Carpenters and Allied Workers Local 27 United Brotherhood of Carpenters & Joiners of America v. J & D Display & Interiors Ltd., 1998 CanLII 18431

Carpenters and Allied Workers Local 27 United Brotherhood of Carpenters & Joiners of America v. J & D Display & Interiors Ltd.

[1998] OLRB REP. MARCH/APRIL 217

4353-93-G Carpenters and Allied Workers Local 27 United Brotherhood of Carpen­ters & Joiners of America, Applicant v. J & D Display & Interiors Ltd., Responding Party

BEFORE: Robert Herman, Alternate Chair.

APPEARANCES: Mike McCreary and George Joyce for the applicant; Ted J. Kovacs and Joseph Klement for the responding party.

DECISION OF THE BOARD; March 10, 1998

1. This is a referral of a grievance to the Board pursuant to section 133 of the Labour Relations Act, 1995 (the “Act”).

2. When the Board began its hearings in this matter, it sat as a panel. As a result of the death of one of the Board Members on the panel, the hearing continued before me alone.

3. The responding party, J & D Display & Interiors Ltd. ("J & D"), asserts that the applicant, Carpenters Local 27 ("Local 27"), has never held bargaining rights for the employees of J & D, and that J & D has never been and is not now bound to any collective agreement with the applicant. Alternatively, J & D asserts that if it was bound to a collective agreement at any time, bargaining rights have since been abandoned by the applicant. In the further alternative, if the Board concludes that J & D remains bound to the collective agreement. the employer asserts that the applicant is estopped from obtaining any remedy from the Board.

4. This application raises again the approach taken by the Board in considering whether abandonment has occurred in the industrial, commercial and institutional ("ICI") sector of the construc­tion industry, and more specifically, whether the Board ought to look only to the actions of the local union (more accurately, the affiliated bargaining agent) in the Board areas where the responding party has been working, or whether the Board ought also to consider the conduct of affiliated bargaining agents having jurisdiction elsewhere in the province, in Board Areas where the responding employer has not been engaged in construction activity.

5. The instant decision deals only with whether the applicant ever acquired bargaining rights for J & D, and if so, whether those bargaining rights have since been abandoned. Depending on the answer to these questions, this application is to be relisted for hearing to deal with the question of estoppel.

Facts

6. J & D was set up in 1964, and is a company which engages in a variety of store renovation, carpentry, and display work. It demolishes or dismantles current in-store fixtures and structures, and/or does the necessary construction work to build or renovate stores or buildings, including both the outside facades or presentations and all inside structures and displays. Most of the work involved is carpentry work, work which would be covered by the Carpenters' Provincial ICI Agreement.

7. J & D's president is Joseph Klement. He established the company in 1964, and has been its chief executive officer throughout.

8. Prior to 1976, J & D was not unionized, and had had no interaction with the applicant. Late in that year, J & D was hired to work on the job of dismantling the inside displays of the former Eatons' store at College Street and Yonge Street, in Toronto, and to transfer some of the dismantled shelving and other fixtures to the new Eatons' store then being built in the Toronto Eaton Centre. The contract called for J & D to then reassemble and install the transplanted displays at the new store.

9. Unlike the College Street Eatons' store, the Toronto Eaton Centre was a unionized project, and in order to perform the site preparation, reassembly and installation at that location, J & D had to use unionized carpenters. To obtain these unionized carpenters, Klement went to Local 27's union hall. He spoke there with Matthew Whelan, a business agent for Local 27 at the time, and requested that the union send men to the Toronto Eaton Centre to work for J & D.

10. Local 27 required Klement to sign three documents, as a condition of referring the men. On December 2, 1976 Klement signed a voluntary recognition agreement, which picked up the existing Carpenters' collective agreement, running from August 28, 1975 to October 31, 1977. This collective agreement covered ICI work in Board Area #8. The agreement signed by Klement was between J & D and the Carpenters' District Council of Toronto and Vicinity (the "Carpenters' Council"), on behalf of Local 27 and other named locals of the United Carpenters. The agreement noted the accreditation of the General Contractors Section of the Toronto Construction Association as the bargaining agent for all employers of carpenters and carpenters' apprentices for whom the union had bargaining rights in Board Area #8 in the ICI sector, and it stated that the parties were agreed that the employer recognized the union as bargaining agent for all carpenters and carpenters' apprentices engaged in the Board Area. In the agreement, the employer and the union acknowledged and agreed that as of its effective date, they were bound by all the terms and conditions and provisions of the stipulated collective agreement.

