[1981] OLRB Rep. March 241
1644-80-R United Brotherhood of Steeplejacks and Allied Trades of Canada, Applicant, v. A. N. Shaw Restoration Ltd., Respondent, v. The Operative Plasterers' and Cement Masons' International Association of the United States and Canada Local Union No. 172 Restoration Steeplejacks, Intervener, v. Group of Employees, Objectors.
BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members H. J. F. Ade and H. Kobryn.
APPEARANCES: James Fyshe, Margaret Truesdale and Joe Petricevic for the applicant; Paula M. Rusak and Roger Neath for the respondent; Edward A. Bartley and Arthur Enman for the intervener; Joe Chaves for the objectors.
DECISION OF THE BOARD; March 2, 1981
This is an application for certification in which the applicant requested a prehearing vote. The vote has now been held and the ballot box sealed at the direction of the Board.
The Board finds that the applicant is a trade union within the meaning of section 1(1)(n) of The Labour Relations Act.
The essential dispute in this case is over the description of an appropriate bargaining unit. The respondent has three divisions through which it carries on business in the construction industry. These are the masonry division, which is its largest, plus two recently-acquired divisions, the flooring division and the roofing division. The masonry division has for a number of years been represented by The Operative Plasterers' and Cement Masons' International Association of the United States and Canada Local Union No. 172 Restoration Steeplejacks, and the applicant in another application before the Board (Board File No. 0014-80-R) is seeking to displace the Plasterers' as the bargaining agent. The applicant in the present application seeks bargaining rights only for the flooring division of the respondent. The respondent, on the other hand, since the application relates to the construction industry, takes the position that the bargaining unit ought to be described in the Board's usual terms of all trades employed by the respondent in Board Area 8 on the date of the application. The Board in File No. 0014-80-R determined that the applicant is not a trade union within the meaning of the construction provisions of The Labour Relations Act, and accordingly the present application is brought under the general provisions of the Act. The applicant argues that that being the case, there is nothing in The Labour Relations Act or Board policy restricting the description of the unit to all trades employed on the date of the application. Rather, the applicant takes the position that the issue is simply: what is an appropriate bargaining unit within the meaning of section 6(1) of the Act?
The evidence discloses that all three divisions of the respondent are administered and deployed out of a common location and common office. There is a single Sales Manager and a single Contract Manager. Each division has its own Director, however, as well as field supervisors, although neither the roofing nor flooring division employ field supervisors on a full-time basis. All field supervisors report not to their Divisional Director, but to the Contract Manager. Many of the roofing or flooring contracts are obtained in conjunction with one another, although the work is not generally performed by the two divisions at the same time. The roofing work requires different tools and training from the flooring work. There are, however, varying degrees of unskilled work involved in both divisions, and employees from the flooring division can be assigned from time to time to assist on roofing jobs, when there are insufficient roofers available. In addition, employees in the flooring division are frequently offered work on a temporary basis in the roofing division when there is a shortage of work in the flooring division, in order to avoid such employees having to be laid off. Employees applying for jobs with the respondent may be referred to one or the other of the divisions, depending on the employee's own preference and the need for additional men.
As a matter of approach, the Board agrees with the proposition put forward by counsel for the applicant; that is, the issue to which the Board must address itself is simply the definition of an appropriate bargaining unit under section 6(1) of the Act. The applicant, however, is faced with the same difficulties encountered by unions such as the Christian Labour Association of Canada and the Canadian Union of Construction Workers, or by "industrial" unions when they commenced to organize in the construction industry, in that these unions do not have the necessary history to qualify as a craft union within the meaning of section 6(2) of the Act. Section 6(2) reads:
Any group of employees who exercise technical skills or who are members of a craft by reason of which they are distinguishable from the other employees and commonly bargain separately and apart from other employees through a trade union that according to established trade union practice pertains to such skills or crafts shall be deemed by the Board to be a unit appropriate for collective bargaining if the application is made by a trade union pertaining to such skills or craft, and the Board may include in such unit persons who according to established trade union practice are commonly associated in their work and bargaining with such group, but the Board shall not be required to apply this subsection where the group of employees is included in a bargaining unit represented by another bargaining agent at the time the application is made.
