United Brotherhood of Carpenters and Joiners of America, Local 2486 v. Guillot Builders Limited, 1991 CanLII 6001

Ontario Labour Relations Board

Parties

0909-91-R; 0911-91-R; 0918-91-R; 0985-91-U; 078-91-R; 1175-91-R;1081-91-U;1281-91-U United Brotherhood of Carpenters and Joiners of America, Local 2486, Applicant v. Guillot Builders Limited, Respondent v. Labourers' International Union of North America, Ontario Provincial District Council; International Brotherhood of Painters and Allied Trades; Retail, Wholesale and Department Store Union, Interveners v. Group of Employees, Objectors; International Brotherhood of Painters and Allied Trades, Applicant v. Guillot Builders Limited, Respondent v. United Brotherhood of Carpenters and Joiners of America, Local 2486, Labourers' International Union of North America, Ontario Provincial District Council, Retail, Wholesale and Department Store Union, Interveners v. Group of Employees, Objectors; Labourers' International Union of North America, Ontario Provincial District Council, Applicant v. Guillot Builders Limited, Respondent v. United Brotherhood of Carpenters and Joiners of America, Local 2486, International Brotherhood of Painters and Allied Trades, Labourers International Union of North America (Ontario Provincial District Council), Retail, Wholesale and Department Store Union, Interveners v. Group of Employees, Objectors; International Brotherhood of Painters and Allied Trades, Complainant v. Guillot Builders Limited, Respondent v. United Brotherhood of Carpenters and Joiners of America, Local 2486, Retail, Wholesale and Department Store Union, Interveners v. Group of Employees, Objectors; Retail, Wholesale and Department Store Union, AFL:CIO:CLC:, Applicant v. Guillot Builders Limited, Respondent v. United Brotherhood of Carpenters and Joiners of America, Local 2486, International Brotherhood of Painters and Allied Trades, Labourers' International Union of North America, Ontario Provincial District Council, Interveners; Retail, Wholesale and Department Store Union, AFL:CIO:CLC:, Applicant v. Guillot Builders Limited, Respondent v. United Brotherhood of Carpenters and Joiners of America, Local 2486, International Brotherhood of Painters and Allied Trades, Labourers' International Union of North America, Ontario Provincial District Council, Interveners; United Brotherhood of Carpenters and Joiners of America, Local 2486, Complainant v. Guillot Builders Limited, Respondent v. Retail, Wholesale and Department Store Union, International Brotherhood of Painters and Allied Trades, Intervener; Labourers' International Union of North America, Ontario Provincial District Council, Complainant v. Guillot Builders Limited, Respondent v. Retail, Wholesale and Department Store Union, United Brotherhood of Carpenters and Joiners of America, Local 2486, Interveners

Panel

BEFORE: Robert Herman, Vice-Chair, and Board Members D. A. MacDonald and C. A. Ballentine.

Appearances

APPEARANCES: John Moszynski, Arthur Adams for Labourers' Ontario Provincial District Council; Roland Simoneau for the objectors; Eric del Junco, Robin McArthur, for Retail, Wholesale and Department Store Union; James Nyman, Fred Karst for United Brotherhood of Carpenters and Joiners of America, Local 2486; and Frank McCool for International Brotherhood of Painters and Allied Trades; David C. Daniels, Guy Guillot for the respondent, Guillot Builders Limited

Decision

DECISION OF THE BOARD; November 4, 1991

1. On June 17, 1991, Carpenters, Local 2486, (the "Carpenters") the Labourers International Union of North America, Ontario Provincial District Council, ("the "Labourers") and the International Brotherhood of Painters and Allied Trades, (the "Painters") each filed a separate application for certification with respect to the respondent Guillot Builders Limited. The name of the respondent is amended to read "Guillot Builders Limited". On June 26, 1991, prior to the terminal date of the three previously filed applications, the Retail~ Wholesale and Department Store Union ("RWDSU") filed its own application for certification, covering Sudbury employees encompassed by the earlier filed applications. RWDSU later filed another application for certification, on July 4, 1991, but this second RWDSU application was filed after the terminal dates of the applications filed by the craft unions. This second application concerned Sault Ste. Marie employees, some of whom might be covered by the 3 applications filed by the craft unions.

