[1983] OLRB Rep. September 1490
1113-83-R The Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftsmen — Local #12, Applicant, v. City of Kitchener, Respondent, v. Canadian Union of Public Employees, Intervener
BEFORE: R. A. Furness, Vice-Chairman and Board Members C. A. Ballentine and J. Wilson.
APPEARANCES: S. B. D. Wahl and Marcel Secours for the applicant; John P. Sanderson, Q. C. and Gail White for the respondent; Beryl A. M. Cote and Jim Anderson for the intervener.
DECISION OF THE BOARD; September 30, 1983
The applicant applied for certification under the construction industry provisions of the Labour Relations Act with respect to two bricklayers who were employed by the respondent on August 23, 1983. The Canadian Union of Public Employees intervened to protect its bargaining rights with respect to certain other employees of the respondent. The clarity note with respect to the bargaining unit set forth in paragraph thirteen serves to take note of the bargaining rights of the intervener.
In its reply the respondent stated that (a) the application should be dismissed because it is not an employer within the meaning of section 117(c) of the Act, (b) it does not employ bricklayers or their apprentices, (c) the two persons who appear to be concerned with this application are maintenance employees of the respondent and have been so classified and paid under the provisions of the subsisting collective agreement between the respondent and The Kitchener Civic Employees' Union Local #68 of the intervener and (d) at all times and for all purposes these employees along with all other maintenance employees of the respondent have been covered by and subject to the collective agreement. It was the position of the applicant and the intervener that the collective agreement does not cover work in the construction industry.
It was agreed that the two employees affected by this application are Robert Tavenor and Eugene Savage. Mr. Tavenor and Mr. Savage were hired by the respondent on May 9 and April 21, 1983, respectively. On August 23, 1983, the date of the making of this application, Mr. Tavenor was working at the respondent's Victoria Park Boat House and Mr. Savage was working at the respondent's arena-auditorium. Mr. Tavenor and Mr. Savage were employed under a scheme initiated by the Federal Government whereby capital improvements were to be made to public edifices. Mr. Tavenor spent approximately seventy per cent of his time laying bricks and blocks, he also washed bricks and mixed his own mortar. The boathouse was substantially gutted and Mr. Tavenor built interior block partitions. Mr. Savage spent approximately seventy-five per cent of his time working on an addition to the arena-auditorium where footings were poured, and he built a concrete wall four feet in height. A brand new roof was built on the extension to the building. In addition, Mr. Savage was engaged in altering entrances within the existing arena-auditorium.
The respondent characterized the work of Messrs. Tavenor and Savage as being maintenance work and not as construction work. The applicant regarded the work as construction work and not as maintenance work. All of the parties agreed that when Messrs. Tavenor and Savage do perform maintenance work it is covered by the collective agreement between the respondent and the The Kitchener Civic Employees' Union Local #68.
Messrs. Tavenor and Savage spent the majority of their time on the date of the making of this application performing the work of bricklayers. Where, in the construction industry, employees engage in work of different crafts and are paid only one rate, the Board characterizes the craft in which they are employed for a majority of their time as the one governing their status in an application for certification. (See O. J. Gaffney Limited, [1964] OLRB Rep. Aug. 233.) The Board finds that Messrs. Tavenor and Savage were employed on the date of the making of this application as bricklayers.
The work performed by Messrs. Tavenor and Savage involved constructing and altering buildings or structures at the site thereof. Section 1(1)(f) of the Labour Relations Act defines "construction industry" as:
"construction industry" means the businesses that are engaged in constructing, altering, decorating, repairing or demolishing buildings, structures, roads, sewers, water or gas mains, pipe lines, tunnels, bridges, canals or other works at the site thereof."
The work performed by Messrs. Tavenor and Savage as bricklayers falls within the definition of "construction industry" in section 1 (1)(t) and the Board accordingly finds that they were engaged in performing work in the construction industry and were not engaged in performing maintenance work.
