0009-01-R Labourers’ International Union of North America, Ontario Provincial District Council, Applicant v. S.S.T. Contracting Ltd., Responding Party v. Operative Plasterers’, Cement Masons’, Restoration Steeplejacks International Association of the United States of Canada, Union Local 598, Intervenor.
BEFORE: Inge M. Stamp, Vice-Chair, and Board Members G. Pickell and G. McMenemy.
APPEARANCES: John Moszynski, Henry Perreira and Carlos Dionisio for the applicant; Brian F. Weinert and Joe Gheda for the responding party; Michael A. Church and Steve Zarich for the intervenor.
DECISION OF THE BOARD; November 13, 2001
This is an application for certification pursuant to the construction industry provisions of the Labour Relations Act, 1995 (the “Act”). A vote was held and the ballot box was sealed. The Board (differently constituted) in its decision dated May 4, 2001 outlined the issues in dispute between the parties and scheduled the matter for hearing.
Paragraph 3 of the Board’s decision dated May 4, 2001, identifies three issues:
(1) Can the Labourers bring this application or are they precluded by their designation order?
(2) What work were the employees performing on the application date?
(3) Have the Restoration Steeplejacks adequately particularized their allegations of misconduct?
- The Labourers’ union applied to displace a unit of employees represented by the intervenor, Local 598. The applicable collective agreement is the provincial ICI agreement between the Operative Plasterers’ and Cement Masons International Association of the United States and Canada, Local Union Number 598 Restoration Steeplejacks (the designated employee bargaining agency) and the Steeplejack and Masonry Restoration Contractors Association (the designated employer bargaining agency). The bargaining unit in the provincial collective agreement is described as follows:
“The employer recognizes Local 598 as the sole and exclusive bargaining agent for all employees, save and except those above the rank of working foreman.”
- On the application date the responding party employed six persons. Four employees were working at 44 Walmer Road, an apartment building. The employees were engaged in concrete balcony restoration work. The employees chipped away the loose and deteriorating concrete on the balconies with chipping guns. The parties do not dispute this project is in the non-ICI sector of the construction industry. Two employees were at work on the application date at the 179 John Street jobsite in Toronto. The employees were taking down suspended ceilings and the ceiling grid. The parties agree that jobsite is in the ICI sector of the construction industry
ARGUMENT - APPLICANT
The applicant submits the work performed at Walmer Road is Labourers’ work and that the Labourers have been certified by the Board to do that work. The intervenor, Local 598, claims this is steeplejack work.
It is not disputed that on the application date all of the employees working for the responding party were members of Local 598 and were working under the terms and conditions of the provincial collective agreement. (ICI agreement).
The intervenor, Local 598, takes the position that the applicant does not have status to bring this application. Pursuant to the ICI provisions of the Act the applicant cannot lawfully represent the bargaining unit it has applied for. The applicant can only apply for its designated group of employees in the ICI sector. The intervenor asserts that this issue has been dealt with and decided in Clifford Restoration Limited, [1999] OLRB Rep. Jan./Feb. 4.
The applicant Labourers submit that their designation orders cover the work in question and section 158 of the Act does not bar them from filing this application. The applicant further asserts that the decision in Clifford Restoration Limited, supra, is not a decision in rem and therefore is not a decision that has determined the issue as between these two parties. The applicant submits that the Clifford Restoration Limited, supra, case is not applicable in these circumstances and was in any event incorrectly decided.
The applicant submits that at all material times the employees were engaged in restoration work and not steeplejack work. The applicant further asserts that it is attempting to displace bargaining rights currently held by the intervenor, Local 598. The applicant’s understanding is that it is required to apply for the bargaining rights for which the intervenor holds bargaining rights.
It is the applicant’s position that employees have a statutory right under the Act to change their bargaining agent. The Board must be satisfied that the Act explicitly prohibits the employees from freely choosing their bargaining agent.
The collective agreement is an all employees, all sector agreement. The designation order for Local 598 entitles it to bargain for all masonry restoration employees. There is no mention of steeplejacks in the designation order for the intervenor.