11. The second document signed by Klement on December 2, 1976 was an agreement between J & D and the Carpenters' Council by which J & D named the employees covered by the voluntary recognition agreement who were working in the bargaining unit as of December 2nd. The third document he signed was a Participation Agreement with the Trustees of the various Carpenter benefit plans, by which J & D agreed to make the appropriate contributions to the pension, welfare, and vacation plans as required by the collective agreement. Copies of all three documents were provided to Klement.

12. Klement testified that he never agreed to be bound by the Carpenters' collective agreement, nor had he ever agreed to grant bargaining rights to the Carpenters. He testified that he never understood that J & D had in fact become bound by the signing of these documents, and that he had only gone to the union to ask it to provide unionized carpenters to the company for the couple of weeks necessary to complete the reassembly of the dismantled units at the Toronto Eaton Centre. He signed the documents, he testified, as the union required him to do so in order to send the union carpenters for that purpose. He signed in order to get these carpenters for a few weeks, not to become bound to any collective agreement.

13. Local 27 did provide union carpenters to I & D for the work at the Toronto Eaton Centre. Four carpenters were dispatched to J & D for work at that site, and they worked there a total of three and a half to four weeks, sometime in late December, 1976 or early 1977. They were paid by the company according to the terms and conditions of the collective agreement, and remittances and contributions were made as required by the collective agreement. When their work was finished there, they stopped working for J & D.

14. Meanwhile, Local 27 had forwarded the three documents signed by Klement on December 2, 1976 to the Toronto Construction Association. The General Contractors Section of that Association had been since 1973 accredited under the Act to represent all contractors signatory to the Carpenters ICI collective agreement covering Board Area #8. The General Contractors Section was explicitly referred to, in the voluntary recognition agreement signed by Klement on December 2, 1976, as the accredited bargaining agent for all employers bound to the collective agreement.

15. Upon receipt of the three documents from Local 27, the General Contractors Section recorded in its files that J & D was now an employer which it represented. Sometime within the first few months of 1977, the General Contractors Section began forwarding to J & D various information and material on a regular basis. The first letter it sent to J & D stated that J & D was now "automatically bound to the collective agreement".

16. A subsequent collective agreement was entered into between the General Contractors Section and the Carpenters' Council, covering the period from November 1,1977 to October 31, 1978. During this period, pursuant to amendments to the Act, the current scheme of provincial bargaining for carpenters (amongst other unions) for the ICI sector of the construction industry was introduced. By designation issued under the Act by the Minister on March 3, 1978, the General Contractors Section, referred to as the Labour Relations Bureau of Ontario General Contractors Association, became part of the designated Employer Bargaining Agency for contractors engaged in carpentry, and previously bound to the various carpenters' ICI collective agreements. The Employer Bargaining Agency now had statutory authority to bargain provincial agreements for the employers who would be bound to the provincial agreement. This included J & D. The first Carpenters' Provincial ICI Agreement negotiated by the Employer and Employee Bargaining Agencies for carpenters ran from September 6, 1978 to April 30, 1980. By operation of law, the previous ICI collective agreement for Board Area #8 became nullified by and replaced by this first provincial agreement.

17. Pursuant to the Act, every two years thereafter, new collective agreements were entered into by the Employer Bargaining Agency and the Employee Bargaining Agency, and in accordance with more recent amendments to the Act, every three years.

18. Throughout the period from late December, 1976 or early 1977, to date, the General Contractors Association has continued to send regular mailings to I & D. I & D has remained listed in its records as an employer it represents and as an employer bound by the collective agreement it helps to negotiate. Any cursory perusal of these mailings would have made clear to I & D that the company was being treated by the General Contractors Association as an employer bound to the Carpenters' collective agreement. Klement testified he threw away these mailings, and never read them.

19. In contrast to the efforts made regularly by the General Contractors Association to keep J & D apprised of matters, from the time the Toronto Eaton Centre job was completed until 16 years later in 1993, the union had no contact with J & D whatsoever. It made no visits to J & D's offices, it forwarded no mailings to J & D, it filed no grievances. Even though its members had been dispatched to J & D in December, 1976 or January, 1977, when they stopped working for the company several weeks later, Local 27 did not check whether J & D was still engaged in ICI carpentry work. J & D's business office was listed in the phone book, and Local 27 must have been aware of the company, having only months before signed up J & D. Yet Local 27 took no action to investigate or verify whether J & D was still doing carpentry work in Board Area #8.

