International Brotherhood of Electrical Workers, Local 120 v. Al Gordon Electric Limited, 1990 CanLII 5806

[1990] OLRB Rep. June 637

1954-89-R; 2071-89-U International Brotherhood of Electrical Workers, Local 120, Applicant v. Al Gordon Electric Limited, Respondent v. Group of Employ­ees, Objectors; International Brotherhood of Electrical Workers, Local 120, Applicant v. Al Gordon Electric Limited, Respondent

BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members W. N. Fraser and C. A. Ballen­tine.

APPEARANCES: Bernard Fishbein and Don Thompson for the applicant; Bruce Binning and Al Gordon for the respondent; Paul Brooks for the objectors.

DECISION OF THE BOARD; June 20, 1990

1. Board File No. 1954-89-R is an application for certification. Board File No. 2071-89-U

is a complaint under section 89 of the Labour Relations Act. The matters are related and came on for hearing together.

2. 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 on December 12, 1977, the designated employee bar­gaining agency is the International Brotherhood of Electrical Workers and the IBEW Construction Council of Ontario.

3. The application for certification herein is one within the meaning of section 119 of the Act and is made pursuant to section 144(1).

4. There appears to be no dispute with respect to the manner in which the bargaining unit with respect to which this application is made should be described. Accordingly, and having regard to the provisions of section 144(1) of the Act, the finds that all electricians and all electricians' apprentices in the employ of the respondent in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and all electricians and electricians' appren­tices in the employ of the respondent in all other sectors of the construction industry in the Coun­ties of Oxford, Perth, Huron, Middlesex, Bruce, and Elgin, 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.

5. The application was mailed to the Board by registered mail on Sunday, November 5,

1989 and is, pursuant to section 113(2) of the Act and section 75(1) of the Board's Rules of Proce­dure, deemed to have been filed on that date. (It appears that the applicant found a convenience store which operates a postal facility which accepts and registers mail on Sundays.)

6. Counsel for the respondent expressed some concern with respect to the Sunday filing but was unable to point to anything which would prohibit an application for certification from being filed on a Sunday. Nor are we aware of anything which would either prohibit such a filing or deem it to have been made on some other day. On the contrary, section 113(2) of the Act stipu­lates that: "An application for certification... if sent by registered mail... shall be deemed to have been made on the date on which it was so mailed." Accordingly the Board has no discretion to find that any date other than November 5, 1989 is the date of application in this case.

7. The respondent, supported by the group of employees, objectors, strenuously argues that, in these circumstances, the Board should depart from its general practice in applications for certification in the construction industry of determining the applicant's right to be certified on the basis of the level of membership support for the applicant among only those employees in the bar­gaining unit on the date of application.

8. For the purposes of argument, the parties filed an agreed statement of fact with respect to this issue. The following pertinent facts are agreed:

(a) The respondent is an electrical contractor located in London which had obtained con­tracts to perform electrical contracting work at fifteen different sites as of November 5, 1989, the application date herein.

(b) The respondent's employees do not normally work on Saturdays or Sundays. and Sunday, November 5, 1989 was not a normal work day for them. The six employees of the respondent who were performing bargaining unit work on November 5, 1989 are listed on schedule A to the agreement of the parties. They were performing scheduled overtime work.

(c) There are sixty-four persons listed in schedule D to the agreement. On Friday, November 3, 1989, the last normal or regular work day for the respondent's employ­ees prior to November 5, 1989, the vast majority of the persons listed in schedules A and D were employed by the respondent performing bargaining unit work. An unspe­cified number of them worked overtime on Saturday, November 4, 1989 as well.

(d) The vast majority of the persons on schedules A and D were also employed by the respondent performing bargaining unit work on Monday, November 6, 1989.

(e) The respondent has a large, relatively stable, work force. The applicant does not dis­pute that that work force has consisted of approximately sixty journeymen or appren­tice electricians over the last three to four years, or that approximately one half of the persons listed in schedule D have been employed by the respondent for over two years, and approximately three quarters of them for over one year.

9. Counsel for the respondent submitted that the only difference in the Labour Relations Act between construction and non-construction applications for certification is that the Board need not, pursuant to section 119(2), have regard to any increase in the number of employees in the bar­gaining unit after the application was made for the purposes of its considerations under section 7 of the Act. Counsel questions the jurisdiction of the Board to apply different standards to construc­tion and non-construction applications for certification except with respect to the matter addressed by section 119(2). Supported by counsel for the objectors, he argues that it would be a travesty, and contrary to the representation principle which underlies the Labour Relations Act for the Board to restrict itself to the date of application for purposes of making the necessary section 7 determinations in the circumstances of this application. He referred the Board to Industrial-Mine Installations Limited, [1968] OLRB Rep. May 217; J. G. Fitzpatrick Construction Ltd., [1972] OLRB Rep. May 485, and Colibri Construction Inc., [1986] OLRB Rep. July 931. Counsel sug­gested that the Board would be improperly fettering its discretion if it followed its general practice in construction applications without regard to the circumstances of this case.

