Ontario Labour Relations Board

[1988] OLRB Rep. March 308

247 1-87-R International Brotherhood of Painters and Allied Trades Local Union 1891, Applicant v. Lay-All Drywall Ltd., Respondent

BEFORE: S. A. Tacon, Vice-Chair, and Board Members D. A. MacDonald and C. A. Ballentine.

APPEARANCES: L. Steinberg and T. Neil for the applicant; W. Thornton and B. Toms for the respondent.

DECISION OF THE BOARD; March 11, 1988

1. 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 April 2, 1978, the designated employee bargaining agency is the International Brotherhood of Painters and Allied Trades and the Ontario Council of the International Brotherhood of Painters and Allied Trades.

2. 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.

3. The parties were in dispute with respect to the bargaining unit description. The appli­cant sought what may be characterized as the "standard" bargaining unit in such applications, namely:

All Painters and Painters Apprentices in the employ of the respondent 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 foremen.

All Painters and Painters Apprentices 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, save and except non-working foremen and persons above the rank of non-working foremen.

Clarity Note should be added to provide that Painters in the above bargain­ing unit includes Drywall Tapers.

The respondent asserted that the appropriate bargaining unit should read:

All dependent contractors working as painters and painters' apprentices for the Respondent 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.

All dependent contractors working as painters and painters' apprentices for the Respondent in the construction industry in OLRB geographic area #8, excluding the industrial, commercial and institutional sector, save and except non-working foremen and persons above the rank of non-working foreman.

For the purpose of clarity, dependent contractors engaged in drywall taping are included in the bargaining unit.

4. The parties agreed to make submissions as to the appropriate bargaining unit on the assumption that all of the persons in question are dependent contractors. However, should the Board find that the respondent's proposed bargaining unit could be appropriate, the applicant retained the right to assert that the persons in question were not, in fact, dependent contractors. The submissions of the parties are next set out in somewhat abbreviated form.

5. Counsel for the respondent submitted that section 138 of the Act contemplates the applicability of provisions in the general section of the Act to province-wide collective bargaining situations, although providing for an "override" of those general provisions if there is conflict. It was argued that section 6(5) deemed a bargaining unit composed solely of dependent contractors to be appropriate and, apart from "mixed" units of employees and dependent contractors, (where the Board has a discretion subject to certain conditions), such a dependent contractors unit was mandatory. That is, counsel contended that, unless the Board found section 6(5) in conflict with the provisions dealing with the province-wide bargaining scheme, the Board had no discretion to refuse a dependent contractors unit. Counsel acknowledged that section 146 would require a single province-wide collective agreement with the applicant but asserted that section 146(1) did not pro­hibit more than one provincial unit represented by the applicant albeit bound by the same collec­tive agreement. It was argued that the applicant could be certified in respect of employees [as dis­tinct from dependent contractors] (if there were any, in fact, at present or in the future) in such a separate bargaining unit. Counsel's argument, as well, was predicated on a divergent community of interest between dependent contractors and employees as implicit in section 6(5) itself. In the alternative, counsel contended that the Board should find appropriate a "dependent contractors" bargaining unit for non-ICI work. In support, counsel referred to Rolland Duquette Construction, [1983] OLRB Rep. Nov. 1884; Century Flooring Limited, [1979] OLRB Rep. Aug. 737.

6. Counsel for the applicant stressed that the bargaining unit sought was the standard description for painters and painters' apprentices, that the applicant is part of the employee bargaining agency and that the application is brought pursuant to section 144(1) of the Act. In coun­sel's view, section 144(1) is clear and specific with respect to the determination of the appropriate bargaining unit. That is, the bargaining unit is statutorily mandated as all employees who would be bound by a provincial agreement together with all other employees in at least one appropriate geo­graphic area (with certain exceptions not relevant here). Given that the definition of "employee" in section 1(1)(i) of the Act includes a dependent contractor, counsel submitted that the combined affect of that definition, section 144(1) and 146 required that there be a single provincial agreement for each provincial unit represented but there could only be one such provincial unit. It was argued that section 6(5) was inconsistent with the provisions dealing with province-wide bargaining and, by virtue of section 138, section 6(5) could not prevail. Counsel distinguished Century Flooring, supra, on the ground that the application had not been brought under section 144(1) of the Act and referred to the following cases in support: Hamilton Yellow Cab Company Limited, [1987] OLRB Rep. Nov. 1373; Clarence H. Graham Construction Limited, [1981] OLRB Rep. Sept. 1195.

7. In reply, counsel for the respondent acknowledged that in Clarence H. Graham Construction, supra, the Board determined that section 6(1) could not co-exist with section 144(1) but asserted that, in the instant case, section 6(5) was more limited and, therefore, distinguishable as it covered a narrower grouping of persons rather than a narrowing of the trade designated.

