[1996] OLRB REP. SEPTEMBER/OCTOBER 811
0104-96-G Bricklayers' & Masons' Union No. 1, Ontario of the International Union of Bricklayers & Allied Craftsmen, Applicant v. G.S. Wark Limited, Responding Party v. Construction Workers Local 6, affiliated with the Christian Labour Association of Canada, Intervenor
BEFORE: G. T Surdvkowski, Vice-Chair, and Board Members F. B. Reaume and J. Redshaw
APPEARANCES: J. David Watson and Kerry Wilson for the applicant; Stephen McArthur, Wendy C. Hyman and George Wark for the responding party; no one appearing for the intervenor.
DECISION OF G. T. SURDYKOWSKI, VICE-CHAIR, AND BOARD MEMBER J. REDSHAW; October 18, 1996
This is a referral to the Board of a grievance in the construction industry, under section 133 of the Labour Relations Act, 1995.
The applicant trade union ("Local 1") grieves that the responding employer ("Wark") has violated the provincial collective agreement between the Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftsmen, and the Masonry Employers Council of Ontario, effective from July 28, 1995 to April 30, 1998 (the "Bricklayers Provincial Agreement"), and seeks certain declarations and orders with respect thereto.
Wark denies that it is bound by the Bricklayers Provincial Agreement and submits that the grievance should therefore be dismissed. In that respect, Wark concedes that it voluntarily recognized and entered into a collective agreement with Local 1 on February 19, 1963, but asserts that Local 1 has abandoned any bargaining rights it obtained through that agreement.
The parties agreed to proceed by dealing with the abandonment issue first, and also agreed that the Board should remain seized of the grievance if it concludes that Local 1 does hold the bargaining rights it asserts. In addition, the parties filed an Agreed Statement of Facts with respect to the abandonment issue as follows:
AGREED STATEMENT OF FACTS ON THE "ABANDONMENT" ISSUE
The respondent is a general contractor.
The respondent was awarded a general contract in 1963, and in order to complete the contract following the insolvency of the masonry subcontractor, signed an agreement with the applicant (Exhibit I).
Since 1963, the respondent has always subcontracted its masonry work and has never employed any bricklayers directly.
In 1970 the union delivered a copy of Exhibit I to the respondent and the respondent acknowledged receipt of same (Exhibit 2).
In 1973, the applicant listed the respondent as a general contractor "under agreement to Local I" in a letter to the O.P.C. (Exhibit 3). There is no evidence that this document was given to the respondent.
In 1979 the applicant referred some form of grievance against the respondent to the O.P.C. Due to a lack of documentation and failing memories, the only evidence concerning this grievance and its [disposition] are the two letters attached to the Reply (Exhibit 4 & 5). There were no further grievances or written correspondence between the applicant and the respondent until 1994. The 1994 [contact] was not a grievance, but a request by the applicant that the respondent pay the "holdback" directly to the bricklayers. This was done by a trust cheque issued to the applicant paid from the trust account of McArthur Veresehagin.
Between 1963 and 1977, it appears that the respondent subcontracted masonry work (within the geographic area of the applicant) to employers under agreement with the applicant. However, it is possible that some such work was subcontracted non-union.
CLAC does not have any masonry subcontractors under agreement in the Hamilton area. No subcontractor having an agreement with CLAC has ever performed masonry work for the respondent.
Exhibit 6 is a "partial" job list that [sic] from 1979 to 1995. The jobs highlighted in yellow were performed by masonry subcontractors under agreement with the applicant. To the best of the union's knowledge, the masonry subcontractor on the Men's Detoxification Centre was Bert Gorgi Masonry, which is bound to an agreement with the applicant. Originally, the masonry subcontractor at St. Raphael's Catholic School was also given to Bert Gorgi Masonry however, the subcontract was cancelled due to this company's insolvency. The respondent paid the applicant directly through its solicitors for wages owing to employees as a result of Bert Gorgi's insolvency.
The union's business manager, Dave Priestly was ill and unable to work through 1982 and 1983. During this period, Mr. Priestly's replacement was unfamiliar with the duties of [a] union representative.
