[1988] OLRB Rep. July 698
2000-87-R International Union of Operating Engineers, Local 793, Applicant v. Pry-Con Construction Inc., Respondent v. Labourers' International Union of North America, Local 493, Intervener
BEFORE: Harry Freedman, Vice-Chair, and Board Members D. A. MacDonald and C. A. Ballentine.
APPEARANCES: Jack J. Slaughter and Richard Kennedy for the applicant; no one appearing for the respondent; no one appearing for the intervener.
DECISION OF THE BOARD; July 7, 1988
1This is an application for certification made pursuant to the construction industry provisions of the Labour Relations Act. The respondent, in its reply and the intervener, in its intervention asserted that the application was untimely since the employees for whom the applicant seeks bargaining rights were already subject to a voluntary recognition agreement between the respondent and the intervener that was entered into in September 1987.
2By letter dated June 29, 1988, the solicitors for the intervener withdrew their intervention in this matter. When the hearing convened before the Board on July 5, 1988, no one appeared on behalf of either the respondent or the intervener, and no one on behalf of the respondent or intervener appeared at any time prior to the Board's completion of its hearing at approximately 10:20 a.m. on that day.
3Counsel for the applicant submitted that the Board should consider this application for certification as being timely and treat this application as also being an application under section 60 of the Labour Relations Act. The Board may treat this application for certification as also being an application for a declaration under section 60 where the facts alleged in the pleadings which must be established to determine this application for certification also give rise to a claim for a declaration under section 60. See T.R.S. Food Services Limited, [1980] OLRB Rep. March 360 at 361; and generally Genaire Ltd., 1958 CanLII 130 (ON HCJ), [1958] OR. 637, 14 D.L.R. (2d) 201; aff'cl (1958) 1958 CanLII 352 (ON CA), 18 D.L.R. (2d) 588.
4Section 60 of that Act provides:
"(1) Where an employer and a trade union that has not been certified as the bargaining agent for a bargaining unit of employees of the employer enter into a collective agreement, or a recognition agreement as provided for in subsection 16(3), the Board may, upon the application of any employee in the bargaining unit or of a trade union representing any employee in the bargaining unit, during the first year of the period of time that the first collective agreement between them is in operation or, if no collective agreement has been entered into, within one year from the signing of such recognition agreement, declare that the trade union was not, at the time the agreement was entered into, entitled to represent the employees in the bargaining unit.
(2) Before disposing of an application under subsection (1), the Board may make such inquiry, require the production of such evidence and the doing of such things, or hold such representation votes, as it considers appropriate.
(3) On an application under subsection (1), the onus of establishing that the trade union was entitled to represent the employees in the bargaining unit at the time the agreement was entered into rests on the parties to the agreement.
(4) Upon the Board making a declaration under subsection (1), the trade union forthwith ceases to represent the employees in the defined bargaining unit in the recognition agreement or collective agreement and any collective agreement in operation between the trade union and the employer ceases to operate forthwith in respect of the employees affected by the application."
5If the Board treated this as an application under section 60 the Board would declare that the intervener was not entitled to represent the employees for whom the applicant seeks bargaining rights at the time the respondent and intervener entered into the voluntary recognition agreement by reason of section 60(3). The Board raised a concern with counsel with respect to the effective date of such a declaration in view of subsection 4 of section 60. Counsel referred the Board to T.R.S. Food Services Limited, supra, where the Board in that case dealt directly with the effect of a declaration made under section 60 in the context of an application for certification. The Board wrote at pages 363-364:
"Counsel for the intervener argued that a declaration under section 52 [now section 60] of the Act does not have a retroactive effect. Instead, in counsel's submission, the declaration only operates to cancel the agreement from the time of the declaration forward. Pursuant to this reasoning, counsel contends that because the voluntary recognition was in existence at the time the application for certification was filed, it would operate as a bar to the applicant's application for certification, notwithstanding the Board's declaration that it is null and void.
