3254-99-R Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America, Applicant v. Conquest Carpet Corp., Responding Party.
BEFORE: Harry Freedman, Vice‑Chair, and Board Members J. G. Knight and G. McMenemy.
DECISION OF THE BOARD; February 9, 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 February 3, 2000.
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 June 23, 1997, the designated employee bargaining agency is the United Brotherhood of Carpenters and Joiners of America and the Carpenters’ District Council of Ontario, United Brotherhood of Carpenters and Joiners of America.
The responding party was duly served with the application on February 4, 2000, according to the Certificate of Delivery filed by counsel for the applicant and filed its response with the Board within the time stipulated by Rule 135 of the Board's Rules of Procedure.
There are irregularities in some of the evidence filed by the applicant pursuant to section 7(13) of the Act. Three applications for membership did not have the name of Local 27 on them. All of the other evidence of membership did specifically refer to Local 27 and all of the evidence referred to the United Brotherhood of Carpenters and Joiners of America. In addition several other membership documents appear to have been signed more than six months prior to the application. Assuming without deciding that the three applications for membership that did not have the name of Local 27 on them do not establish an appearance of membership in the applicant (see Chapleau Forest Products Limited, [1990] OLRB Rep. Dec. 1243 at 1246; application for judicial review dismissed, [1991] OLRB Rep. April 577; Bernardin of Canada Limited, [1975] OLRB Rep. Oct. 737; Clorox Company of Canada Ltd., [1980] OLRB Rep. Feb. 184) and assuming without deciding that the Board should not rely on membership evidence signed more than six months prior to the date of application (a proposition with which we have considerable doubt) the Board is prepared to consider only the remaining evidence of membership (that is, the membership evidence signed within six months of the application date containing the name Local 27) to make the determination required by section 8(2) of the Act.
The Board is satisfied on an examination of only the information provided in the application and the information and membership evidence signed within six months of the application date containing the name Local 27 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 appeared to be members of the applicant at the time the application was made.
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.
The responding party submits that it had no employees on the application date. It submits that the persons performing the work undertaken by the responding party in the construction industry are independent contractors. The applicant submits that the appropriate bargaining unit should include not only the industrial, commercial and institutional sector of the construction industry in the Province of Ontario but also all other sectors of the construction industry in Board Areas 8, 9, 18, 26, 27 and 28. The applicant did not list the actual locations of the jobs where work was being done on the application date. The responding party submits that the appropriate bargaining unit includes the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and all other sectors of the construction industry in Board Areas 6, 8, 9 and 26. The determination of the appropriate bargaining unit will be determined following the taking of the representation vote, based on where the responding party was performing work on the date of application. (See Watcon Inc., [1981] OLRB Rep. Nov. 1697; Dagmar Construction Limited, [1987] OLRB Rep. April 480; Freure Construction Limited, [1991] OLRB Rep. March 309; Golf Contracting Limited, [1991] OLRB Rep. April 483.)
The Board directs that a representation vote be taken of the individuals in the following voting constituency which encompasses all of the geographic areas proposed by both parties:
all carpenters and carpenters’ apprentices in the employ of Conquest Carpet Corp. in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and all carpenters and carpenters’ apprentices in the employ of Conquest Carpet Corp. in all other sectors of the construction industry in the Regional Municipality of Waterloo (except that portion of the geographic Township of Beverly annexed by North Dumfries Township); 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; the Regional Municipality of Durham, the geographic Township of Cavan in the County of Peterborough and the geographic Township of Manvers in the County of Victoria; the County of Simcoe and the District Municipality of Muskoka; 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; the County of Dufferin; and the County of Grey, save and except non-working foremen and persons above the rank of non‑working foreman.
The vote will be held on February 11, 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 Conquest Carpet Corp. and at work in the voting constituency on February 3, 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. In view of the challenge raised to the employment status of all of the individuals who performed work for the responding party, the Board directs that each ballot be segregated, the ballot box sealed and the ballots not counted until the Board so orders or the parties agree.
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.
This panel of the Board is not seized with this matter.
“Harry Freedman”
for the Board