Ontario Labour Relations Board
[1988] OLRB Rep. August 821
0311-88-R Brian Masse, Applicant v. The Built-Up Roofers, Damp & Waterproofing Section of the Ontario Sheet Metal Workers' Conference of the Sheet Metal Workers' International Association, and Sheet Metal Workers' International Association Local 47, Respondent v. M & Al Roofing Ltd., Intervener
BEFORE: Michael Bendel, Vice-Chair, and Board Members R. M. Sloan and B. L. Armstrong.
APPEARANCES: Macey Schwartz and Brian Masse for the applicant; Bernard Fishbein and Ross Mitchell for the respondent; Alcide Thellend and Bernard Millaire for the intervener.
DECISION OF MICHAEL BENDEL, VICE-CHAIR, AND BOARD MEMBER R. M. SLOAN:
August 4, 1988
1The name of the respondent is amended to read: "The Built-Up Roofers, Damp & Waterproofing Section of the Ontario Sheet Metal Workers' Conference of the Sheet Metal Workers' International Association, and Sheet Metal Workers' International Association Local 47".
2This is an application for the termination of bargaining rights under section 57 of the Labour Relations Act.
3At the outset of the hearing, counsel for the respondent asked that, before dealing with any other aspects of the application, the Board hear argument and rule on the respondent's objection to the timeliness of the application, as well as on a request, advanced by the respondent in the alternative, that the Board exercise its discretion under section 103(2)(i) of the Act so as to bar the application. The Board decided to accede to counsel's request. Accordingly, this decision is confined to those issues.
4The application, as filed, sought to terminate the respondent's bargaining rights in respect of its two bargaining units of the intervener's employees. One unit was composed of roofers in the intervener's employ in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario. The other unit was composed of roofers in the intervener's employ in the Regional Municipality of Ottawa-Carleton, and the United Counties of Prescott and Russell, excluding the industrial, commercial and institutional sector. At the hearing, however, counsel for the applicant requested leave to withdraw the application as it related to the non-ICI sector bargaining unit. Counsel for the respondent did not oppose the request. Leave was granted by the Board.
5The facts are not in dispute. The Board (differently constituted) certified the respondent as bargaining agent for the two units described above in a decision dated February 19, 1988 (Board File No. 1330-86-R). Fewer than forty-five per cent of the employees in the bargaining units were members of the respondent at the material time. Certification was granted without a vote, however, pursuant to section 8 of the Act in view of the intervener's violations of the Act. There were filed with the Board two statements of desire or petitions, opposing the application for certification. In the circumstances of the case, the petitions were of no relevance.
6At the time of the certification, a provincial agreement was in force between the Roofing Employer Bargaining Agency of the Ontario Industrial Roofing Contractors' Association, on the one hand, and the Ontario Sheet Metal Workers' Conference of the Sheet Metal Workers' International Association, on behalf of various affiliated bargaining agents, including Local 47, on the other hand. By virtue of section 145(4) of the Act, the respondent, the intervener and the employees became bound by the provincial agreement upon the respondent being certified by the Board.
7The provincial agreement covered the period from May 24, 1986 to April 30, 1988. The application for termination of the respondent's bargaining rights was filed on April 29, 1988.
8At first blush, the application would appear to be timely since it was filed "after the commencement of the last two months of [the] operation" of a collective agreement that was for a term of not more than three years (section 57(2)(a)). The respondent, however, takes the position that it would be contrary to basic principles underlying the legislation for the Board to entertain this application for termination of bargaining rights since it was filed just ten weeks after the respondent was certified by the Board. Counsel for the respondent argues that, in the interests of ensuring some labour relations stability and of giving a new bargaining agent some opportunity to show employees what it means to work under a collective bargaining regime, the Act protects the bargaining rights of a newly certified bargaining agent from attack by disaffected employees for a minimum of six months in the construction industry (section 123(1)) and a minimum of one year in other industries (section 57(1)). Moreover, section 103(2)(i) expresses a closely related policy that representation issues disposed of by the Board should not be reopened until the expiry of a decent period.
