Henry Snow v. Sheet Metal Workers International Association Local No. 285 Union, 1984 CanLII 1046

[1984] OLRB Rep. July 1004

3133-83-R Henry Snow, Applicant, v. Sheet Metal Workers International Association Local No. 285 Union, Respondent, v. Rennie Sheet Metal Limited, Intervener

BEFORE: Owen V. Gray, Vice-Chairman, and Board Members J. D. Bell and H. Kobryn.

APPEARANCES: Henry B. Snow for the applicant,~ Arthur L. Moore, Gerry Edelenbos and Maurice Soueier for the respondent; Murray Thompson for the intervener.

DECISION OF THE BOARD; July 3, 1984

1. This is an application under section 57 of the Labour Relations Act for a declaration that the respondent trade union no longer represents the employees in the bargaining unit for which it is the bargaining agent. The respondent trade union claims that the applicant has no status to bring this application, as he was not at any material time an employee in the bargaining unit of employees of the respondent for which the respondent claims to be the bargaining agent.

2. Subsection 2 of section 57 provides:

(2) Any of the employees in the bargaining unit defined in a collective agreement may, subject to section 61, apply to the Board for a declaration that the trade union no longer represents the employees in the bargaining unit,

The balance of the text of that subsection sets out timeliness requirements which such an application must meet. Subsection (3) of section 57 provides:

(3) Upon an application under subsection (1) or (2), the Board shall ascertain the number of employees in the bargaining unit at the time the application was made and whether not less than 45 per cent of the employees in the bargaining unit have voluntarily signified in writing at such time as is determined under clause 103(2)(j) that they no longer wish to be repre­sented by the trade union, and, if not less than 45 per cent have so signified, the Board shall, by a representation vote, satisfy itself that a majority of the employees desire that the right of the trade union to bargain on their behalf be terminated.

This subsection contemplates that an applicant will file with his application a document or documents signed by one or more employees in the bargaining unit indicating that they no longer wish to be represented by the trade union. The only such document in this case is Mr. Snow's application in Form 17, in which he states in paragraph S under "Other relevant statements

I would like to get dc-certified from this union so we can get more work.

The only signature on the application is that of Mr. Snow.

3. The first thing the Board must ascertain on any application of this type is what is "the bargaining unit" affected by the application. Form 17 requires an applicant to set out "the unit of employees for which the respondent is the bargaining agent". In this application Mr. Snow answered:

The area is Toronto & District ZONES 1, 2 and 3.

In an undated letter received by the Board April 13, 1983, Mr. Snow requested that this be

amended to read:

From all employees of the employer as defined in article #1 of this agree­ment, in the Province of Ontario, save and except those above the rank of working foremen, office and sales staff.

In its Reply, the respondent trade union describes the unit of employees for which it is the bargaining agent as:

All journeymen sheet metal workers and registered sheet metal apprentices employed in the residential sector of the construction industry in the Munici­pality of Metropolitan Toronto, the Regional Municipalities of Peel and York, the Towns of Oakville and Halton Hills and that portion of the Town of Milton within the geographic Township of Esquesing, the Towns of Ajax and Pickering in the Regional Municipality of Durham.

4. Asked by the Board to trace the origin of its bargaining rights with respect to employees of Rennie Sheet Metal Limited (hereafter called "Rennie"), the respondent (hereaf­ter called "Local 285") produced a collective agreement dated January 5, 1981 to which it is a party and in which Rennie, M & W Sheet Metal and S & S Sheet Metal Co. are parties collectively described therein as "employer". The relevant provisions of that agreement are as follows:

ARTICLE 1 — DEFINITIONS

1 "Association" means the Residential Sheet Metal Contractors Organi­zation.

1.3 "Employee" means a certified journeyman sheet metal worker recog­nized by the Union, or a registered apprentice, and employed by an Employ­er in the shop or on a job site.

1.4 "Employer" means any member of the Association covered by this Agreement and any contractor in the sheet metal industry who is bound by this Agreement, and any successor or assign.

1.7 "Union" means the Sheet Metal Workers' International Association, Local Union #28 5.

ARTICLE 5 — RECOGNITION — UNION SECURITY

5.1 The Employer recognizes the Union as the exclusive bargaining agent for all employees of the Employer as defined in Article 1 of this Agreement, in the Province of Ontario, save and except those above the rank of working foremen, office and sales staff.

5.2 The Union recognizes the Association as the exclusive bargaining agent for all Employees who are members of the Association and for whose employees the Union has bargaining rights, and any other Employer who has, in writing, appointed the Association as its bargaining agent.

5.3 Any Employer who is not a member of the Residential Sheet Metal

Contractors Organization and who desires to employ members of Local

Union #285, shall be required to accept this Agreement and be governed

by all of its provisions.

ARTICLE 30 — DURATION

30.1 This Agreement shall be effective from May 15, 1980 and shall remain in effect until the 30th day of April, 1982 and shall continue in force and effect from year to year thereafter unless in any year not more than 90 days and not less than 60 days before the date of its termination either party shall furnish the other with written notice of their desire to terminate or amend this Agreement.

