International Union of Bricklayers and Allied Craftsmen, Local 5 v. Corporation of the City of St. Thomas

[1993] OLRB REP. MAY 408

1364-92-R; 1444-92-R International Union of Bricklayers and Allied Craftsmen, Local 5, Applicant v. Corporation of the City of St. Thomas, Responding Party v. Canadian Union of Public Employees, Intervenor; Labourers' International Union of North America Local 1059, Applicant v. Corporation of the City of St. Thomas, Responding Party v. Canadian Union of Public Employees, Intervenor

BEFORE: S. Liang, Vice-Chair, and Board Members D. A. MacDonald and I. Kurchak.

APPEARANCES: L. A. Richmond and J. Haggis for the applicant; Ray Werry for the responding party and Dave Foley for the intervenor.

DECISION OF THE BOARD; May 26, 1993

1. These are applications for certification filed by the International Union of Bricklayers and Allied Craftsmen, Local 5 ("the Bricklayers") and the Labourers' International Union of North America ("the Labourers") with respect to employees of the Corporation of the City of St. Thomas ("the City"). The two applications were listed for hearing together, and the parties agreed to have them consolidated for the purpose of determining the preliminary issue, which is common to both. The preliminary issue which was heard by this panel is the timeliness of these applications. The City and the intervenor the Canadian Union of Public Employees ("CUPE") take the position that the applications are barred since there is a collective agreement between the City and CUPE, Local 35 which covers the bargaining units sought by the applicants. The applicants take the posi­tion that there is no overlap between the applications and the bargaining unit covered by the CUPE agreement or in the alternative, that CUPE has abandoned its bargaining rights with respect to the employees covered by these applications.

2. The applicants seek bargaining rights for their standard crafts units under section 146(1) of the Labour Relations Act. These applications were filed on August 5 and 7, 1992. The current collective agreement between CUPE, Local 35 and the City was entered into on June 26, 1992, to be effective from January 1, 1992 until December 31, 1993. Accepting the position of the City and CUPE, these applications have been brought outside the time period specified under section 5(4) of the Act.

3. The Board heard the.evidence and representations of the parties. At the conclusion of the hearing, on May 5, 1993, the Board ruled orally that these applications are barred by the col­lective agreement between the City and CUPE, Local 35 and dismissed the applications. The Board ruled that it was satisfied that the CUPE collective agreement covers the bargaining units sought by the applicants, and that there has been no abandonment of the bargaining rights with respect to these units. We now provide our reasons for that ruling.

4. Over the course of the hearing, the Board heard evidence from various representatives of the City, as well as from David Foley on behalf of CUPE. The Board also received documents from the parties such as collective agreements, photographs and correspondence. The evidence demonstrates that over the course of many years, the City has undertaken various construction projects, using members of its own workforce. The projects to which the witnesses testified took place under the auspices of the City's Public Works Department and Parks and Recreation Depart­ment. Employees of the City in the Public Works Department have done work on roads, curbs, gutters, sidewalks, drainage systems, erosion control systems, storm sewers and other outdoor projects. This work includes excavation, forming, pouring concrete, asphalt work, and various other construction tasks. The City also contracts out work to construction companies. Much of the work performed by the City may be characterized as maintenance, but we are satisfied that a sig­nificant portion is work in the construction industry.

5. Most of the City's employees performing this work are classified as "Medium Equip­ment Operator". The Department also hires seasonal employees classified as "Student Labourer" or "Casual Labourer". There is no classification of "Construction Labourer", which is the con­struction trade for which the Labourers seek bargaining rights. However, we are satisfied that the work of construction labourers has been performed by members of the City's workforce involved in the above projects.

6. Part of the responsibilities of the City's Parks and Recreation Department is the con­struction, improvement and maintenance of facilities such as sports arenas, concession buildings and park pavilions. The City has used members of its own workforce over the years in projects involving the renovation of these facilities. The City has also contracted some of this work to con­struction companies. Sometimes, employees of contractors and employees of the City are involved in the same project. There is no classification of "Bricklayer" in the CUPE collective agreement, but employees of the City have done bricklaying and blocklaying as part of these projects. This work appears to be seasonal in nature and the employees involved in it are generally classified as “Casual Labourer”. The City has also contracted for bricklaying work through a sub-contractor.

7. In the fall of 1991, the City sought funding under a provincial government program and a federal government program to hire additional employees in 1992. The funding would permit the City to hire persons who otherwise would be receiving welfare or unemployment insurance bene­fits. These employees would be engaged in various projects in the City's parks system, including the construction of a building at Athletic Park. The City informed CUPE of its intent to enter into these programs. CUPE agreed to waive dues deductions for the employees for the duration of the program. The evidence was that the work performed by these employees would not have been done by the City in the absence of special funding permitting it to hire the additional staff. The work, however, is not dissimilar from work which the City has performed in the past with its own forces.

8. Employees hired under the federal program were paid directly by Employment and Immigration Canada, and those under the provincial program, by the City. The wages under the federal program were those established by Employment and Immigration Canada, with the excep­tion of two "blocklayers" to whom the City, with the concurrence of CUPE, agreed to pay an addi­tional $5.00 per hour over the program wages. The wages under the provincial program were those established under the collective agreement for casual labourers.

