United Brotherhood of Carpenters and Joiners of America v. Westinghouse Electric Corporation, 1998 CanLII 18259

United Brotherhood of Carpenters and Joiners of America v. Westinghouse Electric Corporation

[1998] OLRB REP. JANUARY/FEBRUARY 129

2696-96-R United Brotherhood of Carpenters and Joiners of America, Applicant v. Westinghouse Electric Corporation, Westinghouse Canada Inc., Responding Party

BEFORE: Jules B. Bloch, Vice-Chair.

APPEARANCES: David McKee and Claude Cournoyer for the applicant; Robert Little, Amanda Hunter and Garry Sparks for the responding parties.

DECISION OF THE BOARD; February 12, 1998

1This is an application pursuant to sections 69 and 1(4) of the Labour Relations Act, 1995 alleging that Westinghouse Canada Inc. ("Westinghouse Canada") is either a successor or a related employer to Westinghouse Electric Corporation ("Westinghouse America").

2By way of background Westinghouse America executed a collective agreement with the United Brotherhood of Carpenters and Joiners of America ("Carpenters") in respect of periodic maintenance on turbines, generators and other associated mechanical equipment on December 9, 1971. This collective agreement has been re-negotiated from time to time. The most recent negotiations have produced a March 15, 1996 agreement.

3In 1971, Westinghouse America was styled on the collective agreement, as the "Power Generation Service Division" Westinghouse. Over the years the name of the Westinghouse America divisions have changed and the March 15 1996 collective agreement is styled as "The Nuclear and Fossil Field Services Department of the Westinghouse Electric Corporation, Energy Services Divisions".

4The section 69, and subsection 1(4) application arises from a Westinghouse Canada project at E.B. Eddy Papermill in Espanola, Ontario. A company called Rotating Equipment Services in Calgary, was performing work which the Millwrights believe was work covered by the March 15, 1996 agreement.

5A grievance was filed by Local 1425 of the United Brotherhood of Carpenters and Joiners of America ("Local 1425") through the International Union alleging that Westinghouse America had breached the March 16, 1996 collective agreement between the "Nuclear and Fossil Field Service Department of the Westinghouse Electric Corporation, Energy Services Divisions and the United Brotherhood of Carpenters and Joiners of America".

6In reply to the grievance, Westinghouse America asserted that the Espanola project was undertaken by Westinghouse Canada. Westinghouse America asserted that the collective agreement does not apply in Canada.

7The Carpenters filed the instant application requesting that the Board declare that the Westinghouse companies are related or successor employers and that the collective agreement apply to Westinghouse Canada and the Espanola project.

8The responding parties Westinghouse America and Westinghouse Canada raised a preliminary motion in respect of the section 69, subsection 1(4) application. They assert that the application does not make out a prima facie case under either section 69 or subsection 1(4). Westinghouse raised many different arguments in support of the preliminary motion. It is unnecessary to reproduce all of the submissions before me.

9The Westinghouse Companies allege that the agreement referred to by the Carpenters in the section 69 or 1(4) application is an agreement that is limited to the United States of America and consequently there are no bargaining rights which could be preserved pursuant to a declaration under either section 1(4) or 69.

10The Westinghouse companies submit that the agreement was to apply only in the U.S.A. For the collective agreement to apply to Canada, asserts Westinghouse, the agreement must refer to Canada or must have a clause that refers to some extraterritorial application. Further they state, in a collective agreement, where the geographic limitation of the scope clause is open-ended, one must assume that the collective agreement applies to the territory in which it was entered into. Westinghouse asserts that the collective agreement regime under which this collective agreement was fashioned is a statutory regime under the National Labour Relations Board in the United States. In their view, for a collective agreement to apply in an extraterritorial manner the agreement must either be used by the parties extraterritorially or the collective agreement must be specific about its extraterritorial application.

11The Carpenters assert that the Carpenters union has locals in Canada and that the agreement on its face refers to all the locals without limitation. In the Carpenters' view, the collective agreement applies to all countries where the Carpenters have local unions.

12Both parties agreed that, if we find that the collective agreement is not applicable in Ontario, then the application should be dismissed.

13Neither party led evidence about negotiating history or past practice in relation to the intention of the parties or the application of the collective agreement outside the U.S.A.

