[1989] OLRB Rep. April 322
2570-88-R Labourers' International Union of North America, Local 183, Applicant v. Beaverbrook Estates Inc., Respondent v. Group of Employees, Objectors
BEFORE: Inge M. Stamp, Vice-Chair, and Board Members W. Gibson and H. Kobryn.
APPEARANCES: Bernard Fishbein, L. Baldassarra and M. Fasan for the applicant; Stephen A. McArthur and Murray Parton for the respondent; no one appearing on behalf of the objectors.
DECISION OF INGE M. STAMP, VICE-CHAIR, AND BOARD MEMBER H. KOBRYN; April 11, 1989
This is an application pursuant to the construction industry provisions of the Labour Relations Act.
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.
A timely statement of desire or "petition" was filed with the Board signed by a number of employees indicating that they wish to oppose the union. No one appeared on behalf of the petitioners on the day scheduled for hearing this matter. Since there is no evidence before the Board as to whether the petition represents the voluntary wishes of the employees who signed it, the Board will not give it any weight.
The parties disagreed on the description of the bargaining unit. The applicant had applied for its standard ICI province-wide and Board Area 8 bargaining unit. The respondent stated that the proper bargaining unit is province-wide ICI and Board Areas 8 and 18. The respondent took the position that there were 5 labourers working in Board Area 18 and that they should be included on the list of employees who are in the bargaining unit. The respondent submits that if the Board excludes the 5 labourers it would in effect be making a sector determination and that this is contrary to the Board's policy in applications for certification in the construction industry.
The applicant's position is that it is entitled to apply pursuant to section 144(1) for ICI province-wide and one or more Board areas in all other sectors, provided it represents employees in the particular Board area or areas. The applicant submits that an application pursuant to section 144(1) only has to be provincial in scope for the ICI sector and not for any other sector. The applicant does not represent the employees in Board Area 18 and no one is asserting that the employees in Board Area 18 are working in the ICI sector.
After considering all of the submissions of the parties and the cases cited, the Board finds that the 5 employees in Board Area 18 are not properly on the list of the employees in the bargaining unit. The Board in Dagmar Construction Limited, [1987] OLRB Rep. Apr. 480 stated that a trade union under section 144(1) of the Act can apply for ICI and one or more Board areas but is not required to apply for more than one geographic area.
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 Municipality of Metropolitan Toronto, the Regional Municipalities of Peel and York~ the Towns of Oakville and Halton Hills and that portion of the Town of Milton within the geographic Townships of Esquesing and Trafalgar, and the Towns of Ajax and Pickering in the Regional Municipality of Durham, 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 parties agreed to the deletion of D. Resendes and M. Resendes from Schedule "A". The applicant is challenging three individuals of the remaining six employees listed on Schedule "A", on the following basis:
L. Melchiore section 1(3)(b) managerial exclusion; not at work
T. Oresti same as above F. Talarico not performing bargaining unit work.
- Having regard to the above, the Board hereby appoints a Labour Relations Officer to inquire into the list and composition of the bargaining unit and report back to the Board with respect to:
(i) conducting a check of the respondent's records for the purpose of enabling the Board to determine whether L. Melchiore and T. Oresti were at work on the application date;
(ii) inquiring into the duties and responsibilities of L. Melchiore and T. Oresti for the purpose of enabling the Board to determine whether they exercised managerial functions;
(iii) inquiring into the nature of the work performed by F. Talarico to determine whether he performed bargaining unit work on the date of application.
- This matter is referred to the Registrar.
DECISION OF BOARD MEMBER W. GIBSON; April 11,1989
I dissent from the majority decision in this case, which does not come to grips with the realities of the construction industry from an employer's point of view.
Here we have an employer engaged in residential construction in Southern Ontario, using the combined base of Barrie and Toronto. He had 6 employees in the Toronto area, and 5 in the Barrie area on the day of application. He does not see these as two separate geographic areas, but his one business area, within which employees should be freely interchangeable.
The majority decision will leave the 5 Barrie employees unrepresented. If the employer engages in ICI work in the Barrie area, it is to be hoped that the union will offer union membership to these employees, so that they will not be prevented from working for their employer on ICI work. Unfortunately, the union is not obligated to do so, and these 5 employees might find themselves out of work as a result of this decision. From the employees' point of view, they surely see themselves as the 11 employees of Beaverbrook Estates, all of whom should either be represented or not represented.
The Board also has a policy not to make sector determinations in certification applications. This was not an issue in this case where the parties agreed that the 5 Barrie employees were engaged in residential construction on the day of application. However, as it is quite a common practice for many construction employees to move between the non-ICI and ICI sectors from time to time, it does raise the issue of those employees left unrepresented by the granting of a province-wide ICI certificate to a union in cases like this.
The 5 Barrie employees should have been included in the list of employees in the bargaining unit.