0030-99-G United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union 221, Applicant v. D. Chrus & Sons Plumbing, Heating & Enterprises Limited, Responding Parties.
BEFORE: Mary Ellen Cummings, Alternate Chair.
APPEARANCES: Alexander J. Ahee for the applicant; Carl W. Peterson and J. Gerry Chrus for the responding party.
DECISION OF THE BOARD; January 7, 2000
This is a referral of a grievance in the construction industry pursuant to section 133 of the Labour Relations Act. The responding party (the employer) maintains that the applicant has no bargaining rights in the ICI sector of the construction industry.
In a decision dated August 16, 1999, I determined that the October 17, 1977 voluntary recognition agreement on which the applicant relied to found bargaining rights was null and void. Without repeating all the evidence and findings from that decision, I concluded that the applicant had repudiated the agreement within minutes of its signing, and thereafter acted consistent with an intention not to treat the employer as if it had any obligations to the union.
The second set of documents on which the applicant relies to found its bargaining rights are dated around February 18, 1986. Why I say "around" February 18, 1986 will become apparent.
I heard evidence only from the applicant's witnesses. On February 13, 1986 the applicant forwarded a grievance to the responding party. The grievance reads:
Be advised I find you in violation of the Ontario Provincial Collective agreement, article 101-1 of the Local Appendix, Zone 12 West, failing to employ members of the U.A. Local 463 on your National Grocers project, 310 Neal Street Peterborough…..
Brian Christie, now the Chief Organizer of the Pipe Trades Council, was in 1986, the Business Agent for Local 463. He recalls visiting the site of a new warehouse in February 1986 where he saw one or two members of the Chrus family (plumbers all) working with a labourer on the installation of underground pipe. It was this situation which generated the grievance set out above.
In addition to the grievance outlined above, the applicant relied on 3 other documents. I heard no oral evidence surrounding them or their making. The first is a voluntary recognition agreement:
VOLUNTARY RECOGNITION AGREEMENT
B E T W E E N
UNITED ASSOCIATION OF JOURNEYMEN AND
APPRENTICES OF THE PLUMBING AND PIPE FITTING
INDUSTRY OF THE UNITED STATES AND CANADA,
LOCAL 463
(hereinafter referred to as “THE UNION”)
- and -
D. Chrus & Sons
Plumbing & Heating Ltd.
6 Clarendon Cres., Toronto, Ont. M4V 2P4
(hereinafter referred to as “THE EMPLOYER”)
The EMPLOYER hereby agrees that the EMPLOYER recognizes the UNION as the exclusive Bargaining Agent of its employees in the following Bargaining Unit, namely:
All plumbers, plumbers’ apprentices, steamfitters, steamfitters’ apprentices and welders in the geographical area bounded by and including the Regional Municipality of Durham (except for the Towns of Ajax and Pickering) the geographic Township of Cavan in the County of Peterborough and the geographic Township of Manvers in the County of Victoria (Board area 9). The Towns of Cobourg and Port Hope, and the geographic Townships of Hope Hamilton, Haldimand and Alnwick in the County of Northumberland (board area 10). The County of Peterborough (except for the geographic Township of Manvers) and the provisional County of Haliburton (board area 11). Prince Edward County, the geographic Townships of Lake, Tudor and Grimsthorpe and all lands south thereof in the County of Hastings, and geographic Townships of Percy and Cramake and all lands east thereof in the County of Northumberland (board area 12).
DATED this 18th day of February 1986.
UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED STATES AND CANADA, LOCAL 463
PER:
Chris Burrows
Jerry Chrus
Empoyer
A second document dated February 18, 1986 reads as follows:
AGREEMENT OF SETTLEMENT
B E T W E E N
U.A. Local 463
(union)
and
D. CHRUS & SONS PLUMBING AND HEATING LIMITED
6 Clarendon Cres., Toronto, Ontario
(employer)
Whereby the employer has agree they have violated the Ontario Provincial Collective Agreeement, Article 101-1.
In settlement of the above-mentioned violation the employer agrees to pay to the Union compensation for work performed by others, the sum of $551.28.
The Union agrees to withdraw the above-mentioned grievance and will seek no further compensation.
SIGNED:
Jerry Chrus Chris Burrows
(for the employer) (for the Union)
Feb. 18/86 Feb. 18/86
Date Date
The union also has a copy of the cheque, confirming that the monies were paid. The applicant introduced an Employer's Contribution report for March 1986, which shows that the responding party paid wages and made contributions and remittances on behalf of three plumbers referred by the applicant. To be clear, it is the applicant's position that the documents speak for themselves; I heard no evidence establishing how or why the voluntary recognition agreement was signed; or about the circumstances surrounding the making of the settlement or how and to what job the applicant's members were referred in March 1986.
Counsel for the responding party asked me to note that a couple of days prior to the hearing, the applicant gave notice that it intended to rely on a 1981 document, but on the day of hearing, advised that it decided not to tender it. Counsel for the responding party indicated that it expected the applicant to tender all its evidence relating to whether the applicant holds bargaining right with respect to the employer. I indicated that I would note it, and if the applicant sought to raise the matter again, the responding party had an arguable case that the matter was res judicata, but the determination was best left to a future decision-maker.
