[1990] OLRB Rep. April 459
2963-89-R Labourers' International Union of North America, Ontario Provincial District Council, Applicant v. Procon Developments Ltd., Respondent
BEFORE: Louisa M. Davie, Vice-Chair, and Board Members W. Gibson and K. Davies.
DECISION OF THE BOARD; April 2, 1990
In this application for certification the applicant filed eight combination applications for membership and receipts. The combination applications for membership are signed by the employees and the receipts are counter-signed and indicate that a payment of $1.00 has been made within the six-month period immediately preceding the terminal date of the application. The money was collected by one person. The applicant also filed a duly completed Form 80, Declaration Concerning Membership Documents, Construction Industry.
The respondent filed a reply, a list of employees containing thirteen names on Schedule "A" and specimen signatures within the time fixed in accordance with the Labour Relations Act and the Board's Rules of Procedure. Each of the eight cards filed corresponds to the names on the list of employees filed.
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.
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.
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.
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 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.
- In its application for certification, the applicant describes the unit of employees of the respondent which it claims to be appropriate for collective bargaining in the following manner:
all construction labourers, cement finishers and waterproofers 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, cement finishers, waterproofers and formsetters in the employ of the respondent in all other sectors of the construction industry in the Township of North Himsworth, Township of Chisholm, Township of Nipissing and surrounding township of Machar, save and except non-working foremen and persons above that rank.
- The respondent employer describes the appropriate bargaining unit in the following terms:
construction labourers utilized for winter condition for one project only -employed only at conc. 4 & 5, South Himsworth, District of Parry Sound.
- By letter dated March 20, 1990, counsel for the applicant wrote to the Board as follows:
We are in receipt of your March 16th, 1990, letter wherein the Respondent's reply to our Application for Certification is enclosed. We agree with the Respondent, wherein at paragraph 5 of the Reply, that the job site is at Himsworth South, consequently we amend our bargaining unit description to read Himsworth South and surrounding townships, rather than Himsworth North and surrounding townships.
We note that North Himsworth falls within Board Area 16 which encompasses that area which lies within a radius of thirty-three kilometres (approximately 20 miles) of North Bay Post Office. Had the project been in North Himsworth the Board would have reposted the application to conform with the new and substantially altered geographic description of the bargaining unit which would then have been Board Area 16. South Himsworth however, falls within one of the "white areas" and does not fall within a defined Board Area. In cases where an application for certification relates to a "white area" the Board's usual and normal practice is to describe the bargaining unit in reference to the township in which the project is located and the townships adjacent thereto. The Townships of Chishoim, Nipissing and Machar referred to in the application are not adjacent to North Himsworth but are adjacent to South Himsworth. In addition, the Townships of North Himsworth, Ballantyne and Laurier are also adjacent to South Himsworth. We note that in its reply the respondent concurs that the project is located in South Himsworth and states "Procon Developments is not working in North Himsworth". As the respondent admits it has no employees in North Himsworth and is involved in only one project, and in view of the description of the bargaining unit proposed by the applicant (which corresponds to a typical "white area" bargaining unit) it appears self-evident that the employees whom the applicant seeks to organize were employed in South Himsworth. The applicant would hardly seek to obtain bargaining rights in a geographic area in which the respondent has by its own admission no employees. The respondent's reply indicates there are no other employees who could be affected by this application. Finally, we note that it is within the Board's discretion to determine what constitutes an appropriate geographic area subject only to the caveat that the appropriate unit must be defined by reference to a geographic area and may not be confined to a particular project by reason of section 119(1).
Having regard to all of the circumstances, in keeping with the Board's usual policy relating to applications for certification which do not relate to a defined Board area, and in the absence of any statement of material facts or submissions as to why the Board's usual practice in respect of applications for certification in the "white areas" ought not to be followed in this instance, we find, 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 sectors in the Township of South Himsworth and the surrounding Townships of Chisholm, Nipissing, Machar, North Himsworth, Laurier and Ballantyne in all sectors of the construction industry, excluding the industrial, commercial and institutional sector, 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.
In paragraph 13 of its reply the respondent states as "other relevant statements":
No employees in bargaining unit will be employed after March 31st as Procon Developments Ltd. is not actively engaged in the construction industry.
Only 4 employees (approx.) will be retained after March 15th for a short time period.
Due to contract problems between Carlisle Power Systems Ltd. & P.B. Rombough Ltd. Procon labour force was used as a stop gap measure.
Procon Developments is not working in North Himsworth.
In paragraph 14(3) the respondent requests a hearing of the Board and states inter alia:
not engaged actively in construction industry.
no projects in geographical area stated by applicant.
no labourers employed after March 31st, 1990.
The respondent states in its reply that the general nature of its business is "management services". In paragraph 3 of the reply it states that the specific nature of its business affected by the application is "site preparation". In paragraph 4 it acknowledges that the nature of the work performed by the employees in the bargaining unit consists of "manual labour for winter conditions & dewatering construction site".