DECISION

14Article III of the collective agreement between the United Brotherhood of Carpenters Joiners of America and Nuclear and Fossil Field Services Department of the Westinghouse Electric Corporation Energy Services Division, Orlando, Florida 32826-2399 407-281-5520 states:

This Agreement covers all work as set forth in Article I, Recognition, assigned by the owner or customer to the Employer. This Agreement does not cover work performed by the Employer of a new construction nature.

It is clear on its face that the scope of work does not contain any geographic limitation. Nor can one find a geographic reference in any other part of the collective agreement.

15This agreement applies to undefined union locals in undefined local areas, and refers to terms and conditions of local construction collective agreement in those areas. An example of this is Article VI( I) - Hours, Wages and Working Conditions. Section 1 states:

Section 1. The hourly rate of pay for employees covered by the terms of this Agreement shall be ninety percent (90%) of the hourly wage rate set forth in the building and construction collective bargaining agreement effective in the area where the work, in accordance with the provisions of this Agreement, is to be performed.

16Article VI is a term in the agreement which states that the employees working under the agreement will receive ninety percent of the hourly rate set forth in the building and construction collective agreement effective in the area where the work is to be performed.

17Section 7 of Article VI states:

Section 7. When twelve (12) hour shifts are worked, a second meal beak shall be established after ten (10) hours have been worked and will be unpaid unless the applicable local collective bargaining agreement provides for same. When employees are required to work through a second paid meal break, one-half hour at the applicable overtime rate shall be added to the actual hours worked at the completion of the shift.

Article VII raise the problem of overlap between this agreement and local agreements in the construction industry with regard to a second meal.

18Article VII Benefit Funds states:

Where a District Council or Local Union collective bargaining agreement, applicable in an area in which work covered by this Agreement is to be performed, makes provision for a lawful pension, health and welfare, vacation or other fringe benefit plan, the Employer and the District Council or Local Union shall execute a separate Memorandum Agreement for each plan, in the form provided in Appendix A attached hereto.

Payment of pension and/or health and welfare contributions for an employee's work in each locality in the applicable collective bargaining agreement for that locality, provided that the designated fund is signatory to a UBCJA National Reciprocal Agreement. In the event such pension and/or health and welfare fund is not signatory tot he appropriate National Reciprocal Agreement, the equivalent contribution amounts shall be paid to the relevant fund identified in the collective bargaining agreement of the UBCJA affiliate in the employee's home area, or, in the event such home area fund refuses to accept that contribution, to the Carpenters Labor-Management Pension Trust.

There shall be no requirement for signatories to this Agreement to make payment to Industry Advancement Funds unless otherwise noted.

Article VII directs the pension, health, welfare and vacation and other fringe benefit plans are to be paid to the District Council or Local Union and this is to be done through a separate memorandum of agreement for each plan in the form provided in Appendix A.

19The agreement sets up a scheme which "piggy backs" on local agreements. The agreement does not refer to any specific locals nor to any specific geographic area.

20The March 16, 1996 collective agreement contains many unusual clauses. Some of these clauses would require amendment if they were found to apply in Ontario. Article II Union Security states:

Section 1. It shall be a condition of employment that all employees of the Employer covered by this Agreement who are members of The United Brotherhood in good standing on the effective date of this Agreement shall remain members in good standing and those who are not members on the effective date of this Agreement shall, on the eighth day following the effective date of this Agreement, become and remain members in good standing in The United Brotherhood.

Section 2. The provisions of this Article shall be effective in all jurisdictions where not prohibited by law.

Section 3. This Article shall be interpreted in accordance with the provisions of Section 8(a)(3) of the Labor-Management Relations Act of 1947, as amended.

The Union Security clause is different than what one would find in a typical Ontario agreement. It is written in a way to co-exist with "right to work" legislation in "right to work" states. In particular, Section 3 ensures that the union security clause be interpreted in accordance with the provisions of 8(a)(3) of the Labor-Management Relations Act of 1947, as amended. Counsel for both parties agree that the clause refers to the "right to work" "override" in states where "right to work" is in effect.

21Article VI Hours, Wages and Working Conditions, Section 4:

Section 4. All work performed by an employee on Saturday shall be paid at one and one-half times the hourly rate established by the percentage ratio set forth in Section 1 above; Sundays or holidays recognized shall be paid for at double the hourly rate established in Section 1 above. Holidays are as follows:

New Year's Day Labour Day President's Day (Federal) Thanksgiving Day Memorial Day Christmas Day Independence Day

It is clear, on the face of the article, that holidays like President's Day, Memorial Day and Independence Day, are included, however, the agreement does not include statutory holidays that one would normally find in an Ontario agreement.

