Brick and Allied Craft Union of Canada v. Ontario Power Generation Inc., 2000 CanLII 5469

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, and Board Members J. G. Knight and G. McMenemy.

DECISION OF THE BOARD; November 15, 2000

This is an application for certification filed under the construction industry provisions of the Labour Relations Act, 1995 (the "Act"). It came before this panel as the “duty” panel for the week of November 14-17, 2000.
The Board finds that the applicant is a trade union within the meaning of sections 1(1) and 126 of the Act.
It appears to the Board on an examination of only the information provided in the application and the information and membership evidence filed by the applicant (see section 8(3) of the Act), that not less than forty per cent of the individuals in the bargaining unit proposed in the application for certification were members of the union at the time the application was made.
The Board further finds that this application does not relate to the industrial, commercial and institutional sector of the construction industry referred to in section 126 of the Act.
A response has been filed by the responding party. Interventions were received from the International Union of Bricklayers and Allied Craftsmen (“IUBAC”), two from two different parties, both of whom claim to be the Ontario Provincial Council of the IUBAC, and one from Locals 6, 7 and 25 of the IUBAC. The response raises the following issues:

a) the proper bargaining unit descriptions;

b) as a subsidiary of that issue, the scope of the description proposed by the applicant in regards to other employers;

c) whether there is a subsisting collective agreement.

The interventions raise, or purport to be able to raise, in addition to the above issues (although differently articulated), the following issues:

a) who is entitled to represent the Ontario Provincial Council of the IUBAC;

b) whether the applicant has violated various sections of the Act, and if so, whether such violations have any impact on the applicant’s right to bring this application;

c) an estoppel argument;

d) the capacity of the applicant to bring this application as a “section 126 union”

e) whether the application is brought by a council of trade unions;

f) the right of the applicant to bring this application, if necessary, in the alternative under the general provisions of the Act;

g) whether the applicant is a craft union, and whether the issue is relevant on a displacement application;

h) whether the Board’s practice of conducting a representation vote only among those employed on the application date is appropriate;

i) whether the ballot box should be sealed;

j) whether Locals 6, 7 and 25 have the right to intervene in this application;

k) whether the application should be dismissed as an abuse of process or because it is a species of fraud.

None of these issues will prevent the Board from conducting the representation vote, although none of them needs to be determined in a final fashion at this time.
The Board’s practice is, where possible, to describe a bargaining unit and the voting constituency in a displacement application in terms identical to those in an existing collective agreement. All parties have proposed changes to the existing language for different reasons. It is clear that the language of the existing collective agreement is no longer appropriate as a result of the changes to Ontario Hydro. In addition, where there is a dispute about the proper voting constituency, the Board’s practice is to describe the widest possible constituency.
The Board finds that:

all bricklayers, bricklayers’ apprentices, bricklayer improvers, stonemasons, stonemasons’ apprentices, stonemason improvers, plasterers, plasterers’ apprentices, plasterer improvers and working foremen engaged in:

(i) all construction industry work under the responsibility of Design and Construction Branch/ENCON Services Branch (including Generation Projects Division and Transmission Systems Division) of Ontario Power Generation Inc.;

(ii) work performed by the Design and Construction Branch for any Operations Branch of Ontario Power Generation Inc. where it has been determined by that Operations Branch that there does not exist internally the expertise or the current staff to perform the work.

This work shall be performed in the Province of Ontario on the Ontario Power Generation Inc. property for the Bulk Power System. The work encompasses:

construction of new facilities
additions to existing facilities
modification
rehabilitation
reconstruction of existing facilities

For the purpose of clarity, the Bulk Power System comprises generating stations, hydraulic works, heavy water facilities, transmission lines (voltage over 50 kV) and transmission stations, microwave and repeater stations, save and except the building of commercial-type office facilities at urban locations remote from operating facilities.

constitute a unit of employees of the responding party appropriate for collective bargaining. The parties will note that the Board has deleted the second sub-paragraph from the proposed bargaining unit description. This was found to be appropriate in one other displacement application with respect to employees of the responding party in Ontario Hydro [1991] OLRD No. 2973 (Sept. 15, 1999). It is appropriate to do so here because of the potential confusion about employees of other employers. However, since this does not affect the right of any individual to vote, the applicant is free to raise the issue of whether such language should be included in the final bargaining unit description, if a certificate is issued; the other parties may also raise any other issue about the appropriate bargaining unit description.

Having regard to the Board's finding as to the appropriate bargaining unit, the Board directs that a representation vote be taken of the individuals in the following voting constituency:

This work shall be performed in the Province of Ontario on the Ontario Power Generation Inc. property for the Bulk Power System. The work encompasses:

construction of new facilities
additions to existing facilities
modification
rehabilitation
reconstruction of existing facilities

The vote will be held on November 20, 2000. Vote arrangements are set out on the attached "Notice of Vote and of Meeting".
The responding party is directed to post copies of the application for certification, the “Notice to Employees of Application for Certification”, this decision and the "Notice of Vote and of Meeting" in a location or locations where they are most likely to come to the attention of those individuals who are eligible to vote. These copies must remain posted for 30 days.
All individuals who were employed by Ontario Power Generation Inc. and at work in the voting constituency on November 8, 2000 are eligible to vote.
Voters will be asked to choose between:

Brick and Allied Craft Union of Canada

and

International Union of Bricklayers and Allied Craftworkers and the Ontario Provincial Council of Bricklayers and Allied Craftworkers.

Since the identity of the persons who are entitled to cast a ballot in this representation vote is not affected by any of the issues raised in the response or the interventions, there is no reason to order the ballot box to be sealed, and the Board declines to do so.
Any party or person who wishes to make representations to the Board about any issue relating to the application for certification which remains in dispute, other than status disputes, must file a detailed statement of representations and all material facts upon which they rely with the Board and deliver it to the other parties, so that it is received within five days (excluding Saturdays, Sundays and holidays on which the Board is closed) of the date on which the vote is taken. Representations with respect to any status dispute must be made in accordance with the directions provided in Information Bulletin No. 9: Status Disputes in Certification Applications in the Construction Industry.
This matter is referred to the Registrar.

“David A. McKee”

for the Board