10. Counsel for the respondent also seemed to suggest that it would be inappropriate to proceed with the application in accordance with the Board's general practice in construction appli­cations for certification because this would result in the applicant being certified and lead to the respondent being unable to continue to compete in a considerable "non-union" market. In our view, there is no basis for this argument. The economic impact that unionization may have on any­one is not a consideration which is relevant in an application for certification.

11. Counsel for the applicant pointed out that there is nothing improper about the manner in which the union has proceeded. He referred the Board to Smiths Construction Company, [1984] OLRB Rep. March 521; Galil Electric Company Ltd., [1986] OLRB Rep. July 959; E & E Seeg­miller Limited, [1987] OLRB Rep. Jan. 41; Gilvesy Enterprises Inc., [1987] OLRB Rep. Feb. 220; Cornwall Gravel Company Limited, [1984] OLRB Rep. Dec. 1693; Grove Drain Company Limited, [1978] OLRB Rep. Nov. 994; M & L Roofing Ltd., Board File No. 1242-78-R, January 8, 1979, unreported; Thomas Fuller Construction (1958) Limited, [1967] OLRB Rep. June 305; Keystone Contractors Limited, [1966] OLRB Rep. Feb. 821; and Welcon Limited, [1965] OLRB Rep. March 627. Counsel argued that the Board's practice favoured no one and could, as he sub­mitted the cases he had cited illustrated, operate for or against an applicant for certification in any given case. Counsel asked rhetorically what would happen if there were more persons employed performing bargaining unit than usual? How many employees more or less would be sufficiently more or less for the Board to depart from its general practices?

12. In Smiths Construction Company, supra, the Board reviewed its general practice of con­sidering only those persons employed in the bargaining unit on the date of application for purposes of making the necessary determinations under section 7 of the Act as follows:

13. The Act requires the Board to ascertain the number of employees in the bargaining unit at the time the application was made. There are no legislated criteria to guide the Board in this task, but, of course, there is really no difficulty in respect of those individuals both employed and working on the application date. The problem arises in respect of individuals who may, in some sense, be considered "employees" but who may not have been at work on the application date and may not return to work for some time thereafter, if at all. Employees on sick leave, maternity leave, long-term disability, workers' compensation, or layoff may fall into this latter category, as do the employees of a firm with a work force which fluctuates from day to day.

14. The construction industry poses special problems. Employment is necessarily transitory. Employees are quite literally "here today and gone tomorrow". A construction project is completed in phases, so on any given day the mix of tradesmen on a site may be different. More­over, there are always the exigencies of the market, collective bargaining difficulties, the weather, and the proverbial "snafu". Collective bargaining problems, jurisdictional disputes, controlled subcontracting arrangements, the availability of financing, and the dispersement of mortgage monies will effect the level of employment in any given trade at any particular time. So will the weather. A period of intense cold or rain will interfere with construction work and reduce the number of employees on the site until weather conditions improve. Likewise, bottle­necks, problems, or the possibility of missing a time limit or deadline may require the employ­ment of more tradesmen to resolve the difficulties or get the project back "on the rails" even though such employment may only be on a short-term basis. For all of these reasons an employ­er's complement of employees may vary markedly from day to day so that, in the construction industry, it is very difficult to pin down with any precision those individuals who should be treated unequivocally as "employees" for the purposes of the Labour Relations Act. That is why, in the construction industry, the Board need not have regard for any increase in the employer's work force after the application for certification. And, of course, this inevitable fluctuation in the employee complement underlines the importance of the expeditious resolution of applications for certification. If there is any significant delay there will be a real possibility that any certificate ultimately issued will affect employees who were not even there when the application for certification was made. The union's support will have evaporated and bargaining rights will be largely academic. This possibility also exists in manufacturing enterprises but is minimized by the relative stability of employment over the time frame when a certification application is likely to be before the Board. Such is not the case in the construction industry.

