United Brotherhood of Carpenters and Joiners of America, Local 494 v. Greater Essex County District School Board, 2000 CanLII 13103

United Brotherhood of Carpenters and Joiners of America, Local 494 v. Greater Essex County District School Board

File No.: 4626-97-R Date: May 2, 2000 Ontario Labour Relations Board

Before: Caroline Rowan, Vice-Chair, and Board Members G. Pickell and A. Haward.

Appearances: Marisa Pollock for the applicant; Brian P. Nolan and Jack Sullens for the responding party.

DECISION OF THE BOARD

1This is an application for certification filed by the United Brotherhood of Carpenters and Joiners of America, Local 494 (the "union") under the construction industry provisions of the Labour Relations Act, 1995 (the "Act"). The union has applied to represent the following unit of employees of the responding party, Greater Essex County District School Board (the "GECDSB"):

all carpenters and carpenters' apprentices in the employ of Greater Essex County District School Board 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 Greater Essex County District School Board 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.

[emphasis added]

2The GECDSB takes the position that this certification application is barred by the provisions of Regulation 457/97 made under the Public Sector Labour Relations Transition Act, 1997 (the "PSLRTA") and because of the bargaining rights already obtained by the union in August 1997 in Board File No. 1416-97-R.

3The GECDSB notes that the union has already obtained bargaining rights for the same unit of employees of the former The Board of Education for the City of Windsor (the "Windsor Board"), which is one of two school boards amalgamated effective January 1, 1998 to form the current GECDSB. While the GECDSB became the successor employer in that the union's bargaining rights were continued in respect of the GECDSB under the terms of the PSLRTA, Regulation 457/97 limits the geographic scope of the bargaining unit of the GECDSB to the geographic jurisdiction of the Windsor Board, the predecessor employer. In this case, the geographic scope of the Windsor Board is the City of Windsor. As such, the union's bargaining rights for employees of the GECDSB are, for all intents and purposes, restricted to the City of Windsor.

4The GECDSB argues that this application for certification represents an attempt by the union to expand its bargaining rights in respect of employees in the employ of the GECDSB beyond the City of Windsor and therefore beyond the geographic scope of its successor rights. The GECDSB objects to the application on the ground that the union is seeking to obtain indirectly that which it could not, and did not, obtain directly by virtue of the successor rights provisions of the PSLRTA. It argues that Regulation 457/97 creates a bar to the application. The GECDSB further relies on the implied exception principle of statutory interpretation, which generally provides that a specific provision dealing with a matter prevails over a general provision where the provisions would otherwise conflict. In this regard, the GECDSB argues that the specific provisions of the PSLRTA and its regulations create an exception to the general provisions of the Act dealing with certification applications.

5The union, for its part, does not dispute that it is seeking by certification to obtain bargaining rights which extend beyond those acquired by it pursuant to the successor rights provisions of the PSLRTA and regulations made thereunder. The union, however, argues that it is entitled to expand its bargaining rights in the usual manner pursuant to the certification provisions of the Act. In this respect, the union argues that there is nothing in the PSLRTA or regulations made thereunder that creates a bar to this application for certification. In the alternative, if the Board finds that Regulation 457/97 creates a bar to this application, the union argues that the regulation is ultra vires.

6The relevant facts were stipulated by the parties and may be summarized as follows.

FACTS

7The Windsor Board and the former Essex County Board of Education (the "Essex Board") were amalgamated effective January 1, 1998 to form the GECDSB. The geographic jurisdiction of the Windsor Board was the City of Windsor and the geographic jurisdiction of the Essex Board was all of Essex County except the City of Windsor. The geographic jurisdiction of the GECDSB is the County of Essex including the City of Windsor, since it assumed the jurisdiction of the two former school boards.

8On or about August 1997, the union was certified (in Board File No. 1416-97-R) to represent employees of the Windsor Board in the following bargaining unit:

all carpenters and carpenters' apprentices in the employ of The Board of Education for the City of Windsor 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 Board of Education for the City of Windsor 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.

[emphasis added]

Prior to amalgamation, the union therefore had bargaining rights for all carpenters and carpenters' apprentices of the Windsor Board in the Province of Ontario in the ICI sector and in the Counties of Essex and Kent in all other sectors of the construction industry. No trade union, however, had bargaining rights prior to amalgamation for carpenters and carpenters' apprentices of the Essex Board working in the construction industry.

9There is no dispute between the parties that the provisions of the PSLRTA apply to the labour relations of these school boards upon amalgamation. The relevant provisions read as follows:

7. (1) This Act applies upon the assumption by a district school board of the jurisdiction of two or more old boards or of the minority language section of two or more old boards.

