Ontario Labour Relations Board

[1984] OLRB Rep. November 1630

0316-84-R Steve Crowe, Fred Downer and Mel Davis, Applicants, v. International Union of Bricklayers and Allied Craftsmen, the Provincial Conference of the International Union of Bricklayers and Allied Craftsmen and the International Union of Bricklayers and Allied Craftsmen Local #17, Respondents, v. Stuart Riel Masonry Contractor, Intervener

BEFORE: N. B. Satterfield, Vice-Chairman, and Board Members I. M. Stamp and C. A. Ballentine.

APPEARANCES: Fred Downer, Steve Crowe and Mel Davis for the applicants; John Zanussi for the respondents; Donald D. White for the intervener.

DECISION OF THE BOARD; November 23, 1984

1. This is an application for a declaration terminating bargaining rights. The application as originally filed named as respondent the International Union of Bricklayers and Allied Craftsmen Local #17 ("Local 17"). An interim decision which issued July 19, 1984 (now reported at [1984] OLRB Rep. July 1011) giving the Board's reasons for adjourning a hearing into the application on July 5, 1984 also named the International Union of Bricklayers and Allied Craftsmen ("the International") and the Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftsmen ("the Conference") respondents to the application. The International and the Conference together constitute the designated employee bargaining agency ("the EBA") for Local 17 and all other affiliated bargaining agents of the EBA and is the trade union party to the provincial agreement with the Masonry Industry Employers Council of Ontario ("the Agreement"). The Board's interim decision also found, amongst other things, that the Agreement applies to all sectors of the construction industry.

2. When this application came on for hearing again on November 1, 1984, having regard to the submissions of the parties and for the reasons given orally at the hearing, the Board exercised its discretion under section 106(1) of the Act to reconsider its interim decision and revoke it with respect to the finding that the Agreement applied to all sectors of the construction industry. The Board ruled that it would hear the evidence and representations of the parties respecting whether the Agreement contained any bargaining rights for employees of Stuart Riel Masonry Contractor ("the employer") except those which, by operation of section 145(4) of the Act, pertain to the industrial, commercial and institutional ("ICI") sector. The parties subsequently agreed that the application of the Agreement was limited to the ICI sector and did not describe any bargaining rights in other sectors respecting Local 17, the employer and the employer's employees. The parties were also agreed that the bargaining rights held by Local 17 in sectors of the construction industry other than ICI were those described in the Board's certificate which was issued to Local 17 pursuant to an application for certification made on December 2nd, 1981.

3. Having further regard to the agreement of the parties, the Board finds that, at the making of this application, the EBA, Local 17 and all other affiliated bargaining agents of the EBA, the employer and the employer's bricklayers, stonemasons, and plasterers and their respective apprentices, improvers and working foremen employed in the ICI sector of the construction industry in the Province of Ontario were bound to the Agreement which expired April 30th, 1984. The Board further finds that Local 17 is the exclusive bargaining agent for the employer's bricklayers and stonemasons and their apprentices when employed in sectors other than the ICI sector in the bargaining unit described in the certificate which was issued by the Board pursuant to the application for certification made December 2nd, 1981. Accordingly, the Board hereby amends its decision which issued July 19, 1984 by deleting clauses (1) and (2) of paragraph 10 and replacing them with the following:

(1) The provincial agreement between the International Union of Bricklayers and Allied Craftsmen and the Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftsmen and the Masonry Industry Employers Council of Ontario is an agreement without reference to sectors of the construction industry.

(2) The Board's decision which issued October 12th, 1982 declared the employer to be bound to the provincial agreement effective from May 1, 1982 until April 30, 1984, the same agreement which was in effect at the making of this application. The effect of that declaration is to bind the employer, without any limitation, to the provincial agreement.

4. Having regard to all of the foregoing, the Board finds further that, at the making of this application, there were two bargaining units of the employer's employees which the application purports to affect.

BARGAINING UNIT #1

All bricklayers, stonemasons and plasterers, their respective apprentices, improvers and working foremen employed by Stuart Riel Masonry Contractor in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario.

BARGAINING UNIT #2

All bricklayers and bricklayers' apprentices, stonemasons and stonemasons apprentices in the employ of Stuart Riel Masonry Contractor in the Regional Municipality of Durham (except for the Towns of Ajax and Pickering), the geographic Township of Cavan in the County of Peterborough and the geographic Township of Manvers in the County of Victoria, excluding the industrial, commercial and institutional sector, save and except non-working foremen and persons above the rank of non-working foreman.

Mr. Zanussi, the agent for the respondents, at the hearing argued that bargaining unit #2 should be geographically limited to the City of Peterborough because the application described the bargaining unit only in terms of the Municipality of Peterborough. The description of the bargaining unit in an application for termination of bargaining rights does not determine what is the appropriate bargaining unit. That is a determination which the Board is mandated to make under section 57 of the Act, which is set out later in this decision. The Board makes that finding based on the evidence before it, which it has done in making the above findings.

