[1987] OLRB Rep. October 1251
1594-87-R International Brotherhood of Electrical Workers, Local 1687, Applicant v. John Anthony Waite c.o.b. as J. C. Electric, Respondent
BEFORE: Harry Freedman, Vice-Chair, and Board Members W. H. Wightman and J. Redshaw.
DECISION OF THE BOARD; October 21, 1987
1In this application for certification the applicant filed three combination applications for membership and receipts. The combination applications for membership are signed by the employees and the receipts are countersigned and indicate that a payment of $1.00 has been made within the six-month period immediately preceding the terminal date of the application. The money was collected by one person. The applicant also filed a duly completed Form 80, Declaration Concerning Membership Documents, Construction Industry.
2The respondent filed a reply, a list of employees containing five names on Schedule "A", one name on Schedule "D" and specimen signatures within the time fixed in accordance with the Labour Relations Act and the Board's Rules of Procedure.
3A timely statement expressing opposition to the application was also filed, containing the names and signatures of two employees whose names appear on the schedules of employees filed by the respondent. There is also the name and signature of a third person purporting to be a witness to the signing of the statement. That third person's name does not appear on the schedules of employees filed by the respondent.
4The 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 December 12, 1977, the designated employee bargaining agency is The International Brotherhood of Electrical Workers and the IBEW Construction Council of Ontario.
5The 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."
6The respondent in its reply requested a hearing of this matter. The grounds for requesting the hearing are set out in paragraph 13 of its reply where the respondent states:
"I request a hearing in this application on the following grounds.
It cannot be allowable that an electrician hired on a temporary 2 week basis such as Carlo Provenzano or an apprentice such as Dave Richard, hired temporarily to replace an indentured apprentice who had the misfortune to break his leg should have a vote on a matter that affects the livelihood of three permanent employees and myself.
I request relief on the grounds that my company is the product of the New Ventures Loan Program, through the Ministry of Industry, Trade and Technology.
In this program there is a two year layout in which I am contractually obligated to work as an electrician myself and to use a total package wage scale of not more than $15.00 per hour.
As a former member of the I.B.E.W. Local 1687 I believe their wage scale to be total package (benefits included) in excess of $25.00 an hour.
This would put my company out of business and cause failure of the loan ($15,000.00) to the New Ventures Program.
Since the competition in the Sault area is 90% non union e.g Glenn Contracting, Lawrence Electric, Norwon Electric, O'Connor and Soltys, Permanent Electric, Phase 4 Electric, S. & T. Electric, and Soo Electric.
The union shops other than one man companies are Mutual Electric and Elteck Electric.
My permanent employees will be reduced from gainful wage earners to unemployed union members on the bottom of a 100 man waiting list (approx.) or they may be offered jobs in remote areas of Northern Ontario, miles away from home.
My permanent employees have expressed to me that they would prefer full time employment and to be able to work in the Sault and are willing to sacrifice the extra earnings promised by membership in the union for these benefits.
I know the above statement is true because as a former member of Local 1687 I spent more than half of my career travelling to different cities for employment and this is the primary reason that I dropped my union card and started my own electrical company approximately 1 year ago. Not to mention the 3 years previous to this the union could not provide me with employment at all and I had to seek employment for myself.
- At this hearing I will bring representation from the New Ventures Program, financial structure of the company and proof of the temporary nature of two of the employees on the date of application September 10, 1987."
7The Board has the discretion under section 102(14) of the Labour Relations Act not to schedule a hearing in connection with applications for certification in the construction industry. A hearing is necessary where there is a material fact in dispute or where a party to the proceeding raises an issue which requires further argument before it can be dealt with by the Board. In our opinion, the matters raised by the respondent do not require a hearing.
8With respect to the first ground raised, the Board is directed by the Act to make the assessments required by sections 7 and 144 as of a particular point in time. Employment can fluctuate, particularly in the construction industry, and in order to establish both certainty and expedition in the processing of these kinds of applications, the Board has regard to the employees of the respondent who were working in the bargaining unit on the date of the making of the application. Therefore, there is no need to hear further submissions from the respondent on whether an employee who was away from work for several weeks at the time the application was made should be included for purposes of determining the degree of support the union enjoyed among the employees in the bargaining unit.
9Similarly, whether an employee is permanent or temporary is of no consequence. Employment in the construction industry is characterized by short-term jobs and fluctuations in employee complement. Since the Labour Relations Act requires determinations to be made as of a specific point in time, the Board in construction industry applications does not consider an employee's length of employment or prospect for future employment with the employer as being relevant to whether an employee is to be considered in making the requisite determinations under sections 7 and 144 if that employee was at work in the bargaining unit on the date of application.
10As for the other two grounds raised by the respondent, the Board in certification applications is required to make assessments about the degree of membership an applicant has among the employees in the unit of employees found to be appropriate for collective bargaining.
11We accept as proved all of the factual assertions made in the respondent's reply. Those facts however are not relevant to the determination of the issues before us since they are all consequences that arise from the issuance of a certificate but do not relate to issues that must be determined by the Board under sections 7 and 144. We note here that the description of the appropriate bargaining unit in this case is mandated by section 144 of the Act.
12The Board does not consider the consequences of issuing a certificate other than in making the determination of the appropriate bargaining unit. This approach was clearly stated by the Board as early as 1950 in Sinclair Cut Stone and Construction Company Limited, 52 CLLC ¶17,009 where the Board wrote:
"We wish also to express the opinion that the question whether certification will, in a particular case, be of benefit to the employees affected or will pose difficult problems for the parties concerned is not one for consideration by the Board. An applicant which meets the necessary requirements is entitled to certification for what it is worth. It is not the function of the Board to endeavour to estimate the probable future value of certification."
See also Toronto Driving Club Ltd., [1964] OLRB Rep. April 33; Guelph Beef Center Inc., [1977] OLRB Rep. March 184 at 190.
13The respondent, in our view, is asking the Board to prevent the applicant from obtaining certification under the Act because of the hardship that certification will cause to him. The Act gives trade unions the right to seek certification. It would be improper to deprive the applicant of its right to obtain certification because certification will create severe difficulties for the respondent.
14We also observe here that the consequences of certification of the applicant in respect of the respondent's work in the industrial, commercial and institutional sector of the construction industry is mandated by the Labour Relations Act. The parties, however are free to bargain in respect of work done by the respondent outside of the industrial, commercial and institutional sector of the construction industry provided there is no certificate of accreditation by which the applicant is bound in the geographic area that is affected by this application.
iS. Furthermore, the statement of opposition does not have any bearing on the disposition of this matter since none of the employees who are members of the applicant signed the statement in opposition. See Unlimited Textures [1984] OLRB Rep. Jan. 138.
The Board further finds, pursuant to section 144(1) of the Act, that all electricians and electricians' apprentices in the employ of the respondent in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and all electricians and electricians' apprentices in the employ of the respondent in all other sectors of the construction industry in that portion of the District of Algoma south of the 49th parallel of latitude, 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.
We observe here that the respondent placed himself on the list of employees. The respondent is the employer and as an employer cannot at the same time be an employee. Therefore, on the basis of the material filed, the Board is satisfied that there were four employees in the bargaining unit on the application date. 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 September 21, 1987, 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.
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 4 above in respect of all electricians and electricians' apprentices 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 electricians and electricians' apprentices in the employ of the respondent in all other sectors of the construction industry except the industrial, commercial and institutional sector in that portion of the District of Algoma south of the 49th parallel of latitude, save and except non-working foremen and persons above the rank of non-working foreman.