The following appears on the signature page of this agreement:

Note: Subject to agreement with LABOUR RELATIONS BOARD re: Zone 8 signed between yourself and Matthews, Dinsdale and Fishbane and the LABOUR RELATIONS BOARD.

5. Local 285 and Rennie advised us that the agreement referred to in this Note is recited in a decision of the Board dated January 8, 1981 (Board File #1860-80-R), which reads as follows:

6. This is an application under section 55 of The Labour Relations Act. The applicant has also pleaded section 1(4) of the Act in the alternative. Prior to the hearing in this matter which was scheduled for January 7, 1981, the parties reached the agreement set out below.

MINUTES OF SETTLEMENT AND CONSENT ORDER

The parties to the above application under section 55 and/or Section 1(4) of The Labour Relations Act, R.S.O. 1970, c. 232, as amended (the "Act") before the Ontario Labour Relations Board (the "Board") each agree with the other to settle this matter upon the following terms and conditions and to request the Board to endorse its records and issue the following declara­tions and orders:

1. A DECLARATION that S. & S. Sheet Metal Co., M. & W. Sheet Metal and Rennie Metal Limited are bound to the Collective Agreement between the Residential Sheet Metal Contractors' Organization and Sheet Metal Workers' International Association, Local Union 285, (the "Collective Agreement") in Metropolitan Toronto, the Regional Municipality of York and the County of Peel, the Township of Esquesing and the Towns of Oakville and Milton, in the County of Halton, and the Township of Picker­ing, in the County of Ontario ("O.L.R.B. Area No. 8");

2. AN ORDER that S. & S. Sheet Metal Co., M. & W. Sheet Metal and Rennie Sheet Metal Limited and the applicant execute the collective agree­ment effective from January 5, 1980, which collective agreement shall incorporate the terms and conditions of the Collective Agreement referred to in paragraph 1 above.

3. A DECLARATION that one employee continuously in the employ of S. & S. Sheet Metal Co., M. & W. Sheet Metal or Rennie Sheet Metal Limited outside of O.L.R.B. Area No. 8 may be employed within O.L.R.B. Area No. 8 pursuant to the terms and conditions of the collective agreement. The applicant shall assess the employee $25.00 upon entering 0. L.R.B. Area 8.

4. AN ORDER that S. & S. Sheet Metal Co., M. & W. Sheet Metal and Rennie Sheet Metal Limited apply the full terms and conditions of the collective agreement at all projects that they may now or hereafter be engaged at in O.L.R.B. Area No. 8.

5. A DECLARATION that the grievance dated November 7, 1980, filed by the Sheet Metal Workers' International Association, Local Union 285, against S. & S. Sheet Metal Co. is withdrawn.

DATED at Toronto, this 6th day of January, 1981.

THE SHEET METAL WORKERS' S. & S. SHEET INTERNATIONAL ASSOCIATION, LOCAL UNION 285

Per: John KurchakPer: Larry Thompson

M. & W. SHEET METAL

Per: Larry Thompson

RENNIE SHEET METAL LIMITED

Per: Larry Thompson

In view of the aforesaid agreement of the parties, these matters are termi­nated.

It is apparent that a declaration in the form of paragraph 1 and an order in the form of paragraph 4 would have added nothing to the force and effect of the parties' agreement to those terms. It is also apparent that the Board would have no jurisdiction to grant any relief of the sort contemplated by paragraphs 2, 3 and 5, although those are all terms on which the parties could have, and had, made agreement. It is not unlikely that these observations explain why the Board's decision contained no formal declaration or order of the sort contemplated by the Minutes of Settlement but, instead, merely terminated the proceedings.

6. In or about March, 1982 the Residential Sheet Metal Contractors Organization (hereafter called "the Association") applied to the Board (Board File No. 2521-81-R) for accreditation as the bargaining agent for certain employers who had a bargaining relationship with Local 285. In its decision of September 23, 1982, the Board granted the Association accreditation with respect to a bargaining unit described as follows:

all employers of employees for whom the respondent [Local 285] has bargaining rights in the residential sector of the construction industry in the Municipality of Metropolitan Toronto, the Regional Municipalities of Peel and York, the Towns of Oakville and Haltori Hills and that portion of the Town of Milton within the geographic Township of Esquesing, and the Towns of Ajax and Pickering in the Regional Municipality of Durham.

S & S Sheet Metal Co. was one of the employers affected by the application, and paragraph 11 of the Board's decision provided:

11. Having regard to the representations of the parties and pursuant to section 1(4) of the Labour Relations Act, the Board finds that S & S Sheet Metal Co., M & W Sheet Metal and Rennie Sheet Metal are one employer for the purposes of this application.

In the meantime, on June 23, 1982, Local 285 and the Association executed a new collective agreement covering the period May 1, 1982 to April 30, 1984 ("the Association agreement"). Articles 1.1, 1.3, 1.4, 1.7, 5.1, 5.2 and 5.3 of that agreement are identical to the correspondingly numbered articles of the agreement referred to in paragraph 4 of this decision.

