The Employees of Jan Peters Trucking and Excavating v. International Union of Operating Engineers, Local 793, 1980 CanLII 974

[1980] OLRB Rep. May 714

2338-79-R The Employees of Jan Peters Trucking and Excavating, Applicant, v. International Union of Operating Engineers, Local 793, Respondent, v. Jan Peters Ltd., Intervener.

BEFORE: D. E. Franks, Vice-Chairman, and Board Members C. A. Ballentine and J. D. Bell.

APPEARANCES: Robert A. Woodrow for the applicant; J. Redshaw and G. McLeod for the respondent; no one appearing for the intervener.

DECISION OF THE BOARD; May 13,1980

2. This is an application for a declaration terminating bargaining rights pursuant to section 49 of The Labour Relations Act. In the application the applicant employees have de­scribed as the unit of employees for which they are seeking the declaration as follows:

"Engaged in operating excavating equipment, shovels, bulldozers and simi­lar equipment used in the excavating of Industrial, Commercial and Institu­tional building sites. Work carried out is usually within the Regional Munici­pality of Waterloo and occasionally in the cities of Guelph, Stratford and Woodstock."

The respondent in this matter has filed a copy of a collective agreement dated November 13, 1978 between Jan Peters Limited and the International Union of Operating Engineers, Local 793. The recognition provision of that collective agreement is as follows:

"Article I - RECOGNITION

1.1 The Employer recognizes the Union as the exclusive bargaining agent for all employees of the Employer covered by the classifications set out in this Agreement, save and except non-working foreman and persons above that rank, working in the Counties of Wellington and Waterloo. In areas other than the above counties, wage agreements for all con­struction on and off site, will apply."

3. The respondent's position is that conciliation was applied for under the "Local agreement" on December 20, 1979, and on January 16, 1980 a conciliation officer was ap­pointed. Subsequently, a "No Board" letter was issued with respect to the "Local agree­ment". With respect to the provincial agreement which terminates on April 30th, a concilia­tion officer was appointed on March 3, 1980. The respondent objects to the notion of an application for termination of bargaining rights relating to a sector and argues that both agreements apply in this matter and that this application is untimely with respect to both agreements. The present application was mailed registered on March 12, 1980. Clearly, with respect to the Local agreement, such an application would be untimely being after the ap­pointment of a conciliation officer. However, with respect to the provincial agreement relat­ing to the industrial, commercial and institutional sector of the construction industry, the application is clearly timely, being within the last two months of the provincial agreement. Although the collective agreement filed in this matter does not make reference to any sec­tor, clearly the bargaining rights held by the union with respect to the intervener employer tie the employer into the provincial agreement under The Labour Relations Act for the in­dustrial, commercial and institutional sector. That agreement arises by operation of law rather than as a result of any specific agreement between the employer and the respondent trade union. The effect of the amendment of The Labour Relations Act in 8.0. 1977, c. 31 was to create a specific bargaining relationship between the respondent trade union and the employer for the industrial, commercial and institutional sector (see section 132(4)). For that sector, the relationship is that of the "provincial agreement" as defined by section 125(e). With respect to any other sector in the construction industry, the parties are at lib­erty (subject to any accreditation rights) to create a specific bargaining relationship. Thus~, the employer in this case is subject to two separate bargaining relationships with the respon­dent. As noted above, this application was made with respect to employees in the industrial, commercial and institutional sector of the construction industry. Notwithstanding the object by the respondent trade union to termination of bargaining rights in one sector, it is clear that this application is timely only with respect to that sector. In this regard the Board, in previous cases, has dealt with bargaining rights in one sector only. See, for instance, Malen Steel & Salvage Company Limited, [1978] OLRB Rep. May 435, where the Board ordered a vote of employees within the industrial, commercial and institutional sector of the construc­tion industry in a displacement certification case upon a finding that the application for cer­tification was timely only for the employees employed in the industrial, commercial and in­stitutional sector of a multi-sector collective agreement. Therefore, notwithstanding the objection of the respondent, there are no grounds for refusing to proceed with this applica­tion.

