[1988] OLRB Rep. February 156
2873-87-R Labourers' International Union of north America, Local 183, Applicant v. Labour Council Development Foundation, Respondent v. United Brotherhood of Carpenters and Joiners of America, Local 27, Intervener
BEFORE: Harry Freedman, Vice-Chair, and Board Members W. N. Fraser and J. Redshaw.
DECISION OF THE BOARD; February 11, 1988
In this application for certification the applicant filed one combination application for membership and receipt. The combination application for membership is signed by the employee and the receipt is countersigned and indicates that a payment of $1.00 has been made within the six-month period immediately preceding the terminal date of the application. The applicant also filed five certificates of membership. The certificates are signed by the members and indicate that monthly dues of at least $11.00 have been paid for at least one month within the six month period immediately preceding the terminal date of the application. The certificates are checked and certified correct by an officer of the applicant. 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 for six of the seven persons listed on the schedule of employees within the time fixed in accordance with the Labour Relations Act and the Board's Rules of Procedure.
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 April 18, 1986 the designated employee bargaining agency is 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) an 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 of the construction industry in the Municipality of Metropolitan Toronto, the Regional Municipalities of Peel and York, the Towns of Oakville and Halton Hills and that portion of the Town of Milton within the geographic Townships of Esquesing and Trafalgar, and the Towns of Ajax and Pickering in the Regional Municipality of Durham, 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 February 5,1988, 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.
The intervener, by its solicitors, filed an intervention in Form 83 in which it asserted that it represents employees or is the bargaining agent of employees who may be affected by this application. It submitted no documentary evidence whatsoever with its intervention. The intervener requested a hearing of this application and in support of its request stated:
"The intervener may represent employees who are subject to the application, and its interest maybe directly affected by the application."
- Section 97 of the Board's Rules of Procedure state:
"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."
Item S of the notes and comments on the intervention form filed by the solicitors for the intervener specifically directs the attention of the intervener to the provisions of section 97 of the Board's Rules of Procedure. It is clear that the intervener has not set out any material facts upon which it relies, nor does it indicate the relief sought.
Section 102(14) of the Labour Relations Act allows the Board to dispose of an application for certification made under the construction industry provisions of the Act without convening a hearing of the application. Generally, the Board exercises its discretion to deal with an application for certification made under the construction industry provisions of the Act without a hearing where there are no factual issues in dispute relevant to the disposition of the application and where it is unnecessary, in the Board's view, to receive oral argument. In this case, the intervener has not pleaded any material facts upon which it relies nor does it indicate what relief it is seeking from the Board in respect of this application. In these circumstances, the Board considers it unnecessary to convene a hearing and the Board can proceed to dispose of the application before it based on the material filed.
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 3 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 all other sectors of the construction industry, except the industrial, commercial and institutional sector in the Municipality of Metropolitan Toronto, the Regional Municipalities of Peel and York, the Towns of Oakville and Halton Hills and that portion of the Town of Milton within the geographic Townships of Esquesing and Trafalgar and the Towns of Ajax and Pickering in the Regional Municipality of Durham, save and except non-working foremen and persons above the rank of non-working foreman.