The respondent argued that it is not an employer within the meaning of section 117(c) of the Act. Section 117(c) provides:
In this section and in sections 118 to 136,
(c) "employer" means a person who operates a business in the construction industry, and for purposes of an application for accreditation means an employer for whose employees a trade union or council of trade unions affected by the application has bargaining rights in a particular geographic area and sector or areas or sectors or parts thereof.
In this application for certification the evidence clearly reveals that the respondent has carried out a programme of constructing and altering buildings and structures on its own behalf. The Board has considered the issue raised by the respondent on many occasions. Most recently, the Board stated in The Municipality of Metropolitan Toronto, [1980] OLRB Rep. Jan. 62 at pages 70-71 as follows:
- The Board has previously considered the meaning to be given to section 106(c) [now section 117(c)] of the Act. In the Tops Marina Motor Hotel case, 64 CLLC ¶16,004, a registered partnership consisting of an investor, a salesman, a lawyer and a builder was formed for the purpose of building and operating a motor hotel. This was the first venture of the partnership. The Board found that the work which was being performed fell within the definition of construction industry in section l(l)(da) [now section l(l)(O] of the Act and that the partnership was the employer of the carpenters who were affected by the application. The Board rejected a contention that in order to operate a business in the construction industry the construction work must be for persons other than those engaged in the work and stated that it was not disposed to place such a general restriction on the word "business". The Board also considered whether the primary or predominant purpose of the operation ought to be the test under section 90(a) [now expressed in section 117(c)] of the Act and stated at page 645:
"This brings the Board to counsel's second argument that the primary or predominant purpose of the operation ought to be the test. The legislation does not use this language, and if that had been the intention of the Legislature, it would have been a simple matter to have said 'employer means a person who operates a business primarily in the construction industry' or some similar wording. Furthermore, it seems to the Board that an employer whose primary business is that of manufacturing but who in addition to selling his products to others, operates a construction division for the purpose of erecting his product at a construction work site, would be excluded automatically from the definition if the test suggested by counsel were to be adopted. Again, the Board is not disposed at the present time to place such a general restriction on the word 'business' as it appears in the section.
There remains for consideration, however, the question as to whether the respondent is operating a business in the construction industry. As has already been noted, the respondent's sole activity at the present time is that of constructing a building. In that sense therefore, its present and sole 'profession', 'trade', 'employment', 'engagement', or 'occupation' (to take some of the meanings of the word 'business') is construction work. However, assuming the present intentions of the partnership are carried through to fulfilment, the partnership will then be engaged in the operation of a motor hotel and in the construction of a second motor hotel. If this turns out to be the case, then in the Board's view the respondent's 'profession', 'trade', 'employment', 'engagement', or 'occupation' is that of building and operating motor hotels. While it may be that in the long run the respondent will be occupied more with operation than with building, the construction activity is an important and concrete part of its objects. Thus it appears to the Board that whether attention is focused only on the respondent's present activity or on its present activities and future plans, the respondent is operating a business, perhaps not its main business, but nevertheless a business in the construction industry within the meaning of the Labour Relations Act."
- In the instant application the respondent, far from being engaged intermittently in undertaking the work which is being performed by the temporary carpenters, is regularly and continuously engaged in such work. Moreover, while the dollar volume of such work is small in comparison to the construction work which is performed on a tender basis, the dollar volume of such work performed by the carpenters exceeds the dollar volume of many employers who work solely in the construction industry. In addition, the respondent employs more trades than many employers in the construction industry. As the Board stated in the Tops Marina Motor Hotel case, supra, it is not necessary that the business of an employer in the construction industry is the predominant or primary business. The soundness of that position has become clear over the years when the Board considers the number of large construction projects which have been accomplished by owner-builders and developers. In addition, as the Board stated in the Kapuskasing Board of Education case, 72 CLLC ¶16,057, there is no requirement that in order to operate a business an operator of such business must necessarily carry on such venture with a view to making a profit. See also Canada Labour Relations Board et al. v. City of Yellowknife, 1977 CanLII 230 (SCC), 76 D.L.R. (3d) 85. Similarly, in The Board of Trustees of the Roman Catholic Separate Schools for the City of Windsor case, [1966] OLRB Rep. March 920, this Board, in a proceeding under section 47a [now section 63] of the Act, stated at page 922:
"In the instant case, the term 'business' should be given that interpretation most consistent with the other provisions of the Labour Relations Act and which will best effect the purposes of that section of the Act in which the term appears. It should be borne in mind that the Act does not distinguish between public and private business, and contemplates the existence of bargaining rights held by trade unions with respect to 'employers' generally and not simply those engaged in commercial enterprises. Nothing in the Act would suggest that any limitation on the continuance of these bargaining rights should be imposed by virtue of the non-commercial nature of any employer's; 'business'. The term 'business' as it appears in the Labour Relations Act, therefore, ought not to be qualified by the addition of the adjective 'commercial', but should rather be read as referring generally to the undertaking of any employer whose operations are subject to this Act.''
