Sheet Metal Workers’ International Association, Local Union No. 47 v. Les Toitures Raymond 1997 Inc.
File No.: 0920-00-R Date: October 16, 2000 Ontario Labour Relations Board
Applicant: Sheet Metal Workers’ International Association, Local Union No. 47 Responding Party: Les Toitures Raymond 1997 Inc., and/or Les Toitures Raymond et Ass. Inc. and/or Raymond and Associates Roofing Inc.
Before: Mary Ellen Cummings, Alternate Chair.
DECISION OF THE BOARD
1This is an application for certification in the construction industry. By decision dated June 27, 2000, the Board found, pursuant to section 158(1) of the Labour Relations Act, 1995 (the “Act”) the following bargaining unit to be appropriate for collective bargaining:
all roofers and roofers’ apprentices in the employ of the responding party in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and all roofers and roofers’ apprentices in the employ of the responding party in all other sectors of the construction industry in the Regional Municipality of Ottawa-Carleton, and the United Counties of Prescott and Russell, save and except non-working foremen and persons above the rank of non‑working foreman.
2In the same decision the Board ordered a representation vote of all persons in that bargaining unit who were at work on June 29, 2000, the application date. The vote was held and the ballot box was sealed because of the parties' disagreement around the eligibility to vote of certain persons. The parties are agreed that 8 employees were at work in the bargaining unit on June 29, 2000, and so, in accordance with the Board's decision directing the vote, are eligible to vote.
3The responding party (the employer) submits that two other groups should be entitled to vote; 6 persons who were not at work on the application date and 13 persons who were at work in the Province of Quebec on the application date.
4Since there are no facts in dispute, the Board concludes that this matter can be determined on the basis of the parties' fulsome submissions.
5The employer submitted that the Board had never before determined the eligibility to vote of persons working in the trade, who on the application date are in the Province of Quebec. Counsel submitted that there is no legislative impediment to having the Board consider the wishes of those employees and that there wishes ought to be considered because if the applicant is certified, it will also represent those employees.
6With respect to the employees who were not at work on the application date, the employer acknowledged that the Board's longstanding practice has been to limit voter eligibility to those working in the bargaining unit on the application date. But it submitted that the Board is not required to follow such rules in all circumstances. In this case, counsel submitted, an application of the practice would be unfair since the employees of this employer tend to have a long term relationship, and the Board would be effectively denying the employees a voice in determining whether the applicant should represent them.
7Counsel concluded that to exclude from vote eligibility those not at work and those working in Quebec would result in only a minority of employees determining this important representation issue.
8Counsel for the applicant responded in detail to the employer's submissions. Essentially, the applicant wrote that the Board has traversed these issues many times, and that there is no value to delaying these proceedings with a further review. In particular, counsel noted that the Board recently exhaustively reviewed and confirmed its voter eligibility rules in the construction industry in Megatech Electrical Ltd. [1999] OLRB Rep. Mar./Apr. 257.
Decision
9The Board has carefully reviewed the employer's submissions. I conclude that the arguments raised, or very similar arguments, have already been considered and rejected by the Board. For more than 50 years, the Board has determined eligibility to vote in the construction industry on the basis of whether the person was at work in the bargaining unit on the application date. In the typical case, the Board has to determine whether the person was actively at work, and whether or not he or she was doing work that falls within the craft description. The Board has also heard disputes about whether the person is doing work in the particular sector of the construction industry which has been applied for. I disagree with the suggestion that whether or not a person working in Quebec is eligible to vote has not been considered. Determining whether or not a person was working within the geographical scope for which the application is made is merely another aspect of deciding whether or not a person was at work in the bargaining unit on the application date
10Both the history and reasons for a consistent approach to voter eligibility in the construction industry are well articulated in Megatech:
On every application for certification, the Board is required to determine the unit of employees appropriate for collective bargaining, then to calculate the level of trade union support in that unit. The bargaining unit is defined with reference to the statute and broad labour relations criteria. Union support is assessed by means of a representation vote.
