Universal Workers Union, Labourers’ International Union of North America, Local 183 v. Robinson Adams Overhead Doors Inc.
File No.: 2048-01-R Date: December 27, 2001
Applicant: Universal Workers Union, Labourers’ International Union of North America, Local 183 Responding Party: Robinson Adams Overhead Doors Inc.
Before: Harry Freedman, Vice-Chair.
DECISION OF THE BOARD
1The Board, by decision dated October 26, 2001, directed a representation vote in this application for certification. In the course of doing so, the Board found that the responding party’s notice under section 8.1 of the Labour Relations Act, 1995, S.O. 1995, c. 1, as am. (the “Act”) was irrelevant. Despite the Board having found the section 8.1 notice irrelevant, the Labour Relations Officer conducting the representation vote quite properly segregated each of the 17 ballots cast and sealed the ballot box. The parties disagreed over whether the persons who cast ballots in the representation vote are employees (including dependent contractors) within the meaning of the Act or are independent contractors. The responding party also asserts that there are a number of persons who are “helpers” who, if they are employees, are employees of the installers for whom they perform work and not the responding party.
2The responding party and the applicant filed detailed and comprehensive submissions with respect to the issues in dispute. Although the applicant suggests that the responding party is not disputing that all of the persons who cast ballots were engaged in garage door installation work on the application date, the responding party has made clear in its submissions that there were nine installers doing garage door installations on the application date together with a number of helpers. See paragraphs 4 and 5 of the responding party’s statement of representations filed December 10, 2001. Thus, it appears that the applicant will have to establish that the persons who it submits were entitled to cast a ballot in the representation vote were engaged in garage door installation work on the application date if they are not one of the nine individuals listed in paragraph 4 of the responding party’s representations.
3The applicant, in its submissions filed with the Board on December 21, 2001 seeks production of a number of documents more particularly set out at paragraph 16 of its statement of representations. Should the responding party not produce to the applicant the documents requested, the applicant may, if so advised, file a request for an order directing production of those documents prior to the scheduled hearing in this matter together with its submissions as to why those documents are relevant.
4The issue of the status of the individuals in dispute must be referred to a hearing before the Board since there appears to be several material facts in dispute. In accordance with Information Bulletin No. 9, the applicant, who is asserting that the persons in dispute are in the bargaining unit, has the responsibility to secure the attendance of those persons at the hearing of this matter. The Board directs the applicant to provide to the responding party not later than two weeks prior to the first day of hearing in this matter the names of the first six individuals it will be calling to give evidence and the order in which the applicant intends to call those individuals.
5This application (and the related application in Board File No. 2116-01-U) are referred to the Registrar to be listed for three days of hearing. The purpose of the hearing is to hear the evidence and representations of the parties with respect to: whether the persons listed as installers by the responding party are employees (including dependent contractors) of the responding party or are independent contractors, whether the other persons who cast ballots in the representation vote are employees (including dependent contractors) of the responding party or the installer for whom they worked or are independent contractors, whether the persons who cast ballots but were not listed as an installer by the responding party at paragraph 4 of its statement of representations were engaged in garage door installation work on October 23, 2001, whether the application in Board File No. 2116-01-U should be adjourned pending the disposition of the application for certification in Board File No. 2048-01-R or should proceed to hearing, and with respect to any other issues that must be determined in these application.
6This panel of the Board is not seized with these matters.
“Harry Freedman”
for the Board