3272-00-R Universal Workers Union, Labourers’ International Union of North America, Local 183, Applicant v. Ellis-Don Construction Ltd., Responding Party v. Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America, Intervenor.
BEFORE: Inge M. Stamp, Vice-Chair.
APPEARANCES: S.B.D. Wahl, R. Quinn Sr. and J. Oliveira for the applicant; Walter Thornton and Brian Foote for the responding party; N. L. Jesin, F. Baloo, W. Tracogna and L. Hanecak for the intervenor.
DECISION OF THE BOARD; May 31, 2001
This is an application for certification under the construction industry provisions of the Labour Relations Act, 1995 (the “Act”). A vote was held and the ballot box sealed pending the determination of issues raised by the responding party and the intervenor.
The responding party and the intervenor’s positions are set out in paragraph 5 of the Board’s decision dated February 13, 2001 directing the vote.
- The responding party and intervenor have raised a concern about this application. The responding party disagrees with the number of employees the applicant claims were in the bargaining unit on the date of application. Further, both the responding party and intervenor claim that they are bound by a collective agreement and Project Agreement that cover the applicant’s proposed bargaining unit, and that this application is therefore untimely. These are matters which will have to be dealt with at a hearing.
The applicant challenges the validity of the project agreement and puts the intervenor and the responding party to the strict proof as to the existence and compliance with the “alleged project agreement” for the project where the bargaining unit work was performed on the application date.
The applicant asserts there has never been a valid collective agreement between the responding party and the intervenor with respect to employees of the responding party working on the Sheppard-Yonge Station jobsite.
The applicant challenges the project agreement for the following reasons: a) the document itself is challenged on the basis that it includes terms and conditions from another agreement that is also being challenged, the Heavy Construction Association of Ontario agreement; b) if the document is found to be a project agreement it was never implemented or it was abandoned by the parties; c) it is not a collective agreement under section 58(1) of the Act and is therefore not a bar to this application for certification.
The applicant and the parties have agreed to deal with the challenge under section 58(1) of the Act first. The parties have further agreed, and the Board directs, that the submissions with respect to section 58(1) be done in writing.
Counsel for the applicant has agreed to proceed first with his written submissions with respect to the section 58(1) issue. This is without prejudice to any position the applicant may take on who should go first with respect to calling evidence on any remaining issues. Counsel for the responding party has undertaken to make certain documents relating to the project agreement available to counsel for the applicant with copies to the Board. Counsel for the responding party further agreed to produce relevant documents to the applicant without the requirement of a summons.
Counsel for the responding party submits the Board should dispose of the challenges to the agreement without hearing evidence or argument. The only issues the Board should entertain are issues in relationship to the timeliness and the bargaining unit composition.
The intervenor takes the position that the applicant is attempting to use employees working under one collective agreement to displace persons working under another collective agreement. The intervenor states the facts as pleaded are not sufficient to create an abandonment argument in the face of the two parties to the agreement saying it is not abandoned. The validity of the heavy construction agreement is irrelevant to the issue of the validity of the project agreement.
The applicant states this is a case about a bar to an application for certification. The intervenor and the responding party have to prove that the project agreement exists.
The applicant submits it is necessary to hear evidence with respect to the abandonment. The responding party requested referrals of carpenters to this project from the applicant’s hiring hall, Universal Workers Local 183. It is a question of how the employees got to the job. It is the applicant’s position that the fact that carpenters were dispatched by the Labourers to this site shows that the intervenor and the responding party have abandoned their agreement.
At the last day of hearing the Board offered continuation dates to the parties until the end of November, 2001. Except for one date, July 25, 2001, (for this panel) none of the dates were available to all the parties.
The Board directs the Registrar to set four continuation dates in consultation with the parties.
The applicant will file its submissions with respect to section 58(1) of the Act with the Board and the other parties. The other parties have two weeks from the date of receipt of the applicant’s submissions to respond, with copies to the Board. The applicant is to file its reply submissions one week after receipt of the submissions from the other parties.
The Board notes that the timing of the submissions depends to some extent to the dates to which the parties are able to agree for the continuation of this matter. Subject to the dates set for the continuation of this matter the parties, on agreement, may extend the times for the written submissions. The last of the written submissions must be received by the Board at least three weeks before the continuation of this matter.
This panel of the Board remains seized for the purpose of dealing with this specific issue under section 58(1) of the Act. The parties may request a telephone conference call to deal with any issues arising out of this decision.
“Inge M. Stamp”
for the Board