[1983] OLRB Rep. November 1908
1583-83-R Ironworkers District Council of Ontario, Applicant, v. Semple-Gooder Roofing Ltd., Respondent, v. Ontario Sheet Metal Workers' Conference, Intervener
BEFORE: N. B. Satterfield, Vice-Chairman and Board Members F. W. Murray and H. Kobryn.
APPEARANCES: David Starkman and Allan MacIsaac for the applicant; G. L. Gooder for the respondent; A. M. Minsky and W Ward for the intervener.
DECISION OF THE BOARD; November 18, 1983
This application for certification has been made under the construction industry provisions of the Labour Relations Act. The applicant Ironworkers' District Council of Ontario ("the Council") has applied to be the exclusive bargaining agent for all ironworkers and iron-workers' apprentices employed by the respondent in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and in all other sectors of the construction industry in the Board's geographic area #8. A bargaining unit described in terms of ironworkers and ironworkers' apprentices is the traditional craft unit usually granted by the Board to the Council or its affiliated bargaining agents. The Council has described in paragraph 4 of the application the specific nature of the respondent's business affected by the application as the "installation of all structural and miscellaneous metal". It has used the identical phrase to describe in paragraph 5 of the application the nature of work being performed by the employees employed in the bargaining unit claimed to be appropriate for collective bargaining.
The Ontario Sheet Metal Workers' Conference ("the Conference") filed a timely "Intervention, Construction Industry" form claiming that the application for certification was not timely on two grounds. First, the work performed by the employees in the bargaining unit that the Council claims to be appropriate for collective bargaining is work covered by the Sheet Metal Workers' Provincial Agreement which is binding upon the Conference and the respondent, particularly by clause 19 of Appendix A - Sheeting and Decking; and, purusant to Article 8 of that agreement, the respondent is required to employ only members of the Conference or its constituent local trade unions to perform work covered by that agreement. Second, the Sheet Metal Workers' Provincial Agreement expires April 30, 1984 and applications for certifications with respect to employees or work covered by that Agreement are timely under the Act only during the last 60 days of the agreement's operation.
Those grounds formed the basis of a request by the Conference to have the application put on for hearing. Accordingly, it was scheduled for hearing for the purpose of receiving the representations of the parties regarding the timeliness of the application and all matters arising out of intervention filed by the Conference.
It is common ground between the parties that the respondent is bound to the Sheet Metal Workers' Provincial Agreement. That agreement purports to cover all certified journeymen, sheet metal workers or registered apprentices, sheeter/deckers, welders, sheeter's assistants, material handlers and probationary employees employed by the respondent in the sheeting and decking segment of the sheetmetal industry. It does not purport to cover iron-workers and ironworkers' apprentices.
The Board heard the submissions of the parties, in the form of opening statements, on the matters raised by the intervention filed by the Conference. With respect to the timeliness issue, counsel for the Conference submitted that the work which the ironworkers were doing at the time of the application involved the re-location of channel iron and angle iron bracing of the roof deck in areas where holes were to be cut in the room for ventilation purposes. Counsel contended that the work was not work which forms part of the ironworkers' craft and is work performed by sheet metal workers pursuant to the Sheet Metal Workers' Provincial Agreement. That same work, counsel claims, has been performed in the past by the respondent using sheet metal workers and the sheet metal workers trade has performed that work throughout the Province of Ontario. Therefore, since the work on which the application for certification is based is work traditionally performed by sheet metal workers and is not ironworkers craft work under section 6(3) of the Act, the work cannot form the basis of a craft bargaining unit of ironworkers. In other words, a claim of the ironworkers for a craft bargaining unit based on this work would not satisfy the criteria of section 6(3) of the Act. Furthermore, the effect of allowing the ironworkers its traditional unit if it were to be comprised of employees of the respondent who, at the time of the application, were performing work covered by the Sheet Metal Workers' Provincial Agreement, would be tantamount to allowing the Council to carve out its craft unit from the existing sheetmetal workers craft unit and, when the Board is disposed to allow the carving out of a craft bargaining unit from another existing unit, it only does so during the open period of the relevant collective agreement. In that context, therefore, the application is untimely and should be dismissed.
Counsel for the Conference also advised the Board that he would be placing a new issue before the Board, an issue which would require him to request adjournment of the proceedings. He told the Board that he had learned of the matter when he met the respondent's representative for the first time while waiting for these proceedings to commence. He said that the issue had come to light when he asked the respondent why he had requested ironworkers from one of the Council's affiliated local unions to do work which had been done previously by Sheet Metal Workers employed by the respondent. The respondent, according to counsel, informed him that the respondent's foreman on the job had advised the respondent that some ironworkers employed on the job with another contractor were saying that there might be problems on the job if ironworkers were not hired to do the work in question. According to counsel, that is when the respondent hired the ironworkers for whom the Council seeks to be certified.
The respondent's submissions were in general agreement with those of counsel for the Conference with respect to the timeliness issue and the alleged threats about possible problems on the job. The respondent told the Board that he has been a roofing contractor for 40 years. The work in question herein is work which he does only infrequently, but when it has been necessary to do that kind of work, the respondent stated that he always performed it using sheet metal workers. The respondent has no collective agreement with any other building trade union. He told the Board that his work on the project had been seriously delayed by adverse weather and, as a result, he was under constant pressure from the owner and the general contractor on the project to get the job done. The specific work in question herein was a very small part of a substantial contract. It involved the breaking of welds on roof bracing near the location of 40 openings which had to be cut in the roof, all of which was part of the respondent's contract, and re-locating the roof deck bracing to support the roof around the holes. The original welds had been done by sheet metal workers according to the respondent. By the time it was possible to begin work on the roof bracing, ironworkers were at work on the project. When a sub-contractor engaged by the respondent started to do the work, trouble developed because the sub-contractor employed non-union labour. In an attempt to resolve that problem, the respondent engaged a unionized mechanical sub-contractor to do the work. Apparently that sub-contractor employed the boilermaker trade and again, according to the respondent, there were threats that the job would be "wobbled" if the work was not done using ironworkers. The respondent claims that these problems brought him under further pressure from the general contractor to get the work done. At this point, the respondent approved his foreman's suggestion that they hire two ironworkers from the local hiring hall and after doing so, this application was made.
