1823-98-R Metropolitan Toronto Road Builders Association, Applicant v. International Union of Operating Engineers, Local 793, Responding Party.
BEFORE: Inge M. Stamp, Vice-Chair, and Board Members J. G. Knight and G. McMenemy.
DECISION OF THE BOARD; May 15, 2000
1This is an application for accreditation in which the applicant, Metropolitan Toronto Road Builders Association, seeks to be accredited as the bargaining agent for certain employers which have a bargaining relationship with the respondent, International Union of Operating Engineers, Local 793.
2The applicant has filed its constitution which sets out the objects of the Association in Article IV – Objects. This includes the negotiating and administering of collective agreements. There is no challenge to the applicant’s status to bring this application. Having regard to the materials filed with this application the Board finds the applicant to be an employers’ organization within the meaning of sections 1(1) and 126 of the Labour Relations Act, 1995 (the “Act”) and further, that it is a properly constituted organization for the purposes of section 134 of the Act.
3The responding party is a trade union with the meaning of section 1(1) and 126 of the Act.
4The applicant has represented employers in the unit sought in this application in negotiations with the responding party in a series of collective agreements in the roadbuilding sector for a period in excess of fifteen (15) years. The most recent agreement entered into between the applicant and the responding party is effective May l, 1998 to April 30, 2001. Having regard to the material before it, the Board finds that it has jurisdiction, under section 134 of the Act, to entertain this application.
5The applicant has filed evidence of representation on behalf of thirty-three (33) employers. This evidence is in the form of 33 individual documents. They are in a standard form and each document authorizes the applicant to represent the employer signing it as its bargaining agent in regard to the employees for whom the responding party (Local 793) has bargaining rights in Ontario Labour Relations Board Area No. 8. The document further states that each employer who signed this document vests all necessary authority in the applicant to enable it to discharge its responsibilities of an accredited bargaining agent under the Act.
6The applicant has also filed a duly completed Form A-90, Declaration Concerning Representation Documents, which attest to the regularity and sufficiency of its documentary evidence of representation.
7The Board is satisfied that each of the individual employers on behalf of whom the applicant has submitted representation evidence has vested appropriate authority in the applicant to enable it to discharge the responsibilities of an accredited bargaining agent.
8Sections 134, 136 (1) (2) (3) of the Act provide as follows:
Where a trade union or council of trade unions has been certified or has been granted voluntary recognition under section 18 as the bargaining agent for a unit of employees of more than one employer in the construction industry or where a trade union or council of trade unions has entered into collective agreements with more than one employer covering a unit of employees in the construction industry, an employers' organization may apply to the Board to be accredited as the bargaining agent for all employers in a particular sector of the industry and in the geographic area described in the said certificates, voluntary recognition documents or collective agreements, as the case may be.
(1) Upon an application for accreditation, the Board shall ascertain,
(a) the number of employers in the unit of employers on the date of the making of the application who have within one year prior to such date had employees in their employ for whom the trade union or council of trade unions has bargaining rights in the geographic area and sector determined by the Board to be appropriate;
(b) the number of employers in clause (a) represented by the employers' organization on the date of the making of the application; and
(c) the number of employees of employers in clause (a) on the payroll of each such employer for the weekly payroll period immediately preceding the date of the application or if, in the opinion of the Board, the payroll period is unsatisfactory for any one or more of the employers in clause (a), such other weekly payroll period for any one or more of the said employers as the Board considers advisable.
(2) If the Board is satisfied,
(a) that a majority of the employers in clause (1) (a) is represented by the employers' organization; and
(b) that such majority of employers employed a majority of the employees in clause (1)(c),
the Board, subject to subsection (3), shall accredit the employers' organization as the bargaining agent of the employers in the unit of employers and for the other employers for whose employees the trade union or council of trade unions may, after the date of the making of the application, obtain bargaining rights through certification or voluntary recognition in the appropriate geographic area and sector.
(3) Before accrediting an employers' organization under subsection (2), the Board shall satisfy itself that the employers' organization is a properly constituted organization and that each of the employers whom it represents has vested appropriate authority in the organization to enable it to discharge the responsibilities of an accredited bargaining agent.
9The parties met with a Labour Relations Officer and reached agreement on the description of the unit of employers that is appropriate for accreditation:
All employers of employees engaged in the operation of cranes, shovels, bulldozers, and similar equipment and those primarily engaged in the repair and maintenance of same, and employees engaged as surveyors, in the road building sector of the construction industry within 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, and the Towns of Ajax and Pickering in the Regional Municipality of Durham (Ontario Labour Relations Board Area No. 8) and the County of Simcoe, save and except:
A. Notwithstanding the generality of the foregoing, employers which are bound to and which according to past or existing practice as of the date of application perform work under the following specialty schedules or collective agreements are not included in the aforementioned bargaining unit:
(i) Schedule “A” to the Provincial Collective Agreement between the Operating Engineers Employer Bargaining Agency and the Operating Engineers Employee Bargaining Agency being the schedule between the Crane Rental Association of Ontario and the Eastern Ontario Crane Rental Group and the International Union of Operating Engineers, Local 793;
(ii) Schedule “B” to the Provincial Collective Agreement between the Operating Engineers Employer Bargaining Agency and the Operating Engineers Employee Bargaining Agency being the schedule between the Ontario Erectors Association Incorporate and the International Union of Operating Engineers, Local 793;
(iii) Schedule “C” to the Provincial Collective Agreement between the Operating Engineers Employer Bargaining Agency and the Operating Engineers Employee Bargaining Agency being the schedule between the Ontario Association of Foundation Specialists and the International Union of Operating Engineers, Local 793; and
(iv) Schedule “D” to the Provincial Collective Agreement between the Operating Engineers Employer Bargaining Agency and the Operating Engineers Employee Bargaining Agency being the schedule between the Associated Earth Movers of Ontario and the International Union of Operating Engineers, Local 793;
(v) the collective agreement between the Metropolitan Toronto Sewer and Watermain Contractors Association [now the Greater Toronto Sewer and Watermain Contractors Association] and International Union of Operating Engineers, Local 793;
(vi) the collective agreement between Utility Contractors Association of Ontario and the International Union of Operating Engineers, Local 793;
(vii) the collective agreement between the Ontario Allied Construction Trades Council and the Electrical Power Systems Construction Association;
(viii) the Operating Engineers Mainline Pipeline Agreement between the Pipe Line Contractors Association of Canada and the International Union of Operating Engineers; and
(ix) the Operating Engineers Distribution Pipeline Agreement between the Pipe Line Contractors Association of Canada and the International Union of Operating Engineers.
