Labourers' International Union of North America Local 527 v. Colibri Construction Inc., 1986 CanLII 1409

[1986] OLRB Rep. July 931

0156-86-R Labourers' International Union of North America Local 527, Applicant, v. Colibri Construction Inc., Respondent

BEFORE: N. B. Satterfield, Vice-Chairman, and Board Members 1. M. Stamp and H. Kobryn.

DECISION OF THE BOARD; July 23, 1986

1. The Board issued a decision dated May 16, 1986, certifying the applicant on its own behalf and on behalf of all of the affiliated bargaining agents of the labourers designated employee bargaining agency to represent in collective bargaining all construction labourers employed by the respondent in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario. The Board also certified the applicant to represent in collective bargaining all construction labourers employed by the respondent in all other sectors of the construction industry in the Regional Municipality of Ottawa-Carleton and the United Counties of Prescott and Russell. The decision was issued without a hearing pursuant to the Board's discretion under section 102(14) of the Labour Relations Act, in spite of a request contained in the reply that the Board hold a hearing. The reasons given by the respondent in support of the request were that the respondent wished to adduce evidence and make submissions on its claim that the Board should direct the taking of a deferred representation vote because the number of employees in the bargaining unit at the making of the application was not representative of the employees who would ultimately be employed in it. Details of the request are set out in paragraph 7 of the Board's decision. The Board's reasons for not granting the request are contained in paragraphs 8 and 9.

2. The Board has received a letter dated June 30th, 1986 from the respondent's solicitors requesting the Board to reconsider its decision certifying the applicant, to hold a hearing into the application and direct that a representation vote be held pursuant to section 7(2) of the Act. The full text of the letter is set out hereunder:

On behalf of the Respondent Colibri Construction Inc., we would request that the Ontario Labour Relations Board reconsider its decision of May 16, 1986 pursuant to Section 106(1) of the Labour Relations Act.

1. MATERIAL FACTS

On April 15, 1986 the Applicant union filed an application for certification as the bargaining agent for employees of the Respondent company.

2. On April 28, 1986 the Respondent company filed a reply to the above application, in which the Respondent’s officer, Catherine Morisset certified that four persons were employed in the proposed bargaining unit on April 15, 1986.

3. On April 15, 1986 three of the four employees were at work in the bargaining unit. The fourth employee, Mario Lachapelle, was absent from work on personal leave from April 14th to April 27th inclusive.

4. The employee, Mario Lachapelle, was present at work in the bargaining unit from April 2nd to April 13th and from April 28th to the present.

5. On April 28, 1986, the terminal date fixed by the Board for the application, two of the four persons employed in the bargaining unit were members of the Applicant union.

6. On April 28, 1986 the Respondent company stated in its reply to the application that it had or was anticipating to have contracts for three construction projects in Ottawa with the result that the work force in the proposed bargaining unit was expected to increase from four (4) to approximately twenty-five (25) employees by the end of May, 1986.

7. On May 16, 1986 the Board certified the Applicant union as the bargaining agent for all construction labourers in the employ of the Respondent company in the Regional Municipality of Ottawa-Carleton and the United Counties of Prescott and Russell, except for non-working foremen and persons above that rank.

8. As of June 30, 1986 the Respondent company has hired 15 employees in the bargaining unit to carry out work on the three above-mentioned contracts. The term of employment of these employees is expected to be one year.

SUBMISSIONS

We submit that the Board should reconsider its decision of May 16, 1986 for the following reasons:

The Board erred in failing to consider for purposes of the employee count that four persons and not three were members of the bargaining unit on April 15, 1986. The Board failed to follow its long standing policy of applying the "30/30" rule to determine the number of employees at work as of the application date. According to this rule, "where employees are not at work in the unit at the application date, they are nonetheless considered employees if they worked in the unit at any time during the 30-day period prior to the application date and return to work or are expected to return to work in the unit at any time within the 30 days following the application date". (Sack and Mitchell, Ontario Labour Relations Board Law and Practice (1985) at 3:1620; Indusmin Ltd. [1981] O.L.R.B. Rep. Dec. 1790; Brewers Nursing Home [1981] O.L.R.B. Rep. July 852.

In the above matter, the Board erred by not applying the "30/30" rule to find as a matter of fact that Mario Lachapelle was an employee for the purpose of the count on April 15, 1986. As a result the Board wrongly concluded that the union represented 66% of the bargaining (2 out of 3) rather than 50% (2 out of 4), and so inaccurately applied sub-section 7(2) of the Act and issued a certificate to the Applicant union without ordering a representation vote. Had the Board correctly calculated the representative of the expected total bargaining unit, the Board looks at whether the number employed on the application date constitutes more than 50% of the anticipated total. If less than 50% is employed on that date, it is normally felt that the group is not sufficiently representative and that the certification decision should be delayed until a more representative group has been hired. (F. Lepper & Son [1977] O.L.R.B. Rep. Dec. 846; Woodbridge Foam Corp. [1985] O.L.R.B. Rep. Jan. 139; Indusmin Ltd. [19811 O.L.R.B. Rep. Dec. 1790; J. G. Fitzpatrick Construction Ltd. [1972] O.L.R.B. Rep. May 485 Industrial Mine Installations Ltd. [1968] O.L.R.B. Rep. May 217.)