20. Nor did Local 27 check its own records as to whether it had bargaining rights with J & D. Had it bothered to do so, it would have immediately realized that J & D was bound to the collective agreement. It would also have noted, in the records of the benefit plan trustees, that J & D had not filed any notice that it was dormant and no longer engaged in construction activity. Thus, both the records of Local 27 and the benefit plans would have indicated that J & D was bound to a collective agreement with the Carpenters, and that the company was still active.

21. What was J & D's construction activity between 1976 and 1993? During the portion of this period prior to the imposition of the province-wide scheme, it appears as if J & D was engaged in six jobs, only five of which took place in Board Area #8. The first two of these were the dismantling of the College Street Eatons' store and the installation work at the Toronto Eaton Centre, the jobs with respect to which Klement signed the voluntary recognition agreement. The remaining three jobs were visible enough that it would have been apparent to passers-by that J & D was working on site.

22. After March, 1978, and continuing regularly since then, J & D has employed from three to eight carpenters at any time, on literally hundreds of construction projects, most of which included significant amounts of carpentry work. Most of these jobs were in the Toronto area, but there were a few projects in other relatively nearby locations, such as Hamilton, London, Oshawa and Huntsville. Although many of these jobs were working in Eatons' stores, where a tarpaulin would have blocked off viewing of the area in which the men were working, and where J & D was not allowed to post a sign indicating that it was working on site, many of the jobs were at other locations where J & D always put up large signs advertising its presence on site. These non-Eatons' jobs were both small and large, some lasting many months, and I & D signs would often be posted or placed on main thoroughfares, at the front of the store being renovated or on the hoarding surrounding or blocking off the front of the store. Much of the work on these jobs was carpentry work, covered by the applicable collective agreements, and this would have been apparent to anyone looking at the project.

23. Local 27 led evidence that it was not in fact aware of any of these jobs, and I accept that evidence, but it can only be through an indifferent attitude and approach or something akin to wilful blindness that Local 27 could have remained in this state of ignorance. Local 27 clearly ought to have known of the company's activities, and it ought to have known J & D continued to operate. The company had an office listed in the phone book, and a large sign posted at its business premises. Even if Local 27 had not passed by any of the hundreds of project sites, it had only to open the phone book to find the company. Throughout this interval, the company did not apply the collective agreement or remit any funds to the union.

24. Then, in December, 1993 the applicant filed an application for certification for carpenters and carpenters' apprentices, naming I & D as the responding employer. Local 27 had discovered that J & D was employing carpenters, and believed that the company was not yet unionized. Only after filing its certification application did Local 27 look at its own records, and it discovered that J & D was already bound to an agreement with it, bargaining rights having been obtained some 17 years earlier. The applicant then filed a grievance against J & D, and subsequently the instant application under section 133. The application for certification was then adjourned sine die, pending a decision in the instant application.

Decision

25. The first question for the Board is whether Local 27 acquired bargaining rights on December 2, 1976, when Klement, on behalf of J & D, signed a voluntary recognition agreement. The responding employer asserts that it never became bound, having believed at the time that it was only agreeing to apply the collective agreement for the period during which it needed union members for four weeks or so, to work at the Toronto Eaton Centre.

26. There is no question that J & D agreed to be bound by the collective agreement on December 2, 1976, and that J & D did thereby become bound. The documents signed by Klement are clear and unambiguous, and explicitly note the legal effect of signing them. Even if there were viva voce evidence clearly suggesting otherwise, which there is not, I would give no weight to that evidence, in the face of the voluntary recognition agreement, in which the parties' intention is clearly and unambiguously stated. By signing that document, J & D granted bargaining rights and agreed to be bound, and did immediately become bound to the collective agreement.

27. Where a document is so clear, extrinsic viva voce evidence proffered to suggest a different meaning for the document ought not to be considered. In Steds Limited, [1992] OLRB Rep. Jan. 67, the Board wrote as follows:

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

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

30. As to whether Klement believed that he had not agreed to be bound by the collective agreement and had not become bound, it is unnecessary to decide. I do find, however, that Local 27 did not represent that J & D would not be bound when Klement signed the three documents, and I note again that the documents are clear and unambiguous on their face.

31. The effect of signing the voluntary recognition agreement in December, 1976, was that J & D became immediately bound to the then applicable collective agreement, and the General Contractors Section of the Toronto Construction Association immediately acquired the right and obligation to represent J & D: see, for example, Eagle Mountain Contracting Limited, [1981] OLRB Rep. Apr. 442.