9Specifically, counsel for the respondent argued that section 123(1) of the Act is a bar to this application. That provision reads as follows:
123.-(1) If a trade union does not make a collective agreement with the employer within six months after its certification, any of the employees in the bargaining unit determined in the certificate may apply to the Board for a declaration that the trade union no longer represents the employees in the bargaining unit.
That provision, counsel observed, is the construction industry counterpart to section 57(1), which reads as follows:
57.-(1) If a trade union does not make a collective agreement with the employer within one year after its certification, any of the employees in the bargaining unit determined in the certificate may, subject to section 61, apply to the Board for a declaration that the trade union no longer represents the employees in the bargaining unit.
By virtue of section 118 of the Act, section 123(1) prevails. Section 118 says the following:
- Where there is conflict between any provision in sections 119 to 136 and any provision in sections 5 to 57 and 62 to 116, the provisions in sections 119 to 136 prevail.
(On the relationship between section 57(1) and section 123(1), counsel referred to International Union of Operating Engineers, Local 793, [1986] OLRB Rep. Aug. 1097.) Counsel argued that, as of the date of this application, less than six months had passed since the respondent's certification and, during that time, the respondent had not made a collective agreement with the employer. The application was therefore untimely by virtue of section 123(1). Counsel readily acknowledged that the respondent and the employer could not have entered into a collective agreement with each other in view of section 146(2) of the Act, which prohibits any collective agreement (other than the provincial agreement) applicable to employees represented by an affiliated bargaining agent in the ICI sector. But, although it may have been impossible for these parties to make a collective agreement, the fact remained that they did not make a collective agreement within the six months following certification, with the result that a termination application was not timely until after the six-month period. Counsel drew our attention to some comments in R.L.D. Electric, [1986] OLRB Rep. Aug. 1145, which suggest that section 123(1) has no application where an affiliated bargaining agent becomes bound to a provincial agreement upon certification. Counsel argued that those comments were obiter and were wrong.
10In the alternative, counsel for the respondent asked the Board to exercise its discretion under section 103(2)(i) of the Act, which reads as follows:
103.-(2) Without limiting the generality of subsection (1), the Board has power,
(i) to bar an unsuccessful applicant for any period not exceeding ten months from the date of the dismissal of the unsuccessful application, or to refuse to entertain a new application by an unsuccessful applicant or by any of the employees affected by an unsuccessful application or by any person or trade union representing such employees within any period not exceeding ten months from the date of the dismissal of the unsuccessful application.
Counsel invited us to decide that the request by the petitioners in the application for certification that a representation vote be held constituted an "application" within the meaning of section 103(2)(i). That "application" was unsuccessful. It was obviously presented by employees of the intervener who were opposed to the respondent becoming the bargaining agent, and the present application for termination is presented by employees opposed to the respondent remaining the bargaining agent. Opponents to the respondent among the intervener's work force therefore had their chance to have employee support tested by a vote and they were unsuccessful. It was precisely to prevent the resubmission of applications in such circumstances that the legislation had given the Board the power contained in this section. Counsel traced the development of the Board's case-law on the subject, both before and since the enactment of section 103(2)(i), referring in particular to the following cases: Trinidad Leaseholds, 52 CLLC ¶17,005; Filey-Hall Paper Box Co. Limited, 52 CLLC ¶17,037; Windsor Lumber Co. Ltd., 58 CLLC ¶18,104; Canadian Sealright Co. Ltd., 59 CLLC ¶18,157; Seven-Up (Ontario) Limited, [1971] OLRB Rep. Dec. 791; and Dunville Supermarket Limited, [1980] OLRB Rep. Aug. 1193. Counsel also argued that the Board's discretion under section 103(2)(i) could be exercised to bar any application under the Act: Browning-Ferris Industries Ltd., [1982] OLRB Rep. Sept. 1253; and R. L. D. Electric, (supra).
