United Brotherhood of Carpenters and Joiners of America v. Clarence H. Graham Construction Limited

0958-81-R United Brotherhood of Carpenters and Joiners of America, Applicant, v. Clarence H. Graham Construction Limited, Respondent, v. Group of Employees, Objectors.

BEFORE: D. E. Franks, Vice-Chairman, and Board Members, W. H. Gibson and C. A. Ballentine.

APPEARANCES: Douglas .1. Wray, Bryon Black, James Caron, Dale Chappell and Karl Ball for the applicant; D. I. Wakely, G. Whyte and Richard Graham for the respondent; Robert C. Ellis, Ronald McKibbon and Kenneth Hewitson for the group of employees.

DECISION OF THE BOARD; September 21, 1981

1. This is an application for certification made pursuant to the construction industry provisions of The Labour Relations Act.

2. The respondent is a general contractor. The employees affected by this application are working at a total of four job sites in Owen Sound. It is agreed by the parties that the job sites all involve work in the industrial, commercial and institutional sector of the construction industry. The employer has in his employ persons classified as carpenters and carpenters' apprentices, labourers, bricklayers and bricklayers' apprentices.

3. The applicant herein originally applied for the following bargaining unit:

"all carpenters, carpenter apprentices, and those employees performing work required by the respondent in the Province of Ontario, save and except non-working foremen and persons above that rank."

Accordingly, notice to the employees was given in terms of the bargaining unit applied for as set out above.

4. At the hearing in this matter the applicant trade union amended its position with respect to the appropriate bargaining unit. Rather than the one all encompassing unit set out above, the applicant requested two bargaining units. The first to be the normally appropriate bargaining unit for carpenters and carpenters' apprentices under section 131 a(l) of The Labour Relations Act. The applicant also requested the Board to find a second unit to be appropriate under section 6(1) of the Act, namely, a unit consisting of construction labourers and bricklayers and bricklayers' apprentices in the local, Board geographic area, in this case area 28, Grey County.

5. There is no real question as to the appropriateness of the bargaining unit under section 131 a(l) of the Act with respect to carpenters. Nor is there any question of notice to the employees resulting from the amendment since the second bargaining unit, namely the one under section 6(1) is smaller than the bargaining unit originally applied for. Consequently, the employees would have had adequate notice of this application. The question for the Board to decide is the appropriateness of the second unit requested under section 6(1) of The Labour Relations Act.

6. As noted above, it is common ground between the parties that carpenters, labourers and bricklayers are all of the trades at work on the date of the making of the present application. Nor is it an issue before the Board that the work being performed by labourers and bricklayers and bricklayers' apprentices is work falling outside the normal craft bargaining unit of the carpenters union. In these circumstances the Board's approach to bargaining unit problems such as the present one is set out in the Duron Ontario Limited case, [1976] OLRB Rep. Nov. 734,

“. . .The Board, in applications under the construction industry provisions of The Labour Relations Act, frequently determines bargaining units under section 6(1). Such bargaining units are from time to time expressed in terms of, for example, "carpenters and carpenters' apprentices" or "electricians and electricians' apprentices”.

In addition, bargaining units which are also expressed in terms of ''carpenters and carpenters' apprentices'' and ''electricians and electricians' apprentices" are also determined by the Board pursuant to section 6(2). The basic approach of the Board in applications for certification under the construction industry provisions of The Labour Relations Act is to determine bargaining units pursuant to section 6(2) where a trade union requests a craft bargaining unit and satisfies the provisions of section 6(2). Where an application is made by a trade union which while able to satisfy the provisions of section 6(2) requests a bargaining unit which is not its craft unit, then the Board considers the appropriateness of the bargaining unit under section 6(1). With respect to section 6(1) in applications under the construction industry provisions, the Board considers that appropriate bargaining units consist of all named trades or classifications which are not represented by a trade union and which are at work on the date of filing.

Trade unions such as the Christian Labour Association of Canada, The Christian Trade Unions of Canada, the National Council of Canadian Labour and the Lumber, Sawmill Workers Union are not craft trade unions and do not satisfy the provisions of section 6(2). The appropriate bargaining units for such trade unions are determined pursuant to section 6(1). In the event that such trade unions apply for certification in situations where an employer has only employees of a particular craft or classification at work on the date of filing, then such trade union is usually granted certification with respect to such particular craft or classification pursuant to section 6(1), for example, "carpenters and carpenters' apprentices" or "electricians and electricians' apprentices". Such bargaining units resemble in description similar craft units which in appropriate situations are determined pursuant to section 6(2). This resemblance, however, is fortuitous and results from an employer having only one craft or classification at work on the date of the filing. In the event that an employer has employees of more than one craft or classification at work on the date of filing, then a trade union which does not satisfy the provisions of section 6(2) is not permitted to selectively seek certification for only one craft or classification. Rather the appropriate bargaining unit consists of all unrepresented employees as designated by their craft or classification who were at work on the date of filing in a given geographic area pursuant to section 6(1). Where a bargaining unit has been determined in terms of, for example, ''carpenters and carpenters' apprentices'' or "electricians and electricians~ apprentices", such units are generally appropriate pursuant to section 6(2) with respect to an appropriate craft trade union and are appropriate pursuant to section 6(1) with respect to trade unions which do not satisfy the provisions of section 6(2) where only such crafts are at work on the date of filing.