The General Contractors Section remained entitled to and required to represent J & D when it entered the subsequent collective agreement, covering the period from November, 1977 to October, 1978, and with the issuance of the designation in March, 1978, J & D became represented by the employer bargaining agency for the ICI sector, and became bound to the first provincial agreement entered into pursuant to the province-wide scheme for the ICI sector. In this respect, see sections 156 and 157 of the Act, and Newman Bros. Limited, [1981] OLRB Rep. June 750; Culliton Brothers Limited, [1982] OLRB Rep. Mar. 357 at paragraphs 19 and 20; and Ellis-Don Limited, [1992] OLRB Rep. Feb. 147, at paragraphs 38 and 39.

30. Unless it can be said, therefore, that Local 27 has abandoned its bargaining rights with J & D, J & D remains bound to the currently applicable collective agreement.

31. In addressing this issue, it is important to keep in mind that when the Board considers whether there has been abandonment subsequent to March 1978, any such abandonment would have occurred in the ICI sector, a sector characterized by a provincial agreement and province-wide bar­gaining rights. Under the statutory scheme for the ICI sector, bargaining rights are held by and enforceable by each affiliated bargaining agent across the province; that is, by each bargaining agent designated by the Minister to be represented in bargaining by the employee bargaining agency for its trade. For virtually all trades that have more than one affiliated bargaining agency in the province, the province has been divided by the parent union into geographical areas (not necessarily contiguous with the Board Areas), and each affiliated bargaining agent has jurisdiction in a particular area. Yet each of them have bargaining rights for all contractors bound by the agreement, regardless of whether they operate in a locale within the jurisdiction of the particular affiliated bargaining agent. Any analysis of abandonment in the ICI sector must take place in the context of this province-wide scheme and the geographically distinct jurisdictions of the affiliated bargaining agents, and the interwoven, shared and province-wide bargaining rights they all enjoy.

32. The Board's approach to abandonment in the ICI sector is now fairly well established. In Lorne's Electric, [1987] OLRB Rep. Nov. 1405, the Board wrote as follows:

33. The concept of abandonment is well established in the Board's jurisprudence. See, for example, Hugh Murray Limited, [1979] OLRB Rep. July 664, in which the Board wrote, in part, as follows:

34. At the hearing counsel for the union contended that the Board had no jurisdiction to conclude that the union had lost its bargaining rights through abandonment. With this we are unable to agree. Although unions generally obtain and lose bargaining rights through the certification and termination procedures set forth in the Act, the Board has long recognized that bargaining rights may also be acquired through the voluntary recognition of a union by an employer, and lost through the voluntary abandonment of those rights by a trade union. Apparently the first case where the Board concluded that a union had abandoned its bargaining rights was Guelph Cartage Co. 55 CLLC ¶18,018. In that case a union which had been certified in August 1948 did not serve a notice to bargain on the employer until July of 1955. When the matter came before the Board, the Board ruled that since the union had "slept on its rights" for seven years it could not now call upon the employer to enter into negotiations. A summary of the type of situations where the Board has applied the principle of abandonment since that first case is set out as follows in the J.S. Mechanical case, [1979] OLRB Rep. Feb. 110:

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 Entwistel Construction Limited, [1972] OLRB Rep. Oct. 919; Elgin Construction Co. Limited, [1969] OLRB Rep. April 134; Guelph Cartage Company, 55 CLLC ¶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).

An application for judicial review of that (and another) decision was dismissed in Re Carpenters District Council and Hugh Murray (1974) Ltd. (1980), 1980 CanLII 1826 (ON HCJ), 33 OR. (2d) 670, in which the Divisional Court confirmed that it is within the Board's jurisdiction to determine whether or not a trade union has abandoned bargaining rights which it obtained by means of certification (or voluntary recognition).

15. Counsel for the respondent sought to rely upon Hugh Murray as an example of bargaining rights being abandoned by a trade union in the context of the province-wide bargaining provisions of the Act. However, it is clear from the Board's decision in that case that the Board found that the abandonment had occurred prior to the onset of province-wide bargaining; in paragraph 9 of that decision, the Board wrote as follows:

When all of the evidence is considered we are satisfied that although the act continued the union's bargaining rights and allowed it to serve notice to bargain on Hugh Murray (1974) Limited, for reasons of its own the union chose not to do so, but rather at all times acted as though it did not have bargaining rights for the company's employees. On these facts we can only conclude that the union voluntarily abandoned, or gave up, its bargaining rights, and that it did so prior to the designation of the employee and employer bargaining agencies by the Minister of Labour in March of 1978.