22Article VIII Compensation Insurance:

For all employees covered by this Agreement, the Employer shall carry Worker's Compensation Insurance, Social Security, and other protective insurance required by law.

This Article refers to American type compensation and benefits provided by American law. It does not 4' mention any of the Canadian requirements in respect of insurance.

23Article X Safety:

The employees covered by the terms of this Agreement shall at all times, while in the employ of the Employer, be bound by the safety rules and regulations as established by the owner, company or union and applicable safety laws. The company agrees to provide the union with copy of such rules and further to post in a conspicuous location such rules and regulations for the benefit of the employees covered by this Agreement. As a condition of employment, employees are required to report to work, beginning with the first day of employment, with the minimum required personal protective equipment, including but not limited to safety shoes that meet ANSI Z41-1991 standard "safety toe", and prescription safety glasses with sideshields. If the prescription glasses are not approved safety glasses with sideshields, then safety goggles provided by the Employer work over the prescription glasses will be required. Regardless of the customer requirements, all minimum required personal protective equipment mentioned above, plus company provided personal protection equipment including but not limited to hard hats and safety glasses, must be work on all jobs. At the pre-job meeting the project manager will discuss all required personal protection equipment.

In respect of the "safety toe" referred to in the body of Article X one finds the standard to be ANSI Z41-1991. This is an American standard and there is no mention of its Canadian equivalent if any.

24Article IV Grievances:

Section 1. In the interest of uninterrupted progress on any and all work covered by this Agreement, the parties hereby agree that there shall be no lock-out on the part of the Employer, and there shall be no strikes or stoppage of work called by The United Brotherhood, pending investigation of any dispute and attempts to bring about peaceful settlement as provided in sections 2, 3, and 4 of this Article. It is further agreed that The United Brotherhood shall not be subject to any liability for damages because of the action of any member of The United Brotherhood or any District Council or Local Union affiliated with The United Brotherhood.

Section 2. Should any dispute or grievance arise under any of the terms of this Agreement. the union and management mutually agree that an attempt will be made to settle any dispute or grievance at the local level between the Project Manager and steward. In the event that the dispute or grievance cannot be resolved at this level, an attempt shall be made by the Employer or his representative (Craft Labour Relations Manager) and the area (District Council or Local Union) representative designated by the United Brotherhood to resolve the dispute.

Section 3. If the parties in the local area do not succeed in resolving such dispute or grievance. notice shall be given promptly tot he Employer and to the General President of The United Brotherhood. Upon receipt of such notice, the Employer and the General President shall each immediately designate a representative and notify the other party of the representative's name and address. The representatives appointed shall contact each other and make arrangements for a meeting to be held within ten days or at any mutually agreeable date and place for the purpose of resolving the issues involved.

Section 4. Disputes involving the application or interpretation of this Agreement which are not resolved between the two representatives referred to in Sections 2 and 3 above shall then be referred to an impartial third party, selected under the Rules of the American Arbitration Association, who shall, within thirty days or at any early mutually agreeable date and place, consider the issues involved in the dispute. Any decision reached by the Arbitrator shall be final and binding upon all parties for the duration of this Agreement. The Arbitrator shall have no authority to render a decision which would add to, detract from, or in any way alter this Agreement. The parties shall equally divide the cost of the Arbitrator.

Part of the grievance process contemplates the possibility of a work stoppage in the event that the parties are unable to come to a peaceful resolution about the grievance. This type of clause would be inoperative in Ontario.

25The parties have, in other parts of the collective agreement, been cognizant of American law which might intervene in respect of certain clauses, they have not been cognizant of Canadian or Ontario law as it would impact on this agreement.

26Another example of the parties failure to be cognizant of Ontario law, is found the termination clause. Article XIII Management Clause states:

In the exercise of its functions of management and subject to the terms of this Agreement, the Employer shall have the right to plan, direct and control the operation of all his work; hire employees; direct the working forces; assign employees to their jobs. discharge, suspend or discipline for proper cause; transfer, promote or demote employees; layoff employees because of lack of work or for other legitimate reasons: require employees to observe the Employer's rules and regulations not inconsistent with this Agreement; regulate the use of all equipment and other property of the Employer; decide the amount of equipment to be used and the number of workers needed; contract work anywhere and decide the methods of work and the source from which material and equipment is obtained; provided, however, that the Employer will not use these rights for the purposes of discrimination against any employee or the Union.