4. In their application, the applicant employees have referred to a geographic area of the Regional Municipality of Waterloo and the Cities of Guelph, Stratford and Wood-stock. The geographic area in the collective agreement filed by the respondent trade union is for the Counties of Wellington and Waterloo. Although this application was made on March 12, 1980, the effective date of any declaration made on March 12, 1980, the effective date of any declaration made by the Board in this case would be the date of the final decision in this matter. We must therefore take into account the effect of the recent amendment to The La­bour Relations Act enacted as Bill 204, S.0. 1979 c. 113. That amendment takes effect on May 1, 1980 and contains the following provision:

"1. Section 125 of The Labour Relations Act, being chapter 232 of the Re­vised Statutes of Ontario, 1970, as enacted by the Statutes of Ontario, 1977, chapter 31, section 3, is amended by adding thereto the following subsection:

(2) Where an employer is represented by a designated or ac­credited employer bargaining agency, the employer shall be deemed to have recognized all of the affiliated bargaining agents represented by a designated or certified employee bargaining agency that bargains with the employer bargaining agency as the bargaining agents for the pur­pose of collective bargaining in their respective geographic jurisdictions in respect of the employees of the employer employed in the industrial, commercial or institutional sector of the construction industry referred to in clause e of section 106, except those employees for whom a trade union other than one of the affiliated bargaining agents holds bargain­ing rights."

The effect of this provision is to extend by operation of law recognition of the respondent trade union from the Counties of Waterloo and Wellington to the whole of the Province of Ontario, that is, the geographic jurisdiction of Local 793, but only for bargaining rights in the industrial, commercial and institutional sector of the construction industry. Since the bargaining unit in the provincial agreement affecting the employer in this case has been modified by operation of law, we are of the view that the correct bargaining unit for termina­tion purposes in this application is the bargaining unit as amended by section 125(2). To sug­gest otherwise would lead to an untenable position. On May 1st the bargaining rights of the respondent became province-wide for the industrial, commercial and institutional sector of the construction industry. If this Board were to terminate bargaining rights for the Counties of Waterloo and Wellington, the bargaining rights would continue to exist for the remainder of the province and then the new subsection 2 of section 125 would deem those bargaining rights to extend recognition back into the Counties of Waterloo and Wellington. Clearly such a result would be to render this application meaningless. The applicant employees in this matter filed a petition signed by nine persons. The intervener employer filed lists of em­ployees in Schedules "A" and "C". The Schedule "A" lists the names of the two employees who originated and circulated the petition. The Schedule "C" lists the names of nine other employees, all of whom had been laid off on or before February 8, 1980. Further, the layoff was for an indefinite period of time and apparently none had returned to work since this ap­plication was made. Accordingly, those on Schedule "C" were not considered for the pur­poses of the count in this application.

5. Both employees on the list of employees gave evidence as to the origination, prep­aration and circulation of their petition. In the course of giving evidence, one of the employ­ees indicated that within the thirty days prior to the making of the application he had worked on both residential and commercial job sites. The other employee, however, was unable to supply the Board with any detailed evidence concerning his employment during this period.

6. The list filed in the present case related to the Counties of Waterloo and Welling­ton and the Board hearing was conducted on the basis of the situation with respect to those two Counties. Since we are changing the scope of this application to include the whole of the province, the parties will be given an additional fifteen days in which to make representa­tions concerning any amendment to the list of employees filed in this matter.

7. In the event that there are no other employees of the employer in the industrial, commercial and institutional sector of the construction industry, the Board is satisfied on the basis of all the evidence before it that not less than forty-five per cent of the employees of Jan Peters Ltd. in the bargaining unit, at the time the application was made, have voluntar­ily signified in writing that they no longer wish to be represented by the respondent trade union as of March 26, 1980, 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 purpose of ascertaining the number of persons who have voluntarily signified in writ­ing that they no longer wish to be represented by the respondent union under section 49(3) of the Act.

8. The Board directs that a representation vote be taken of the employees of Jan Pe­ter Ltd. Those eligible to vote are all employees employed in the industrial, commercial and institutional sector engaged in the operation of cranes, shovels, bulldozers and similar equipment and those primarily engaged in the maintaining and repairing of such equipment in the Province of Ontario, save and except non-working foremen and persons above the rank of non-working foreman, on the date hereof who do not voluntarily terminate their employment or who are not discharged for cause between the date hereof and the date the vote is taken.

9. Voters will be asked to indicate whether or not they wish to be represented by the respondent in their employment relations with Jan Peters Ltd.

10. The matter is referred to the Registrar.