United Brotherhood of Carpenters and Joiners of America v. Colonist Homes Ltd., 1980 CanLII 951

Ontario Labour Relations Board

[1980] OLRB Rep. December 1729

0269-80-R United Brotherhood of Carpenters and Joiners of America, Applicant, v. Colonist Homes Ltd., Respondent, v. Group of Employees, Objectors

BEFORE: Ian C. A. Springate, Vice-Chairman, and Board Members J. A. Ronson and M. Ross.

APPEARANCES: J. J. Nyman for the Applicant; no one for the Respondent or group of employees.

DECISION OF IAN C. A. SPRINGATE, VICE-CHAIRMAN AND BOARD MEMBER M. ROSS; December 31, 1980

1. In this application for certification the applicant filed four certificates of member­ship. The certificates are signed by the members and indicate that monthly dues of $24.00 have been paid for at least one month within the six month period immediately preceding the terminal date of the application. The certificates are checked and certified correct by an officer of the applicant. The applicant also filed a duly completed Form 54, Declaration Concerning Membership Documents, and Construction Industry.

2. The respondent filed a reply, but no list of employees. However, on the basis of the report of a Labour Relations Officer appointed in this matter, it appears that on the applica­tion date the respondent employed the following employees, namely:

a) five carpenters engaged in residential construction in Grey County:

b) four persons engaged in residential construction outside of Grey County;

c) six persons performing work outside of the construction industry;

d) one person who divided his time between a residential building project

outside of Grey County and certain non-construction work.

3. We find that this is an application for certification within the meaning of section 108 of The Labour Relations Act. We further find that the applicant is a trade union within the meaning of section l(l)(n) of the Act and is an affiliated bargaining agent of a designated employee bargaining agency. Pursuant to the designation issued by the Minister under section 127(1) of the Act on April 10, 1980, the designated employee bargaining agency is the United Brotherhood of Carpenters and Joiners of America and the Ontario Provincial Council of the United Brotherhood of Carpenters and Joiners of America.

4. The applicant has requested that the bargaining unit be described in terms of "all carpenters and carpenters' apprentices in the employ of the respondent in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and all carpenters and carpenters' apprentices in the employ of the respondent in all other sectors of the construction industry in the County of Grey". The applicant contends that this is an appropriate description in light of the provisions of section 131a of the Act. Section 131 a states as follows:

(1) An application for certification as bargaining agent which relates to the industrial, commercial and institutional sector of the construction industry referred to in clause e of section 106 shall be brought by either, on behalf of all affiliated bargaining agents of the employee bargaining agency and the unit of employees shall include all employees who would be bound by a provincial agreement together with all other employees in at least one appropriate geographic area unless bargaining rights for such geographic area have already been acquired under subsection 3 or by voluntary recognition.

(a) an employee bargaining agency; or

(b) one or more affiliated bargaining agents of the employee bar­gaining agency,

(2) If on the taking of a representation vote more than 50 per cent of the ballots cast are cast in favour of the trade unions on whose behalf the application is brought, or, if the Board is satisfied that more than 55 per cent of the employees in the bargaining unit are members of the trade unions on whose behalf the application is brought, the Board shall certify the trade unions as the bargaining agent of the employees in the bargaining unit and in so doing shall issue a certificate confined to the industrial, commercial and institutional sector and issue another certifi­cate in relation to all other sectors in the appropriate geographic area or areas.

(3) Notwithstanding subsection I of section 108, a trade union represented by an employee bargaining agency may bring an application for certification in relation to a unit of employees employed in all sectors of a geographic area other than the industrial, commercial and institutional sector and the unit shall be deemed to be a unit of employees appropriate for collective bargaining.

