United Brotherhood of Carpenters & Joiners of America, Local 2041 v. J. R. Noel Plastering Ltd.
[1984] OLRB Rep. July 928
0358-84-R United Brotherhood of Carpenters & Joiners of America, Local 2041, Applicant, v. J. R. Noel Plastering Ltd., Respondent, v. Labourers' International Union of North America, Local 527, Intervener #1, v. Operative Plasterers and Cement Masons' International Association, Local 124, Intervener #2
BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members I. M. Stamp and H. Kobryn.
APPEARANCES: Douglas J. Wray, Don Guilbeault and Rick Le Compte for the applicant, Joseph Liberman and J. R. Noel for the respondent, M. Zigler and B. Carozzi for intervener #1; Maurice Savage and Giovanni Balanzin for intervener #2.
DECISION OF THE BOARD; July 25, 1984
1This is an application for certification involving employees engaged in other than the industrial, commercial and institutional sector of the construction industry.
2The Board finds that the applicant is a trade union within the meaning of section 1(1)(p) of the Labour Relations Act.
3The Board further finds that this is an application for certification within the meaning of section 119 of the Labour Relations Act.
4Because of the common issue over bargaining-unit description, this application was heard together with Board Files No. 0357-84-R, 0359-84-R and 0360-84-R. The employer appeared only in Board File No. 0358-84-R. Labourers' International Union Local 527 appeared on all four, and supported the position of the employer advanced in the present file with respect to the appropriate bargaining unit. Local 124 of the Plasterers' Union also sought to intervene in all four applications. The applicant ultimately acknowledged existing bargaining rights for Labourers Local 527 with respect to all four applications, and for Plasterers Local 124 with respect to all but Board File No. 0357-84-R. It was agreed, therefore, that any bargaining-unit description ultimately granted in this application would be subject to those currently-held bargaining rights.
5As the respondent and Local 527 pointed out, the normal practice of the Board in describing other than craft units in the construction industry is to refer to all named trades unrepresented and employed on the date of the application. See e.g., Duron Ontario Limited, [1976] OLRB Rep. Nov. 734. The Board is in fact reluctant to describe bargaining units in terms of the work being performed. See e.g., Robertson Building Systems Ltd., Board File No. 1 598-81 -R, released December 1, 1981. The applicant in this case can, however, point to a history of the Board departing from that approach with respect to employees engaged, as here, in the installation and erection of acoustical and drywall systems. It is not disputed that the United Brotherhood and various of its affiliated locals (as with the former Wood, Wire and Metal Lathers' International Union) had consistently in the years prior to 1980 been granted certificates that referred, quite simply, to "all employees engaged in the installation and erection of acoustical and drywall systems", rather than to specific trades actually employed on the date of the application. The basis for doing so is not made clear in any of the certifications referred to us, but it appears to have been an attempt by the Board to avoid representational matters turning into jurisdictional disputes, having regard to the ongoing rivalry between the Carpenters' and Lathers' Union over the work in question. That rivalry, however, culminated in a merger of the International Lathers' Union into the United Brotherhood, and the chartering of new local unions by the Brotherhood to cover the acoustical and drywall field.
6It is the position of the respondent employer, endorsed by the intervener Labourers' Local 527, that the merger of the Lathers' and Carpenters' Union rendered obsolete the former description of the bargaining unit being granted by the Board, and that it is now time for the Board to revert to its normal practice under Duron. In support of this the respondent points to the decision of the Board in a reference from the Minister dated April 9, 1980, being Board File No. 1882-79-M, and reported [1980] OLRB Rep. April 497. There the Minister asked the Board for its opinion as to whether, after the date of the aforementioned merger, a separate designation for those members of the United Brotherhood of Carpenters working in the acoustical and drywall field would be appropriate. The Board, pointing in particular to the number of other sub-groups within the Carpenters' employer and employee bargaining agencies which could be expected to claim similar treatment, and the general thrust of the statutory amendments applying to the industrial, commercial and institutional sector of the construction industry toward consolidated bargaining structures, gave its opinion that such a separate designation would not be appropriate.
7The respondent also relies upon an unreported decision of the Board dated April 27, 1984, in Interior Systems Contractors of Ontario and Drywall Acoustic Lathing and Insulation Local 675 of the United Brotherhood of Carpenters and Joiners of America, being Board File No. I 277-83-R. That was an application for accreditation involving as respondent Local 675, a newly-chartered acoustical and drywalling Local of the Carpenters', and in which the applicant and respondent agreed upon an appropriate bargaining unit described in terms of "all carpenters and carpenters apprentices ...
8The Board has carefully reviewed the material before it, and is not persuaded that present circumstances require a sudden modification of the Board's acceptance of "appropriate" bargaining units in the acoustical and drywalling field. This is not a case of first impression, where the principles of Duron Ontario Limited, supra, might well be applied, but rather a case with a long history of describing bargaining units in a particular way, the reason for which may no longer be as important as the fact that those are the lines along which this area has now been organized. The Ministerial reference upon which the respondent relies addressed itself only to the question of bargaining structure, within the industrial, commercial and institutional sector, and did not purport to turn its mind to the organizational issue before us now (compare, in fact, paragraph 33 of that decision). And the decision of the Board in Roland Duquette, [1983] OLRB Rep. Nov. 1884, makes it clear that the special rules for organizing which necessarily flow out of the single-trade bargaining scheme mandated by statute for the industrial, commercial and institutional sector of the construction industry need not have application outside of that sector, where no statutory amendments have taken place.
9Neither do we find the accreditation decision for Interior Systems Contractors Association of Ontario, referred to supra, persuasive in itself. The description of the bargaining unit in that case was, as noted, arrived at by agreement, on a basis not disclosed by the decision. Whatever the considerations, we note that the bargaining unit ultimately agreed upon was itself an unusual form of hybrid description, following the words "carpenters and carpenters' apprentices" with a description of the work, in the terms:
"engaged for the application of metal and gypsum lath, gypsum drywall boards and metal components to receive same, screeds and bead accessories, acoustical ceiling systems, thermal insulation, including vapour barrier, metal door frames installed in lath and plaster and drywall partitions".
The fact is that the respondent has been able to point to no real difficulty such as would persuade the Board to change its practice at this stage, whereas the act of now making a change to this long-established form of description may by itself give rise to problems or anomalies not readily foreseen. If nothing else, there is a kind of stability that grows out of any long-standing practice, and the Board is simply not persuaded that circumstances require such a departure at this time.
10Accordingly, the Board finds that all employees of the respondent in the Regional Municipality of Ottawa-Carleton and the United counties of Prescott and Russell, engaged in the installation and erection of acoustical and drywall systems, 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.
11The Board notes the agreement of the parties that construction labourers are already represented by Local 527, and hence are not covered by the above description.
12On the other hand, the applicant requested the Board to add a clarity note indicating that tapers are covered by the above description. The applicant concedes, however, that the absence of such a clarity note in the past would seem to indicate that tapers historically were not included in this bargaining unit description. In the Board's view, if the applicant wishes to claim entitlement to the above description on a purely historical bases, it must take that description subject to its own historical imitations.
13The 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 May 15, 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 said Act.
14A certificate will issue to the applicant.