Allied Construction Employees Local 1030 v. Tyger Construction Inc., 2001 CanLII 20094

Allied Construction Employees Local 1030 v. Tyger Construction Inc.

3049-00-R Allied Construction Employees Local 1030, United Brotherhood of Carpenters and Joiners of America, Applicant v. Tyger Construction Inc., Responding Party v. Labourers’ International Union of North America, Ontario Provincial District Council, Intervenor.

3563-00-R Allied Construction Employees Local 1030, United Brotherhood of Carpenters and Joiners of America, Applicant v. Tyger Construction Inc., Responding Party v. Labourers’ International Union of North America, Ontario Provincial District Council; Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America; International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 721, Intervenors.

0099-01-G Labourers’ International Union of North America, Ontario Provincial District Council, Applicant v. Tyger Construction Inc., Responding Party v. Allied Construction Employees Local 1030, United Brotherhood of Carpenters and Joiners of America, Intervenor.

BEFORE: David A. McKee, Vice-Chair, and Board Members G. Pickell and A. Haward

APPEARANCES: J. David Watson and Leslie Hanecak for the Allied Construction Employees Local 1030, United Brotherhood of Carpenters and Joiners of America; A. M. Minsky and Rocco Lotito for the Labourers’ International Union of North America, Ontario Provincial District Council; Christopher M. Little and Robert Hodgson for the responding party; Jack J. Slaughter and Walter Tracogna for Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America.

DECISION OF THE BOARD; August 10, 2001

1These three matters are various applications involving, at this point, all of the same parties.

2Board File 3049-00-R is an application for certification made by Allied Construction Employees Local 1030, United Brotherhood of Carpenters and Joiners of America (the “Carpenters” or “Local 1030”) with respect to certain employees of Tyger Construction Inc. (“Tyger”). A certificate was granted in this application for a unit of carpenters and carpenters’ apprentices and construction labourers in non-ICI sectors in Board Area 8. No notice was given to the Labourers’ International Union of North America, Ontario Provincial District Council (the “Labourers” or alternatively the “OPDC”). The OPDC now seeks a reconsideration of and a revocation of that certificate.

3Board File 3563-00-R is another application for certification by Local 1030 for a slightly different bargaining unit of employees employed by Tyger. This time the OPDC was given notice and has intervened. Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America also intervened in this application. In this application, Local 1030 seeks to be certified only if there is some defect in Board File 3049-00-R which causes the Board to revoke that certificate.

4Board File 0069-01-G is an application under section 133 for a referral of a grievance to arbitration brought by the OPDC against Tyger. Local 1030 has intervened in this application. The parties agreed to adjourn this file until it they agree that the time to deal with the issues raised by that application has arrived.

5The Labourers take the position that it signed an agreement with Tyger on February 1, 1999 and again on April 28, 1999 which had the effect of making Tyger a party to a number of other collective agreements, primarily for the purposes of these applications the agreement between the Ontario Form Work Association and the Formwork Council of Ontario (“the Formwork Agreement”). The OPDC says this is a complete bar to the application for certification in Board File 3049-00-R as that application date would be untimely. It also argues that the application in 3563-00-R is barred. The OPDC also claims damages as a result of failure to comply with the Formwork Agreement on a project in Toronto at 36 Charlotte Street.

6Local 1030, and for different purposes Tyger, take the position that there is no collective agreement bar to any of the Carpenters applications for certifications, that the Carpenters Union is entitled to be issued either or both certificates by the Board, and that the Labourers’ agreement is void or unenforceable for a number of reasons. Local 1030 also asserts that its collective agreement signed on the basis of the certificate issued in the first application for certification is the only collective agreement applicable to the project.

7These files raise a number of issues set out in the Board’s decision of April 21, 2001. The parties agreed to focus, ultimately, on only one of them: the bargaining rights held by the OPDC or any local of the OPDC.

8No evidence was called. The parties agreed to a statement of facts. The relevant portions of this statement are as follows:

1. Tyger Construction Inc. is a concrete forming contractor which is currently engaged in the construction of a 14 floor high-rise residential apartment building located at 36 Charlotte Street, Toronto, Ontario. On or about January 18, 2001, Tyger commenced work on this job site. This is the first residential construction project ever engaged in by Tyger, or any of its related companies, as set out below.

