed directly by the Bank or by engaging outside contractors to do the work.

(aa) With respect to its own forces the Bank at all relevant times employed directly carpenters, painters and labourers. It employed approximately twenty to twenty-five carpenters to perform a variety of tasks ranging from small routine jobs such as fixing a door through to assisting in the renovations undertaken by the Bank up to the occasional construction of new buildings.

(bb) This permanent workforce worked out of a location situated on Church Street, Toronto. These employees generally worked in the Toronto area but occasionally went outside Toronto. This was especially true if special province-wide bank projects were undertaken ie. the removal of tellers' cages in all bank branches.

(cc) On occasion, and as was the case in the 1976 Guelph job and the 1978 Brantford job a senior employee of this permanent workforce would act as working supervisor or working foreman at the site along with the contractors forces. That was the case with Guciph and the Brantford jobs where one foreman worked with carpenters from the Carpenters' hiring hall. From the Bank's perspective this was necessary as such senior employees would be most familiar with the Bank's requirements especially as those related to security.

(dd) Some of the terms of the applicable (provincial since 1978) collective agreement were applied to these permanent employees working out of the Church Street location. In particular, the applicable collective agreement rates and benefits were provided to these employees by the Bank. Remittances on behalf of these employees for dues and health and welfare benefits were made by the Bank (to the trade union).

(ec) Other terms of the applicable collective agreements were not applied to that employment relationship. From the Bank's perspective it did not consider itself bound to any agreement and was paying the wage rates and making remittances to the union only to ensure that its employees were not disadvantaged by their employment at the Bank with the Union. From the Union's perspective the collective agreement was being applied to these employees.

(ff) Some of these permanent employees were hired through the Union hiring hall. Others were not. The Union did not require strict compliance with the hiring hall requirements and would not necessarily grieve the use of "name hires". The Union was content to ensure that such permanent employees were in fact members of the Union.

(gg) On at least one occasion Sam DiPietro from the trade union wrote the Bank to appoint a job steward for a job site at Palston Road and a job steward was appointed (exhibit 8).

(hh) From time to time the Union notified the Bank of changes to its collective agreement rates or benefits so that the Bank could adjust its wages paid and remittances made in accordance with that notification.

(ii) In early 1994 the Union filed a non-construction application for certification with respect to these permanent employees working out of the Church Street location. That application was withdrawn. A similar application filed with the Canada Labour Relations Board was also withdrawn because the shop was closed. As well, wrongful dismissal actions with respect to these employees were filed in the courts and remain outstanding.

(jj) Since 1976 the Bank has engaged in various maintenance and construction activities using either its own forces or outside contractors:

(i) Over that period of time approximately fifty-five to sixty per cent (55% -60%)of its work has been done with Union forces.

(ii) If one considers the permanent workforce (situated at the Church Street location) to represent a "union" work force that percentage is increased so that approximately eighty to ninety per cent (80% - 90%) of the work went union

(iii) If one considers the permanent workforce to represent a "non-union" workforce that percentage is decreased so that only approximately ten to twenty per cent (10% - 20%) of the work went "union".

(kk) In deciding whether to engage outside contractors to do work, the Bank was motivated by a number of business considerations including the status of the contractor as a Toronto Dominion Bank customer, and the nature of the job. The Bank was not motivated by, and did not consider as relevant, the union affiliation of the contractor engaged.

(ll) The Bank carried out its maintenance and construction activities openly, with signage at site locations and without attempting to hide any of its activities.

(mm) The Bank has not received any grievances with respect to any of its "non-union" construction activities.

(nn) Prior to 1990 the book listing companies signed to the Carpenters ICI Agreement - ("Schedule "C" directory") - did not exist.

With respect to this agreed upon evidence we note that paragraph (gg) refers to a letter dated October 30, 1981. Although the status of building programme reports of the Bank (exhibit 4) refer to a job at this location at this time, the evidence does not indicate whether this renovation work was performed by the Bank's own forces or an outside contractor. Similarly, the evidence with respect to paragraph (hh) is extremely sketchy as there is nothing before us (and the parties could not agree) who at the Bank was notified of changes in the rates, who initiated that notification (ie. the Bank's own employees, accounting staff, union business agent etc.) and what form or how such notification took place (ie. letter or telephone etc.).

6. In addition, the parties agreed to read into evidence a portion of the examination and cross-examination of Mr. Dehaan taken in the earlier proceeding (March 1992) with respect to an inquiry or approach the union made to the bank:

Examination-in-Chief

Q. Has the Union ever phoned up and said you are not applying the collective agreement?

A. Not referring to the collective agreement. One person called up and said do you realize you are not using trades. The union never said anything else.

In Cross-Examination

Q. The call was made by Steven Koehier?

A. No. He had an Italian accent it was Guiseppe something or other.

Q. The contract eventually went to XDG?

A. Yes.

0. XDG is a union contractor?

A. Is it?

0. The job was completed with union contractors?

A. It's not completed.

0. You don't know whether the contractor is union or not?

A. It's not a criterion but I learn sometimes who is union and non-union.

The parties agreed that this telephone conversation was with respect to work which occurred somewhere in the south-west Ontario division, and believed it to be in the Waterloo area.

7. Finally, the Board heard the viva voce evidence of Mr. Tom Gow and Mr. Gord Hafenbrack. Their testimony confirmed many of the facts agreed upon by the parties. More particularly, each confirmed that the on-site supervisor/foremen responsible for the Guelph and Brantford projects were employees of the Bank who generally worked at or out of the Church Street shop location, but who were assigned the Guelph and Brantford projects because of their familiarity with the specialized needs of the Bank, and in particular the security needs applicable to the building of the vault. That on-site supervisor/foreman was instructed to hire local carpenters to assist in the project. For projects of this nature which took place outside the Toronto area and which were performed using bank forces it was the Bank's standard practice to go to the local hiring hall to get additional carpenters. The vault constructed at the Brantford and Guelph projects was similar to the vault constructed at the Elora project which gives rise to this grievance (and which project is referred to in the Bloch decision dated October 30, 1992 and the Court proceedings which dealt with the judicial review application of that decision). As was the case with the Elora project, during these construction activities by the carpenters, no banking activity was carried out at the sites.

8. The other viva voce evidence tendered by the Bank relevant to this proceeding came from Mr. Gow and his evidence as it related to the Church Street shop location. Although Mr. Gow was familiar with the Bank employees who worked in and out of that location, it is important to note that he was not the managerial person responsible for that location. His familiarity with those employees came from the occasions when those employees worked together with Mr. Gow on projects which Mr. Gow had designed, or for which he had requested staffing from the Church Street location. Mr. Gow indicated that many of these employees were long service (twenty plus years) employees. Mr. Gow testified that on those occasions when a single supervisor/foreman was sent out of Toronto on a project (ie. as with the Brantford and Guelph projects) that person would be responsible for the total job and would do whatever was required to complete the project to meet the Bank's needs including the hiring of carpenters, sub-trades etc. As this person would be intimately familiar with the Bank's needs and requirements there was less necessity for Mr. Gow or Mr. Hafenbrack to inspect or visit the site.

9. Mr. Gow was aware that the Church Street shop employees were all union members. He indicated that the reason for that union membership was "mainly" to ensure that such employees "could go anywhere with the union card - go on any site where the Bank was involved - so if they needed to show the card they would have it rather than not". In cross-examination Mr. Gow agreed that the Bank was concerned that if employees on a particular site did not have union membership cards when asked, the union might either ensure the employee was removed from the site, file a grievance or cause a work stoppage because there was non-union labour on site. Mr. Gow indicated however that he had no knowledge of any collective agreement. He was unaware whether the collective agreement was being applied to these Church Street employees. Moreover, he testified that there was never any suggestion that the provincial collective agreement applied to these employees or the Bank. A union representative never attended at the shop to speak to the employees. He testified instead that there was never any discussion of a collective agreement, it was "never an issue", the employees were "union carpenters, that was all that was necessary", "they had a card", "they showed a union card and got paid union rates". From Mr. Gow's perspective the union card was their "ticket".

