Ontario Labour Relations Board
1731-01-R International Union of Operating Engineers, Local 793, Applicant v. Ontario Excavac Inc., Responding Party.
BEFORE: Marilyn Silverman, Vice‑Chair, and Board Members J. Knight and A. Haward.
DECISION OF THE BOARD; September 25, 2001
1This is an application for certification filed under the construction industry provisions of the Labour Relations Act, 1995 (the "Act").
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 Act.
3The responding party was duly served with the application on September 20, 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.
4The responding party disputes the applicant's estimate of the number of employees in the applicant's proposed bargaining unit. Furthermore, the responding party proposes a different bargaining unit than that proposed by the applicant and it contends that the applicant's bargaining unit could not be appropriate. It gives notice under section 8.1 of the Act.
5The Board finds that the bargaining unit described in the application could be appropriate. After comparing the membership evidence provided by the applicant as against the information provided by the responding party, the Board finds that the numerical difference between the parties is not significant. 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. In any event, the responding party agreed that the ballots cast in the representation vote should be counted.
6It 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.
7The 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.
8There is a dispute between the parties as to the appropriate bargaining unit. The responding party contends that the applicant applied for employees operating cranes, shovels, bulldozers and similar equipment and that no such employees worked in the bargaining unit on the application date. In addition, the responding party contends that dump truck drivers should be included in the bargaining unit. If any individual holding such a position wishes to cast a ballot, the individual shall identify himself or herself as occupying a disputed position and such individual shall then be entitled to cast a ballot. Any ballot cast by such an individual shall be segregated and not counted until the Board so orders or the parties agree. These matters may be raised if necessary at a hearing scheduled in this application.
9The Board directs that a representation vote be taken of the individuals in the following voting constituency:
all employees in the employ of Ontario Excavac Inc. engaged in the operation of cranes, shovels, bulldozers, and similar equipment and those primarily engaged in the repairing and maintaining of same, dump truck drivers, and employees engaged as surveyors and all construction labourers in all sectors of the construction industry in the City of Toronto, the Regional Municipalities of Peel and York, the Towns of Oakville and Halton Hills and that portion of the Town of Milton within the geographic Townships of Esquesing and Trafalgar, and the Towns of Ajax and Pickering in the Regional Municipality of Durham, excluding the industrial, commercial and institutional sector, save and except non-working foremen and persons above the rank of non-working foreman.
10The vote will be held on September 27, 2001. Vote arrangements are set out on the attached "Notice of Vote and of Meeting".
11The 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.
12All individuals who were employed by Ontario Excavac Inc. and at work in the voting constituency on September 19, 2001 are eligible to vote.
13Voters will be asked to indicate whether or not they wish to be represented by the applicant in their employment relations with the responding party.
14Any 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.
15This matter is referred to the Registrar.
“Marilyn Silverman”
for the Board