Labourers' International Union of North America, Ontario Provincial District Council v. Ben Bruinsma and Sons Limited, 1991 CanLII 5998

Labourers' International Union of North America, Ontario Provincial District Council v. Ben Bruinsma and Sons Limited

[1991] OLRB Rep. November 1260

0333-91-R; 0785-91-U Labourers' International Union of North America, Ontario Provincial District Council, Applicant v. Ben Bruinsma and Sons Limited (Province of Ontario), Respondent v. Construction Workers Local 53, Christian Labour Association of Canada, Intervener; Labourers' International Union of North America, Ontario Provincial District Council and Labourers' International Union of North America, Local 625, Complainant v. Ben Bruinsma and Sons Limited, and Christian Labour Association of Canada, Construction Workers' Local 53, Respondents

BEFORE: S. Liang, Vice-Chair, and Board Members I. Lear and N. A. Wilson.

APPEARANCES: S. B. D. Wahl, R. Weiss and G. Varricchio for the applicant/complainant; Tom Dunne and David Milner for the respondent; Elizabeth Forster and Philip Prins for the intervener.

DECISION OF THE BOARD; November 8, 1991

1This is an application for certification in which the applicant has requested a pre-hearing vote. Following the vote, the applicant the Labourers' International Union of North America, Ontario Provincial District Council ("the Labourers") filed a complaint under section 89 of the Act alleging unfair labour practices, and seeking to rely on section 8 of the Act. The applicant also asserts section 48(a) of the Act.

2By decision dated May 22, 1991, the Board ordered the taking of the pre-hearing representation vote in the certification application, in the following constituency:

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 employees of the respondent in other than the industrial, commercial and institutional sector in the Province of Ontario, save and except non-working foremen, and persons above that rank.

3Following the vote on May 29, all matters arising under the certification application and the related complaint of unfair labour practices were set down for hearing together before the Board. When the parties appeared before this panel on October 22, 1991 the Board heard their submissions as to the appropriate manner in which to deal with the issues raised in these two files. On that day, the Board ruled that it would determine the issues in the certification application regarding the appropriate bargaining unit, list and voting constituency prior to determining the issues in the unfair labour practice complaint, which include the issues under sections 8 and 48(a). The Board proceeded to hear argument on October 22 regarding the appropriate bargaining unit and reserved its ruling.

4As the applicant is an affiliated bargaining agent, the following provisions of the Act apply to this application:

144.-(1) 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.

(3) Notwithstanding subsection 119(1), a trade union represented by an employee bargaining agency may bring an application for certification in relation to a unit of employees employed in all sectors of a geographic area other than the industrial, commercial and institutional sector and the unit shall be deemed to be a unit of employees appropriate for collective bargaining.

5The parties were content to base their submissions on this issue on documents submitted to the Board during the course of the application, without the need for evidence. Counsel for the intervener sought at one point to call evidence to dispute a statement made by counsel for the applicant as to certain events at the Pre-Hearing Vote Meeting. The Board declined to hear the evidence and in any event would not have found it helpful to its determination. The evidence related to the timing of the applicant's statement of intention to withdraw certain related applications for certification.

6The Labourers assert that the following constitutes the appropriate bargaining unit in its application for certification:

(a) all construction labourers in the employ of the respondent in the industrial, commercial and institutional sector in the Province of Ontario and all construction labourers in all other sectors in the Province of Ontario, save and except non-working foremen, and persons above the rank of non-working foreman; and

(b) all construction employees in the employ of the respondent in other than the industrial, commercial and institutional sector in the Province of Ontario, save and except construction labourers, non-working foremen, and persons above the rank of non-working foreman.

7The respondent, Ben Bruinsma and Sons Limited ("Bruinsma") and intervener Construction Workers Local 53, Christian Labour Association of Canada ("Local 53") assert that the applicant's position is an expansion of the bargaining originally sought. That bargaining unit, according to the respondent and intervener, is as follows:

(a) all construction employees in the employ of the respondent in other than the industrial, commercial and institutional sector in the Province of Ontario, save and except non-working foremen and persons above the rank of non-working foreman.

8Bruinsma and Local 53 take the position that the above is the bargaining unit for which the applicant sought certification, and to which it ought to be restricted. They take the position that this is an appropriate unit. All parties referred in their submissions to other related certification applications filed by the Labourers, and to the Pre-hearing Vote Meeting Report signed by the parties on May 15, 1991, and we find it useful at the outset to set out this context of the parties' submissions.