The agreement does not have a termination date, however, either party can terminate the agreement within 90 days. To be valid in Ontario the agreement would have to be deemed a one-year agreement.

27The Ontario Labour Relations Board has previously dealt with the issue of an open-ended scope clause in an American collective agreement and its application in Ontario. Rockwell International Corporation [1981] OLRB Rep. June 780, involved an application for certification by the Millright District Council of Ontario United Brotherhood of Carpenters and Joiners of America on behalf of Locals 494, 1007, 1410, 1425, 1592, 1916 and 2309. In the context of the application for certification, the Progressive Lodge No. 126, International Association of Machinists and Aerospace Workers, asserted a valid collective agreement. The collective agreement on its face recognized the Progressive Lodge No. 126, International Association of Machinists and Aerospace Workers as the sole exclusive bargaining representative of all machinists erectors and press erectors engaged in assembling, directing and dismantling, repairing and maintenance of printing presses and ancillary printing equipment outside the plant premises. The Board found that although the collective agreement contained an "open-ended" recognition clause, there were specific clauses within the collective agreement which applied to jurisdictions outside of the United States of America. As well, there was evidence that the collective agreement had been applied to press erectors employed by Rockwell International when they had been employed in the Province of Ontario.

28At paragraph 21 and 22 the Board says the following about its view in respect of open-ended recognition clauses:

21. In most circumstances we would not be prepared to conclude that a seemingly open-ended recognition clause in a collective agreement signed with a trade union based outside of Ontario does in fact cover Ontario. However, in the instant case, on the basis of both the contents of the agreement itself and the viva voce evidence as to how it has been interpreted and applied over the years, we are satisfied that the scope of the collective agreement does in fact encompass the Province of Ontario. We are well aware of the potential for abuse if trade union locals based outside the province are free to sign valid collective agreements which encompass Ontario within their scope clause. However, we believe that the Act is capable for ensuring that such abuses do not occur. In this regard we would note in particular section 40 of the Act which provides that an agreement shall be deemed not to be a collective agreement if the employer has contributed improper support to the union, as well as section 52 which sets out a mechanism by which employees can challenge the validity of a collective agreement entered into by a trade union that has not be certified. In the instant case however, there has been no abuse and no improper employer support of Lodge No. 126. The current collective agreement was signed against the backdrop of a history of Rockwell International employing individuals in Ontario who were members of Lodge No. 126. In these circumstances, we are satisfied that the agreement is in fact a valid collective agreement.

22. We would note that although the collective agreement purports to be multi-national in scope, to the extent that it applies in Ontario, it is affected by the provisions of The Labour Relations Act and in that respect must be viewed as being in the nature of a province wide agreement. Thus, for example, during the "open period" of the last two months of the collective agreement, if would be open for another trade union to seek to displace Lodge No. 126 as the bargaining agent of press erectors employed by Rockwell International in Ontario, or for the employees themselves to apply to terminate the union's bargaining rights. If successful, then pursuant to either section 48(1) or section 49(6) of the Act, the collective agreement would no longer have any force or effect in Ontario.

29The approach taken by the Board in Rockwell is similar in nature to the approach taken by the Board in cases dealing with companies moving between provinces. In SerVaas Rubber Company Inc. [1986] OLRB Rep. Dec. 1780, a rubber plant was moved from Quebec to Ontario without advance notice to the union. The Quebec employees were fired and not rehired at the new Ontario location. The question was whether bargaining rights had an extraterritorial effect. The Board at paragraph 32 and 33 says the following:

32. Counsel for the applicant/complainant asserted, for various reasons, that the Montreal collective agreement, as a matter of law, covered the Cornwall location or, in the alternative, the bargaining rights of the union extended to that location. The Board does not agree. Certification of a trade union is a provincial matter, except for those enterprises regarded as falling within the federal sphere. In Ontario, for example, certification is granted to a bargaining agent for a defined geographic area, whether that be street address of a single plant or municipality or some other geographic configuration. The Board is not prepared to give "extra-territorial" effect to the bargaining rights of a trade union as a matter of law, that is, that once certified in one province or federally, those bargaining rights are "portable" across provincial boundaries or notwithstanding a change in the nature of the enterprise from the federal to provincial sphere (or vice versa): MacLeans Magazine, supra; Labour Relations Board of New Brunswick v. Eastern Bakeries Ltd. (1960), 1960 CanLII 79 (SCC), 26 D.L.R. (2d) 332 (5CC.); Saint Paul University [1972] OLRB Rep. July 729; Bell Canada, supra; Durham Transport, supra; Wholesale Delivery Service. supra; Brotherhood of Railway Airline & Steamship Clerks, supra; Transport Labour Relations Association, supra. To grant such extra-territoriality, in the Board's view, would be contrary to provincial authority over labour relations as reflected in the various provincial labour relations statutes governing certification. (For this analysis. the Board need not deal with the case law elaborating on the limited federal sphere in labour relations), that is not to say that a union certified as bargaining agent in one province, for example, could not be granted voluntary recognition in another province and, thus, "continue" to hold bargaining rights. In that instant case, however, no such voluntary recognition was granted.

