International Brotherhood of Painters and Allied Trades, Local 1590 v. Jette Pedersen, carrying on business under the firm name and style of Gallant Painting
[1987] OLRB Rep. March 372
1851-86-R International Brotherhood of Painters and Allied Trades, Local 1590, Applicant v. Jette Pedersen, carrying on business under the firm name and style of Gallant Painting, Respondent v. Group of Employees, Objectors
BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members F. W. Murray and C. A. Ballentine.
APPEARANCES: B. Fishbein and R. Last for the applicant; Mark B. Coulston, John D. Gallant and Jette Pedersen for the respondent; Remi Laviolette for the objectors.
DECISION OF THE BOARD; March 24, 1987
The hearing of this application for certification continued in Sarnia on March 17, 1987. The respondent, supported by Mr. Laviolete on behalf of the objecting employees, opposed the applicant's request that the application be processed in accordance with the general provisions (sections 5, 6 and 7) of the Labour Relations Act relating to the certification of trade unions on the basis that procedural fairness required that the application be dismissed.
The Board rejected the respondent's position. The applicant had made this application under the construction industry provisions of the Act. In its reply, the respondent pleaded that it is not an employer within the meaning of clause (c) of section 117 of the Act and that the application was therefore not properly brought under the construction industry provisions of the Act. As early as November 27, 1986, the first day of hearing into the matter, the applicant requested that the Board treat the application as one made under the general provisions of the Act if the Board concluded that the respondent was correct in that assertion. After hearing the evidence and representations of the parties with respect to the nature of the work performed, during the material times, by the persons for whom the applicant seeks bargaining rights, the Board found, in a decision dated March 4, 1987 [now reported at [1987) OLRB Rep. March 367], that that work is properly classified as maintenance work and that the application was therefore not properly made under the construction industry provisions of the Act. It was not until the hearing continued on March 17, 1987, that either the respondent or the objecting employees gave any indication that they were opposed to the Board treating the application as having been made under the general provisions. Other than baldly asserting that to proceed under the general provisions was unfair, neither the respondent, nor the objecting employees, were able to identify any unfairness or prejudice that would or could result to anyone if the Board did proceed as requested by the applicant. We were satisfied both that there was no unfairness or prejudice, and that there was no labour relations reason for not proceeding in that manner. Further, in circumstances where an application for certification has been brought under the construction industry provisions and those provisions have subsequently been found to not be applicable, it has been the Board's practice to treat the application as though it had been made under the general provisions (see, for example, J.A. Wilson Display Ltd., [1983] OLRB Rep. July 1080; Township of Loughborough, [1975] OLRB Rep. Feb. 122). Having regard to the circumstances of this case and the Board's practice, we ruled that the Board would now treat the application as having been made under the general provisions of the Act.
[Remainder of decision omitted: Editor]