9On April 26, 1991, the Labourers filed 4 separate applications for certification with respect to Bruinsma. The four bargaining units sought in these applications were:

(a) Board File No. 0331-91-R: all construction labourers in the employ of the respondent in the industrial, commercial and institutional sector in 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 the Province of Ontario, save and except non-working foremen, and persons above that rank;

(b) Board File No. 0332-91-R: all construction labourers in the employ of the respondent in the industrial, commercial and institutional sector and all construction labourers in the employ of the respondent in all other sectors of the construction industry in the Counties of Essex and Kent, save and except non-working foremen, and persons above that rank.;

(c) Board File No. 0333-91-R: (as amended by the applicant's letter to the Board of April 30, 1991) all construction employees of the respondent in other than the industrial, commercial and institutional sector in the Province of Ontario, save and except non-working foremen and persons above that rank.

(d) Board File No. 0334-91-R: all construction employees in the employ of the respondent in all sectors of the construction industry in the Counties of Essex and Kent, save and except non-working foremen, persons above that rank and persons employed in the industrial, commercial and institutional sector of the construction industry.

10Notices were posted advising employees of all applications. Bruinsma filed a reply to each application. The position taken by Bruinsma in the replies was that all units sought by the applicant with the exception of that contained in Board File No. 0331-91-R, were inappropriate. Local 53 filed an intervention in each application, claiming pre-existing bargaining rights. In its interventions, Local 53 did not take a position with respect to the bargaining units sought. Both Bruinsma and Local 53 alleged that the filing of four applications was an abuse of process.

11As all applications requested a pre-hearing representation vote, a meeting with a Board Officer was directed by the Registrar for May 14. This meeting was ultimately adjourned to and held on May 15, 1991. By registered mail dated May 14, 1991 and received by the Board on May 15, the Labourers requested leave of the Board to withdraw the applications in Board File Nos. 0331-91-R, 0332-91-R and 0334-91-R. The meeting of May 15, 1991, therefore, result in a Pre-Hearing Vote Meeting Report with respect to Board File No. 0333-91-R only.

12At the meeting with the Board Officer on May 15, the parties failed to reach agreement on the appropriate bargaining unit. The Report sets out the units proposed by the applicant and respondent in the documents hitherto filed with the Board. Further, the positions of the parties on that date with respect to this issue are contained in Appendix "A" to the Officer's Report. This Appendix "A" is set out in full as follows:

APPENDIX "A"

Re: Appropriate B.U. Description/Voting Constit. #'s 10 & 11 of Report

1. Applicant Position

Takes the position that this is a displacement application in the construction industry and that they are seeking to displace all those employees covered by the current C.A. between the respondent and the incumbent as far as their designation allows.

2. Incumbent Position

Takes the position that the appropriate unit is that unit under sect. 144(1) of the Act and as such would be described as follows:

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 the Province of Ontario, save and except non-working foremen, and persons above the rank of non-working foreman.

The incumbent takes the position that the applicant should only be allowed to apply for the unit most closely resembling that of its unit in the current C. A. and as such the above unit is the most appropriate unit.

3. Respondent Position

Takes the same position as the incumbent.

13The parties also stated their positions as to the employee list for the purposes of determining the membership position of the Labourers as of the date of application (the "count list"). Further, the parties stated their positions as to the employee list as of the terminal date for the purposes of the vote (the "vote list").

14It is significant at this point to note that Local 53 sought to add 9 persons to the count list on the basis that they would properly be included should its position on the bargaining unit be correct. It is clear that Local 53 was asserting that these 9 persons were construction labourers working in the industrial, commercial and institutional ("Id") sector on the date of application. The Labourers took the position that these 9 persons "were performing ICI work and would therefore not be included in its proposed unit".

15As stated in paragraph 2, the Board ordered the taking of a representation vote, in a voting constituency which covered the broadest group of employees encompassed by the parties' positions. All the ballots were ordered segregated and the ballot box sealed pending a further direction from the Board or agreement of the parties.

16May 31, following the vote, counsel for Local 53 wrote to the Board stating:

We are writing to advise you that our client is withdrawing its challenge to the bargaining unit. For the purposes of the application, our client is prepared to acknowledge that the appropriate bargaining unit is that requested by the applicant, namely:

all construction employees of the respondent in other than the industrial, commercial and institutional sector in the Province of Ontario, save and except non-working foremen and persons above that rank.

17No further correspondence was received by the Board prior to this hearing regarding the issue of the appropriate bargaining unit, although a letter from the applicant dated June 6, 1991 states its position, among other things, as to the list of eligible voters.

18To complete the context of the parties' submissions, the collective agreement between Local 53 and Bruinsma, effective from January 1, 1989 until April 30, 1991, contains the following recognition clause:

2.01 The Employer recognizes the Union as the exclusive bargaining agent for all its employees in all sectors of the construction industry in the province of Ontario, other than:

a) employees having a supervisory or confidential capacity, or having authority to employ, discharge or discipline employees;

b) office and sales staff.

