Brick and Allied Craft Union of Canada v. Kvaerner Jaddco, 1999 CanLII 20183

Brick and Allied Craft Union of Canada v. Kvaerner Jaddco

[1999] OLRB REP. NOVEMBER/DECEMBER 1023

2784-98-R Brick and Allied Craft Union of Canada. Applicant v. Kvaerner Jaddco, Responding Party v. International Union of Bricklayers and Allied Craftworkers; General Presidents' Maintenance Committee for Canada; The Ontario Provincial Con­ference of the International Union of Bricklayers and Allied Craftworkers on its own behalf and on behalf of all its affiliated Locals, Intervenors

BEFORE: David A. McKee, Vice-Chair.

APPEARANCES: L. A. Richmond and K Wilson for the applicant; Daryn Jeffries and Craig Mosher for the responding party; Donald K Eady for the International Union of Bricklayers and Allied Craftworkers; Chris E. Paliare for the General Presidents' Maintenance Committee for Canada; no one for The Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftworkers.

DECISION OF THE BOARD; November 24, 1999

1This is an application for certification brought pursuant to the general provisions of the Labour Relations Act, 1995, S.O. 1995, c. 1 as amended (the "Act"). The application was filed on November 16, 1998. The International Union of Bricklayers and Allied Craftworkers (hereinafter the "IU" or the "International Union") filed an intervention claiming that the employees were covered by a subsisting collective agreement between itself and the responding party. The agreement was signed by the General Presidents' Maintenance Committee of Canada ("GPMC"), allegedly as agent for the IU. If it is a valid collective agreement, the application was filed within the last sixty days of its term, i.e. during the "open period" when a displacement application would be timely. The applicant disputes that this is a valid collective agreement. A vote was held, and employees were asked to mark two ballots. One ballot asked employees to chose between the applicant and "no union" (in the event that there is no valid collective agreement). The second asked employees to chose between the applicant and the IU (in the event that this was a displacement application). Both ballot boxes have been sealed.

2In a decision dated June 24, 1999, the Board identified the following issues:

(1) The status of BACU.

(2) The status of the intervenors to intervene in this proceeding, which may be different for each one of them.

(3) The existence of a collective agreement, or a definition of the bargaining rights created under the collective agreement.

(4) The appropriate bargaining unit, which will depend, of course, on the nature of the applicant and the Board's determination of the collective agreement question.

(5) The question of an outstanding grievance with respect to the same work and the "alternative nature" of this application.

(6) A notice issue with respect to the notice given to employees.

(7) Unfair labour practices alleged by the IU against the BACU; and

(8) The order of the parties on the second ballot.

The purpose of this decision is to deal with the status of two of the three proposed intervenors: the IU and the GPMC, and to some extent, the issue of the appropriate bargaining unit. (Without deciding any of the other status issues, I shall refer to the applicant as "Local 1", since there is no dispute that for most of the relevant time before this application was made the relevant union was Local 1 of the International Union of Bricklayers and Allied Craftworkers.) The body which filed an application under the style of Ontario Provincial Council of the International Union of Bricklayers and Craftworkers referred to my decision of June 14, 1999 did not appear at these hearings and did not pursue its claim for intervenor status. Accordingly, its intervention is dismissed and it will not be given intervenor status in this application.

3The basis of the claim for intervenor status by the IU and the GPMC is a document alleged to be a collective agreement between the responding party ("Jaddco") and the International Union. If there is such a collective agreement, clearly the International Union has status. The GPMC also claims status as the agent involved in negotiating this collective agreement. The first question then is whether or not there is a valid collective agreement between Jaddco and the International Union.

4The parties agree that there is a collective agreement styled the "Project Agreement for Maintenance by Contract in Canada for Dofasco Inc. Hamilton, Ontario" which states that it is in effect from September 7, 1995 to November 30, 1998. Further all parties agree that this collective agreement is a valid collective agreement between Blenkhorn-Sayers and each of the thirteen International Unions whose names and signatures appear on the collective agreement, subject to the possible application of section 44. The question is whether the terms and conditions of this collective agreement are also the terms and conditions of a collective agreement binding on Jaddco and the International Union.

Nature of the General Presidents' Maintenance Committee of Canada

5This is in some ways an odd application. One possible outcome from other issues not yet decided is that this application represents a "raid" by a local union on its own parent international. To understand how this comes about, it is necessary to review the history of the GPMC and the agreements it has negotiated. The GPMC is a committee constituted by the international unions affiliated with the Building and Construction Trades Department of the AFL-CIO (the "Building Trades Unions" or "BTU's"). Prior to 1998, the one exception was the International Union of Bricklayers and Allied Craftworkers, which was not a member of the GPMC but which participated in certain collective agreements on an ad hoc basis. The IU joined the GPMC on December 2, 1998, after this application was filed. Aside from the Dofasco collective agreement, the International Union has, in Canada, been party to one other similar Project Agreement involving maintenance with the New Brunswick Power Electric Commission.

6The purpose of the GPMC is to negotiate agreements with respect to maintenance work performed by the skilled trades that the Building Trades Unions represent in construction. Typically the GPMC attempts to structure an agreement based on the maintenance needs of a particular large industrial manufacturer, chemical processor or electrical power generating utility. This ultimate source of work is called the "owner" in the GPMC agreements, but is typically not a party to the agreement. The concept under which the GPMC operates is to negotiate a single set of terms and conditions which will apply to all maintenance work performed by one or many contractors on the site owned by the owner. The structure of the agreement in most cases is a single collective agreement with an entity which is perceived to be the main contractor and which is used or which purports to bring within its coverage all other contractors performing maintenance work on site.

7Supporters of the GPMC assert that this arrangement provides substantial advantages to the owner, contractors, trade unions and members of the BTU's. The owner, who is generally not willing to become a party to the collective agreement, can negotiate with contractors who perform the maintenance work knowing that the building trades unions will ensure a steady supply of skilled labour at a predictable and stable cost. This certainty helps to induce owners to undertake projects they might not otherwise undertake, or at least not on the same scale. Contractors know labour costs in advance, and are competing with each other on a basis exclusive of the supply or cost of skilled labour. The agreement provides guaranteed access to members of Building Trades Unions which might otherwise be performed in whole or in part by contractors who are not bound to any collective agreement. Wages are lower than wage rates in Provincial Collective Agreements, but are generally higher than in a typical non-construction industry agreement. Maintenance work is not covered by a collective agreement which is applicable only to the ICI sector of the construction industry. Work for some of the trades, particularly the mechanical trades, may be available on a more stable and continuing basis than would be available to the members of those unions if various contractors were competing for the work using a variety of agreements or no agreement at all. This is not what the applicant in this case believes has been the experience of Local 1.

8Detractors of the GPMC agreements regard it as a source of irritation between local unions and their internationals and, on occasion, a device used to deny members of a union the benefit of the terms and conditions of employment to which they are entitled under a Provincial Collective Agreement. Rightly or wrongly some local unions believe they would be better off without the agreement. This is grounded, to some extent, in a belief that, since the local union is the only large-scale source of certain skilled labour, its members would have access to the maintenance work in any event. In addition, some local unions believe that it is they rather than their international union who should have control over bargaining since it is the local union which supplies it members to work, must police the job and must bear the work administering the collective agreement.

