Ontario Labour Relations Board
[1984] OLRB Rep. July 998
0896-82-R General Workers Union, Local 1030 of the U.B.C. and J. of A., Applicant, v. Rampart Enterprises Limited, Respondent, v. Labourers' International Union of North America, Local 527, Intervener
BEFORE: N. B. Satterfield, Vice-Chairman and Board Members J. Wilson and H. Kobryn.
APPEARANCES: Douglas J. Wray and Frank Manoni for the applicant, B. W Binning and B. J. Howard for the respondent; S. B. D. Wahl, D. Strang and B. Carrozzi for the intervener.
DECISION OF N. B. SATTERFIELD, VICE-CHAIRMAN, AND BOARD MEMBER H. KOBRYN; July 31, 1984
1This is an application for certification made August 10th, 1982 in which the applicant ("Local 1030") was seeking to be certified for a bargaining unit comprised of all construction labourers employed by Rampart Enterprises Limited ("the employer") in all sectors of the construction industry in the Board's geographic area #15. Local 1030 was a recently formed trade union at the time. This application was one of a series of applications for certification which it began making in early 1982. Several of Local 1030's earlier applications raised some threshold issues, including the complex question of whether Local 1030 was an affiliated bargaining agent within the meaning of section 137(1) of the Labour Relations Act. That question affected, inter alia, whether a bargaining unit comprised of construction labourers was an appropriate unit for Local 1030 to represent in collective bargaining in the construction industry.
2At the making of this application, the question of whether Local 1030 was an affiliated bargaining agent and the issues related to that question had not been decided by the Board. They were dealt with finally in the Board's decision in Manacon Construction Limited, [1983] OLRB Rep. July 1104. The proceedings herein were adjourned until those issues were resolved. The application finally came on for hearing on March 2nd, 1984 after several earlier scheduled hearings were adjourned at the request of and with the consent of the parties. The purpose of the hearing was to hear the evidence and representations of the parties with respect to all matters arising out of and incidental to the application for certification including the appropriate bargaining unit, whether the applicant is a trade union within the meaning of section 117(f) of the Act and whether the application was an application for certification within the meaning of section 119 of the Act.
3The Board had concluded in the Manacon decision that Local 1030 was an affiliated bargaining agent of a designated employee bargaining agency and, therefore, was required to bring applications for certification which relate to the industrial, commercial and institutional (ICI) sector under section 144(1) of the Act. That section mandates a bargaining unit be comprised of:
..... 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.".
The decision dealt with five applications for certification by Local 1030, all of which were described in terms which would include construction labourers employed in the ICI sector of the construction industry. The Board concluded that those units would not be appropriate under section 144(1) because a unit of employees including construction labourers in the ICI sector represented by Local 1030 would not be comprised of all employees of the employer who would be bound by a provincial agreement. The Board reasoned also that section 146(2) of the Act would prevent Local 1030 from concluding a lawful collective agreement covering construction labourers employed in the ICI sector.
4Between the making of the instant application and the March 2nd, 1984 hearing into it, there were several events which affect the context within which the issues in this application must be decided. Local 1030's solicitors addressed a letter dated September 22, 1983 to the Board in which, after referring to the conclusions in the Board's Manacon decision, commented and requested as follows:
"In the present case, we understand the employees in the bargaining unit were employed on three residential projects on the date of application which did not fall within the industrial, commercial or institutional sector of the construction industry.
We, therefore, request that the Board treat the application under Section 144(3) of the Act to exclude the industrial, commercial and institutional sector. It is our submission that this is an appropriate unit and is not affected by the Board's findings in the Manacon case.
On August 10th, 1982, more than a year prior to the letter, notice in the customary form of the application for certification had been sent to the respondent together with copies of notices to the employees for posting at the employer's premises and job sites. The notices included the information that August 20th, 1982 had been set as the terminal date by which the employer was to file its reply and other information required by the Board and for the employees to file any statements in opposition to the application. It became necessary to have a Board Officer post the notices to employees and this was done on August 17th.
5On August 23rd, 1982, the Board received a letter dated August 19th from the employer's solicitors advising the Board that the employer had received the notices of the application on August 19th and was seeking an extension of the time limits. The employer's reply, lists of employees and specimen signatures were eventually received on August 27th. The reply consented to the application being disposed of without the need for a hearing and agreed with the bargaining unit proposed by the applicant.