Accordingly, the Board began to certify such unions in their early history only for "all employee" units, in the same way as it normally does in certifications taking place outside of the construction industry. Because of the special vulnerability of the construction industry to jurisdictional disputes, however, the Board subsequently amended its practice in the construction industry and began to grant certificates to these non-craft unions in terms of all of the trades employed on the date of the application. See Sterling Tile Limited, [1970] OLRB Rep. Feb. 1346; Fielding Construction Company, [1970] OLRB Rep. Jan. 1205, and Board Practice Note No. 11. This was still, in effect, an "all employee" unit, but frozen as of the date of the application, so as to minimize the potential for jurisdictional disputes which subsequent accretions to the unit might cause.
- In the present case, the rationale of the applicant in seeking to represent only the flooring and not the roofing division of the respondent can be gleaned from the following passage in the testimony of Joseph Petrocevic, the applicant's business manager:
"Q. Why have you applied for just the flooring division?
A. We've already applied for the masonry division. Roofers do not do a kind of work we're familiar with. It's not in the collective agreements we've negotiated. It's a different trade, involving different tools, materials, and knowledge of the work."
The applicant's position, in other words, comes very close to seeking recognition of "craft" status from the Board, even though the applicant must (and did) rely solely on the determination of "an appropriate bargaining unit" under section 6(1) of the Act.
The Board on the evidence does not find it appropriate to grant the limited bargaining unit sought by the applicant in this case. The Board's normal concerns over undue fragmentation must be even greater in the construction industry because, as noted earlier, of the greater risk of jurisdictional disputes. The evidence before the Board in this very case tended to underscore the potential for disagreement over what is "flooring" and what is "roofing" work in multi-storey buildings. In addition, the present degree of interchangeability between the two divisions provides an increased opportunity for continuity of employment when one of the divisions is experiencing a temporary period of reduced activity. This obviously is of considerable benefit both from the point of view of the respondent, and of the employees affected. The incident of such interchange was confirmed by the evidence of the applicant's won witnesses, and the Board does not find the respondent's position in this regard to be inconsistent with its reply in the other application for certification (Board File No. 0014-80-R). A fair reading of that Reply indicates that the respondent was there distinguishing the masonry division, which was the subject matter of that displacement application, from its other two divisions. The Board further notes that all of the parties to that application ultimately agreed that the application was confined to the masonry division, and it was on that basis that the intervener was orally declared by the Board to have no status to participate in the present proceedings.
Having regard to the agreement of the parties with respect to the geographic designation of the unit, the Board finds that all employees of the respondent working in either its roofing or flooring division in Metropolitan Toronto, the Regional Municipality of York and the County of Peel, the Township of Esquesing and the Towns of Oakville and Milton in the County of Halton and the Township of Pickering in the County of Ontario, save and except non-working foremen, persons above the rank of non-working foreman, office and sales staff, constitute a unit of employees appropriate for collective bargaining. Putting the matter at best for the applicant, the Board, having regard to the material before it, finds that there were 25 employees in the bargaining unit on the date of the application, being 10 in the flooring division and 15 in the roofing division. The applicant has filed membership documents with respect to six of the employees in the unit.
Based on all of the evidence before it, the Board finds that less than thirty-five per cent of the employees of the respondent in the bargaining unit were members of the applicant at the time the application for a pre-hearing vote was made.
The Registrar will destroy the ballots cast in the pre-hearing representation vote taken in this matter following the expiration of 30 days from the date of this decision, unless a statement requesting that the ballots should not be destroyed is received by the Board from one of the parties before the expiration of such 30-day period.
The application is dismissed.