Ontario Labour Relations Board
File No.: 1478-01-R Date: August 27, 2001
Between: Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America, Applicant v. Penegal Trim & Supply Ltd., Responding Party.
Before: Harry Freedman, Vice-Chair, and Board Members G. Pickell and A. Haward.
DECISION OF THE BOARD
1This is an application for certification under the construction industry provisions of the Labour Relations Act, 1995, S.O. 1995 c.1 as amended (the "Act") that was filed on August 21, 2001.
2The Registrar has certified that the applicant had been found to be a trade union in an earlier proceeding under the Act. Therefore, having regard to the Registrar’s certificate and section 113 of the Act, the Board finds that the applicant is a trade union within the meaning of sections 1(1) and 126 of the Act.
3The responding party was duly served with the application on August 22, 2001, according to the Certificate of Delivery filed by the applicant, filed its response with the Board within the time stipulated by Rule 135 of the Board's Rules of Procedure.
4The responding party submitted that there were no employees in the proposed bargaining unit on the application date. It submitted that it had engaged two subcontractors at the job sites referred to in the application and the response and that if there were any employees working at those sites on the application date, they were employees of the subcontractors. The responding party gave notice under section 8.1 of the Act and requested that the ballot box be sealed pending the determination of who is the employer.
5Where an employer gives notice under section 8.1 of the Act and asserts that there are no employees in the proposed bargaining unit, the section 8.1 notice is irrelevant. See Plus Construction, Board File No. 3723-00-R, unreported, decision dated March 22, 2001, Q.L. cite [2001] O.L.R.D. No. 1118. The Board in that case observed at paragraph 9:
The responding party asserts that there are no employees of the responding party at work on the application date…. Although the responding party has given a timely notice under section 8.1, there is no list of employees attached (consistent with the responding party’s position). If the responding party is correct, the application will be dismissed but not for the reasons set out in section 8.1. Accordingly, this is not a valid notice under section 8.1 and the ballot box will not be sealed for this reason.
Similarly, in the case before us, as the responding party submits that it had no employees, the notice it gave under section 8.1 of the Act does not cause us to order the ballot box sealed.
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 Board further finds that this application does not relate to the industrial, commercial and institutional sector of the construction industry referred to in section 126 of the Act.
8The Board further finds that all carpenters and carpenters’ apprentices in the employ of the responding party in all sectors of the construction industry in 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, excluding the industrial, commercial and institutional sector, save and except non-working foremen and persons above the rank of non-working foreman, constitute a unit of employees of the responding party appropriate for collective bargaining.
9Having regard to the Board's finding as to the appropriate bargaining unit, the Board directs that a representation vote be taken of the individuals in the following voting constituency:
all carpenters and carpenters’ apprentices in the employ of Penegal Trim & Supply Ltd. in all sectors of the construction industry in 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, excluding the industrial, commercial and institutional sector, save and except non-working foremen and persons above the rank of non-working foreman.
10The vote will be held on August 29, 2001. Vote arrangements are set out on the attached "Notice of Vote and of Meeting".
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 Penegal Trim & Supply Ltd. and at work in the voting constituency on August 21, 2001 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 panel of the Board is not seized with this matter.
16This matter is referred to the Registrar.
“Harry Freedman” for the Board