Ontario Labour Relations Board
[1987] OLRB Rep. March 316
2789-86-R; 2790-86-R; 2791-86-R; 2792-86-R United Association of Journeymen and Apprentices of The Plumbing and Pipefitting Industry of The United States and Canada, Applicant v. Brown Boveri Howden Inc., Respondent v. Electrical Power Systems Construction Association, Intervener #1 v. Mechanical Contractors Association of Ontario, Intervener #2; United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of The United States and Canada, Applicant v. Nicholls Radtke Ltd., Respondent v. Electrical Power Systems Construction Association, Intervener #1 v. Mechanical Contractors Association Ontario, Intervener #2; United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of The United States and Canada, Applicant v. State Contractors Inc., Respondent v. Electrical Power Systems Construction Association, Intervener #1 v. Mechanical Contractors Association Ontario, Intervener #2; United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of The Ur :ted States and Canada, Applicant v. Watts & Henderson Ltd., Respondent v. Electrical Power Systems Construction Association, Intervener #1 v. Mechanical Contractors Association Ontario, Intervener #2
BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members L M. Stamp and C. A. Ballentine.
APPEARANCES: A. J. Ahee, N. W. Meikie and C. Burrows for the applicant; J. P. Borden, J. A. Jackson and Chris Doona for Brown Boveri Howen Inc.; S. C. Bernardo and Richard Westlake for Nicholls Radtke Ltd.; S. Bernardo and Phillip Wiseman for Watts & Henderson Ltd.; no one appearing on behalf of State Contractors Inc.; H. A. Beresford and I. Starasts for intervener #1; G. Grossman for intervener #2.
DECISION OF THE BOARD; March 18, 1987
1These four applications for certification pursuant to the construction industry provisions of the Labour Relations Act were all filed on January 9, 1987 and came on for hearing together in Toronto on February 25, 1987. Upon hearing the representations of the parties with respect to the issues raised in various replies and interventions filed, the Board orally dismissed all four. The Board's reasons now follow.
2On the information before the Board, the applicant is a trade union within the meaning of section l(l)(p) of the Act and is an affiliated bargaining agent of a designated employee bargaining agency. Pursuant to the designation issued by the Minister pursuant to what is now subsection 139(1)(a) of the Act on April 12, 1978, and subsequently amended on May 14, 1982, the designated employee bargaining agency is the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of The United States and Canada, and the Ontario Pipe Trades Council of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of The United States and Canada.
3In each application, the applicant trade union sought to be certified for a bargaining unit that it described as follows:
All plumbers, plumbers' apprentices, steamfitters, steamfitters' apprentices and pipe welders
in the employ of the Respondent in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario; and
in the employ of the Respondent in the electrical power systems sector of the construction industry in the Province of Ontario; and
in the employ of the Respondent in all other sectors of the construction industry in Board geographic area 9
save and except non-working foremen and persons above the rank of non-working foreman.
4The Act is structured so that trade unions which, like the applicant, engage in collective bargaining in the industrial, commercial and institutional ("I.C.I.") sector of the construction industry may apply for bargaining units of employees as follows:
(a) all employees who would be bound by a provincial collective agreement in the ICI sector and, unless bargaining rights for them are already held by a trade union, all other employees in all other sectors of the construction industry in at least one of the Board's geographic areas (subsection 144(1)); or
(b) all employees in all sectors other than the ICI sector of the construction industry in a board area (subsection 144(3)).
The bargaining units requested herein are most like one sought pursuant to subsection 144(1) and are applications for certification within the meaning of section 119 of the Act. Though specifically asked whether it wished to do so, the applicant did not seek to amend any of its four applications.
5In an application for certification under subsection 144(1) of the Act, there need not be employees who are not represented by any trade union in both the ICI sector and in some other sector of the construction industry on the date of application in order for a trade union to be certified as the bargaining agent of the employees in the bargaining unit (see Colonist Homes Ltd., [1980] OLRB Rep. Dec. 1729; Watcon Inc., [1981] OLRB Rep. Nov. 1697). However, to be so certified, the employer for which employees a trade union seeks to be certified must have at least two employees in one or the other who are unrepresented, or who are not covered by a collective agreement, or who are covered by a collective agreement which is in its open period when the application is made. Similarly, in an application under subsection 144(3) of the Act, there must be at least two such employees in other than the ICI sector on the date of application. There were no such employees in any of the bargaining units applied for in these four applications. Indeed, the applicant itself already holds the bargaining rights for all of the employees for whom it sought to be certified.
6The applicant and the intervener Electrical Power Systems Construction Association ("EPSCA") are bound by a provincial agreement effective May 1, 1986 to April 30, 1988 for the electrical power system sector of the construction industry (the "EPSCA Agreement"). All four respondent employers are bound by that provincial agreement. Further, three of the four respondents, namely Nicholls Radtke Ltd., State Contractors Inc., and Watts and Henderson Ltd., are bound by a provincial agreement for the ICI sector effective May 1, 1986 to April 30, 1988 (the "MCAO agreement"). The applicant and the intervener Mechanical Contractors Association of Ontario ("MCAO") are also bound by that provincial agreement. The remaining respondent, Brown Boveri Howden Inc., though apparently not bound by the ICI provincial agreement, employed no non-managerial persons for whom no union held bargaining rights in any sector of the construction industry on the date of the application for certification to which it is the respondent. Consequently, there were no employees affected by any of the four applications for whom no union held bargaining rights on the date of application. Further, the applications were not made during the open periods of the collective agreements that cover the employees affected.
7In the result, no application to represent employees covered by these agreements would be timely. Accordingly, the employees covered by either provincial agreement would be excluded from the bargaining units applied for in these applications. Therefore, on the date these applications were filed, none of the respondents had any employees in any of the bargaining units applied for in any of the applications. There being no employees in any of the bargaining units applied for, all the applications were dismissed.
8Finally, the Board understood counsel for the applicant to say that his client had brought these applications for certification in order to have the Board clarify what bargaining rights it already holds for which employers pursuant to the EPSCA and ICI provincial agreements. In our view, an application for certification is not an appropriate vehicle for obtaining such a clarification. Indeed, it is difficult to understand why the applicant does not simply ask EPSCA and MCAO which employers those Associations consider are bound by their respective provincial agreements. Any dispute with respect to that or any other issue concerning the interpretation, application or administration of either provincial agreement is properly dealt with either in accordance with the grievance and arbitration provisions of the provincial agreement concerned, or by referring a grievance with respect to the dispute to the Board pursuant to section 124 of the Act.