[1991] OLRB Rep. March 309
2446-90-R; 2483-90-R Labourers' International Union of North America, Local 1081, Applicant v. Freure Construction Limited, Respondent v. Group of Employees, Objectors; United Brotherhood of Carpenters and Joiners of America, Local 785, Applicant v. Freure Construction Limited, Respondent v. Labourers' International Union of North America, Local 1081, Intervener v. Group of Employees, Objectors
BEFORE: N. B. Satterfield, Vice-Chair, and Board Members D. A. MacDonald and H. Kobryn.
APPEARANCES: Bernard Fishbein, Paul Trudelle and Jo Braun for Labourers' International Union of North America, Local 1081; Dave Watson and Karl Ball for United Brotherhood of Carpenters and Joiners of America, Local 785; Bruce Binning and David Freure for the respondent.
DECISION OF THE BOARD; March 8, 1991
1These are two applications for certification made under the construction industry provisions of the Labour Relations Act. Each application raised an issue respecting the description of the unit of employees of the respondent which would be appropriate for collective bargaining. The parties agree that, for purposes of hearing and deciding that issue, the name of the respondent in the style of cause should be amended to: "Freure Construction Limited". That agreement is without prejudice to either applicant raising at a later date an issue of whether there are other "Freure" companies which should be made parties to the applications. The parties agree also, and the Board finds, that each application is made under subsection 144(1) of the Act which provides as follows:
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.
A successful application under subsection 144(1) of the Act results in two certificates being issued pursuant to subsection 144(2) which states:
- -(2) If on the taking of a representation vote more than 50 per cent of the ballots cast are cast in favour of the trade unions on whose behalf the application is brought, or, if the Board is satisfied that more than 55 per cent of the employees in the bargaining unit are members of the trade unions on whose behalf the application is brought, 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.
2The specific issue in these applications relates to the requirement of subsection 144(1) that the unit of employees shall include, in addition to those employees who would be bound by a provincial agreement, "... all other employees in at least one appropriate geographic area ...". The unit of employees proposed by the applicant Labourers' International Union of North America, Local 1081 (hereafter "the Labourers' union") is described to include all other employees in the Board's geographic area #8. The unit of employees proposed by the applicant United Brotherhood of Carpenters and Joiners of America, Local 785 (hereafter "the Carpenters union") is described to include all other employees in the Board's geographic area #22. For purposes of deciding the legal issue argued by the parties, it is not disputed that the respondent employed no construction labourers in Board area #8 and no carpenters in Board area #22 on the dates of making of these applications; nor is it disputed that all of the employees who might be affected by these applications were working in Board area #6 on the date of making of the application.
3The parties agreed to admit as evidence, subject to argument on its probative value, a report dated April 11, 1980 prepared for the Minister of Labour by George W. Adams, special counsel (at that time). The report is titled "Concerning Representations by the Toronto - Central Ontario Building and Construction Trades Council on Bill 204, an Act to Amend The Labour Relations Act".
4The Board does not propose to set out the able argument of counsel. It has reviewed and weighed them carefully and will simply summarize the main thrust of the arguments.
5Counsel for the applicants argue that the Board's "rules" respecting what constitutes units of employees appropriate for collective bargaining in the construction industry changed with the introduction of section 144 of the Act in 1980. They argue that the new rules are expressed in the Board's jurisprudence dealing with applications for certification made under section 144 of the Act, and more particularly under subsection 144(1), from which five principles can be extracted. Counsel argue that the bargaining units proposed in their applications are consistent with those principles and with the requirements of subsection 144(1) that a bargaining unit include, in addition to those employees who would be bound by a provincial agreement, "... all other employees in at least one geographic area ...". The five principles identified by counsel and the main authorities which counsel cited are as follows:
(1) Section 144 of the Act is exhaustive for all bargaining units in applications for certification made under the construction industry provisions of the Act; or, more particularly, in an application for certification, no unit of employees which would be appropriate under subsection 6(1) of the Act can exist outside of section 144 and section 144 prevails over subsection 6(1). Clarence H. Graham Construction Limited, [1981] OLRB Rep. Sept. 1195.
