Labourers' International Union of North America - Local 183 v. Pelar Construction Ltd.

[1981] OLRB Rep. February 210

1137-80-R Labourers' International Union of North America - Local 183, Applicant, v. Pelar Construction Ltd., Respondent.

BEFORE: R. A. Furness, Vice-Chairman, D. E. Franks, Vice-Chairman, R. O. MacDowell, Vice-Chairman, and Board Members H. J. F. Ade and N. A. Wilson.

APPEARANCES: A. M. Minsky and John Stefanini for the applicant; No one appearing for the respondent; Gary Walker and Alan Franklin for The Ontario Form Work Association and The Ontario Drain Contractors Association; S. Gilbert Cragg, Peter Hitchen, Stephen Grant and Raj Anand for Labourers' International Union of North America, Local 506; G. Grossman for The Metropolitan Toronto Road Builders Association, The Heavy Construction Association of Toronto, The Metropolitan Toronto Sewer and Watermain Association, The General Contractors Section of the Toronto Construction Association and The Utility Contractors Association of Ontario.

DECISION OF THE BOARD; February 2, 1981

1. This is one of a series of cases involving the certification of Local 183 or Local 506 of the Labourers' International Union of North America. A series of such cases involving these two unions was set for hearing at the same time and heard by a five-man panel of this Board. At issue is the interpretation to be given to section 131 a of The Labour Relations Act in light of the Board's longstanding policy of distinguishing between the bargaining units granted to these two local unions of the same international in the Toronto area, known as Board Geographic Area #8.

2. The Labourers' International Union of North America has two locals, Local 506 and Local 183 which have as their geographical jurisdiction areas relating to Metropolitan Toronto Area and its vicinity. In its decision in Cross Town Paving, [1965] OLRB Rep. May 128, the Board adopted a policy distinguishing between the appropriate bargaining unit of construction labourers for each of these two locals in the Toronto area. The distinction was a simple one, Local 506 was given a unit of construction labourers engaged in building construction and Local 183 was given a unit of construction labourers engaged in construction other than building construction.

3. This distinction lasted until 1974 when the Board issued its decision in Peniche Construction Forming [1974] OLRB Rep. April 208. That decision continued the policy of Cross Town Paving in that it distinguished between the types of appropriate units for each of the two locals. The rationale for continuing this distinction was set out in paragraph 9 and 10 at pages 212-213.

..... It is our concern, that to remove completely the distinction between the appropriate bargaining unit granted to these two locals would have an unsettling effect on what are presently established and important patterns of bargaining in the construction industry in the Toronto area. This distinction was reflected in the bargaining units which resulted from the Cross Town Paving case, and although that distinction can no longer stand, in toto, we are of the view that to completely remove the distinction between the two types of bargaining units would lead to undesirable consequences. The effect of this type of distinction is to designate at the time representation rights are determined, which bargaining pattern is the appropriate bargaining pattern for the particular case at hand. The failure by the Board to recognize the appropriate bargaining pattern when determining the appropriate bargaining unit adds an additional element to the collective bargaining activity. This bargaining in turn is reflected in a modification of the Board's finding of the appropriate bargaining unit. But, surely, the Board should complete all the findings with respect to the unit of employees appropriate for collective bargaining when it makes the determination required of it under section 6 of the Act.

We are also concerned that the failure to continue to distinguish between these two locals of the same union would lead to future jurisdictional disputes. There are examples of two locals of the same craft union having concurrent geographical jurisdiction, and the Board has not found it necessary to make such a distinction. The present situation is distinguishable in that the trade jurisdiction claimed by both locals and their parent international union ranges over all types of construction. The scope of jurisdiction claimed by each of the locals affects all types of unionized construction and creates a complex jurisdictional boundary which if ignored at the time when the bargaining unit is being determined would expose a substantial part of the construction industry to jurisdictional disputes of an extraordinary kind, i.e., two locals of one union rather than two different trades, competing for the same work assignment.''

