[1984] OLRB Rep. December 1772
2363-84-R United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union 666, on its own behalf and on behalf of the affiliated Bargaining Agents of the Employee Bargaining Agency, Applicant, v. Allan Leslie Stewart, carrying on business under the firm name and style of Standard Plumbing, Respondent
BEFORE: N. B. Satterfield, Vice-Chairman, and Board Members J. P. Wilson and H. Kobryn. DECISION OF THE BOARD; December 21, 1984
1In this application for certification the applicant filed two certificates of membership. The certificates are signed by the members and indicate that monthly dues of $12.00 have been paid for at least one month within the six-month period immediately preceding the terminal date of this application. The certificates are checked and certified correct by an officer of the applicant. The applicant also filed a duly completed Form 80, Declaration Concerning Membership Documents, Construction Industry.
2The respondent filed a reply, but failed to file a list of employees and specimen signatures within the time fixed in accordance with the Labour Relations Act and the Board's Rules of Procedure. Section 13 of the reply contains the following comments:
"The respondent carries on business largely in the renovation or remodelling and repair of residential premises. The Respondent is a sole proprietorship registered by Allan Leslie Stewart and the said Allan Leslie Stewart is the sole employee, by and large, of the Respondent. In May, 1984, Standard Plumbing obtained the contract from Valleypark Lodge Nursing Home in Niagara Falls for plumbing. As the Respondent was unable to perform all of the work on the contract himself, he approached two individuals known to him personally to enquire if they might be interested in working for Standard Plumbing. The Respondent requested the two individuals, who were known to the Respondent to be members of the Applicant, to enquire of the Applicant if the Applicant had worked for these individuals. The individuals made the enquiries and were advised by the Applicant that the Applicant could not place them for work. This information was related to the said Allan Leslie Stewart and the Respondent hired the two individuals on the understanding that the hiring would not be permanent and that they would be laid off when the contract was completed. The Respondent is not in a position to successfully bid on jobs requiring union rates to be paid and does not propose to bid on such jobs or for contracts requiring "union" Plumbers.
The hiring above referred to was the only occasion during the history of Standard Plumbing that the said Standard Plumbing hired additional Plumbers.
The term of the hiring for one of the individuals was from May 1st, 1984 until December 1st, 1984 and period of hiring for the second of the above-mentioned individuals was June 28th, 1984 to December 1st, 1984."
3In paragraph 14(2) of the reply the respondent consents that the Board dispose of the application without a hearing and states as follows:
"The Respondent repeats the statements contained in paragraph 13 of this reply as is specifically recited herein;
The Respondent does not propose, in the future, to bid on contracts requiring "union" labour or Plumbers;
The Respondent maintains that the application herein and the certification, if granted, would constitute a violation of the rights of the Respondent as set forth in the Canadian Charter of Rights and Freedoms being Part I of the Constitution Act, 1982 and in particular, Section 6(2)(b) in that the sole proprietorship and the said Allan Leslie Stewart would be denied the right to pursue the gaining of a livelihood or the gaining of the livelihood would be impaired by the certification."
The respondent has raised a Charter issue notwithstanding his decision to waive a hearing before the Board and has referred the Board to section 6(2)(b) of the Charter of Rights and Freedoms. That section falls under the general heading of "Mobility Rights" and provides that:
"Rights to move and gain livelihood
(2) Every citizen of Canada and every person who has the status of a
permanent resident of Canada has the right
(b) to pursue the gaining of a livelihood in any province."
In the Board's view, section 6(2)(b) does not deal in the abstract with a right to pursue the gaining of a livelihood, rather it deals with the right not to be restricted as to the province in which the right is exercised. Even if the Board is wrong, however, there remains to be considered the effect of section 6(3)(b) of the Charter, which explicitly limits the right specified in section 6(2)(b) as follows:
"Limitation
(3) The rights specified in subsection (2) are subject to
(a) any laws or practices of general application in force in a province other than those that discriminate among persons primarily on the basis of province of present or previous residence; and . .
The Board is of the view that this limitation is a complete answer to the respondent's assertion. Certification is pursuant to the Labour Relations Act, which is a law of general application in force in Ontario, and which does not discriminate among persons on the basis of province of present or previous residence. Thus, even if section 6(2)(b) could be said to comprise a right not to be certified — a proposition the Board considers of dubious merit — section 6(3) provides that general application laws such as the Labour Relations Act override the rights set out in subsection 2.
4The Board finds that the applicant is a trade union within the meaning of section 1(1)(p) of the Labour Relations Act and is an affiliated bargaining agent of a designated employee bargaining agency. Pursuant to the designation issued by the Minister under section 139(1) of the Act on April 12, 1978, the designated employee bargaining agency is the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, and the Ontario Pipe Trades Council of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada.
5The Board further finds that this is an application for certification within the meaning of section 119 of the Labour Relations Act and is an application made pursuant to section 144(1) of the Act which provides:
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.
6The Board further finds, pursuant to section 144(1) of the Act, that all plumbers, plumbers' apprentices, steamfitters and steamfitters' apprentices in the employ of the respondent in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and all plumbers, plumbers' apprentices, steamfitters and steamfitters' apprentices in the employ of the respondent in all other sectors in the Regional Municipality of Niagara and that portion of the Regional Municipality of Haldimand-Norfolk coming within the former County of Haldimand, 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.
7The Board is satisfied on the basis of 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 December 6, 1984, 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 Act.
8Section 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 4 above in respect of all plumbers, plumbers' apprentices, steamfitters and steamfitters' 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.
9Further, pursuant to section 144(2) of the Act, a certificate will issue to the applicant trade union in respect of all plumbers, plumbers' apprentices, steamfitters and steamfitters' apprentices in the employ of the respondent in the Regional Municipality of Niagara and that portion of the Regional Municipality of Haldimand-Norfolk coming within the former County of Haldimand, excluding the industrial, commercial and institutional sector, save and except non-working foremen and persons above the rank of non-working foreman.
10If the respondent believes that the Board has erred with respect to the respondent's representations on the Charter of Rights, it may seek reconsideration of the Board's decision. If the respondent chooses to do so, its request should include all written submissions in support of the request.