[1986] OLRB Rep. December 1761
1315-83-R; 3116-83-R Lumber and Sawmill Workers Union, Local 2693 of the United Brotherhood of Carpenters and Joiners of America, Applicant, v. Projecta Engineering and Construction Inc., Respondent, v. Labourers' International Union of North America, Ontario Provincial District Council and Labourers' International Union of North America, Local 607, Intervener #1, v. Ontario Provincial Conference of the United Brotherhood of Carpenters and Joiners of America, Intervener #2; Lumber and Sawmill Workers Union, Local 2693 of the United Brotherhood of Carpenters and Joiners of America, Applicant, v. Cencan Concrete & Tile Limited, Respondent, v. Labourers' International Union of North America, Ontario Provincial District Council and Labourers' International Union of North America, Local 607, Intervener #1, v. Ontario Provincial Conference of the United Brotherhood of Carpenters and Joiners of America, Intervener #2
BEFORE: N. B. Satterfield, Vice-Chairman, and Board Members J. Wilson and H. Kobryn.
APPEARANCES: L. C. Arnold and Eric Hauttilla for the applicant; Michael Demko for Projecta Engineering and Construction Inc.; David Greer and Franco Bortuzzo for Cencan Concrete & Tile Limited; S. B. D. WahI, P. Little and P. Harris for intervener #1; Michael A. Church, Kauko Niemi and Jack Pesheau for intervener #2.
DECISION OF THE BOARD; December 10, 1986
The name of the respondent in Board File No. 31 15-83-R is amended to read: "Projecta Engineering and Construction Inc."
These are two applications for certification in which a pre-hearing representation vote directed by the Board, differently constituted, has been taken. The ballots cast in each case have been segregated and not counted pending further direction from the Board with respect to the following issues which are common to both applications:
(1) whether the bargaining unit sought by the applicant is appropriate for collective bargaining;
(2) whether the applicant is an affiliated bargaining agent within the meaning of clause (a) of section 137(1) of the Act;
(3) if the applicant is not an affiliated bargaining agent, whether it is required to represent all trades employed by the respondent on the date of the making of this application; and
(4) whether the Board should rely on the membership evidence filed by the applicant in support of its application.
The Board heard and considered the submissions of the parties and directed that these applications be and they are hereby consolidated respecting their common issues.
These applications were listed together for hearing after the taking of the representation vote and before the Board as constituted herein for the purpose of receiving the evidence and representations of the parties on the four issues. There was a challenge to the status of the Ontario Provincial Conference of the United Brotherhood of Carpenters and Joiners of America ("the Carpenters Conference") to intervene in the applications. The parties ultimately agreed that the Carpenters Conference should be made a party to the proceedings and the Board so ruled. For ease of reference hereinafter, the Board will refer to the two unions which comprise intervener #1 as "the Labourers", and if the Board needs to refer to them individually, it will refer to the Labourers' International Union of North America, Ontario Provincial District Council as "the Labourers' Council" and to the Labourers' International Union of North America, Local 607 as "the Labourers' Local 607". Similarly, for ease of reference, the Board will refer to the respondents collectively in the singular. If there is need to refer to either one, the respondent Projecta Engineering and Construction Inc., will be referred to as "Projecta" and the respondent Cencan Concrete & Tile Limited will be referred to as "Cencan". The United Brotherhood of Carpenters and Joiners of America will be referred to as "the United Brotherhood" and its Local 1669, which appeared at the hearing seeking to be made a party to the proceedings, will be referred to as "the Carpenters Local 1669". The Board will deal later in the decision with the request of Carpenters Local 1669 to be made a party.
An issue arose at the hearing as to whether certain trade unions other than the applicant and Labourers' Local 607 should have been given notices of the application and of the hearing. The issue of notice arises out of issue (3) above. The trade unions in question divide into two groups. One group includes three unions which were named in the interventions filed by the Labourers in the two applications: Carpenters Local 1669; United Brotherhood of Carpenters and Joiners of America, Local 1151; and International Association of Bridge, Structural and Ornamental Ironworkers, Local 759. The other group includes certain building trades unions which are alleged to hold bargaining rights, by virtue of collective agreements between those unions and the Construction Association of Thunder Bay, for any persons employed in those trades by the respondent. Some of these agreements ceased to operate with the introduction in 1978 of province-wide collective bargaining in the industrial, commercial and institutional ("ICI") sector of the construction industry. Others are alleged to continue to operate and to have been in force at the time these applications were made.
The Board did not give notice to the three trade unions listed by the Labourers as parties to whom notice of the applications should be given. Nor did the Board serve them with notice of the hearing. Counsel for the Labourers raised the issue at the hearing. Accordingly, the Board heard the evidence and representations of the parties respecting whether there were other trade unions which should be given notice of the proceedings. Having considered the evidence and representations of the parties and for the reasons set out hereunder, the Board finds as follows.
