Universal Workers Union, Labourers’ International Union of North America, Local 183 v. Sundial Homes Ltd. et al.
File No.: 1501-01-R Date: August 29, 2001
Universal Workers Union, Labourers’ International Union of North America, Local 183, Applicant v. Sundial Homes Ltd. and/or Forest Heights (Aurora) Inc. and/or Sundial Homes (Beech) Ltd. and/or Sundial Homes, Responding Parties.
Before: Harry Freedman, Vice-Chair and Board Members G. Pickell and A. Haward.
DECISION OF THE BOARD
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 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 parties were duly served with the application on August 24, 2001, according to the Certificate of Delivery filed by the applicant. Sundial Homes (Beech) Ltd. (“Sundial Beech”) filed a response with the Board within the time stipulated by Rule 135 of the Board's Rules of Procedure.
4The form of the documents filed by the applicant as membership evidence is headed: “Application for Membership” in bold capital letters. The next line of the membership document states: “In the Universal Workers Union Local 183”. The body of the membership document contains the following text:
I hereby make application to become a member of the Universal Workers Union Local 183. In doing so, I, of my own free will and accord, hereby authorize the Universal Workers Union Local 183 or its representatives, or officers to act for me as collective bargaining agent in all matters pertaining to my employment including rates of wages, hours of work and other conditions of employment.
There is no reference to Labourers' International Union of North America on the membership evidence filed by the applicant. Despite the minor difference between the name of the organization on the membership evidence documents filed in this application and the name of the applicant, the 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.
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.
6Until the Board determines the correct identity of the employer of the persons affected by this application, the Board cannot determine the precise description of the appropriate bargaining unit. The Board notes, however, that Sundial Beech agrees with the description of the bargaining unit proposed by the applicant. That is, the parties have agreed that all construction labourers in the employ of the responding party in all sectors of the construction industry in 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, excluding the industrial, commercial and institutional sector, 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.
7Sundial Beech in its response submitted that there were no employees in the bargaining unit. It also asserted that the correct name of the responding party was Sundial Homes (Beech) Limited. The applicant asserted that all of the entities it had named as the responding party constitute one employer for purposes of the Act. The correct name of the employer and the precise description of the bargaining unit will therefore have to be determined by the Board at a later date.
8Sundial Beech also submitted that the application ought to be dismissed by reason of an oral agreement made in 1999 between Jorge Vala, on behalf of the applicant and Robert Yanowski on behalf of Sundial Beech. It asserts that they had agreed that in consideration of Sundial Beech agreeing “to use members of the applicant to perform some work at the Whitby site” despite the applicant not having bargaining rights in Board Area 9 “the applicant agreed not to make any certification application with respect to work performed at the Whitby site.” Sundial Beech, in its response, submits that both it and the applicant abided by that oral agreement until this application had been filed. It also indicates that after receiving this application for certification, Mr. Yanowski contacted Mr. Vala, who confirmed their oral agreement and explained that he had been on vacation when this application was filed by Frank D’Abbondanza, another business representative of the applicant, without Mr. Vala’s knowledge. Sundial Beech asserts that Mr. Vala advised Mr. Yanowski that he would speak to Mr. D’Abbondanza to rectify matters. Subsequently, Mr. Vala informed Mr. Yanowksi that the applicant would not withdraw this application.
9The objection made by Sundial Beech to this application for certification does not provide any basis for the Board to delay the taking of a representation vote. See Windsor Racetrack Slots, unreported decision dated January 17, 2001, Board File No. 2997-00-R, Q.L. cite [2001] O.L.R.D. No. 168 at paragraphs 8 to 11. Furthermore, the Board, in the past, has considered and rejected an objection to an application for certification on similar grounds. See Whitney Maintenance Limited, [1973] OLRB Rep. Jan. 26 in which the employer submitted in its reply that it had reached an agreement with the union by which it would pay certain rates to employees and the union would not apply for certification. The Board stated at page 26:
Assuming, without deciding, that the allegations set forth in paragraph 13 of the reply are true, it is the view of the Board that the parties are not competent by private agreement to contract out of the provisions of the Labour Relations Act. Accordingly, the facts alleged in paragraph 13 of the reply, even if established, do not constitute a bar to this application for certification.
See also J.D.S. Investments Limited, [1982] OLRB Rep. Nov. 1657 at 1659. The Board need not, however, at this stage make a final determination about merit, if any of the objection raised by Sundial Beech to this application. That issue can be dealt with by the Board when it receives the parties’ post vote submissions.
10Having regard to the parties’ agreement 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 Sundial Homes Ltd. and/or Forest Heights (Aurora) Inc. and/or Sundial Homes (Beech) Ltd. and/or Sundial Homes in all sectors of the construction industry in 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, excluding the industrial, commercial and institutional sector, save and except non-working foremen and persons above the rank of non-working foreman.
11The vote will be held on August 31, 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. These copies must remain posted for 30 days.
13All individuals who were employed by Sundial Homes Ltd. and/or Forest Heights (Aurora) Inc. and/or Sundial Homes (Beech) Ltd. and/or Sundial Homes and at work in the voting constituency on August 23, 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 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 panel of the Board is not seized with this matter.
17This matter is referred to the Registrar.
“Harry Freedman”
for the Board