Construction and Allied Workers Local Union 607 v. Durwest Construction Inc.
File No.: 2171-01-R Date: November 9, 2001
Before: Caroline Rowan, Vice-Chair, and Board Members J. G. Knight and G. McMenemy.
DECISION OF THE BOARD
1This is an application for certification filed under the construction industry provisions of the Labour Relations Act, 1995 (the "Act").
2It appears that the applicant has not previously been found to be a trade union within the meaning of sections 1(1) and 126 of the Labour Relations Act, 1995 (the "Act"). The applicant is therefore directed to, not later than November 16, 2001 file with the Board and deliver to the other party copies of all materials upon which it intends to rely in establishing that it is a trade union within the meaning of sections 1(1) and 126 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 responding party in its response to the application filed a timely notice under section 8.1 and takes the position that there are no employees in the bargaining unit. 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. In Plus Construction, Board File No. 3723-00-R, unreported, decision dated March 22, 2001, the Board noted at paragraph 9 that:
- 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.
Since the responding party submits that it had no employees in the bargaining unit on the application date, for the reasons expressed by the Board in Plus Construction, the notice under section 8.1 of the Act is not relevant to this proceeding and need not be considered further. However, even if the Board were to consider the responding party’s alternative submission that there are twelve employees in the bargaining unit, the section 8.1 objection would not, in any event, be relevant. After comparing the membership evidence provided by the applicant as against the information provided by the responding party with respect to this alternative submission, the Board finds that the numerical difference between the parties is not significant. The applicant has established sufficient membership support in its proposed bargaining unit for the purposes of obtaining a representation vote and having that vote counted.
5The 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.
6The Board further finds, pursuant to section 158(1) of the Act, that all construction labourers 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 construction labourers in the employ of the Responding Party in all other sectors of the construction industry in the District of Thunder Bay, 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.
7Having 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 construction labourers in the employ of Durwest Construction Inc. in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and all construction labourers in the employ of Durwest Construction Inc. in all other sectors of the construction industry in the District of Thunder Bay, save and except non-working foremen and persons above the rank of non-working foreman.
8The vote will be held on November 14, 2001. Vote arrangements are set out on the attached "Notice of Vote and of Meeting".
9The 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.
10All individuals who were employed by Durwest Construction Inc. and at work in the voting constituency on November 2, 2001 are eligible to vote.
11Voters will be asked to indicate whether or not they wish to be represented by the applicant in their employment relations with the responding party.
12Any 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.
13This matter is referred to the Registrar.
"Caroline Rowan"
for the Board