9. The applicants submit that CUPE has never represented labourers or bricklayers. Counsel for the applicants states that although there may be an overlap of work between the CUPE bargaining unit and the bargaining units sought by the applicants, such an overlap does not affect these applications. In essence, he argues that the performance of construction work by mem­bers of the CUPE bargaining unit should not be equated with bargaining rights for construction trades. Counsel submits that it is clear from the terms of the collective agreement that it was not meant to apply to construction trades. Although the recognition clause states that it covers "all employees", the provisions do not reflect any of the standard terms which are found in construc­tion industry collective agreements.

10. In the alternative, the applicants submit that if CUPE has ever represented labourers or bricklayers, they have abandoned their bargaining rights with respect to these employees. The evi­dence with respect to the job creation programs shows that CUPE had no wish to represent the employees hired under the programs. The applicants rely on the following cases: Metro Railing Ltd., [1986] OLRB Rep. Dec. 1731; Leeds and Grenville County Board of Education, [1993] OLRB Rep. Feb. 141; Runnymede Development Corporation Limited, [1987] OLRB Rep. Oct. 1305; Ben Bruinsma and Sons Limited, [1984] OLRB Rep. Mar. 404; E K T Industries Inc., [1987] OLRB Rep. Mar. 352; Ecodyne Limited, [1979] OLRB Rep. July 629; Metrus Contracting Limited, [1979] OLRB Rep. Oct. 1009; Farquhar Construction Limited, [1978] OLRB Rep. Oct. 914; Hashman Construction Limited, [1973] OLRB Rep. Apr. 205; York-Finch General Hospital, [1987] OLRB Rep. Apr. 641; J.S. Mechanical, [1979] OLRB Rep. Feb. 110; President Motor Hotel, [1985] OLRB Rep. Sept. 1414; Montreal House, [1989] OLRB Rep. Jan. 29; Ted Stothers, [1990] OLRB Rep. Mar. 347; The Municipality of Metropolitan Toronto, [1980] OLRB Rep. Jan. 62; The Corporation of the City of Toronto, [1978] OLRB Rep. Dec. 1145; Harm Schilthuis and Sons Limited, Board File No. 2428-83-R, dated January 31, 1985 unreported and Emery Industries (Canada) Ltd., (1970) 1970 CanLII 1681 (ON LA), 21 L.A.C. 163.

11. The Board is satisfied that the collective agreement applies to the groups of employees whom the applicants seek to represent. The recognition clause covers all employees of the City in its "outside" departments. The only specific exclusions are foremen and those above the rank of foremen, and employees covered under the agreement of Local 841 (which is the CUPE "inside" local). The wording of the recognition clause is not always determinative of the issue, but in this case, the evidence is consistent with the terms of the agreement in establishing that it was meant to apply to all outside workers, including those engaged in construction work. Crossing guards, who are arguably "outside" workers, are apparently covered by a part-time collective agreement with Local 841, but are in any event employed by the engineering section of the City's operations, and not by the departments listed in the Local 35 agreement. We do not view this as significant in determining the intent of the Local 35 agreement.

12. It is also not significant to us that there are no specific wages in the agreement for brick­layers or construction labourers. Until 1992, the City relied on employees with a variety of skills to perform its construction work, rather than employees who were highly specialized. The lack of classifications for specific construction trades does not lead to the conclusion that in the event the City decided to create such classifications, CUPE would not be entitled to represent these employ­ees. In fact, in 1992, the City decided to hire two bricklayers as part of the job creation programs. We are satisfied that the City looked to CUPE to consent to the special arrangements and that CUPE agreed. The evidence of these discussions is consistent with an understanding that CUPE represents all outside workers hired by the City. It does not support the conclusion that CUPE has bargaining rights for employees with general skills who sometimes work in construction, but not for employees hired for specialized construction skills, if the City hired them. It also does not sup­port the conclusion that CUPE intended to abandon bargaining rights for bricklayers, labourers, casual labourers, or construction employees hired under job creation programs.

13. Our findings are consistent with those in the cases submitted by counsel for the appli­cants. For instance, Runnymede Development Corporation Limited, supra, involved bargaining units described in terms of specific construction trades. There, the Board found that the "mere fact that members of one trade union, pursuant to the terms of a collective agreement, perform work that members of another trade union perform as well (for other employers), does not mean that that collective agreement covers that other trade." That case did not involve a collective agreement which on its face applies to "all employees". The present case is also distinguishable from E K T Industries Inc., supra, in which the Board found that despite an "all employee" recognition clause, the union in question represented and only claimed to represent construction labourers.

14. Our present case is also different from the two cases referred to by counsel for the applicants relating to municipalities and construction trade unions, The Municipality of Metropoli­tan Toronto, supra, and The Corporation of the City of Toronto, supra. In the former, the appli­cant union had for many years supplied temporary carpenters from its hiring hail to the employer, and the intervener union had never sought to represent these temporary carpenters. In the latter case as well, the intervener union did not claim to represent any of the persons affected by the application.

15. For the reasons above, the Board found these applications to be untimely, and dis­missed the applications at the hearing.