10. Within the context of these facts we now turn to examine the remaining issues.

THE CONSTITUTIONAL ISSUE

The submissions of the employer

11. Counsel for the Bank submitted that the 1976 and 1978 certificates granted to the Union were null and void because the Labour Relations Board did not possess the constitutional jurisdiction to issue them. Counsel also asserted that this issue had not been addressed in the earlier Bloch decision and consequently had not been addressed by the Courts following the judicial review application of that decision. It was therefore open to this panel to deal with that issue.

12. Counsel argued that before the Bloch panel the Bank had urged the Board to accept and adopt an "institutional test" when determining its constitutional jurisdiction. Pursuant to that test the Bank asserted that because it was a federal enterprise or undertaking, all of its activities fell within federal jurisdiction. Acceptance of that institutional test rendered it unnecessary to determine or assess the various different components or activities of the Bank. The Board was without constitutional jurisdiction to deal with any of those components or activities. For its part the trade union had urged the Board to accept and adopt a "functional test". Acceptance of that functional test required the Board to review and assess the individual components or activities in which the Bank was engaged in order to determine its constitutional jurisdiction. Pursuant to the functional test the Board is without jurisdiction only where the activity engaged in by the Bank at any particular time is vitally or integrally related to its federal undertaking ie. its banking operations.

13. Counsel argued that the respective positions of the parties before the Bloch panel caused the parties to place before the Board (and subsequently the Courts) only the evidence or facts relating to the Elora project which gave rise to the particular grievance. Neither the Board nor the Courts have considered the evidence and facts relating to the Bank's activities which gave rise to the 1976 and 1978 certificates because that evidence was unnecessary to the "all or nothing" institutional approach of the Bank. A determination of whether the activities engaged in by the Bank at those times fell within federal or provincial jurisdiction has therefore not been made.

14. Counsel submitted that when the institutional test proposed by the Bank was rejected by the Board and the Courts, it became necessary to review the Bank's activities in 1976 and 1978. Thereafter, the functional test accepted by the Board and the Courts could be applied to those activities to determine the constitutional jurisdiction of the Board to grant the certificates.

15. Counsel for the Bank submitted that application of the functional test requires a close examination of the facts to determine whether the activities of the Bank in 1976 or 1978 at the Guelph and Brantford projects were vital, essential, integral or necessarily incidental to its federal undertaking ie. its banking operations. It was asserted that the Bank's activities giving rise to the 1976 and 1978 certificates were indeed integral to the federal undertaking of the Bank.

16. Counsel asserted that the appropriate focus in this case should not be on the construction of the building and whether that activity fell within provincial or federal jurisdiction. Rather the focus should be on the employment relationship of the individuals who constructed the building. In this case the work which gave rise to the certificates was performed by the Bank's own dedicated workforce generally responsible for the Bank's maintenance and construction activities. Persons in this dedicated workforce were long-service, permanent employees of the Bank who typically worked out of the Church Street shop location and who performed a wide range of construction and maintenance activities only on behalf of the Bank. At the Brantford and Guelph projects both the Church Street shop employees who actually performed the construction work and who supervised the persons they engaged through the local hiring hall, and the Bank's operating division (its South-West Division) which was responsible for the planning and supervision of the work were part of the Bank's overall operations and were integral or essential to the Bank's federal undertaking ie. its banking operations. The employment relationship of those persons was clearly subject to federal jurisdiction.

17. Counsel for the Bank argued that at the Brantford and Guelph projects this "federal" workforce was temporarily supplemented by the addition of two or three local carpenters from the hiring hall. In the absence of any evidence that there was a distinction between the work performed by the Bank's regular permanent "federal" employees, and these temporarily engaged additional employees, it made little sense to find that some of these bank employees working side by side with other bank employees fell within federal jurisdiction and some did not.

The submissions of the trade union

18. Counsel for the Carpenters submitted that the constitutional issue being raised had already been dealt with by the Bloch panel and subsequently by the Courts. It was his position that counsel for the Bank was essentially seeking to re-argue a matter that had been conclusively determined by the Supreme Court of Canada when it refused to entertain the Bank's leave to appeal application. The constitutional issue was res judicata and ought not to be entertained by this panel.

19. In the alternative counsel for the union asserted that if the Board accepted that a "new" constitutional issue was indeed being raised, then in essence the Bank was seeking reconsideration of the Board's decisions rendered in 1976 and 1978 when it granted certificates to the Carpenters' union. That reconsideration request was being made based on facts and arguments which were readily available but not placed before the Board by the Bank in either 1976 or 1978. Given the length of time which has passed, it was simply too late for the Bank to seek that type of reconsideration.

Decision

20. In our view the constitutional issue raised by Counsel for the Bank is res judicata.

21. The opening paragraph of the Bloch decision phrases the issues raised before that panel in the following terms:

1. .. Prior to commencing the hearing, T.D. advised the Board that it was raising a preliminary argument, that the Board was without jurisdiction to entertain the grievance, because the construction of banks was within the sphere of federal labour relations. Counsel for T. D. argued that all certificates issued by the Board to the carpenters, in respect of employment with T. D. were of no force in law. (emphasis added)

After reviewing the jurisprudence and the submissions of the parties the Bloch decision concludes in paragraph 10:

10. The case at bar involves the construction of banks within the Province of Ontario by T.D. 's own employees. The question the panel must answer is very narrow. Is construction of a bank branch by T. D. an integral part of the banking function? This case is different and distinguishable from the Royal Bank of Canada case, in that the Bank's construction employees are not integral to the running of the Bank. During the construction phase, there is no banking going on at the site. Although this is a case that is close to the constitutional dividing line, the Board finds construction of a bank building to be a pre-operational task and consequently not integral to the banking function as prescribed by the Constitution Act, 1867. The banking function does not include the building of premises to be used by a bank. It is clear that the framers of the Constitution Act, 1867 were concerned about centralizing banking practices and structures. We do not believe that these concerns relate to the conformity of banking premises. The fact that provincial labour relations laws impact on the building of bank premises does not in any way affect the economic or other banking regulation of the banking sector. There is no doubt that the Bank Act, R.S.C. 1985, c. B-i, as amended, confers on banks the power to build banks; however, this legislation does not confer federal constitutional authority with respect to labour relations of those engaged in the construction of what, after all, is simply a building.

That was the issue raised, and the determination made by the Bloch panel, and is the issue and determination subsequently considered and reviewed by the Divisional Court, the Court of Appeal for Ontario and the Supreme Court of Canada.

22. Although framed perhaps in somewhat different terms, the constitutional issue previously raised before the Bloch panel and the Courts, and presently raised before us, is the same issue. Does, or did, the Labour Relations Act apply to the construction activities engaged in by the Bank. There is nothing in the Bloch decision to suggest that the ratio of that case applied, or was intended to apply, only to the Bank's construction activities at the Elora project. Indeed, the references cited and emphasized suggest otherwise as does the Board's conclusion in paragraph 10 that "the banking function does not include the building of premises to be used by a bank".

23. There is a suggestion in the Divisional Court decision that the issue before it was limited to the Elora project and whether that construction activity fell within provincial jurisdiction for purposes of the Labour Relations Act. In the fourth paragraph of the Divisional Court's endorsement, Mr. Justice Southey states:

The question is not whether the bank's construction department is a separate corporate undertaking, but whether its subsidiary construction operation - in this case the construction of a new building at Elora, with a staff architect superintending an independent non-union contractor - is vital, essential, or integral to the banking function and therefore integral to the primary federal jurisdiction over banking.

24. That paragraph however must be read in the context of the entire endorsement including in particular paragraphs 5 and 6 which state:

The construction of a new bank building is ordinary construction activity. No banking is transacted at a construction site. Construction forms no integral part of the bank's banking operation. The temporary operation of construction is separate and distinct from the ongoing operation of banking.

Neither the physical task of constructing a new building nor the bank's new building construction operation is integral, vital, essential or necessary to the core banking function.

(emphasis added)

25. Whatever may have been the positions or pleadings of the parties before the Divisional Court (or thereafter), it is apparent that the constitutional issue now raised before this panel has been finally determined. As the Divisional Court endorsement indicates "The construction of a new bank building is ordinary construction. . . Construction forms no integral part of the Bank's banking operation... Neither the physical task of constructing a new building nor the Bank's new building construction operation is integral, vital or necessary to the core banking function".