In 1983, the respondent was the general contractor awarded a contract for the construction of Construction House in Hamilton. As a result of pressure by the applicant, the masonry subcontractor on this project, Comm Masonry, signed a collective agreement with the applicant. Thereafter, the project was completed by Comm Masonry pursuant to the terms of the Bricklayers Provincial Collective Agreement. At the time when the Construction House Project was awarded, Comm Masonry was non-union. The respondent has no direct knowledge of what lead [sic] Cumin Brothers Masonry to sign a collective agreement with the applicant.
In February 1996, the union filed a grievance as a result of the respondent using a nonunion subcontractor to perform masonry work at a commercial or industrial project on Rennie Street in Hamilton.
The applicant never intended to abandon its ICI bargaining rights with the respondent.
The responding party's evidence would be that since 1963 it awarded subcontractors on the basis of low bid, without regard to union affiliation.
On its larger projects the respondent would have carried on business openly, with job site signage and an equipment trailer marked "0.5. Wark".
[The Exhibits attached to the Agreed Statement of Facts are not reproduced herein.]
We note that the Construction Workers Local 6, affiliated with the Christian Labour Association of Canada (the "CLAC") filed an intervention asserting that it is the bargaining agent for the employees of Wark who are affected by this grievance. The CLAC attended at the Board on the first day scheduled for hearing on September 9, 1996, which the parties spent negotiating their Agreed Statement of Facts, but was not represented when the hearing actually began and the abandonment issue was argued on September 10, 1996.
In the absence of any other explanation or suggestion, the Board must look to the materials filed for an explanation for this. First, it is far from clear that the CLAC collective agreements to which Wark has been bound over the years cover bricklayers (or stonemasons, plasterers, their respective apprentices, improvers and working foremen), who are the employees which Local I asserts it represents. Second, on the agreed facts before the Board, the CLAC has no collective agreements with any masonry subcontractors in the Hamilton area where Wark is active, and no subcontractor bound to a collective agreement with the CLAC has ever performed any masonry work for Wark. The only reasonable inference from this, and from the CLAC's (and Wark's) failure to pursue the assertion that the CLAC holds bargaining rights which are relevant to the Board's considerations in this case, is that the CLAC does not hold any such rights.
Wark submits that the conduct of Local I in the some 33 years since the parties entered into a collective agreement in 1963 demonstrates that Local 1 has made no effort to enforce any collective bargaining rights or to maintain a collective bargaining relationship with the company. Indeed, says Wark, Local l's conduct constitutes an acknowledgement that it has no bargaining rights with the company.
Local I submits that whether or not bargaining rights have been abandoned is a question of fact, that a prerequisite to such a finding of abandonment is a finding that the trade union concerned intended to give up its bargaining rights, and that there is a heavy onus on an employer to present clear and cogent evidence of abandonment in order to rebut the operative presumption in such cases; that is, that the trade union has not abandoned its bargaining rights.
The principle that a trade union can abandon bargaining rights is firmly established. It has been applied by the Board for some forty years, and the Board's jurisdiction to find that a trade union has abandoned bargaining rights has been confirmed by the courts (see, for example, Re Hugh Murray (1974) Ltd. & John Entwhistle Construction Limited (1980) 33 O.R. (2d) 667, application for leave to appeal to the Court of Appeal dismissed February 2, 1981). Indeed, Local 1 did not suggest otherwise in this case.
A primary purpose of every Ontario Labour Relations Act has been, and continues to be under the current Act, to facilitate collective bargaining and promote the expeditious resolution of workplace disputes. This purpose cannot be realized if a trade union is not active in the exercise of its bargaining rights. In addition, where a union does not exercise its bargaining rights, unfairness or prejudice can result, either to the employees the union is supposed to be representing, or to the employer which concludes that it is free to act as though there is no union in place. Accordingly, a trade union which has obtained bargaining rights, whether through certification or voluntary recognition, is expected to actively exercise those rights. A trade union which fails to use bargaining rights may lose them.
Whether a trade union has abandoned bargaining rights is a question of fact which stands to be determined on the facts surrounding the issue in each particular case. Among the factors which the Board considers in determining an issue of abandonment are the length and degree of the trade union's inactivity, whether the trade union has attempted to negotiate or renew a collective agreement, whether terms and conditions of employment have been altered without the agreement or objection from the trade union, and the trade union's explanation for its conduct (or lack thereof). The quality of a trade union's representation will not, as such, be a relevant consideration, except to the extent that it may suggest abandonment. For example, complete inactivity and a refusal to respond to employee complaints indicates a poor quality of representation which may, in the context of the circumstances as a whole, and in the absence of a satisfactory explanation from the trade union, indicate abandonment.
