0348-01-R Morgan Randell, Applicant v. Labourers’ International Union of North America Local 183, Responding Party v. Main Rehabilitation Co. Ltd., Intervenor.

0350-01-R Nick Severino, Applicant v. Labourers’ International Union of North America Local 183, Responding Party v. Main Rehabilitation Co. Ltd., Intervenor.

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

APPEARANCES: Lee Shouldice, Jason Beeho, Nick Severino, Morgan Randell and Jennifer McCormick for the applicant; Mark J. Lewis and Jack Oliveira for the responding party; Michael Kuegle for the intervenor.

DECISION OF THE BOARD; August 28, 2001

1. These are applications for the termination of bargaining rights pursuant to section 63 of the Labour Relations Act, 1995 S.O. 1995 ch. 1 (the "Act"). By agreement of the parties, Morgan Randell is substituted for Nick Severino as applicant in Board File 0348-01-R. Specifically, the applicants seek to terminate the bargaining rights of Labourers International Union of North America Local 183 (the "Union") in so far as those bargaining rights make two collective agreements binding on the intervenor, Main Rehabilitation Co. Ltd. ("Main"). As will be set more fully below, Main is not bound to any collective agreements as a signatory party. However, the Union has bargaining rights for construction labourers employed by Main, and by the operation of section 137 (4), Main is bound to the collective agreements between the Union and two accredited employer associations. First is the collective agreement between the Heavy Construction Association of Toronto and the Union (the "Heavy Agreement"), which is the subject matter of Board file No. 0350-01-R. The second is a collective agreement between the Greater Toronto Sewer and Watermain Contractors Association and the Union and Teamsters Local 240 (the "Sewer and Watermain Agreement"), which is the subject of Board File No.

0348-01-R.

2. The sole question in these applications is whether there were any employees at work in the bargaining unit on the date the applications were filed. There is no question that there were employees of Main at work on the date of application, although there may be some dispute as to what work was being done by which individuals. The narrow question is whether they were working in the bargaining unit of each collective agreement on the application date. All parties were agreed that if the answer to the question is "no", the applications must be dismissed. If the answer is "yes", there may be a need for further evidence to establish who was doing what work on the application date. For the reasons as set out below the Board finds that there were no employees at work in either bargaining unit on the date of application, and both applications are therefore dismissed.

Facts

3. Certain provisions of the two collective agreements are relevant. The Heavy Agreement contains the following recognition provision:

Article 1

The geographic area covered by this agreement is defined as Area 8, set out by the Ontario Labour Relations Board as follows:

The Municipality of Metropolitan Toronto, the Regional Municipalities of Peel and York, the Towns of Oakville and Halton Hills and that portion of the Town of Milton within the geographic Township of Esquesing, and Trafalgar, and the Towns of Ajax and Pickering in the Regional Municipality of Durham.

ARTICLE 3 – RECOGNITION AND SCOPE

(a) The Association recognizes the Labourers’ International Union of North America, Local Union 183, as the sole exclusive bargaining agent for all construction employees coming within the jurisdiction of this agreement while working in the Heavy Engineering Sector as defined by Article 1 of this agreement, and as further defined by section (b) of this Article; save and except non-working foremen and persons above the rank of non-working foreman, office and clerical staff, shop and yard employees, engineering staff and security guards. The Union recognizes the Association as accredited bargaining representative for the Heavy Engineering Sector in Ontario Labour Relations Board Area 8 but recognizes that such representation is without liability against the Association for violations of the collective agreement by individual Employers.

(b) It is agreed that this agreement applies to all work falling within the Heavy Engineering Sector in Ontario Labour Relations Board Area 8 performed by members of the bargaining unit including but not limited, to the construction, reconstruction, demolition, construction maintenance, rehabilitation and repair of the following:

It also contains a provision with respect to the "travel payments" to which the parties referred in argument. Article 34 provides as follows:

ARTICLE 34 – TRAVEL ALLOWANCE

34.01 The geographic area of this agreement will be divided into the following zones:

(a) Zone 1 – The area bounded on the east by the west boundary of Markham Road, on the west by the west boundary of the Highway 427, and on the north by the south boundary of Steeles Avenue. No travel expenses will be paid for work done within Zone 1.

(b) Zone 2 – In regard to travelling expense for work outside Zone 1, but within a 50-kilometre radius including the Town of Newmarket, employees will be granted $10.00 per day travelling allowance when company transportation is not supplied. No travelling expenses will be paid to employees whose normal place of residence is in the same township as that in which the job is located.

