Ontario Labour Relations Board
0363-00-R Wayne Robert Reid, Applicant v. Ontario Sheet Metal Workers Conference and Ontario Sheet Metal Workers’ & Roofers’ Conference, Responding Party v. Norwest Contracting Limited, Intervenor.
BEFORE: Harry Freedman, Vice‑Chair, and Board Members J. G. Knight and G. McMenemy.
DECISION OF THE BOARD; May 11, 2000
1. This is an application under section 63 (2) of the Labour Relations Act, 1995, S.O. 1995, c. 1 (the "Act") for a declaration terminating the bargaining rights of the responding party. The applicant asserts that that there is one employee in the bargaining unit affected by the application. The bargaining unit description in the application states:
The Applicant usually works in and around the City of Sault Ste. Marie, Algoma. The Respondent is an Ontario bargaining agent.
The applicant also asserts that the most recent collective agreement was signed on June 7, 1988 and expired April 30, 1990.
2. The intervention filed by the intervenor describes the bargaining unit as “Sault Ste. Marie & Area, Algoma District”. It also asserts that the application was made within one of the time periods provided for in the Act.
3. The bargaining unit descriptions provided by the applicant and the intervenor are unclear. They do not appear to have been taken from the collective agreement by which the intervenor is or was bound. It is also unclear whether the intervenor is an employer in the construction industry or is bound by an industrial collective agreement with the responding party.
4. The responding party asserts that the intervenor is an employer in the construction industry and is bound by the ICI provincial agreement expiring on April 30, 2001 by which the responding party is bound. If the responding party is correct, then this application is clearly untimely and must be dismissed. Before the Board directs a representation vote under section 63 of the Act, it must be satisfied that the bargaining unit that is subject to the application and in respect of which a vote is directed is similar, if not identical, to the description of the bargaining unit for which the responding party holds bargaining rights. The bargaining unit descriptions in both the application and intervention do not appear to have much resemblance to any bargaining unit normally associated with the responding party. The bargaining unit described in the application is clearly not the bargaining unit for which the responding party holds bargaining rights in the ICI sector of the construction industry, if the intervenor is bound by the ICI provincial agreement.
5. There is also little utility in expending the Board’s limited resources to conduct a representation vote if the applicant and intervenor do not dispute the responding party’s assertion with respect to the existence of the ICI provincial agreement and its claim that the intervenor is an employer bound by that provincial agreement. Nevertheless, the Board can direct a representation vote in the circumstances of this case because the applicant asserts that he is the only employee of the intervenor and therefore is the only employee in the bargaining unit, regardless of how the bargaining unit is described.
6. Therefore, before the Board determines whether it will direct a representation vote, the Board requires the applicant to file with the Board within two working days of the date of this decision a brief statement of all of the facts upon which he relies to assert that the intervenor is not an employer in the construction industry bound by the ICI provincial agreement by which the responding party is bound. The Board will not determine that issue before directing a vote; rather if there are facts alleged that dispute the assertion made by the responding party with respect to the timeliness of the application and if proved would establish that the application is timely, the vote will proceed promptly. If the applicant fails to file the statement within the time fixed by the Board or if the facts relied on would not establish that the application is timely, then this application will be dismissed.
7. This panel of the Board is seized with determining whether to direct a representation vote or dismiss this application.
“Harry Freedman”
for the Board