(2) For the purposes of this Act, the old boards are the predecessor employers and the district school board is the successor employer.

(3) This Act does not apply in respect of employees to whom the School Boards and Teachers Collective Negotiations Act applies.

(4) For the purposes of this Act, the changeover date is January 1, 1998.

(5) The terms relating to education that are used in this section have the same meaning as in the Education Act, as it may be amended by the Education Quality Improvement Act, 1997.

14. (1) On the changeover date, each bargaining agent that had bargaining rights in respect of a bargaining unit of a predecessor employer immediately before the changeover date has bargaining rights in respect of a like bargaining unit of the successor employer, but the description of the bargaining unit shall be such as to include only,

(a) employees who immediately before the changeover date were employees of the predecessor employer in the bargaining unit for which the bargaining agent had bargaining rights; and

(b) employees who are hired to replace employees described in clause (a).

(3) For greater certainty, none of the following, other than employees described in clause (1) (b), become members of a bargaining unit as a result of the operation of this section:

1. An employee of the successor employer who, immediately before the changeover date, was employed by a predecessor employer that is the Crown;

2. An employee of the successor employer who, immediately before the changeover date, was not employed in a bargaining unit of a predecessor employer.

3. (1) The collective agreement, if any, that applies with respect to employees of a predecessor employer immediately before the changeover date continues to apply with respect to those employees who are employed by the successor employer on or after the changeover date and with respect to employees hired by the successor employer to replace such employees.

(2) If no collective agreement is in operation immediately before the changeover date, the most recent collective agreement, if any, shall be deemed to be in effect from the changeover date for the purposes of this Act and subsection (1) applies with necessary modifications.

(3) The successor employer is bound by the collective agreement as if he, she or it had been a party to it. The successor employer shall be deemed to be the employer under the collective agreement.

(6) The terms and conditions of employment of an employee of the successor employer who is not in a bargaining unit are the terms and conditions of his or her contract of employment, as it may be amended from time to time.

(7) No provision of a collective agreement that binds a successor employer under this section shall be applied so as to prevent the successor employer from hiring or continuing to employ an individual to perform work or assigning work to an individual if,

(a) immediately before the changeover date the individual was employed by a predecessor employer that is the Crown or was employed by a predecessor employer but was not employed in a bargaining agent; and

(b) the work the individual performs for the successor employer is essentially the same work that the individual performed immediately before the changeover date for the predecessor employer.

(8) Subsection (7) ceases to apply if section 25 applies.

10Pursuant to the terms of section 7(2) of the PSLRTA, the Windsor Board and the Essex Board are the predecessor employers and the GECDSB is the successor employer. In addition, pursuant to section 14, the union's bargaining rights for employees of the Windsor Board were continued in respect of a like bargaining unit of the successor employer, the GECDSB, effective on the changeover date, being January 1, 1998. Pursuant to section 15(1) of the PSLRTA, any collective agreements that apply immediately prior to January 1, 1998 with respect to employees of the Windsor Board, the predecessor employer, continue to apply with respect to employees of the GECDSB, the successor employer. The GECDSB is bound to the collective agreement as if it was a party to it.

11In the present case, the provincial collective agreement between The Carpenters' Employer Bargaining Agency and The Carpenters' District Council of Ontario, United Brotherhood of Carpenters and Joiners of America effective from May 1, 1995 to April 30, 1998 (the "Provincial Agreement") automatically became binding on the Windsor Board in the ICI sector on certification. The Provincial Agreement was in operation immediately before January 1, 1998 and therefore became binding on the GECDSB as successor employer following amalgamation. The parties did not, however, advise the Board as to whether or not any collective agreement, binding the Windsor Board in respect of the all other sector portion of the bargaining unit in the Counties of Essex and Kent, was in operation immediately prior to January 1, 1998. The Board therefore has no information in this regard.

12As previously noted, the provisions of Regulation 457/97 also apply so as to restrict the geographic scope of the bargaining unit of the successor employer. The relevant provisions of Regulation 457/97 read as follows:

1.(1) If a predecessor employer was a municipality or a school board and a construction union had bargaining rights with respect to a bargaining unit of that employer that contained or would have contained employees who performed construction work, the following apply:

1. The description of the bargaining unit of the successor employer referred to in subsection 14(1) of the Act shall not include, or be changed under section 22 of the Act to include, employees who perform construction work outside the geographic jurisdiction of the predecessor employer unless the successor employer agrees.

2. Despite sections 15 and 24 of the Act, a collective agreement that bound the predecessor employer immediately before the changeover date does not bind the successor employer with respect to construction work performed outside the geographic jurisdiction of the predecessor employer unless the successor employer agrees.