Clarity note: The unit of employers has been described to reflect the work performed by employers of employees of whom the International Union of Operating Engineers, Local 793 has bargaining rights and shall not be construed as defining or limiting any sector in the construction industry.
10The applicant is directed to forward a copy of this decision together with the required Notices to the contractors listed on Schedule “E”. The Registrar is directed to provide the appropriate documentation to the applicant. The applicant is directed to provide the Board and the responding party with a confirmation of delivery to the employers on Schedule “E” and a list indicating the names of the contractors. By correspondence dated August 17, 1999 the applicant advised the Board that there is a proposed amended Schedule “E” and indicated it wished to proceed with the processing of the application. The Board assumes that for the purpose of sending out notices Schedule “E” is not in dispute. The response date for employers listed on Schedule “E” will be 30 days from receipt of the documentation from the applicant.
11Schedule “F” compiled by the responding party contains approximately 3000 names of contractors for whom the responding party claims bargaining rights. These are contractors who are not members of the applicant employer organization and who have not been active within the last twelve months.
12In the past, before the Rules of the Board have been amended, the Board would serve notice on each contractor on Schedules “E” and “F”. The Board at times had to hire additional staff to perform this task. Historically on average from 25% to 50% or more of the notices sent to firms listed on Schedule “F” were returned as undeliverable. One accreditation application in the roadbuilders industry involved the mailing of 10,000 notices (at considerable cost to the Board at the time) of which approximately 70% (about 7,000 envelopes) were returned for a variety of reasons. The reasons indicated on the returned envelopes included “moved”, “no such company”, “deceased”, “no such address” etc. Some of the companies were named in what appears to be under a number of slightly different corporate names so that perhaps two, three or more notices were sent to the same address. It was not clear whether the slightly different corporate names represented one and the same company, successor company or companies or in fact different entities altogether. It was a difficult task to reconcile Schedule “F” and the Board has issued accreditation certificates without in fact reconciling Schedule “F” in the past.
13The parties have raised an issue with respect to sending out 3,000 individual notices to the companies listed on Schedule “F”. The Board’s Rules have changed and applicants and responding parties are responsible for serving documents as required under various Rules with respect to applications made pursuant to the Act.
14In this application a Schedule “F” list has been compiled. Given the Board’s past experience of the accuracy of such a list it is reasonable to assume that a large number of notices would be returned. It is a safe assumption that a number of the companies listed on Schedule “F” are no longer in business. Of course the responding party is in the best position to know which of these companies for which it claims bargaining rights is active in the roadbuilding business. In these circumstances it makes sense to consider alternative methods of serving notice on contractors in the roadbuilding sector who may be affected by this accreditation application (contractors who are not members of the applicant).
15The parties are directed to meet with the Labour Relations Officer, Bob Wright, to finalize arrangements to provide notice of this application to roadbuilding contractors listed on schedule F. The parties to this proceeding are in the best position to identify ways and means for giving notice of this application to their industry. As a minimum this should include an advertisement in the Daily Commercial News and/or a trade publication in the roadbuilding sector of the construction industry. Advertisements in area newspapers in major centres where notice of this application is most likely to come to the attention of roadbuilding contractors who may be affected and for whom the union is claiming bargaining rights is another possible means of providing notice. Under the new Rules of Procedure it is the applicant’s responsibility to provide notice of applications filed pursuant to the Act. However the parties are encouraged to agree as to what form of notice and method of notice would best serve their particular industry. Should the parties be unable to agree as to the contents of the advertisement or any other aspect on how best to provide notice to their industry the Board will schedule a telephone conference call to determine any outstanding issues with respect to this issue.
16The advertisement should include information on where Schedule “F” is available for viewing, i.e. at the premises of the applicant and the responding party and the OLRB Website. The advertisement should also include information with respect to the date and location of the hearing scheduled in this matter. Copies of this decision should be made available where copies of Schedule “F” are located.
17Should the applicant (or the responding party) choose to mail individual notices to the contractors identified on Schedule “F” then it will not be necessary to pursue the above means for providing notice.
18A hearing in this matter will take place on August 8, 2000, commencing at 9:30 a.m. in the "Board Room", 2nd Floor, 505 University Avenue, Toronto, Ontario.
19Esther Foorer, Coordinator, Client Services, (416) 326-7474 will be available to co-ordinate the documentation required and assist the parties with respect to getting the information posted on the OLRB website.
“Inge M. Stamp”
for the Board