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; November 8, 2001
This is an application for reconsideration of the Board’s October 22, 2001 decision directing a representation vote in this application for certification and in the course of doing so, determining the appropriate bargaining unit. The responding party seeks reconsideration of that decision in which the Board found that bargaining unit proposed by the applicant was appropriate for collective bargaining. The applicant proposed a bargaining unit comprised of all plumbers and plumbers apprentices employed by the responding party in Board geographic areas 8 and 9 in all sectors of the construction industry excluding the industrial, commercial and institutional sector. The responding party submitted in its response that the bargaining unit should also include Board Area 18 as well as Board Areas 8 and 9 on the grounds that its employees regularly worked in Board Area 18 and in fact two of its employees who were at work in Board Area 18 on the date of application had been working in Board Area 8 two days immediately preceding the application and again two days after that date.
The responding party submits that the Board should schedule a hearing to deal with the issue it has raised about the description of the appropriate bargaining unit. It submits that the Board has misapplied section 158(2) of the Act in finding that two Board areas may be deemed to be an appropriate bargaining unit, that the responding party had never had the opportunity to make representations or objections to the Board’s analysis and finally, that the responding party did not have the time (due to the short time frames for responding) to address fully the factual and legal underpinnings to its submissions that the bargaining unit proposed by the applicant was inappropriate.
With respect to the responding party not having had sufficient opportunity to make its submissions, it has done so in its request for reconsideration. In addition, the Board is prepared to accept as factual all of the statements of fact asserted by the responding party in its request for reconsideration.
The responding party submits that all seven of its employees regularly move between and among its projects in Board Areas 8, 9 and 18. It points out that all employees have similar skills, the same benefits and wage rates. The responding party’s business and human resource functions are all carried out at it single office/shop and that all of its employees start and end their work day at that office/shop location. It submits that the proposed bargaining unit would exclude two of its seven employees and thus would fragment its organization. It goes on to argue that to exclude two employees from the rest does not make labour relations sense.
The responding party, in our view, has confused the composition of the bargaining unit at any one time with the description of the bargaining unit. Employees who work in Board Areas 8 and 9 will, when they are working in those areas, be employed in the bargaining unit. When they work in Board Area 18, they will be excluded from the bargaining unit. Thus, as the employees, who according to the responding party, travel between those three board areas who were in the bargaining unit on the application date will may not be in the bargaining unit at some other times and vice versa. All of the problems to which the responding party adverts would arise if the applicant had sought to represent employees in a single board area rather than in two Board areas. The responding party suggests, in the alternative, that the application should have been “split in two” with separate votes held in respect of each Board area. In our view, that alternative position would create the same difficulties and labour relations problems described by the responding party.
In our opinion, the applicant was entitled to seek to represent those employees of the responding party who worked in Board Areas 8 and 9 without seeking to represent those employees when they are working in Board Area 18. The two employees who were working in Board Area 18 on the application date were not at work in the bargaining unit and therefore were not entitled to participate in the representation vote. (We note in that regard that the two employees who were working in Board Area 18 wrote to the Board by letter dated October 30, 2001 submitting that they travel to many areas and should have their votes counted just like the other employees’ votes.) Those two employees did attend at the representation vote and cast ballots, but their ballots were segregated and sealed.
As the Board noted in paragraph 7 of its October 22nd decision in this matter, it is the date of application that is used to determine the composition of the bargaining unit for purposes of assessing a trade union’s membership support. (The Board, in its October 22nd decision mistakenly referred to section 127(2) at paragraph 7. The correct reference is section 128(2) of the Act.) It is that date that the Board uses for ascertaining who will be eligible to vote. The concerns expressed by those two employees would be the same if they had not been at work on the day of the application. The fact is that they were working in an area that the applicant has decided it did not want to attempt to organize when it was preparing to make this application to the Board. In our view, as we indicated earlier, the applicant does have the right to make that decision, provided that the unit it does seek to organize is an appropriate bargaining unit.
Section 158(2) makes reference to “a geographic area”. The responding party submits that must mean only one geographic area and refers to section 158(1) which provides that a union making an application in relation to the ICI sector must also include “at least one appropriate geographic area”. In our view, the reference to “a geographic area” does not necessarily limit a trade union to only one geographic area when seeking certification. Section 158(2) must be read with section 158(1). Section 158(2) allows affiliated bargaining agents who would otherwise be required to seek certification in relation to a province wide ICI bargaining unit together with “at least one appropriate geographic area” to seek certification with respect to a bargaining unit that does not include the ICI sector. It makes little sense to interpret the Act as precluding a union that could seek and obtain bargaining rights in several geographic areas outside of the ICI sector when making an application in relation to the ICI sector from doing so when seeking bargaining rights outside of the ICI sector if its application does not relate to the ICI sector.
The responding party has had ample opportunity to make all of the submissions it wished to make in respect of the appropriate bargaining unit description in both its response and request for reconsideration. There is, in our view, no need for a hearing to deal with this matter as the Board is satisfied that its decision finding an appropriate bargaining unit was correct.
The responding party’s request for reconsideration is therefore dismissed.
“Harry Freedman”
for the Board