Construction and Allied Workers Local Union 607 v. L. T. L. Contracting Ltd., 2001 CanLII 18843

Construction and Allied Workers Local Union 607 v. L. T. L. Contracting Ltd.

1164-01-R Construction and Allied Workers Local Union 607, Applicant v. L. T. L. Contracting Ltd., Responding Party v. International Union of Operating Engineers, Local 793, Intervenor.

BEFORE: Harry Freedman, Vice-Chair.

DECISION OF THE BOARD; July 24, 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 July 18, 2001. The Chair of the Board authorized me pursuant to section 110(14)(a) of the Act to sit alone to hear and determine this matter.

2The Board has been unable to locate a Board decision in a search of its files in which the applicant has been found to be a trade union within the meaning of the Act. The Registrar did not find a certificate that had been issued under the Act to the applicant. Thus, it appears that the applicant has not established in a previous Board proceeding that it is a trade union within the meaning of section 1(1) or 126 of the Act.

3The applicant’s name in the title of the proceedings in the Form A-71 (Application for Certification, Construction Industry) it filed is Construction and Allied Workers Local Union 607. The application itself at paragraph 1(a) states that the name of the applicant is Construction and Allied Workers Local Union 607. The Declaration Verifying Membership Evidence, Construction Industry (Form A-74) signed by counsel for the applicant states that the name of the applicant is Construction and Allied Workers Local Union 607. Paragraph 22 of the application, in which the applicant is asked to “indicate the name of the applicant as you wish it to appear on the Notice in the voting booth” states Construction and Allied Workers Local Union 607.

4The Board will direct a representation vote under section 159(2) of the Act in an application for certification made under the construction industry provisions of the Act if the requirements of that section are met by the applicant. Section 159(2) provides:

If the Board determines that 40 per cent or more of the individuals in the bargaining unit proposed in the application for certification appear to be members of the trade unions at the time the application was filed, the Board shall direct that a representation vote be taken among the individuals in the voting constituency.

Thus, all that an applicant for certification must do to obtain a representation vote is file with its application written evidence that at least 40% of the individuals in its proposed bargaining unit appear to be members of the applicant.

5In this case, the applicant filed membership evidence consisting of documents with the heading: “LABOURERS’ INTERNATIONAL UNION OF NORTH AMERICA LOCAL 607”.

The membership documents provide that they are each an application for membership. Each document has the name, social insurance number, date of birth and address of an individual who has signed the document. Under that information, each document then states:

I, the undersigned, hereby apply for and accept membership in the Labourers' International Union of North America, Local 607 and I further designate the said Local Union to represent me in all matters of Collective Bargaining with my employer.

Each document is signed and dated and there is an acknowledgement of receipt of the document. There is, however, nothing in the membership evidence filed by the applicant indicating that the membership evidence it submitted is membership in the applicant. The membership applications make no reference whatever to Construction and Allied Workers Local Union 607 and the application material filed says nothing about the applicant having anything to do with the Labourers' International Union of North America, Local 607.

6Section 159(2) of the Act requires the Board to determine if it appears that the requisite number of individuals have applied for membership in the applicant. There is absolutely nothing in the material filed by the applicant that connects the applicant with the entity to which the membership applications relate. If the applicant had indicated in its application that it had been formerly known as Labourers' International Union of North America, Local 607 or if the membership evidence had contained some indication that the Construction and Allied Workers Local Union 607 is also a name that had been used from time to time by the Labourers' International Union of North America, Local 607 then perhaps one might be able to say that there is at least an appearance of membership in the applicant.

7The Board in Hugh Munro Construction Ltd., Board File No. 1165-01-R, a decision released at the same time as this decision, dismissed that application for certification as the Board was not satisfied that 40 per cent of the individuals in the bargaining unit proposed by the applicant appeared to members of the applicant. The Board set out its reasons for reaching that conclusion at paragraphs 7 to 10 of that decision in which I wrote:

7. In The Torchin Group, unreported, Board File No. 3413-99-R, decision dated February 24, 2000, an application for certification had been filed by Universal Workers Union, L.I.U.N.A. Local 183. The Board made the following comments about the membership evidence filed in that case:

5. The membership evidence filed by the applicant states that each employee who signed the membership evidence is applying “… to become a member of the Labourers’ International Union of North America, Local 183”. There is no reference anywhere in the membership evidence filed to “Universal Workers Union, L.I.U.N.A. Local 183”.

6. Although the name of the applicant is not visible on the membership evidence, there is some similarity between the applicant and the entity to which the membership evidence relates.

