Ontario Labour Relations Board

[1999] OLRB REP. MARCH/APRIL 147

2873-92-G; 2379-93-G; 2425-96-U; 2426-96-G; 0213-97-FC; 0214-97-FC Interna­tional Union of Operating Engineers, Local 793, Applicant v. Associated Contracting Inc., Responding Party; International Union of Operating Engineers, Local 793, Appli­cant v. Associated Paving Company Ltd. and/or Capobianco Management Limited and/or Associated Contracting Inc. and/or Rosalucia Landscaping Inc. and/or The Core Group Inc. and/or Capo Contracting Inc., Responding Parties; Labourers International Union of North America, Local 183; International Union of Operating Engineers, Local 793, Applicants v. Associated Paving Ltd., Capobianco Management Limited, Associated Contracting Inc., Rosalucia Landscaping Inc., The Core Group Inc., Capo Contracting Inc., Responding Parties; International Union of Operating Engineers, Local 793, Applicant v. Associated Paving Ltd., Capobianco Management Limited, Associated Contracting Inc., Rosalucia Landscaping Inc., The Core Group Inc., Capo Contracting Inc., Responding Parties; Labourers International Union of North America, Local 183, Applicant v. Associated Paving Ltd., Capobianco Management Limited, Associated Contracting Inc., Rosalucia Landscaping Inc., The Core Group Inc., Capo Contracting Inc., Responding Parties; International Union of Operating Engineers, Local 793, Applicant v. Associated Paving Ltd., Capobianco Management Limited, Rosalucia Landscaping Inc., The Core Group Inc., Capo Contracting Inc., Responding Parties

BEFORE: Robert Herman, Alternate Chair.

APPEARANCES: Steve Wahl and John Cordeiro for Labourers' Local 183; Steve Wahl and Ken Lew for Operating Engineers, Local 793; Walter Thornton and Tony Capobianco for Associated Contracting Inc. et al.

DECISION OF THE BOARD; April 15, 1999

[ 1 ] . There are a number of applications outstanding involving these parties. The instant decision deals only with two applications that a first collective agreement be settled by arbitration (Board File No's. 0213-97-FC and 0214-97-FC) and a related unfair labour practice complaint (File No. 2425-96-U). These applications represent twin or parallel applications by two applicant unions, the International Union of Operating Engineers, Local 793 (hereinafter either the "Operating Engineers" or "Local 793") and the Labourers International Union of North America, Local 183 (hereinafter either the "Labourers" or "Local 183"). The responding parties will together be referred to as "Associated" or the "Associated Companies". Individual responding parties will be referred to by their individual names.

[ 2 ] . Before getting into the merits of these issues, the Board first sets out in written form the reasons it provided orally at the hearing, in dismissing a preliminary motion made by the responding parties that these matters ought to be dismissed without a hearing. On November 23, 1998, the Board ruled as follows:

1. The Board will not call on Mr. Wahl to respond to the submissions of Mr. Thornton.

2. The question for the Board is whether to dismiss the unfair labour practice complaint and the two first collective agreement applications at this preliminary stage, on the basis that they, or some of them, are frivolous or an abuse of process, or there has been undue delay by the applicants, in terms of when they were filed or pursued.

3. Having heard the submissions of the responding employers, the Board is not satisfied there is good reason to dismiss any of these applications on this basis.

4. First, it is unclear to the Board where the Board might have the authority to dismiss the first collective agreement applications on this basis. If the Board could not dismiss those applications, it makes little sense to dismiss the unfair labour practice complaint, as the substance of the unfair labour practice complaint is part of the substance of the first collective agreement applications.

5. Second, even if the Board had the authority to dismiss the first collective agreement applications on the bases asserted, the Board declines to do so. First collective agreement applications are not like applications under other sections of the Act, such as unfair labour practice complaints filed pursuant to section 96. In those instances, the Board has and does exercise a discretion not to inquire further into a matter in particular cases. First collective agreement applications, however, can represent not only allegations of statutory breaches, but the crystallization of a statutorily granted mechanism for achiev­ing a collective agreement when bargaining has been unsuccessful. A party filing such an application must still be entitled, as directed by the Board, to access to the statutory mechanism of interest arbitration, but the Board ought not readily to preclude a party seeking recourse to this mechanism from an opportunity to convince the Board that the bargaining impasse justifies another approach.

6. The Board considered the submissions in the context of what has actually occurred between the parties, including the fact that a request was made by the applicants, shortly after they filed their applications, that the applications be dealt with forthwith. This request was opposed by the responding parties. The Board ruled that their consideration would be deferred until after the matters the Board was then dealing with were completed.

7. It would be inappropriate to dismiss these applications now, on this preliminary basis.

[ 3 ] . In dealing with the merits of considering these applications, the Board relied upon the facts as determined in prior decisions of the Board on point, or facts asserted by the parties in their written material, to the extent that these assertions were not in dispute. Where facts pleaded were disputed by the other parties (and had not previously been found by the Board), the parties were agreed that the Board could still hear their submissions on the issues, based upon the facts as pleaded. Only if the resolution of these disputed facts was necessary in making a decision would the Board have to enquire into them. In the result, however, the Board did not have to rely upon any disputed facts in order to reach the decisions that follow.

[ 4 ] . There has been an considerable history of interaction between the parties, much of it reflected in prior decisions of the Board. A description of events occurring up until 1992 is contained in an excerpt from the decision of the Board (differently constituted) of August 5, 1994 ([1994] OLRB Rep. Aug. 951), set out in Appendix "A". To summarize some of the facts recited there, the six companies named as responding parties are owned by different members of the Capobianco family. In August, 1990, Associated Contracting Inc. ("Contracting") voluntarily signed a collective agreement with Local 793, and shortly thereafter, with the Labourers'. In December 1990, the Labourers' filed an application pursuant to section 1(4) of the Act, naming all six responding companies as related employers. Ultimately, the Labourers' agreed with Contracting that Contracting would revert to being non-union, and the section 1(4) application ended on this basis. Thereupon, Contracting stopped applying its collective agreement with the other applicant, Local 793. In February 1992, Notice to Bargain was given by Local 793 to Contracting. Contracting took the position that Local 793 had abandoned its bargaining rights. In its decision of August 5, 1994, the Board subsequently concluded that there had been no abandonment by Local 793.

[ 5 ] . The responding companies operate in the road building sector, a sector in which the MTRBA operates. The Metropolitan Toronto Road Builders' Association ("MTRBA") is an employers' association that has represented employers in the road building industry in the greater Metropolitan Toronto area for 35 years, negotiating standard or pattern agreements in the road building sector. It represents a significant number of employers, and has concluded collective agreements with various unions, including both applicants, over several decades. It is not an accredited organization, but a large number of non-member employers "pick-up" or sign collective agreements that reflect the pattern agreement.

