Labourers' International Union of North America, Ontario Provincial District Council v. Beling Cement Construction Limited

[1989] OLRB Rep. July 709

0111-89-R Labourers' International Union of North America, Ontario Provincial District Council, Applicant v. Beling Cement Construction Limited, Respondent v. Group of Employees, Objectors

BEFORE: Inge M. Stamp, Vice-Chair, and Board Members W. Gibson and I. Redshaw.

APPEARANCES: Jules Bloch, Keith Rimmington and Manny Andrade for the applicant; Brian D. Muironey and Peter lbs for the respondent; T. J. Billo, Roy Pyke, Bill Phillips and Terry Wilkinson for the objectors.

DECISION OF THE BOARD; July 25, 1989

1. The name of the respondent is amended to read: "Beling Cement Construction Limited".

2. This is an application for certification pursuant to the construction industry provisions of the Labour Relations Act.

3. The Board finds that Locals 183, 247, 491, 493, 506, 527, 597, 607, 625, 837, 1036, 1059, 1081 and 1089 are trade unions within the meaning of section l(l)(p) of the Labour Relations Act. The Board further finds that they are constituent trade unions of the applicant.

4. The Board further finds that the applicant is a council of trade unions within the mean­ing of section 1(1)(g) of the Labour Relations Act.

5. The Board is satisfied that the constituent trade unions of the applicant have vested appropriate authority in the applicant to enable it to discharge the responsibilities of a bargaining agent within the meaning of section 10(1) of the Labour Relations Act.

6. The Board also finds that the applicant 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 21, 1978, 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.

7. 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.

8. A timely "statement of desire" or "petition" was filed with the Board by a group of employees indicating that they wish to oppose the union.

9. The parties disagreed with respect to the appropriate bargaining unit and the list of employees filed by the respondent.

10. The applicant seeks certification in respect of a bargaining unit that encompasses the Province of Ontario in the industrial, commercial and institutional (ICI) sector of the construction industry and Board Area #26 in all sectors of the construction industry, excluding the ICI sector.

11. It is the position of the respondent that there were employees of the respondent at work in Board Area #6 on the application date and therefore the appropriate bargaining unit should be described in terms of ICI province-wide and Board Areas #6 and #26. Counsel for the respondent contended that there may be situations under section 144(1) of the Act where the Board is required to consider the Usarco type of community of interest criteria to determine whether one or more geographic area is appropriate (Usarco Limited, [1967] OLRB Rep. Sept. 526).

12. Counsel for the respondent described his argument as "slightly different and novel" requesting that the Board hear evidence regarding the community of interest with respect to the employees in Board Areas #6 and #26. Since no such evidence was led before the Board in Dagmar Construction Limited, [1987] OLRB Rep. Apr. 480 and Beaverbrook Estates Inc., [1989] OLRB Rep. Apr. 22, this panel of the Board should not follow the reasoning set out in these deci­sions. Counsel submitted that the Board must determine the appropriate bargaining unit by read­ing section 6(1) together with section 144(1) or 144(3). Counsel submitted that the identical word ("appropriate") is used in sections 6(1) and 144(1) and as a matter of statutory interpretation, the choice is not accidental. Counsel further submitted that if the union has the right to determine which Board area or areas it will apply for, then the Board is abdicating its statutory obligation to consider what is "appropriate".

13. The applicant submitted that "appropriate" in section 144(1) deals with "geographic area" only and any linkage to section 6 would undermine the purpose of the construction sections of the Act. Paragraph 10 of Dagmar, supra, refers to Watcon Inc., [1981] OLRB Rep. Nov. 1697 stating: "It does not suggest that there are circumstances under which such an application must pertain to more than one geographic area".

14. The Board made a unanimous oral ruling on the day of hearing with respect to this issue as follows:

Having regard to the submissions of the parties and the cases cited, we find that in the circumstances the applicant is entitled to apply for Board Area #26 and ICI.

The reasons are set out below.

15. Section 6(1) of the Act gives the Board discretion in determining "the unit of employees that is appropriate for collective bargaining". In applications for certification relating to the con­struction industry, that discretion is limited by sections 6(3), 119, 139 and 144 of the Act. The Board in paragraph 12 of Superior Plumbing & Heating Company Ltd., [1986] OLRB Rep. Nov. 1589, makes the following observation:

"The ICI province-wide scheme of collective bargaining is highly structured and stratified, and the usual factors relevant to a determination of the appropriate bargaining unit have only lim­ited application in this statutory scheme. The concept of "community of interest" may well still apply, but if so, subject to the overriding principles and structure set up by section 144 and by the designation system, a system which designates the agents, and the trades they are entitled to represent, in the ICI province-wide component of the construction industry".

