[1988] OLRB Rep. February 138
2299-87-R International Brotherhood of Electrical Workers, Local 804, Applicant v. Engineered Electric Controls Limited, Respondent.
BEFORE: Inge M. Stamp, Vice-Chair, and Board Members W. N. Fraser and H. Kobryn.
APPEARANCES: Bernard Fishbein, J. Wilson and T. Keagan for the applicant; Ian S. Campbell and Wayne Fischer for the respondent.
DECISION OF THE BOARD; February 8, 1988
This is an application for certification made pursuant to the construction industry provisions of the Labour Relations Act.
This application came before the Board on February 1, 1988 to hear the evidence and representations of the parties with respect to all outstanding issues, including the list and composition of the bargaining unit and the matters raised by the respondent in its reply.
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 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.
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 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.
- The applicant is seeking to represent all electricians and electricians' apprentices in the employ of the respondent:
(a) in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario;
(b) in all sectors of the construction industry, save and except the industrial, commercial and institutional sector, in OLRB geographic area no. 6,
save and except non-working foremen and persons above the rank of non-working foreman.
There were lengthy submissions by the parties with respect to the issue of Res Judicata. It is not necessary to set these out in detail; however, the thrust of the respondent's and applicant's positions are set out below.
Counsel for the respondent submitted that this panel has no jurisdiction to hear this application because an identical application, involving the same parties, was heard and dealt with by another panel and disposed of in Board File #1381-86-R. It is the respondent's position that the current application is therefore Res Judicata.
Paragraphs 3 and 5 of the decision in Board File #1381-86-R state:
The application came before the Board for hearing on september 12,1986, respecting certain issues raised by the reply, one of which was whether the respondent operated a business in the construction industry. The hearing was not completed that day, so the application was listed for continuation of hearing on October 21,1986. When the parties came before the Board on that date, they had reached agreement to request the Board to process the application as though it had been made under the general provisions of the Act for a unit of employees described in terms of all electricians and electricians' apprentices which would be a unit appropriate for collective bargaining pursuant to section 6(3) of the Act.
Having further regard to the agreement of the parties, to the evidence before the Board, particularly the evidence respecting the nature of the work performed by the employees in question and to the provisions of section 6(3) of the Act, the Board finds that all electricians and electricians' apprentices employed by the respondent at or out of Cambridge, Ontario, save and except non-working foremen, persons above the rank of non-working foreman, office and sales staff, constitute a unit of employees appropriate for collective bargaining pursuant to section 6(3) of the Act.
The respondent submits that in order for the panel to determine the appropriate bargaining unit it must have made a finding that this employer was not an employer in the construction industry and that the applicant cannot now come to the Board, albeit one year or so later, and make another application for certification under the construction industry provisions of the Act. The respondent further stated that the IBEW already has bargaining rights for the electricians and electricians' apprentices in its employ. The respondent also argued that this application was in fact a disguised request for reconsideration of the earlier decision by the Satterfield panel and should have been brought under section 106(1).
Counsel for the applicant stated that this application is not a request for reconsideration, that there is a certificate pursuant to the general provisions of the Act issued in Board File #1381-86-R, and that the union is now seeking construction bargaining rights which they are entitled to do under the provisions in the Act. Since there was no adjudication on the merits in the previous decision, Res Judicata is not applicable.
After considering the submissions of the parties, the Board gave the following oral ruling:
Regarding the issue of Res Judicata and whether or not this matter has already been adjudicated in Board File #1381-86-R, it is the Board's unanimous ruling that Res Judicata does not apply to the instant application for certification in the construction industry. The application in Board File #1381-86-R, although filed under the construction industry provisions of the Act, was clearly converted (on agreement of the parties) to an application under the general provisions of the Act. At this point there was no longer a construction application before the Board, and it was not necessary for the Board to make any determination with respect to whether or not construction work was involved in that application.
The decision issued by the Satterfield panel on October 23, 1986 reflects only the agreement of the parties and does not make a determination of whether or not the respondent is an employer in the construction industry.
At this point in the proceeding the parties agreed to deal with the bargaining unit description and the list of employees. The respondent agreed with the description of the bargaining unit in the application. The applicant challenged the list of employees.
The parties further agreed to exchange documents with a view to arriving at an agreed statement of facts and to the setting of two more dates for hearing.
The exchange of documents as agreed to by the parties will be as follows:
The respondent to provide documents to the applicant by Friday, March 18,
The applicant to provide its reply to the respondent by Thursday, March 31,
This matter is to be continued for hearing Wednesday April 20 and Thursday April 21,
1988 with respect to the remaining issues in dispute, including whether or not the employer is an
employer in the construction industry.
- The matter is referred to the Registrar.