[1995] OLRB Rep. December 1471
1336-95-R The Residential Low Rise Forming Contractors Association of Metropolitan Toronto and Vicinity, Applicant v. Labourers' International Union of North America, Local 183, Responding Party v. Metropolitan Toronto Apartment Builders Association; Toronto Residential Construction Labour Bureau; Toronto Housing Labour Bureau; Ontario Formwork Association; Residential Framing Association; and Ontario Concrete & Drain Contractors Association, Intervenors
BEFORE: D. L. Gee, Vice-Chair, and Board Members F. B. Reaume and J. Redshaw.
APPEARANCES: Carl Peterson and Harold Piccininni for the applicant; A. M. Minsky and A. Pinto for the responding party; Joseph Liberman and Richard Lyall for Metropolitan Toronto Apartment Builders Association and Toronto Residential Construction Labour Bureau; Pino Celsi for Ontario Concrete & Drain Contractors Association; Ernesto Arduini for Ontario Formwork Association; Carlo D'Ambrosio for Residential Framing Association; no one appearing on behalf of Toronto Housing Labour Bureau.
DECISION OF THE BOARD; December 11, 1995
This matter is an application for accreditation, filed on June 30, 1995 under section 127 of the Labour Relations Act. On November 10, 1995, the Labour Relations and Employment Statute Law Amendment Act, 1995 was given Royal Assent, thereby bringing into effect the Labour Relations Act, 1995. The differences between the Labour Relations Act and the Labour Relations Act, 1995 have no bearing on this case. The section numbers referred to in this decision are as they were under the Labour Relations Act.
A hearing was held on November 7,1995 for the purpose of hearing submissions on the issue of the appropriate bargaining unit.
The applicant and the responding party are in agreement that the unit of employers should be described as follows:
all employers of employees engaged in concrete forming construction for whom the responding party has bargaining rights in the County of Simcoe, the Municipality of Metropolitan Toronto, the Regional Municipalities of Peel and York, the Towns of Oakville and Halton Hills and that portion of the Town of Milton within the geographic Township of Esquesing and the Towns of Ajax and Pickering in the Regional Municipality of Durham in the residential sector of the construction industry.
For purposes of clarity, it is noted that the said work involves residential concrete forming construction, including single and semi-detached houses, row houses, maisonettes, town houses and apartment buildings of hearing [sic] wall construction to and including ground floor and balconies, but not other high rise buildings, as set forth in Article 1.02 of the collective agreement between the parties hereto. It is also noted that employers bound by and who perform work under any of the following collective agreements in accordance with past or existing practices as at the date hereof are not included in the said unit of employers, namely:
(a) Collective Agreement between the Ontario Formwork Association and the Formwork Council of Ontario.
(b) Collective Agreement between the Metropolitan Toronto Apartment Builders' Association and the Responding Party.
(c) Collective Agreement between the Toronto Housing Labour Bureau and the Responding Party.
(d) Collective Agreement between the Residential Framing Contractors Association of Metropolitan Toronto and Vicinity and the Responding Party.
(e) Collective Agreement between the Ontario Concrete and Drain Contractors Association and the Responding Party.
(f) Collective Agreement between the Utility Contractors Association of Ontario and Labourers' International Union of North America, Ontario Provincial District and its affiliated Local Union.
(g) Collective Agreement between the Restoration Contractors Association of Ontario and the Responding Party.
The Ontario Formwork Association (an employers' association representing employers who perform high rise concrete forming in the residential sector), the Ontario Concrete and Drain Contractors Association and the Residential Framing Association support the application and the appropriateness of the unit of employers as set out above.
The Metropolitan Toronto Apartment Builders Association ("MTABA") and the Toronto Residential Construction Labour Bureau ("TRCLB") submit that the unit sought is not an appropriate unit. The MTABA and TRCLB assert that the unit should either include all employers bound to the Low Rise Forming collective agreement and the collective agreements excluded by paragraphs (a) through (e) and (g) of the unit sought, or should include all employers bound to the Low Rise and High Rise Forming collective agreements referred to in the application.