26. Those conclusive determinations by the Divisional Court, and the subsequent dismissal for leave to appeal by both the Ontario Court of Appeal and the Supreme Court of Canada do not lend themselves to the type of distinctions which counsel for the Bank urged upon us during the course of the hearing ie. a distinction exists between the Bank's construction activities when those activities are undertaken by its own employees, including its permanent Church Street shop workforce (as was the case in Brantford and Guelph) rather than construction activities undertaken by the Bank through an independent non-union contractor "superintended" by a "staff architect".

27. We note that if the matter was not res judicata, and notwithstanding counsel's able arguments, we would nevertheless have dismissed the constitutional arguments. The evidence before us establishes that there was no substantial difference in the work performed at the Elora, Brantford or Guelph projects. Application of the functional test to the facts before us indicates that the work of constructing a bank (whether it is a new building or a renovation of an existing structure into a bank facility with a vault) is not, as the Divisional Court has stated, "integral, vital, essential or necessary to the core banking function". The fact that the persons performing that work are part of a group of the Bank's permanent employees dedicated to performing only the Bank's construction (or maintenance) activities does not transform construction work that is not otherwise vital to the banking function into a federal undertaking which falls outside the parameters of the Labour Relations Act. That construction work, and those construction employees are not integrally related to the Bank's operations as a bank.

28. Acceptance of a functional test rather than an institutional test necessarily means that less emphasis can be placed on the corporate identity of the employer. Thus, although factually one must look at all facts and evidence when applying the functional tests so that consideration must be given to both the nature of the activity being performed and the employment relationship of those doing that activity, the primary focus must be on the activity itself and its relation to the "federal" undertaking or federal operations. Here that activity, construction of a bank facility and a bank vault, at a time when there are no banking operations being carried on at that location, is a severable part or activity of the employer's core federal undertaking of banking. These construction activities are not integral to, but are severable from, the Bank's operations as a going concern. As such, the identity of the persons performing that work, and more particularly the identity of the employer of the persons performing that work, take on less significance.

THE ABANDONMENT AND ESTOPPEL ISSUES

The submissions of the employer

29. Counsel for the Bank asserted that the union had abandoned its bargaining rights after June 6, 1978 (the date upon which it was granted its certificates with respect to the counties of Brant and Norfolk). The question of abandonment is a question of fact. In this instance, the facts disclose that the union had abandoned it bargaining rights by its failure to represent the employees in the bargaining unit and its consistent inactivity in enforcing collective agreement obligations or pursuing grievances notwithstanding the fact that throughout the period of 1978 to 1992 the Bank openly and notoriously engaged in significant construction activity throughout the province of Ontario using both union and non-union contractors. There was no complaint from the union with respect to any of this construction activity. It was the employer's position that the union's conduct throughout this nearly fifteen year period indicated an abdication of bargaining rights by the various locals or affiliated bargaining agents ("ABA's") notwithstanding the fact that during this time the designated employer and employee bargaining agencies ("EBA's") concluded collective agreement negotiations (as a result of the statutory scheme of province-wide bargaining).

30. Counsel for the Bank submitted that there was nothing in the statutory provisions relating to the scheme of province-wide bargaining which, as a legal proposition, precluded the Board from applying its well established concepts of abandonment. Counsel noted that the Board's jurisdiction to determine whether a trade union had abandoned its bargaining rights had been confirmed by the Divisional Courts in two related applications, Re. Carpenters District Counsel of Lake Ontario and Hugh Murray, (1974) Ltd. et. al.; and Re. Labourers international Union of North America Local 527, et. al. and John Entwistle Construction Limited et. al., (1980) 33 0. R. (2d) 670 (leave to appeal refused February 2, 1981 (C.A.)). Counsel argued notwithstanding the statutory scheme of province-wide bargaining, the determination of whether bargaining rights have been abandoned continues to be a question of fact.

31. In deciding that question of fact the Board looks to a number of factors. Some of these factors were enunciated in J. S. Mechanical, [1979] OLRB Rep. Feb. 110 where the Board stated:

4. Over the last 20 years the principle of abandonment has been deeply entrenched in the Board's jurisprudence. Once a union has obtained bargaining rights either through certification or voluntary recognition it is expected that it will actively promote those rights. If a union declines to pursue bargaining rights it may lose them through disuse. Whether a union has abandoned its bargaining rights is a matter which must be assessed on the facts of each individual case, but once the Board is satisfied that a union has failed to preserve its rights, the union may no longer rely on them to support the appointment of a Conciliation Officer under section 15 of the Act (see Cooksville Sheet Metal, [1974] OLRB Rep. June 365; John Entwistle Construction Limited, [1972] OLRB Rep. Oct. 919; Elgin Construction Co. Limited, [1969] OLRB Rep. April 134; Guelph Cartage Company, 55 CLLC para. 18,018). As well, if a union has abandoned its bargaining rights it may be precluded from relying on them either to bar another agreement that renews itself automatically (see Catalytic Enterprises Limited, (1974] OLRB Rep. April 264; 0. & W. Electronics Limited, [1970] OLRB Rep. Jan. 1213; Architectural Acoustics & Drywall, [1970] OLRB Rep. Feb. 1408; N. W. Clayton Sheetmetal and Heating Co. Ltd., [1967] OLRB Rep. April 69), or to require an employer to bargain by giving notice to bargain under such an agreement (see Rainee Manufacturing Products Limited, [1967] OLRB Rep. Nov. 796). A union's abandonment might also obviate the necessity for the Board to determine the merits of a termination application (see Graphic Centre (Ontario) Inc., [1977] OLRB Rep. June 379; Northern Engineers & Supply Co. Limited, [1968] OLRB Rep. Oct. 731; Barrie Tanning Limited, [1966] OLRB Rep. May 128).

5. In assessing the bargaining relationship between the union and the employer to determine whether or not a union has abandoned its bargaining rights, the Board considers various factors. Among other possible indicators, the Board looks to the length of the union's inactivity, whether it has made attempts to negotiate or renew a collective agreement, whether the union has sought to administer the collective agreement through the grievance and arbitration provisions in the collective agreement, whether terms and conditions of employment have been changed by the employer without objection from the union as well as whether there are any extenuating circumstances to explain an apparent failure to assert bargaining rights.

6. In the case before the Board the evidence establishes that since 1974 no grievances or arbitrations have been processed under the terms of the collective agreement. Check off and hiring hail provisions of the collective agreement have not been enforced. Although there have been employees within the bargaining unit consistently since 1974, the union has not maintained its membership among them, in short, the evidence establishes that since August 1975, almost three and one half years ago, the union has done absolutely nothing to promote the bargaining rights for the employees it represents and, in fact, deserted the employees and employer in the middle of its own attempt to renew the collective agreement. Although the employer appeared unwilling to negotiate a renewal agreement, there were avenues open to the union by which it could have required the employer to recognize its bargaining rights. Instead of pursuing those routes the union withdrew from the relationship after advising the Ministry that no agreement had been reached between the parties.

(see also R. Reusse Co. Ltd., [1988] OLRB Rep. May 523 at paragraph's 13 and 15, Parnell Foods Limited, [1992] OLRB Rep. Dec. 1164 at paragraph's 214 and 216).

32. Counsel argued that the negotiation of a collective agreement, or "collective bargaining narrowly construed" was only one of the factors to which the Board looks in determining the issue of abandonment. That factor is the only factor affected by the scheme of province-wide bargaining. The fact that under the province-wide scheme, collective agreement negotiations rested with another agency (the EBA's) does not however mean that the many other factual inquiries which the Board undertakes to assess whether abandonment has occurred have become irrelevant. Rather, the negotiation of a collective agreement which takes place as a result of the statute must be assessed and balanced together with all other facts and circumstances when making a factual determination of whether there has been an abandonment of bargaining rights. It was counsel's position that neither the statutory provisions themselves, nor any compelling policy reasons dictated that the mere arrival of province-wide bargaining in 1978 rendered the concept of abandonment obsolete in the ICI sector of the construction industry.

