[1986] OLRB Rep. November 1514
2217-86-R Labourers' International Union of North America, Local 183, Applicant, v. Globfin Developments Limited, Respondent
BEFORE: N. B. Satterfield, Vice-Chairman, and Board Members I. M. Stamp and J. Redshaw.
DECISION OF THE BOARD; November 25, 1986
The name of the respondent is amended to read: "Globfin Developments Limited".
In this application for certification the applicant filed four combination applications for membership and receipts. The combination applications for membership are signed by the employees and the receipts are countersigned and indicate that a payment of $1.00 has been made within the six-month period immediately preceding the terminal date of the application. The money was collected by one person. The applicant also filed a duly completed Form 80, Declaration Concerning Membership Documents, Construction Industry.
The respondent filed a reply, a list of employees containing seven names on Schedule "A" and specimen signatures within the time fixed in accordance with the Labour Relations Act and the Board's Rules of Procedure.
In paragraph 14(2) of the reply, the respondent consents that the Board dispose of the application without a hearing and states as follows:
Globfin Developments Limited is NOT bound by any collective agreements nor does it wish to become bound by any collective agreements. Should the Board decide not to dispose of Labourers' International Union of North America, Local 183, Notice of Applications of Certification,
Globfin Developments requests to be advised and requests a hearing of the Board in order to defend its' position under the Canadian Charter of Rights & Freedoms and the Constitution.
[emphasis in original]
If the Board has the correct understanding of that statement, the respondent is consenting to the application being processed without a hearing only if the Board is going to dismiss the application, otherwise, the respondent is requesting a hearing ". . .in order to defend its' position under the Canadian Charter of Rights & Freedoms and the Constitution". Section 102(14) of the Act provides that the Board need not hold a hearing into an application for certification made under the construction industry provisions of the Act for the purposes of determining the merits of the application for certification. In the Board's view, the statement made by the respondent has the same effect as though the respondent had completed the reply to request the Board to hold a hearing into the application in order for the respondent ". . .to defend its' position under the Canadian Charter of Rights & Freedoms and the Constitution". Therefore, the Board will treat the reply as though making a request for a hearing on the grounds set out.
Section 97 of the Rules of Procedure under the Labour Relations Act is a section which pertains to applications for certification made under the construction industry provisions of the Act. It states as follows:
Where a party requests a hearing of the application by the Board, he shall set out in the application, reply or intervention, as the case may be, a concise statement of,
(a) the material facts upon which he proposes to rely at the hearing;
(b) the relief to which he claims to be entitled by reason of such facts; and
(c) the submissions he proposes to make in support of his claim for relief.
The reply contains no statement as to the "position" which the respondent is seeking to defend under "...the Canadian Charter of Rights & Freedoms and the Constitution." and makes no reference to any section of the Charter or the Constitution under which the respondent is asserting a claim that its rights or freedoms are being contravened by this application or by the Board determining the application on its merits without holding a hearing into the application. The respondent simply has made a rhetorical reference to the Charter and the Constitution and, with nothing more, that does not substantiate the request for a hearing. In short, the respondent has failed to comply at all with section 97 of the Rules of Procedure and fails to disclose any material fact which might be reason for the Board to hold a hearing into the application. Accordingly, the Board will exercise its discretion under section 102(14) of the Act to determine the merits of the application without a hearing.
The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act and is an affiliated bargaining agent of a designated employee bargaining agency. Pursuant to the designation issued by the Minister under section 139(1) of the Act on September 30, 1983, the designated employee bargaining agency is The Labourers' International Union of North America and The Labourers' International Union of North America, Ontario Provincial District Council.
The Board further finds that this is an application for certification within the meaning of section 119 of the Labour Relations Act and is an application made pursuant to section 144(1) of the Act which provides that:
An application for certification as bargaining agent which relates to the industrial, commercial and institutional sector of the construction industry referred to in clause 117(e) shall be brought by either,
(a) employee bargaining agency; or
(b) one or more affiliated bargaining agents of the employee bargaining agency,
on behalf of all affiliated bargaining agents of the employee bargaining agency and the unit of employees shall include all employees who would be bound by a provincial agreement together with all other employees in at least one appropriate geographic area unless bargaining rights for such geographic area have already been acquired under subsection 3 or by voluntary recognition.
The Board further finds, pursuant to section 144(1) of the Act, that all construction labourers in the employ of the respondent in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and all construction labourers in the employ of the respondent in all other sectors in the County of Simcoe and the District Municipality of Muskoka, save and except non-working foremen and persons above the rank of non-working foreman, constitute a unit of employees of the respondent appropriate for collective bargaining.
The Board is satisfied on the basis of all the evidence before it that more than fifty-five per cent of the employees of the respondent in the bargaining unit, at the time the application was made, were members of the applicant on November 13, 1986, the terminal date fixed for this application and the date which the Board determines, under section 103(2)(j) of the Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act.
Section 144(2) of the Act, which states in part as follows, provides for the issuance of more than one certificate if the applicant has the requisite membership support:
the Board shall certify the trade unions as the bargaining agent of the employees in the bargaining unit and in so doing shall issue a certificate confined to the industrial, commercial and institutional sector and issue another certificate in relation to all other sectors in the appropriate geographic area or areas.
[emphasis added]
Therefore, pursuant to section 144(2) of the Act, a certificate will issue to the applicant affiliated bargaining agent on its own behalf and on behalf of all other affiliated bargaining agents of the employee bargaining agency named in paragraph 8 above in respect of all construction labourers in the employ of the respondent in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario, save and except non-working foremen and persons above the rank of non-working foreman.
- Further, pursuant to section 144(2) of the Act, a certificate will issue to the applicant trade union in respect of all construction labourers in the employ of the respondent in the County of Simcoe and the District Municipality of Muskoka, excluding the industrial, commercial and institutional sector, save and except non-working foremen and persons above the rank of non-working foreman.