Labourers' International Union of North America v. Dagmar Construction Limited

[1987] OLRB Rep. April 480

2914-86-R Labourers' International Union of North America, Applicant v. Dagmar Construction Limited, Respondent

BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members J. Wilson and J. Redshaw.

APPEARANCES: David Strang, Nick Scibetta and Joseph Mancinelli for the applicant; Walter Thornton, O. J. Montgomery and Aldo Bigioni for the respondent.

DECISION OF THE BOARD; April 21, 1987

1. The name of the respondent is amended to: "Dagmar Construction Limited".

2. The 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 clause (a) of section 139(1) of the Act on September 30, 1983, the designated employee bargaining agency is the Labourers' International Union of North America and the Labourers' International Union of North America, Ontario Provincial District Council.

3. The 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:

144.-(i) 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.

4. The applicant trade union seeks to be certified to represent a bargaining unit of employ­ees which it describes, in its application, as follows:

all construction labourers in the employ of the respondent in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and all construction labourers in the employ of the respondent in all other sectors of the construction industry of [sic] Ontario Labour Relations Board Area No. 5, save and except non-working foremen and per­sons above that rank.

5. At paragraph 8 of its Reply, the respondent describes the bargaining unit of its employ­ees that it claims to be appropriate for collective bargaining as follows:

all construction labourers in the employ of the respondent in all sectors of the Construction Industry excluding the Industrial, Commercial and Institutional sector of OLRB Area #5 save and except non-working foremen and persons above the rank of non-working foreman.

At paragraph 13 of its Reply, the respondent explains why it takes that position:

The Respondent works as a road builder and bridge constructor. The Respondent's head office is located in Markham. The Respondent employs a substantial number of construction labourers who have extensive seniority with the Company in OLRB Area #8. The Company had two other projects under way in Board Area #8 on the day of the application. The Wetland Canal project is a project of short duration and is the first project the Company has undertaken in OLRB Area #5. Therefore it is submitted that the bargaining unit described in the application is not appropriate and that Board Area 5 does not constitute "an appropriate geographic area" within the meaning of section 144(1) of the Act and that therefore an application for certifica­tion which includes the Industrial, Commercial and Institutional sector of the Construction Industry cannot be founded on employees working in Board Area 5.

6. At the hearing on March 13, 1987, counsel for the respondent reiterated the respon­dent's position as set out in its Reply. He asserted that the respondent generally employs a signifi­cant number of construction labourers in Board Area 8 and that, with respect to this particular application, the respondent employed nine construction labourers on the day prior to the date of application, seven construction labourers on the date of application, and nine construction labour­ers the day after the date of application in Board Area 8. Although he maintained that the respon­dent does, in his view, little or no industrial, commercial and institutional ("ICI") work, counsel asserted that any application for certification relating to construction labourers employed by the respondent in the ICI sector of the construction industry must include an application for all con­struction labourers in all other sectors of the construction industry in Board Area 8 as the compan­ion "appropriate geographic area" contemplated by section 144(1) of the Act both as a general principle, and because Board Area 8 is where the respondent in this case, he asserts, does most of its work. It was counsel's position that where an employer has non-ICI construction employees in a number of Board Areas, a trade union seeking certification under section 144(1) of the Act must either apply for certification with respect to the construction employees in the trade it seeks to rep­resent in each Board Area individually under subsection 3 or, if it seeks ICI sector bargaining unit rights for those employees, it must also apply under subsection 1 for certification of all such non­ICI employees in all Board Areas in which the respondent employer has such employees. He explained that the reason for this is to ensure that all employees who might in the future be affected by a certificate issued with respect to the ICI sector of the construction industry are given notice of and a right to participate in the certification proceedings. Counsel referred to the Board's in Watcon Inc., [1981] OLRB Rep. Nov. 1697.

7. Counsel for the applicant submitted that the application as filed meets the requirements of section 144(1) of the Act and that the Board should, as it has in the past, considered which employees were actually affected by the application when it was made and not speculate as to which employees may be affected in the future. Counsel referred the Board to a number of cases, including Colonist Homes Ltd., [1980] OLRB Rep. Dec. 1729; Pelar Construction Ltd., [1981] OLRB Rep. Feb. 210 and Louis W. Bray Construction Limited, Board File No. 1729-86-R unre­ported decision dated October 24, 1986.

