2347-00-R Brick and Allied Craft Union of Canada, Applicant v. Ontario Power Generation Inc., Responding Party v. Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftworkers; International Union of Bricklayers and Allied Craftworkers; International Union of Bricklayers and Allied Craftsmen, Local 6; International Union of Bricklayers and Allied Craftsmen, Local 7; International Union of Bricklayers and Allied Craftsmen, Local 25, Intervenors.
BEFORE: David A. McKee, Vice-Chair.
DECISION OF THE BOARD; December 20, 2000
This is an application for certification made pursuant to the construction industry provisions of the Labour Relations Act, 1995, S.O. 1995 ch. 1 (the "Act"). It is currently scheduled for January 17 and 18, 2001. There may be some difficulty maintaining the second day set for hearing. I have been appointed as Vice-Chair to sit alone to hear this application.
There are a number of issues, some of which appear to be more a matter of argument than evidence. Absent further submissions from any of the parties, I propose to deal with them in the following order (assuming that all issues remain in dispute on the 17th and even if the first issue is decided against the would-be intervenor):
The first issue is the status of International Union of Bricklayers and Allied Craftworkers Locals 6, 7, and 25 (“IUBAC Locals 6, 7, and 25”) to intervene. The Board is aware that the Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftworkers (the “OPC”) was certified by the Board as a council of trade unions in 1984 (Board File No. 1913-84-R) and on various occasions since then. In addition to any other argument in this issue, I would ask the parties to deal with the issue of the effect of the issuance of a certificate to a council of trade unions on pre-existing bargaining rights contained in a collective agreement negotiated by the council as an uncertified council of trade unions.
The second issue is the question of who has the authority to represent the OPC in this proceeding. It does not appear that this issue needs to be dealt with to proceed with the hearing. Subject to any submissions of the parties, my preference is to leave that matter to be decided in Board File No. 2148-00-U.
The third issue, and the one most likely to require evidence, is the issue raised by the International Union of Bricklayers and Allied Craftworkers (“IUBAC”) and Locals 6, 7, and 25 as to whether the applicant has violated certain sections of the Act, whether such violations have any impact on the applicant’s right to bring this application, whether it should be dismissed as an abuse of process, or on the grounds of fraud. In order to expedite the proceedings, the Board requests the parties to be prepared to address argument on the issue of whether, assuming all of the facts set out in both the interventions filed by the IUBAC and Locals 6, 7, and 25 are true, any of those facts would cause the Board to dismiss the application. In this regard it may be of assistance if the IUBAC and Locals 6, 7, and 25 file any further particulars on which they wish to rely. If they choose to do so, such particulars should be filed on or before January 10, 2001.
The fourth group of issues, assuming they continue to be of statutory relevance, are the issues of whether the applicant is a trade union within the meaning of section 126, whether it may rely on the general provisions of the Act if necessary, and whether it is a council of trade unions. In respect of this latter point, the responding party and intervenors should be aware that the membership evidence in this application indicates that the individual signing it makes application to become a member of the Brick and Allied Craft Union of Canada.
The fifth issue is the “estoppel” issue raised in the interventions. This may be a variation on the argument in the third group of issues.
The sixth issue is the one raised with respect to the Board’s practice of conducting a representation vote only among those employed on the date of application. This appears to be an argument that can be dealt with on the basis of allegations assumed to be true (if not agreed facts).
The last issue, but by no means the least important one, is whether there is a collective agreement in effect, and what the scope of the appropriate bargaining unit should be. Since one possible result of some of the previous issues might be a dismissal of the application, this issue is most appropriately dealt with last.
This order and manner of proceeding is simply my view of the most efficient way to proceed and is based only on a review of the file without the benefit of submissions from counsel. Any party should feel free to disagree with the characterization of the issues or the order and manner of dealing with them, either prior to or at the hearing.
“David A. McKee”
for the Board