International Brotherhood of Painters & Allied Trades, Local 205 v. Westdale Painting & Decorating Ltd., 1989 CanLII 3000

[1989] OLRB Rep. September 984

1310-89-R International Brotherhood of Painters & Allied Trades, Local 205, Applicant v. Westdale Painting & Decorating Ltd., Respondent

BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members J. A. Rundle and H. Peacock.

DECISION OF THE BOARD; September 22, 1989

1The 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 12, 1978, the International Brotherhood of Painters and Allied Trades and the Ontario Council of the Interna­tional Brotherhood of Painters and Allied Trades is that designated employee bargaining agency. It has been designated to represent, among others, journeymen and apprentice painters represented by its affiliated bargaining agents in bargaining in the industrial, commercial and institu­tional ("ICI") sector of the construction industry in the Province of Ontario.

2This 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:

144.-(1) 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.

[emphasis added]

3The applicant seeks to be certified as the exclusive bargaining agent for employees of the respondent in what is, in effect, one of its standard construction industry bargaining units; namely, all journeymen and apprentice painters in the employ of the respondent in the ICI sector of the construction industry in the Province of Ontario and all journeymen and apprentice painters in the employ of the respondent in all sectors of the construction industry excluding the ICI sector in Board Area 26, save and except non-working foremen and persons above that rank. In its reply, the respondent seeks to limit the bargaining unit to all journeymen and apprentice painters in its employ in the ICI sector of the construction industry in the Regional Municipality of Hamilton­Wentworth and the City of Burlington.

4In addition, the respondent requests, in paragraph 14 of its reply, that the Board hold a hearing with respect to this matter. In support of that request, it states:

(a) The Respondent is a small painting contractor, operating primarily in the industrial and institutional sectors in the cities of Burlington and Hamilton.

(b) Wage rates paid by non-union contractors are significantly different from the wage rates paid by union contractors within the geographic area in which the Respondent carries on business.

(c) The Respondent, in part because of its wage structure, has been a successful bidder on a number of industrial and institutional jobs, which contracts are to be performed in the fall/winter of 1989-1990.

(d) The Respondent is seriously concerned that its employees are certified, and the Respondent therefore obligated to pay the prevailing wage rates, it will be unable to perform the aforesaid contracts in an economical manner and will therefore suffer substantial financial losses.

(e) The Respondent is of the opinion that its employees have been misled or not informed by the Applicant of the effect that certification will have upon them, given the nature of the Respondent's business activities. The Respondent is of the opinion that if its employees were fully and fairly informed of these facts, that those employ­ees would elect to discontinue this application.

(f) The Respondent therefore respectfully requests that the Board order a vote to deter­mine the true wishes of the employees.

5The general certification process in Ontario is well established and has been described by the Board in numerous previous decisions (see, for example, London Soap Company Limited, [1987] OLRB Rep. Feb. 241 at paragraph 12; Famz Foods Limited, [1985] OLRB Rep. June 857 at paragraphs 10 to 14; Unlimited Textures Company Limited, [1984] OLRB Rep. Jan. 138 at para­graphs 15 to 17). In essence, the Labour Relations Act provides that the certification of trade unions in this Province is based primarily upon an assessment of a trade union's membership sup­port in an appropriate bargaining unit, as evidenced by membership records filed in support of an application for certification. The Board does not inquire into why employees do or do not support an application for certification, or into opinions about the virtues of trade union representation, except insofar as such opinions are voiced in the form of a trade union's documentary membership evidence and any timely statements of desire filed in opposition to the application. The representa­tion vote exists as a mechanism for ascertaining the wishes of the bargaining unit employees in cir­cumstances where the applicant trade union has filed membership evidence with respect to more than forty-five percent of such employees but does not have the support (as evidenced by member­ship documents) of more than fifty-five percent of them which is required for outright certification under section 7(2) of the Act, or where the circumstances are such that the Board is satisfied that it is appropriate to exercise its discretion to require that a representation vote be held notwithstand­ing that the trade union has filed documentary evidence showing that more than fifty-five percent of the bargaining unit employees support its application. In certification proceedings, the Board places heavy reliance upon the membership evidence filed by the trade union. Because of the con­sequences of the reliance which the Board places on what is a form of hearsay evidence which is not (normally) disclosed to the employer or any other party to a certification proceeding, and which is not (normally) subject to cross-examination, the Board requires a high standard of integ­rity in the nature and quality of membership evidence filed. It is for this purpose that an applicant is required to file a Declaration Concerning Membership Documents (in Form 9 or Form 80 as the case may be), which attests to the regularity and sufficiency of its membership evidence in every application for certification (see Grant Construction, [1989] OLRB Rep. July 766; Lonco Construc­tion Limited, [1989] OLRB Rep. March 274; Grand & Toy Limited, [1986] OLRB Rep. Sept. 1223).