However, in the construction industry, bargaining‑unit determination is a more complex exercise than it is in a manufacturing setting, because the construction industry has a number of features which make it unique, including: the predominance of "craft unionism" and thus "craft bargaining units"; a special regulatory regime that shapes the way in which construction industry bargaining units must be framed; and an unusually fluid work force, so that the number of individuals at work on a job site can vary significantly from day to day ‑ as can their work assignments on any given day.
Craft bargaining units are specifically addressed in section 9(3) of the Act which provides as follows:
Any group of employees who exercise technical skills or who are members of a craft by reason of which they are distinguishable from the other employees and commonly bargain separately and apart from other employees through a trade union that according to established trade union practice pertains to such skills or crafts shall be deemed by the Board to be a unit appropriate for collective bargaining if the application is made by a trade union pertaining to the skills or craft, and the Board may include in the unit persons who according to established trade union practice are commonly associated in their work and bargaining with the group, but the Board shall not be required to apply this subsection where the group of employees is included in a bargaining unit represented by another bargaining agent at the time the application is made.
Section 9(3) must be read together with section 158, which, together, determine how "ICI" and "non‑ICI" bargaining units must be structured (i.e. how individual bargaining‑unit determinations fit within the prescribed province‑wide bargaining scheme).
The description of a craft bargaining unit is determined by reference to the historical work jurisdiction of the various crafts: carpenters, sheet metal workers, plumbers, electricians, and so on. A "carpenters" or "electricians" bargaining unit is composed of individuals who are doing "carpenters'" or "electricians'" work. And if the requirements of section 9(3) are met, a craft union may be entitled to the craft bargaining unit pertaining to its trade.
The composition of a construction industry bargaining unit is determined by ascertaining who was an "employee", "in the bargaining unit" (or voting constituency), on the application date. It is a two‑fold test that requires the Board to look at:
(a) who was actively at work on the application date, and
(b) what work those individuals were doing on that date.
To be "in" a craft bargaining unit, an individual has to be doing the work of the trade on the application date.
In the construction industry, the Board is not required to look at who was at work on any other date (see section 128(2) of the Act which contemplates that the construction labour force may fluctuate). Nor is it enough to be an "employee" in some common‑law sense, or to be "on the employer's payroll", or to be "working" in some capacity for the employer. To be "in" a construction industry craft bargaining unit, the person in question must be: actively at work, in the trade, on the date the application for certification is filed.
In Smith Construction Company, [1984] OLRB Rep. March 521, the Board explained the first branch of the test, in a long passage to which I might usefully refer:
The Act requires the Board to ascertain the number of employees in the bargaining unit at the time the application was made. There are no legislated criteria to guide the Board in this task, but, of course, there is really no difficulty in respect of those individuals both employed AND WORKING on the application date. The problem arises in respect of individuals who may, in some sense, be considered "employees" but who may not have been at work on the application date and may not return to work for some time thereafter, if at all. Employees on sick leave, maternity leave, long‑term disability, workers' compensation, or layoff may fall into this latter category, as do the employees of a firm with a work force which fluctuates from day to day.
The construction industry poses special problems. Employment is necessarily transitory. Employees are quite literally "here today and gone tomorrow". A construction project is completed in phases, so that on any given day the mix of tradesmen on a site may be different. Moreover, there are always the exigencies of the market, collective bargaining difficulties, the weather, and the proverbial "snafu". Collective bargaining problems, jurisdictional disputes, controlled subcontracting arrangements, the availability of financing, and the disbursement of mortgage monies will effect the level of employment in any given trade at any particular time. So will the weather. A period of intense cold or rain will interfere with construction work and reduce the number of employees on the site until weather conditions improve. Likewise, bottlenecks, problems, or the possibility of missing a time limit or deadline may require the employment of more tradesmen to resolve the difficulties or get the project back "on the rails" even though such employment may only be on a short‑term basis. For all of these reasons an employer's complement of employees may vary markedly from day to day so that, in the construction industry, it is very difficult to pin down with any precision those individuals who should be treated unequivocally as "employees" [in the bargaining unit] for the purposes of the Labour Relations Act. That is why, in the construction industry, the Board need not have regard for any increase in the employer's work force after the application for certification. And, of course, this inevitable fluctuation in the employee complement underlines the importance of the expeditious resolution of applications for certification. If there is any significant delay, there will be a real possibility that any certificate ultimately issued will affect employees who were not even there when the application for certification was made. The union's support will have evaporated and bargaining rights will be largely academic. This possibility also exists in manufacturing enterprises but is minimized by the relative stability of employment over the time frame when a certification application is likely to be before the Board. Such is not the case in the construction industry.