(2) Whether an application pertains to the industrial, commercial and institutional (hereafter "the ICI") sector and is made under subsection 144(1), or does not, and is made under subsection 144(3) is for the affiliated bargaining agent making the application to decide. Graham Construction, supra, at paragraph 7 and Pelar Construction Ltd., [1981] OLRB Rep. Feb. 210, at paragraph 14.
(3) It is not necessary that any employees be working in the ICI sector when an affiliated bargaining agent chooses to apply under subsection 144(1) for certification for a unit of an employer's employees. Colonist Homes Ltd., [1980] OLRB Rep. 1729. In other words, an affiliated bargaining agent can obtain bargaining rights under section 144 even though there are no employees working in the ICI sector when the application was made.
(4) Conversely, it is not necessary for there to be any employees working in a sector other than ICI, when an application is made under subsection 144(1) by an affiliated bargaining agent, in order to obtain bargaining rights in all other sectors. Watcon Inc., [1981] OLRB Rep. Nov. 1697.
(5) When an affiliated bargaining agent applies for certification under subsection 144(1), if the employer has employees working in more than one geographic area prescribed by the Board under subsection 119(1) of the Act, the affiliated bargaining agent chooses which area or areas by which the "all other employees" part of its unit is to be described and it does not have to take all of the areas. Dagmar Construction Limited, [1987] OLRB Rep. April 480; Louis W. Bray Construction Limited, Board File No. 1729-86-R, unreported decision dated October 24, 1986; Beling Cement Construction Limited, [1989] OLRB Rep. July 709; and Beaverbrook Estates Inc., [1989] OLRB Rep. April 322.
6Counsel for the applicants argue that, based on those principles, an affiliated bargaining agent is entitled to make an application under subsection 144(1), whether or not any of the employees for whom it is seeking bargaining rights are employed in the ICI sector at the time, by describing the unit to include such employees. Colonist Homes, supra. If its application succeeds, subsection 144(2) mandates the Board to issue two certificates, one restricted to the ICI sector of the construction industry in the Province of Ontario and the other for all other sectors in the geographic area found by the Board to be appropriate. Counsel describe this process as one which entitles a successful applicant to a "free" certificate insofar as there might be employees in the ICI sector and none in any other sector, or vice versa, at the making of the application. According to counsel's "free certificate" thesis, the free certificate in the first circumstance would be for all other sectors in an appropriate geographic area, while it would be the ICI sector in the second circumstance. That is all the applicants are doing herein, it is argued. The construction labourers and the carpenters employed in Board area #6 whom the applicants are seeking to represent are employed in the ICI sector and would be covered by the province-wide ICI certificate issued pursuant to subsection 144(2) of the Act. The second certificate that is, the one for all sectors other than the ICI sector, which they are seeking is for Board areas #8 (construction labourers) and #22 (carpenters) where there are no employees in any sector.
7There is nothing unusual in that, counsel argue. Each of those areas is one of the 32 geographic areas which the Board has developed for the purpose of subsection 119(1) of the Act which requires the Board to determine "... the unit of employees that is appropriate for collective bargaining by reference to a geographic area . . . instead of confining the unit to a particular project. See Klimack Construction Limited, [1986] OLRB Rep. Sept. 1238, at 1239. Thus those 32 geographic areas are ones which the Board has already found to be appropriate. Counsel submit that there would be no prejudice created by the fact that the applicants would get bargaining rights in areas where there were no employees at the time the applications were made and would forego bargaining rights for any employees who might have been working in Board area #6 in sectors other than the ICI sector.
8As the Board understands their arguments, the Board should not be concerned with the fact that there are no employees in the Board area for which each applicant is seeking bargaining rights for "all other sectors" in circumstances where they are not seeking bargaining rights for any employees who might have been working in sectors other than the ICI sector in Board area #6 when these applications were made. According to counsel, the fact that the applicants are willing to forego bargaining rights for employees in Board area #6 in sectors other than the ICI sector in favour of getting bargaining rights in another geographic area where there were no employees at work in any sector, simply takes one step further that which the Board has accepted already in Colonist Homes and Dagmar, supra. That is, a successful application for certification under subsection 144(1) of the Act can result in the applicant getting bargaining rights in the ICI sector where none of the employees at work when the application was made were in that sector (Colonist Homes) or getting bargaining rights in all other sectors where none of the employees at work when the application was made were in any other sector (Dagmar).