It is true, as Local I asserts, that the onus is on the parties asserting abandonment to establish it, and that the presumption is that trade unions do not voluntarily abandon bargaining rights (Ellis-Don Limited, [1992] OLRB Rep. Feb. 147; application for judicial review dismissed [1995] OLRB Rep. Dec. 1506, Ontario Court of Justice (General Division), Divisional Court).
Notwithstanding the language used in some Board decisions, we respectfully suggest that it is inaccurate to say that "clear and cogent" evidence is required to establish abandonment, at least in the sense suggested by Local 1. First of all, the Board's factual determinations are always made on the balance of probabilities, while "clear and cogent", as argued by Local I, suggests some higher test. Second, a common feature of abandonment cases is a less than satisfactory evidentiary foundation. It is not unusual, as in the case herein, for abandonment cases to deal with long periods of time for which there is little documentary evidence and where witnesses are either unavailable or have a very poor recollection of events. Many abandonment cases have to be determined on the basis of inferences drawn from bits of documentary or other evidence which is available. Accordingly, what constitutes evidence of abandonment, and what evidence is sufficient to rebut the presumption against abandonment, will depend on the circumstances. Further, since the operative presumption is clearly rebuttable, the onus can shift to the trade union to explain its conduct (as it does when it comes to a consideration of automatic collective agreement renewal clauses, for example - see below).
Similarly, although a trade union's "intent" with respect to bargaining rights is a factor which the Board will consider, this intent must be discerned from the objective facts, and the reasonable inferences which can be drawn from those facts. The weight which is given to a trade union's subjective ex post facto expression of intent at a hearing when abandonment is raised will depend on the circumstances, but it will generally be given little weight unless there is something in the evidence before the Board supports it, and it will not necessarily be determinative in any event.
Further, cases which involve the province-wide bargaining scheme in the ICI sector in the construction industry present particular difficulties. Many such cases, including this one, involve periods of time which both precede and follow the introduction of provincial bargaining in 1978. At the very least, the Board will consider post-provincial bargaining conduct insofar as it may give an indication of whether the bargaining rights in issue were or were not abandoned prior to the introduction of provincial bargaining (Marineland of Canada Inc., [1990] OLRB Rep. Dec. 1298). This does not mean that post-provincial bargaining conduct cannot be the basis for a finding of abandonment and it seems that a further clarification may be necessary in that respect.
It has been suggested that the Board's decisions in Culliton Brothers Limited, [1982] OLRB Rep. March 357 and Lorne's Electric, [1987] OLRB Rep. Nov. 1405 stand for the proposition that provincial bargaining rights in the ICI sector cannot be abandoned. We respectfully disagree. In neither of those decisions did the Board say that the principle of abandonment does not apply to the province-wide bargaining scheme and provincial collective agreements in the ICI sector of the construction industry. (Nor is it impossible for there to be abandonment of ICI bargaining rights. Consider the admittedly extreme example of an employee bargaining agency, having the actual authority to do so, writing to an employer expressly stating that it and all of its affiliated bargaining agents are abandoning their ICI bargaining rights with respect to that employer.) Those decisions do no more than suggest that it is more difficult to establish abandonment in such circumstances because of the way bargaining rights are distributed under the Act, and the way that provincial agreements operate in the ICI sector. Further, to the extent that either of these decisions, or others, suggest that the conduct of an employee bargaining agency or an affiliated bargaining agent cannot weigh against other affiliated bargaining agents (or the employee bargaining agency, which in any case is always also an affiliated bargaining agent) for the purpose of determining whether bargaining rights have been abandoned, we also respectfully disagree. It will not necessarily be the case that the conduct of one trade union entity will weigh against another related trade union entity in that respect, but it is not obvious why that could never be the case. Indeed, the conduct of other affiliated bargaining agents, or the employee bargaining agency, which have had an opportunity to exercise bargaining rights may be symptomatic of abandonment, or not, as the case may be.
In this case, we are concerned with the period February 19, 1963 when Wark and Local 1 entered into a collective agreement, to February 20, 1996, the date on the grievance letter herein. This is a 33-year period, of which 15 years were before and 18 years were after provincial bargaining came into effect.