15. To cope with these special problems in the construction industry, the Board has developed a particular rule of thumb as to the way in which it should ascertain the number of employees in the bargaining unit at the time the application was made. The Board determines the employee complement to be that which exists on the application date - fully realizing that the number may well be different the day before, or the day after and that, for example, if the application date is a rainy day, the union may find that its members are not at work so that its application may be dismissed. This "rule of thumb" has been accepted and applied by unions and employers in the construction industry for thirty years - and for a very practical reason: anything else would lead to costly and time-consuming litigation on every certification application causing delay which would severely prejudice the establishment of bargaining rights purportedly guaranteed by the statute. If time is of the essence generally in labour relations, that maxim is particularly true in the construction industry. That is why the Act expressly empowers the Board to issue certifi­cates without a hearing where it considers it advisable to do so, and, as we have already noted, the Board need not have regard for a build-up of the work force after the application is made. Technically, a union may conclude a collective agreement even though there are no employees at the time it is entered into (see section 121), although as a practical matter, if there are no employees, there may be no bargaining leverage to induce an employer to do so.

[emphasis supplied]

(See also City Plumbing (Kitchener) Limited, [1987] OLRB Rep. June 810 at paragraph 6; Cornwall Gravel Company Limited, supra, at paragraph 8; Colibri Construction Inc., supra). In construction industry applications for certification, the Board has only very rarely departed from this practice of considering only the employees of the respondent employer who were at work on the date of application. M & L Roofing Ltd., supra, Welcon Limited, supra, Keystone Contractors Limited, supra, and Thomas Fuller Construction (1958) Limited, supra, are examples (though far from the only ones) of applications for certification in the construction industry which have been dismissed because there were fewer than two employees in the bargaining unit (as required by sec­tion 6(1) of the Act) on the date of application because of inclement weather and notwithstanding that there were more than two such employees immediately before and after the date of applica­tion.

13. In contrast, in non-construction applications for certification, the Board's general prac­tice is to include all employees who are either at work in the bargaining unit on the date of applica­tion, or, who, though not at work on the date of application, had worked at least one day in the thirty day period prior to the application and worked or are expected to work in the bargaining unit during at least one day within the thirty day period following the date of application for pur­poses of its section 7 considerations (i.e. to "30-30" rule). There is also the well known "seven week rule" which is used by the Board to distinguish between full-time and part-time employees where that is an issue (see generally Sack, Jeffrey, Q.C. and Michael Mitchell, Ontario Labour Relations Board Law and Practice, (Butterworths, Toronto, 1985) at pages 122 to 123 and 155 to 159).

14. Because the construction industry tends to be very craft or trade oriented and bargain­ing units in it are generally described as craft or trade units, the Board has also focused, particu­larly in recent years, on the date of application for the purposes of determining the trade in which employees of a respondent employer were working on the date of application. In Gilvesy Enter­prises Inc., supra, at paragraph 16, the Board reviewed its practice prior to 1987 in that respect:

15. In applications for certification in the construction industry, a person must be at work on the date of application in order to be included in the bargaining unit for purposes of "the count" (see for example, Smiths Construction Company Arnprior Limited, [1984] OLRB Rep. March 521). In addition, an individual must be doing bargaining unit work in order to be included in it. In the past, the Board has determined whether an employee is in the bargaining unit by looking at the work that an employee did during the majority of the time on the date of application (see for example O.J. Gaffney Limited, [1964] OLRB Rep. Aug. 233; McNamara Construction of Ontario Limited, [1964] OLRB Rep. Dec. 419; Nedean Forming Company Limited, [1965] OLRB Rep. May 100; Clairson Construction Company Limited, [1968] OLRB Rep. Apr. 126; Deer-Mine Services Limited, [1971] OLRB Rep. June 336; George and Asmu.ssen Limited, [1971] OLRB Rep. Oct. 683). Even when an employee was doing the work of one classification or craft on the date of application but has previously been engaged in doing the work of several trades or crafts but at the same wage rate, the Board has long been willing to examine a repre­sentative period of time prior to the date of application to ascertain what work an individual spends the majority of his time doing and whether or not he/she is properly included in the bar­gaining unit. (See for example, Johnson-Kei wit Subway Corporation, [1966] OLRB Rep. June 182; Mal-Nicholson Limited, [1970] OLRB Rep. March 1448; Heath Construction Inc., [1977] OLRB Rep. Oct. 691; Watcon Inc., [1981] OLRB Rep. Dec. 1840; Des-Build Development Limited, [1983] OLRB Rep. Nov. 1793; Dufresne Piling Co. (1967) Ltd., [1984] OLRB Rep. July 924; Di Marco Plumbing & Heating Company Limited, [1985] OLRB Rep. May 659). It is evident from the decided cases that the "representative period" will vary in length according to the circumstances. For example, the Board has looked at periods of ten days (Heath Construc­tion Inc., supra); fifteen days (J. M. Chartrand Realty Ltd., [1978] OLRB Rep. May 423), two weeks (Di Marco Plumbing & Heating, supra) and one month (Des-Build Developments Ltd., supra). It has also be suggested that the Board may look to the primary reason for which the employee was hired to determine his classification (Pre-Con Murray, [1965] OLRB Rep. Jan. 1003) although this test has only been applied in limited circumstances where the evidence of what the employee was doing prior to and on the date of application was inconclusive of the issue. (See, Des-Build Development Limited, supra and Dufresne Piling Co. (1967) Ltd. , supra).

