Allied Construction Employees, Local 1030 United Brotherhood of Carpenters and Joiners of America v. Neway Construction Ltd.
0398-01-R Allied Construction Employees, Local 1030 United Brotherhood of Carpenters and Joiners of America, Applicant v. Neway Construction Ltd., Responding Party v. Universal Workers Union, Labourers’ International Union of North America Local 183, Intervenor.
BEFORE: Harry Freedman, Vice-Chair
DECISION OF THE BOARD; May 3, 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 April 30, 2001. The Alternate Chair of the Board authorized me to sit alone to hear and determine this matter pursuant to section 110(14)(a) of the Act.
2The Board finds that the applicant is a trade union within the meaning of sections 1(1) and 126 of the Act.
3The responding party was duly served with the application on April 30, 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. Universal Workers’ Union, Local 183 (L.I.U.N.A.) (“Local 183”) was named by the applicant as a trade union known to the applicant which claims to represent employees who may be affected by this application and was served with the application on April 30, 2001. Local 183 filed an intervention within the time stipulated by the Board’s Rules.
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. Before December 30, 2000, section 8.1 did not apply to certification applications relating to the construction industry. (Bayview-Wellington Homes Inc., [1999] OLRB Rep. Nov./Dec. 954). Section 8.1 of the Act now applies to applications for certification in the construction industry following the amendments to the Act contained in Bill 139 [Labour Relations Amendment Act, 2000, S. O. 2000, c. 38] sections 3, 23, 32 and 33 which amended section 8.1(5), added section 126.1(2) and repealed sections 159(3) and 160(2) of the Act. See also Brick and Allied Craft Union of Canada, as yet unreported, decision dated February 21, 2001, Board File Nos. 2736-00-R and 2737-00-R at paragraph 11.
5This application seeks to displace Local 183 as the bargaining agent of the responding party’s employees. The bargaining unit proposed by the applicant (to which the intervenor has agreed) appears to be the bargaining unit contained in the collective agreement between Local 183 and the responding party. Furthermore, there does not appear to be any material difference between the bargaining unit proposed by the responding party and the bargaining unit proposed by the applicant. Therefore, the Board finds that the bargaining unit described in the application could be appropriate for collective bargaining. The bargaining unit described in the Local 183 collective agreement is:
all employees of the Responding Party, including carpenters and framers and their respective learners and improvers, construction labourers, and dependent pieceworkers engaged in construction of all phases of housing including the preparation of footings, the fabrication, renovation, alteration, erection and finishing thereof, exterior trim and similar work, save and except those persons above the rank of foreman, office, clerical and engineering staff, while working in and out of the following geographic area:
The County of Simcoe, the Municipality 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 Township of Esquesing, and the Towns of Ajax and Pickering in the Regional Municipality of Durham.
The responding party stated in paragraph 4 of its response that there were 85 employees in the proposed bargaining unit on the application filing date which is the same number of employees the applicant stated it believed were at work in its proposed bargaining unit. The responding party, in paragraph 5 of its response, states that it disagrees with the applicant’s estimate and submits that there were no individuals in the bargaining unit. It also submits that it had 29 piecework companies who are independent contractors. 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 material to the application. Although one piece of membership evidence filed by the applicant was dated more than one year before the date of the application, even if the Board were to disregard that one piece of membership evidence, 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.
6The Board is 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.
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.
8The Board further finds that all employees of the Responding Party, including carpenters and framers and their respective learners and improvers, construction labourers, and dependent pieceworkers engaged in construction of all phases of housing including the preparation of footings, the fabrication, renovation, alteration, erection and finishing thereof, exterior trim and similar work, save and except those persons above the rank of foreman, office, clerical and engineering staff, while working in and out of the County of Simcoe, 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 Township of Esquesing, and the Towns of Ajax and Pickering in the Regional Municipality of Durham constitute a unit of employees of the responding party appropriate for collective bargaining.
9Having 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 Neway Construction Ltd., including carpenters and framers and their respective learners and improvers, construction labourers, and dependent pieceworkers engaged in construction of all phases of housing including the preparation of footings, the fabrication, renovation, alteration, erection and finishing thereof, exterior trim and similar work, save and except those persons above the rank of foreman, office, clerical and engineering staff, while working in and out of the County of Simcoe, 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 Township of Esquesing, and the Towns of Ajax and Pickering in the Regional Municipality of Durham.
10The vote will be held on May 7, 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 Neway Construction Ltd. and at work in the voting constituency on April 30, 2001 are eligible to vote.
13Voters will be asked to indicate whether they wish to be represented by the applicant or the intervenor 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.
“Harry Freedman”
for the Board