11Counsel for the applicant argued that the application for termination is timely under section 57(2)(a) of the Act, which reads as follows:
57.-(2) Any of the employees in the bargaining unit defined in a collective agreement may, subject to section 61, apply to the Board for a declaration that the trade union no longer represents the employees in the bargaining unit,
(a) in the case of a collective agreement for a term of not more than three years, only after the commencement of the last two months of its operation.
No provision of the Act makes it untimely. Section 123(1) merely abridges, for the construction industry, the period of protection provided for by section 57(1). Reference was made to Sack & Mitchell, Ontario Labour Relations Board Law and Practice (1985), at page 604. As for the respondent's reliance on section 103(2)(i), counsel for the applicant denied that there had been a previous "unsuccessful application" so as to give the Board a discretion to bar this application. The petitions presented in relation to the earlier application for certification did not constitute "applications" within the meaning of the section.
12In R.L.D. Electric (supra), at page 1149, the Board made the following comments about the desirability of a new bargaining relationship in the construction industry being sheltered from termination applications for a reasonable period of time:
- ... After certification, the parties require a period of time in order to develop a sound bargaining relationship. The employer, trade union and the employees need an opportunity to develop an understanding of what it means to operate and to work within a collective bargaining regime. This is particularly so in the ICI sector and perhaps also in other sectors of the construction industry where parties may not be active participants in the bargaining process. Since the collective agreement which binds them is negotiated by others on their behalf, the only avenue for the development of the relationship is the day-to-day administration of the collective agreement. The recognition that a period of time is needed for the parties not only to negotiate a collective agreement, but also to provide a basis for creating a bargaining relationship, is implicit in sections such as section 123(1) of the Act.
13Those considerations are even more compelling in the case of the present application, since certification was granted pursuant to section 8 of the Act. However, it goes without saying that our powers are those conferred by the Act, and that we can only provide this protection to the respondent if the Act requires or authorizes us to do so.
14We agree with counsel for the respondent that section 123(1) is the construction industry counterpart to section 57(1) and that it prevails over section 57(1) by virtue of section 118. We would note, however, that the balance of section 57, including section 57(2), remains fully applicable to the construction industry.
15The present case discloses a significant but subtle difference between the construction industry provisions and the general provisions of the Act in the area of termination applications.
16Outside of the construction industry, section 57(1) does not authorize applications for termination during the first year following certification, unless a collective agreement is made before the year is up. And, if a collective agreement is made during that time, it must perforce be for a period of at least one year (section 52). In such a case, no application for termination could be brought until the last two months of the operation of the agreement (section 57(2)(a)). The shortest possible period of protection would occur in the unlikely scenario of a one-year collective agreement being executed the same day as the bargaining agent is certified, when the bargaining agent would enjoy a ten-month respite before having to be ready to stave off a challenge to its bargaining rights from disaffected employees.
17In the case of the construction industry, a modified model is in place. The obvious difference is that the one-year period has been replaced by a six-month period (section 123(1)). However, what is less obvious is that the possibility exists in the construction industry of bargaining agents being bound by collective agreements for very short periods as a result of being "plugged in" to existing collective agreements upon certification. When this occurs in the ICI sector, it is provided, in section 145(5), that the agreement ceases to operate according to its terms, even though a new bargaining agent might have become subject to it when less than one year remained of its original period of operation. Thus, unlike other bargaining agents, the newly certified bargaining agent in the construction industry might be bound, upon certification, by a collective agreement nearing expiry. In order to appreciate what this means for the vulnerability of bargaining agents in the construction industry to termination applications, it is critical to understand the scheme of the legislation as it relates to open periods. The legislation does not say that applications for termination are prohibited at certain times; rather, it says that they are permitted at certain times. Outside the construction industry this distinction is an academic one, since open periods cannot overlap: for any given bargaining unit, the period when an application for termination might be brought under section 57(1) and the period when it might be brought under section 57(2) are mutually exclusive. In the construction industry, however, section 57(2)(a) allows applications to be made "after the commencement of the last two months of [the] operation" of a "collective agreement for a term of not more than three years"; and section 123(1) allows them to be made after the expiry of a six-month period commencing with certification if, within that period, the trade union has not made a collective agreement. Those two open periods can overlap if, as here, a newly certified bargaining agent is "plugged in" to an expiring collective agreement upon certification. It is in such a case that it is important to note that section 57(2)(a) and section 123(1) both establish open periods; they do not establish closed periods. It is true that the effect of section 123(1), in the usual case, will be to prevent applications being made during the first six months following certification, since there will be no other statutory authorization at the time for bringing such an application. However, the language of these provisions is permissive and not prohibitory. As we read the legislation, therefore, an employee who could not bring the application in accordance with section 123(1) is not thereby precluded from bringing it in accordance with section 57(2)(a) if the application is timely under that section.