2. …

(d) On February 2, 1999, Tyger entered into a Recognition Agreement with Local 27 (Exhibit 6). This Agreement was executed by duly authorized representatives of the parties thereto and it is agreed that Local 27 was entitled to enter into this agreement. After signing this Recognition Agreement, Tyger engaged carpenters and carpenters’ apprentices to perform carpentry work in the ICI sector pursuant to Exhibit 2.

(e) On February 4, 1999, Tyger entered into a Recognition Agreement with the OPDC (Exhibit 7). This Agreement was executed by duly authorized representatives of the parties thereto. It is not disputed that at the time when Exhibit 7 was entered into, the OPDC was entitled to represent all of Tyger’s construction labourers on the ICI project which was underway at the time. This agreement is without prejudice to the OPDC’s claims with respect to the overall scope and coverage of its bargaining rights and its entitlement to assert other bargaining rights in these proceedings. However, the OPDC did not claim to represent carpenters employed by Tyger on that project on February 4, 1999. Rather, those individuals were members of Local 27. After signing this Recognition Agreement, Tyger engaged construction labourers to perform construction labourers work in the ICI sector pursuant to Exhibit 4.

(f) Because the person who signed Exhibit 7 on behalf of Tyger was no longer associated with Tyger, on April 28, 1999, Tyger entered into a second Recognition Agreement with the OPDC (Exhibit 8). This Recognition Agreement was executed by duly authorized representatives of the parties thereto. It is not disputed that at the time when Exhibit 8 was entered into, the OPDC was entitled to represent all of Tyger’s construction labourers on the ICI project which was underway at the time. This agreement is without prejudice to the OPDC’s claims with respect to the overall scope and coverage of its bargaining rights and its entitlement to assert other bargaining rights in these proceedings. However, the OPDC did not claim to represent carpenters employed by Tyger on that project on April 28, 1999. Rather, those individuals were members of Local 27. After signing this Recognition Agreement, Tyger engaged construction labourers to perform construction labourers work in the ICI sector pursuant to Exhibit 4.

4. The parties agree that the carpenters and labourers employed by Hodgson-Ferr [a predecessor employer] were transferred to Tyger at or about the time that the Recognition Agreements signed by Tyger with Local 27 and the OPDC, being Exhibits 6 and 7 respectively, were executed.

5. The parties agree that Exhibits 7 and 9 are standard form agreements which are drafted and prepared by the OPDC and provided to employers for execution. This standard form agreement was prepared unilaterally by the OPDC without any negotiation.

6. Exhibits 7 and 8 were executed at the offices of LIUNA, Local 506, which is not the office of the OPDC, with very little discussion. A copy of Exhibit 7 was given to the representative of Tyger who executed the document, although the OPDC was not asked to nor did it provide any further collective agreements or documentation whatsoever.

7. At all times since its date of incorporation and prior to the commencement of the Charlotte Street job, Tyger has engaged construction labourers who are members of the LIUNA, Local 506, and has made remittances on these employees’ behalf pursuant to Exhibit 4. Similarly, at all material times prior to the commencement of the work on the 36 Charlotte Street job site, Tyger engaged carpenters and carpenters’ apprentices who were members of Local 27 and submitted remittances on their behalf pursuant to Exhibit 2.

8. From the dates of the execution of Exhibits 6, 7 and 8 and prior to the commencement of the 36 Charlotte Street job site, Hodgson-Ferr’s and, subsequently, Tyger’s work force was comprised of a minimum of at least 60% carpenters and a maximum of 40% construction labourers. Each of these trades was employed pursuant to the respective Provincial Collective Agreements entered into between the respective Labourers and Carpenters Employer and Employee Bargaining Agencies.

9. The parties agree that prior to the work on the Charlotte Street site in January, 2001, Tyger and its related companies only performed concrete forming work in the ICI sector. At the time of the execution of Exhibits 6, 7 and 8, Tyger had no expectation of ever performing work in the residential sector.