(c) Zone 3 – In regard to travelling expense in the fringe area, outside the 50-kilometre radius including the Town of Newmarket and up to 100 kilometres, the employee will be paid at the rate of thirty-five cents (35¢) per road kilometre one way, from the Toronto City Hall to the job site. Such payment is in lieu of room and board and is not paid when company transportation to the job is supplied and straight time is paid to the employee.

(d) Room and Board - It is understood that if the Employer requires an employee to be out of town overnight, the Employer will provide suitable room and board for the employee up to maximum of sixty-two dollars ($62.00) per day with no limit.

(e) It is understood and agreed that when an employee is sent out of town by his Employer in the circumstances contemplated by Sections (c) and (d) above, the Employer will maintain the rate of wages, hours of work and fringe benefits provided for in this agreement, including and without limiting the generality of the foregoing, welfare, pension, vacation and statutory holiday pay and training as provided herein.

(f) Where the Employer supplies transportation and where an employee is required by his Employer to report to a yard or assembly point within Toronto before going to a job outside of Toronto, the employee will be paid at straight time while travelling to and from the job in excess of fifteen (15) minutes each way.

4. The corresponding provisions in the Sewer and Watermain Agreement are Articles 2 and 23 which provide as follows:

ARTICLE 2 – RECOGNITION

2.01 The Association on behalf of each of the Employers recognizes the Council as the collective bargaining agent for all employees save and except non-working foremen and persons above the rank of non-working foreman, of the Employers being contractor member companies listed in Schedule “D” hereto and all other Employers of employees on behalf of whom the Association bargains pursuant to its Accreditation Certificates while working in the County of Simcoe and Board Area No. 8 in the Sewer and Watermain Industry including construction, reconstruction, demolition, construction maintenance, rehabilitation and repair of same as per accreditation order save and except cement concrete lining or relining of watermain.

ARTICLE 23 – OUT OF TOWN ALLOWANCE

23.01 In regard to out-of-town allowances, it is understood that if the Employer requires an employee to be out of town overnight, the Employer will provide suitable room and board for the employee up to a maximum of Seventy dollars ($70.00) per day and Three Hundred and Fifty Dollars ($350.00) per week effective May 1st, 1998. It is further understood that on projects located beyond 200 kilometres, out-of-town allowances shall be paid seven (7) days per week.

23.02 In regard to travelling time in the fringe area, beyond the Greater Toronto Free Zone as defined in Article 23.03, up to a radius of 100 kilometres, the employee will be paid at the rate of thirty-three cents (33¢) per road kilometre, one way from the boundary of the free zone. Such payment is in lieu of room and board and is not paid when Company transportation to the job is supplied and straight time to a maximum of one and one-half (1 1/2) hours’ pay a day one way from the boundary of the free zone is paid to the employee.

23.03 Effective May 1st, 1998 the Greater Toronto Free Zone shall consist of the area within the west side of County Line #23, the south side of Highway #9, the east side of 3rd line Oakville or their extensions and including the Town of Newmarket. See Appendix “B” Map (i)

23.04 It is understood that when an employee is sent out of town by his Employer in the circumstances contemplated above, the Employer will maintain the rate of wages, hours of work and all fringe benefits provided for in this Agreement including, and without limiting the generality of the foregoing, welfare, pension, vacation and statutory holiday pay, training, etc., as provided herein.

23.05 Effective May 1st 1998, transportation of employees shall be maintained as per past practice, but no travel allowance will be paid for an employee to report to a yard or assembly point within the Free Zone area before going to a job outside of this Free Zone area.

5. Both applications were filed April 27th 2001. On that date there is no dispute that there were 11 employees of Main working in the town of St. Thomas. St. Thomas is in the County of Elgin which is in Board Area 3.

6. The history of bargaining between Main and the Union is as follows. At some point in 1988 this Board certified the Union has the bargaining agent for all construction labourers employed by Main in the industrial commercial and institutional sector of the construction industry in the Province of Ontario and in all other sectors of the construction industry in Board Area 8. On October 18th, 1988 Main and the Union executed a Memorandum of Agreement which, among other things, provided that Main and the Union "hereby agree that they are bound by all of the terms, conditions, provisions, appendices and schedules… of the collective agreements listed below..." which included the Heavy Agreement and the Sewer and Watermain Agreement. In fact the Heavy Construction Association of Toronto had been accredited as bargaining agent for the relevant employers in 1973. The Metropolitan Toronto Sewer and Watermain Contractors Association was an accredited November 3, 1989. On April 23, 1998 the Union sent Main a Notice to Bargain. The Memorandum of Agreement was not renewed and on July 24, 1998 Main applied for the appointment of a conciliation officer. An officer was appointed by letter dated August 26, 1998 and a "no-Board" report was issued by letter dated October 13, 1998. No collective agreement has been concluded between Main and the Union since that time.