18It would be idle for us to speculate whether it was intended by the Legislature that a newly certified bargaining agent in the construction industry might risk losing its bargaining rights before the ink is dry on its certificate. It might have been an oversight, or it might have been regarded as an inevitable concomitant of the system of multi-employer bargaining in the construction industry.
19We have concluded that the present application was made in compliance with section 57(2)(a) of the Act. Although the respondent presented no argument on the point, we have considered the possibility that the recognition clause in the provincial agreement might not be sufficiently broad to cover the intervener. If that were the case, it might be argued that the applicant was not an "[employee] in the bargaining unit defined in [the] collective agreement", within the meaning of the opening words of section 57(2), but had merely become bound by reason of section 145(4). However, it would appear that any such argument would be foreclosed by the Board's decision in Culliton Brothers Limited, [1983] OLRB Rep. March 339. We see no other basis for doubting the applicant's compliance with section 57(2)(a).
20Having reached the conclusion that the application is timely under section 57(2)(a), we do not believe that it is necessary for us to express any concluded opinion on whether it is also timely under section 123(1). As we explained earlier in this decision, all that an applicant has to do is to bring the application in an open period specified in the Act. Section 123(1) is not a prohibitory provision.
21We turn now to the respondent's alternative request, namely that the Board exercise its discretion under section 103(2)(i) and bar this application. The respondent has argued that the petitions presented by employees in the context of the application for certification constituted an "unsuccessful application", within the meaning of section 103(2)(i), with the result that we have a discretion that we can exercise.
22The Board cannot accept that it has any discretion to exercise in the circumstances of this case. We are of the view that the only application that could count as an unsuccessful application for the purposes of section 103(2)(i) would be an "application" within the meaning of the Act. On the basis of elementary principles of statutory interpretation, we do not believe that it would be proper to interpret the word "application" in section 103(2)(i) as extending to processes or proceedings that are not described in the Act itself as applications. In any event, a petition of the kind that is alleged by counsel for the respondent to be an application is not even a statutory process, in the sense that the Act itself makes no mention of it. We cannot accept that section 103(2)(i) was intended to have the effect of permitting the Board to bar an application authorized by the Act on the ground that some earlier non-statutory proceeding or motion before the Board had been unsuccessful.
23It follows that the respondent's objection to the timeliness of the application and its request, in the alternative, that we exercise our discretion to bar the application must both be dismissed.
24The matter is referred to the Registrar for the scheduling of a hearing to deal with the other aspects of this application.
25This panel is not seized.
DECISION OF BOARD MEMBER BROMLEY L. ARMSTRONG; August 4, 1988
The Board (differently constituted) certified the respondent as bargaining agent on February 19, 1988, (Board File No. 1330-86-R) pursuant to section 8 of the Labour Relations Act, in view of the employer M & Al Roofing Ltd.'s violations of the Act. Two statements of desire, opposing the application of the union for certification were filed and found not to be relevant.
In my opinion, it makes no labour relations sense to entertain an application for termination of bargaining rights ten weeks after certification. In the circumstances of this case nothing would change over this short period; the union had no opportunity to show members of the bargaining unit what stability would be under a collective agreement.
The Board should exercise its discretion and dismiss this application for termination.