The evidence is indeed sparse, but what the Board is left with is this:
Wark has always operated as a general contractor. It has not directly employed bricklayers, except on one occasion.
In early 1963, Wark decided to complete some masonry work which it had originally subcontracted, and for that purpose it entered into a collective agreement with Local 1, and (we infer) directly employed members of Local 1 to perform the work. Wark has never employed any bricklayers since.
The collective agreement which Wark and Local 1 entered into was effective from February 19, 1963 to May 1, 1964 and provided that it would continue in force "from year to year thereafter unless notice of proposed change is given by either party within ninety days prior to [May 1, 1964], or within ninety days prior to such day and month in any succeeding year."
No notice to bargain was ever subsequently given by either Wark or Local I. Wark and Local I did not directly enter into any other collective agreement. Indeed, there was no written communication, either with respect to bargaining or the collective agreement until 1970 when Local 1 sent a copy of the 1963 agreement to Wark.
The 1963 collective agreement contains the following recognition and subcontracting clauses:
(4) The Employer recognizes the Union as the exclusive bargaining agent of all of the employees of the Employer within the jurisdiction (geographical) of the Union who do or perform any of the work as classified as work of members of the Union in Schedule "A" of this agreement, and who do or perform any of the work of laying, pouring, application and erection of all refractory materials, whether such materials are laid, trowelled, poured, blown or pounded and wherever installed.
(6) It is agreed that should the Employer sub-contract any of the work coming within the scope of this agreement, that such work will be let only to employers who have collective agreements with the Union.
It also contains the following provision:
(8) It is further expressly agreed to between the Union and Employer that each will comply with and adhere to the terms and conditions of employment of the Agreement made between the Union and the recognized and/or established employer group representative of the trade or sections thereto; and to any and alt changes or "new" agreements from time to time made; and without limiting the generality of the foregoing, the employer will adhere to and comply with the terms of such agreements with respect to wages and hours and days of work and any changes or 'new~' agreements from time to time made; the obligations and covenants herein (8) to take precedence and supersede the obligations and covenants expressed elsewhere in this agreement where the obligations of the employer is in conflict therewith; a copy of any and all agreements are attached hereto, and the employer will be notified of any changes or new agreements made.
In that latter respect, we note that the copy of the 1963 collective agreement filed with the Board by the parties consists of a single page. There is no "Schedule A" which is referred to in clause (4). Was there one? We don't know. Nor were there any documents of the kind referred to in clause (8). Were there any? Again we cannot be certain, but since the parties agreed that there were no other materials or written communications exchanged between them other than the ones filed, and there is nothing in the agreed facts which suggests that Wark is a member of any employer organization with which Local I had dealings prior to provincial bargaining, we find it appropriate to infer that there were not.
In the absence of any evidence or even suggestion to the contrary, we infer that there was no other communication whatsoever between Wark and Local I until late 1978.
On October 31, 1978, Local I filed some sort of grievance. The particulars of this grievance have been lost and forgotten. All we know about it is that it was taken up by the Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftsmen which requested, by letter dated February 20, 1979, that Wark provided it with a copy of Wark's collective agreement with CLAC. We also have before us a copy of a letter from Wark dated March 22, 1979 in response of the Ontario Provincial Conference's request. There is nothing before the Board which indicates what happened with this grievance.
There is no suggestion that there were any other grievances (either before or after provincial bargaining) until the grievance before the Board in this case.
Wark has been continually and visibly actively involved in masonry work in the ICI sector within Local l's territorial jurisdiction from 1963 to the present.
Prior to provincial bargaining, from 1963 to 1977, Wark subcontracted all or substantially all of its masonry work to employers with which Local I had a collective agreement. The fact that it is "possible" that some masonry work was subcontracted non-union, is not a basis upon which the Board can reasonably infer that that in fact happened, or even if it did, that any significant amount of work was subcontracted to nonunion employers.