7. Not surprisingly, the main focus of Main's work is in Board Area 8. However on at least 12 occasions between 1990 and the application date, Main performed work in locations in Ontario outside of Board Area 8. On these 12 projects, Main applied the terms and conditions of one or both collective agreements. It paid the wages set out in the collective agreements to employees working on those 12 projects, provided employer contributions to benefit trust funds for hours worked by the employees and deducted and remitted union dues to the Union.

8. On three projects, two in Peterborough in 1992 and 1993 and one in St. Thomas in 2001, the Union issued "clearance slips" to some of its members before they reported for work at the two projects. Counsel for the Union spent some time arguing the difference between a "clearance slip" issued by the Union and a "referral slip" issued by the Union when an employee is referred to employment from a hiring hall list. The distinction is not relevant to the purposes of this decision. Suffice it to say that a clearance slip is issued to an employee who is not referred from a hiring hall under article 5 (b) (i) of the Heavy Agreement. In the Sewer and Watermain Agreement, there is no hiring hall, and all employees are required to apply for a clearance slip from the relevant Union pursuant to article 3.02. The purpose appears to be to ensure that employees are members of the Union before or at the date of commencing to work.

9 It is, however, true that the "clearance slip" is a feature of both collective agreements. The "clearance slip" itself simply states that a particular employee "is a member in good standing of Universal Workers Union Local 183, as of this date and therefore has been given clearance by this Union to commence employment with your company." The project location is given on the slip. The clearance slips filed in this proceeding were issued for project locations in Peterborough in 1992 and 1993 and in St. Thomas in 2001. No evidence was led nor were there submissions made about the presence or absence of clearance slips with respect to any of the other projects outside Board Area 8 on which Main applied the terms of the collective agreements.

Decision

10. Some propositions of law applicable to this issue are not seriously in dispute.

11. First, the mere observance of the terms and conditions of a collective agreement does not, in and of itself, create a collective agreement between the parties, or bind them to one. As the Board said in Ecodyne Limited [1979] OLRB Rep. 629 at paragraph 28:

12. The evidence establishes that when contractors bound by the local Thunder Bay area collective agreements worked on Hydro Projects, they applied the terms of the agreements to their employees notwithstanding the fact that these employees were not included within the scope clause of the agreements. The mere fact that the terms of a collective agreement are applied to a certain work and to certain employees does not, however, mean that the union party to the collective agreement has actual bargaining rights for the employees involved. See: Bechtel Canada Limited, Board File No. 0745-75-R, an unreported decision dated September 3, 1975. In this regard it might be noted that it is not at all uncommon in the construction industry for employers not formally bound to a collective agreement to nevertheless employ union members under the same terms and conditions as set forth in a collective agreement without any intention of thereby conferring bargaining rights on the union. Similarly, trade unions in such circumstances sometimes refrain from applying to the Board to be certified as the legal bargaining agent of the employees involved notwithstanding the fact that the employees are union members.

In connection with that last sentence, the Board notes that the Board area 3 is in the territorial jurisdiction of Labourers International Union of North America Local 1059, which might well take a dim view of any attempt by Local 183 to enter into a collective agreement covering its territory.

12. Second, the accreditation orders in themselves do not create bargaining rights outside the geographic area and sector for which the accreditation order is made. In Elirpa Construction and Materials Limited, [1994] OLRB Rep. 838, the Board said at paras. 21 and 22:

13. As the able arguments of counsel demonstrate, the statute lends some support to both sides of the question before us. Having weighed the submissions carefully, the Board is of the view that the employer’s interpretation of the statutory provisions is the preferable one. We have considered the accreditation scheme as a whole and its place within the construction industry provisions of the Act. It is clear that the legislature intended accreditation orders to be attached to a sector and geographical area, in the interest of more orderly collective bargaining where statutory conditions are met. It is analogous, but not identical, to the scheme in the ICI sector which forms the basis for provincial bargaining in that sector. In considering that scheme, the Board has consistently held that the sectoral lines drawn in the statute govern, unless bargaining rights outside those sectoral lines have been assigned or given by some other means. The Board has made this point in a number of fact situations. See Beckett Elevator, cited above, where the Board found the bargaining rights which flow from the statute did not bring with them, to non-members, the consensual internal grievance process of members. In London Sandblasting & Painting Limited, [1982] OLRB Rep. Sept. 1322, where the Board found that an employer was a member of an organization bargaining consensually beyond the statute’s sectoral designation, it was bound. Where an employer had not become a member or otherwise assigned its bargaining rights to an association, as in Fred Jantz Masonry Construction Company Limited, [1981] OLRB Rep. Sept. 1229, it was only bound to the extent of the statute’s compulsion.