8. For reasons set out in Lyle West Electric Limited, [1978] OLRB Rep. Nov. 999 and Pelar Construction Ltd. , supra, the Board has never attempted to make determinations concerning the sector in which employees are working when dealing with applications for certification under section 144(1) of the Act. Since Colonist Homes Ltd., supra, the Board has interpreted the rela­tionship of subsections 1 and 3 of section 144 as an option exercised by an applicant trade union; that is, the trade union decides which subsection it is applying under.

9. It was not suggested that there need be any employees actually working for the respon­dent in the ICI sector of the construction industry on the date of application in order for the appli­cation to properly relate to that sector, provided that the bargaining unit applied for encompasses other sectors of the construction industry in which the respondent did have employees on that date (see, Colonist Homes Ltd., supra).

10. In Walcon Inc., supra, the Board dealt with two separate applications for certification. In one, the United Brotherhood of Carpenters and Joiners of America, Local 785 applied, under section 144(1), for a bargaining unit of carpenters and carpenters' apprentices employed by the company in the ICI sector of the construction industry for the Province of Ontario and carpenters and carpenters' apprentices employed by the company in all sectors of the construction industry excluding the ICI sector in Board Areas 6 and 7. The respondent company asserted, as one of its arguments, that only Board Area 6 was an appropriate geographic because, although it did on the date of application employ carpenters in Board Area 7, it was based in and did most of its work in Board Area 6. The Board rejected that argument and found that all carpenters and carpenters' apprentices in the employ of the respondent company in the ICI sector of the construction industry in the Province of Ontario and all carpenters and carpenters' apprentices employed by the respon­dent company in all other sectors of the construction industry in both Board Areas 6 and 7, consti­tute a unit of employees appropriate for collective bargaining. In our view, the decision in Watcon Inc., supra, stands only for the proposition that an application under section 144(1) of the Act may pertain to a bargaining unit that includes non-ICI sector employees in more than one geographic area. It does not suggest that there are circumstances under which such an application must pertain to more than one geographic area.

11. Paragraphs 6 and 7 of the decision Louis W. Bray Construction Limited, supra, set out the issue before the Board in that case:

12. Having regard to the agreement of the parties, the Board further finds, pursuant to section 144(1) of the Act, that all construction labourers in the employ of the respondent in the industri­al, commercial and institutional sector of the construction industry in the Province of Ontario and all construction labourers in the employ of the respondent in all other sectors in the Regional Municipality of Ottawa-Carleton, and the United Counties of Prescott and Russell, 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.

13. This application was made September 15, 1986, and on that date the respondent was employ­ing construction labourers on three projects. None of the projects were in the industrial, com­mercial and institutional ("ICI") sector of the construction industry. One project was in the Board's geographic area #15, that is, the Regional Municipality of Ottawa-Carleton, and the United Counties of Prescott and Russell. The other two projects were outside of Board area #15. There was no dispute between the parties that construction labourers working on the project within Board area #15 were included in the bargaining unit described above. The par­ties were in dispute as to whether the construction labourers employed on the other two projects on the date of the application were to be included in the unit. It was the respondent's position, that, since the application was made under section 144(1) of the Act at a time when there were no construction labourers employed by the respondent in the ICI sector, all of the construction labourers employed by the respondent on September 15th should be included in the unit described above. According to the respondent, this is because these construction labourers could be employed in the future by the respondent in the ICI sector. Therefore, they are con­struction labourers who, in the words of section 144(1) "... would be bound by a provincial agreement ...".

In that case the Board rejected the respondent's contention. The issue before the Board in that case was not identical to that before the Board in this one because it was not suggested in Louis W. Bray Construction Limited that the trade union had to apply for a bargaining unit that included all non-ICI sector employees of the respondent employer, only that all such employees were entitled to participate in a representation vote with respect the application that had been made. However, neither was the position put forward by the respondent in Louis W. Bray Construction Limited case entirely unlike the one the Board is urged to adopt in this case; that is, that the non-ICI sector construction employees outside of the Board area applied for as part of this application for certifi­cation under section 144(1) of the Act should be included in the bargaining unit applied for pur­poses of the count (and presumably for all other purposes relating to the application) because they might, at some time in the future, be employed by the respondent in the ICI sector and be bound, if the application succeeds, by a provincial collective agreement. In essence, the respondent to this application takes the position taken by the respondent in Louis W. Bray Construction Limited one step further when it asserts that the applicant must, if it seeks ICI sector bargaining rights, also apply for non-ICI bargaining rights in relation to all Board areas in which the respondent has con­struction labourers in its employ. The Board in Louis W. Bray Construction Limited, correctly in our view, rejected the respondent employer's position. Similarly, the position of the respondent in this proceeding must also be rejected.