9Counsel for the applicants acknowledge that the Board's decision in EIE Fradema Masonry, [1986] OLRB Rep. Dec. 1685 might be read to run counter to their argument. It was a decision made absent submissions from the parties on the applicant's request in an application brought under subsection 144(1) of the Act for a unit of employees in the ICI sector in the Province of Ontario and in all other sectors in two of the Board's geographic areas, #15 and #31. The Board ascertained that there were no employees at work in Board area #31 when the application was made and, therefore, it was not prepared to describe the geographic scope of the "all other sectors" part of a unit Which would satisfy the unit mandated by subsection 144(1) so as to include Board area #31. In so doing, the Board stated at paragraph 7, "... In our opinion, an appropriate geographic area means, at the very least, an area in which employees were employed as of the application date. It seems to us that a geographic area in which no employees were employed as of the application date is not an appropriate geographic area ...". Counsel for the applicants argue that the application was decided without the argument which has been made in the instant applications and, in any event, the decision is consistent with the Board's jurisprudence on which they rely. All Fradema says, they submit, is that, where employees were working in one Board area only, a successful applicant under subsection 144(1) cannot get more than one certificate for the ICI sector in the Province of Ontario and another for all other sectors in one Board area. Unlike the applicant in Fradema Masonry, all that each applicant herein is seeking to do is get its province-wide certificate for the ICI sector in which the employees affected by the application were working and another certificate for a Board geographic area where there were no employees. Counsel submit that the applicants are not making a grab for bargaining rights to which they are not entitled because subsections 144(1) and (2) work together to give a successful applicant bargaining rights province-wide in the ICI sector and in all other sectors in at least one appropriate geographic area and that is all that the applicants would get here if their applications are successful.
10Counsel for the respondent argues that the applicants are improperly attempting to circumvent the requirements and purpose of subsection 144(1) of the Act because where, as here, there were other employees at work in Board area #6 in the ICI sector and another sector when the applications were made, they are for all practical purposes applications for bargaining rights in the ICI sector only. The Board digresses here to observe that, while there was no specific agreement that the respondent was the employer of the employees in the ICI and another sector, it may be assumed that it was for the purpose of the legal issue argued before the Board. Respondent counsel's argument continues as follows. The intent of section 144, and subsection (1) in particular, was to preserve as much as possible the practice which existed prior to the province-wide extension of ICI sector bargaining rights in 1980. That practice was to describe bargaining units without reference to sector and pursuant to subsection 119(1) of the Act, by reference to a geographic area and not a project. By defining units without reference to sector, when a trade union was certified, it got bargaining rights for all sectors of the construction industry, but in a single Board geographic area. The only difference after section 144 was added to the Act was that, as a result of the province-wide extension of ICI sector bargaining rights, where an application for certification was made to relate to the ICI sector, the bargaining unit had to include employees in the ICI sector throughout the province, and not just in a single Board area as it was prior to the introduction of section 144. The reason why subsection 144(1) requires that applications be brought for all sectors and not just the ICI sector is to avoid the need of determining whether the employees in the local geographic area in which the application is made (in these applications that would be Board area #6) are employed in the ICI sector. All of the Board decisions referred to reflect that intent, counsel submits, and it is a logical interpretation of section 144 and the words "... at least one appropriate geographic area ..." in subsection 144(1).
11The Board does not take issue with the principles which counsel for the applicants have extracted from the Board's jurisprudence. A similar analytical summary can be seen, as they pointed out, at paragraph 6 of the Board's decision in Westdale Painting & Decorating Ltd., [1989] OLRB Rep. Sept. 984. The Board does not agree, however, that the application of those principles to the circumstances of these applications supports the result contended by counsel.
