[1999] OLRB REP. MAY/JUNE 474
4753-97-R; 0224-98-R Stan Quinn, on his own behalf and on behalf of a group of employees of R.W. Tomlinson Limited, Applicant v. International Brotherhood of Teamsters, Local Union 91 and Teamsters Construction Council of Ontario, Responding Party v. R.W. Tomlinson Limited, Tarcon Ltd. and Beaver Road Builders Ltd., Intervenors; Stan Quinn, on his own behalf and on behalf of a group of employees of R.W. Tomlinson Limited, Applicant v. International Brotherhood of Teamsters, Local Union 91, Responding Party v. R.W. Tomlinson Limited, Tarcon Ltd. and Beaver Road Builders Ltd., International Union of Operating Engineers, Local 793 and Labourers' International Union of North America, Local 527, Intervenors
Construction Industry - Employer - Termination - Employees applying to terminate Teamsters' bargaining rights in ICI sector and road building sector of construction industry -Board rejecting submission that only employees of "TO" should be subject of termination application, despite order made by Board in 1996 declaring "TO", "TA" and "B" to be single employer - Board finding that Teamsters union properly identified as responding party, rather than uncertified council of trade unions - Termination applications granted
BEFORE: D. L. Gee, Vice-Chair.
APPEARANCES: C. Hofley, Stanley A. Quinn and William Richard Bow for the applicants; Harold F Caley and Basil Humphrys for the responding party; Michael S. Ruddy and Bill Tomlinson for R.W.Tomlinson Limited, Tarcon Ltd. and Beaver Road Builders Ltd.; Daniel Randazzo and Gerry Mullen for Labourers' International Union of North America, Local 527; Gary Caroline and Richard Kerr for International Union of Operating Engineers, Local 793.
DECISION OF THE BOARD; May 25, 1999
1Both of these matters are applications to the Board pursuant to section 63 of the Labour Relations Act, 1995 (the "Act") for declarations that the responding parties no longer represent the employees in the bargaining units for which they are the bargaining agents.
2The application in Board File No. 4753-97-R pertains to the industrial, commercial and institutional sector of the construction industry. The bargaining unit in the collective agreement between the Construction Site Teamsters Employer Bargaining Agency and the Teamsters Construction Council of Ontario is as follows:
all on-site Teamsters for whom the Union has bargaining rights in the ICI sector of the Construction Industry in the Province of Ontario, save and except those above the rank of foreman and office staff and above the rank of General Foreman in Board Area 2 (the County of Lambton).
3By decision dated December 11, 1996 in an earlier proceeding, the Board declared R.W. Tomlinson Limited ("Tomlinson"), Tarcon Ltd. ("Tarcon") and Beaver Road Builders Ltd. ("Beaver") to constitute one employer for the purposes of the Act and further declared the three companies to be successor employers to each other. Accordingly, in the Board's decision in this matter dated April 7, 1998, in which the representation vote was directed, the voting constituency was described as all employees of Tomlinson, Tarcon and Beaver employed in the bargaining unit described in the foregoing paragraph who were at work on the application date.
4The application in Board File No. 0224-98-R pertains to the roads sector of the construction industry. The employees affected by this application are covered by a collective agreement between The National Capital Road Builders Association and A Council of Labour Unions Representing the International Union of Operating Engineers, Local 793 (the "Operating Engineers"), Labourers' International Union of North America, Local 527 (the "Labourers") and Teamsters Local Union 91 affiliated with the International Brotherhood of Teamsters (the "Teamsters"). This agreement is referred to herein as the NCRB Agreement.
5The application in Board File No. 0224-98-R relates to the following bargaining unit:
all employees covered by the classifications set out in Schedule B attached of the National Capital Road Builders Collective Agreement while working within the present boundaries of Ontario Labour Relations Board Area No. 15 (the Regional Municipality of Ottawa-Carleton, and the United Counties of Prescott and Russell), save and except foremen, those above the rank of foreman, office and clerical staff, yard employees, engineering staff and security guards.
For the purposes herein, the expression "yard employees" means: "Employees assigned to permanent or temporary operations within the employer's property boundary, but does not include employees assigned to delivery of construction materials to roadway works, excavating work, utility works, and any other form of construction site.
By restricting the bargaining unit description to employees covered by the classifications set out in Schedule B of the NCRB Agreement the applicants seek to terminate only the Teamsters' bargaining rights and not the bargaining rights (to the extent such exist) of the Operating Engineers or the Labourers.
6By decision dated April 28, 1998, the Board directed that a representation vote be taken of employees of Tomlinson, Tarcon and Beaver employed in the bargaining unit described in the foregoing paragraph who were at work on the application date.
7Following the taking of the representation votes four issues remained in dispute. Two of the four issues were dealt with by the Board (differently constituted) by decision dated January 11, 1999. The remaining two issues were listed for hearing before me on May 10, 1999.
