Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America v. Promark Aluminum Ltd.
1500-01-R Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America, Applicant v. Promark Aluminum Ltd., Responding Party.
BEFORE: Harry Freedman, Vice-Chair, and Board Members J. G. Knight and G. McMenemy.
DECISION OF THE BOARD; August 28, 2001
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 23, 2001, according to the Certificate of Delivery filed by counsel for the applicant and filed its response with the Board within the time stipulated by Rule 135 of the Board's Rules of Procedure.
4The responding party disputes the applicant's estimate of the number of employees in the applicant's proposed bargaining unit and gave a timely notice under section 8.1 of the Act. Section 8.1 of the Act applies to applications for certification in the construction industry following the amendments to the Act contained in Bill 139 [Labour Relations Amendment Act, 2000, S. O. 2000, c. 38] sections 3, 23, 32 and 33 which amended section 8.1(5), added section 126.1(2) and repealed sections 159(3) and 160(2) of the Act. See also Brick and Allied Craft Union of Canada, [2001] OLRB Rep. Jan./Feb. 78 at 81.
5The responding party agreed with the description of the bargaining unit proposed by the applicant and the Board is satisfied that the agreed upon bargaining unit is consistent with section 158 of the Act. Therefore, the Board finds that the bargaining unit proposed by the applicant could be appropriate for collective bargaining. After comparing the membership evidence provided by the applicant against the information provided by the responding party, it appears that the percentage of the individuals who appear to be members of the applicant at the time the application was filed might be less than 40 per cent of the individuals in the bargaining unit proposed by the applicant. Therefore, pursuant to section 8.1(4) of the Act, the Board directs that the ballot box from the representation vote be sealed and the ballots not counted until the Board so orders or the applicant and responding party agree.
6It appears to the Board 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 were members of the union at the time the application was made.
7One of the membership documents filed by the applicant did not have the signature of the person who collected the document from the individual who had signed it. That irregularity in the membership evidence is not material to the Board’s determinations in this matter as the section 8.1 notice is relevant even if the Board accepted that the irregular membership document provided an appearance of membership and because not less than 40% of the individuals in the proposed bargaining unit would appear to be members of the applicant, based only on the information and evidence filed by the applicant, even if the Board disregarded that single membership document.
8The Board finds that this is an application for certification within the meaning of section 128 of the Act and is an application made pursuant to section 158(1) of the Act which provides that:
An application for certification as bargaining agent which relates to the industrial, commercial and institutional sector of the construction industry referred to in the definition of "sector" in section 126 shall be brought by either,
(a) an employee bargaining agency; or
(b) one or more affiliated bargaining agents of the employee bargaining agency,
on behalf of all affiliated bargaining agents of the employee bargaining agency and the unit of employees shall include all employees who would be bound by a provincial agreement together with all other employees in at least one appropriate geographic area unless bargaining rights for such geographic area have already been acquired under subsection (2) or by voluntary recognition.
9The Board further finds, pursuant to section 158(1) of the Act, that all carpenters and carpenters’ apprentices in the employ of the responding party in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and all carpenters and carpenters’ apprentices in the employ of the responding party in all other 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 and the Regional Municipality of Durham (except for the Towns of Ajax and Pickering), the geographic Township of Cavan in the County of Peterborough and the geographic Township of Manvers in the County of Victoria, 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.
10Having 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 Promark Aluminum Ltd. in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and all carpenters and carpenters’ apprentices in the employ of Promark Aluminum Ltd. in all other 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 and the Regional Municipality of Durham (except for the Towns of Ajax and Pickering), the geographic Township of Cavan in the County of Peterborough and the geographic Township of Manvers in the County of Victoria, save and except non-working foremen and persons above the rank of non-working foreman.
11The vote will be held on August 30, 2001. Vote arrangements are set out on the attached "Notice of Vote and of Meeting".
12The 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.
13All individuals who were employed by Promark Aluminum Ltd. and at work in the voting constituency on August 22, 2001 are eligible to vote.
14Voters will be asked to indicate whether or not they wish to be represented by the applicant in their employment relations with the responding party.
15Any 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.
16This matter is referred to the Registrar.
17This panel of the Board is not seized with this matter.
“Harry Freedman”
for the Board