12Section 144 in its present form was introduced into the Act by Statutes of Ontario 1980 Chapter 31 (Bill 73) which became effective May 1, 1980. It was the companion to subsection 137(2) which was introduced into the Act by Statutes of Ontario 1979 Chapter 113 (Bill 204) which also became effective May 1, 1980. Subsection 137(2) extended bargaining rights in the ICI sector held by an affiliated bargaining agent prior to May 1, 1980 in one or more Board geographic areas to all other affiliated bargaining agents of the employee bargaining agency designated to represent those affiliated bargaining agents. Subsection 144(1) assured that all bargaining rights in the ICI sector acquired after May 1, 1980 by an affiliated bargaining agent of a designated employee bargaining agency would be acquired province-wide on behalf of the applicant affiliated bargaining agent and on behalf of all other affiliated bargaining agents of the designated employee bargaining agency. Subsections 144(1) and (2) work together to achieve this result. Subsection 144(1) mandates a single appropriate bargaining unit. Once an applicant demonstrates adequate membership support in that unit, subsection 144(2) has the somewhat curious effect of creating two bargaining units, one confined to the ICI sector and one for all other sectors in the geographic area which the Board found to be appropriate. The Board described this process in the following terms in Westdale Painting, supra, at paragraph 6:
…….Applications, like this one, under section 144(1), of the Act can only be brought by an affiliated bargaining agent. Every such application must relate to a bargaining unit which includes all employees who would be bound by a provincial agreement [as defined in section 137(e) of the Act] together with all other employees in at least one appropriate geographic area [emphasis added]. Consequently, an applicant trade union's right to certification is determined on the basis of the membership support it demonstrates within a single bargaining unit consisting of all ICI employees which the trade union's designated employee bargaining agency is entitled to represent in bargaining and all other such employees (see Aero Block and Precast Ltd., [1984] OLRB Rep. Sept. 1166) in one or more appropriate geographic areas. ... It is only after the Board determines that a trade union is entitled to be certified as the bargaining agent of the employees in the single bargaining unit applied for that the Act stipulates, in section 144(2), that the Board issue two certificates, one confined to the ICI sector, and one in relation to all other sectors of the construction industry in the geographic area(s) concerned. In the result, a trade union's right to be certified under section 144(1) is determined on the basis of its support in one bargaining unit, but if it is successful it receives two certificates; that is, certificates for two bargaining units (see Fred Jantz Masonry Construction Company Limited, [1986] OLRB Rep. Aug. 1083).
[emphasis in original]
13The certificate confined to the ICI sector is issued to the applicant affiliated bargaining agent on its own behalf and on behalf of all other affiliated bargaining agents of the employee bargaining agency with respect to employees in the ICI sector of the construction industry in the Province of Ontario. The other certificate is issued to the applicant for itself for sectors other than the ICI sector in the appropriate geographic area. See Pelar Construction, supra, at paragraph 19.
14The Board herein finds it unnecessary to analyze further the history of section 144, that has already been done in Colonist Homes and Pelar Construction, supra. It is clear from the analysis in those cases that section 144 in its present form was intended to make bargaining rights in the ICI sector available to affiliated bargaining agents only on a province-wide basis and in a manner which would minimize the need for the Board to determine whether there are employees working in that sector, a need which did not arise when, prior to subsection 144(1), the Board certified trade unions without reference to sectors and confined a certificate to a single Board area. See Lyle West Electric Limited, [1978] OLRB Rep. Nov. 999. In that regard, the Board in Pelar Construction expressed the view at paragraph 16 that "... the legislative history of [subsection 144(1)] evinces a clear legislative intent to avoid making determinations concerning sectors in the context of certification proceedings ...". At paragraph 17 the Board expressed the further view that ..... there are good labour relations reasons for avoiding such sectorial determinations in the context of certification proceedings.", and that "... the concern expressed of the Board in the Lyle West case about the delay caused by such determinations is still a very real concern.". In other words, delay from that cause is still a matter for concern in applications for certification made under what is now section 144 of the Act.
