Ontario Labour Relations Board

[1996] OLRB Rep. May/June 405

0352-96-R; 9580-96-G Robert Scafe, Applicant v. Labourers' International Union of North America, Local 1059, Responding Party v. Gavigan Contracting Ltd., Intervenor; Labourers' International Union of North America, Local 1059, Applicant v. Gavigan Contracting Ltd., Responding Party

BEFORE: Inge M. Stamp, Vice-Chair, and Board Members W N. Fraser and G. McMenemy

APPEARANCES: John H. McNair and Robert Scafe for the applicant; Carolyn Hart and Walter Medeiros for the responding party; Joel Levesque and Mark Gavigan for the intervenor.

DECISION OF THE BOARD; June 20, 1996

1. Board File No. 0352-96-R is an application for termination of bargaining rights in the construction industry. Board File Nos. 0580-96-G and 0581-96-G are Referrals of Grievance to Arbitration under section 133, Construction Industry.

2. After hearing the submissions of the parties the Board ruled the collective agreement did not cover the work performed in the yard on the application date. Therefore there was no one at work in the bargaining unit on the application date. The following are the Board's reasons for this bottom line decision.

3. The section 133 grievances allege Mr. R. Scafe was hired contrary to the ICI collective agreement and the non-ICI agreement. Mr. Scafe is the applicant in the termination application pursuant to section 63(2)(a) of the Act. At the hearing all parties agreed the termination application is with respect to the bargaining unit covered by the non-ICI collective agreement effective May 1, 1994 to April 30, 1996 between Gavigan Contracting Ltd. and Labourers' International Union of North America, Local 1059.

4. The description of the bargaining unit set out in paragraph 4 of the termination application states:

"Construction labourers engaged on all construction projects within the counties of Middlesex, Bruce, Elgin, Oxford, Perth and Huron, save and except non-working foremen and persons above the rank of non-working foremen, office and clerical staff and engineering staff."

5. Section 63(2)(a) of the Act provides:

63.(2) Any of the employees in the bargaining unit defined in a collective agreement may, subject to section 67, apply to the Board for a declaration that the trade union no longer represents the employees in the bargaining unit,

(a) in the case of a collective agreement for a term of not more than three years. only after the commencement of the last two months of its operation;

6. It is common ground between the parties that:

i) Gavigan's work is primarily in the non-ICI sectors of the construction industry, approximately 90%;

ii) that on the termination application date Mr. Scafe did work part of the day on an ICI project - MacDonald's Restaurant; and

iii) the majority of the time was spent doing work in the employer's yard at 2093 Jetstream Road.

7. The work performed by Mr. Scafe at the yard for the applicant is described by counsel as follows:

The rebanding of left-over bundles of paving stones.

The moving of materials around the yard, both concrete blocks and paving stones to allow access to other materials to be used for the building season.

Straightening up piles of stone.

Sorting piles of concrete forms - decide which forms to discard and which forms to clean and reuse for the coming building season.

8. The above work is stipulated by the parties as the work performed in the yard with the exception of the cleaning of the forms. For the purposes of the preliminary issue of whether the non ­ICI agreement relates to the work performed by Mr. Scafe on the application date, the Board accepts the assertion that cleaning of forms was done by Mr. Scafe. We further note that counsel for Labourers' Local 1059 did not agree that cleaning of forms was done in the yard on the application date. It is not necessary in light of the union's position that this collective agreement does not cover any shop work or yard work or work performed at the employer's premises, to resolve that issue.

9. There were a number of issues with respect to the termination application. The respondent union asserts there was no one at work in the bargaining unit because the collective agreement does not cover the work performed on the application date. The union further asserts the applicant, Mr. Scafe, was working in violation of the collective agreement. The employer had failed to call the hiring hall requesting Mr. Scafe and therefore no referral slip had been issued as required by the collective agreement. It was agreed that Mr. Scafe was entitled to be recalled under the non-ICI collective agreement and, but for the lack of referral slip, was properly at work on any non-ICI projects. No other person was denied their turn on the list under the non-ICI agreement. Labourers' Local 1059 asserts the principle established in April Waterproofing applies to the present situation, i.e. Mr. Scafe was hired contrary to the terms of the applicable collective agreement and therefore is not eligible to vote in this application for termination of bargaining rights.

10. The relevant articles of the collective agreement are set out below:

ARTICLE 1 - RECOGNITION

1.01 The Company recognizes the Union as the sole collective bargaining agency for all its construction labourers engaged on all construction projects within the Counties of Middlesex, Bruce, Elgin, Oxford, Perth and Huron, save and except non-working foremen and persons above the rank of non-working foremen, office and clerical staff and engineering staff.

ARTICLE 3- UNION SECURITY

3.05 The Company agrees to call the Local Union for its supply of men. All employees hired through the Union shall present to the employer a referral slip from the Union prior to commencing employment. It is understood that if the Local Union is unable to provide the required men within 24 hours, the Company is free to hire such labour as is available, but such labour shall acquire a referral slip prior to commencing work, and as a condition of employment, shall become a member in good standing in the Union within fourteen (14) days.