9Finally certain local unions believe that work is done under the GPMC agreement which is in fact construction work which ought to be done under the higher wage rates and benefits provided in Provincial Collective Agreements. This belief has been borne out in some disputes brought before this Board: e.g. Delta Catalytic Inc. [1997] OLRB Rep Nov/Dec 979.

10The Board makes no comment on the substance of this debate nor on the accuracy of the views of either side. For the Board's purposes, the result of these sometimes conflicting interests and ambitions creates a number of issues which have a distinctly harmful impact on labour relations. First local unions, and in this case in particular the applicant, feel, and sometimes are, left out of the important process of negotiating a collective agreement under which their members work. The local union may well be kept in the dark depending on its relationship with its international union, and may be unable to determine the extent of legal relationships binding on contractors working on the site. This application itself arises from this sort of belief held by Local 1. Second, the collective agreements created by the GPMC are by no means typical collective agreements. These agreements are curiously not very concerned with the identity of the employer or employers who are bound to them. Indeed, it is contemplated that these employers may change regularly. The agreement is tied to a specific location or to a specific job or project, rather than a more typical geographic area and fixed period of time. Finally, the documents used by the parties appear to use as their models the frequently very sketchy and very limited documents which may be the only contractual underpinning for various substantial commercial contracts (for example the proverbial million dollar purchase order) rather than the docu­ments which typically comprise a collective agreement. No matter how poorly drafted, a valid collective agreement will contain certain minimum formal requirements.

11The exact nature or existence of collective agreements will depend on the facts of each case. As is demonstrated by the facts of this case, however, the existence or non-existence of a collective agreement is often governed not by the intention of the parties or even the documents they create, but rather by the happenstance of paperwork that may or may not be generated during the course of the project.

The Facts

12Only one witness was called in this case, Mr. Stephen Smillie, Executive Director of the GPMC. His evidence was given in a manner which was thoughtful and careful. While his evidence was unhelpfully vague at times, he was careful never to overstate the evidence he was able to give nor did he attempt to be more specific than he honestly could be. To the extent that Mr. Smillie was able to give evidence on an issue, his evidence is uncontradicted and I have no difficulty accepting the truth of the facts adduced by him.

13In 1992 the GPMC proposed to Dofasco and a number of contractors the prospect of entering into a GPMC-type agreement for maintenance work at Dofasco. At this time the members of the GPMC did not include the International Union of Bricklayers and Allied Craftworkers. Dofasco wanted the LU to be included in any GPMC agreement. An exchange of correspondence dated April of 1992 between Brian Strickland, then an International Representative of the Bricklayers and Mr. Smillie was entered into evidence. Mr. Strickland indicated an interest in becoming involved in this collective agreement and did in fact participate in bargaining. As a condition of becoming involved in these discussions, Mr. Strickland set certain conditions which in the end found their way into the agreement.

14A collective agreement was finalized and executed with a term stated to be May 31, 1993 to June 30, 1995 ("the First Dofasco Agreement"). This was signed by Brian Strickland as first Vice-President of the International Union of Bricklayers and Allied Craftsmen (as it then was). All parties agree that this was a valid collective agreement between the thirteen international unions and Sheafer­ Townsend Maintenance Ltd. This agreement contained article 4.700 which stated:

Sheafer-Townsend agrees to sub-contract work on this project only to employers who are in contractual relationships with the appropriate trades for the work at hand. The terms and conditions of this agreement shall apply to Sheafer-Townsend and to any sub-contractors who are contracted by Sheafer-Townsend to perform work which falls within the scope of this Agreement. All sub­contractors are bound by all terms and conditions of this agreement whether or not they signatory to it.

Apparently in compliance with this article, an agreement entitled Sub-contractor Adherence Agreement ("the First Jaddco Adherence Agreement") was executed by Jaddco Anderson Limited on July 14, 1992. In this document Jaddco Anderson Limited agrees to be bound by all terms and conditions of the first Dofasco Agreement. However, this document is executed only by the employer. There is a difference between the parties as to whether this document constituted a collective agreement at all.

15In 1995 the First Dofasco Agreement came up for renewal. Negotiations commenced at some point in the spring of that year. On July 4, 1995, Mr. Strickland wrote to Mr. Smillie indicating that the International Union was not happy with the number of hours that members of the Bricklayers Union had worked on the job prior to that time. He also indicated that certain work foreseen in the near future was covered by the provincial ICI collective agreement rather than the GPMC agreement.

16Discussions and negotiations continued through 1995. Mr. Smillie was unable to recall whether Mr. Strickland had attended each and every meeting although he was certain that Mr. Strickland was invited to every one of them. Certain attendance sheets were entered into evidence indicating that Mr. Strickland and other persons who were representatives of Local 1 attended at information sessions.

17On September 7, 1995 a document entitled Memorandum of Understanding ("the September Memorandum") was entered into. The intervenors assert that this document, along with certain other documents constitutes a collective agreement which was effective on its face from September 7, 1995 onwards. The applicant disputes this.

18In mid-1995 bargaining was complicated by the fact that Dofasco was re-tendering its maintenance work. A number of contractors were in competition, including Sheafer-Townsend, Jaddco Anderson Limited, and Blenkhorn Sayers. All of these contractors played some role in the negotiations since anyone of them might have become the "main" contractor. In the end it was Blenkhorn Sayers which won the contract.

19Ultimately, a full collective agreement was agreed upon. It provides for a term from September 7, 1995 to November 30, 1998. It was executed by Blenkhorn Sayers on December 1, 1995 and Gerald Hendry, first Vice-President of the International Union of Bricklayers and Allied Craftsmen sometime after that, likely in January of 1996. ("the Second Dofasco Agreement").

20One of the new features of this agreement was an addition to article 4.700. The first paragraph of that article in the Second Dofasco Agreement mirrored the wording in the First Dofasco Agreement. It also contains the following two additions:

4.703

In addition to and pursuant to the conditions in the above articles, Blenkhorn-Sayers may advise the unions at the direction of the owner, that certain employers have been awarded maintenance work as part of the main maintenance contract. Such employers will sign and be bound to the terms and conditions of this agreement....

4.704

It is further understand that the owner may, from time to time award specific maintenance projects which are of a long-term nature which is defined as one year in duration to additional employers. For those specific projects, at the owner's request, such employers will sign and be bound to the terms and conditions of the Dofasco site General Presidents' Maintenance Agreement.

21At about the same time as the Second Dofasco Agreement was being executed, a document was executed by Jaddco Anderson. This document is described as "Collective Agreement for Major Maintenance Work Awarded Pursuant to Article 4.704 Dofasco Inc., Hamilton, Ontario". It was executed by Jaddco on January 23, 1996 and, by Stephen Smillie on December 22, 1995 under the rubric: "issued and approved by the General Presidents' Committee for Canada" (the "Second Jaddco Adherence Agreement")

22Once again the parties are agreed that the Second Dofasco Agreement is a valid collective agreement between Blenkhorn Sayers and the International Union. The validity of this collective agreement is, however, subject to the application of section 44 of the Act, that is, the extent to which section 44 required an employee ratification of the proposed collective agreement. The parties disagree as to whether the Second Jaddco Adherence Agreement is a valid agreement between Jaddco and the International Union, and the extent to which section 44 of the Act applies to it.