15In the view of this panel of the Board, that objective has been pursued by preserving as much of the practice which existed prior to May 1,1980 as is consistent with a reasonable construction of section 144, and subsection 144(1) in particular. That would appear to be what led the Board in Pelar Construction, supra, at paragraph 16 to interpret (correctly in this Board panel's view) the words of subsection 144(1) that "... 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 ..." to mean that "..., for the local area in which the application is made ... the unit of employees must include all employees in all sectors." (emphasis in the original). The Board concluded "[t]hus, in determining the list of employees it is not necessary, in the local geographic area, to have regard to the sector in which such employees are working.".
16In these applications the local area in which the applications are made is Board area #6, not Board areas #8 and #22. If the Board accepts the meaning counsel for the applicants contend for the words "... in at least one appropriate geographic area ...", in these applications and every application where an applicant proposes as the "appropriate geographic area" one where there are no employees at work in any sector of the construction industry, there would be a potential requirement to determine whether the employees who are affected by the application are working in the ICI sector. For example, in these applications it is agreed that there were some employees at work in the ICI sector in Board area #6. To the extent that there were also other employees at work in that Board area on the application date, there is potential for a dispute over whether they were at work in the ICI sector. If a dispute should materialize, the Board would be unable to determine the applications until it made a sector determination resolving the dispute. This alone is reason enough for the Board not to interpret the phrase as argued by counsel for the applicants and, instead, to give it the same meaning as the Board in Fradema Masonry, supra, when it said that "... an appropriate geographic area must mean, at the very least, an area in which employees were employed on the application date.". It was for the same reason that this panel of the Board agreed above with the observation in Pelar Construction, supra, that "..., for the local area in which the application is made, ... the employees must include all employees in all sectors." (emphasis in the original). While the Board in that case was interpreting subsection 144(1) for purposes of deciding a different legal issue, the observation is equally relevant to the issue in these applications.
17Notwithstanding the applicants' innovative argument, the Board is not satisfied that there is any cogent reason to depart from the interpretation of subsection 144(1) which is well-established in the Board's jurisprudence. On the contrary there are sound labour relations reasons not to do so, particularly the avoidance of delay in determining applications for certification. It also avoids some potentially incongruous results. For example, assume in these applications that the employer had four employees working in the residential sector of Board area #6 and no employees working elsewhere in the province. If the Board accepted the applicants' interpretation of subsection 144(1) and the applications were successful, the applicants would get the "free" certificates (by the applicants' definition) for the ICI sector in the Province of Ontario and another "free" certificate for all other sectors in Board area #8, in the case of the labourers, and in Board area #22, in the case of the carpenters. The Board therefore finds that a geographic area in which there were no employees working (in the trade for which certification is sought) at the making of the application would not be an "appropriate geographic area" as that term is used in subsection 144(1) of the Act in the phrase "... all other employees in at least one appropriate geographic area ...". Therefore, Board area #8 would not be an appropriate geographic area for the application of the Labourers' union in File No. 2446-90-R and Board area #22 would not be an appropriate geographic area for the application of the Carpenters union in File No. 2483-90-R. Accordingly, subject to the resolution of any question of the correct name(s) of the respondent(s), the appropriate bargaining unit in each of these applications made under subsection 144(1) of the Labour Relations Act, is to be described as follows:
File No. 2446-90-R
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 in all other sectors of the construction industry in the Regional Municipality of Waterloo (except that portion of the geographic Township of Beverly annexed by North Dumfries Township), save and except non-working foremen and persons above the rank of non-working foreman;
File No. 2483-90-R
all carpenters and carpenters' apprentices in the employ of the respondent in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and in all other sectors of the construction industry in the Regional Municipality of Waterloo (except that portion of the geographic Township of Beverly annexed by North Dumfries Township), save and except non-working foremen and persons above the rank of non-working foreman.
18These applications are to be listed for hearing for the purpose of receiving the evidence and representations of the parties respecting all matters remaining in dispute.
19This panel of the Board is not seized with these applications.