1242-00-R Construction Workers Local 52 affiliated with the Christian Labour Association of Canada, Applicant v. Valleywood Air Systems Inc., Responding Party v. Sheet Metal Workers’ International Association Local Union 285, Intervenor.
BEFORE: David A. McKee, Vice‑Chair, and Board Members J. G. Knight and G. McMenemy.
DECISION OF THE BOARD; July 31, 2000
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.
3It 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.
4This is an application for certification within the meaning of section 128 of the Act. The applicant is not an affiliated bargaining agent of a designated employee bargaining agency. Accordingly, this application is made pursuant to section 158(4) of the Act which provides as follows:
158 ...
(4) Despite subsections (1) and (3), a trade union that is not represented by a designated or certified employee bargaining agency may bring an application for certification or enter into a voluntary recognition agreement on its own behalf.
5The applicant has advised the Board that the responding party had in its employ, in the bargaining unit, only sheet metal workers and sheet metal worker apprentices on the application date. This information has been confirmed by the responding party. Accordingly, having regard to the foregoing and the provisions of the Act, the Board further finds that all sheet metal workers and sheet metal worker apprentices employed in the City of Toronto, the Regional Municipalities of Peel and York, the Towns of Oakville and Halton Hills and that portion of the Town of Milton within the geographic Townships of Esquesing and Trafalgar, and the Towns of Ajax and Pickering in the Regional Municipality of Durham in the employ of Valleywood Air Systems Inc., 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.
6Having 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 sheet metal workers and sheet metal worker apprentices in the employ of Valleywood Air Systems Inc. in all sectors of the construction industry in the City of Toronto, the Regional Municipalities of Peel and York, the Towns of Oakville and Halton Hills and that portion of the Town of Milton within the geographic Townships of Esquesing and Trafalgar, and the Towns of Ajax and Pickering in the Regional Municipality of Durham, save and except non-working foremen and persons above the rank of non-working foreman.
7Sheet Metal Workers’ International Association Local 285 has filed an intervention alleging it has a subsisting collective agreement covering this bargaining unit, executed 6 days prior to the application for certification. It is in the form of a voluntary collective agreement. The Board’s general practice is to treat an application for certification as an application under section 66. Accordingly, the validity of this voluntary collective agreement is an issue. If the agreement is valid, the application appears to be untimely and would likely be dismissed. If the agreement is not valid, there would appear to be no basis, on the material in the file, to order anything other than a vote asking employees to choose between the applicant and no union. Further, on the basis of the material in the file, there is no reason to seal the ballot box.
8The vote will be held on August 2, 2000. Vote arrangements are set out on the attached "Notice of Vote and of Meeting".
9The 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.
10All individuals who were employed by Valleywood Air Systems Inc. and at work in the voting constituency on July 26, 2000 are eligible to vote.
11Voters will be asked to indicate whether or not they wish to be represented by the applicant in their employment relations with the responding party.
12Any 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.
13This matter is referred to the Registrar.
“David A. McKee”
for the Board