Allied Construction Employees Local 1030 United Brotherhood of Carpenters and Joiners of America v. Magnum Homes and/or West Star Construction Group Ltd.
File No.: 3851-00-R Before: Inge M. Stamp, Vice-Chair. Decision of the Board: April 9, 2001
1This is an application for certification filed with the Board on March 27, 2001, pursuant to the construction industry provisions of the Labour Relations Act, 1995 (the "Act").
2The applicant filed a certificate of delivery (Form A-75) confirming the required documents were sent to Magnum Homes and/or West Star Construction Group Ltd., the named responding party.
3On March 30th, 2001 one of the named responding parties, Magnum Homes, filed a response stating that it does not employ carpenters and further that it subcontracted the work to a carpentry company called Westar Carpentry Ltd.
4The Board sent out its confirmation of filing and delivery of application (Form B-59), confirming that the applicant union has certified that a copy of the application for certification (Form A-71) and other relevant documents were delivered to the employer and any affected trade union no later than March 28, 2001. (The delivery date).
5On March 30, 2001 counsel for the applicant advised the Board by facsimile that the applicant requests that Weststar Carpentry Ltd. (at 349 Firglen Ridge in Woodbridge, Ont.) be added as a responding party without prejudice to the applicant's position with respect to the other two named responding parties. The Board would note there had been no assertion that any of these companies are related employers for the purposes of the Act.
6The letter of March 30, 2001 states that a copy of the application and other required materials has been delivered to Weststar Carpentry Ltd. as indicated on the attached certificate of delivery. No such certificate was attached.
7On April 2, 2001 at 11:51 a.m. the Board received a facsimile letter from the applicant stating: Please find attached a certificate of delivery for Westar Carpentry Ltd., which was inadvertently omitted from our letter of March 30, 2001. The letter goes on to say that the correct spelling of the name of this responding party is "Westar Carpentry Ltd." and not "Weststar Carpentry Ltd. as indicated earlier.
8The attached certificate of delivery (Form A-75) names the responding party as "Magnum Homes and/or West Star Construction Group Ltd. and shows documents were delivered to Westar Carpentry Ltd. in Woodbridge, Ontario by UPS on March 30, 2001 at 4:40 p.m.
9On April 2, 2001 at 3:59 p.m. counsel for the applicant advised by facsimile "please find enclosed a revised certificate of delivery regarding Westar Carpentry Ltd. This supersedes the previous certificate of delivery sent today".
10The "revised" Form A-75 added the word "AMENDED" to Certificate of Delivery by Applicant for Certification, Construction Industry. The revised certificate indicates the responding party as: Magnum Homes and/or West Star Construction Group Ltd. and states the documents were picked up by UPS to be delivered to the responding parties. The certificate also states the documents were "picked up on March 30, 2001 at 4:40 p.m.
11It appears the "amended" certificate was only sent to Westar Carpentry Ltd. in Woodbridge.
12On April 3, 2001 the applicant wrote to the Board as follows:
"The union hereby request leave to withdraw this application as against Magnum Homes and/or West Star Construction Group Ltd.
This application remains outstanding as against Westar Carpentry Ltd.
Please be further advised that the copy of the application which we delivered to West Star Construction Group Ltd. was returned to us today, marked "return to sender not at this address".
13This application is fundamentally flawed. There is no Certificate of Delivery (Form A-75) before the Board showing that the employer affected by this application had been served with the correct documents. The named responding party or parties in the application for certification is not the employer of the employees the applicant is seeking to represent. The applicant cannot simply add or withdraw responding parties without giving proper notice to the affected parties. Even if the amended certificate had indicated the correct responding party, it was served on Westar Carpentry Ltd. on the 30th of March. The application was filed with the Board on March 27, 2001. The applicant is required to deliver the application to the responding party not later than two days after the Application is filed with the Board. The deadline for delivering the documents to the responding party was March 29, 2001.
14There is no Certificate of Delivery (Form A-75) before the Board certifying that a completed copy of Notice to Employer of Application for Certification, Construction Industry (Form C-32) and a completed copy of the Application for Certification, Construction Industry (Form A-71) and other required documents were delivered to the employer Westar Carpentry Ltd. as the named responding party in this application.
15Having regard to the above this application is dismissed.
"Inge M. Stamp"
for the Board