[ 6 ] . On November 5, 1992, even though the Operating Engineers maintained it still had bar­gaining rights with Contracting, each of the applicant unions filed their own application for certification with respect to all six of the named responding parties, in which each of the applicants also relied upon the provisions of section 1(4) of the Act, and a related unfair labour practice complaint. Section 1(4) reads as follows:

1. (4) Where, in the opinion of the Board, associated or related activities or businesses are carried on, whether or not simultaneously, by or through more than one corporation, individual, firm, syndicate or association or any combination thereof, under common control or direction, the Board may, upon the application of any person, trade union or council of trade unions concerned, treat the corporations, individuals, firms, syndicates or associations or any combination thereof as constitut­ing one employer for the purposes of this Act and grant such relief, by way of declaration or otherwise, as it may deem appropriate.

[ 7 ] . Some time during the summer of 1993, the Operating Engineers engaged in a strike with respect to Contracting. This in turn led Contracting to file with the Board an application pursuant to section 137 of the Act, alleging that the Operating Engineers, and one of its officers, were engaging in an unlawful strike. The Board (differently constituted) issued a decision orally on September 3, 1993. A written decision subsequently issued on November 2, 1993 ([1993] OLRB Rep. Nov. 1117), where the Board wrote as follows:

1.This is an application under section 137 of the Labour Relations Act ("the Act") and a related request for interim relief under section 92.1. The applicant, Associated Contracting Inc. ("the Employer" or "Associated") asserts, among other things, that officials of the respondent Interna­tional Union of Operating Engineers, Local 793 ("the Union" or "Local 793") have threatened to encourage an unlawful strike and or picket at sites of Associated pursuant to what it described as an invalid "No Board Report", contrary to section 76 and 78 of the Act. Further, assuming that there is a valid "No Board Report", it is alleged that the union is picketing the Associated sites for an unlawful purpose and that the picketing is, therefore, unlawful. In its application under section 137, the employer seeks the following:

(a)A declaration that Local 793 abandoned its bargaining rights/collective agreement in relation to Associated Contracting.

(b)A declaration that the Appointment Of A Conciliation Officer and the subsequent issuance of a "No Board Report" by the Minister were without authority and of no effect.

(c)A declaration that M. Gallagher and the IUOE, Local 793 violated the Labour Relations Act as alleged in this Appendix 2.

(d)An order that M. Gallagher and the IUOE, Local 793 cease and desist from violating the Labour Relations Act in relation to any of the Responding Parties in OLRB File No. 2283-92-R.

(e)An order that no proceedings involving any of the Responding Parties in OLRB File No. 2283-92-R may be instituted by IUOE, Local 793, except with leave of the Board.

(f)Such further or other relief as the Board may consider to be appropriate.

4.The Board was asked by the parties to decide whether Associated should be permitted to lead evidence to show that Local 793 had abandoned bargaining rights. The second matter involved a determination by the Board in respect of Local 793's reliance on the "No Board Report" for an allegedly unlawful purpose.

5.Most of the facts in this matter are not in dispute and can be succinctly summarised. Associated voluntarily recognized and signed a collective agreement with Local 793 on August 31, 1990. That collective agreement, which was filed with the Board, had an expiry date of April 30,1992. It is the contention of Associated that during the currency of the collective agreement it did not abide by the terms and conditions of that collective agreement and that it operated in the construction industry as a non-union contractor with the express knowledge and acquiescence of Local 793. Local 793 denies these allegations. It is sufficient for our purposes that Associated was prepared to produce evidence in support of its assertion that Local 793 had abandoned its bargaining rights.

7.On November 5, 1992, Local 793 and the Labourers International Union of North America, Local 183 filed separate applications for certification in respect of employees of Associated and various other related companies (the "Capobianco Companies"). In the reply to the certification application, the respondents (including Associated) acknowledged the followings facts:

a)Associated Contracting Inc. and Capo Contracting Inc. are the only corporations (of the responding parties) employing construction industry field personnel.

b)Associated Contracting Inc. and Capo Contracting Inc. are associated or related businesses or activities under common direction and control within the meaning of section 1(4) of the Act.

25.The facts of this case are unusual to say the least. All parties have worked very hard to preserve all their legal rights and positions. Even in respect of the pleadings and processing of this case, the parties insisted on an unusual format which included stipulated positions in an attempt to preserve arguments in a certain way, for proceedings which might or might not take place in the future. With respect to the certification proceeding, neither party was prepared to acknowledge, for the purpose of that proceeding, that Associated had bargaining rights. Associated did not acknowledge bar­gaining rights because it contended that Local 793 had abandoned bargaining rights. In its view, since the Union was no longer the bargaining agent for the employer, it was willing to put Associated's employees on the employer's list. This position is consistent with the position Associ­ated took before the Board in respect of this case. The Union, for its part, acknowledged that Associated and Local 793 were bound to a collective agreement that expired on April 30, 1992, however took the position that employees of Associated were properly subject to the certification application. In effect the Union was attempting to set up a defence to a finding of abandonment should it be certified. The position of the Union is summed up in the December 23 1992 letter reproduced above. Since the abandonment issue had not been decided or even placed before the Board, neither party was prepared to unleash a legal argument which would affect its overall position until the issue of abandonment had been decided.

27. Local 793 has set up a multiplicity of positions which, on their face, seem inconsistent. However in reality, they are answers to positions taken, or about to be taken, by Associated. Local 793 has demonstrated and we so find, that the predominant purpose of the threatened picketing was to put economic pressure on the primary employer so that the primary employer would sign a Collective Agreement. In this case we are unable to find that the threatened picketing was in connection with an unlawful purpose. In fact, the pressure threatened to be exerted on the employer is pressure that is specifically contemplated by the Act.

28. After the Board ruled on the second preliminary matter, the parties advised the Board that they wished to sign a collective agreement in the presence of the Board. The parties jointly requested an opportunity to stipulate positions prior to signing and they also requested that these stipulations be recorded in this Decision.

29.The following are the parties stipulated positions. Associated's counsel stipulates that Mr. Capobianco is signing the collective agreement under duress specifically as a result of what Associated considers to be unlawful picketing. Counsel appreciates that this matter has already been decided in light of the Board's rulings. Counsel further submits that Associated does not intend to voluntarily implement the collective agreement. All of the foregoing is intended to be without prejudice to the position of Associated in relation to any court proceeding which may be commenced. It is Associated's understanding that Local 793 does not agree that there is any duress or unlawful picketing and that Local 793 may or will institute proceedings forthwith to require compliance with the renewal collective agreement. On the basis of these representations, the decisions of the Board herein, and the signing of the collective agreement this matter may be disposed of by the Board.