After the introduction of provincial bargaining, from 1979 to 1995, Wark did subcontract some of its work to non-union employers. It is difficult to discern how much of Wark's masonry work went non-union. The list of projects agreed to between the parties lists only the name of the project, the name of the masonry subcontractor, and the year. We know nothing about the size or duration of any of the projects, or of the nature of Wark's involvement with them. We are left with a list of 56 ICI projects, 36 (or 64%) of which were subcontracted to contractors which are bound to the Bricklayers Provincial Agreement, and 20 (or 36%) of which were subcontracted to non-union contractors, plus Local 1 's agreement that throughout the entire period since 1963, Wark subcontracted masonry work without regard to union affiliation. However, upon closer inspection of this partial job list filed by the parties, we find that at least 7 of the 20 projects which were subcontracted non-union were performed outside of Local l's geographic jurisdiction (i.e. the Parry Sound, Guelph, Oshawa and Napanee projects). These cannot be directly held against Local 1 and changes the picture considerably since the union and non-union subcontracted percentages have changed to 73% and 27% respectively. Although it is reasonable to infer from this that neither the employee bargaining agency nor any other affiliated bargaining agent has filed a grievance against Wark in that respect, there is nothing before the Board which suggests that any of these jobs did or ought to have come to their attention, or that they were grievable (i.e. that they did not fall within the exceptions in Article 1 of the Bricklayers Provincial Agreement) (see below).
It is reasonable to infer from the evidence that since 1964, when the initial agreement expired and was automatically renewed, Wark has conducted itself as though it has not been bound by any collective agreement with Local 1.
The only other document which makes reference to Wark is a "list of contractors under agreement to Local No. 1 Hamilton, Ontario" prepared by the union for its own purposes, in early 1973 it appears. Wark is listed as a contractor which "sublets all work". This document was not sent to Wark.
We note that the Bricklayers Provincial Agreement under which the grievance herein is filed was not filed with the Board until the Board asked for a copy at the hearing. This Provincial Agreement, between the employee and employer bargaining agencies as required by the Act, contains the following recognition and subcontracting provision:
ARTICLE 1
Recognition and Sub-Contracting
(a) The Employer recognizes the Union as the exclusive bargaining agent for Bricklayers, Stonemasons and Plasterers, their respective Apprentices, Improvers and Working foremen in his employ in the Province of Ontario, in areas described in Appendix "B" hereto.
(b) The Union recognizes the Employer as the exclusive bargaining agent for all members as outlined in Appendix "A" and any other Employers desirous of entering into a contractual agreement with the Union in the geographic areas as described in Appendix "B" hereto.
(c) Any Employer who is a party to this Agreement desirous of contracting or sub-contracting any work encompassing the skills of members of the Ontario Provincial Conference shall only contract or sub-contract same to a contractor or sub-contractor who is bound by the Provincial Agreement with the Ontario Provincial Conference.
(d) Without restricting in any way the application of the subcontracting provision contained in Article 1(c) of this Agreement, an Employer who undertakes a contract with an owner to provide construction management services shall be subject to Article 1(c) unless:
i) The owner selects contractor(s) not bound to this Agreement to bid on work covered by this Agreement and solely and directly solicits or obtains bid(s) for such work from such contractor(s) without any involvement or participation by the employer in the selection of such contractor(s) (except as to the validity of the bids) or the solicitation or obtaining of any bid(s) from any contractor(s) regardless of whether it (they) is (are) bound or otherwise to this Agreement;
ii) The Owner accepts bid(s) from contractor(s) not bound to this Agreement; and,
iii) The Owner contracts or subcontracts directly with contractor(s) not bound to this Agreement without contractual obligation of the Employer for the work of such contractor(s), other than for the negligent acts or omissions of the Employer.
(e) Any failure to comply with Article 1(d) of this Agreement shall render the Employer liable for damages equivalent to those for the breach of the subcontracting provision set forth in Article 1(c) above.
(f) The Employer shall advise the owner of the provisions of Articles 1(d) and 1(e) when undertaking the Construction management services contract.
Wark is not listed in Appendix A or anywhere else in the Provincial Agreement. Nor is there anything in the evidence before the Board which suggests that Wark has participated in the provincial bargaining or ratification process, or that the employer bargaining agency has purported to bargain on Wark's behalf in that respect. On the other hand, two of the ten contractors (Leo Boin Masonry and J.D. Masonry) which the parties agreed (on the Exhibit 6 partial job list) are union contractors, are not listed anywhere in the Provincial Agreement either. (There is a "John D. Masonry listed in Appendix "A", but we cannot assume that is the same entity as J.D. Masonry.)
