[1998] OLRB REP. SEPTEMBER/OCTOBER 847
2090-98-R Labourers' International Union of North America, Local 1059, Applicant v. Monte Vista Contracting Inc. Scrivens' Essential Services Inc., Responding Party
BEFORE: Lee Shouldice, Vice-Chair.
DECISION OF THE BOARD; September 23, 1998
This is an application for certification made under the construction industry provisions of the Labour Relations Act, 1995 (hereinafter "the Act").
The Board finds that the applicant is a trade union within the meaning of sections 1(1) and 126 of the Act and is an affiliated bargaining agent of a designated employee bargaining agency. Pursuant to the designation issued by the Minister of Labour under section 153(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.
The "responding party" has been identified by the applicant as "Monte Vista Contracting Inc. Scrivens' Essential Services Inc.". It would appear that these are two separate legal entities, which are, on their face, two separate employers. This causes some difficulty to the Board in making the necessary assessments required to order a vote. In Merton Residences Corp./Martap Developments Limited/Martap Developments 87 Limited/Martap Developments 93 Limited (Board File 0140-98-R, unreported decision of the Board dated April 17, 1998), the Board identified these difficulties in the face of an application brought by Labourers' International Union of North America, Local 183 as against four separate employers:
"5. The responding "party" has been identified by the applicant as Merton Residences Corp./Martap Developments Limited/Martap Developments 87 Limited/Martap Developments 93 Limited. On its face, these are four separate legal entities, which prima facie are separate employers. In the absence of a declaration under section 1(4) of the Act that they or any combination of them constitute a single employer for purposes of the Act, they are four separate employers. The applicant does not seek a section 1(4) declaration in this application for certification. There is nothing to indicate that it has made any such application separately. Nor does it even assert that they, or any of them taken together constitute a single employer for labour relations purposes. Accordingly, there are four responding parties to this application, not a single one.
In addition, in support of this application, the applicant has filed three pieces of membership evidence, and it asserts that there were three employees in the bargaining unit, (which is its standard construction labourers non-ICI bargaining unit.)
All of this creates some difficulties. In section 1(1) of the Act, "bargaining unit" is defined as:
"bargaining unit" means a unit of employees appropriate for collective bargaining, whether it is an employer unit or a plant unit or a subdivision of either of them.
All of the certification provisions in the Act which relate to the various aspects of certification proceedings also speak in terms of "employer' not employers" (see, sections 7, 8, 12, 13, 14, 15 and 158).
Accordingly, every application for certification must be for a bargaining unit of employees of a single employer, either as such, or declared by the Board to constitute a single employer under section 1(4) of the Act. Four corporations cannot constitute a single employer for purposes of an application for certification without a section 1(4) declaration, or at least an application for such a declaration.
further, section 9(1) of the Act requires that every bargaining unit in an application for certification consist of more than one employee. Sections 8(2) and (3) of the Act direct the Board to determine whether forty per cent or more of the individuals in the bargaining unit (i.e. the employees of a single employer) proposed in the application for certification appear to be members of the union at the time the application was filed with reference only to the information provided by the applicant union in its application and under section 7(13) (the membership evidence).
In this case, there are four employers, and according to the applicant's materials, only three employees among them at the material time. It is impossible for there to have been more than one employee in the proposed bargaining unit for more than one of the four named employers. It is equally impossible for the Board to determine which, if any, of the four employers the three employees (or any of them) were employed by at the material times. Concomitantly, it is impossible for the Board to make the "forty per cent or more" determination required by section 8(2) of the Act, which determination is a precondition to a direction that a representation vote be taken."
The same difficulties identified by that panel of the Board face this panel. There is no application under section 1(4) of the Act which accompanies this proceeding. Furthermore, it is impossible for the Board to assess even the appearance of a forty percent membership threshold when the applicant asserts that there are only two employees employed by the "responding party". Various combinations and permutations can be formulated, some of which would require the application to be dismissed in accordance with section 9(1) of the Act.
In the circumstances, I am satisfied that this application, like that one quoted above, is fundamentally flawed, and cannot proceed. This application is, therefore, dismissed.