The Labourers are designated for two groups that are relevant to this issue. The Labourers’ ICI designation orders refers to construction labourers and all employees engaged in cement finishing waterproofing and restoration work.
It is the applicant’s view this is a very simple case where the designation orders overlap as they do with respect to certain other trades, one of the clearest overlaps which involves Local 598 with respect to cement masons and/or cement finishers. The Board has always accepted that because cement masons are in Local 598 and cement finishers are in the Labourers designation order, the two unions have been entitled to raid each other with respect to cement masons or cement finishers.
Counsel for the applicant further submits these two trades have been fighting that particular battle for the last 25 years.
Counsel cited the following cases in support of the applicant’s position: Gottcon Contractors Limited, [1990] OLRB Rep. Jan. 25; Doug Chalmers Construction Limited, [1990] OLRB Rep. July 788; Duron Ottawa Ltd., [1983] OLRB Rep. Oct. 1639; Duron Ontario Limited, [1976] OLRB Rep. Nov. 734.
Counsel for the applicant disagrees with the comments in paragraph 13 of the decision in Lumber and Sawmill Workers Union, Local 2693, [1987] OLRB Rep. Dec. 1556. That paragraph states in part: “For example, the labourers union represented units of plasterers as well as units of employees engaged in restoration and waterproofing work, often referred to as “steeplejacks”, both of which groups had traditionally been represented by the Operative Plasterers and Cement Masons International Association of the United States and Canada. Because of this, the designation for the labourers employee bargaining agency covers not only labourers, but the other two classifications as well. Counsel states there is no separate designation order for ICI steeplejacks. This special claim does not exist.
The applicant argues that even if this special claim does exist the collective agreement is not limited to only the designated trade and it is not limited to the ICI sector and was applied to work other than restoration work in the ICI sector. Even if the intervenor has an exclusive right to steeplejack work there was no such work being done on the ICI project on the application date.
The applicant submits it is entitled to the existing bargaining unit because it is more than an ICI bargaining unit and therefore the displacement policy has to apply. With respect to the ICI sector the applicant asserts it is entitled to represent employees engaged in restoration work.
Counsel asserts section 158 of the provincial bargaining scheme does not prohibit this application. If the applicant is successful all of the employees in the bargaining unit currently covered by the intervenor would be bound by the applicant’s provincial agreement.
The Labourers are designated to represent employees engaged in restoration work and these employees chose representation by the applicant.
ARGUMENT – INTERVENOR
Counsel for the intervenor submits this is a straightforward issue. The applicant, Labourers, is a designated employee bargaining agency (EBA) and is raiding the bargaining unit of a provincially designated EBA.
It is necessary to look at the collective agreement as a whole not just the recognition clause. The collective agreement is between the two designated EBAs and provides for steeplejack and restoration work. Article 11:01 of the collective agreement describes the work performed by restoration steeplejacks.
The employees were working under the collective agreement, which is a province-wide craft agreement. Appendix A of the collective agreement sets out the journeyman program for the trade.
Local 598 has been found a successor to Local 172 referred to in the employee designation order in Board File No. 3289-95-R.
Counsel referred to the Report of the Industrial Commission into bargaining patterns in the Construction Industry in Ontario issued in May of 1976. The report made reference to “two province-wide agreements for steeplejacks and waterproofing….” Under the Plasterers union.
The decision in Clifford Restoration Limited, supra, makes reference to the quid pro quo where the building trades are confined to their crafts or trades and in return the building trades union have a near representational monopoly in the ICI sector for the trades they have traditionally represented or bargained for. Under the ICI provisions there is no absolute right to chose which union can represent you.
Counsel for the intervenor submits this issue is res judicata or issue estoppel. It is a decision in rem and counsel refers to paragraph 11 of the Board’s decision in Construction Association of Thunder Bay Inc., [1987] OLRB Rep. July 976 which sets out the Doctrine of Res Judicata.