9The issue to be decided in this decision is what bargaining rights the Labourers’ Union hold, and at what times they held them. The relevant document is the Memorandum of Agreement executed February 4, 1999 (sometimes referred to as Exhibit 7). The fact of re-executing the collective agreement on April 28, 1999, although a prudent precaution on the part of the Labourers, adds nothing to the case.

10The parties argued the application of various legal principles and cited a large body of case law. In the final analysis, the answer to the question posed is found largely in an analysis of the words used in the Memorandum of Agreement. We have not referred to many of the issues raised by the parties, and very little of the case law, because the issue is simply one of analysis of the text of the agreement. On our view this agreement, none of the legal issues raised by Local 1030 or the other parties arises.

The Memorandum of Agreement

11The Memorandum of Agreement was referred to by the parties as a voluntary recognition agreement. It is not. It is a collective agreement (albeit a voluntary one). The document says it is a collective agreement. It meets the statutory definition of a collective agreement:

“collective agreement” means an agreement in writing between an employer … on the one hand and a…council of trade unions that … represents employees of the employer … on the other hand, containing provisions respecting terms or conditions of employment or the rights, privileges and duties of the employer …

The Memorandum of Agreement contains a recognition clause (paragraph 1) which defines the unit of employees of the employer that the union represents. It contains terms and conditions of employment and rights, duties and privileges of the employer by reference to other collective agreements identified in paragraphs 2, 3(a) and 3(b). It contains a term of operation (paragraph 3(c)). It is an agreement in writing executed by an employer and a trade union.

12This conclusion requires some elaboration.

Bargaining Unit

13Paragraph 1 is the recognition clause. It covers certain employees of Tyger in the Province of Ontario. Since there are no limitations by sector, this is a province wide, all-sector bargaining unit. For the reasons set out below, the employees in bargaining unit are:

1. all construction labourers, including masons’ and bricklayers’ tenders, plasterers and plasterers’ apprentices, and all employees engaged in cement finishing, waterproofing or restoration work;

2. all employees engaged in all phases of the erection and finishing of precast concrete products and other components;

3. all construction employees engaged n the wrecking demolition, dismantling or salvage of buildings.

14In addition, paragraph 1(a) refers to “such other construction employees as are covered by the Provincial Agreement with the Provincial Employer Bargaining Agency – Labourers”. A brief review of the Labourers provincial collective agreement indicates that some words are used for different classifications of employees (see for example the appendix covering Local 506). However, these classifications are distinctions for the purposes of different pay rates, and perhaps used to enhance jurisdiction claims with respect to other unions. However, the Provincial Collective Agreement can only cover the trades identified in the designation order. The Employer Bargaining Agency is not entitled to bargain a collective agreement covering trades other than those specified (see Fred Jantz Masonry Construction Company Limited, [1981] OLRB Rep. Sept. 1229).

15Paragraph 1(b) refers to a unit of employees for which the OPDC is the designated Employee Bargaining Agency in the ICI sector, although the Memorandum of Agreement covers all sectors.

16Paragraph 1(c) expands the unit which the OPDC is designated to represent in the ICI sector. In that sector the OPDC may represent only all construction labourers engaged in wrecking, demolition and so on. While an all-employee bargaining unit for this work is possible in non-ICI sectors of the construction industry, any bargaining rights in the ICI sector are restricted by statute to construction labourers. It is, of course, the position of the OPDC that the only employees truly involved in demolition are construction labourers in any event.

Terms and Conditions of Employment

17The focus of the parties’ argument was with respect to the non-ICI sectors. The OPDC argued that the effect of paragraph 3(a) of the agreement is to cause Tyger to become a party to a number of other collective agreements, in particular in this case the Formwork Agreement. The Board disagrees. Paragraph 3 must be read in the context of the entire document. However, we start our analysis with the words of paragraph 3(a) which are:

3. With respect to work performed or undertaken or contracts let or sublet in sectors of the construction industry other than the industrial, commercial and institutional sector in Ontario Labour Relations Board geographic areas No. 8 and 18, Employer and the Union hereby agree:

