[1982] OLRB Rep. August 1147
2658-81-R Ron McKibbon, and others, Applicants, v. United Brotherhood of Carpenters and Joiners of America, Respondent, v. Clarence H. Graham Construction Limited, Intervener
BEFORE: Rory F. Egan, Vice-Chairman, and Board Members W. G. Donnelly and A. Hershkovitz.
APPEARANCES: Michael Gordon and John H. F. Middlebro for the applicants; Douglas J. Wray and Brvon Black for the respondent; Brian P. Smeenk and Richard Graham for the intervener.
DECISION OF RORY F. EGAN, VICE-CHAIRMAN AND BOARD MEMBER W. G. DONNELLY; August 9, 1982
1This is an application brought under the provisions of section 57 of the Labour Relations Act for a declaration terminating bargaining rights.
2Sections 57(1), (2) and (3) are as follows:
57.1(1) If a trade union does not make a collective agreement with the employer within one year after its certification, any of the employees in the bargaining unit determined in the certificate may, subject to section 61, apply to the Board for a declaration that the trade union no longer represents the employees in the bargaining unit.
(2) Any of the employees in the bargaining unit defined in a collective agreement may, subject to section 61, apply to the Board for a declaration that the trade union no longer represents the employees in the bargaining unit.
(a) in the case of a collective agreement for a term of not more than three years, only after the commencement of the last two
months of its operation;
(b) in the case of a collective agreement for a term of more than three years, only after the commencement of the thirty-fifth month of its operation and before the commencement of the thirty-seventh month of its operation and during the two-month period immediately preceding the end of each year that the agreement continues to operate thereafter or after the commencement of the last two months of its operation, as the case may be;
(c) in the case of a collective agreement referred to in clause (a) or (b) that provides that it will continue to operate for any further term or successive terms if either party fails to give to the other notice to bargain with a view to the renewal, with or without modifications, of the agreement or to the making of a new agreement, only during the last two months of each year that it so continues to operate or after the commencement of the last two months of its operation, as the case may be.
(3) Upon an application under subsection (I) or (2), the Board shall ascertain the number of employees in the bargaining unit at the time the application was made and whether not less than 45 per cent of the employees in the bargaining unit have voluntarily signified in writing at such time as is determined under clause 103(2)(j) that they no longer wish to be represented by the trade union, and, if not less than 45 per cent have so signified, the Board shall, by a representation vote, satisfy itself that a majority of the employees desire that the right of the trade union to bargain on their behalf be terminated.
3The applicants seek the declaration with respect to two bargaining units or employees of the intervener.
4On February 3, 1982, the respondent was granted two certificates by the Board. One certificate describes a bargaining unit comprising all carpenters and carpenters' apprentices in the employ of Clarence H. Graham Construction Limited 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.
5The other certificate describes a bargaining unit comprising all carpenters and carpenters' apprentices in the employ of Clarence H. Graham Construction Limited in the County of Grey, excluding the industrial, commercial and institutional sector, save and except non-working foremen and persons above the rank of non-working foreman.
6Both certificates were issued on February 3, 1982. The application for the declaration was filed on March 23, 1982. The document filed in support of the application does not differentiate between the two bargaining units. It bears the signature of 5 employees of the intervener.
7The Board confirms its decision made at the hearing that the application for a declaration terminating bargaining rights with respect to the bargaining unit comprising all carpenters and carpenters' apprentices in the employ of Clarence H. Graham Construction Limited in the County of Grey, excluding the industrial, commercial and institutional sector, save and except non-working foremen and persons above the rank of non-working foreman, is untimely, having regard to the provisions of section 57(1) and section 123(1). The application with respect to that bargaining unit, (the non-I.C.I. sector) is accordingly dismissed.
8The Board now proceeds to consider the application with respect to the I.C.I. bargaining unit.
9The respondent argues that the application falls within the provisions of section 57(2) of the Act.
10It is not disputed that by virtue of section 145(4) of the Act the company and its employees, after certification, became bound by the provisions of the provincial agreement acknowledged by all parties to have been in force at the date of certification. The agreement was in the last two months of its operation when the application was made so that no question of timeliness is involved.
11The respondent takes the position that the bargaining unit comprises all employees covered by the provincial agreement and that the applicant has therefore not met the requirement of section 57(3) that an application have the voluntary support of not less than 45% of the employees in the bargaining unit. The application was supported by 5 employees, whereas the provincial agreement covers thousands of employees. The respondent's position is that the bargaining unit "determined in the certificate" has lost all significance by reason of the operations of section 145(4) and that the bargaining unit for the purposes of section 57(3) is, accordingly, a province-wide bargaining unit.
12The respondent union made reference to various sections of the Act where the term "provincial unit" and province-wide bargaining are used, and submitted that these gave support to its contention that the bargaining unit for the purposes of termination must be a province-wide unit in the sense that it must include all employees to whom the province-wide agreement applies. Some of the sections are as follows:
(a) Section 137(l)(b) states that "bargaining" in sections 138 to 151 which deal with province-wide bargaining, means province-wide, multi-employer bargaining. There is, however, no reference to bargaining units in that definition. Subsection (e) defines a "provincial agreement" as an agreement in writing covering the whole Province of Ontario between representatives of employers and a designated or certified employee bargaining agency. It does not make reference to a bargaining unit.
(b) Section 139(a) speaks of provincial units of affiliated bargaining agents and (b) speaks of provincial units of employers.