5. It is an agreed fact that the employees affected by this application were working in bargaining unit #2 on the date of making the application. It is undisputed that there were no employees of the employer working in bargaining unit #1 on that date and that the employer has not performed work within bargaining unit #1 since 1982. These facts raise the issue of whether the employees who were working in bargaining unit #2 on the date of the application can successfully apply to terminate the bargaining rights contained in the Agreement with respect to bargaining unit #1. The applicants seek to have the application apply to the bargaining rights respecting both units. The employer takes the position that the application should apply to both and the respondents take the position that it can apply only to bargaining unit #2.

6. The sections of the Act relevant to this application are sections 57 and 123:

"57.-( 1) If a trade union does not make a collective agreement with the employer within one year after its certification, any of the employees in the bargaining unit determined in the certificate 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.

(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,

(a) in the case of a collective agreement for a term of not more than three years, only after the commencement of the last two months of its operation;

(b) in the case of a collective agreement for a term of more than three years, only after the commencement of the thirty-fifth month of its operation and before the commencement of the thirty-seventh month of its operation and during the two-month period immediately preceding the end of each year that the agreement continues to operate thereafter or after the commencement of the last two months of its operation, as the case may be;

(c) in the case of a collective agreement referred to in clause (a) or (b) that provides that it will continue to operate for any further term or successive terms if either party fails to give to the other notice of termination or of its desire to bargain with a view to the renewal, with or without modifications, of the agreement or to the making of a new agreement, only during the last two months of each year that it so continues to operate or after the commencement of the last two months of its operation, as the case may be.

(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.

(4) If on the taking of the representation vote more than 50 per cent of the ballots cast are cast in opposition to the trade union, the Board shall declare that the trade union that was certified or that was or is a party to the collective agreement, as the case may be, no longer represents the employees in the bargaining unit.

"123.-(l) If a trade union does not make a collective agreement with the employer within six months after its certification, any of the employees in the bargaining unit determined in the certificate may apply to the Board for a declaration that the trade union no longer represents the employees in the bargaining unit.

(2) Notwithstanding subsection 57(2), any of the employees in the bargaining unit defined in a first agreement between an employer and a trade union, where the trade union has not been certified as the bargaining agent of the employees of the employer in the bargaining unit, may apply to the Board for a declaration that the trade union no longer represents the employees in the bargaining unit after the 305th day of its operation and before the 365th day of its operation.

(3) Subsections 57(3) to (6) apply to an application under subsection (1) or (2)."

7. Each applicant filed his own application and there was no material difference in each. No separate statements of desire ("petitions") were filed in support of this application, therefore, the Board treated each application as a statement of opposition by the employees to being represented by the respondents. Accordingly, the Board heard the evidence of each applicant as to the circumstances under which his application was prepared, signed and sent to the Board. Their evidence was unchallenged and Zanussi acknowledged that the applications expressed the voluntary wishes of the applicants. Whether the Board finds the application to be an application for termination of bargaining rights respecting both bargaining units or bargaining unit #2 only, Zanussi submits that the Board should dismiss the application on the grounds that the applicants were not employees in either bargaining unit. He argues with respect to bargaining unit #1 that the Agreement, which is the source the respondents' bargaining rights for the employer's employees in the ICI sector, makes union membership mandatory. Since the applicants are not members of Local 17 or any of the other affiliated bargaining agents, even if the Board finds them to be employed in bargaining unit #1, their employment would be contrary to the hiring provisions of the agreement according to Zanussi. He contends that persons employed contrary to the hiring provisions of a collective agreement are not employees for purposes of an application to terminate bargaining rights. In this respect, he is relying on the Board's decision in April Waterproofing Limited, [1980] OLRB Rep. Nov. 1577. Zanussi submits that, for the same reason, the Board should find that the applicants are not employees in bargaining unit #2 even though there was no collective agreement covering that unit. The Board has considered his submissions in that respect, and as the Board understands his argument, it finds no basis in the instant application on which it could make the finding requested.

8. With respect to the question of whether the applicants can apply to terminate the bargaining rights of the respondents in bargaining unit #1, employer counsel argues that, for purposes of determining which employees are affected by the application, the Act merely requires them to be employees of the employer in the bargaining unit. It does not require that they actually be working in the bargaining unit on the date of the application. Counsel did not refer the Board to any other authority in support of that position, but claimed that there are decisions of the Board which, for purposes of an application affecting bargaining rights or for purposes of eligibility to vote in representation votes, recognized employees of the employer who were not at work in the bargaining unit on the date of the particular application. Counsel argues also that, since an application for termination of bargaining rights in the ICI sector of the construction industry must be made within a specific two month period prior to the biennial expiry of a provincial agreement, a date which also is fixed by the Act, a requirement for employees to be at work in the bargaining unit on the date of application would have strange results. One result would be to fortuitously deprive employees for another two years of an opportunity to terminate bargaining rights or seek to change their bargaining agent. Another result would be to allow a situation where a solitary employee could be at work in the bargaining unit within the two month open period and make application to terminate the bargaining rights respecting other employees against their wishes because they happen to be working outside of the bargaining unit on the date of the application.