Submissions of the Parties

19Counsel for the Labourers asserts that the position taken by the Labourers on October 22, 1991 is the same as that taken at the meeting of May 15, namely that the Labourers are seeking in this application to displace the bargaining rights of Local 53, to the extent that the Labourers' designation under the Act permits. The bargaining unit proposed by the Labourers in its submissions of October 22 (which is in fact composed of two units: see infra) accomplishes exactly this. The only group of employees for which the Labourers could not and did not seek representation rights were those trades other than construction labourers represented by Local 53 and employed in the ICI sector. In counsel's submission, its position at the hearing is the only position that makes sense in the context of the 4 applications filed by the Labourers. It was an arbitrary decision which application was ultimately pursued; it was clear to all what the intent of the Labourers was in bringing its applications.

20With respect to the appropriateness of its intended bargaining unit, the Labourers referred the Board to the following cases: Crown Electric, [1982] OLRB Rep. May 660; Bruno's Contracting (Thunder Bay) Limited, [1985] OLRB Rep. Dec. 1701; Loremar Structures Inc., [1985] OLRB Rep. Dec. 1747; Duron Ottawa Ltd., [1983] OLRB Rep. Oct. 1639; Aero Block and Precast Ltd., [1984] OLRB Rep. Sept. 1166. Counsel outlined the development of the Board's jurisprudence with respect to the relationship between section 144 bargaining rights and displacement applications in the construction industry. Under section 144(1) of the Act, an affiliated bargaining agent may apply for a unit consisting of its traditional craft, province-wide in the ICI sector and in at least one appropriate geographic area in all other sectors. An affiliated bargaining agent may not include persons who would not ordinarily be part of its traditional craft unit in an application under section 144(1): see Bruno's Contracting (Thunder Bay) Limited, Loremar Structures Inc. However, an affiliated bargaining agent may apply to represent employees who do not fall within its craft unit, under section 144(3). Such a unit would consist of all unrepresented trades working on the date of application, in other than the ICI sector. Further, an affiliated bargaining agent may choose to make an application under both section 144(1) and (3), and the Board will treat these as two separate units: Bruno's Contracting (Thunder Bay) Limited; Loremar Structures Inc.

21Similarly, in the case of a displacement application, argued counsel, the Board has permitted an affiliated bargaining agent to carve out its traditional craft unit from the incumbent's unit under section 144(1): Crown Electric; Duron Ottawa Ltd. The Board has also stated that it is appropriate in a displacement application for an affiliated bargaining agent to make an application for two bargaining units, one under section 144(1) and the other under section 144(3). The appropriate bargaining unit in this case, therefore, is actually two units, in the submission of counsel.

22Counsel for the respondent, Bruinsma, disputed that the Labourers have been consistent in their position as to the bargaining unit sought. In his submission, the Labourers applied for four different bargaining units, they chose to proceed with one, and now wish to enlarge the unit that they chose. In his submission, the Labourers ought not to be entitled to change their position. The respondent stated its position at this juncture that the bargaining sought by the applicant in its original application under Board File 0333-91-R, as amended by its letter of April 30, is appropriate. He did not take issue with the summary of the Board's jurisprudence by counsel for the Labourers. Instead, in his view, the cases are distinguishable in that the Board on those previous occasions was not dealing with an applicant which had undergone a change of heart.

23The interveners took the same position as the respondent, with further elaboration. In essence, the submission of Local 53 was that, in their original application, the Labourers were entitled to apply under sections 144(1) and (3) of the Act, for two bargaining units. If the Labourers had sought both units, counsel stated, these would have been appropriate. Indeed, asserted counsel, this is precisely what the Labourers did. However, having withdrawn its application under section 144(1), it could not revive it at this late stage. Further, although counsel did not take issue with the cases relied on by the applicant, she submitted that in none of the cases did the Board determine that in a displacement application by an affiliated bargaining agent, an applicant was obliged to take both a unit under section 144(1) and under section 144(3). Rather, an applicant may choose one or the other, or both. In this case, counsel submits, the Labourers have chosen section 144(3).

Decision of the Board

24The parties are essentially agreed as to the manner in which this Board has applied section 144 in cases involving displacement applications by an affiliated bargaining agent. The positions taken by the respondent and intervener do not dispute the appropriateness of a displacement application which seeks bargaining units under both section 144(1) and (3). The Board is satisfied that the bargaining units proposed in the Labourers submissions of October 22, 1991 are appropriate. The Board is also satisfied that the unit originally stated by the Labourers in Board File No. 0333-91-R, as set out in paragraph 9(c), is also a unit appropriate for collective bargaining. Certainly, were it not for the provisions of section 144 of the Act, this latter proposition would not be the case. As stated in Duron Ottawa Ltd., formerly, the Board's practice in displacement applications in the construction industry was the same as in non-construction cases: the applicant was required in a displacement application to take all the employees in the existing bargaining unit. However, in Duron Ottawa Ltd. and cases following Duron Ottawa Ltd., Board found that it would be inconsistent with the policy of section 144(1) to require an applicant to take a bargaining unit under section 144(1) which combined those employees who would be bound by a provincial agreement with employees in other trades who did not fall within the applicant's designation. Thus, an affiliated bargaining agent in a displacement application may choose to apply for its traditional craft unit only.

