Ontario Labour Relations Board

[1987] OLRB Rep. June 881

0211-87-R Labourers' International Union of North America, Local 506, Applicant V. Menkes Developments Inc., Respondent v. Labourers' International Union (f North America, Local 183, Intervener

BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members I. M. Stamp and H. Kobryn.

APPEARANCES: Mike Mihajlovie and Bernard Fishbein for the applicant; Richard J. Charney and John Formusa for the respondent; Jules Bloch, Alison Hudgins and R. Lotito for the intervener.

DECISION OF THE BOARD; June 22, 1987

1. 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.

2. The Board finds that the applicant is a trade union within the meaning of sections l(l)(p) and 117(f) of the Act and is an affiliated bargaining agent of a designated bargaining agency. Pursuant to the designation by the Minister under 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. In the application filed with the Board, the applicant seeks to be certified for the following unit of employees of the respondent:

all construction labourers in the employ of the respondent in the industrial, commercial and institutional sector in the Province of Ontario, save and except non-working foreman [sic] and persons above the rank of non-working foreman.

all construction labourers in the employ of the respondent in Ontario Labour Relations Board Area #8, excluding the industrial, commercial and institutional sector, save and except non-working foreman [sic] and persons above the rank of non-working foreman.

4. Pursuant to the Board's Rules of Procedure, the respondent filed a reply, a list of employees (which it subsequently sought to amend), and specimen signatures for those employees. In its reply, the respondent states that it is a member of the Metropolitan Toronto Apartment Builder's Association (the "MTABA") and that, as such, it is bound by the collective agreement between the MTABA and the Labourers' International Union of North America, Local 183 (the "MTABA" Agreement). The last such agreement, according to the respondent, had an expiry date of April 30, 1987 but has been renewed. The respondent asserts that the bargaining unit proposed by the applicant would encompass employees covered by the MTABA agreement. The bargaining unit proposed by the respondent in its reply is:

all construction labourers in the employ of the respondent in the industrial commercial and institutional sector in the Province of Ontario, save and except non-working foremen and persons above the rank of non-working foreman.

all construction labourers in the employ of the respondent in Ontario Labour Relations Board Area #8, excluding the industrial, commercial and institutional sector, save and except non-working foremen and persons above the rank of non-working foreman and excluding all employees represented by Labourers' International Union of North America, Local 183 and performing work under the collective agreement between Labourers' International Union of North America, Local 183 and the Metropolitan Toronto Apartment Builders' Association.

5. The Labourers' International Union of North America, Local 193, ("Local 183") filed an intervention with respect to this application. In paragraph 3 thereof, it asserts that Menkes Properties is bound by the MTABA agreement. Local 183 also asserts, in Schedule A to its intervention, that the respondent is a member of the MTABA and is therefore also bound by the MTABA agreement, and that it therefore holds the bargaining rights for some of the employees for whom the applicant seeks to be certified herein, namely, all construction labourers employed by the respondent in Board Area 8, excluding the industrial, commercial and institutional ("ICI") sector of the construction industry, save and except non-working foremen and persons above the rank of non-working foreman, who were employed in accordance with Article 1 of the MTABA agreement. The intervener also purports to "reserve the right" to seek a declaration that the respondent is "a related employer to Menkes Properties". In its intervention, Local 183 submits that this application should be restricted to the ICI sector of the construction industry.

6. At the outset of the hearing with respect to this matter on June 5, 1987, counsel for the respondent moved that the hearing of this application should be adjourned for two reasons. First, he argued that it would be necessary for the Board to interpret and apply the MTABA agreement, specifically the extent of the bargaining rights held by Local 183 thereunder, in order to dispose of this application. He advised the Board that that very question is before the Board in other proceedings and submitted that it would be appropriate to await the results of those proceedings before continuing the hearing with respect to this application. Second, he acknowledged that the respondent and Menkes Properties were likely related employers within the meaning of section 1(4) of the Act and that, the issue having been raised, the proceedings should be adjourned in order to give the appropriate notice to the affected employees.

7. Counsel for Local 183 argued against the adjournment. He submitted that there was no reason to adjourn pending the Board's decision with respect to the MTABA agreement in other proceedings. He also asserted that the circumstances of this case did not require that notice of the subsection 1(4) issue be given to employees.

