[1999] OLRB REP. JANUARY/FEBRUARY 4
0318-98-R Labourers International Union of North America. Local 506, Applicant v. Clifford Restoration Limited, Responding Party v. Operative Plasterers' and Cement Masons' International Association of the United States and Canada, Restoration Steeplejacks, Local 598, International Union of Bricklayers & Allied Craftworkers, Local 2, Intervenors
Certification - Construction Industry - Labourers' union seeking to represent bargaining unit of masonry restoration employees employed in ICI sector under steeplejacks provincial agreement - Board satisfied that Labourers' general designation does not cover "steeplejacks" and that Labourers' not entitled to make application to represent them - Application dismissed
BEFORE: G. T Surdykowski, Vice-Chair, and Board Members G. Pickell and A. Haward.
APPEARANCES: Carolyn Hart, Bob Maskey and Peter Treacy for the applicant; Walter Thornton and Sam Trigila for the responding party; David McKee for the Bricklayers Local 2.
DECISION OF THE BOARD; February 3, 1999
This is an application for certification under the construction industry provisions of the Labour Relations Act, 1995.
The applicant ("Labourers Local 506") is a trade union within the meaning of sections 1(1) and 126 of the Labour Relations Act, 1995, and is an affiliated bargaining agent of a designated employee bargaining agency.
There are in fact three pairs of "Labourers" designation orders, each pair consisting of 1 each of an employee and an employer bargaining agency. These can be described as Labourers' general designation, the Labourers' pre-cast designation, and the Labourers' demolition designation.
The Labourers' Union is not the only construction trade union which operates under more than one designation order in the industrial, commercial and institutional ("ICI") sector of the construction industry in Ontario. The Operative Plasterers and Cement Masons' International Association of the United States and Canada, The International Union of Bricklayers and Allied Craftsmen, The United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, The International Association of Bridge, Structural and Ornamental Ironworkers, The International Brotherhood of Painters and Allied Trades, and The Sheet Metal Workers International Association all have more than one such designation order, and accordingly also more than one employer bargaining agency bargaining partner.
In all three Labourers' designations, The Labourers International Union of North America, and The Labourers International Union of North America, Ontario Provincial District Council are designated together as the designated employee bargaining agency, and in each case the applicant, Labourers' Local 506, is stipulated to be an affiliated bargaining agent thereof.
This appeared to be a displacement application for certification. Labourers Local 506 identified the Cement Masons Local 598 as being a trade union which represents the employees affected, and the Cement Masons Local 598 claimed to be the bargaining agent for such employees in its intervention. The responding employer did not identify the Cement Masons Local 598 as a trade union claiming to represent the affected employees.
But whether or not this was a displacement application, the first question which presented itself was whether Labourers Local 506 could make it at all.
A hearing was scheduled to deal with that issue (and, if necessary, the other issues raised). When the hearing was convened (on November 10, 1998), the Board expressed some misgivings concerning the applicant's ability to bring the application, and called on counsel for Labourers Local 506 to address that question. Upon considering the representations of counsel, the Board considered it unnecessary to hear from the other parties, and ruled, orally, that the application should be dismissed, because Labourers Local 506 could not bring it. The following are the Board's reasons in that respect.
This application for certification related to the ICI sector of the construction industry which is referred to in sections 126, 128, 153, 156, 158 and 160 of the Act. Accordingly, it is an application made under section 158(1) of the Act, which reads as follows:
158.(l) An application for certification as bargaining agent which relates to the industrial, commercial and institutional sector of the construction industry referred to in the definition of "sector" in section 126 shall be brought by either,
(a) an employee bargaining agency; or
(b) one or more affiliated bargaining agents of the employee bargaining agency, on behalf of all affiliated bargaining agents of the employee bargaining agency and the unit of employees shall include all employees who would be bound by a provincial agreement together with all other employees in at least one appropriate geographic area unless bargaining rights for such geographic area have already been acquired under subsection (2) or by voluntary recognition.
Historically, construction industry businesses and trade union have organized themselves along craft or trade lines. The terms "craft" and "trade" are not grammatically synonymous. However, in labour relations parlance, they are generally treated as though they are (see, Ellis-Don Limited, [1988] OLRB Rep. Dec. 1254, at paragraph 40). There is a significant trade component even in construction industry businesses and trade unions which are not organized entirely along trade lines, at least in the sense that employees who the former employ and the latter represent are generally recognized as working in a particular construction trade at any given time (and often, all of the time).
