0560-81-R Labourers' International Union of North America, Local 183, Applicant, v. Matterhorn Construction (Hamilton) Limited and/or Highrise Crane and Rental Limited, Respondents.
BEFORE: N. B. Satterfield, Vice-Chairman and Board Members W. Gibson and H. Kobryn.
APPEARANCES: B. Fishbein and L. Castaldo for the applicant; Gary C.C. Walker for the respondents.
DECISION OF THE BOARD; September 21, 1981
This is an application for certification falling under the construction industry provisions of The Labour Relations Act.
The Board finds that the applicant is a trade union within the meaning of section l(l)(n) of The Labour Relations Act.
Immediately following the making of this application, the applicant, by letter from its counsel requested the Board to apply section 1(4) and/or section 55 of the Act to its application. Accordingly, the application was listed for hearing but did not proceed to hearing on the date originally scheduled because the parties had not received proper notice of the hearing. It was relisted for hearing a week later and at that hearing the respondent Matterhorn Construction (Hamilton) Limited ("Matterhorn") was represented by counsel only for the purpose of seeking an adjournment of the hearing because of alleged, inadequate notice. The respondent Highrise Crane and Rental Limited ("Highrise") joined in this request, but the applicant ("Local 183") refused to consent to an adjournment. The Board, after hearing and considering the representations of the parties on the request for adjournment granted the request in respect of the sections 1(4) and/or 55 issues and, at the request of counsel for Local 183, proceeded with the application for certification insofar as it applied to Highrise. In so doing, the Board accepted the argument of counsel for Local 183 that the reply from Highrise asserted that it was the employer of the employees in question, it would be possible for the Board to determine an appropriate bargaining unit in respect of Highrise and, if the applicant had the requisite membership support, the Board could grant it interim certification pursuant to section 6(a) of the Act for that unit pending final resolution of the status of Matterhorn.
The bargaining unit being sought by Local 183 is described in its application as:
"All employees of the respondent engaged in concrete forming construction in all sectors of the construction industry, save and except the industrial, commercial and institutional sector of the construction industry, in Ontario Labour Relations Board geographic area #8, save and except for non-working foremen, and persons above the rank of non-working foreman.".
Local 183 and Highrise are agreed that this is an appropriate unit for collective bargaining and that, on the date of application, the unit included persons employed as construction labourers, rodmen, carpenters, cement masons and operating engineers. The list of employees filed by Highrise includes persons in all of those classifications. For reasons given orally at the hearing, the Board expressed doubt as to whether the unit to which the parties had agreed was an appropriate one and it reserved its discretion on that question. The question of appropriateness is the only obstacle in the way of a certificate issuing to Local 183 since, no matter how the bargaining unit is ultimately described, the Board is satisfied on the basis of all the evidence before it that more than fifty-five per cent of the employees of Highrise Crane and Rental Limited at the time the application was made, were members of the applicant on June 22nd, 1981, the terminal date fixed for this application and the date which the Board determines, under section 92(2)0) of The Labour Relations A ct, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act.
Since this application for certification is one coming under the construction industry provisions of the Act, it must be made pursuant to section 131(a) and applications for certification brought under that section must be brought under one of subsections 1,3 or S. Only trade unions which are represented in collective bargaining by an employee bargaining agency have access to subsections 1 and 3. In respect of those two subsections, the Board has determined that section 131a offers such trade unions the option of deciding whether its application relates to the industrial, commercial and institutional sector of the construction industry and is, therefore, made under subsection 1 or that it does not relate to that sector and is made under subsection 3 in respect of all sectors other than the industrial, commercial and instutional sector. See Colonist Homes Ltd., [1980] OLRB Rep. Dec. 1729, cited with approval in Pelar Construction Ltd., [1981] OLRB Rep. Feb. 210, a decision dealing with an application in which Local 183 was the applicant. Since, in the case at hand, Local 183 has adopted the language of subsection 3 in describing the bargaining unit which it is seeking as relating to ". . . all sectors of the construction industry, save and except the industrial, commercial and institutional sector.. .",it would appear that it has exercised its option to bring its application under subsection 3 of section 131a of the Act. Finally and on the other hand, subsection 5 of section 131a is available to those trade unions which are not represented in collective bargaining by an employee bargaining agency.
