1990-01-R Universal Workers Union, Labourers’ International Union of North America Local 183, Applicant v. Primeline Plumbing Ltd., Responding Party.
BEFORE: Harry Freedman, Vice-Chair and Board Members G. Pickell and A. Haward.
DECISION OF THE BOARD; October 22, 2001
1This is an application for certification under the construction industry provisions of the Labour Relations Act, 1995, S.O. 1995 c.1 as amended (the "Act") that was filed on October 17, 2001.
2The 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 sections 1(1) and 126 of the Act.
3The Board is satisfied 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 appear to be members of the applicant at the time the application was made.
4The responding party was duly served with the application material on October 17, 2001, according to the Certificate of Delivery filed by the applicant and filed its response with the Board within the time stipulated by Rule 135 of the Board's Rules of Procedure.
5The applicant submitted that the appropriate bargaining unit should be described in terms of plumbers and plumbers’ apprentices working in all sectors of the construction industry excluding the industrial, commercial and institutional sector in Board Areas 8 and 9. The applicant pointed out that the only unrepresented trades at work for the responding party on the application date were plumbers. The responding party agrees that the description of the appropriate bargaining unit should refer only to the plumbing trade but contends that the geographic area of that bargaining unit should include Board Area 18 in addition to Board Areas 8 and 9.
6The applicant pointed out that the employees it seeks to represent were working for the responding party on the application date on residential building projects in Toronto and in Whitby (Board Areas 8 and 9). The responding party submits that in addition to those two projects, its employees were also working on the application date on a residential project in Beeton, which comes within Board Area 18. The responding party submits that its employees move between and among its projects in different Board areas on a regular basis. It points out that the two employees who were working in Board Area 18 on the date of the application had been working in Board Area 8 on the two days immediately preceding the application date and again two days after that date. It argues that the appropriate bargaining unit should not impede the responding party’s ability to manage its business effectively which would happen if some employees were in the bargaining unit and some were not. It also argues that creating a pocket of unrepresented employees would fragment collective bargaining and create obstacles to the flexibility necessary to move employees among its job sites so that employees can be transferred to the locations where work has to be carried out.
7The Board, in determining an application for certification in the construction industry, looks at the date of application when assessing the composition of the bargaining unit. See Quadracon, [2000] OLRB Rep. Sept./Oct. 989 at 999; Megatech Electrical Limited, [1999] OLRB Rep. March/April 257 at 260-61; Ken Anderson Electric Inc., [1996] OLRB Rep. Sept./Oct. 846; Smiths Construction Company, [1984] OLRB Rep. March 521 and Colautti Construction, (1986), 86 CLLC ¶14, 06. See also section 127(2) of the Act.
8On the application date, the responding party employed persons in the plumbing trade in three different Board areas. The responding party’s position rests on the assumption that the applicant can be compelled to seek to represent employees in all Board areas in which employees were working on the application date. Section 158(2) of the Act expressly provides to the contrary. That section expressly permits a trade union that is represented by an employee bargaining agency (as is the applicant) to bring an application for certification in respect of all sectors of the construction industry other than the industrial, commercial and institutional sector in a geographic area (as was done in this case) and goes on to provide that the “unit shall be deemed to be a unit of employees appropriate for collective bargaining.” Simply put, the applicant is free to determine what geographic area or areas it may seek to organize. So long as there are employees working in those geographic areas on the date of application, then a bargaining unit described in terms of those areas is an appropriate bargaining unit. Similarly, the Act does not oblige an applicant trade union to attempt to organize all unrepresented employees at work on the application date in every geographic area in which the employer is carrying on construction work on the date of application. See, for example, Harold’s Demolition and Recycling, unreported, Board File No. 1648-99-R, decision dated January 18, 2001, Q.L. cite [2001] OLRD No. 2947, in which the Board stated at paragraph 23:
There is no requirement under the Act for a trade union to apply for a bargaining unit which includes more than one geographic area even if the employer has employees working in a different geographic area which would fall outside of the bargaining unit.
See also Dagmar Construction Limited, [1987] OLRB Rep. April 480 and Beling Cement Construction Limited, [1989] OLRB Rep. July 709.
9In our view, the principles discussed in Harold’s Demolition and Recycling, Dagmar Construction Limited, and Beling Cement Construction Limited apply equally to the matter before us even though those decisions dealt with applications in relation to the industrial, commercial and institutional sector and this application is made in respect of all sectors other than the industrial, commercial and institutional sector. A trade union can seek to represent a group of employees in an appropriate bargaining unit, and in the construction industry, the employees considered in making the determination are those who were working in the bargaining unit on the application date. Clearly, the bargaining unit proposed by the applicant is appropriate for collective bargaining by reason of section 158(2) of the Act. So is the bargaining unit proposed by the responding party. Nevertheless, so long as the applicant’s proposed bargaining unit is appropriate for collective bargaining, the Board will accept it even though the unit proposed by the responding party might also be appropriate. Therefore, as the bargaining unit proposed by the applicant is appropriate for collective bargaining, the Board does not need to consider further the responding party’s submission that the appropriate bargaining unit includes those employees who were working in Board Area 18 on the application date.
10The Board further finds that this application does not relate to the industrial, commercial and institutional sector of the construction industry referred to in section 126 of the Act.
11The Board further finds that all plumbers and plumbers’ apprentices in the employ of the responding party in all sectors of the construction industry excluding the industrial, commercial and institutional sector in 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 and the Regional Municipality of Durham (except for the Towns of Ajax and Pickering), the geographic Township of Cavan in the County of Peterborough and the geographic Township of Manvers in the County of Victoria, 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.
12Having 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 plumbers and plumbers’ apprentices in the employ of Primeline Plumbing Ltd. in all sectors of the construction industry excluding the industrial, commercial and institutional sector in 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 and the Regional Municipality of Durham (except for the Towns of Ajax and Pickering), the geographic Township of Cavan in the County of Peterborough and the geographic Township of Manvers in the County of Victoria, save and except non-working foremen and persons above the rank of non-working foreman.
13The vote will be held on October 24, 2001. Vote arrangements are set out on the attached "Notice of Vote and of Meeting".
14The 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. These copies must remain posted for 30 days.
15All individuals who were employed by PrimeLine Plumbing Ltd. and at work in the voting constituency on October 17, 2001 are eligible to vote.
16Voters will be asked to indicate whether or not they wish to be represented by the applicant in their employment relations with the responding party.
17Any 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.
18This matter is referred to the Registrar.
“Harry Freedman”
for the Board