Walls and Ceilings Contractors Association of Ottawa - Association Des Constructeurs De Murs Et Plafonds D'Ottawa v. United Brotherhood of Carpenters and Joiners of America, Local 2041, 1987 CanLII 2998

[1987] OLRB Rep. January 174

0370-86-R Wails and Ceilings Contractors Association of Ottawa - Association Des Constructeurs De Murs Et Plafonds D'Ottawa, Applicant, v. United Brotherhood of Carpenters and Joiners of America, Local 2041, Respondent

BEFORE: G. T. Surdykowski. Vice-Chairman, and Board Members D. A. MacDonald and J. J. Redshaw.

APPEARANCES: L. A. Rome and David Gibson for the applicant; David Jewitt, Don Guilbeault and Maurice Potuin for the respondent.

DECISION OF THE BOARD; January 6,1987

1. The name of the applicant is amended to "Walls and Ceilings Contractors Association of Ottawa - Association Des Constructeurs De Murs Et Plafonds D'Ottawa".

2. This is an application for accreditation in which the applicant seeks to be accredited as the bargaining agent for certain employers who have a bargaining relationship with the respon­dent. The respondent is a trade union within the meaning of sections 1(1)(p) and 117(f) of the Labour Relations Act. The respondent is a party to the collective agreement which is filed with the Board. This collective agreement is dated February 14, 1986 and is effective until April 30, 1987. Also parties to the collective agreement are a number of employers in the residential sector of the construction industry. The applicant assisted these employers in negotiations that led to this collec­tive agreement. Because the collective agreement affects more than one employer in the geo­graphic area and sector which are the subject matter of this application and was in effect on May 2, 1986 (the date of this application), the Board finds that it has jurisdiction under section 125 of the Labour Relations Act to entertain this application.

3. The applicant is an Ontario corporation without share capital under Letters Patent issued January 5, 1976. The applicant was incorporated for purposes that include the regulation of relations between employers and employees in the walls and ceilings industry and to represent such employers in collective bargaining within any sector of the construction industry in any geographic area defined under the Act. In addition to its Letters Patent, the applicant filed By-law No. 1 dated February 9, 1976, By-law No. 2 dated February 9, 1976, By-law No. 3 dated February 9, 1976, and By-Law No. 4 (which amends By-law No. 1) dated August 19, 1985. The applicant status is not challenged and on the basis of the evidence before the Board, we find that the applicant is an employer's organization within the meaning of section 1(1)(j) and 117(d) of the Act and further that it is a properly constituted organization for the purposes of section 127(3) of the Act.

4. The applicant filed evidence of representation on behalf of 11 employers. The evidence of representation is in the form of 12 individual documents (2 of which relate to the same employ­er) each entitled Authorization to Act as Accredited Bargaining Agent. These are in the standard form and each authorizes the applicant to represent the employer signing it as bargaining agent in all matters in negotiations with the respondent. Each authorization also vests in the applicant "the necessary and appropriate authority ... to enable it to discharge the responsibilities of an accredited bargaining agent under the Labour Relations Act". The applicant also filed a duly com­pleted Form 88, Declaration Concerning Representation Documents~ in support of its documen­tary evidence of representation. The Board is satisfied that the evidence of representation is consistent with the requirements of sections 108 and 120 of the Board's Rules of Procedure. Further, the Board is satisfied that each of the individual employers on behalf of the whom the applicant has submitted evidence of membership has vested appropriate authority in the applicant to enable it to discharge the responsibilities of an accredited bargaining agent.

5, The unit of employees requested by the applicant consists of all employers of employees for whom the respondent now has or may hereafter obtain bargaining rights in Board Area 15. The collective agreement referred to in paragraph 2 above contains the following recognition clause:

ARTICLE 2: Recognition

2.01 (a) The employer recognizes the Union as the sole and exclusive bargaining agent for all employees of the employer engaged in the installation and finishing of steel stud and drywall and acoustical systems in the residential sector of the construction industry.

(b) Townships of Winchester and Williamsburgh in Dundas County; Carleton County (save and except the Township of Marlbor­ough) and the Counties of Prescott, Glengarry, Russell and Stor­mont.

All as per Board Area 15 as defined by the Ontario Labour Relations

Board.