(See also E & E Seegmiller Limited, supra, at paragraph 12). At paragraph 21, the Board went on to conclude that:

21. In making our determination, we consider the work performed by the persons whose status was in dispute in these proceedings both on the date of application and during a period prior to that date. However, it appears to us that recourse to a "representative period" has made the certification process in the construction industry less consistent, certain, and expeditious than it might be. The use of any such period is inconsistent with the requirement that a person be both employed by the respondent and at work on the date of application. The very nature of a "rep­resentative period" is such that its length will vary according to the circumstances of the particu­lar application and creates uncertainty. Looking to a "representative period" overlooks the fact that once a trade union has been certified as bargaining agent for a bargaining unit of employees of an employer in the construction industry, any collective agreement to which that employer becomes bound, whether a provincial agreement or not, will apply to persons doing the work covered by that agreement. Consequently, whether or not an employee is covered by a particu­lar collective agreement and represented by a particular bargaining agent depends on the work that s/he is doing at the time and is in no way dependent upon the work that s/he performed dur­ing any previous period. Further, the use of a "representative period" has tended to result in protracted and expensive proceedings before the Board. Because it is important that the Board's policies and tests be consistent and create, as certain, equitable, and expeditious a means as possible for ascertaining which persons are in a bargaining unit, and having regard to the nature of applications for certification in the construction industry, we take the view that the Board should eliminate its use of a "representative period" and restrict itself to the following criteria:

(a) whether the person was employed by the respondent and at work on the date of application; and

(b) if so, the work that that person spent the majority of his time doing on the date of application; or

(c) where there is no conclusive evidence with respect to the work that the employee performed on the date of application, any other relevant factor, including the primary reason for hire.

(See also E & E Seegmiller Limited, supra, at paragraph 17). Since then, the Board has consis­tently applied the tests suggested at paragraph 21 of Gilvesy Enterprises Inc., supra, and at para­graph 17 of E & E Seegmiller Limited, supra. (See Wraymar Construction and Rental Sales Ltd., [1989] OLRB Rep. June 682, among others).

15. Section 102(13) of the Act specifies that the Board is the master of its own practices and procedures, though of course this is subject to the specifics of any applicable legislation and the requirements of natural justice and fairness. As illustrated above, the Board has developed a num­ber of practices (or policies or "rules of thumb") which it uses in certification proceedings. These have been developed over time with a view to decreasing repetitious or fruitless, but often lengthy and expensive litigation before the Board. In fashioning these practices in certification proceed­ings, the Board strives to create as certain, fair, and expeditious a means as possible for making the determinations necessary in such matters. Through its practices, the Board tries to be responsive to the real world of labour relations. There will of course be limits or exceptions to every practice. Indeed, blind adherence to a practice or policy set in advance may constitute jurisdictional error (see, for example, Re: Testa and Worker's Compensation Board of British Columbia, (1989) 1989 CanLII 2727 (BC CA), 58 D.L.R. 676 (B.C. Court of Appeal) at pages 685 to 687). On the other hand, it would do nothing to further harmonious labour relations in this province to abandon practices which have evolved over and stood the test of time in thousands of applications for certification without some compel­ling reason(s) to do so. On the contrary, to approach them differently would make them less than practices and would create undesirable uncertainty. It would also tend to encourage unnecessary litigation and involve the Board in the fruitless exercise of constantly reinventing the labour rela­tions wheel. In short, there is a balance to be struck. Although the Board should not abandon tried and true practices, it must be willing to examine their applicability in the circumstances of particu­lar cases.

16. Colibri Construction Inc., supra, was a construction industry application for certification in which the Board demonstrated its willingness to consider the applicability of its general practices of not taking into account an expected increase in the number of employees and of focusing on the date of application for the purposes of ascertaining the number of employees in the bargaining unit, although it declined to depart from those practices in the circumstances of that case.

17. J. G. Fitzpatrick Construction Ltd., supra, was also a "build up" case. There the Board found it appropriate to consider the increase in the number of employees in the bargaining unit after the application for certification had been made (as it had the discretion to do under what is now section 119(2) of the Act) and, in the circumstances, exercised its discretion, under what is now section 7(2), to order a representation vote notwithstanding that the applicant had filed mem­bership evidence with respect to all four employees in the bargaining unit on the date of applica­tion.

