1549-97-R Teamsters Local Union 91, Applicant v. Bot Construction (Canada) Ltd. and Clarkson Construction Company Limited, Responding Parties v. International Union of Operating Engineers, Local 793, Intervenor.
1555-97-R Teamsters Local Union 91, Applicant v. Bot Construction (Canada) Ltd. and Clarkson Construction Company Limited, Responding Parties.
APPEARANCES: Harold Caley and Basil Humphrys for the applicant; S.C. Bernardo and J. Bilowus for the responding parties; Robert Gibson and Vic Prato for the intervenor.
BEFORE: Inge M. Stamp, Vice-Chair, and Board Members G. Pickell and A. Haward.
DECISION OF THE BOARD; April 10, 2000
Board File 1549-97-R is an application for certification filed on July 31, 1997 pursuant to the construction industry provisions of the Labour Relations Act, 1995 (the “Act”). A vote was held and the ballot box sealed pending the determination of a number of issues raised by the responding parties. Paragraph 10 of the August 6, 1997 decision directing the vote sets out the issues raised by the employer. The vote was held August 8, 1997.
Board File 1555-97-R is an application pursuant to section 1(4) of the Act asking for a declaration that Bot Construction (Canada) Ltd. and Clarkson Construction Company Limited are one employer for the purposes of the Act and the above application for certification.
For ease of reference the applicant is referred to as “Teamsters” or “Local 91”. The intervenor is referred to as “Operating Engineers” or “Local 793”.
These matters were adjourned sine die on agreement of the parties. When
these matters were brought back on for hearing the parties agreed to first deal with the certification application .
The applicant Teamsters applied for its standard ICI and Board Area No. 13 bargaining unit “all teamsters engaged in on-site construction in the employ of the responding parties in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and all teamsters engaged in construction in the employ of the responding parties in all other sectors of the construction industry in Board Area 13, save and except non-working foremen and persons above the rank of non-working foreman” . The employer was engaged in the road building sector of the construction industry on the application date.
The employer filed its response asserting that there were no employees employed in the bargaining unit and the persons driving trucks on the application date were not teamsters engaged in on-site construction. 10(a) of the Form TA-66 (Response) asks for the name of any trade union which claims to represent any employees who may be affected by the application. The employer responded “N/A”. The vote was held on August 8, 1997. The ballot box was sealed pursuant to the Board’s decision directing the vote.
The applicant and the company adjourned these matters sine die on September 11, 1997. On November 20, 1997 these matters were relisted at the applicant’s request.
On January 19, 1998 the employer for the first time asserts there is an incumbent union whose collective agreement applies to the work performed on the application date. A copy of the letter is sent to the intervenor Operating Engineers by the employer.
On January 20, 1998 the Operating Engineers, filed an Intervention Application for Certification, Construction Industry. The Operating Engineers allege their collective agreement in the Roadbuilding Sewer and Watermain sectors covers the work performed by the employees that are affected by the certification application. The intervenor stated that it has entered into a collective agreement effective from January 1, 1996 until December 31, 1997 with the responding party with respect to the affected employees. A copy of the collective agreement was filed with the Board. At the time of the filing of the intervention the Operating Engineers were re-negotiating that collective agreement.
On January 26, 1998 these matters were adjourned on the agreement of the parties, including the intervenor. The matters came back on for hearing on September 16, 1998.
The intervenor does not represent any of the affected employees. The Operating Engineers allege the work performed on the application date was performed in violation of their collective agreement and filed a grievance in January of 1998. It appears that the employer did not apply the collective agreement and the Operating Engineers did not enforce their collective agreement between July 31, 1997 and January 19, 1998.
The intervenor asserts it was not named as an interested party in the application for certification and therefore did not have notice of the application for certification.
The applicant Teamsters took the position that it was too late for the Operating Engineers to intervene. The application was made on July 31, 1997 and the intervenor waited until January of 1998 to file its intervention. Members of the intervenor were working in Board Area 13 before the application date.
The employer submits it made a mistake in its response Form TA-66 by not indicating that the Operating Engineers may be affected by this application. The Operating Engineers submit they had no way of knowing this work was being done and they should not be penalized because the employer and the applicant did not name them as an affected or interested party.
The Operating Engineers submit they have a twenty-year relationship with this employer. The employer is bound to the Operating Engineer’s provincial agreement which the intervenor asserts applies in all areas of the province where there are no existing collective agreements such as the National Capital Road Builders collective agreement (“Capital Agreement”).