33. With respect to the statutory provisions, counsel submitted that the Act sets up a province-wide designation system and establishes a scheme pursuant to which a single provincial agreement is negotiated by the EBAs for all constituent employers and local unions (ABAs) in the province. Nothing in those provisions bars the Board from concluding that a particular local or all locals have abandoned bargaining rights. Indeed the opposite was said to be true.

34. Section 139(2) reads as follows:

139.-(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.

(emphasis added)

Although that section deems an employer to have recognized all of the ABAs represented by the employee bargaining agency, on its express wording that recognition is limited and is only "for the purpose of collective bargaining in their respective geographic jurisdictions".

35. Similarly, section 144 of the Act states:

144. Where an employee bargaining agency has been designated under section 141 or certified under section 142 to represent a provincial unit of affiliated bargaining agents, all rights, duties and obligations under this Act of the affiliated bargaining agents for which it bargains shall vest in the employee bargaining agency, but only for the purpose of conducting bargaining and, subject to the ratification procedures of the employee bargaining agency, concluding a provincial agreement.

(emphasis added)

Thus, although this section vests all of the rights, duties and obligations of the local unions (ABAs) in the employee bargaining agency, it does so for the limited purpose of "conducting bargaining and . . . concluding a provincial agreement". The only "bargaining rights" enjoyed by the EBA's are bargaining rights "narrowly construed" ie. the right to negotiate a provincial agreement.

36. Under the statutory provisions, the more "broadly construed bargaining rights", the right, responsibility and obligation to represent employees and actively promote and enforce their rights with respect to employers, are not transferred to the employee bargaining agency but continue to reside with the ABA or local union. As the right, responsibility and obligation to represent employees and to administer and to enforce a provincial agreement insofar as a particular employer is concerned continue to reside with the ABA or local union, the conduct of that ABA or local union (or where more than one geographic jurisdiction is involved those ABAs or local unions) continues to be relevant in assessing whether abandonment has occurred in much the same way as that conduct was considered prior to the advent of the statutory provisions relating to province-wide bargaining.

37. Counsel submitted that to the extent that the Board has suggested in its decisions (see Lorne's Electric, [1987] OLRB Rep. Nov. 1405 and Culliton Brothers' Limited, [1982] OLRB Rep. Mar. 357) that abandonment cannot occur after the statutory scheme of province-wide bargaining was enacted, the Board has erroneously focused only on bargaining rights "narrowly construed" ie. the negotiation of a provincial collective agreement, and has not properly considered the more broadly based "bargaining rights" which include the entitlement and obligation to represent employees working for an employer. He argued that there are no legal or rational policy impediments to the Board considering the conduct of local union(s) or local ABA(s) in determining the factual question of abandonment. The mere scheme of province-wide bargaining for a provincial collective agreement does not grant bargaining rights in perpetuity notwithstanding a fifteen year period of inactivity by local union(s) or ABA(s).

38. Where, as here, there has been a significant amount of notorious construction activity performed on a "non-union" basis across the province, the Board must conclude as a matter of fact that each and all of the local unions (ABAs) have abandoned their bargaining rights.

39. In this latter regard counsel argued that notwithstanding the fact that the Church Street shop location employees were members of the union, were paid in accordance with the applicable rates and benefits of the provincial collective agreement, or that dues and health and welfare remittances were made by the Bank to the Carpenters' union on their behalf, the construction work in which these employees were engaged should be considered by the Board to have been performed on a "non-union" basis. Counsel made this submission by reason of the fact that the evidence also disclosed that no other terms of the collective agreement were applied to these employees, the Bank did not consider itself bound to any collective agreement but was merely paying union rates and benefits and making remittances so as not to disadvantage its own employees, and the union had not acted as if a collective agreement applied to those persons ie. the hiring hall provisions were not enforced, stewards were not appointed, grievances were not filed, out-of-town ratios were not maintained outside the geographic area, business agents never visited the shop, and in 1994 a non-construction application for certification with respect to these permanent employees was filed by the trade union. In the absence of some explanation from the union why it ignored and neglected to promote its bargaining rights vis-a-vis these employees for such a long time, these forces should be considered as "non-union". If the Church Street shop employees were considered to be "non-union", for the period from 1978 to 1992 approximately eighty to ninety per cent (80%-90%) of the entirety of the Bank's construction activity was performed on a "non-union" basis.

40. In the alternative, counsel for the Bank submitted that the Church Street shop employees should be considered in a "neutral" fashion (ie. as neither "union" nor "non-union" forces). In that case the evidence disclosed that the Bank had performed approximately thirty-five to forty-five per cent (35%-45%) of its construction activity across the province from 1978 to 1992 on a non-union" basis. Once again it was argued that in the absence of a compelling explanation from the union for its inactivity in promoting its bargaining rights, that factor pointed to an abandonment of bargaining rights.

41. Finally, counsel asserted that in the context of a province-wide scheme of bargaining and a province-wide collective agreement binding all local unions (ABAs), the Board should not look at the conduct of only one local but must look at the conduct of all locals. Thus, the fact that in the circumstances before us, all of the construction activities of the Bank had been performed by "union" forces in a particular geographic region (ie. the Thunder Bay area) was not determinative of the issue in dispute. The "union" work performed in that geographic area was insignificant and minimal when contrasted with the significant amount of "non-union" work across other parts of the province. Just as under the scheme of province-wide bargaining one local union or ABA can acquire bargaining rights on behalf of all other local unions or ABAs and bind those locals and the employee bargaining agency to collective bargaining obligations~ the conduct of one or more local unions or ABAs in failing to assert or promote bargaining rights should also bind other ABAs and the employee bargaining agency.

42. In the result it was asserted that, although the factual inquiry as to whether abandonment has occurred may be qualitatively different and broader as a result of the enactment of the province-wide scheme of bargaining in the construction industry, abandonment as a factual concept remains. As a factual concept, and both from a legal and policy perspective, abandonment in the ICI sector of the construction industry continues to exist. In the case at bar, for a lengthy period of time, enough ABAs had behaved in a manner that was more consistent with a finding that bargaining rights had been abandoned. Conversely, enough ABAs had behaved in a manner that was inconsistent with a finding which would preserve the bargaining rights granted to the Carpenters by the 1976 or 1978 certificates.

43. As an alternative to its position that the union had abandoned its bargaining rights, counsel for the Bank argued that the union was estopped from asserting any bargaining rights. Counsel noted the issue of estoppel was separate and distinct from the abandonment concept. The facts relied upon to support an estoppel however were essentially the same as those which formed the basis for the Bank's abandonment arguments.

44. Counsel submitted that for many years the union conducted itself in a manner which was inconsistent with its assertion and enforcement of bargaining rights vis-a-vis the Bank. In reliance of that conduct, the Bank organized itself and conducted its construction activities as if it were not bound to recognize the union's bargaining rights. For approximately fifteen years the conduct of the union led the Bank to believe that it could continue to carry on its construction activities as it had always done, that is to say, choosing to do work "in-house" or contract work to either union or non-union contractors based solely on business considerations and unrelated to any consideration of a trade union's assertion of bargaining rights. Given the passage of time it would be unfair and prejudicial to require the Bank to change its methods of operations when the union has been "hiding in the bushes" for such a long time.

45. Counsel argued that as the passage of time increases it becomes increasingly less significant to prove "detrimental reliance". After a certain length of time it can be assumed that the Bank acted, and continues to act, to its detriment insofar as over this period of time the Bank continued and developed its construction operations based on the union's conduct and its implicit representation that it did not seek to enforce collective bargaining obligations. Thus, it was no answer to say that the estoppel ended with the filing of this grievance and that prior to that time the Bank had merely benefited from the trade union's lack of enforcement of collective agreement rights and obligations. Instead, the estoppel was a "permanent" estoppel which prevents both the employee bargaining agency and each of the ABAs (including the local which filed this grievance) from enforcing collective bargaining rights and obligations, or from requiring the Bank to change its existing operations.