The intervenor takes the position that this issue has been decided by the panel chaired by then Vice-Chair Surdykowski in Clifford Restoration Limited, supra. That decision involved two of the three parties. That panel of the Board decided that the Labourers Local 506 was not entitled to raid a steeplejack bargaining unit.
As in the earlier case the work performed on the application date was work performed under the cement masons steeplejacks provincial agreement. There is no dispute that the employees were doing restoration work and were working under the collective agreement. The Labourers are trying to represent steeplejacks but they cannot do that in the ICI sector.
Counsel for the intervenor takes the position that the cement mason craft cases are not relevant to this issue. None of the other cases deal with steeplejacks or restoration work.
Counsel submits this issue has been decided by the earlier decision in Clifford Restoration Limited, supra, and the Board should uphold that decision.
The intervenor indicated that it is not pursuing its allegations contained in paragraphs 8 through 10.
DECISION
This is a displacement application brought by the Labourers’ International Union of North America, Ontario Provincial District Council. The applicant is seeking to displace a bargaining unit of steeplejacks covered by the ICI employee designation described in terms of “…. all masonry restoration employees….”. The employer designation refers to the Steeplejack and Masonry Restoration Contractors Association as the designated employer bargaining agency.
The question to be answered is “can the Labourers bring this application or are they precluded by the designation orders”? The employees were members of the intervenor, Local 598 and were at work pursuant to the steeplejack provincial collective agreement on the application date. Whether or not all of the employees were engaged in masonry restoration work in the ICI sector is not determinative of the issue before the Board. The applicant is seeking to displace a province wide steeplejack unit. The employees affected by this application were at work under the provincial collective agreement.
The issue then becomes whether or not the earlier decision in Clifford Restoration Limited, supra, which is referred to as the Surdykowski decision dated February 3, 1999 should apply in these circumstances.
That decision discusses at length the provincial scheme with respect to the ICI provisions in the Act. It also deals with what the applicant asserts is a denial of rights of employees to freely chose their bargaining agent. In the ICI sector there are restrictions or limitations on a persons choice of bargaining agent by virtue of the ICI legislation in the construction industry.
The intervenor asserts the Surdykowski decision applies equally to the present case. The applicant is of the view that they are not the same parties and therefore this decision should not apply to these circumstances. Further the applicant states that the Clifford Restoration Limited, supra, decision is wrong.
The intervenor, Local 598, is the same party in both applications. The applicant in the earlier proceeding was the Labourers International Union of North America, Local 506. The applicant in the present application is the Labourers International Union of North America, Ontario Provincial District Council.
The Labourers Local 506 is a constituent member of the employee bargaining agency, the Ontario Provincial District Council of the Labourers union. The bargaining unit the applicant is seeking to displace is an ICI unit covered by the province wide collective agreement for the steeplejacks’ designated trade of masonry restoration employees.
The decision in the earlier proceeding dealt squarely with this issue. Counsel for the applicant argues that the applicant in this case is a different applicant, although, the provincial and/or international body of the same union. The responding parties are different but both were bound to the same provincial steeplejacks collective agreement between the employer EBA and the employee EBA.
The bargaining unit that the applicant is seeking to displace in the instant application is covered by the same provincial collective agreement as the bargaining unit in the earlier application in Clifford Restoration Limited, supra. It would be a strange result if the Labourers union could displace a bargaining unit covered by the steeplejacks ICI agreement in this case when the Board found that one of its ABAs was not able to bring such an application because its designation did not cover steeplejacks. If the Board were to find that this was an appropriate displacement application all of the ABAs would acquire bargaining rights for this employer who is represented by the Steeplejack and Masonry Restoration Contractors Association, the designated employer EBA. The applicant points out that the work performed on the application date in the instant case differs from the work that was performed in the Clifford Restoration Limited, supra. However that is not determinative of this issue. What is critical is that the applicant is seeking to displace a bargaining unit of a specific designated employee group which the Board has found previously this applicant is not entitled to represent.
