Labourers' International Union of North America, Local 1036 v. Common Construction Company Ltd., 1982 CanLII 1034

Ontario Labour Relations Board

[1982] OLRB Rep. September 1271

0949-82-R Labourers' International Union of North America, Local 1036, applicant, v. Common Construction Company Ltd., respondent

BEFORE: R. A. Furness, Vice-Chairman, and Board Members J. Wilson and C. A. Ballentine.

DECISION OF THE BOARD: September 3, 1982

Decision

1. In this application for certification the applicant filed four combination applications for membership and receipts. The combination applications for member­ship are signed by the employees and the receipts are countersigned and indicate that a payment of $1.00 has been made within the six month period immediately preceding the terminal date of the application. The money was collected by more than one person. The applicant also filed a duly completed Form 80, Declaration Concerning Member­ship Documents, Construction Industry.

2. The respondent filed a reply, but failed to file a list of employees and specimen signatures within the time fixed in accordance with the Labour Relations Act and the Board's Rules of Procedure.

3. The respondent has filed a reply and has consented to the application being disposed of by the Board without a hearing by the Board and has made the following representations:

"Our irregular and limited presence in Ontario does not justify such an application and makes almost impossible the negotiation of a collective agreement, such as the one presently in force in Ontario. However, we are opened [sic] for discussion and suggestions."

The respondent has also stated in its reply that the appropriate unit would be restricted to general labourers in the Board's geographic area 21 and has alleged that all labourers residing in Quebec are subject to the Quebec Construction decree and are therefore automatically unionized. In paragraph 13 of its reply the respondent has stated:

"1) Our presence in Ontario is limited to one or two contracts per year for a maximum duration of one to two months and involves a maximum of 10 employees at all time.

2. The Quebec Construction decree prevails at all times for these general labourers.

The fact that the respondent works in Ontario on an irregular and limited basis is not a reason under the Act for denying certification to the applicant. With respect to the limited form of the bargaining unit proposed by the respondent, the applicant has demonstrated its entitlement to a unit in accordance with the provisions of section 144 of the Act and the Board finds no reason to depart from granting to the applicant the bargaining unit to which it is entitled under section 144. The fact that labourers residing in Quebec are subject to a construction decree has no effect on proceedings within the province of Ontario and whereas the Quebec construction decree prevails at all times, such a decree is in effect only in the province of Quebec. The applicant is entitled to have its request for certification considered under the laws of Ontario despite the fact that the respondent is based in the province of Quebec and apparently normally carries on its business in that province. In fact, upon certification the respondent may become automatically bound by the collective for the industrial, commercial and institutional sector of the construction industry with respect to construction labourers.

4. 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.

5. The Board further finds that this is an application for certification within the meaning of section 119 of the Labour Relations Act and is an application made pursuant to section 144(1) of the Act which provides that:

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 117 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.

6. The Board further finds, pursuant to section 144(1) 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 that portion of the District of Algoma south of the 49th parallel of latitude, save and except non-working foreman and persons above the rank of non-working foreman, constitute a unit of employees of the respondent appropriate for collective bargaining.

7. 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)0) of the Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act.

8. 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 in the 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 3 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.

9. 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 that portion of the District of Algoma south of the 49th parallel of latitude, excluding the industrial, commercial and institutional sector, save and except non-working foremen and persons above the rank of non-working foreman.