30. Counsel for Local 793 stipulates that the renewal collective agreement is not being signed under duress. In particular Local 793 denies that there has been any unlawful picketing and relies on the Board's preliminary rulings in this matter to the effect that the union is in a lawful strike position with a valid "No Board Report" in relation to Associated. Local 793 has put Associated on notice that it is going to enforce compliance with all terms and conditions of the collective agreement, and take all necessary proceedings against Associated in respect of enforcing the collective agreement. Further, the execution of the renewal agreement is without prejudice to all outstanding proceedings. In light of the above stipulations, and the signing of the collective agreement, the respondent requests that both applications be dismissed.

(emphasis added)

[ 8 ] . As this decision states (at paragraphs 28, 29 and 30 therein), Contracting signed a collective agreement with the Operating Engineers. That agreement expired on April 30, 1995. Contracting disputes that it thus became bound to a collective agreement with the Operating Engineers, and notes the position it stipulated at the time of signing. Whatever Contracting's expressed views were in signing the collective agreement, they did not nullify the significance of signing a collective agreement. There is nothing that suggests that Contracting did not become bound upon signing that collective agreement with Local 793. Contracting made a conscious choice to sign the collective agreement, and its character­ization of the circumstances as amounting to "duress" does not vitiate the legal effect of signing the collective agreement. It became bound to that agreement upon signing it.

[ 9 ] . On October 7, 1993, the Operating Engineers filed a grievance against Contracting, com­plaining about various breaches of the collective agreement. The grievance was referred to the Board pursuant to section 133 of the Act (Board File No. 2379-93-G).

[ 10 ] . Some time in the late spring or early summer of 1995 (the parties did not describe the precise date), Contracting signed a renewal collective agreement with the Operating Engineers, running from May 1, 1995 to April 30, 1998. That collective agreement named only Contracting, and was signed by Contracting only, not the five other responding parties.

[ 11 ] . On October 18, 1995, during the hearing into certain matters in Board File No's. 2282-92-R, 2283-92-R and 2719-92-U, the Board (differently constituted) made an oral ruling. That ruling was subsequently recorded in written form in the decision of the Board that issued on May 13, 1996. At paragraph 17 therein, the Board wrote as follows:

17. On the morning of October 18, 1995, I rendered the following oral ruling:

Associated Contracting Inc., Capo Contracting Inc. and Associated Paving Company Ltd. have conceded that they are related employers within the meaning of section 1(4) of the Act. The parties have remitted the question of whether these companies are related to any of the remaining responding parties to the Board.

The facts upon which I have relied in coming to a determination of this issue are as set out at paragraphs 10 and 11 of the Board's decision in Board File No. 2873-92-G dated

August 5, 1994 [reported as Associated Contracting Inc., [1994] OLRB Rep. Aug. 951] and the facts as stipulated by the parties at the hearing of the instant matters on October 17, 1995.

It is not disputed that Rosalucia Landscaping Inc., The Core Group Inc. and Capobianco Management Limited are associated or related to and, at one time, were under common direction or control with Associated Contracting Inc., Capo Contracting Inc. and Associ­ated Paving Company Ltd. It is argued, however, that the Board should, as a matter of discretion, refuse to grant a section 1(4) declaration as no labour relations purpose would be served.

I recognize that Rosalucia Landscaping Inc. and The Core Group Inc. are presently inactive and that Capobianco Management Limited has never performed or subcontracted construction work. However, these companies are all very closely related. The Board's jurisprudence on the application of section 1(4), at least in the context of the construction industry, establishes that the Board will grant a section 1(4) declaration where there is a potential for an erosion of the union's bargaining rights. In the present case, although Rosalucia Landscaping Inc., The Core Group Inc. and Capobianco Management Limited are not presently engaged in construction work, on the facts of this case, I am satisfied that at least the potential for these companies to engage in construction work exists such that the granting of a section 1(4) declaration is warranted.

Given, however, that the declaration is intended to address a "potential" situation, I hereby declare and direct that, only in the event of and only for so long as, Rosalucia Landscaping Inc., The Core Group Inc. and Capobianco Management Limited engage in construction work or the subcontracting of construction work, they, together with Associ­ated Contracting Inc., Associated Paving Company Ltd. and Capo Contracting Inc., are a single employer for the purposes of the Act.

[ 12 ] . The Board found that all six responding parties, for purposes of construction work, were a single employer for purposes of the Act. At the time that this declaration and direction were made, only Contracting was bound to a collective agreement with the Operating Engineers. Further on in its decision, the Board certified both Locals 183 and 793. With respect to Local 183, the Board wrote as follows:

68. With respect to Board File No. 2282-92-R, the Board is satisfied that more than 55 per cent of the employees of Associated Paving Company Ltd., Capobianco Management Limited, Associated Contracting Inc., Rosalucia Landscaping Inc., The Core Group Inc. and Capo Contracting Inc. in the bargaining unit were members of Labourers International Union of North America, Local 183 on November 18, 1992, the terminal date fixed for this application.

69. Therefore, a certificate will issue to Labourers International Union of North America, Local 183 on its own behalf and on behalf of all other affiliated bargaining agents of The Labourers International Union of North America and The Labourers' International Union of North America, Ontario Provincial District Council in respect of all construction labourers in the employ of Associated Paving Company Ltd., Capobianco Management Limited, Associated Contracting Inc., Rosalucia Landscaping Inc., The Core Group Inc. and Capo Contracting Inc. in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario, save and except non-working foremen and persons above the rank of non-working foreman.

70. Further, a certificate will issue to Labourers International Union of North America, Local 183 in respect of all construction labourers in the employ of Associated Paving Company Ltd., Capobianco Management Limited, Associated Contracting Inc., Rosalucia Landscaping Inc., The Core Group Inc. and Capo Contracting Inc. in all sectors of the construction industry, excluding the industrial, commercial and institutional sector, in the Municipality of Metropolitan Toronto, the Regional Municipalities of Peel and York, the Towns of Oakville and Halton Hills and that portion of the Town of Milton within the geographic Townships of Esquesing and Trafalgar, and the Towns of Ajax and Pickering in the Regional Municipality of Durham, save and except non-working foremen and persons above the rank of non-working foreman.

71. For clarity, I note the parties' agreement that, the name of all of the responding parties, including Associated Contracting Inc., are to appear in the certificates issued to Local 183.

[ 13 ] . With respect to Local 793, which already had an agreement with Contracting, the Board wrote as follows:

73. Therefore, a certificate will issue to International Union of Operating Engineers, Local 793 on its own behalf and on behalf of all other affiliated bargaining agents of the International Union of Operating Engineers and Local 793 of the International Union of Operating Engineers in respect of all employees of Associated Paving Company Ltd., Capobianco Management Limited, Rosalucia Landscaping Inc., The Core Group Inc. and Capo Contracting Inc. in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario, engaged in the operation of cranes, shovels, bulldozers or similar equipment, and those primarily engaged in the repairing and maintaining of same and employees engaged as surveyors, save and except non-working foremen and persons above the rank of non-working foreman.

