Ontario Labour Relations Board
File No.: 1738-99-R Date: April 10, 2000
United Brotherhood of Carpenters and Joiners of America, Applicant v. Four Hundred Structures Inc., Responding Party.
Before: Inge M. Stamp, Vice-Chair, and Board Members J. G. Knight and G. McMenemy.
Decision of the Board
1These are requests for reconsideration of the Board’s decisions in this matter dated September 20, 1999 and October 14, 1999. The September 20 decision is the Board’s standard decision directing a representation vote in a certification application. The October 14 decision certified the Carpenters as bargaining agent for all carpenters and carpenters’ apprentices, all ironworkers and ironworkers’ apprentices, all construction laborers and all employees engaged in the operation of cranes, shovels, bulldozers, and similar equipment and those primarily engaged in the repairing and maintaining of same and all employees engaged as surveyors in the employ of Four Hundred Structures Inc. in all sectors of the construction industry in the County of Simcoe and the District Municipality of Muskoka, excluding the industrial, commercial and institutional sector, save and except non-working foremen and persons above the rank of non-working foreman.
2The above decisions were issued based on written materials filed with the Board pursuant to the construction industry provisions of the Labour Relations Act, 1995 (the “Act”). No hearings were held.
3On November 10, 1999 the International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 721 (the “Ironworkers” or “Local 721”) and the Labourers’ International Union of North America, Local 183 (the “Labourers or “Local 183”) applied for reconsideration of the above decisions. On November 17, 1999 the International Union of Operating Engineers, Local 793 (the “Operating Engineers” or “Local 793”) also applied for reconsideration of those decisions. The Ironworkers filed what appears to be a second request for reconsideration on December 29, 1999.
4The Rules require reconsideration requests to be filed within 20 working days of the date of the decision. The final decision in this matter was issued October 14, 1999. The first request for reconsideration filed by the Ironworkers and the request for reconsideration filed by the Labourers are timely. The reconsideration request filed by the Operating Engineers and the second request for reconsideration filed by the Ironworkers are not timely. The timely request for reconsideration filed by the Labourers raises identical issues and makes the same submissions as the request for reconsideration filed by the Operating Engineers.
5The Board will deal with the timely requests for reconsideration filed by the Ironworkers Local 793 and the Labourers Local 183. While the Operating Engineers Local 793 request for reconsideration is untimely, Local 183 and Local 793 essentially made the same submissions as to why the Carpenter’s certificate should be revoked. Both unions claim bargaining rights for the respondent employer, Four Hundred Structures Inc.(“Four Hundred”), by reason of section 1(4)/69. In the alternative Local 183 submits the Board should direct that no effect should be given to any representation vote until all of the other applications involving these parties have been determined. Local 183 filed an Intervention together with the Request for Reconsideration.
6The Ironworkers submit the certificate issued to the Carpenters should be amended to delete the reference to ironworkers and ironworkers’ apprentices in paragraph 3 of the decision of October 14, 1999 and to amend the certificate issued to the Carpenters deleting any reference to ironworkers. The Ironworkers assert they hold bargaining rights for this employer for ironworkers by virtue of section 1(4)/69. The Ironworkers Union asserts there were no ironworkers at work on the application date and while there may have been rodmen at work the applicant carpenters did not apply for a unit that named rodmen but identified ironworkers as being at work in the non-ICI bargaining unit.
7Local 183 alleges that Mr. Tony Fontana is involved in a scheme by using Four Hundred as a front to deprive the other unions of their rights. There are allegations of improper conduct by Mr. Walter Tracogna, the Carpenters’ union representative and Mr. Fontana.
8It is further alleged by the Labourers that Four Hundred was not incorporated until September 23, 1999 and therefore the employees at work on the application date could not have been working for Four Hundred since this company was not a legal entity capable of employing anyone on the date of application. Since the company did not exist legally there cannot have been any employees in the bargaining unit applied for.
9The Labourers concede that while this rather unusual argument may not be relevant in any number of normal cases it is relevant here because of the alleged scheme of deceit and deception by Mr. Fontana and others to avoid the legitimate bargaining rights of the Labourers. It is the position of Local 183 that part of this scheme involved the certification of a company which did not, at the time, legally exist, and accordingly Local 183 asserts it is unclear as to how they could have claimed bargaining rights with such a company prior to the Carpenters’ certification application.
10The Labourers raise section 11 and/or section 15 and section 64 of the Act. Local 183 also alleges there was no posting of the application for certification as required by the Board’s Rules. The notice of application for certification is titled “Notice to Employees of Application for Certification, Construction Industry”. No employees have indicated that they were not aware of the application or that they did not have an opportunity to vote. Four of the five persons eligible to vote did in fact vote.
11The Labourers assert that the Board departed from its normal procedures by apparently shortening the time limits for holding the vote. The decision directing the vote indicated the Responding Party was served with the application materials on September 17, 1999. An amended certificate of delivery was filed with the Board on September 16, 1999 at 2:37 p.m. The amended Form A-75 indicated that the documents were delivered by facsimile transmission on September 15, 1999 at 14:00 p.m. The Vote Co-ordinator followed the Board’s normal process in setting up the vote arrangements. Although the Board’s decision did not reflect the receipt of the amended certificate of delivery, the vote arrangements were made pursuant to the Board’s normal practice.
12The argument by the Labourers that the responding party should not be certified because it was not incorporated at the time of the application for certification is not persuasive. What constitutes a normal application? The Board has certified many employers who may or may not be “incorporated”. It would certainly be an unusual result if the Board were to find that a union could not obtain bargaining rights for an employer if he was not legally incorporated in the province of Ontario.
13With respect to the bargaining unit description in these circumstances the Board is not persuaded to go behind the agreement of the parties to the application for certification. None of the unions asking for reconsideration claim to represent employees of Four Hundred.
14For the foregoing reasons the Board is not persuaded to reconsider the decisions of September 20, 1999 and October 14, 1999.
15There are numerous allegations filed by various parties in a number of related applications. When all of these matters have been adjudicated and the applicants are successful, there may be remedies directed by the Board that may affect the bargaining rights granted in this application.
16The Registrar is directed to schedule the following applications for a pre-hearing conference before a Vice-Chair to deal with any and all procedural and preliminary issues:
Board File Nos. 2673-99-U; 2267-99-U; 2268-99-R; 2491-99-U; 2490-99-R and 2489-99-G.
"Inge M. Stamp" for the Board