[1982] OLRB Rep. November 1692
0950-82-R Labourers' International Union of North America, Local 837, Applicant, v. Ninco Construction Ltd., Respondent,
BEFORE: Ian Springate, Vice-Chairman, and Board Members I. M. Stamp and C. A. Ballentine.
APPEARANCES: B. Fishbein, D. McGregor and D. St rang for the applicant; No one appearing for the respondent.
DECISION OF THE BOARD; November 8, 1982
This is an application for certification filed pursuant to 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)(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 respondent is engaged on a project in the City of Hamilton. According to the applicant, on the date of the filing of the application, the respondent employed a number of carpenters, construction labourers and certain employees doing cement finishing work. At times the respondent also employed both rodmen and equipment operators, although apparently no employees within these two classifications were at work on the application date. At the hearing, counsel for the applicant requested that the bargaining unit be described to encompass the industrial, commercial and institutional sector (the "ICI sector") as well as the other sectors of the construction industry and also that the unit be described in terms of all trades in the respondent's employ in Board Area #26. The labourers' employee bargaining agency has not been designated to represent carpenters, rodmen or equipment operators.
In Clarence H. Graham Construction Limited [1981] OLRB Rep. Sept. 1195, the Board considered a request by the United Brotherhood of Carpenters and Joiners of America that it be certified to represent a bargaining unit comprised of carpenters and carpenters' apprentices as well as a second bargaining unit comprised of construction labourers, bricklayers and bricklayers' apprentices. Both of these requested units would have encompassed the ICI and other sectors of the construction industry. After reviewing the provisions of the Act relating to the regime of provincial bargaining in the ICI sector, the Board concluded that the only appropriate bargaining unit was one described in terms of carpenters and carpenters' apprentices. It is clear that in reaching this conclusion the Board took into account the fact that while the carpenters union is included in the ICI scheme of provincial bargaining, any construction labourers and bricklayers represented by the union would be excluded from the provincial bargaining scheme and hence not be covered by any provincial agreement. The Board commented on this possibility as follows:
"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 representational 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.
The contention of the applicant is that in the Clarence H. Graham case the Board misinterpreted the relevant provisions of the Act and wrongly concluded that it was prohibited from certifying an affiliated bargaining agent for employees falling outside the scope of the relevant designation. Accordingly, contends the applicant, the Board should not follow the reasoning set forth in that case. We incline to the view that section 144 of the Act does not permit an affiliated bargaining agent to apply to represent employees in the ICI sector who are outside the scope of the designation affecting it. However, even assuming that the Act does not actually prohibit such a result, we nevertheless regard the unit being requested here, (namely one which includes employees both within and outside the regime of provincial bargaining such that some but not all of the employees would fall under a provincial agreement) to be disruptive of the scheme of provincial bargaining and not appropriate for collective bargaining. The Board has a broad general authority under section 6(1) of the Act to determine the unit that is appropriate for collective bargaining. In the ICI sector this broad authority is restricted somewhat by section 144. Nothing in section 144, however, mandates that the Board include different crafts or classes of employees within the same bargaining unit or requires that employees within and outside the scheme of provincial bargaining be included in the same unit. Accordingly, even if such a unit is permitted under the Act, nevertheless the Board still retains the authority under section 6(1) to conclude that it is inappropriate. As already indicated, we view the unit being requested in this case as inappropriate. Instead, we regard the appropriate bargaining unit as one which encompasses only employees covered by the labourers' employee bargaining agency designation and who, accordingly, would fall under the labourers' provincial agreement.
At the hearing, counsel for the applicant contended that any bargaining unit fashioned by the Board should expressly include not only construction labourers but also "all employees engaged in cement finishing, waterproofing or restoration work". This phrase is utilized in both the labourers' employee bargaining agency designation and the labourers' provincial agreement. Presumably the phrase found its way into the designation because of its use in collective agreements entered into by various Ontario locals of the Labourers' International Union prior to the advent of provincial bargaining. To our knowledge, except for displacement applications where the wording had previously been utilized by the employer and the incumbent union, the Board has never recognized employees engaged in cement finishing, waterproofing or restoration work as being one or more separate trades or classifications of employees for certification purposes. Indeed, the Board's experience is that the types of work involved can, and have been, performed by members of more than one trade. We are not satisfied on the material before us that the Board should now begin to describe bargaining units in these terms. However, in that on the application date the respondent did have employees engaged in cement finishing work, we think it appropriate to describe the bargaining unit in terms of construction labourers but to specify in a clarity note that employees performing this type of work do come within the scope of the bargaining unit. In that the respondent had no employees engaged in waterproofing or restoration work at the relevant time, we do not feel it appropriate to include a similar clarity note relating to this type of work.
Having regard to the above reasoning, and to the provisions of sections 6(1) and 144(1) of the Act, the Board finds 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 Regional Municipality of Hamilton-Wentworth, the City of Burlington, that portion of the geographic Township of Beverly annexed by North Dumfries Township and that portion of the Town of Milton within the geographic Townships of Nassagaweya and Nelson, 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.
For the purposes of clarity, the Board notes that employees engaged in cement finishing work are included in the bargaining unit.
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 August 27, 1982, the terminal date fixed for this application and the date which the Board determines, under section 103(2)(j) of the Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act.
Section 144(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 me appropriate geographic area or areas.
(emphasis added)
Therefore, pursuant to section 144(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 2 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.
- Further, pursuant to section 144(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 the Regional Municipality of Hamilton-Wentworth, the City of Burlington, that portion of the geographic Township of Beverly annexed by North Dumfries Township and that portion of the Town of Milton within the geographic Townships of Nassagaweya and Nelson, excluding the institutional, commercial and industrial sector, save and except non-working foremen and persons above the rank of non-working foreman.