1880-98-R Labourers’ International Union of North America, Local 527, Applicant v. Karson Kartage & Konstruction (1994) Limited, Responding Party v. Karson Kartage & Konstruction Employees’ Association, Intervenor.
2223-98-U Labourers’ International Union of North America, Local 527, Applicant v. Karson Kartage & Konstruction (1994) Limited, Karson Kartage & Konstruction Employees Association, Responding Parties.
2224-98-U Labourers’ International Union of North America, Local 527, Applicant v. Karson Kartage & Konstruction (1994) Limited, Karson Kartage & Konstruction Employees Association, and Kevin Hanna, in his capacity as the President of the Karson & Konstruction Employees Association and in his personal capacity, Responding Parties.
BEFORE: David A. McKee, Vice-Chair.
APPEARANCES: Daniel Randazzo and Shawn McLaughlin for Labourers’, Local 527; Michael S. Ruddy and Bill Karson for Karson Kartage & Konstruction (1994) Limited; Charles V. Hofley and Kevin Hanna for Karson Kartage & Konstruction Employees’ Association.
DECISION OF THE BOARD; March 2, 2000
These three applications are an application for certification pursuant to the construction industry provisions of the Labour Relations Act, 1995, S.O. 1995 ch. 1 (“the Act”) and two applications made under section 96 of the Act. The first of these two latter applications concerns the alleged discharge of an employee for reasons prohibited by sections 70, 72 and 76 of the Act. The second application is an allegation that the responding party, Karson Kartage & Konstruction (1994) Limited (“Karson”) and the intervenor, Karson Kartage & Konstruction Employees’ Association (“the Association”) have violated sections 15, 64, 70 and 73 of the Act. The essential relief sought in this last application is a declaration that Karson participated in the formation, selection or administration of the Association by contributing financial or other support, and that for that reason, the bargaining rights acquired under a certificate issued by the Board earlier in 1998 do not stand as a bar to the application for certification.
These applications first came on for hearing on February 17, 2000. At that time the Board dealt only with preliminary motions, specifically motions by the responding party, supported by the intervenor, that the second unfair labour practice complaint be dismissed as failing to disclose a prima facie case or that certain portions of the pleadings in both section 96 applications be struck for various reasons. At the hearing the Board gave its ruling with respect to these preliminary matters, and this decision records more fully the reasons for those decisions.
Some background facts are required. This application for certification was filed on August 28, 1998. The applicant was apparently unaware that on March 24, 1998 the Association had made application to be certified as the bargaining agent for a unit “comprised of employees who work as equipment operators, truck drivers and labourers for the responding party”. A certificate was issued in that application (Board File 4944‑97‑R) on April 22, 1998. Accordingly, when this application for certification in respect of all construction labourers was filed, both Karson and the Association took the position that the application was barred by the existence of the certificate issued by the Board earlier that year. The applicant has sought to attack those bargaining rights in two fashions. First, as part of the section 96 application, or more directly as a request for reconsideration in Board File 4944-97-R, the Labourers seek to have the certificate rescinded. The Labourers’ argument is that the Association is not a trade union within the meaning of section 126, and accordingly, was unable to be certified for a unit of employees engaged in work in the construction industry. On this theory, a certificate ought not to have been issued and ought to be revoked.
The Board ruled that it would not entertain this application, either directly as a reconsideration of Board File 4944-97-R, or indirectly through the section 96 application. In order to obtain standing in a certification application, a trade union must demonstrate that it holds bargaining rights, either through a certificate or a collective agreement, for employees in the bargaining unit, or that it has at least one member in the bargaining unit: Formrite Forming Ltd., [1971] OLRB Rep. Feb. 49, Neo Industries Ltd., [1976] OLRB Rep. Mar. 88. In this case, the applicant suggested that the Board might compare the membership evidence filed in its application for certification with the list agreed upon in the earlier certification application. However, even if such a comparison were to reveal that the applicant represents one or more persons who were members of the bargaining unit when the Association made its application, there is still an issue of timeliness. Such an application made, or deemed to be made, on August 28, 1998, at the earliest, would be some months after the certificate issued. The applicant concedes that there is no issue with respect to the posting of notices of the Association’s application in March of 1998. September of 1988 is simply too late for an employee who had notice, or a trade union acting as the agent of such employee, to raise any issue with respect to the application for certification: Zaph Construction Ltd., [1977] OLRB Rep Nov. 741 ( a section 1(4) application) and Delcon Electric Ltd., [1976] OLRB Rep. July 362. Were it otherwise, there would never be any finality to a certificate issued by the Board. A certified trade union would be faced with potentially, an endless series of applications for reconsideration by one or another disenchanted employee who has obtained the support of a rival trade union.
We would note, parenthetically, that the issue of whether or not the Association is a trade union as defined in section 126 appears to this panel of the Board still to be an open question. Although the issue was clearly raised in Board File 4944‑97‑R, it does not appear to have been answered by the Board. This entire question remains to be determined when it is relevant in some future proceeding.
Karson also sought to strike out all or certain portions of the two section 96 applications. Dealing first with Board File 2224-98-U, Karson’s objection focussed primarily on paragraph 3(iv). While the paragraph could have been better drafted, the sense of the allegation is clear enough and there is no prejudice to any of the responding parties in permitting the applicant to clarify verbally, as it did at the hearing, what was meant by the sentence.
With respect to the section 96 complaint in Board File 2223-98-U, certain portions of the application and subsequent correspondence were struck for the reasons indicated below. However, in the remaining portions of that complaint, there are sufficient particulars to make out a prima facie case if the facts are proven. Therefore, that application will proceed. The second half of paragraph 3(iv) and paragraph 3(v) were withdrawn by the applicant. Paragraph 3(vi) will be struck. The allegation is too vague and too lacking in particulars to remain as part of the pleadings. With respect to the letter of October 29, 1998 filed by the applicant containing supplementary pleadings, paragraphs 2 and 5 have been withdrawn. Paragraph 4 is struck since it is essentially the same issue raised by the applicant’s application to reconsider Board File 4944-97-R. The remaining particulars contain sufficient facts which, if proven, would make out a violation of the sections pleaded (other than section 15).
Accordingly, all three matters will proceed, as amended, on the next dates set for hearing. Counsel spent part of the day on February 17 discussing the applicant’s request for production of certain documents. The parties advised the Board that they were confident they could come to an agreement amongst themselves. The Board has since the date of hearing received correspondence indicating these discussions continue. If the parties are unable to resolve production issues, they are directed to advise the Board in writing of the nature of the dispute, including the documents sought, what in fact exists in documentary form, and the reasons for the refusal of the party in possession of those documents to produce them. If this cannot be done prior to the next day of hearing, the party in possession of the documents is directed to bring them to the Board so that if production is required they may be produced instantly.
I remain seized of this application.
“David A. McKee”
for the Board