[1997] OLRB Rep. September/October 881
3317-96-R United Steelworkers of America, Applicant v. KPM Industries Ltd., Responding Party
BEFORE: Laura Trachuk, Vice-Chair, and Board Members J. A. Ronson and H. Peacock.
APPEARANCES: Marie Kelly and Wess Dowsett for the applicant; Elizabeth Keenan and Bruce Semkowski for the responding party.
DECISION OF THE BOARD; September 5, 1997
I. This is an application for certification in which a representation vote was held on January 23, 1 997. In a decision dated February 19, 1997 the Board certified the applicant under section 9(2) of the Act for an interim bargaining unit described as follows.
all employees of KPM Industries Ltd. in the Town of Onaping Falls, save and except Managers and persons above the rank of Manager and office, clerical and sales staff.
- The outstanding dispute between the parties is whether the the appropriate name of the employer used in the bargaining unit description should be KPM Industries Ltd. or KPM Industries Ltd. c.o.b. as King Packaged Materials Company and Minequip. The applicant (referred to as "the union") takes the position that the name of the responding party (referred to as "the company") in the certificate should be the former and the responding party argues that it should be the latter. The significance of the dispute is whether or not the applicant's bargaining rights should be limited to the two divisions of the company currently operating in Onaping Falls. The company's third division which does not at this time operate in Onaping Falls operates partly in the construction sector, so the issue arises as to whether these potential construction employees should be specifically excluded from the bargaining unit.
Facts
- At the outset of the hearing, the parties provided the Board with an Agreed Statement of Facts as follows:
AGREED STATEMENT OF FACTS
The United Steelworkers of America applied to represent all employees of KPM Industries Ltd. in the Town of Onaping Falls save and except Managers and persons above the rank of Manager and office, clerical and sales staff. The employer takes the position that the proper name of the employer for the purposes of the certification application is "K.P.M. Industries Ltd. cob. as King Packaged Materials Company and Minequip" (divisions of K.P.M. Industries Ltd.) and that the bargaining unit description should be limited to employees of such divisions in the Town of Onaping Falls. The Union takes the position that the proper name of the employer is K.P.M. Industries Ltd. and that it is not appropriate to limit the scope of the bargaining unit in the manner requested by the Company.
K.P.M. Industries Ltd. is incorporated under the laws of the Province of Ontario. The President of the corporation is H. MacPherson.
K.P.M. Industries Ltd. operates three divisions; however it is the sole legal entity
(i) Minequip
(ii) King Packaged Materials Company
(iii) King Paving and Materials Company.
The bargaining unit applied for by the Union covers the same employees covered by the Company's bargaining unit description. KPM Industries Ltd. in Onaping Falls operates out of one location only and that is a building at 644 Simmons Road.
Bargaining unit employees of both the Minequip and King Packaged Materials Company Divisions share a common parking lot, forklift, lunchroom, washroom, employee entrance and punch clock. These employees also are provided with the same benefits and share the same coffee and lunch breaks.
The one Minequip bargaining unit employee works the same shift as day shift employees of King Packaged Materials Company. All bargaining unit employees are paid by direct deposit from K.P.M. Industries Ltd. and receive their direct deposit receipts every Thursday.
Both Divisions in Onaping Falls each have a shipping and receiving area. All shipping and receiving for both Divisions is done by two employees, one from each Division who are primarily responsible for their own Division's shipping and receiving. However on occasion the shipper receiver of one Division will ship/receive for the other Division. In addition if either of the two employees need help with a heavy/large package for either Division they obtain the assistance of other employees in the King Packaged Materials Company Division and it is shipped and received from the King Packaged Materials Company shipping and receiving area for both Divisions.