16. In J.S. Mechanical, [1979] OLRB Rep. Feb. 110, the Board listed some of the factors which it has generally found to be of assistance in deciding whether or not an abandonment of bargaining rights has occurred:

17. 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.

18. It is worth emphasizing that it is statutory provisions which establish and structure the ICI sector, and regulate in certain respects the legal rights enjoyed by participants in this sector. It is this statutory scheme which has led the Board to view abandonment issues arising in this sector from a different perspective. As the Board said in Culliton Brothers Limited, (above):

19. While the respondent states that it is arguing the abandonment of bargaining rights, in our view, such an argument is not tenable. The Board characterizes the argument of the respondent as the abandonment of collective agreements, which unknown to the applicant, the respondent, Local 47, and the Group were applicable to them at various times and places. These collective agreements came into effect and were applicable to employers and trade unions beyond the immediate parties to the collective agreements by virtue of provisions of a public statute known as the Labour Relations Act. The application of these collective agreements under the provisions of the Labour Relations Act to the applicant, the respondent, Local 47 and the Group arose independently of their awareness by virtue of the operation of law. In these circumstances, the Board is not prepared to find that there has been an abandonment of bargaining rights or collective agreements.

20. As the Board noted earlier, the collective agreement between Local 47 and the MCAO expired on April 30, 1977. A new collective agreement between the same parties was made on May 20, 1977, and came into effect on May I, 1977, with an expiration date of April 30, 1978. The respondent was once again bound by the terms of this collective agreement with respect to the geographic area set forth in the bargaining unit in the certificate of the Board in the industrial, commercial and institutional sector and residential sector of the construction industry. The amend­ments contained in The Labour Relations Amendment Act, 1977, SO. 1977, c.31 (often referred to as Bill 22) introduced the concept of province-wide bargaining and province-wide collective agreement between employer bargaining agencies and employee bargaining agencies in the indus­trial, commercial and institutional sector of the construction industry. In an employer bargaining agency designation dated March 21, 1978, made pursuant to section 127(l)(b) [now section 139(l)(b)l, the Minister of Labour designated the Group as the employer bargaining agency to represent in bargaining all employers whose employees were represented by certain affiliated bargaining agents (including Local 47). In an employee bargaining agency designation dated April 12, 1978, made pursuant to section 127(l)(a) [now section 139(I)(a)l. the Minister of Labour designated the Sheet Metal Workers' International Association and The Ontario Sheet Metal Workers' Conference consisting, inter alia, of Local 47, as the employee bargaining agency to represent in bargaining all journeymen and apprentice sheet metal workers, sheeters, sheeters' assistants and material handlers represented by certain affiliated bargaining agents (including Local 47 and the applicant).

21. Province-wide collective agreements were entered into with respect to the industrial, commer­cial and institutional sector of the construction industry between the employee bargaining agency and the employer bargaining agency referred to in the preceding paragraph. The first collective agreement was effective from May 29, 1978, until April 30, 1980. The second collective agreement became effective from May 1, 1980, until April 30, 1982. However, this second collective agreement became effective on the date that The Labour Relations Amendment Act, 1979 (No. 2) SO. 1979, c. 113 (often referred to as Bill 204) came into effect. One of the effects of this amendment is now to be found in section 137(2) of the Act which provides:

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 purposes of the 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 clause 117(e), except those employees for whom a trade union other than one of the affiliated bargaining agents holds bargaining rights.

The respondent is represented by a designated employer bargaining agency and is deemed to have recognized all of the affiliated bargaining agents represented by a designated employee bargaining agency as the bargaining agents for the purposes of collective bargaining in their respective geographic jurisdictions in respect of the employees of the respondent employed in the industrial, commercial or institutional sector of the construction industry. It is through the series of steps referred to in this paragraph and paragraphs 16, 17, 18, 19 and 20 that the respondent is bound by the province-wide collective agreement which became effective from May 1, 1980, and which remains in effect until April 30, 1982.