In support of the position that the unit should include all employers bound to the Low Rise Forming collective agreement and the collective agreements excluded by paragraphs (a) through (e) and (g) of the unit sought, counsel for MTABA and TRCLB indicated that Local 183 bargains with a number of employer groups that represent contractors who perform various types of work including low rise concrete forming, high rise concrete forming, framing and sewer and watermain work in the residential sector of the construction industry. Although the bargaining is not done together, and it was not suggested that any employer group has any influence with respect to the negotiations of any other employer group, it is asserted that the bargaining is conducted contemporaneously and involves work in the same sector of the construction industry. In addition, there are cross-over clauses in the various agreements that have the effect of binding employer groups to the other collective agreements in the residential sector. It was submitted that, in order for the accreditation order to give effect to the manner in which bargaining actually takes place, the unit must include all employers who employ employees in concrete forming which includes all employers bound by the cross-over clause.
In support of the alternative position that the unit must include all employers bound to the Low Rise and High Rise Forming collective agreements, counsel submits that what the Board is being asked to do in this case is to accredit the applicant for a portion of the residential sector. If the unit is described in the terms agreed to by the applicant and Local 183, the applicant will effectively be accredited to represent employers who perform low rise concrete forming in the residential sector. In counsel's submission, the Board has said that it is reluctant to divide a sector and will not do so unless there are compelling reasons. Counsel relies on Metropolitan Plumbing and Heating Contractors Association, [1973] OLRB Rep. April 199.
Counsel for the applicant and Local 183 submit that the Board's task is to determine the appropriate unit for collective bargaining and that section 128 of the Act contemplates the accreditation of an employers' association for a unit of employers described in terms of part of a sector. It is argued that the language of section 127 of the Act envisages that the unit of employers will be predicated on the scope and nature of the bargaining rights established between the applicant and the union. The applicant and Local 183 submit that the Board's jurisprudence establishes that the Board typically determines the appropriateness of the unit by asking whether the unit proposed accords with the existing bargaining structure and whether it is a viable unit for collective bargaining purposes.
Counsel submit that the bargaining pattern in existence supports the appropriateness of the unit sought. Counsel dispute that the fact that the applicant's agreement is negotiated at the same time as other agreements in the residential sector is of any significance. Literally dozens of collective agreements were negotiated contemporaneously this past summer. It will happen again in 1998 when such agreements are renegotiated. The fact that agreements are negotiated at the same time in no way suggests (nor did counsel for MTABA and TRCLB do so) that the employer groups bargain together or have any say in one another's negotiations. Each employer association bargains on behalf of its own employer group and enters into separate collective agreements which have their own unique characteristics. A finding that either of the units proposed by the intervenor is appropriate, would effectively over-ride existing collective agreements. Further, the agreements excluded from the bargaining unit description in paragraphs (a) to (e) and (g) are not an exhaustive list of Local 183's residential sector collective agreements.
Counsel for the applicant and Local 183 point out that the applicant has been bargaining for years on behalf of the employers in the unit it has proposed. It does not represent employers who engage in high rise concrete forming. The association which represents employers engaged in high rise concrete forming supports this application. The applicant is simply trying to codify a bargaining structure that has been in place for some time.
The applicant distinguishes Metropolitan Plumbing and Heating Contractors Association, supra, on the basis that the applicant, who represented employers who performed work in both the high rise and low rise portions of the residential sector, and the responding party, were in agreement that the unit be described in terms of all of the residential sector, and that it was an intervenor that was attempting to have the unit described in terms of part of the residential sector. The applicant relies on Independent Plumbing & Heating Contractors Association, [1987] OLRB Rep. May 734 in which the Board subsequently accredited an employers association for a unit described in terms of the low rise part of the residential sector of the construction industry.
Decision
Sections 127 and 128 of the Act provide as follows:
Where a trade union or council of trade unions has been certified or has been granted voluntary recognition as the bargaining agent for a unit of employees of more than one employer in the construction industry or where a trade union or council of trade unions has entered into collective agreements with more than one employer covering a unit of employees in the construction industry, an employers' organization may apply to the Board to be accredited as the bargaining agent for all employers in a particular sector of the industry and in the geographic area described in the said certificates, voluntary recognition documents or collective agreements, as the case may be.