6The same general considerations apply to applications for certification in the construc­tion industry (see, for example, Lonco Construction, supra; Capital Construction Corporation, [19881 OLRB Rep. Aug. 747). However, all applications for certification in the construction indus­try must be brought pursuant to section 144 of the Labour Relations Act; (Clarence H. Graham Limited, [1981] OLRB Rep. Sept. 1195; Ninco Construction Ltd., [1982] OLRB Rep. Nov. 1692; Manacon Construction Limited, [1983] OLRB Rep. March 407 and July 1104; Ellis-Don Limited, [1988] OLRB Rep. Dec. 1254 and [1989] OLRB Rep. March 234). Applications, like this one, under section 144(1), of the Act can only be brought by an affiliated bargaining agent. Every such application must relate to a bargaining unit which includes "... all employees who would be bound by a provincial agreement [as defined in section 137(e) of the Act] together with all other employees in at least one appropriate geographic area ..." [emphasis added]. Consequently, an applicant trade union's right to certification is determined on the basis of the membership support it demonstrates within a single bargaining unit consisting of all ICI employees which the trade union's designated employee bargaining agency is entitled to represent in bargaining and all other such employees (see Aero Block and Precast Ltd., [1984] OLRB Rep. Sept. 1166) in one or more appropriate geo­graphic areas. If the respondent employer has employees in more than one geographic area, a trade union may, at its option, make its application with respect to any or all such areas (see Dagmar Construction Limited, [1987] OLRB Rep. Apr. 480). The fact that the respondent employer may have had no non-ICI employees at work on the date of application (which is the rel­evant date: see, among others, Gilvesy Enterprises Inc., [1987] OLRB Rep. Feb. 220; E & E Seeg­miller Limited, [1987] OLRB Rep. Jan. 41) does not affect the trade union's right to seek to be cer­tified for an employer's non-ICI employees in an appropriate geographic area (see Watcon Inc., [1981] OLRB Rep. Nov. 1697). (Similarly, a trade can obtain ICI bargaining rights under section 144(1) even if the respondent employer had no employees working in that sector on the date of application: see Colonist Homes Ltd., [1980] OLRB Rep. Dec. 1729.) It is only after the Board determines that a trade union is entitled to be certified as the bargaining agent of the employees in the single bargaining unit applied for that the Act stipulates~ in section 144(2), that the Board issue two certificates, one confined to the ICI sector, and one in relation to all other sectors of the con­struction industry in the geographic area(s) concerned. In the result, a trade union's right to be cer­tified under section 144(1) is determined on the basis of its support in one bargaining unit, but if it is successful it receives two certificates; that is, certificates for two bargaining units (see Fred Jantz Masonry Construction Company Limited, [1986] OLRB Rep. Aug. 1083).