8The first issue is common to both files. It relates to the identity of the employer. The applicants and the employer assert that, having regard to the Board's December 11, 1996 declaration in Board File No. 2022-94-R that Tomlinson, Tarcon and Beaver constitute one employer for the purposes of the Act, that Tomiinson, Tarcon and Beaver are all properly named as the employer in both applications. The Teamsters, Operating Engineers and Labourers assert that Tomlinson alone should be identified as the employer.
9The second issue relates only to the application in relation to the roads sector. It relates to the identity of the proper responding party. The Teamsters asserts that the proper responding party is the Council of Labour Unions representing the Operating Engineers, Labourers and Teamsters and that the application must relate to all persons (i.e. all operating engineers, labourers and teamsters) in the bargaining unit described in the NCRB Agreement. The applicants, employer, Operating Engineers and Labourers assert that the proper responding party is the Teamsters alone.
Identity of the Responding Party
10The Teamsters asserts that it is the Council of Labour Unions that is the proper responding party in Board File No. 0224-98-R. The Teamsters relies on a number of provisions in the NCRB Agreement to support its submission that the NCRB Agreement is one collective agreement with one bargaining unit comprised of teamsters, operating engineers and labourers. Relying on the language of section 63 of the Act, the Teamsters submits that it matters not whether the Council is certified or a trade union, rather, all that is of importance is whether there is a collective agreement as that term is defined in section 1 of the Act, and if so, the bargaining unit description contained in the collective agreement. It is the bargaining unit as described in the collective agreement, and nothing less, according to the Teamsters, that is subject to a termination application. In the event the Board determines that it is necessary for the Council to be a certified council, the Teamsters submits that the requisite criteria have been met and the Board should recognize it as a certified council.
11The applicants, employer, Operating Engineers and Labourers disagree. They assert that the Council exists for the purpose of coordinating bargaining with the National Capital Road Builders Association (the "Association"). It is an uncertified council that has no by-laws or constitution and no elected officers. The Council is described by the Operating Engineers as an informal group of trade unions that have decided to coordinate their bargaining efforts. Each member of the Council applies for conciliation separately. Following negotiations, each union holds separate ratification votes. During the term of the agreement each union administers the agreement for its own members and in its own interest. It is not the case that the Labourers, Operating Engineers and Teamsters hold bargaining rights for the employees of all of the employers bound to the NCRB Agreement. In fact, all three trade unions hold bargaining rights for the employees of a very small minority of the employers bound to the NCRB Agreement. Only the Teamsters and Operating Engineers hold bargaining rights for the employees of Tomlinson. Further, the NCRBA has three separate accreditations, one for employers with whom each of the Labourers, Teamsters and Operating Engineers have bargaining rights. Referring to the language of section 63(2), it is argued that in order for the Council to be the proper responding party it would have to be either a trade union or a certified council of trade unions and it is neither.
12It is my determination that the correct responding party in Board File No. 0224-98-R is International Brotherhood of Teamsters, Local Union 91 and not the Council of Labour Unions. The starting point is to determine where bargaining rights are held. In the instant case, bargaining rights were acquired by the Teamsters and not by the Council. As an uncertified council of unions, the Council of Labour Unions cannot acquire bargaining rights. There has been no transfer of such bargaining rights to the Council. Evidence that the Teamsters maintains such bargaining rights and that they were not transferred to the Council upon Beaver becoming bound to the NCLB Agreement is found in the fact that it was the Teamsters who filed the related and successor employer applications as against Tomlinson, Tarcon and Beaver and not the Council. The NCRB Agreement does not create bargaining rights. Such is evidenced by the fact that the vast majority of employers bound to the NCRB Agreement are not bound to all three trades. The vast majority of the employers are bound to those portions of the NCRB Agreement applicable to one or two of the three members of the Council. In any event, absent certification by the Board pursuant to section 12 of the Act, the Council simply cannot hold bargaining rights.
13While the definition of collective agreement found in section 1 of the Act appears to support the proposition that an uncertified council of trade unions can be party to a single collective agreement, this factor is outweighed by the fact that the members of the Council have simply not conducted themselves in a fashion that would support a determination that they considered themselves bound by a single collective agreement. The Council has no elected officers, constitution or by-laws. Two of the three members of the Council intervened in these proceedings to inform the Board that they do not consider themselves as vesting their bargaining rights in the Council. Members of the Council apply for conciliation separately, hold separate ratification votes, have ratified the agreement prior to the other trades reaching agreement with the Association and process their own grievances. There has never been a certification application or a voluntary recognition agreement in the name of the Council. The facts simply do not support the conclusion that the NCRB Agreement is a single collective agreement with a single bargaining unit.
Identity of the Employer
14Beaver was the employer that was initially unionized, and had been for some 25 years, when, by virtue of the Board's single employer declaration, the Teamsters acquired bargaining rights with respect to the employees of Tarcon and Tomlinson. Since the Board's single employer declaration, the three entities have maintained separate seniority lists. Remittances are calculated and submitted separately by each entity's payroll administrator or office manager. The contracts that led to the work that was performed at the time of the applications were "Beaver" contracts. The only employees at work at the time of the applications were "Tomlinson" employees.