Local 183 is an affiliated bargaining agent of the Labourers Employee Bargaining Agency as designated pursuant to section 127(1) of the Act and is represented in collective bargaining in the industrial, commercial and institutional sector of the construction industry by the labourers employee bargaining agency. That designation deals specifically with concrete forming in the following terms:
"For purposes of clarity, it should be noted that notwithstanding the fact that locals set out in paragraph 3 above are affiliated bargaining agents within the meaning of clause a of section 125, certain of them have or may acquire bargaining rights, or are, or may become bound by, certain collective agreements affecting all sectors of the construction industry covering all employees engaged in concrete forming construction, namely the agreement between Locals 183 and 1081, and the Ontario Form Work Association and between Local 493 and Romm Construction Company Limited, whereby they represent employees who do not commonly bargain separately and apart from other employees.
Therefore, with respect to bargaining on behalf of employees of members of the Ontario Form Work Association and Romm Construction Company Limited, and such other employers for whom any of the local unions have or may acquire bargaining rights for all employees engaged in concrete forming construction, such locals are not affiliated bargaining agents within the meaning of clause a of section 125, nor are they included in or covered by this designation under subsection 1 of section 127, nor are they or the said collective agreements and bargaining there under affected by section 133 of The Labour Relations Act. Pursuant to subsection 2 of section 127 of The Labour Relations Act I hereby exclude from this designation the bargaining relationship between the Formwork Council of Ontario and the Ontario Formwork Association."
(emphasis added)
By this reference, the Minister in designating the employee bargaining agency under section 127(1) of the Act has exercised his discretionary powers under section 127(2) to exclude employees engaged in concrete forming construction from the employee bargaining agency's representation rights. There are three locals of the Labourers' International Union of North America named in the reference quoted above as representing employees in concrete forming construction, one of which is Local 183. Thus Local 183 is not a trade union represented by an employee bargaining agency when it comes to employees engaged in concrete forming construction.
- Since Local 183 is not a trade union represented by an employee bargaining agency in respect of employees engaged in concrete forming construction, it is not a union which has the option of deciding, when it is applying for certification in respect of employees engaged in concrete forming construction as referred to in the designation of the labourers employee bargaining agency, whether its application relates to the industrial, commercial and institutional sector of the construction industry and, therefore, comes under subsection I of section 131 a or does not relate to that sector and comes under subsection 3. Therefore, the only avenue open to Local 183 when it is seeking bargaining rights for employees engaged in concrete forming construction is subsection S of section 131a of the Act. Accordingly, the Board determines that this application is made pursuant to subsection S of section 131a. It is patently clear that subsection 5 contains no reference to construction industry sectors. Thus it remains for the Board, in dealing with applications for certification coming within that subsection, to determine whether bargaining rights will be granted with or without sectoral reference. In other words, it leaves the Board in the same position in respect of these applications as it was prior to the introduction of section 131a into the Act. Prior to the amendment which introduced that section, the Board consistently avoided sectoral determinations in the context of certification proceedings for the reasons set out in its decision in Lyle West Electric Limited, [1978] OLRB Rep. Nov. 999. In its Pelar decision, supra, the Board expressed the view that these reasons still have validity under section 131a in following terms:
"In addition to the reasons based on the legislative history of section 131 a 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 by 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."
- Prior to section 131a of the Act coming into force, the Board granted Local 183 bargaining units within Board area #8 in three different forms, one of which dealt with employees engaged in concrete forming construction. That unit was described in the following terms:
"All employees of the respondent engaged in concrete forming on residential building projects [in Board area #8], save and except non-working foremen and persons above the rank of non-working foreman."
Since this was a unit which the Board has previously found to be appropriate for collective bargaining purposes and since Local 183 and Highrise agree that this application affects employees of Highrise engaged in concrete forming construction, the Board sees no reason why it should depart from its prior policy of granting Local 183 the unit described immediately above.
Accordingly, pursuant to the Board's discretion under section 6(la) of the Act and pending determination of the status of Matterhorn Construction (Hamilton) Limited, the Board grants interim certification to the applicant as the exclusive bargaining agent for all employees of Highrise Crane and Rental Limited engaged in concrete forming on residential building projects 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.
A formal certificate must await the final determination of the status of Matterhorn Construction (Hamilton) Limited. In that respect, the Registrar is directed to list this application for hearing for the purpose of receiving the evidence and submissions of the parties on the applicant's allegation that there has been a sale of business within the meaning of section 55 of the Act between the two respondents or, in the alternative, they should be treated as one employer for the purposes of the Act, pursuant to section 1(4).