74. Further, a certificate will issue to International Union of Operating Engineers, Local 793 in respect of all employees of Associated Paving Company Ltd., Capobianco Management Limited, Rosalucia Landscaping Inc., The Core Group Inc. and Capo Contracting Inc. in all sectors of the construction industry, excluding the industrial, commercial and institutional sector, in the Municipality of Metropolitan Toronto, the Regional Municipalities of Peel and York, the Towns of Oakville and Halton Hills and that portion of the Town of Milton within the geographic Townships of Esquesing and Trafalgar, and the Towns of Ajax and Pickering in the Regional Municipality of Durham, engaged in the operation of cranes, shovels, bulldozers or similar equipment, and those primarily engaged in the repairing and maintaining of same, and employees engaged as surveyors, save and except non-working foremen and persons above the rank of non-working foreman.

75. For clarity, I note the parties' agreement that Associated Contracting Inc. is not to appear in the certificates issued to Local 793.

As the parties themselves agreed, the certificates issued to the Operating Engineers did not name Contracting, the company that was already bound to an agreement with it. The certificates that issued to Local 183 named all six responding companies.

[ 14 ] . On June 4, 1996 the Operating Engineers filed another grievance against Contracting, complaining about its failure to honour the collective agreement. Also in June, 1996, Notice to Bargain was served upon Contracting by both Locals 793 and 183.

[ 15 ] . The parties met in conciliation on October 8, 1996, at which time the applicant unions advised Associated that they would only consider signing a pattern agreement, picking up the standard agreement for members of the MTRBA. Associated advised the unions that it was proposing a collective agreement distinctive to it, and it would not accept the pattern agreement. It also told them that it would be applying forthwith for final offer votes. The next day, Associated did just that, applying to the Minister for final offer votes, pursuant to section 42 of the Act. Those final offer votes were in fact held on October 23, 1996. On November 4, 1996, the Minister referred a matter to the Board for its advice with respect to the eligibility to vote of certain individuals in those votes.

[ 16 ] . On November 12, 1996, the instant unfair labour practice complaint was filed, as was an application pursuant to section 133 of the Act (Board File No. 2426-96-G). This latter application was the referral to arbitration of the grievance of June 4, 1996, referred to in paragraph 14 above.

[ 17 ] . On April 16, 1997, the two instant first collective agreement applications were filed. On October 17, 1997, the Board issued a decision by which it provided advice to the Minister, in response to the Reference from the Minister. That advice was that the ballots cast by non-employees who were members of the union ought not to be counted. Shortly after this decision issued, the parties would have known the results of the final offer votes.

[ 18 ] . More than six months later, around April 30, 1998 an individual employee applied to terminate bargaining rights with respect to the Operating Engineers. In May, 1998, the applicant unions requested that all six of the instant applications be relisted for hearing, which they were. Some time over the summer of 1998 (the dates were not provided to the Board) Associated or Contracting (it is unclear which) requested of the Minister that final offer votes be held with respect to the two bargaining units, and the Minister again directed that they be held. Those votes were held some time over the summer of 1998. The Board was advised by the employer at the hearing that the employees again voted in favour of the final offer made by the employer. The termination application was dismissed by the Board, by decision issued on November 24, 1998.

[ 19 ] . There has been no request by Contracting or Associated of either union that it sign a collective agreement consistent with the final offers put to the employees which (the Board was advised) they have twice voted to accept.

[ 20 ] . Those are the facts. Turning first to the unfair labour practice complaint, in essence the unions argue that the responding employers breached the Act by their failure to acknowledge or act as if they recognized the bargaining authority of the unions, and/or their failure to acknowledge that they were bound to a collective agreement. They are also alleged to have breached the Act by virtue of some of the proposals they made in bargaining. The applicants maintain that the course of conduct followed by Associated was designed to and did in fact convey to employees in the bargaining units that the employer would not respect the rights of the unions or the employees under the Act and their actions when reviewed over time were therefore in breach of the Act.

[ 21 ] . Although these applications are related in part, each applicant union is in a somewhat different position. Insofar as the Operating Engineers is concerned, all six of the Associated companies were bound to the collective agreement as of October 19, 1995. That is the result of the combined effect of Contracting signing collective agreements with the Operating Engineers (on September 3, 1993, at the Board, as reflected in the decision of the Board that issued on November, 1993, and the renewal collective agreement signed sometime in the summer of 1995) and the declaration under section 1(4) which issued on October 19, 1995. When that section 1(4) declaration issued, the existing collective agreement between Contracting and the Operating Engineers became applicable to and binding upon the other five responding companies. The Associated companies all then became bound, not only Contracting. That is the necessary effect of a declaration issuing under section 1(4) of the Act: all employers the subject of the declaration became a single employer for purposes of the Act. The declaration was made at a point in time when one of the six companies was bound to a collective agreement with the union. The other five then became bound because they became part of the "single employer". It is difficult to understand on what basis the Associated companies, or any of them, could have maintained subsequent to October 19, 1995 that they were not all together bound to the existing collective agreement with the Operating Engineers.

[ 22 ] . Nevertheless, that they would conduct themselves as if they were not bound to a collective agreement appears to be the decision that the responding employers took, and it appears also that the responding employers acted as if no section 1(4) declaration had been made. For example, as noted in paragraph 29 of the decision of the Board of November 2. 1993. set out at paragraph 7 above, Contracting made very clear that it did not intend to voluntarily implement the collective agreement, a rather astonishing proposition in light of the fact that it was choosing to sign the collective agreement, and would become bound upon signing. Even if Contracting reasonably believed that signing that agreement in 1993 had not bound it, at the very least it would have realized it became bound when it signed a renewal agreement in early summer, 1995. It was acknowledged during the hearing that at least with respect to a number of current employees, and for some meaningful period of time, Contracting had not been remitting amounts due under the collective agreement. Indeed, it does not appear as if there has been any provision of the collective agreement that Contracting, or the other companies part of the single employer, have been honouring. This behaviour represents continuation of the complete denial of the collective agreement that the Board already found was occurring in paragraph 22 of its decision of August 5, 1994, (see Appendix "A" and paragraph 4 above), where it wrote that "...Contracting immediately stopped applying the Local 793 collective agreement. No further remit­tances or dues deductions were made". All the Associated companies appear to have completely ignored the collective agreement. Indeed, they maintain that they are not bound, a position the Board has rejected.

[ 23 ] . Sections 70 and 72 of the Act read as follows:

70. No employer or employers' organization and no person acting on behalf of an employer or an employers' organization shall participate in or interfere with the formation, selection or administra­tion of a trade union or the representation of employees by a trade union or contribute financial or other support to a trade union, but nothing in this section shall be deemed to deprive an employer of the employer's freedom to express views so long as the employer does not use coercion, intimidation, threats, promises or undue influence.

