[1987] OLRB Rep. April 595
3096-86-R United Steelworkers of America, Applicant v. Kenoyd Limited trading as Pickering Welding & Steel Supply, Respondent
BEFORE: Harry Freedman, Vice-Chair, and Board Members D. A. MacDonald and J. Redshaw.
APPEARANCES: P. Turtle, W. Curtis, R. Laird and T. Reid for the applicant; M. E. Geiger, Norman R. A. White, Jerry Randall and Lloyd Henning for the respondent.
DECISION OF THE BOARD; March 31, 1987
The name of the respondent is amended to read: "Kenoyd Limited trading as Pickering Welding & Steel Supply".
This is an application for certification.
The Board finds that the applicant is a trade union within the section of l(l)(p) of the Labour Relations Act.
Counsel for the respondent submits that this application for certification must be dismissed on the ground that the applicant is not entitled to bring this application in view of the nature of the respondent's business and the employees that the applicant seeks to represent. Counsel for the respondent submits that the respondent operates a business in the construction industry and is therefore an "employer" as defined by section 117(c) of the Act and the employees that the applicant seeks to represent are "employees" as defined subsection 117(b).
The respondent is engaged in the fabrication and erection of structural steel. It also fabricates and installs other steel structures and materials such as staircases, railings and catwalks. The employees of the respondent perform both erection and installation work at construction sites and fabrication work at the respondent's premises.
The respondent submits bids to both the owners of the construction work and general contractors in order to obtain the fabrication, erection and installation work. It hires unskilled employees and initially trains them in its shop premises. The employees, after being trained and demonstrating sufficient progress, are assigned to work at the respondent's construction jobs under close supervision. The respondent believes that having the same employees do the erection and installation work as well as the fabrication work emphasizes the importance of the accuracy of their fabrication work in the shop. On occasion, particularly in the summer months when the respondent's volume of business is at its peak, the employees who work at a construction site for a day or part of a day will return to the respondent's shop to do fabrication work.
The respondent is also engaged in the supply of steel beams, reinforcing rods and other items to contractors that it does not install and will also occasionally perform non-construction work. Approximately 95 per cent of its entire business is the fabrication and installation of its production in industrial, commercial and institutional construction.
The Board is satisfied on the evidence that the respondent is an employer within the meaning of section 117(c) of the Act. Although not all of its business activity may be work that falls within the definition of construction industry set out in section 1(1)(f) of the Act, it is clear that a significant segment of its business is within the construction industry.
Furthermore, we are satisfied that the respondent's employees who perform erection and installation work at construction sites are "employees" within the meaning of section 117(b). The respondent uses the same employees to perform both shop fabrication and installation and erection work with one exception. The shop employees are trained and ultimately progress to perform field work. They may do some installation and erection at a particular project and may then work with other employees to fabricate the balance of the material for that project. In our opinion, the employees who perform the shop work for the respondent are commonly associated in their work with the on-site employees and therefore are employees within the meaning of section 117(b).
Counsel for the applicant conceded that the applicant is not a trade union within the meaning of section 117(f). Section 117(f) states:
"In this section and in sections 118 to 136,
(f) “trade union' means a trade union that according to established trade union practice pertains to the construction industry."
The applicant does not, according to established trade union practice, pertain to the construction industry.
Counsel for the respondent submits that as the applicant is not a trade union as defined by section 117(f), it cannot apply for certification in respect of an employer or employees that come within the meaning of sections 117(b) and (c). Counsel refers to section 118 of the Act which states:
"Where there is conflict between any provision in sections 119 to 136 and any provision in sections 5 to 57 and 62 to 116, the provisions in sections 119 to 136 prevail."
Counsel then relies on section 119(1) which states:
"(1) Where a trade union applies for certification as bargaining agent of the employees of an employer, the Board shall determine the unit of employees that is appropriate for collective bargaining by reference to a geographic area and it shall not confine the unit to a particular project."
[emphasis added]
Counsel submits that the words "employer" and "employees" in section 119 are defined by section 117 and therefore the Act contemplates that only a trade union within the meaning of section 117(f) can apply for certification to represent employees of an employer pursuant to section 119.
Counsel submits that the entire scheme of the legislation relating to the construction industry contemplates that employers and trade unions will engage in broadly based collective bargaining through the province-wide bargaining provisions or accreditation provisions in the Act.
Counsel refers to section 144 and argues that only trade unions as defined by section
117(f) may apply for certification in relation to the industrial, commercial and institutional sector
of the construction industry. In this case it is clear that the respondent and its employees are engaged in construction work in that sector of the construction industry and therefore, counsel submits, only a trade union within the meaning of section 117(f) can seek to represent such employees.
