Ontario Labour Relations Board
[1995] OLRB Rep. August 1058
3698-93-R International Association of Bridge, Structural and Ornamental Iron Workers, Local 759, Applicant v. Dingwell's Machinery & Supply Limited, Responding Party
BEFORE: Inge M. Stamp, Vice-Chair, and Board Members W. A. Correll and P. V. Grasso.
APPEARANCES: Gary Caroline for the applicant; Fred J. W. Bickford for the responding party.
DECISION OF THE BOARD; August 18, 1995
This is an application for certification pursuant to the construction industry provisions of the Labour Relations Act. The applicant applied for its standard unit of ironworkers and iron-workers' apprentices in the ICI sector and all other sectors in Board Area No. 22, (The District of Thunder Bay).
For ease of reference we will refer to the applicant as Ironworkers Local 759 or the union and the responding party as Dingwell or the company. The International Association of Machinists and Aerospace Workers will be referred to as machinists or IAM. The jobsite at Northern Wood Preservers Inc. will be referred to as NWPI or jobsite.
The nature of the work is described as "installation of conveyors and miscellaneous steel and the erection of buildings at NWPI.
The Board (differently constituted) in its decision of February 23, 1994 made certain directions and stated as follows:
The responding party, in its response, states that all employees of the responding party are members of the International Association of Machinists and Aerospace Workers, and are currently covered by a collective agreement with that union which expires on April 30, 1996. Accordingly, the responding party states that this application is untimely. Various other submissions regarding the application are contained in the response.
In the construction industry the Board typically disposes of applications for certification without a hearing. In this case, as a result of the nature of the response, it is appropriate to schedule a heartng to hear the evidence and submissions of the parties. A Labour Relations Officer will be appointed to confer with the parties prior to the hearing in order to narrow (or perhaps eliminate) the issues to be dealt with by the Board at the hearing.
The Board notes that the International Association of Machinists and Aerospace Workers has not been provided with notice of this application. The Board orders that a copy of the application for certification and a copy of the response be sent to the International Association of Machinists and Aerospace Workers, and provides that trade union with twelve days to file an intervention in this application should it so desire.
Notice of this application was given to the machinists and the matter was scheduled for hearing. The Board heard the evidence of five witnesses during ten days of hearing and received twenty exhibits. No one appeared on behalf of the machinists throughout the numerous days of hearings. No intervention was filed by the machinists.
In Appendix "A" of its Response to Application for Certification, Construction Industry, the responding party took the position that this application is untimely, that the IAM represents all the employees of the company. In the alternative, a craft severance is inappropriate because of the nature of the business, the intermingling of employees and duties.
The Board heard a great deal of evidence. It is not necessary to set out this evidence in detail as the relevant evidence to our determination is not in dispute. The applicant's witnesses described, the work they performed at NWPI during the erection of structural and support steel and the installation of equipment. On the application date the work involved erecting support steel for the cumulator deck.
The evidence of Robert Bell shows the company negotiated directly with the employees as to the terms and conditions to be applied on this particular jobsite. It was Mr. Bell's evidence that if employees did not want to work under a separate arrangement then it was assumed the terms and conditions of the IAM agreement would apply. There was a meeting with the employees at the start of phase 1 of the NWPI site to discuss the scope of the work, the timing and their choice of working under the collective agreement or under a different arrangement working six or seven weeks at sixty hours per week and getting paid for ten weeks or working forty hours straight time under the collective agreement. This was referred to by Mr. Bell as a "win-win" situation. On the second phase the employees rejected a similar arrangement and worked under the IAM agreement.
Both Mr. Bell and Mr. Gilbride testified with respect to the company's history in performing this kind of installation since 1951.
The responding party takes the position that while this case took 10 days it is not that complex. Both the issues and the evidence are fairly simple and the responding party submits leads inescapably to certain conclusions. Counsel submits it is possible to lose sight of the real issue because the Board heard a lot of extraneous evidence which is a long way from the issue of whether this application is timely.
