[1999] OLRB REP. SEPTEMBER/OCTOBER 858
1061-98-R International Brotherhood of Electrical Workers, Local 586, Applicant v. Megatech Electrical Ltd. ("the company"), Responding Party v. Construction Workers Local 52, affiliated with the Christian Labour Association of Canada ("CLAC"), Intervener
BEFORE: R. 0. MacDowell, Chair.
DECISION OF THE BOARD; October 8, 1999
I
This is an application for certification in which the IBEW seeks to represent its traditional "craft bargaining unit" of journeymen and apprentice electricians. The application was filed on June 16, 1998.
In an earlier decision, the Board resolved various challenges to the eligibility of certain individuals to cast ballots in a representation vote. The Board then directed that a new representation vote be taken. The company (supported by CLAC) now seeks reconsideration of that decision.
The thrust of the employer's assertion - both at the initial hearing and on reconsideration -is that an individual named Paul Dal-Cin should have been entitled to cast a ballot in the representation vote. The employer and CLAC assert that the Board's ruling that Mr. Dal-Cin was not entitled to vote, is contrary to the Charter of Rights and Freedoms, and the Ontario Human Rights Code. In their submission, the Board's ruling has improperly disadvantaged a disabled employee.
The request for reconsideration was made in writing, and elaborates upon the submissions that were made in the earlier hearing. It also points out a factual error which, it is said, was critical to the Board's earlier determination. Counsel for the union has responded in writing to these submissions. And in both the request for reconsideration and the reply, counsel refer to the legal principles that, in their submission, should be applied to the facts of this case. I have had the opportunity to review those submissions.
I will address "reconsideration" in a moment. First, I think it is helpful to briefly recall the context in which the Board approached the question of voter eligibility: the fluid employment environment in the construction industry, and the unhappy circumstances of Mr. Dal-Cin himself.
The Board does not suggest that the Charter (or the Human Rights Code for that matter) can have no application to the Board's work under the Labour Relations Act. However, the Board does suggest that "Charter principles" cannot be abstracted from the particular context under review. The setting matters; and, in my view, Charter rights are neither engaged nor abrogated in the particular facts of this case. Nor is there any collision with the Ontario Human Rights Code.
II
In its earlier decision, the Board explained the way in which it approaches the determination of bargaining units and voting constituencies in the construction industry. I will not repeat that analysis here. It suffices to say that the Board's approach is shaped not only by the Board's own experience over many years, but also by the provisions of the Labour Relations Act itself. Those provisions confirm that, for collective bargaining purposes, the construction industry is "different", and that the construction sections override the general provisions of the Act (see for example section 127 and section 145(2)).
The point is: the "commonsensical notions" of even an informed labour relations observer, have to be tempered by the unique economic and regulatory environment of the construction industry. If collective bargaining law is a specialized area of employment law, then labour relations in the construction industry presents a unique legal variant.
On an application for certification in which a construction trade union seeks an ICI craft bargaining unit (see section 9(3) and sectionsl58-159 of the Act) the Board is obliged to determine the description and composition of that bargaining unit. In both cases the determination is influenced by the history and special characteristics of the construction industry. (See the discussion in: Smith's Construction Co., [1984] OLRB Rep. March 521, or Ken Anderson Electric, [1996] OLRB Rep. Sept./Oct. 846, or Crete Floor, [1992] OLRB Rep. July 792, or Diplock Durable Floor Co. Ltd., [1982] OLRB Rep. Aug. 1159, or City Plumbing (Kitchener) Limited, [1987] OLRB Rep. June 810).
All of these cases (and indeed the Board's jurisprudence from the 1950s) confirm that, in the construction industry, the Board gives a rather precise meaning to who is an "employee" in the bargaining unit for certification purposes. To put the matter another way: the Board has over the years established particular criteria for the application of sections 9(3), 158, and 159 of the Act. To "count" for certification and voting purposes, the individual in question must be:
a) Actually at work on the application date; and
b) Actually performing the work of the trade for a majority of his/her time on the application date.
Membership in the bargaining unit depends upon active employment, at the trade, at the time the certification application is filed.
As I understand it, the company and CLAC do not quarrel with this general proposition. Rather, they assert that the Board's approach should be modified to accommodate Mr. Dal-Cin, whom, they say, "would have been" at work, "but for" his "disability". They argue that if the Board does not modify its standard approach and "bend the rules" so as to put Mr. Dal-Cin on the voters' list, there is a collision with Mr. Dal-Cin's rights under the Charter and the Ontario Human Rights Code. They say that his prolonged absence from work is rooted in his disability, so that, even though he had not been at work for months and died without ever returning to work, he should be treated AS IF he were at work, doing the work of an electrician, on June 16, 1998, when the certification application was filed.
