Universal Workers Union, Labourers’ International Union of North America, Local 183 v. Westwood Garage Doors Ltd.
File No.: 2122-01-R Date: December 27, 2001
Universal Workers Union, Labourers’ International Union of North America, Local 183, Applicant v. Westwood Garage Doors Ltd., Responding Party.
Before: Harry Freedman, Vice-Chair.
DECISION OF THE BOARD
1The Board, by decision dated November 5, 2001 directed a representation vote and ordered that the ballots cast be segregated and the ballot box sealed since there was a dispute between the parties as to whether the individuals the applicant asserts are in the bargaining unit are employees within the meaning of the Act and whether they were engaged in bargaining unit work on the application date.
2The applicant agreed that the identity of the responding party is Westwood Garage Doors Ltd. The responding party agreed to the bargaining unit description proposed by the applicant. Therefore, the appropriate bargaining unit is:
all journeymen and apprentice carpenters and all construction labourers in the employ of the Westwood Garage Doors Ltd. in all sectors of the construction industry in 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, and the Towns of Ajax and Pickering in the Regional Municipality of Durham, excluding the industrial, commercial and institutional sector, save and except non-working foremen and persons above the rank of non-working foreman.
3The responding party, on December 19, 2001 filed two volumes of documents that it says are relevant to the outstanding issue between the parties, that is, whether the individuals who cast ballots in the representation vote are independent contractors or are employees (including dependent contractors) of the responding party within the meaning of the Act. The responding party filed comprehensive submissions with the Board on November 14, 2001 with respect to the “status” issue. The applicant filed comprehensive submissions with the Board on December 7, 2001 with respect to that issue. Although the response filed in this matter indicated that there were only seven individuals who were engaged in garage door installation on the application date, it appears from the submissions filed by the parties that the challenges to the individuals who cast ballots in the representation vote are based only on whether they were employees (including dependent contractors) of the responding party within the meaning of the Act as opposed to independent contractors.
4Counsel for the responding party requested that the applicant produce certain documents relevant to the status of the individuals in dispute. The applicant was asked to produce: income tax returns, T-4 slips and any other documents indicating what work those individuals may have performed for other individuals or organizations.
5Counsel for the applicant has responded by letter dated December 20, 2001 indicating the documents sought by the responding party are not relevant to the issues in this application and in any event, those documents are not in the possession or control of the applicant.
6The issue of the status of the individuals in dispute must be referred to a hearing before the Board since there appears to be several material facts in dispute. In accordance with Information Bulletin No. 9, the applicant, who is asserting that the persons in dispute are in the bargaining unit, has the responsibility to secure the attendance of those persons at the hearing of this matter. I note that the responding party did not suggest a time frame for the documents it seeks from the applicant. The applicant in its submissions indicates that it made clear to the responding party at the Regional Certification Meeting its position with respect to the responding party’s request for the production of those documents. Unfortunately, other than the applicant’s letter of December 20, 2001, there is nothing else in the Board’s file outlining the basis for the applicant’s position that the documents sought by the responding party are not relevant.
7I accept that the documents sought by the responding party are not within the control or possession of the applicant and therefore I am not prepared to order the applicant to produce them to the responding party prior to the hearing. Nevertheless, since the applicant is the party that has to secure the attendance of the individuals in dispute, it seems to me that it would be appropriate to have the applicant, in addition to having the individuals attend at the hearing, require those individuals, by a summons to witness if necessary, to bring with them to the hearing of this matter, their income tax returns, T-4 slips and GST reports, if any, for the calendar years 1999 and 2000 and invoices they have issued for work they have performed in the construction industry, banking records, time records, tax remittance reports or any other documents showing where, what and for whom they have worked for the period between January 1, 2001 and October 30, 2001. It appears that those documents may have some bearing on the issue of whether the persons in dispute were dependent or independent contractors on the application date. If the applicant does not wish to do so, then whether those documents are relevant and whether the Board will direct the individuals called to give evidence in this matter to produce them is a matter for the panel of the Board assigned to hear this matter should the responding party wish to pursue its request for production of documents in the possession of the individuals who are in dispute. Obviously, dealing with that issue at the hearing will consume the time that would otherwise have been taken up with hearing the testimony of the individuals in dispute, but that is a choice for the applicant.
8In any event, the Board directs the applicant to provide to the responding party not later than two weeks prior to the first day of hearing in this matter the names of the first five individuals it will be calling to give evidence and the order in which the applicant intends to call those individuals.
9This matter is referred to the Registrar to be listed for two days of hearing. The purpose of the hearing is to hear the evidence and representations of the parties with respect to whether the persons who cast ballots in the representation vote are employees (including dependent contractors) of the responding party or independent contractors and with respect to any other issues that must be determined in this application.
10This panel of the Board is not seized with this matter.
“Harry Freedman”
for the Board