Gautier v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 787, 1998 CanLII 18275

[1998] OLRB REP. NOVEMBER/DECEMBER 958

4856-97-R Andre Gautier, on his own behalf and on behalf of a group of employees of Francis H.V.A.C. Services Ltd., Applicants v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 787, Responding Party v. Francis H.V.A.C. Services Ltd., Intervenor

BEFORE: M. A. Nairn, Vice-Chair.

APPEARANCES: Bruce Sevigny for the applicants; Larry Steinberg for the responding party; George Rontiris for the intervenor.

DECISION OF THE BOARD; December 11, 1998

1The style of cause is hereby amended to the reflect the correct name of the responding party: "United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 787".

2This is an application to terminate bargaining rights brought pursuant to section 63(2) of the Labour Relations Act, 1995 (the "Act"). The matter came on for hearing following the taking of a vote in order for the Board to determine the proper scope of the application. The parties have described the issue as whether all of the bargaining rights referred to in the application are properly the subject of a construction industry termination application, and if not, can any defect be cured by an amendment to the application. The arguments were made on the basis of the written material and record before the Board.

3The application filed is on the form parties are directed to use for construction industry applications. The relevant portions of the application filed state:

Detailed description and geographic location of the unit of employees for which the responding party is the bargaining agent. (This description is usually found in the recognition or scope clause of the collective agreement, if any).

All construction industry bargaining rights held by the Responding Party, including but not limited to the following:

and

all journeyperson and apprentice refrigeration and air conditioning mechanics, save and except persons above the rank of working forepersons, employed by the employer in the Province of Ontario engaged in all of the employer's maintenance and/or service activities and all construction work in the Province of Ontario, other than construction work in the Industrial, Commercial and Institutional Sector in the Refrigeration and Air Conditioning trade.

Description of site or sites where affected employees work (please list):

various sites around Ottawa-Carleton region.

If there is or has been a collective agreement, the date on which it was signed, the effective date and the expiry date of the most recent collective agreement:

Provincial Collective Agreement effective May 1, 1995 to April 30, 1998

The number of employees in the bargaining unit:

Approximately 10

The number of employees who were at work in the bargaining unit on the application date who do not wish to be represented by the trade union:

(emphasis added)

The relevant portions of the response filed provide:
Detailed description of the unit of employees for which the responding party is the bargaining [unit], including the geographic area:

All journeyperson and apprentice refrigeration and air conditioning mechanics employed by the employer in:

(a) the industrial, commercial and institutional sector of the construction industry in the Province of Ontario, save and except persons above the rank of working foreperson;

(b) all other sectors of the construction industry in the Province of Ontario, except the industrial, commercial and institutional sector, save and except persons above the rank of working foreperson.

SCHEDULE "A"

The application, on its face, is in respect of construction industry bargaining rights and therefore the description of the bargaining unit contained at paragraph 4 of the application is incorrect to the extent that it purports to cover maintenance/service work.
The nature of the employer's business consists of both construction and non-construction work. It is the understanding of the Responding Party that the majority of the work of the employer is non-construction industry work consisting of maintenance/service. Moreover, paragraph 5 of the application provides no particulars respecting the location of the job sites where the affected employees were working on the date of application.
In light of the above, the Responding Party is unable to determine whether there were any employees performing the work in the bargaining unit on the date of application. The Responding Party accordingly requests particulars from the Applicant respecting the job sites and the nature of the work being performed on the date of application so that the Responding Party can properly respond to this application and, in particular, so that it can determine whether there were any employees employed on the date of application in the bargaining units and the nature of the work that they were performing.

5By the time of the hearing there was no dispute that paragraph 4 of the application actually described two bargaining units and that those descriptions had been taken from the two collective agreements in effect on the application date. There was also no dispute that the first description related to ICI sector bargaining rights. The parties are also agreed that the vote which was ordered by decision of the Board (differently constituted) dated April 7, 1998, and held on April 14, 1998, properly canvassed the wishes of the employees who were working in the ICI sector on the date of application. The result of that vote will have the effect of terminating the responding party's bargaining rights in the ICI sector of the construction industry. This dispute centers on the second description in paragraph 4 of the application.

6It is a matter of record that only one vote was held with respect to this application. The "Notice of Vote" posted for employees described a vote only in respect of the ICI sector bargaining rights, notwithstanding that the Board's decision had directed that two votes be held. I will return to that fact later.