Minequip is strictly located in the Town of Onaping Falls. The General Manager is Dennis Wrixon. Minequip was previously a separately incorporated company which was purchased by K.P.M. Industries Ltd. in 1994 and was later amalgamated under the Corporate name K.P.M. Industries Ltd. effective April 1, 1995. Since April 1, 1995 both Minequip and K.P.M. Industries Ltd. have operated as one corporation under the name K.P.M. Industries Ltd. (see attached Articles of Amalgamation, Business Names Registration and Corporation Profile Report).
Minequip employs sales staff, a production employee and a mechanic/shipper/receiver. At the time of certification there was a production employee and a mechanic/shipper/ receiver in the bargaining unit. There is currently only a mechanic/shipper/ receiver remaining in the bargaining unit.
Minequip is engaged in the sale and distribution of ALIVA equipment and Haney Grouting Systems used for underground construction in eastern Canada. Some of the ALIVA equipment applies the shoterete produced by either King Packaged Materials Company Division or its competitors. Minequip supplies technical/repair services to owners of such equipment.
The production employee, when there is one working for the Minequip Division fabricates shoterete construction panels for underground construction in mines. The existing Minequip employee, when required, assists in repairing equipment used by King Packaged Materials Company. On average he works approximately four (4) hours per week for the King Packaged Materials Company Division.
King Packaged Materials Company Division is engaged in the manufacture and sale of industrial/mining products such as shoterete which is used for in [sic] the construction of mine supports and underground buildings.
King Packaged Materials Company Division has plants located in the Town of Onaping Falls, in Brantford Ontario and Blaineville Quebec. Each plant has its own Plant Manager. The Plant Manager for the Town of Onaping Falls is C. Aulsebrook. The Plant Managers for Brantford and Blaineville are H. MacPherson Junior and J.F. Poulin respectively. The three Plant Managers report directly to Bruce Semkowski, vice President, Operations of King Packaged Materials Company. The Corporate Management team of one Division does not participate in the management of any other Division except as stated in paragraph 30.
Two of the plants, not including the present application for certification, are unionized. The collective agreements for the Blaineville and Brantford plants specifically limit the scope of the Union's bargaining rights to employees of King Packaged Materials Company Division of K.P.M. Industries Ltd. The Blaineville plant employees in Quebec are represented by the United Steelworkers of America. The Brantford plant employees are represented by the Cement, Lime, Gypsum and Allied Workers Division, International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local D 494.
None of the other divisions of K.P.M. Industries Ltd. operate within the geographic scope of the bargaining units pertaining to the King Packaged Materials Company plants in Blaineville or Brantford.
There are separate sales staff who work for the King Packaged Materials Company Division and Minequip Division in Onaping Falls. However, they share the same space and equipment. There are separate Sales Managers for both Ontario and Quebec who report to the vice President of Sales (Consumer) for the King Packaged Materials Company Division. Industrial sales are handled by vice President of Sales (Industrial) of that Division. There is also on King Packaged Materials Company salespersons working out of Burlington.
King Paving and Materials Company Division of K.P.M. Industries Ltd. is comprised of an asphalt plant located in Burlington, Ontario and King Truck Centre in Burlington, Ontario.
King Paving and Materials Company drivers and mechanics in the Truck Centre are all represented by the Teamsters Union. The bargaining unit description in the construction industry collective agreement is specifically limited to employees of King Paving and Materials Company. The Truck Centre Manager is John Perry who report to King Paving and Materials Company Operations Manager John Hutter.
The drivers are engaged in transporting asphalt from the Asphalt plant to various construction sites at which King Paving and Materials Company employs a number of construction workers. The shop employees are engaged in repair of trucks and construction equipment used by the Company.
Employees of the Asphalt plant are engaged in loading of asphalt materials.
K.P.M. Industries Ltd. has a collective agreement with the International Union of Operating Engineers Local 793. This collective agreement covers all employees of K.P.M. Industries Ltd. in a specific geographical scope and is not limited to a Division of the Company. There is also a collective agreement between the Metropolitan Toronto Road Builders Association and A Council of Trade Unions. The membership roster states 'King Paving & Materials Company/K.P.M." but the parties are unable to determine if the membership is with K.P.M. Industry Ltd. or the Paving Division. There is also a collective agreement between The Hand Association of Sewer, Watermain and Road Contractors and the Labourers International Union of North America Local 837. King Paving & Materials Company is a member of the Hand Association of Sewer, Watermain and Road Contractors.