From time to time the set of circumstances which are present in this application are presented to the Board. The Board characterizes this application as a situation where an incumbent craft trade union represents members of a craft cement masons and cement masons apprentices — and where some of them have indicated a preference to be represented by another trade union. In these situations, the Board has generally held that the appropriate bargaining unit is the unit in the collective agreement. The unit in the collective agreement is regarded as a displacement unit and is determined with reference to section 6(1) and not section 6(2). Reference is made to the J. McLeod and Sons Limited case, OLRB Rep. Dec. 1969, p. 1100 and to the Can wall Contractors Limited case OLRB Rep. July 1975 p. 532. If the Board were to accept the argument that in a displacement situation the appropriate bargaining unit is to be determined with reference to section 6(2); this would mean, in many instances, that only an incumbent trade union would possess the necessary requirements to represent a given craft notwithstanding a wish by certain members of that craft to have another trade union represent them in collective bargaining. In our view, under The Labour Relations Act no trade union possesses a monopoly with respect to representing any bargaining unit of employees. In our opinion, the root cause of the arguments over the appropriateness of the bargaining unit is grounded in a view that trade unions in the construction industry should not as a matter of principle cross craft lines in their organizing activities.

Many arguments may be made in support of this point of view. Such a point of view, however, is best debated within the ranks of trade unions rather than before the Board."

The question which arises in the present case is whether the Board can or ought to continue the policy set out in the Duron case in view of section 131a of the Act. That section reads as follows:

"131a - (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,

(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.

(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 1 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.

(4) A voluntary recognition agreement in so far as it relates to the in­dustrial, commercial and institutional sector of the construction industry shall be between an employer on the one hand and either,

(a) an employee bargaining agency;

(b) one or more affiliated bargaining agents represented by an employee bargaining agency; or

(c) a council of trade unions on behalf of one or more affiliated bargaining agents affiliated with the council of trade unions,

on the other hand, and shall be deemed to be on behalf of all the affiliated bargaining agents of the employee bargaining agency and the defined bargaining unit in the agreement shall include those employees who would be bound by a provincial agreement.

(5) Notwithstanding subsections I and 4, a trade union that is not represented by a designated or certified employee bargaining agency may bring an application for certification or enter into a voluntary recognition agreement on its own behalf."

An examination of this section shows that applications for certification can be made pursuant to subsections 1, 3 or 5. Both subsections 1 and 3 deal with applications for certification by trade unions covered by the regime of province wide bargaining (subsection 1 deals with applications for all sectors including the industrial, commercial and institutional sector, whereas subsection 3 deals with applications for sectors excluding the industrial, commercial and institutional sector). Subsection 5 deals with applications by "a trade union that is not represented by a designated or certified employee bargaining agency", that is trade unions not under the regime of province wide bargaining. For such trade unions it is clear that they are not affected by subsections 1 through 4, and clearly the Board policies set out in the Duron case continue to apply with respect to applications for certification by such trade unions. In light of the foregoing, it is clear that since section 131a deals with both applications for certification by trade unions under the province wide bargaining provisions of the Act, and also those not under the province wide bargaining provisions in the Act it deals with all possible applications for certification in the construction industry. Therefore, there can be no appropriate bargaining unit found under section 6(1) as requested by the applicant outside of section 131a.

7. For those unions covered by the regime of province wide bargaining, subsection 1 and subsection 3 of section 131a apply. Subsection 3 applications are brought at the option of the trade union involved and by that subsection they can apply for certification in sectors other than the industrial, commercial and institutional sector (and thus outside the provincial bargaining scheme), and in such cases the appropriate bargaining unit is all sectors other than the industrial, commercial and institutional sector in the appropriate board area. However, where a union covered by the provincial bargaining scheme, wants the application to relate to the industrial, commercial and institutional sector of the construction industry it must apply under subsection 1.