34. In Lorne's Electric, (above) the Board wrote:

35. Having regard to all of the circumstances, we find as a fact that there has been no abandonment of the ICI sector bargaining rights granted to Local 586 by the Board's certificate of January 5, 1977, and subsequently vested in the Employee Bargaining Agency (for the purpose of conducting bargaining and concluding a provincial agreement) by the combined legal effect of section 142 of the Act and the aforementioned employee bargaining agency designation dated December 12, 1977. In reaching this conclusion, we are not unmindful of the fact that the Union has not, prior to 1987, sought to enforce or administer the provincial agreement vis-a-vis the respondent. As indicated in J.S. Mechanical, supra, one of the factors which the Board has generally considered in cases involving allegations of abandonment of bargaining rights is "whether the union has sought to administer the collective agreement through the grievance and arbitration provisions in the collec­tive agreement". Where a trade union that has years earlier negotiated a collective agreement, which purports to have automatically renewed itself without any further bargaining (by virtue of a renewal provision), seeks to belatedly negotiate a new collective agreement or to raise the old collective agreement as a bar to a second trade union's application for certification, the fact that the first trade union has not for a number of years sought to enforce or administer the collective agreement by means of its grievance and arbitration provisions is clearly a pertinent factor to be considered in determining whether that trade union has in fact abandoned its bargaining rights. However, that factor is of little or no assistance in determining whether an abandonment of bargaining rights has occurred in the context of ICI sector province-wide bargaining, where the party which by law holds the bargaining rights for purposes of conducting collective bargaining and entering into a provincial agreement (i.e., the employee bargaining agency) is not the party which administers the provincial agreement at the local level. The Act's bifurcation of bargaining and administration of the provincial agreement renders an affiliated bargaining agent's failure to administer the provincial agreement vis-a-vis an employer of little or no consequence in determining whether the employee bargaining agency has abandoned its bargaining rights in respect of the employees of that employer. Even if the two—year period between rounds of province—wide bargaining were a sufficiently lengthy interval to warrant the drawing of an inference that a particular affiliated bargaining agent had abandoned the provincial agreement vis-a-vis a particular employer in its geographic jurisdiction (which, in our view, it is not), that would not preclude other affiliated bargaining agents from enforcing the provincial agreement vis-a-vis that employer in their respective geographic areas. Moreover, when the next round of province-wide bargaining occurred, the employee bargaining agency would be able to rely upon the "deemed recognition" provisions set forth in section 137(2) of the Act to assert that the employer was, for the purposes of the new round of bargaining, deemed to have recognized all of the affiliated bargaining agents represented by it, including that particular affiliated bargaining agent.

36. It is in this context that the Board assesses whether there has been abandonment in the ICI sector. In G.S. Wark Limited, [1996] OLRB Rep. Sept./Oct. 811, the Board commented on this as follows:

37. 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.

38. 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 (Ellis­Don Limited, [1992] OLRB Rep. Feb. 147: application for judicial review dismissed [1995] OLRB Rep. Dec. 1506, Ontario Court of Justice (General Division), Divisional Court).

39. 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 I. 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).

40. 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 which supports it, and it will not necessarily be determinative in any event.

41. 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 province-wide 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.

42. 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.

43. The Board rejects Local l's submission that the agreement of the parties that Local I 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?

[emphasis added]

36. Relying upon the statements of the Board in paragraph 16 from G. S. Wark, set out immedi­ately above, counsel for the employer argues that the Board ought only to consider the actions (or lack thereof) between Local 27 and J & D for the period in question, in order to determine whether bargaining rights have been abandoned. The fact that affiliated bargaining agents representing members in Board Areas where the company was not engaged in any construction activity have done nothing to indicate abandonment or an intention to abandon is both unnecessary and irrelevant, the employer submits, since only those Board areas in which construction activity took place merit consideration by the Board.

37. The argument asserted by the employer appears grounded on two theories or propositions: first, that the statutorily mandated delegation of authority to the provincial employee and employer bargaining agencies is a delegation solely for the purposes of bargaining, and therefore activity of the employee bargaining agency occurring outside the context of negotiations or bargaining need not be considered, and second, that in determining whether abandonment has occurred, the Board need only consider the circumstances or conduct that took place in the particular Board Areas where the re­sponding party has been engaged in work, or has been operating its business.

38. In Toronto Dominion Bank, [1995] OLRB Rep. May 686, the employer there raised the same argument:

39. 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.

40. 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.

41. 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:

36. 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" ic. 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. And see, Marineland of Canada Limited, [1990] OLRB Rep. Dec. 1298 (at paragraphs 10 to 12), where the Board also noted this argument, but found it unnecessary to deal with it in light of its decision on other grounds that bargaining rights had been abandoned prior to the advent of provincial bargaining.