23From 1992 to 1998, Local 1 was clearly not negotiating as a party to this collective agreement. There was no evidence called with respect to how much information Local 1 was actually given. This evidence, to the extent that it could have been called at all (Mr. Strickland unfortunately died during the course of this proceeding) was more likely in the hands of Local 1 than the International Union. However, there is no question that, as counsel for the applicant put it in argument, Local I was never asked to ratify, consent to, or approve of the collective agreement. Local 1 did not sign the documents and did not become a party to them.

24Much was made of the fact that members of Local 1 worked during the months of August and September 1998, and specifically prior to September 18, 1998. It was argued that some significance should be attached to the fact that Local l's members continued to work during a lawful strike in the ICI sector of the construction industry by the Bricklayers Employee Bargaining Agency which com­menced in August and ended on September 18, 1999. This fact is not particularly significant. The intervenors and responding party took the position that whatever work was done during August and September of 1998 under this agreement was maintenance work and not construction work. If this was the case, members of Local 1 would not have been in a position to strike. Either they were working under a valid collective agreement, in which case a strike would be unlawful and a breach of the collective agreement, or, if there was no valid collective agreement, a strike would constitute a recognition strike and would therefore be equally unlawful.

25There was far more argument than there was evidence about what Local 1 knew after the execution of these agreements. Certainly Local 1 supplied bricklayers to Jaddco during 1995, 1996 and 1997 and 1998. How much it actually knew was not information with which Local 1 burdened the Board. Two documents are of relevance. On May 20, 1998, Kerry Wilson, Business Manager of Local 1 wrote to Jaddco taking the position that upcoming work at No. 4 Blast Furnace reline was an ICI project and should he performed under the Provincial Collective Agreement. Implicitly this was a statement that the work ought not to be done under a "maintenance" collective agreement, although no such contract is referred to.

26The second document is a letter sent on February 23, 1999, after the date of this application. This was sent by Alfred A. DiRienzo, the International Union's representative to the General Presidents' Committee for Contract Maintenance (a kind of parent body to the GPMC) advising Mr. Smillie that the International Union had revoked the Charter of Local 1 and that the IU was prepared to continue to supply bricklayers under the maintenance agreement, if necessary through other local unions.

Collective Agreements: What collective agreements were entered into and by whom?

27Each of the five documents referred to above was put forward as a collective agreement for one purpose or another, and I shall deal with each of them in sequence.

First Dofasco Agreement

28There was general agreement that this is a collective agreement executed by Sheafer­Townsend Maintenance Ltd. and (inter alia) the International Union. It was dated May 31, 1993 and provided for a term of May 31, 1993 to June 30, 1995. No party ever applied for conciliation. It created a valid collective agreement between Sheafer-Townsend and the IU. Like the Second Dofasco Agreement, it is not executed by the GPMC as a party or as an agent. While the parties did not address the reason for their agreement on this point at length, all of them viewed this agreement as one which fell within the ratio of Nicholls-Radtke and Associates Limited [1982] OLRB Rep. July 1028. That decision, and others, dealt with the validity of a collective agreement entered into at a time when the trade union held no pre-existing bargaining rights and where there were no employees on the date of execution and therefore no employees the trade union was entitled to represent Such agreements are often alleged to be, and sometimes are, contrary to sections 53 and 66. The concern such agreements raise is whether or not the agreements are invalid because the represent "employer support" or are nullified by the absence of any representative status of the trade union. That is, the agreement is void if it is entered into by an employer and trade union who ignore or actively thwart the wishes of employees. The Board put Nicholls-Radtke and other cases dealing with this issue in perspective in F.D.V. Construction Ltd. [1984] OLRB Rep. 719:

5. At the time the maintenance agreement was entered into, there were no employees at work. Moreover, the maintenance agreement purports to cover all employees for maintenance work. Local 800, from the evidence, was not able and did not supply electricians since 1978. The question arises whether under these circumstances Local 800 has received support from F.D.V. Construction Ltd. so as to cause the maintenance agreement not to be a collective agreement by Virtue of the provisions of section 48(a) of the Labour Relations Act. That section provides that an agreement between an employer and a trade union shall he [deemed not to be a collective agreement for the purposes of] the Labour Relations Act if the employer participated in the formation or administration of the trade union or if the employer contributed financial or other support to the trade union. In earlier decisions of the Board in Sunrise Paving, 72 CLLC ¶16.060, and in C. Strauss (1979) Limited, [1975] OLRB Rep. July 581, the Board took the position that the collective agreement which was signed when there were no employees at work was not a collective agreement by virtue of the provisions of section 48(a) of the Act because an employer in these circumstances had contributed other support to the union. Subsequently, in Nicholls Radtke & Associates Limited, [1982] OLRB Rep. July 1028. the Board made an exception to this position where a trade union had entered into an agreement and had shortly thereafter supplied employees pursuant to that collective agreement who were members of that trade union. This decision was followed in M. J. Guthrie Construction Limited, 19841 OLRB Rep. Jan. 50. The Issue anses whether in the circum­stances of the signing of the maintenance agreement the Board ought to follow the SunrLse Paving and Strauss line of decisions or whether it ought to follow the Nicholl.s-Radtke and M. J. Guibrie line of decisions. At the hearing the Board ruled orally that the maintenance agreement is not a collective agreement because of employer support within the meaning of section 48(a) of the Act and that the facts were closer to the Sunrise Paving decision than to Nicholls-Radtke. ln doing so, the Board declared that Local 800 did not have status to participate in the section 1(4) and section 63 proceedings based upon such an alleged collective agreement. At the hearing, Board Member Wightman reserved his decision with respect to this ruling.

The Board now sets forth its reasons for finding that the maintenance agreement between Local 800 and F.D.V. Construction Ltd. is not a collective agreement under the Labour Relations Act.

6. The facts in the instance [sic] case are closer to the Sunrise Paving decision because there was no evidence before the Board in the instant case that Local 800 in fact supplied or was unable to supply electricians or trades other than plumbers pursuant to this maintenance agreement who were members of Local 800.

7. In the Nicholls-Radtke decision, the Board found that the trade union involved provided its members to work for the employer who was bound by the collective agreement shortly after entering into the collective agreement. In the instant case, Local 800 has not satisfied the Board that it supplied all persons pursuant to the maintenance agreement who were in fact members of Local 800. As stated earlier, with respect to electricians, there was nothing in the evidence to indicate that there were any electricians who were ever members of Local 800, either at the time of the signing of the maintenance agreement or who were subsequently provided pursuant to the maintenance agreement. In these circumstances, it is F.D.V. Construction Ltd. who has selected Local 800 as the bargaining agent for its future employees, including future electricians and other trades who are not members of the applicant. In these circumstances, FD.V. Construction Ltd. has given support to Local 800 within the meaning of section 48(a).