8. Having regard to the foregoing, it is clear that section 131a deals with both applications for certification by trade unions under the province wide bargaining provisions of the Act, and also those trade unions not under the province wide bargaining provisions of the Act. It deals with all possible applications for certification in the construction industry. It would follow, therefore, that whether the Board makes a finding of an appropriate unit under section 6(1) or section 6(2) of the Act, that such a finding must be made within the confines of section 131a, thus the Board cannot as the applicant suggests find an appropriate unit under section 131 a(l) and a separate appropriate unit under section 6(1) outside the purview of section 131a. The Board must first deal with section 131a and apply section 6 in relation to section 131a. This requirement is clearly set out in section 126 which reads as follows:

"126. Where there is conflict between any provision in sections 127 to 136 and any provision in section 5 to 49 and 54 to 124, the provisions in sections 127 to 136 prevail."

9. The language of subsection 1 is quite specific with respect to the instructions given to the Board as to the appropriate bargaining unit,

"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 geographic area."

The term provincial agreement is defined in section 125(l)(e) and reads as follows:

"125.-(1) In this section and in sections 126 to 136,

(e) "provincial agreement" means an agreement in writing covering the whole of the Province of Ontario between a designated or accredited employer bargaining agency that represents employers, on the one hand, and a designated or certified employee bargaining agency that represents affiliated bargaining agents, on the other hand, containing provisions respecting terms or conditions of employment or the rights, privileges or duties of the employer bargaining agency, the employers represented by the employer bargaining agency and for whose employees the affiliated bargaining agents hold bargaining rights, the affiliated bargaining agents represented by the employee bargaining agency, or the employees represented by the affiliated bargaining agents and employed in the industrial, commercial and institutional sector of the construction industry referred to in clause e of section 106."

That section deals with the bargaining rights held by "affiliated bargaining agents". That term

is in turn defined by section 125(l)(a),

"125.-(l) In this section and in sections 126 to 136,

(a) "affiliated bargaining agent" means a bargaining agent that, according to established trade union practice in the construction industry, represents employees who commonly bargain separately and apart from other employees and is subordinate or directly related to, or is, a provincial, national or international trade union, and includes an employee bargaining agency."

(emphasis added)

Thus, those employees who would be covered by a provincial agreement are those represented by the applicant union "who commonly bargain separately and apart from other employees". In the present case that would be employees falling within the trade of carpenter. Clearly, neither bricklayers nor labourers would be covered by the provincial agreement made on behalf of the applicant, amongst others, by the designated employee bargaining agency representing the applicant.

10. Insofar as the present application relates to the industrial, commercial and institutional sector of the construction industry, it is clear that those employees described as labourers and bricklayers would be outside the provincial agreement, and therefore, outside the regime of provincial bargaining. However, as noted above, since section 131a deals with all applications for certification in the construction industry, and the applicant is clearly not applying for bricklayers and labourers under subsection 3 and cannot apply under subsection 5, it can only apply for labourers and bricklayers under subsection 1. However, since they would not be covered by the provincial agreement relating to carpenters we are of the view that they would not be appropriate for inclusion in the unit found to be appropriate in the present case.

11. It should be noted that section 131a( 1) says "shall include all employees who would be bound by a provincial agreement". Normally this would imply that the Board has the power to include employees other than those covered by the provincial agreement. In the present case, however, this becomes a matter of including in a bargaining unit or series of bargaining units employees covered by the regime of provincial bargaining, together with employees outside the provincial bargaining regime. Clearly, subsection 3 and subsection S of section 131a deal with matters relating to employees outside the regime of provincial bargaining and we propose to limit the appropriate unit in this case to only those covered by the regime of provincial bargaining. In so doing we are of the view that this is consistent with the provisions of the Act relating to the provincial bargaining. To certify the applicant in the present case for employees in the industrial, commercial and institutional sector in the construction industry, but outside the scheme of provincial bargaining, would create representation rights for trade unions within that scheme for employees outside the regime of provincial bargaining. Such representation would clearly be disruptive of the overall scheme contemplated in sections 125 to 136.

12. In view of the foregoing, we find that the only appropriate bargaining unit relates to carpenters and carpenters' apprentices and that the appropriate unit for collective bargaining in the present case does not include construction labourers and bricklayers and bricklayers’ apprentices, since they are not appropriate for inclusion under section 131a(1) and we can therefore find no separate and distinct unit under section 6(1) of the Act. In this regard, we are therefore of the view that the reasoning set out in the Duron case no longer applies to applications under section 131a(1).

13. The Board therefore finds that the applicant is a trade union within the meaning of section 1(l)(n) 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 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.

14. The Board further finds, pursuant to section 131 a( 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 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.

15. The Board hereby appoints a Labour Relations Officer to inquire into the lists of employees in the bargaining unit and to report back to the Board.