18. In Industrial-Mine Installations Limited, supra, the applicant filed membership evidence with respect to twenty-one of the respondent's twenty-four employees who were performing bar­gaining unit work on the date of application. However the Board considered the fact that those twenty-four employees had been hired on a temporary basis to fill in for the respondent's regular work force of over forty employees who were not at work because of a regularly scheduled Christ­mas shut down. In those circumstances, the Board (by majority of decision) concluded that:

19. This last class of case has given us some concern in the present situation. After much anxious consideration, however, we have come to the conclusion that in the present case we ought to take into account the peculiar circumstances which here obtain, namely, the existence of a rea­sonably permanent (for the construction industry) work force, together with the shut-down, the reasons therefor and the fact that it is an occurrence which happens yearly with this particular respondent. In other words, the representation principle must in this case take precedence over the short-term employment features of the construction industry. Viewed in another way, if this is to be regarded as a case involving build-up, then, in our opinion, the peculiar circumstances of this case make it one in which regard should be had to an increase in the number of employees in the bargaining unit after the application was made. It may well be that the construction industry division will have to review its policy of dismissing applications in circumstances where, because of the weather or some other unusual occurrence, there are no employees in the bargaining unit on the date of the making of the application.

20. In reaching the above conclusions, we have not overlooked the argument that our decision might introduce a certain element of doubt in an otherwise straight-forward policy and that this in turn may on occasion lead to delay in the disposition of some applications for certification in the construction industry. In our view, however, such considerations must give way in a proper case such as the present where, because of the peculiar and unique circumstances, an inflexible application of a policy would produce an obviously inequitable result.

[emphasis added]

19. In neither J. G. Fitzpatrick Construction Ltd., supra, nor Industrial-Mine Installations Inc., supra, did the Board depart from its practice of focusing on the date of application for the purposes of making the determinations under what is now section 7 of the Act. While this does not mean that it would never be appropriate to do so, it does demonstrate that the Board's response in cases in which it is satisfied that the circumstances are such that a strict application of the date of application "rule of thumb" would lead to an inequitable result will generally, and quite appropri­ately in our view, be to direct the taking of a representation vote even if the applicant trade union has filed evidence of membership with respect to more than fifty-five per cent of the persons who were employees in the bargaining unit on that date.

20. In our view, there are legitimate reasons for having practices or policies in the construc­tion industry that are different from those for non-construction matters. The differences between construction and non-construction situations have been recognized in the Labour Relations Act itself. Sections 117 to 151 of the Act apply only to the construction industry, including a separate certification scheme and a different collective bargaining scheme, particularly in the industrial, commercial and institutional sector of the construction industry. The Board's Rules of Procedure also establish a different process for dealing with construction matters. The Board, as the jurispru­dence cited above illustrates, also recognizes the practical differences between a construction industry and other industries (in that regard see also Shearwall Forming (East) Ltd., [1989] OLRB Rep. Dec. 1254 and Ellis Don Limited, [1988] OLRB Rep. Dec. 1254 and [1989] OLRB Rep. March 234). In our view, there is nothing to prevent the Board from developing different practices for different types of cases. Indeed, it would be inappropriate to do otherwise.

21. We are not persuaded that the Board should depart from its practice of focusing on the date of application for the purposes of ascertaining the number and identity of employees in the bargaining unit in the circumstances of this application. Because the applicant has not filed mem­bership evidence with respect to more than fifty-five per cent of the employees in the bargaining unit at the time the application was made (for those purposes we assume that schedule A to the agreement of the parties referenced in paragraph 8 above is an accurate list of employees in that respect), the applicant would at best, in the absence of its request for relief under section 8 of the Act, be entitled to a representation vote. In all the circumstances, particularly the applicant's alle­gations that the respondent has contravened the Act in a manner such that the true wishes of the employees cannot be ascertained and that it should therefore be certified pursuant to section 8, we find it inappropriate to either comment on or make any determination with respect to whether or not a vote should be taken until we have had the benefit of the evidence and representations of the parties with respect to all matters in issue in the application.

22. The Registrar is directed to schedule this matter for hearing as soon as possible. To assist the Registrar in that respect, the Board finds it appropriate to direct the parties to provide her with their estimate of the number of days the hearing will take and their available dates for hearing to the end of December 1990 within 14 days of the date hereof. If the parties, or any of them, fail to provide that information as directed, the Registrar may schedule the application to be heard on such dates as she considers appropriate and without any further consultation with the par­ties.