Labourers' International Union of North America Local 607 v. D.R. McCormick Electric Limited, 1982 CanLII 825

Ontario Labour Relations Board

[1982] OLRB Rep. April 626

2567-81 -R; 2572-81 -R; 2573-81-R; 2574-81-R; 2575-81-R; Labourers' International Union of North America Local 607, Applicant, v. D.R. McCormick Electric Limited; Clow Darling Mechanical Contractor Ltd., Tamarron Construction Limited; Tamarron Group Inc., T-2 Rentals Limited, v. Lumber and Sawmill Workers Union, Local 2693 of the United Brotherhood of Carpenters and Joiners of America, Interveners

BEFORE: D. E. Franks, Vice-Chairman, and Board Members L. Hemsworth and O. Hodges.

DECISION OF THE BOARD; April 6, 1982

1. These are applications for certification in which the applicant has requested that pre‑hearing representation votes be taken.

2. The applicant contends that the appropriate pre-hearing voting constituency and bargaining unit for each of the respective applications is:

"all construction labourers and all employees engaged in cement finishing, wather proofing or restoration work in the employ of the respondent,

(i) in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario;

(ii) in all sectors of the construction industry, save and except the industrial, commercial and institutional sector, in the District of Kenora inclusive of the Patricia Portion (OLRB geographic area 4),

save and except non-working foremen and persons above the rank of non-working foreman".

3. At the pre-hearing vote meeting held on March 26, 1982 concerning these applications, counsel for the respondents (Mr. F. Bickford) advised the Board Officer that only the respondent Tamarron Group Inc., (hereinafter referred to as "Tamarron Group") has employees who are affected by any of these applications as the respondent Clow Darling Mechanical Contractors Ltd. ("Clow Darling Mechanical") employs only steamfitters and welders, the respondent R. D. McCormick Electric Limited ("McCormick") employs only electricians, and the respondents T-2 Rentals Liniited ("T-2") and Tamarron Construction Limited ("Tamarron Construction") have no employees anywhere. The applicant does not accept that assertion. Moreover, the applicant alleges that Tamarron Group, Tamarron Construction and T-2 are associated or related businesses or activities under common direction or control within the meaning of section 1(4) of the Labour Relations Act and requests that the Board so declare. The applicant also seeks a section 1(4) declaration in respect of Clow Darling Plumbing and Heating Limited. (The latter Company is the respondent in another application for certification (Board File No. 2653-8 l-R) which has been filed with the Board by the applicant.)

4. Counsel for the respondents accepts the pre-hearing voting constituency and bargaining unit description submitted by the applicant in respect of Tamarron Group and also accepts that a similar voting constituency and bargaining unit description would be appropriate in respect of each of the other respondents if they employed persons who would come within that description, which, as noted above, is denied by the respondents. However, by letter dated March 30, 1982, counsel for the respondents has requested that the bargaining units should be limited to the industrial, commercial and institutional sector of the construction industry.

5. The intervener contends that it currently holds bargaining rights in respect of each of the respondents by virtue of a voluntary recognition agreement between it and Clow Darling Mechanical dated July 7, 1980; a voluntary recognition agreement between it and Tamarron Group dated July 9, 1980; a voluntary recognition agreement between it and Tamarron Construction dated July 9, 1980, and a collective agreement between it and General Contractors' Division of the Construction Association of Thunder Bay Incorporated, dated July 7, 1980. The applicant challenges the existence of any such bargaining rights. Clow Darling Mechanical and McCormick also deny that the intervener holds any bargaining rights in respect of them.

6. The intervener submits that the appropriate pre-hearing voting constituency and bargaining unit for each of the respective applications is:

"all employees employed by the Employer on all projects within the geographical District of Kenora (including the Patricia Portion) save and except for foremen, persons above the rank of foreman, office staff, timekeepers and persons bound by subsisting collective agreements to which the Employer is a party."

The interverner further submits that at the time of these applications, none of the respondents except Tamarron Group had any employees in the relevant bargaining units and that, therefore, each of the applications except the application in respect of Tamarron Group (Board File No. 2574-81 -R) should be dismissed. The intervener further contends that the respondents are related employers and seeks a declaration to that affect under section 1(4) of the Act.

7. The parties are in agreement that the same employees would be entitled to vote regardless of the ultimate description of the bargaining unit(s) as the employees allegedly represented by the intervener and those for whom the applicant seeks bargaining rights are the same. Further, that these employees are the same employees regardless of the disposition of the section 1(4) issue raised by the applicant and intervener but denied by the various respondents in the cases.