Now let me observe, parenthetically, that it is not at all clear that the employer or the union is entitled to assert these Charter or Code rights, which are necessarily unique to the individual disabled person. It is not at all clear that a corporation or unincorporated association is entitled to advance someone else's Charter rights, and for reasons which will be mentioned again below, Mr. Dal-Cin did not, and could not, raise these issues himself: at the time of the union's certification application, Mr. Dal-Cin had not been actively employed for months, and he could not assert at the hearing that he should have been treated AS IF he were actively employed all along, because he had died in the meantime (without ever returning to work). So we can only speculate that he would have articulated his Charter or statutory "rights" in the manner proposed by the "institutional parties". And, of course, the company and CLAC have no Charter claim of their own which comes into play.
Accordingly, I think that the union is right to point out that the Charter and Human Rights Code claim cannot now be raised or pursued by these other parties.
However, I do not propose to rest the Board's determination solely on this basis, because, as the Board indicated in the initial decision, I simply do not think that the particular facts of this case engage either Charter or Human Rights Code concerns in any event.
Mr. Dal-Cin left active employment to take cancer treatments in September 1997, and never returned to work. He was not at work in the bargaining unit on the application date, or at any time thereafter. His circumstances are summarized at paragraphs 64-69 of the Board's earlier decision:
Accordingly, at the time that the application for certification was filed, Mr. Dal-Cin had not only been away from work for many months, but he was not planning to return to work anytime soon, if at all - however hopeful anyone may have been about his chances of recovery. Mr. Dal-Cin was claiming long term disability, and the insurance company eventually accepted that claim.
There is no evidence that Mr. Dal-Cin was receiving wages or other payments from the company during these absences. Presumably, that is why he was applying for long term disability.
In summary, then:
(a) Mr. Dal-Cin was not at work on the application date [June 16, 1998].
(b) Mr. Dal-Cin was not at work at any time in the nine months preceding the application date.
(c) Mr. Dal-Cin was not at work at any time in the weeks or months following the application date.
(d) Mr. Dal-Cin worked for the company only 10 weeks in the 18 months preceding the application date, and all of that work was in calendar year 1997.
(e) Mr. Dal-Cin asserted and received entitlement to long term disability effective from January 1998 - six months before the union's certification application.
Whatever Mr. Dal-Cin's "employment status" may have been at common law or for insurance purposes, his actual attachment to Megatech and the proposed bargaining unit was very tenuous indeed. If he was an "employee" at all, he had ceased to be an "active employee" long before the union arrived on the scene.
I am further satisfied that, however optimistic the company may have been, there was no reasonable prospect of Mr. Dal-Cin returning to active employment at any time proximate to the application date, or perhaps at all. I say "perhaps" because, in fact, Mr. Dal-Cin died without ever returning to work. So whatever the hopes or expectations may have been in September 1997 or June 1998, the evidence is now clear that Mr. Dal-Cin was never returning to active employment (which is why I have used the phrase "if he was an employee at all" in an earlier paragraph - if he was not working for wages and had no settled prospects of returning to work, in what sense was he still an employee for the purposes of the Labour Relations Act? It would probably be more accurate to describe him as a "former employee" who hoped to be re-employed if he ever recovered - which he never did).
In any event, on the evidence, Mr. Dal-Cin did not, and would not ever, actually work in the bargaining unit proposed by the trade union in its application for certification on June 16, 1998.
To be specific: I reject the employer's assertion that, as of June 16, 1998, there was some reasonable likelihood that Mr. Dal-Cin would be returning to work. His outstanding and ultimately successful claim for long term disability, and his work pattern in the previous months, support precisely the opposite conclusion.
The Board was not persuaded that these circumstances required a departure from its standard approach to determining craft bargaining unit composition on construction industry certification applications - which is to say, the Board was not persuaded that someone who has not worked on the application date, had not been at work for months before that, had no reasonable prospect of returning to work, never did work or return to work in the proposed bargaining unit, and subsequently died, should cast a ballot in the representation vote. His claim was simply too tenuous and artificial; moreover, the acceptance of the theory on which it was based would unnecessarily impede the right of self-organization provided for in the statute.
