Ontario Labour Relations Board
2610-00-R The International Union of Painters and Allied Trades, Applicant v. Engineered Coatings Ltd., Responding Party.
BEFORE: Harry Freedman, Vice‑Chair, and Board Members J. G. Knight and A. Haward.
DECISION OF THE BOARD; December 5, 2000
This is an application for certification filed under the construction industry provisions of the Labour Relations Act, 1995, S.O. 1995, c.1 as amended (the "Act"). This application was filed on November 28, 2000.
The Board has been unable to locate in a search of its files a Board decision in which the applicant has been found to be a trade union within the meaning of the Act. Thus, it appears that the applicant has not established in a previous Board proceeding that it is a trade union within the meaning of section 1(1) or 126 of the Act. Attached to the application is a document that appears to be a resolution of the General Executive Board of the International Brotherhood of Painters and Allied Trades purporting to change its name to the name of the applicant. In the absence of a prior Board determination that the applicant and the International Brotherhood of Painters and Allied Trades are the same, but only its name has changed, the applicant will be required to prove at the appropriate time that it is a trade union within the meaning of sections 1 (1) and 126 of the Act.
The responding party was duly served with the application on November 30, 2000, according to the Certificate of Delivery filed by the applicant and filed its response with the Board within the time stipulated by Rule 135 of the Board's Rules of Procedure.
The Board is satisfied 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 appear to be members of the applicant at the time the application was made.
The Board, without making any finding in that regard, is prepared to assume for purposes of directing a representation vote and pending the Board’s determination as to whether the applicant is a trade union within the meaning of sections 1 (1) and 126 of the Act, 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 applicant asserted that the appropriate bargaining unit should encompass all painters and painters’ apprentices in the employ of Engineered Coatings Ltd. in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and all painters and painters’ apprentices in the employ of Engineered Coatings Ltd. in all sectors of the construction industry other than the industrial, commercial and institutional sector in Board Areas 2, 6 and 8. The responding party submits that the appropriate bargaining unit be described as the applicant has described it, but submits that the unit should not include Board Area 6, but rather should include Board Area 7.
The applicant in its application listed three job sites; one in Board Area 2 (the Sarnia Sewage Treatment Plant) and two in Board Area 8 (Pearson International Airport and Lafarge in Stouffville). The responding party also lists three projects; one in Board Area 2, one in Board Area 7 (Comco in Guelph) and one in Board Area 8 (Pearson International Airport).
An application for certification which relates to the industrial, commercial and institutional sector of the construction industry must include “at least one appropriate geographic area”. The Board in E/E Fradema Masonry, [1986] OLRB Rep. Dec. 1685 stated at paragraph 7:
In our opinion, an appropriate geographic area means, at the very least, an area in which employees were employed as of the application date. It seems to us that a geographic area in which no employees were employed as of the application date is not an appropriate geographic area….”
See also Freure Construction Limited, [1991] OLRB Rep. March 309 at paragraphs 14-17 where the Board adopted and applied that earlier decision. As the applicant did not allege that the responding party had any employees at work on the application date in Board Area 6 and the responding party did not indicate it was working in Board Area 6 on the application date, Board Area 6 is not an appropriate geographic area to include in this application. As both parties agreed that there were employees working in Board Areas 2 and 8, and as the responding party asserted that there were employees working in Board Area 7, the voting constituency will include those three Board Areas. The determination of the appropriate bargaining unit must await the Board’s determination with respect to the applicant’s status under sections 1(1) and 126 of the Act and the parties’ submissions, if any with respect to whether Board Area 6 should be part of the appropriate bargaining unit.
- Having regard to the Board’s finding in paragraph 4 above, the Board directs that a representation vote be taken of the individuals in the following voting constituency:
all painters and painters’ apprentices in the employ of Engineered Coatings Ltd. in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and all painters and painters’ apprentices in the employ of Engineered Coatings Ltd. in all other sectors of the construction industry in the City of Toronto, the Regional Municipalities of Peel and York, the Towns of Oakville and Halton Hills, that portion of the Town of Milton within the geographic Townships of Esquesing and Trafalgar, the Towns of Ajax and Pickering in the Regional Municipality of Durham, the County of Lambton and the County of Wellington, save and except non-working foremen and persons above the rank of non‑working foreman.
The vote will be held on December 7, 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.
All individuals who were employed by Engineered Coatings Ltd. and at work in the voting constituency on November 28, 2000 are eligible to vote.
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.
“Harry Freedman”
for the Board