In recognition of the history and craft orientation of the construction industry, and in order to deal with representational conflicts which were draining the resources of employers and trade unions alike, the Act was amended beginning in the late 1970's, so that by 1980 it contained a comprehensive province-wide collective bargaining scheme for the ICI sector of the construction industry. This provincial bargaining scheme was intended to reflect established traditional patterns of collective bargaining and trade union representation which had evolved between the construction building trades unions and construction industry employers. Under the scheme, the building trades unions are guaranteed what amounts to a near representational monopoly in the ICI sector for the trades or crafts they have historically represented or bargained for. Concomitantly, the building trades unions are confined to those trades or crafts. So, for example, the International Association of Heat and Frost Insulators and Asbestos Workers, together with its Local 95, have been designated to represent journeymen and apprentice insulators and asbestos workers for whom their affiliated bargaining agents held ICI bargaining rights. The International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers has been designated to represent journeymen and apprentice boilermakers for whom its local unions have historically held ICI bargaining rights, and so on. As a result, the Asbestos Workers' Union(s) cannot represent boilermakers, or any other construction trade in the ICI sector, the Boilermakers' Union(s) cannot represent asbestos workers or any other construction trade in the ICI sector, and so on.
The monopoly created by the province-wide bargaining structure is incomplete because not all construction trade unions are covered by it (the Christian Labour Association of Canada comes immediately to mind as an example of a union which operates in the construction industry but is not covered by provincial bargaining), and because there are some overlaps between the designations themselves. For example, the "Operative Plasterers and Cement Masons International Association of the United States and Canada and the Ontario Provincial Conference of the Operative Plasterers and Cement Masons of the United States of Canada" has been designated to represent ICI journeymen and apprentice cement masons. In what is commonly referred to as the "tile and terrazzo" designation, the "International Union of Bricklayers and Allied Craftsmen and the Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftsmen, has been designated to represent, among other employees, ICI cement masons as well. In addition to journeymen and apprentice painters, the International Brotherhood of Painters and Allied Trades and the Ontario Council of the International Brotherhood of Painters and Allied Trades, in one of its two designations, has been designated to represent ICI "employees engaged in the laying of resilient tiles" and plasterers. The cement masons "tile and terrazzo" designation also covers "resilient floor layers", which would seem to include "employees engaged in the laying of resilient tiles" (although in light of the Board's analysis in this case, there may not be an overlap here, in that employees engaged in the laying of resilient tiles may be excluded from the resilient floor layers employees referred to in a cement masons "tile and terrazzo" designation). One of the Cement Masons' designations covers "plasterers". So does the Labourers' general designation (which leaves ICI plasterers covered by three pairs of designation orders).
However, a close examination of the designation orders reveals that there are really very few overlaps between the ICI designations. The ones which do exist reflect historical anomalies which it was considered appropriate to preserve, just as certain historical anomalies are preserved within individual designations (see, for example, the formwork exclusions in the Labourers' general designation). Notwithstanding these overlaps, the clear purpose and intent of the designation and provincial bargaining scheme is to maintain a separation between the construction trades and the unions which represent them in the ICI sector. It is therefore appropriate to strictly construe the designations in order to limit overlaps between them as much as possible.
It was not considered necessary or appropriate to implement a designation system or provincial bargaining scheme (and it would seem possible to have the former without the latter), in any sector of the construction industry other than the ICI sector. Consequently, although many of the construction unions do not stray far from the traditional trades, there is no restriction regarding the construction employees which a building trades construction trade union can represent in the non-ICI sectors, and some of them, most notably the Labourers' and the Carpenters' Unions, have expanded their representation activities to construction employees or areas which they have not historically been active in, particularly in the residential sector.
As a result of all this, a trade union which is an affiliated bargaining agent of a designated employee bargaining agency which seeks to obtain ICI bargaining rights through certification must make its application under section 158(1) of the Act. A section 158(1) application cannot extend beyond the trade or employees specified in the applicable designation order, in either the ICI or the non-ICI sectors. If an affiliated bargaining agent of a designated employee bargaining agency wishes to apply to be certified to represent trades or employees which are not covered by the designation order, which it can only do in the non-ICI sectors, it can apply to do so under 158(2) of the Act, but it cannot obtain any ICI bargaining rights through such an application. Section 158(1) and section 158(2) applications cannot be merged.
The bargaining unit which the applicant labourers' union sought to be certified for in this application was:
all masonry restoration employees in the employ of the Responding Party:
i) in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario; and
ii) in all other sectors of the construction industry, excluding the institutional, commercial and industrial sector in the Municipality of Metropolitan Toronto, the Regional Municipalities of Peel and York, the Towns of Oakville and Halton Hills and that portion of the Town of Milton within the geographic Townships of Esquesing and Trafalgar, in the Regional Municipality of Durham;
save and except non-working foremen and persons above the rank.
