0367-01-R James MacHardy, on his own behalf and on behalf of a group of employees of Thomas G. Fuller & Sons Ltd. and Thomas Fuller Construction Co. (1958) Limited, Applicant v. International Union of Operating Engineers, Local 793, Responding Party v. Thomas G. Fuller & Sons Ltd. and Thomas Fuller Construction Co. (1958) Limited, Intervenor.
BEFORE: David A. McKee, Vice‑Chair, and Board Members J. G. Knight and G. McMenemy.
DECISION OF THE BOARD; May 7, 2001
The applicant has applied to the Board under section 63 of the Labour Relations Act, 1995 (the “Act”) for a declaration that the responding party no longer represents the employees in a bargaining unit for which it is the bargaining agent.
This application was fi1ed on April 27, 2001. The employees who are affected by this application are covered by a collective agreement between the responding party and Thomas G. Fuller & Sons Ltd., with an effective date of May 1, 1998, until April 30, 2001. The bargaining unit description in that collective agreement is as follows:
all employees of the employer covered by the classifications set out in Schedule “A” of the National Capital Road Builders Collective Agreement while working within the present boundaries of Ontario Labour Relations Board Area No. 15 (the Regional Municipality of Ottawa-Carleton, and the United Counties of Prescott and Russell), save and except foremen, those above the rank of foreman, office and clerical staff, yard employees, engineering staff and security guards.
For the purpose herein, the expression “yard employees” means:
“Employees assigned to permanent or temporary operations within the employer’s property boundary, but does not include employees assigned to delivery of construction materials to roadway works, excavating work, utility works, and any other form of construction site.
Having regard to the provisions of section 63(2) of the Act, the Board finds that this application is timely.
It appears to the Board on an examination of the evidence before it, that not less than forty per cent of the employees in the bargaining unit had expressed a wish not to be represented by the trade union at the time the application was filed.
This application raises what is apparently a novel issue. All parties agree that the responding party (the “Union”) holds bargaining rights only for Thomas G. Fuller & Sons Ltd. (“Fuller”). The applicant seeks to include in the voting constituency employees of Thomas Fuller Construction Co. (1958) Limited (“Fuller 58”). The Union has no bargaining rights for Fuller 58. The applicant states that the relationship between Fuller & Fuller 58 “may give rise to the application of subsection 1(4) of the Act”. No application seeking such a declaration has been filed by any party, although the applicant states “To the extent necessary to terminate all of the bargaining rights to which the [Union] may lay claim, the Applicant reserves the right to rely on s. 1(4)”. It is apparent from the response the Union does not “lay claim” to bargaining rights for employees of Fuller 58. Discussions are ongoing with respect to an agreement for Fuller 58, but no such agreement has been signed.
Since there is no application for relief under section 1(4), and since the possibility that the applicant seeks to guard against has not materialized, there is no need to look beyond the bargaining unit of employees of Fuller. If, however, an employee of Fuller 58 seeks to cast a ballot, he or she shall be entitled to do so. Absent agreement of the parties, any such ballot will be segregated. If any party wishes to pursue this matter with the Board following the representation vote, it may do so.
The Board directs that a representation vote be taken of the employees of Thomas G. Fuller & Sons Ltd. employed in the bargaining unit described in paragraph 2 above. All those employed in that bargaining unit and at work on the application filing date will be eligible to vote.
The vote will be held on May 9, 2001. Vote arrangements are as set out on the attached "Notice of Vote and of Hearing".
Voters will be asked to indicate whether or not they wish to be represented by the responding party in their employment relations with Thomas G. Fuller & Sons Ltd.
The employer is directed to post copies of this decision and of the "Notice of Vote and of Hearing" in a location or locations where they are most likely to come to the attention of those eligible to vote. These copies must remain posted for a period of 30 days.
Any party or person who wishes to make representations to the Board about any issue remaining in dispute which relates to the application for termination of bargaining rights, other than status disputes, must file a detailed statement of representations 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. 10: Status Disputes in Termination Applications in the Construction Industry.
The matter is referred to the Registrar.
“David A. McKee”
for the Board