Labourers' International Union of North America, Local 183 v. Javid Construction Management Limited, 1988 CanLII 3724

[1988] OLRB Rep. September 906

0935-88-R Labourers' International Union of North America, Local 183, Applicant v. Javid Construction Management Limited, Respondent v. Group of Employees, Objectors

BEFORE: R. A. Furness, Vice-Chair, and Board Members W. N. Fraser and C. A. Ballentine.

APPEARANCES: Craig Flood and Tony Pinto for the applicant; I. Kleiner and Murray Hartsman for the respondent; Benny Del Duca and Sam Saleh for the objectors.

DECISION OF THE BOARD; September 19, 1988

1. The name of the respondent appearing in the style of cause of this application is amended to read: "Javid Construction Management Limited".

2. At the commencement of the hearing the parties agreed upon the correct name of the employer in this application for certification. Based upon the assurances of the other parties that the employer of the persons affected by this application was Javid Construction Management Limited, the applicant requested leave of the Board to withdraw its request for relief under sections 63 and 1(4) of the Labour Relations Act with respect to Greyrock Developments Limited carrying on business as Chestnut Hill Homes and Greyrock Building Corporation. In the circumstances of this application, the request of the applicant for relief under sections 6:3 and 1(4) of the Act with respect to Greyrock Developments Limited carrying on business as Chestnut Hill Homes and Greyrock Building Corporation is withdrawn by leave of the Board.

3. The respondent informed the Board that it had received constructive notice as opposed to actual notice of the hearing in this matter. The respondent further informed the Board that it was ready, willing and able to proceed with the hearing. The extended terminal date fixed for this application was August 16, 1988. The respondent also informed the Board that the Form 78, Notice to Employees of Application for Certification, Construction Industry (the "Notice") was posted on the three job sites of the respondent where the employees affected by this application worked on August 15, 1988, between 7:30 a.m. and 9:00 a.m. It was the position of the respondent that the employees affected by this application had received the Notice of an application for certification which named "Greyrock Developments Limited carrying on business as Chestnut Hill Homes and Greyrock Building Corporation" as the respondents and not "Javid Construction Management Limited" as the proper respondent. The respondent argued that the Board ought to amend the name of the respondent, extend the terminal date and post a new Notice for the benefit of the employees. The objectors informed the Board that they had received notice of this application in the English language. However, the objectors adopted the position that the Notice of this application ought to have been printed in the Italian and Portuguese languages in addition to the English language. The objectors stated that some of the employees affected by this application did not read the English language and that a new posting of the Notice in the Italian and Portuguese languages was necessary so that the employees affected by this application would have notice thereof. The objectors requested an adjournment of the hearing so that the terminal date could be extended and notice given in the Italian and Portuguese languages. The respondent subsequently adopted the position of the objectors with respect to the Italian and Portuguese languages. The applicant argued that there had been sufficient notice to the employees affected by this application and that it was not necessary to extend the terminal date either to name the respondent in the Notice as the employer or to translate the Notices into the Italian and Portuguese languages. The applicant argued that the Board ought to proceed with the hearing and challenged the status of the respondent to raise the matter of the adequacy of the Notice to the employees affected by this application. After hearing the arguments of the parties, the Board ruled at the hearing that, for reasons to be given in writing, it would proceed with the hearing. The reasons for this ruling are now set forth in paragraphs four, five and six.

4. It was the unchallenged position of the objectors that they knew who was their employer because the name "Javid Construction Management Limited" was printed on their pay cheques. In addition, the Board had revealed to all of the parties that the heading on the document expressing opposition to this application for certification (the "document") read as follows:

Chestnut Hill Homes & Greyrock Building Corp.

We, the undersigned employees of Javid /Construction Management Limited, do not wish to be represented in our employment relations by Labourers International Union of North America, Local 183.