Pursuant to the terms of this regulation, the scope of the bargaining unit and the application of the Provincial Agreement are now restricted to the City of Windsor in all sectors of the construction industry as there has been no agreement between the parties to the contrary in this case.

13As a consequence, the union filed the present certification application on March 4, 1998 during the open period of the Provincial Agreement in order to "displace" its own bargaining rights acquired in August 1997 for employees of the Windsor Board. Since the scope of the bargaining unit was restricted to the City of Windsor following amalgamation, the union has now applied to represent the identical bargaining unit of carpenters and carpenters' apprentices of the "successor employer" as it was originally certified to represent in 1997 in respect of the "predecessor employer".

DECISION

Application of the PSLRTA and its Regulations

14The Board accepts, without determining, for the purposes of the GECDSB's argument that the PSLRTA and the regulations made thereunder have paramountcy over any conflicting provisions of any other legislation including the Act. In this respect, the Board notes that section 39(1) of the PSLRTA is explicit in this regard. This section reads as follows:

39. (1) In the event of a conflict or inconsistency between this Act or a regulation made under this Act and any other Act, this Act or the regulation prevails.

The specific successor rights provisions contained in the PSLRTA and regulations made thereunder dealing with the amalgamation of school boards therefore appear to prevail over the more general successor rights provisions of the Act to the extent that there is any inconsistency or conflict between them.

15In the circumstances of the present case, however, the Board is not persuaded that there is any conflict between the relevant certification provisions of the Act and the relevant successor rights provisions of the PSLRTA or regulations made thereunder. The relevant certification provisions of the Act provide a mechanism for acquiring bargaining rights by certification whereas the relevant provisions of the PSLRTA and the provisions of Regulation 457/97 in issue deal with successor bargaining rights following the amalgamation of school boards. Although both sets of provisions deal generally with bargaining rights, the relevant provisions otherwise involve entirely different issues; that is, certification rights as opposed to successor rights. As union counsel noted in argument: "There is no conflict; we are talking about apples and oranges."

16As previously noted, Regulation 457/97 generally restricts the geographic scope of the bargaining unit of employees of the successor school board and the application of any collective agreement binding the successor school board. While the regulation theoretically narrows the geographic scope of bargaining units in many cases, the practical effect, and ostensible purpose, of the restriction is to preserve the status quo. It does so by preventing a trade union from obtaining bargaining rights in respect of work formerly performed by a predecessor school board with whom the union did not hold bargaining rights as a direct result of amalgamation. This type of "grab" (as union counsel termed it) would otherwise occur in the majority of cases in the ICI sector in which bargaining rights are typically province-wide.

17The Board also notes that the interpretation of Regulation 457/97 urged by the GECDSB has an adverse impact on the certification rights of trade unions with bargaining rights with a predecessor school board prior to amalgamation. The responding party's argument that a trade union affected by Regulation 457/97 cannot expand its bargaining rights by certification beyond those acquired under the PSLRTA and its regulations implies that only a trade union with no prior bargaining relationship with a predecessor employer could bring the present certification application. In the Board's view, if the government had intended to restrict the certification rights of trade unions with prior bargaining relationships in respect of a predecessor employer as compared to those with no prior bargaining relationships, it would have done so expressly.

18In this respect, the Board notes that the legislature created an express bar to certification applications under section 28 of the PSLRTA in circumstances that do not apply in the present case. Section 28 generally provides that no certification or termination application may be brought during specified time periods following an application for an order regarding a change to bargaining units brought pursuant to section 22 of the PSLRTA. The absence of a similar express bar in the present situation is telling. In all of the circumstances, the Board is not persuaded that the provisions of the PSLRTA and the regulations made thereunder should be interpreted as a bar to the present certification application.

Application of the certification provisions of the Act

(i) Definition of Employer

19The next issue to be determined is whether or not this application for certification has otherwise been properly brought pursuant to the certification provisions of the Act. In this case, the application for certification has been brought pursuant to the construction industry provisions of the Act. Counsel for the GECDSB submits that recent amendments to the definition of "employer" under these provisions operate so as to prevent a construction trade union from bringing a certification application in respect of employees of the GECDSB. In this regard, counsel explains that the amended definition of "employer" specifically excludes a "non-construction employer" and that the GECDSB as a school board is a "non-construction employer" within the meaning of the Act. A "non-construction employer" is now defined in the Act to mean "...a person who is not engaged in a business in the construction industry or whose only engagement in such a business is incidental to the person's primary business." Counsel submits that the effect of these amendments is to prevent a construction trade union from seeking to represent employees of a school board, such as the GECDSB.

