[1986] OLRB Rep. May 594
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 I. M. Stamp and H. Kobryn.
DECISION OF THE BOARD; May 16, 1986
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 one certificate of membership. The certificate is signed by the member and indicates 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 certificate is 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 four names on schedule "A" and specimen signatures within the time fixed in accordance with the Labour Relations Act and the Board's Rules of Procedure. Since the material filed by the applicant claimed that there were only three employees at work in the bargaining unit sought in the application and accepted by the reply, a check of the respondent's records was made by a Board Officer. That check confirmed that there were three employees at work in the bargaining unit on April 15, 1986, the date of making of the application, and the Board so finds.
The Board finds that the applicant is a trade union within the meaning of section l(l)(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 section 139(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 117(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 Board further finds, pursuant to section 144(1) of the Act, 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 April 28, 1986, the terminal date fixed for this application and the date which the Board determines, under section 103(2)(j) of the Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act.
Paragraph 13 of the reply, "Other relevant statements", contains the following representations in support of a request for a hearing for the purpose of presenting evidence and making further representations "... in respect of the build-up issue ....".
The Respondent presently has contracts signed with the Regional Municipality of Ottawa-Carleton to repair the O'Connor Street bridge, and with Carleton Condominium Corporation number 105 to repair the parking garage at Brittany Place. Both of these jobs will commence in the month of May. The respondent also anticipates obtaining a letter of intent indicating that a contract will be signed early in the month of May for repairs to the parking garage at Place de Ville for the Campeau Corporation. These three jobs will require approximately twenty-five (25) employees within the proposed bargaining unit by the end of May.
The Respondent therefore submits that the existing group of four (4) employees would not be representative of the wishes of the employees as a whole. The proposed bargaining unit will have expanded to at least twenty-five (25) employees within a month of the date of this response. The Respondent therefore submits that a representation vote should be held at the end of May, 1986.
Assuming to be true everything the respondent has stated in paragraph 13 of the reply, what has been depicted is the common state of affairs in the construction industry. Construction business most frequently consists of performing a series of relatively short-lived contracts, a major factor responsible for the short-term employment relationship typical of the industry. That is why it has been the Board's consistent practice to consider only those persons at work in the bargaining unit on the date of making of the application for purposes of deciding how many employees are in the unit and how many of those employees are members of the applicant within the meaning of the Act. That also is why the Board just as consistently has ignored diminution of or accretion to the bargaining unit, including what is more particularly referred to as build-up, after the date of application.
In the instant application, the facts, as assumed correct, are that there were three employees at work on one job on the date of application. Firm contracts are in hand for two more jobs and there is an expectation of a third one, all of which will add 21 more employees to the bargaining unit. This is quite a different circumstance from the fact situation which confronted the Board in J. G. Fitzpatrick Construction Ltd., [1972] OLRB Rep. May 485. In that case, on a single project which would require continuous employment for a year in order to complete the employer's contract, the size of the bargaining unit was projected to increase from four employees on the date of application, to sixty employees one month later and to double that number in a further month. At the time of the hearing, at least half of the total employees were already employed. In those circumstances, the majority of the Board concluded that a representation vote would give "appropriate consideration" to the "... short term employment features of the construction industry and any need to balance the right of existing employees to collective bargaining with the right of future employees to choose their bargaining agent. In two other decisions, the Board gave heed to circumstances analogous to "build-up". Those are Industrial Mine Installations Limited, [1968] OLRB Rep. May 217 and Kent County Contractors, [1983] OLRB Rep. Apr. 549. In the Kent County decision the Board decided to hear submissions respecting how it should exercise its statutory discretion on alleged build-up because of the intermingling of that issue with other issues the Board was required to decide. These cases too are readily distinguishable on their facts from the facts assumed herein.
Therefore, pursuant to the Board's discretion under section 119(2) of the Labour Relations Act, the Board will not have any regard to any increase after the application date in the number of employees found to be employees in the bargaining unit described above as at the date of application. For that reason, having further regard to the Board's discretion under section 102(14) of the Labour Relations Act, there is no need to hold a hearing into this application.
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.