Labourers’ International Union of North America, Local 493 v. Nor Eng Construction & Engineering Inc.
1066-01-R Labourers’ International Union of North America, Local 493, Applicant v. Nor Eng Construction & Engineering Inc., Responding Party.
BEFORE: Christopher J. Albertyn, Vice-Chair.
DECISION OF THE BOARD; July 16, 2001
1This is an application for certification filed under the construction industry provisions of the Labour Relations Act, 1995 (the "Act").
2The Board finds that the applicant is a trade union within the meaning of sections 1(1) and 126 of the Act and is an affiliated bargaining agent of a designated employee bargaining agency. Pursuant to the designation issued by the Minister under section 153(1) of the Act on September 30, 1983, the designated employee bargaining agency is The Labourers’ International Union of North America and The Labourers’ International Union of North America, Ontario Provincial District Council.
3The responding party was duly served with the application on July 11, 2001, according to the Certificate of Delivery filed by a general counsel for the applicant and filed its response with the Board within the time stipulated by Rule 135 of the Board's Rules of Procedure.
4It 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.
5The responding party disputes the applicant’s estimate of the number of employees in the applicant’s proposed bargaining unit. Furthermore, the responding party contends that the applicant’s bargaining unit could not be appropriate. It gives notice under section 8.1 of the Act.
6The responding party contends that the applicant’s proposed bargaining unit does not contain an accurate geographic description. Specifically, it says the proposed unit encompasses a significantly large white area and Board Area 18. This is an issue upon which the parties may make submissions at the hearing.
7An applicant trade union may select the geographic area in which it seeks bargaining rights for all non-ICI work (Gorf Contracting Limited [1991] OLRB Rep. April 483) and it may include more than one geographic area. Accordingly, the applicant’s proposed bargaining unit could be appropriate. Its precise description is a matter which can be resolved after the vote or at the hearing.
8The Board finds that the bargaining unit described in the application could be appropriate. The responding party contends that there are no employees in the applicant’s proposed bargaining unit on the date of the application performing bargaining unit work. This matter can be raised at the hearing.
9The responding party has provided no list of employees and therefore no information from which to base a section 8.1. determination. The section 8.1 notice is therefore invalid. 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.
10The 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.
11The Board further finds 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 Township of Archipelago and the surrounding Townships of Seguin, McDougall, Georgian Bay, Carling, Burton, East Burpee, Harrison and Wallbridge, save and except non-working foremen and persons above the rank of non‑working foreman, could constitute a unit of employees of the responding party appropriate for collective bargaining.
12The Board directs that a representation vote be taken of the individuals in the following voting constituency:
all construction labourers in the employ of Nor Eng Construction & Engineering 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 Nor Eng Construction & Engineering Inc. in all other sectors of the construction industry in the Township of Archipelago and the surrounding Townships of Seguin, McDougall, Georgian Bay, Carling, Burton, East Burpee, Harrison and Wallbridge, save and except non-working foremen and persons above the rank of non‑working foreman.
13The vote will be held on July 18, 2001. Vote arrangements are set out on the attached "Notice of Vote and of Meeting".
14The 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.
15All individuals who were employed by Nor Eng Construction & Engineering Inc. and at work in the voting constituency on July 10, 2001 are eligible to vote.
16Voters will be asked to indicate whether or not they wish to be represented by the applicant in their employment relations with the responding party.
17Any 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.
18This matter is referred to the Registrar.
“Christopher J. Albertyn”
for the Board