Labourers' International Union of North America v. Baghai & Cho Incorporated
[1998] OLRB REP. MARCH/APRIL 146
1474-97-R Labourers' International Union of North America, Applicant v. Baghai & Cho Incorporated, Responding Party
BEFORE: D. L. Gee, Vice-Chair.
APPEARANCES: John Moszynski, Durval Terceira and Luis Camana; Joseph Liberman and Sheryl Johnston for the responding party.
DECISION OF THE BOARD; March 23, 1998
1The style of cause is hereby amended to refer to the responding party as: "Baghai & Cho Incorporated".
2This matter is an application for certification under the construction industry provisions of the Labour Relations Act, 1995 (the "Act").
3Pursuant to the Board's direction of August 1, 1997, on August 6, 1997, a representation vote was taken of the individuals in the following voting constituency:
all carpenters and carpenters' apprentices in the employ of The Shane Baghai Group in all sectors of the construction industry 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 non-working foremen and persons above the rank of non-working foreman.
4Two individuals cast ballots. The responding party challenged the entitlement of both individuals to vote on the basis that they were independent contractors and not employees. A hearing was held for the purpose of hearing the parties' evidence and submissions into the status of the two individuals in dispute. During the course of the hearing, it became apparent that, even if the applicant was successful with its assertion that the two individuals were employees of the responding party, one of the individuals would be excluded from the unit on the basis that he exercised managerial functions. As a result, the applicant advised the Board that it wished to withdraw the application.
5An issue then arose as to whether the Board should impose a bar on the applicant's ability to file another application for certification with respect to employees in the proposed bargaining unit. The applicant was given until March 12, 1998 to file any submissions it wished the Board to consider on this issue. The responding party was given until March 19, 1998 to file its submissions. The Board is in receipt of submissions from the applicant. No submissions have been received from the responding party.
6Section 7(10) of the Act provides as follows:
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(10) If the trade union withdraws the application after the representation vote is taken, the Board shall not consider another application for certification by the trade union as the bargaining agent of the employees in the proposed bargaining unit until one year has elapsed after the application is withdrawn.
The applicant submits that section 7(10) does not apply to this application on the basis that sections 153 to 167 constitute a complete code which is to govern construction industry certification applications and that there is no equivalent to section 7(10) in sections 153 to 167.
7It is the Board's determination that section 7(10) applies to construction industry certification applications. Section 152 of the Act stipulates that sections 7 to 63 and 68 to 144 of the Act do not apply where there is a conflict with sections 153 to 167. As indicated above, sections 153 to 167 are silent as to whether a bar is to be applied where a trade union withdraws as application for certification following the taking of a representation vote but prior to the counting of the ballots. There is thus no "conflict" between section 7(10) and any of the provisions of sections 153 to 167 such that section 7(10) applies.
8Having regard to the foregoing, this application is hereby withdrawn by leave of the Board. The Board will not consider another application for certification by the trade union as bargaining agent of the employees in the proposed bargaining unit until one year has elapsed from the date of this decision.
9The Registrar will destroy the ballots cast in the representation vote taken in this matter following the expiration of 30 days from the date of this decision unless a statement requesting that the ballots should not be destroyed is received by the Board from one of the parties before the expiration of such 30 day period.
10The responding party is directed to post copies of this decision immediately, adjacent to the "Notice to Employees of Application and of Vote" posted previously. These copies must remain posted for a period of 30 days.