Labourers' International Union of North America, Ontario Provincial District Council v. M.W.M. Construction of Kitchener Limited

[1989] OLRB Rep. June 635

0225-89-R Labourers' International Union of North America, Ontario Provincial District Council, Applicant v. M.W.M. Construction of Kitchener Limited, Respondent v. Group of Employees, Objectors

BEFORE: R. A. Furness, Vice-Chair, and Board Members D. A. MacDonald and C. A. Ballen­tine.

APPEARANCES: Jules Bloch, Ernie Barros and Jim Nicolson for the applicant; A. A. Morscher, J. Meyers and A. Muhic for the respondent; Valerie Hoag, Art Hordyk and John Yantha for the objectors.

DECISION OF THE BOARD; June 2,1989

1. On April 24, 1989, the applicant applied for certification with respect to a bargaining unit of "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 of the construction industry in Ontario Labour Relations Board Area No. 6, save and except non-working foremen and persons above that rank". In its reply dated May 9, 1989, the respondent indicated that the appropriate bargaining unit was "same as claimed by Applicant in its Application for certification". The hear­ing in this matter was scheduled for May 30, 1989. In a letter to the Board dated May 24, 1989, which was received by the Board on May 25, 1989, and which was copied to counsel for the respon­dent and counsel for the objectors, the applicant advised the Board that it wished to recast its application so that the application should read "all construction labourers in the employ of the respondent in all other sectors of the Construction Industry in Ontario Labour Relations Board Area No. 6, save and except non-working foremen and persons above that rank".

2. Counsel for the respondent and counsel for the objectors opposed the request of the applicant to amend the bargaining unit for which the applicant is seeking certification. It was the position of counsel for the respondent that the applicant is a council of trade unions unless the Board found the applicant to be something different. It was the position of counsel that where there exists such a council then a member trade union cannot apply for certification independently. Counsel referred to section 119 and 144 of the Labour Relations Act and argued that in order to give any meaning to sections 144(3) such an application has to be made by a trade union itself. Counsel further argued that if the Board held that the definition section l(1)(p) applied then "trade union" did include a council of trade unions and a provincial council. He argued that in these circumstances the difference between section 144(1) and (3) had no meaning. It was the posi­tion of counsel that in these circumstances the proposed amendment ought not to be permitted. Counsel also opposed the proposed amendment of the bargaining unit on the additional ground that since the respondent is a small cement company with less than thirty employees the appropri­ate bargaining unit ought to indicate the geographic areas in which the respondent is working. It was the view of counsel that the bargaining unit as defined by the proposed amendment would not permit employees, who all came from a common pool, working outside the Board's geographic area No. 6 to participate in the selection of a bargaining agent. It was also the position of counsel that to permit an amendment to the bargaining unit would permit the applicant to gerrymander a bargaining unit.

3. Counsel for the objectors characterized the proposed amendment to the bargaining unit as unfair in that the employees have no opportunity to respond. Counsel claimed that ninety-five per cent of the work of the employees is in the residential sector of the construction industry and that the Board ought not to permit this artificial amendment.

4. Counsel for the applicant argued that the bargaining unit in its original and amended form related to construction labourers in the construction industry and that the applicant was enti­tled to make its application under either section 144(1) or (3) of the Labour Relations Act. It was the position of counsel that the applicant had a choice until it saw the list of employees filed by the respondent. Counsel argued that the applicant as a council of trade unions within the meaning of section l(l)(p) is able to make an application under either section 144(1) or (3).

5. An application for certification under the provisions of section 144(1) may be made by an employee bargaining agency or one or more affiliated bargaining agents of the employee bar­gaining agency. Such an application which relates to the industrial, commercial and institutional sector of the construction industry may be made even if there are no employees employed in the industrial, commercial and institutional sector of the construction industry. See Colonist Homes Ltd., [1980] OLRB Rep. Dec. 1729. An application for certification under the provisions of section 144(3) may be made by a trade union represented by an employee bargaining agency. The reference to section 119(1) in section 144(3) recognizes the situation of trade unions which are repre­sented by an employee bargaining agency. The applicant is both an affiliated bargaining agent within the meaning of section 137(1)(a) and a council of trade unions within the meaning of section 1(1)(g). The applicant is also a trade union represented by an employee bargaining agency. In addition, the applicant has established itself as a certified council of trade unions. See, section l(l)(p) of the Labour Relations Act and the Employee Bargaining Agency Description of the Min­ister of Labour dated September 30, 1983, made pursuant to section 139(1) of the Labour Rela­tions Act. The applicant may therefore make an application under either section 144(1) or (3).

6. The next issue before the Board is whether the applicant ought to be permitted to amend its bargaining unit. In the view of the Board the conduct of the applicant may not be char­acterized as gerrymandering. The applicant has merely contracted the size of the bargaining unit for which it is seeking certification. The employees were advised in Form 78, Notice to Employees of Application for Certification, Construction Industry, that an application had been made "in the following unit claimed to be appropriate". There is no guarantee that such a bargaining unit would be found to be appropriate by the Board. The employees and the respondent have received notice of this proposed amendment to the bargaining unit.

7. With regards to the other matters raised, the Board notes that the Labour Relations Act does not distinguish between small employers or the number of employees. The only limitation is that an appropriate bargaining unit must consist of more than one employee. See section 6(1). The applicant is under no obligation to expand the scope of this application to include all of the geo­graphic areas in which the respondent operates. The Board ascertains the number of employees in the bargaining unit at the time the application was made and the number of employees in the unit who were members of the applicant as is required in section 7(1). It is these employees whose views are considered by the Board in making the determinations required in section 7.

8. The Board finds therefore that the appropriate bargaining unit is all construction labourers in the employ of the respondent in all sectors of the construction industry other than the industrial, commercial and institutional sector in the Regional Municipality of Waterloo (except that portion of the geographic Township of Beverly annexed by North Dumfries Township), 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.

9. A Labour Relations Officers it authorized to inquire into and report to the Board on the list and composition of the bargaining unit.

10. This panel of the Board is not seized with this application.