Ontario Labour Relations Board
Board File No.: 0333-01-R Carlos Ribeiro and Jose Oliveira, Applicant v. Labourers’ International Union of North America, Ontario Provincial District Council, Universal Workers Union Local 183, Responding Parties v. C.S.B.I. Contracting Ltd., Intervenor.
Board File No.: 0334-01-R Carlos Ribeiro and Jose Oliveira, Applicant v. Labourers’ International Union of North America, Ontario Provincial District Council, Labourers’ International Union of North America, Local 506; Universal Workers Union Local 183, Responding Parties v. C.S.B.I. Contracting Ltd., Intervenor.
Before: D. L. Gee, Vice-Chair.
Appearances: Ian Werker, Carlos and Jose Oliveira appeared on behalf of the applicants; Caroline Hart, John Cabral and Henry Pereira appeared on behalf of the responding parties; David Cowling and Dwayne Staranchuk appeared on behalf of the intervenor.
Decision of the Board; October 3, 2001
Decision
1The style of cause in Board File No. 0333-01-R is hereby amended to name the responding parties as "Labourers’ International Union of North America, Ontario Provincial District Council, Universal Workers Union Local 183". The style of cause in Board File No. 0334-01-R is hereby amended to name the responding parties as "Labourers’ International Union of North America, Ontario Provincial District Council, Labourers’ International Union of North America, Local 506, Universal Workers Union Local 183".
2These matters are two applications for the termination of bargaining rights under section 63 or 132 of the Labour Relations Act, 1995 (the "Act") that were filed with the Board on the same day.
3Board File No. 0333-01-R (subject to the outcome of a dispute between the parties as to the bargaining unit description) is an application to terminate the responding parties’ non-ICI bargaining rights and will be referred to herein as the "non-ICI application". Board File No. 0334-01-R is an application to terminate the responding parties’ ICI bargaining rights and will be referred to herein as the "ICI application".
4At the commencement of the hearing of these matters, the applicants informed the Board that the responding parties in the ICI application had just informed them that they disputed the applicants’ characterization of the work performed on the Application Filing Date as work falling within the ICI sector of the construction industry. The applicants requested that the Board rule that the responding parties would not be permitted to challenge Mr. Ribeiro’s inclusion on the voters’ list in the ICI application on the basis that the project on which he was working, the North York City Hall, does not fall within the ICI sector of the construction industry. The following chronology is relevant to the applicants’ request.
5In both board files, the application states that the applicants believe there to have been two individuals at work in the bargaining unit on the Application Filing Date. A response was filed in both files. The responses indicate that the responding parties have no knowledge that any employees were at work in the bargaining unit on the Application Filing Date. The intervenor filed a response in both files. The intervenor states in both of its responses that there was one employee at work in each of the bargaining units on the Application Filing Date.
6Both of the applicants cast a ballot in each of the two representation votes.
7The Termination Worksheet completed by the Labour Relations Officer and signed by all three parties in connection with the non-ICI application indicates that, at the vote, the responding parties challenged Mr. Oliveira on the basis that he was not employed in the bargaining unit and Mr. Ribeiro on the basis that he was not on the voters list and was not working on the date of application. The Termination Worksheet further indicates that, at the pre-hearing meeting held on June 13, 2001, all three parties agreed that Mr. Ribeiro was not properly on the list of voters. The responding parties challenge to Mr. Oliveira’s eligibility to vote, on the basis that he was "not employed in the bargaining unit" remained.
8The Termination Worksheet completed by the Labour Relations Officer and signed by all three parties in connection with the ICI application indicates that, at the vote, the responding parties challenged the ballots cast by both Mr. Oliveira and Mr. Ribeiro on the basis that "they were not at work on the date of application or not performing bargaining unit work on the date of application". The Termination Worksheet further indicates that, at the pre-hearing meeting held on June 13, 2001, all three parties agreed that Mr. Oliveira was not properly on the list of voters. The responding parties’ challenge to Mr. Ribeiro on the basis stated above remained.
9Information Bulletin No. 10 – Status Disputes in Termination Applications in the Construction Industry requires any party that asserts that an individual should not be on the voters’ list to file submissions "providing the reasons for each of their challenges and a summary of the material facts upon which they intend to rely". Information Bulletin No. 10 requires a party that resists a challenge to file a response "summarizing the material facts upon which they intend to rely". The responding parties filed submissions in both board files on June 19, 2001. The responding parties asserted that the one person remaining on the voters’ list in each file was "not an employee in the bargaining unit, performing bargaining unit work, on the date of Application."
10The applicants and the intervenor filed submissions in both board files on June 22. In the ICI application the applicants state that Mr. Ribeiro was engaged in "ICI bargaining unit work on the date of application". It is further stated that he was "engaged at a commercial or institutional site". The nature of the duties he performed and the hours he worked are set out. In the non-ICI application the applicants state that Mr. Oliveira "was engaged in residential and/or concrete restoration and repair work falling outside the ICI sector of the construction industry". The nature of the work performed by Mr. Oliveira and the hours he worked on the Application Filing Date are set out.
