[1985] OLRB Rep. December 1750
2132-85-R Labourers' International Union of North America, Local 527, Applicant, v Loremar Structures Inc., Respondent
BEFORE: N. B. Satterfield, Vice-Chairman, and Board Members I. M. Stamp and H. Kobryn.
DECISION OF THE BOARD; December 10, 1985
In this application for certification the applicant filed one combination application for membership and receipt. The combination application for membership is signed by the employee and the receipt is countersigned and indicates that a payment of $1.00 has been made within the six-month period immediately preceding the terminal date of the application. The applicant also filed three certificates of membership. The certificates are signed by the members and indicate that monthly dues of $10.00 have been paid for at least one month within the six-month period immediately preceding the terminal date of the application. The certificates are checked and certified correct by an officer of the applicant. The applicant also filed a duly completed Form 80. Declaration Concerning Membership Documents, Construction Industry.
The respondent filed a reply, a list of employees containing five names on schedule "N', but failed to file specimen signatures within the time fixed in accordance with the Labour Relations Act and the Board's Rules of Procedure.
The Board finds that the applicant is a trade union within the meaning of section 1(1)(p) of the Labour Relations Act and is an affiliated bargaining agent of a designated employee bargaining agency. Pursuant to the designation issued by the Minister under section139(1) of the Act on September 6, 1978, the designated employee bargaining agency is The Labourers' International Union of North America and The Labourers' International Union of North America Ontario Provincial District Council.
The Board further finds that this is an application for certification within the meaning of section 119 of the Labour Relations Act and is an application made pursuant to section 144(1) of the Act which provides that:
An application for certification as bargaining agent which relates to the industrial, commercial and institutional sector of the construction industry referred to in clause 1 17(e) shall be brought by either,
(a) an employee bargaining agency; or
(b) one or more affiliated bargaining agents of the employee bargaining agency,
on behalf of all affiliated bargaining agents of the employee bargaining agency and the unit of employees shall include 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 applicant is seeking to be certified for a bargaining unit of employees that would be comprised of all construction labourers employed by the respondent in the industrial, commercial and institutional (ICI) sector of the construction industry in the Province of Ontario and all construction labourers, carpenters and carpenters' apprentices employed by the respondent in all other sectors of the construction industry in the Board's geographic area #15. As stated in paragraph 3 above, the applicant is an affiliated bargaining agent of the designated employee bargaining agency named therein. That agency is designated to represent construction labourers in the ICI sector of the construction industry in the Province of Ontario. It is not designated to represent carpenters and carpenters' apprentices in that sector. Nor is the applicant seeking to be certified for carpenters and carpenters' apprentices in the ICI sector. The problem arises, however, with the requirements of section 144(1) of the Act under which the applicant has brought its application. It prescribes that an application which relates to the ICI sector be described to include all employees who would be bound by a provincial agreement (that is, those employed in the ICI sector) together with all other employees in at least one appropriate geographic area, which in this case would be the Board's geographic area #15. It is well settled law now that, whether or not the requirements of section 144(1) allow the Board to describe a bargaining unit to include trades other than those for which the applicant is designated to bargain in the ICI sector, the Board has found that it would not be appropriate to do so because of the disruptive effect that would have on the scheme of provincial bargaining set out in the Act. In this respect see the Board's decisions in Clarence H. Graham Construction Limited, [1981] OLRB Rep. Sept. 1195; Ninco Construction Limited~ [1982] OLRB Rep. Nov. 1692; and Manacon Construction Limited, [1983] OLRB Rep. Mar. 407 and July 1104.
More recently, for reasons set out in the Board's decision in Aero Block and Precast Ltd., [1984] OLRB Rep. Sept. 1166, the Board has found that section 144(1) does not prevent it from finding more than one unit to be appropriate in proper circumstances, providing one of the units found by the Board to be appropriate fulfilled the section 144(1) mandate that the unit include all employees who would be bound by a provincial agreement. Nor is there anything in section 144(1) of the Act which would prevent the Board from treating an application of this nature as an application for two separate bargaining units as long as the Board was satisfied that the other trade or trades which the applicant was seeking to represent, in this case, carpenters and carpenters' apprentices, were employed at the making of the application in any sector other than the ICI sector. That enables the Board to treat the application for the second unit as though it had been made pursuant to section 144(3) of the Act. In such cases, the description of the appropriate bargaining unit would be determined in accordance with the principles applied under section 6(1) of the Act. In this respect, see the Board's decisions in Aero Block, supra, at paragraph 26, and Roland Duquette Construction, [1983] OLRB Rep. Nov. 1884, at paragraph 11.
The need to impose the condition that the other trade or trades not be working in the ICI sector arises out of the clear wording of subsection 3 of section 144. Such applications must relate "... to a unit of employees employed in ... sectors of a geographic area other than the [IC I] sector ...." (emphasis added). Section 6(1), in turn, mandates that “in every case the [appropriate] unit shall consist of more than one employee ...". Clearly, an application made under section 144(3) based solely on employees working in the ICI sector would not satisfy the requirements of that section or of section 6(1) because there would be no employees to constitute the appropriate unit. The pleadings filed with the Board in this case show that the carpenters employed by the respondent on the date of application were employed in the ICI sector. Therefore, under section 144(3), there is no unit of employees that would be appropriate for collective bargaining. For the same reasons, as expressed in Graham Construction and the line of cases following it, and pursuant to section 144(1), the Board further finds that a unit of carpenters and carpenters' apprentices employed in the ICI sector of the construction industry would not be a unit appropriate for collective bargaining purposes. Therefore, in the circumstances of this application, there is no unit of carpenters and carpenters' apprentices which would be appropriate for collective bargaining under either section 144(1) or section 144(3) of the Act.
Having regard to all of the foregoing, the Board finds that all construction labourers in the employ of the respondent in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and all construction labourers in the employ of the respondent in all other sectors in the Regional Municipality of Ottawa-Carleton, and the United Counties of Prescott and Russell, 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.
The 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 December 4, 1985, the terminal date fixed for this application and the date which the Board determines, under section 103(2)(j) of the Lobour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act.
Section 144(2) of the Act, which states in part as follows, provides for the issuance of more than one certificate if the applicant has the requisite membership support:
the Board shall certify the trade unions as the bargaining agent of the employees in the bargaining unit and in so doing shall issue a certificate confined to the industrial, commercial and institutional sector and issue another certificate in relation to all other sectors in the appropriate geographic area or areas.
(emphasis added)
Therefore, pursuant to section 144(2) of the Act, a certificate will issue to the applicant affiliated bargaining agent on its own behalf and on behalf of all other affiliated bargaining agents of the employee bargaining agency named in paragraph 3 above in respect of all construction labourers in the employ of the respondent in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario, save and except non-working foremen and persons above the rank of non-working foreman.
Further, pursuant to section 144(2) of the Act, a certificate will issue to the applicant trade union in respect of all construction labourers in the employ of the respondent in the Regional Municipality of Ottawa-Carleton, and the United Counties of Prescott and Russell, excluding the industrial, commercial and institutional sector, save and except non-working foremen and persons above the rank of non-working foreman.
The application is dismissed insofar as it applies to carpenters and carpenters' apprentices employed in the ICI sector.