4. As a consequence, the Board set out for Area 8 the following scheme of appropriate bargaining units:

"Units for Local 183

(i) All construction labourers employed on residential construction, save and except construction labourers employed as helpers of bricklayers and plasterers, non-working foremen and persons above the rank of non-working foreman.

(ii) All construction labourers, save and except construction labourers employed on building projects, non-working foremen and persons above the rank of non-working foreman.

Unit for Local 506

All construction labourers employed on building projects, except residential building projects, but including labourers employed as helpers of bricklayers and plasterers, save and except non-working foremen and persons above the rank of non-working foreman."

The Board has continued this policy of distinguishing between the two local unions until the coming into force of Statutes of Ontario, 1979 Chapter 113 (Bill 204) and Statutes of Ontario, 1980 Chapter 31 (Bill 73), both of which became effective May 1, 1980.

5. The Labour Relations Amendment Act, 1980 (No. J)S.O. 1980, c. 31 introduced the present section 131a which reads in part 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,

(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 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."

9. The position taken by the two local trade unions before this Board is as follows:

Local 183 — takes the position that the Board should follow literally the directive contained in section 131a and where an application is made by either local under subsection 1, the Board should find the appropriate bargaining unit as set out in 131a(l) and issue the two certificates as directed in subsection 2 of section 13 Ia. On the other hand, should either local apply for certification for sectors other than the industrial, commercial and institutional sector under subsection 3, either local should obtain a certificate for sectors other than the industrial, commercial and institutional sector.

Local 506 — takes the position that Local 506 and only Local 506 should be entitled to apply for a certificate under subsection I and Local 183 should be restricted to applying for a certificate under subsection 3 of section 131 a. Thus, in effect continuing the kind of distinction between the two locals set out in Cross Town Paving and Peniche Construction Forming.

10. In making its decision in the Peniche case, the Board had before it extensive evidence as to the organizational activity of both Local 183 and Local 506. Further, although the Peniche case does not refer to sectors of the construction industry, it is clear that the distinctions made in Peniche are not unrelated to the notion of sector as it appears in section 106 of The Labour Relations Act. In the present series of cases, the Board had filed with it a number of jurisdictional arrangements between the two locals. It is clear, however, that in recent years these jurisdictional arrangements have been in a state of flux. Indeed, although there was no agreement as to the facts in the area of the extent of organization by each local in various sectors, for the present purposes, it is only necessary to comment that there are not the clear patterns of organization that existed at the time of the Peniche decision. Certainly, there is no indication that the relationship between these two locals will be any more stable now than it has been in the past. Thus, it is clear that Local 183 represents constructions labourers in the industrial, commercial and institutional sector as well as sectors other than the industrial, commercial and institutional sector. On the other hand, Local 506 represents employees in both the industrial, commercial and institutional sector and as well as sectors other than the industrial, commercial and institutional sector. On the facts, then, it is clear that no simple clear-cut distinction between the two locals such as was made in the Peniche case can be made at this time.

11. Apart from the problems of attempting to make out a Peniche type distinction between the two locals of constructions labourers in the Toronto area, there remains the very real question as to whether the Board has the statutory power to make such a distinction, given the language of section 131 a. Of particular importance is the phrase...., 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). This is clearly a mandatory direction to this Board by the Legislature as to the appropriate bargaining unit in an application under section 131a(l). Similarly, subsection 2 also issues mandatory directive to the Board as follows: ". . . 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). It would seem, therefore, that where an application is made under subsection I, the Board has no jurisdiction under a clear reading of the legislation to institute the Peniche type of distinction between the two locals with respect to the appropriate bargaining unit.