15It is asserted on behalf of the Teamsters that the sole effect of the Board's declaration that Beaver, Tomlinson and Tarcon constitute one employer for the purposes of the Act and are successor employers to each other was to bind Tarcon and Tomlinson to the Teamsters Provincial Agreement and the NCRB Agreement. In the Teamsters' submission, the Board's declaration did not create a single bargaining unit of three employers bound to a single collective agreement. Rather, it is submitted, there remains three bargaining units, one for each separate company, and each bargaining unit must be terminated separately upon the application of the employees in each unit.
16The Teamsters urge the Board to find the existence of three separate bargaining units on equitable grounds. It is submitted that, having operated the single employer as constituting three separate bargaining units, and having reaped the benefits of such arrangement, it does not lie in the mouth of the employer or the employees to now assert that there is a single bargaining unit.
17Further, it is asserted that the applicants do not represent the employees affected by the application. In this regard, the Teamsters assert that, to allow the Tomlinson employees to apply to terminate the Teamsters' bargaining rights in respect of all three entities would be to permit the entity that was eroding the union's bargaining rights to now terminate the union's bargaining rights. It is submitted that to allow such a result would defeat the very purpose of the declaration.
18It is my determination that the employer is properly identified as Tomlinson, Tarcon and Beaver. These three entities were declared by the Board to constitute one employer for the purposes of the Act in 1996. Section 1(4) clearly states that a single employer declaration is, unless otherwise explicitly stated, to be "for the purposes of this Act". The section thus makes clear that once two or more entities are declared by the Board to constitute one employer, they are, subject to any limitation expressly stated in the Board's declaration, one employer for all purposes under the Act. By way of example, it has long been recognized that a single employer declaration has the effect of making each of the entities affected by the Board's declaration liable for the collective agreement violations of the entities with which it is declared to be one employer (see Dobben Group Inc., [1996] OLRB Rep. Feb. 57). The section simply does not state that the sole effect of the declaration is to bind the previously non-union entities to the applicant's collective agreements. Had such been the intended effect of section 1(4) it would have stated as much. Thus, it is clear that the effect of a single employer declaration is not, as the Teamsters argues, to simply bind the previously non-union company to the applicant's collective agreement. Its effect is to render the entities covered by the single employer declaration to constitute one employer, without distinction, for the purposes of the Act.
19The fact that Tomlinson, Tarcon and Beaver have continued to operate as separate businesses following the Board's declaration is of no consequence. The effect of a single employer declaration does not depend on how the parties subsequently decide to structure the employer's collective bargaining obligations. Subject to an express limitation on the effect of a single employer declaration, the effect of a single employer declaration is the same in all instances without regard to subsequent arrangements. Once a single employer declaration has been made, the entities named in the Board's declaration are, for all purposes under the Act, to be treated as if they are a single employer.
20With respect to the Teamsters' argument that there are equitable grounds to conclude that Tomlinson alone is the employer, I have no jurisdiction or discretion to vary the consequences of the provisions of the Act on equitable grounds.
21Accordingly, having regard to the foregoing, it is my determination that the proper responding party in Board File No. 0224-98-R is The International Brotherhood of Teamsters, Local Union 91 as identified by the applicants and that the identity of the employer in both Board files is, as indicated in the Board's decisions directing the votes, R.W. Tomlinson Limited, Tarcon Ltd. and Beaver Road Builders Ltd.
22Having regard to the foregoing, there are no further outstanding issues requiring determination.
23On the taking of the representation votes, more than fifty per cent of the ballots cast in each vote by employees in the bargaining units were cast in opposition to the responding parties.
24The Board declares that the responding parties no longer represent the employees for whom they have heretofore been the bargaining agents in the following bargaining units:
ICI Bargaining Unit:
all on-site Teamsters for whom the Union has bargaining rights in the ICI sector of the Construction Industry in the Province of Ontario, save and except those above the rank of foreman and office staff and above the rank of General Foreman in Board Area 2 (the County of Lambton).
Roads 5ector Bargaining Unit:
all employees covered by the classifications set out in Schedule B attached of the National Capital Road Builders Collective Agreement while working within the present boundaries of Ontario Labour Relations Board Area No. 15 (the Regional Municipality of Ottawa-Carleton, and the United Counties of Prescott and Russell), save and except foremen, those above the rank of foreman, office and clerical staff, yard employees, engineering staff and security guards.
For the purposes herein, the expression "yard employees" means: "Employees assigned to permanent or temporary operations within the employer's property boundary, but does not include employees assigned to delivery of construction materials to roadway works, excavating work, utility works, and any other form of construction site.
25The Registrar will destroy the ballots cast in the representation votes taken in these matters 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.
26The employer is directed to post copies of this decision immediately in all locations where the "Notice to Employees of Vote and Hearing" was previously posted. These copies must remain posted for a period of 30 days.