2. A petition was filed by employee objectors with respect to the three original applications filed by the Labourers, Carpenters, and Painters.

3. On July 25, 1991, the parties all met with a Board Officer, in an attempt to narrow the issues and to state their positions. As a result of that meeting, numerous challenges were raised by various parties, and the parties agreed to adjourn the hearing date set for August 1, 1991, to be scheduled in further consultation with the parties. Ultimately, the Board convened a hearing on October 29, 1991 to deal with various procedural matters. We set out below some of our oral rulings and reasons for them.

4. We turn first to the appropriate bargaining unit description(s). Each of the three trades, the Labourers, the Carpenters, and the Painters, seek their traditional construction trade bargaining unit descriptions. Each of those descriptions has been agreed to by the respondent employer, and reflected in the Board Officer's Report. RWDSU seeks essentially a single "all employees" bargaining unit, encompassing employees working in both Sudbury and Sault Ste. Marie. After hearing the submissions of the parties, the Board orally ruled that the appropriate bargaining units were the standard craft or trade bargaining unit descriptions, as reflected in the Board Officer's Report, with respect to the three certification applications filed by the construction trades. For purposes of its ruling, the Board accepted as fact those matters stipulated by RWDSU. Specifically, the Board accepted that there was an extreme degree of intermingling of the trades amongst the employees at work at the relevant time. RWDSU also asserted that almost all the employees worked no more than fifty per cent of the time within their own trade, and each did the work of the others' trade on a regular basis. It was also asserted that this exchange of work had allowed the company to some extent to avoid layoffs in the past.

5. Notwithstanding those facts, the Board was satisfied that the standard craft bargaining units were appropriate in these proceedings. The Board noted that the employer and the three craft construction trades had agreed that the standard craft bargaining unit descriptions were appropriate. The applications for certification for the three trades had been filed earlier than the two applications filed by RWDSU. There was no dispute that the respondent employer was an employer in the construction industry. The statutory provisions covering bargaining units and certification in the construction industry set up a designation or craft system with respect to certification, while still allowing non-craft unions to apply to represent groups of employees. Nevertheless, the overall scheme is directed towards a fragmented craft system of representation. In all these circumstances, the Board found appropriate the trade bargaining unit description reflected in each of the respective applications filed by the Carpenters, Labourers, and Painters. Generically described, those bargaining unit descriptions refer to the particular trades in the industrial, commercial, and institutional sector of the construction industry and all other sectors in Board Area #17.

6. After delivering this ruling, RWDSU sought to amend the bargaining unit description it was requesting, to seek to represent employees in the craft units the Board had found appropriate. The Board ruled that it would not grant the amendment sought. RWDSU had filed an application pursuant to the industrial, non-construction, provisions under the Act. It had not sought in those applications the bargaining units it was now seeking. The postings in the work place had been with respect to the bargaining unit descriptions sought in its applications, and not the units it now sought. RWDSU was not a construction trade union. It was seeking to amend its bargaining units after appearing at the meeting with the Board Officer, after taking a different position there as to the appropriate units and after the Board had ruled on the appropriate bargaining units. In all these circumstances, the Board would not allow RWDSU to amend its applications to seek to represent employees in the craft bargaining units.

7. RWDSU then asked that its two applications be deferred, pursuant to section 103(3)(b) of the Labour Relations Act, until the three applications earlier filed by the construction trades had been finally resolved. It also sought leave to amend the bargaining unit descriptions to reflect the descriptions sought in its original applications, rather than those agreed to at the meeting of the Board Officer. After hearing the submissions of the parties, the Board ruled that it would defer consideration of the two RWDSU applications (Board File Nos. 1078-91-R, and 1175-91-R). It further ruled on a matter upon which it had earlier reserved, ruling that the application dates and terminal dates for the two RWDSU applications would remain as they were; that is, the RWDSU applications would have their own separate application dates and terminal dates. This ruling was without prejudice to the rights of the parties in those applications, if they should proceed, to address whether the application dates ought to be amended. The Board also ruled that RWDSU could ask for the bargaining unit descriptions it originally sought. Of course, those applications remain deferred until the applications of the Labourers, Carpenters, and Painters are all finally resolved. We return now to those 3 applications.