3.06 In recognition of the Company's need for competent and capable employees, the Union agrees that the Company has the right to call the Union office and request any unemployed Union member. Therefore, the Union recognizes the Company's right to recall their regular employees after a seasonal lay-off. The Union also agrees that it shall issue referral slips.

ARTICLE 8- JURISDICTION

Working foremen and Labourers required for cleaning, washing and painting of Company equip­ment and barricades, etc. used in Company's shop

The Company agrees to give Union members the first opportunity to perform work in the shop, snow removal, snow plowing and sanding if they're capable of performing such work from December Ito May I of each year. Articles 3.03, 14 and 22 shall not be applicable for that period.

11. The applicant and the intervenor (in the termination application) took the position that the collective agreement applied to the work performed in the yard on the application date. Counsel for the applicant asserts the yard work performed on April 29, 1996 (the application date) was directly related to and ancillary to the work of labourers on construction projects and thereby caught by the recognition clause of the collective agreement. But even if this is not the case it is swept in by article 8. As the overwhelming preponderance of the company's work is in the non-ICI sector the materials on April 29, 1996 were intended for use and have been applied towards non-ICI construction projects that have been and will be undertaken by Gavigan. Counsel for the applicant in the termination application submits there is by virtue of the organizing and clean up of this material a physical nexus between the work going on offsite and the actual construction projects undertaken by the company. This same work when done by Mr. Scafe on a construction site is labourers' work covered by the collective agreement. Mr. Scafe is a construction labourer because he is commonly associated in his work because of his physical connection and association with the construction labourers on site. Counsel submits this form of yard work should be considered part of the bargaining unit work. The work done in the yard facilitates the use of those materials on the construction projects.

12. Counsel points out that neither the union, Mr. Scafe or the company have distinguished the yard work for any purpose including payment of dues, benefits etc. There is an administrative difficulty in distinguishing between work done in the yard and on site especially if the work is done by the same persons. Counsel referred to the last part of article 8 stating the words "work in the shop" must be different than the reference to work done in the paragraph above. The last sentence, "Articles 3.03, 14 and 22 shall not be applicable for that period", must be read to mean for that particular work. It cannot mean there is a five months' moratorium for all work.

13. Counsel for the company adopts the submissions of the applicant. Mr. Scafe was performing construction labourer work in the yard. The majority of the company's work is non-ICI construction work. The intervenor submits it would be impractical not to classify that work as work within the bargaining unit. It does not make any practical sense for labour relations purposes to hive off construc­tion labourers' hours worked depending how some of the provisions of the collective agreement should be applied to those hours. It makes good sense to interpret the collective agreement to cover yard work. Counsel expressed a concern that if the collective agreement does not include the work performed on the application date the bargaining unit members may not be able to exercise their rights as there may be no one at work in the bargaining unit during the open period.

14. Counsel for the respondent union submits its a stretch to interpret the language in the collective agreement to cover the work in issue. Counsel asserts article I of the agreement clearly refers to construction projects. There is no ambiguity in the language of the collective agreement. Section 63(2) refers to any employee in the bargaining unit. There is no need to hear extrinsic evidence, the agreement is clear on its face. Article 8 reinforces article 1. Union members are to be given first opportunity to perform work in the shop, snow removal, snow plowing and sanding if they are capable of performing such work from December 1 to May 1 of each year. Because the employer has chosen to apply the collective agreement to work not covered by the collective agreement it does not mean the collective agreement was intended to apply to the work in the shop.

15. The case cited by the applicant, DuraSystems Barrier Inc., [1995] OLRB Rep. Jan. 14, refers to the ICI industry which does not assist in this case. Counsel asserts the applicant's interpretation of the collective agreement is not reasonable. If it was the intention of the parties to include this work it could have been spelled out in the collective agreement.

Decision

16. After considering the parties' submissions the Board found the work performed on the application date by Mr. Scafe, as described by counsel for the applicant, is not work covered by the non-ICI collective agreement. Article I of that collective agreement refers to construction projects. Reading the relevant articles of the collective agreement the Board is not persuaded that the clean-up work in the yard at the employer's premises involves the kind of nexus contemplated by the Board's jurisprudence in the ICI sector of the construction industry. Mr. Scafe was the only person who cast a ballot and his ballot was sealed pending the outcome of this hearing. Having found that, Mr. Scafe was not performing bargaining unit work on the application date, this application for termination of bargaining rights is dismissed.

17. The Registrar will destroy the ballot cast in the representation vote taken in this matter following the expiration of 30 days from the date of this decision unless a statement requesting that the ballots should not be destroyed is received by the Board from one of the parties before the expiration of such 30 day period.

18. This leaves the two grievances. The applicant union is directed to advise the Registrar how it wishes to proceed. This panel is seized with respect to those two grievances.