At paragraph 42 of the decision in Ellis-Don Limited, [1988] OLRB Rep. Dec. 1254, the Board commented that:

42. The Board's general discretion, under section 6(1) of the Act, to determine what bargaining unit is appropriate in applications for certification in the construction industry, already some­what limited by section 6(3) which deems craft units to be appropriate, was further limited by the enactment, in May 1980, of section 144.

In the construction industry, by definition, there is a community of interest as the designations cover specific trades or crafts and an employee bargaining agency (and their affiliated bargaining agents) can only apply for its trade or craft under section 144. In Dagmar, supra the Board found that a trade union under section 144(1) can apply for a bargaining unit ICI province-wide and one or more Board areas but is not required to apply for more than one Board (geographic) area.

16. Having regard to the above, the Board 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 all construction labourers in the employ of the respondent in all other sectors in the Regional Municipality of Hamilton­Wentworth, 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 Town­ships of Nassagaweya and Nelson, 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.

17. At this point in the proceedings, the parties met with a Labour Relations Officer and agreed to the following summary of the challenges to the list of employees:

ONTARIO LABOUR RELATIONS BOARD

Board File: 0111-89-R

Between:

Labourers' International Union of North America, Ontario Provincial District Council,

Applicant

and

Beling Cement Construction Limited,

Respondent

Group of Employees,

Objectors

It is understood by the parties that the following persons are challenged by the Appli­cant on the basis that on the date of application, each of them were (a) not working on the application date and/or (b) not working in Board Area 26 and/or (c) not work­ing in the I.C.I. sector and/or (d) not doing bargaining unit work and/or (e) were per­forming managerial functions per section 1(3)(b):-

FRANK COLEMAN

WILLIAM PHILLIPS

RAY PYKE

HERB SCHMAKIES

RAYMOND GUTOSKIE.

2. It is the position of the Respondent and the Group of Employees that FRANK COLEMAN, WILLIAM PHILLIPS, RAY PYKE, HERB SCHMAKIES and RAY­MOND GUTOSKIE were employees at work and performing tasks within the description of the bargaining unit on the date of application.

3. It is understood by the parties that JOHN STANLEY is challenged by the Applicant as doing bargaining unit work on the date of application.

4. The position of the Respondent and the Group of Employees is that JOHN STAN­LEY was not performing bargaining unit work on the date of application.

5. It is agreed by the parties that the following persons were employees at work and per­forming tasks within the description of the bargaining unit on the date of application:

DON BENDER

NORMAN DAVIS

TERRY DIETZ

STEVEN DAGENAIS

DAVE ELLIOTT

CHARLES GAULTON

BRAD GLOFCHESKIE

ROGER KETTLE

CECIL LOMOND

JOHN LOMOND

RONALD LOMOND

KEVIN REEBELING

JAMES ROSE

HELMUT RYBICKI

DOUGLAS TSCHIRHART

DARWIN VALLANCE

PAUL VINE

8. It is the position of the Respondent that the following persons were among those employees performing ICI work during all or part of the day on April 13, 1989, being the date of application:

FRANK COLEMAN

NORMAN DAVIS

DAVE ELLIOTT

BRAD GLOFCHESKIE

RAYMOND GUTOSKIE

RONALD LOMOND

WILLIAM PHILLIPS

ROY PYKE

JAMES ROSE

HERB SCHMAKIES

PAUL VINE

Dated at Toronto this 1st day of June, 1989

"Keith Rimmington" "Peter Ibs"

For the Applicant For the Respondent

per: "T. J. Billo" For the Group of Employees

18. Having regard to the above, the Board authorizes a Labour Relations Officer to inquire into and report back to the Board on the list of employees in the bargaining unit with respect to:

(1) conducting a check of the respondent's records for the purpose of enabling the Board to determine whether the challenged individuals in paragraph 17 above were at work on the application date, includ­ing the location of the job site;

(ii) inquiring into the nature of the work performed by the challenged individuals in paragraph 17 above in order to enable the Board to determine whether they were performing bargaining unit work on the date of application, including the location of the job site;

(iii) inquiring into the duties and responsibilities of the challenged indi­viduals in paragraph 17 above, for the purposes of enabling the Board to determine whether they exercised managerial functions.

19. This matter is referred to the Registrar.

CONCURRING DECISION OF BOARD MEMBER W. GIBSON; July 25, 1989

1. I concur with the decision in this case, because I realize that, on the strict wording of section 144(1) of the Labour Relations Act, a union may apply to be certified for non-ICI work for just one geographic area, even though, on the date of application, the employer has employees working in more than one geographic area.

2. However, I wish to highlight once again (as I did in Beaverbrook Estates, File No. 2570-88-R) the severe fragmentation problems caused to an employer when the agreed bargaining unit covers his employees in only one geographic area, when he has employees working in more than one geographic area. This is of particular significance in this case where the non-ICI employees report to, and work out of the geographic area not covered by the bargaining unit.