71. No employer, employers' organization or person acting on behalf of an employer or an employers' organization,

(a) shall refuse to employ or to continue to employ a person, or discriminate against a person in regard to employment or any term or condition of employ­ment because the person was or is a member of a trade union or was or is exercising any other rights under this Act;

(b) shall impose any condition in a contract of employment or propose the imposition of any condition in a contract of employment that seeks to restrain an employee or a person seeking employment from becoming a member of a trade union or exercising any other rights under this Act; or

(c) shall seek by threat of dismissal, or by any other kind of threat, or by the imposition of a pecuniary or other penalty, or by any other means to compel an employee to become or refrain from becoming or to continue to be or to cease to be a member or officer or representative of a trade union or to cease to exercise any other rights under this Act.

[ 24 ] . The Board is satisfied that there has been a complete, and unlawful, refusal to honour the obligations and rights provided by the Act and a refusal to recognize or apply the collective agreement, by all six of the responding companies. The Board declares that they have all breached sections 70 and 72 of the Act in their behaviour in this respect.

[ 25 ] . Local 183 submits that the conduct of the Associated companies in dealing with the Op­erating Engineers also breached the rights of Local 183 under the Act, and the rights of the employees the Labourers represent. The Labourers argue that the refusal of the companies to recognize the collective agreement with the Operating Engineers was also calculated to and did in fact send a unlawful message to Local 183, its members, and the labourers working for the companies, a message that the employers were refusing to recognize the legal rights of Local 183 and those it represented.

[ 26 ] . Given the history between the parties, the fact that there was not (at the relevant time) a collective agreement between Local 183 and any of the responding employers, and given Local 183's delay in actively pursuing these matters, the Board declines to make a finding with respect to whether this conduct breached the Act, insofar as it concerns the Labourers', and those it represents. However, these actions of the Associated companies, in refusing to recognize their obligations to Local 793, remain relevant to the application by the Labourers' for a direction that its first collective agreement be settled by arbitration. Labourers and operating engineers work closely together in the road building sector, and the interactions between the applicants and the responding companies over the years have overlapped and become intertwined, and linked the two unions together in many respects, including through the proceedings before the Board. The message the companies conveyed to the Operating Engineers was a message conveyed as well to the Labourers'

[ 27 ] . With respect to the allegation that the positions taken by the Associated companies in bargaining with the applicants constitute unfair labour practices, no finding will be made. Some of the positions taken by Associated in bargaining may constitute breaches of the Act; for example, a bargaining position which sought to take to impasse any change in the bargaining rights enjoyed by the union applicants might constitute a breach of the Act. Nevertheless, for the reasons that follow, the Board declines to made any finding in this respect.

[ 28 ] . The responding employer justifiably notes that neither the Operating Engineers nor the Labourers have meaningfully bargained with respect to the renewal of the collective agreement, or the first collective agreement as the case may be, but instead have taken the unwavering position that the responding parties must sign a pattern agreement, or there is nothing to discuss. The employers too bear some measure of responsibility for this "all or nothing" attitude, as Associated immediately applied for a final offer vote. In any event, given the approach of the unions, that a clause by clause analysis of the employer's offer was irrelevant, it would be inappropriate to now dissect and analyze the responding parties' proposal, to determine whether certain aspects of it constitute an unfair labour practice. The applicants expressed no concern about the specific content of those proposals during bargaining, and the Board considers it inappropriate to now conclude that any of them constitute a breach of the Act. Of course, the content and substance of those positions remain relevant for purposes of considering whether to direct a first collective agreement by arbitration.

[ 29 ] . The Board turns now to the two applications for a first collective agreement direction. The relevant section of the Act reads in part as follows:

43. (1) Where the parties are unable to effect a first collective agreement and the Minister has released a notice that it is not considered advisable to appoint a conciliation board or the Minister has released the report of a conciliation board, either party may apply to the Board to direct the settlement of a first collective agreement by arbitration.

(2) The Board shall consider and make its decision on an application under subsection (1) within 30 days of receiving the application and it shall direct the settlement of a first collective agreement by arbitration where, irrespective of whether section 17 has been contravened, it appears to the Board that the process of collective bargaining has been unsuccessful because of,

(a) the refusal of the employer to recognize the bargaining authority of the trade union;

(b) the uncompromising nature of any bargaining position adopted by the respon­dent without reasonable justification;

(c) the failure of the respondent to make reasonable or expeditious efforts to conclude a collective agreement; or

(d) any other reason the Board considers relevant.

[ 30 ] . With respect to the application made by Local 793, given the decision above that it has already entered collective agreements binding on all six responding employers, its application is hereby dismissed. Section 43 deals with applications in the context of a "first collective agreement", and the first collective agreement with Operating Engineers has already been signed and has already expired.

[ 31 ] . This leaves the application brought by Local 183. No meaningful bargaining has taken place between the parties. Both the employer and the union hold firm positions as to the necessity of their bargaining stances, positions each has maintained for at least several years. From the union's perspec­tive, Local 183 cannot agree to any agreement that contains any meaningful variation from the pattern agreements in the sector in that geographical region, for to do so would create serious disruption and uncertainty among employers working in the sector, and would provide a competitive advantage to the Associated companies, at the cost of the employers that had agreed to the standard agreement. If employers who had voluntarily "picked-up" the pattern agreement learn that Associated has negotiated a more flexible, less expensive collective agreement with Local 183, they will clamor for similar treatment. When their current collective agreements expire, negotiations will become extremely difficult and individualistic, rather than characterized by continued acceptance of the standard agreement. Only adhering to the pattern will maintain stability in the sector. From the perspective of the Associated companies, agreeing to the pattern agreement would not only ignore the fact that they were legally entitled to negotiate on their own, as they were not bound to the standard agreement reached by members of the MTRBA, but would not take into account Associated's own needs and history. Why should the fact of certification require Associated to sign a particular agreement, without meaningful bargaining? Additionally, the longer Associated can operate without a collective agreement, the better off it is. So it has little incentive to push bargaining to a conclusion. For these reasons, at least, neither party has engaged in any real bargaining.

[ 32 ] . The responding employers assert that the failure to bargain by Local 183 should lead the Board to dismiss its application. Perhaps, in a more typical scenario, a failure by an applicant to even consider the proposal of a responding party would yield this result. Here however, to take such a view would be too simplistic, given all the circumstances, including the history between the parties, and the context in which that history has artsen.

