International Brotherhood of Electrical Workers, Local 773 v. Union Energy Inc. c.o.b. as Fahringer Mechanical, 2001 CanLII 10547

1740-01-R International Brotherhood of Electrical Workers, Local 773, Applicant v. Union Energy Inc. c.o.b. as Fahringer Mechanical, Responding Party v. Construction Workers Local 53, CLAC, Intervenor.

BEFORE: David A. McKee, Vice-Chair, and Board Members J. A. Ronson and R. R. Montague.

DECISION OF THE BOARD; November 16, 2001

1. This is an application for certification brought pursuant to the provisions of the Labour Relations Act, 1995, S. O. 1995, ch.1 (the "Act"). The application date is September 21, 2001. The applicant herein (the “IBEW”) also made an application for certification pursuant to the construction industry provisions of the Act on September 21, 2001 (Board File No. 1739‑01‑R). Both bargaining units are described in very similar terms, and both are essentially applications dealing with the same 7 people.

2. The applicant submits that it is entitled to be certified for both units. It asserts that these employees perform both construction and “service” work (i.e. maintenance or other non-construction work). On the basis of this work practice the IBEW asserts it is entitled to two certificates. The responding party takes the position that at least 6, if not all 7 persons were performing construction work on September 21, 2001, and that the same persons may not be members of two bargaining units on the same day.

3. The intervenor (“CLAC”) intervenes on the basis that it is the certified bargaining agent for the employees in question by virtue of a certificate issued in Board File No. 0119-01-R on May 11, 2001. It asserts that this certificate is a bar to the application, despite the fact that it was issued pursuant to the construction provisions of the Act. It also challenges two employees on the basis that they were “not employed in the bargaining unit on the date of application”, a phrase not otherwise particularized.

4. The issue before this panel is what steps to take in this application. This panel is aware that there are other issues that arise in the construction industry application (Board File No. 1739-01-R). The IBEW has filed an application under section 96 attacking the certificate issued to CLAC and has sought reconsideration of the certificate issued in Board File No. 0119-01-R. It is worth noting that it is that certificate which CLAC asserts is a bar to this application.

5. At the very least, the outcome of the other three applications will have an impact on this application. If this panel of the Board were able to say that the IBEW stood no chance of success in the other applications (which this panel of the Board does not, any more than the IBEW does), then there might be some sense in proceeding with this application separately. However, it is at least possible (and of course the IBEW would say more than possible) that the section 96 application and reconsideration application will succeed. There is therefore a possibility that two differently-composed panels of this Board would hear the same evidence from the same witnesses (including potentially 7 employees) about their work history and what they did on September 21, 2001, and be asked to make findings of fact about that evidence. This will likely involve the difficult distinction between construction and maintenance work. Aside from the possibility of inconsistent results, this is not an appropriate use of the Board’s or the parties’ time and resources.

6. Accordingly, this application will be heard at the same time as Board File No. 1739‑01-R, and by the same panel of the Board. That panel of the Board will determine the procedure to be followed in the two files.

7. However, there is one matter which can and should be dealt with before the first day of hearing. The IBEW has asked for production of documents before a hearing, being those set out in a summons, a copy of which was sent to the Board on November 5, 2001. This request appears to be a refinement of the request in a letter dated October 19, 2001. The responding party argues, with some justification, that the documents listed in the summons are excessively broad, and that it will take a considerable time to locate and produce copies of the documents. The scope of the request must be narrowed. However, to the extent that the documents would be relevant to determine if, and to what extent, employees perform work that is not construction work, they will inevitably be relevant at some point in this proceeding. That being the case, and given the responding party’s estimate of the time it will take to produce copies of the documents, there is no reason not to produce them now.

8. The Board therefore directs the responding party to produce the following documents:

all contracts, subcontracts, purchase orders, invoices;

all job site time and work records, payroll records;

and other documents of whatsoever nature in its possession, power or control which contain information with respect to the work performed at the following projects:

1. Restaurant

781 Erie Street

Windsor, ON

(checked service after a fire)

2. Hot water heater

Kingsville, ON

(checked and changed service)

3. Boiler hook up

Amherstburg, ON

4. Service to rooftop unit

Windsor, ON

5. Today Management

Rhodes Drive

Windsor, ON

(changed electrical fuses)

6. Residence

Hwy. 10

(Sump Pump Service)

7. Fenton Restaurant

Windsor, ON

(checked electrical service)

8. LaSalle Catholic High School

Windsor, ON

(water heater service)

9. Windsor Raceway

Windsor, ON

(Boiler service)

10. Residence

Peter Street

Windsor, ON

(water heater)

11. Parent Avenue

Windsor, ON

(water heater)

12. Residence

Wyandotte Avenue

Windsor, ON

(water heater)

13. Knights of Columbus

Leamington, ON

(water heater)

9. This panel is not seized of this application.

“David A. McKee”

for the Board