Counsel for the responding party refers to the collective agreement of the machinists, exhibit no. 5, which is effective from May 1, 1993 and runs for three years, until April 30, 1996. Counsel refers also to the purpose clause in the collective agreement which together with the original certification in 1953 defines the scope of the bargaining unit. The responding party submits on the application date four of the five persons at work in the proposed bargaining unit were occupying classifications that are covered under article 3 of the collective agreement. All except one were paying dues to the IAM.
Counsel for the responding party states that the evidence shows this company has done similar work since 1951 including the work currently performed at NWPI and that employees on all those jobs were covered by the IAM's collective agreement at all times. This evidence is unchallenged. Counsel refers to articles 1:03, 16:03 and 16:04 of the collective agreement in support of its position that the work at NWPI is covered by the machinists' collective agreement.
The responding party in support of its case cites the following cases: Corporation of the City of St. Thomas, [1993] OLRB Rep. May 408; The Ottawa Citizen v. Ottawa Newspapers Guild, [1969] OLRB Rep. Mar. 1268; The Parkdale Wines Limited, [1970] OLRB Rep. July 485; RE The Crown in Right of Ontario and O.P.S.E.U., (1985) 1985 CanLII 5383 (ON LA), 19 L.A.C. (3d) 161; Dover Corporation (Canada) Limited, [1976] OLRB Rep. Dec. 807; Atway Transport Inc., [1989] OLRB Rep. June 540.
The applicant submits the work performed by the persons in the proposed bargaining unit was construction industry work. The applicant points out there is only one party claiming a bar, the responding party. In the applicant's view the absence of the machinists "speaks volumes". The applicant states the responding party bears the onus with respect to three issues,
a) collective agreement bar
b) not construction industry work
c) not work of the ironworkers trade.
The applicant asserts there is no evidence led by the responding party supporting their contention that the work is not construction industry work or not ironworkers' work. Counsel further submits there is no direct evidence that the machinists union was aware of any special arrangements for site work. However even if they did know it would not create bargaining rights for the International Association of Machinists & Aerospace Workers over the five persons in question.
In support of its position the applicant relies on the following cases: Volcano Inc., [1988] OLRB Rep. Jan. 97; Rockwell International Corporation, [1981] OLRB Rep. June 780; Memorial Hospital, Bowmanville, [1975] OLRB Rep. Apr. 391; Ecodyne Limited, [1979] OLRB Rep. July 629; The Corporation of the City of Etobicoke, [1983] OLRB Rep. Nov. 1825; Duplate Canada Ltd., 60 CLLC 16,169 (OLRB); The Frid Construction Company, Limited, [1975] OLRB Rep. March 146; and J. C. Carpentry, [1982] OLRB Rep. Nov. 1649.
In reply, the responding party's counsel addressed the union's assertion as to what conclusions the Board should draw by the absence of the IAM. Counsel submits the IAM could have intervened and supported the applicant - but it took no position whatsoever. The fact that the machinists took no position whatsoever in the context of a forty year collective bargaining relationship should lead the Board to draw an inference more favourable to the company than the applicant. That is particularly so given the manner in which the applicant first raised this issue, namely filing a jurisdictional dispute application.
Counsel for the responding party urges the Board to read its notes carefully and reject some of the characterizations in the written submissions of the applicant. In some areas the responding party disputes the evidence as interpreted by the applicant including whether the employees approached the union or if it was the other way around.
Counsel for the responding party submits the Board, differently constituted, identified the threshold issue in its decision of April 18, 1994 as the timeliness issue. In dealing with the other issues counsel for the responding party made it clear he is in no way agreeing that it is necessary for the Board to make those determinations, i.e. is this construction work? The responding party submits there is no reason to depart from the Gilvesy test regarding what work was done on the application date. Counsel submits the Board cannot disregard the evidence of Mr. Bell and Mr. Gilbride regarding the range of similar work, for example welding work on a steel structure, the frame supporting the cumulator deck.