29The First Dofasco Agreement, then , is valid because employees, whose wishes are what sections 53 and 66 address, have freely chosen the unions as their bargaining agent. Such agreements are valid in circumstances where the parties to it intend the trade union to supply persons who are already members of the union to the employer as employees, and in fact the trade union does so (except in rare and unusual circumstances: Nu-Con [1999] OLRB Rep. August 671). The focus of the Act is on the wishes of employees, although those wishes may be expressed simply by being members of a trade union and accepting employment where the terms and conditions of employment have been negotiated by their freely chosen bargaining agent.

30The First Dofasco Agreement contains the following provision:

4.700

Sheafer-Townsend agrees to sub-contract work on this project only to employers who are in contractual relationships with the appropriate trades for the work at hand. The terms and conditions of this Agreement shall apply to Sheafer-Townsend and to any sub-contractors who are contracted by Sheafer-Townsend to perform work which falls within the scope of this Agreement. All sub­contractors all bound by all terms and conditions of this Agreement whether or not they are a signatory to it.

31It was argued by the International Union and the GPMC that this clause created a collective agreement with Jaddco as a sub-contractor to Sheafer-Townsend. It does not. Two parties are not capable of binding a third party contractor (and its employees) by a document to which that third contractor is a stranger. Further it would be a strange agreement which enabled the contractor to become bound to a collective agreement in circumstances of which the union might have no notice at all.

32This legal proposition is not unknown to the union parties involved. Clearly the real intent of all of the parties to this agreement was to make the maintenance work at this site a "union project" in circumstances where the main source of work (Dofasco) would not be a party to the agreement. Laudable as this motive may be, Article 4.700 does not, by itself, create collective agreements with third party subcontractors.

The First Jaddco Adherence Agreement

33Jaddco and the IU also relied on the First Jaddco Adherence Agreement. Their assertion was that this was a collective agreement which, at the very least, created bargaining rights even if subsequent agreements were ineffective because of section 44 of the Act. This document provides:

The Employer agrees to be bound by all the terms and conditions of the General Presidents' Maintenance Agreement between The Committee and Sheafer-Townsend and Maintenance Ltd. currently in force for maintenance, repair, renovation and upkeep at the Dofasco Hamilton Plant Site. A true copy of this agreement is attached.

It is signed only by Jaddco.

34Whatever else may be said about this document, it cannot be a collective agreement because it is not signed by any trade union or an agent of any trade union. The definition of a collective agreement is set out in section 1(1) of the Act:

"collective agreement" means an agreement in writing between an employer or an employers' organization, on the one hand, and a trade union that, or a council of trade unions that, represents employees of the employer or employees of members of the employers' organization, on the other hand, containing provisions respecting terms or conditions of employment or the rights, privileges or duties of the employer, the employers' organization, the trade union or the employees, and includes a provincial agreement and does not include a project agreement under section 163.1;

In a commercial context, this Adherence Agreement might easily be part of a binding contract. Building contracts are often nothing more than a purchase order on which the party to whom it is issued acts. Contract law has long ago made sense of the surprisingly informal contractual arrangements between parties to construction contracts by developing doctrines of "part performance", "unilateral contracts", or simply by finding a contract to be partly verbal and partly written . (See Goldsmith, Canadian Building Contracts (4th ed., 1988: Carswell): there is no requirement that building contracts be in writing and, even if they are, "a written document... .may be either the back of an envelope or a voluminous document the size of the Toronto telephone directory"(p. 1-28)). A collective agreement, at least for the purposes of any consideration under this statute, must meet the definition in section 1(1). The unilateral adoption of a collective agreement by one party does not create a collective agreement: Ecodyne Ltd., [1979] OLRB Rep. July 629; Hacquoil, [1963] OLRB Rep. June 143. Such an agreement cannot be rescued by common law doctrines of part performance or estoppel: Graphic Centre, [1976] OLRB Rep. May 221 at paragraph 12 and cases cited therein. The first Jaddco Adherence Agreement is therefore not a collective agreement.

The September Memorandum

35The First Dofasco Agreement was the subject of renewal negotiations in 1995. The contract for maintenance at Dofasco also came up for bid at this time. The GPMC met representing the unions involved. The employer party to the negotiations was in fact the various hopeful bidders including Sheafer-Townsend, Jaddco, Blenkhorn Sayers, and others. All of them were interested in the final terms and conditions of the contract although it was acknowledged that only one of them would sign it. In the end Blenkhorn Sayers got the contract and ultimately signed the collective agreement.

36Arising out of these negotiations, and parallel negotiations for similar agreements at six refineries in Sarnia, Nanticoke, and Oakville-Mississauga, a document was executed dated 7 September, 1995. The IU attempted to portray this as a collective agreement (ie. being one of several documents ultimately consolidated in the Second Dofasco Agreement). For the purposes of this case, this is of importance to the IU since September 7, 1995 precedes the effective date of section 44(2) of the Act (in force November 10, 1995). The September Memorandum provides as follows:

Preamble:

The above parties are engaged in renewal discussions for collective agreements covering mainte­nance work at the following plant sites in .........

Undertaking:

The above parties undertake to conduct the following process for renewal:

1. The existing collective agreements at all locations are extended "as is" until November 30, 1995....

2 [Paragraphs 2, 3 and 4 dealt with the process by which negotiations would be conducted.]

3 …………

4 ………..

5 Collective agreement issues as presented by the employers and the committee will be discussed and finalized by November 30, 1995. The new collective agreements are scheduled to be in place by December 1, 1995.

Whatever else this document may be it is at best an extension of the First Dofasco Agreement to November 30, 1995. Beyond that it is an agreement to enter into a collective agreement (where such details as the term of the agreement and even the employer party are left to be negotiated). This is not a collective agreement: Ferranti-Packard Limited [1977] OLRB Rep. March 169 at para. 15, and cases cited therein.

The Second Dofasco Agreement

37The Second Dofasco Agreement was executed December 1, 1995 by Blenkhorn Sayers and sometime in January 1996 by the IU. Its effective date is stated to be September 7, 1995 with the term extending to November 30, 1998. Even if a document is effective to extend the term of the collective agreement retroactively to September 7, 1995 (when the First Dofasco Agreement, extended by the September Memorandum to November 30, 1995 was in effect) it was not "entered into" or "concluded" for the purposes of section 44 of the Act until it was signed by the LU in January of 1996. That is, section 44 applies to it.

38Subject to section 44, there is no dispute among the parties that this document is a collective agreement between the IU and Blenkhorn Sayers. Article 4 was amended somewhat in this version of the collective agreement. It provides as follows:

4.700

Blenkhorn-Sayers agrees to sub-contract work on this project only to employers who are in contractual relationships with the appropriate trades for the work at hand. The terms and conditions of the Agreement shall apply to Blenkhorn-Sayers and to any sub-contractors who are contracted by Blenkhorn-Sayers to perform work which falls within the scope of this Agreement. All sub­contractors are bound by all terms and conditions of this Agreement whether or not they are signatory to it.

4.703

In addition to and pursuant to the conditions in the above articles, Blenkhorn-Sayers may advise the Unions at the direction of the owner, that certain employers have been awarded maintenance work as part of the main maintenance contract. Such employers will sign and be bound to the terms and conditions of this Agreement. It is understood that Blenkhorn-Sayers will be responsible for the co-ordination, administration and application of this Agreement among those employers.