The six persons on the voter’s list were dispatched from the Teamster’s hiring hall pursuant to the Capital Agreement between the employer and the Council of three unions in the road building sector, Operating Engineers, Teamsters and Labourers. The employees on Schedule A, i.e. the voter’s list, worked under the Teamsters’ schedule of the Capital Agreement in Board Area 15 (Ottawa) before moving on to Board Area No. 13 which is not covered by the Capital Agreement.
The work being performed at the relevant time was highway construction which started in Board Area 15 and carried on into Board Area 13. The same crew, with some of the same operating engineers and teamsters, continued working through the two geographic board areas. The application for certification by the teamsters was posted with notice to the affected employees at the jobsite trailer.
The Notice of Certification and of Vote sets out the bargaining unit description and the voting constituency. The Board’s decision directing the vote is posted next to the Certification and the Vote Notice. Paragraph 11 of that decision states:
Any party or person who wishes to make representations to the Board about any issue relating to the application for certification which remains in dispute, must file a detailed statement of representations and all material facts upon which they rely with the Board and deliver it to the other parties, so that it is received within seven days (excluding Saturdays, Sundays and holidays on which the Board is closed) of the date on which the vote is taken
The Capital Agreement was applied while the work was performed in Board Area No. 15 (Ottawa). It is not credible that the Operating Engineers who are one of the parties to that agreement (the Teamsters and the Labourers being the other two members of the union council) were not aware that this work continued on into Board Area No. 13. The Teamster application in Board Area No. 13 was certainly not a secret. It was posted at the jobsite trailer. The same crew was working on site in Board Area 13 that had been working in Board Area 15.
All three parties agreed that the work performed by the teamsters on the application date would clearly be teamsters’ work under the ICI agreement and under the Capital Agreement. However the employer and the intervenor assert when there is no applicable Teamster collective agreement or Teamster wage schedule then the work of the Teamsters is covered by the classifications in the Operating Engineers’ Provincial Road Builders’ and Sewer and Watermain collective agreement (“Road, Sewer and Watermain Agreement”).
In all of the circumstances the Board ruled orally that it was too late in the day for the Operating Engineers to intervene. The Board found that employees who might be affected had notice by virtue of the Board’s notices and decision posted at the jobsite.
The employer raised the Operating Engineers’ Road, Sewer and Watermain Agreement as a bar for the first time on January 19, 1998. Paragraph 10 of the vote decision of August 6, 1997 sets out submissions made by the employer in its response to the certification application. It raises a number of issues including an assertion that the six persons driving trucks on the application date were not teamsters engaged in on-site construction.
The Vote Work Sheet is dated September 10, 1997. By decision of the Board the responding party was directed to make post-vote submissions by January 19, 1998. The responding party raised the collective agreement bar at that time.
The Board ruled orally that it would allow the employer to raise the issue of the Operating Engineer’s Road, Sewer and Watermain Agreement. The applicant took the position it was too late for the employer to raise this agreement as a bar to the Teamsters’ application for certification. Counsel for the employer submits the Board must take the collective agreement into account and takes the position that the Board does not have the authority to find a collective agreement does not apply. Counsel for the intervenor asked for reconsideration of the Board’s earlier ruling to be allowed to intervene as the issue raised by the employer affected their collective agreement. The Board declined to reconsider its earlier ruling with respect to the Operating Engineers status to intervene in this application for certification.
Schedule A of the response describes the “job classifications” at work on the application date as tandem water truck , tandem dump truck and rock truck. The applicant described the employees referred to in schedule A as water truck drivers (2), rock truck drivers (3) and tandem dump truck driver (1).
The Road, Sewer and Watermain Agreement between Clarkson Construction Company Limited and Bot Construction (Canada) Limited and Local 793 describes the scope of the agreement as all work performed by the employer in the province of Ontario in the Sewer and Watermain and Roadbuilding sectors of the construction industry. This agreement applies except for areas where there are existing Sewer and Watermain or Roadbuilders’ Agreements such as the Capital Agreement in Board Area No. 15 in the Ottawa area.
Article 2.2 of the collective agreement with the Operating Engineers states that the employer agrees to assign all classifications listed in the collective agreement to the operating engineers.
The Teamsters submit their application is for all teamsters engaged on on-site construction work for ICI and one Board Area. There are no operating engineers that can be covered by this craft description.
The Capital Agreement’s Teamster wage schedule in Board Area 15 includes the following classifications in classification #5: tandem dump, farm tractor, off highway truck and single axle truck.
Classification #5 of the Operating Engineers’ Agreement includes: off highway type earth and rock type vehicle operator, water spreader operator, float driver 25 tons and under, compactor and roller operator (on grade), boom truck operator, auger operator, chainman, volvo dumps, kubota-bobcat type excavators less than 65 h.p.
