Shopmen's Local #834 of the International Association of Bridge, Structural and Ornamental Iron Workers v. E.S. Fox Limited
Citation and File
[1992] OLRB Rep. June 693
0314-92-R
Applicant: Shopmen's Local #834 of the International Association of Bridge, Structural and Ornamental Iron Workers Respondent: E.S. Fox Limited Intervener #1: Millwrights District Council of Ontario, United Brotherhood of Carpenters and Joiners of America on behalf of Locals 1007, 1151, 1244, 1410, 1425,1592, 1916 and 2309 Intervener #2: United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union 666 Intervener #3: International Brotherhood of Electrical Workers, Local 303 Intervener #4: International Union of Operating Engineers, Local 793
Before: Susan Tacon, Vice-Chair, and Board Members G. 0. Shamanski and R. R. Montague.
Appearances: Ronald Davis, John Sciandra and Brian Doherty for the applicant; W. J. McNaughton and M. Whittaker for the respondent; N. L. Jesin and Ron Coltart for intervener #1; Brian Scott and W. McRoberts for intervener #2; P. Roach for intervener #3; and Jack Slaughter and James Anderson for intervener #4.
Decision of the Board: June 8, 1992
Decision
1The style of cause is hereby reflected to add as interveners to these proceedings: "Millwrights District Council of Ontario, United Brotherhood of Carpenters and Joiners of America on behalf of Locals 1007, 1151, 1244, 1410, 1425, 1592, 1916 and 2309 (the "Millwrights"); United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union 666 (the "U.A. Local 666"); International Brotherhood of Electrical Workers, Local 303 (the "I.B.E.W."); and International Union of Operating Engineers, Local 793 (the "I.U.O.E.") as interveners to these proceedings.
2This is an application for certification by the Shopmen's Local 834 in which there is a intervener certification application by the Millwrights. The parties met with a Board Officer; however, a number of matters remained in dispute.
3At the hearing, the Board dealt with several issues by way of oral ruling following submissions from all parties. It is useful in the circumstances for the Board to set out those rulings herein.
4Counsel for the respondent (joined by counsel for the U.A. Local 666) sought an adjournment of the hearing to give notice to the Canadian Pipe Fabricators Association and the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada. The Board ruled that the respondent (and implicitly the U.A. Local 666) cannot raise the issue of notice to those parties at this point in the proceeding given the wording of the bargaining unit description sought in the original application and the fact that that issue was not raised at the meeting with the Board Officer. As to whether the U.A. and/or the Pipe Fabricators Association could subsequently raise the notice issue themselves, that was a risk which the other parties were content to bear. Further, the Board ruled that the usual exclusion given in industrial units where other trade unions held bargaining rights, that is, excluding employees in bargaining units for whom any trade union held bargaining rights as at April 28, 1992 (in the instant case), would ensure that the bargaining rights of the U. A. would not be affected by the instant application for certification.
5The respondent also sought an adjournment of the proceedings and an extension of the terminal date because of the Millwrights' intervener application. The Board ruled that the Board's practice in dealing with intervener applications filed on or before the terminal date established with respect to an "original" application for certification is to have that intervener application governed by the application and terminal dates established for that original application. The Board heard no compelling reasons to depart from that practice in the instant case. Accordingly, the Millwrights' certification application will be determined on the basis of the application and terminal dates established in the Shopmen's Local 834 application and the terminal date will not be extended.
6The respondent (joined by the U.A. Local 666) submitted by way of preliminary motion that the instant certification application of the Shopmen's Local 834 (and of the Millwrights) be deferred pending a determination of two section 126 [formerly section 124] referrals of grievances to arbitration (Board Files 3256-91-G and 3540-91-G). The former grievance referral involved the International Union of Operating Engineers and its Local 793 and the respondent in the instant proceedings; the latter involved the Millwright District Council of Ontario on its own behalf and on behalf of its Local 1007 and the respondent herein. Those grievance referrals had been listed together before another panel of the Board; an interim ruling dealing with preliminary matters had issued and the referrals are to be listed for continuation. The Board herein ruled that the instant certification applications not be deferred until the section 126 grievance referrals were determined and/or were not to be listed together with the section 126 grievance referrals. The Board was not persuaded, given the context of the grievance referrals, the issues to be determined therein and the parties to those proceedings, that the instant certification application should be delayed. In this regard, the Board noted for the record and information only the stipulation by counsel for the Shopmen's Local 834 that "should the Millwrights and/or the Operating Engineers be successful in their grievances in establishing bargaining rights, the applicant would be bound by the determinations of the Board in those grievance referral proceedings".
7The Board then turned to the bargaining unit description. With respect to the application by the Shopmen's Local 834, there was partial agreement with respect to the bargaining unit description as follows: all employees of E.S. Fox Limited at Port Robinson, save and except foremen, persons above the rank of foreman, office and clerical staff. The parties further agreed on the following clarity note: "It is understood that draftspersons are excluded from the bargaining unit as office and clerical employees". On the basis of that agreed clarity note, the respondent withdrew its request to exclude "technical" staff.
8On agreement of the parties, the Board hereby appoints a Board Officer to do a record check with respect to the list and composition of employees in the bargaining unit in order to resolve, if and to the extent possible, the challenges raised by various of the parties at the Board Officer meeting to the schedule of employees filed by the employer.
9This matter is referred to the Registrar to be listed for continuation on September 23, 24 and 25, 1992. This panel is not seized.