[1996] OLRB Rep. November/December 945
2210-96-M Labourers' International Union of North America, Local 1059, Applicant v. The John Hayman & Sons Company Limited, Responding Party
BEFORE: G. T Surdykowski, Vice-Chair, and Board Members F. B. Reaume and J. Redshaw.
APPEARANCES: Carolyn Hart and Jim MacKinnon for the applicant; George Hayman for the responding party.
DECISION OF THE BOARD; December 18, 1996
I
1Pursuant to the provisions of section 115 of the Labour Relations Act, 1995, the Minister has referred the following question to the Board:
Does the Minister of Labour have the authority to make the requested appointment of a conciliation officer?
2The "requested appointment of a conciliation officer" referred to in the Minister's question to the Board was made by the Labourers' International Union of North America, Local 1059, the union in this case. In that respect, the Minister's reference to the Board states as follows:
On July 26, 1996, the Union requested the appointment of a conciliation officer pursuant to section 18 of the Lobour Relations Act, 1995 ("Act"). According to the Application for the Appointment of a Conciliation Officer ("Application'), the Union is seeking to negotiate a first collective agreement.
According to the Application, the description of the bargaining unit is as follows:
All construction labourers in the employ of the Employer in the Counties of Oxford, Perth. Huron. Middlesex, Bruce and Elgin. excluding the industrial, commercial and institutional sector, and construction labourers engaged on all road and bridge construction projects, save and except non-working foremen and persons above the rank of non-working foreman. (emphasis added)
By letter dated August 6. 1996, the Employer objected to the appointment of the conciliation officer on the basis that it does not have employees in the sectors refetred to in the Application.
In response, the Union by letter dated September 3, 1996 takes the position that the Union has not abandoned its bargaining rights and is entitled to seek conciliation for the bargaining unit described in paragraph 2 of this Reference.
On or about November 15, 1984, the Union was certified as bargaining agent for:
…..all construction labourers in the employ of The John Hayman & Sons company Limited in the Counties of Oxford. Perth. Huron, Middlesex, Bruce and Elgin, excluding the industrial, commercial and institutional sector, save and except non-working foremen and persons above the rank of non-working foreman. (emphasis added)
On or about January 28. 1985, the Union and the Employer entered into a collective agreement effective from January 1, 1984 to December 31, 1995.
The recognition clause in the collective agreement provides as follows:
The Employer recognizes the Union as the sole collective bargaining agency for all its construction labourers engaged on all road and bridge construction projects within the Counties of Middlesex. Bruce. Elgin, Oxford, Perth and Huron, save and except non-working foremen, office, clerical and engineering staff. (emphasis added) [sic]
- By letter dated August 13, 1986, the Minister of Labour issued a 'No-Board letter for the bargaining unit described in paragraph 7 of this Reference.
[emphasis throughout supplied]
3The Minister then goes on to say that she is of the opinion that the circumstances raise a question regarding her authority to appoint a conciliation officer and she therefore refers that question to the Board for its advice. Attached to the Reference are several documents which pertain to the matter.
4The Board processed this reference in accordance with its usual procedures in that respect. Pursuant to Rules 81 and 82 of the Board's Rules of Procedure, the union and the employer were directed to file written statements of representations, and copies of all relevant documents. A hearing was scheduled and held on December 11, 1996.
5The purpose of the hearing was to hear the evidence and representations of the parties relating to the Minister's question to the Board. At the hearing, it was apparent that the material facts were not in dispute. Further, the employer's representative really had nothing to add to the written representations he had made.
6Upon hearing what the employer's representative had to say, the Board found it unnecessary to hear from the union, and told the parties that its advice to the Minister would be that she does have the authority to appoint a conciliation officer as requested by the union.
II
7In response to the union's request for a conciliation officer, the employer wrote to the Minister as follows:
We are in receipt of a copy of a letter addressed to Mr. Jim MacKinnon of the Labourers' Union Local 1059, dated August I, 1996 attached.
This letter refers to a request for appointment of a Conciliation Officer to resolve what is purported to be a conflict in bargaining for Construction Labourers in sectors of the industry outside ICI and roads and bridges.
We have never had employees or work in the sectors refetTed to in the application, and are unaware as to why we should be served with such notices and paper work and potential costs for both us and your department of government.
Please advise why we should be addressed in this way.
8It is not clear what the employer meant by the first paragraph of its response. In any case, it is apparent from the employer's subsequent written representations to the Board that it is the second paragraph which contains the basis for the employer's objection to the union's request.
9It is apparent from the employer's written representations, and from its submissions at the hearing, that the employer is still unhappy about the fact that the union was certified by the Board in 1984, and about what it asserts were the circumstances surrounding that certification.