7The responding party (the "trade union") asserts that this is a construction industry application, with the result that the applicant is, at best, entitled to seek to terminate the bargaining rights for the ICI sector and non-ICI sectors, but that the applicant cannot seek to terminate any bargaining rights which cover work outside of the construction industry (service and maintenance). With respect to the non-ICI sectors, the responding party argues that the Board had no jurisdiction to order a vote because there were no employees performing work in any of those sectors of the construction industry on the date of application. Thus, in the responding party's view, this application can properly deal only with ICI sector bargaining rights. I note that immediately following the release of the Board's decision ordering the votes, the trade union sought reconsideration on the same basis it asserts now. That request was not dealt with by the Board prior to the vote and the same issues were the subject of this hearing.

8In its decision directing the votes, the Board determined that there was the necessary appearance of not less than 40% of employees expressing a wish not to be represented by the trade union in each of the bargaining units described. That determination was made with reference to material filed by the intervenor (the "employer") in response to the trade union's assertions in Schedule A of the response. That material asserts the nature of the work performed by each employee on the list of employees filed. The applicant agreed that absent that material the Board would not have been able to make any 40% determination based on the information in the application, as the application treated the two bargaining units as one.

9The work performed on the application date included both ICI sector construction work and service and maintenance work. At the regional certification meeting with the Labour Relations Officer some time after the holding of the vote, the employer sought to challenge Stuart McMillan on the basis that he was performing work in the non-ICI sectors of the construction industry on the date of application. In its intervention the employer had provided documentary evidence to the effect that Mr. McMillan was performing service and maintenance work on the date of application. At the vote the trade union had challenged each voter on the basis that they were not performing bargaining unit work on the date of application. I am not persuaded that the employer is entitled to change its position at this late juncture, particularly given the fact that the Board relied on the employer's information as to the nature of the work performed by Mr. McMillan as part of its assessment of the 40% issue, and the applicant's entitlement to a vote. It may be that given my conclusions overall, this is not an issue.

10Thus, there is one application to terminate bargaining rights which in fact identifies more than one set of bargaining rights. There was one vote held when two votes had been ordered. There is construction industry work and non-construction industry work included in the same bargaining unit and it is asserted that both construction industry and non-construction industry bargaining rights are being challenged in the same application. With what result?

11In the usual course, an application to terminate bargaining rights is brought pursuant to section 63 of the Act. That section applies whether the bargaining rights sought to be terminated exist in the construction industry or outside the construction industry. This application was brought pursuant to section 63(2)(a) of the Act which provides:

(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.

(emphasis added)

(Section 67 is not relevant here.)

12That section is clear. Where there is a collective agreement, bargaining rights sought to be terminated must be described by reference to the bargaining unit in the collective agreement. After the grant of a certificate, parties can adopt the bargaining unit described in the Board's certificate or negotiate changes to the scope of the bargaining unit. Once the parties have reached a collective agreement, the certificate is spent (see Gilbarco Canada Ltd. [1971] OLRB Rep. Mar. 155). Similarly, where bargaining rights have been obtained through voluntary recognition, the parties are free to craft the scope of those bargaining rights, subject to a potential challenge from employees.

13In this case there is no dispute that the parties are bound to two collective agreements. There is also no dispute that the application at paragraph 4 reproduces the respective bargaining units described in each of those collective agreements. For ease of reference I will refer to them as the "ICI sector agreement" and the "service and maintenance agreement". The bargaining unit in the ICI sector agreement poses no issue. However in the service and maintenance agreement the parties have agreed to describe the bargaining unit so as to encompass work both in the construction industry and outside the construction industry. This is a decision made presumably for practical reasons having to do with the difficulty parties often face in attempting to draw the line between service and maintenance work ("non-construction" industry work) and repair (construction industry work).

14The fact that the bargaining unit encompasses work both in and outside of the construction industry does not change the statutory mandate in section 63 that it is the "bargaining unit defined in the collective agreement" for which an application to terminate bargaining rights may be made. Those persons affected are "the employees in the bargaining unit". There was no suggestion that the service and maintenance agreement defined two separate bargaining units within that collective agreement. Nor could such an argument succeed, given the existence of one recognition clause in the agreement (Article 5.01) which recognizes both service and maintenance work and all construction work outside the ICI sector in one breath. Thus an application may properly be brought in respect of the second bargaining unit described in the application.

15Having entered into the service and maintenance agreement the parties are faced with the consequences of that broader scope clause. Just as there is no prohibition in the Act against such a broader scope clause and it may well solve certain practical problems in the application of the agreement on a day-to-day basis, it may create other problems or anomalies. In this case, the question raised is which rules apply for determining such an application? As the trade union noted, there are rules specific to construction industry applications, most notably that matters are determined as of the application date, which do not apply outside construction industry applications. In dealing with an application for certification or an application to terminate bargaining rights, the Board must determine who is an employee in the bargaining unit. In the construction industry, that often essentially depends on the nature of the work the person was performing on the date of application. In non-construction industry applications that determination is essentially made on the basis of whether the person worked in the bargaining unit within a representative period (30/30 rule).