11The intervenor states in its submissions relating to both board files that Mr. Oliveira and Mr. Ribeiro respectively were performing bargaining unit work on the date of application. The location at which each individual was working is given and copies of remittances made to the union as well as time sheets are enclosed.
12The applicants assert that, at the pre-hearing meeting with the Labour Relations Officer that took place on June 13, 2001, a discussion took place concerning where the applicants (the only individuals on the voters’ list) were working on the Application Filing Date. The applicants and intervenor provided the responding parties with information in support of their position that Mr. Ribeiro was working at the North York City Hall and Mr. Oliveira was working at 45 Carlton Street. The responding parties took the position that Messrs. Oliveira and Ribeiro could not be in more than one bargaining unit on the Application Filing Date. The applicants state that, at no time did the responding parties assert that the North York City Hall project was not work falling within the ICI sector of the construction industry. Thus, the applicants understood the responding parties’ challenge to be firstly that each voter could only be in one bargaining unit on the Application Filing Date and secondly a challenge as to where Mr. Oliveira and Mr. Ribeiro were working on the date of application. On the basis of such understanding, and in an effort to address the first basis upon which the responding parties challenged the lists, the applicants agreed that Mr. Oliveira was not properly on the list in the ICI application and that Mr. Ribeiro was not on the list in the non-ICI application. Having done so, the applicants understood the sole remaining issue to be the location at which Mr. Oliveira and Mr. Ribeiro were working on the date of application. The applicants state that they would not have agreed to the deletions from the lists if they had understood the responding parties to be challenging what sector the North York City Hall project falls within.
13The applicants further rely on the fact that the post-vote submissions filed by responding parties in connection with the ICI application make no mention of an issue with respect to what sector of the construction industry the North York City Hall project falls.
14The applicants were taken by surprise when, on the morning of the hearing, the responding parties informed the applicants that the responding parties took the position that Mr. Ribeiro was not performing bargaining unit work on the Application Filing Date because, inter alia, he was not performing work in the ICI sector of the construction industry. The applicants argue that the responding parties are estopped from now disputing that the North York City Hall project falls within the ICI sector of the construction industry. The applicants further argue that the responding parties were required by Information Bulletin No. 10 to set out in their post-vote submissions the reasons for their challenges and the material facts upon which they rely. Having failed to make any mention of a sector issue, the applicants argue that the responding parties should be foreclosed from raising the issue the morning of the hearing. The applicants are supported in their request by the intervenor.
Determination
15I ruled orally at the hearing that it was my determination that the responding parties in the ICI application were not estopped from asserting that the North York City Hall project was not in the ICI sector of the construction industry and that I would permit the responding parties to challenge the inclusion of Mr. Ribeiro on the list of voters in the ICI application on the basis that he was not engaged in ICI bargaining unit work on the Application Filing Date. Having regard to the request of the applicants and agreement of the responding parties in the non-ICI application I indicated that, Mr. Ribeiro’s name would be returned to the voters’ list in the non-ICI application.
16In order to be eligible to vote in a representation vote held in connection with a construction industry termination application, an individual must have been at work in the bargaining unit on the Application Filing Date. In order to be working within the bargaining unit, the individual must have been engaged in work covered by the scope clause of the relevant collective agreement. A construction industry scope clause typically defines the work covered by the collective agreement in terms of geographic scope, nature of the work performed and sector. The assertion that an individual was not at work in the bargaining unit on the date of application is thus understood in commonly used construction industry parlance to include any one or more of the following four assertions:
(i) the individual was not working at all on the date of application;
(ii) the individual was working on the date of application but not in the geographic scope of the collective agreement;
(iii) the individual was working in the geographic scope of the collective agreement on the date of application but not at the type of work covered by the collective agreement; or
(iv) the individual was working in the geographic scope of the collective agreement performing the type of work covered by the collective agreement but in a sector of the construction industry not covered by the collective agreement.
If any one or more of such challenges proves to be true, the individual in question was not "at work in the bargaining unit on the date of application" and is not eligible to vote.
17In the present case, the responding parties in the ICI application asserted at the vote, at the pre-hearing meeting and in their post-vote submissions, that Mr. Ribeiro was not at work on the date of application or was not an employee in the bargaining unit performing bargaining unit work on the date of application. The responding parties have never orally or in writing asserted that their sole challenge with respect to Mr. Ribeiro relates to where he was working on the date of application. The responding parties have never orally or in writing agreed that, if Mr. Ribeiro was working at North York City Hall on the date of application, he was performing bargaining unit work. Rather, the written materials before the Board, including those signed by all of the parties at the pre-hearing meeting, indicate that the responding parties challenged Mr. Ribeiro’s inclusion on the list on the basis that he was not at work on the application date and further that he was not performing bargaining unit work on the date of application. As indicated above, the assertion that someone was not performing "bargaining unit work" is sufficiently broad to include a challenge that the person was not engaged in work falling within the scope of the union’s bargaining rights.
