[1980] OLRB Rep. October 1386
1967-77-R Labourers' International Union of North America, Local 527, Applicant, v. Duron Ottawa Ltd., Respondent, v. Operative Plasterers' and Cement Masons' International Association of the United States and Canada, Local Union 124, Ottawa-Hull, Intervener.
BEFORE: R. A. Furness, Vice-Chairman, and Board Members H. J. F. Ade and O. Hodges.
APPEARANCES: S. B. D. Wahl, B. Carrozzi and P. Kent for the applicant; Everett Colton for the respondent; Denis Power and Maurice Savage for the intervener.
DECISION OF THE BOARD; October 21, 1980
In a letter dated August 11, 1980, the intervener has raised an issue with respect to the jurisdiction of the Board to entertain this application for certification. This issue has been raised more than two years after the filing date of this application. The Board ruled during one of the many days of hearing of this application on August 13, 1980 that it would entertain the representations of the parties on the issue raised by the intervener.
In its letter dated August 11, 1980, the intervener has stated:
On April 27th, 1978, the Minister of Labour, pursuant to The Labour Relations Act designated Employer and Employee Bargaining Agencies. The employer designation authorized a council of associations as employer bargaining agent to represent all employers whose employees were represented by a number of bargaining agents, one of which was Local 124. It is submitted that Local 124, at the relevant time, was party to collective agreements with both above named Respondent employers.
The original employee designation dated April 27th, 1978, authorized the International Cement Masons union and the Ontario Provincial Conference as employee bargaining agent to represent all journeymen and apprentice cement masons represented by a list of bargaining agents, including Local 124. This authorized bargaining with the designated employer bargaining agent which in turn represented the two above mentioned employers.
Pursuant to such designations, provincial collective agreements were entered into. Xerox copies of the cover pages are enclosed so as to identify the parties.
The first provincial agreement was effective from October 2nd, 1978 to April 30th, 1980. The current agreement runs from May 1st, 1980 to April 30th, 1982.
These designations were, of course, made pursuant to Bill 22 known as The Labour Relations Amendment Act, 1977, which received third reading on October 25th, 1977. Bill 22, as you know, involved some rather sweeping changes to labour relations in the construction industry. It was, therefore, necessary to pass a section declaring that the new provisions prevailed over other possibly contradictory provisions of the Act. See Section 126.
It is submitted that on April 27th, 1978, at the latest, the Board lacked jurisdiction to deal with applications in the Ontario construction industry except as contemplated in Bill 22.
Section 125(2) of the Act, as amended, provides that employers represented by a designated employer bargaining agency are deemed to have recognized all affiliated bargaining agencies represented by a designated employees bargaining agency in their respective geographic jurisdictions ''except those employees for whom a trade union other than one of the affiliated bargaining agents holds bargaining rights." The applicant herein is not such a bargaining agent. It should be noted that the applicant herein did not request a reference under Section 127(4).
Reference is also made to Section 130 which establishes that the bargaining rights of Local 124 rested [sic] in the designated employee bargaining agencies. The designated bargaining agencies have not been made parties to these proceedings. Local 527 of the Labourers lacked status to launch these applications.
Section 132(3) establishes that provincial agreements entered into after Bill 22 are binding. The two provincial agreements above referred to were and are, therefore, binding. To certify the applicant in these proceedings would be contrary to the extent and purpose of the Act.
Local 124 submits that, should these applications not be forthwith dismissed by the Board at this time, the designated bargaining agencies should be given notice of the proceedings.
At the hearing the Board entertained the representations of the parties. In our opinion, the intervener's argument fails to distinguish between the acquisition of bargaining rights and the organization of bargaining rights at the provincial level for the purpose of collective bargaining. The vesting of bargaining rights of an affiliated bargaining agent in an employee bargaining agency by virtue of section 130 of the Act is only for the purpose of conducting bargaining. The effect of sections 132(2) and 132(3) has been considered by the Board in the Riverside Roofing Limited case, [1978] OLRB Rep. June 567 and the Malen Steel & Salvage Company Limited, case [1978] OLRB Rep. May 435. In those cases the Board concluded that section 132 did not override those sections of the Act which provides for the selection by employees of a bargaining agent. There is nothing in the provisions of Bill 22 which prevails over the provisions of section 5. The Board finds that this application is timely under the Act and that the Board has jurisdiction to entertain this application.
At the hearing on August 13, 1980, the intervener informed the Board that it was not prepared to call evidence. In a decision dated March 5, 1980, the Board, in an effort to give the intervener every opportunity to establish its allegations, directed the intervener to file its allegations with the Board and directed the Registrar to serve the parties named by the intervener with notice of this application and the intervener's allegations and to list this application for continuation of hearing on all outstanding issues. The intervener did not comply with this direction.
Having regard to the evidence and representations before it, the Board finds that the intervener does not have bargaining rights for any of the employees who are affected by this application. The Board further finds that the applicant does not have bargaining rights for the employees who are affected by this application. The intervener's allegation that the Board should not certify the applicant because of the provisions of section 12 of the Act is dismissed. The Board also dismisses the intervener's allegations with respect to section 61.
In this application for certification the applicant filed six combination applications for membership and receipts. The combination applications for membership are signed by the employees and the receipts are countersigned and indicate that a payment of $1.00 has been made within six month period immediately preceding the terminal date of the application. The money was collected by more than one person. The applicant also filed one certificate of membership. The certificate is signed by the member and indicates that monthly dues of $8.00 have been paid for at least one month within the six month period immediately preceding the terminal date of the application. The certificate is checked and certified correct by an officer of the applicant. The applicant also filed a duly completed Form 54, Declaration Concerning Membership Documents, Construction Industry.
The Board further finds that the applicant is a trade union within the meaning of section 1(1)(n) of The Labour Relations Act.
The Board further finds that this is an application for certification within the meaning of section 108 of The Labour Relations Act.
Having regard to the provisions of section 6(1) of The Labour Relations Act, the Board further finds that all cement masons, cement masons' apprentices and construction labourers in the employ of the respondent in the Regional Municipality of Ottawa-Carleton and the United Counties of Prescott and Russell, save and except non-working foremen and persons above the rank of nonworking foreman, constitute a unit of employees of the respondent appropriate for collective bargaining.
The applicant filed evidence of membership of the type referred to in paragraph six on behalf of four of the six employees who were at work and included in the bargaining unit on the date of the making of this application and who comprise the list of employees for the purpose of the count.
The Board is satisfied on the basis of all the evidence before it that more than fifty-five per cent of the employees of the respondent in the bargaining unit, at the time the application was made, were members of the applicant on April4, 1978, the terminal date fixed for this application and the date which the Board determines, under section 92(2)(j) of The Labour Relations Act, to be the time for the purposes of ascertaining membership under section 7(1) of the said Act.
A certificate will issue to the applicant.