[1981] OLRB Rep. November 1697
1392-81-R; 1427-81-R United Brotherhood of Carpenters and Joiners of America Local 785, Applicant, v. Watcon Inc., Respondent, v. Group of Employees, Objectors; Labourers' International Union of North America Local 1081, Applicant, v. Watcon Inc., Respondent, v. Group of Employees, Objectors.
BEFORE: Ian Springate, Vice-Chairman, and Board Members W. Gibson and C. A. Ballentine.
APPEARANCES: In File No. 1392-81-R — Harold F. Calev and Earl Ball for the United Brotherhood of Carpenters and Joiners of America Local 785; Philip J. Wolfenden and Doug Bender for the respondent; Gordon L. Robson for the objectors. No hearing has been held with respect to File No. J427-81-R.
DECISION OF THE BOARD; November 19, 1981
These proceedings are hereby consolidated.
The name of the respondent in both of these matters is amended to read: "Watcon Inc.".
These matters involve two applications for certification filed pursuant to the construction industry provisions of the Labour Relations A ct. File No. 1392-81 -R came on for hearing on October 23, 1981. The applicant and the respondent in File No. 1427-81-R have both consented to the application being disposed of without a hearing, and it appears to the Board that no useful purpose is likely to be served at this stage of the proceedings by holding a hearing. We propose to deal with the two applications separately, and then to discuss certain matters relevant to both applications.
File No. 1392-81-B
The Board finds that United Brotherhood of Carpenters and Joiners of America Local 785 ("Carpenters Local 785") is a trade union within the meaning of section l(l)(p) of the Labour Relations Act and is an affiliated bargaining agent of a designated employee bargaining agency. Pursuant to the designation issued by the Minister under section 139(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.
The Board further finds that this is an application for certification within the meaning of section 119 of the Labour Relations Act and is an application made pursuant to section 144(1) of the Act which provides that:
An application for certification as bargaining agent which relates to the industrial, commercial and institutional sector of the construction industry referred to in clause 117(e) shall be brought by either,
(a) an employee bargaining agency; or
(b) one or more affiliated bargaining agents of the employee bargaining agency, 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.
On the date of the making of the application the respondent employed carpenters on five industrial, commercial and institutional sector ("ICI sector") projects in the Board's geographic area #6, as well as on one ICI sector project in geographic area #7. At the hearing, the applicant requested that the bargaining unit be described so as to encompass carpenters and carpenters' apprentices employed in the ICI sector in the Province of Ontario as well as those employed in all other sectors in Board areas #6 and #7. The respondent, however, contended that since it employed carpenters only in the ICI sector, the bargaining unit should be restricted to that one sector. As an alternative argument, the respondent submitted that if the bargaining unit was to encompass the non-ICI sectors, it should do so only for Board area #6 in that the respondent is based in, and does most of its work within, that one Board area.
Section 144(1), which is set out above, provides that where an application for certification is filed which relates to the ICI sector, the bargaining unit shall include "all employees who would be bound by a provincial agreement" (that is all employees in the ICI sector across Ontario), together with "all other employees in at least one geographic area have already been acquired". There are no pre-existing bargaining rights here. On the basis, we are satisfied that the bargaining unit must be described so as to include employees in the non-ICI sectors in at least one geographic area. At the time the application was filed, the respondent employed carpenters in two of the Board geographic areas. The extent of the union's support among all of the Carpenters employed in both geographic areas will determine its right to certification, regardless of how the non-ICI portion of the bargaining unit is described. In these circumstances, we do not feel it appropriate that carpenters working in either Board area should at some future date fall outside the scope of the bargaining unit simply because they happen to be assigned by the respondent to work in some other sector. Accordingly, we propose to include all sectors in both of the geographic areas within the bargaining unit.
Having regard to the above, the Board finds, pursuant to section 144(1) of the Act, 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 Wellington and in the Regional Municipality of Waterloo except that part of Beverly Township annexed by North Dumfries Township, save and except nonworking foremen and persons above the rank of non-working foreman, constitute a unit of employees of the respondent appropriate for collective bargaining.
