Labourers’ International Union of North America, Local 183 v. Cornerstone Engineering & Restoration Inc., 2000 CanLII 12406

Labourers’ International Union of North America, Local 183 v. Cornerstone Engineering & Restoration Inc.

1661-99-U; 1472-99-R Labourers’ International Union of North America, Local 183, Applicant v. Cornerstone Engineering & Restoration Inc., Responding Party.

BEFORE: Gail Misra, Vice-Chair.

DECISION OF THE BOARD; March 23, 2000

1Board File No. 1472-99-R is an application for certification in the construction industry. Board File No. 1661-99-U is an unfair labour practice complaint.

2The parties have reached agreement on all matters in dispute between them and have entered into Minutes of Settlement dated March 21, 2000 which states as follows:

Minutes of Settlement

Between

Labourers’ International Union of North America, Local 183

(the “Union”)

• and –

Cornerstone Engineering and Restoration Inc.

(the “Employer”)

In the matters of OLRB File Nos. 1661-99-U and 1472-99-R, the Parties agree to a full and final settlement on the following basis:

1. a second representation vote will be held at the Employer’s premises on May 19, 2000 at 4:00 p.m. with an agreed to voter’s list, as set out below; the vote will be conducted by Frank Reilly;

2. prior to the vote, the Employer shall post the Board’s “standard posting”, attached hereto, for thirty (30) days in the Employer’s office and warehouse;

3. on or before Friday, March 24, 2000, the Employer shall fax to Henry Pereira at fax number (416) 241-9845 a list of the addresses and telephone numbers of the individuals on the agreed to voters’ list, as well as their job locations;

4. the Employer agrees that the individuals whose names appear on the agreed to voters list may attend a meeting at the Union’s premises, and that those individuals will be permitted to two (2) hours paid time (at their straight time hourly rate) to attend said meeting. No individual who is not an employee of the Employer at the time of this meeting will be paid for this time. Attendance at the meeting is entirely voluntary. The Union will contact Mr. Don Zehr to arrange a mutually agreeable time for the meeting;

5. the Employer agrees that Henry Pereira may attend a job site of the Employer’s up to twice per month between the date of these Minutes and May 19, 2000. The Union agrees that such visits will take place before working hours, or during lunch breaks, and that they will in no way interfere with work being performed on the site. The union also agrees to provide Mr. Don Zehr (on behalf of the Employer) at least one-half hour notice of such a visit, and that the Union will be solely responsible for obtaining the permission of any Owner or General Contractor, if such permission is necessary;

6. the parties agree that no employee shall be disciplined or discharged except for just cause, and that between the date of these Minutes and May 19, 2000, any claim by an employee that he has been disciplined or discharged without just cause may be the subject of a grievance. The parties agree that this Paragraph does not in any way apply to an employee of less than three (3) months duration (a “probationary” employee);

7. the parties agree to apply the provisions in Articles 4 and 5 of the Collective Agreement between the Union and the Restoration Contractors Association (expiring April 30, 2001), subject to the following condition the parties agree that Articles 4 and 5 will be applied only as they relate to a claim by an employee that he has been disciplined or discharged without just cause (in other words, the parties agree that the only matter which may be the subject of a grievance under this settlement is a claim by an employee that he has been discipline or discharged without just cause); the parties agree that Paragraphs 6, 7 and 9 (below) apply only in OLRB Area 8;

8. the parties agree that this Settlement constitutes a Settlement pursuant to s. 96(7) of the Ontario Labour Relations Act;

9. the Employer agrees that, for the duration of this Settlement (until May 19, 2000), it will not subcontract out work if such subcontracting directly or indirectly results in the layoff of one (1) or more employees on the agreed to voters’ list. The parties agree that this Paragraph does not apply to work that the Employer does not usually perform (including but not limited to painting and waterproofing);

10. this Settlement is without prejudice or precedent, and is without any admission of liability on the part of any person or party;

11. this Settlement may not be used to argue that there exists any legal relationship between the union and the Employer, and it may not be argued that this Settlement constitutes a collective agreement under the terms of the Ontario Labour Relations Act;

12. the Employer argues that it shall pay to the Union the sum of five thousand dollars ($5000.00) on or before Friday, March 24, 2000 and the Union agrees that it will use these funds to purchase benefits for the individuals on the agreed to voters’ list for the period between the date of this settlement and May 19, 2000, and that the Union will contact individuals to obtain their SIN’s for this purpose;

13. the parties agree that, should the Union not be successful in the second representation vote, the terms of this Settlement expire on May 19, 2000. Should the Union be successful, the terms of this Settlement would remain in place until either (a) the parties conclude a collective agreement, or (b) the parties are in a strike or lockout position;

14. the Parties agree that, for one-half hour prior to the taking of the second representation vote, all and only the individuals on the agreed to voters’ list will meet with Senior Labour Relations Officer Frank Reilly, who shall speak to all such individuals about their rights under the Act, and answer questions from such individuals in his sole discretion;

15. the parties agree that OLRB File Nos. 1661-99-U and 1472-99-R are settled in every respect, and the allegations contained therein may not again be raised in any Board proceeding.

15a) The Employer recognizes that the new name of the Union is “Universal Workers Union, L.I.U.N.A. Local 183” and that this name will appear on the ballot. The Employer further agrees that, in the event the union is successful in the vote, the Certificate will issue in the new name of the Union.

15b) The scrutineer for the Union and representative at the count shall be Henry Pereira. The scrutineer for the Employer and the representative at the count shall be Don Zehr.

16. the agreed to voters’ list for the second representation vote is as follows:

17. Anao, Fernando

18. Balicki, Gord

19. Banks, Mike

20. Barlaw, Scott

21. Blackman, Barry

22. Davey, Bruce

23. Dugan, Shaun

24. Flynn, Phillip

25. Mazerolle, Danielle

26. Mudford, Rick

27. Mudford, Robert

28. Mudford, Ron

29. Richards, Andrew

30. Skrt, Don

31. the parties agree, for clarity, that the inclusion of Robert Mudford does not indicate that he has any employment relationship with the Employer as at the date of these Minutes;

32. the parties agree to the terms of this Settlement being made into a Consent Order of the Board.

Dated at Toronto on this 21^st day of March, 2000.

“Don Zehr” . “Henry Pereira” .

For the Employer For the Union

Don Zehr Henry Pereira

3Having regard to the Minutes of Settlement and the parties’ request, the terms of the settlement are hereby made an order of the Board. These matters are referred to the Manager of Field Services to make the new vote arrangements in accordance with the settlement.

4The employer is directed to post the attached Notice in its office and warehouse, where it will come to the attention of workers, for 30 days from the date of this decision.

“Gail Misra”

for the Board