United Brotherhood of Carpenters and Joiners of America, Local 2486 v. Venture North Construction Ltd., 2000 CanLII 11759

Ontario Labour Relations Board

3337-99-R United Brotherhood of Carpenters and Joiners of America, Local 2486, Applicant v. Venture North Construction Ltd., Responding Party.

BEFORE: Anthony Brown, Vice-Chair, and Board Members G. Pickell and

G. McMenemy.

DECISION OF THE BOARD; February 25, 2000

1. This is a request for reconsideration of the Board’s decision dated February 17, 2000 that was filed with the Board on February 18, 2000. As it was made within 20 days of the date of the Board’s decision, it is, pursuant to Rule 96 of the Board’s Rules of Procedure, a timely request for reconsideration.

2. Before assessing the submissions made by the responding party in support of its request, regard must be had to the principles the Board has invariably applied in deciding whether to grant a request for reconsideration. A concise statement of the relevant principles is set out in Cineplex Odeon Corporation, [1996] OLRB Rep. Nov./Dec. 922 where the Board wrote at page 924:

3. As to the general principles applicable on applications for reconsideration, there was little dispute. They are distilled in the following two quotations. First from Canadian Union of General Employees, [1975] OLRB Rep. April 320:

4. Generally, the Board will not reconsider a decision unless a party proposes to adduce new evidence which could not previously have been obtained by reasonable diligence and the new evidence is such that, if adduced, it would be practically conclusive or a party wishes to make representatives or objections not already considered by the Board that he had no opportunity to raise previously. (International Nickel Co. of Canada Ltd., [1963] OLRB Rep. 234, 64 CLLC ¶15,493 (Ont. H.C.); Detroit River Construction Case (1962) CLLC ¶16,260). Both legs of this principle depend upon the applicant to draw the Board’s attention to the object of its concern. The applicant in the case at hand and his lawyer were not diligent in that they were given notice of the hearing date in the matter by the Board. Accordingly they would not appear to come within the ambit of the principle.

Secondly, from John Entwistle Construction Limited, [1979] OLRB Rep. Nov. 1096, after quoting a portion of the above passage from Canadian Union of General Employees:

These are general standards which the Board has developed as guidelines and which are useful not just to guide the Board in making its decisions, but also to allow parties who may be affected by the Board’s decisions some degree of certainty of what they may expect from the Board. While it is important for the purpose of certainty that these standards generally be adhered to, it is equally important that they not be followed inflexibly. Although neither of the two conditions precedent stated in the Canadian Union of General Employees case, supra, are satisfied here, the request does raise significant and important issues of Board policy and for this reason the Board will review its decision to determine if it should vary or revoke the decision.

See also K-Mart Canada Limited (Peterborough), [1981] OLRB Rep. Feb. 185, which mentions the motives for the request and any resulting prejudice as factors to be considered.

3. On February 14, 2000, the applicant filed an application for certification in which it proposed the following bargaining unit:

all carpenters and carpenters apprentices in the employ of Venture North Construction Ltd. in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and all carpenters and carpenters apprentices in the employ of Venture North Construction Ltd. in all other sectors of the construction industry in the Township of Merritt, save and except non-working foremen and persons working above the rank of non-working foreman.

4. The responding party filed a timely response on February 16, 2000 in which it indicated, inter alia, that it disagreed with the description of the bargaining unit included in the application for certification. The responding party proposed a bargaining unit that included Board Area No. 17 rather than the Township of Merritt with respect to all other sectors of the construction industry other than the industrial, commercial and institutional sector. Pursuant to section 158(1) of the Act, the Board found the applicant’s proposed bargaining unit to be appropriate for collective bargaining and directed a representation vote be taken of the individuals employed in the bargaining unit as of February 14, 2000.

5. By way of correspondence dated February 18, 2000, which was included in the request for reconsideration, counsel for the responding party again takes exception with the voting constituency established for the purposes of the representation vote. Counsel submits that limiting the geographic area to the Township of Merritt for the other sectors of the construction industry other than the industrial, commercial and institutional sector does not reflect the operations of the responding party and will prejudice the responding party. Counsel further submits that allowing the applicant to choose the geographic area in which it seeks bargaining rights is inappropriate and contrary to the “principles of workplace democracy”.

