Ontario Labour Relations Board

[1985] OLRB Rep. May 657

0814-84-R The Carpenters' District Council of Toronto and Vicinity on behalf of Locals 27 and 1304, United Brotherhood of Carpenters' and Joiners of America, Applicant, v. Corecon Developments, Respondent

BEFORE: D. E. Franks, Vice-Chairman, and Board Members D. H. Blair and S. O'Flynn.

APPEARANCES: Michael A. Church, John Cartwright and Jim Smith for the applicant; W. J. McNaughton and K. Haggerty for the respondent.

DECISION OF THE BOARD; May 6, 1985

1. This is an application for certification made pursuant to the construction industry provisions of the Labour Relations Act. The application was filed on June 21, 1984 and the terminal date was July 3, 1984. On the terminal date the respondent employer in this matter filed with the Board a reply and a list of employees in Schedule A containing the names of eight persons listed as carpenters. Subsequently, the applicant trade union challenged the list of employees filed by the respondent and in due course a Labour Relations Officer was appointed in this matter. The Labour Relations Officer did a payroll check of the respondent's employees and arranged for subsequent meetings of the parties on August 13 and 15, 1984. The first meeting of the parties took place on August 15, 1984 and at that time the respondent raised for the first time the issue that there should be five additional names added to the list of employees in Schedule A.

2. The applicant disputed the request by the respondent to add those names at that time, nevertheless the Labour Relations Officer embarked on his inquiry. Subsequently, the parties referred to this Board a number of issues which had arisen in the course of the inquiry by the Labour Relations Officer, one of which referred to the addition of the five additional employees to the list in Schedule A. By a decision dated September 6, 1984 another panel of this Board deferred dealing with the issue of whether or not the names should be considered until a panel of the Board dealt with the Labour Relations Officer's report. Immediately following the release of that decision on September 13, 1984 the parties in a document referred to as Minutes of Settlement agreed that Mr. Udo Gerzymisch on the list of employees in Schedule A filed by the respondent was not an employee in the bargaining unit. The parties also agreed that there were two further issues to be referred to the Board for its final and binding determination:

(i) the respondent's request to add six (6) additional names to the list of bargaining unit employees originally filed by the respondent;

(ii) the validity of the Examiner's ruling that the parties be allowed to question the witnesses in respect to the 30-day period preceding the application but not in respect to events outside said 30-day period.

3. When the matter came up for hearing subsequent to the release of the Labour Relations Officer's report, the Board raised with the parties the matter of the additional names to be added to the list of employees and the parties agreed that if the Board found that the names should not be added the matter would be disposed of by the issuance of a certificate without the conduct of a representation vote since the applicant would have more than the required fifty-five per cent of the employees in the bargaining unit. However, should the Board decide to allow the respondent to add the additional names to the list of employees then there were further issues to be dealt with including the challenge by the applicant of the five additional names to the list.

4. The Board then heard the submissions of the respondent employer concerning the facts and the representations to be made with respect to the adding of the five additional names to the Schedule A originally filed with this application. The respondent's position is that the original list of eight names filed in this matter was a result of Mr. Haggerty of the respondent conferring with the bookkeeping department of the respondent, and deciding that of some thirteen or more employees, eight were carpenters and therefore on the list of employees. As a consequence of that information, the respondent filed the list in Schedule A. At this time counsel for the respondent alleges that Mr. Haggerty made inquiries concerning certain detailed documents concerning the work performed by various persons on the various job sites but that they could not be found. The position of the respondent is that these documents did not come to light until the day before the Labour Relations Officer convened his hearing into the challenges on the list of employees filed in Schedule A. In these circumstances, the respondent therefore seeks the leave of this Board to add the additional five names to the list of employees in Schedule A.

5. At the hearing in this matter, the Board denied the request by the respondent for leave to amend the Schedule A as filed and informed the parties it would accordingly be certifying the applicant herein. We are of the view that the list filed in this matter containing the names of eight employees was made by Mr. Haggerty at the time when he knew of the additional evidence upon which he seeks to add the five additional employees. The fact that he could not locate it does not detract from the further fact that they were in possession and control of the respondent at all material times. In turn, Mr. Haggerty for the respondent, relied on certain bookkeeping documents to determine that eight of his employees were carpenters and indeed counsel for the respondent noted that the additional five employees were indeed paid less than the eight employees classified as carpenters in the Schedule A filed with the reply. In so doing, however, Mr. Haggerty made no reservations that there may in fact be other employees who were performing carpenters' work on the date of the making of the application. Nor, was such a qualification made when the Labour Relations Officer did a records check of the employer concerning the list in Schedule A. In these circumstances, we are of the view that the respondent cannot at this later point in the proceeding seek to add the five names it seeks to add. The Schedule A filed in this matter at a timely fashion is in effect a statement which says of the employees I have these eight employees are carpenters falling within the bargaining unit proposed by the applicant trade union. In the absence any reservation or qualification to that statement, it is clearly too late for the employer at the commencement of the proceedings by the Labour Relations Officer to seek to add the names of additional employees who might have been performing carpenters' work on the date of the making of the application. To allow the respondent to make such an amendment to the list would be to render meaningless the requirement in the Rules that the appropriate Schedule A be filed by the terminal date. For the foregoing reasons, therefore, the request by the respondent was denied.

[Balance of decision omitted: Editor]