(a) To recognize, observe and be bound by all of the terms, conditions, provisions (both monetary and non-monetary), of the applicable collective agreement(s), including any amendments and renewals thereof, between or binding upon the Union or one or more of its affiliated Local Unions, as the case may be, and an employers’ organization or an employer, as the case may be, applicable in the locality of the project for the class and character of the said work as if the same were made between the Employer and the Union and the Employer shall execute such documents as may be presented to it by the Union in order to confirm and acknowledge such intention. The Employer hereby acknowledges that it is in possession of and is familiar with such Collective Agreements;

18Paragraph 3 does not stand alone. It occurs in a document which it says it is, and in fact is, a collective agreement. It occurs after a recognition clause. The introductory paragraph focuses on “work” whether performed by or undertaken by employees of Tyger or by employees of a third party under a contract or subcontract. It is limited by sector and geographic scope. Quite simply it says when these employees (as defined in paragraph 1) do this work (non-ICI sector work in Board Areas 8 and 18) then subparagraphs (a) or (b) apply.

19What does subparagraph (a) provide? The parties agree to “recognize, observe and be bound by all of the terms, conditions provisions (both monetary and non-monetary) of” certain collective agreements. The words “recognize, observe, and be bound by” may have different meanings in different contexts. The words “bound by” are often used in documents creating a collective bargaining relationship, as is the word “recognize”, but the word “observe” almost never is. In this paragraph all three of the words are verbs. The object of these verbs is the phrase “the terms, conditions, provisions (both monetary and non-monetary) of [certain agreements]”. That is, the object of the verbs is not “collective agreement”, or any collection of them. The object of the verbs is the content of the various agreements. In this paragraph, the parties bound themselves at most to certain terms and conditions of employment, not to any other collective agreements.

20Further, paragraph 3(a) also contains an agreement that:

“the Union and the Employer shall execute such document as may be presented to it by the Union in order to confirm and acknowledge such intention.”

The word is “intention” (i.e. what the parties intend to do in the future). It is not the word “agreement” (i.e. what a party has agreed, in the present, to do in the future). The word “intention” strongly suggests that paragraph 3(a) reflects an intention to enter into a new and separate collective agreement (such as the Formwork Agreement and any other agreement) in the future. It represents a kind of double guarantee. Paragraph 3(a) incorporates the terms and conditions of employment of other collective agreements for the bargaining unit in this collective agreement, and also contains an undertaking to execute a further collective agreement. Even if the second promise is not enforceable, the incorporation by reference is certainly is. However, a promise to enter into a collective agreement is not itself a collective agreement: Ferranti-Packard Ltd. [1977] OLRB Rep. March 169 at paragraph 15 and cases cited therein. We note that this interpretation is also consistent with an interpretation of similar language by the Board in CDC Contracting, [1982] OLRB Rep. November 1589 at paragraphs 5 to 8.

21The wording of paragraphs 2 and 3(b) is instructive as well.

22Paragraph 2 uses very similar language with respect to the ICI sector. However, the statutory context is different here. The parties need do nothing with respect to ICI collective agreements. The effect of sections 156, 157 and 162 of the Act is, essentially, that once the union is recognized for a particular bargaining unit, the employer is bound to the ICI agreements. The only way to give meaning to paragraph 2 is as a contractual backup to the statutory regime. On a contractual level, the employer is bound to this collective agreement which incorporates, by reference, the terms and conditions of a provincial collective agreement. This would presumably survive any changes to the statute. Once again, the clause uses the word “bound” but the employer promises to be bound by the terms, conditions and provisions, appendices, schedules and memoranda in the provincial collective agreement, not the collective agreements themselves.

23Paragraph 3(b) is worded differently. It more clearly indicates that work, if not covered by paragraph 3(a) “will be performed in accordance with the Provincial Collective Agreement. That is, the alternative to paragraph 3(a) is the performance of work under the terms and conditions of a single identified collective agreement. The paragraph goes on to provide that if the provincial collective agreement is amended, “then the parties hereto shall be bound by the same as if original parties thereto” (language that might appear to bind parties to a collective agreement) but in that case “the Employer shall execute such documents as may be presented to it by the Union in order to confirm and acknowledge such intention”. Again, the word intention implies an agreement to enter into an agreement. Accordingly we conclude that the phrase “shall be bound by” in paragraph 3(b) has the same meaning that it has in paragraph 3(a), that is that the parties have bound themselves to the terms and conditions expressed in the other agreement rather than binding themselves to a separate collective agreement.

