1541-01-R International Brotherhood of Electrical Workers, Construction Council of Ontario, Applicant v. Konecranes Canada Inc. o/a Crane Pro Services, Responding Party.
BEFORE: David A. McKee, Vice‑Chair, and Board Members G. Pickell and A. Haward.
DECISION OF THE BOARD; September 5, 2001
This is an application for certification filed under the construction industry provisions of the Labour Relations Act, 1995 (the "Act").
The Registrar has certified that the applicant had been found to be a trade union in an earlier proceeding under the Act. Therefore, having regard to the Registrar’s certificate and section 113 of the Act, the Board finds that the applicant is a trade union within the meaning of section 1(1) and section 126 of the Act. Pursuant to the designation issued by the Minister under section 153(1) of the Act on December 12, 1977, the designated employee bargaining agency is the International Brotherhood of Electrical Workers and the IBEW Construction Council of Ontario.
The responding party filed its response with the Board within the time stipulated by Rule 135 of the Board's Rules of Procedure.
It appears to the Board on an examination of only the information provided in the application and the information and membership evidence filed by the applicant (see section 8(3) of the Act), that not less than forty per cent of the individuals in the bargaining unit proposed in the application for certification were members of the union at the time the application was made.
The Board has a concern about the nature of the membership evidence submitted in these applications. The applicant is the International Brotherhood of Electrical Workers, Construction Council of Ontario (“the Council”). The Council is also the Employee Bargaining Agency. As such it is entitled to bring the application on behalf of all affiliated bargaining agents. As a council, it is entitled to bring an application on behalf of its members. The Registrar has advised that the Council has been found to be a trade union in an earlier proceeding under the Act. Therefore, having regard to the Registrar’s certificate and section 113 of the Act, the Board finds that the Council is a trade union within the meaning of section 1(1) and section 126 of the Act.
The membership evidence is in two forms. All of the evidence is in the form of a pre-printed document. It is entitled:
“Application for Membership in International Brotherhood of Electrical Workers, Local Union 804”
The text of the documents states as follows:
“I hereby make application to become a member of the International Brotherhood of Electrical Workers Local Union 804. In doing so, I, of my own free will and accord, hereby authorize the Local Union or its representatives or officers to act for me as collective bargaining agent in all matters pertaining to my employment.”
Half the applications are simply filled in and dated and, in this form, are acceptable as membership evidence in Local 804.
Half of the applications have been altered to strike out the numbers “804” in the heading and the text of the application form. These documents too are properly filled in, signed and dated. While the truncated reference to “Local Union” may be ambiguous, the Board is satisfied that this represents an application to become a member of the International Brotherhood of Electrical Workers (the “International”).
Insofar as this is an application in the Industrial Commercial and Institutional sector of the construction industry, that does not appear to be material. The International Brotherhood of Electrical Workers is part of the Employee Bargaining Agency, and as such is an affiliated bargaining agent (see section 151(1)).
However, insofar as this application relates to other sectors of the construction industry, or the same membership evidence is applied to the “companion” applications brought pursuant to the general provisions of the Act, there may be a problem. A certified council is entitled to bring an application for certification in its own name. It may rely on membership evidence which is evidence of membership in any constituent member of the council. Thus membership in Local 804 is an appearance of membership in the Council since Local 804 is listed as a member of the Council. However, it is not clear that membership in the International Brotherhood of Electrical Workers is. Membership in an international union is not the same as membership in a local union. The applicant has listed the constituent members of the Council on Schedule “A” to the application. The International Brotherhood of Electrical Workers is not listed as a member.
The membership evidence is sufficient “appearance of membership” to cause the Board to order a vote: see Black Photo Corporation [1997] OLRB Rep. May/June 347. However, if any party wishes to address this matter further, it may do so following the holding of the representation vote. Since the Black Photo Corporation decision depended on the actual constitutional arrangements within UNITE (the applicant union) and its District Council, the decision to hold a vote may be something the Board will reconsider, if sufficient cause is shown.
The responding party has filed a timely notice under section 8.1. Because of the uncertainty with respect to the status of the responding party as an employer in the construction industry, and because the notice under section 8.1 is possibly relevant depending on the outcome of any issues relating to the membership evidence, the ballot boxes will be sealed until the Board orders otherwise or the parties agree to open the boxes and count the ballots.
The responding party asserts that it is not a construction employer. This is a matter which can be dealt with after the representation vote is held.