16It is perhaps theoretically possible for the Board to apply one rule to "construction" employees and another rule to other employees in the same bargaining unit, but it provides neither certainty nor consistency in any given application. For example, for purposes of a termination application, an employee who regularly performed construction work covered by the agreement but was absent on the date of application would not be found to be an employee in the bargaining unit under the "construction" rule. Yet a party might argue that the non-construction rules ought to apply to that person in light of the existing employment relationship. Conversely, an employee might perform service and maintenance work on the date of application but be laid-off for an indefinite period prior to the holding of a vote. Such a person would not be an employee under the "non-construction" rule, yet a party might argue to have the construction rule apply. And of course there may be debates about the nature of the work being performed on the application date in order to make the argument that one or other rule apply, when there is no argument that the work, however described, properly falls within the scope of the bargaining unit. Such an approach would simply generate added confusion and litigation to a process that is already often cumbersome and plagued by a temptation for parties to position their interests.

17Which set of rules to apply then? In my view, the "construction" rules apply. The Act expressly sets the construction industry apart for specific treatment. Section 152 of the Act provides, in respect of both applications for certification and applications to terminate bargaining rights, that the construction industry provisions of the Act prevail in any conflict. The Board's Rules of Procedure also provide that where there is a conflict in the Rules in respect of a matter involving the construction industry, the construction industry rules apply (Rule 109). While there may be no specific conflict between these construction industry provisions and section 63(2)(a) of the Act, applying the construction industry rules reflects the parties' understanding of their own relationship. The bargaining rights sought to be terminated appear to arise from the granting of a certificate in respect of the construction industry bargaining rights and a subsequent voluntary recognition agreement encompassing the non-construction industry aspects of the work. Construction work is performed, the trade union is a construction union, and the employer appears to be a construction employer. Applying the construction industry rules merely parallels or mirrors how bargaining rights were obtained and exercised and is consistent with the provisions of the Act.

18The next question is whether an application to terminate bargaining rights represented by the service and maintenance agreement may be brought within the same application which relates to the ICI sector bargaining unit. That is, can one filed application seek to terminate two sets of bargaining rights? There can be no doubt that the processing of an application is made clearer and easier when it relates to only one bargaining unit. However, provided the parties and the Board are given the information necessary to make the various determinations in order to respond to and determine the application (for example, to determine the 40% issue, direct two separate votes identifying the separate bargaining units and be able to determine the appropriate lists of eligible voters and employees in the bargaining units), I see no prohibition in the Act or the rules against an amendment to allow the filing of the one application form to cover two bargaining units. (See generally the decision in Gardiner's Supermarket Limited [1985] OLRB Rep. Dec. 1737 where an application to terminate bargaining rights did not contain the correct bargaining unit description and a subsequent amendment described two bargaining units. The Board allowed the amendment in the circumstances even though the amended descriptions were filed after the open period ended.)

19In the same vein, the style of cause naming the applicant on his own behalf and on behalf of a group of employees is sufficient to bring an application in respect of each bargaining unit. Notwithstanding the fact that the named applicant was working in the ICI sector on the date of application, other employees on whose behalf the application was brought were working in the non-ICI/service and maintenance bargaining unit on the date of application.

20It is the case in the construction industry that applicants seeking to terminate bargaining rights may often not appreciate the necessary distinctions in the nature of work being performed or the separate bargaining units which may often derive originally from one application for certification (a trade union may make one application for certification for both ICI and non-ICI sector bargaining rights but receive two certificates identifying the then two separate bargaining units by operation of section 160(1) of the Act). The Board did, for example, receive applications to terminate bargaining rights in the construction industry in the latest open period which purported to seek to terminate both ICI and non-ICI sector bargaining rights in the same application. However the Board had insufficient information from which to make the 40% determination where separate employee lists and separate job sites were not properly identified. Those applications were dismissed in all respects. Thus an applicant runs that risk by filing one application form in an attempt to terminate two sets of bargaining rights. However, unlike in a certification application, the Board is able to consider such information as it considers appropriate to determine the number of employees in the bargaining unit in a termination application (section 63(7)). In this case the panel directing the votes considered the information in the application and the material filed by the intervenor and responding party in order to identify the collective agreements and to make the assessment of the appearance of 40% in each of the bargaining units.

