Carpenters & Allied Workers Local 27 United Brotherhood of Carpenters and Joiners of America v. Aspen Aluminum Ltd., 1991 CanLII 5996

[1991] OLRB Rep. October 1253

1387-91-R Carpenters & Allied Workers Local 27 United Brotherhood of Carpen­ters and Joiners of America, Applicant v. Aspen Aluminum Ltd., Respondent

BEFORE: Robert D. Howe, Vice-Chair, and Board Members D. A. MacDonald and N. A. Wil­son.

APPEARANCES: J. David Watson, Mike McCreary and Joe Almeida for the applicant; Scott G. Thompson and Mila Foerster for the respondent.

DECISION OF THE BOARD; November 22, 1991

1. In a decision dated October 11, 1991, the Board wrote, in part, as follows regarding this application for certification:

2. The respondent initially disputed the applicant's status as a trade union. However, after being advised that the Board had previously found the applicant to be a trade union, respondent's counsel indicated that he would not be pursuing that issue. Accordingly, having regard to the provisions of section 105 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 Act.

3. After hearing and recessing to consider submissions regarding the respondent's contention that this application is barred by an agreement that was entered into by the parties on March 29, 1989, the Board ruled as follows:

A majority consisting of [the Vice-Chain and Board Member Wilson have concluded that this application is not barred by the agreement dated March 29, 1989, which has been entered as Exhibit 1 in these proceedings. Board Member MacDonald has reserved his decision on this matter. Our reasons for this ruling will issue at a later date.

2. The purpose of this decision is to provide the Board's reasons for that ruling, which has become unanimous as a result of Board Member MacDonald's concurrence. For ease of exposi­tion, the persons whom the applicant seeks to represent are referred to herein as "employees". However, neither our use of that terminology nor anything else in this decision should be taken as expressing any view on the matter of whether those persons are actually employees for purposes of the Labour Relations Act (as contended by the applicant) or independent contractors (as con­tended by the respondent). That issue remains outstanding, and is not addressed by this decision.

3. On February 20, 1989, the applicant applied for certification in respect of a bargaining unit substantially similar to the unit for which it seeks certification in the present proceedings. (For ease of reference, the applicant and the respondent are also referred to as the "Union" and the "Company" in this decision.) By decision dated March 15, 1989 regarding that earlier application' (File No. 2883-88-R), the Board directed that a pre-hearing representation vote be taken. Shortly

before the date on which that vote was to be conducted, the parties entered into settlement discus­sions, which resulted in the following agreement (hereinafter referred to as the "Agreement") being signed by representatives of the parties on March 29, 1989:

THIS AGREEMENT dated the 29th day of March, 1989.

BETWEEN:

ASPEN ALUMINUM LTD.

("Aspen")

• and -

UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA LOCAL UNION 27

(the "Union")

Aspen and the Union mutually agree as follows:

1. The Union agrees to request the leave of the Ontario Labour Relations Board to withdraw its application for certification forming the subject matter of Board File #2883-88-R and request the Board to cancel the representation vote scheduled to take place on March 30, 1989.

2. Aspen agrees that the Union is entitled to act for and recognizes the Union as the exclusive bargaining agent for aluminum siding installers of Aspen who are either employees or depen­dent contractors, save and except non-working supervisors and persons above the rank of non-working supervisor in other than the I.C.I. sector in Board Area #8; on the following condi­tions:

(a) Aspen and the Union agree not to commence negotiations to make a collective agree­ment or request the appointment of a conciliation officer or mediator or conciliation board until such time as all of the competitors of Aspen listed in the attached Sched­ule "A" have been certified or have voluntarily recognized the Union;

(b) Aspen and the Union agree that any collective agreement negotiated in the future will not be retroactive and will provide that monetary increases contained in the collective agreement will not apply to work to be performed by aluminum siding installers on contracts between Aspen and any owner or builder which have been agreed to on or before the effective commencement date of the collective agreement until ninety (90) days after the commencement of the collective agreement; and

(c) any collective agreement negotiated in the future will recognize the uniqueness of the aluminum siding industry and contain terms and conditions suitable to that industry; and

(d) for the purpose of clarity, Aspen and the Union agree that aluminum siding installers do not include up to four (4) employees or dependent contractors who service alumi­num siding that has already been installed.

