0107-01-R Allied Construction Employees Local 1030, United Brotherhood of Carpenters and Joiners of America, Applicant v. Fernbrook Homes Ltd., Responding Party v. Universal Workers Union, Labourers’ International Union of North America Local 183, Intervenor.
BEFORE: David A. McKee, Vice-Chair.
DECISION OF THE BOARD; September 14, 2001
This is an application for certification brought pursuant to the construction industry provisions of the Labour Relations Act, 1995, S. O. 1995 ch.1 (the "Act"). The sole remaining issue in this application is contained in the allegations made in this application and a section 96 application (Board File No. 0456-01-U) filed by the Intervenor (“Labourers Local 183”). Essentially, Local 183 argues that some 30 employees (who cast ballots in the representation vote) were not at work on the application date because of a conspiracy between the applicant (“Carpenters Local 1030”) and the responding party (“Fernbrook”) to keep them away from work on the date the application for certification was to be filed. At the risk of oversimplification, Labourers’ Local 183 asks that the application be dismissed, or alternatively a new vote be ordered with certain conditions attached, or that the ballots of the persons so excluded be counted.
Those issues will be determined in the section 96 application. If a violation of the Act is found, remedies will of necessity be issued in this application. However, certain matters in this application are not disputed. There is no dispute that the 16 persons on the Schedule submitted by Fernbrook who did vote were at work in the bargaining unit on the application date and were entitled to vote. The only issue is whether the Board should ignore the results of that vote or should count the ballots of an additional 30 people.
Before entering into a lengthy and no doubt bitterly-fought hearing into the allegations made by Labourers Local 183, it would be useful to know whether it is necessary to do so. If the applicant has not received more than 50% of the ballots cast, the application will be dismissed in any event, and the hearing into Local 183’s allegations will likely be unnecessary. In the event that Carpenters Local 1030 did receive more than 50% of the ballots cast, the types of relief sought by Local 183 would not be prejudiced by the counting of the ballots. If the Board were to disregard the results of the vote, they do not matter. If the Board decided to count the ballots of the 30 individuals who were, on Local 183’s assertion, not at work on the application date, it will be on the basis of a remedy of a violation of some provision of the Act. That is, if they are counted, it is likely that all 30 will be counted or all 30 disregarded. There is virtually no likelihood that only a single ballot will be counted (which would necessitate a second vote by itself to preserve the secrecy of that person’s vote).
Accordingly, the Board orders that the ballots of the 16 persons whose right to cast a ballot has not been challenged be counted. This matter is referred to the Manager of Field Services to arrange the counting of the ballots. Within 10 working days after the results of the count are known, the parties are to make their submissions to the Board as to what further should be done with this file. In any event, a certificate will not be issued until the section 96 application is disposed of.
I am not seized of this application.
“David A. McKee”
for the Board