Labourers’ International Union of North America, Ontario Provincial District Council v. Fowler Construction Company Limited

1299-00-R Labourers’ International Union of North America, Ontario Provincial District Council, Applicant v. Fowler Construction Company Limited, Responding Party.

BEFORE: David McKee, Vice‑Chair, and Board Members J. Knight and A. Haward.

DECISION OF THE BOARD; August 3, 2000

1. This is an application for certification filed under the construction industry provisions of the Labour Relations Act, 1995 (the "Act").

2. 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 September 30, 1983, the designated employee bargaining agency is The Labourers’ International Union of North America and The Labourers’ International Union of North America, Ontario Provincial District Council.

3. The responding party has filed a response. There is a dispute between the applicant and responding party into whether certain Board Areas and Townships should be included in the bargaining unit description. The proper description of the bargaining unit can be decided after the vote. The responding party has raised an argument about the applicability of section 8.1. Unless the applicant agrees to have the ballot box sealed or the vote co-ordinator decides 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 applicability of section 8.1 after the vote if it chooses to do so.

4. 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.

5. 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.

6. The Board further finds, pursuant to section 158(1) of the Act, that all construction labourers in the employ of the responding party in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and all construction labourers in the employ of the responding party in all other sectors of the construction industry in the Regional Municipality of Durham (except for the Towns of Ajax and Pickering), the geographic Township of Cavan in the County of Peterborough and the geographic Township of Manvers in the County of Victoria; the County of Peterborough (except for the geographic Township of Cavan), the County of Victoria (except for the geographic Township of Manvers) and the provisional County of Haliburton; the County of Simcoe and the District Municipality of Muskoka; and the Townships of Seguin, McDougall, McTier, Whitestone and McKellar and the Townships adjacent thereon, 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.

7. 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 construction labourers in the employ of Fowler Construction Company Limited in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and all construction labourers in the employ of Fowler Construction Company Limited in all other sectors of the construction industry in the Regional Municipality of Durham (except for the Towns of Ajax and Pickering), the geographic Township of Cavan in the County of Peterborough and the geographic Township of Manvers in the County of Victoria; the County of Peterborough (except for the geographic Township of Cavan), the County of Victoria (except for the geographic Township of Manvers) and the provisional County of Haliburton; the County of Simcoe and the District Municipality of Muskoka; and the Townships of Seguin, McDougall, McTier, Whitestone and McKellar and the Townships adjacent thereon, save and except non-working foremen and persons above the rank of non‑working foreman.

8. The vote will be held on August 8, 2000 . Vote arrangements are set out on the attached "Notice of Vote and of Meeting".

9. 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.

10. 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 held at the same time as the vote in Board Files 1287-00-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 will be segregated.

11. 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.

12. 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.

13. This matter is referred to the Registrar.

“David McKee”

for the Board