The materials before the Board suggested that the work being performed by the employees affected by the application was all in the ICI sector, and that it was under the Cement Masons' steeplejacks provincial agreement.
The Labourers Local 506 argued that the designations are analogous to regulations and should interpreted in the same way. Counsel submitted that the lack of a specific reference to "steeplejacks" in the Labourers' designation it is not determinative of the Labourers' right to represent steeplejacks in the ICI sector, that the words "all employees engaged in cement finishing, waterproofing or restoration work" must be given their ordinary grammatical meaning, and that it is not inconsistent with the provincial bargaining scheme to interpret the Labourers' general designation as applying to all masonry restoration employees, including steeplejacks. Counsel pointed out that, unlike some designation orders, "masonry restoration employees" are not specifically excluded from the more general "employees engaged in ... restoration work" in the Labourers' designation. Counsel suggested that "steeplejack" is not a distinct trade, and observed that the Labourers' ICI provincial agreement contains many provisions which purport to cover masonry restoration work. In her submissions, counsel referred to the Board's decisions in Ninco Construction Ltd., 111982] OLRB Rep. Nov. 1692; E.K.T Industries Inc., [1987] OLRB Rep. March 352; Lumber and Sawmill Workers Union, Local 2693, [1987] OLRB Rep. Dec. 1556; and Gottcon Contractors Limited, 11990] OLRB Rep. Jan. 25.
The Board accepted that it is appropriate to apply the principles of statutory interpretation when determining the limits of designation orders, and that the words used in designations should, wherever possible, be given their ordinary grammatical meaning. The Board did not accept that it was consistent with the province-wide bargaining structure to interpret the reference to "employees engaged in restoration work" to include steeplejacks. The fact that the Labourers' ICI agreement may purport to cover steeplejacks did not assist Labourers Local 506. A union cannot clothe itself with a broader jurisdiction than its designation order(s) gives it through such a device. The Labourers' provincial agreement was irrelevant. Nor, did the authorities cited assist Labourers Local 506.
Since the Board's decision in Ninco Construction, supra, it has been well settled that a construction trade union which is subject to the ICI provincial bargaining scheme; that is, an affiliated bargaining agent of a designated bargaining agency, cannot be certified, or otherwise lawfully represent in collective bargaining, any ICI employees which it has not been designated to represent. Provincial bargaining in the ICI sector is mandatory for affiliated bargaining agents of a designated employee bargaining agency. Such trade unions are subject to the scheme by operation of the Act, not because they choose to "opt in". Nor, can they "opt out" of provincial bargaining. It has always been the case, and has been accepted by the Board, that the Board has no jurisdiction to vary or amend a designation order. On the other hand, it has been equally well accepted that the Board has the jurisdiction and obligation to interpret designation orders. Indeed, the Board is obliged to do so when an issue arises concerning the limits of a designation order, something which is demonstrated by this very application.
The Board's "decision" in Lumber and Sawmill Workers Union, Local 2693,
sup ra, was not a determination of any issue as such. Rather, it contains the Board's views regarding certain facts and the applicable law (something on which the three person panel apparently agreed), and the Board's "advice" to the then Minister in response to the Minister's request or advice regarding a request from the Lumber and Sawmill Workers Union, Local 2693 regarding its status in the construction industry, and whether it was appropriate to issue a new, or amend the existing Carpenters' designation order. Although the Board panel was unanimous in its view of the facts and applicable law, it was split on the advice it gave to the Minister. The two Board Members joined in suggesting that the Minister do nothing. The Vice-Chair suggested that the Minister do something, but after identifying several options, stopped short of ranking them, or suggesting that any one of them be adopted.
The root of Local 2693's request to the Minister which led the Minister to seek the advice of the Board, and which in turn led to the Board's "decision" in Lumber and Sawmill Workers Union, Local 2693, supra, lies in the Board's decision in E.K. TJ Industries inc., supra. In E.K. F Industries Inc., supra, the Board determined that Local 2693 was an "affiliated bargaining agent" as defined by the Act, and notwithstanding that it was not part of any employee bargaining agency and had a lengthy established practice of representing construction labourers in the ICI sector, Local 2693 was therefore prohibited from continuing to represent ICI construction labourers by operation of the province-wide bargaining provisions of the Labour Relations Act. With great respect, the correctness of the Board's analysis and conclusions in both E.K. F Industries Inc., supra, and Lumber and Sawmill Workers Union, Local 2693, supra, is questionable. However, that was not directly relevant to this application, and any revisitation of that issue is best left to a case where it is relevant.
