[1988] OLRB Rep. June 604
2153-87-R National Capital Roadbuilders Association, Applicant v. Labourers International Union of North America, Local 527, Respondent v. Pipe Line Contractors Association of Canada, Intervener #1 v. Ottawa Construction Association, Intervener #2 v. The Utility Contractors' Association of Ontario Incorporated, Intervener #3 v. Labourers' International Union of North America, Ontario Provincial District Council, Intervener #4
APPEARANCES: Walter Langley and William Scott for the applicant; S. B. D. Wahl and N. Scipioni for the respondent; Carl W. Peterson for intervener #1, Mastercraft Bridge & Engineering Construction (Ottawa) Ltd. and Spie Construction Inc.; Joe Liberman and Fred Connolly for intervener #3; Joe Liberman for intervener #2, Sarnia Construction Association and its members, Ontario Precast Concrete Manufacturers Association and its members, Canadian Dredge and Dock Company, Milne and Nichols Ltd, Pigott Construction Ltd., Greenspoon Brothers Ltd., Alnor Earthmoving Ltd., Moffat Construction Inc., Bot Construction, Todglen Construction, Con-Eng Contractors Inc. and 0. J. Gaffney; David Strang for intervener #4; Daniel Fryzuk for Armbro Materials & Construction Ltd.; Werner 0. Schmidt for Blier Inc.; Richard J. Nixon for Paul Daoust Construction Ltd.; Walter Pashnicki for Permanent Concrete; Robin B. Cumine for Steinberg Inc. and The Ontario Erectors Association.
BEFORE: N. B. Satteifield, Vice-Chair, and Board Members J. Trim and C. A. Ballentine.
DECISION OF THE BOARD; June 28, 1988
1This is an application for accreditation, construction industry, made pursuant to section 125 of the Labour Relations Act.
2The applicant is party to a collective agreement with an uncertified council of trade unions representing the respondent Labourers International Union of North America, Local 527 (hereafter "Local 527") and two other trade unions. The collective agreement was effective from May 1, 1986, until April 30, 1988, and was in effect when this application was made on October 30, 1987. For ease of reference the Board will refer to it as "the Agreement". The Board is satisfied that more than one employer is bound to the Agreement and, therefore, is further satisfied that more than one employer is affected by this application. Accordingly, the Board finds that it has jurisdiction under section 125 of the Act to entertain this application.
3The applicant is an incorporated association which, pursuant to its constitution, has an objective of representing employers in collective bargaining with trade unions. Therefore, the applicant is an employer's organization within the meaning of clause (d) of section 117 of the Act and, having regard to the material filed with the Board, is a properly constituted organization for the purposes of subsection 127(3) of the Act.
4It is undisputed that the appropriate bargaining unit of employers should be described in terms of all employers of construction labourers for whom Local 527 has bargaining rights in the roads, sewers and watermains, and heavy engineering sectors of the construction industry in the Regional Municipality of Ottawa-Carleton, and the United Counties of Prescott and Russell. There is, however, a dispute with respect to many employers for whose employees Local 527 claimed bargaining rights. This dispute revolves around an issue of whether certain collective agreements on which Local 527 relies establish the bargaining rights asserted. A second issue is associated with it; that is, whether the Board is required to or should continue the practice of compiling a Final Schedule "F" when issuing an accreditation certificate and order. A Final Schedule "F" is a list of employers for whose employees the respondent trade union holds bargaining rights covering the relevant sector or sectors and geographic area, but who did not have such employees in the year prior to the making of the application. Those employers would be bound by the accreditation certificate and order, but would not be employers in the unit of employers for purposes of the findings required of the Board by subsections 127(1) and 127(2) of the Act. These issues are present with respect to one of the respondent trade unions in an earlier application for accreditation made by this applicant in Board File No. 2263-86-R. Therefore, they were listed for hearing together and notices of hearing were given to all interested parties and employers that the Board would be receiving evidence and representations respecting those issues in both applications.
