General Workers' Union, Local 1030 of the United Brotherhood of Carpenters and Joiners of America v. Rolland Duquette Construction
[1983] OLRB Rep. November 1884
1081-83-R General Workers' Union, Local 1030 of the United Brotherhood of Carpenters and Joiners of America, Applicant, v. Rolland Duquette Construction, Respondent, v. Labourers' International Union of North America, Local 527, Intervener
BEFORE: Ian C. Springate, Vice-Chairman, and Board Members J. A. Ronson and P. J. O'Keeffe.
APPEARANCES: Douglas J. Wray and Frank Manoni for the applicant; no one appearing for the respondent; B. Fishbein and A. Roy for the intervener.
DECISION OF THE BOARD; November 8, 1983
1These proceedings commenced with the filing of an application for certification by General Workers' Union, Local 1030 of the United Brotherhood of Carpenters and Joiners of America ("Carpenters Local 1030"). The application was filed pursuant to the construction industry provisions of the Labour Relations Act.
2The status of Carpenters Local 1030 was dealt with at some length by the Board in its decisions in Manacon Construction Limited [1983] OLRB Rep. Mar. 407 and a second, decision dated July 13, 1983 reported at [1983] OLRB Rep. July 1104. Local 1030 was chartered by the United Brotherhood of Carpenters and Joiners of America to represent "helpers, including labourers and other construction workers, excluding carpenters and carpenters apprentices who are employed in the industrial, commercial and institutional sector of the construction industry". In the Manacon case, the local had applied to be certified to represent, amongst others, a number of construction labourers working in the industrial, commercial and institutional sector of the construction industry (the "ICI sector"). In that case, the Board concluded that the local was an affiliated bargaining agent of a designated employee bargaining agency (namely, the United Brotherhood of Carpenters and Joiners of America and the Ontario Provincial Council of the United Brotherhood of Carpenters and Joiners of America) and as such was required to bring all applications for certification that relate to the ICI sector under 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.
3In the Manacon case, the Board concluded that the application by Carpenters Local 1030 could not succeed under section 144(1) because the unit it was seeking to represent would not constitute an appropriate bargaining unit under that subsection. The Board also reasoned that the local would be prevented by section 146(2) from concluding a lawful collective agreement covering construction labourers employed in the ICI sector.
4In filing the instant application, Carpenters Local 1030 requested that it be certified to represent a unit of construction labourers in the employ of the respondent in Board Area #15 (the Regional Municipality of Ottawa-Carleton, and the United Counties of Prescott & Russell) for all sectors of the construction industry, excluding the ICI sector. It is the position of the local that it is entitled to bring such an application pursuant to section 144(3) of the Act, which provides as follows:
"Notwithstanding subsection I 19(1), a trade union represented by an employee bargaining agency may bring an application for certification in relation to a unit of employees employed in all sectors of a geographic area other than the industrial, commercial and institutional sector and the unit shall be deemed to be a unit of employees appropriate for collective bargaining."
5The respondent employer made no filings in response to the application for certification. However, prior to the terminal date fixed for the application, Labourers' International Union of North America, Local 527 ("Labourers Local 527") intervened in the proceedings by way of an application for certification by intervener. The Labourers Local is seeking to be certified to represent a unit of construction labourers in the employ of the respondent in the ICI sector in the Province of Ontario, and in all other sectors in Board Area #15. Such a unit would appear to be a unit for which Local 527 is entitled to bring an application for certification pursuant to section 144(1).
6The Board scheduled a hearing into the two applications. The respondent did not attend at the hearings although both trade unions were represented by counsel. At the hearing, both unions agreed that on the date of the filing of the application by Carpenters Local 1030 (which pursuant to section 103(3), the Board will treat as the application date for both applications) the respondent was engaged on two projects, both of them within Board Area #15. One of the projects involved the construction of a rapid transit line over-pass in the City of Ottawa. Both unions acknowledge that this project did not come within the ICI sector. The other project involved the construction of a community centre in Vernon. Both unions agree that this project was within the ICI sector.
7Carpenters Local 1030 does not dispute the right of Labourers Local 527 to bring its application for certification under section 144(1). However, Local 527 submits that Carpenters Local 1030 is not entitled to bring its application under section 144(3). It is the contention of Labourers Local 527 that the provision in section 144(3) permitting a trade union represented by an employee bargaining agency to bring an application for certification in relation "to a unit of employees in all sectors of a geographic area other than the industrial, commercial and institutional sector" impliedly refers to a unit described in terms of the same classes of employees that the union is entitled to bargain for in the ICI sector. Local 527 contends that any other approach would be destructive of stability in construction industry bargaining. In this regard, the local relies on certain comments of the Board in the Manacon case, wherein the Board indicated that for it to certify Labourers Local 1030 for construction labourers employed in the ICI sector would be inconsistent with the legislative objective of stabilizing the collective bargaining process in the ICI sector. It is the position of Labourers Local 527 that the reasoning behind those comments is also applicable to collective bargaining in the non-ICI sectors.