18The applicants do not assert that the responding parties ever stated that they were not challenging what sector of the construction industry the North York City Hall project falls. The applicants assert that the discussion focussed on other issues and, given that the issue of sector was never raised, they presumed it not to be an issue.
19Based on the facts as asserted by the applicants, I am unable to find that the responding parties made any representation by act or omission to the effect that their sole challenge with respect to Mr. Ribeiro related to where he was working on the date of application. In contrast, the facts indicate that the responding parties have consistently maintained a challenge to Mr. Ribeiro that is much broader than a mere challenge as to the location of where he was working on the date of application. It is noteworthy that all of the parties signed the Termination Worksheet completed by the Labour Relations Officer at the conclusion of pre-hearing meeting that clearly indicated that the responding parties were maintaining their broad challenge to Mr. Ribeiro. Had the responding parties agreed during the course of the pre-hearing meeting to
narrow the scope of their challenge to Mr. Ribeiro, the Termination Worksheet would have been amended to reflect the narrower basis on which the responding parties continued to challenge Mr. Ribeiro. Having found that the responding parties made no representation to the applicants to the effect that they were only challenging Mr. Ribeiro on the basis of where he was working on the date of application, the responding parties cannot, by operation of estoppel, be precluded from challenging what sector Mr. Ribeiro was employed in on the application date.
20I turn then to consider whether the responding parties failure to comply with the requirements of Information Bulletin No. 10 should preclude them from being able to challenge what sector Mr. Ribeiro was employed in on the application date. Information Bulletin 10 required the responding parties to file submissions with the Board setting out the reasons for each of their challenges and the material facts upon which they intend to rely. The submissions filed by the responding parties in the ICI application state that Mr. Ribeiro was being challenged on the basis that he was not "an employee in the bargaining unit, performing bargaining unit work, on the date of Application". No material facts were set out. The applicants and the intervenor are correct in their assertion that the responding parties did not file submissions that fulfilled the requirements of Information Bulletin No. 10.
21I am not persuaded that the responding parties’ failure to provide material facts relating to the basis on which they are challenging Mr. Ribeiro should cause me to preclude them from challenging what sector he was employed in on the application date.
22As indicated above, I am not satisfied that the responding parties ever narrowed the basis of their challenge to Mr. Ribeiro so as to preclude a challenge on the basis of sector. The applicants do not take issue with the responding parties’ failure to provide material facts on any issue other than the sector issue. Accordingly, if the applicants are content to allow the responding parties’ challenge to proceed absent material facts on other issues, I see no reason not to permit the issue of sector to proceed absent material facts as well.
23Further, it is apparent that the Board will hear some evidence or submissions with respect to what Mr. Ribeiro was doing on the date of application. Notwithstanding their submissions that they understood the sole issue to be where Mr. Ribeiro was working on the date of application, the applicants’ submissions indicate that they were aware that sector is an element of determining whether Mr. Ribeiro was performing bargaining unit work on the date of application. It their post-vote submissions, the applicants refer to Mr. Ribeiro as being "engaged in ICI bargaining unit work on the date of application" and that he was "engaged at an ICI site". Thus, the relevance of sector was not a complete surprise to the applicants and one that they themselves alluded to.
24Finally, the issue is one of significance. In order to have a say in whether or not the union’s bargaining rights are to be terminated, an individual must have been at work in the bargaining unit on the date of application. The issue is at the root of Mr. Ribeiro’s entitlement to vote. The issue was raised at the very beginning of the hearing and the Board had sufficient days scheduled to permit the issue to be dealt with.
25For the foregoing reasons, I ruled orally that the responding parties would be permitted to challenge Mr. Ribeiro’s inclusion on the voters’ list in the ICI application on the basis of sector.
26The responding parties in Board File No. 0334-01-R are hereby directed to deliver to the other parties and file with the Board, no later than 5:00 p.m. on October 26, 2001, their full submissions, including a copy of any documents and jurisprudence upon which they rely, relating to the issue of what sector of the construction industry the work Mr. Ribeiro was performing on the date of application falls within. The applicants and the intervenor are hereby directed to deliver to the other parties and file with the Board, no later than 5:00 p.m. on November 9, 2001, their full submissions, including a copy of any documents and jurisprudence upon which they rely, relating to the issue of what sector of the construction industry the work Mr. Ribeiro was performing on the date of application falls within.
27The Board may determine the issue of sector based on the materials filed.
28The hearing of this matter will continue on November 23, 2001 commencing at 9:30 a.m. at the Board’s Offices, 2nd Floor, 505 University Ave., Toronto, Ontario.
29I am seized.
"D. L. Gee"
for the Board