Counsel for the applicant specifically indicated that it is not relying on the voluntary recognition agreement of February 18, 1986 to establish bargaining rights in the ICI sector. However, counsel argued that a consideration of the fact of a grievance; the terms of settlement of the grievance; the payment of money; and the acceptance of referral of plumbers in March 1986 should cause me to conclude that either the applicant held ICI bargaining rights prior to February 1986 or, in the alternative, the responding party's conduct led the applicant to believe that it had bargaining rights, and the responding party is now estopped from asserting that no ICI bargaining rights exist.
The applicant points out that the responding party acknowledged that it breached the Province wide agreement, and paid damages in respect of that breach. It then had plumbers referred to it in the next month. No employer would have engaged in that pattern of conduct unless it was already bound to the ICI agreement. Alternatively, I should find that this pattern of conduct misled the union into thinking that the responding party was bound, a representation that the union has relied on to its detriment.
Counsel for the responding party argued that a more plausible explanation could be drawn from the fact that both the voluntary recognition agreement and the grievance settlement were signed the same day. Counsel submitted that the applicant did intend the voluntary recognition agreement to cover the ICI sector, and it is only now, with the benefit of the intervening jurisprudence setting out the elements that must be contained in a voluntary recognition agreement in the ICI sector of the construction industry (Rockwall Concrete Forming (London) Limited [1988] OLRB Rep. Sept. 963, for example), clear that the voluntary recognition agreement is null and void with respect to the ICI sector.
Counsel for the responding party argued that it is not now possible for the applicant to "shore up" its inadequate voluntary recognition agreement by relying on the grievance settlement. First, the settlement does not say that the responding party admits that it is bound to any agreement, and a mere admission that it "violated" something is not enough to found bargaining rights, particularly in the ICI sector. Second, it is not the least unusual for an employer to agree to a union's request to be paid a small sum, if the employer believes it will be then left alone. And as for the applicant's argument that the responding party must have been already "somehow" bound to the ICI agreement, I should remember that the applicant had been contending that the responding party was bound by virtue of a 1977 document, which the Board has now concluded did not establish bargaining rights. So whatever the applicant thought in 1986, the Board has now established that there were no prior bargaining rights.
Counsel also submitted that even if the applicant could make out all the pre-requisites for the application of the estoppel principle, the applicant had not even established a pattern of conduct worthy of review. He noted that in the past, the Board has not accepted a long period of apparent compliance with an agreement, including seeking referrals and making proper remittances as giving rise to an estoppel. In this case, there is but a single month of referrals.
Counsel asked me to look at how the Rockwall Concrete Forming decision set rigorous criteria (based on the statute) before the Board will be satisfied that bargaining rights, particularly bargaining rights in the ICI sector of the construction industry, have been conferred. The approach urged by the applicant is inconsistent, and would depend on the Board cobbling together a number of documents. Counsel submitted that it is trite law that since the status of voluntary recognition confers bargaining rights without the need to bring an application for certification, and the scrutiny of the Board, the evidence supporting the existence of voluntary recognition should be clear and conclusive.
DECISION
I conclude that the applicant has not established that it holds bargaining rights in the ICI sector of the construction industry for the responding party. Prior to February 13, 1986, the applicant did not have bargaining rights with respect to the responding party, although the determination that the 1977 document was null and void was not made until recently. I must conclude that the grievance filed on February 13, 1986 arose out of the applicant's (mistaken) belief that it already held bargaining rights. It is equally likely that the responding party settled (cheaply) with the union in 1986 either because it thought it was possible that it was bound to an ICI agreement by virtue of the 1977 document, or reckoned that paying a few hundred dollars every nine years did not make it expensive enough to find out for sure.
I am satisfied that, as the responding party contends, the applicant intended the February 18, 1986 voluntary recognition agreement to cover all sectors of the construction industry, including the ICI sector. However, the applicant has specifically argued that it is not relying on that agreement to establish bargaining rights in the ICI sector.
Since the applicant has no valid voluntary recognition agreement with respect to the ICI sector, what is left? I have the applicant's referral of three plumbers in one month, without any evidence (by the way) to establish that they were referred to a project in the ICI sector. That is not nearly enough to found bargaining rights. Parties with bargaining rights take on significant liabilities. They should not stumble into them. Nor, for its part, should the Board find, by cobbling together murky bits of agreements and conduct, that the parties have stumbled into a bargaining relationship. This is particularly true in the ICI sector where the liabilities (on both sides) are heavy, and the relationship long. Section 158(3) imposes stringent requirements on who can be parties to voluntary recognition agreements in the ICI sector, and requires that the agreement cover all employees in the trade in the province. To conclude that these parties have stumbled into a bargaining relationship is completely contrary to those statutory provisions and their underlying principles.
DISPOSITION
The referral of the grievance is dismissed because the applicant has not proven it had bargaining rights for the ICI sector at the time of the alleged breaches.
The hearing date scheduled for April 5, 2000 is hereby cancelled.
“Mary Ellen Cummings”
for the Board