Counsel for the employer submits there is a collective agreement which must be considered to the extent that it covers employees who were working on the application date. The employer’s position was based on its view that the persons affected by the application might not be considered on site construction teamsters as described in the application.
The employer takes the position that the water truck drivers are covered by the Operating Engineers’ agreement under classification 5 which refers to water spreader operator. Photographs of the equipment used on site show a tandem dump truck with a water tank mounted inside.
Classification #5 (of the Operating Engineers agreement) refers to Volvo Dumps and off highway type earth & rock type vehicle operators. Counsel for the employer submits the intention of the parties was to include off road rock trucks and waterspreaders in this collective agreement. This agreement and similar language has been in force since 1986. It is the dominant collective agreement in the area.
Counsel for the employer submits the classifications in the Operating Engineers’ Road, Sewer and Watermain Agreement cover the work that was done by the employees in the bargaining unit on the application date except for one. Counsel for the employer takes the position that two of the three classifications and four of the five drivers who voted are covered by the Road, Sewer and Watermain Agreement.
Counsel for the applicant Teamsters Union asserts it is too late for the company to raise the collective agreement as a bar. By the time the company raised the Operating Engineers’ Agreement the open period had passed. Had it been raised in a timely fashion the applicant could have reapplied in the open period.
The company’s schedule refers to tandem water truck not water spreader. The work began in Board Area #15 in 1996. Employees were laid off and returned in the Spring of 1997 and laid off in the Fall of 1997. The application date is July 31, 1997. It is prejudicial to the applicant to allow the company to raise this collective agreement as a bar.
Up until September 10, 1997 no one raised a collective agreement bar. The employer did not raise the issue in its reply to the certification application. The Board’s direction to file submissions was with respect to the status issue raised by the company. There was no leave given to raise any new issues. The employer should not be allowed to raise the collective agreement as a bar six months after the application date. The employer did not comply with the Board’s Rules 13, 14 and 20.
Teamsters have been driving rock trucks in both Board Areas 13 and 15 since 1996.
The applicant cited the following cases in support of its position Turn-Key Installations Inc., [1992] OLRB Rep. Jan. 90; B & B Electric Co., [1996] OLRB Rep. Dec. 907; A.J. Fish & Son Limited, [1982] OLRB Rep. Aug. 1123; Saint Elizabeth Health Care- Durham Region, [1996] OLRB Rep. Dec. 1008; Harbridge & Cross Ltd., [1979] OLRB Rep. Apr. 313; Toronto, [1978] OLRB Rep. Dec. 1145; Semple-Gooder Roofing Ltd., [1983] OLRB Rep. Nov. 1908; Karvon Construction Limited, [1982] OLRB Rep. Aug. 1186 and Ontario Hydro,[1997] OLRB Rep. July 700.
Counsel for the Teamsters submits A.J. Fish & Son Limited, (supra) is directly on point referring to paragraph 9, 10 and 11.
Counsel submits silence on the part of the employer is a strong position that there is no bar. Counsel referred to para. 30 of Ontario Hydro, (supra) which denied the PWU to assert that its collective agreement with Ontario Hydro covered any of the affected employees because of delay.
Counsel for the applicant submits given the facts of this particular case where the employer is working in the adjacent Board Area pursuant to a collective agreement covering teamsters and operating engineers and that work extended into an adjoining Board Area (#13) and the Teamsters Union made an application for certification to continue to represent its teamster members, the employer was given an early opportunity to make its representations and raise the collective agreement as a bar.
The applicant submits it does not know why the employer did not raise the bar for six months which resulted in the Teamsters Union losing an opportunity for making a timely application. The only party prejudiced in any way is the Teamsters Union. The applicant submits the employer’s delay in raising this issue is particularly offensive since it is no longer relying on the other issues raised in its response.
Counsel for the applicant Teamsters submits it is too late. However, if the parties have to go through the next hurdle the applicant asserts the persons in the voting constituency are not covered by the Operating Engineers Road, Sewer and Watermain Agreement.
Counsel for the responding parties submits A.J. Fish & Son Limited, (supra), and Karvon Construction Limited are cases where the employer failed to file a reply and wanted to add persons to the list. They did not involve allegations of a collective agreement bar. Ontario Hydro, (supra), was a lengthy proceeding. The Board had found that the collective agreement did not purport to cover any of the affected employees on its face. PWU had notice and participated from the beginning and it was well after the hearings had commenced that PWU asserted its collective agreement.