In an application for certification to which the construction industry provisions of the Act apply, the Board need not hold a hearing (section 102(14)). Given the unique nature of the construction industry and the transitory nature of persons employed in the construction industry, the Board often disposes of applications for certification in the construction industry without a hearing. The reasons for this have been articulated in many decisions of the Board (see Westdale Painting & Decorating Ltd., [1989] OLRB Rep. Sept. 984 for a recent example). Moreover, where a party requests a hearing of a certification application which relates to the construction industry, it must set out a concise statement of the material facts, the relief sought and its submissions (see section 97 of the Rules of Procedure). In this case, the respondent has identified three reasons why it requests a hearing. We have already addressed one of those reasons namely the one which deals with the appropriate geographic area. We find that we can deal with this application on the basis of the material before us and, pursuant to section 102(14) will dispose of this application without a hearing. The Board will grant a request to conduct a hearing if the hearing will serve some useful purpose. In view of the reply filed and the statements therein we are of the view that a hearing into this application will not serve any useful purpose and will unduly delay the certification application. In circumstances such as these labour relations delayed is indeed labour relations denied. (Journal Publishing Co. of Ottawa Ltd. et al v. Ottawa Newspaper Guild, Local 205, OLRB et al. March 31, 1977 (Ont. C.A.) unreported).
The respondent requests a hearing because it is "not engaged actively in [the] construction industry. "Its description of the specific nature of its business affected by the application as "site preparation" and its description of the work performed by employees as "manual labour" and "dewatering construction site" however are clearly construction activities. (See section 1(1 )(f)).
Where a person operates a business in the construction industry, even if that business is only a small part of the person's business activities, and the person employs "employees" within the meaning of section 117(b) of the Act to perform the work of that construction part of the business, a trade union is entitled to be certified pursuant to the construction industry provisions of the Act for the employees engaged in the construction part of the business. In this regard, we agree with the statements of the Board in Ridsdale Steel Fabricators, [1987] OLRB Rep. April 601 at paragraph 10 where it states:
- Clauses (b) and (c) of section 117 of the Labour Relations Act define "employee" and "employer" in the construction industry as follows:
(b) "employee" includes an employee engaged in whole or in part in off-site work but who is commonly associated in his work or bargaining unit with on-site employees;
(c) "employer" means a person who operates a business in the construction industry, and for purposes of an application for accreditation means an employer for whose employees a trade union or council of trade unions affected by the application has bargaining rights in a particular geographic area and sector or areas or sectors or parts thereof;
Nowhere in the Act is it stipulated that a person must operate a business that is engaged solely or even primarily in the construction industry in order for that person to be an employer in the construction industry. Nor has the Board required that a person's business be operated solely or primarily in the construction industry in order for that person to be an employer in the construction (see, The Board of Education for the City of Windsor, [1983] OLRB Rep. May 831 and the Board decisions cited therein at paragraph 10). Similarly, there is no requirement that an employee perform a majority or any of his work on a construction site in order to be an employee in the construction industry. It is sufficient for an employee to be "commonly associated in his work or bargaining with on-site employees". Consequently, it is not correct, in our view, to say that an employer engaged in construction and non-construction activities with the same work force cannot be an employer in the construction industry.
The fact that the respondent is not "actively" engaged in the construction industry therefore does not warrant the holding of a hearing and/or a dismissal of this application where, as here, the respondent admits in paragraphs 3 and 4 of its reply that, at the relevant time it was engaged in construction activities. The factual admissions contained in paragraphs 3 and 4 of the reply render it unnecessary to conduct a hearing to determine if the respondent is an employer within the construction industry. In its reply the respondent admits it is.
Finally, the fact that the construction work is performed on behalf of others, or that the project is of short duration or will soon be completed are irrelevant reasons and do not warrant that the Board conduct a hearing. An applicant's right to certification is determined on the basis of the membership support it demonstrates among the employees in the bargaining unit at work on the date of application. (See among others Gilvesy Enterprises Inc., [1987] OLRB Rep. Feb. 220; E & E Seegmiller Limited, [1987] OLRB Rep. Jan. 41).
The Board is satisfied on the basis of all the evidence before it that more than fifty-five per cent of the employees of the respondent in the bargaining unit, at the time the application was made, were members of one or other of the constituent trade unions of the applicant and therefore, pursuant to section 10(3) of the Labour Relations Act, are deemed to be members of the applicant on March 14, 1990, 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 said Act.
Section 144(2) of the Act, which states in part as follows, provides for the issuance of more than one certificate if the applicant has the requisite membership support:
…..the Board shall certify the trade unions as the bargaining agent of the employees in the bargaining unit and in so doing shall issue a certificate confined to the industrial, commercial and institutional sector and issue another certificate in relation to all other sectors in the appropriate geographic area or areas.
[emphasis added]
Therefore, 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 6 above in respect 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, save and except non-working foremen and persons above the rank of non-working foreman.
- Further, pursuant to section 144(2) of the Act, a certificate will issue to the applicant trade union in respect of all construction labourers in the employ of the respondent in all sectors of the construction industry in the Township of South Himsworth and the surrounding Townships of Chisholm, Nipissing, Machar, North Himsworth, Laurier and Ballantyne, excluding the industrial, commercial and institutional sector, save and except non-working foremen and persons above the rank of non-working foreman.