This application is brought one day before four applications filed under the general provisions of the Act (Board File Nos. 1547-01-R, 1548-01-R, 1549-01-R and 1550-01-R). The membership evidence is the same for this application and the four general applications. The Board presumes that the union has made the applications in the alternative; that is, if the Board finds that the responding party is not an employer in the construction industry, the applicant seeks to be certified under the general provisions of the Act. However, the applications were filed on different days, and the possible outcomes are not easily determined at this stage. At least in theory (i.e., assuming a dramatic change of the nature of the work done between the two application dates) certificates could issue in all five applications. The responding party is not clear about what position it is taking when it says it is not a construction employer. Does this mean that it is a non-construction employer within the meaning of section 126? Is it saying the work performed on the application date was not work in the construction industry? In order that the Board can adequately address this matter after the representation vote, each ballot will be segregated.
The responding party asserts that there are no employees in the applicant’s bargaining unit. However, it states that 31 employees might be electricians, but that on the application date they were not engaged in crane installation work. The issue is whether or not the persons involved are electricians engaged in work in the construction industry, regardless of the type of machinery or structures on which they were engaged on the application date. The Board will use the list of employees submitted by the responding party for the purposes of this application. However, the Board directs the responding party to file a list of the persons it states are electricians or electrician’s apprentices who were at work on the application date.
The Board finds that this is an application for certification within the meaning of section 128 of the Act and is an application made pursuant to section 158(1) of the Act which provides that:
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.
The Board further finds, pursuant to section 158(1) of the Act, that all electricians and electricians’ 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 electricians and electricians’ apprentices in the employ of the responding party in all other sectors of the construction industry in the Counties of Essex and Kent; the Counties of Oxford, Perth, Huron, Middlesex, Bruce, and Elgin; the Regional Municipality of Waterloo (except that portion of the geographic Township of Beverly annexed by North Dumfries Township); the City of Toronto, the Regional Municipalities of Peel and York, the Towns of Oakville and Halton Hills and that portion of the Town of Milton within the geographic Townships of Esquesing and Trafalgar, and the Towns of Ajax and Pickering in the Regional Municipality of Durham; the District of Thunder Bay; the District of Kenora including the Patricia portion; the Regional Municipality of Hamilton-Wentworth, the City of Burlington, that portion of the geographic Township of Beverly annexed by North Dumfries Township and that portion of the Town of Milton within the geographic Townships of Nassagaweya and Nelson, save and except non-working foremen and persons above the rank of non‑working foreman, constitute a unit of employees of the responding party appropriate for collective bargaining.
Having regard to the Board's finding as to the appropriate bargaining unit, the Board directs that a representation vote be taken of the individuals in the following voting constituency:
all electricians and electricians’ apprentices in the employ of Konecranes Canada Inc. o/a Crane Pro Services in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and all electricians and electricians’ apprentices in the employ of Konecranes Canada Inc. o/a Crane Pro Services in all other sectors of the construction industry in the Counties of Essex and Kent; the Counties of Oxford, Perth, Huron, Middlesex, Bruce, and Elgin; the Regional Municipality of Waterloo (except that portion of the geographic Township of Beverly annexed by North Dumfries Township); the City of Toronto, the Regional Municipalities of Peel and York, the Towns of Oakville and Halton Hills and that portion of the Town of Milton within the geographic Townships of Esquesing and Trafalgar, and the Towns of Ajax and Pickering in the Regional Municipality of Durham; the District of Thunder Bay; the District of Kenora including the Patricia portion; the Regional Municipality of Hamilton-Wentworth, the City of Burlington, that portion of the geographic Township of Beverly annexed by North Dumfries Township and that portion of the Town of Milton within the geographic Townships of Nassagaweya and Nelson, save and except non-working foremen and persons above the rank of non‑working foreman.
The vote will be held on September 7, 2001. Vote arrangements are set out on the attached "Notice of Vote and of Meeting".
The responding party is directed to post copies of the application for certification, the “Notice to Employees of Application for Certification”, this decision and the "Notice of Vote and of Meeting" in a location or locations where they are most likely to come to the attention of those individuals who are eligible to vote.
All individuals who were employed by Konecranes Canada Inc. o/a Crane Pro Services and at work in the voting constituency on August 28, 2001 are eligible to vote.
Voters will be asked to indicate whether or not they wish to be represented by the applicant in their employment relations with the responding party.
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, other than status disputes, 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 five days (excluding Saturdays, Sundays and holidays on which the Board is closed) of the date on which the vote is taken. Representations with respect to any status dispute must be made in accordance with the directions provided in Information Bulletin No. 9: Status Disputes in Certification Applications in the Construction Industry.
This matter is referred to the Registrar.
“David A. McKee”
for the Board