9. The applicants did not make any specific submissions to support their request that the application be applied to the bargaining rights in both bargaining units. Zanussi argued that it would defeat the purpose of the Act, which clearly distinguishes between bargaining rights in the ICI sector and all other sectors, were the Board to allow employees in bargaining units in other sectors of the construction industry to apply to terminate bargaining rights contained in provincial agreements respecting the ICI sector.

10. While, subject to section 61 and because of section 123 of the Act, the application insofar as it relates to bargaining unit #2 could have been made earlier than an application to terminate bargaining rights in bargaining unit #1, this application was made April 13, 1984, when it was timely with respect to both bargaining units. Therefore, it is clearly timely insofar as it relates to bargaining unit #1. Counsel for the employer is correct when he says there is nothing in section 57 of the Act which requires employees to be at work when an application is made. Section 57(3) requires a finding by the Board of the number of employees in the bargaining unit at the application date and the Board has complete discretion to do so, including whether employees not at work in the bargaining unit on the application date are to be counted. In the construction industry, because of the short term nature of the employment relationship, it has been the consistent policy of the Board over many years to count as employees only those employees at work on the application date. This applies equally to applications for certification and for termination of bargaining rights. Counsel's second argument seems to be that, while this approach may be sensible for certification applications, it does not make sense for an application to terminate bargaining rights. In his view, if an applicant for certification chooses the wrong date on which to make the application because it misjudged the number of employees who would be at work on that date, it can remedy its mistake, hypothetically at least, by re-applying using all or some of the same membership evidence as it used in its first application. This is not the case with an application to terminate bargaining rights, according to counsel, because of the different and stricter time limits imposed by section 57(2) of the Act.

11. If a problem with the count arises in hearing the application, in most instances it would be too late for the applicant to seek leave to withdraw the termination and file a fresh one. Generally speaking, applications to terminate bargaining rights are timely only after commencement of the last two months of operation of a collective agreement. Pursuant to section 61, if a conciliation officer has been appointed by the end of that two month period, such applications are untimely if they are made after the end of the two month period and until the further time limits of section 61 have been satisfied. In the ICI sector of the construction industry, the open period is the two months preceding April 30th of "even" years. This is because section 146(3) of the Act provides for the expiry of every provincial agreement ". . . on the 30th day of April calculated biennially from the 30th day of April, 1978."

12. Company counsel argues that the Board's policy for construction industry applications is too restrictive in light of the circumstances which apply to applications for the termination of bargaining rights because of the already limited open period for making such applications. Were the Board to accept that argument in this case, and it neither accepts nor rejects it, and with respect to bargaining unit #1, count anyone who worked in the unit during the two months prior to April 30th, 1984, it would not assist the applicants in this case. It is an agreed fact that there were no employees of the employer who worked in that bargaining unit during that two month period and for an extensive period before it.

13. There is nothing in evidence before the Board of any circumstances which would cause the Board to depart from its long established policy in the construction industry of counting those employees at work on the date of the application for the purpose of finding the number of employees at the application date. Therefore, on the evidence before it, the Board finds that there were no employees of the employer in bargaining unit #1 at the application date signifying that they no longer wish to be represented by the respondents.

14. With respect to bargaining unit #2, the Board finds on the evidence before it that not less than forty-five per cent of the employees of Stuart Riel Masonry Contractor in bargaining unit #2, at the time the application was made, have voluntarily signified in writing that they no longer wish to be represented by Local 17 as of May 22, 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 the number of persons who have voluntarily signified in writing that they no longer wish to be represented by the respondent union under section 57(3) of the Act.

15. As a result of the foregoing, the application is dismissed insofar as it purports to apply to bargaining unit #1 and, with respect to bargaining unit #2, the Board directs that a representation vote be taken of the employees of Stuart Riel Masonry Contractor. Those eligible to vote are:

All bricklayers and bricklayers' apprentices, stonemasons and stonemasons apprentices in the employ of Stuart Riel Masonry Contractor in the Regional Municipality of Durham (except for the Towns of Ajax and Pickering), the geographic Township of Cavan in the County of Peterborough and the geographic Township of Manvers in the County of Victoria, excluding the industrial, commercial and institutional sector, save and except non-working foremen and persons above the rank of non-working foreman,

on the date hereof who do not voluntarily terminate their employment or who are not discharged for cause between the date hereof and the date the vote it taken.

16. Voters will be asked to indicate whether they wish to be represented by the respondent in their employment relations with Stuart Riel Masonry Contractor.

17. The matter is referred to the Registrar for the conduct of the vote.