(c) The Union recognizes the Walls and Ceilings Contractors Association ("WACCA") as the accredited bargaining agent for all the employers engaged in the installation and finishing of steel stud and drywall systems in the residential sector of the construction industry as defined by the Ontario Labour Relations Board Area 15, or in any event recognizes WACCA as the sole and exclusive bargaining agent for all of the employers listed in Appendix "A" attached hereto who are similarly engaged in the installation and finishing of steel stud and drywall systems in the residential sec­tor of the construction industry in the aforementioned Board Area 15.

2.02 "Residential Sector" shall mean the Residential Sector division of the construction industry as determined by work characteristics in the above-mentioned geographical area and, without restricting the generality of the foregoing, shall be deemed to include all work, whether original construction, alterations, renovations, repairs or extensions, covered in the Trade Jurisdiction Clause of this Collective Agreement on or in connection with the construction of single family dwellings, duplexes, doubles, row housing, townhouses, condominiums, garden homes, executive homes, co-opera­tive housing, time sharing developments, rooming houses, boarding houses, and apartment buildings.

Without restricting the generality of the foregoing, where any construction, altera­tions, renovations, repairs or extensions covered in the trade jurisdiction of this Col­lective Agreement involve work in the residential sector and the industrial commer­cial and institutional sector (the ICI sector), the parties hereto agree that any work falling within the ICI sector shall be excluded from the operation of this Agreement and shall be performed in accordance with whatever collective agreement covers the work in that sector. The remaining work however on any such "mixed project" shall be performed in accordance with the provisions of this Collective Agreement. This definition of residential work shall apply without regard to the percentage of any such "mixed project" which is determined to be residential or ICI work.

Article 2.01 (b) refers to Carleton County which has been subsumed within the regional Municipal­ity of Ottawa-Carleton as a result of the municipal reorganization that led to the establishment of that regional municipality. In addition, the Township of Marlborough, as such, no longer exists. The Counties of Prescott, Glengarry, Russell and Stormont are now the United Counties of Stor­mont, Dundas and Glengarry and constitute Board Area 31. Notwithstanding that the collective agreement purports to recognize the respondent as the bargaining agent for employees of employ­ers party to it were engaged in the work described in Article 2.01 (a), those bargaining rights are in fact held by another trade union. Having regard to the evidence and the agreement of the parties, the Board finds that the following describes a unit of employers that is appropriate for collective bargaining:

all employers of employees for whom the United Brotherhood of Carpenters and Joiners of America, Local 2041 has bargaining rights in Board Area 15, being the Regional Municipality of Ottawa-Carleton and United Counties of Prescott and Russell in the residential sector of the construction industry, and for such other employers for whose employees the United Brotherhood of Carpenters and Joiners of America, Local 2041 may after the accredita­tion date obtain bargaining rights through certification or voluntary recogni­tion in the geographic area in sectors set out in the appropriate unit of employers.

6. In accordance with the Board's Rules of Procedure, notice of this application was sent to 16 employers. Of these notices 2 could not be delivered to the employers to whom they were addressed and were returned to the Board. These two and five other employers did not make the requisite filings in Form 94 and Schedule H. All 7 of these employers are party to the above ref­erenced collective agreement with the respondent. In addition, the parties provided the Board with information relating to the employees on the payroll of the 7 employers for the weekly payroll period immediately preceding the date of the application which are affected by this application based on the remittances made by those employers to the respondent with respect to such employ­ees. These remittances are summarized in employer contribution reports to the residential employee benefit trust which consists of union dues, deductions and contributions to the respon­dent's welfare, pension, training, motion, and industry funds. On the basis of the evidence before the Board with respect to the employers from whom filings were not received, the Board finds as follows:

Employer No. 4 - Construction Richard Lessard is an employer in the unit of employers which had no employees affected by this application in the payroll period immediately preceding May 2, 1986 but which did at other times within the period of one year prior to the date of the making of this appli­cation have such employees and should be placed on Schedule E.

Employer No. 6 - Jean-Yves Bernard Drywall Enr. is an employer in the unit of employers which had no employees affected by this application in the pay­roll period immediately preceding May 2, 1986 but which did at other times within the period of one year prior to the date of the making of this appli­cation have such employees and should be placed on Schedule E.