6In the mean time, the labourers' International Union of North America, Local 527 (~'Local 527") had made a separate application for certification on August 24th, 1982. The application was made pursuant to section 144(1) of the Act and the bargaining unit being sought by Local 527 conformed with the requirements of that subsection. The part of the bargaining unit relating to all sectors of the construction industry other than the ICI sector was described in terms of the Board's geographic area #15. The Registrar advised Local 527 and the employer by letter dated August 26th that its application would not be processed until the Board had determined Local 1030's application. The next day, the Board received a telex from Local 527 requesting that the bargaining unit in its application be amended to exclude the ICI sector. In other words, Local 527 was seeking to represent construction labourers employed by the employer in Board Area #15 excluding the ICI sector. On September 14th, 1982, Local 527 filed an intervention in Local 1030's application.
7Subsequent to the Board's decision issuing in Manacon, supra, Local 1030's solicitors made the request referred to above to amend the bargaining unit in its application. The employer and Local 527 responded to notice of that request by asking the Board to refuse it and to dismiss the application. The employer contended that it ought to be dismissed on the grounds that
..... Section 144(3) deals with the same bargaining unit description as is binding on the Employee Bargaining Agent with which the applicant is affiliated. Consequently, since Local 1030 cannot be certified pursuant to section 144(1), for reasons stated in the Manacon decision, they cannot seek certification under section 144(3).".
Local 527's solicitors put forward the following reasons why the Board should dismiss Local 1030's application:
"The Application for Certification herein clearly attempts to obtain bargaining rights in respect of construction labourers in the Industrial, Commercial and Institutional sector of the construction industry pursuant to Section 144(1). As acknowledged by counsel for the Carpenters, the Board has ruled that Carpenters' Local 1030 "may not become certified in the Industrial, Commercial and Institutional sector of the construction industry or [sic] other than millwrights or carpenters". (See Manacon Construction Limited [1983] O.L.R.B. Rep. Mar. 407 and the reconsideration decision dated July 13, 1983). This of course would include bargaining rights in respect of construction labourers in the ICI sector and accordingly, this Application for Certification is no different from those dismissed in the course of the Manacon Construction Limited decision. At this late date the Applicant should not be permitted to transform its Application which clearly attempted to obtain bargaining rights in the Industrial, Commercial and Institutional sector of the construction industry pursuant to Section 144(1) to an application which excludes Industrial, Commercial and Institutional sector bargaining rights pursuant to Section 144(3). The Board specifically dismissed the Applications for Certification in respect of Manacon Construction Limited, . . . in precisely similar circumstances."
8At the commencement of the hearing on March 2nd, 1984, counsel for Local 1030 challenged the status of Local 527 to intervene in this application. The Board heard and considered the submissions of the parties and ruled that Local 527 be made an intervener in the proceedings.
9With respect to the issue of whether a bargaining unit comprised of construction labourers, excluding those employed in the ICI sector of the construction industry, would be an appropriate unit to be represented in collective bargaining by Local 1030, the parties elaborated the arguments set out in their replies to Local 1030's request to amend the bargaining unit, but the thrust of their arguments remained the same.
10The Board had precisely that question before it in Rolland Duquette Construction, [1983] OLRB Rep. Nov. 1884. In that case, Local 1030 had applied under subsection 3 of section 144 of the Act to be certified to represent a unit of construction labourers in the Board's geographic area #15, the same area being sought in the instant application. Local 527 was an intervener in that application and opposed the bargaining unit on the same grounds as here; that is, the appropriate bargaining unit in an application made under section 144(3) by an affiliated bargaining agent is the same trade unit to which that affiliated bargaining agent would be entitled in an application made under section 144(1). The Board's response to that argument is set out in paragraph 8 of the decision in the following terms:
- On 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-ICI 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.
11The Board in Duquette then went on to find that Local 1030 was entitled to bring an application for certification with respect to construction labourers employed outside of the ICI sector commenting as follows:
- Having 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.
12The Board's reasoning in the Duquette decision that Local 1030 was entitled to bring an application for certification under section 144(3) of the Act for a unit of employees which the Board, pursuant to section 6(1) of the Act, found to be appropriate for collective bargaining purposes is wholly applicable to the facts in the instant application. The uncontradicted evidence herein is that the employer was employing unrepresented construction labourers on the date of application. There is no evidence before the Board of any other unrepresented trades being employed at that time. Accordingly, the Board adopts the reasoning in Duquette and finds that a unit of the employer's construction labourers would be an appropriate one for representation by Local 1030.