6. The Board’s interpretation of what is now section 158 (1) of the Act clearly permits the applicant to choose an appropriate bargaining unit and if the employer has employees working in more than one geographic area, the applicant may choose an area or areas by which the “all other sectors” part of its unit is to be described and does not have to take all of the areas. See Dagmar Construction Limited, [1987] OLRB Rep. April 480; Louis W. Bray Construction Limited, Board File No. 1729-86-R, unreported decision dated October 24, 1986; Beling Cement Construction Limited, [1989] OLRB Rep. July 709; and Beaverbrook Estates Inc., [1989] OLRB Rep. April 322; and Freure Construction Limited, [1991] OLRB Rep. March 309.

7. In Gorf Contracting Limited, [1991] OLRB Rep. April 483, the Board dealt with this issue and provided the following rationale for permitting an applicant to select the geographic area in which it seeks bargaining rights for all other sectors. Commencing at paragraph 4 the Boards writes as follows:

8. The applicant sought to be certified as the exclusive bargaining agent for a bargaining unit it described as follows:

all plumbers, plumbers’ apprentices, steamfitters and steamfitters’ apprentices in the employ of the Respondent engaged in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario, save and except non-working foremen and persons above the rank of non-working foreman

and

all plumbers, plumbers’ apprentices, steamfitters and steamfitters’ apprentices in the employ of the Respondent in Board Geographic Area No. 20, excluding the industrial, commercial and institutional sector of the construction industry, save and except non-working foreman and persons above the rank of non-working foreman.

This is very much a “standard” bargaining unit description for the applicant.

5. The respondent agreed with the applicant’s bargaining unit description as far as it went but submitted that the “appropriate geographic area” for non-industrial, commercial and institutional sectors of the construction industry should include Board area 19 as well as well as [sic] Board area 20. The respondent submitted that both Board area should be included because of the community of interest between the affected employees in them and to prevent fragmentation of the respondent’s workforce.

6. There is no doubt that a bargaining unit including, plumbers, steamfitters and their apprentices employed by the respondent in the industrial, commercial and institutional (“ICI”) sector of the construction industry in the Province of Ontario and such persons employed by the respondent in non-ICI construction in Board Areas 19 and 20 would constitute a bargaining unit of employees appropriate for collective bargaining. In other words, Board Area 19 plus Board Area 20 would be an “appropriate geographic area” within the meaning of section 144(1). That does not, however, mean that Board Area 20 does not by itself constitute such an appropriate geographic area. As the Board observed in Dagmar Construction Limited, [1987] OLRB Rep. Apr. 480, the Board, has, since Colonist Homes Ltd., [1980] OLRB Rep. Dec. 1729, interpreted section1 44 as permitting but not requiring a trade union to apply to be certified for employees in more than one geographic Board area. At paragraph 12 of Dagmar Construction Limited, supra, the Board held that:

7. Section 144(1) of the Act requires only that an application for certification relating to the ICI sector of the construction industry be for a bargaining unit consisting of all employees who could be bound by a provincial agreement together with all other unrepresented employees in at least one appropriate geographic area. In our view, the language of section 144(1) contemplates that an employer in the construction industry may have unrepresented construction employees in other than the ICI sector of the construction industry in more than one geographic area. The words “in at least one appropriate geographic area” permit a trade union to make its application with respect to more than one geographic area. they do not, in our view, require the trade union to do so. Furthermore, in determining the unit of employees that is appropriate for collective bargaining, and ascertaining the number of employees in that bargaining unit at the time the application was made and the level of support in the unit for the trade union’s application for certification, the Board has developed practices and procedures that recognize that the make up of any given employer’s employee complement rarely remains constant. Even in non-construction businesses employees may be continually coming and going as a result of hiring, firing, lay-offs, leaves of absence, and so on. The nature of the construction industry is such that employment with a particular employer tends to be even more ephemeral. In the face of this labour relations reality, the Board must, under section 7(1) of the Act, ascertain the number of employees in the bargaining unit and the number of such employees who are members of the applicant trade union at particular times. In addition, section 119(2) of the Act specifies that, in applications for certification under the construction industry provisions of the Act, the Board need not have regard to any increase in the number of employees in a bargaining unit after the application was made. The rule adopted by the Board in the construction industry is that persons who are not both employed by and at work for the respondent employer on the date the application is made are not included as employees in the bargaining unit for purposes of “the count” even though their absence on the date of application was due to uncontrollable circumstances (see for example, Smiths Construction Company Arnprior Limited, [1984] OLRB rep. Mar 521; E & E Seegmiller Limited, [1987] OLRB Rep. Jan. 41). The requirements of the Act and the ephemeral nature of employment in the construction industry are such that it is neither possible nor practical for the Board to speculate about what persons may at some unspecified time in the future be affected by a successful application for certification. Accordingly, the applicant in this case is not required to make its application in relation to Board Area 8.