12. The position of Local 506 in this regard is that Local 183 should as a matter of Board policy not be allowed to bring an application under subsection 1, that is, the distinction between the two locals should be reflected by limiting Local 183's access to applications under subsection 3 and that Local 506 and only Local 506 should be entitled to bring an application under subsection I. Again, it is difficult to see that section 131a(l) gives the Board the discretion to make such a policy: "an application for certification. . . 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." (emphasis added.) It is not denied that both Local 506 and Local 183 are affiliated agents within the meaning of The Labour Relations Act. Clearly, the section gives such affiliated bargaining agents access to an application under subsection 1 and in fact mandates the agency relationship of the applicant to the other affiliated bargaining agents. That is, regardless of which local of the Labourers' International Union brings the application by subsection I, that application is brought on behalf of all of the affiliated bargaining agents of the Labourers' employee bargaining agency. Thus, whether Local 183 brings the application or whether Local 506 brings the application, it does so on its own behalf and on behalf of the other local.

13. Local 506 urged the Board to interpret section 13 lain such a matter as to continue the Peniche type of distinction between the two locals. Its argument is that traditionally Local 506 has been the industrial, commercial and institutional local of the Labourers' International Union of the Toronto area, and that the Board should seek in its interpretation of 131 a to maintain this traditional distinction. Thus, it argues that where Local 183 applies for certification, the Board should look at the sector in which the employees are working and if there are no employees in the industrial, commercial and institutional sector the Board should decline to entertain an application under subsection 1 and instead require that the application be dealt with under subsection 3 of section 131a. To do this would require the Board to make sector determinations in certification proceedings. In raising this argument, counsel for Local 506 suggests that the reasoning in Lyle West, [1978] OLRBP Rep. Nov. 999, no longer applies. The basis of counsel's argument in this regard is the opening words of section 131a, "An application as bargaining agent which relates to the industrial, commercial and institutional sector .. ." (emphasis added). Counsel argues that to give meaning to the words "which relates to' means that of necessity the Board must look to the sector in which the employees are working and if there are no employees working in the industrial, commercial and institu­tional sector, then the application ought to be dealt with under subsection 3 rather than subsection 1.

14. Since the introduction of section 131 a, in its present form, the Board has refused to adopt this interpretation of subsection 1 and subsection 3 of section 131a. The Board has interpreted the relationship between these two subsections as basically an option exercised by an applicant for certification; that is, the applicant trade union can decide whether it is applying under subsection 1 or subsection 3. Thus, an application relates to the industrial, commercial and institutional sector of the construction industry if the applicant for certification says that it relates to that sector. See, Colonist Homes Ltd., [1980] OLRB Rep. Dec. 1729.

15. The basis for the Board's interpretation of section 131 a(l) in this manner is the substantial legislative history of this relatively new provision. As noted above, section 131a first appeared in Statutes of Ontario, 1979 Chapter 113, that provision read in part:

"An application for certification as bargaining agent for the employees

of an employer employed in the industrial, commercial and institutional

sector of the constructions industry. . .” (emphasis added)

That language clearly requires the Board to determine that employees are working in the industrial, commercial and institutional sector of the construction industry as a condition precedent to the application of section 131 a( 1). However, that language never came into force as a section of The Labour Relations Act. As noted above, the Legislature retrospectively amended section 131a to its present form. In fact, the change in 131a not only removed the necessity to determine the sector in which employees are working as a condition precedent for the application for subsection 1, but it mandates an appropriate bargaining unit which in itself avoids the requirement to make determinations concerning the sector in which an employee is working. 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.. .". Thus, although "provincial agreement" is defined in clause e of section 125(1) (which introduces the notion of employees in the industrial, commercial and institutional sector) for the appropriate geographic area, the unit includes all other employees. Thus, for the local area in which the application is made, (in the present case we are concerned only with Board Area 8) the unit of employees must include all employees in all sectors. Thus, in determining the list of employees it is not necessary, in the local geographic area, to have regard to the sector in which such employees are working.

16. It is thus clear that the second version of section 131a involved a major shift in emphasis from the original version of section 131a. In view of the two major changes in the language of subsection 1, we are of the view that the legislative history of that section evinces a clear legislative intent to avoid making determinations concerning sectors in the context of certification proceedings. Such determinations are more properly made under section 135 of the Act.