The submissions of the union

46. Counsel for the union argued that the facts and circumstances supported neither a finding of abandonment nor an estoppel which would prohibit the union from asserting and enforcing its bargaining rights. Counsel concurred that the question of abandonment is a question of fact, but submitted that in this instance the facts did not point to union conduct inconsistent with the assertion of bargaining rights. Rather the facts pointed to the opposite conclusion.

47. Counsel for the Carpenters asserted that the Bank's own forces, its shop employees working at and out of the Church Street location, should be considered "union" forces. In support he pointed to the fact that the employees were union members, were paid union rates and benefits, and that health and welfare remittances and dues remittances were made to the Carpenters' union on their behalf.

48. It was the union's position that the Bank performed its construction activity employing one of two methods — it either used its own forces or engaged a sub-contractor to perform the work. From 1978 to the referral of the grievance in 1992 approximately eighty to ninety per cent (80%-90%) of that construction work was performed either by the Bank's own "union" forces, or by "union" sub-contractors who were bound to the provincial collective agreement. Under those circumstances it could not be said that the trade union had abandoned its bargaining rights or had acted in a manner inconsistent with its bargaining rights. The trade union could not grieve where its own members were on site, performing the work and being compensated in accordance with a collective agreement by either the Bank (in the case of its own direct employees) or the unionized sub-contractor engaged by the Bank. Counsel argued that there was simply not enough evidence of work being performed outside the terms of the collective agreement to suggest abandonment by the union or any of its locals (AB As). It was not incumbent upon the union to be aware of every job performed by or on behalf of the Bank, or to grieve every possible violation of the collective agreement where its members were on site.

49. Counsel for the union also noted that within the context of eighty to ninety per cent (80% - 90%) of the construction activity of the Bank having been performed on a "union" basis, there were also significant geographic "pockets" where all, or most of the construction activity of the Bank was performed by union members. Thus, within the Toronto area virtually all of the construction work was performed by union members. The same was essentially true for the City of Windsor area (where only one job was performed on a "non-union" basis), and the KitchenerWaterloo region. In those circumstances it could not be said that the local unions in those areas had abandoned their bargaining rights.

50. Of equal or perhaps greater significance was the fact that in north-west Ontario (in particular the geographic area including Thunder Bay, Kenora, Geraldton and Marathon) all of the Bank's construction activities were performed using union members. Thus it could not be said that the local union in that geographic area (Local 1699) had abandoned its bargaining rights. Relying upon Lorne's Electric, supra, counsel submitted that by reason of the statutory provisions, the bargaining rights of that local union or that ABA would be sufficient (given the "deemed recognition" provisions set out in section 139(2)) to enable the employee bargaining agency, and consequently other ABAs represented by that employee bargaining agency to continue to assert bargaining rights throughout the province.

51. Counsel for the union asserted, even if some local unions or ABAs could be found to have abandoned their bargaining rights (as for example the London area where the majority of work was performed on a "non-union" basis) so long as there was at least one geographic area in the province wherein the local union or ABA which had geographic jurisdiction over that area had not abandoned bargaining rights, there could not be an "abandonment" of ICI bargaining rights by either the employee bargaining agency or any other ABAs. Similarly, as long as there was one geographic area in the province in which the employer did not perform any construction work (thereby rendering it impossible for a local union or ABA to assert its bargaining rights vis-a-vis the Bank) there could not be an abandonment of ICI bargaining rights by that local, and therefore there could not be an abandonment of bargaining rights by the employee bargaining agency or any other ABA given the "deemed recognition" provisions of section 139(2) of the Act.

52. In response to the submissions that the union was estopped from asserting its bargaining rights, counsel for the union submitted that there had been neither a clear representation by the union that bargaining rights would not be enforced, nor had their been any detrimental reliance by the employer upon any such purported representation. By way of analogy counsel referred to KNK Limited, [1991] OLRB Rep. Feb. 209, to support the assertion that the non-enforcement of bargaining rights does not equate to "detrimental reliance" on the part of an employer, but merely confers a benefit (ie. of not having to comply with the collective agreement obligations) upon the employer.

53. In the alternative, counsel for the union asserted that if there had been a representation by conduct by the union, and if there had been detrimental reliance on the part of the Bank, any estoppel was brought to an end by the telephone call referred to in paragraph 6 herein. That call put the employer on notice that the union was/would be asserting bargaining rights. As a result of that telephone call the work went to a union contractor. That call predated the filing of this grievance and ended any estoppel which the employer might have raised.

54. As a further alternative, and to the extent there was any detrimental reliance on the part of the employer, counsel for the union submitted that such reliance came to an end once the union made the employer aware of its intention to assert its bargaining rights in this grievance. Thus, once the union filed this grievance the employer could no longer rely upon any purported representations that the union would not assert its bargaining rights and any detrimental reliance therefore ended. At best therefore any estoppel was only a factor to be considered in the assessment of damages relating to this grievance, and could not be applied permanently or to any other construction activities carried on by the Bank after the filing of this grievance.

Decision

Abandonment

55. The matter of whether bargaining rights can be abandoned within the scheme of province-wide bargaining has been left open in more recent decisions of the Board such as Marineland, supra, and The Hudson's Bay Company, [1993] OLRB Rep. June 563 which appear to indicate a willingness on the part of the Board to re-examine the issues raised in Lorne's Electric, supra and Culliton Brothers Limited, supra. The issue as to whether abandonment could occur after 1978 and the advent of province-wide bargaining was not raised by the parties in Steds Limited, [1992] OLRB Rep. Jan. 67. Instead the issue in Steds was whether abandonment had occurred prior to province-wide bargaining. The focus of the Board in that decision revolved around the conduct of the union (including conduct after the advent of province-wide bargaining) and its impact upon the employer's arguments that abandonment had occurred before 1978, and its arguments of estoppel. The submissions of the parties to this proceeding highlight the different approaches and will undoubtedly add to the debate about the effect of the statutory scheme of province-wide bargaining upon the principles of abandonment and estoppel which have been developed and applied by the Board.

56. There may be considerable merit in the employer's submissions that neither legal nor policy considerations prohibit a finding of abandonment in the ICI sector after the advent of province-wide bargaining. In the circumstances before us however we do not have to determine that issue. Even assuming that bargaining rights can be abandoned within the scheme of province-wide bargaining by one or more local unions, the facts in this case do not support such a conclusion.

57. The Bank's own employees working at or out of its Church Street location would have been considered "union" forces by the union. All of these employees were union members. All were paid union rates and benefits, and remittances on their behalf were made to the local union. Mr. Gow's evidence indicated that for a variety of reasons it was important to the Bank that its employees on particular jobs had "a union card" and were seen to be union members. He testified that by being union members and having union cards these employees could go on any site where the Bank was involved and, if they were asked to show their union cards, they would be able to do so. In this sense it can be said that the Bank also benefited from the union membership of its employees. Its payment of union rates and benefits, and its remittance of dues and health and welfare remittances was not merely to ensure that its employees were not disadvantaged. Although the Bank may not have considered itself bound to any collective agreement, it was important to the Bank that the employees were, and were seen to be, union members. An objective third party observer, let alone the union, would have concluded that the work was being done "unton" rather than "non-union". Had the union checked the sites at which these employees were working they would have found union members, who were being paid union rates, and for whom remittances were being made, performing the work.

58. It is true that the mere fact that certain terms of a collective agreement (such as wage rates and benefits) are applied to employees does not necessarily mean that the union has actual bargaining rights for those employees. In the construction industry it is not at all uncommon for employers not formally bound to a collective agreement to nevertheless employ union members under the same or substantially the same terms and conditions as the prevailing collective agreements without any intention of thereby conferring bargaining rights on the union.

59. In the circumstances of this case however the fact of the payment of union rates and remittances must be assessed in a context where the trade union in 1976 and in 1978 applied for certification and was granted certificates to represent as bargaining agent the carpenters and carpenters apprentices employed by the Bank. The certificates granted refer specifically to the Toronto Dominion Bank Forces (Premises Division). The June 1978 certificate post-dated the advent of province-wide bargaining in the ICI sector and the Minister's designation of the employee bargaining agency dated March 3, 1978 (amended April 10, 1978) with the effect that, by operation of law, the employer was legally obliged to apply the terms of the collective agreement to these employees performing work in the ICI sector of the construction industry.