There is no intermingling of employees of King Paving and Materials Company, King Packaged Materials Company and Minequip (with the exception noted above, specific to the Town of Onaping Falls). There has not been, and is currently no transfer of bargaining unit work between the King Paving and Materials Division and King Packaged Materials Division.
The K.P.M. Industries Ltd. head office is in Burlington, Ontario.
Employees of the respective divisions all report to their respective plant of [sic] division managers.
The pay stubbs [sic] for employees of all three divisions refer to K.P.M. Industries Ltd.
The three divisions have separate invoices and packing slips (the latter are not required for King Paving and Materials Company).
The "King" name appears on the packaging for King Packaged Materials Company products. There is no reference to K.P.M. Industries Ltd. on such packaging.
The trucks used by King Packaged Materials Company identify "Sakrete" which is the concrete product produced by King Packaged Materials on the side. The King Paving and Materials Company trucks refer to King Paving and Materials Company. Minequip has one truck which has Minequip on the side. There are no vehicles owned by K.P.M. Industries Ltd. which have same identified on the vehicle but all trucks of the Divisions are leased by K.P.M. Industries Ltd.
The three Divisions of K.P.M. Industries Ltd. have historically generated their own profit and loss statements for the purpose of determining their results within the Corporation. King Paving and Materials Company and King Packaged Materials Company have done so since 1989, when the latter was made a separate Division of the Corporation. Minequip has done so since it was purchased in 1994. The vice President of King Packaged Materials Company and King Paving and Materials Company and the General Manager of Minequip report their results to the president separately, on a monthly basis, and maintain separate operating statements and financial statements for the President. However, there is only one single financial statement for income tax purposes.
The employees of the respective Divisions all report to their respective Plant or Division Managers. Human resources such as hiring, firing and staff levels are handled separately for each Division by the Management Staff of the respective Division with the following exception. Joe Deroche (bargaining unit employee) was interviewed by Dennis Wrixon, General Manager of Minequip to work for Minequip and there was no position available in Minequip. Wrixon told Deroche that we want you to work for the Company and sent him to Aulsebrook (Plant Manager for King Packaged Materials Company) for a job in the plant. Wrixon recommended Deroche to Aulsebrook for hiring. Aulsebrook interviewed him again and had the final say as to whether or not he worked in the plant.
Submissions of the Parties
The company argues that the scope of the union's bargaining rights should be limited to the divisions currently operating in Onaping Falls. It claims this can be accomplished either by using the term "c.o.b." or by referring specifically to the divisions. It submits this is appropriate because the bargaining unit should reflect the union's membership at the time of the vote and because the company holds itself out to the public in Onaping Falls as the two divisions rather than as K.P.M. Industries Ltd. It argues that one of its three divisions, King Paving Materials, does not operate in Onaping Falls and its employees should not be included in the bargaining unit should it commence to do so. It notes that the three divisions have separate corporate management structures, separate human resources for the most part, and even the two divisions it is agreeing to include in the bargaining unit have very little overlap of functions.
The company asserts that the bargaining unit in Onaping Falls should reflect bargaining units at its other locations in which employees working at King Packaging and King Paving have been represented by different trade unions. Collective bargaining in its non-construction sector has generally been along divisional lines. The company's principal concern is that if it sets up another division, including the paving division, in Onaping Falls it should not be covered by the collective agreement. The company's paving division collective agreements in other geographical areas are construction agreements as the majority of the work of that division is in the construction sector. (The Board notes, however, that the agreed Statement of Facts do not specify how much of the work done by King Paving is construction work.) King Paving has three functions according to the company: road construction, trucking asphalt materials, and a truck centre involved in maintenance and repair of the division's trucks and constructive equipment. The company claims that there is good reason in these circumstances to limit the bargaining unit description to King Packaging and Minequip and no statutory prohibition against doing so. If a King Paving division did open in Onaping Falls the employees would not necessarily share a community of interest with the employees of the other two divisions. It notes that the Act does not prohibit bargaining units restricted to divisions and that section 1(1) of the Act specifically refers to "an employer unit, or a plant unit or a subdivision of either of them".
