0409-01-R Allied Construction Employees Local 1030, United Brotherhood of Carpenters and Joiners of America, Applicant v. The Georgian Group Inc., Responding Party v. Universal Workers Union, Labourers’ International Union of North America, Local 183, Intervenor.
BEFORE: John Morgan Lewis, Vice-Chair.
DECISION OF THE BOARD; August 10, 2001
1This is an application for certification filed under the construction industry provisions of the Labour Relations Act, 1995 (the “Act”). The applicant identified the intervenor as a trade union which claims to represent employees who may be affected by the application.
2The intervenor has challenged the status of three individuals to cast a ballot in the representation vote which was held on May 7, 2001. One basis on which the intervenor is challenging the individuals is that they were employed and were working contrary to the terms and conditions of the applicable collective agreement in effect on the date of application. The applicant asserts that the individuals should be included in the bargaining unit and their ballots counted.
3This matter is scheduled to be heard on August 13 and 14, 2001. Counsel for the applicant has written to the Board seeking an order that the intervenor be responsible for ensuring the attendance of those individuals whose entitlement to cast a ballot in the representation vote is being challenged. The applicant asserts that the onus of establishing whether the individuals were working in violation of the collective agreement rests upon the intervenor. Accordingly, the intervenor should be required to ensure their attendance at the hearing.
4Information Bulleting No. 9 indicates that the party that asserts that an individual should be on the list or in the bargaining unit has the responsibility for ensuring that individual’s attendance at the hearing. In this application, that responsibility rests upon the applicant. The fact that the intervenor has raised an argument in which it bears the burden does not alter the fact that the applicant is asserting that the individuals be included in the bargaining unit. The applicant’s request is therefore denied.
5The Board notes that the applicant has raised another procedural issue which may dictate the manner in which the challenged individuals may be required to give evidence. In its submissions dated June 22, 2001, counsel for the applicant asserts that the Board should require the intervenor to proceed first to lead evidence with respect to its position that the challenged individuals were employed and were working contrary to the collective agreement. The Board declines to make any directions at this time relating to the applicant’s suggested order of proceedings. This issue is best raised before the panel of the Board hearing this matter.
“John Morgan Lewis”
for the Board