2048-01-R Universal Workers Union, Labourers’ International Union of North America, Local 183, Applicant v. Robinson Adams Overhead Doors Inc., Responding Party.
BEFORE: Harry Freedman, Vice-Chair and Board Members J. G. Knight and G. McMenemy.
DECISION OF THE BOARD; October 26, 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 October 23, 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 material on October 23, 2001, according to the Certificate of Delivery filed by 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, in its response, disputes the applicant’s estimate of the number of employees in the applicant's proposed bargaining unit but agrees with the bargaining unit description proposed by the applicant. It gives 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Act, 2000, S. O. 2000, c. 38] sections 3, 23, 32 and 33 which amended section 8.1(5), added section 126.1(2) and repealed sections 159(3) and 160(2) of the Act.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 A.R.A. Construction Ltd., decision dated May 3, 2001, unreported, Board File No. 0399-01-R; Brick and Allied Craft Union of Canada, [2001] OLRB Rep. Jan./Feb. 78 at paragraph 11; Forte Wall Systems (2000) Inc., decision dated May 30, 2001, unreported, Board File No. 0649-01-R. The responding party stated in paragraph 4 of its response that there were 9 employees in the proposed bargaining unit on the application filing date while the applicant stated it believed that there were 14 employees at work in its proposed bargaining unit on the application filing date. After comparing the membership evidence provided by the applicant as against the information provided by the responding party, the Board finds that the numerical difference between the parties is not material to the application.
5The 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.
6The applicant asserted that the only unrepresented trades employed by the responding party on the application date were carpenters and construction labourers. The responding party, having agreed to the applicant’s proposed bargaining unit, does not appear to take issue with that assertion. Therefore, having regard to the parties’ agreement the Board further finds that all journeymen and apprentice carpenters and all construction labourers in the employ of the responding party in all sectors of the construction industry excluding the industrial, commercial and institutional sector 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, 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.
7The responding party listed a number of job sites where work was being performed that would come within the bargaining unit. Included on that list was a project on Highway 89 near Alliston. That project is outside of Board Area 8 (it is in Board Area 18) as it is in the County of Simcoe. The responding party did not identify which of the persons on its list of employees worked on the project near Alliston.
8The responding party also submitted that this application should be dismissed as all of the persons it has listed in its response as performing work in the bargaining unit on the application date were actually not employees but rather were independent contractors engaged by the responding party to install overhead doors. Thus, it appears that the responding party’s position is that there were no employees in the bargaining unit on the application date or in the alterative, there were 9 employees. Where 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.
9The responding party also asserted that the work being performed by the individuals who are engaged in installing overhead doors is actually work covered by the jurisdiction of the ironworkers. Since the responding party did not assert that the persons performing that work on the application date work were ironworkers and not carpenters or construction labourers, whether the work being done on the application date might be considered work coming within the ironworker trade is not an issue that is material to the disposition of this application.
10The 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.
11Having 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 journeymen and apprentice carpenters and all construction labourers in the employ of Robinson Adams Overhead Doors Inc. in all sectors of the construction industry excluding the industrial, commercial and institutional sector 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, save and except non-working foremen and persons above the rank of non-working foreman.
12The vote will be held on October 30, 2001. Vote arrangements are set out on the attached "Notice of Vote and of Meeting".
13The 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.
14All individuals who were employed by Robinson Adams Overhead Doors Inc. and at work in the voting constituency on October 23, 2001 are eligible to vote.
15Voters will be asked to indicate whether or not they wish to be represented by the applicant in their employment relations with the responding party.
16Any 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.
17This matter is referred to the Registrar.
“Harry Freedman”
for the Board