7The construction industry provisions of the Labour Relations Act generally, and specifi­cally section 102(14), together with the Board's Rules of Procedure in such applications, enable the Board to dispose of such applications in an expedited manner without an oral hearing. Section 97 of the Board's Rules of Procedure requires a party requesting a hearing to set out, in writing, the material facts upon which it relies, the relief it seeks, and the submissions it proposes to make at the hearing in support of its request. The Board will not hold a hearing where irrelevant reasons are given in support of a request for one, or where the employer questions whether its employees really wish to be represented by the applicant but fails to particularize its assertions in that respect. (We observe that any party which makes allegations, in any proceedings before the Board, of irregular or improper conduct (including allegations of improprieties in the solicitation or collec­tion of membership evidence) is obliged to give notice and full particulars of those allegations (see section 72 of the Board's Rules of Procedure Lonco Construction Limited, supra, Unlimited Tex­tures Company Limited, supra). Generally, a hearing becomes necessary only when there is a dis­pute with respect to some material fact or issue which cannot be resolved or disposed of by the Board without a hearing (see B. Maskell Limited, [1989] OLRB Rep. Apr. 319; Black & McDon­ald Limited, [1987] OLRB Rep. Oct. 1208.

8The size in an employer's business, the areas in which an employer primarily carries on its business, and the impact which certification may have on an employer are irrelevant to the Board's considerations in determining whether an applicant trade union is entitled to be certified. Further, the respondent in this case has offered no basis for the speculations in paragraph 14(3)(e) of its reply. The Board is satisfied that this application can be disposed of on the basis of the mate­rial filed, and that the respondent has offered no cogent reason for the Board to hold a hearing. The respondent's request for a hearing is therefore denied.

9It is evident that the respondent's bargaining unit description is not appropriate because it is limited to the ICI sector in a limited geographic area. Further, the Regional Municipality of Hamilton-Wentworth and the City of Burlington do not constitute an "appropriate geographic area". It has been left to the Board to determine what constitutes an appropriate geographic area (see Hydro Electric Power Commission of Ontario, [1966] OLRB Rep. Nov. 596). Thirty-two such areas have been established by the Board. The Regional Municipality of Hamilton-Wentworth and the City of Burlington are, together with that portion of the geographic Township of Beverly annexed by North Dumfries Township and that portion of the Town of Milton within the geo­graphic Township of Nassagaweya, in Board area 26.

10Having regard to the material before it, the Board finds, pursuant to section 144(1) of

the Act, that all journeymen and apprentice painters in the employ of the respondent in the indus­trial, commercial and institutional sector of the construction industry in the Province of Ontario and all journeymen and apprentice painters in the employ of the respondent in all other sectors of the construction industry (that is, excluding the industrial, commercial and institutional sector) in the Regional Municipality of Hamilton-Wentworth, the City of Burlington, that portion of the geo­graphic Township of Beverly annexed by North Dumfries Township and that portion of the Town of Milton within the geographic Township of Nassagaweya, 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.

11The respondent filed a list of employees in the bargaining unit (and specimen signatures therefore) containing nine names on Schedule A. In support of its application, the applicant filed thirteen pieces of documentary membership evidence in the form of combination application for membership and receipt cards. All of these contain the name and original signature of the persons with respect to whom they are filed and indicate that a $1.00 payment has been made by them with respect to membership in the applicant within the six-month period immediately preceding the ter­minal date fixed for this application. The cards and money were collected by more than one per­son. The applicant also filed a Form 80, Declaration Concerning Membership Documents, Con­struction Industry which attests to the regularity and sufficiency of its membership evidence.

12The Board is satisfied, on the basis of all the evidence before it, that more than fifty-five percent of the employees of the respondent in the bargaining unit, at the time the application was made, were members of the applicant on September 5,1989, 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 Act.

13As indicated above, the respondent requested that a representation vote be taken in this application. In our view, however, it has offered no cogent reason for the Board to order such a vote. There is nothing before the Board which suggests why the applicant ought not be certified without the taking of a representation vote. The respondent's request for a vote is therefore denied.

14In the result, and 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 1 above in respect of all jour­neymen and apprentice painters 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.

15Further, and also pursuant to section 144(2) of the Act a certificate will issue to the applicant in respect of all journeymen and apprentice painters in the employ of the respondent in all sectors of the construction industry in the Regional Municipality of Hamilton-Wentworth, the City of Burlington, that portion of the geographic Township of Beverly annexed by North Dum­fries Township and that portion of the Town of Milton within the geographic Township of Nassa­gaweya, excluding the industrial, commercial and institutional sector, and save and except non-working foremen and persons above the rank of non-working foreman.