To cope with these special problems in the construction industry, the Board has developed a particular rule of thumb as to the way in which it should ascertain the number of employees in the bargaining unit at the time the application was made. The Board determines the employee complement to be that which exists on the application date ‑ fully realizing that the number may well be different the day before, or the day after, and that, for example, if the application date is a rainy day, the union may find that its members are not at work so that its application may be dismissed. This "rule of thumb" has been accepted and applied by unions and employers in the construction industry for thirty years ‑ and for a very practical reason: anything else would lead to costly and time ‑ consuming litigation on every certification application, causing delay which would severely prejudice the establishment of bargaining rights purportedly guaranteed by the statute. If time is of the essence generally in labour relations, that maxim is particularly true in the construction industry. That is why the Act expressly empowers the Board to issue certificates without a hearing where it considers it advisable to do so, and, as we have already noted, the Board need not have regard for a build‑up of the work force after the application is made. Technically, a union may conclude a collective agreement even though there are no employees at the time it is entered into (see section 121), although as a practical matter, if there are no employees, there may be no bargaining leverage to induce an employer to do so.
(See also: Ken Anderson Electric Inc., 1 OLRB Rep. Sept./Oct. 846.)
The practice described in Smith Construction has been in place now for almost 50 years and admittedly involves a rather stark, "bright line test". But without it, (or some equally rigid rule), the Board simply would not be able to process the hundreds of construction industry certification applications that it receives every year. For as the Board noted in Smith Construction: time really is "of the essence" for construction industry certification applications (which is why the Board has special powers to ensure expedition ‑ see section 110(18)‑(20) of the Act).
In the construction industry, there are compelling labour relations reasons for a simple (if rough and ready) approach that permits the Board to deal with certification matters expeditiously ‑ otherwise the work (and workers) to which bargaining rights relate will be gone, and the entire exercise will become academic. Moreover, in the construction industry, there is a real incentive on the employer's part to slow down the process in order get through that job, or that construction season, without a union presence. As Estey J.A. put it in Journal Publishing Company (March 31, 1977, unreported): "labour relations delayed is labour relations defeated and denied". But that is especially so in the construction industry.
11The Board has consistently endorsed a "bright line" test, having regard to the particular labour relations the construction industry. The employer has offered no reasons why we should depart from that test.
12Put simply, the two groups that the employer seeks to have eligible to vote were not working in the bargaining unit on the application date. It matters not to the Board why they were not in the bargaining unit on that date.
13Counsel for the employer suggested that the Board was not precluded from considering a bargaining unit that encompassed employees working in Quebec. Leaving aside whether such a bargaining unit would ever be appropriate, it must be recalled that the bargaining unit in this case is one in the industrial, commercial and institutional sector of the construction industry. Section 158(1) requires that the bargaining unit "…shall include all employees who would be bound by a provincial agreement". "Provincial agreement" is defined as "an agreement in writing covering the whole of the Province of Ontario…"
14The entire scheme of provincial bargaining in the ICI sector, with its web of Ministerial designation, certification and accreditation of employer and employee bargaining agencies, is based on the foundation of a single trade or craft multi-employer bargaining unit whose geographic parameters are always the same, the Province of Ontario. In my view, the Board cannot certify a different bargaining unit in the ICI sector.
15For all the reasons set out, the Board concludes that only those employees at work in the bargaining unit on the application date, that is the 8 employees both parties agree on, are eligible to vote. This matter is referred to the Registrar to arrange for the counting of the ballots of the eligible voters.
“Mary Ellen Cummings”
for the Board