8. The applicant accepted that there is a subsection 1(4) kind of relationship between the respondent and Menkes Properties. It also accepted that the MTABA agreement applies to some )f the employees who would be covered by the bargaining unit applied for to the extent that it is prepared to agree that all construction labourers employed by the respondent on the date of application in other than the ICI sector of the construction industry were covered by the MTABA igreement. Counsel for the applicant made it clear that the applicant does not seek to displace Local 183 as the bargaining agent for any of the respondent's employees that it presently represents and that the applicant is content to have the bargaining unit described in terms of unrepresented employees. He pointed out that the subsection 1(4) issue is one that has been raised by the respondent and the intervener, not by the applicant, and that that issue should not be permitted to delay this application. Counsel also submitted that there was no reason to adjourn this proceedings pending the outcome of the other proceeding with respect to the extent of the bargaining rights held by Local 183 under the MTABA agreement, particularly since the applicant was not a party to those other proceedings.

9. The Board adjourned to consider the representations of the parties. Upon returning, he Board ruled orally that the proceeding would not be adjourned. The Board's reasons for this oral ruling follow.

10. An application for certification which relates, as this one does, to the ICI sector of the construction industry must, pursuant to section 144(1) of the Act, be made with respect to a bargaining unit that includes all employees who would be bound by a provincial collective agreement together with all other employees in at least one appropriate geographic area, unless bargaining rights for such geographic area have already been acquired. The material before the Board indicates that the respondent employed construction labourers only in Board Area 8 on the date that his application was made. The parties agree that Local 183 holds bargaining rights for some of hose construction labourers pursuant to the MTABA agreement. They also agree that Local 183's bargaining rights, whatever they might be, do not extend into the ICI sector. Nor do Local 183's bargaining rights with respect to the respondent encompass all non-ICI sectors of the construction industry in Board Area 8. The applicant does not seek to obtain any of the bargaining rights presently held by Local 183 and, in effect, concedes that there were no affected non-ICI employees at work for the respondent on the date of application. In other words, whatever bargaining unit is appropriate in this case, there were no "other employees" for whom the applicant seeks bargaining rights in it on the date of application; that is, there were no unrepresented non-ICI construction labourers employed by the respondent on that day.

11. In our view, none of this precludes the Board from determining the unit of employees that is appropriate for collective bargaining in this case, or from proceeding with the application. The applicant is, in effect, seeking to be certified for a unit of employees of the respondent which includes all construction labourers who would be bound by a provincial collective agreement (that is, those employed in the ICI sector), and all other construction labourers other than those covered by the MTABA agreement, of which there were none on the date of application, in Board Area 8. There is nothing in section 144(1) that requires an applicant seeking certification thereunder to seek bargaining rights with respect to any "other employees in at least one appropriate geographic area" for whom bargaining rights have already been acquired. Such an applicant is only required to seek, as the applicant does, bargaining rights for such employees who are unrepresented. In this case, the only appropriate geographic area is Board Area 8 (see EIE Fradema Masonry [1986] OLRB Rep. Dec. 1685). The fact that there were no unrepresented "other employees", that is, no non-ICI sector construction labourers, employed by the respondent in Board Area 8 on the date of application does not affect the applicant's right to seek, by way of an application under section 144(1) of the Act, those non-ICI bargaining rights with respect to the respondent which are not presently held by some other trade union (see Watcon Inc., [1981] OLRB Rep. Nov. 1697 and The Georgian Building Corporation, [1981] OLRB Rep. March 275). In The Georgian Building Corporation, supra, a trade union other than the applicant therein held bargaining rights for those construction labourers employed by the respondent in that case in the residential sector of the construction industry in Board Area 8. Dealing with the respondent's argument that the applicant was not entitled to make its application under section 144(1) or, in the alternative, that it was only entitled to apply for bargaining rights in the ICI sector, the Board held, at paragraphs 23 to 25, that:

23. A series of cases involving the certification of Local 183 or Local 506 was recently heard by a five-man panel of this Board. In Pelar Construction, [1981] OLRB Rep. Feb. 210 which was one of the cases in that series, the Board reviewed its historical treatment of certification applications filed by those two locals and the impact of section 131a thereon. The Board concluded:

"18. …In view of the foregoing reasons, therefore, we are of the view that both Local 506 and Local 183 are entitled at their option to apply under either subsection 1 or subsection 3 of section 144. In such applications, the Board will follow the mandatory directives of the relevant subsections.