[emphasis added]

Further, as the Board pointed out in Superior Plumbing & Heating Company Ltd., [1986] OLRB Rep. Nov. 1589, the “community of interest” concept has limited application in the construction industry, which is fragmented by its very nature and subject to the overriding principles and structure of the construction industry provisions of the Act. The applicability of the community of interest concept and the Board’s general discretion to determine whether a bargaining unit is appropriate in the construction industry are limited by sections 6(3), 119, the designations issued under section 139, and section 144 of the Act (see, for example, Wraymar Construction and Rental Sales Ltd., [1989] OLRB Rep. June 682; Ellis-Don Limited, [1988] OLRB Rep. Dec. 1254 and [1989] OLRB Mar. 234; Beaver Brook Estates Inc., [1989] OLRB Rep. Apr. 322; Beling Cement Construction Limited, [1989] OLRB July 709).

7. The issue before the Board in applications like this one is not which bargaining unit is the most appropriate, but rather whether the bargaining unit applied for is an appropriate one.

8. In this application, the respondent was unable to point either to any changes in the construction industry or to any special circumstances in its case which merited a different approach by the Board either generally or specifically in this case. Accordingly, the Board found, pursuant to section 144(1) of the Act, that all plumbers, plumbers’ apprentices, steamfitters and steamfitters’ apprentices in the employ of the respondent in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario, and all plumbers, plumbers’ apprentices, steamfitters and steamfitters’ apprentices in the employ of the respondent in all sectors of the construction industry other than the industrial, commercial and institutional sector in the Town of Kirkland Lake and the geographic Townships adjacent thereto in the District of Temiskaming (i.e. Board Area 20), save and except non-working foremen and persons above the rank of non-working foreman, constitute a unit of employees of the respondent appropriate for collective bargaining.

9. For the reasons set out above, the Board is satisfied that there is no basis to grant the request for reconsideration. The request for reconsideration is dismissed.

10. Having dismissed the request for reconsideration, the Board shall now address a further issue arising from the bargaining unit description, which was not raised by either party. The application for certification is in respect of a “white area” which does not fall within a defined Board Area. As noted in Procon Developments Ltd., [1990] OLRB Rep. April 459, in cases where an application for certification relates to a “white area” the Board’s usual and normal practice is to describe the bargaining unit in reference to the township in which the project is located and the townships adjacent thereto. Accordingly, on its own motion, the Board hereby reconsiders its decision dated February 17, 2000 and amends the description of the bargaining unit and voting constituency to read as follows:

all carpenters and carpenters’ apprentices in the employ of Venture North Construction Ltd. in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and all carpenters and carpenters’ apprentices in the employ of Venture North Construction Ltd. in the Township of Merritt, and the surrounding Townships of Baldwin, Shakespeare, Hallam, McKinnon, Mongowin, Curtin and those parts of the Townships of Foster and Nairn not falling within Board Area No. 17, save and except non-working foremen and persons above the rank of non-working foreman.

10. The amendment to the bargaining unit description and voting constituency does not affect the representation vote conducted on February 20, 2000. Accordingly, this matter is referred to the Registrar to be processed in the normal course.

“Anthony Brown”

for the Board