In this application the respondent has consciously performed construction work using bricklayers and in so doing has briefly engaged in a business in the construction industry. The respondent's primary business is municipal government. However, as the Board stated in Tops Marina Motor Hotel, supra, it is not necessary that the business of an employer in the construction industry is the predominant or primary business. The Board finds that the respondent is operating a business in the construction industry within the meaning of section 117(c) at the relevant time under the Labour Relations Act.
The respondent classified Messrs. Tavenor and Savage as "Maintenance III" and paid them the rate provided for in the collective agreement between the respondent and The Kitchener Civic Employees' Union Local #68. Moreover, the respondent deducted union dues under a compulsory check-off under that collective agreement. The recognition clause in that collective agreement covers all employees save and except arena managers and assistant managers in the Parks and Recreation Department, foremen, persons above the rank of foreman, office staff, persons regularly employed for not more than twenty-four hours per week and students employed during the school vacation or university term period. The respondent informed the Board that the collective agreement covered an "outside" bargaining unit of employees. The classifications under the collective agreement certainly reflect this and, of course, include three classes of maintenance employees. It was agreed that the collective agreement covered maintenance work. On a fair reading of the collective agreement, the Board finds that it does not cover employees engaged in construction work. The fact that a rate has been paid and dues deducted under the collective agreement does not in itself establish that the employees in question are covered by the collective agreement. (See Ecodyne Limited, [1979] OLRB Rep. July 629.)
During argument the respondent raised for the first time whether the applicant is a trade union that according to established trade union practice pertains to the skills or craft of bricklayers. The applicant objected to the respondent making and the Board entertaining such an issue for the first time in argument. The respondent never raised the status of the applicant under section 6(3) of the Act either in its reply or during representations on the appropriate bargaining unit. Neither the applicant nor the Board was aware that there was any question concerning the status of the applicant as a trade union able to bring itself within the provisions of section 6(3). In the circumstances, the issue was not raised by the respondent in a fair and timely manner and the Board is not prepared to entertain such an issue when it is raised in this manner.
[Paragraphs 11-15 finding union status, bargaining unit etc. omitted]
- Section 144(2) of the Act, which states in part as follows, provides for the issuance of more than one certificate if the applicant has the requisite membership support:
., the Board shall certify the trade unions as the bargaining agent of the employees in the bargaining unit and in so doing shall issue a certificate confined to the industrial, commercial and institutional sector and issue another certificate in relation to all other sectors in the appropriate geographic area or areas.
(emphasis added)
Therefore, pursuant to section 144(2) of the Act, a certificate will issue to the applicant affiliated bargaining agent on its own behalf and on behalf of all other affiliated bargaining agents of the employee bargaining agency named in paragraph 11 above in respect of all bricklayers and bricklayers' apprentices, stonemasons and stonemasons' apprentices in the employ of the respondent 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.
- Further, pursuant to section 144(2) of the Act, a certificate will issue to the applicant trade union in respect of all bricklayers and bricklayers' apprentices, stonemasons and stonemasons' apprentices in the employ of the respondent in the Regional Municipality of Waterloo (except that portion of the geographic Township of Beverly annexed by North Dumfries Township), excluding the industrial, commercial and institutional sector, save and except non-working foremen and persons above the rank of non-working foreman.