[ 33 ] . The employer also submits that the effect of the final offer vote(s), where the employees voted to accept the employer's final offer, ought to lead to dismissal of the instant application. Again, in more typical circumstances this might be true, but again, in context, for several reasons, this fact is not determinative. First, it is unclear whether the results of the final offer vote can stand, as it is not clear whether the proper group of employees was given notice of the vote, and an opportunity to vote. The facts before the Board are not sufficient to assess this. Second, the final offer votes were directed by the Minister in a construction industry context, where a pattern agreement exists for many employers. It is not obvious that the Board would require a union to execute a collective agreement based on the final offer in such circumstances. The best that can be said is that this issue has not arisen before the Board before, and the Board's response remains to be determined in an appropriate case. Third, and in any event, Associated has made no attempt to seek to have the Labourers sign a collective agreement that reflects the final offer. The Board's decision on the eligibility of those entitled to vote in the initial final offer vote issued on October 17, 1997, over a year ago. Shortly thereafter, if not as of that date, Associated would have known that the employees had voted in favour of its final offer. There is no suggestion that Associated asked the union to sign a collective agreement based on that offer. Nor does it appear that the union took any steps to execute a collective agreement. The employer was obviously content to do nothing further, and indeed, the lack of any request that the union sign an agreement suggests that the employer preferred to continue to operate without a collective agreement. While this is hardly surprising, it does appear as if the final offer vote was an instrument to avoid a collective agreement, not a mechanism for breaking a logjam and obtaining one. When this issue was raised during the hearing, Associated did not volunteer to sign a collective agreement reflective of its final offer, nor did it ask that Local 183 sign such a collective agreement. In these circumstances, the Board is not disposed to give much weight to the results of the final offer vote, in deciding whether to direct the arbitration of the first collective agreement.

[ 34 ] . Focusing on the language of section 43(2) of the Act, there can be no question that bargaining has been unsuccessful. This bargaining has been going on, intermittently and in a rather disjointed manner, for over 2-1/2 years. Throughout this period, the parties have had no meaningful negotiations, in part due to the refusal of each to consider seriously the position of the other, and in part due to the refusal of Associated to accept the consequences of the various decisions of the Board. The Board has no doubt that the effect of dismissing this application would be that the parties would continue to be unable to meaningfully negotiate a collective agreement. The reality is that each party has a firmly entrenched position that has effectively prevented them from meaningful negotiations. In the Board's opinion, this standoff will continue into the future.

[ 35 ] . With respect to section 43(2)(b) (the uncompromising nature of any bargaining position adopted by the responding party without reasonable justification), there is little doubt that the re­sponding employers did not have opportunity during negotiations to provide the rationale for their positions to Local 183, although it is less clear that they were intent on doing so, given their immediate request for a final offer vote. Whatever the defects of the bargaining process that occurred, the justification for its positions provided by Associated in its pleadings is the statement that its offers are "bona fide and reasonable based on the Responding Parties' established practices and/or legitimate operational considerations". No further reasons are given. While one can readily posit justification for some of its positions, for others the rationale is not so obvious. There is very little in the record before the Board providing the companies' "reasonable justification". While this aspect is somewhat troubling, too technical an approach will little serve the parties, and may not be appropriate here given the extremely limited bargaining activity engaged in by either party. Accordingly, no direction will he made under section 43(2)(b).

[ 36 ] . A direction is hereby made based upon the provisions of subsection (d) of section 43(2). The Board must make an assessment as to the realistic possibilities of whether these parties, if left to bargain on their own, will be able to negotiate a first collective agreement themselves. The Board must address whether their failure to meaningfully bargain to date reflects positions so firmly held that any return to bargaining or any reference back to their own devices will yield no change, or whether a dismissal of the application will lead them to begin to meaningfully bargain, or to test their relative bargaining strengths. Unfortunately, there is nothing that suggests that these parties will ever success­fully negotiate an agreement. Given the construction industry context in which this dispute arises, the significance of the issue to both parties, the presence of the MTRBA in the background, and the fact that these disputes, in various guises and manifestations, have been ongoing for more than seven years, it is quite unrealistic to assume that these parties will ever be able to negotiate a collective agreement or that a strike or lockout might have practical meaning. The conduct of Associated through the years, in wrongfully failing to honour its legal obligations, whether to bargain, to comply with the collective agreement, or to accept that all six companies were bound, coupled with the fact that many of its employees have worked for Associated for a number of years, has rendered any resort by the union to a strike to quite likely be futile. Associated's own behaviour has in part eliminated the Board's concern about making a direction pursuant to section 43(2)(d) when there has been no strike or lockout, nor any meaningful bargaining. This is not a typical relationship or history, even in the construction industry. This is not simply a relationship where each party has begun with a firm position and has refused to depart from it. It is a relationship where all parties. for many years. have engaged in different tactics to secure their ends, without any resolution in sight, nor with any material change in position over the years.

[ 37 ] . Section 43(2)(d) authorizes the Board to direct the arbitration of a first collective agreement for "any other reason the Board considers relevant". The Board has not often resorted to this subsection. Too quickly or easily applied, subsection (d) would become an automatic access provision, a result inconsistent with the legislation. At the same time, there are cases where it is appropriate to make an order under this subsection. This will occur primarily where the circumstances indicate that bargaining, and further or continued activity in support of bargaining (such as a strike or lockout) are not likely to achieve a negotiated agreement, and where it does not appear as if the parties have manipulated or maneuvered the process in order to obtain a direction. Section 43(2)(d) cannot be allowed as a substitute for real efforts to bargain. In those circumstances where the Board has applied this subsection, it has been clear that if left to their own resources, bargaining will continue to be unsuccessful: see, for example, Placer Dome Inc. [1991] OLRB Rep. Mar. 357, The Cambridge Reporter [1992] OLRB Rep. Mar. 271. Similarly here, the choices appear stark at this point - to make a direction, thus ensuring that the bargaining relationship can begin to move to the next stage, or dismiss the application, and prolong the 2-1/2 years of uncertainty into the indefinite future. In these circumstances, a direction under section 43(2)(d) is appropriate.

[ 38 ] . Finally, there is the question of whether other remedial relief should issue. The applicants have not actively pursued their section 133 applications, nor did they for some meaningful period of time actively pursue the unfair labour practice complaint. All parties have attempted to maneuver, manipulate, strategize, and use all techniques and resources at their disposal in order to create difficulties for the other parties, and to make labour relations life difficult for their adversary. Within the limits of the law, they are fully entitled to have done so.

[ 39 ] . Any question of damages is best dealt with in the outstanding section 133 applications.

[ 40 ] . Some remedial relief is appropriate, however, with respect to the refusal to recognize the bargaining authority of the union, and the refusal to have applied the collective agreement. Employees are entitled to be reassured that their rights will be respected. Accordingly, the Board directs that the responding employers not interfere in any way with the exercise of the statutory rights enjoyed by individual members of the unions, the employees of the responding companies, or the unions themselves.

[ 41 ] . A posting would serve little purpose here. It would not likely convey what has occurred, or why a posting was directed, given the lengthy history at play. Rather, the Board directs that a copy of the instant decision be provided at the responding parties' cost, to all individuals in the Operating Engineers bargaining unit who are employees of any of the responding companies as of the date of this decision, and to any individuals who became employees between now and when an agreement is signed with the Operating Engineers. Individuals employed as labourers need not be provided with copies, as their agreement will be resolved by interest arbitration.