Decision
There is a threshold issue, namely is the machinists agreement a bar to this application. Or, in other words, is the work performed by the employees that are affected by this application covered by the machinists agreement? It is not clear to the Board how one can deal with the timeliness issue without first looking at the work that was performed on the application date by the employees working in the proposed bargaining unit.
Having reviewed the evidence the Board finds the work performed by the persons affected by this application on the application date, is construction work as defined in the Labour Relations Act. It is work performed in the ICI sector of the construction industry. We are satisfied on the totality of the evidence before us that this is work within the jurisdiction of the Ironworkers. We then look at the evidence to determine whether the IAM collective agreement is a bar to this application. The responding party referred us to articles 1.03, 16.03 and 16.04 of that agreement in support of its contention that the collective agreement does apply to the work performed on site.
Articles 1.03, 16.03 and 16.04 read as follows:
1.03 The Union recognizes the sole right of the Company to manage its affairs and direct the work of its employees. This will be deemed to include the right to hire, promote, demote, suspend, discharge for cause, and transfer employees from one job to another job, and increase or decrease the working force of the Company from time to time. Nothing in this agreement shall be construed or interpreted as limiting the Company in any way in the exercise of the regular and customary functions of the Management including the extension, limitation, curtailment or cessation of its operations.
16.03 The Company will provide proper protection from the elements when transporting men to and from outside work.
16.04 Employees are not required to use personal vehicles for Company work.
Articles 16.03 and 16.04 refer to safety. article 1.03 is the managements rights clause and does not speak to bargaining rights with respect to on site work.
The collective agreement describes the skills of a journeyman machinist in article 2.
2.01 Journeyman Machinist
A Journeyman Machinist is one with a valid Ontario Machinist's Certificate or five (5) years' experience in the machining trade, ninety (90) calendar days experience in the Company, and one who can be effectively proficient.
The basic factors on which a Machinist must be proficient are as follows:
Lathe work.
Milling.
Vertical Boring.
Horizontal Boring.
Shaping.
Planing.
Radial Drill Press work.
Bench, floor and field work.
Layout work.
The following elements are essential to the successful completion of job assignments and are to be considered when appraising the employees' performance on the basic factors of the trade.
Set up job.
Select, sharpen and obtain proper contours on cutting tools.
Adjust cutting tools and operate machine tools at an efficient rate.
Use measuring tools and devices effectively.
obtain specified finish and tolerance.
Consistently produces and acceptable amount of work of standard quality.
Article 2.02 describes what is expected of journeyman welder.
The classifications and wage rates are set out in article 3.04 effective May 1, 1994 the hourly wages are:
ARTICLE 3- MINIMUM RATES OF PAY
3.01 The application of the terms of this agreement shall not have the effect or reducing any employee's wage rate in force at the time of its execution.
3.02 Machinists' lead hands are to be paid thirty-five (35) cents per hour above their regular classification.
3.03 Welder lead hands are to be paid twenty-five (25) cents per hour above their regular classification.
3.04 Classification and Wages:
May 1/93 May 1/94 May 1/95
Journeyman Machinist — Standard 19.96 20.16 20.56
Journeyman Machinist — Intermediate 18.97 19.16 19.54
Journeyman Machinist — Starting 17.96 18.14 18.50
Journeyman Welder — Standard 19.96 20.16 20.56
Journeyman Welder — Intermediate 18.97 19.16 19.54
Journeyman Welder—Starting 17.96 18.14 18.50
Labourer—Standard 10.04 10.14 10.34
Labourer—Starting 8.13 8.21 8.38
The collective agreement does not refer to any classification or definition with respect to the installation of conveyors, structural steel or the erection of buildings.
