[1983] OLRB Rep. April 549
1889—82-R Labourers' International Union of North America, Local 1059, Applicant, v. Kent County Contractors, a Division of 504961 Ontario Limited and/or Elgin Construction Company Limited, Respondent, v. Group of Employees, Objectors.
BEFORE: N. B. Satterfield, Vice-Chairman and Board Members C. A. Ballentine and I. M. Stamp.
APPEARANCES: L. Richmond, P. Murphy and J. McKinnon for the applicant; S. C. Bernardo and Josephine Dikken for Kentv County Contractors, a Division of 504961 Ontario Limited; S. C. Bernardo and Bob Nicli for Elgin Construction Company Limited; Michael P. ODea for the objectors.
DECISION OF THE BOARD: April 26, 1983
This is an application for certification in the construction industry in which the applicant has requested the Board, pursuant to section 1(4) of the Labour Relations Act, to treat the two respondents (hereinafter "Kent" and "Elgin") as one employer for the purposes of the Act. The purpose of the union making its companion application under section 1(4) of the Act is to ensure that any certificate granted by the Board in the certification application will be binding upon the employees and activities of Kent and Elgin as if they were one corporate entity.
An earlier decision of the Board, differently constituted, directed the Registrar to serve the employees potentially affected by the application with notice by mail. For reasons given in the decision, the Board also directed the Registrar to serve notice by mail on certain persons whom the respondent Elgin claims were employees on lay off at the time the application was made but who nevertheless might have an interest in the outcome of these proceedings. Notice was served on these persons and many of them subsequently filed individual statements of desire in opposition to the application ("petitions").
When the matter came on for hearing on March 30th, 1983, the persons who had filed petitions ("the objectors") were represented by counsel. Applicant counsel challenged their status as parties to the proceedings. Counsel's challenge was founded generally on the claim that the persons in question were not at work in the bargaining unit on the date of the application and, therefore, were not to be treated as employees affected by the application.
The Board consented to the request of counsel for all parties present at the hearing to deal with the applicant's challenge as a preliminary matter. The Board heard their representations on the issue. At the conclusion of their representations and after consulting with the parties, the Board advised the parties that it would reserve its decision and render it orally at the commencement of hearing the next day, when this proceeding was scheduled to resume.
Subsequently, the Board was advised that the parties had agreed to an adjournment of the hearing. Accordingly, this is an interim decision on the status of the persons who have filed petitions in opposition to the application to continue to participate in these proceedings.
Applicant counsel contends that, even were the Board to declare that Kent and Elgin be treated as one employer for purposes of the Act, the persons in question who were on lay-off from Elgin when this application was made are not employees in the bargaining unit sought by the applicant. Counsel is relying, in that respect, on the Board's policy in dealing with certification applications in the construction industry for deciding who is an employee for purposes of determining the applicant's membership support. In order to be included, the policy requires a person to be at work in the bargaining unit on the date of the application. That being the case, counsel argues, the objectors can have no effect on the "count"; in other words, on whether the applicant has the requisite membership support for its application to succeed. For the same reason, he contends, they have no other legal interest in the proceedings and, therefore, lack status to be parties to the proceedings for any purpose.
Objectors' counsel, on the other hand, argues that these persons are employees of Elgin who were on lay-off at the time of the application because they had been laid off at the end of Elgin's construction season. They expected to be recalled, in keeping with Elgin's practice, as soon as it had work in the spring. Elgin and the objectors both assert that to be Elgin's practice and that some of its employees have been with the firm for 25 years. Objectors' counsel submits, therefore, that the laid off Elgin employees would be affected by the application for certification if the Board were to treat Kent and Elgin as if they were one employer. For that reason, counsel contends, the objectors are parties entitled to participate in these proceedings for all purposes. He also contends that, even if the Board found them not to be employees for purposes of the county, they would still be entitled to make submissions with respect to the section 1(4) application and the build-up issue. Determination of the section 1(4) application involves the question of whether the Board should exercise its discretion under that section to declare that Kent and Elgin be treated as one employer. The exercise of that discretion, counsel argues, would have a direct impact on the objectors.
Whether the applicant's claim that the objectors have no status to intervene in these applications will succeed depends on the application of several Board policies: for example, its policy for determining who are employees in the bargaining unit in a construction industry certification application; its build-up policy and whether it should be applied here having regard for the Board's discretion pursuant to section 119(2) of the Act to disregard build-up in a construction industry application; and, its policy with respect to who are the core group of employees if the Board allows the build-up claim and directs a representation vote. While the Board does not readily depart from the application of these policies, it would at least hear submissions on whether it should depart from them.
If both applications succeed, both Kent and Elgin automatically would be bound by the labourers provincial agreement in the industrial, commercial and institutional sector of the construction industry. If Elgin was to perform work in that sector, the provincial agreement might deprive these persons from being recalled. On the other hand, if Elgin was to do work in any of the other sectors while the section 79 freeze was applicable, the objectors might have recall rights enforceable under section 79 of the Act. They would be employees under the Act at least for determination of that issue.
Finally, according to objectors' counsel, there is the possibility that two of the objectors were at work for Elgin on the date of the application who may be affected by it.
In these circumstances, it might not be possible for the Board to make a proper and final determination of the status of those two persons in particular and the objectors generally until it has heard and considered as well the evidence and representations of the parties with respect to the alleged section 1(4) relationship between Kent and Elgin and the build-up issue. Since all of these issues are related, the Board should hear them and defer deciding the status of the objectors until it has heard all of the evidence and representations of the parties.
Therefore, the Board will reserve its decision on the status of the petitioners until such time as it has heard the relevant evidence and representations of the parties. In the meantime, the persons who have duly filed petitions may participate in the proceedings and be represented by agent or counsel for that purpose.