[1986] OLRB Rep. July 1019
3223-85-R Michael VanLandeghem, Applicant, v. Labourers' International Union of North America, Local 1036, Respondent, v. Smale Bros. Company Limited, Intervener
BEFORE: Thomas S. Kuttner, Vice-Chairman, and Board Members W. G. Donnelly and R. Montague.
APPEARANCES: C. J. Abbass, Michael Van Landeghem and Kenneth J. Smale for the applicant; L. A. Richmond and J. Lewis for the respondent; no one appearing for the intervener.
DECISION OF THE BOARD; July 16, 1986
The name of the respondent is amended to read: "Labourers' International Union of North America, Local 1036."
At the hearing of this matter held at the offices of the Board on June 19, 1986, the Board granted a motion to dismiss, made by counsel for the respondent for the following reasons:
This is an application for termination of bargaining rights filed under the provisions of section 57 of the Labour Relations Act. The applicant, Michael VanLandeghem, has for many years been seasonally employed as a labourer in the employ of the intervener, Smale Bros. Company Limited. The employer operates a business as a utility contractor in Board Area 21.
At all relevant times the employer has been bound by the provisions of a collective agreement entered into on its behalf between the Utility Contractors' Association of Ontario and the Labourers' International Union of North America, Ontario Provincial District Council on behalf of its several locals including Local 1036, which holds the bargaining rights for construction labourers in the employ of Smale Bros. Company Limited in Board Area 21.
On March 26, 1986, the application date set by the Board in accordance with its normal practice and procedure, there was in the employ of the employer and present at work only one individual, Kenneth J. Smale, (see Schedule A of the employer's filings). Evidence was led as to the employment status of Mr. Smale, and the Board is satisfied that at all relevant times, and indeed for a period of time in excess of one year prior to the application for termination, he was employed as and performing the work of an operating engineer. Accordingly, Mr. Smale is not an employee in the bargaining unit for the purposes of this application.
No other employee was in the employ of the employer and present at work on the date of the application (March 26, 1986), and more particularly, the applicant was not so present or employed. The provisions of section 57(2) of the Act clearly stipulate that only an employee in the bargaining unit may make an application for termination of bargaining rights.
It has been the prevailing practice of the Board in determining whether a person is an employee in the bargaining unit, whether for the purposes of an application for certification or for those for termination in the construction industry, to have regard only to those persons actually present at work on the date of application. This practice and the rationale behind it were recently adopted by the Board in Stuart Riel Masonry Contractors, [1984] OLRB Rep. Nov. 1630 at para. 10 where the l3oard stated:
Counsel for the employer is correct when he says there is nothing in section 57 of the Act which requires employees to be at work when an application is made. Section 57(3) requires a finding by the Board of the number of employees in the bargaining unit at the application date and the Board has complete discretion to do so, including whether employees not at work in the bargaining unit on the application date are to be counted. In the construction industry, because of the short term nature of the employment relationship, it has been the consistent policy of the Board over many years to count as employees only those employees at work on the application date. This applies equally to applications for certification and for termination of bargaining rights....
See also the decisions of the Board in Uni-Form Builders Limited, [1968] OLRB Rep. Apr. 60, Howard S. Clark Construction, [1968] OLRB Rep. Apr. 62, Diplock Durable Floor Company Ltd., [1982] OLRB Rep. Aug. 1159, T. E. Leroux Contracting Ltd., [1982] OLRB Rep. Aug. 1204. The Board's attention has been drawn to its decision in Lakeview Sheet Metal (Orillia) Ltd., [1979] OLRB Rep. June 537 to the contrary, which it declines to follow or adopt.
Here as in Uniform Builders and Howard Clark, supra, the applicant not being an employee of Smale Bros. Company Limited and present at work on the date this application was filed, he was not an employee in the bargaining unit for which the respondent has bargaining rights as required by section 57(2) of the Act. Therefore he has no status to bring this application.
Accordingly, this application is dismissed.