20With respect to this submission, the Board notes that the amendments to the definition of "employer" referred to by the responding party were made after the application for certification was filed in the present case. The amendments came in effect on August 24, 1998, as a result of the proclamation of section 16 of The Economic Development and Workplace Democracy Act, 1998 ("Bill 31"). This application for certification was therefore pending before the Board when the amended definition came into effect. In Windsor Essex Catholic District School Board, (unreported, March 17, 2000, Board File No. 1010-98-R), the Board determined that the amended definition of "employer" does not apply to pending applications, since these legislative amendments do not have retroactive application. The Board reasoned as follows:

As indicated by the Board in Gallagher Construction and Pizza Pizza, it is a basic rule of statutory interpretation that, in the absence of evidence of clear legislative intent to the contrary, legislation should not be construed to give it retroactive or retrospective effect. There are clear examples of where the legislature has expressed such an intention. It has not done so with respect to the definition of employer in section 126 of the Act. (p.2)

The definition of "employer" in effect on the date the instant application was filed is therefore the applicable definition. As there is no issue that the GECDSB is an "employer" within the meaning of that definition, there is no impediment to the application on that basis.

(ii) Timeliness of application in relation to existing bargaining rights

21The responding party also maintains, in the alternative, that the union's existing bargaining rights for employees of the GECDSB in both the ICI sector and in all other sectors of the construction industry precludes the present certification application under the provisions of the Act. In this respect, the Board notes that the union already has bargaining rights for employees of the responding party in the proposed bargaining unit working in the City of Windsor. Effective January 1, 1998, the union's bargaining rights do not, however, include employees working outside of the City of Windsor by virtue of the provisions of Regulation 457/97 to the PSLRTA. Employees of the responding party in the bargaining unit applied for in the present certification application working outside of the City of Windsor, if any, are not therefore represented.

22With respect to the ICI sector, the Board notes that the certification application may simply be treated as a displacement application, since it was made during the open period of the Provincial Agreement. Pursuant to section 7(4) of the Act, where the term of the collective agreement is for not more than three years, "a trade union" may apply for certification as bargaining agent of any of the employees in the bargaining unit defined in the agreement during the last two months of its operation. By contrast, section 7(2) of the Act allows only "another trade union" to apply for certification in respect of any employee in a bargaining unit in circumstances (not applicable here) where the incumbent union has not concluded a collective agreement within a year following certification. A reading of section 7 of the Act therefore suggests that another trade union or even the incumbent trade union may bring a certification application during the last two (2) months of the operation of the agreement. As such, the Board finds that the union, in this case, may apply at this time to displace its own bargaining rights in the ICI sector of the construction industry in order to seek a broader bargaining unit.

23Displacement of the union's existing bargaining rights is not, however, an option in the all other sector portion of the bargaining unit, since such an application could not be timely under any circumstances. As previously indicated, although the Board has no information as to whether or not the parties entered into a collective agreement in respect of this portion of the unit, the Board notes that the application as it relates to these sectors could not, in any event, be timely. This is because the present certification application was brought only some six (6) months after the union was certified in August 1997 and there has been no application made pursuant to section 132(1) of the Act for a declaration terminating bargaining rights.

24In these circumstances, if a collective agreement was entered into following the union's certification in August 1997 but prior to the present application being filed in March 1998, no certification application could be brought until the last two (2) months of its operation. Since the provisions of section 58 (1) of the Act require that a collective agreement be for a minimum term of one (1) year, no certification application could be brought in March 1998 as the period for bringing such an application would, in any circumstances, remain closed. (See section 7(4) or (5) of the Act) Alternatively, if no collective agreement was concluded following certification, no subsequent certification application could be brought pursuant to the provisions of section 7(1) of the Act.

(iii) Appropriate bargaining unit

25The Board must therefore next consider what, if any, bargaining unit is appropriate, in circumstances such as these where bargaining rights have already been acquired and no timely displacement application may be made in respect of the non-ICI portion of the unit sought at the time of filing. Under the construction industry certification provisions, an application for certification such as the one in the present case, which includes all employees in the ICI sector, must also include all employees in at least one appropriate geographic area, unless bargaining rights have already been acquired. Section 158 (1) and (2) of the Act read as follows:

158. (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.

Section 158 of the Act therefore specifically contemplates circumstances such as those in the present case, in which a trade union has already been certified to represent employees in a specified board area in all other sectors of the construction industry.