5The various parties at the hearing agreed on an order of procedure for dealing with those issues, and on certain conditions related thereto, which they requested the Board to follow. They agreed and requested that the Board first hear and determine the Schedule "F" issue and to defer receiving the evidence and representations on the bargaining rights issue until the Schedule "F" issue is decided. It was the parties' position that it would be unnecessary for the Board to decide the bargaining rights issue if the Board were to discontinue the practice of compiling a Final Schedule "F". If, however, the Board chose to hear and decide the bargaining rights issue at any subsequent hearing, it should serve notice of the hearing on the parties who had filed appearances at the hearing into this application on June 8, 1988. The parties were also agreed that the Board should determine whether the applicant was in a position to be accredited for a unit of employers as generally described above, on the understanding that none of the employers for whose employees Local 527 was claiming bargaining rights under the collective agreements that were in dispute had employees in the relevant sectors and geographic area during the year immediately preceding the date of application. The parties were also agreed on other conditions which would apply should the Board decide it would no longer compile the Final Schedule "F". The Board accepted their agreement, and pursuant to it, heard the representations of the parties on the Final Schedule "F" issue. The Board reserved its decision on that issue.
6The Board turned next to the question of whether the applicant was in a position to be accredited for the employers for whom it was seeking to be the exclusive bargaining agent. The Board made the requisite findings of fact and, subject to the Board's customary second check of the "count" information, advised the parties that the applicant was entitled to a certificate of accreditation. The Board's findings and conclusions given orally in the hearing are set out hereunder, except that the second check of the count information revealed that there were 23 employers in the unit found by the Board to be appropriate, instead of the 19 announced. This did not alter the ultimate conclusion that the applicant was entitled to a certificate of accreditation.
7Having regard to the agreement of the parties, the Board finds that all employers of construction labourers for whom the Labourers International Union of North America, Local 527 has bargaining rights in the roads, sewers and watermains, and heavy engineering sectors of the construction industry in the Regional Municipality of Ottawa-Carleton, and the United Counties of Prescott and Russell, constitute a unit of employers appropriate for collective bargaining.
8Having further regard to the agreement of the parties, the Board declares that, for purposes of clarity, employers bound by specialty collective agreements which are also binding on Local 527 and are operative in or affecting the sewers and watermains, roads and heavy engineering sectors of the construction industry amongst other sectors being the following collective agreements binding between:
(1) Labourers' Ontario Provincial District Council and various civil engineering contractors;
(2) Labourers' Ontario Provincial District Council and the Utility Contractors Association of Ontario; and
(3) Labourers' Ontario Provincial District Council and the Ontario Precast Manufacturers Association,
are not included in this bargaining unit in respect of such work.
9Notice of this application was sent in accordance with the Board's Rules of Procedure to 267 employers, excluding duplications, for whose employees Local 527 claims to hold bargaining rights in the sectors and geographic area referred to in the unit of employers described above. 84 of those employers made returns in Form 94 - Employer Return in response to the Board's notice. Of the remaining 183 notices, 17 of them could not be delivered to the employers to whom they were addressed, five were replied to by letter and there was no response to 161 of them. The parties did not place before the Board any information or adduce any evidence that either confirms or disputes the information contained in the Form 94 returns and in the five letters. Nor did the parties place before the Board any information or adduce any evidence respecting the employers who failed to file a reply in any form or for those whose notices could not be delivered. Therefore, the Board makes its findings herein based on the representations in all of the pleadings filed and the representations, if any, made to the Board in the hearing with respect to those pleadings. 63 of the employers who filed returns in Form 94 or by letter denied that Local 527 held bargaining rights for their employees in the relevant sectors and geographic area and that they had employees in those sectors and that area during the year immediately proceeding October 30, 1987, the date of making of this application. 23 of the remaining 26 employers acknowledged that Local 527 does represent in collective bargaining their employees employed in those sectors and that geographic area and that they had employees in those sectors and that area during the year immediately preceding October 30, 1987. The Board finds as follows with respect to the three remaining employers:
Employer No. 110 - Donalco Services Ltd. states that it employed employees in the sectors and geographic area, but denies that Local 527 represents them in collective bargaining. Donalco Services Ltd. should not be placed on Final Schedule "E" set out below.
