Teamsters, Chauffeurs, Warehousemen and Helpers, Local Union No. 91 v. Armbro Materials & Construction Ltd., 1983 CanLII 957

Ontario Labour Relations Board

[1983] OLRB Rep. September 1389

1236-83-R Teamsters, Chauffeurs, Warehousemen and Helpers, Local Union No. 91 affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Applicant, v. Armbro Materials & Construction Ltd., Re­spondent

BEFORE: N. B. Satterfield, Vice-Chairman and Board Members C. A. Ballentine and J. Wil­son.

DECISION OF THE BOARD; September 23, 1983

[Findings as to membership evidence, trade union status etc. in paragraphs 1-6 omitted]

7. The application for certification as filed described the bargaining unit being sought by the applicant in the following terms:

"All truck drivers, employed by the respondent in Ontario Labour Re­lations Board Area 12 and 29, save and except foremen, those above the rank of foreman, sales and office staff."

That description is clearly without reference to any sector of the construction industry and, therefore, would embrace all sectors, including the industrial, commercial and institutional ("ICI") sector. Therefore the application as filed is one which relates to the ICI sector. Sec­tion 144(1) of the Act prescribes that the appropriate bargaining unit include all employees of the employer employed in the ICI sector in the Province of Ontario. The unit described in the application is limited to two of the Board's geographic areas and, therefore, does not satisfy that part of the section 144(1) prescription.

8. Since the Board has previously decided that it rests with the applicant in an ap­plication for certification in the construction industry to determine whether it wants its ap­plication to relate to the ICI sector (see Colonist Homes Ltd., L1980] OLRB Rep. Dec. 1729), a Board Officer contacted the applicant in order to have it clarify the bargaining unit which it was seeking. Subsequently, the applicant advised the Board by telex dated September 20th, 1983, that it wished the bargaining unit description in its application amended to read as fol­lows:

"All truck drivers in the employ of the respondent in Board Area 29, excluding the I.C.I. sector, save and except non-working foremen and those above the rank of non-working foreman."

It is on the basis of the amended bargaining unit description that the Board has found this application to not relate to the ICI sector.

9. The reply filed by the respondent proposed a bargaining unit described in the fol­lowing terms:

"All employees working as truck drivers on the company's road con­struction project in the Counties of Frontenac and Lennox and Adding-ton, Board Area 29, save and except foremen and those above the rank, camp staff, engineering staff, summer students during the school vacation period and employees covered by a subsisting agreement."

The reference in that description to road construction would require the Board, in order to describe the bargaining unit in such terms, to determine whether the employees affected were at work on the date of the application in the road building sector of the construction industry. Prior to section 144 being in the Act, the Board consistently avoided describing bargaining units in the construction industry in a way which would require it to make sectoral deter­minations in a certification proceeding. See the Board's decision in Lyle West Electric Limited, [19781 OLRB Rep. Nov. 999. In spite of the need to refer to the ICI sector imposed by sec­tion 144 of the Act, the Board continues to hold the view that there are good labour relations reasons for avoiding sectoral determinations in the context of construction industry certification proceedings and said so in Pelar Construction Ltd., [19811 OLRB Rep. Feb. 210. Since the Pelar decision, the Board has consistently followed that dictum. For these reasons, it is un­likely that the Board would find the bargaining unit proposed by the respondent to be an ap­propriate unit under section 144 of the Act.

10. The respondent's description also seeks exclusions beyond those being sought by the applicant. It is the Board's view that those exclusions with respect to camp staff and en­gineering staff would be superfluous because of the discrete nature of the bargaining unit nor­mally granted to the applicant with respect to the construction industry. In the case of the summer students, it has been the Board's consistent and long-standing practice not to exclude students from construction industry bargaining units. With respect to the request to exclude employees covered by a subsisting collective agreement, the Board occasionally finds it nec­essary to exclude from a construction industry bargaining unit employees covered by a par­ticular subsisting collective agreement in order to avoid an overlap or conflict with the pre­existing bargaining rights of another trade union. The respondent has not named in paragraph 10 of its reply any trade union claiming to be the bargaining agent or to represent any em­ployees who may be affected by the application. When a Board Officer contacted the re­spondent to try and clarify the requested exclusion, the respondent was not prepared to specify a particular collective agreement or agreements. Therefore, it would appear that it is seeking a general exclusion and not an exclusion of a particular bargaining relationship which poses a potential conflict with the bargaining rights which would otherwise be granted to the ap­plicant. In these circumstances, the Board is not prepared to allow the exclusion.

11. The respondent has indicated in item (2) of paragraph 14 of the reply that the Board may dispose of this application without a hearing "subject to satisfactory description of the bargaining unit, exclusions and area."

12. Having regard for the foregoing comments about the unit proposed by the respondent, it is unnecessary in the Board's view to list this application for hearing. However, if the respondent believes the Board has erred in this respect, or in respect of its findings below, it should direct a request to the Board to reconsider its decision stating its reasons therefor.

13. Having regard for all of the foregoing, the Board further finds that all truck drivers in the employ of the respondent in the construction industry in the County of Lennox and Addington, the County of Frontenanc, and the geographic Townships of Rear Leeds and Lans­downe, Rear of Yonge and Escott, and all lands south thereof in the United Counties of Leeds and Grenville, excluding the industrial, commercial and institutional sector, save and except non-working foremen and persons above the rank of non-working foreman, constitute a unit of employees of the respondent appropriate for collective bargaining.

14. The Board is satisfied on the basis of the all the evidence before it that more than fifty-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 September 15, 1983, 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.

15. A certificate will issue to the applicant.