5. As far as the applicant is concerned, this is an application for certification "which relates to the industrial, commercial and institutional sector" even though the respondent employed no employees in this sector on the date of the making of this application. In support of this position, the applicant filed a written submission which states, in part, as follows:

It is the position and the submission of the Applicant that the determination of whether an application for certification "relates to the industrial, commercial and institutional sector of the construction industry" and so falls within the provisions of Section 131a(I) of the Act or whether an application for certification "relates to all sectors of a geographic area other than the industrial, commercial and institutional sector of the construction industry" and so falls within the provisions of Section 131 a(3) of the Act is the exclusive function of the Applicant trade union. In this regard, the Applicant trade union may determine that the application should be treated as falling within Section 131 a( 1) of the Act or as falling within Section 131a(3) of the Act, or may decide that the application should be treated as falling within section 131a(l) of the Act and, in the alternative, Section 131a(3).

It is submitted that were the Board to hold that it and not the Appli­cant trade union is to determine whether the application relates to the industrial, commercial and institutional sector or to all other sectors, i.e., whether the application should be treated as falling within Section 131 a( I) or Section 131 a(3) of the Act, then certain of the fundamental objects and purposes of Bill 73 will have been defeated. Such an inter­pretation, it is submitted, would require the Board at the very outset of every certification proceeding to ascertain which sectors the employees of the Respondent subject to the application were working within on the application date.

Bill 73 as the Board is well aware followed from recommendations contained in a Report to the Minister of Labour prepared and submitted by Mr. George W. Adams. Chairman Adams had been specifically appointed and requested by the Minister in early 1980 to inquire into various concerns related to the implementations and administration of Bill 204 raised by the Toronto-Central Ontario Building and Construc­tion Trades Council. Included among the concerns voiced by the Council were a number of issues of a technical nature which related specifically to certification applications and the effects thereof, of the introduction of the concept of sector for the first time into certification proceedings. From the Council's perspective, Bill 204 as worded created the very distinct possibility that a trade union might acquire fewer bargaining rights for a geographic area in a certification proceeding than it would have acquired prior to its enactment. Just as importantly, the introduction of the sector concept into certification applications was regarded as creating a significant potential for delay in the certification process, a concern which had caused the Board in the past to consistently reject a sector approach to certification proceedings.

In recognition of the validity of these concerns, Chairman Adams made certain recommendations which were incorporated into the provisions of Bill 73. In essence, Bill 73 was designated in part to ensure:

(a) that as a result of the extension of bargaining rights in the industrial, commercial and institutional sector, a trade union in acquiring bargaining rights through the certification process would not find itself in a position where it would acquire fewer bargaining rights than it would have acquired prior to May 1, 1980.

(b) that the need for defining and determining sectors in certifi­cation proceedings would be reduced generally, and moreover, completely eliminated where "the employer only employs employees in one geographic area."

The Officer's Report establishes that on the date of application, the Respondent did not employ any employees in the I.C.I. sector outside of the County of Grey. Even if the Applicant were to concede that the five employees employed by the Respondent in County of Grey on the application date were employed in a sector other than the I.C.I. sector, the Applicant maintains that it is entitled to be certified for the unit described in Section 13 1 a( I) of the Act and entitled to the two certificates provided for in Section 131 a(2) of the Act. In other words, in order for an application to relate to "the industrial, commercial and institutional sector of the construction industry" there is no requirement upon the Applicant to demonstrate to the Board or for the Board to find that the Respondent as of the Application date had one or more employees employed in the I.C.I. sector.

In this regard, we again draw to the Board's attention the clear intent of Bill 73 as expressed in Chairman Adams' report to the Minister. Specifically as noted above, Chairman Adams stated on page 28 of his Report that the proposed amendments to Bill 204 set out in the preceding two pages of the Report would eliminate the necessity of the Board making sector determinations where the employer employs employees in only one geographic area. Accordingly, as we understand those comments, it was clearly intended that Section 131 a( I) of the Act would set out an appropriate unit where the employer operated in a single geographic area regardless of which sector or sectors the employer was then working within. Therefore, it was clearly intended that Section 131a(l) of the Act would set out an appropriate unit even where the employer operating in a single geographic area did not employ any employees in the ICI. sector. Accordingly, whether an application "relates to the industrial, commercial and institutional sector of the construction industry" as those words are used in Section 131a(l) is not contingent upon the existence of one or more employees working in that sector.