Schedule "A" to the Agreement contains the following five names:

March Aluminum Ltd.

Dominion Sheet Metal & Roofing Works

Manville Aluminum

Canadian Star Aluminum

Hanwell Contracting & Building Products

4. It is common ground between the parties that some of the Company's competitors listed in Schedule "A" to the Agreement have not been certified and have not voluntarily recognized the Union. It is also common ground that there have been no negotiations to make a collective agree­ment between the Union and the Company, and that there has been no request for the appoint­ment of a conciliation officer, mediator, or conciliation board.

5. It is the contention of Company counsel that the instant application is barred by the Agreement. He submits, in essence, that the Agreement is a (voluntary) recognition agreement of the type contemplated by sections 16(3) and 5(3) of the Act, and that the latter provision precludes the Union from applying for certification. It is his position that once a trade union has entered into a recognition agreement in respect of a bargaining unit, it can never apply for certification as bar­gaining agent for any of the employees in the bargaining unit defined in the recognition agreement because section 5(3) only permits "another trade union" to make such application (after the expi­ration of one year from the date that the recognition agreement was entered into).

6. Counsel for the Union, on the other hand, submits that his client is entitled to bring this application by virtue of section 5(1) of the Act. It is his contention that although section 5(3) limits the broad language of section 5(1) to the extent of precluding another trade union from applying for certification as bargaining agent for any of the employees in the bargaining unit defined in the recognition agreement within a year from the date that the recognition agreement was entered into, nothing in section 5(3) precludes the trade union that has entered into a recognition agree­ment from applying for certification during that first year or at any other time.

7. Counsel also made extensive submissions concerning whether or not the Agreement should be found to be a recognition agreement in view of its conditional nature, and concerning whether or not the applicant has abandoned its rights under the Agreement. However, the Board has found it to be unnecessary to address those issues in view of the conclusion that we have reached regarding the interpretation of section 5 of the Act. Thus, for purposes of this decision, we have assumed, without deciding, that the Agreement is a valid recognition agreement, and that there has been no abandonment by the Union.

8. Section 5 of the Act provides as follows:

5.-(1) Where no trade union has been certified as bargaining agent of the employees of an employer in a unit that a trade union claims to be appropriate for collective bargaining and the employees in the unit are not bound by a collective agreement, a trade union may, subject to section 61, apply at any time to the Board for certification as bargaining agent of the employees in the unit.

(2) Where a trade union has been certified as bargaining agent of the employees of an employer in a bargaining unit and has not entered into a collective agreement with the employer and no declaration has been made by the Board that the trade union no longer represents the employ­ees in the bargaining unit, another trade union may, subject to section 61, apply to the Board for certification as bargaining agent of any of the employees in the bargaining unit determined in the certificate only after the expiration of one year from the date of the certificate.

(3) Where an employer and a trade union agree that the employer recognizes the trade union as the exclusive bargaining agent of the employees in a defined bargaining unit and the agreement is in writing signed by the parties and the parties have not entered into a collective agreement and the Board has not made a declaration under section 60, another trade union may, subject to section 61, apply to the Board for certification as bargaining agent of any of the employees in the bargaining unit defined in the recognition agreement only after the expiration of one year from the date that the recognition agreement was entered into.

(4) Where a collective agreement is for a term of not more than three years, a trade union may, subject to section 61, apply to the Board for certification as bargaining agent of any of the employees in the bargaining unit defined in the agreement only after the commencement of the last two months of its operation.

(5) Where a collective agreement is for a term of more than three years, a trade union may, sub­ject to section 61, apply to the Board for certification as bargaining agent of any of the employ­ees in the bargaining unit defined in the agreement only after the commencement of the thirty-fifth month of its operation and before the commencement of the thirty-seventh month of its operation and during the two-month period immediately preceding the end of each year that the agreement continues to operate thereafter or after the commencement of the last two months of its operation as the case may be.