We adopt the reasons and the analysis in the Clifford Restoration Limited, supra. Without setting out the entire decision the following paragraphs are illustrative:
That position could not be sustained in a purposive approach to the designations and province‑wide bargaining. The Labourers' position assumes an overlap between the Labourers' general designation and the Cement Masons' steeplejack designation. Overlaps between designations are not to be assumed. On the contrary, designation orders are to be strictly construed in order to reduce the number and extent of overlaps (see paragraphs 12‑14, above). Further, as the Board observed more than seventeen years ago in Ninco Construction, supra, cement finishing, waterproofing and restoration work, so phrased, are not recognized as separate trades (although they may, with respect, be classifications). Rather, they are kinds of work performed by construction employees, which work is not necessarily monopolized by one trade. In this case, masonry restoration work in the general sense is work which may be done by construction labourers or steeplejacks, both of which are recognized trades. This may be a source of a jurisdictional dispute (something which the Board takes no notice of in an application for certification), but it does not suggest that the Labourers Union has any representational claim to ICI steeplejacks. The fact that steeplejacks are a subset of the larger category of employees engaged in masonry restoration and waterproofing work did not assist them in this application. The fact that it was considered appropriate to make a separate designation order specifically for ICI steeplejacks, in the context of an overall structure which is based on representational separation, suggests that the intention was to remove steeplejacks from the more general category of employees broadly classified as construction labourers, or at least employees who were sufficiently like construction labourers that it was appropriate to include them in the labourers' designation order. That is, the Cement Masons' specific claim to steeplejacks trumps the Labourers' claim which is based upon their inclusion in a general category of employees.
It was also useful to compare with the Labourers' general employer bargaining agency designation with the Cement Masons' steeplejacks employer bargaining agency designation. The steeplejacks employer bargaining agency is the Steeplejack and Masonry Restoration Contractors Association. That employers' organization is not part of the general construction labourers employer bargaining agency. If the intention had been to include steeplejacks in the construction Labourers' general designation, one would have expected that the organization which represents the employers who employ them to be included in the employer's designation. It is not, although the Ontario Masonry Contractors Association of Ontario, and the Waterproofing Contractors Association of Ontario, both are. This suggests an employment separation between steeplejacks and other masonry restoration or waterproofing employees. This is not to suggest that there must necessarily be (indeed there is not) an overlap between employer designations whenever there is an overlap between employer bargaining agency designations, particularly when it is well known that there are competing employer organizations which have evolved in lockstep with one of the two or more trade unions which have historically represented the employees (plasterers, for example) in question. However, the comparison in this case suggests a separation rather than a competition between rival employer organizations.
In the result, the Board was satisfied that the labourers' general designation relied upon as the basis for this application does not cover steeplejacks. That being the case, and this being a section 158(1) application which appears to relate only to ICI steeplejacks (and there being no suggestion that there were any non‑ICI steeplejacks employed on the date of application, nor any request to convert this into a section 158(2) non‑ICI application), the Board dismissed the application as aforesaid.
Labourers Local 506 is an affiliated bargaining agent of the present applicant, the International and the Ontario Provincial District Council. The unit the Labourers union was seeking to replace in 1999 and in the current application is the same bargaining unit covered by the same ICI agreement albeit for a different employer. If the Board were to find otherwise it would in effect grant the bargaining rights to Local 506 as an ABA of the EBA pursuant to the ICI provisions of the Act that the Board (differently constituted) found previously in Clifford Restoration Limited, supra it could not represent.
Having considered the parties submissions and the cases cited the Board finds that the result in Clifford Restoration Limited, supra, is correct and is applicable in these circumstances.
This application is dismissed.
The Board directs the parties’ and the employees’ attention to section 10(3) of the Act. Should an application for certification be filed within one year of the date of this decision, the effect, if any, of this decision and section 10(3) of the Act on that subsequent application may be determined, if necessary, at that time.
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, in a conspicuous location(s) where it is likely to come to the attention of the employees affected by this application. These copies must remain posted for a period of 30 days.
“Inge M. Stamp”
for the Board