Construction Workers Local 53 v. Fahringer Mechanical Contractors Limited
0119-01-R Construction Workers Local 53, affiliated with Christian Labour Association of Canada, Applicant v. Fahringer Mechanical Contractors Limited, Responding Party.
1739-01-R International Brotherhood of Electrical Workers, Local 773, Applicant v. Union Energy Inc. c.o.b. as Fahringer Mechanical, Responding Party v. Construction Workers Local 53, CLAC, Intervenor.
1740-01-R International Brotherhood of Electrical Workers, Local 773, Applicant v. Union Energy Inc. c.o.b. as Fahringer Mechanical, Responding Party v. Construction Workers Local 53, CLAC, Intervenor.
1859-01-U International Brotherhood of Electrical Workers, Local 773, Leon Leblanc, Applicants v. Union Energy Inc. c.o.b. as Fahringer Mechanical, Construction Workers Local 53, Christian Labour Association of Canada, Responding Parties.
BEFORE: David A. McKee, Vice-Chair, and Board Members G. Pickell and A. Haward.
DECISION OF THE BOARD; November 22, 2001
1Board File No. 0119-01-R contains an application for reconsideration of the certificate issued by the Board on May 11, 2001, as amended on September 16, 2001. In that case the Board certified the Construction Workers Local 53, affiliated with Christian Labour Association of Canada (“CLAC”) for a bargaining unit of, inter alia, journeymen and apprentice electricians in the employ of Fahringer Mechanical Contractors Limited (“Fahringer” or the “Employer”). The International Brotherhood of Electrical Workers Local 773 (“IBEW”) seeks reconsideration of this certificate. It has also filed an application under section 96, relying on the same facts and seeking relief which, in part, amounts to the same thing. The IBEW is also the applicant in the two applications for certification filed on September 21, 2001 (Board File No. 1739-01-R and 1740-01-R) seeking to be certified for different units of journeymen and apprentice electricians in the employ of Fahringer.
2The application for reconsideration was filed more than 20 days after the May 11, 2001 decision. This time limit is one found in the Board’s rules and not the statute, and is made subject to the Board’s discretion to entertain the application even if it is filed after that time.
3In the narrow sense, the IBEW has the necessary basis of membership support to give it the standing to make the request: the IBEW represents at least one employee who is affected by the Board’s decision: Coons Heating & Sheet Metal Limited, [1978] OLRB Rep. June 525 and Atlantic Packaging Products Ltd., [1980] OLRB Rep. Jan 4. Further, Mr. Leon LeBlanc is a co-applicant in the unfair labour practice application and was employed in the bargaining unit on the date CLAC made its original application. The fact that the IBEW has standing to make the request and the application is, however, only the first step.
4The real question is whether the allegations made are such as to cause the Board to entertain both the request for reconsideration and the section 96 application. The fact that an applicant employee, by him- or herself or through a trade union, was in the bargaining unit at the date of the original application is not in and of itself grounds to entertain an application for reconsideration: Zaph Construction Ltd., [1977] OLRB Rep Nov 741 and Delcron Electric Ltd., [1976] OLRB Rep July 362. The interests of finality dictate that the Board will entertain few issues on reconsideration once a certificate is issued. Otherwise, a certified trade union might be subject to an endless series of applications for reconsideration by employees who had gained the support of a rival trade union, at a time when its is facing its greatest difficulty in developing its representation of the bargaining unit. The real question is whether the issue raised is one that is of sufficient gravity to cause the Board to exercise its discretion to entertain the application.
5In this case, the Board concludes that the issue raised is of sufficient gravity to warrant permitting the applications to proceed. The allegation is, essentially, that Fahringer sought out and chose CLAC as bargaining agent for its employees. If this is true (and it must still be proven), such an arrangement strikes at the heart of the Act, one of the purposes of which is:
- To facilitate collective bargaining between employers and trade unions that are the freely-designated representatives of the employees.
In addition, the Board notes that the consequences of section 15 are duplicated to some extent in section 53 which provides:
- An agreement between an employer or an employers' organization and a trade union shall be deemed not to be a collective agreement for the purposes of this Act if an employer or employers' organization participated in the formation or administration of the trade union or contributed financial or other support to the trade union.
6It would be an absurd situation if an employee were able to attack the validity of a collective agreement on the day after that collective agreement was executed on the basis that the collective agreement was not, pursuant to section 53 of the Act, a collective agreement, but nonetheless be forced to accept continuing representation by a bargaining agent which could not bargain a collective agreement for him or her.
7While it is true that the employee(s) represented by the IBEW could have raised these issues before the certificate was issued to CLAC, that is not a reason not to hear this application. If the facts are true, they themselves provide a good reason why no employee would come forward. If they are not true, the application will be dismissed in any event.
8That is not to say that the IBEW does not have some serious evidentiary problems. A brief review of the pleadings suggests otherwise. However, the Board will entertain the request for reconsideration and the section 96 application.
9The Registrar is directed to set all four of these files down for hearing before the same panel. Since this panel issued the original certificate in Board File No. 0119-01-R, that would normally be this panel, unless the Board decides to schedule it before a differently composed panel. The first issues to be dealt with are those arising out of both the application for reconsideration and the section 96 complaint.
“David A. McKee”
for the Board