[1984] OLRB Rep. January 153
0980-83-R United Brotherhood of Carpenters and Joiners of America, Local Union
446, Applicant, v. Wardet Limited, Respondent, v. Labourers' International Union of North America, Ontario Provincial District Council, Intervener
BEFORE: R. A. Furness, Vice-Chairman, and Board Members C. A. Ballentine and J. Wilson.
APPEARANCES: David McKee and Gilbert Scott for the applicant; Steven Bellissimo and Henry Hellwinkel for the respondent; David Strang, Tom Connolly and Dario Disante for the intervener.
DECISION OF THE BOARD; January 11, 1984
The applicant is seeking certification for a bargaining unit of all carpenters and carpenters' 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 carpenters and carpenters apprentices in the employ of the respondent in all other sectors in the Board's geographic area no. 21, excluding the industrial, commercial and institutional sector, save and except non-working foremen and persons above the rank of non-working foreman.
It was the position of the respondent and the intervener that this application for certification is untimely and ought to be dismissed because an alleged collective agreement between the respondent and the Labourers' International Union of North America, Ontario Provincial District Council on behalf of its affiliated locals covers all employees affected by this application. The alleged collective agreement between the respondent and the intervener became effective on July 7, 1983, and by its terms remains in effect until February 28, 1985. This application for certification was filed on August 4, 1983, and by virtue of the provisions of section 60(3) of the Act, the onus of establishing that the intervener was entitled to represent the employees in the bargaining unit at the time the alleged collective agreement was entered into rests on the parties to the agreement.
Article 2.01 of the alleged collective agreement states:
The Employer recognizes the Union as the sole and exclusive bargaining agent for all employees engaged in construction work covered by the classifications in this Agreement within the Province of Ontario, save and except non-working foremen and those above that rank, camp staff, office staff, those employees covered by a subsisting Collective Agreement and engineering staff for Civil Engineering Construction Work, which includes the Sewer and Watermain, Roadbuilding, Heavy Construction Sectors, but excludes Tunnel Work, T.T.C. Rapid Transit System Construction and Utility Work as defined in the Collective Agreement between the Union and The Utility Contractors' Association of Ontario.
At the time of the signing of the alleged collective agreement, the respondent was engaged in performing work in Sault Ste. Marie. Its job was to install sewers in Sault Ste. Marie and to this end it divided its work force into two crews. One crew was engaged in installing fences in preparation for an installation crew to commence installing the services. On the date of the signing of this alleged collective agreement, namely, July 7, 1983, the respondent employed a total of seven labourers and a watchman in Sault Ste. Marie. The applicant argued that on that date the respondent also employed as a labourer R. Kosloski. Having regard to the evidence of Mr. Kosloski's duties, the Board finds that he was an office employee engaged in layout work with occasional work of securing materials with a pickup truck. Having regard to the nature of the work performed, the Board finds that Mr. Kosloski was not employed by the respondent as a construction labourer and was not performing work covered by the alleged collective agreement.
The respondent and the intervener have been parties to collective agreements for many years. The respondent is based in Willowdale and when it secured the contract for work in Sault Ste. Marie it took certain of its employees with it from Toronto. The evidence before the Board consisted of records from the intervener's membership computer. With respect to Messrs. H. De Melo, A. Nicolazzo, D. Tino and V. Giorgio, the intervener presented evidence concerning the payment of dues by these individuals. Mr. De Melo's dues were paid up in June of 1983, and the same is true for Mr. Nicolazzo and Mr. Tino. With respect to Mr. Giorgio, he last paid his dues on April 26, 1983. In these circumstances, Mr. Giorgio, according to the evidence supplied by the intervener, would be suspended as of July 7, 1983. The Board heard evidence that Mr. Giorgio would still be considered a member until he was one year's in arrears in his dues. During his period of suspension he would not be able to vote and would have to pay his monthly dues before being restored to all of the privileges of membership. One of the effects of being in arrears of membership would be that he would not be referred by the intervener for work until his membership dues are fully paid up. However, the intervener does not operate a hiring hall in the sewer and watermain sector and it appears that Mr. Giorgio was transferred by the respondent to the job in Sault Ste. Marie without reference to the intervener.
The Board in applications for certification under the construction industry provisions of the Act commonly accepts applications for membership accompanied by receipts and certificates of membership. In the case of certificates of membership, the Board normally requires that the member has paid his monthly dues for one month within the six month period immediately preceding the terminal date of the application. In applying this approach, it is quite clear that the Board would have accepted a certificate of membership signed by Mr. Giorgio even though he was in arrears with respect to his payment of membership dues. The applicant argued that since Mr. Giorgio was a suspended member, then the Board ought not to treat his status within the intervener as establishing entitlement to represent within the meaning of section 60(3) of the Act. It appears to the Board, however, that Mr. Giorgio is still a member of the intervener, albeit, he is not in a position to enjoy all of the privileges of membership. It is quite clear from the evidence that he was not suspended from membership in the applicant. In these circumstances, the Board is prepared to find that Mr. Giorgio was a member in the intervener on July 7, 1983.
The evidence presented in this application that the intervener was entitled to represent employees at the time the alleged collective agreement was entered into may well take a different form from the evidence of membership required on an application for certification. As the Board stated in Spring Plastering Limited, [1967] OLRB Rep. Dec. 887, "Any documentary evidence of the right of a trade union to represent employees is not necessarily prepared with a view to applying for certification and accordingly the evidence supplied could reflect the desire of the employees to have the union represent them without complying with the stringent tests of membership". In the instant application, there is no doubt that if the intervener had applied for certification and had filed a certificate of membership with respect to Mr. Giorgio, the Board would have accepted the current status of his dues payment as reflected on a certificate of membership as being sufficient evidence of membership to support an application for certification. In these circumstances, the Board finds that the intervener has introduced before the Board evidence of membership with respect to four of the seven persons who were covered by the alleged collective agreement on July 7, 1983. Since the intervener has produced evidence of membership with respect to a majority of these seven employees, the Board is prepared to find that the intervener was entitled to represent the employees in the bargaining unit at the time the collective agreement was entered into.
The Board therefore finds that the collective agreement between the respondent and the intervener is a valid collective agreement and that this application is untimely. The collective agreement is a bar to this application for certification.