The Board concluded that due to their being “some similarity” between the applicant and the name on the membership evidence the Board was able to determine that there was an appearance of membership in the applicant. Similarly, in Black Photo Corporation, [1997] OLRB Rep. May/June 347 the Board noted that the applicant was Union of Needletrades, Industrial and Textile Employees Ontario District Council while the membership evidence related to Union of Needletrades, Industrial and Textile Employees, AFL-CIO-CLC. In that case the Board, in an earlier decision, had found the membership evidence did create an appearance of membership in the applicant. In dealing with the request for reconsideration of that determination, the Board stated at paragraph 55:

…in this case there is little difference between the name used in the application and the name on the membership evidence….Assuming for the sake of argument that the applicant is a different entity from the entity whose name is on the membership cards, does that mean that the Board was wrong to conclude that “forty percent or more of the individuals in the bargaining unit proposed in the application for certification appear to be members of the union” pursuant to section 8(2) of the Act? Given the similarity between the two names in this case, I am satisfied that the membership evidence was sufficient to yield an “appearance” of forty percent support and that the Board’s decision was correct. This is not the situation referred to by counsel for the employer where the applicant is the Canadian Auto Workers and it submitted membership cards of the United Steelworkers of America.

8. Where, however, the applicant is a local union and the membership evidence filed is either in the name of the parent union or in another local union, the Board has indicated some concern about whether that membership evidence would be sufficient for the Board to find an appearance of membership in the applicant. In Conquest Carpet Corp., unreported, Board File No. 3254-99-R, decision dated February 9, 2000 the applicant was Carpenters and Allied Workers, Local 27, United Brotherhood of Carpenters and Joiners of America. The Board described the membership evidence filed by the applicant as follows:

Three applications for membership did not have the name of Local 27 on them. All of the other evidence of membership did specifically refer to Local 27 and all of the evidence referred to the United Brotherhood of Carpenters and Joiners of America.

The Board was prepared to assume without deciding that the membership evidence that did not have Local 27 on it was not sufficient to establish an appearance of membership in the applicant as there was enough other evidence of membership in the applicant on which the Board could rely to direct a representation vote. The Board noted at paragraph 4:

Assuming without deciding that the three applications for membership that did not have the name of Local 27 on them do not establish an appearance of membership in the applicant (see Chapleau Forest Products Limited, [1990] OLRB Rep. Dec. 1243 at 1246; application for judicial review dismissed, [1991] OLRB Rep. April 577; Bernardin of Canada Limited, [1975] OLRB Rep. Oct. 737; Clorox Company of Canada Ltd., [1980] OLRB Rep. Feb. 184)….

9. In Waylok Air Conditioning Limited, [1991] OLRB Rep. Aug. 1016, the Board dismissed an application for certification filed by the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union 463 when the applicant wished to rely on membership evidence relating to another local of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada. The Board wrote at page 1018:

Each of the applications for membership is evidence of membership in a particular local union of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada and is not evidence of membership in any other local union of the U.A. Although evidence of membership in a local union is sufficient where an international or a parent union applies for certification, evidence of membership in an international union or of membership in a particular local of a union is not sufficient where it is a local other than the local to which the application for membership was made which applies for certification. (See for example Bernardin of Canada Limited, [1975] OLRB Rep. Oct. 737; The Explorer Inns, Limited, [1978] OLRB Rep. June 541; Wallaceburg Hydro-Electric System, [1975] OLRB Rep. Oct. 783; Union Electric Supply Co. Limited, [1983] OLRB Rep. May 829; Menkes Developments Inc., [1987] OLRB Rep. Oct. 1290.)

10. Unlike the situation before the Board in The Torchin Group, supra and Black Photo Corporation, supra there is not any similarity between the name of the applicant and Labourers’ International Union of North America, Local 607, the name of the union to which the membership evidence relates. In my view, the circumstances before me are closer to the situation described by counsel for the employer in Black Photo Corporation, supra where the Board said that the case it was dealing with was not a situation “where the applicant is the Canadian Auto Workers and it submitted membership cards of the United Steelworkers of America”. Based on the membership evidence and the other material filed by the applicant, I am not satisfied that 40 per cent of the individuals in the proposed bargaining unit appear to members of the applicant.

8For the reasons set out in Hugh Munro Construction Ltd., supra, I am not satisfied that 40 per cent of the individuals in the proposed bargaining unit appear to members of the applicant.

9This application is dismissed.

“Harry Freedman”

for the Board