[1998] OLRB REP. SEPTEMBER/OCTOBER 792
1748-98-R International Union of Operating Engineers, Local 793, Applicant v. Dufferin Construction Company, Responding Party
BEFORE: G. T Surdykowski, Vice-Chair, and Board Members J. G. Knight and G. McMenemy
DECISION OF THE BOARD; September 23, 1998
This is an application for certification in the construction industry.
By decision dated August 20, 1998, the Board (differently constituted) directed that a representation vote be held on August 24, 1998.
The vote was held, and in the result, more than fifty per cent of the ballots cast by employees in the bargaining unit were marked in favour of the applicant.
In its August 20, 1998 decision, the Board noted the dispute between the parties concerning whether surveyors are properly included in the bargaining unit description in this application.
Subsequent to the vote, both parties have made written submissions on the surveyors issue, which is the only matter remaining in issue in this application.
The positions of the parties are relatively straightforward. There were no surveyors employed by the employer at the time the application was filed. However, the responding employer asserts a long-standing practice of employing surveyors independent of employees who operate equipment. The employer seeks to distinguish the Board's decision in Kraft Construction Company (1978) Ltd., [1989] OLRB Rep. Feb. 169 on the basis that that decision dealt with an application for certification which related to the industrial, commercial and institutional ("ICI") sector of the construction industry, and this application does not. The employer submits that the situation is different when an application does not relate to the ICI sector, and that where an employer has a long-standing practice employing surveyors independent of operators but employed no surveyors on the certification application date, the classification of surveyor should be excluded from a non-ICI bargaining unit description.
The applicant union included surveyors in the bargaining unit description which it proposed in its application, and it simply submits that surveyors are part of the trade or craft it represents and are included in its "standard" bargaining unit. Not surprisingly, the applicant relies on Kraft Construction Company (1978) Ltd., supra.
The applicant's position must prevail. There is nothing in principle to distinguish this or any other non-ICI application from Kraft Construction Company (1978) Ltd., supra. As the Board pointed out in that case, in the construction industry and for purposes of the Labour Relations Act, 1995 (the "Act"), surveying has been deemed to be a part of the operating engineer craft or trade. In the ICI sector, surveyors are part of the designated provincial bargaining unit. They cannot be in an ICI bargaining unit separate from operators. Under the Act, an application relating to the ICI sector must be made with respect to all ICI employees who would be bound by the applicable provincial agreement and all other non-ICI employees and at least one geographic area (unless such non-ICI bargaining rights are already otherwise held - section 58(1)). At the "front-end" of such an application for certification, all such employees, whether in the ICI or a non-ICI sector, are included in a single bargaining unit for purposes of determining whether the union is entitled to be certified. For the reasons expressed in jurisprudence on this point, the Board has interpreted the legislation as requiring that the non-ICI portion of the bargaining unit mirror the ICI portion. That is, the non-ICI portion can be neither more nor less than the entire "trade" or "craft" as defined in the applicable designation order, whether or not there were any such employees at work in either part of the bargaining unit at the time the application was made. This is so even though at the "back-end" of a successful certification application of this kind there will be two certificates for two separate bargaining units, one in the ICI sector, and one in all of the non-ICI sectors of the construction industry (section 160), whether or not there were any employees in either individual unit at the time the application was filed. Indeed, in the usual case, an employer in a certification application will have had only ICI or only non-ICI employees at work on the certification application date.
Why should it be any different in non-ICI applications by an affiliated bargaining agent of a designated employee bargaining agency like the applicant (which applications are made under section 158(2) of the Act)? It shouldn't be, and it would make no sense for it to be. The trade or craft principles are the same, and a craft construction union like the applicant is entitled to seek certification for its entire craft, not just that part of it which as a result of the vagaries of employment in the industry happened to be at work on the certification application date. Further, although it can, it is rare for an affiliated bargaining agent to make an ICI-related application which also relates to more than one ICI geographic area. If the employer in this case is right, it would mean that such a union could only obtain non-ICI bargaining rights for its entire craft as of right in the first, and if successful the only, application for certification it makes, since after that it could only make non-ICI applications for bargaining rights in other geographic areas. This would have the potential for creating an undesirable and potentially destabilizing patchwork of bargaining rights which would develop depending upon the operations of individual employers or the vagaries of employment with each individual employer. And in that respect it is important to remember that to the extent of the employer in this case suggests that different principles apply in non-ICI applications, those principles would not be limited to operators and surveyors. It would be equally applicable to all construction crafts as defined in the designation orders and therefore within the various crafts. With respect, this is neither what the legislation contemplates, nor does it make labour relations sense.
The Board therefore finds that the bargaining unit description suggested by the union in its application is the appropriate one; that is, that the bargaining description herein properly includes surveyors. The Board therefore finds the following bargaining unit to be appropriate for collective bargaining:
all employees of Dufferin Construction Company engaged in the operation of cranes, shovels, bulldozers and similar equipment and those primarily engaged in the repairing and maintaining of same, and employees engaged as surveyors, in all sectors of the construction industry in the Towns of Cobourg and Port Hope, and the geographic Townships of Hope, Hamilton, Haldimand and Alnwick in the County of Northumberland, excluding the industrial, commercial and institutional sector of the construction industry, and save and except non-working foreman and persons above the rank of non-working foreman.
The voting constituency structured by the Board in its August 20, 1998 decision reflects this bargaining unit. As indicated above, more than fifty per cent of the ballots cast by employees in the bargaining unit in the representation vote which was held on August 24, 1998 were marked in favour of the applicant.
A certificate will therefore issue to the applicant.
The Registrar will destroy the ballots cast in the representation vote taken in this application following the expiration of 30 days from the date of this decision, unless within that time a fully particularized request that the ballots not be destroyed is received from one of the parties.
The responding employer is directed to post copies of this decision immediately, such posting to be made adjacent to the "Notice to Employees of Application and of Vote" posted previously. The decision must remain posted for a period of 30 days.