10The certificate which the union obtained from the Board is dated November 15, 1984. It is now much too late to re-visit the Board's decision in that respect. In any case, there is nothing in the facts asserted by the employer which suggests that anything untoward occurred, or that it was inappropriate for the Board to certify the union. Further, the employer concedes that it subsequently entered into a collective agreement, albeit "reluctantly" with the union.
11In that respect, by written agreement dated January 28, 1995, the employer and the union agreed as follows:
The Employer recognizes the Union as the sole collective bargaining agency for all its construction labourers engaged on all road and bridge construction projects within the Counties of Middlesex. Bruce. Elgin. Oxford, Perth, and Huron, save and except non-working foremen, office, clerical, and engineering staff.
The Employer agrees it is bound to and will comply with the terms and conditions of the Agreement between Labourers' International Union of North America, Local 1059 and Towland (London) 1970 Limited. Riverside Construction Limited, Stebbins Paving & Construction Limited, effective January I. 1984 until December 31, 1985, and attached hereto.
Should the Employer undertake to do work that is commonly known as industrial, commercial and institutional construction it is agreed that the agreements between the Employer and the Employee Bargaining Agencies (EBA.) on all work within a building or excavation for a building shall take preference over this Agreement.
12The employer asserts that it has not been active in other than the industrial, commercial and institutional ("ICI") sector of the construction industry, and in roads and bridges construction. More specifically, the employer asserts that it has neither had employees nor performed work in the residential sector. The union does not dispute this.
13However, it is apparent that the employer has recently sought to obtain work, unsuccessfully to date, in the residential sector. For example, in or about April, 1996, the employer submitted a bid on the construction of a "residence" at the University of Western Ontario. It was apparent from what was said at the hearing that the employer intends to continue to seek work in sectors of the construction industry in which it has not previously been active, particularly the residential sector. It was also apparent that the employer thinks it shouldn't be obliged to bargain with the union in that respect, and that it should be tip to it to decide how the work will be done; that is, union or non-union.
III
14That is not how the Act works.
15Twelve years ago, the union was certified as the bargaining agent of all construction labourers in the employ of the employer in the Counties of Oxford, Perth, Huron, Middlesex, Bruce and Elgin in all sectors of the construction industry except the ICI sector (and save and except non-working foremen and persons above the rank of non-working foreman). Subsequently, the employer and the union entered into a collective agreement which was both larger and smaller in scope than the certificate which the union had obtained from the Board. It was larger because the employer agreed to perform any work it obtained in the ICI sector under the Labourers' provincial agreement. It was smaller in that the only non-ICI work covered by the agreement was road and bridge construction work.
16There is a theory that once an employer and trade union enter into a collective agreement which describes the bargaining unit which is covered by the agreement, the union's bargaining rights flow from that collective agreement, and any certificate which the trade union held in that respect has been 'spent". This theory has been applied and has currency outside of the construction industry. However, both the Act and the Board have long recognized that things are different in the construction industry. The Act has long contained a part which is devoted exclusively to the construction industry (currently sections 126 to 168), and a provision (currently section 110(5)) requiring that the Chair designate a construction industry division of the Board to deal with construction industry matters. Accordingly, the Board has been organized into at least two divisions, one of which primarily deals with construction matters, and one of which deals primarily with non-construction matters. The Board's jurisprudence also reflects the Board's recognition of the differences between construction and non-construction labour relations.
17One of the differences between construction and non-construction labour relations is that to the extent that the "spent certificate" theory applies at all in the construction industry, it does not apply merely because a trade union does not bargain a collective agreement which covers every sector of the construction industry. That is, whether a trade union is certified under what are now subsections 158(1) or (3) (which apply to designated employee bargaining agencies and their affiliated bargaining agents under the province-wide bargaining scheme in the Act), or subsection 158(5) (which applies to construction trade unions which are outside of the province-wide bargaining scheme), all non-ICI sectors are covered by a certificate. The fact that the employer did not have employees in one or more sectors of the construction industry prior to or at the time the application for certification was made, or that the employer does not intend to or is unlikely to have employees in one or more sectors of the construction industry does not affect the bargaining unit description in the certificate which the union obtains (if its application is successful). It has always been so. Whether the employer had employees in a single sector or in all sectors, the certificate has always been the same. That is, in an application under what is now subsection 158(1) of the Act, the trade union receives one certificate for a provincial unit in the ICI sector, and a second certificate covering all other sectors in the appropriate geographic area(s). Under subsection 158(3), the trade union receives a certificate for all sectors other than the ICI sector in the appropriate geographic area(s). Under subsection 158(5), the trade union receives an all sector certificate in the appropriate geographic area(s). (See, Colonist Homes, 11980] OLRB Rep. Dec. 1729; Watcon Inc., 11981] OLRB Rep. Nov. 1697; and Dagmar Construction Limited, [1987] OLRB Rep. Apr. 480.)