It is clear from the responding party's own evidence that it is rather casual in its approach to applying the IAM collective agreement on the NWPI jobsite. Negotiations are conducted directly with the employees for special arrangements and another person is working without paying dues to the IAM. There is some disagreement in the evidence with respect to whether the employees had a choice of accepting the special arrangement or working under the IAM collective agreement or some other arrangement. For the purpose of deciding whether the IAM agreement is a bar to this application much of the evidence is not relevant including whether there was a choice, whether dues were paid or other arrangements were made or whether there was a union steward on site. What is relevant is that the collective agreement itself does not make any reference to the work performed. The terms and conditions of the collective agreement, on the company's own evidence, were either applied in a casual or flexible manner or not at all. Terms and conditions were unilaterally negotiated with employees. There is no direct evidence before us of the IAM's knowledge of these arrangements.
Of significance is the absence of the IAM. Both parties ask the Board to draw inferences in their favour by this absence. The decision of the Board (differently constituted) clearly sets out the threshold issue affecting bargaining rights of the IAM (see paragraph 4 above) and directing that notice of the hearing be sent to the IAM. As indicated before no one appeared on behalf of the IAM to assert that the work performed at NWPI is covered by the IAM collective agreement.
Based on all of the evidence, both viva voce and documentary, we find that the IAM collective agreement does not cover this work and therefore the IAM agreement is not a bar to this application.
The Board finds that the applicant is a trade union within the meaning of section 1(1) of the Labour Relations Act and is an affiliated bargaining agent of a designated employee bargaining agency. Pursuant to the designation issued by the Minister under section 141(1) of the Act on April 12, 1978, the designated employee bargaining agency is the International Association of Bridge, Structural and Ornamental Iron Workers and the Iron Workers District Council of Ontario.
The Board further finds that this is an application for certification within the meaning of section 121 of the Labour Relations Act and is an application made pursuant to section 146(1) of the Act which provides that:
An application for certification as bargaining agent which relates to the industrial, commercial and institutional sector of the construction industry referred to in the definition of "sector" in section 119 shall be brought by either,
(a) an employee bargaining agency; or
(b) one or more affiliated bargaining agents of the employee bargaining agency,
on behalf of all affiliated bargaining agents of the employee bargaining agency and the unit of employees shall include all employees who would be bound by a provincial agreement together with all other employees in at least one appropriate geographic area unless bargaining rights for such geographic area have already been acquired under subsection (3) or by voluntary recognition.
The Board further finds, pursuant to section 146(1) of the Act, that all ironworkers and ironworkers' apprentices in the employ of the responding party in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and all ironworkers and ironworkers' apprentices in the employ of the responding party in all other sectors in the District of Thunder Bay, save and except non-working foremen and persons above the rank of non-working foreman, constitute a unit of employees of the respondent appropriate for collective bargaining.
The 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 January 24, 1994, the certification application date, had applied to become members of the applicant on or before that date.
Section 146(2) of the Act, which states in part as follows, provides for the issuance of more than one certificate if the applicant has the requisite membership support:
……the Board shall certify the trade unions as the bargaining agent of the employees in the bargaining unit and in so doing shall issue a certificate confined to the industrial, commercial and institutional sector and issue another certificate in relation to all other sectors in the appropriate geographic area or areas.
Therefore, pursuant to section 146(2) of the Act, a certificate will issue to the applicant affiliated bargaining agent on its own behalf and on behalf of all other affiliated bargaining agents of the employee bargaining agency named in paragraph 31 above in respect of all ironworkers and iron-workers' apprentices in the employ of Dingwell's Machinery & Supply Limited in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario, save and except non-working foremen and persons above the rank of non-working foreman.
- Further, pursuant to section 146(2) of the Act, a certificate will issue to the applicant trade union in respect of all ironworkers and ironworkers' apprentices in the employ of the Dingwell's Machinery & Supply Limited in all sectors of the construction industry in the District of Thunder Bay, excluding the industrial, commercial and institutional sector, save and except nonworking foremen and persons above the rank of non-working foreman.