24In the context of paragraphs 3(a) and (b), then, the word “bound” has the effect of incorporating the terms, conditions, and privileges to which Tyger agrees to be “bound” rather than making it a party to a different collective agreement. The word is synonymous with “recognize and observe”, and simply functions to incorporate terms and conditions of other collective agreements into this collective agreement.

25This analysis is confirmed for the Board by the argument made by the OPDC. Counsel argues that the phrase “bound by the terms, conditions, [etc.] … as if the same were made between the employer and the union” in the circumstances of this case meant that Tyger became a party to the Formwork Agreement. The Board rejects this argument for a number of reasons. The OPDC acknowledges that the generality of “terms and conditions” is limited by the introduction to paragraph 3 to non-ICI work in Board Areas 8 and 18. However it argues that the bargaining unit (which is wider under the Formwork Agreement that in this collective agreement), is not limited by the recognition clause in paragraph 1 of the collective agreement.

26In part, this argument is based on the fact that paragraph 3(c), which sets the duration of the collective agreement, is part of paragraph 3 rather than a separate paragraph. In the OPDC’s submission, therefore paragraph 3 constitutes a separate collective agreement within a voluntary recognition agreement, and is not therefore subject to the limitations found in paragraph 1. The Board rejects that assertion. The numbers and headings are a helpful guide to give meaning to an agreement, but the agreement is found in the words used, not the paragraph numbers. There is no reason to separate this short agreement into two discreet and independent agreements. The recitals presumably apply to all three paragraphs. The opening lines of paragraphs 2 and 3 clearly indicate that they are all part of the same document.

27In any event, the plain meaning of the agreement is that the application of the terms and conditions of the other agreement is also limited by the bargaining unit defined in paragraph 1. The parties clearly intended the “work” referred to in paragraph 3 to be the work performed by members of the bargaining unit, that is, work of a construction labourer or work performed by construction employees engaged in precast concrete construction or demolition work. That is the unit of employees for which the employer has agreed to recognize the union as exclusive bargaining agent. Paragraph 3 sets out the terms and conditions of employment applicable to those employees.

28To assert that paragraph 3(a) binds the employer as a party to the Formwork Agreement would be to ignore the much wider bargaining unit contained among the trades and classifications represented by the Formwork Council. When Tyger signed the collective agreement agreeing to recognize the OPDC for a unit of construction labourers, it would take much different language in paragraph 3(b) to convert it to an agreement to recognize the OPDC for construction labourers, carpenters, rodmen and operating engineers. Clearly only portions of other collective agreements are incorporated into this agreement by virtue of paragraph 3(a).

29Further, on the Labourers’ argument, Tyger would have become bound to many other collective agreements. One would be the Formwork Agreement, (where the union party is the Formwork Council, whose members are the International Union of Operating Engineers and the Labourers Local 183). The “Roads Agreement” is executed by another uncertified council of trade unions composed of Labourers Local 183 and Teamsters Local 230. On this theory, an employer who signs this collective agreement for a bargaining unit of construction labourers with the OPDC, suddenly finds itself a party to an agreement with the Formwork Council (a different party from Labourers Local 183 and indeed the OPDC) or at least with Operating Engineers Local 793 and another collective agreement with, among others, Teamsters Local 230. The OPDC does not purport in this agreement to be the agents for these unions. Certainly nothing suggests that it purports to be the agent for councils of trade unions which are now in existence or councils which have yet to be created. This Memorandum of Agreement contains nothing which would suggest that an employer who signs the agreement with the OPDC thereby becomes a party to collective agreements with two or three other unions (who in their turn may be entirely unaware of Tyger’s existence).