We submit that in the above matter the Board should have given priority to the principle of representation given that at the application date less than 50% of the projected bargaining unit was in place and the number of employees present at work and able to exercise their franchise was disproportionately small (4 of 25). We further submit that no prejudice would be caused to either party if the Board were to order a representation vote immediately. At present more than 50% of the proposed unit is in place (15 of 25). The Respondent company has realised it plans to carry out the proposed contracts and no collective agreement has yet been concluded between the parties.

For all the above reasons, we request that the Board reconsider its decision and order a representation vote to be held with immediate effect.

3. As a result of the aforementioned issues, we submit that the Board should exercise its discretion under sub-section 102(4) of the Act to order a hearing of the application for certification in order to permit the Respondent company to present evidence in support of its assertions and to make submissions.

RELIEF SOUGHT

In conclusion, and for the foregoing reasons, the Respondent company requests the following:

1. that the Board reconsider its decision of May 16, 1986;

2. that the Board order a hearing of the certification application;

3. that the Board order that a representation vote be held pursuant to sub-section 7(2) of the Act.

4. Most of the material facts asserted in the request for reconsideration were either findings of fact made by the Board based on the pleadings before it or facts which had been asserted in the reply filed by the respondent and assumed, for purposes of the Board's decision, to be true (see paragraphs 8 and 9 of the decision). The exceptions are the detailed references to Mario Lachapelle in items 3 and 4 of the material facts and the reference in the last sentence of item 8 that the term of employment for employees in the bargaining unit as of June 30, 1986 was expected to be one year.

5. Similarly, the submissions made in support of the request for reconsideration deal with matters already taken into account by the Board in its May 16th decision when it assumed the facts asserted in paragraph 13 of the reply to be true and gave its reasons why, on the asserted facts, it was exercising its discretion under the Act to not hold a hearing into the application and to not have any regard to any increase in the number of employees after the application date. The Board did not deal explicitly with its "30/30" rule and whether, as the respondent argues in submission #1, the rule should have been applied in deciding the number of employees in the bargaining unit. This is because the Board had followed its policy and consistent practice in construction industry certification applications of counting only persons actually at work in the bargaining unit on the only reported decision of the Board where it has exercised its discretion under section 119(2) of the Act to pay heed to the build-up principle in a construction industry application for certification was in J. G. Fitzpatrick Construction Ltd., [1972] OLRB Rep. May 485. The respondent has cited both decisions in support of its submission that the Board should have applied the build-up principle in the instant case. The Board's May 16th decision distinguishes the instant application from both the Fitzpatrick and Industrial-Mine cases on their facts. The additional material facts alleged in the reconsideration letter and the respondent's submissions on all of the material facts alleged do not persuade the Board to any different view. The other authorities cited by the respondent's solicitors do not deal with construction industry certification applications and are of no assistance to the Board in deciding whether to apply the build-up principle to the instant application.

6. Having regard, therefore, to the material facts alleged in the reply and in the reconsideration letter as well as to the respondent's submissions set out in that letter, the Board remains satisfied for the reasons set out above and in its May 16th decision that this application is not one in which the Board should depart from its consistent practice of determining the number of employees in the bargaining unit for purposes of the count on the basis of the employees actually at work in the unit on the application date, or to depart from its policy and consistent practice of not applying the build-up principle in construction industry certification applications.

7. The Board notes that submission #2 also contains the statement "... no collective agreement has yet been concluded between the parties.". The statement may be correct with respect to the bargaining rights contained in the certificate issued to the applicant for sectors of the construction industry other than the industrial, commercial and institutional sector. It is not accurate with respect to the effect of the certificate issued for the industrial, commercial and institutional sector. By operation of section 145(4) of the Act, the applicant and respondent became bound to the provincial agreement, covering that sector, between the labourers designated employee bargaining agency named in paragraph 3 of the May 16th decision and the designated employer bargaining agency which was in effect when the certificate relating to the industrial, commercial and institutional sector was issued.

8. With respect to the request in submission #3 that the application be put on for hearing "... in order to permit the Respondent company to present evidence in support of its assertions and to make submissions", the Board has accepted the material facts as being true and has weighed and considered the respondent's submissions thereon. Therefore, in the Board's view, no further useful purpose is to be served by holding a hearing.

9. For all of the foregoing reasons, the Board declines to reconsider and vary or revoke its decision which issued May 16th, 1986 in these matters and the Board reaffirms the exercise of its discretion under section 119(2) of the Act to disregard any increase in the number of employees in the bargaining unit after the application date and under section 102(14) of the Act to not hold a hearing into this application.