(6) Where a collective agreement referred to in subsection (4) or (5) provides that it will con­tinue to operate for a further term or successive terms if either party fails to give to the other notice of termination or of its desire to bargain with a view to the renewal, with or without mod­ifications, of the agreement or to the making of a new agreement, a trade union may, subject to section 61, apply to the Board for certification as bargaining agent of any of the employees in the bargaining unit defined in the agreement during the further term or successive terms only during the last two months of each year that it so continues to operate, or after the commence­ment of the last two months of its operation, as the case may be.

9. Under subsection (1) of that provision, a trade union is permitted, subject to section 61 of the Act, to apply to the Board at any time for certification as bargaining agent of the employees of an employer in a unit that the trade union claims to be appropriate for collective bargaining, where no trade union has been certified as bargaining agent of the employees in that unit and the employees in that unit are not bound by a collective agreement. Section 61, which precludes a cer­tification application from being brought within certain specified periods following conciliation (and mediation), has no application in the circumstances of the instant case because there has been no appointment of a conciliation officer or a mediator. Section 5(2) is also inapplicable as no trade union has been certified as bargaining agent for any of the employees in the bargaining unit for which the applicant seeks certification. Subsections (4), (5), and (6) are also inapplicable because the employees in the bargaining unit are not bound by a collective agreement. This leaves subsec­tion (3), which is the only part of section 5 that expressly addresses voluntary recognition. Although we recognize that section 5(1) is limited by section 5(3) in the context of a recognition agreement, we do not agree that the latter limits the former to the extent suggested by respon­dent's counsel. Where a trade union and an employer sign a recognition agreement in respect of a bargaining unit, section 5(3) precludes any other trade union from applying for certification as bar­gaining agent of any of the employees in that bargaining unit within one year from the date the rec­ognition agreement was entered into. (See, for example, J. C. Mime Const. Co. (Canada) Inc., [1979] OLRB Rep. March 220.) Thus, it gives the voluntarily recognized trade union a year in which to seek to obtain a collective agreement without risk of being displaced by another trade union (unless another trade union makes a successful application under section 60 of the Act and thereby obtains a declaration that the voluntarily recognized trade union was not entitled to repre­sent the employees in the bargaining unit at the time the recognition agreement was entered into). However, nothing in section 5(3) prevents the voluntarily recognized trade union from itself apply­ing for certification during (or after) that first year. Thus, unless the application is precluded by section 61 (where a conciliation officer or mediator has been appointed) or by subsections (4), (5), or (6) of section 5 (where the voluntarily recognized trade union has entered into a collective agreement), a trade union that has entered into a recognition agreement with an employer in respect of a defined bargaining unit is at liberty to apply to the Board for certification as bargaining agent for that unit.

10. That result not only flows clearly from the language of section 5 of the Act, but also makes "good labour relations sense" in the context of the Act read as a whole. While it might initially appear that a trade union which has obtained voluntary recognition would have no need for a certificate, a careful review of the Act discloses that voluntary recognition is not always equivalent to certification.

11. A voluntarily recognized trade union is susceptible to an application under section 60 for a period of one year. That section provides as follows:

60.-(1) Where an employer and a trade union that has not been certified as the bargaining agent for a bargaining unit of employees of the employer enter into a collective agreement, or a recog­nition agreement as provided for in subsection 16(3), the Board may, upon the application of any employee in the bargaining unit or of a trade union representing any employee in the bar­gaining unit, during the first year of the period of time that the first collective agreement between them is in operation or, if no collective agreement has been entered into, within one year from the signing of such recognition agreement, declare that the trade union was not, at the time the agreement was entered into, entitled to represent the employees in the bargaining unit.

(2) Before disposing of an application under subsection (1), the Board may make such inquiry, require the production of such evidence and the doing of such things, or hold such representa­tion votes, as it considers appropriate.

(3) On an application under subsection (1), the onus of establishing that the trade union was entitled to represent the employees in the bargaining unit at the time the agreement was entered into rests on the parties to the agreement.