4.704

It is further understood that the owner may, from time to time, award specific maintenance projects which are of a long-term nature, which is defined as one year in duration, to additional employers. For these specific projects, at the owner's request, such employers will sign and be bound to the terms and conditions of the Dofasco site General Presidents' Maintenance Agreement.

As in the First Dofasco Agreement, Article 4.700 does not bind Jaddco to the collective agreement. Article 4.703 is certainly an improvement on the former article 4.700, although it clearly requires a subsequent collective agreement to be executed. Article 4.704, however, applies to Jaddco. Jaddco was awarded work to be done outside of the main commercial contract between Dofasco and Blenkhorn­Sayers, pursuant to a contract directly between Dofasco and Jaddco. Article 4.704 also requires Jaddco to sign a collective agreement. Such a document was produced, executed by the GPMC on December 22, 1995 and by Jaddco on January 23, 1996 (the "Second Jaddco Adherence Agreement").

Second Jaddco Adherence Agreement

39This agreement is four paragraphs long. The essential provisions are as follows:

Collective Agreement for

Major Maintenance Work Awarded Pursuant to

Article 4.704

at Dofasco Inc., Hamilton, Ontario

Between

Those International Unions of the AFL-CIO who Compose the General Presidents' Maintenance Committee for Canada

(hereinafter called the "Unions")

-and­

Jaddco Anderson Limited

Intent: This Agreement is entered into in order to cover maintenance, repair, renovation and upkeep work awarded to the employer by Dofasco Inc. at it's [sic] Hamilton Steel facility pursuant to article 4.704 of the Dofasco site GPA, for specific projects as contemplated by article 4.704.

Terms: Employer agrees to be bound by all the terms and conditions of the General Presidents' Maintenance Agreement in force between Blenkhorn-Sayers, known as the Dofasco site GPA, and the Unions for maintenance, repair, renovation and upkeep at the Dofasco, Hamilton site....

This Agreement is not executed by the International Union. Jaddco, the International Union and the A GPMC all argued that the GPMC executed it as agent for the International Union. The applicant disputes that this is so for a number of reasons. As in all questions of agency, the agency must be demonstrated by one of three methods:

(i) Actual authority on the part of the agent to act for the principal;

(ii) In the absence of actual authority, subsequent ratification by the principal of the agent's deed;

(iii) Ostensible authority on the part of the agent.

Each of these questions will be examined separately.

Actual Authority

40The applicant argued that the GPMC lacked the actual authority to enter into a collective agreement, at least on behalf of the IUBAC. At the time the second Jaddco Adherence Agreement was executed, the JUBAC was not a member of the GPMC. That is, it was not one of the Unions defined as the union party to the Second Jaddco Adherence Agreement. It joined in collective agreements on an ad hoc basis without becoming a member of the Committee. In any event counsel points to article X, section 1 of the Constitution of the GPMC which states:

"Member International Union shall only be bound to the collective agreements negotiated by the Committee Member that such Member International Union such collective agreement."

There was no evidence of any document from, or course of conduct by, the IUBAC authorizing the GPMC to execute an agreement on its behalf. Therefore I cannot find that there was any actual authority to enter into the second Jaddco Adherence Agreement.

Ratification

41A contract, including a collective agreement, may be entered into by an agent without authority. As such it is not binding. However the principal may ratify the agent's acts by a subsequent act of confirmation, in which case the agreement is valid from the date of execution or formation. Fridman's text on Agency puts it this way:

What the 'agent' does on behalf of the 'principal' is done at a time when the relation of principal and agent does not exist: ... The agent, in fact, has no authority to do what he does at the time he does it. Subsequently, however, the principal, on whose behalf, though without whose authority, the agent has acted, accepts the agent's act, and adopts it, just as if there had been a prior authorisation by the principal to do exactly what the agent has done. The interesting point, which has given rise to considerable difficulty and dispute, is that ratification by the principal does not merely give validity to the agent's unauthorised act as from the date of the ratification: it is antedated so as to take effect from the time of the agent's act. Hence the agent is treated as having been authorised from the outset to act as he did. Ratification is 'equivalent to an antecedent authority'. (Fridman, Agency) 7th Ed. (1996: Butterworths) page 84.

See also Irving Oil v. Slattery (1983) 1983 CanLII 4035 (NB QB), 44 NBR (2d) 602 at pages 620-621 and Hussey Seating Company (Canada) Limited, [1981] OLRB Rep. Aug. page 1138 at paras. 14 and 17.

42There was no evidence of ratification in this case. The absence of evidence may in fact be attributable to the unfortunate death of Mr. Strickland. His position in 1995 was, essentially, the primary officer of the International Union in Canada. However the purpose of even the most rudimentary form of documentation is to indicate clearly what the parties' legal relationship is. I note Mr. Gerald Hendry, First Vice-President of the TUBAC executed the Second Dofasco Agreement. As no evidence was called, I did not have any evidence as to what, if any, arrangements for receipt and execution of documents may have existed between Messrs. Hendry and Strickland. Mr. Smillie's evidence was that he "would have" sent out copies of the Second Adherence Agreement to all participating unions, but he did not have copies of any such correspondence. All that would have been required of the LU in this case to demonstrate ratification was a letter from the TUBAC to the GPMC and Jaddco indicating that they had received a copy of the agreement and accepted it. Even the letter of February 23rd referred to above (dealing with the supply of bricklayers and masons after the rupture between the Local 1 and the International), had it been received before November 16, 1998 (the application date herein) would have been sufficient. Although as a matter of general law, a subsequent ratification does make the Agreement effective from the date of execution, a statutory right cannot be affected by the subsequent act of other parties. The applicant is entitled to have its right to be certified as bargaining agent for a particular group of employees as of the date it filed its application. It cannot be deprived of this right by the subsequent acts of the IU.

43The IU argued that ratification should be assumed. It argues that it now affirms the agency of the GPMC and had done nothing prior to the application date to suggest otherwise. Counsel did not cite any authority for this proposition, nor can I find any. This is not surprising. In the case of most contracts, disputes will only arise between the principal, agent, and third party. Outside the regime of exclusive bargaining authority created by a collective agreement and by statute, it is difficult to imagine commercial circumstances where a stranger would have the interest or the standing to challenge the agent's authority. Counsel for the International Union asserted that it was absurd that there should be any question of authority or of subsequent ratification since the International Union has at all times believed that the GPMC was acting on its behalf in executing the second Jaddco Adherence Agreement. The International Union filed a copy of the Agreement with its intervention within three days of the application for certification being filed, although it called no evidence with respect to how and when it obtained the document. However, a collective agreement is too significant a document to rest on the "belief' or "desire" of one party. Since third party employees (and other trade unions) are affected by the existence and terms of a collective agreement, there is a need for some degree of certainty. It is surely not too onerous a requirement to maintain a file with the agreement itself and a letter confirming the receipt and acceptance of that agreement addressed to the GPMC and to Jaddco. The potential for abuse, in the terms of a party relying on an agreement for one purpose but later denying it when it is convenient is too great. There is, of course, no such action on the part of the International Union in this case.