Finally, notwithstanding all of this, Wark agrees that Local 1 never intended to abandon its ICI bargaining rights with Wark.
The Board rejects Local I 's submission that the agreement of the parties that Local 1 never intended to abandon the bargaining rights in issue is determinative of the abandonment issue. "Intent" is a fundamental part of the principle of abandonment, and it is inherent in the principle that a finding of abandonment depends upon a finding that the trade union intended to abandon its bargaining rights. But the intent which is important is the union's objective intent as demonstrated by its conduct during the relevant time period, and not its subjective intent as expressed after the fact when the union is responding to an assertion that it has abandoned its bargaining rights. That is, the question is: when viewed objectively, does the trade union's conduct demonstrate an intention to abandon bargaining rights?
The Courts have agreed that it is appropriate for the Board to apply a rebuttable presumption that a trade union does not intend to abandon bargaining rights. This merely means that abandonment must be demonstrated and is not to be assumed, and that the onus is on the party which asserts abandonment. Further, when combined with the "balance of probabilities" test which the Board applies when making findings of fact, which a finding of abandonment is, this suggests that the benefit of any doubt in that respect should be given to the union. Consequently, a trade union which contests an assertion that it has abandoned bargaining rights is deemed to be expressing a subjective intent which is assumed by the presumption. When a union repeats such a subjective intent at a hearing, it merely restates the presumption, which adds nothing to the inquiry other than confirming that one is required.
Accordingly, where a party alleges abandonment, which as in this case is often an employer, it must call sufficient objective evidence to rebut the presumption. If it does, the onus shifts to the union to explain its conduct and demonstrate why it is more probable than not that the objective evidence is not consistent with an intention to abandon bargaining rights. Direct evidence of the union's intent in that respect will be relevant and can be quite important to the Board's consideration of the issue.
This case does present an unusual feature in that we are unaware of any previous case in which an employer alleging abandonment has agreed, as Wark has agreed in this case, that the union did not intend to abandon its bargaining rights. While not determinative, this is an important consideration, and forms the factual backdrop against which the rest of the facts must be assessed and inferences drawn.
As is often the case when abandonment is an issue, not all of the facts and inferences lead to the same conclusion. In that respect, it is often as important to consider what facts are not before the Board, and which inferences cannot reasonably be drawn having regard to where the onus lies, as it is to consider the facts which are before the Board, and the inferences which can reasonably be drawn.
It has neither been agreed nor even suggested that Wark and Local 1 entered into the 1963 agreement solely for the purposes of the unnamed project which Wark wanted to complete itself. The 1963 agreement is not written as a project agreement. It contains a subcontracting restriction which applied to the way Wark generally conducted its business, and it provides for the negotiation of a renewal collective agreement, failing which the 1963 agreement would be automatically renewed. Further, in 1970, Wark acknowledged receiving a copy of the 1963 collective agreement and there is nothing before the Board which suggests that the company took the position that it was no longer bound by that agreement. On the other hand, the parties agree that Wark's evidence would have been that since 1963 it subcontracted without regard to union affiliation. Since this is not disputed, the Board must accept this as a fact. This fact constitutes conduct which is consistent with Wark considering itself not to be bound by the 1963 agreement, even though, as the parties also agreed, between 1963 and 1977 Wark in fact subcontracted its masonry work in Local I 's jurisdiction to union contractors. Regardless of what Wark might have thought (and there is no evidence of its "thoughts"), however, it did not in fact enter into a project agreement and there was nothing in its conduct prior to 1979 which would have suggested to Local I that the company did not consider itself bound by the 1963 agreement.