25Moreover, as was the case in Aero Block and Precast Ltd., to the extent that an employer had employees in other trades who could be the subject of an application under section 144(3), the applicant was entitled to apply for a separate unit under section 144(3). In our view, it may indeed be most consistent with the general policy of the Board in displacement applications to have a displacement application by an affiliated bargaining agent encompass both section 144(1) and section 144(3), where there exist employees in both units. However, we cannot conclude that an applicant must apply for both units. Since the units under section 144(1) and (3) are separate units, an applicant is entitled to choose one or the other, or both. The right to be certified exists independently for each unit.

26We thus conclude that in the current applicant, either the unit proposed by the Labourers in its original application in Board File No. 0333-91-R, as set out in paragraph 8(c), or the units proposed by the Labourers at the hearing on October 22, would be appropriate.

27We must therefore address whether the Labourers are correct in their assertion that the bargaining unit for which it seeks to be certified has remained the same throughout. If we are satisfied that the Labourers are now seeking a different unit than that for which they requested a pre-hearing vote,we must determine whether they are entitled to change their position at this time, to in effect enlarge the unit.

28Having reviewed the application as filed, the contents of the Officer's Report signed by all parties on May 15, and the ensuing events, we are satisfied that the Labourers did not pursue this matter on May 15 on the basis that it contained an application for certification for bargaining units under both section 144(1) and (3) of the Act. Although the statement of the applicant's position in Appendix "A" might be read as indicating an intention to apply under both section 144(1) and (3), the challenges made by the applicant to the count list are inconsistent with an application under section 144(1). The applicant clearly stated its position that certain persons should not be included on the list because they were performing work in the ICI sector.

29In the context of the application as originally framed, then amended on April 30, the positions taken by all parties with respect to the lists, and the absence of a clear statement in the Report that the bargaining unit(s) sought by the applicant were those put forward by counsel for the applicant on October 22, we find that the applicant's intention on May 15 was to pursue an application for certification in regards to the unit set out in paragraph 9(c).

30In addition to the facts already stated, we also note that the letter of May 31 from counsel to the intervener elicited no response from the applicant. If the applicant's position on that date was as put forward at the hearing, it is reasonable to expect that the applicant would have responded to the letter of May 31, which purports to set out the applicant's position on the bargaining unit sought. We are thus in agreement with the respondent and the intervener that the applicant has enlarged the bargaining unit for which it now seeks to be certified.

31In applications for certification, the Board is generally very circumspect about permitting a party to change its position with respect to the appropriate bargaining unit once the parties have met to review the list of employees. This policy is grounded at least in part on the Board's concern that certification proceedings not deteriorate into "endless meanderings without map or compass, each turn in the journey being dictated by changing perceptions of the parties as to what best serves their own interest": See Santa Maria Foods, [1981] OLRB Rep. Nov. 1618 and the cases cited therein. In keeping with this general policy, on the facts of this case we do not see any reason why we should permit the applicant to enlarge the bargaining unit sought at this late stage.

32One of the applications for certification which had been specifically withdrawn by the applicant was directed to a unit of employees under section 144(1), covering, inter alia, construction labourers in the ICI sector. The meeting of May 15, 1991, which set the parameters for the representation vote, proceeded on the basis that the Labourers were not seeking bargaining rights in the ICI sector. Only at the outset of the hearing, almost five months after the taking of the vote, do the Labourers now assert that they wish to pursue bargaining rights for the ICI sector under section 144(1). The Board declines to allow the applicant to expand its application in this manner.

33Having regard to our determinations above, the Board finds that this is an application for certification by way of a pre-hearing representation vote with respect to the following bargaining unit:

all construction employees in the employ of the respondent in other than the industrial, commercial and institutional sector in the Province of Ontario, save and except non-working foremen and persons above the rank of non-working foreman.

The Board finds the above unit to be an appropriate bargaining unit for collective bargaining. At the meeting of May 15, certain challenges were raised regarding the count list. The Board is satisfied on the evidence before it that the applicant meets the conditions of section 9(4) entitling it to a vote regardless of the outcome of these challenges; thus we see no need to inquire further into the challenges to the count list. Challenges were also raised in regards to the list of eligible voters. The Board hereby appoints a Labour Relations Officer to inquire into the list of eligible voters. We note that the parties have agreed to meet with an Officer of the Board on November 12, and we direct that they so meet for the purpose of this inquiry.