Employer No. 172 - Marley Canadian Inc. filed a list containing the names of two employees employed during the weekly payroll period immediately proceeding October 30, 1987, but these employees were not employed in the sectors and geographic area described in the unit of employers. The employer did not answer the questions on the Form 94 with respect to whether Local 527 represented its employees in the sectors and geographic area and whether the employer had any employees in those sectors in that geographic area during the year immediately preceding October 30, 1987. This employer should not be placed on Final Schedule "E" set out below.
Employer No. 244 - Vulcan Asphalt and Supply Limited filed a list showing that it did not employ any employees during the weekly payroll period immediately preceding October 30, 1987, and failed to answer the questions on Form 94 with respect to whether Local 527 represented the employer's employees in the sectors and geographic area referred to in the unit of employers and whether the employer had employees in those sectors and that geographic area during the year immediately preceding October 30, 1987. This employer should not be listed on the Final Schedule "E" set out below.
Having regard to all of the foregoing, the Board has complied the list of employers on Final Schedule "E" set out below, that schedule being a list of employers who had employees in the roads, sewers and watermains, and heavy engineering sectors in the Regional Municipality of Ottawa-Carleton, and the United Counties of Prescott and Russell within one year prior to October 30, 1987, the date of making of this application.
Final Schedule "E"
Beaver Asphalt Paving Company Limited
Beaver Construction Group Limited, BeaverGvl8O, 4; ES, 3 Construction Ontario Division
Dibblee Construction Limited
Dufresne Piling Co. (1967) Ltd.
388685 Ontario Limited, c.o.b. as Central Paving Reg'd.
Choctaw Construction Co. Ltd.
Loretta Paving Company Limited
O'Leary's Limited
Taggart Construction Limited
Torus Construction Ltd.
Vallance & Levy Eng. Contractors Ltd.
Denis Brisbois Contractor Ltd.
Banchini Limited
Cardinal Refractories Inc.
Delta Tile & Terrazzo Co. Limited
Dumoulin and Associes Reparations de Beton Limitee
- W. Farrell & Sons (1979) Limited
General Concrete Drilling Services
Construction P. H. Grager Inc.
W. D. Laflamme Limited
Gerard Lafleur Masonry Ltd.
R. Mannarino Construction Inc.
Vanis Masonry Construction Company Ltd.
10On the evidence and pursuant to clause (a) of subsection 127(1) of the Act, the Board finds that the 23 employers on Final Schedule "E" are the employers in the unit of employers who, within one year prior to October 30, 1987, the date of making of this application, have had employees for whom Local 527 holds bargaining rights in the roads, sewers and watermains, and having engineering sectors in the Regional Municipality of Ottawa-Carleton, and the United Counties of Prescott and Russell, the sectors and geographic area which the Board has determined to be appropriate.
11The Board further finds on the basis of all the evidence before it that, on the date of making of this application, the applicant represented 15 of the 23 employers on Final Schedule "E" and 15 is the number of employers to be ascertained by the Board under clause (b) of subsection 127(1) of the Act. Therefore, the Board is satisfied that a majority of the employers in the bargaining unit is represented by the applicant.
12The Board further finds on the basis of all the evidence before it, including in particular the Schedule "H" which accompanied the Form 94 - Employer Filing, filed by the individual employers, that there were 452 employees affected by this application during the payroll period immediately preceding October 30, 1987 and that 452 is the number of employees to be ascertained by the Board under clause (c) of subsection 127(1) of the Act. The Board further finds that the 15 employers in the bargaining unit represented by the applicant employed 405 of these 452 employees and, therefore, the Board is satisfied that the majority of the employers in the bargaining unit represented by the applicant employed a majority of the employees affected by this application as ascertained in accordance with the provisions of clause (c) of subsection 127(1) of the Act.
13Therefore, the Board finds that all of the provisions of section 127 of the Act have been satisfied with respect to this application. However, no certificate will issue to the applicant pending the Board's determination of whether it will continue to compile a Final Schedule "F" in applications for accreditation.