1868-01-R Brick and Allied Craft Union of Canada, Applicant v. The Babcock and Wilcox Company, Responding Party v. The International Union of Bricklayers and Allied Craftworkers; International Union of Bricklayers and Allied Craftworkers, Locals 6, 7 and 25, Intervenors.
BEFORE: John Morgan Lewis, Vice‑Chair, and Board Members G. Pickell and A. Haward.
DECISION OF THE BOARD; October 10, 2001
1This is an application for certification filed under the construction industry provisions of the Labour Relations Act, 1995 (the "Act").
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 section 1(1) of the Act.
3It 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.
4The 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.
5A response has been filed by the responding party. Interventions were received from The International Union of Bricklayers and Allied Craftworkers (“IUBAC”) and from Locals 6, 7 and 25 of the IUBAC. The responses raise a number of issues including, inter alia, the nature of this application, the appropriateness of the applicant’s proposed bargaining unit and the manner in which the applicant obtained membership evidence. None of these issues will prevent the Board from conducting the representation vote. In addition, none of them needs to be determined in a final fashion at this time.
6The parties disagree as to the proper description of the proposed bargaining unit. The Board’s practice is, where possible, to describe a voting constituency in a displacement application in terms identical to those in an existing collective agreement. After considering the materials filed by the parties, however, it is not apparent to the Board that this is a displacement application. The applicant asserts that the responding party has never been a party to a collective agreement with any union in the electrical power systems sector with respect to the proposed bargaining unit. The applicant asserts, in the alternative, that the IUBAC and the Ontario Provincial Council of the IUBAC (“OPC”) hold bargaining rights with the responding party. The responding party maintains that it is not bound to a collective agreement covering any of the employees in the applicant’s proposed bargaining unit. Nevertheless, the responding party describes this application as a displacement application and maintains that the bargaining unit should be as described in a collective agreement which purports to bind the responding party. The responding party and the intervenors further disagree with the applicant’s proposed bargaining unit on the basis that it seeks to obtain bargaining rights for the Province of Ontario in the electrical power systems sector. They maintain that the bargaining unit should be restricted to Board Area No. 5 in the electrical power systems sector.
7Having regard to the numerous issues which have been raised, the Board declines to make any findings at this time in relation to the appropriateness of the applicant’s proposed bargaining unit. Those issues can be later determined by a panel of the Board following the representation vote.
8When there is a dispute as to the proper bargaining unit, the Board’s practice is to describe the widest possible bargaining unit. Accordingly, the Board directs that a representation vote be taken of the individuals in the following bargaining unit:
all journeymen and apprentice bricklayers, stonemasons, plasterers and plasterer improvers in the employ of The Babcock and Wilcox Company in the electrical power systems sector of the construction industry in the Province of Ontario; and in all other sectors of the construction industry, save and except the industrial, commercial and institutional sector of the construction industry in the Regional Municipality of Niagara and that portion of the Regional Municipality of Haldimand-Norfolk coming within the former County of Haldimand, save and except non-working foremen and persons above the rank of non-working foreman.
9The vote will be held on October 12, 2001. Vote arrangements are set out on the attached "Notice of Vote and of Meeting".
10All individuals who were employed by The Babcock and Wilcox Company and at work in the voting constituency on October 4, 2001 are eligible to vote.
11As it is unclear at this time whether the applicant is seeking to displace bargaining rights currently held by the IUBAC and the OPC, the Board directs that voters will be asked to cast two ballots. The first ballot will ask the voters whether they wish to be represented by the applicant or IUBAC and the OPC in their employment relations with the responding party. The second ballot will ask the voters whether they wish to be represented by the applicant in their employment relations with the responding party.
12In light of the substantive issues which remain in dispute, the ballots cast in each representation vote will be individually segregated and the ballot boxes will be sealed unless the parties otherwise agree or the Board otherwise orders.
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.
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 matter is referred to the Registrar.
“John Morgan Lewis”
for the Board