1269-01-R United Brotherhood of Carpenters and Joiners of America, Local 1669, Applicant v. Nor-Eng Construction & Engineering Inc., Responding Party.
BEFORE: David A. McKee, Vice‑Chair, and Board Members G. Pickell and G. McMenemy.
DECISION OF THE BOARD; August 1, 2001
This is an application for certification filed under the construction industry provisions of the Labour Relations Act, 1995 (the "Act").
The Board finds that the applicant is a trade union within the meaning of sections 1(1) and 126 of the Act.
The responding party (“Nor-Eng”) raises several issues, none of which would cause the Board not to hold a representation vote. First, Nor-Eng asserts there are no employees in the bargaining unit. Since it is unlikely that the bridge in question is building itself, the Board presumes that Nor-Eng takes the position that the persons at the site are not employed by Nor‑Eng or, if they are, they are employed in trades other than carpenters. Nor-Eng is directed to clarify its position. If Nor-Eng agrees it has some employees on this job, it is to provide a list of those employees and the trade Nor-Eng states they fall into.
Nor-Eng purports to give notice under section 8.1. Its position is that there are no employees in the bargaining unit. When an employer takes this position, the Board has consistently found that this is not a valid notice under section 8.1. Superficially, 40% of zero is zero. More importantly, the “mischief” at which section 8.1 is directed is not this type of situation. It is intended to prevent trade unions from obtaining the benefit of a representation vote to which they were not entitled in the first place. In this case, if the position of Nor-Eng is correct, the application will be dismissed, not because of section 8.1, but because there are no employees in the bargaining unit.
The parties disagree on the geographic description of the bargaining unit. The project in question is in the “white area” near Kapuskasing. The Board has historically used a geographic description which encompasses the geographic townships. Nor-Eng proposes a municipal description. The Board’s geographic descriptions in Board Areas and otherwise rely on geographic townships except where these have disappeared entirely in the creation of large cities. Other municipalities may change over time leading to some confusion. That is why, for instance, Board Area 8 includes a reference to the Township of Esquesing (a geographic township) rather than the Town of Halton Hills, or formerly the Towns of Acton, Georgetown, Norland and the Township of Esquesing (a municipal entity). In this case, it appears to the Board that the project is being constructed in the Township of Williamson. The surrounding Townships are Neely, Nixon, Teetzel, Kapuskasing, Owens, Cumming and Islington.
It 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.
The Board further finds that this application does not relate to the industrial, commercial and institutional sector of the construction industry referred to in section 126 of the Act.
The Board further finds that all carpenters and carpenters’ apprentices in the employ of the responding party in all sectors of the construction industry in the Townships of Williamson, Neely, Nixon, Teetzel, Kapuskasing, Owens, Cumming and Islington, excluding the industrial, commercial and institutional sector, 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.
Having 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 carpenters and carpenters’ apprentices in the employ of Nor-Eng Construction & Engineering Inc. in all sectors of the construction industry in the Townships of Williamson, Neely, Nixon, Teetzel, Kapuskasing, Owens, Cumming and Islington excluding the industrial, commercial and institutional sector, save and except non-working foremen and persons above the rank of non-working foreman.
The vote will be held on August 3, 2001. Vote arrangements are set out on the attached "Notice of Vote and of Meeting".
The 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.
All individuals who were employed by Nor-Eng Construction & Engineering Inc. and at work in the voting constituency on July 27, 2001 are eligible to vote.
Voters will be asked to indicate whether or not they wish to be represented by the applicant in their employment relations with the responding party.
Any 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.
This matter is referred to the Registrar.
“David A. McKee”
for the Board