Labourers' Local 607 displaced the applicant in 1982 as bargaining agent for the respondent's employees and was certified on its own behalf and on behalf of various other local unions of the Labourers' Council respecting the ICI sector of the construction industry in the Province of Ontario and on its own behalf respecting all other sectors in the Districts of Thunder Bay, Rainy River and Kenora (including the Patricia portion), to represent the respondent's construction labourers and all employees engaged in cement finishing, restoration and waterproofing. The applicant now seeks by this application, to replace the Labourers as bargaining agent for the respondent's employees. In general terms, the applicant appears to be seeking to regain the same bargaining rights which it lost to intervener #1 in 1982. Whether in fact that is the case remains to be determined when the applications are heard on their merits. What is clear, the applicant is not seeking bargaining rights respecting the other trades which Labourers' counsel claims are entitled to notice of these proceedings.
The issue of whether there are other trade unions which should receive notice of these applications arises solely from issue (3) above, an issue raised by the Labourers' intervention. It is one of several challenges by the Labourers respecting whether the bargaining unit sought by the applicant is a unit appropriate for collective bargaining. The argument as the Board understands it is as follows. If the applicant is not an affiliated bargaining agent and since it is an industrial union, the Board's policy respecting appropriate bargaining units in the construction industry would require the applicant to organize all construction employees of the respondent who, on the date of making the application:
(1) were not represented by any trade union; or
(2) were represented by a trade union under a collective agreement for which it would have been timely to make application to terminate or displace the bargaining rights in the collective agreement. Counsel contends that the respondent is bound to the provincial agreements of various building trades, allegedly as a result of having been bound to collective agreements between those unions and the Construction Association of Thunder Bay ("the Construction Association"). Since all provincial agreements expire by force of statute biennially on April 30th in the even years, applications for certification of any of the employees in the bargaining unit defined in a provincial agreement can be made only biennially on or after March 1st in the even years. The Act operates to provide a minimum 'open period' of two months duration for such applications. Thus, with respect to provincial agreements, applications made between March 1st and April 30th of an even year, as these were, would be timely.
Counsel's argument, simply put, is that Board policy respecting appropriate bargaining units in the construction industry for an industrial type of trade union, which is not an affiliated bargaining agent, requires that the union apply to represent all employees in all trades employed by the respondent on the date of the application who are not represented in collective bargaining by any trade union, or for whom any trade union is bargaining agent, if that trade union's collective agreement was in its "open period" when the application was made. Or, to put it another way, according to counsel, Board policy respecting appropriate bargaining units in the construction industry does not permit an industrial type of trade union, when seeking bargaining rights in the construction industry, to be selective of the trades which it will represent. Rather Board policy requires it to represent all trades which were available for representation at the time the application is made. Should the Board agree with counsel, the bargaining rights of all of the trade unions to whose provincial agreements the respondent might be bound could be affected by the bargaining unit issue in these applications. That, according to counsel, is why any unions which prima facie have bargaining rights and any of their members employed by the respondent on the making of these applications should have been given notice of them and of the hearings into them. Counsel argues further that, since the issue of whether the applicant is an affiliated bargaining agent is integral to the appropriate bargaining unit issue, the Board must hear them together and all trade unions whose bargaining rights might be affected by the Board's decision on the bargaining unit issue, therefore, are entitled to notice of and the opportunity to participate in the determination of both questions.
Whether the Board should have given notice of the application and of the hearing in the first instance to other trade unions, or whether they should be given notice now depends on a number of different circumstances.
First, the application contains the declaration that the parties to it are parties to which sections 117 to 137 of the Act apply. The declaration is not disputed, but one of the conditions for it to be correct is for the applicant to be a trade union which, within the meaning of section 117 (f) of the Act, pertains to the construction industry. The Board previously has found the applicant to be a trade union within that definition and, therefore, a trade union entitled to bring applications for certification under the construction industry provisions of the Act. The applicant also has stated in the application that sections 137 to 151 should not be applied to the application. The statement is incorrect because the Board has found that section 144 of the Act "... deals with all possible applications for certification in the construction industry.". Clarence H. Graham Construction Limited, [1981] OLRB Rep. Sept. 1195, at paragraph 7. As a result of that finding, an application for certification to which sections 117 to 137 apply, brought by a trade union as defined in section 117(f), must be processed pursuant to section 144 of the Act. Therefore, a trade union which is an affiliated bargaining agent of a designated bargaining agency must bring its applications for certification under subsection I of section 144 if it relates to the ICI sector, or subsection 3 if it does not. A trade union which is not represented by a designated employee bargaining agency may bring an application under subsection 5 without reference to sector. Thus the Board's determination whether an applicant is an affiliated bargaining agent is central to deciding under which of subsections 1, 3 or 5 of section 144 an application will be processed. The subsection under which the application is processed, in turn, will influence the description of the appropriate bargaining unit.