[ 42 ] . No further remedial relief is appropriate.

[ 43 ] . With respect to any subsequent matters, such as the outstanding applications under section 133 of the Act, I am not seized.

Appendix "A"

Excerpt from Decision of the Board, dated August 5, 1994

10. Tony Capobianco's father, Anthony Capobianco, operates a road building company by the name of Associated Paving Company Ltd. ("Paving"). In 1988 four additional, separate companies, each owned by one of Anthony Capobianco's children, were incorporated: Rosalucia Landscaping Inc. ("Landscaping"), owned by Rosalucia Capobianco, to engage in landscaping and snowplowing; Contracting, owned by Tony Capobianco, to engage in concrete works; The Core Group Inc. ("Core Group"), owned by Stanley Capobianco, to engage in excavation works; and Capo Contracting Inc. ("Capo"), owned by Leo Capobianco, to engage in asphalt paving works. A fifth, pre-existing company, Capobianco Management Ltd. (the "management company"), owned by Maria Capobianco, operated as a management company for the Capobianco family companies.

11. In 1988 an oral subcontracting agreement was entered into amongst Paving, Landscaping, Contracting, Core Group and Capo (the "subcontracting companies"). Pursuant to this agreement Paving bid on work, obtained contracts and was responsible for all required bonding. Once obtained, work would be subcontracted to the appropriate subcontracting company. Paving would retain a percentage of the contract price as its profit. The subcontracting arrangement made it possible for the subcontracting companies to utilize Paving's long standing reputation in the road building business. The management company would provide bookkeeping and payroll services to Paving and the subcon­tracting companies and receive a percentage of each contract for doing so. At this time none of the Capobianco family companies had collective bargaining relations with any trade union. From the time it began operations until it entered into contractual relations with Local 793, Contracting obtained all of its work from Paving.

12. In 1990 Contracting was engaged on ajob for Fermar Paving ("Fermar"). Fermar was bound to a collective agreement with Local 183 of the Labourers International Union of North America (the "Labourers" or "Local 183"). As is typical in the construction industry, Fermar's agreement with Local 183 required Fermar to subcontract work only to companies also in contractual relations with Local 183. Local 183 approached Fermar and insisted that Contracting be removed from the job. Tony Capobianco approached Local 183 and enquired about signing a voluntary recognition agreement. Local 183 indicated that it would only enter into a voluntary recognition agreement if all of the Capobianco family companies were willing to sign. The remaining Capobianco family companies were not interested in executing a voluntary recognition agreement with Local 183 and accordingly Contracting was required to leave the Fermar job site.

13. Following the removal of Contracting from the Fermar job site, Contracting commenced work on a project at Eglinton and Plaza View (the "Kaneff Project") for Kaneff Properties Limited ("Kaneff'). The contract for this job was initially between Paving and Kaneff; however, at some point prior to August 31, 1990, this contract was ripped up and replaced with a contract between Contracting and Kaneff. Kaneff is bound to a collective agreement with Local 793 which contains the typical subcontracting clause. Local 793 approached Kaneff and indicated that there was a problem because there was a non-union contractor on the job site. Kaneff's Project Manager brought the problem to the attention of Tony Capobianco, who indicated that Contracting would be prepared to sign a collective agreement with Local 793. A meeting was set up between the Kaneff representative, representatives of Local 793 and Capobianco.

14. The meeting took place at Kaneff's offices on August 31, 1990. Mike Gallagher and Vito Montagnese attended the meeting on behalf of Local 793. A representative of Kaneff attended the first portion of the meeting. Tony Capobianco attended the meeting on behalf of Contracting. Local 793 was surprised that Tony Capobianco represented Contracting at the meeting. All of the equipment on the site (the only visible sign indicating the identity of the contractor) bore the "Associated Paving" name. Thus, Local 793 was under the impression that it was Paving doing the work. The contract between Kaneff and Contracting was produced to reassure Local 793 that Contracting in fact held the contract with Kaneff. Local 793 was not informed that the contract had initially been held by Paving.

15. Gallagher and Montagnese were informed by Capobianco that Contracting was the general contractor on the project and had subcontracted work to Paving. Capobianco indicated that Contracting was a general road building contractor. Contracting did not have equipment to do asphalt work but had equipment to do site preparation work connected to road building construction and concrete work, specifically curbs and sidewalks. Gallagher was left with the impression that Capobianco was at­tempting to set up a company separate from his father's, he was hoping to get work on union job sites and he wanted to do things differently than his father.

16. Approximately an hour and a half was spent going over the contents of the Independent Roadhuilders Collective Agreement. The subcontracting clause was pointed out to Capobianco and it was explained to him that this clause meant that Contracting could not subcontract work to Paving in the future. Capobianco enquired as to how he was to finish the Kaneff job as he had Paving's equipment working on site. Montagnese indicated that, because Contracting was going to be signing a voluntary recognition agreement and would be operating union in the future, Contracting would be permitted to finish the Kaneff job using Paving; however, in the future, all subcontractors must be in contractual relations with Local 793. At the end of this meeting Tony Capobianco signed a collective agreement with Local 793 on behalf of Contracting.

17. Following the meeting Gallagher made arrangements to sign up some of the Operating Engineers on the job site, following which they began working for Contracting but continued to operate equipment that bore the name "Associated Paving". One of the operators signed up by Gallagher was the curb machine operator by the name of Tom Rennick.

18. Capobianco then advised the Labourers that Contracting had entered into a collective agreement with Local 793. The Labourers agreed to sign a voluntary recognition agreement with Contracting.

19. Following the signing of collective agreements with the Labourers and Local 793, Con­tracting implemented a number of changes. Although Contracting continued to do work under the subcontracting arrangement it had with Paving, it also obtained work on its own. In addition, due to the deductions required under the collective agreements, a separate system was set up to handle Con­tracting's payroll. Prior to entering into the collective agreements Contracting's employees received cheques with the name "Capobianco Management Ltd." on them; after entering into the collective agreements, employees received cheques with the name "Associated Contracting Inc." on them.

20. Contracting applied the collective agreements for the balance of the 1990 road building season. Contracting did not operate from December, 1990 to approximately April, 1991. Contracting applied the collective agreements during the 1991 road building season until the end of August. Contracting employed approximately three or four equipment operators during this period of time.

21. In December, 1990, the Labourers filed a related employer application naming all of the Capobianco family companies as responding parties. Hearings were held from December, 1990 to August, 1991. The hearings were brought to an end when it was agreed that the Labourers would rip up its collective agreement with Contracting and Contracting would revert to being non-union. The Labourers agreed to this resolution because it had become apparent that it could not win the related employer application and having bargaining rights with respect to only one of the Capobianco family companies was unworkable. Local 793 was interested in the outcome of the Labourers' related employer application. Gallagher informed himself as to how the case was resolved.