60. A further factor which points to the Bank's own forces being considered "union" forces stems from the fact that where the Church Street employees went outside the Toronto area and/or were assigned as on-site working supervisor/foreman responsible for out-of-town projects, they were instructed to obtain additional carpenters necessary for the job from the local union hiring hall. Although there is insufficient evidence before us to determine whether the "out-of-town" ratios set out in the collective agreement were being maintained, we find significant the fact that, where necessary, the Bank engaged unionized carpenters who were members of the local hiring hall to work alongside its own forces.

61. It is true that other terms of the collective agreement were not enforced. Thus the Church Street shop employees came to work for the Bank by word of mouth rather than through the hiring hall. It may be that other provisions of the collective agreement were also not adhered to by the Bank or enforced by the union. Those facts may ultimately go to the matter of remedy when alleged violations of the collective agreement are adjudicated. On balance however, we have concluded that these factors, when measured against the employees' union membership, the payment of union rates, and the remittances of dues and benefits, are insufficient to outweigh or tip the balance in favour of characterizing the Bank's own forces as "non-union" or even "neutral".

62. By its own conduct the Bank treated its direct employees, whether they were members of its own permanent workforce or temporary additions to that workforce from the local union hiring hall, in a manner more consistent with a finding of union membership than not. Therefore, to characterize these persons as performing work on a "non-union" basis, or to suggest that their performance of construction work should be assessed in a "neutral" fashion would not accurately reflect the circumstances. The employer's submissions that the trade union has abandoned its bargaining rights therefore must be determined within the context of our finding that the Bank's own forces should be considered a “union” workforce and the work they performed must be considered to have been performed on a "union" basis.

63. An application of the various factors enunciated in J.S. Mechanical, supra, R. Reusse Company Limited, supra, Parnell Foods Limited, supra, to the bargaining relationship between the Bank and the union discloses that, since it was certified as bargaining agent, the union has bargained for and concluded successive collective agreements applicable to the Bank. Although those collective agreement negotiations took place between the respective employer and employee bargaining agencies pursuant to statutory provisions of the Act, the fact remains that with respect to the factor of collective agreement negotiations the union's bargaining rights were being actively exercised by the EBA — the entity which, by statute, was the bargaining agent and the only entity capable of exercising those bargaining rights. The successive negotiations and renewals of the collective agreements therefore do not point to abandonment.

64. On the other hand there is nothing in the evidence to indicate that the union "actively promoted" the bargaining rights it obtained. Nor does the evidence suggest that the union actively sought to defend those bargaining rights or "administer" the successive agreements negotiated by the EBA "through the grievance and arbitrations provisions of the collective agreements". The crux of the matter is whether this inactivity is sufficient to draw an inference or find as a fact that the union abandoned its bargaining rights. We have concluded that it is not.

65. In cases of abandonment the Board must start with the proposition that the union holds bargaining rights. In this case those bargaining rights were acquired through the certificates granted by the Board in 1976 and 1978. The focus then turns to whether there is compelling evidence that the union abandoned the rights it attained. That evidence could take any number of forms. The clearest form of evidence for example would be a written communication from the trade union to the employer that it no longer wished to represent the employees for whom it holds bargaining rights. In other instances, the evidence might be such that, notwithstanding that fact that there is not an express representation to that effect, the conduct or affirmative actions taken by the trade union are such that a reasonable inference can be drawn that the union abandoned its bargaining rights. Typically this is shown through evidence that the employer consistently performed work on a non-union basis, and the trade union knew or reasonably ought to have known of that fact. In either circumstance however the onus is on the employer which asserts abandonment to present clear and unambiguous evidence from which the Board can conclude or draw a reasonable inference that the trade union abandoned bargaining rights. The onus is not on the trade union to assert that it has affirmatively exercised its bargaining rights or has not abandoned them. Rather, unequivocal evidence which either points to actual abandonment or from which a reasonable inference of abandonment can be drawn is required.

66. In the circumstances of this case we do not have such unambiguous or unequivocal evidence. The union's inactivity is equally consistent with both the employer's position that the union was not interested in promoting or pursuing its bargaining rights and abandoned those rights, and the union's position that, from its perspective, the collective agreement was being applied so that there was no need to do anything further to promote or defend its bargaining rights. In the circumstances of this case, where eighty to ninety per cent (80% - 90%) of the Bank's maintenance and construction activities since 1976 have been performed either by unionized contractors or the Bank's own "union" forces (see paragraph 5(jj)(ii)), the fact that grievances were not filed is equally supportive of the union's belief that the collective agreement was being adhered to. There is no evidence before us which indicates that the union had actual knowledge of those occasions when the Bank performed work on a "non-union" basis and deliberately chose not to pursue that violation of the agreement. In terms of the principles of abandonment the evidence is also insufficient to support the drawing of a conclusion or an inference by the Board that the trade union reasonably ought to have known of the work that was performed non-union. In this instance these are indeed "extenuating circumstances" (see J. S. Mechanical, supra) which explain the apparent failure to file grievances on those occasions when provisions of the collective agreement were not adhered to.

67. In light of the facts that (a) the vast majority of the Bank's maintenance and construction work has been performed on a "union" basis; (b) by operation of statute successive collective agreements binding on the Bank were negotiated and; (c) where terms and conditions of employment were changed those changes took place as a result of changes to the prevailing collective agreements, we are unable to conclude, as the Board did in Marineland, that the trade union's conduct demonstrated an abandonment of its bargaining rights.

68. The facts and circumstances before us are readily distinguishable from the cases to which counsel for the Bank referred and in which abandonment was found to have occurred. This is not a case where, as in J.S. Mechanical, supra, the union did "not maintain its membership among" employees in the bargaining unit, where there was no "check-off" (dues remittances), and the union "in fact, deserted the employees and the employer in the middle of its own attempt to renew the collective agreement". Neither are the circumstances similar to those in Marineland, supra, where for some twelve years non-union carpentry work was regularly and visibly being carried out at a single, fixed site location without complaint or even interaction by the local union which subsequently purported to have bargaining rights. In the present case the union maintained its membership among the Bank's employees and continued to received dues and remittances on behalf of them. Throughout the province, the Bank performed a vast majority of its construction activities using "union" labour.

69. On balance, having regard to all of the circumstances before us we find that the fact that there was little, if any contact between the union and the Bank or its employees, or the fact that grievances were not filed in all instances of a violation of the collective agreement (in the absence of unambiguous evidence that the union knew or reasonably ought to have known of those violations and did nothing) are insufficient to warrant finding that the union abandoned its bargaining rights.

Estoppel

70. As did counsel for the employer, the Board also draws a distinction between the concept of an abandonment of bargaining rights (as set out in J. S. Mechanical, supra, Hugh Murray, supra, Marineland, supra, etc.) and the principle of estoppel (as referred to for example in Steds, supra,). The two principles may at times appear similar and may indeed lead to the same or similar results. As matters of legal principles however, "abandonment" and "estoppel" are not synonymous.

71. A finding of "abandonment" results in the determination that, from the effective date of the abandonment~ the trade union no longer holds bargaining rights and is no longer entitled to represent employees in the bargaining unit as bargaining agent. As a matter of law the trade union's bargaining rights no longer exist.

72. A determination of "estoppel" on the other hand is based on the fact that bargaining rights exist. However, as a matter of equity, and by reason of the trade union's conduct or representations, the trade union is "estopped" or precluded from relying upon those existing bargaining rights to claim benefits which flow from the assertion of those bargaining rights. Abandonment is the relinquishment of bargaining rights - estoppel the inhibition to assert bargaining or other labour relations rights.

73. Two practical consequences flow from the distinction between abandonment and estoppel. The first is the difference in the nature of the evidence required to be adduced to support either finding. As indicated, in order to support a finding of abandonment the employer must adduce unambiguous and unequivocal evidence that the union has, in effect, "walked away from its bargaining rights" or that there has been some affirmative action or conduct by the union which points to, or enables the Board to draw an inference of abandonment. In our view the evidence to support an estoppel however is qualitatively different. Although the union may not be required to prove through affirmative conduct that it asserted or exercised its bargaining rights to counter the employer's claim that it abandoned those rights, it may be required to lead evidence with respect to its conduct to counter a claim of estoppel.