Prior to the terminal date there was filed a statement of desire in opposition to the application signed by a number of employees, including five who had previously become members of Carpenters Local 785. While the Board was dealing with the issue of the voluntariness of the statement of desire, the group of objecting employees, through their counsel, indicated that they wished to withdraw the statement. In these circumstances, the Board declines to give the statement of desire any weight.
The respondent filed a list of employees containing twenty-one names on Schedule "A". Carpenters Local 785 has challenged the accuracy of this list.
File No. J427-81-R
The Board finds that Labourers' International Union of North America Local 1081 ("Labourers Local 1081") is a trade union within the meaning of section l(l)(p) of the Labour Relations Act and is an affiliated bargaining agent of a designated employee bargaining agency. Pursuant to the designation issued by the Minister under section 139(1) of the Act on September 6, 1978, the designated employee bargaining agency is The Labourers' International Union of North America and The Labourers' International Union of North America Ontario Provincial District Council.
The Board further finds that this is an application for certification within the meaning of section 119 of the Labour Relations Act and is an application made pursuant to section 144(1) of the Act.
It appears from the filings that on the date of the making of the application the respondent employed construction labourers on four ICI projects in Board area #6 and on one ICI project in Board area #7. Labourers Local 1081 requested that the bargaining unit be described in terms of construction labourers in the employ of the respondent in the ICI sector in the Province of Ontario and those in the employ of the respondent in all other sectors in Board areas 4, 6, 7, 27 and 28. The respondent replied to this request as follows:
The respondent takes the position it only had construction labourers working in board areas 6 and 7 on the date of the application for certification. Therefore, it is the respondent's position that the applicant is only entitled to certification for those two board areas in the sectors apart from the Industrial, Commercial and Institutional sector.
We agree with the respondent's position in this regard, and accordingly will limit the non-ICI portion of the bargaining unit only to Board areas #6 and #7.
The Board finds, pursuant to section 144(1) of the Act, that all construction labourers in the employ of the respondent in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and all construction labourers in the employ of the respondent in all other sectors in the County of Wellington and in the Regional Municipality of Waterloo except that part of Beverly Township annexed by North Dumfries Township, 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.
The respondent filed a list of employees containing eight names on Schedule "A" and one name on Schedule "B". Labourers Local 1081 has challenged the accuracy of this list of employees.
File Nos. 1392-81-R and 1427-81-R
As indicated above, the accuracy of both of the lists of employees filed by the respondent has been challenged. Of some interest in this regard is the fact that six individuals who appear on the list of employees in File No. 1392-81 -R as carpenters also appear on the list of employees in File No. 1427-81-R as labourers. No. 1427-81-R as labourers.
In File No. 1427-81-R the challenges to the list of employees made by Labourers Local 1081 must be resolved prior to the Board being able to determine the right of that union to certification. As indicated at the hearing held with respect to File No. 1392-81-R, regardless of the outcome of the challenges to the accuracy of the employee list made by the union, Carpenters Local 785 has filed evidence of membership on behalf of more than fifty-five per cent of the individuals listed on Schedule "A". However, subsequent to the hearing, the Board became aware of the fact that an individual listed as a carpenter by the respondent in File No. 1392-81 -R, and whose status as a carpenter has not been challenged by Carpenters Local 785, was also listed by the respondent as a labourer in File No. 1427-81-R, and his status as a labourer has apparently not been challenged by Labourers Local 1081. If this individual is in fact a labourer and not a carpenter, and his name is removed from the list of carpenters in File No. 1392-81-R then, depending on the outcome of the union's challenges with respect to the accuracy of the remainder of the respondent's list, the union may not in fact have filed evidence of membership on behalf of more than fifty-five per cent of the employees in the bargaining unit.
In these circumstances, the Board is satisfied that the two lists of employees should be finalized prior to proceeding further with these matters, and also that both lists should be dealt with at the same time with both unions in attendance. A Board Officer is accordingly appointed to inquire into, and report back to the Board, on the composition of the two bargaining units and on the lists of employees filed by the respondent with respect to both applications.