14. We have carefully considered whether the difference in statutory language between the ICI scheme and the accreditation sections applicable to other sectors warrants a different approach. It is true that section 145(a), applicable to the ICI scheme, is clearer in its limiting effect because of the inclusion of the words “but only” which do not appear in the accreditation sections. Nonetheless, sections 127 to 134 read as a whole make it clear that the imposition of rights by law was intended to relate to the sector and geographic area set out in the accreditation order. The wording of section 131(2) which makes the collective agreement entered into by the Association binding upon the employer as if it had entered into it itself is also qualified by the wording “subject to and for the purposes of this Act”. We are persuaded that the purpose of the Act in the accreditation sections was to impose a scheme based on sectoral bargaining, and that it did not contemplate the imposition by operation of law of rights beyond the sectors set out. The practical implication is that, as a non-member, Elirpa is not bound by the agreement made by the Association for other than the geographic area and sector for which it was accredited. Accordingly, it is our finding that Article 15.5 of the sewer and watermain collective agreement is not applicable to Elirpa in the road building sector.

See also Gavigan Contracting Ltd. [1996] OLRB Rep. 405. In this case the accreditation orders are clearly limited to Board Area 8 (the Heavy Agreement) and Board Area 8 and Simcoe County (the Sewer and Watermain Agreement).

13. The applicants do not dispute these general propositions. However they argue that the distinction between cases like Ecodyne Limited and Elirpa Construction and Materials Ltd., supra, and these applications, is that Main and the Union have agreed to a wider extension of the bargaining unit than that set out in scope clauses of the two association collective agreements. The Union does not dispute that parties are legally competent to do that (see for example London Sandblasting & Painting Limited, [1982] OLRB Rep. Sept. 1322). It claims that it has not done so in respect of Main.

14. The applicants assert that Article 34.01 (e) of the Heavy Agreement and Article 23.04 of the Sewer and Watermain Agreement contemplate that the collective agreement will be applied outside Board Area 8 and Simcoe County. That is, the collective agreement contains a provision which extends, in some fashion, the scope of the collective agreement beyond its stated geographic area. The position of the Union is that these two articles should be given a very restricted reading. First, the Union argues that it only provides for maintenance of wages and benefits while working outside the geographic scope of the collective agreement and creates no other rights for the Union or the employees involved. Second, to the extent that it purports to extend the geographic reach of the collective agreement, it is binding only on members of the two associations and those employers who have executed a document binding them to those collective agreements directly. Employers such as Main, which are bound to the agreements only by virtue of section 137 (4) of the Act, are not obliged to comply with this or any other provision of the collective agreement outside the stated geographic scope. Again, the Union relies on Elirpa Construction and Materials Limited, supra.

15. We conclude that the “travel allowance” Articles do not extend the geographic scope of the bargaining unit. The description of the geographic scope of the two collective agreements is quite precise. Both refer to the accreditation orders issued by the Board. The Sewer and Watermain Agreement states that it is binding on "all other Employers of employees on behalf of whom the Association bargains pursuant to its Accreditation Certificates while working in the County of Simcoe and Board Area 8...” The Heavy Agreement recognizes the Union as the "sole and exclusive bargaining agent for all construction employees coming within the jurisdiction of this Agreement while working in the Heavy Engineering Sector as defined by Article 1 of this Agreement...". Article 1 of that agreement defines the geographic area as Board Area 8.

16. Reading the “travel allowance” Articles in context, it is apparent that the obligation to maintain wages extends to certain parts of the geographic area of each collective agreement. That is, the Articles apply to employees who are "sent" by their employer outside the Greater Toronto Free Zone (Sewer and Watermain Agreement) or Zones 1 and 2 (Heavy Agreement), whether or not those locations are still within the geographic scope of the collective agreement or not. We conclude and that these Articles simply confer a wage benefit to certain individuals if they are "sent" by their employer to certain locations beyond a defined radius, whether their destination is inside or outside the geographic area covered by the collective agreements.

