Labourers' International Union of North America, Local 183 v. 554538 Ontario Limited
[1991] OLRB Rep. December 1337
1278-91-R; 1557-91-R Labourers' International Union of North America, Local 183, Applicant v. 554538 Ontario Limited, Respondent; International Union of Bricklayers and Allied Craftsmen, Local 2, Ontario, Applicant v. 554538 Ontario Limited, Respondent
BEFORE: S. Liang, Vice-Chair, and Board Members W. N. Fraser and J. Redshaw.
APPEARANCES: N. Jesin, T. Hawtin and Paulo Ferreirinha for the applicant; L. A. Richmond and Q. Ceolin for Labourers' Local 183.
DECISION OF THE BOARD; December 10, 1991
The name of the respondent is amended to read: "554538 Ontario Limited", with respect to both applications.
These matters are applications for certification which relate to overlapping, but not identical, bargaining units of employees employed by the respondent. The parties appeared before this panel of the Board to present argument as to how the Board should deal with the applications, and in particular, how it should exercise its discretion under section 103(3) of the Labour Relations Act ("the Act").
On July 10, 1991, the Labourers' International Union of North America, Local 183 ("Local 183") filed an application for certification with respect to employees of the respondent. The bargaining unit sought by Local 183, as amended by its letter of August 20, was the following:
all bricklayers, bricklayers' apprentices and construction labourers in the employ of the respondent in all sectors of the construction industry, save and except the industrial, commercial and institutional sectors, in Ontario Labour Relations Board Area Number 8, save and except non-working foremen and persons above the rank of non-working foreman."
- When the application was filed, the Board set July 24, 1991 as the terminal date. On July 31, the International Union of Bricklayers and Allied Craftsmen, Local 2, Ontario ("Local 2") filed its own application with respect to employees of the respondent. Local 2 is an affiliated bargaining agent of a designated employee bargaining agency, pursuant to a designation order issued under section 139(1) of the Act on April 12, 1978. Local 2 sought two bargaining units in its application, being the following:
Bargaining Unit No. I
(a) all bricklayers and bricklayers' apprentices, stonemasons and stonemasons' apprentices in the employ of the respondent in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario, save and except nonworking foremen and persons above the rank of non-working foreman; and
apprentices bargaining unit under section 144(3). The two voting constituencies thus overlapped with respect to the carpenters and carpenters' apprentices in the named Board area in sectors excluding the ICI sector. The parties agreed that such a vote would not be easily comprehensible to employees voting and could lead to contradictory results.
Decision of the Board
We have carefully considered the results which might flow if this Board applies its normal policy under section 103(3) to the present applications. In our view, Local 2 raises some compelling concerns about the reasonableness of the Board's policy in competing applications under the construction provisions of the Act, where the bargaining units sought overlap but are not congruent and encompass both sections 144(1) and 144(3) of the Act.
As was recognised by the parties, it is only reasonable to deal with these two applications together if the vote which might ultimately be held is capable of testing the true wishes of the employees. The crux of the problems raised by these applications, in our view, is that both unions may gain majority support in a vote which encompassed all the bargaining units sought by both parties. For instance, Local 183 may win the majority of ballots in a voting constituency composed of all bricklayers, bricklayers' apprentices and construction labourers in all sectors in Board Area 8, excluding the ICI sector. However, in the very same vote, Local 2 may win the majority of ballots cast on the part of bricklayers and bricklayers' apprentices. Assuming there are no bricklayers in the ICI sector, this vote result would ordinarily entitle Local 2 to a certificate under section 144(1) of the Act. The Board would be faced with two certifiable units which overlap and cannot both stand. In the face of such a result, it is difficult to determine precisely what are the true wishes of the employees.
A related concern which we have with the suggestions of counsel for Local 183 is that the models which he has proposed involve the Board in testing the wishes of employees, without knowing what the outcome of the bargaining units will be. Arguably, the wishes of the employees may be affected depending on what bargaining units are ultimately certified. Although we appreciate that the Board has not seen this as an obstacle when an applicant has asked for a pre-hearing vote, in regular applications for certifications, the practice of the Board and the manner in which it has applied sections 6(1) and 7(1) and (2) of the Act, is to define the bargaining unit before the taking of a representation vote.
In addition to the above, the complexities of a vote which involves three overlapping bargaining units in two applications would be compounded by the Board's practice of offering a "no-union" option, depending on the membership evidence (i.e. depending on whether both applicants have more than 55 per cent support). The possibility would exist for a ballot without a "nounion" choice in one voting constituency, and with a "no-union" choice in another.
We do not find the models proposed by Local 183 to be helpful in