The foregoing circumstances make it abundantly clear that the Board cannot begin to come to grips with the bargaining unit issue until it determines whether the applicant is an affiliated bargaining agent. That is sufficient reason for the Board, having regard to its authority under section 102(13) of the Act to determine its own practice, to sever, hear and decide the affiliated bargaining agent issue before proceeding further. The parties who have a legal and direct interest in that issue are already parties to the proceedings and no further notice is required to proceed with that issue. Moreover, the issue respecting whether the applicant is an affiliated bargaining agent within the meaning of clause (a) of section 137(1) of the Act was already before another panel of the Board in File No. 1856-83-R when these applications came on for hearing. That panel has completed hearings into the issue and has reserved its decision. How the Board decides the affiliated bargaining unit issue in that case, from a practical viewpoint, might be dispositive of the issue in these applications.
Second, if the applicant is an affiliated bargaining agent, its application must be brought under section 144(1) of the Act because the applicant has made the application relate to the ICI sector. (See Colonist Homes Ltd., [1980] OLRB Rep. Dec. 1729). Therefore, the bargaining unit would have to conform to the requirements of section 144(1). For the same reasons as are given in the Board's decision in Clarence H. Graham Construction Limited, [1981] OLRB Rep. Sept. 1195, the trades which the applicant seeks to represent would not be appropriate for including in a unit which would satisfy the requirements of section 144(1). Even were it held that the applicant could come under section 144(5) of the Act because it was an affiliated bargaining agent, but was not represented by a designated employee bargaining agency, the Board would not certify the applicant because, by operation of section 146(2) of the Act it could not make a lawful collective agreement for employees in the trades it seeks to represent. (See the Board's decisions in Diversified Sheet Metal Limited, [19811 OLRB Rep. Nov. 1575 and Manacon Construction Limited, [1983] OLRB Rep. Mar. 407). Obviously, the application as framed could not succeed if the applicant is found to be an affiliated bargaining agency. It follows, therefore, that the only possible need for giving notice to other trade unions might be if the applicant is found not to be an affiliated bargaining agent.
Third, it is only if the Board finds the applicant not to be an affiliated bargaining agent that issue (3) arises at all, and it is only if that issue arises that there might be a problem with notices. If the applicant is found not to be an affiliated bargaining agent, the issue would arise if there were employees of the respondent at work in trades other than "...construction labourers and all employees engaged in cement finishing, terrazzo tile laying, waterproofing and restoration...". That circumstance would require the Board to deal with the contention of Labourers' counsel that the bargaining unit in each application should be described, to quote from the Labourers' intervention, so as to "...include a complete list of all trades employed by [the respondent] on all job sites both within the industrial, commercial and institutional sector and all other sectors of the Construction Industry within the single geographic area.". If the respondent employed, on the application date, trades other than those included in the unit proposed by the applicant, the bargaining rights held by any bargaining agent of those employees would be placed at risk by the bargaining unit proposed by the Labourers. Therefore, the Board would be required to serve notice of the hearing into the bargaining unit issue on any trade union which, prima facie, possesses bargaining rights for any other trades employed by the respondent.
The Board notes that, if there are trade unions which should be served notice of the hearing into the bargaining unit issue, there also would be an obvious potential problem respecting the employees whom those trade unions represent and who were at work on the date of application. This is because, should the Board accept the Labourers' prescription for the appropriate bargaining unit, these employees should have had notice of the vote. That problem would not be remedied by giving notice to them or to their bargaining agents of the hearing into the bargaining unit issue. The more likely remedy would be either to dismiss the application or direct that another representation vote be held.
Labourers' counsel argued that all trade unions which had collective agreements with the Thunder Bay Construction Association prior to 1978 when the province-wide bargaining scheme in the industrial, commercial and institutional sector of the construction industry came into effect, prima facie, have bargaining rights for their trades with the respondent. Their bargaining rights, counsel argues, might in future be affected by the Board's determination of the bargaining unit issue in this case, therefore, they also should be given notice of the hearing of that issue. The Board disagrees. Board Policy respecting bargaining units has developed on a case by case basis from issues raised by parties who have a direct, legal interest in the applications at issue. The Board does not make party to a particular proceeding any person who in future may be affected in some other proceeding by the outcome of the case. There is no reason for the Board to depart from the practice in determining the merits of these applications.
Neither the Board's record nor the evidence before the Board discloses with certainty whether there were trades employed by the respondent on the application date other than those sought by the applicant. The Board needs that information in order to decide whether there are other trade unions, including Carpenters Local 1669, which should be given notice of the bargaining unit issue, or whether notice should be given to the Thunder Bay Construction Association. Therefore Projecta Engineering and Construction Inc. and Cencan Concrete & Tile Limited are directed to advise the Board whether they employed on the application date any employees other than those employees and trades appearing on the lists which they have filed with the Board. The date of application for Projecta and for Cencan was April 2, 1984. If there are additional employees to report, the information shall include their names and occupational classifications and they should be identified as to which of Schedules "A", "B", "C" and "D" their names apply. This information is to be filed with the Board on or before December 23rd, 1986. The other parties to these applications will have the opportunity to comment on any additional information before the Board acts upon it.