The company argues that the union's fears with respect to the stability of its bargaining rights are unfounded as there is no evidence that the company has ever diverted work from one division to another to evade bargaining rights nor is there any evidence that it intends to change its corporate structure. On the other hand, if the geographic scope covers all divisions, the union's bargaining rights may be expanded without testing the wishes of employees in the new division.
The company refers to the following decisions of the Board: Beatrice Foods (Ontario) Limited, [1982] OLRB Rep. June 815; Co-Steel Recycling,[unreported OLRB decision dated March 29, 1995, File No. 433 1-94-RI; Thomson Newspapers Company Limited, [unreported OLRB decision dated October 18, 1991, File No. 2139-91-R]; Conseil scolaire de langue francais d'Ottawa-Carleton, [1989] OLRB Rep. June 575; Metroland Printing, Publishing & Distributing, [1991] OLRB Rep. Sept. 1069; Cara Operations Limited, Board File No. 2658-91-R, February 4, 1992 (unreported).
The company argues that the cases relied upon by the union are distinguishable and were all decided before the amendments to the Labour Relations Act, 1995 which promote greater workplace democracy.
The union argues that the Board should continue its usual practice and certify it as the bargaining agent for all of the employees in the municipality and name the sole legal entity, KPM Industries Ltd., as the employer. It submits that in this case that is an appropriate bargaining unit. There is no need to distinguish between two operations by certifying a bargaining unit by a street address in this case. The union disagrees that the amendments to the Labour Relations Act, 1995 should motivate the Board to change its jurisprudence in this area.
The union denies that the Board should be concerned about the wishes of employees who may be hired after certification as it is always the case that employees hired after certification are included in the bargaining unit even though they have not had an opportunity to vote.
The union relies upon the Board's decision in Hunter Douglas Canada Limited, [1985] OLRB Rep. April 535 and notes that that decision suggests there is a risk in granting divisional bargaining rights because a company can change its internal structure more easily than it can move to another location. In this respect the union also relies upon the Board's decision in General Signal Limited, [1994] OLRB Rep. March 242.
The union also denies that the separate management structure of the three divisions should lead the Board to restrict the geographic scope to the two divisions since the company is agreeing that it is appropriate to include two of those divisions in the same bargaining unit. If the company is not claiming that any labour relations harm flows from including the two divisions in one unit how can it claim that harm flows from the possibility that the company may open a third division?
The union denies that the fact that three of the company's other collective agreements refer to divisional bargaining units should be given any weight in the Board's determination. The evidence only shows that the parties have agreed to that scope in their collective agreements. There is no evidence as to what the Board's original certificate said. The union denies that the fact that its collective agreement with the company in Quebec limits the scope of the bargaining unit to a division, bars it from seeking an all employee unit in any other circumstances. According to the union, this case is distinguishable from the Cara Operations decision, supra, in which the employer had twenty collective agreements and all were certified by division. The facts of this case are also distinguishable because the company has agreed to include two divisions in the same bargaining unit.
The union also argues that the Board cannot find that there would be no community of interest between the present employees and any future employees of another division without any evidence to that effect. Furthermore, there can be no such evidence about hypothetical employees of a hypothetical division. The union denies that the fact that some of the work done by the King Paving division is in the construction sector has any relevance to this determination. It denies that there would be a lack of community of interest between the current employees and any such construction employees.