22. Following resolution of the Labourers' related employer application, Contracting immedi­ately stopped applying the Local 793 collective agreement. No further remittances or dues deductions were made. All of Contracting's employees were returned to the Capobianco Management Ltd. payroll such that their cheques henceforth bore the name "Capobianco Management Ltd." and not "Associated Contracting Inc.". One of the Operating Engineers, Tom Rennick, worked for a few days following Contracting's reversion to non-union status and then quit. Union dues were not deducted from Rennick's final pay cheque, he was not paid the hourly wage rate stipulated in the agreement and this cheque bore the name "Capobianco Management Ltd.".

23. Rennick subsequently contacted Gallagher to complain about his wage rate and overtime pay while employed by Contracting. Rennick met with Gallagher on September 13, 1991 and showed Gallagher his final pay cheque with stub attached. Gallagher made a copy of the cheque and stub. Gallagher noticed that Rennick had not received the proper hourly wage for his last week of work and union dues had not been deducted. Gallagher noticed the company's name on the cheque but did not attach any significance to it. Rennick advised Gallagher he had quit because he was tired of being 'jerked around" with respect to his wage rate. Gallagher did not question Rennick's decision to quit as he was aware Rennick was moving to Ottawa. Rennick did not advise Gallagher that Contracting was operating non-union.

24. On October 9, 1991 Gallagher completed a grievance form on Rennick's behalf. Gallagher then contacted Capobianco to set up a meeting at the Union's offices to discuss the matter. Rennick's hours for every pay period, beginning with the pay period ending May 4 through to the pay period beginning August 17, were reviewed and a settlement figure was arrived at. Rennick's last two and possibly three pay periods are not covered by the settlement.

25. Following agreement on a settlement figure, Gallagher indicated that he would have to obtain Rennick's approval. Rennick's approval was obtained. Gallagher contacted Capobianco to make arrangements to get the settlement cheque. Gallagher and Capobianco met and Gallagher was given a cheque. The cheque bore the name "Associated Contracting Inc.". Gallagher noticed the different name on the cheque but, once again, did not attach any significance to it. Gallagher mailed the cheque to Rennick. Shortly thereafter Gallagher received a call from Rennick who indicated that the cheque had not been signed. The cheque was returned to Gallagher who set up a further meeting with Capobianco to have the cheque signed. Gallagher and Capobianco met again and Capobianco signed the cheque.

26. At no time during the course of any of the conversations which took place in connection with the Rennick grievance did Capobianco indicate that he was working non-union or did Gallagher state that Local 793's agreement remained in effect. During one of these meetings Capobianco indicated that work was slow.

27. On November 7, 1991 the Delinquency Control Officer of Local 793 sent Contracting a letter indicating that contributions for union dues and other benefits for the work month of September, 1991 had not been received ("the delinquency notice"). The letter further states "if you had no employees during this period, you are required to file a 'Nil' report...". This letter was automatically generated by the Delinquency Control Officer when remittances were not received from Contracting. Gallagher did not see this letter until the fall of 1992.

28. On November 15, 1991 Capobianco wrote to the Delinquency Control Officer as follows:

"We would like to confirm that there will be no Remittance for the month of September, October and November as there are no employees."

Capobianco did not contact Gallagher or anyone from the Union to enquire as to why he had received the delinquency notice when he was no longer applying the collective agreement. Capobianco testified that he did not make enquiries as he was "sensitive" about the situation.

29. Gallagher did not see or become aware of Capobianco's letter of November 5, 1991 until the fall of 1992. Gallagher was aware that Contracting was delinquent in October, 1991 as its name was on a delinquency list he receives each month. Contracting's name did not appear on the delinquency list for December, 1991 and January, 1992.

30. On February 6, 1992, the labour relations department of Local 793 sent Contracting a letter expressing its desire to amend the existing collective agreement ("notice to bargain"). Gallagher had no personal involvement in this letter being sent out. It was automatically generated by the Union's computer and sent as part of a general mailing.

31. After receiving the notice to bargain Capobianco telephoned Gallagher. Capobianco told Gallagher that he had received the letter and wanted to get together to discuss it. Gallagher indicated that he was going on vacation and would contact Capobianco when he returned. Capobianco testified that he did not indicate to Gallagher that Contracting was non-union because he was "sensitive" about it.

32. On August 12, 1992, Local 793 sent a letter to all of the Metropolitan Toronto Independent Roadbuilders advising them of the major changes to the MTRBA collective agreement and instructing them to implement the changes immediately. The letter indicates that a representative of Local 793 would contact them shortly "in regards to the signing of a new Collective Agreement". This letter was mailed to Contracting. Contracting did not receive the letter.

33. During the 1992 road building season all of Contracting's large projects were outside of Board Area 8. Contracting performed a number of small jobs within Board Area 8 for the City of Mississauga, the City of Etobicoke and private commercial malls, factories and shopping malls. In all cases the tender for the work was put in by Paving, the contract was awarded to Paving, all equipment on the site bore the name "Associated Paving" or no name at all, any signs on the job site said "Associated Paving", and any notices published in the Daily Commercial News indicated that Paving was awarded the contract. Capobianco did not see anyone from Local 793 on any of these job sites until October, 1992.

34. In May, 1992 Contracting and Paving returned to the Kaneff Project (the same site that Contracting was working on when it signed the voluntary recognition agreement with Local 793 in August, 1990) to finish the job. A Kaneff representative was approached by Local 793 concerning the fact that work was being done on the site non-union. Kaneff requested that Capobianco straighten the matter out. Capobianco contacted Montagnese and explained to him that there was only a few days of work left. The vast majority of the work being performed was asphalt work. Montagnese advised him that he would allow the work to be finished but no other work was to be done.

35. Montagnese agreed to let Paving finish the job because, when the collective agreement was first entered into, he had agreed that Contracting could complete the job using Paving. • • •

36. Having considered all of the documentary and oral evidence before us it is our conclusion that Local 793 has not abandoned its bargaining tights. For reasons set out below, we have concluded that no inference should be drawn from the Labourers' abandonment of its bargaining rights in August, 1991. We do not infer from the facts that Local 793 was aware that Contracting ceased to apply the collective agreement in September, 1991 or that it acquiesced in the non-application of the agreement. It is our finding that Local 793 was reasonably unaware that Contracting was operating during the 1992 road building season. With the exception of the filing of the application for certification, throughout the period of time in question Local 793 acted as though it had bargaining rights. It pursued the Rennick grievance, sent out a delinquency notice, removed Contracting's name from the delinquency list upon being notified that Contracting had no employees, served notice to bargain, sent out the terms of the renewal MTRBA agreement, filed a "Request for the Appointment of a Conciliation Officer", and filed the instant grievance. Although the filing of an application for certification and pursuing it to a hearing before this Board can be inconsistent with an assertion of bargaining rights, given the context and timing of the application, we find, in the present case, that it is not.