Counsel submits that the Board's approach to situations where employees are engaged in both on-site and off-site work has not taken into account the amendment to the Act in 1970 that added what is now section 117(b). He submits that the Board, by merely accepting that an application may be made under the general provisions of the Act where an employer employs both on and off-site employees, has not appreciated that both on and off-site employees can be employees in the construction industry and therefore such an application for certification may fall entirely within the construction industry provisions of the Act. Counsel submits that the pre-1970 amendment cases, such as John Harvie Ltd., [1969] OLRB Rep. April 145 and Canadian Pittsburgh Industries Limited, [1969] OLRB Rep. April 135 have been applied by the Board in subsequent cases without considering the effect of the amendment. He referred us to C. A. Pitts Engineering Ltd., [1973] OLRB Rep. Feb. 123; Warren Bitulithic Limited, [1981] OLRB Rep. March 376; Esam Construction Limited, [1980] OLRB Rep. Feb. 197; Ethier Sand and Gravel Limited, [1979] OLRB Rep. Oct. 962; Dominion Paving Limited, [1981] OLRB Rep. Oct. 1370 and Metro Railing Limited, [1986] OLRB Rep. Dec. 1731.
Despite the ingenuity and initial attractiveness of counsel's argument, we do not accept counsel's interpretation of the Act. While section 144(1) of the Act stipulates the identity of an applicant that seeks certification in relation to the industrial, commercial and institutional sector of the construction industry, section 144(5) states:
"(5) Notwithstanding subsections (1) and (4), a trade union that is not represented by a designated or certified employee bargaining agency may bring an application for certification or enter into a voluntary recognition agreement on its own behalf."
- The term "trade union in section 144(5) is not defined by section 117(f) since section
117 opens with the words "In this section and in sections 118 to 136".
Additionally, the term "trade union" is not defined in section 137, the definition section relating to province wide bargaining. Therefore we are left only with the definition of trade union in section l(l)(p) of the Act. As we found in paragraph 3 above, the applicant is a trade union as defined by that section.
Counsel argues that the failure to amend section 117 to include the province-wide bargaining provisions within its ambit was a mere oversight of the legislature since the province-wide provisions were added to the Act after sections 117 to 136 were part of the Act.
The scheme of provincial bargaining in the construction industry contemplates a broadly based bargaining structure in respect of employers whose employees are represented by trade unions that are affiliated bargaining agents of employee bargaining agencies. That scheme is supported by provisions such as section 146 that prohibit collective agreements or other arrangements affecting employees represented by affiliated bargaining agents except for a provincial agreement. Nevertheless, section 144(5) expressly provides that employees may be represented by trade unions other than affiliated bargaining agents and those unions and the employees they represent fall outside the scheme of province-wide bargaining to the extent of the bargaining rights held by those trade unions.
The applicant is not a trade union within the meaning of section 117(f). Therefore, it
cannot take the benefit of the construction industry provisions of the Act, and in particular, section 119. The number of employees in the bargaining unit and the description of the appropriate bargaining unit must be determined by the Board without regard to section 119, since the applicant is not a trade union as contemplated by section 119.
- Section 119 does not stipulate that only trade unions within the meaning of section
117(f) may apply to represent employees of employers in the construction industry. Section 119 becomes applicable, as the opening words of that section make clear, only where a trade union within the meaning of section 117(f) applies for certification. Unlike section 144, section 119 does not provide a separate vehicle for obtaining certification in respect of construction industry employers and employees. Indeed, section 119(2), which provides:
In determining whether a trade union to which subsection (1) applies has met the requirements of subsection 7(2), the Board need not have regard to any increase in the number of employees in the bargaining unit after the application was made
expressly contemplates that an applicant for certification must still satisfy the requirements of section 7. Certification must still be sought pursuant to sections 5, 6 and 7. The addition of section 144 to the Act does not change the interpretation of section 119 because the definition of trade union used in that section is not applicable to the term "trade union" in section 144(5).
Nevertheless, the applicant is a trade union within the meaning of the Act and it is not an affiliated bargaining agent as that term is defined by section 137(1)(a). Nothing in section 144 or in any other section of the Labour Relations Act prohibits the applicant from seeking certification of construction industry employees of a construction industry employer. Since the applicant is not an affiliated bargaining agent, if it is certified it would not be precluded by section 146 from negotiating and concluding a collective agreement with respondent in respect of the industrial, commercial and institutional sector of the construction industry because the employees it would be representing would not be represented by an affiliated bargaining agent. The applicant is not an affiliated bargaining agent. Therefore the limitation on the (employees' right to select a bargaining agent of their own) choice that is discussed in cases such as Clarence H. Graham Construction Limited, [1981] OLRB Rep. Sept. 1195; Diversified Sheet Metal Limited, [1981] OLRB Rep. Nov. 1575; Ninco Construction Limited, [1982] OLRB Rep. Nov. 1692 and Manacon Construction [1983] OLRB Rep. March 407; application for reconsideration dismissed, [1983] OLRB Rep. July 1104; is simply not applicable here.
Neither the applicant nor any of the employees for whom it will hold bargaining rights if certified will be part of the scheme of province-wide bargaining described in the Act. Any collective bargaining in which the applicant engages that might affect employees it represents who are in the construction industry and work in the industrial, commercial and institutional sector would not be subject to section 146 of the Act. Therefore, we are satisfied that the applicant may bring this application for certification under the general provision of the Act, pursuant to sections 5, 6 and 7.
The respondent's motion to dismiss this application is hereby dismissed.
This matter is referred to the Registrar to be relisted for hearing before this panel of the Board to deal with all remaining outstanding issues.