Decision
In non-construction applications for certification, the Board's usual approach to bargaining unit descriptions is to certify a union for all employees of an employer in a municipality in circumstances where the company has only one operation in that municipality. The effect of this approach is that if the company opens another operation or expands its existing operation within that municipality the new employees will be included in the existing bargaining unit. The reasons for this approach are articulated in Hunter Douglas, supra, as follows:
In balancing the interests of present employees against the possible interests of unforeseen future employees, the balance is struck in favour of addressing the interests of present employees in the stability of their bargaining relationship with the respondent. With respect to the respondent's arguments that the appropriate bargaining unit be defined with respect to one of its divisions, the
Board is not persuaded that its arguments have any merit. The respondent acknowledges that the bargaining unit ought to be described without reference to a municipal address in the interests of stability of bargaining rights while arguing for the reference to one of its divisions in defining the appropriate bargaining unit.
In our view, the arguments of the respondent must fail. The inclusion of a reference to a division of the respondent in the appropriate bargaining unit is a destabilizing factor in bargaining rights. It is arguably open to the respondent to change its internal corporate structure and change and/or substitute a different division in its present premises in Mississauga. It is arguably even easier to effect a change in the internal corporate structure of the respondent than it is to relocate to a new address in Mississauga. For these reasons the appropriate bargaining unit is to be described without reference to a division of the respondent in the City of Mississauga.
However, the circumstances of this case are somewhat unusual because the company has a third division which could conceivably commence operation at some future time in the Town of Onaping Falls and which does construction work. The union's view is that if that were to happen those employees would be included in its bargaining unit and presumably covered by its collective agreement. The company is concerned that that would be the case. The issue of whether new construction employees of a company would be included in an existing "all employee" non-construction bargaining unit has not been directly addressed in a prior decision of the Board. However, in a recent decision of the Board, Alcan Aluminium Limited (Board File Nos. 2736-96-R, 2743-96-R, June 9, 1997, unreported) [now reported at [1997] OLRB Rep. May/June 305], the Board found that construction employees of the company were not included in existing, primarily non-construction, bargaining units except to the extent that the parties had manifestly included them by their conduct. In the course of that decision the Board made the following comments about the "differences" between the construction and non-construction sectors.
The Board has a discretion in dealing with bargaining unit description issues, whether these issues relate to questions of geographic scope or other matters. This is appropriate because it permits the Board, as an expert labour relations tribunal, some latitude in structuring appropriate bargaining units. However, the Board's discretion is directed by the Act, and the degree of discretion which the Board has is not the same in every case. It is axiomatic that the discretion which the Board has in a particular case depends upon the direction which the Act provides.
For instance, the Act has long provided that: 'upon an application or certification, the Board shall determine the unit of employees that is appropriate for collective bargaining ..." The Board has always considered that trade unions are generally able to make their own assessment of the bargaining unit which is appropriate for their collective bargaining purposes. Accordingly, in order to give trade unions the appropriate leeway in selecting their bargaining units, the Board has treated the legislative direction to determine "the appropriate bargaining unit" to be a direction to determine a bargaining unit which is on appropriate one in the particular application, rather than to try to determine the most appropriate bargaining unit. In this respect then, the Board exercises a very broad discretion indeed.
When it comes to "craft" units (section 9(3)), units of professional engineers (section 9(4)), or units consisting solely of dependent contractors (section 9(5)), the Board is given some more specific direction in terms of the employee composition of bargaining units, but still retains a broad discretion with respect to geographic scope.