8. Although some of the matters raised by these applications are of such complexity that the Board might, in other circumstances, decline to direct that a pre-hearing representation vote be taken, in view of the fact that these applications pertain to the construction industry where employment with a particular employer tends to be of relatively short duration, in view of the agreement of the parties that the same persons would be eligible to vote regardless of the ultimate description of the bargaining unit(s) and in view of the applicant's contention that these applications have given rise to 58 discharges from the construction project at which most, if not all of the employees affected by these applications are or were employed (which discharges are the subject of a section 89 complaint (Board File No. 2625-81-U), the Board is of the view that this is an appropriate case in which to exercise its discretion under section 9(2) of the Act to direct that a pre-hearing representation vote be taken with respect to the various respondents thereby minimizing the likelihood that the work force will disburse before having an opportunity to cast ballots in a representation vote.

9. It appears to the Board on an examination of the records of the applicant and the records of the various respondents that not less than thirty-five per cent of the employees of those respondents in the voting constituency hereinafter described were members of the applicant at the time the applicant was made.

10. The Board directs that a pre-hearing representation vote be taken of the employees of the various respondents in the following voting constituency:

All construction labourers and all employees engaged in cement finishing, water proofing and restoration work in the employ of(a) D. R. McCormick Electric Limited, or (b) Clow Darling Mechanical Contractors Ltd., or (c) Tamarron Construction Limited, or (d) Tamarron Group Inc., or (e) T-2 Rentals Limited in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario, and all construction labourers and all employees engaged in cement finishing, water proofing and restoration work in the employ of (a) D. R. McCormick Electric Limited, or (b) Clow Darling Mechanical Contractors Ltd., or (c) Tamarron Construction Limited, or (d) Tamarron Group Inc., or (e) T-2 Rentals Limited in all other sectors in the District of Kenora including the Patricia Portion, save and except non-working foremen and persons above the rank of non-working foreman.

11. All employees of the various respondents in the voting constituency on the 23rd day of March, 1982, who have not voluntarily terminated their employment or who have not been discharged for cause between the 23rd day of March, 1982, and the date the vote is taken will be eligible to vote.

12. Because of the numerous and complex legal issues arising in these cases, the Board directs that all the ballots cast in this matter be segregated. More particularly, the Board directs that L. Almquist (classified by Tamarron Group Inc. as a general foreman), and G. Bushey (classified by Tamarron Group Inc. as a labourer) each be permitted to cast a ballot and that their ballots be segregated. The persons whose discharges are the subject of the section 89 complaint in Board File No. 2625-81-U and whose eligibility to vote is disputed, shall also be permitted to cast segregated ballots.

13. In view of the decision to grant a pre-hearing vote in this matter, and because the issue of whether or not the intervener has a bargaining relationship with any or all of the respondents, we have decided to adopt an unusual procedure with respect to the vote ordered herein. Clearly, if the intervener has bargaining rights, the Board would conduct a vote giving the employees a choice between the applicant and the intervener. However, if the intervener has no valid collective agreement with the respondents or any of them then the Board would simply give the employees the choice of whether or not they wanted to be represented by the applicant. Since this matter cannot be determined without a hearing, we propose to determine the wishes of the employees in either event at the pre-hearing vote. Accordingly, each voter will be given two ballots. On one ballot voters will be asked to indicate whether they wish to be represented by the applicant or by the intervener in their employment relatios with (a) D. R. McCormick Electric Limited, or (b) Clow Darling Mechanical Contractors Ltd., or (c) Tamarron Construction Limited, or (d) Tamarron Group Inc., or(e) T-2 Rentals Limited. On the other ballot voters will be asked to indicate whether or not they wish to be represented by the applicant in their employment relations with (a) D. R. McCormick Electric Limited, or (b) Clow Darling Mechanical Contractors Ltd., or (c) Tamarron Construction Limited, or (d) Tamarron Group Inc., or (e) T-2 Rentals Limited. Depending on the outcome of the determination of the status of the intervener, the Board will count only one of the two sets of ballots cast.

14. The Board directs that the ballot box containing all of the ballots cast in the prehearing representation vote be sealed and that the ballots not be counted pending further direction by the Board.

15. The Registrar is directed to list these matters for hearing following the holding of the vote for the purpose of hearing the evidence and representations of the parties with respect to all matters arising out of and incidental to these applications.

16. In view of an order directing the voters to cast two different ballots set out in paragraph 13 above, the employers are directed to post the attached Appendix "A", Notice to Employees, alongside Form 69, Notice of Taking of Vote, given by the Registrar in these matters.