18Few construction industry employers are active in every sector of the construction industry. Most, including most general contractors, are active in one or perhaps a few sectors. Sometimes, construction employers expand their operations into other sectors, and sometimes they withdraw from a sector, perhaps temporarily or perhaps permanently. In the absence of a statutory provision which would require a different result, neither an employer's decision in this respect, nor the nature and ebb and flow of work in the construction industry can affect bargaining rights. Just as a trade union can obtain bargaining rights for an employer in a sector of the construction industry in which the employer has never had employees, a trade union will not lose bargaining rights with respect to an employer in a sector merely because the employer either continues to have no employees working in it, or the employer withdraws from the sector and temporarily or permanently ceases to have employees in it.
19In order for a construction trade union to lose bargaining rights which it has obtained, the bargaining rights must either be terminated in accordance with the provisions of the Act, or the union must be found by the Board to have abandoned its bargaining rights. Whether a trade union has abandoned bargaining rights is a question of fact which must be determined according to the circumstances of the particular case. (For a recent example of a construction case in which the Board dealt with the issue of abandonment, see G.S. Wark Limited, [1996] ORLB Rep. Sept/Oct. 811, Board File No. 0104-96-G, decision dated October 18, 1996.)
20For over thirty years, the Board has consistently held that the failure to pursue bargaining rights for non-existent employees in a sector of the construction industry in which the employer has not been, is not, and appears to have no intention of being active in, does not suggest abandonment. A trade union cannot be expected to engage in academic collective bargaining exercises with employers with respect to non-existent/expected employees. (Nor is it likely that employers would appreciate being required to do so, as they would be if a trade union sought to exercise such bargaining rights.) Concomitantly, construction industry bargaining rights are not extinguished by the mere passage of time. (See, for example, Streetstville Construction Limited. [1965] OLRB Rep. Apr. 47; Dravo of Canada Limited, [1977] OLRB Rep. Sept. 568; Inducon Construction (Northern) Inc., [1982] OLRB Rep. Mar. 390; Barkman Builders Ltd., [1984] OLRB Rep. Apr. 565; Ellis-Don Limited, [1988] OLRB Rep. Mar. 279; Elirpa Construction and Materials Limited. [1994] OLRB Rep. Apr. 372.)
21There is nothing in the materials before the Board which even remotely suggests that the union has abandoned any of the bargaining rights it obtained in 1984. The fact that it agreed to pursue the bargaining rights in only those sectors in which the employer was active does not suggest abandonment. Nor does the fact that the union did not force the employer to bargain a collective agreement in any sector in which the employer was not active, something which this employer would undoubtedly have protested as a waste of time and money, suggest abandonment. On the contrary, everything which is before the Board, including the union's attempt to pursue bargaining rights in the residential sector when it discovered that the employer had submitted a bid with respect to a project in that sector, suggest that the union has been vigilant in pursuing its bargaining rights.
IV
22Subsections 18(1) and (2) of the Act provide that:
- (1) Where notice has been given under section l6or 59, the Minister, upon the request of either party, shall appoint a conciliation officer to confer with the parties and endeavour to effect a collective agreement.
(2) Despite the failure of a trade union to give written notice under section 16 or the failure of either party to give written notice under sections 59 and 131, where the parties have met and bargained, the Minister, upon the request of either party, may appoint a conciliation officer to confer with the parties and endeavour to effect a collective agreement.
[emphasis added]
In this case, the employer has not disputed the union's assertion (in paragraph 3 of its Request for Appointment of Conciliation Officer) that it gave the employer written notice to bargain on March 30, 1994. Accordingly, and because there appears to be no reason to doubt the continued existence of the bargaining rights with respect to which the union seeks conciliation, the Minister has the authority to make the requested appointment of a conciliation officer.
23Before formally putting our answer to the Minister's question, we wish to correct a misstatement we made at the hearing. We stated that while we were satisfied that the Minister has the authority to appoint a conciliation officer, it is up to her whether or not she does so. In making that observation, we had in mind the discretion which the Minister has under section 21 of the Act regarding the formation of a conciliation board. Section 1 8, which deals with the appointment of conciliation officers, seems to require the Minister to appoint one when she has the authority to do so.
V
24In the result, our advice to the Minister, in response to her question to the Board is that: "Yes", the Minister of Labour has the authority to make the requested appointment of a conciliation officer.