In that latter respect, sometimes the Board will restrict a bargaining unit to a particular location, particularly in the retail industry. But that is not the Board's general practice. Seventeen years ago, in York Steel Construction Limited, [1980] OLRB Rep. Feb. 293, the Board described its practice regarding the geographic scope of bargaining units as follows:
The Board in Wix Corp. Ltd., [1975] OLRB Rep. Aug. 637 canvassed in some detail the Board's practice with respect to defining geographic limitations in the appropriate bargaining unit. A part from the construction and perhaps certain service industries, the
Board's policy, where the employer has employees at only one location within a municipal area, is to describe the bargaining unit in terms of the municipality itself (Perimeter Industries Limited, [1973] OLRB Rep. March 174). On occasion the Board will expand its definition of the bargaining unit to encompass an area greater than a single municipality (see The Board of Health of the Yark-Oshawa District Health Unit, [1969] OLRB Rep. Feb. 1178; The Adams Furniture Company Limited, [1975] OLRB Rep. June 491; and note as well the Board's normal unit of "the Municipality of Metropolitan Toronto"), but is reluctant to do so in the absence of compelling reasons (Wittich’s Bread Limited, [1969] OLRB Rep. Jan. 1019; Del Zotto, [1972] OLRB Rep. June 637 and Canada Safeway Limited, [1972] OLRB Rep. Mar. 262). The primary reason for this policy of municipality-wide bargaining units is the Board's concern for stability of bargaining rights; i.e., the union's bargaining rights will not be affected by a subsequent move of the employer's operation to some other location within the same municipality. On the other hand, actual accretions to the employer's operations within the municipality, such as a second or third plant, will automatically be covered by the union's certificate. To this latter extent, the right of self-determination of a bargaining agent by the employees at these new locations is compromised, in favour of the over-riding concern for stability of bargaining rights.
[emphasis added]
In York Steel, supra, the Board noted that things were different in the construction industry. Indeed, the construction industry has always been "different". In my March 10, 1997 decision herein, and also in Ontario Hydro, [1997] OLRB Rep. Jan/Feb. 82, 1 observed that the differences between construction and non-construction labour relations have been legislatively recognized in the Act since 1962 when the Labour Relations Act, 196 1-62 was passed. In that respect, at paragraphs 26 to 28 of the Ontario Hydro, supra, decision, I wrote that:
Primarily in response to the "Goldenberg Report" in 1962, the Labour Relations Amendment Act, 196 1-62 was passed, and for the first time, the Act included provisions which recognized that construction labour relations were "different". For the first time, a separate part of the Act was devoted to the construction industry. It consisted of only six sections but included a definition of "trade union" in exactly the same words as are found in section 126 today, provided for certification by geographic area rather than by project or location, contained notice to bargain and conciliation provisions, and included a provision relating to when a termination application could be brought.
Since then, the evolution of the Act has continued to include changes reflecting an ever increasing awareness of the differences between construction and non-construction labour relations, and the need to address the peculiar needs of the construction industry directly in the Act. Construction industry certification proceedings became more expedited. In 1962, provision was made for a construction division of the Board. In 1970, in an attempt to equalize bargaining power in the construction industry, the Act was amended to establish an accreditation system for employers organizations.
In response to the "Franks Report", the Act was amended in 1977 to provide for a comprehensive scheme of province-wide bargaining for the traditional building trades unions in the industrial, commercial and institutional ("ICI") sector of the construction industry. This scheme was designed to encompass the unions and employers which dominated labour relations in the ICI sector of the construction industry. Further amendments, which came into effect on May 1, 1980, extended ICI bargaining rights to the entire province, prohibited selective strikes and lock-outs, and established a ratification procedure for the provincial ICI agreements.
(See also the comments of the Divisional Court in that respect in Re International Union of Operating Engineers and Traugott Construction, (1984) 1984 CanLII 2011 (ON HCJ), 6 D.L.R. (4th) 122).
As I observed in the March 10, 1997 decision (at paragraph 50) herein, one result of all this is that we have in this province a certification scheme for the construction industry which is both separate and quite different from the one established for non-construction industries. The differences appear both in the manner in which applications for certification are dealt with, and more specifically in how bargaining units are described.