30While we do not mean to suggest that they represent an exclusive dichotomy, there are two types of agreements or provisions which are common in construction industry agreements. One is a document often called a “pick-up” or “short form” agreement. This is generally a brief document by which an employer and a union or council of unions agrees to be bound by a collective agreement found in a different and longer document. Certain collective agreements contain “cross-over clauses”, by which the terms and conditions of other documents are incorporated by reference when certain conditions occur.

31Paragraph 3(a), while it is not worded identically to the “cross-over clauses” that the Board has examined in previous cases (for example, CDC Contracting, [1982] OLRB Rep. November 1589 and Frank Plastina Investments Limited, [1986] OLRB Rep. June 720) serves, in our view, the same purpose and effect in this collective agreement. The rationale for giving effect to cross-over clauses is explained in Frank Plastina Investments Limited, supra, as:

14. As we have already mentioned, the possibility that a contractor might expand from his usual area of operations into another segment of the construction industry is explicitly recognized by the so-called “cross-over clause” appearing as Article 10.04 of the “Concrete & Drain” collective agreement. If a concrete and drain contractor performs some other kind of work, covered by the union’s other collective agreements, he is automatically “plugged in” to those agreements and must apply their terms. The agreements incorporated by reference are: “the roads agreement”, “the sewer and watermain agreement”, “the heavy engineering agreement”, “the [concrete] forming agreement”, “the apartment builders agreement”, “the utilities agreement”, “the house basements agreement”, “the house builders agreement”, and “the residential housing carpentry agreement”. In all of these areas of the construction industry, unskilled and semi-skilled labourers are typically represented by the applicant, and the cross-over clause ensures that whenever an employer needs labourers he must hire the applicant’s members.

However, as the Board said in one unreported case, in none of the “cross-over clause” cases did the wording of those clauses have the effect of creating separate bargaining rights under another collective agreement:

16. None of the other decisions relied upon by the Carpenters support a different finding. In fact, they reinforce the notion that the appeal of cross-over clauses for unions is that they can bring construction work in various sectors under one collective agreement. This may be useful, for instance, where it is difficult to distinguish where one type of work starts and the other leaves off, or where there is one crew which does several types of work. In none of those cases has the Board found the effect of a cross-over clause in one agreement to be the creation of separate bargaining rights under another agreement. (Construction Gasperino Di Iorio Inc., unreported, October 27, 1995, Board File No. 0488-95-R.)

Indeed, Labourers Local 183 specifically resisted this interpretation of one cross-over clause in an accreditation application: The Residential Low Rise Forming Contractors Association of Metropolitan Toronto and Vicinity, [1995] OLRB Rep. Dec. 1471.

32To be clear, the collective agreement language in those cases is not identical to the collective agreement language in this case. Our interpretation of the Memorandum of Agreement rests on the words it contains in their plain, ordinary and grammatical meaning. However, the language in this collective agreement, when compared to other cross-over clauses and “pick-up agreements”, is much closer to the well established practice of incorporating certain terms and conditions of employment from other collective agreements by reference to them, than it is to voluntary recognition agreements which create independent bargaining rights.

33Although nothing substantive turns on this, we note that the heading of the agreement is “ICI Pick-Up Agreement and non-ICI Coverage for Local Union Area”. Again headings are of limited value in interpreting a collective agreement, much as paragraph numbers are. However, it is worth noting that in the ICI sector the Memorandum of Agreement is described as a “pick-up” agreement and the word used for non-ICI work is simply “coverage”.

34Since the parties made no argument about the effect of certain accreditation orders issued recently by this Board, we have not dealt with them in this decision.

Conclusion

35To sum up, there was a subsisting and valid collective agreement between Tyger and the OPDC with the term of 22 August 1998 to April 30, 2001. That collective agreement is the document entered as Exhibit 7. For the purposes of these applications, the bargaining unit is that set out in paragraph 13, above. By virtue of paragraph 2, the Memorandum of Agreement incorporates the terms and conditions of the Provincial Collective Agreements. By virtue of paragraph 3, it incorporates the terms and conditions of certain as yet to be defined collective agreements in Board Areas 8 and 18.

