1287-00-R International Union of Operating Engineers, Local 793, Applicant v. Fowler Construction Company Limited, Responding Party.
BEFORE: David McKee, Vice-Chair, and Board Members J. G. Knight and A. Haward.
DECISION OF THE BOARD; August 3, 2000
This is an application for certification filed under the construction industry provisions of the Labour Relations Act, 1995 (the "Act").
The Board finds that the applicant is a trade union within the meaning of sections 1(1) and 126 of the Act and is an affiliated bargaining agent of a designated employee bargaining agency. Pursuant to the designation issued by the Minister under section 153(1) of the Act on July 13, 1978, the designated employee bargaining agency is the International Union of Operating Engineers and Local 793 of the International Union of Operating Engineers.
The responding party has filed a response and has agreed that section 8.1 applies to this application. Unless the applicant agrees to have the ballot box sealed or the vote co-ordinator directs to do so for practical reasons, the Board will not order the ballot box to be sealed. The responding party may raise its argument with respect to the application of section 8.1 after the vote if it chooses to do so.
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 finds that this is an application for certification within the meaning of section 128 of the Act and is an application made pursuant to section 158(1) of the Act which provides that:
An application for certification as bargaining agent which relates to the industrial, commercial and institutional sector of the construction industry referred to in the definition of "sector" in section 126 shall be brought by either,
(a) an employee bargaining agency; or
(b) one or more affiliated bargaining
agents of the employee bargaining agency,
on behalf of all affiliated bargaining agents of the employee bargaining agency and the unit of employees shall include all employees who would be bound by a provincial agreement together with all other employees in at least one appropriate geographic area unless bargaining rights for such geographic area have already been acquired under subsection (2) or by voluntary recognition.
The Board further finds, pursuant to section 158(1) of the Act, that all employees of the responding party in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and all employees of the responding party in all other sectors of the construction industry in the County of Simcoe and the District Municipality of Muskoka and the Township of Seguin and the townships adjacent thereto engaged in the operation of cranes, shovels, bulldozers or similar equipment, and those primarily engaged in the repairing or maintaining of same, and employees engaged as surveyors, save and except non- working foremen and persons above the rank of non-working foreman, constitute a unit of employees of the responding party appropriate for collective bargaining.
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:
all employees of Fowler Construction Company Limited in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and all employees of Fowler Construction Company Limited in all other sectors of the construction industry in the County of Simcoe and the District Municipality of Muskoka and the Township of Seguin and the townships adjacent thereto engaged in the operation of cranes, shovels, bulldozers or similar equipment, and those primarily engaged in the repairing or maintaining of same, and employees engaged as surveyors, save and except non-working foremen and persons above the rank of non-working foreman.
The vote will be held on August 8, 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 Fowler Construction Company Limited and at work in the voting constituency on July 31, 2000 are eligible to vote. This vote will be conducted at the same time as the vote in Board Files 1299-00-R. and 1288-00-R. Any person wishing to cast a ballot in any or all of these applications may do so. If more than one ballot is cast by one person, all such ballots shall be segregated.
Voters will be asked to indicate whether or not they wish to be represented by the applicant in their employment relations with the responding party.
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