While there are exceptions, particularly when it comes to craft or "craft-like" units, nonconstruction bargaining units are generally described in terms of "all employees save and except" perhaps certain kinds of employees, and persons at or above the first level of management (which is redundant for purposes of Board proceedings since persons who are "management" are not "employees" for purposes of the Act but is included in order to give greater clarity to bargaining unit descriptions by identifying the first managerial level).
On the other hand, construction bargaining units are described in terms of specific trades or crafts (except in the case of construction operating engineers where the bargaining unit is described in terms of the construction work they engage in, and which work defines the trade) and include "working foremen". Typically, construction collective agreements cover specific employees defined by the trade they work at and assert a trade work jurisdiction for these employees. An important difference (for these applications) is immediately apparent: construction bargaining units are specifically restricted to construction employees, but non-construction bargaining units are not. Although none come immediately to mind, there may be some "non-construction" collective agreements which specifically exclude construction work or employees. But the vast majority do not, and I am unaware of any Board determined bargaining units which specifically do so. Indeed, this is an issue which the Board is typically not asked to address. Nor is it apparent that parties to a non-construction application for certification consider whether the employer has employees who regularly or periodically perform construction work to the extent that on the Board's test they are construction employees, either normally or from time to time. Accordingly, whether "all employees" means precisely that; that is, all employees regardless of the work they perform and subject only to the express exclusions; or whether a non-construction bargaining unit presumptively excludes any construction employees of an employer, is not an issue which has been directly addressed by the Board. (Nor is it raised as an issue in this case).
Another difference is the one suggested in the York Steel, supra, decision; that is, in the geographic scope of bargaining units. As a general matter, the geographic scope of non-construction bargaining units is narrower than that of a construction industry bargaining unit. Again, there are exceptions (occasional teacher and security guard units come to mind), but the largest geographic area covered by a non-construction bargaining unit is generally a municipal area; that is, a local political division. It can be much smaller, but if it is it tends to be restricted to a particular municipal location or address (as in the ease of retail or service industry employers which have more than one location within an otherwise appropriate municipal area in circumstances where it is not appropriate, either because the parties agree or otherwise, to include all of these in the bargaining unit). In contrast, construction industry bargaining units cover much larger geographic areas. Indeed, where a construction trade union (that is a "trade union" within the meaning of section 126 of the Act) makes an application for certification in the construction industry (i.e. an application for certification within the meaning of sections 128 and 158), section 128 of the Act directs that the Board "determine the unit of employees that is appropriate for collective bargaining by reference to a geographic area and it shall not confine the unit too particular project" [emphasis added]. Further, the Act has created a provincial bargaining structure for the industrial, commercial and institutional sector of the construction industry such that a construction trade union which is an affiliated bargaining agent of a designated employee bargaining agency (as defined in the Act) is entitled to a province-wide bargaining unit in the industrial, commercial and institutional ("ICI") sector. Indeed, such a trade union has no choice in that respect. If it wishes to obtain ICI bargaining rights, it must apply for a province-wide bargaining unit. Even for construction trade unions which are not affiliated bargaining agents, or in applications for certification (or voluntary recognition agreements) which do not apply to the ICI sector, the geographic scope of a construction bargaining unit is defined in terms of the 32 geographic areas which have been established by the Board in that respect (or if the job site is in one of the so-called "white areas" in terms of the geographic township the site is in and the 8 geographic townships surrounding it). There is a great deal of variation in the size of these "Board areas", but all of them are significantly larger than the typical nonconstruction bargaining unit geographic area. Some Board areas are quite large, and all of them include more than one or parts of more than one municipal or other political unit. Indeed, these Board areas were established having regard primarily to patterns of collective bargaining and local geographic jurisdictions, without more than a very general regard to municipal or other political boundaries.
Until recently, none of this presented any significant problems, partly because of the historical separation between construction industry and non-construction trade unions in terms of the employees they seek to represent and the work these employees perform, partly because of the amount of construction work performed under non-construction collective agreements has tended not to be significant in the overall scheme of things (the Ontario Hydra situation may be the most obvious exception to this), and partly because until recently the overall employment picture in the construction industry has been good. Nevertheless, the line between non-construction and construction bargaining rights is neither narrow nor clear, and the two regimes have co-existed somewhat uneasily.