33. The Board considers that the bargaining rights of the applicant/complainant could apply to the Cornwall location only if the collective agreement itself covered that site. That question depends upon the scope clause of the Montreal collective agreement. Counsel for the applicant/complainant asserted that the scope clause should not be restricted to Montreal, that "street address" descriptions were commonplace and should not represent an intention to so delimit the collective agreement. Again, the Board disagrees. The instant case is readily distinguishable from Rockwell International, supra, where the Board found that the contents of the collective agreement and its interpretation over the years supported a conclusion that the parties intended an "open-ended" recognition clause. Here, there is no basis for importing such an intention. Assuming that, by operation of Quebec law, the collective agreement would have extended to company "relocations" elsewhere in Quebec, for the reasons already given, the collective agreement cannot bind the employer outside that province, except in the Rockwell circumstances, or, perhaps, as a matter of remedy for statutory violations (see also the cases cited in paragraph 32 above).

30In Crown Cork and Seal Company Limited [1978] OLRB Rep. Sept. 809 at paragraph 12, the Board in exercising its discretion found that it was not prepared to apply an American collective agreement instead of an already existing Canadian collective agreement through the vehicle of section 1(4). In paragraph 12 the Board says the following:

12. The master agreement is specifically stated to be between Crown Cork and Seal Company Inc. (the parent firm) and the applicant. We were referred to nothing in the agreement which would indicate that it was meant to apply to a subsidiary of the firm which was operating outside of the United States. The applicant acquired its bargaining rights for the Canadian company's Concord employees by way of two separate certificates from this Board and those bargaining rights are currently reflected in two separate collective agreements. During the most recent negotiations both in the United States and Canada the applicant sought at the bargaining table to have the respondents voluntarily agree to alter this bargaining structure, but without success. We are of the view that section 1(4) of the Act should not be used in circumstances such as this to impose a new bargaining structure on an unwilling employer, particularly where it has not been shown that the existing bargaining structure is inappropriate or lacks viability. It should be noted further that it was not even alleged that the Canadian company was failing to fulfill its obligations under the existing bargaining structure, seeking to subvert existing bargaining rights, or somehow attempting to avoid the effects of any collective agreement which it had entered into. It is clear that the applicant is of the view that the employees of the Canadian company which it represents at Concord should be employed under the same terms and conditions as are the employees of the parent firm in the United States. Without seeking to detract from the motives which might underlie such a position, that is a matter for collective bargaining. For this Board to allow section 1(4) of the Act to be used as a means of importing the terms of U. S. negotiated collective agreements into Ontario would in effect mean that this Board would be imposing the terms of collective agreements upon Ontario based bargaining units rather than having them negotiated through free collective bargaining. In our view this runs counter to the general intent of the Act and is not a proper use for section 1(4). Accordingly we decline to treat the two respondents as constituting one employer for the purposes of the Act or to declare them to be one employer.

31In my view, where a collective agreement is entered into in a jurisdiction outside Ontario and that agreement is silent about the geographic scope, there is a presumption that the collective agreement only applies to that jurisdiction. In order to rebut that presumption, clauses in the collective agreement must indicate an intention to apply extraterritorially. Alternatively, where there is an open-ended scope clause or recognition clause in a collective agreement, for that agreement to apply extraterritorially, the agreement must have been applied in the foreign jurisdiction.

32In the case before me, the collective agreement is silent about any extraterritorial application. Further, there is no evidence that the parties intended that the agreement apply outside the U.S.A. nor is there any evidence that the agreement was applied outside the U.S.A.

33I would dismiss the application because the collective agreement is not one that applies in Ontario. There are no bargaining rights to be preserved and consequently there is no prima facie case for either a section 1(4) or section 69 declaration.