Labourers’ International Union of North America v. Wittmer Construction Services Inc.
1487-01-R Labourers’ International Union of North America, Applicant v. Wittmer Construction Services Inc., Responding Party v. Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America, Intervenor.
1598-01-R Labourers’ International Union of North America, Applicant v. Wittmer Construction Services Inc., Responding Party v. Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America, Intervenor.
BEFORE: Harry Freedman, Vice-Chair, and Board Members J. G. Knight and G. McMenemy.
DECISION OF THE BOARD; October 25, 2001
1These are two applications for certification under the construction industry provisions of the Labour Relations Act, 1995, S.O. 1995 c.1, as amended (the "Act") in which the Board directed representation votes by decision dated August 28, 2001 in Board File No. 1487-01-R (Board Area 26) and by decision dated September 12, 2001 in Board File No. 1598-01-R (Board Area 9).
2The responding party failed to file a timely response to the application in Board File No. 1487-01-R, but did file a response in the later application. The Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America (“Local 27”) has filed interventions in both applications. The three parties agreed to consolidate the two Officers’ meetings in these two applications. Following the Officer’s meeting with the parties, there remained a number of issues in dispute, most of which are common to both applications.
3While it appears that there was some issue over the description of the appropriate bargaining unit in Board File No. 1487-01-R, the Board determined the description of the appropriate bargaining unit in that application in its August 28, 2001 decision. Similarly, the Board determined the description of the appropriate bargaining unit in Board File No. 1598-01-R in its decision of September 12, 2001. The bargaining unit descriptions, as determined by the Board in its previous decisions in these two matters remain unchanged.
4The applicant has challenged the right of Local 27 to intervene in these two applications. The responding party asserts that it was not the employer of the persons the applicant claims were employed in the bargaining unit on the dates the two applications were filed and therefore does not have any records indicating whether any of those persons were at work in the bargaining unit on those dates. Local 27 submits that none of the persons on the lists of employees were working in the bargaining unit on the date of the applications. The applicant asserts that the individuals who were employed on the application dates (and who cast ballots in both representation votes) were pieceworkers who work as a single crew of dependent contractors under the leadership of Jack Goncalves, who uses a corporation (International Finish Carpentry Limited) to invoice the responding party for the work the crew performs.
5The responding party also asserted in Board File No. 1487-01-R that the identification of the voters was an issue and it claimed in Board File No. 1598-01-R that only two of the six voters had cast their ballots during the time fixed for voting and the other ballots were accepted after the poll should have been closed.
6The responding party did not, in its submissions following the vote or after the Officer’s meeting, make any further submissions with respect to the conduct of the representation vote. Furthermore, we note that the responding party executed the Certification of Conduct of Election (Form B-86) in which it notes that the persons who acted as scrutineers “certify that the balloting was fairly conducted and that all eligible voters were given an opportunity to cast their ballots in secret, and that the ballot box was protected in the interest of a fair and secret vote.” Therefore, the Board will not, at the hearing of this matter, entertain any submissions from the parties with respect to the conduct of the representation vote.
7The applicant requested that the membership evidence filed by Local 27 be disclosed on the grounds that Local 27’s status to intervene is not based on bargaining rights, but rather its status is based on it being a representative of one or more employees affected by these applications. These applications for certification relate to Board Areas 9 and 26. The collective agreement filed by Local 27 relates to Board Area 8. It is clear, and not asserted to the contrary by Local 27, that Local 27 does not hold bargaining rights for employees of the responding party working outside of Board Area 8.
8The applicant had also asserted that the responding party’s failure to file a timely response in Board File No. 1487-01-R precludes it from making submissions in connection with that application and that it should be deemed to have accepted all of the allegations of fact contained in the application. The Board, in its August 28, 2001 decision noted that the responding party had sought to delay the representation vote due to the absence of Mr. Wittmer. Counsel for the responding party, by letter dated August 31, 2001, advised the Board and the other parties that the responding party had no employees in the bargaining unit. That is also the position taken by the responding party in its timely response filed in Board File No. 1598-01-R. As there is no prejudice to the applicant arising from the responding party having failed to file a timely response in Board File No. 1487-01-R, and as the issues relating to voter eligibility are the same in both applications, the objection made by the applicant to the responding party making submissions in relation to the application in Board File No. 1487-01-R is dismissed.
9The responding party in its response to the application in Board File No. 1598-01-R filed a timely notice under section 8.1 and takes the position that there are no employees in the bargaining unit. Where an employer gives notice under section 8.1 of the Act and asserts that there are no employees in the proposed bargaining unit, the section 8.1 notice is irrelevant. See Plus Construction, Board File No. 3723-00-R, unreported, decision dated March 22, 2001, Q.L. cite [2001] O.L.R.D. No. 1118. The Board in that case observed at paragraph 9:
The responding party asserts that there are no employees of the responding party at work on the application date. … Although the responding party has given a timely notice under section 8.1, there is no list of employees attached (consistent with the responding party’s position). If the responding party is correct, the application will be dismissed but not for the reasons set out in section 8.1. Accordingly, this is not a valid notice under section 8.1 and the ballot box will not be sealed for this reason.
Since the responding party submits that it had no employees in the bargaining unit on the application date, for the reasons expressed by the Board in Plus Construction, the notice under section 8.1 of the Act is not relevant to this proceeding and need not be considered further.
10There are, in our view, three principal issues remaining for determination by the Board in these proceedings. The first is whether Local 27 has standing to intervene in these applications, the second is whether the employees the applicant asserts were working in the bargaining unit on the application dates were actually at work in the bargaining unit on those dates and the third is if they were at work in the bargaining unit as claimed by the applicant, whether they were employees of the responding party.
11The applicant seeks disclosure of the membership evidence filed by Local 27. Local 27 opposes disclosure of that evidence and relies on section 119(1) of the Act. The Board has reviewed the documentary evidence filed by Local 27. That documentary evidence consists of the remittance forms used to make remittances to the Local 27 benefit trust funds. Those remittance forms indicate benefit remittances were made to Local 27 in January 2001 on behalf of at least one of the persons whom the applicant claims is an employee in the bargaining unit. Whether that documentary evidence is sufficient to establish that Local 27 has standing to intervene in these two applications is an issue that can be determined by the Board assigned to hear these two applications.
12These two applications are referred to the Registrar to be listed for three days of hearing. The purpose of the hearing is to hear the evidence and representations of the parties with respect to:
a) whether Local 27 has standing to intervene in these two applications;
b) whether the six persons the applicant claims were employees working in the bargaining unit on the application dates were actually performing carpentry work in Board Area 26 on August 22, 2001 and in Board Area 9 on September 5, 2001; and
c) if they were performing such work in those Board areas on those dates, whether they were employed by the responding party.
13This panel of the Board is not seized with these matters.
“Harry Freedman”
for the Board