39. The Board has specifically rejected on a number of occasions the second proposition, that the only conduct the Board ought to consider in assessing whether abandonment in the ICI sector has occurred is conduct of the affiliated bargaining agent(s) with jurisdiction in Board areas where construc­tion activity by the responding party has occurred: see Steds (above), at paragraph 106, and Hudson's Bay Company, [1993] OLRB Rep. June 563, at paragraph 41 (to give but two examples).

40. With respect to the first proposition, it is not accurate to say that the delegation of authority of bargaining rights to the Employee Bargaining Agency in the ICI sector describes the only legal rights enjoyed by the Employee Bargaining Agency. Its rights are not limited to the negotiation and conclusion of a provincial agreement, nor are the rights of the affiliated bargaining agents limited to events occurring within their geographical jurisdictions. The Act grants statutory powers to the employee and employer bargaining agencies which enable them to fulfil roles which cannot readily be described as solely of a "bargaining" nature. These entities are granted the legal authority to seek to ensure that all players in the provincial scheme abide by it.

41. Under the statutory provisions, bargaining authority is transferred from local unions or contractors to their respective employee or employer bargaining agencies (see sections 156 and 157 of the Act). These two bargaining agencies are required to negotiate one provincial agreement for each provincial unit (a grouping of the affiliated bargaining agents of one trade, represented by the employee bargaining agency: see section 162 of the Act). Pursuant to section 144(3) of the Act, any interested person, trade union (which includes all the affiliated bargaining agents) or the employee bargaining agency itself, is authorized to seek to enforce the provincial agreement, and the conduct that takes place while that agreement is in effect. The employee bargaining agency can thus challenge the attempts of any affiliated bargaining agent and contractor to make an arrangement inconsistent with the provincial agreement. The employee bargaining agency has therefore a continuing role in the administration and enforcement of the provincial agreement it has negotiated, not limited in purpose or function to bargaining behaviour. See, also, sections 162(2) and 163(2) in this respect.

42. All parties bound by the provincial agreement are also entitled to participate in all arbitra­tions arising thereunder. If there is a dispute over the interpretation, application, administration, or alleged violation of the provincial agreement during its term, pursuant to section 163(3) of the Act, the employee bargaining agency, the employer bargaining agency, and the affiliated bargaining agents are all considered to be parties for purposes of section 133, the section under which any grievance can be referred to the Board for arbitration. The employee and employer bargaining agencies and each affiliated bargaining agent across the province are statutorily recognized as having a continuing interest in all grievances under their provincial agreement, regardless of whether they are the grieving party.

43. When the full scope of the structure and functioning of the ICI sector scheme is considered, it is extremely difficult to maintain that the employee bargaining agencies' role is limited to bargaining, or that the affiliated bargaining agents representing members in Board Areas where a contractor has not been actively working have no valid and legal interest in the work of that contractor. These affiliated bargaining agents do have continuing enforceable legal rights, as does the employee bargaining agency, with respect to the activities of contractors working anywhere in the province in the ICI sector. This is not to suggest that an affiliated bargaining agent has an obligation to enforce its rights in a particular case, and no doubt, an affiliated bargaining agent having jurisdiction in (for example) Thunder Bay will have little interest in work done by a contractor in Toronto, or seek to enforce the provincial agreement with respect to that work. However, it will certainly have a continuing interest in any work done within its jurisdiction, or for which it can assert a claim. Inaction by an affiliated bargaining agent does not readily support an inference of abandonment where it had no opportunity to exert its rights, and in any event, no reason to do so.

44. The statements made by the Board in paragraph 16 of G.S. Wark (above) must be read in this context. I agree with the comments made by the Board there in paragraph 16, that "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." Certainly, the conduct of the employee bargaining agency, authorized by statute to represent the affiliated bargaining agents in certain respects, can be held against the affiliated bargaining agents, as can the conduct of an individual affiliated bargaining agent. In the latter case, however, an individual affiliated bargaining agent is not authorized, by law at least, to speak on behalf of other affiliated bargaining agents with respect to their jointly held bargaining rights. In practice, an affiliated bargaining agent might become so authorized. This possibility is in part why the Board has noted so many times that, even in the ICI sector, abandonment is a question of fact. Nevertheless, for the Board to conclude that bargaining rights in the ICI sector have been abandoned, the Board must find that every affiliated bargaining agent and the employee bargaining agency have all abandoned bargaining rights.

