1617-00-R Labourers’ International Union of North America, Local 506, Applicant v. Yukon Construction Inc., Responding Party v. United Brotherhood of Carpenters and Joiners of America, Intervenor.
BEFORE: Inge M. Stamp, Vice‑Chair, and Board Members G. Pickell and A. Haward.
DECISION OF THE BOARD; November 24, 2000
This is an application for certification in the construction industry. A vote was held on September 7,2000. The ballot box was sealed pending the determination of all outstanding issues. On November 1, 2000 the Board (differently constituted) directed that the ballots be counted. Out of seven ballots cast six were marked in favour of the applicant. One ballot remains segregated and was not counted. In view of the count it is not necessary to deal with the remaining segregated ballot. The Board directs that ballot be destroyed.
By letter dated November 13, 2000 the applicant submits the only remaining issue is with respect to the intervenor’s assertion that it holds bargaining rights for all construction labourers in the non-ICI sector in Board Area No. 8.
The applicant submits there are no remaining issues between the parties with respect to the applicant’s entitlement to certification in the ICI sector.
The intervenor objects to the applicant’s request. The intervenor states in its correspondence dated November 14, 2000 that by operation of sections 158 and 160 of the Labour Relations Act, 1995 (the “Act”) the Board is precluded from granting the applicant ICI bargaining rights while the non-ICI bargaining rights remain in dispute.
The intervenor submits the applicant did not request to amend its bargaining unit prior to the vote being held. The intervenor asserts the Board must deal with the intervenor’s collective agreement before issuing an ICI certificate to the applicant. It is the intervenor’s position that if its collective agreement is upheld this application should be dismissed.
The intervenor submits it would be contrary to the clear language of the Act for a certificate to issue at this stage of the proceedings.
No reply has been received to date from the responding party in response to the Notice of Report of Returning Officer on Counting of Ballots (Form B-88) dated November 7, 2000.
Sections 158 and 160 of the Act provide as follows:
(1) 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.
(2) Despite subsection 128(1), a trade union represented by an employee bargaining agency may bring an application for certification in relation to a unit of employees employed in all sectors of a geographic area other than the industrial, commercial and institutional sector and the unit shall be deemed to be a unit of employees appropriate for collective bargaining.
(3) A voluntary recognition agreement in so far as it relates to the industrial, commercial and institutional sector of the construction industry shall be between an employer on the one hand and either,
(a) an employee bargaining agency;
(b) one or more affiliated bargaining agents represented by an employee bargaining agency; or
(c) a council of trade unions on behalf of one or more affiliated bargaining agents affiliated with the council of trade unions,
on the other hand, and shall be deemed to be on behalf of all the affiliated bargaining agents of the employee bargaining agency and the defined bargaining unit in the agreement shall include those employees who would be bound by a provincial agreement.
(4) Despite subsections (1) and (3), a trade union that is not represented by a designated or certified employee bargaining agency may bring an application for certification or enter into a voluntary recognition agreement on its own behalf.
- (1) The Board shall certify the trade unions on whose behalf an application for certification is brought as the bargaining agent of the employees in the bargaining unit if more than 50 per cent of the ballots cast in the representation vote by the employees in the bargaining unit are cast in favour of the trade unions. The Board shall issue one certificate that is confined to the industrial, commercial and institutional sector and another certificate in relation to all other sectors in the appropriate geographic area or areas.
(2) Subsection 10(2) applies with necessary modifications with respect to a certification under this section.
(3) If the Board dismisses an application for certification under this section, the Board shall not consider another application for certification by the employee bargaining agency or the affiliated bargaining agent or agents to certify the trade unions as bargaining agent for the employees in the bargaining unit until one year has elapsed after the dismissal.
Paragraph 6 of the application (Form A-71) shows that on the date of application employees were at work in the ICI sector. After the count was announced the only remaining issue between the parties was with respect to the bargaining rights in the non-ICI sector. The vote was directed in the broader bargaining unit – ICI and Board Area No. 8. If the intervenor holds bargaining rights in the non-ICI sector the applicant would still be entitled to represent the employees in ICI. By statute the intervenor cannot represent these employees in the ICI sector. While it is not a frequent occurrence there are situations in which the Board issues a certificate in the ICI sector only where the non ICI sector bargaining rights are held by another union. Section 158(1) recognizes that bargaining rights for an “appropriate geographic area” may be held by a trade union other than the designated trade union for the ICI sector.
The intervenor states that if its collective agreement in the non-ICI sector is upheld this application should be dismissed. There is no basis for dismissing the application as it relates to the ICI sector. The voting constituency included ICI and non-ICI. The intervenor cannot represent the employees in the ICI sector. If the intervenor is found to have bargaining rights in the non-ICI sector then the application for certification as it relates to that sector is dismissed.
Having regard to the above the Board finds it is appropriate in these circumstances to certify the applicant as bargaining agent of all construction labourers in the ICI sector. The bargaining rights with respect to the non-ICI sector will have to await the Board’s determination.
In paragraph 11 of its decision of September 5, 2000, the Board directed a vote be taken of the individuals in the following voting constituency:
all construction labourers in the employ of Yukon Construction Inc. in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and all construction labourers in the employ of Yukon Construction Inc. in all other sectors of the construction industry in the City of 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, and the Towns of Ajax and Pickering in the Regional Municipality of Durham, save and except non-working foremen and persons above the rank of non‑working foreman.
The Board did not make a finding of the appropriate bargaining unit in its September 5, 2000 decision.
On the taking of the representation vote directed by the Board, more than fifty per cent of the ballots cast by employees in the bargaining unit were cast in favour of the applicant.
Section 160(1) of the Act provides for the issuance of more than one certificate if the applicant has the requisite support. Section 158(1) provides that an application in the ICI 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.
There is nothing in the Act or the documentary evidence and materials filed with the Board, that would prohibit the Board from issuing an ICI certificate only to the applicant at this point in the proceeding. Either the applicant is ultimately entitled to a certificate for all other sectors in Board Area No. 8 or it is not. Whether or not bargaining rights in the “appropriate geographic area” are held by a union other than the designated trade, an applicant is entitled to its ICI certificate for its designated trade. The only difference in this case is that the bargaining rights in the “appropriate geographic area” i.e. Board Area No. 8, are in dispute. The applicant ultimately may or may not be entitled to a certificate in Board Area No. 8.
In the circumstances, a certificate will issue to the applicant affiliated bargaining agent on its own behalf and on behalf of all other affiliated bargaining agents of The Labourers’ International Union of North America and The Labourers’ International Union of North America, Ontario Provincial District Council in respect of all construction labourers in the employ of Yukon Construction Inc. 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.
The Registrar is directed to set this matter down for hearing to hear the evidence and the representations of the parties with respect to the remaining issue in dispute relating to the bargaining rights in the non-ICI sector in Board Area No. 8.
The responding party is directed to post copies of this decision in conspicuous locations where they will come to the attention of the employees. These copies must remain posted for a period of 30 days.
This matter is referred to the Registrar.
“Inge M. Stamp”
for the Board