The Council's counsel took the position that the work in question was in fact performed by ironworkers on whose behalf the Council was seeking to obtain bargaining rights with the respondent and, further, that the Council is entitled to be certified for its traditional construction industry bargaining unit described in terms of ironworkers and ironworkers apprentices employed by the respondent at the making of the application. Counsel contended that the Council was not seeking to represent sheetmetal workers and no trade union held bargaining rights for ironworkers at the time of the application, therefore it is a timely application for certification. The Council claims that the work which was done by ironworkers comes within the scope of work covered by the Ironworker's Provincial Agreement in clause 1.5(a). The Council also asserts that, during the entire time when the work was being performed by ironworkers, sheet metal workers were working on the project for the respondent. Therefore, if the sheet metal workers has wished to challenge the work as being work covered by the Sheet Metal Workers' Provincial Agreement, that could have been done by means other than challenging this application. The Board presumes that this was a reference to the procedures for the resolution of grievances or jurisidictional disputes in the Sheet Metal Workers' Provincial Agreement or under the Act. Counsel for the Council, therefore, contends that the Board should not allow this intervention because it would lead to a situation in which the Board was dealing with a work jurisdiction issue in the context of an application for certification, a situation not in the best interests of the certification procedures under the Act.
With respect to the alleged threat that there might be trouble on the job if iron-workers were not employed for the work at issue and the attendant request for adjournment of the proceedings, counsel for the Council contended that the respondent obviously did not consider the alleged threats of sufficient substance to bring them to the Board's attention because it had neither filed a reply to the application nor any charges that trouble on the job had been threatened. Since there was no reference to threats in the intervention either, the Council claims that it came to the hearing scheduled for its application with no knowledge of the events alleged only to be faced with a request to adjourn the hearing into its application to give the Conference an opportunity to investigate whether threats had been made that there would be trouble on the project if the work in question was not done by ironworkers and, if evidence of threats was uncovered, to file charges and particulars. That, counsel argued, is nothing more than seeking an adjournment in order to investigate whether threats were made at all and hardly forms a basis for adjourning a certification proceeding. Counsel for the Council, therefore, asked the Board to deny the request for adjournment.
The Board adjourned the hearing in order to review and consider the parties' submissions and then made the following ruling orally. That ruling is hereby confirmed. When the Board returned to make its ruling, the respondent's representative was no longer in attendance.
(1) This is an application for certification under the construction industry provisions ofthe Labour Relations Act in which the applicantis seeking its traditional craft unit of iron workers and ironworker's apprentices employed by the respondent.
(2) Except for certain classes of employees like survey crews and operating engineers, when the Board is certifying trade unions in the construction industry it does not describe bargaining units in terms of the work to be performed by the particular trade or class of employee involved. See Acadia Engineering Limited, [1970] OLRB Rep. Dec. 986. Rather the Board describes construction industry bargaining units in terms trade classifications. For example, were the Board to issue a certificate to the Council, the bargaining unit would be described in terms of iron-workers and ironworkers' apprentices and would be absent reference to any specific work, even the "installation of structural and miscellaneous metal" work stated in paragraph 5 of the application as the work being performed by the employees in the bargaining unit sought by the Council. Work described in paragraph S of construction industry applications for certification is not considered by the Board as a claim to jurisdication over that work. The Board considers such description to serve informational purposes only. See Steed and Evans, [1970] OLRB Rep. Apr. 64.
(3) The Board has long recognized that there are overlapping claims to work performed by various of the trade classifications used by the Board to describe bargaining units in the construction industry. The Board has not accepted those overlapping or competing claims as proper matters for a representation proceeding. Such proceedings are not the appropriate medium for making any determination with respect to the work jurisdiction claims of trade unions engaged in the cosntruction industry. Such claims are more properly dealt with under those procedures in collective agreements or in the Act designed for the resolution of work assignment disputes. Similarly, representation issues are more properly dealt with in certification or termination proceedings.
(4) The proceeding before the Board in the instant case is a certification proceeding. The Conference has intervened in the proceeding, not on the basis of representing any employees who would be part of the bargaining unit which the Council is seeking, but on the basis of an apparently overlapping claim with respect to work jurisdiction. That overlapping claim is also the basis of the Conference's assertion that, because the work is alleged to be work covered by the Sheet Metal Workers' Provincial Agreement, the application is not timely. Since the Board considers a certification proceeding not to be an appropriate medium for determining work jurisdiction claims, a claim of work jurisdication is not an appropriate basis for intervening in this application.
(5) Since the Conference does not claim to represent any of the persons who would be included in a bargaining unit described in terms of iron-workers and ironworkers' apprentices, it lacks status to intervene in the application. That being the case,the Conference lacks status to request an adjournment of the proceedings. Therefore,since the respondent is not present to pursue to allegations of threats and since no charges were raised either prior to the hearing or in it, the Board will not adjourn the proceedings.
Board Member F. W. Murray concurred in the Board's ruling but added his view that it would be open to the respondent to request reconsideration of the Board's ruling should he file charges and particulars concerning the alleged threats and acts of intimidation referred to during the hearing.
In the result, there is no bar to the Board proceeding to determine this application for certification.
[Balance of decision re union status, bargaining unit, membership evidence etc. omitted]