44Much evidence and argument was directed to the actions of Local 1, all of which, in the end, is irrelevant. The Agreement does not purport to bind Local 1, which is a separate legal entity from the International Union (see Clorox Company of Canada Ltd., [1980] OLRB Rep. Feb. 184 and Titan Tool and Die Limited, [1997] OLRB Rep. Mar./April 281).

45Therefore I find that the Agreement was not confirmed by a subsequent act of ratification by the International Union.

46Counsel for the IU also argued that the actions of Local 1 created an estoppel, preventing Local 1 from now denying the execution of the Second Jaddco Adherence Agreement. Much emphasis was placed on Sentinel Reliance Products Ltd. [1973] OLRB Rep. January 7. Local 1 argues that the doctrine of estoppel cannot operate to deprive a party of its statutory rights. Both arguments miss the essential point. Estoppel is an equitable doctrine governing the behavior of parties to a contract, or in a relationship very similar to a contractual one. It prevents one party from resiling from a representation to the other about how the contract is to be applied and on which the other party relies to its detriment. At its furthest extreme, estoppel may be used to prevent one party from denying the existence of a contract, even if a legal contract does not in fact exist: Waltons Stores (Interstate) Ltd. v. Maher (1988)164 CLR 387 (Australian High Court). To apply that analysis to a labour relations context, depends on an assumption that common law concepts applicable to contracts generally are applicable to a collective agreement, a proposition which is not always correct. However, no one has ever suggested that Local 1 is a party or was represented to be a party to any of the five documents asserted to be collective agreements. Accordingly the doctrine of estoppel based on the actions of Local 1 has no application to the facts of this case.

Ostensible Authority

47Even though an agent may lack actual authority, he or she may be clothed with ostensible authority by the principal such that the Agreement is binding on the principal. Such ostensible authority does not require further ratification by the principal: it is effective as of the date the agreement is made. Indeed the principal may not later revoke it. Again Fridman defines this type of agency as follows:

First there must be some statement or conduct on the part of the principal which can amount to a representation that the agent has authority to act on his behalf in the way he is acting. It was made clear by the Court of Appeal and the House of Lords in Armagas Ltd. v. Mundogas SA [[1985] 3 All FR 795 and [1986] 2 All ER 385 at 389] that the relevant representation must come from the principal: it cannot come from the agent himself. Ostensible authority is created by a representation by the principal to the third party that the agent has the relevant authority: and the representation, when acted upon by the third party, operates as an estoppel, precluding the principal from asserting that he is not bound. (Agency op. cit. p.114)

48The doctrine is summarized in Distribulite v. Toronto Board of Education Staff Credit Union (1988) 1987 CanLII 4162 (ON HCJ), 62 O.R. (2d) 225 (S.C.J., Campbell J.) at pages 279-280 and 282:

The classic requirements for ostensible authority were set out by the House of Lords in Freeman & Lockyer v. Buckhurst Park Properties (Mangal) Ltd., [1964] 2 Q.B. 480, per Lord Diplock, at pp. 505-6, [1964] 1 All E.R. 630 at p. 646:

If the foregoing analysis of the relevant law is correct, it can be summarised by stating four conditions which must be fulfilled to entitle a contractor to enforce against a company a contract entered into on behalf of the company by an agent who had no actual authority to do so. It must be shown:

(1) that a representation that the agent had authority to enter on behalf of the company into a contract of the kind sought to be enforced was made by the contractor;

(2) that such representation was made by a person or persons who had "actual" authority to manage the business of the company either generally or in respect to those matters to which the contract relates;

(3) that he (the contractor) was induced by such representation to enter into the contract, that is, that he in fact relied upon it; and

(4) that under its memorandum or articles of association the company was not deprived of the capacity either to enter into a contract of the kind sought to be enforced or to delegate authority to enter into a contract of that kind to the agent.

The judgment was referred to with approval by the Supreme Court of Canada in Canadian Laboratory Supplies Ltd. v. Engelhard Industries of Canada Ltd. (1979), 1979 CanLII 44 (SCC), 97 D.L.R. (3d) 1, [1979] 2 5CR. 787, 6 B.L.R. 235, and in Rockland Industries Inc. v. Amerada Minerals Corp. of Canada Ltd. (1980), 1980 CanLII 188 (SCC), 108 D.L.R. (3d) 513, [1980] 2 S.C.R. 2, [1981] 1 W.W.R. 110.

49Two points should be emphasized here. First the principal here is the International Union not Local 1; no action of Local 1 can create any ostensible authority in the GPMC which did not purport to act on behalf of Local 1. The action of Local 1 and the manner in which it regards this agreement is irrelevant to this issue. Second, the case law treats ostensible authority as a kind of estoppel. Given the definition of a collective agreement in the statute, this doctrine will not always be available to prove bargaining rights. In this case the narrow application of the doctrine would be to create an estoppel that applies to the authority of the agent to enter into the agreement. That is the International Union, as principal, would be estopped from denying the authority of its agent, the GPMC to sign the agreement on its behalf. (The position of Local 1 in these equities is dealt with below.)

50On the other hand, there is no reason not to apply the doctrine of ostensible authority in this context. The Board has applied that the doctrine in many circumstances: Inspiration Limited [1967] OLRB Rep Sept. 561, Collegiate Sports Ltd., [1977] OLRB Rep. Aug. 487, Vic Starchuk and Associates Inc., [1980] OLRB Rep. April 516 and Hussey Seating Company, supra.

51The first two necessary elements listed in Freeman & Lackyer v. Bathurst, supra, are present on the facts of this case. The IU, both in the Second Dofasco Agreement itself, and in its overall conduct, represented to all parties that the GPMC had the authority to execute subsequent agreements as its agent.

52There is sufficient authority in the two agreements to clothe the GPMC with ostensible authority. Jaddco was one of the parties negotiating the second Dofasco Agreement although it was ultimately signed by Blenkhorn Sayers. That Agreement provides as follows:

COVENANTS

This Agreement is entered into this 7th day of September 1995 by and between Blenkhorn-Sayers and those international unions of the AFL-CIO listed hereunder ... for the purpose of maintenance repair and renovation work for the following project: Dofasco Inc. Hamilton, Ontario.

The unions are composed with the following international unions of the AFL-CIO:

International Union of Bricklayers and Allied Craftsmen.

Whereas, in order to ensure relative equity and uniform interpretation and application, the Unions, through the duly appointed and constituted General Presidents' Committee for Maintenance in Canada wish to negotiate and administer the said Collective Agreement in concert, each with the other, and all with the Company.

ARTICLE 1.000 - APPLICATION FOR PROJECT AGREEMENT:

1.100 Any company desiring to enter into a Project Agreement for Maintenance by Contract, must appear before the General Presidents' Committee (hereinafter the "Committee") for the purposes of review and orientation and present to the Committee written evidence of the owners' intent to engage that company in the performance of maintenance service for a minimum period of one full year, subject to the usual termination clauses in such contracts.

ARTICLE 2.000 - AUTHORITY & RESPONSIBILITY OF THE COMMUNITY IN ADMIN­ISTERING THE AGREEMENT:

2.100 With the Company, to interpret and administer the terms and conditions set forth in the agreement.

2.200 To screen and police each company seeking use of Agreement in order to assure proper application and interpretation.

