International Union of Operating Engineers, Local 793 v. Miracle Construction Limited
File No.: 1690-00-R Date: September 14, 2000
Applicant: International Union of Operating Engineers, Local 793 Responding Party: Miracle Construction Limited
Before: Harry Freedman, Vice‑Chair, and Board Members J. G. Knight and G. McMenemy.
DECISION OF THE BOARD
1This 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 September 7, 2000.
2The 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 July 13, 1978, the designated employee bargaining agency is the International Union of Operating Engineers and Local 793 of the International Union of Operating Engineers.
3The responding party was duly served with the application at 5:00 p.m. on September 8, 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.
4The applicant in its transmittal letter with the application stated that the Certificate of Delivery would be filed with the Board by facsimile transmission on September 8, 2000. The Board has no record of receiving the applicant’s Certificate of Delivery until the applicant sent the Certificate of Delivery by facsimile transmission on September 14, 2000. The applicant’s London office also sent the Board a facsimile delivery report indicating that it had transmitted three pages to the Board (which we assume was the Certificate of Delivery) at 10:21 a.m. on September 11, 2000. The Board has no record of having received that document on September 11.
5Rule 26 of the Board’s Rules provide, in part:
Any application filed with the Board must include the following details:
e) a certificate verifying delivery of the application to the responding party or parties.
Whether the Board received the Certificate of Delivery on September 11, as the applicant suggests or on September 14 when the applicant sent the Board a copy of the Certificate of Delivery it asserts it had transmitted earlier, the Certificate of Delivery was not included with the application when it was filed with the Board. The consequence, if any, of the applicant's failure to comply with Rule 26(e) is a matter that may be raised following the taking of the representation vote.
6The 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.
7The applicant, by letter to the Registrar, purported to amend paragraphs 6, 7 and 9 of its application. It does not appear from the letter to the Registrar that the applicant provided a copy of its request to amend its application to the responding party. The applicant describes the bargaining unit it claims is appropriate as follows:
all employees of the responding party engaged in the operation of cranes, shovels, bulldozers and similar equipment and those primarily engaged in the repairing and maintaining of same, and employees engaged as surveyors;
i) in all sectors of the construction industry within the Counties of Oxford, Perth, Huron, Middlesex, Bruce, and Elgin (OLRB Board Area No. 3)
save and except non-working forepersons and persons above the rank of non-working foreperson.
The description proposed makes reference to all sectors of the construction industry (which would include the industrial, commercial and institutional sector) but limits the geographic scope to Board area 3. The bargaining unit proposed by the applicant does not accord with section 158 of the Act. Furthermore, the applicant asserts that the employees in the bargaining unit it claims is appropriate were working in Ingersoll. The responding party asserts that its employees were working in both Ingersoll and Waterloo and proposes a bargaining unit description that would include both locations. It is also unclear whether the employees of the responding party were working in the ICI sector or some other sector of the construction industry on the date of the application. The Board is therefore unable to determine the appropriate bargaining unit at this time.
8The 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.
9Having regard to the material filed by the applicant and responding party, the Board directs that a representation vote be taken of the individuals in the following voting constituency:
all employees of Miracle Construction Limited in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and all employees of Miracle Construction Limited in all other sectors of the construction industry in the Counties of Oxford, Perth, Huron, Middlesex, Bruce and Elgin and in the Regional Municipality of Waterloo (except that portion of the geographic Township of Beverly annexed by North Dumfries Township) engaged in the operation of cranes, shovels, bulldozers, or similar equipment, and those primarily engaged in the repairing or maintaining of same, and employees engaged as surveyors, save and except non-working foremen and persons above the rank of non-working foreman.
10The vote will be held on September 18, 2000. Vote arrangements are set out on the attached "Notice of Vote and of Meeting". As the Board has not yet determined the appropriate bargaining unit, the Board directs that each ballot be segregated and the ballot box sealed unless the parties agree or until the Board so orders.
11The 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. These copies must remain posted for 30 days.
12All individuals who were employed by Miracle Construction Limited and at work in the voting constituency on September 7, 2000 are eligible to vote.
13Voters will be asked to indicate whether or not they wish to be represented by the applicant in their employment relations with the responding party.
14Any 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.
15This matter is referred to the Registrar.
“Harry Freedman”
for the Board