While it is true that comments made by Chairman Adams alluded to above deal with a single geographic area employer, the Applicant submits that there are no valid labour relations reasons militating against their applicability in a situation where the employer operates in more than one geographic area in sectors other than the I.C.I. sector. If Section 131 a( I) of the Act applies to a single geographic area employer regardless of whether it has employees working in the I.C.I. sector, then surely the same holds true in the case of a multi-geographic area employer. The language of Section 131a(l) does not draw a distinction between single and multi-geographic area employers. Moreover, if the Applicant is certified for a unit described by reference to Section 131a(l) it does not acquire any bargaining rights for those employees employed outside of the County of Grey in sectors other than the I.C.I. sector.

Finally, the Applicant submits that if the Board were to find that the appropriate unit should be described by reference to Section 131 a(3) of the Act, the Applicant would acquire fewer bargaining rights for the County of Grey than it would have acquired prior to the enactment of Bill 204 or Bill 73, a result clearly antithetical to objects of Bill 73.

6. In its reply the respondent proposed that the bargaining unit should be described in terms of carpenters and carpenters' apprentices in the County of Grey without any reference to sector. The respondent did not address itself to the provisions of section 131 a. The respondent also made no response to the submissions of the applicant set out above.

7. Lacking any submissions on this point from the respondent, we are prepared in these proceedings to accept the applicant's contention that for an application for certification to relate to the industrial, commercial and institutional sector under section 131a(l) the application need only be with respect to a bargaining unit described so as to include this sector within its scope, and that it is not necessary that employees actually be working in the sector on the date of the making of the application. In this regard we find persuasive the applicant's contention that the amendments to the Act resulting in the current wording of section 131a were not meant to either result in a trade union acquiring fewer bargaining rights in a Board area than it would have prior to May 1, 1980, or to require that a determination be made in each case as to what sector employees are working in within the relevant Board area.

8. We have also taken into account the Legislative history of section 131 a. As originally enacted (S.O. 1979, c. 113, s. 2) section 131(1) read as follows:

An application for certification as bargaining agent for the employees of an employer employed in the industrial, commercial and institutional sector of the construction industry referred to in clause e of section 106 may only be brought by a designated or certified employee bargaining agency on behalf of all the affiliated bargaining agents it represents, and the unit of employees that is appropriate for collective bargaining shall be those employees who would be bound by a provincial agreement. [emphasis added]

The original wording of this section clearly envisaged applications for certification limited solely to the industrial, commercial and institutional sector in circumstances where the employer actually had employees working in that sector. Subsequent to the release of the Adams Report, section 131a was repealed and the current wording enacted. The current wording requires that a bargaining unit relating to the industrial, commercial and institu­tional sector also encompass all other sectors in an appropriate geographic area unless the bargaining rights for the area have already been acquired. Further, the section no longer requires that the application be for "employees. . . employed in the industrial, commercial and institutional sector", but instead refers to "an application for certification as bargaining agent which relates to the industrial, commercial and institutional sector". In other words, the previous express requirement that there be employees in the industrial, commercial and institutional sector has been dropped. This, in our view, strongly supports the proposition that under the current language where there are no employees working in the industrial, commercial and institutional sector, an application can still relate to that sector provided the scope of the bargaining unit applied for encompasses that as well as other sectors.

9. Having regard to our conclusion set out above, and pursuant to section 131a(l) of the Act, we find that all carpenters and carpenters' apprentices in the employ of the respondent in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and all carpenters and carpenters' apprentices in the employ of the respondent in all other sectors in the County of Grey, save and except non-working foremen and persons above the rank of non-working foreman, constitute a unit of employees of the respondent appropriate for collective bargaining.