(c) Section 140 deals with "a provincial unit of affiliated bargaining agents", and section 142 with "a provincial unit of affiliated bargaining agents".
There is no reference, however, to a provincial bargaining unit of employees in these sections, and none can be inferred from the language used throughout the Province-Wide Bargaining sections of the Act.
13The applicant submitted that the principle set out in section 3 of the Act to the effect that every person is free to join the trade union of his choice has a corollary that ensures freedom to terminate a relationship with a trade union. It further argues that in the absence of provisions for termination under the construction industry sections the terms of sections 57(2) and (3) state that the unit must be, for the purposes of termination, one composed of the employees of the employer named in the certification, that is, all carpenters and carpenters' apprentices employed by Clarence H. Graham Construction Limited in the Province of Ontario. Clarence H. Graham Construction Limited argued that the bargaining unit proposed by the applicant was the proper one and relied upon the decision of the Board in the Jan Peters Ltd. case, [1980] OLRB Rep. May 714.
14The union in the present case was certified for a bargaining unit made up of employees of the particular employer, Clarence H. Graham Construction Limited, wherever they may be found in the province. These employees are then automatically covered by the province-wide collective agreement, that is, by a collective agreement that is applicable to Graham Construction employees and to other employees of other employers throughout the province. The employer at the time of certification remains the employer throughout and his employees at the time of certification remain his employees throughout. There is, accordingly, no such thing as a homogeneous provincial bargaining unit, but only a conglomeration of individual bargaining units to whom the terms of the provincial collective agreement apply.
15The collective bargaining agent is there for the purpose of bargaining only (sections 137(2) and 142). The fact that no individual group may strike (section 148) flows not from any concept of a homogeneous bargaining unit but from the fact that a strike or a lockout is a part of the collective bargaining process and that function, that is, collective bargaining, is reserved to the employee bargaining agency. Termination proceedings are not part of the bargaining process and do not fall within the provincial bargaining area. Just as certification can be obtained by a group of employees of an employer notwithstanding the fact that they do not embrace all carpenters (or whatever trade) in the province, so a group of employees must be able to apply for termination of bargaining rights for the employees of their own employer, although again they do not represent all the carpenters in the provincial unit.
16Support for these views may be found in the case of Jan Peters Ltd., supra. There the Board dealt with an application for termination of bargaining rights of employees in both sectors where a local agreement and a provincial agreement were in effect. The application with respect to the local agreement was found to be untimely, whereas it was found to be timely insofar as the provincial agreement was concerned. The same situation exists in the present case.
17The Board in the Jan Peters Ltd. case dealt with the questions of the correct bargaining unit for the purposes of termination. The bargaining unit had been described as covering the Counties of Waterloo and Wellington and the Board, citing section 125(2) [now 137(2)] of the Act, had the following to say, at page 716:
The effect of this provision is to extend by operation of law recognition of the respondent trade union from the Counties of Waterloo and Wellington to the whole of the Province of Ontario, that is, the geographic jurisdiction of Local 793, but only for bargaining rights in the industrial, commercial and institutional sector of the construction industry. Since the bargaining unit in the provincial agreement affecting the employer in this case has been modified by operation of law, we are of the view that the correct bargaining unit for termination purposes in this application is the bargaining unit as amended by section 125(2). To suggest otherwise would lead to an untenable position. On May 1st the bargaining rights of the respondent became province-wide for the industrial, commercial and institutional sector of the construction industry. If this Board were to terminate bargaining rights for the Counties of Waterloo and Wellington, the bargaining rights would continue to exist for the remainder of the province and then the new subsection 2 of section 125 would deem those bargaining rights to extend recognition back into the Counties of Waterloo and Wellington.
18The Board then went on to direct a vote. It declared that those eligible to vote were all employees in the industrial, commercial and institutional sector engaged in the operation of cranes, shovels, bulldozers and similar equipment and those primarily engaged in the maintaining and repairing of such equipment in the Province of Ontario, save and except non-working foremen and persons above the rank of nonworking foreman.
19The precise question of the effect of sections 57(2) and (3) on employees' rights with respect to termination where a provincial agreement subsists was not raised in the Peters case. However, the Board did find the "correct" bargaining unit in termination cases under a provincial agreement. It is the employees in that bargaining unit, however vaguely described in the provincial agreement, who are entitled to make an application for termination of bargaining rights under sections 57(2) and (3) of the Act.
20We accordingly find that the correct bargaining unit for the purposes of termination in the present instance comprises all carpenters and carpenters~ apprentices in the employ of Clarence H. Graham Construction Limited 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.
21The Board is satisfied on all the evidence before it that not less than forty-five per cent of the employees of Clarence H. Graham Construction Limited in the bargaining unit at the time the application was made have voluntarily signified in writing that they no longer wish to be represented by the respondent trade union as of April 2, 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 making such determination.
22The Board accordingly directs that a representation vote be taken of the employees of Clarence H. Graham Construction Limited. Those eligible to vote are all employees employed in the correct bargaining unit described above on the date hereof who do not voluntarily terminate their employment or who are not discharged for cause between the date hereof and the date the vote is taken.
23Voters will be asked to indicate whether or not they wish to be represented by the respondent in their employment relations with Clarence H. Graham Construction Limited.
24The matter is referred to the Registrar.
DECISION OF BOARD MEMBER A. HERSHKOVITZ;
The decision of A. Hershkovitz will follow.