17. The applicants do not rely solely on the wording of the collective agreements however. They rely on the conduct of Main and the Union as giving meaning to this phrase in context of their individual relationship. Although it was disputed by the Union, the applicants asserted that the Union had essentially created different agreements with different employers, or alternatively was entitled to do so once it got beyond the scope of the accreditation orders. This agreement is contemplated by Article 34.01(e) and Article 23.04 and, in the applicant's submission, acted upon when Main did work outside the Board Area 8 and Simcoe County. On 12 occasions since 1990, the employer had obtained work outside the geographic area. It had applied the collective agreement to its employees. The Union accepted the dues and remittances sent in respect of those projects. Further, with respect to the St. Thomas project, the Union issued clearance cards to employees first to work in Peterborough and then to work in St. Thomas.

18. These the facts are very thin foundation on which to erect a finding of a settled mutual intention. As the Board said in Ecodyne Limited, supra, there are times when the Union will refrain from certifying an employer which applies a collective agreement and a where the employees are union members, for reasons of its own. The fact that the Union is prepared to facilitate a process by which its members obtain employment, either by a referral or by clearance slips (there is no difference in this case) should not be surprising. Even if one assumed the dispatcher from the Union fully appreciated this legal issue (and he or she may well have done so) the mere fact of the referral to employment or the issuance of a clearance card does not point unequivocally to an intention by the Union to extend the collective agreement beyond its geographic scope. It is simply too ambiguous an act, by itself, to constitute a "representation to [Main] that it was appropriate to apply the collective agreement", as counsel argued. In contrast, a grievance alleging a violation of the collective agreement by Main of the hiring provisions of the collective agreement in respect of a project outside of Board Area 8 and Simcoe County would be an unequivocal representation by the Union.

19. Similarly, accepting dues and remittances (assuming full knowledge of all of the facts and legal issues by a clerk in the benefit administrator's office or any knowledge by a responsible union official, all of which is unlikely), is, by itself, equally consistent with simply accepting the payment of benefits and dues as part of the wages employees agreed to work for.

20. The applicants have applied to terminate the bargaining rights of the Union. Since the 1998 no-board report, the bargaining rights have existed exclusively in the certificate issued in 1988 and arguably in the “terms, conditions and provisions, etc.” of the agreements referred to in the 1988 Memorandum of Agreement to the extent that they created bargaining rights outside of Board Area 8. The effect of section 137 (4) is to bind the parties to these two collective agreements. If the parties had wished to create wider bargaining rights, they would have had to do so by means of a collective agreement, either a separate collective agreement or an addition to the scope of the accredited associations' collective agreements. The Act defines a collective agreement as "an agreement in writing between an employer... and a trade union... that represents employees of the employer ... containing provisions respecting terms or conditions of employment or the rights privileges or duties of the employer". There is no document executed by the parties which constitutes a collective agreement or an amendment or addition to a collective agreement. While the clearance slips and remittances are both the documents "executed" in some sense by the parties, and rationally connected to one another, we cannot find them to be a collective agreement or an extension to a collective agreement. The actual statements in the two documents do not suggest an intention to create or extend contractual rights. The purpose for which they were issued indicates only an intention to waive any objection the Union might have with respect to the employment of 2 of the 11 individuals working in St. Thomas or to pay part of an agreed-upon wage for work on projects in unspecified locations.

21. Counsel for the applicant drew a distinction between section 162 of the Act and sections 137 and 140. Section 162 provides, as counsel correctly pointed out, a much more restrictive regime than that provided for on accreditation. It prohibits parties from the bargaining for or concluding "any collective agreement or other arrangement affecting employees represented by affiliated bargaining agents". Section 140 does not. The applicant argued that the practice of Main and the Union is an "other arrangement". It may well be. In context of section 162, the phrase is used in distinction to a "collective agreement". That is parties are prohibited from executing a collective agreement, or making some other arrangement (a verbal agreement or understanding or an unexecuted memorandum) which is not a collective agreement. In this case in the applicants are not seeking to terminate an "other arrangement". They seek to terminate the bargaining rights of the union as contained in the two collective agreements. If, as counsel argued, the practice of these parties is simply an "other arrangement", it does not fall within the purview of section 63 of the Act.

22. Accordingly, the Board finds that the employees working in this St. Thomas were outside the bargaining unit for which the Union has bargaining rights. Therefore there was no one in either bargaining unit on the date of the application, and these applications are dismissed.

“David A. McKee”

for the Board