Labourers’ International Union of North America v. Marciano Doors & Trim Co. Ltd.
1480-01-R Labourers’ International Union of North America, Applicant v. Marciano Doors & Trim Co. Ltd., Responding Party v. Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America, Intervenor.
BEFORE: Caroline Rowan, Vice-Chair.
DECISION OF THE BOARD; November 13, 2001
1This is an application for certification filed under the construction industry provisions of the Labour Relations Act, 1995 (the “Act”).
2The applicant has challenged the right of the Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America (“Local 27”) to intervene in this application. The applicant also requested that the membership evidence filed by Local 27 be disclosed on the grounds that Local 27’s status to intervene is not based on bargaining rights, but rather its status is based on it being a representative of one or more employees affected by this application. This application for certification relates to Board Area 9 whereas the Local 27 asserts that the responding party is bound to a collective agreement with Local 27 with respect to carpenters and carpenters apprentices in Board Area 8. Local 27 does not suggest that it holds bargaining rights for employees of the responding party working outside of Board Area 8.
3Local 27 opposes disclosure of the membership evidence filed by it and relies on section 119(1) of the Act. The Board has reviewed the documentary evidence filed by Local 27. That documentary evidence consists of the remittance forms used to make remittances to the Local 27 benefit trust funds. Those remittance forms indicate that benefit remittances were made to Local 27 in December 1999, January 2001, May 2001 and July 2001 on behalf of at least one of the persons whom the applicant claims is an employee in the bargaining unit. Whether that documentary evidence is sufficient to establish that Local 27 has standing to intervene in this application is an issue that can be determined by the Board assigned to hear this application.
4The responding party asserts that it did not have any employees in the bargaining unit on the date of application and that all of the individuals who cast a ballot either were or are employees of “Guns and Hoses Carpentry”. Local 27 also submits that none of the individuals that cast a ballot was employed by the Responding Party performing bargaining unit work on the application date. The applicant, on the other hand, asserts that the individuals who cast ballots were employed by the Responding Party in the bargaining unit on the application date and were pieceworkers who work as a single crew of dependent contractors under the leadership of Mr. Tony Goncalves, who uses a corporation (Guns and Hoses Carpentry) to invoice the responding party on behalf of the crew.
5In its response to the application, the responding party also filed a timely notice under section 8.1 and takes the position that there are no employees in the bargaining unit. Where an employer gives notice under section 8.1 of the Act and asserts that there are no employees in the proposed bargaining unit, the section 8.1 notice is irrelevant. In Plus Construction, Board File No. 3723‑00‑R, unreported, decision dated March 22, 2001, the Board noted at paragraph 9 that:
- The responding party asserts that there are no employees of the responding party at work on the application date. … Although the responding party has given a timely notice under section 8.1, there is no list of employees attached (consistent with the responding party’s position). If the responding party is correct, the application will be dismissed but not for the reasons set out in section 8.1. Accordingly, this is not a valid notice under section 8.1 and the ballot box will not be sealed for this reason.
Since the responding party submits that it had no employees in the bargaining unit on the application date, for the reasons expressed by the Board in Plus Construction, the notice under section 8.1 of the Act is not relevant to this proceeding and need not be considered further.
6This application is referred to the Registrar to be listed for hearing. The purpose of the hearing is to hear the evidence and representations of the parties with respect to the following three principal issues remaining for determination:
a) whether Local 27 has standing to intervene in this application;
b) whether the four persons the applicant claims were employees working in the bargaining unit on the application date were actually performing carpentry work in Board Area 9 on August 21, 2001;
c) if they were performing such work, whether they were employed by the responding party.
7This panel of the Board is not seized with this application.
“Caroline Rowan”
for the Board