8On a review of the language of section 144(3), we are satisfied that the subsection does not restrict Carpenters Local 1030 from bringing an application for certification for a bargaining unit which encompasses construction labourers employed outside of the ICI sector. In our view, had it been the intent of the Legislature to apply the same restrictions with respect to non-IC I bargaining units, as it did for units that relate to the ICI sector, it would have done so through express language in the Act, and since it has not done so, it would be inappropriate for the Board to imply any such restrictions. In this regard, we would note that whereas there exists a legislatively mandated scheme of what might loosely be termed as single-trade multi-employer bargaining in the ICI sector, no such similar mandated scheme exists with respect to the other sectors of the construction industry. Accordingly, the certification of unions "across craft lines" in the non-ICI sectors of the construction industry will not likely have the same type of disruptive effect that the Board referred to in the Manacon case.
9As an alternative argument, Labourers Local 527 contends that pursuant to section 146(2) of the Act, Carpenters Local 1030 is prohibited from entering into a collective agreement covering non-ICI construction labourers, since such an agreement would amount to an agreement other than a provincial agreement. Accordingly, contends Local 527, it makes no sense to certify Carpenters Local 1030 for the requested bargaining unit. Section 146 subsections (1) and (2) provide as follows:
"146. (1) An employee bargaining agency and an employer bargaining agency shall make only one provincial agreement for each provincial unit that it represents.
(2) On and after the 30th day of April, 1978 and subject to sections 139 and 145, no person, employee, trade union, council of trade unions, affiliated bargaining agent, employee bargaining agency, employer, employers' organization, group of employers' organizations or employer bargaining agency shall bargain for, attempt to bargain for, or conclude any collective agreement or other arrangement affecting employees represented by affiliated bargaining agents other than a provincial agreement as contemplated by subsection (1), and any collective agreement or other arrangement that does not comply with subsection (1) is null and void."
10We view the purpose of section 146 as being to ensure that unions covered by the scheme of provincial bargaining do not enter into any arrangement or collective agreement with respect to employees in the ICI sector that is other than a "provincial agreement" as that term is defined in section 137(l)(e). We do not view the section as restricting the right of unions to enter into collective agreements outside the ICI sector. Indeed, if one were to accept the interpretation contended for by Labourers Local 527, it would logically be improper for any local of any of the building trades unions to enter into separate collective agreements for the non-ICI sectors of the construction industry. Had the Legislature intended such a drastic result, we have no doubt that it would have used language much clearer than that contained in section 146. Accordingly, we do not view section 146 as a bar to this application.
11Having regard to the above, we are satisfied that Carpenters Local 1030 is entitled to bring an application for certification that relates to construction labourers employed outside of the ICI sector. This is not to say that the Local is as of right entitled to be certified for a unit described in terms of construction labourers, for it is not. In our view, pursuant to section 6(1) of the Act, the appropriate bargaining unit is one that encompasses all unrepresented trades in the employ of the respondent on the application date. As it happens, the only trades employed by the respondent on the application date were carpenters and construction labourers, and the carpenters were already represented by another local of the United Brotherhood of Carpenters and Joiners of America. This being so, the only unrepresented employees of the respondent were construction labourers. Accordingly, in the circumstances of this case, a unit described in terms of construction labourers would be appropriate.
12Having regard to the above, we are satisfied that we have before us two proper applications for certification. One is an application brought by Carpenters Local 1030 under section 144(3) for construction labourers employed in Board Area #15 exclusive of those in the ICI sector. The second is an application by Labourers Local 527 brought under section 144(1) for construction labourers in the ICI sector on a province-wide basis as well as construction labourers in all other sectors in Board Area #15. Having regard to the material before us, we are satisfied that each of the unions has filed timely evidence of membership on behalf of more than fifty-five per cent of the employees in the bargaining unit that it is seeking to represent.
13In these circumstances, the Board deems it appropriate to conduct a representation vote amongst the employees in the following voting constituency, namely:
all construction labourers in the employ of the respondent in all sectors of the construction industry other than the industrial, commercial and institutional sector, in the Regional Municipality of Ottawa-Carleton and the United Counties of Prescott and Russell, save and except non-working foremen and persons above the rank of non-working foreman.
The description of the final bargaining unit (or units) must, in the particular circumstances of this case, await the results of the representation vote.
14Those eligible to vote are all employees of the respondent in the voting constituency 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.
15Voters will be asked to indicate whether they desire to be represented by General Workers' Union, Local 1030 of the United Brotherhood of Carpenters and Joiners of America or by Labourers' International Union of North America, Local 527 in their employment relations with Rolland Duquette Construction.
16The matter is referred to the Registrar.