(4) Upon the Board making a declaration under subsection (1), the trade union forthwith ceases to represent the employees in the defined bargaining unit in the recognition agreement or col­lective agreement and any collective agreement in operation between the trade union and the employer ceases to operate forthwith in respect of the employees affected by the application.

(See, for example, Pry-Con Construction Inc., [1988] OLRB Rep. July 698.)

12. In addition to being susceptible to a section 60 application, a voluntary recognized trade union which has not entered into a collective agreement with the employer has no right to give the employer written notice of its desire to bargain with a view to making a collective agreement. The right (and the obligation) to give such notice derives from section 14 of the Act, which provides:

Following certification, the trade union shall give the employer written notice of its desire to bar­gain with a view to making a collective agreement. [emphasis added]

Since it is the giving of that notice (or of renewal notice under section 53) that triggers the section 15 duty to "bargain in good faith and make every reasonable effort to make a collective agree­ment", a voluntarily recognized trade union which has not entered into a collective agreement does not fall within the scope of section 15 and, accordingly, cannot legally compel the employer to meet with it, nor to bargain in good faith and make every reasonable effort to make a collective agreement.

13. Moreover, unlike a certified trade union, a voluntarily recognized trade union which has not entered into a collective agreement does not have access as of right to conciliation. A certi­fied trade union's right to conciliation flows from section 16(1) of the Act, which provides:

Where notice has been given under section 14 or 53, the Minister, upon the request of either party, shall appoint a conciliation officer to confer with the parties and endeavour to affect a collective agreement. [emphasis added]

In contrast with that mandatory provision is the following discretionary provision which applies in the context of voluntary recognition:

16(3) Where an employer and a trade union agree that the employer recognizes the trade union as the exclusive bargaining agent of the employees in a defined bargaining unit and the agree­ment is in writing signed by the parties, the Minister may' upon the request of either party, appoint a conciliation officer to confer with the parties and endeavour to effect a collective agreement. [emphasis added]

Furthermore, if a voluntarily recognized trade union's request for conciliation is denied under sec­tion 16(3), it will be precluded from applying to the Board under section 40a for first agreement arbitration: see section 40a(1), which makes exhaustion of the conciliation process a condition precedent to such application.

14. As indicated by respondent's counsel in his thorough submissions, the Board has had occasion to dismiss certification applications where an applicant already has bargaining rights for the bargaining unit for which it seeks to be certified: see, for example, Beer Precast Concrete Limited, [1970] OLRB Rep. Nov. 844; C & T Reinforcing Steel Co. Ltd., [1969] OLRB Rep. Nov. 983; and Northern Electric Company Limited, 63 CLLC 1192. However, in each of those cases, the trade union's bargaining rights had been in existence for more than a year and were based upon a recognition clause contained in a collective agreement. In that context, we respectfully agree with the following reasoning from the Northern Electric case, which has been applied in subsequent cases:

Having regard to the fact that there is a subsisting bargaining relationship between the applicant and the respondent for the employees for whom the applicant now seeks to be certified as bar­gaining agent, and for the reasons for the decision of the Board in Loblaw Groceterias Company Limited, Hamilton, Ontario Case, (1944) D.L.S. 7-1115, the Board finds that no purpose would be served by processing this application further due to the fact that a certificate of the Board cannot add one iota of legality or sanctity to the bargaining relationship between the parties, nor can it add more status to the applicant as bargaining agent because in the circumstances of this case, the bargaining rights flowing from the collective agreement are of equal weight to the bar­gaining rights which would flow from a certificate of the Board for this applicant.

In view of these circumstances ... the Board is of the opinion that the applicant has failed to make a prima facie case for the remedy requested and the application is therefore dismissed.

[emphasis added]

However, for the reasons set forth above, that reasoning does not apply to a voluntarily recognized trade union which has not entered into a collective agreement with the employer.

15. For the foregoing reasons, we are unanimously of the view that this application falls within the purview of section 5(1) of the Labour Relations Act, and is not barred by the Agree­ment.