2.500 To prepare and distribute duly negotiated collective agreements for signing.

4.704 It is further understood that the owner may, from time to time, award specific mainte­nance projects which are of a long term nature, which is defined as one (1) year in duration, to additional employers. Far these specific projects, at the owner's request, such employers will sign and be bound to the terms and conditions of the Dofasco site General Presidents' Maintenance Agreement.

6.700 The administration and interpretation of this Article [the Definitions section of the Agreement] is the responsibility and prerogative of the General President's Committee for Contract Maintenance in Canada.

53In the Second Jaddco Adherence Agreement, the GPMC purports to act as agent for:

"Those International Unions of the AFL-CIO who composed the General Presidents' Maintenance Committee for Canada."

There was no evidence that Jaddco knew or ought to have know of the by-laws of the GPMC. The simple application of the "indoor management rule" makes it unnecessary to do so, particularly in light of the identity of the International Unions who were party to the Second Dofasco Agreement. While the language of the two documents together falls short of actual authority, it is very close. The GPMC has given an extremely prominent role in the ongoing administration of the collective agreement, particu­larly in sections 1.100, 2.100 and 2.200. The reference in Article 2.500 to the preparation and distribu­tion of collective agreement for signing does appear, in the context of the by-laws of the GPMC to contemplate preparation and distribution of the Second Dofasco Agreement for execution directly by the International Unions. If one is unaware of the GPMC by-laws, as Jaddco likely was, the language is ambiguous. It was certainly reasonable for both Jaddco and the International Union to rely on the GPMC as having authority in administering article 4.704 of the Second Dofasco Agreement, and in particular in negotiating and executing the Second Jaddco Adherence Agreement which states that it is entered into specifically pursuant to Article 4.704.

54In addition, the context of the two Dofasco Agreements (of which Jaddco was aware) is important. The IU was involved at the request of both Dofasco and Shaeffer-Townsend. It is obvious that the value of the agreement was enhanced (if not dependent on) the participation of all thirteen international unions, specifically including the JUBAC. Thus the covenant emphasized above is not simply a "pious hopes" clause. There was an agreement among fourteen parties, not thirteen bilateral agreements. The adherence agreements are part of the regime under which the agreement attempts to create a "union project". That is, the existence and execution of adherence agreements and others under articles 4.703 and 4.704 are part of the manner in which the agreement is intended by the parties, including the LUBAC, to operate.

55In practice, the action of the IU amounts to a clear representation that the GPMC is acting as agent on its behalf. Negotiations (which are different from the execution of an agreement) were conducted by the GPMC whether or not Mr. Strickland was present. The articles of the Second Dofasco Agreement quoted above give the GPMC the major, and often the only role, in administering the collective agreement. Mr. Smillie's evidence on cross-examination about the execution of the adherence agreement was as follows:

Q: You did sign the Jaddco Agreement and no Union did?

A: This is an administrative device. There were numerous parties and we couldn't get them all in the sante room at the same time. We used this as an administrative device to sign adherence agreements or short form agreements.

Q: So you didn't bother sending them to the Unions for signature?

A: No. We keep them in our office. My job is to ensure that the employers are union employers and know what they have to do and to take care of the paperwork.

This practice, in the context of Article 4 constitutes a clear representation by the LU. Although it is ineffective to do so, it is clear that Article 4.700 purports to ensure that sub-contractors are bound to the agreement as an administrative manner. Article 4.704 does not specify who must actually sign the adherence agreements. The covenants state that the international unions wish to administer the agreement through the GPMC. Thus the language of the Second Dofasco Agreement, and the practice under it, constitute a representation by the IU that the GPMC was authorized to act as its agent in executing agreements subsidiary to the main agreement.

56The third element required for ostensible authority, reliance by other parties, is clearly present. Jaddco clearly relied on the authority of the GPMC. Indeed the business venture depended to some extent on the existence of a valid collective agreement. Jaddco therefore relied on the representa­tion to its detriment. If parties have clothed an agent with ostensible authority, and have relied on it and behaved as if the agreement executed by it was valid, this document would be no less a collective agreement than if the International Union signed it directly and simply did not send a copy to Local 1.

57The fourth requirement of the doctrine, the capacity of the IU, is not really an issue. There is no dispute that the IU has the capacity to enter into a collective agreement. There was no evidence that the LU lacked the capacity to delegate the authority to execute an agreement to an agent. Indeed the practice of signing a collective agreement by an agent rather than an officer is very common. Further no one has suggested the delegation of the authority to interpret the definitions in the Second Dofasco Agreement, which is delegated solely and exclusively in Article 6.700 to the GPMC, is improper. Therefore there is evidence of an analogous delegation of authority by the IU to the GPMC.

58The doctrine, of course defines the equities as among the parties to the agreement. Local I is not a party. However, the fact that the agreement is attacked by a third party, Local 1, does not, in my view, make the doctrine inapplicable. As noted, it is only because of the nature of bargaining rights that the situation arises wherein a third party has the standing or interest to challenge the validity of other parties' agreements. The fact that Local 1 is a stranger to the agreement does not permit it to dissolve the equities among the parties to the agreement. Even the beneficiary of a trust, who stands as a third party to a bona fide contract between the trustee and a contracting party, is left to his remedy against the trustee rather than a remedy which seeks to negate the contract (absent the existence of unusual facts which would allow identifiable trust property to be "followed" or "traced"): see D. M. Waters, Law of Trusts in Canada (2d ed. 1984 Carswell) at pp.983-985.

59To some extent the application of the doctrine of ostensible authority will lead to some of the uncertainty I suggest above should be avoided. However, to the extent that any person who is not an officer of the IU executes a document, there will always be the potential for some uncertainty about the authority of the agent, even if he or she ultimately turns out to have actual authority. Further, Local 1 is a "stranger" to the agreement only in a legal sense. Counsel for the applicant made much of the fact that, in his assertion, Local 1 was told nothing about the agreement during its existence. It would be more correct to say that the IU did not present any evidence of any communication of information to Local 1. By the date of this application, the lU's officer, Brian Strickland, had thrown his lot in with Local 1 and was in any event unavailable as a witness at the hearing. No evidence was led by Local 1, and specifically from its present or former business managers. Accordingly there is also no evidence from the only party able to call it that at any time Local 1 entertained some unanswered curiosity about the arrangement under which its members performed up to 22,000 hours per month of work or that it was denied any information by Mr. Strickland in his capacity as International Representative and later as Canadian Director. We do know that representatives of Local 1 attended some of the negotiations leading up to the execution of the two Dofasco Agreements, and specifically a meeting of April 20, 1992 (Exhibit 10).

60I find therefore that in the circumstances the GPMC did have ostensible authority to act as an agent for the LUBAC and execute the collective agreement. Accordingly this document is a valid collective agreement between those parties, subject to the application of section 44.

Section 44

61On the date the Second Jaddco Adherence Agreement was executed, section 44 provided as follows:

44(1) A proposed collective agreement that is entered into or memorandum of settlement that is concluded on or after the day on which this section comes into force has no effect until it is ratified as described in subsection (3).