What was relevant in this application were the Board's statements in paragraph 13 of the Lumber and Sawmill Workers Union, Local 2693, supra, decision. There, the Board posited that"
Provincial hargaining in the ICI sector is structured essentially on a multi-employer single trade basis. There are, however, a number of departures from the principle of single-trade bargaining. These exceptions reflect the fact that at the time provincial bargaining was introduced, certain construction trade unions represented ICI employees outside of their "normal" trade or classification. For example, the labourers Union represented units of plasterers as well as units of employees engaged in restoration and waterproofing work, often referred to as "steeplejacks", both of which groups had traditionally been represented by the Operative Plasterers and Cement Masons International Association of the United States and Canada. Because of this, the designation for the labourers employee bargaining agency covers not only labourers, but the other two classifications as well. Similarly, in recognition of the fact that the International Union of Bricklayers and Allied Craftsmen has traditionally represented plasterers in certain parts of the province, the bricklayers employee bargaining agency designation refers to plasterers as well as to bricklayers and stonemasons.
[emphasis added]
The Labourers Local 506 relied heavily on the Board's statement that the "labourers'
Union represented units of employees engaged in restoration and waterproofing work,
often referred to as 'steeplejacks'
With respect, that statement was both unnecessary to the Board's analysis in that case, and it overstates the case. "Employees engaged in restoration and waterproofing work" and "steeplejacks" are not equivalent terms. Strictly speaking, a steeplejack is someone who is engaged in building or repairing towers, smokestacks or steeples. As a practical matter, the term is applied somewhat more liberally in the construction industry in Ontario, but it remains the case that steeplejacks are a subset of the larger, more general, group of employees who perform masonry restoration and waterproofing work. That is, all steeplejacks are employees who perform masonry restoration and waterproofing work, but not all employees who perform masonry restoration and waterproofing work are steeplejacks.
The labourers' position was that this is merely another example of an overlap between designation orders (see paragraph 11, above), and that it is just as entitled to represent steeplejacks as the Cement Masons' Union is.
That position could not be sustained in a purposive approach to the designations and province-wide bargaining. The Labourers' position assumes an overlap between the Labourers' general designation and the Cement Masons' steeplejack designation. Overlaps between designations are not to be assumed. On the contrary, designation orders are to be strictly construed in order to reduce the number and extent of overlaps (see paragraphs 12-14, above). Further, as the Board observed more than seventeen years ago in Ninco Construction, supra, cement finishing, waterproofing and restoration work, so phrased, are not recognized as separate trades (although they may, with respect, be classifications). Rather, they are kinds of work performed by construction employees, which work is not necessarily monopolized by one trade. In this case, masonry restoration work in the general sense is work which may be done by construction labourers or steeplejacks, both of which are recognized trades. This may be a source of a jurisdictional dispute (something which the Board takes no notice of in an application for certification), but it does not suggest that the Labourers Union has any representational claim to ICI steeplejacks. The fact that steeplejacks are a subset of the larger category of employees engaged in masonry restoration and waterproofing work did not assist them in this application. The fact that it was considered appropriate to make a separate designation order specifically for ICI steeplejacks, in the context of an overall structure which is based on representational separation, suggests that the intention was to remove steeplejacks from the more general category of employees broadly classified as construction labourers, or at least employees who were sufficiently like construction labourers that it was appropriate to include them in the labourers' designation order. That is, the Cement Masons' specific claim to steeplejacks trumps the Labourers' claim which is based upon their inclusion in a general category of employees.
It was also useful to compare with the Labourers' general employer bargaining agency designation with the Cement Masons' steeplejacks employer bargaining agency designation. The steeplejacks employer bargaining agency is the Steeplejack and Masonry Restoration Contractors Association. That employers' organization is not part of the general construction labourers employer bargaining agency. If the intention had been to include steeplejacks in the construction Labourers' general designation, one would have expected that the organization which represents the employers who employ them to be included in the employer's designation. It is not, although the Ontario Masonry Contractors Association of Ontario, and the Waterproofing Contractors Association of Ontario, both are. This suggests an employment separation between steeplejacks and other masonry restoration or waterproofing employees. This is not to suggest that there must necessarily be (indeed there is not) an overlap between employer designations whenever there is an overlap between employer bargaining agency designations, particularly when it is well known that there are competing employer organizations which have evolved in lockstep with one of the two or more trade unions which have historically represented the employees (plasterers, for example) in question. However, the comparison in this case suggests a separation rather than a competition between rival employer organizations.
In the result, the Board was satisfied that the labourers' general designation relied upon as the basis for this application does not cover steeplejacks. That being the case, and this being a section 158(1) application which appears to relate only to ICI steeplejacks (and there being no suggestion that there were any non-ICI steeplejacks employed on the date of application, nor any request to convert this into a section 158(2) non-ICI application), the Board dismissed the application as aforesaid.