7. At the hearing in this matter, Mr. Thompson advised the Board that Rennie's business is located in Hamilton, Ontario and that its shop employees do all their work at that location. He further advised the Board that Rennie had had no employees working in Board Area 8 (the geographic area covered by the accreditation order of September 23, 1982) at any time material to this application. It had, nevertheless, filed a list of employees naming one employee, John Ozimek, as an employee falling within the bargaining unit. The employer regarded Mr. Ozimek as the "one employee" provided for in paragraph 3 of the Minutes of Settlement quoted in paragraph 5 of this decision. As the employer understood it, that agreement allowed it to use one of its own Hamilton based employees to do shop work in Hamilton in conjunction with on-site work at projects in Board Area 8, rather than having to hire a Local 285 member from Toronto for that purpose. Mr. Ozimek had been a member of Local 285, and the employer had been making appropriate deductions and remittances on his behalf, since 1981; in the intervener's mind these circumstances were related to the special provision in paragraph 3 of the aforementioned Minutes of Settlement. As noted earlier, that provision had been incorporat­ed by reference into the collective agreement of June 9, 1981 to which Rennie was a named party. Local 285 also took the position that Ozimek was within the bargaining unit. It acknowledged to the Board that the agreement of June 23, 1982 had superceded that of January 9,1981, and that the Association agreement was the only agreement binding on Rennie. The respondent does not consider it has any obligation to represent any employee of Rennie with respect to employment outside of Board Area 8.

8. The applicant Henry Snow told the Board that he is a sheet metal worker working at the Rennie's shop in Hamilton. He took no issue with any of the above-recited information supplied to the Board by the respondent and intervener. He told the Board he was not involved in any sheet metal work at sites within Board Area 8. He said he had brought this application because he felt the existence of Local 28 5's bargaining rights adversely affected his employment: his hours of work had been shortened because his employer could not use its Hamilton shop people do fabrication work for Toronto area jobs. He felt this was because the agreement with Local 285 required that shop work for Toronto jobs be performed by members of Local 285. He thought that if Local 285 was decertified, he would have more work. It is not immediately apparent how the existence of Local 285's bargaining rights adversely affects Mr. Snow's economic interests. It is not unreasonable to suppose that the availability to Rennie of Toronto area work will depend, in part at least, on its being in a contractual relationship with Local 285. Even if Mr. Snow has an economic interest in the existence of Local 285's bargaining rights, however, that alone does not give him status to bring an application to terminate those rights. Such an application can only be brought by an employee in the relevant bargaining unit.

9. There is no evidence that the 1981 agreement was renewed by the parties to it, unless by operation of article 30 thereof. Accordingly, the effect of the accreditation order was to bind the employer to the agreement of June 23, 1982 between Local 285 and the Association, with effect either on the date of the accreditation order (if the 1981 agreement was not renewed by any means) or on May 1, 1983 (if the first agreement renewed itself by default for a one year period commencing May 1, 1982): see section 128(2) of the Act. However, the parties were all in agreement that Rennie was at no time a member of the Association. The Association, therefore, had no authority to agree on Rennie's behalf to an extension of the trade union's bargaining rights beyond those with which the accreditation order dealt, just as an employer's association which is also a designated employer bargaining agency could not bind a non-member employer to a provincial agreement with respect to any sectors of the construction industry other than the industrial, commercial and institutional sector: Fred Jantz Masonary Construc­tion Company Limited, [1981] OLRB Rep. Sept. 1229. Accordingly, the bargaining unit of employees of this employer to whom the collective agreement applies is limited to employees of the employer in Board Area 8 (in sectors other than the ICI sector).

10. The relevant bargaining unit in a termination application is described in section 5 7(2) as "the bargaining unit defined in a collective agreement". Read in isolation, article 5.1 of the Association agreement might suggest that any employee of the employer in the Province of Ontario would be eligible to make such an application. However, the Board has not interpreted the words "the bargaining unit defined in a collective agreement" in a literal way, when to do so would lead to the Board's considering the wishes of persons other than employees for whom the respondent trade union has bargaining rights. For example, the agreements which result from the scheme of province-wide bargaining contemplated in sections 137 to 151 of the Labour Relations Act typically define the bargaining unit in terms of employees of all employers represented by the designated or accredited employer bargaining agency concerned, but the Board has held that the represented employees of a single employer make up the bargaining unit referred in the various subsections of section 57 for the purpose of a termination application: Clarence H. Graham Construction Limited [1982] OLRB Rep. Aug. 1147. The same approach applies here. "Bargaining unit", for the purpose of section 57, is a unit consisting only of those of the employer's employees whom the trade union is entitled to represent. Based on the facts outlined by the trade union and conceded by the other parties to this application, we are satisfied that the respondents bargaining rights are limited to the bargaining unit it described in its Reply to this application. Mr. Snow is not an employee in that bargaining unit. It is not necessary for us to determine whether Mr. Ozimek (or anyone else) would fall within that bargaining unit.

11. At the conclusion of the Board's hearing on June 6, 1984, the parties were advised that the application would be dismissed on the ground that the applicant was not an employee in the relevant bargaining unit. We hereby confirm that ruling.

12. This application is, accordingly, dismissed.