International Union of Operating Engineers, Local 793 v. G. Mason Construction
File No.: 1956-00-R Date: October 6, 2000 Ontario Labour Relations Board
Between: International Union of Operating Engineers, Local 793, Applicant v. G. Mason Construction, Responding Party.
Before: John Morgan Lewis, Vice-Chair, and Board Members J. Knight and G. McMenemy.
Decision of the Board
1This is an application for certification filed under the construction industry provisions of the Labour Relations Act, 1995 (the "Act").
2The 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.
3The responding party filed a response with the Board on October 5, 2000 in which it identifies the correct name of the responding party as: "458174 Ontario Limited operating as G. Mason Construction".
4The responding party asserts that there were no employees at work in the applicant's proposed bargaining unit on the date of application. The responding party gives notice under section 8.1 of the Act. The Board has recently held, however, that section 8.1 of the Act does not apply to an application for certification in the construction industry (see Bayview-Wellington Construction Inc. and/or Bayview-Wellington Homes Inc., [1993] OLRB Rep. Nov./Dec. 954) and therefore the Board will not seal the ballot box on that basis.
5It 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.
6The 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.
7The Board further finds, pursuant to section 158(1) of the Act, that all employees in the employ of the responding party engaged in the operation of cranes, shovels, bulldozers and similar equipment and those primarily engaged in the repairing and maintaining of same, and employees engaged as surveyors in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and all employees in the employ of the responding party in all other sectors of the construction industry in the Regional Municipality of Hamilton-Wentworth, the City of Burlington, that portion of the geographic Township of Beverly annexed by North Dumfries Township and that portion of the Town of Milton within the geographic Townships of Nassagaweya and Nelson, 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.
8Having 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 in the employ of G. Mason Construction engaged in the operation of cranes, shovels, bulldozers and similar equipment and those primarily engaged in the repairing and maintaining of same, and employees engaged as surveyors in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and all employees in the employ of G. Mason Construction in all other sectors of the construction industry in the Regional Municipality of Hamilton-Wentworth, the City of Burlington, that portion of the geographic Township of Beverly annexed by North Dumfries Township and that portion of the Town of Milton within the geographic Townships of Nassagaweya and Nelson, save and except non-working foremen and persons above the rank of non-working foreman.
9The vote will be held on October 11, 2000. Vote arrangements are set out on the attached "Notice of Vote and of Meeting".
10The 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.
11All individuals who were employed by G. Mason Construction and at work in the voting constituency on October 2, 2000 are eligible to vote.
12Voters will be asked to indicate whether or not they wish to be represented by the applicant in their employment relations with the responding party.
13As there is a dispute between the parties as to the identity of the employer, the Board directs the ballots cast in the representation vote to be individually segregated and the ballot box to be sealed unless the parties otherwise agree or the Board so orders.
14Any 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.
15This matter is referred to the Registrar.
"John Morgan Lewis" for the Board