26In these circumstances, the Board has, on other occasions, granted certificates in the ICI sector and in all other sectors of a specified board area but excluded from the scope of the unit "persons covered by subsisting collective agreements, certificates of the Ontario Labour Relations Board or written voluntary recognition agreements". (See for example, The Georgian Building Corp., [1981] OLRB Rep. Mar. 275; Menkes Developments Inc., [1987] OLRB Rep. June 881; Gottcon Contractors Ltd. [1990] OLRB Rep. Jan.25).

27In The Georgian Building Construction, [1981] OLRB Rep. March 275, Local 506 of the Labourers International Union of North America applied for certification in respect of both the ICI sector and in respect of all other sectors of the construction industry in Board Area 8. Local 183 of the Labourers International Union of North America was found to have existing bargaining rights for employees of the respondent employer in the residential sector of the construction industry in Board Area 8 only. In rejecting the respondent's argument that the applicant was not entitled to make its application under section [158(1)] or, alternatively, that the applicant was only entitled to apply for bargaining rights in the ICI sector, the Board made the following observations:

25. In interpreting section 131a [now 158(1)], the Board must have regard to The Interpretation Act, R.S.O. 1970, c. 225. Of particular significance in the present case are the following sections:

"8. The preamble of an Act shall be deemed a part thereof and is intended to assist in explaining the purport and object of the Act.

10. Every Act shall be deemed to be remedial, whether its immediate purport is to direct the doing of anything that the Legislature deems to be for the public good or to prevent or punish the doing of anything that seems to be contrary to the public good, and shall accordingly receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit."

The preamble to The Labour Relations Act provides as follows:

"Whereas it is in the public interest of the Province of Ontario to further harmonious relations between employers and employees by encouraging the practice and procedure of collective bargaining between employers and trade unions as the freely designated representatives of employees."

Having regard to those legislative provisions, the Board cannot accept the construction of section 131a [now 158(1)] advocated by counsel for the respondent. Harmonious relations between employer and employees would not be furthered, nor would the practice and procedure of collective bargaining be encouraged by that construction which would preclude certification in respect of some employees who would not otherwise be beyond the purview of the certification procedures under the Act. Such an interpretation might well result in a resurgence of recognition strikes, the elimination of which is one of the purposes of the certification procedures of the Act. The Board has a well-known and long standing practice of preserving existing bargaining rights by excluding from bargaining units employees covered by subsisting collective agreements. In the absence of a clear and specific legislative direction to the contrary, the Board is of the view that it is appropriate, having regard to the preamble and the general scheme of the Act, to maintain that practice which promotes industrial peace and stability by recognizing and preserving existing bargaining rights. (Employees covered by subsisting Board certificates and subsisting written voluntary recognition agreements should also be excluded to preserve any such additional bargaining rights which might be in existence.)

As a consequence, the Board determined that the bargaining unit in that case should be described so as to exclude "persons covered by subsisting collective agreements, certificates of the Ontario Labour Relations Board, or written voluntary recognition agreements".

28In the circumstances of the present application, the Board similarly finds that the bargaining unit should be so described. However, since a displacement application in the ICI sector is timely, such exclusion need not relate to the ICI sector. The Board therefore finds, pursuant to section 158(1) of the Act, that 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 and persons employed in a sector of the construction industry other than in the ICI sector covered by subsisting collective agreements, certificates of the Ontario Labour Relations Board or written voluntary recognition agreements, constitute a unit of employees of the responding party appropriate for collective bargaining.

(iv) Voter eligibility

29The applicant takes the position that there were three individuals in the voting constituency as described by the Board in its decision dated March 9, 1998. The responding party takes the position that there were no employees in the voting constituency, for whom the union did not already have bargaining rights.

30By decision dated March 9, 1998, the Board directed that a representation vote be taken in this matter and the voting constituency was determined with reference to the bargaining unit for which the union applied. That unit did not contain the above-noted exclusion relating to employees of the responding party working in the City of Windsor outside the ICI sector of the construction industry.

31This application cannot be finally determined until the issue concerning the voters' list has been resolved. Having regard to the Board's finding herein regarding the appropriate bargaining unit, the Board amends the bargaining unit description set out in paragraph 6 of its March 9, 1998 decision in this matter as follows:

all carpenters and carpenters' apprentices in the employ of Greater Essex County District School Board 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 Greater Essex County District School Board 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 and persons employed in a sector of the construction industry other than in the ICI sector covered by subsisting collective agreements, certificates of the Ontario Labour Relations Board or written voluntary recognition agreement, constitute a unit of employees of the responding party appropriate for collective bargaining.

32This matter is referred to the Manager of Field Services to meet with the parties in an attempt to resolve any outstanding issues concerning the voters' list and to report back to the Board.

33This panel of the Board is seized.

"Caroline Rowan"

for the Board