21One final point must be addressed. The responding party relied on the Board's decision directing the votes to assert (both in its request for reconsideration and before me) that the application dealt only with "construction industry bargaining rights". It asserts that the Board made a finding which went unchallenged by the applicant, even notwithstanding the responding party's request for particulars. It also relies on subsequent correspondence from the applicant identifying the remaining issue as determining whether the work performed was "construction" work or "service and maintenance work".

22The trade union is correct to assert that the application was, at best, ambiguous. So arguably was the Board's decision (although perhaps intentionally). The Board's decision makes no finding that the application specifically excludes service and maintenance work. The decision notes that the relevant collective agreement (outside the ICI sector agreement) is the "non-ICI construction service and maintenance collective agreement". The 40% determination is made with express regard to the assertion that employees were performing service and maintenance work on the application date. Overall, has any lack of clarity generated prejudice to the trade union in its ability to respond to the application? I am not so persuaded.

23Throughout this application the only real confusion has been with respect to how to define the bargaining units; whether they be defined according to the collective agreements or limited to the construction industry aspects. The applicant identified the bargaining rights as "construction industry bargaining rights" yet there can be no doubt that the parties included, and knew they included, service and maintenance work and non-ICI sector construction work within the same collective agreement. While the parties may not have been clear as to how to apply or how to respond given this fact, there can be little doubt that all parties knew or ought to have known that the service and maintenance work was at risk. The parties can position themselves as they see fit to accomplish their intention as the trade union did by asserting throughout that there were no employees "in the bargaining unit" on the application date, knowing that both the applicant and intervenor were asserting that service and maintenance work was performed on that date and knowing the scope clause from the agreement. There was an issue between the parties as to the proper scope of the application but no prejudice in the circumstances to the responding party.

24Thus, the words of section 63 answer the fact of having both construction industry work and work outside the construction industry included in the same bargaining unit. It is the bargaining rights represented by the scope of the bargaining unit described in the collective agreement that are subject to termination. Where the scope of those bargaining rights include construction industry work, the construction industry rules may, and in this case will apply for determining the application.

25Thus, fundamentally this application is to be determined as of the date of application. It is asserted that there were employees performing service and maintenance work on the date of application. The fact that no one was performing non-ICI sector construction work is irrelevant if there were employees in the bargaining unit performing bargaining unit work on the date of application.

26To the extent that this decision encompasses issues raised in the request for reconsideration that request is hereby dismissed. The Board had the jurisdiction and did properly order the holding of two votes in the circumstances of this case. There remains the fact that no vote was actually conducted in respect of the service and maintenance collective agreement bargaining rights.

27Having regard to the above and to the Board's decision dated April 7, 1998 (particularly to paragraphs 4, 7 and 8 of that decision) I hereby direct that a representation vote be taken of the employees in the bargaining unit described as:

All journeyperson and apprentice refrigeration and air conditioning mechanics, save and except persons above the rank of working forepersons, employed by the employer in the Province of Ontario engaged in all of the employer's maintenance and/or service activities and all construction work in the Province of Ontario, other than construction work in the Industrial, Commercial and Institutional Sector in the Refrigeration and Air Conditioning trade.

28Voters will be asked to indicate whether or not they wish to be represented by the responding party in their employment relations with Francis H.V.A.C. Services Ltd.

29Any party or person who wishes to make representations to the Board about any issue relating to this representation vote which remains in dispute, must file a detailed statement of representations and all material facts upon which they rely with the Board and deliver it to the other parties, so that it is received within five days (excluding Saturdays, Sundays and holidays on which the Board is closed) of the date on which the vote is taken.

30With respect to the bargaining rights for the ICI sector of the construction industry, there is no dispute that more than fifty per cent of the ballots cast by employees in the bargaining unit were cast in opposition to the responding party.

31The Board declares that the responding party no longer represents the employees of Francis H.V.A.C. Services Ltd. for whom it has heretofore been the bargaining agent in the following bargaining unit:

32The Registrar will destroy the ballots cast in the representation vote taken in respect of the ICI sector bargaining rights 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.

33The employer is directed to post copies of this decision immediately, adjacent to the "Notice to Employees of Vote and Hearing" posted previously. These copies must remain posted for a period of 30 days.

34This matter is referred to the Vote Coordinator for the purpose of conducting the vote directed in paragraph 27 above. The date of the vote and vote arrangements will be determined. Upon receipt of the "Notice to Employees of Vote" the employer is directed to post copies of that notice adjacent to this decision. These copies must remain posted until 7 days following the taking of the vote.