0578-00-R Labourers’ International Union of North America, Applicant v. 870528 Ontario Limited, o/a Lido Construction Co., Responding Party v. Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America, Intervenor.
BEFORE: Inge M. Stamp, Vice‑Chair, and Board Members G. Pickell and G. McMenemy.
DECISION OF THE BOARD; May 29, 2000
1This is a displacement application for certification by the Labourers for employees of Lido Construction currently covered by the Carpenters’ Local 27’s Low Rise Residential Trim Carpentry Agreement which the applicant asserts is in effect from July 24, 1997 to June 30, 2000. The application was made on May 19, 2000 and would appear to be timely.
2The bargaining unit applied for is described as “all carpenters and carpenters’ apprentices of the Contractor, save and except non-working foremen, those persons above the rank of non-working foremen, office, clerical, and engineering staff, while working in OLRB Area No. 8 on new subdivision work (7 or more units) in residential low-rise buildings (defined as non-elevated housing of not more than four (4) storeys in height excluding basement)”.
3The intervenor, Carpenter Local 27, submits this application is barred as a result of an existing collective agreement between it and the employer for all carpenters and carpenters’ apprentices engaged in residential construction in the Province of Ontario which expires in April 30, 2001. Further the intervenor states this application is barred as a result of the dismissal of the certification application in Board File 4683-99-R pursuant to section 10(3) and/or section 111(2)(k) of the Labour Relations Act, 1995 (the “Act”).
4Board File 4683-99-R was an unsuccessful displacement application for certification by the applicant Labourers. A two-way vote was held of all carpenters and carpenters’ apprentices in the employ of Lido Construction engaged in residential construction in the Province of Ontario, save and except office and sales staff and non-working foremen and persons above the rank of non-working foreman. Voters were asked whether or not they wished to be represented by the Labourers or the Carpenters in their employment relations with Lido Construction. The vote was held on June 24, 1999.
5On July 7, 1999 the Board dismissed the application for certification as “not more than fifty per cent of the ballots cast by employees in the bargaining unit were cast in favour of the Labourers”. Paragraph 4 of that decision states:
The Board will not consider another application for certification by the applicant, the designated employee bargaining agency of which the applicant is an affiliated bargaining agent, or the affiliated bargaining agents, as the bargaining agent of the employees in the bargaining unit until one year elapses from the date of this decision.
6This decision does not address the issue of any subsisting collective agreement or agreements and their effective dates. This decision deals only with the issue of whether there is a bar as a result of an earlier unsuccessful application for certification.
7Counsel for the applicant Labourers in his letters faxed at 10:08 a.m. and at 3:29 p.m. on May 25, 2000 disagrees with the positions taken by the intervenor Carpenters.
8The applicant takes the position that section 160(3) would apply if the applicant were seeking the same bargaining unit as in Board File No. 4683-99-R. Counsel submits it is not the same bargaining unit as it relates to only carpenters performing low-rise residential construction as described in Local 27’s collective agreement.
9Counsel for the intervenor Carpenters takes the position that the persons included in the proposed bargaining unit (carpenters working in low-rise residential construction in Board Area 8) would have been included in the bargaining unit found to be appropriate in the earlier application (carpenters working in residential construction in Ontario). Counsel for the Carpenters asserts this application is barred pursuant to sections 10 and 160 of the Act as well as the decision of the Board in File No. 4683-97-R dated July 7, 1999. In the alternative counsel submits this application should be barred pursuant to section 111(2) of the Act.
10Counsel for the Carpenters submits the current bargaining unit applied for by the Labourers is a “sub-unit” of the bargaining unit applied for in File No. 4683-97-R.
11The intervenor submits this situation is analogous to a situation where a bar was imposed in respect to a unit of full and part-time employees and a subsequent application was filed for full-time employees only.
12In response to the intervenor’s submissions the applicant reiterates its position that the July 7, 1999 decision is not a bar to this application and further states that a bargaining unit restricted to the low-rise portion of the residential sector in one Board Area would not necessarily include all persons previously found to be included in a province-wide unit.
DECISION
13Sections 10, 160 and 111(2)(k) of the Act provide as follows:
- (1) The Board shall certify a trade union as the bargaining agent of the employees in a bargaining unit that is determined by the Board to be appropriate for collective bargaining 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 union.
(2) The Board shall not certify the trade union as bargaining agent and shall dismiss the application for certification if 50 per cent or less of the ballots cast in the representation vote by the employees in the bargaining unit are cast in favour of the trade union.
(3) If the Board dismisses an application for certification under this section, the Board shall not consider another application for certification by the trade union as the bargaining agent of the employees in the bargaining unit until one year has elapsed after the dismissal.
(4) For greater certainty, subsection (3) does not apply with respect to a dismissal under paragraph 7 of subsection 8.1(5).
- (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.
- (1) …
(2) Without limiting the generality of subsection (1), the Board has power,
(k) to bar an unsuccessful applicant for any period not exceeding one year from the date of the dismissal of the unsuccessful application, or to refuse to entertain a new application by an unsuccessful applicant or by any of the employees affected by an unsuccessful application or by any person or trade union representing the employees within any period not exceeding one year from the date of the dismissal of the unsuccessful application;
14In an earlier displacement application the Labourers union attempted to displace the Carpenters union as bargaining agent for carpenters engaged in residential construction work in the province of Ontario. A vote was held and the employees voted in favour of the Carpenters. The Board ruled it would not consider another application for certification by the Labourers as bargaining agent of the employees in the bargaining unit until July 6, 2000.
15A unit of carpenters engaged in residential construction in the province of Ontario would encompass carpenters working in low-rise residential construction in a given Board Area, in this case Board Area 8. If the bar were to be applied in the manner suggested by the applicant, an unsuccessful applicant with respect to a broader bargaining unit could re-apply for portions of the larger unit at different times. This would ultimately defeat the purpose of the one-year bar provided for in setion 111(2)(k) of the Act.
16The Board notes the employer, Lido Construction has not made any submissions with respect to the issues raised in the intervention.
17In the circumstances and pursuant to the Board’s (differently constituted) decision dated July 7, 1999 this application is barred pursuant to section 111(2)(k) of the Act.
“Inge M. Stamp”
for the Board