0281-01-R Construction Workers Local 53, affiliated with the Christian Labour Association of Canada, Applicant v. Ogilvie Electric Inc., Responding Party.
BEFORE: Harry Freedman, Vice-Chair, and Board Members J. G. Knight and G. McMenemy.
DECISION OF THE BOARD; May 22, 2001
No statement of desire to make representations has been filed with the Board within the time fixed under Rule 62 of the Board's Rules of Procedure following the taking of the representation vote pursuant to the Board's direction of April 27, 2001.
In its decision of April 27, 2001, the Board directed a vote in the following voting constituency because it was not certain whether the responding party employed persons other than journeymen electricians and electrician’s apprentices on the date of application:
all employees in the employ of Ogilvie Electric Inc. in all sectors of the construction industry in The County of Lambton, save and except non-working foremen and persons above the rank of non-working foreman.
On the taking of the representation vote directed by the Board, more than fifty per cent of the ballots cast by employees in the voting constituency were cast in favour of the applicant.
The applicant proposed a bargaining unit limited to journeymen electricians and apprentice electricians. The responding party, in its response, agreed to that description. Prior to the vote, however, the parties agreed to use to the description of the voting constituency as the bargaining unit description.
Despite the parties’ agreement with respect to the description of the bargaining unit, the Board is not satisfied that the bargaining unit description to which the parties agreed is an appropriate bargaining unit in the construction industry. The Board is required, by sections 128(1) and 9 of the Labour Relations Act, 1995, S. O. 1995, c. 1, as amended (the “Act”) to determine in every certification application the unit of employees that is appropriate for collective bargaining. While the parties’ agreement is a factor that the Board may consider, the parties’ agreement is not determinative of that issue.
The Board in Winter and Son Limited, [1966] OLRB Rep. Oct. 899 expressed concern about an “all employee” bargaining unit in the construction industry at page 890:
It has been the practice of the applicant union to organize and bargain collectively on an “all employee” or industrial basis and not on a craft basis as is the normal practice in the construction industry. The Board has recognized this practice in the past and has issued certificates to the applicant as well as to a few other unions, in terms of “all employees”. However, in recent cases, the Board has expressed concern about bargaining units of construction employees being all inclusive, as they are when described in terms of “all employees”. See for example: Mannix Co. Ltd., [1965] OLRB Rep. Jan 526 and A. K. Penner & Sons Ltd., [1966] OLRB Rep. Oct. 493. Such units may well lead to jurisdictional disputes particularly where only one or two trades are employed at the date of the making of the application or where an employer decides to expand the scope of his business. We have therefore come to the conclusion that, as a general rule, unrestricted all employee units should be avoided in construction industry cases. Rather, in our view, where a union seeks a unit, other than a craft unit, that unit should be described in terms of the trades on the job at the date of the making of the application.
The practice discussed by the Board in Winter and Son Limited has been applied by the Board in construction industry certification applications since that decision.
- In Duron Ontario Limited, [1976] OLRB Rep. Nov. 734 the Board pointed out that trade unions such as the Christian Labour Association of Canada are not craft unions and therefore cannot satisfy the necessary criteria to obtain certification in respect of a craft bargaining unit under what is now section 9(3) of the Act. The Board at page 737 wrote:
The appropriate bargaining unit for such trade unions are determined pursuant to section 6(1) [now 9(1)]. In the event that such trade unions are apply for certification in situations where an employer has only employees of a particular craft or classification at work on the date of filing [the application for certification], then such trade union is usually granted certification with respect to such particular craft or classification pursuant to section 6(1), for example, “carpenters and carpenters’ apprentices” or electricians and electricians’ apprentices”. Such bargaining units resemble in description similar craft units which in appropriate situations are determined pursuant to section 6(2) [now 9(3)]….In the event that an employer has employees of more than one craft or classification at work on the date of filing, then a trade union which does not satisfy the provisions of section 6(2) is not permitted to selectively seek certification for only one craft or classification, rather the appropriate bargaining unit consists of all unrepresented employees designated by their craft or classification who were at work on the date of filing….
See also Sterling Tile Limited, [1970] OLRB Rep. Feb. 1346 and Fielding Construction Company, [1970] OLRB Rep. Jan. 1205. In A.N. Shaw Restoration Ltd., [1981] OLRB Rep. March 241 the Board explained that although non-craft unions such as the Christian Labour Association of Canada could be certified to represent all of the unrepresented trades employed on the date of the application and receive a certificate in which those trades were specifically identified, the bargaining units they represented were actually all employee units as of the application date. The Board stated at page 242:
This was still, in effect, an “all employee” unit, but frozen as of the date of application, so as to minimize the potential for jurisdictional disputes which subsequent accretions to the unit might cause.
Although the voting constituency was described in terms of all employees of the responding party, the only persons who attended at the vote were electricians and electricians’ apprentices. Furthermore, the Board is satisfied on the basis of the material before it that the responding party did not, on the application date, employ any person to perform construction work other than journeyman electricians and electricians’ apprentices. Thus, the Board finds that all journeymen electricians and electricians’ apprentices in the employ of Ogilvie Electric Inc. in all sectors of the construction industry in the County of Lambton, save and except non-working foremen and persons above the rank of non-working foreman constitute a unit of employees appropriate for collective bargaining.
A certificate will issue to the applicant.
The Registrar will destroy the ballots cast in the representation vote taken in this matter following the expiration of 30 days from the date of this decision unless a statement requesting that the ballots should not be destroyed is received by the Board from one of the parties before the expiration of such 30-day period.
The responding party is directed to post copies of this decision immediately, adjacent to the "Notice of Vote and of Meeting" posted previously. These copies must remain posted for a period of 30 days.
“Harry Freedman”
for the Board