[1985] OLRB Rep. December 1705
0197-85-R International Union of Operating Engineers, Local 793, Applicant, v. Commonwealth Construction Company, a division of Guy F Atkinson Holdings Ltd., Respondent, v. United Brotherhood of Carpenters and Joiners of America Local Union 1669, Intervener
BEFORE: Harry Freedman, Vice-Chairman, and Board Members I. M. Stamp and C..Ballentine.
DECISION OF THE BOARD; December 3, 1985
- The Board, by decision dated September 11, 1985, dismissed this application for certification after the applicant had requested leave to withdraw it. The Board had conducted a hearing into this matter on June 28, 1985, following which it issued a decision dated July 5, 1985, appointing a Labour Relations Officer. That decision stated:
'During the course of the hearing of this matter, the Board dealt with preliminary motions made by counsel for the respondent, and counsel for the intervener. Following the oral disposition of those motions, counsel for the applicant advised the Board that the applicant was challenging the list of employees filed."
Counsel for the applicant, by letter dated November 25, 1985 requested that the Board issue written reasons for the dispositions it made of the motions made during the hearing of June 28, 1985.
These are the reasons for its determinations made during the course of that hearing.
The applicant filed an application for certification for the following bargaining unit:
‘all employees engaged as surveyors:
(i) in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario;
(ii) in all other sectors of the construction industry in OLRB Geographic Areas 23 and 24,
save and except non-working foremen and persons above the rank of non-working foreman.
CLARITY NOTE:
The proposed bargaining unit includes instrument men, rod men, chain men and party chiefs, save and except field engineers and persons above the rank of field engineer."
- Counsel for the respondent submitted that the unit applied for was not appropriate for collective bargaining. Following the submissions of the parties, the Board recessed and returned to deliver the following oral ruling:
The respondent submits that the unit applied for is inappropriate because the applicant would not be entitled to a "craft unit" finding under section 6(3) of the Act in respect of the employees it seeks to represent in this application, and further, that the provincial agreement, by which the applicant is bound, does not apply to surveyors employed outside of the Sarnia area because there is no wage schedule for them when they work outside of that area. Counsel submits that the criteria set out in section 6(3) must be met even if the applicant is permitted to bring the application under section 144(1) of the Act.
In our view, if the applicant can meet the requirements of section 144(1) of the Act, then section 6(3) of the Act does not have any relevance to the matter. The application before us relates to the industrial, commercial and institutional sector and is filed by an affiliated bargaining agent. Furthermore, the parties agreed that the ministerial designation applicable to the applicant applies to surveyors. Therefore, pursuant to section 139(1), the employee bargaining agency to which the applicant is affiliated represents surveyors.
The express language of Schedule 0 to the provincial collective agreement by which the applicant is bound indicates that the provincial agreement applies to surveyors. This is consistent with the designation and is also what was contemplated by the designation order made by the Minister pursuant to section 139(1) of the Act.
Without determining whether there are any wage rates applicable to surveyors outside of the Sarnia area under that collective agreement, even assuming that such wage rates do not exist, does not detract from the fact that the agreement does explicitly cover surveyors and that it is open to the employee bargaining agency to which the applicant is affiliated to bargain those rates on behalf of the surveyors it represents.
Therefore, the respondent's preliminary motions are dismissed.
- Following that ruling, counsel for the intervener submitted that the applicant could not apply for certification for a unit comprised of surveyors since the applicant already held bargaining rights for all of the other classifications covered by the applicant's provincial agreement that is binding on the respondent. Following the submissions of the parties, the Board recessed and returned to deliver the following oral ruling:
The intervener objects to the bargaining unit applied for by the applicant on the basis that under section 144(1) of the Act, the unit applied for must relate to "all employees who would be bound by a provincial agreement." In this case, the parties agreed that the applicant holds bargaining rights for certain employees of the respondent in the industrial, commercial and institutional sector, but that those bargaining rights do not extend to surveyors employed by the respondent.
While the applicant's bargaining rights do not cover surveyors employed by the respondent, the provincial agreement, by which the applicant is bound and the designation order issued by the Minister under section 139(1) of the Act do relate to surveyors, although there is no explicit wage schedule in the provincial agreement applicable to surveyors employed outside of the Sarnia area. The intervener argues that since the applicant already holds bargaining rights for some of the employees of the respondent, who is bound by the provincial agreement to which the applicant is bound, the applicant cannot now seek certification for those employees who would be bound by the provincial agreement for whom the applicant does not now hold bargaining rights.
The Board addressed a similar argument in the Georgian Building Corporation, [1981] OLRB Rep. March 275 where the Board stated at page 283:
… the Board cannot accept the construction of the section 13 i a [now i 44] advocated by counsel for the respondent. Harmonious relations between employers and employees would not be furthered, nor would the practice and procedure of collective bargaining be encouraged by that construction which would preclude certification in respect of some employees who would not otherwise be beyond the purview of the certification procedures under the Act. Such an interpretation might well result in a resurgence of recognition strikes, the elimination of which is one of the purposes of the certification procedures of the Act. The Board has a well-known and long standing practice of preserving existing bargaining rights by excluding from bargaining units employees covered by subsisting collective agreements. In the absence of a clear and specific legislative direction to the contrary, the Board is of the view that it is appropriate, having regard to the preamble and the general scheme of the Act, to maintain that practice which promotes industrial peace and stability by recognizing and preserving existing bargaining rights. (Employees covered by subsisting Board certificates and subsisting written voluntary recognition agreements should also be excluded to preserve any such additional bargaining rights which might be in existence.)"
In our view, section 144(1) does permit the applicant to now apply to represent employees for whom it does not have bargaining rights who would be bound by the provincial agreement notwithstanding that the applicant already holds bargaining rights for employees who are already bound by the same provincial agreement. Thus, the within motion is dismissed.