[1982] OLRB Rep. May 660
0053-82-R International Brotherhood of Electrical Workers Local Union 1687, Applicant, v. Crowle Electrical Limited c.o.b. as Crown Electric, Respondent, v. Christian Labour Association of Canada, Intervener, v. Group of Employees, Objectors
BEFORE: N.B Satterfield, Vice-Chairman and Board Members J.D. Bell and H. Kobryn.
APPEARANCES: Jeffrey Egner and Lou Popovich for the applicant; Richard Crowle for the respondent, Jonn Adema for the intervener; no one appearing for the objectors.
DECISION OF THE BOARD; May 17, 1982
- The application was listed for hearing for the purpose of hearing the evidence and the representations of the parties with respect to all matters arising out of and incidental to the application including:
(a) the description of the bargaining unit, having particular regard to section 144(1) of the Act; and
(b) the issue of who would be entitled to vote if a representation vote were to be directed and the form of the ballot.
The Board finds that this is an application for certification within the meaning of section 119 of the Labour Relations Act and that the application is timely pursuant to section 5 of the Act.
The Board further finds that the applicant is a trade union within the meaning of section l(l)(p) of the 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 December 12, 1977, the designated employee bargaining agency is the International Brotherhood of Electrical Workers and the IBEW Construction Council of Ontario.
The applicant is seeking to represent the employees of the respondent in a bargaining unit described in the following terms:
"all electricians and electricians' apprentices in the employ of the respondent in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and all electricians' apprentices 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 foremen and persons above the rank of non-working foreman."
The respondent and the intervener are parties to a collective agreement which expired April 30th, 1982. The parties are agreed that the bargaining unit described in the collective agreement is for all electricians and electricians' apprentices in the employ of the respondent in that portion of the District of Algoma south of the 49th parallel of latitude save and except non-working foremen and persons above the rank of non-working foreman. The intervener and the respondent contend that the unit described in the collective agreement is the unit which is appropriate for collective bargaining and therefore should be the voting constituency for a representation vote were the Board to direct that one be held. They were relying on the Board's long-standing policy that, where an applicant seeks to displace an incumbent bargaining agent and where a collective agreement is in force, the appropriate bargaining unit is the unit described in the collective agreement between the employer and the incumbent. The applicant contends that it is applying for certification pursuant to section 144 of the Act and that this section is a complete code for all applications for certification in the construction industry. Therefore, since the application is seeking to represent employees in the industrial, commercial and institutional sector of an construction industry, it must seek a unit which meets the requirements of section 144(1).
- Section 144(1) 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.
The applicant and the intervener cited a variety of authorities to support their respective positions. Those cited by the applicant dealt with applications for certification which had been made since what is now section 144 of the Act first came into force on May 1, 1980. Those cued by the respondent dealt with applications made prior to the coming into force of section 144.
Having heard the submissions of the parties on the bargaining unit issue, the Board ascertained that, whether the unit was described as set out in the collective agreement between the intervener and the respondent or as sought by the applicant, the same employees, as of the application date April 5th, 1982, would be affected. Therefore the Board advised the parties that it would reserve its decision on the bargaining unit and would deal with the count and the membership support for the applicant to determine whether it was entitled to a representation vote. If it was, the Board would stand the matter down while the parties met with a Board Officer to make the voting arrangements and, if the Board could in the meantime determine the bargaining unit issue, it would bring the parties back before it and make its ruling orally.
The lists of employees duly filed by the respondent indicate that there were 21 employees at work in the bargaining unit on the date of the application, whether the unit is described as sought by the applicant or as contended by the respondent and intervener. Fourteen of the membership cards and separate receipts filed by the applicant in support of its application coincide with the names of the employees on the respondent's lists. Therefore, the Board is satisfied on the basis of all the evidence before it that not less than forty-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 April 20, 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.
The 3oard gave its decision on the bargaining unit issue orally at the hearing and it confirms herein that decision:
Having considered the submissions of the parties with respect to the Board's policy under the Labour Relations Act when determining the voting constituency where the applicant is seeking to displace an existing bargaining agent and the effect thereon of section 144 of the Act, the Board rules as follows:
1). The Board's decision in Colonist Homes Ltd., [1980] OLRB Rep. Dec. 1729, at paragraph 7, recognizes the principle that an applicant which is an affiliated bargaining agent or any of the eligible applicants under section 144 of the Act determines whether an application made under that section relates to subsection 1 or subsection 3.
2). Having regard for that principle and for the principles set out in the Board's decision in Clarence H. Graham Construction Limited, [1981] OLRB Rep. Sept. 1195, at paragraphs 6 and 7 with respect to the operation of section 144, the Board finds that the voting constituency in this application must be described in terms compatible with section 144(1) of the Act.
3). Therefore, the Board directs that a representation vote be taken of the employees of the respondent in a voting constituency as follows:
"all electricians and electricians' apprentices in the employ of the respondent in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and all electricians and electricians' apprentices in all other sectors in that portion of the District of Algoma south of the 49th parallel of latitude, save and except non-working foremen and persons above the rank of non-working foreman".
All employees of the respondent in the voting constituency on the 14th day of May, 1982, who have not voluntarily terminated their employment or who have not been discharged for cause between the 14th day of May, 1982, and the date the vote is taken will be eligible to vote.
Voters will be asked to indicate whether they wish to be represented by the applicant or the intervener in their employment relations with the respondent.
The matter is referred to the Registrar.