By themselves, the automatic renewal provisions in the 1963 agreement do not assist Local 1. The Board has long considered that after the second automatic renewal, such provisions are ineffective for purposes of defending against an argument that the union has abandoned its bargaining rights (see, for example, Belleville & District Builders Exchange, [1963] OLRB Rep. May 114; Sandercock Construction Ltd., [1970] OLRB Rep. July 531; R. Reusse Co. Ltd., [1988] OLRB Rep. May 523). After the second such renewal, there is a positive onus on the union to satisfy the Board that it has not abandoned the bargaining rights in issue. In this case, there was no communication between Local I and Wark with respect to renewing or negotiating a new collective agreement. However, the 1970 correspondence with respect to the 1963 agreement suggests that the parties considered that agreement to have automatically renewed itself until at least then. On the other hand, the fact that Wark subcontracted masonry work without regard to union affiliation suggests the contrary. But there is nothing before the Board which suggests that Wark openly took that position, and its conduct, namely subcontracting to employers with which Local 1 did have bargaining rights, would not have suggested to Local I that anything was amiss, particularly since it is apparent that from Local l's perspective it was the subcontracting clause in the 1963 agreement which was of primary importance since Wark was and is a general contractor which subcontracts its masonry work. Consequently, although even in circumstances like these it is both appropriate and wise for a trade union to keep the collective bargaining lines of communication open, by confirming an automatic renewal if nothing else, Local I 'S failure to do so in these circumstances does not weigh as heavily against it, as it might have in other circumstances (if, for example, Wark had continued to employ bricklayers directly - see, Toronto Dominion Bank, [1995] OLRB Rep. May 686).
The 1973 internal Local I listing of employers and its October 31, 1978 grievance indicate that Local I considered its bargaining rights with Wark to be "alive", and that it was doing something to enforce those rights. The February 20 and March 22, 1979 correspondence concerning the October 31, 1978 grievance is ambiguous. On its face, it does not suggest that Wark was challenging Local l's bargaining rights. Reading the correspondence in light of the parties' agreement that Wark has always subcontracted without regard to union affiliation might lead one to draw such an inference. However, the reference to Wark's collective agreement with the CLAC, and the fact that the CLAC agreement does not appear to cover the employees which Local I asserts it has bargaining rights for, suggest that it is more likely that there was a dispute concerning the ambit of Local l's agreement, rather than whether Local I had any bargaining rights at all. Without any other evidence on the point, the Board is not prepared to infer either that Wark challenged Local 1 's bargaining rights, or that Local I did not pursue those rights in 1979. We prefer the contrary inference.
Local 1 's post-provincial bargaining record with respect to Wark is also ambiguous. While some 27% of Wark's masonry projects were subcontracted to non-union employers, it is not clear what proportion of Wark's work is involved. Nor is it apparent what proportion of this work, if any, involved masonry work which, pursuant to the provisions of Article 1 of the Bricklayers Provincial Agreement, Wark was not required to subcontract only to union employers. Accordingly, this evidence is insufficient to indicate that Local 1 failed to enforce the bargaining rights it asserts when it ought to have done so.
Similarly, although we find it troubling that Wark is not listed in the Bricklayers Provincial Agreement as one of the employers bound by it, this is less troubling than might otherwise be the case given that at least two of the employers who perform masonry work for Wark on a subcontract basis which are agreed to be bound by the Bricklayers Provincial Agreement are also not listed in it.
In the result, on a balance of probabilities, the evidence taken as a whole, in the context of the parties' agreement that Local I never intended to abandon the bargaining rights it had obtained through its 1963 collective agreement with Wark, is not sufficient to rebut the presumption against abandonment.
Accordingly, the Board is not satisfied that Local I has abandoned its ICI bargaining rights with respect to Wark. The Board therefore declares that G.S. Wark Limited is bound by the Provincial Collective Agreement between the Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftsmen, and the Masonry Employers Council of Ontario effective from July 28, 1995 to April 30. 1998.
The Registrar is directed to schedule this matter for hearing for the purpose of hearing the evidence and representations of the parties with respect to all other matters in issue.
DECISION OF BOARD MEMBER F. B. REAUME; October 18, 1996
I strongly suspect that in 1963 when the said agreement was signed it was the understanding of both parties that this was a project agreement and not intended as a binding ongoing collective agreement conveying the attendant bargaining rights for this trade with respect to G.S. Wark Limited. It was simply meant that this job would be completed using union members. This would explain the presence of a sub-contracting provision in the agreement.
This is not a case where the applicant union intended to abandon bargaining rights, but rather, 1 believe, at least initially, the union did not think that it had or wanted any ongoing bargaining rights. I also suspect that Warks' own labourers (members of the Christian Labour Union) tended for the Local I Bricklayers for the completion of the job in 1963.
However, based upon the agreed upon facts and the lack of any substantive evidence to support these suspicions, I cannot disagree with this decision.