13Counsel for Local 527 argued at the hearing on two grounds that the Board should set a new terminal date for Local 1030's application and re-post the notices to the employees. First, the terminal date originally set by the Board did not allow an adequate period of time between sending of notices to the parties, including the notices to be posted for employees, for the filing of timely replies, interventions or objections to the application. Since August 20th was a Friday, even if the Board had extended the terminal date for only two more working days, counsel argued, it would have given the parties until August 24th for responding to the application. (The Board notes that would also have resulted in the Board treating Local 527's application which was made on August 24th as though it had been made on the date of Local 1030's application). Second, the terminal date should be extended to allow notice of the amended bargaining unit proposed by Local 1030 to be given to the employees affected by the application. The lists filed by the respondent contain the names of nine employees employed in the bargaining unit originally sought by the applicant. They were employed on three job sites in the Ottawa area. In the Board's view and having regard to the relatively small size of the unit, the posting of the Board's notice to employees of the application allowed adequate time for employees who were opposed to it to file statements in opposition. None were filed. In this respect, see the Board's decision in Thames Steel Construction Ltd., [1979] OLRB Rep. May 440 and Macdonnell Memorial Hospital, [1979] OLRB Rep. Oct. 996. Since the intervention filed by Local 527 and the reply and lists of employees filed by the respondent have been accepted and processed by the Board, they have not suffered any prejudice from the terminal date set by the Board. Were the Board to extend the terminal date now it would have the same result with respect to Local 5 27's application as having extended the terminal date in the first instance to August 24th, 1982. In other words, it would bring Local 527's application within reach of the Board's policy that a subsequent application for certification made not later than the terminal date of an earlier application be treated as though it had been made on the date of the earlier application. That is how the Board exercises its discretion under section 103(3)(a) of the Act.
14If that were done in this case and Local 527 had the requisite membership support, the Board would direct a representation vote to allow the employees to indicate whether they wished Local 1030, Local 527, or neither trade union to represent them. That result is reason neither to extend the terminal date nor to refuse to do so. Rather, it is a matter of whether there is a need to extend the terminal date. The Board has already determined that the service of notices on the parties does not give rise to a need to extend the terminal date. Counsel for Local 527 argues that it should be extended because of the amendment of the original bargaining unit. The Board disagrees. The change in the description of the unit standing alone does not create a need to extend the terminal date. The nature of the change is not such that there would be employees affected by the amended unit who did not have notice of the application in the first instance. Nor does the change by itself make the original application misleading. Therefore the Board declines to extend the terminal date on the second ground argued by counsel and the terminal date remains as originally set by the Board.
15Counsel for Local 527 argued further that the impact of the bargaining unit amendment would warrant giving the employees an opportunity in a representation vote to decide whether they still wish to be represented by Local 1030 because, when they first sought to be represented by it, they expected Local 1030 to be able to represent them in the ICI sector. That, counsel contends, is an important factor in selecting a bargaining agent in the construction industry because the most beneficial earnings and work opportunities are in that sector. Had the employees known that Local 1030 was unable to represent them in the ICI sector, they might not have selected it as their bargaining agent. Therefore, he argues, even if Local 1030 has the requisite membership support to be certified without a representation vote, the Board should direct a vote in order to confirm whether Local 1030 still enjoys their support. In effect, counsel is asking the Board to speculate as to the employees' reasons for becoming members of Local 1030. Absent duly particularized allegations of misrepresentation, intimidation or threats, the Board is not prepared to inquire into the reasons why employees join a trade union and it is not prepared to do so in the circumstances herein.
16The lists filed by the employer contained the names of nine persons, eight of whom were at work on the date of the application, all designated by the employer to be labourers. Local 1030's claim that none of them were working in the ICI sector is uncontradicted. Therefore, they would be employees coming within the amended bargaining unit. Counsel for the employer advised the Board that the employer employed a superintendent, two foremen, R. Verdon and L. Delango, and one other employee, K. Smith, during the week in which the application was made. He could not assist the Board with information as to whether they were at work on the date of the application. Nor could counsel advise the Board whether another employee, T. Marshall-Taylor, who was at work as a labourer on August 24th, 1982, when Local 527's application was made, was at work on August 10th when Local 1030 made its application. Counsel for Local 527 requested the Board to examine the employer's records and, if they reveal that any of Verdon, Delango, Smith, Marshall-Taylor and W. Gouchie, who was listed by the employer as not being at work on August 10th, were at work on August 10th, to inquire into whether they were employees in the bargaining unit. The challenges to the lists with respect to Gouchie and Marshall-Taylor are ones which reasonably would cause the Board to make the type of inquiry requested. That is not the situation with respect to Verdon, Delango and Smith. Having regard to the fact that the parties had been given notice in November, 1983 that both applications were being listed for hearing, the parties had ample time in which to make their own inquiries into the number of construction labourers at work on August 10th at least to the point of being able to allege some material facts on which to found a proper challenge. Such material facts were not alleged with respect to Verdon, Delango and Smith and the Board will not contribute to further delay in determining this application by making the requested inquiry with respect to those three persons.
17Accordingly, with respect to W. Gouchie and T. Marshall-Taylor, a Board Officer is authorized to inquire into and report to the Board on the lists filed by the respondent.
DECISION OF BOARD MEMBER J. WILSON;
The decision of Board member J. Wilson will issue at a later date.