36To respond to some of the arguments made by counsel about the Formwork Agreement, and to provide some guidance with respect to dealing with other issues, the Board wishes to indicate what it has not decided. With respect to the employment of labourers by Tyger on the Charlotte Street site, the Board has come to no conclusions about which terms and conditions of employment were incorporated into this collective agreement, whether they were violated, or, if they were, the extent of any such violation.

37We have found that the effect of the collective agreement is to incorporate some terms and conditions of employment found elsewhere. It is true that the document is not a candidate for inclusion in Fowler’s Modern English Usage. On the other hand, the typical commercial “building contract” is notorious for a lack of clarity and completeness. In the absence of any other facts (and we have no other facts at this point in the case) the parties are bound by the words in the documents they execute. The reference to work in the non-ICI sector is sufficiently highlighted that even a cursory reading would bring it to a reader’s attention. If the language of paragraph 3(a) or 3(b) raises questions in the minds of an employer (as well it might), there is some responsibility on the party executing the document to inquire as to its meaning, or to seek advice from those with the expertise to give it.

38Having said that, the application of paragraph 3(a) and 3(b) is unclear at this point. If Tyger had employed non-union labourers, the Board would have little sympathy. Tyger did not. It employed members of Labourers Local 506 arguably (but perhaps not intentionally) pursuant to paragraph 3(b) of this agreement, or perhaps Article 1.04 of the Provincial Collective Agreement. The OPDC argued that paragraph 3(a) was the appropriate article to apply, and that the Formwork Agreement was the only possible agreement which could be described as the collective agreement “… applicable in the locality of the project for the class and character of about said work”. The Board is struck by the following preliminary considerations.

39On the one hand, it is odd to find a principal of a contractor which has been engaged in concrete forming for the past ten years (if that submission from counsel is correct) in the Greater Toronto Area who is not aware of the general differences between Labourers Local 183 and Labourers Local 506. On the other hand, article 3(a), on which the OPDC relies, is patently ambiguous. The definition of a patent ambiguity is found in Leitch Gold Mines Limited et al. v. Texas Gulf Sulphur Inc. 1968 CanLII 405 (ON HCJ), [1969] 1 O.R. 469. This agreement is patently ambiguous because it cannot be interpreted simply by reading the document and applying it to the facts of this project. One must have reference to some other document which contains the terms and conditions of employment.

40The question is, which one? If one were to look only at the collective agreements which were filed by the parties, it does seem possible to construct an argument that the Formwork Agreement applies more clearly than the MTABA Agreement or any other agreement with Local 183, although that too requires reference to the extrinsic documents referred to in paragraphs 17.01(a) and 17.02 of the Formwork Agreement. However, the Formwork Agreement Appendix D(1) (applicable to Local 183 and presumably the one which the OPDC would seek to apply in this case) contains the following language with reference to the subcontracting provisions:

Should an Employer sublet any portion of the concrete construction work, the Employer shall sublet all phases of such construction work at the project to the same formwork subcontractor who was in contractual relations with the Union in recognition of the benefits derived from the employment of such contractors of composite, multi-skills crews who perform all phases of the concrete forming construction work save and except for the following … [not here relevant].

This is hardly crucial to the structure of the agreement, but it does suggest that the application of this agreement to the “class and the character of this project” may not be straightforward when the OPDC represents only certain labourers in a typical mixed trades context.

41The determination of which terms and conditions are applicable to construction labourers is not really before the Board at this point, nor is it relevant to the issue the parties put before us. It may or may not be relevant only to the section 133 referral. There clearly may be issues of interpretation of the collective agreement, questions of whether there has been a breach or one which gives rise to any liability, questions of estoppel, or other issues. At this point, the Board can only say that the terms and conditions of employment incorporated into the collective agreement are the terms and conditions of some other collective agreement binding on the affiliates of the OPDC. However, there is no question that the OPDC holds bargaining rights for construction labourers in the bargaining unit described above.

42The parties are directed to consult with each other with respect to which issues they wish to deal with next, the number of days required to do so, and to advise the Board.

43We are seized of these applications.

“David A. McKee ”

for the Board