International Brotherhood of Electrical Workers, Local 120 v. Precision Alarms and Signal Systems Limited
[1993] OLRB REP. APRIL 381
2858-92-R International Brotherhood of Electrical Workers, Local 120, Applicant v. Precision Alarms and Signal Systems Limited, Responding Party
BEFORE: R. 0. MacDowell, Alternate Chair, and Board Members G. 0. Shamanski and D. A. Patterson.
APPEARANCES: Bernard Fishbein and Don Thompson for the applicant; Kenneth Duggan and Brian P. Smith for the responding party.
DECISION OF THE BOARD; April 28, 1993
1This is an application for certification.
2The Board finds that the applicant is a trade union within the meaning of section 1(1) of the Labour Relations Act.
3Having heard and considered the parties' representations, the Board finds the following to be a unit of employees appropriate for collective bargaining:
all employees of Precision Alarms and Signal Systems Limited employed as service technicians at and out of the City of London, save and except service/operation manager and persons above the rank of service/operation manager, office and clerical, persons employed in the central receiving station and persons regularly employed for not more than twenty-four hours per week.
4This application was filed on December 21, 1992. It was originally described as an application pertaining to the construction industry because (it was said) the employer's business involved the installation and maintenance of alarm systems. Subsequently, the union sought to amend the bargaining unit description when the employer took the position (and it became apparent) that it was not a business in the construction industry. As a result of this request, the Board extended the terminal date and directed a re-posting to ensure that any employees potentially affected by this application would have notice. It should be noted, however, that regardless of this dispute about the description of the bargaining unit, it has been clear from the outset that the application relates to employees servicing alarm systems in the London area.
5The employer contends that the "application date" should not be December 21 when the application was filed, but rather the date on which the union acknowledged that it did not pertain to the construction industry and requested the change in the bargaining unit description so that it conforms to the actual nature of the employer's business. In effect, the employer urges the Board to treat the situation as if a new application had been made at that time - with the result that the number of employees actively at work on the application date is smaller and the identity of those employees is different than on December 21, 1992 when the application was filed with the Board.
6In Gallant Painting, [1987] OLRB Rep. Mar. 372, the Board held, in part:
2.... in circumstances where an application for certification has been brought under the construction industry provisions and those provisions have subsequently been found not to be applicable, it has been the Board's practice to treat the application as though it had been made under the general provisions (see, for example, J.A. Wilson Display Ltd., [1983] OLRB Rep. July 1080; Township of Loughborough, [1975] OLRB Rep. Feb. 122). …
That is what has happened here. There has been no "new" application for certification after December 21, 1992, but rather a refinement of the parties' positions in an existing application; moreover, the union's characterization of this proceeding as one to which the construction industry provisions of the Act relate is, at most, a technical error or irregularity. The fact that there was a change in the bargaining unit description to more precisely reflect the nature of the employer's operations and a consequent new notice to employees and extension of the terminal date, does not alter the fact that the application date was and remains December 21, 1992. Whether or not the Board has jurisdiction to declare the application date to be something else, the Board sees no reason why it should do so here, or depart from the approach enunciated in the cases mentioned above.
7The Board is satisfied, on the basis of all the evidence before it, that more than fifty-five per cent of the employees of the responding party in the bargaining unit on December 21, 1992, the certification application date, had applied to become members of the applicant on or before that date.
8A certificate will issue to the applicant.