ONTARIO LABOUR RELATIONS BOARD

Transcription

1 ONTARIO LABOUR RELATIONS BOARD OLRB Case No: R Terrazzo, Tile and Marble Guild of Ontario, Inc., Applicant v Brick and Allied Craft Union of Canada and its Locals 1, 5, 10, 12, 23, 25, 28 and 31, Responding Party v Maple Terrazzo Marble & Tile Incorporated, and F.T. Tiles Company Limited, Intervenors BEFORE: Jack J. Slaughter, Vice-Chair APPEARANCES: Keith Burkhardt, David St. Louis and Raymond MacKinnon appearing for the applicant; no one appearing for the responding party; Marcus Giacobbi appearing for the intervenors DECISION OF THE BOARD: January 18, This is an application for accreditation filed by an employers organization pursuant to section 134 of the construction industry provisions of the Labour Relations Act, 1995, S.O c.1 as amended (the Act ). 2. For the reasons given in National Capital Road Builders Association, [1989] OLRB Rep. January 31, the Board finds it unnecessary to determine and issue a final Schedule F in this matter. The finalization of Schedule F is not required by the Act or the Board s Rules of Procedure. It has nothing to do with an applicant s entitlement to accreditation. Specific issues pertaining to whether a responding party has bargaining rights with a particular employer who was not active in the bargaining unit in the relevant time frame can be adjudicated at a later date without prejudice to any party s position, when and if necessary. 3. Having regard to the representations of counsel for the applicant and the documentary evidence before it, the Board is satisfied that all parties entitled to notice of this application have been given proper notice.

2 The Board has received employer filings from 25 potentially affected employers. Two of those employers subsequently withdrew their participation, namely Quality Sterling Group and Clifford Masonry Ltd., while four other employers employed no affected employees at the relevant times, namely Stradwick s, Heritage Tiling Inc., Guest Tile Inc., and Genesis Stone Group Ltd. 5. Two of the remaining 19 employers opposed granting the accreditation at the hearing held in this matter on January 11, 2019: Maple Terrazzo, Marble & Tile Limited and F.T. Tiles Company Limited ( the Opponents ). 6. The first issue of contention was the appropriate bargaining unit description. The Board heard the representations of counsel on this issue and then rendered the following oral ruling: Counsel for Maple and F.T. has objected to the appropriateness of the bargaining unit proposed by the applicant. Counsel suggests that a province-wide bargaining unit is not appropriate in that the BACU does not hold bargaining rights in all areas of the Province, the history of litigation between the BACU, the IUBAC, the applicant and MIECO, and the socalled patchwork of bargaining rights throughout the Province whereby the BACU has to obtain bargaining rights on a Board Area by Board Area basis. Counsel for the applicant responds that the applicant currently has a collective agreement applicable to the industrial, commercial and institutional ( ICI ) sector of the construction industry with the BACU which is province-wide in scope, and is limited to employers for whom the BACU has bargaining rights, as reflected in Article 1.01 of that Agreement. Counsel posits that all the applicant is seeking is the right to negotiate for the employers for whom the BACU has bargaining rights. Counsel says an accreditation order will not expand nor extinguish, diminish or alter the BACU s existing bargaining rights. While the Board appreciates the ingenuity of the argument of counsel for Maple and F.T., at the end of the day the Board finds his argument cannot prevail.

3 - 3 - This is an application for accreditation. The Board has clearly stated, on many occasions, perhaps most prominently in Platinum Drywall Ltd., [2002] O.L.R.D. No. 4231, 88 C.L.R.B.R. (2d) 79, [2002] OLRB Rep. November/December 1149 that the accreditation provisions of the Act do not operate to extend a trade union s bargaining rights. Therefore, the concerns of counsel for Maple and F.T. that this application is a way for the BACU to acquire bargaining rights through the back door is misplaced. Nothing in an accreditation application changes the status of any bargaining rights held by the responding party union. Therefore, granting the application would not create any duplicate set of bargaining rights that would violate section 53 of the Act. Finally, as to the patchwork of bargaining rights issue, that can be addressed in assessing the applicant s level of support in the bargaining unit. That bargaining unit will be the bargaining unit proposed in the application, which is the bargaining unit set out in Article 1.01 of the current Collective BACU Agreement, over which the parties have bargained and reached collective agreements for the past 15 years. For all the foregoing reasons, the Board finds that the bargaining unit proposed by the applicant to be appropriate. [The acronyms are as follows: BACU Brick and Allied Craft Union of Canada; IUBAC International Union of Bricklayers and Allied Craftworkers; MIECO Masonry Industry Employers Council of Ontario] 7. Therefore, the appropriate bargaining unit description herein is: all employers of marble, tile and terrazzo, cement masons and resilient floor layers and their helpers, their respective apprentices, improvers and working foremen in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario for whom the Brick and Allied Craft Union has bargaining rights.