19. In this regard, we should like to emphasize the approach the Board has taken to the certificates granted by virtue of subsection 2. Where an application has been made under subsection 1 and the appropriate unit of employees is found to include employees in the industrial, commercial and institutional sector throughout the province and employees in sectors other than the industrial, commercial and institutional sector in a local geographic area, the Act directs the Board to issue two certificates. Subsection 1 indicates that such an application is 'on behalf of all affiliated bargaining agents in the employee bargaining agency'. Thus, the Board issues one certificate to the applicant affiliated bargaining agent on its own behalf and on behalf of all other affiliated bargaining agents in the employee bargaining agency with respect to employees in the industrial, commercial and institutional sector in the Province of Ontario. The second certificate is issued to the applicant for sectors other than the industrial, commercial and institutional sector in the appropriate geographic area. Thus, in the present circumstances regardless of which local either 183 or 506 applies under subsection 1, the applicant is certified on its own behalf and on behalf of the other affiliated bargaining agents in the employee bargaining agency for the industrial, commercial and institutional sector. That is to say, Local 506 is certified on behalf of Local 183 amongst others, and Local 183 is certified on behalf of Local 506 amongst others in relation to the industrial, commercial and institutional sector of the construction industry.

20. If the application is made under section 144 with respect to sectors other than the industrial, commercial and institutional sector, then the applicant will be certified in Board Geographic Area #8 for all sectors other than the industrial, commercial and institutional sector. A number of these sectors have been traditionally within the jurisdiction of Local 183. However, at the hearing in this matter counsel for Local 183 recognized that this was the consequence of the position taken by Local 183 and, did not urge the Board to take any other position with respect to these other sectors. In our view it is clear that in the near future both Locals are going to have to make some accommodation with each other in order to deal with this situation."

24. Although both the applicant and the respondent submitted that the Board should issue only one certificate (i.e., a province-wide industrial, commercial and institutional sector certificate), section 144 requires the Board to issue two certificates in the instant case. As noted by the Board in Colonist Homes Ltd., [1980] OLRB Rep. Dec. 1729, section 144 "requires that a bargaining unit relating to the industrial, commercial and institutional sector also encompass all other sectors in an appropriate geographic area unless the bargaining rights for the area have already been acquired." In the present case, bargaining rights for all sectors in Board Area #8 other than the industrial, commercial and institutional sector have not already been acquired; only bargaining rights for the residential sector have already been acquired (by Local 183). Accordingly, the Board finds that bargaining rights in all sectors in Board Area #8 other than the industrial, commercial and institutional sector have not "already been acquired under subsection 3 or by voluntary recognition" within the meaning of section 144(1).

25. In interpreting section 144, the Board must have regard to The Interpretation Act, R.S.O. 1970, c. 225. Of particular significance in the present case are the following sections:

"8. The preamble of an Act shall be deemed a part thereof and is intended to assist in explaining the purport and object of the Act.

10. Every Act shall be deemed to be remedial, whether its immediate purport is to direct the doing of anything that the Legislature deems to be for the public good or to prevent or punish the doing of anything that seems to be contrary to the public good, and shall accordingly receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit."

The preamble to The Labour Relations Act provides as follows:

"Whereas it is in the public interest of the Province of Ontario to further harmonious relations between employers and employees by encouraging the practice and procedure of collective bargaining between employers and trade unions as the freely designated representatives of employees."

Having regard to those legislative provisions, the Board cannot accept the construction of section 144 advocated by counsel for the respondent. Harmonious relations between employers and employees would not be furthered, nor would the practice and procedure of collective bargaining be encouraged by that construction which would preclude certification in respect of some employees who would not otherwise be beyond the purview of the certification procedures under the Act. Such an interpretation might well result in a resurgence of recognition strikes, the elimination of which is one of the purposes of the certification procedures of the Act. The Board has a well-known and long standing practice of preserving existing bargaining rights by excluding from bargaining units employees covered by subsisting collective agreements. In the absence of a clear and specific legislative direction to the contrary, the Board is of the view that it is appropriate, having regard to the preamble and the general scheme of the Act, to maintain that practice which promotes industrial peace and stability by recognizing and preserving existing bargaining rights. (Employees covered by subsisting Board certificates and subsisting written voluntary recognition agreements should also be excluded to preserve any such additional bargaining rights which might be in existence.)

We agree with and adopt that reasoning. Whatever the extent of the bargaining rights held by Local 183 with respect to the respondent, they do not encompass all of the non-ICI sectors of the construction industry. In our view, it is neither necessary nor desirable for the Board to interpret and apply the MTABA agreement in order to dispose of any part of this application.