8. With respect to the petition, it was agreed that there was no objection to the timeliness of the petition.

9. At that point in the hearing, the employee representing the employee objectors, Mr. Simoneau, asked that the matter be adjourned in order to enable him to retain legal counsel to represent the employee objectors. The three applicants objected to an adjournment at that stage of the proceedings.

10. The Board denied the adjournment request. Mr. Simoneau had had considerable advance notice of the hearing date, and the purpose of the hearing. The hearing was only to deal with preliminary, or procedural, matters and not the merits of the proceeding. Only a few such matters still remained to be considered; specifically, deciding what issues the panel would hear, whether to appoint a Board Officer, the order in which the parties would lead evidence, and future hearing dates. Mr. Simoneau had already attended, along with the other parties, the meeting with the Board Officer at which various matters were resolved and various positions of the parties taken. To adjourn would delay the proceedings, to the prejudice of the applicants. Further, there had been no prior notice of the request for the adjournment. The Board advised Mr. Simoneau that he was of course entitled to retain counsel to represent him and the employee objectors, but that the hearing would not at that point be adjourned.

11. In any event, these matters were adjourned shortly thereafter, to continue, in Sudbury, on January 23, 24, March 17, 18, 24, 25, 26, and June 9,10, 11, 16, 17, and 18, 1992. All of those dates were acceptable to all those present, although Mr. Simoneau did note that he had no idea whether any counsel he retained might be available on those days. The hearing of November 13, 1991 was cancelled.

12. The purpose of the hearing on those dates will be for the panel to hear the evidence and submissions of the parties with respect to the issues concerning the three section 89 complaints filed, the section 8 allegations, the voluntariness of the petition, and the challenges to the 3 lists of employees that allege that the individual challenged exercises managerial authority within the meaning of section 1(3)(b) of the Act.

13. With respect to the remaining challenges (other than the section 1(3)(b) challenges) raised before the Officer, and reflected in the Board Officer's Reports, a Board Officer is hereby appointed to enquire into and report back to the Board with respect to those challenges. The Board Officer's examinations are not to await the panel's hearings into these matters, but to proceed forthwith. However, the Officer is directed not to schedule his or her examinations on the dates set for the hearing of this matter, as noted above. The location of the examinations will be up to the Board Officer, but the parties request that the Officer canvass with them first their preferences in this regard.

14. In summary, the Board panel will hear everything other than those challenges raised before the Board Officer, which involve whether the particular person was performing work in the applicable bargaining unit at the relevant time. The parties are to be prepared to litigate before the Board panel every other matter that is arguably relevant to the section 8 and section 89 issues, petition voluntariness, and section l(3)(b) challenges. With respect to the challenges that individuals exercise managerial functions, those asserting that the particular individual is managerial ought to be prepared to call that individual as their witness. However, the Board will ensure that each party, including the party calling that witness, is afforded full opportunity of cross-examination with respect to that witness, although the party calling that witness will only have cross-examination rights with respect to evidence touching upon the issue of whether the individual exercises managerial functions. With respect to evidence that does not touch upon that matter, the party calling that witness will not have the right to cross-examine him.

15. The Board ruled that in terms of the order of calling evidence, the employer would proceed first, followed by the employee objectors or petitioners, and then the Carpenters, Labourers, and Painters, in turn. The Board also ruled that the parties would then have a follow-up opportunity, consistent with the limitations applying to the follow-up opportunity. This order of proceeding would apply both to the order in which parties will call their evidence, and, with the necessary changes, to the order of cross-examination and re-direct.

16. These proceedings were adjourned on the above described basis.