With this in mind, I turn first to the assertion by Alcan (also made in the alternative by the Steelworkers and Machinists) that the bargaining units in these applications should be described in terms of the Chemicals' division rather than in terms of Alcan. In that respect, the question is this: is it appropriate to restrict the bargaining rights which are the subject of these applications to construction employees who work in or at a plant of the particular division where the construction work in which the employees who are the subject of these applications were engaged at the time the applications were made, along with a smaller physically separated plant in the same division in which no construction work was being carried on at the time?
Prima facie, it is not appropriate to do so. Prima facie it is appropriate to describe a bargaining unit in terms of the employer party as such and not in terms of some part of the employer.
Nor is the Board satisfied that there is any cogent reason to describe the bargaining unit in terms of a part of Alcan, namely its Chemicals division, in these applications.
The gist of the Board's comments above is that labour relations in the construction industry are governed to a large extent by a different statutory scheme than other sectors covered by the Labour Relations Act, 1995. Would it therefore be appropriate for this bargaining unit description to potentially include construction employees of a construction division of the company? The Board sees no reason why it would not be appropriate. As the Board pointed out in Ontario Hydro, [1997] OLRB Rep. Jan./ Feb. 82 and Alcan Aluminium, supra, construction employees can be represented by a non-construction collective agreement. There are many such situations in Ontario, for example, at Ontario Hydro and at large manufacturing facilities such as those operated by motor vehicle manufacturers. Further, the Board does not engage in speculative exercises when it deals with applications for certification.
In this case, the company does not have, and may not ever have, construction workers employed in the Town of Onaping Falls. There is nothing which suggests that the division of the company known as King Paving and Materials Company has ever operated in the Town of Onaping Falls, or that there are any plans for it to do so. Nor is there anything which suggests that the company has an actual intention to establish another "division" in Onaping Falls, either to perform construction work or for any other reason. In short, there is nothing which suggests that the bargaining unit proposed by the union is not an appropriate one. The mere fact that it does not reflect the company's internal structure, or that it might otherwise affect operations which have not even been conceived does not raise any cogent reason to deny the union the bargaining unit it seeks. There is nothing before the Board in this case which raises any of the issues or concerns surrounding the interface between the construction and general provisions of the Act which the Board has struggled with recently in cases like Ontario Hydro, supra, and Alcan Aluminium, supra. If such issues arise in the future, they can be dealt with by the parties themselves, or addressed in the appropriate forum.
The company argued that potential future employees of its paving division would not share a "community of interest" with the employees in the bargaining unit. The Board's approach is to consider the factor of "community of interest" in terms of whether the composition of the bargaining unit is appropriate or is likely to cause serious labour relations problems. The Board cannot determine whether the inclusion of certain kinds of employees might cause serious labour relations problems when the relevant employees do not yet exist and may never exist. In such circumstances, the Board has determined that on balance it is more important to certify a union for a municipal-wide unit and thereby protect its bargaining rights than to limit those rights out of concern that some employees might one day be included in the unit who might not share a "community of interest". And again, the Board notes that employees who perform construction work are included in many non-construction collective agreements in the Province.
In the circumstances of this case, therefore, the Board is satisfied that the bargaining unit description proposed by the union is an appropriate one. It is consistent with the Board's general approach to the issue and there is no cogent reason to restrict the bargaining unit as proposed by the company. The Board finds that:
all employees of KPM Industries Ltd. in the Town of Onaping Falls. save and except Managers and persons above the rank of Manager and office, clerical and sales staff,
constitute a unit of employees of the responding party appropriate for collective bargaining.
- A final certificate will issue to the applicant for the bargaining unit described in paragraph 20.