5. The respondent has no standing in the circumstances of this application to act as a spokesman for the objectors. See Federated Building Maintenance Company Limited, [1979] OLRB Rep. Oct. 974; Quebec Labour Relations Board v. Cimon Ltee, 1971 CanLII 143 (SCC), [1971] S.C.R. 981; 21 D.L.R. (3d) 506; Cunningham Drug Stores Ltd. v. B. C. Labour Relations Board, 1972 CanLII 143 (SCC), [1973] S.C.R. 256; 31 D.L.R. (3d) 459; and Re Canada Labour Relations Board and Transair Ltd., (1976) 1976 CanLII 170 (SCC), 67 D.L.R. (3d) 421. The Board notes that, in any event, the authorities relied upon by the respondent were distinguishable on a factual basis from the facts in the instant application. Thus, in Adena Investments Limited, [1971] OLRB Rep. Jan. 1, the Board directed the Registrar to extend the terminal date where notice of an application for certification had not been posted; in Saga Investments, [1970] OLRB Rep. June 312, a certificate was revoked where the respondent and its employees had not received notice of the application until after the certificate had been issued; in Cochrane Nursing Homes Limited, [1974] OLRB Rep. April 204, the terminal date was extended and a proper posting was effected where employees at one location had not received notice of an application for certification; and in Starways Distributors, A Division of Harlequin Enterprises Limited, [1986] OLRB Rep. April 561, the Board held that employees affected by an application were entitled to notice of an intervener's application for certification. In the instant application, the Board is satisfied that the employees of the respondent received notice of this application and were aware that the respondent was their employer. The Board notes that the objectors did not raise any objection with regard to the period of notice on the sufficiency of the Notice in the English language with respect to the respondent as the employer of the employees who are affected by this application.

6. With regard to the request to extend the terminal date of this application and post the notices in the Italian and Portuguese languages, it has not been the practice of the Board to post such notices in these languages. It has not been the experience of the Board that employees who are proficient in neither English nor French have been unable to exercise their rights under the Act. In Federated Building Maintenance Company Limited, supra, the Board stated at page 976 as follows:

7. Obviously there are numbers of employees in the Canadian workplace who, by reason of their national origin, are not able to read or write either English or French. They are nevertheless usually quite able to function within the mainstream of everyday life in Canada. Whether they deal with commercial interests or with their government, they generally expect to do so in one of the two official languages of Canada. The same is true in their dealings with the courts or with public administrative tribunals. Immigrant Canadians generally obtain, and can reasonably be expected to obtain, the assistance necessary to enable them to respond to process issuing from a court or tribunal. In this case, all 125 of the employees were able to respond to the Board's subpoena, written in English, issued to them by the employer. In the Board's experience employees who are not fluent or literate in English do not fall within a special class of disadvantaged workers. While the Board has always made use of translations in the receiving of evidence, it does not presume that immigrant Canadian employees are less able then others to inform themselves and assert their rights under The Labour Relations Act. (llsco of Canada Ltd., [1973] OLRB Rep. May 221; International Chinese Restaurant, [19771 OLRB Rep. Oct. 688; Dylex Ltd., [1977] OLRB Rep. June 357.)

Having regard to the representations before it, the Board is not prepared to extend the terminal date of this application and post the notices in the Italian and Portuguese languages.

7. The Board heard evidence with respect to the origination, preparation and circulation of the document. Benny Del Duca and Sam Saleh gave evidence before the Board in this regard. In our opinion Mr. Del Duca was not a credible witness. The extent of help he received from a friend in the preparation of the document was unclear. At one time Mr. Del Duca appeared to indicate that his friend had prepared the document and subsequently he appeared to indicate that he had prepared a rough draft. Mr. Del Duca also contradicted himself when he testified about the amount of time off from work he requested in order to circulate the document - two half days or one and a half days. There was also a variation in the excuses he gave for the time off, the method of conveying these excuses and whether all the excuses originated from him or whether some originated from his mother. In addition, Mr. Del Duca offered no believable explanation as to how and why he filed the document at the time and place he did file the document. Mr. Saleh admitted lying to counsel prior to the hearing and in our view he was an unreliable witness. Having regard to the evidence before it, the Board is not prepared to give any weight to the evidence respecting the origination, preparation and circulation of the document. The Board is not prepared to find that the signatures on the document represent the voluntary wishes of the employees who allegedly signed it. In these circumstances, the Board is not prepared to find that there is any doubt cast upon the evidence of membership filed by the applicant.

8. 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.

9. 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.

10. 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 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.

11. 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 August 16, 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.

12. 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.

13. 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 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, excluding the industrial, commercial and institutional sector, save and except nonworking foremen and persons above the rank of non-working foreman.