Employer No. 8 - Korban Inc. is an employer in the unit of employers which had no employees affected by this application in the payroll period immedi­ately preceding May 2, 1986 but which did at other times within the period of one year prior to the date of the making of this application have such employees and should be placed on Schedule E.

Employer No. 9 - Leduc & Associates is an employer in the unit of employers which had no employees affected by this application at any time within the period of one year prior to the date of the making of this application and should be placed on Schedule F.

Employer No. 13 - R. Chabot General Contractor is an employer in the unit of employers which had 3 employees affected by this application in the pay­roll period immediately preceding May 2, 1986 and should be placed on Schedule E.

Employer No. 15 - Trans Canada Painters Inc. is an employer in the unit of employers which had 8 employees affected by this application in the payroll period immediately preceding May 2, 1986 and should be placed on Schedule E.

Employer No. 16 - Valley Interiors is an employer in the unit of employers which had no employees affected by this application at any time within the period of one year prior to the date of the mak­ing of this application and should be placed on Schedule F.

7. On the basis of the representations of the employers who did make the required filings, the other evidence submitted, and the representations of the parties, the Board has drawn up the following list of employers. The employers listed on final Schedule E are those who had employees affected by the application in the year preceding May 2, 1986, the date of the making of this appli­cation. Those on final Schedule F have not had such employees.

Final Schedule 'E'

Advance Drywall Ltd;

Aristocraft Drywall Ltd;

A & G DAngelo Drywall Ltd;

Construction Richard Lessard;

D'Angelo Plastering (1983) Company Ltd;

Jean-Yves Bernard Drywall Enr;

Korban mc;

Nation Drywall Contractors Limited;

Nick Giamberardino Brothers Ltd;

Ormersher Decor (1980) Limited;

R. Chabot General Contractor;

Sapacon Drywall Ltd;

Trans Canada Painters Inc.

Final Schedule 'F'

I.R. Noel Plastering;

Leduc & Associates;

Valley Interiors.

8. On the evidence, and pursuant to the provisions of section 127(1)(a) of the Act, the Board finds that the 13 employers on final Schedule E are the employers in the unit of employers in the date of the making of the application who have within one year prior to such date had employees for whom the respondent had bargaining rights in the residential sector in Board Area 15, the sector and geographic area that the Board has determined to be appropriate.

9. On the basis of all the evidence, the Board has ascertained, pursuant to section 127(1)(b) of the Act, that the applicant represented 10 of the employers on final Schedule E on the date of the making of this application. Accordingly, the Board is satisfied that the majority of the employers in the unit of employers are represented by the applicant. In addition, section 127(2)(b) of the Act requires that the Board be satisfied that the employers represented by the applicant employ the majority of the employees ascertained by the Board pursuant to section 127(1)(c). Pur­suant to section 127(1)(c), the relevant payroll period is the weekly payroll period immediately preceding the making of the application. The Board is satisfied that such a payroll period, in this case the weekly payroll period immediately preceding May 2, 1986, is a satisfactory period for making such a determination.

10. On the basis of the evidence submitted, and pursuant to section 127(1)(c), the Board finds that there were 75 employees affected by this application during the weekly payroll period immediately preceding May 2, 1986. The Board further finds that the 10 employers represented by the applicant employed 64 of those employees. The Board is therefore satisfied that the majority of employers represented by the applicant employ the majority of the employees ascertained pur­suant to section 127(1)(c) of the Act.

11. Having regard to all of the foregoing and in accordance with the provisions of section 127(2) of the Act, a certificate of accreditation will issue to the applicant for the unit of employers that has been found by the Board to be appropriate: that is, all employers of employees for whom the United Brotherhood of Carpenters and Joiners of America, Local 2041 has bargaining rights in Board Area 15, being the Regional Municipality of Ottawa-Carleton and United Counties of Pres­cott and Russell, in the residential sector of the construction industry, and for such other employ­ers for whose employees the United Brotherhood of Carpenters and Joiners of America, Local 2041 may after the accreditation date obtain bargaining rights through the certification or volun­tary recognition in the geographic area and sector set out in the appropriate unit of employers.