United Brotherhood of Carpenters and Joiners of America Local 494 v. Windsor-Essex Catholic District School Board
1010-98-R United Brotherhood of Carpenters and Joiners of America Local 494, Applicant v. Windsor-Essex Catholic District School Board, Responding Party.
BEFORE: David A. McKee, Vice-Chair.
APPEARANCES: Marisa Pollock and Jack McDowell for the applicant; Brian P. Nolan for the responding party.
DECISION OF THE BOARD; September 13, 2000
1This is an application for certification made pursuant to the construction industry provisions of the Labour Relations Act, 1995, S.O. 1995 ch. 1 (the "Act"). Certain other issues have been disposed of by the Board in decisions dated July 22, 1998, August 5, 1998, and March 17, 2000. When this mater resumed, the remaining issue was described by counsel as whether the persons who were agreed to be on the voters’ list and who cast ballots in the representation vote were performing work in the bargaining unit on the date of application, i.e. was the work they were performing work which fell in the construction industry. This issue also impacts on the relevance of the collective agreement which existed at the date of application between the responding party and the Service Employees International Union, Local 210 (“SEIU Local 210”).
2The Board heard evidence from Mr. Jack McDowell, a representative of the applicant. He testified that he attended at the site of the W. J. Langlois School in Windsor on the application date, June 11, 1998. He observed the two persons who cast ballots performing certain work. They spent the majority of the day erecting a steel stud wall in the gymnasium of the school. The purpose of the steel stud wall was to serve as the frame to receive drywall. The object of this work was to subdivide existing space in order to create a second, small room. The wall was a permanent, although not a load bearing, wall.
3This work was clearly work which falls within the definition of “construction”. The erection of a permanent structure constitutes an addition to the building and as such fits the definition of work in the construction industry, see Master Insulators Association of Ontario Inc., [1980] OLRB Rep. October, 1477 at paragraphs 28-29. Accordingly, the two employees were performing work in the construction industry, and this application was properly made under section 158 of the Act.
4The work is work typically performed by carpenters. The Board finds that the two persons who cast ballots were employed within a bargaining unit of carpenters and carpenters apprentices in the construction industry. While it is unnecessary to do so for the purposes of an application for certification, the work was unquestionably in the industrial commercial and institutional sector of the construction industry.
5The responding party raised the issue of the collective agreement which existed on the application date between it and the SEIU Local 210. SEIU Local 210 did not file an intervention or appear at any point in these proceedings. However, parties agreed that the two persons who cast ballots were full time employees and were members of SEIU Local 210. The terms of that collective agreement had been applied to them at all times during the course of their employment, regardless of the nature of work they performed.
6The copy of the collective agreement filed with the Board does describe a typical “all-employee” unit. However, the purpose described in Article 1 of the collective agreement is stated to be to establish an orderly bargaining relationship between the responding party and “certain classifications of employees”. The classifications listed in Article 23, aside from clearly irrelevant custodian classifications, include Mason Helper/Utility, Painter, Maintenance Person, and Maintenance Person (Licensed). A footnote to that last category provides:
Maintenance Person (Licensed) must be licensed with trade certificate and performing skilled trades duties. Recognized trades are Carpenter, Plumber, Electrician, Painter and Mason.
Given that there is a separate classification for Painter, the Board concludes that persons in that classification perform painting work, other than maintenance work. Accordingly, the persons employed as Maintenance persons are those who perform only maintenance work.
7In the absence of another “Carpenter” classification, the Board concludes that the collective agreement covers a bargaining unit including only those persons performing carpentry work of a maintenance nature. The collective agreement therefore does not cover carpenters performing construction work. It cannot serve as a bar to this application. However, it is also clear that the bargaining rights obtained by the applicant in this decision do not extend to persons performing any form of maintenance work.
8In its decision of June 17, 1998, the Board found the following bargaining unit to be appropriate for collective bargaining:
all carpenters and carpenters’ 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 carpenters and carpenters’ apprentices in the employ of the responding party in all other sectors of the construction industry in the Counties of Essex and Kent, save and except non-working foremen and persons above the rank of non-working foreman.
9On 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.
10Section 160(1) of the Act, which states as follows, provides for the issuance of more than one certificate if the applicant has the requisite support:
- (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.
Therefore, pursuant to section 160(1) of the Act, 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 United Brotherhood of Carpenters and Joiners of America and the Carpenters’ District Council of Ontario, United Brotherhood of Carpenters and Joiners of America in respect of all carpenters and carpenters’ apprentices in the employ of Windsor-Essex Catholic District School Board 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.
11Further, pursuant to section 160(1) of the Act, a certificate will issue to the applicant trade union in respect of all carpenters and carpenters’ apprentices in the employ of Windsor-Essex Catholic District School Board in all sectors of the construction industry in the Counties of Essex and Kent, excluding the industrial, commercial and institutional sector, save and except non-working foremen and persons above the rank of non-working foreman.
12The Registrar will destroy the ballots cast in the representation vote taken in this matter 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.
13The responding party is directed to post copies of this decision immediately, adjacent to the "Notice of Vote and of Meeting" posted previously. These copies must remain posted for a period of 30 days.
“David A. McKee”
for the Board