(2) Subsection (1) does not apply with respect to a collective agreement,

(a) imposed by order of the Board or settled by arbitration;

(b) that reflects an offer accepted by a vote held under section 41 or subsection 42(1); or

(c) that applies to employees in the construction industry.

Thus, the Agreement was not "in effect" on the date it was executed. It was never ratified by any group of employees. Therefore it did not come into effect in any short period of time thereafter. On June 26, 1998 the section was amended by the Economic Development and Workplace Democracy Act, 1998, S.O. 1998, c.8 which provided as follows:

6. Subsection 44(2) of the Act is amended by striking out "or" at the end of clause (b), by adding "or" at the end of clause (c) and by adding the following clause:

(d) that applies to employees performing maintenance who are represented by a trade union that, according to trade union practice, pertains to the construction industry if any of the employees were referred to their employment by the trade union.

62The first issue is whether section 44(2)(d) applied to this collective agreement on the application date. The applicant argues that it did not. Counsel asserts that the "old" section 44 applied to the collective agreement when it was executed. The amendment in 1998 could only apply, it was argued, to agreements entered into on and after that date. That is all collective agreements executed between November 10 and June 25, 1998 are governed by the "old" section 44 and the "new" section 44 applies to agreements entered into on and after June 26, 1998. His argument was based on the fact that section 44 was not repealed and reenacted. He therefore asserts that the "old" section 44(1) applied to this agreement on the day it was executed and that the application of the entire section as it stood at that time to a collective agreement in existence at that time could not be changed by subsequent amendments unless those amendments were explicitly made retroactive. Jaddco and the International Union argued that section 44(2)(d) did apply and referred to what Dreidger's text, The Construction of Statutes, (R. Sullivan ed., 3d ed. 1994: Butterworths) refers to as the "Doctrine of Merger" and the decision of the Supreme Court of Canada in Healy v. Quebec (AG) 1987 CanLII 80 (SCC), [1987] 1 SCR 158. Having reviewed Healy v. Quebec I am not persuaded that the case applies to these facts or that anything that is complex as the "Doctrine of Merger" needs to be resorted to. Section 4 of the Interpretation Act provides as follows:

Section 4

The law shall be considered as always speaking and, where a matter or thing is expressed in the present tense, it is to be applied to the circumstances as they arise, so effect may given to each Act and every part of it according to its true intent and meaning.

63If the law is "always" speaking, the old section 44 speaks to and applies to this Agreement as of the date of its execution and up to June 25, 1998. The "new" section 44 commences to "speak" on June 26, 1998. It is drafted in the present tense and continues to speak to and apply to collective agreements as of that date. To give effect to the applicant's argument, it would have been necessary to "freeze" the old section 44 and its application to collective agreements entered into during the period from November 11, 1995 to June 25, 1998. Bill 31 does not do this and therefore section 44(2)(d) did apply to this collective agreement as of the date of this application.

64The applicant further argues however that section 44(2)(d) does not apply to this collective agreement, insofar as it relates to the IU, because that union did not refer employees to their employ­ment. Only Local 1 did. All persons referred under that Agreement were referred as a result of a call from Jaddco to Local l's office. This however describes events in a superficial fashion. The persons referred to employment were, of course, members of both Local 1 and the IU. The International Union negotiated this Agreement through its agent the GPMC and in discharging its obligations under the Agreement relied on Local Unions to administer and police it. In the grievance procedure under the Second Dofasco Agreement the initial steps of the grievance procedure are to be initiated by the local union. However, it is the International Union which is responsible under the agreement for supplying and referring bricklayers and masons. If Local 1 had chosen not to refer its members to employment (perhaps in preference to referrals to higher paying jobs under Provincial Collective Agreement) Local 1 would not have been in breach of the collective agreement nor, on those facts alone, engaged in an unlawful strike. It would be up to the International Union to seek other sources of supply of bricklayers. After the break between Local 1 and the International Union, that is precisely what the International Union sought to do. In the February 23, 1999 letter referred to above, the International Union directed the GPMC to an Ottawa address for inquiries for workers "and other such matters" in supplying members under the General Presidents' Maintenance Agreement. The International Union accepted the responsibility of supplying employees and was prepared to do so through the offices of other local unions. Subject, perhaps, to section 147 it was entitled to change the designation of the administering local, as it did in February of 1999. It is, however, still in the business of referring employees to jobs.

65Indeed, the parties agreed that the First and Second Dofasco Agreements were valid collective agreements. As noted above, this can only be so if the trade union party to the collective agreement, the IU, intended to and actually did supply persons who were its members to employment under the agreement (although perhaps to contractors working under the umbrella of Articles 4.700-4.704 rather than to Shaefer-Townsend or Blenkhorn-Sayers directly). If the IU's referral of members to employment through the hiring hall of Local 1 is sufficient to validate the First and Second Dofasco Agreements, it is sufficient to validate the Second Jaddco Adherence Agreement as well.

66Therefore section 44(2)(d) applied to the Collective Agreement at the date of application and no ratification was necessary to make it effective after June 26, 1998. At the date of the application then there was a valid and subsisting collective agreement between the responding party and the TUBAC, the term of which expired on November 30, 1998.

Status

67On the issue of status then the IU clearly has status to participate in this proceeding. The GPMC appears to have had all of the issues directly relevant to it fully addressed in this decision. It sought to remain in the case as it asserted that issues with respect to this Collective Agreement might well arise at a future point in the proceedings. The applicant did not really address this issue in argument. The Board will therefore not give status to the GPMC as a party, but will invite it to attend and permit it to seek leave to address any issue that it wishes to address, should any such arise. For reasons set out below, this is unlikely to happen in the next phase of this case.

Other Matters

68This decision resolves the issues identified as numbers 2 and 3 above. To some extent it also resolves the issue of the bargaining unit description. If the applicant has status, this is a displacement application. The appropriate bargaining unit is therefore that in the existing collective agreement. While the exact description of the unit is not clear, the voting constituency was correct for this purpose. On the basis of the material filed by the applicant in support of this application, more than 40% of the persons in the bargaining unit appear to be members of the applicant on the date of application. No notice was given under s. 8.1 (nor would any such notice have been numerically relevant). There is no reason not to count the second set of ballots (i.e. the choice between the applicant and the LU) and the Manager of Field Services is directed to do so on notice to the parties forthwith.

69If a majority of ballots is cast in favour of the applicant, the Registrar is directed to set this matter down for hearing to deal with the status of the applicant to bring this application. It would appear, without having heard argument from any of the parties, that the status issue would be very narrow, notwithstanding the applicant's expressed desire to prove that it is the successor to the IU and its locals. That is, since this is a displacement application, the bargaining unit is that found in the existing collective agreement regardless of the nature or status of the applicant. Since this is an application under the general provisions of the Act, the applicant need only prove that it is a trade union as defined in section 1(1). Despite that apparent fact and for reasons set out more fully in a decision in this file and one other, issued simultaneously with this decision, this matter will be scheduled for six days of hearing with Board File 1904-99-U to deal with the status of the applicant in the widest possible sense.

70This panel of the Board remains seized of this application.