128.-(1) Upon an application for accreditation, the Board shall determine the unit of employers that is appropriate for collective bargaining in a particular geographic area and sector, but the Board need not confine the unit to one geographic area or sector but may, if it considers it advisable, combine areas or sectors or both or parts thereof.
(2) The unit of employers shall comprise all employers as defined in section 119 in the geographic area and sector determined by the Board to be appropriate.
Section 127 provides that, where a trade union has entered into collective agreements with more than one employer that cover a unit of employees in the construction industry, an employers' organizations may apply to be accredited as bargaining agent for all employers in a particular sector and in the geographic area described in the collective agreements. Thus, the language of section 127 suggests that the unit described in the collective agreements to which the union is a party is a unit for which the employers' organization may apply to be accredited. Section 128 the Act mandates the Board to determine the unit of employers that is appropriate for collective bargaining and stipulates that, if it considers it advisable, the Board may combine areas or sectors or parts thereof. Thus, as the Board ruled in Independent Plumbing & Heating Contractors Association, [1987] OLRB Rep. May 734 at paragraph 8 and The Heavy Construction Association of Toronto, [1973] OLRB Rep. May 245 at paragraph 18, while the Board is mandated by section 128 of the Act to determine the unit of employers appropriate for collective bargaining, the Board is not restricted from defining the unit by reference to part of a sector where, in the Board's opinion, it is advisable to do so.
The Board's jurisprudence establishes that, in determining the "appropriate" unit of employers, the Board considers the pattern of collective bargaining that exists at the time the application is made (see: Independent Plumbing & Heating Contractors Association, supra, and cases referred to therein). In Association of Millwrighting Contractors of Ontario, [1973] OLRB Rep. Oct. 545, the Board, in the course of rejecting an argument that the geographic scope of the unit should not mirror the province-wide scope of the bargaining relationship between the applicant and the respondent, suggested that, absent reasons to the contrary, where a stable bargaining relationship exists, the unit will be described in terms of the established bargaining structure. To the extent the Board's decision in Metropolitan Plumbing and Heating Contractors Association, supra, may stand for the proposition that, in determining the "appropriateness" of a proposed bargaining unit, greater weight will be given to a desire to avoid dividing a sector than achieving a unit that is viable for collective bargaining, we disagree.
We turn then to a consideration of whether the unit proposed by the applicant and responding party in the instant case is an appropriate unit. As indicated above, one of the factors the Board considers when determining the appropriateness of a unit is whether it is viable for collective bargaining. The fact that the employers' organization and the union have negotiated successive agreements with respect to the unit sought would tend to suggest that the unit was in fact a viable one.
The applicant has represented employers in the unit sought in this application in negotiations with Local 183 in at least two successive rounds of collective bargaining. The applicant is a separate and independent employers' organization that is solely responsible for the conduct of such negotiations. Other employer organizations may be engaged in collective bargaining with Local 183 at the same time, but such organizations have no input into the applicant's negotiations. The applicant's collective agreement with Local 183 contains unique provisions and is a separate agreement from those entered into by other employer organizations. The present collective bargaining structure, whereby Local 183 has separate agreements with employers depending upon the type of work they are engaged in in the residential sector of the construction industry, has been in place for some time. The Board was not advised of any difficulties or labour relations problems which exist as a result of this bargaining regime. The employers' organization that represents employers engaged in concrete forming in the high rise part of the residential sector of the construction industry support this application.
Having regard to the foregoing, it is our determination that the unit, as set out in paragraph 3 above, sought by the applicant is a viable unit for collective bargaining purposes and is an appropriate unit.
The employer date in this matter is hereby set as January 15, 1996.
At the hearing, counsel for the responding party questioned the need to serve employers on Schedule "F" with notice of this application. For the reasons expressed by the Board at paragraph 27 of National Capital Roadbuilders Association, [1988] OLRB Rep. Oct. 1041, regardless of whether a final Schedule "F" is determined in this matter (an issue yet to be decided), employers on the responding party's Schedule "F" are to receive notice of this application. Accordingly, the Registrar shall serve all employers listed on the Schedule "E" and Schedule "F" with notice of the application and of hearing.