[1986] OLRB Rep. April 576
2400-85-R Labourers' International Union of North America, Local 1059, Applicant, v. Walloy Excavating Company Limited, Respondent
BEFORE: Harry Freedman, Vice-Chairman, and Board Members L M. Stamp and W F. Rutherford.
APPEARANCES: L. A. Richmond and S. MacKinnon for the applicant; and S. C. Bernardo and H. Layens for the respondent.
DECISION OF THE BOARD; April 8, 1986
The name of the respondent is amended to read: "Walloy Excavating Company Limited".
This is an application for certification filed pursuant to the construction industry provisions of the Labour Relations Act. The respondent is an employer within the meaning of section 117(c) of the Act. The applicant is a trade union within the meaning of section 117(1) of the Act and is an affiliated bargaining agent within the meaning of section 137(l)(a) of the Act.
Counsel for the respondent submitted that the appropriate bargaining unit should be limited to the residential sector of the construction industry because the respondent principally works in that sector and on the date of application, its employees were employed in that sector only. During the course of the hearing of this matter, the Board delivered the following oral ruling:
Counsel for the respondent submits that the appropriate bargaining unit in this case should be described as "all construction labourers in the employ of the respondent in the residential sector of the construction industry in OLRB Area #3 save and except non-working foreman and persons above the rank of non-working foreman".
The applicant is an affiliated bargaining agent. Its application states that it seeks to represent certain employees of the respondent in the industrial, commercial and institutional sector of the construction industry in the province of Ontario and certain employees of the respondent in all other sectors of the construction industry in OLRB Area #3. This application is made by the applicant under section 144(1) of the Labour Relations Act.
In our opinion, an application for certification relates to the industrial, commercial and institutional sector of the construction industry as contemplated by section 144(1) of the Act if an affiliated bargaining agent chooses to apply for certification in respect of that sector of the construction industry. (See the Report of G. W. Adams, Special Counsel to the Minister, April 1980.)
Therefore, the Board finds that the bargaining unit applied for by the applicant is the appropriate unit for collective bargaining pursuant to section 144(1) of the Act since it is an application for certification that relates to the industrial, commercial and institutional sector of the construction industry.
Having regard to the foregoing, the Board finds 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 Counties of Oxford, Perth, Huron, Middlesex, Bruce, and Elgin, 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.
Following the Board's determination of the appropriate bargaining unit, the Board was advised that the applicant challenged several of the persons that the respondent had named as employees in the bargaining unit on the date of application. The employer filed a schedule "A" containing 21 names. The applicant took the position that the following persons were not employees in the bargaining unit:
Ken Avery
Andrew Davies
Fred Grimminek
Ted Shephard
Robert Whitbourn
Bill Babenko
Peter Vanderydt
- The applicant submitted that all the persons listed above were not employees of the respondent on the date of application, and in the alternative, took the position that Messrs. Avery, Davies, Grimminek, Shephard and Whitbourn were not construction labourers, and that Messrs. Babenko and Vanderydt were either non-working foreman or persons above the rank of non-working foreman and therefore exercised managerial functions. The respondent took the position that all of the persons named on the schedule filed are employees within the bargaining unit. Having regard to the agreement of the parties, the Board hereby appoints a Labour Relations Officer to:
a) conduct a check of the respondent's records for the purpose of determining whether the persons listed in paragraph 5 were employed by the respondent on the date of application;
b) inquire into the duties and responsibilities of
Ken Avery
Andrew Davies
Fred Grimminck
Ted Shephard
Robert Whitbourn
for the purpose of determining whether they were construction labourers on the date of application; and
c) inquire into the duties and responsibilities of Bill Babenko and Peter Vanderydt for the purpose of determining whether they exercised managerial functions on the date of application.
- The respondent had filed allegations with respect to the membership evidence filed by the applicant. Counsel for the respondent alleged among other things that one employee was advised "... that if the union was unsuccessful in certifying Walloy [the union] would give the one dollar payment back to [the employee]". Counsel for the respondent submitted that the Board ought to treat that allegation in the same way that the Board treats non-pay or non-sign allegations. He argued that the Board should conduct its own inquiry with respect to that particular allegation. After receiving the submissions of the parties on respondent counsel's motion, the Board delivered the following oral ruling:
In our opinion, an allegation of conditional payment does not raise a question of whether the applicant has filed fraudulent membership evidence. That kind of allegation relates to how the membership evidence that accurately states the transaction between the employee and the applicant was obtained. Therefore, the membership evidence is not fraudulent or false. As such, it is not appropriate for the Board to conduct its own inquiry into the allegation of conditional payment. Rather, the party making such an allegation must prove it in the ordinary course.
The hearing with respect to the allegations made by the respondent in relation to the membership evidence filed by the applicant commenced on April 4, 1986 and shall continue before this panel of the Board on April 11, 1986 and May 9, 1986.
This panel of the Board is not seized with the determination of the list and composition of the bargaining unit as more particularly set out in paragraph 6 above.
This matter is referred to the Registrar.