74. The second practical consequence which flows from the distinction between abandonment and estoppel relates to the issue of remedy. Typically, in a labour relations context, estoppel does not generally relate to the entirety of a collective agreement. Generally, where an estoppel is raised, the estoppel relates only to those provisions of the collective agreement which the trade union has represented it will not strictly enforce (either expressly or implicitly by reason of its conduct). Thus, while a finding of abandonment has the effective result that the union's bargaining tights no longer exist and none of the bargaining rights can be asserted, the effective result of a finding of estoppel is that it only affects those rights or benefits which the union is precluded from relying upon because of its representations to the employer. The rights or benefits of the agreement which are the focus of this case revolve around the "union security" provisions of the agreement — the obligation to use only employees who are union members hired through the union hall to perform construction work, or the obligation to sub-contract work to unionized contractors te. those in contractual relationships with the union.

75. We are satisfied that the essential elements for an estoppel have been established in this case in relation to both the conduct of local 785 which filed this grievance, and the employee bargaining agency and other ABAs which hold bargaining rights with respect to the Bank's employees.

76. The agreed upon evidence indicates that since 1978, within local 785's geographic area, approximately twenty-five per cent (25%) of the Bank's construction and maintenance projects have been performed on a non-union basis (ie. using non-union contractors rather than the Bank's own "union" forces or a "unionized" contractor). Since 1978, with the exception of the north west Ontario geographic area within the jurisdiction of local 1699, the Bank has had at least one "nonunion" project in each geographic area across the province within the different jurisdictions of the various locals (or ABAs) of the Carpenters' union. Although across the province on average only ten to twenty (10% - 20%) of the Bank's construction activities were "non-union", there are specific geographic areas such as London (or the entire area encompassed by the Counties of Oxford, Perth, Huron, Middlesex, Bruce and Elgin) Barrie (Simcoe County) and Hamilton (the Regional Municipality of Hamilton-Wentworth and Burlington where all or a vast majority of the construction activities were performed on a "non-union" basis. We find that this evidence, combined with the lack of any evidence of communication from the union to the Bank which would indicate to the Bank an assertion of bargaining rights by the union, is sufficient to establish an estoppel by representation. We find that the union's silence and its conduct in not enforcing collective agreement obligations on those occasions and in those geographic areas where the Bank performed construction work on a "non-union" basis, represented to the Bank that the union did not require the Bank to comply with all of the union security provisions of the provincial agreement.

77. In this regard we will deal first with the evidence as it relates to the manner in which the Bank performed its construction work using its own direct hire employees. That evidence indicates that so long as these employees were paid union rates and dues and remittances were made to the union on their behalf, the union was content. The union took no steps to actively promote its bargaining rights or otherwise represent these employees. There is no evidence for example that the union required compliance with the hiring hall provisions of the agreement, appointed union stewards (with the single exception referred to in paragraph 5(gg) which we have already referred to as sketchy and vague evidence), visited the Church Street location or job sites upon which these employees worked, or in any other way communicated or interacted with these permanent, long service employees of the Bank.

78. It could be argued that these factors go only towards the quality of representation afforded to union members. Indeed, and for purposes of "abandonment" the Board's past jurisprudence indicates that contact is not necessary to maintain bargaining rights. Thus in Newman Brothers Limited, [1981] OLRB Rep. June 750 at page 761 the Board stated:

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

79. As noted however, the concepts of abandonment and estoppel are separate and distinct. While a lack of contact between the trade union and its members who are employees of the Bank, or a lack of personal contact between the trade union and the employer may not necessarily cause the Board to find an abandonment of bargaining rights, that lack of contact is a relevant factor in any consideration of the claim made by the employer that the union is estopped from asserting or enforcing rights.

80. In this instance the lack of contact between the union and the employer~ and the union s failure to be more active in promoting its bargaining rights and policing its collective agreements, resulted in the Bank's perspective that it was not bound to any agreement, (or perhaps alternatively if bound, the union would not necessarily strictly enforce any collective agreement to which it might be bound). In the circumstances of this case, for purposes of estoppel, and in the absence of the some explanation for its conduct from the union, we are of the view that the union cannot simply rely upon the employer's payment of union rates or even the remittance of dues on behalf of the employees and submit that to be a sufficient assertion to the employer that it relied upon and intended to strictly enforce its bargaining rights. As has already been noted, generally a union can't simply rely upon an employer's conduct in paying union rates and benefits to establish bargaining rights. Similarly, with respect to the matter of estoppel, in the circumstances of this case, given the union's silence and lack of communication with the Bank, we find that the union can't simply rely upon this same conduct by the Bank and argue as a result that it is not estopped from strictly enforcing all collective agreement obligations.

81. Throughout the past fifteen years the union has apparently been content with existing circumstances whereby it received dues and remittances, and its members were paid appropriate rates and benefits. The union did nothing vis-a-vis the Bank which communicated to the Bank its assertion of bargaining rights in relation to these employees. The union's inactivity over the past fifteen years did not put the Bank (or its employees) on notice that the union was the bargaining agent for, and intended to represent the rights of, carpenters employed by the Bank.

82. From the union's perspective there may not have been a problem so long as its members were doing the work and it was in receipt of dues and remittances. Although no official from the Carpenters' union testified, the Board could perhaps assume this as a reason for the non-communication. From the Bank's perspective however there was a problem because the Bank remained unaware that the union was asserting the right to represent carpenters employed by the Bank, or that it was of the view that the Bank was obliged to strictly comply with all the terms and conditions of the prevailing collective agreements.

83. The lack of contact by the union with respect to the construction work which the Bank performed with its own forces did not communicate to the employer that the union considered itself entitled to represent those employees as a bargaining agent. The union's silence for approximately fifteen years instead conveyed to the Bank that the union had no problems with how the Bank conducted its construction activities when it used its own forces to do the work.

84. Perhaps the scheme of province-wide bargaining in the ICI sector of the construction industry is not conducive to personal contact. The existence of province-wide bargaining however has not eliminated the need for that contact. The local union(s) (ABAs) continue to be responsible for policing the collective agreement and representing the employees of the employer covered by that agreement. Personal contact and communication continue to be necessary to those aspects of the collective bargaining relationship. In this instance that personal contact or communication could have, occurred in any number of ways. The union for example could simply have sent a copy of the negotiated collective agreement together with an appropriate covering letter to the Bank when the two EBA's had concluded negotiations. It did not do so. Union representatives on occasion could have simply telephoned the Bank's representatives. The union did not do so. Neither did the union visit the Church Street location or any construction sites at which the Church Street employees worked. There is simply no evidence that the union took any steps to better inform staff of the circumstances under which the Bank was doing its construction work, or took any steps which would correct the mistaken view held by the Bank that the union had abandoned its rights or was not interested in promoting or enforcing them.

85. The evidence as it relates to the use of outside contractors has also compelled us to find that the union is estopped from relying upon the sub-contracting provisions of the agreement. The agreed upon evidence (see paragraph 5 (JJ)(i)) indicates that over the past fifteen years, when the Bank contracted out its construction work, approximately thirty-five to forty-five (35% - 45%) of that work was contracted out to non-union contractors. Although the evidence does not prove that the trade union knew of all of this construction work that was contracted out "non-union" by the Bank, we have concluded that the union reasonably ought to have known of at least a portion of it. To borrow from the language of some of the Board's earlier related employer jurisprudence, a union can't be "willfully blind" (see for example The Great Atlantic & Pacific Company Limited, [1981] OLRB Rep. Mar. 285; Subito Contracting, [1981] OLRB Rep. Oct. 1494 and the cases referred to therein) and then for purposes of estoppel claim its conduct does not amount to a representation. Once again the simple method of an occasional telephone call from the trade union representatives to the Bank (especially in relation to any jobs which may have been advertised in the Daily Commercial News) would have alerted the union to the fact that the Bank was sub-contracting at least a portion of its work to non-union contractors. More importantly, such simply contact would have cured the Bank of its mistake and belief that it could contract out its construction work without regard to the union affiliation of the contractor. The union did not make any efforts at such contact. Instead, the union's silence conveyed to the Bank that the Bank could continue to operate as it was in a manner that was based solely on the Bank's business considerations and unrelated to any obligation to recognize the bargaining rights held by the union or to comply with all terms of the existing collective agreements.

