[1991] OLRB Rep. September 1034
3312-90-R Carpenters & Allied Workers Local 27 United Brotherhood of Carpenters and Joiners of America, Applicant v. Donia Aluminum & Roofing Ltd., Respondent
BEFORE: Louisa M. Davie, Vice-Chair, and Board Members J. A. Ronson and P. V. Grasso.
APPEARANCES: J. David Watson and Joe Almeida for the applicant; M. E. Geiger, Domenic Donia and Ross Donia for the respondent; Caroline Rowan for Robert Shewell.
DECISION OF THE BOARD; September 9, 1991
This application for certification was scheduled for hearing before the Board on September 4, 1991. At that time the Board heard the representations and submissions of the applicant and the respondent with respect to certain issues arising from this application. Although previously named as interveners in this application, we note that the Canadian Shinglers Association did not seek to intervene in this application for certification. Ms. Rowan and Mr. Shewell who were present throughout the hearing indicated that the Canadian Shinglers Association was not seeking to establish trade union status and was not asserting that it had any agreement with the respondent which would bar the applicant. Mr. Shewell was present throughout because he had been subpoenaed to attend as a witness and Ms. Rowan appeared as his counsel in this regard. Neither Ms. Rowan, Mr. Shewell, nor any representative of the Canadian Shinglers Association made any submissions in respect of any of any of the matters addressed by the parties before the Board at the hearing on September 4, 1991.
After hearing the submissions of the parties the Board rendered the following oral ruling:
The Board has heard the positions of the parties with respect whether there is or is not a community of interest between persons engaged by the respondent as "shinglers/roofers" and persons engaged as "siders" - that is persons engaged in the installation of exterior cladding systems.
The representations of the parties with respect to this issue was necessitated because of their disagreement with respect to the bargaining unit description. The applicant seeks to be certified for a unit consisting of:
all carpenters and carpenter's apprentices employed by the respondent engaged in the installation of exterior cladding systems in all sectors of the construction industry except the industrial, commercial and institutional sector, in Board area 8, save and except non-working foremen and persons above the rank of non-working foreman.
For purposes of clarity the installation of exterior cladding systems includes siding, soffit, fascia and eavestroughing.
The employer describes the appropriate bargaining unit as:
all carpenters and carpenters' apprentices employed by the respondent in all sectors of the construction industry excluding the industrial, commercial and institutional sector, in Board Area 8, save and except non-working foremen and persons above the rank of non-working foreman.
The applicant's position is that the "community of interest" issue together with an issue in respect of the employment status of certain individuals (namely whether persons are independent contractors, dependent contractors or employees of the respondent) should be dealt with by way of officer examination and report to the Board.
The respondent submitted inter alia that the community of interest and bargaining issue be determined by the Board.
Nothing which we have heard today with respect to the evidence which each party has indicated it will adduce with respect to this "community of interest" issue would cause us to depart from our usual practice that in an application brought pursuant to the construction industry provisions of the Act, a craft union such as the applicant must seek to represent all members of its craft employed by the respondent. As a result we find it inappropriate to grant the request to appoint an officer with respect to that issue. We find it inappropriate to grant the applicant's request to describe the bargaining unit by including the words "engaged in the installation of exterior cladding systems" or the clarity note with respect thereto.
Having regard to the further representations of the applicant we find the appropriate bargaining unit in this instance to consist of all carpenters and carpenters' 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 carpenters and carpenters' apprentices in the employ of the respondent in all other sectors in all 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 nonworking foremen and persons above the rank of non-working foreman, constitute a unit of employees of the respondent appropriate for collective bargaining.
We do not propose to hold this matter in abeyance pending a decision of the Board in what was referred to as the Mann ville case.
We hereby appoint an officer to meet with the parties in respect of the list of employees and to conduct the usual inquiries and examinations and report to the Board on the employment status of the persons characterized by the respondent as being independent contractors but whom the applicant asserts are employees and/or dependent contractors within the meaning of the Act.