8. Section 144(1) of the Act has already been set out at paragraph 2 and need not be repeated here. It is useful, however, to reproduce sections 6(5), 138 and 146(1):

6(5) A bargaining unit consisting solely of dependent contractors shall be deemed by the Board to be a unit of employees appropriate for collective bargaining but the Board may include dependent contractors in a bargaining unit with other employees if the Board is satisfied that a majority of such dependent contractors wish to be included in such bargaining unit.

138. Where there is conflict between any provision in sections 139 to 151 and any provision in sections 5 to 57 and 62 to 136, the provisions in sections 139 to 151 prevail.

146.-(1) An employee bargaining agency and an employer bargaining agency shall make only one provincial agreement for each provincial unit that it represents.

9. The Board does not disagree with the analysis of the dependent contractor provision in Hamilton Yellow Cab, supra, (particularly at paragraphs 39-41). The issue in this case, though, is whether section 6(5) conflicts with any of sections 139 to 151. If so, as the respondent's counsel acknowledges, those latter sections would prevail over what would otherwise flow from section 6(5), by virtue of section 138 of the Act.

10. In the Board's view, there is such a conflict between section 6(5) and the combined effect of sections 144(1) and 146(1) given the definition of employee in section l(l)(p) of the Act.

11. Sections 137 to 151 establish a comprehensive scheme for province-wide bargaining in the construction industry. Within that scheme, section 144(1) addresses, in precise language, appli­cations for certification in the ICI sector in respect of the entity which is entitled to bring such an application and the bargaining unit description. The Board accepts the principle in Clarence H. Graham, supra, that a finding of appropriateness under section 6(1) or 6(2) must be made within the confines of section 144. Section 6(5) is itself a specific instance of a section 6(1) determination, that is, a situation in which the statute deems a specific grouping of persons (i.e., dependent con­tractors) an appropriate bargaining unit (with certain exceptions not relevant in this instance). Sec­tion 6(5) is not separate from 6(1) in the sense asserted by counsel for the respondent, namely, that section 6(5) falls outside the principles enunciated in Clarence H. Graham, supra. The reasoning in Clarence H. Graham, supra, extends to section 6(5) as well. That is, section 6(5) must also be placed within the confines of section 144.

12. Section 144(1) stipulates that the bargaining unit "shall include all employees wh6 would be bound by a provincial agreement ...". The definition of "employee" includes a depen­dent contractor. Thus, the Board must include the category of dependent contractors with other employees in a single bargaining unit in order to comply with section 144(1). Dependent contrac­tors cannot constitute a separate bargaining unit. Thus, the mandatory deeming of a bargaining unit consisting solely of dependent contractors as appropriate in section 6(5) conflicts with the mandatory bargaining unit description in section 144(1). Given such conflict, section 144(1) pre­vails over section 6(5) by virtue of section 138.

13. Section 146(1), in the Board's opinion, cannot be read as the respondent's counsel sug­gests, i.e., that the phrase "each provincial unit" does not prohibit more than one such provincial unit notwithstanding counsel's concession that all of the units would fall under one provincial agreement. Such an interpretation, although grammatically possible, would raise the spectre of a multiplicity of bargaining units represented by a single employee bargaining agency but bound by a single provincial agreement. Legitimizing a multiplicity of such units would inevitably weaken the cohesion of the province-wide bargaining scheme by imposing an obligation on the employee bar­gaining agency to represent more than one bargaining unit each with a different community of interest yet bound, by section 146(1), to negotiate a single provincial agreement.

14. Nor does the Board accept the respondent's alternative position that the Board should find appropriate a dependent contractors' unit for non-ICI work. In the Board's view, the reason­ing in Clarence H. Graham, supra, precisely proscribes a combination, in one unit, of employees who would be bound by a provincial agreement together with employees performing non-ICI work, the former aspect determined under section 144(1) but the latter aspect [in this case] deter­mined under section 6(5) of the Act [rather than 6(1) or 6(2) of the Act as in Clarence H. Graham, supra].

15. Thus, the Board finds that all painters and painters' apprentices in the employ of the respondent in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and all painters and painters' apprentices in the employ of the respondent in all other sectors 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 Trafalgar, and the Towns of Ajax and Pickering in the Regional Municipality of Durham, 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.

For purposes of clarity, the Board declares that drywall tapers are included in the appropriate bargaining unit.

16. The parties were also in dispute with respect to the schedule of persons filed by the respondent. Further, the respondent raised allegations of misconduct on the part of the applicant in its organizing drive, set out in the respondent's reply and letter dated January 8 and 18, 1988. The parties made representations as to the appropriate order of proceeding should the Board uphold or dismiss the respondent's position regarding the appropriate bargaining unit.

17. In the Board's view, it is more appropriate to first resolve the challenges to the schedule as that determination may well affect the hearing of the allegations of misconduct, notwithstanding that this order of proceeding may well delay that hearing somewhat. Thus, the Board hereby appoints a Board Officer to inquire into and report back to the Board as to the list and composition of the bargaining unit as described in paragraph 15 above.

18. Accordingly, this matter is hereby referred to the Registrar.