86. In the circumstances of this case, the past conduct of the carpenters, or lack thereof, conveyed two representations to the Bank; (1) that the union was not policing its collective agreements and did not require strict adherence to all of the union security provisions of its collective agreements, and (2) insofar as its representation of employees was concerned, the union was not communicating with either the Bank or the employees about those representation rights. Over the years the Bank has relied upon these representations to continue to perform its construction activities as it had before the 1976 and 1978 certificates were granted. The parties to this collective bargaining relationship have proceeded on the basis of the underlying assumption, as evidenced by the trade union's conduct, that the union was not particularly interested in fully exercising the rights and responsibilities which came with its status as bargaining agent. The union should not now be allowed to go back on that underlying assumption unless it provides sufficient notice that it no longer wishes to continue the collective bargaining relationship on the same assumption.

87. This brings us then to the issue of the length of the estoppel. In cases of estoppel, because the union's bargaining rights are not abandoned or extinguished, but enforcement of certain of the bargaining rights is merely suspended, the issue arises as to the period of time during which the enforcement of the bargaining rights are suspended. The length of time during which a trade union is prohibited from asserting bargaining rights which otherwise exist is a matter to be determined on the facts. Perhaps, in unusual and exceptional cases it may be that the estoppel is "permanent". Thus, for example, if the conduct of the union is such that the employer cannot resume its posttion even upon the giving of reasonable notice by the trade union, it may be that the estoppel is permanent or irrevocable. More typically however the facts and circumstances of the estoppel cases dictate a result which is not a "permanent" estoppel, but an estoppel for a period of time sufficient to enable the employer which changed its position, or which relied on the trade union s conduct to its detriment, the time necessary to place itself in the same position it was in prior to the conduct or actions which gave rise to the estoppel, or the position it would have been in had it not relied to its detriment on the trade union's representations. The estoppel or the suspension of the enforcement of bargaining rights is thus ended upon the giving of reasonable notice which enables the employer the opportunity to resume its former position vis-a-vis the union's existing bargaining rights.

88. Counsel for the employer argued the estoppel is permanent and pertains in effect to the entirety of the agreement. Counsel for the trade union argued any estoppel was brought to an end with the telephone call referred to in paragraph 6 herein, or alternatively with the filing of this grievance. We do not accept either position. We have already indicated that, unlike abandonment, estoppel does not generally apply to all of the rights and benefits of the trade union, but applies only to those rights and obligations which the union by its conduct represented it would not seek to enforce. We turn therefore to the issue of the length of notice.

89. We do not agree that the telephone call which preceded the filing of this grievance was an assertion of bargaining rights by the trade union or somehow put the employer on notice that the union would seek to fully exercise its bargaining rights and now sought strict compliance with all provisions of the collective agreement. The agreed upon evidence indicates that, at best, the telephone call was an inquiry by a local union official to the Bank.

90. Neither do we accept that the estoppel is permanent. Insofar as its own forces were concerned, and as noted herein, these forces must be considered to have been "union" forces. The union's conduct and the estoppel created by that conduct therefore extends only to permitting the Bank to continue to hire its own employees who are (or who will become) union members, who are paid union rates and on whose behalf remittances to the union are made as was the Bank's practice in the past. The estoppel cannot and does not extend so far as to permit the Bank to hire its own employees who are not union members or who will not be paid union rates etc. Moreover, it was Mr. Hafenbrack's evidence that the use of "union" employees or the payment of "union" rates and benefits did not cause the Bank any difficulty in terms of its ability to run its operations.

From a "reliance" perspective therefore, and at least insofar as its own employees were concerned, for purposes of the estoppel the notice required by the Bank in order to be put into the position it would have been in had it not relied on the union's representations by conduct would not appear to be necessarily long — sufficient time to enable it to comply with all other terms of the collective agreement not previously enforced. The closing of the Church Street shop location has however rendered this issue academic.

91. Insofar as estoppel and the Bank's construction activities through the use of outside contractors is concerned, however, the issue is complex. For nearly fifteen years the Bank has contracted out a portion of its construction activities to outside contractors. As a result of the union's conduct as noted herein, when it contracted out work the Bank did not consider the union affiliation of those with whom it contracted. In letting out construction contracts, the Bank was motivated by business considerations and not the union affiliation of the contractor engaged. The union now seeks to strictly enforce the collective agreement with the obvious result that union affiliation of those with whom the Bank contracts would become a prime consideration.

92. Over the past fifteen years the Bank developed its methods of performing its construction work, let out contracts, established and terminated relationships, while the union silently stood by without any communication to the Bank that its conduct was inconsistent with its obligations to recognize the bargaining rights held by the trade union. That the Bank acted differently because of the union's conduct and fifteen year silence is beyond doubt. The union now seeks to alter that state of affairs. In our view the union may do so only upon the giving of reasonable notice, that is to say, notice which takes into account the reliance interests of the Bank and which provides to the Bank an opportunity to return to the position it was in when the union exerted its bargaining rights.

93. The union argues that such notice was given when this grievance was filed and that the estoppel was brought to an end at that time. It asserts that with the filing of this grievance the Bank was put on notice that the union was asserting its bargaining rights and sought to enforce all of the collective agreement obligations. From that point forward the Bank knew that its future construction activities could be affected by that assertion of bargaining rights and enforcement of collective agreement obligations.

94. We have determined that, in the face of a fifteen year silence by the union, the Bank need not have altered the manner in which it had conducted its construction activities merely because it received notice of a grievance.

95. In the result we have decided that the requisite notice which brings to an end the estoppel and which appropriately considers the past reliance of the Bank comes with the issuance of this decision. The estoppel therefore does not apply to contracts entered into after this date. With this decision the Bank knows that the union is asserting its bargaining rights and intends to enforce those bargaining rights. As a result of this decision the Bank also knows that its arguments of abandonment have not been accepted, it is required to recognize the union and comply with all of the provisions of the collective agreement including the sub-contracting provisions. It knows that any future dealings with outside contractors will be affected by those bargaining rights and can govern itself accordingly (see also for example Aluma Systems Canada Inc., [1994] OLRB Rep. Nov. 1469).

96. We recognize that this grievance was filed in January 1993 and that the Bank may have engaged in construction activities in the intervening two year period in contravention of the terms of the ICI provincial agreement. Our decision with respect to the estoppel and the appropriate notice required to end such an estoppel should not be taken as a signal that the Board will always bring the estoppel to an end with the issuance of its decision. In this regard, we are particularly concerned that parties may engage in lengthy, protracted and unnecessary litigation in an effort to prolong the period during which the estoppel runs. That is neither the purpose nor the intended result of this determination. Rather it must be remembered that estoppel is an equitable concept used by courts and administrative tribunals alike to fashion fair and appropriate remedies which take into account all the facts and circumstances. In this case the Bank has pursued a compelling and meritorious position which ultimately was rejected by the Board. The time which has elapsed since the filing of this grievance and the issuance of this decision has been the result (in large part) of the pursuit of legal avenues, and there is nothing to suggest that either party deliberately delayed matters. In other less compelling circumstances, or where the Board considers the delay to be the fault or responsibility of one of the parties, the Board may find that an equitable balancing of the facts results in the estoppel coming to an end with the filing of the grievance as it did in KNK, supra. Alternatively, an equitable balancing of the facts and circumstances may, in appropriate cases, cause the Board to conclude that the estoppel should run for some time beyond the issuance of its decision. Each case must be determined on its own particular facts.

97. In the result we declare that the Bank is bound to recognize the bargaining rights of the Carpenters and is bound to the existing Provincial Collective Agreement between the Carpenters Employer and Employee Bargaining Agencies. This grievance however is dismissed.