10. The bargaining unit set out above encompasses in its scope, as required by the terms of section 131a, all employees who would be bound by a provincial agreement (i.e., all employees in the industrial, commercial and institutional sector) as well as all other employees in a geographic area. In determining whether or not the applicant is entitled to be certified for such a bargaining unit, section 7 of the Act mandates that we assess the applicant's membership support among employees in the bargaining unit at the time the application was made. At the time the application was made, there were five employees in the bargaining unit, namely the five carpenters engaged in residential construction in Grey County. The applicant filed membership evidence on behalf of four of these employees.

11. In these circumstances, we are satisfied 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 May 16, 1980, the terminal date fixed for this application and the date which we determine, under section 92(2)6) of The Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act.

12 There was filed a statement of desire in opposition to the application. However, none of the individuals signing the statement were employed in the bargaining unit on the date of the making of the application, and accordingly the statement cannot affect the applicant's right to certification.

13. Section 13 1 a(2) of the Act, which states in part as follows, provides for the issuance of more than one certificate if the applicant has the requisite membership support:

.... the Board shall certify the trade unions as the bargaining agent of the employees in the bargaining unit and in so doing shall issue a certificate confined to the industrial, commercial and institutional sector and issue another certificate in relation to all other sectors in the appropriate geographic area or areas. [emphasis added]

Therefore, pursuant to section 131a(2) of the Act, a certificate will issue to the applicant affiliated bargaining agent on its own behalf and on behalf of all other affiliated bargaining agents of the employee bargaining agency named in paragraph 3 above in respect of all carpenters and carpenters' apprentices in the employ of the respondent in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario, save and except non-working foremen and persons above the rank of non-working foreman.

14. Further, pursuant to section 131a(2) of the Act, a certificate will issue to the applicant trade union in respect of all carpenters and carpenters' apprentices in the employ of the respondent in the County of Grey, excluding the industrial, commercial and institutional sector, save and except non-working foremen and persons above the rank of non-working foreman.

DECISION OF BOARD MEMBER JAMES A. RONSON:

1. Since there are no submissions by the respondent company in opposition to the cogent written submissions of the applicant union I will only say that I disagree with the reasoning of the majority that would allow a union to ask for a certificate for the industrial, commercial and institutional sector of the construction industry (the "I.C.I. sector") when there are no employees working in that sector. However, accepting (without agreeing) that the majority decision is correct in its interpretation of section 131 a(1) of the Act and the union's entitlement to an I.C.I. certificate for the asking, there is the further question of what membership evidence the Board has to take into account to satisfy itself as required by section 131a(2).

2. The applicant seeks certification of (1) all carpenters and carpenters' apprentices in the employ of the respondent "who would be bound by a provincial agreement" (section 131a(l)) i.e., the I.C.I. sector of the construction industry; and (2) all carpenters and carpenters' apprentices in the employ of the respondent in Grey County with respect to all other sectors of the construction industry.

3. It would appear that, at the date of the application, there were no carpenters employed by the respondent in the I.C.I. sector of the construction industry. There were carpenters employed by the respondent in the residential sector of the construction industry in Grey County and elsewhere in the province. The membership evidence filed by the applicant relates only to those carpenters working in Grey County.

4. Section 131a(l) of the Act reads that: “. . . the unit of employees shall include all employees who would be bound by a provincial agreement together with all other employees in at least one appropriate geographic area" (emphasis added). Section 131a(2) directs the Board to issue two certificates, one confined to the I.C.I. sector and province-wide, and one confined to an appropriate geographic area, but for all other sectors of the construction industry. In my opinion, before the Board can issue a provincial certificate in the I.C.I. sector to the applicant, we must take into account the desire and intention of all carpenters in the respondent's employ in the construction industry. These are the employees "who would be bound" by a provincial agreement. These are the employees in the bargaining unit confined to the I.C.I. sector by separate certificate. As a result, those carpenters working outside Grey County must be given notice of, and be allowed to participate in the certification process.

5. At the very least, I would direct that the necessary administrative steps be taken to allow those carpenters and carpenters' apprentices working for the respondent outside Grey County to indicate their desire as to whether or not they wish the applicant to act as their bargaining agent with respect to work in the I.C.I. sector of the construction industry.