2046-01-R International Union of Operating Engineers, Local 793, Applicant v. Terra Infrastructure Inc., Responding Party.
BEFORE: Harry Freedman, Vice‑Chair, and Board Members J. G. Knight and G. McMenemy.
DECISION OF THE BOARD; October 26, 2001
1This is an application for certification filed under the construction industry provisions of the Labour Relations Act, 1995, S.O. 1995, c.1 as amended (the "Act"). This application was filed on October 22, 2001.
2The Registrar has certified that the applicant had been found to be a trade union in an earlier proceeding under the Act. Therefore, having regard to the Registrar’s certificate and section 113 of the Act, the 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 July 13, 1978, the designated employee bargaining agency is the International Union of Operating Engineers and Local 793 of the International Union of Operating Engineers.
3The responding party was duly served with the application on October 23, 2001, according to the Certificate of Delivery filed by the applicant and filed its response with the Board within the time stipulated by Rule 135 of the Board's Rules of Procedure.
4Some of the documents filed by the applicant as evidence of membership were undated and therefore did not meet one of the requirements of Rule 66 of the Board’s Rules of Procedure. Even if the Board were to disregard the undated membership evidence documents, the balance of the membership evidence filed by the applicant provides a sufficient basis for the Board to be satisfied 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 appear to be members of the applicant at the time the application was made.
5The 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.
6The Board further finds, pursuant to section 158(1) of the Act, that all employees of the responding party in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and all employees of the responding party in all other sectors of the construction industry in the Counties of Oxford, Perth, Huron, Middlesex, Bruce and Elgin, engaged in the operation of cranes, shovels, bulldozers or similar equipment, and those primarily engaged in the repairing or maintaining of same, and employees engaged as surveyors, save and except non-working foremen and persons above the rank of non-working foreman, constitute a unit of employees of the responding party appropriate for collective bargaining.
7Having regard to the Board's finding as to the appropriate bargaining unit, the Board directs that a representation vote be taken of the individuals in the following voting constituency:
all employees of Terra Infrastructure Inc. in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and all employees of Terra Infrastructure Inc. in all other sectors of the construction industry in the Counties of Oxford, Perth, Huron, Middlesex, Bruce and Elgin, engaged in the operation of cranes, shovels, bulldozers or similar equipment, and those primarily engaged in the repairing or maintaining of same, and employees engaged as surveyors, save and except non-working foremen and persons above the rank of non‑working foreman.
8The vote will be held on October 30, 2001. Vote arrangements are set out on the attached "Notice of Vote and of Meeting".
9The 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. These copies must remain posted for 30 days.
10All individuals who were employed by Terra Infrastructure Inc. and at work in the voting constituency on October 22, 2001 are eligible to vote.
11Voters will be asked to indicate whether or not they wish to be represented by the applicant in their employment relations with the responding party.
12Any 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.
13This matter is referred to the Registrar.
“Harry Freedman”
for the Board