Counsel for the employer cited the following cases in support of the responding party’s position: Stacey Electric Company Limited, [1987] OLRB Rep. Mar..428; Square One Carpentry Inc., [1988] OLRB Rep. Oct.1112; Corporation of the City of St. Thomas, [1993] OLRB Rep. May 408.
Counsel refers to Stacey Electric Company Limited, (supra), which dealt with whether particular persons were covered by an existing collective agreement. Para . 11 of that decision states
As noted above, two or the three men hired in Ottawa belonged to the applicant trade union. The applicant does not challenge the propriety of the line work agreement, but does submit that it does not cover construction labourers. While no evidence was led concerning the tasks performed by the applicant’s members or how they were classified by the respondent, given that they generally work as labourers, as well as the type of work being performed at the job site, it is reasonable to assume that their duties involved one or more of the following tasks, namely assisting more skilled employees, material handling and trenching work. All of these tasks are covered by the classifications of “groundman” and “utilityman” described in Article 601 of the line work agreement. The recognition clause in the agreement expressly includes both of these classifications. Accordingly, it would appear that the individuals in question were covered by the scope of the line work agreement.
Counsel for the employer submits the nature of the collective agreement involved in Stacey, (supra), was much like that of the Operating Engineers and the employer. On a fair reading of the collective agreement the persons at work could come within the classification of water spreader operator and Volvo Dumps and Off-Highway vehicle operators. In Square One Carpentry Inc., (supra), the Board recognizes the primacy of pre-existing bargaining rights.
Counsel submits there was some confusion on the part of the employer. The site was 250 miles away from the company’s office in a remote area. The employer had two days in which to respond. The matter was twice adjourned sine die on consent. The classifications involved were not the primary operating engineers classifications. When it came to the company’s attention that these people were in fact performing work under the Operating Engineers Road, Sewer and Watermain Agreement classifications, the matter was raised.
The collective agreement expired in December 31, 1997. There were no employees working on site after the lay-offs at the end of November 1997.
There was an existing valid collective agreement . On its face it covered the work that was being performed by the people who are affected by the application. There is no disagreement as to what work was performed on the application date. The Board does not have the authority to find the collective agreement does not apply.
Counsel for the applicant Teamsters submits ,Stacey, supra, does not deal with the ability of raising issues in a timely fashion. Square One, supra, does not raise any argument about the timeliness of an employer to raise a response. The facts in Karvon,supra, are a little bit different. Issues of substance must be raised in a timely fashion. Had they been raised in a timely fashion the applicant Teamsters could have refiled in the open period.
With respect to the employer’s two days in which to reply counsel submits the employer had until the end of October at which time the applicant would still have had an opportunity to take whatever steps necessary. Counsel submits the Vice-President of Finance who responded to the application would have been in a position to know about the collective agreement with the Operating Engineers.
Counsel for the applicant Teamsters submits the Board should not make a finding that the collective agreement does not apply. What the Board should find is that the employer cannot raise the collective agreement as a bar because it is not timely. Counsel for the applicant Teamsters submits the Board should not deal with the collective agreement itself but should reconsider its decision to allow the employer to raise the Road, Sewer and Watermain Agreement as a bar to the Teamster’s certification application.
DECISION
Counsel for the applicant Teamsters urges the Board to find that the employer cannot raise an existing collective agreement as a bar to the application for certification because of undue delay. In the alternative if the employer is allowed to raise that collective agreement, the applicant asserts the persons in the voting constituency are not covered by the classifications in the Operating Engineers Road, Sewer and Watermain Agreement.
While the Board recognizes the lost opportunity of the applicant to reapply during the open period had the employer raised this other collective agreement in a timely fashion, the Board cannot ignore the fact that there is a collective agreement which may cover some of the classifications of work performed on the application date.
Having considered the submissions of the parties and the cases cited the Board is not persuaded to disregard the Operating Engineer’s collective agreement because the employer delayed in raising its existence.
That leaves the issue of whether the work performed by the persons in the voting constituency on the application date falls within any of the classifications of the Operating Engineers’ agreement. The Board was provided with colour photographs of the type of equipment being used on the application date. Exhibits 1, 2 and 3 were put before the Board on agreement of the parties.
No. 2 on the voters’ list, the tandem dump truck driver, is not in dispute. The remaining persons are in dispute. The employer asserts they are covered in classification 5 of the Operating Engineers Road, Sewer and Watermain Agreement. The applicant takes the position that they are not.
The parties had agreed to advise the Registrar on how they wished to proceed in light of the above decision.
“Inge M. Stamp”
for the Board