Nor was the Board persuaded that the Charter or Code required a "but for" test in these circumstances - particularly where the Board's standard approach (for good policy reasons) excluded all individuals not actively at work on the application date, regardless of the reason for their absence There was, in this sense, no "discrimination" at all. Mr. Dal-Cin was not singled out for invidious treatment.
On a construction industry certification application, the Board takes a snapshot of active employment on the application date, and does not inquire "why" someone may be absent. Able-bodied and disabled absentees are treated in precisely the same way. Similarly, the Board does not ask why someone is or is not doing the work of the trade. What matters is presence or absence and the performance of particular kinds of work - not the reason why someone is absent and/or not performing that kind of work.
Furthermore, to the extent that the situation might be nevertheless characterized as indirectly "discriminatory", it was, in any event, an approach which was entirely reasonable in the particular factual setting of this case and general policy setting of the construction certification process. Indeed, as the Board pointed out in paragraph 67, it would be quite artificial to do otherwise because it is not at all clear in what sense an individual continues to be an "employee" for certification purposes under the construction industry provisions of the Labour Relations Act, where, as here, he has not been at work for months, he has no reasonable prospect of returning to work, he was on his own initiative seeking and ultimately in receipt of long-term disability benefits, and he ultimately did not ever return to work. He is certainly pretty remote from the usual incidents of “employrnent": working, for wages, under the direction and control of an employer; and he was also pretty remote from the organizing campaign that culminated in the application for certification. That artificiality is merely underlined by the fact that the employer and CLAC are now asserting the Charter/Code rights of a dead person who, in fact, never worked in the union's proposed bargaining unit.
The Board was not prepared to accord any weight to the company's testimony that "but for" Mr. Dal-Cin's disability, he would have been at work, and doing bargaining unit work, on the particular application date, or that on that date he had a reasonable expectation of returning to work. In fact, he did not return, ever, and there was no reasonable expectation that he would. The assertion that "but for" the "disability" he would have been at work, in the bargaining unit, on a particular day, was (and in the circumstances had to be) completely speculative and totally divorced from the actual reality of Mr. Dal-Cin's situation.
The fact is: Mr. Dal-Cin was not at work in the bargaining unit performing electricians' functions and earning wages like the other employees were; and the fact that the Board did not accord him voting rights is no more "discriminatory" than the employer's determination not to pay his wages. In both cases "working" is an appropriate criterion for the purpose described.
For the reasons outlined in the Board's construction decisions, active employment is a bona fide consideration for the certification purposes described, and the facts of Mr. Dal-Cin's situation simply did not warrant a departure from the Board's established approach. Whether other facts might be more compelling need not be explored here. It suffices to say that the Board was not persuaded that Mr. Dal-Cin's situation triggered Charter or Human Rights concerns, or that even if it did, that there was a collision between the Board's settled interpretation of the Labour Relations Act and the Charter or the Code.
In the Board's view, its approach was reasonable and justifiable for the purposes enunciated and in the particular facts of the case and the special setting of the construction industry; and if its approach could be said to be "discriminatory" at all, it was nevertheless reasonable and bona fide. Conversely, the alternative interpretation would unnecessarily burden and might well subvert the statutory scheme.
Having reviewed the parties' further submissions, the Board prefers the union's legal characterization, and, in any event, sees no reason to reconsider its earlier ruling with respect to the voter eligibility of Mr. Dal-Cin.
But there was a factual error in the Board's decision; and while that error did not influence the Board's ultimate conclusion in this matter, it is useful to correct the record.
III
- In the course of its discussion of the special setting of the construction industry, the Board described how tradespersons move from job to job, or employer to employer in accordance with the vagaries of the marketplace, and also perform a range of work functions, crossing over traditional craft lines. This fluidity made it all the more important to articulate what the Board described as a "bright line test" for dealing with certification applications. Otherwise, as the Board put it, the process would inevitably bog down in layers of litigation, so that the certification process would defeat its own purpose. After citing the decision of the Court in Colautti Construction. the Board noted:
The Court recognized that there is a practical and policy underpinning to what an outsider might consider a "Draconian" approach. It is reasonable, sensible and necessary in the special context of the construction industry.
In the course of this general discussion, the Board had occasion to look at some of the documentation that had been filed by the employer in response to the application, and, in so doing, the Board noted that two individuals (Girard and Vezina) appeared to be missing on several days - thereby illustrating the kind of irregular work pattern which was characteristic of tradespersons in the construction industry. The Board observed, correctly, that these two individuals were not at work on a particular job site. The Board then commented, incorrectly, that these individuals did not appear to be working on the application date (although their eligibility to vote was not in issue, so the Board said nothing about that).