45. Any finding of abandonment not premised on such a finding would be inconsistent, as a matter of law, with the provincial ICI scheme. To adopt a test or approach that only assesses the conduct of particular affiliated bargaining agents, but not all of them, would serve to override the provincial scheme in the ICI sector. It could also potentially undermine that scheme. For example, if the Board only considered the actions of the affiliated bargaining agent in the Board Area(s) where a contractor had been working, in considering whether abandonment had occurred, the affiliated bargaining agent and the contractor could arguably enter into a local arrangement which would otherwise be unlawful as an arrangement inconsistent with the provincial agreement. Through the device of a locally engineered abandonment of bargaining rights, the two local parties could agree to terms and conditions contrary to the provincial agreement, and after the work was performed under this local arrangement, the contractor could voluntarily recognize the union. While this scenario may be unlikely, it illustrates the inappropri­ateness of focusing only on local behaviour.

46. One example of where abandonment could occur in the ICI sector is provided at paragraph 16 of G.S. Wark: the employee bargaining agency, authorized to speak on behalf of all its affiliated bargaining agents, acts in a manner that indicates that it and all the affiliated bargaining agents have abandoned their bargaining rights with a particular contractor. There are no doubt other hypothetical examples, but for any of them, if any affiliated bargaining agent cannot be said to have exhibited evidence of abandonment itself, through its own actions (or inaction) or through the actions (or inaction) of an agent authorized to represent it for this purpose, there cannot as a matter of law be abandonment in the ICI sector. This is the necessary effect of the statutory scheme.

47. With these comments in mind, the Board turns now to the facts, and a consideration of whether the bargaining rights here have been abandoned, whether prior to the onset of the provincial scheme, or if not, whether subsequent to that time.

48. The considerations just discussed about finding abandonment in the ICI sector do not apply, of course, if bargaining rights were abandoned prior to the onset of the ICI scheme: see, for example, Marineland (above) in this respect. Between the acquisition of bargaining rights on December 2, 1976, and the designation issuing on March 3, 1978, at which time the province-wide scheme became effective and applicable to the parties, J & D was only engaged in a few projects in the ICI sector in Board Area #8. The first jobs were the projects involving both the College Street and Toronto Eaton Centre, Eatons' stores which were the very projects on which bargaining rights were acquired. These projects cannot therefore support any finding of abandonment.

49. There were only three jobs which would have been covered by Local 27's collective agreement which were performed by J & D between December, 1976, and March, 1978. Such a relatively small amount of employer activity over such a relatively short period does not lead to a conclusion that Local 27 intended to or did abandon its bargaining rights prior to March 3, 1978. This sort of limited construction work would not create the visibility and presence which, for example, was created by the building of a 300 foot high, 30 acre, manmade mountain in Marineland (above), a mountain being built almost on the doorstep of the then business agent for the union.

50. While Local 27 would have known that J & D was in business, having dispatched men to it for the Toronto Eaton Centre job, its failure to contact J & D after that project is reflective of inattention, not abandonment. A union is not expected to be aware of each and every job or project engaged in by a contractor in a particular Board Area, and its failure to actively pursue contractors over a relatively short period suggests perhaps indifference or lack of resources. To require a union to monitor or investigate in these circumstances, failing which bargaining rights would be nullified, would be impractical and unrealistic. The failure to contact J & D again or to discover the projects in question here cannot be taken to indicate any intention to abandon bargaining rights. Bargaining rights were not abandoned prior to March 3,1978.

51. After that date, there were few projects outside Board Area #8, and in any event, no projects in the majority of other Board Areas. There were no actions (or lack of action) by any of the affiliated bargaining agents in those Board Areas, or by the Employee Bargaining Agency, which would support any finding of abandonment.

52. The Board therefore concludes that Local 27 has not abandoned its bargaining rights, and that it continues to hold such bargaining rights with respect to J & D. The collective agreement therefore continues to apply.

53. The questions of whether there has been a breach (although if the collective agreement applies, as the Board has now ruled it does, the answer would seem axiomatic) and the appropriate remedy, if any, remain. The estoppel argument has not yet been fully considered by the Board. This matter will be relisted at the request of either party, to deal with the question of estoppel, and any other outstanding matter.

54. To assist the parties in resolving the matters remaining, there appears to be a reasonable argument for applying the principles of estoppel to the facts at hand. It does not appear as if Local 27 has been sufficiently diligent in exercising its rights, and its conduct might have led the responding employer to conclude that the collective agreement would not be applied by the applicant to its construction activity.

55. In any event, these issues can be fully canvassed if the application proceeds.