Douglas C. Heino and Duane D. Reynard v. United Brotherhood of Carpenters and Joiners of America, Local 1669
[1982] OLRB Rep. August 1199
0113-82-R Douglas C. Heino and Duane D. Reynard, Applicants, v. United Brotherhood of Carpenters and Joiners of America, Local 1669, v. T. E. Leroux Contracting Ltd., Intervener.
BEFORE: D. E. Franks, Vice-Chairman, and Board Members E. J. Brady and B. K. Lee.
APPEARANCES: Duane Douglas Reinard and Doug Heino for the applicant; B. W Adams and W. Sherman for the respondent; Terry Lerous for the intervener.
DECISION OF THE BOARD; August 20, 1982
I. This is an application for termination wherein the two applicants seek to terminate the bargaining rights of the respondent, Carpenters Union.
- At the commencement of the hearing, counsel for the respondent trade union raised two preliminary objections to the application:
(a) the applicants lack status to bring the present application since they were not employees in the bargaining unit, namely, a bargaining unit of carpenters and carpenters' apprentices at the time the application was made and further,
(b) they were not lawfully employed in the bargaining unit, that is, they were employed in violation of a collective agreement as set out in the April Waterproofing case, [1980] OLRB Rep. Nov. 1577.
- The position taken by both the applicants and the intervener employer is that on the day of the making of the application and for the few days immediately preceding that date, the applicants were employed as part of a larger crew placing a concrete floor. Consequently, it is clear that although there were minimal amounts of carpentry work performed by them on the date of the making of the application, they were employed as labourers rather than carpenters. This is an application brought under section 57 of the Act. Section 57 subsection 2 reads in part as follows:
"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defined in a collective agreement may, subject to section 61, apply to the Board for a declaration that the trade union no longer represents the employees in the bargaining unit,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; .."
The legislation is clear, an application for termination can only be brought by employees in the bargaining unit. In the instant case, that is a bargaining unit consisting of carpenters and carpenters' apprentices. In certification cases involving the construction industry provisions of the Act, the Board has consistently held that it will only look to the date of the making of the application as the date for determining the list of employees in a bargaining unit. See, for instance, Keystone Contractors Limited [1966] OLRB Rep. Feb. 821. The reasons for this rule is that it eliminates extensive arguments concerning the type of work being performed by employees who may or may not be in a particular bargaining unit. Counsel for the respondent trade union argued that in a termination case involving a construction union, the same test ought to be applied. Thus, the Board should look to the date of the making of the application and if there were no employees in the bargaining unit or if the applicants are not employed in that bargaining unit as in the present case, then they should not be entitled to bring such an application.
We are of the view that in cases involving construction trade unions the Board ought only to look at the date of the making of the application for termination, to determine the status of employees under section 57(2) to make that application. However, we note that in the circumstances of the present case, even if we were prepared to take a longer period of time as the relevant time to determine whether or not the employees were employees in the bargaining unit, it is clear on the representations of both the applicants and the intervener employer that we would still not view them as carpenters or carpenters' apprentices. Indeed, the list of employees in the bargaining unit filed by the respondent employer lists Mr. Heino as "a steel building erector trainee" and Mr. Reynard as an electrician. It is clear that the business of Mr. Leroux, the employer is erecting pre-engineered steel buildings and the two employees who are the applicants in this case are employed in all facets of such construction. As such they perform the work of a variety of trades from electrician through to labourer. In the circumstances, therefore, it would appear that although they, on occasion do perform carpentry work and that work would be covered by the collective agreement between the respondent trade union and the intervener employer, it is clear that they are not carpenters for a majority of their time.
For the foregoing reasons we would dismiss the present application for termination, and although it is not necessary to deal with the respondent's argument concerning the April Waterproofing case, supra it would seem that as a consequence of that case, the two applicants are also not employees in the unit of employees in the collective agreement between the respondent and the intervener.