12. In the circumstances, we saw no reason why the bargaining unit could not be described in the same manner as in The Georgian Building Corporation, supra. Accordingly, the Board ruled orally, and hereby confirms, that, pursuant to section 144(1) 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 the Municipality of Metropolitan Toronto, the Regional Municipalities of Peel and York, the Towns of Oakville and Halton Hills, and that portion of the Town of Milton within the geographic Township of Esquesing, and the Towns of Ajax and Pickering in the Regional Municipality of Durham, excluding the industrial, commercial and institutional sector of the construction industry, save and except non-working foremen and persons above the rank of non-working foreman, and persons covered by subsisting collective agreements, certificates of the Ontario Labour Relations Board, or written voluntary recognition agreements, constitute a unit of employees of the respondent appropriate for collective bargaining.

13. With respect to the second basis for the respondent's motion that this matter be adjourned, the applicant seeks certification with respect to certain employees of Menkes Developments Inc. only. Insofar as the relationship between the respondent and any other employer is raised at all, it is raised by Local 183 and the respondent. Even then, there is no actual request for relief under subsection 1(4) of the Act before the Board either in the manner contemplated by section 27 of the Board's Rules of Procedure or otherwise. Any issue with respect to the relationship between the respondent and any other employer is not one in which the applicant is, for purposes of this application, involved. Accordingly, and having regard to the bargaining unit description the Board has found to be appropriate, we found that the subsection 1(4) issue was not properly before the Board, and is not material to the Board's considerations in this proceeding.

14. The list of employees filed by the respondent contained 39 names. By letter dated June 2, 1987, the respondent added three more names to the list. Subsequent to the Board's ruling with respect to the respondent's motion and the bargaining unit description as aforesaid, the parties were able to agree that 23 of the persons named on the list were covered by the MTABA agreement and should be deleted from the list. The respondent sought to add 2 names, John Richardson and Rodrigues Therriault to the list. The applicant objected to the addition of these 2 names as being an abuse of the Board's processes. However, the applicant asserted the Terry McEvoy should be added to the list as being a person employed in the bargaining unit found by the Board on the date of application. The respondent agreed that Terry McEvoy was employed in the bargaining unit on the date of application but took the position that if Richardson and Therriault could not be added, as it asserted they could, neither could Terry McEvoy. In addition, the applicant challenged the inclusion of Richardson, Therriault and 6 other persons, namely Mark Ferguson, Duncan McKirdy, Lorenzo Ventura, Chris Lindsay, Danny Marston and Clemente Villani on the basis that they were not properly included in the bargaining unit. Subsequently, by letter from counsel dated June 17, 1987, the respondent also sought to add Dale Ince to the list of employees.

15. Although it is unclear how many of the individuals challenged fall within this category, one of the bases upon which the applicant challenges the inclusion of some of them is that although they may have been doing bargaining unit work on the date of application, they are usually and commonly employed by the respondent doing other than bargaining unit work and should therefore not be considered to be in the bargaining unit for the purposes of the count in this application. In making this challenge, the applicant asserts that the Board should, in the circumstances of this application, depart from the test enunciated in E & E Seegmiller Ltd., [1987] OLRB Rep. Jan. 41 arid Gilvesy Enterprises Inc., [1987] OLRB Rep. Feb. 220 in favour of some other, as yet unspecified, test.

16. Having regard to the nature of the challenges being made by the applicant, the Board ruled that it would hear the evidence and representations of the parties with respect to all matters in dispute rather than authorizing an officer to inquire into and report to it with respect to the list and composition of the bargaining unit.

17. Accordingly, the Board directs that this matter be scheduled for hearing before this panel beginning on July 13, 1987 and continuing if necessary, on July 16 and July 17, 1987. The purpose of the hearing is to hear the evidence and representations of the parties with respect to all matters arising out of and incidental to this application and, without limiting the generality of the foregoing, specifically with respect to:

(a) the addition of John Richardson, Rodrigues Therriault, Dale Ince, and Terry McEvoy to the list of employees in the bargaining unit;

(b) the applicant's challenges to the presence of Mark Ferguson, Duncan McKirdy, Lorenzo Ventura, Chris Lindsay, Danny Marston, Clemente Villani and, if necessary, John Richardson, Dale Ince, and Rodrigues Therriault, on the list of employees.

18. The respondent is directed to forthwith provide to the Board the most recent addresses it has for the persons listed in paragraph 17(b) herein so that they can be summonsed to attend the hearing by the Board and, so far as it is able, to ensure that these persons are available to be examined before the Board on the day scheduled for hearing.

19. The applicant is directed to provide to the other parties and to the Board the particulars of 'the basis for each challenge that it has made, no more than seven days prior to July 13, 1987.

20. The matter is referred to the Registrar.