[1991] OLRB Rep. August 1016
1319-91-R; 1320-91-R United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local Union 463, Applicant v. Waylok Air Conditioning Limited, Respondent; United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local Union 599, Applicant v. Waylok Air Conditioning Limited, Respondent
BEFORE: Louisa M. Davie, Vice-Chair, and Board Members D. A. MacDonald and E. G. Theobald.
DECISION OF THE BOARD; August 8, 1991
These two applications for certification were made pursuant to the construction industry provisions of the Labour Relations Act ("the Act").
The applicant in Board File 1319-91-R ("U.A. Local 463") seeks to be certified for what may be termed as its standard craft unit in the industrial, commercial and institutional ("ICI") sector of the construction industry in the province of Ontario and in all other sectors of the construction industry in Board areas 9, 10, 11 and 12.
The applicant in Board File 1320-91-R ("U.A. Local 599") seeks to be certified for its standard craft unit in the ICI sector of the construction industry in the Province of Ontario and in all other sectors of the construction industry in Board area 18.
The applicants filed with the Board two (2) combination applications for membership and receipts with respect to membership in U.A. Local 599 and two (2) combination applications for membership and receipts with respect to membership in U.A. Local 463. These combination applications for membership are signed by the employees and the receipts are countersigned and indicate that a payment of $1.00 has been made within the six month period immediately preceding the terminal date of the applications. In addition, the applicants filed one (1) photocopy of an application for membership dated April 14, 1967 together with a "certificate" from the secretary-treasurer of U.A. Local 46 which states the person named in the photocopied application is a member in good standing of U.A. Local 46 and has paid monthly dues for at least one month within the six-month period immediately preceding the terminal dates of the applications.
In addition, the applicants filed two (2) duly completed Form 80, Declaration Concerning Membership Documents, Construction Industry. The Form 80 in Board File 1319-91-R is signed by the Business Manager of U.A. Local 463 and specifies that there were seven persons who were employees of the respondent in the bargaining unit U.A. Local 463 claims to be appropriate for collective bargaining on the date of the making of its application.
The Form 80 in Board File 1320-91-R is signed by the Business Manager of U.A. Local 599 and also specifies that there were seven persons who were employees of the respondent in the bargaining unit which Local 599 claims to be appropriate for collective bargaining on the date of the making of its application.
Both applications were made on the same date.
In a letter accompanying the membership evidence and Form 80 declarations counsel for the applicants states that:
"Much of the enclosed membership evidence is relevant to both of the above-mentioned files, and we therefore request that all of the membership evidence enclosed by [sic] applied by the Board to each such file."
- Counsel's letter goes on to detail that the photocopied membership evidence relates to a person employed in the ICI sector, the membership evidence with respect to membership in U.A. Local 463 relates to persons employed in the ICI sector and the membership evidence with respect to membership in U.A. Local 599 relates to persons employed in the residential sector in Board area 18. Counsel states:
"Therefore, subject to any rulings by the Board to the contrary, the membership evidence.... which relate[s] to the ICI sector, is relevant in both files.
The membership evidence ... [which] relate[s] to the residential sector ... would be relevant in File 1320-91-R (U.A. Local 599). However, this membership together with the other membership, has been submitted to the Board in both files in an attempt to ensure maximum flexibility in the application of membership evidence in both applications.
In the result it would appear that either Local 463 or Local 599, or both such locals, would have membership evidence for three persons in the ICI sector, and Local 599 would have membership evidence for two persons in a sector other than the ICI sector. If sufficient for certification this evidence would permit Local 463 and/or Local 599 to be certified in the ICI sector; and would also permit Local 463 and Local 599 to be certified for their respective Board areas in the non-ICI units applied for".
- The respondent filed timely replies to these applications for certification. In Board File
1319-91-R the respondent agrees with the applicant's (U.A. Local 463) bargaining unit description and states there are nine employees in that unit. The respondent also agrees with the applicants (U.A. Local 599) bargaining unit description in Board File 1320-91-R and states there are nine employees in that unit. The respondent also filed a list of employees with respect to each application. Those lists each contain the same nine names of employees.
We fail to understand counsel's reference of membership evidence which "relates" to the ICI sector or his reference that either or both local unions "would have membership evidence for three persons in the ICI sector". Membership evidence does not "relate" to any particular sector of the construction industry. Rather membership evidence relates to an individual person and the trade union to which that person has applied to become a member. What follows from that documentary evidence of membership in a trade union is the inference that persons who are members of a trade union wish that trade union to represent them in their employment relations with an employer howsoever the person is employed i.e. in the ICI sector, the residential sector or some other sector. (As to the correlation between the act of joining a trade union and a desire for trade union representation see Unlimited textures Company Limited, [1984] OLRB Rep. Jan. 138 at paragraph 15).
In these applications therefore we have the membership evidence of two persons who have applied to become members of Local 463 and the membership evidence of two persons who have applied to be members of Local 599. Each of the applications for membership is evidence of membership in a particular local union of the United Association of Journeyman and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada and is not evidence of membership in any other local union of the U.A. Although evidence of membership in a local union is sufficient where an international or a parent union applies for certification, evidence of membership in an international union or of membership in a particular local of a union is not sufficient where it is a local other than the local to which the application for membership was made which applies for certification. (See, for example Bernardin of Canada Limited, [1975] OLRB Rep. Oct. 737, The Explorer Inns, Limited, [1978] OLRB Rep. June 541, Wallaceburg Hydro Electric System, [1975] OLRB Rep. Oct. 783, Union Electric Supply Co. Limited, [1983] OLRB Rep. May 829, Menkes Developments Inc., [1987] OLRB Rep. Oct. 1290.
In Board File 1319-91-R the applicant is U.A. Local 46. There are only two pieces of membership evidence which relate to that applicant. The documentary evidence before the Board indicates that the bargaining unit consists of at least seven persons (as specified in the Form 80 Declaration filed by U.A. Local 46) and perhaps as many as nine persons (as indicated in the respondent's reply). The two applications for membership are thus numerically insufficient to either certify Local 46 for the bargaining unit which it seeks or to order the taking of representation vote pursuant to section 7(2) of the Act. The same holds true for the application by U.A. Local 599 in Board File 1320-91-R. The two applications for membership which relate to that applicant are numerically insufficient to certify Local 599 or to order a representation vote pursuant to section 7(2) of the Act as the Form 80 Declaration filed by Local 599 indicates there are at least seven persons in that bargaining unit.
In view of our decision herein we need not determine the sufficiency or propriety of the photocopied membership application and "certificate" which relates to membership in U.A. Local 46. U.A. Local 46 is not an applicant in these applications. Evidence of membership in U.A. Local 46 is not evidence of membership in either U.A. Local 463 or U.A. Local 599.
In an application for certification to which the construction industry provisions of the Act apply, the Board need not hold a hearing (section 102(14)). Given the unique nature of the construction industry and the transitory nature of persons employed in the construction industry, the Board often disposes of applications for certification in the construction industry without a hearing. The reasons for this have been articulated in many decisions of the Board. (See for example Westdale Painting & Decorating Ltd., [1989] OLRB Rep. Sept. 984.) It is for this reason that applicants for certification in the construction industry must be most circumspect in the quality of the evidence of representation filed in support of a claim for bargaining rights.
In the result, having regard to the documentary evidence before us, and the provisions of the Act we hereby dismiss these applications.