If that argument obtains, section 52 of the Act becomes unduly technical and cumbersome to apply. It would only bifurcate proceedings to first require a union to launch a separate section 52 application to clear the way for a later application for certification. More importantly, it is contrary to common sense to suggest that if the intervener was not entitled to represent the employees when the recognition agreement was entered into that the agreement could still be raised as a bar to an application for certification by another union. Furthermore, such an interpretation is neither dictated by the words of section 52 nor in keeping with the Board's jurisprudence. In the Operative Plasterers' and Cement Masons' International Association of the United States and Canada, [1978] OLRB Rep. April 362, the Board, following its declaration that the union was not entitled to represent the employees in the bargaining unit at the time the collective agreement was entered into, stated that the alleged collective agreement never was a collective agreement and emphasized the inherent difficulties of attempting to secure a collective agreement in the construction industry by means of voluntary recognition. In Trent Metals Limited, [1979] OLRB Rep. Aug. 827, the Board determines at page 830 of its decision that the applicant was not entitled to represent the employees in the bargaining unit at the time the recognition agreement was entered into. The Board affirmed that the agreement could not bar the intervener's application.
A careful reading of section 5(3) indicates that the bar raised against an application for certification by a voluntary recognition agreement is predicated on the Board not having made a declaration under section 52. In this instance the applicant's application for certification has been deemed by this Board to be an application under section 52 of the Act. The Board has considered the representations of the parties and has declared pursuant to section 52 that the intervener at the time it entered the voluntary recognition agreement with the employer was not entitled to represent the employees in the bargaining unit. Accordingly, the Board further declared that the intervener forthwith ceased to represent the employees in the bargaining unit defined in the recognition agreement. Because the Board has made a declaration under section 52, the clear wording of section 5(3) stipulates that the bar that would otherwise be imposed by section 5(3) in the face of the recognition agreement does not apply.
In view of our determination that the recognition agreement does not bar the applicant's application for certification the Board now turns to consider the competing applications for certification by the applicant and intervener."
6In the absence of any evidence as to the circumstances of the entering into of the voluntary recognition agreement, the Board finds, pursuant to section 60 of the Act, that the intervener was not entitled to represent the employees in the bargaining unit defined in the voluntary recognition agreement between it and the respondent at the time the agreement was entered into and hereby so declares.
7In view of the Board's declaration, the Board finds that this application for certification is timely.
8The Board finds that the applicant is a trade union within the meaning of section l(1)(p) and section 117 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 July 13, 1978, the designated employee bargaining agency is the International Union of Operating Engineers and Local 793 of the International Union of Operating Engineers. The Board further finds that this is an application for certification within the meaning of section 119 and is an application which relates to the industrial, commercial and institutional sector of the construction industry.
9In view of the representations made to the Board by counsel for the applicant, and based on the material filed, the Board is satisfied that all employees of the respondent in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and all employees of the respondent in all other sectors of the construction industry within a radius of 57 kilometres (approximately 35 miles) of the City of Sudbury Federal Building and the District of Thunder Bay engaged in the operation of cranes, shovels, bulldozers and similar equipment and those primarily engaged in the repairing and maintaining of same, 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.
10The 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 November 13, 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.
11Section 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 8 above in respect of all employees of the respondent engaged in the operation of cranes, shovels, bulldozers and similar equipment and those primarily engaged in the repairing and maintaining of same 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.
12Further, pursuant to section 144(2) of the Act, a certificate will issue to the applicant trade union in respect of all employees of the respondent engaged in the operation of cranes, shovels, bulldozers and similar equipment and those primarily engaged in the repairing and maintaining of same in all sectors of the construction industry excluding the industrial, commercial and institutional sector within a radius of 57 kilometers (approximately 35 miles) of the City of Sudbury Federal Building and the District of Thunder Bay, save and except non-working foremen and persons above the rank of non-working foreman.