Counsel for the employer now points out - correctly - that these individuals were actually working on another job site; so that while their situation might illustrate movement from site to site, it does not, in their case, signify a break in employment.
Counsel is right to point out the Board's error. However, that error does not really bear upon the situation of Mr. Dal-Cin. Nor does it undercut the general proposition that in the construction industry, it is necessary, but sometimes difficult, to pin down the composition of the bargaining unit. All it shows is that geographic mobility may also have to be considered where, as here, the employer has more than one job site. And, of course, geographic dispersion poses its own problems, both for the union seeking to identify the target group for organizing purposes, and for the Board when it has to determine the description and composition of bargaining units.
Girard and Vezina were working at one job site rather than another. But unlike Mr. Dal-Cin, at least these employees were "in the picture" around the time that the organizing campaign takes place. They could be identified if the union was aware of the second job site. By contrast, Mr. Dal-Cin had not been on the scene for months.
The Board might also have mentioned the company's submission (July 6, 1998) with respect to Mr. Ventura. Mr. Ventura was also at work in the bargaining unit on the application date, but was purportedly "laid off' some days later because of back problems, and did not subsequently return (at least to the date of the hearing). His situation differs from that of Mr. Dal-Cin because he was present when the certification application was filed. But it also illustrates the way in which employees can come and go.
However, the reference to these various individuals does not figure into the analysis of Mr. Dal-Cin's situation. They were mentioned merely to illustrate the kind of variability which, in a general sense, was characteristic of the construction industry, and which had to be factored into the Board's approach to bargaining unit determination. They were an illustration of the general theme.
The fact is, in the construction industry, workers can move around geographically as Mr. Girard and Vezina did, or come and go as Mr. Ventura and Mr. Dal-Cin did, or do different work functions on different days as Mr. Quackenbush did. The Board has to cope with that variety when making determinations of bargaining unit composition and voter eligibility. That is what the Board did in respect of Mr. Quackenbush where the employer's position was sustained, and what the Board did in respect of Mr. Dal-Cin where the employer's position was rejected. And that is why the Board needs "bright line tests" to sort out such situations in a manner that is workable, predictable, and economical.
The error noted by counsel was not intrinsic to the Board's reasoning in Mr. Dal-Cin's situation; and does not persuade the Board to alter its assessment of Mr. Dal-Cin's voter eligibility.
IV
For the reasons set out in Part IV of the Board's earlier decision, the Board determined that another representation vote would be necessary. The employer submits that the Board should now strike a new and more representative voting constituency. The employer asserts that the composition of the bargaining unit has changed since the initial application was made.
As the Board has already noted: in construction industry certification applications the Board "takes a snapshot" of the state of affairs on the application date - fully recognizing that the composition of the bargaining unit may change thereafter. The Board does that for the policy reasons articulated in its original decision, and in the various cases mentioned above; moreover, as I have already noted, the statute specifically recognizes this possibility and provides that, in the construction industry, the Board need not take into account the influx of new employees after the application is made (see section 128(2) of the Act). In the construction industry, variability is a fact of life - which makes it all the more necessary to have a fixed point from which to carry out the processes contemplated by the statute.
For reasons of practical administration, and in accordance with the thrust of the statute itself, the Board focuses on the situation which obtains when the certification application is filed; and, in my view, that should remain the benchmark for processing the application and dealing with whatever issues might subsequently arise. If it were otherwise, not only would one party or another inevitably be prejudiced in a wholly idiosyncratic way, but there might be some encouragement to provoke precisely that result. And the tricky issue of bargaining unit composition faced at the front end of a certification application could be repeated at later stages of the proceeding.
In the instant case, the representation vote was inconclusive for reasons beyond the parties' prediction. In the circumstances, section 111(5) of the Act permits the Board to conduct additional representation votes to ascertain the wishes of the employees.
I remain satisfied that a second vote should be taken and that the voting constituency for such second representation vote should remain that defined in the decision of the Board dated June 22, 1998, as clarified by the Board's decision of April 23, 1999.
The voting constituency and the list of eligible voters will remain unchanged. Mr. Quackenbush will be entitled to vote. Since Mr. Dal-Cin has now died, his situation has become academic.
The matter is referred to the Registrar.