Ontario Labour Relations Board
[1986] OLRB Rep. October 1364
1469-84-R Metropolitan Toronto Sewer and Watermain Contractors Association, Applicant, v. International Union of Operating Engineers, Local 793, Respondent, v. The Ontario FormWork Association, Intervener #1, v. Metropolitan Toronto Road Builders' Association, Intervener #2, v. A Group of Independent Contractors, Intervener #3, v. Ontario Concrete and Drain Contractors Association, Intervener #4
BEFORE: N. B. Satterfield, Vice-Chairman, and Board Members J. Wilson and H. Kobryn.
APPEARANCES: G. W. Adams for the applicant; S.B.D. Wahl and E. A. Ford for the respondent; no one appearing for intervener #1; 5. C. Bernardo for intervener #2; Bruce Binning, Daniel Fryzuk and Wes Lippett for intervener #3; Hercules E. Faga for intervener #4.
DECISION OF THE BOARD; October 15, 1986
This is an interim decision issued for the purpose of confirming a unanimous oral ruling of the Board made on September 4, 1986 in a hearing into this application for accreditation made pursuant to section 125 of the Labour Relations Act. The Board had issued a decision dated August 21st, 1986, which included a description of the unit of employers found by the Board to be appropriate for collective bargaining. The decision also directed that hearings into the remaining issues continue on dates which had previously been set for the application.
When the hearings were reconvened on September 3rd, 1986, the first of those dates, the parties made submissions to the Board respecting how to proceed with certain of the remaining issues and requesting clarification of a reference in paragraph 6 of its August 21st decision respecting certain evidence the Board had received. On September 4th, the Board rendered the following unanimous ruling which is hereby confirmed:
The Board has reviewed and considered the submissions of the parties respecting how the Board should proceed to determine:
(1) the list of employers who would be included in the unit of employers described in paragraph 4 of the Board's August 21st decision; and
(2) the list of employers included in (1) above who, within one year prior to the date of making of this application, have had employees in the sewers and watermains sector in Board area #8.
There was consensus in the parties' representations that the Board should establish general criteria for the purpose of making those determinations. It was submitted that the criteria should include the basis for deciding whether the respondent held bargaining rights in the sewers and watermains sector in Board area #8 and the scope of the work encompassed by the unit of employers. According to the parties, such criteria are essential to them knowing whether to accept or challenge a claim that a particular employer is included in or excluded from the unit, or whether a particular employer has had employees in the sewers and watermains sector in Board area #8 during the weekly pay period immediately preceding the date of the application. This latter determination is required by section 127(c) of the Labour Relations Act.
In the Board's view, having regard to the parties' representations, the evidence previously before the Board in these proceedings, and the parties' submissions on the bargaining unit issue made to the Board at the hearing on August 8, 1986, the issues relating to the composition of the unit of employers described in paragraph 4 of the August 21st decision may be described generally in the following terms. There is no issue amongst the parties that employers installing main and/or lateral sewers and watermains along public roads, easements or allowances are doing work coming within the sewers and watermains sector. There is an issue of whether employers doing the same work within private property lines, regardless of the ultimate use of the property, are doing work coming within the sewers and watermains sector. There is another issue of whether the installation of main and/or lateral sewers and watermains when done in conjunction with other work such as road-building or installing of duct work which will carry telephone or electric power lines, whether along public roads, easements or allowances or within private property lines. Finally, there is an issue of whether the installation of duct work which will carry telephone or electric power lines, when done separately from the installation of main and/or lateral sewers and watermains, whether along public roads, easements or allowances or within private property lines, is work coming within the sewers and watermains sector.
Having regard to those general issues and to the determinations required of the Board by section 127 of the Act, the Board considers it appropriate in this application for accreditation to establish some general guidelines for purposes of deciding the composition of the employer unit and the related lists of employers and employees. This is consistent with the Board's practice of establishing guidelines, such as its 30-day rule, for deciding in certification applications whether employees were at work in the bargaining unit at the making of the application. While such guidelines may establish a general rule, particular circumstances may warrant an exception to them. Therefore, based on the evidence before the Board of the practice of the parties and employers under the collective agreements upon which they are relying to establish their respective positions in these proceedings, the Board will apply the following guidelines in making the determinations required by clauses (a) and (c) of section 127.
First, with respect to employees of employers who have been served with notice of these proceedings, the Board will accept as proven that the respondent holds bargaining rights in the sewers and watermains sector in Board area #8 for those employees as asserted by a party to these proceedings in their pleadings, except where the claim has been challenged by a party appearing or by an employer in its return filed with the Board. In either exception, the Board will want to be satisfied by further evidence that the respondent has the bargaining rights asserted.
Second, as a general rule, the Board will consider employers of employees for whom the respondent has bargaining rights in Board area #8 in the sewers and watermains sector who are performing the following work in Board area #8 to be doing work coming within the unit of employers found by the Board to be appropriate for collective bargaining:
The installation of main and/or lateral sewers and their appurtenances for the collection and transportation of sewage and storm water and main and/or lateral watermains and their appurtenances for the supply of water, whether installed in conjunction with any other works or services, along public roads, easements or allowances or within private property lines up to three feet of any building or structure, regardless of the ultimate use of the private property.