4 After deciding the bargaining unit issue, the Board proceeded to determine whether the applicant had sufficient support to be entitled to accreditation. 9. In order to obtain accreditation, the applicant must establish that it meets the conditions prescribed by section 136(3) of the Act, and also satisfy the Board that it represents a majority of the employers in the unit of employers the Board has determined is appropriate for collective bargaining and that those employers it represents employed a majority of the employees who were on the payrolls of the employers in the bargaining unit during the week immediately preceding the application date. 10. Section 136(3) of the Act provides: Before accrediting an employers organization under subsection (2), the Board shall satisfy itself that the employers organization is a properly constituted organization and that each of the employers whom it represents has vested appropriate authority in the organization to enable it to discharge the responsibilities of an accredited bargaining agent. The double majority requirement the applicant must satisfy to obtain accreditation is set out in sections 136(1) and 136(2): 136. (1) Upon an application for accreditation, the Board shall ascertain, (a) (b) (c) the number of employers in the unit of employers on the date of the making of the application who have within one year prior to such date had employees in their employ for whom the trade union or council of trade unions has bargaining rights in the geographic area and sector determined by the Board to be appropriate; the number of employers in clause (a) represented by the employers organization on the date of the making of the application; and the number of employees of employers in clause (a) on the payroll of each such

5 - 5 - employer for the weekly payroll period immediately preceding the date of the application or if, in the opinion of the Board, the payroll period is unsatisfactory for any one or more of the employers in clause (a), such other weekly payroll period for any one or more of the said employers as the Board considers advisable. (2) If the Board is satisfied, (a) (b) that a majority of the employers in clause (1)(a) is represented by the employers organization; and that such majority of employers employed a majority of the employees in clause (1)(c), the Board, subject to subsection (3), shall accredit the employers organization as the bargaining agent of the employers in the unit of employers and for the other employers for whose employees the trade union or council of trade unions may, after the date of the making of the application, obtain bargaining rights through certification or voluntary recognition in the appropriate geographic area and sector. 11. The Board is satisfied, having regard to the materials before it and the agreement of the parties, that the applicant is an employers organization within the meaning of section 126(1) of the Act and is a properly constituted organization as required by section 136(3). The Board is also satisfied the applicant is capable of properly representing the employers in collective bargaining that become bound by the accreditation order the applicant seeks. 12. The applicant filed employer authorizations on behalf of 20 potentially affected employers. Counsel for the Opponents challenged the validity of the authorizations, primarily based upon two grounds: the employers could not authorize the applicant to bargain for all of the Province of Ontario; and the employers did not realize they were granting the applicant the right to negotiate for all of the Province of Ontario. Neither argument has any merit. The declarations are identical in form and vest all necessary authority in the Guild including acting as its agent and representative in connection with the negotiation and administration of the BACU-Guild Provincial ICI Agreement for marble, tile and terrazzo work. Therefore, the

6 - 6 - employers clearly did authorize the applicant to be their representative. Furthermore, there is absolutely no objective evidence before the Board that would cause it to look behind the comprehensive language contained in the employer authorizations. Accordingly, the Board finds that the employer authorizations are valid and can be relied upon by the Board for the purposes of this proceeding. 13. Based on the parties representations and the material filed with the Board, the Board is satisfied that the Final Schedule E is comprised of the following employers: Schedule E Acapulco Pools The Belluz Group Ltd. Bernardo Group Ltd. Calligaro Tile Co. Ltd. Capela Surfaces Inc. Castlewall Centa Construction Limited Centis Tile & Terrazzo Inc. D.C. Granite & Marble Inc. Eastern Ontario Terrazzo F.T. Tiles Company Limited Gem Campbell Terrazzo & Tile Inc. Gemstar Group Maple Terrazzo, Marble & Tile Incorporated Spada Tile Star Tile Terrazzo, Mosaic & Tile Co. Ltd. Tasca Tile Ltd. York Marble, Tile & Terrazzo Ltd. 14. The Board is satisfied that the applicant has established that it represents 16 of the 19 employers listed on Schedule E. There is a dispute over whether an employer authorization filed by the applicant relates to D.C. Granite & Marble Inc. ( DC ) or not, which could potentially elevate the applicant s support to 17 of 19, but it is unnecessary to determine that issue as it is numerically irrelevant. The Board therefore finds that the applicant represents a majority of employers in the bargaining unit of employers that had employees for whom the responding party held bargaining rights performing work coming within the scope of the bargaining unit within the one year prior to the application date. The applicant has therefore satisfied the

7 - 7 - condition set out in section 136(2)(a) of the Act as the first prerequisite for obtaining accreditation. 15. The total number of employees on the relevant employer filings is 255. This number represents the employees on the employers payroll for the weekly pay period immediately preceding the date of application. Even assuming the applicant does not represent DC, the employers represented by the applicant employed 214 of the 255 employees at work for Schedule E employers in the relevant time period. There is no information before the Board to indicate that any other affected employer employed any other affected employees in the relevant period. Hence, the majority of employers employed the majority of employees contemplated by section 136(1)(c) of the Act at the relevant time. Having regard to this information, the Board is satisfied that the applicant has satisfied the condition set out in section 136(2)(b) of the Act as the second prerequisite for obtaining accreditation. 16. In the result, the Board finds that the applicant has established the double majority requirement prescribed in section 136(2) of the Act to entitle it to be accredited as the exclusive bargaining agent of the employers coming within the bargaining unit described in paragraph 7 above. That is, the applicant has established it represents a majority of the employers in the bargaining unit of employers and that those employers employed a majority of the employees who were on the payrolls of the employers in the bargaining unit during the week immediately preceding the application date. 17. Pursuant to section 136(2) of the Act, the Board hereby accredits the applicant as the exclusive bargaining agent of the employers in the unit of employers set out in paragraph 7 above and for all other employers for whose employees the responding party may, after July 24, 2018, the date this application was made, obtain bargaining rights through certification or voluntary recognition in the ICI sector of the construction industry in the Province of Ontario for marble, tile and terrazzo, cement masons and resilient floor layers and their helpers, their respective apprentices, improvers and working foremen. 18. In view of the fact that the Board waived the requirement to compile a Schedule F in this application, the Board wishes to stipulate that the issuance of the accreditation certificate herein does not prejudice or adversely affect, in any way, the responding party s

8 - 8 - bargaining rights with respect to employers who were not listed on Schedule E, for whatever reason. 19. A certificate of accreditation shall issue. Jack J. Slaughter for the Board