Ontario Labour Relations Board
File No.: 0243-01-R Parties: United Brotherhood of Carpenters and Joiners of America, Local 1946, Applicant v. Reed Atwood Inc., Responding Party.
Before: Harry Freedman, Vice-Chair, and Board Members J.G. Knight and G. McMenemy.
Decision of the Board: July 30, 2001
Decision
1The Board by decision dated April 27, 2001 directed a representation vote in this application for certification. Seven persons cast ballots at the vote that was held on May 1, 2001. The applicant challenged the eligibility to vote of four persons while the responding party challenged the eligibility of three persons who the applicant sought to have added to the voters’ list. The parties ultimately met with a Labour Relations Officer at a Regional Certification Meeting on July 11, 2001 and subsequently submissions were exchanged. The parties’ positions have not changed.
2This matter must proceed to a hearing in order to determine the voter eligibility of the seven persons in dispute. The responding party suggested that the Board should proceed first with its challenges to the three persons whom the applicant submits were employees of the respondent and then proceed to deal with the applicant’s challenges. The responding party points out that it had no knowledge of the three persons it has challenged until after this application had been filed. It claims that the person who the applicant asserts hired those three persons was a journeyman carpenter who had been employed by the responding party for a little over two weeks and who had no managerial authority. The responding party also submits that the three persons it has challenged all live in the London area and that the circumstances of their becoming allegedly employed by the responding party were the same. It points out that the four persons the applicant has challenged live in different parts of the province and it will be difficult to get them to the hearing in Toronto on short notice if there is uncertainty at the start of the hearing as to who should proceed first. The responding party argues that the Board should bifurcate the hearing in this matter by hearing the evidence and argument with respect to its three challenges before determining the challenges made by the applicant. The applicant submits that the Board should not bifurcate the proceedings as suggested by the responding party, but provides no other submissions in support of its position.
3The responding party’s submissions with respect to the order in which the Board should deal with the challenges are persuasive. Information Bulletin No. 9 (Status Disputes in Certification Applications in the Construction Industry) makes it clear that the party that asserts that an individual should be on the list of employees who are in the bargaining unit has the responsibility for ensuring that individual’s attendance at the hearing. It seems to us that the Board should first hear the evidence relating to the three persons whom the applicant asserts should be on the voters’ list. They share a common issue, that is the circumstances of their hiring and as the responding party points out, dealing first with their evidence may cause the parties to consider their respective positions on the remaining challenges. Therefore, although we are reluctant to make a decision about the order of proceedings for the panel assigned to hear the matter, in the circumstances of this case we accept the responding party’s submission about the availability and location of witnesses and therefore direct the parties to be prepared to deal with the responding party’s challenge to the eligibility to vote of numbers 5, 6, and 7 on the voters’ list; that is, Erick Peterson, Brian Travis and Clay Wright. The applicant should be prepared to have those persons available to give evidence when the hearings in this matter commence.
4The Board does not, in this decision, determine whether the panel of the Board assigned to hear this matter will bifurcate the proceeding and hear the evidence and argument with respect to those three persons before hearing the evidence relating to the persons challenged by the applicant. That is a matter for the Board to determine when the hearing commences.
5This matter is referred to the Registrar to fix three days of hearing for the purpose of hearing the evidence and argument of the parties with respect to the parties’ challenges to the eligibility to vote of the persons who cast ballots in the representation vote in this matter.
6This panel of the Board is not seized with this matter.
“Harry Freedman”
for the Board