Ontario Labour Relations Board
[1988] OLRB Rep. March 316
3055-87-R Labourers' International Union of North America, Local 527, Applicant v. New Look Restoration (Ottawa) Ltd., Respondent
BEFORE: N. B. Satterfield, Vice-Chair, and Board Members W. Gibson and H. Kobryn.
DECISION OF THE BOARD; March 15, 1988
Reasons for Decision
The name of the respondent is amended to read: "New Look Restoration (Ottawa) Ltd."
In this application for certification the applicant filed eight combination applications for membership and receipts. The combination applications for membership are signed by the employees and the receipts are countersigned and indicate that a payment of $1.00 has been made within the six-month period immediately preceding the terminal date of the application. The money was collected by more than one person. The applicant also filed a duly completed Form 80, Declaration Concerning Membership Documents, Construction Industry.
The respondent filed a reply, a list of employees containing 13 names on Schedule "A" and specimen signatures within the time fixed in accordance with the Labour Relations Act and the Board's Rules of Procedure.
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 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.
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 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 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.
The reply contains a request, at paragraph 14, for a hearing into the application. The request is supported by the following statements:
The employees of the Respondent affected by this application are totally unrepresentative of the number of employees traditionally hired by the Respondent.
Historically by the months of April and May during the Respondent's operations the Respondent employs between 30 and 60 employees to perform work governed by the application. The Respondent believes that its present work force will increase in numbers by either doubling or tripling its present work force.
Given these facts the Respondent urges this Board to exercise its discretion to consider or to give account to the expected build-up in the number of employees who would fall in the bargaining unit after the application date should the Applicant presently be in an outright certification position. Under these circumstances the Respondent submits that the Board should apply the build-up principle in relation to this Application.
Subsection 102(14) of the Act, quoted below, gives the Board discretion respecting whether it is necessary to hold a hearing into an application for certification made under the construction industry provisions of the Act:
(14) The Board may, subject to the approval of the Lieutenant Governor in Council, make rules to expedite proceedings before the Board to which sections 117 to 136 apply, and such rules may provide that, for the purposes of determining the merits of an application for certification to which sections 117 to 119 apply, the Board shall make or cause to be made such examination of records and such other inquiries as it considers necessary, but the Board need not hold a hearing on such an application.
- The Board's discretion, in the words of the reply, "...to consider or to give account to the expected build-up in the number of employees..." is found in subsection 119(2) of the Act which states:
(2) In determining whether a trade union to which subsection (1) applies has met the requirements of subsection 7(2), the Board need not have regard to any increase in the number of employees in the bargaining unit after the application was made.
It has been the Board's consistent practice in construction industry applications for certification, when dealing with issues respecting bargaining unit descriptions and the number of employees at work on the date of making of the application, to consider only those persons who are at work on that date. This is because of the generally short-term nature of the employment relationship in the industry. One of the factors which still frequently contributes to that kind of relationship is the seasonal nature of some segments of the industry. If the Board assumes everything which the respondent has stated in support of its request to be true, the circumstances represented by those statements are quite common in the construction industry. In the Board's view, these are not circumstances which warrant the Board deferring consideration of the application until April or May when the respondent expects to be employing a greater number of persons in the work affected by this application.
An expectation of a seasonal upswing in the respondent's employment levels is readily distinguishable from the factual circumstances before the Board in I. G. Fitzpatrick Construction Ltd., [1972] OLRB Rep. May 485, one of the rare reported instances where the Board has applied the build-up principle in a construction certification. The facts, as assumed to be true, in the instant application are also to be distinguished from those in Industrial Mine Installations Limited, [1968] OLRB Rep. May 217, a case involving circumstances analogous to a build-up.
In Kent County Contractors, [1983] OLRB Rep. April 549, the Board decided to hear submissions on how it should exercise its discretion under subsection 119(2) in a situation analogous to build-up and on alleged facts bearing some general similarity to those herein. It is readily apparent from that decision, however, that there were other issues which required a hearing in any event. That is not the case here.
Finally, in Colibri Construction Inc., [1986] OLRB Rep. May 594, reconsideration refused [1986] OLRB Rep. July 931, in an alleged fact situation more substantial than the one asserted herein, the Board declined to consider and give account to an alleged build-up. The Board's reasoning in Colibri is wholly applicable to the instant case and the Board herein adopts those reasons. Accordingly, having regard to the Board's discretion under subsections 119(2) and 102(14) of the Labour Relations Act, the Board will have no regard to any increase after the application date in the number of employees in the bargaining unit described above as at the date of application and the Board finds no need to hold a hearing into the application.
The 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 March 8,1988, 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.
Section 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 4 above in respect of 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, save and except non-working foremen and persons above the rank of non-working foreman.
- Further, pursuant to section 144(2) of the Act, a certificate will issue to the applicant trade union in respect of all construction labourers in the employ of the respondent in the Regional Municipality of Ottawa-Carleton, and the United Counties of Prescott and Russell, excluding the industrial, commercial and institutional sector, save and except non-working foremen and persons above the rank of non-working foreman.