12. Section 144(1) of the Act requires only that an application for certification relating to the ICI sector of the construction industry be for a bargaining unit consisting of all employees who could be bound by a provincial agreement together with all other unrepresented employees in at least one appropriate geographic area. In our view, the language of section 144(1) contemplates that an employer in the construction industry may have unrepresented construction employees in other than the ICI sector of the construction industry in more than one geographic area. The words in at least one appropriate geographic area" permit a trade union to make its application with respect to more than one geographic area. They do not, in our view, require the trade union to do so. Furthermore, in determining the unit of employees that is appropriate for collective bargaining, and ascertaining the number of employees in that bargaining unit at the time the application was made and the level of support in the unit for the trade union's application for certification, the Board has developed practices and procedures that recognize that the make up of any given employer's employee complement rarely remains constant. Even in non-construction businesses employees may be continually coming and going as a result of hiring, firing, lay-offs, leaves of absence, and so on. The nature of the construction industry is such that employment with a partic­ular employer tends to be even more ephemeral. In the face of this labour relations reality, the Board must, under section 7(1) of the Act, ascertain the number of employees in the bargaining unit and the number of such employees who are members of the applicant trade union at particular times. In addition, section 119(2) of the Act specifies that, in applications for certification under the construction industry provisions of the Act, the Board need not have regard to any increase in the number of employees in a bargaining unit after the application was made. The rule adopted by the Board in the construction industry is that persons who are not both employed by and at work for the respondent employer on the date the application is made are not included as employees in the bargaining unit for purposes of "the count" even though their absence on the date of appli­cation was due to uncontrollable circumstances (see for example, Smiths Construction Company Arnprior Limited, [1984] OLRB Rep. Mar. 521; E & E Seegmiller Limited, [1987] OLRB Rep. Jan. 41). The requirements of the Act and the ephemeral nature of employment in the construc­tion industry are such that it is neither possible nor practical for the Board to speculate about what persons may at some unspecified time in the future be affected by a successful application for certi­fication. Accordingly, the applicant in this case is not required to make its application in relation to Board Area 8.

13. The Board ruled as aforesaid orally, without reasons, at the hearing on March 13, 1987. The Board further found and hereby confirms that, pursuant to section 144 of the Act, all con­struction labourers in the employ of the respondent in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and all construction labourers in the employ of the respondent in all other sectors on the construction industry in the Regional Munici­pality of Niagara and that portion of the Regional Municipality of Halton and Norfolk coming within the former County of Haldimand, 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.

14. The respondent filed, together with its Reply, a list of employees and specimen signa­tures within the time fixed in accordance with the Labour Relations Act and the Board's Rules of Procedure. The list as filed contained ten names. The applicant challenged the inclusion of Vero­nica Hall on the list and the respondent agreed that her name ought not to be on it. Having regard to the agreement of the parties, we find that Veronica Hall is excluded from the bargaining unit for purposes of the count. At the hearing, the applicant also challenged the inclusion of Frank Esposi­to, Tony Fanone, Dominic Farina and Angelo Savoia on the list of employees. By letter dated March 19, 1987, the applicant particularized its challenges in respect of those four individuals as follows:

15. The Applicant challenges the inclusion of Frank Esposito, Tony Fanone, Dominic Farnia and Angelo Savoia on the list of employees in the bargaining unit, in that, while the aforesaid employees were employed by the Respondent within Board Area 5 and may have worked in that area on the date of application, these persons were not employed as construction labourers nor did they perform the work of construction labourers for the majority of their time on the date of application.

16. Further and in the alternative Angelo Savoia was the job superintendent at the project in question and as such did not perform sufficient labourers work to bring him within the unit and in any event ought to be excluded pursuant to section 1(3)(b) of the Act.

17. Without limiting the generality of the foregoing, Frank Esposito, Tony Fanone, and Dominic Farina appear to have been employed as equipment operators, truck drivers or pipefitters or in a combination of those classifications.

18. The Board therefore authorizes a Labour Relations Officer, to be designated by the Registrar, to inquire into and report to the Board with respect to the duties and responsibilities of, and the nature of the work performed by, Frank Esposito, Tony Fanone, Dominic Farina, and Angelo Savoia on the date of this application. The attention of the Officer and of the parties is directed to the Board's decisions in E & E Seegmiller Limited, supra, and Gilvesy Enterprises Inc., [1987] OLRB Rep. Feb. 220 with respect to the criteria to be used in determining whether or not a particular individual is to be included in the construction industry bargaining unit for purposes of the count.

19. The matter is referred to the Registrar.