17. In addition to the reasons based on the legislative history of section 131a given above, we are also of the view that there are good labour relations reasons for avoiding such sectoral determinations in the context of certification proceedings. In this regard, we are of the view that the concern expressed of the Board in the Lyle West case about the delay caused by such determinations is still a very real concern. In this regard, our concern over the delay caused by sectoral determinations is similar to our concern for the delay caused by jurisdictional determinations. With respect to jurisdictional determinations, the Board has on numerous occasions said that that is something more properly dealt with under section 81 of the Act than in the context of a certification proceeding.

18. In sum, we find that we cannot accept the interpretation given to section 131a by counsel for Local 506. We are not prepared to interpret section 131 a in such a way that we will engage in inquiries as to the sector in which employees are working before an application can be brought under subsection 1. In any event, as noted above the facts do not support this particular argument by Local 506 since there is no clear distinction between the two locals on a sectoral basis. In view of the foregoing reasons, therefore, we are of the view that both Local 506 and Local 183 are entitled at their option to apply under either subsection I or subsection 3 of section 131 a. In such applications, the Board will follow the mandatory directives of the relevant subsections.

19. In this regard, we should like to emphasize the approach the Board has taken to the certificates granted by virtue of subsection 2. Where an application has been made under subsection 1 and the appropriate unit of employees is found to include employees in the industrial, commercial and institutional sector throughout the province and employees in sectors other than the industrial, commercial and institutional sector in a local geographic area, the Act directs the Board to issue two certificates. Subsection I indicates that such an application is "on behalf of all affiliated bargaining agents in the employee bargaining agency". Thus, the Board issues one certificate to the applicant affiliated bargaining agent on its own behalf and on behalf of all other affiliated bargaining agents in the employee bargaining agency with respect to employees in the industrial, commercial and institutional sector in the Province of Ontario. The second certificate is issued to the applicant for sectors other than the industrial, commercial and institutional sector in the appropriate geographic area. Thus, in the present circumstances regardless of which local either 183 or 506 which applies under subsection 1, the applicant is certified on its own behalf and on behalf of the other affiliated bargaining agents in the employee bargaining agency for the industrial, commercial and institutional sector. That is to say, Local 506 is certified on behalf of Local 183 amongst others, and Local 183 is certified on behalf of Local 506 amongst others in relation to the industrial, commercial and institutional sector of the construction industry.

20. If the application is made under section 131a(1) with respect to sectors other than the industrial, commercial and institutional sector, then the applicant will be certified in Board Geographic Area #8 for all sectors other than the industrial, commercial and institutional sector. A number of these sectors have been traditionally within the jurisdiction of Local 183. However, at the hearing in this matter counsel for Local 183 recognized that this was the consequence of the position taken by Local 183 and, did not urge the Board to take any other position with respect to these other sectors. In our view it is clear that in the near future both Locals are going to have to make some accommodation with each other in order to deal with this situation.

21. We should like to make one further comment at this point considering the overall effect of the position taken by the Board in this case. The overall effect of the Board's decision to issue either Local province-wide bargaining rights in the industrial, commercial and institutional sector as agent for the various bargaining agents puts the onus on the employee bargaining agency and the affiliated bargaining agents to clearly set out in the provincial agreement the relationship between the various parts of the employee bargaining agency. This is something that is done in most provincial agreements, and we see no reason why it cannot be done in the provincial agreement relating to labourers.

22. The Board 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 21, 1978 and amended July 13, and 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.

23. The Board further finds that this is an application for certification within the meaning of section 108 of The Labour Relations Act and is an application made pursuant to section 131a(1) of the Act.

24. The Board further finds that pursuant to section 131a(l) 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 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 and persons above the rank of non-working foreman, constitute a unit of employees of the respondent appropriate for collective bargaining.

25. The Board is satisfied on the basis of all the evidence before it 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 September 30, 1980, the terminal date fixed for this application and the date which the Board determines, to be the time for the purpose of The Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act.

26. Section 131a(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 24 above in respect of 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, save and except non-working foremen and persons above the rank of non-working foreman.

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