Ontario Labour Relations Board
Between: IronWorkers District Council of Ontario, Applicant v. Spencer J. Hawkes Inc., Respondent
Before: Ken Petryshen, Vice-Chair, and Board Members W. Gibson and C. A. Ballentine.
Decision of the Board: September 6, 1990
Decision of the Board
These applications for certification came on for hearing on June 29, 1990. For the reasons expressed in a decision dated July 30, 1990, the Board consolidated these applications and directed the Registrar to fix a new terminal date. The Registrar fixed August 14, 1990, as the new terminal date for the consolidated applications and the usual Notice to Employees was posted by the respondent. Prior to the terminal date, the applicant filed additional membership evidence along with a Form 80. The respondent takes the position that the Board should not consider the additional membership evidence filed by the applicant. The parties' positions on this issue have been conveyed to the Board in writing and we note that the parties advised a Labour Relations Officer that no further representations on this issue were necessary.
The terminal date was extended in this matter since the Board determined that a notice problem existed which required an extension. The respondent takes the position that since the terminal date was extended for the limited purpose of giving proper notice to affected employees, the Board should not rely on any recently filed membership evidence. In support of its position, the respondent relies on Chubb-Mosler and Taylor Safes Ltd., [1966] OLRB Rep. Feb. 816 where the Board refused an applicant's request to extend the terminal date for the sole purpose of permitting it to attempt to gain additional membership support.
Where there exists, as there did in this case, a concern with notice to employees, the Board will extend the terminal date to ensure that employees are made aware of the application and to give employees the opportunity to express their wishes in the usual form regarding representation by the applicant. Employees are free to express their wishes, whether it be in favour or in opposition to the certification of the applicant, prior to the terminal date. In this instance, the applicant was able to file with the Board prior to the new terminal date additional membership evidence in the proper form. The Board is satisfied that there is no basis for it to reject the additional membership evidence. This is not a case where the Board extended the terminal date in order to give the applicant some additional time to secure more membership support.
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 12, 1978, the designated employee bargaining agency is the International Association of Bridge, Structural and Ornamental Iron Workers and the Iron Workers District Council.
The Board further finds that this is a consolidated 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(3) 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 ironworkers and ironworkers' apprentices in the employ of the respondent in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario, and all ironworkers and iron-workers' apprentices in the employ of the respondent in all other sectors in the County of Wellington and 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 non-working foremen and persons above the rank of non-working foreman, constitute a unit of employees of the respondent appropriate for collective bargaining.
When the parties met with a Labour Relations Officer on June 29, 1990 prior to the hearing to review the list of employees filed by the respondent, the applicant indicated it had three challenges to the list. In its decision of July 4, 1990, the Board appointed a Labour Relations Officer to inquire into these challenges. Since then, the applicant has withdrawn two of its challenges. A Labour Relations Officer recently met with the parties to examine the remaining person in dispute. However, the resolution of the status of the remaining person in dispute does not affect the applicant's entitlement to outright certification. The Board will direct the Labour Relations Officer to ascertain from the parties what they wish to do concerning the issue of B. Loder's status on April 18, 1990.
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 14, 1990, 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 4 above in respect of all ironworkers and iron-workers' apprentices 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 ironworkers and ironworkers' apprentices in the employ of the respondent in all sectors of the construction industry in the County of Wellington and 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 non-working foremen and persons above the rank of non-working foreman.