Allied Construction Employees, Local 1030 v. 1239018 Ontario Limited
0354-01-R Allied Construction Employees, Local 1030, United Brotherhood of Carpenters and Joiners of America, Applicant v. 1239018 Ontario Limited operating as Lucky Carpentry, Responding Party v. Universal Workers Union, Labourers’ International Union of North America Local 183, Intervenor.
BEFORE: Marilyn Silverman, Vice-Chair.
DECISION OF THE BOARD; June 5, 2001
This is a request for reconsideration. The request arises out of a decision dated May 3, 2001 (the “decision”) in which the Board directed the holding of a representation vote in an application for certification in the construction industry. It is a displacement application.
The employees in the bargaining unit are currently represented by the intervenor. The intervenor has filed the request for reconsideration on the basis of the Board’s determination in the decision that the notice under section 8.1 of the Labour Relations Act, 1995, S.O. 1995, c.1 ('the Act') was invalid.
In its response to the application the responding party (the “employer”) stated that “On April 26, 2001 Lucky had no employees. Lucky only had peiceworkers [sic] who are independent contractors”.
The employer did not fill in a number in that section of the response that requests the employer’s estimate of the number of individuals in the unit described in the application. The employer did not provide a list of individuals with its response.
The intervenor requests that the Board set aside that portion of the decision that relates to section 8.1 and direct the sealing of the ballot box pending a section 8.1 determination.
Section 8.1 provides as follows:
8.1 (1) If the employer disagrees with the trade union's estimate, included in the application for certification, of the number of individuals in the unit, the employer may give the Board a notice that it disagrees with that estimate.
(2) A notice under subsection (1) must include,
(a) the description of the bargaining unit that the employer proposes or a statement that the employer agrees with the description of the bargaining unit included in the application for certification;
(b) the employer's estimate of the number of individuals in the bargaining unit described in the application for certification; and
(c) if the employer proposes a different bargaining unit from that described in the application for certification, the employer's estimate of the number of individuals in the bargaining unit the employer proposes.
(3) A notice under subsection (1) must be given within two days (excluding Saturdays, Sundays and holidays) after the day on which the employer receives the application for certification.
(4) If the Board receives a notice under subsection (1), the Board shall direct that the ballot boxes from the representation vote be sealed unless the trade union and the employer agree otherwise.
(5) The following apply if the Board receives a notice under subsection (1):
The Board shall not certify the trade union as the bargaining agent or dismiss the application for certification except as allowed under paragraph 2 or as required under paragraph 8.
If the Board did not direct that the ballot boxes be sealed, the Board may dismiss the application for certification.
Unless the Board dismisses the application as allowed under paragraph 2, the Board shall determine whether the description of the bargaining unit included in the application for certification could be appropriate for collective bargaining. The determination shall be based only upon that description.
If the Board determines that the description of the bargaining unit included in the application for certification could be appropriate for collective bargaining, the Board shall determine the number of individuals in the unit as described in the application.
If the Board determines that the description of the bargaining unit included in the application for certification could not be appropriate for collective bargaining,
i. the Board shall determine, under section 9, the unit of employees that is appropriate for collective bargaining, and
ii. the Board shall either certify the trade union or dismiss the application for certification.
After the Board's determination of the number of individuals in the unit under paragraph 4 or 5, the Board shall determine the percentage of the individuals in the bargaining unit who appear to be members of the union at the time the application for certification was filed, based upon the Board's determination under paragraph 4 or 5 and the information provided under subsection 7(13).
If the percentage determined under paragraph 6 is less than 40 per cent, the Board shall dismiss the application for certification and, if the ballot boxes were sealed, the Board shall direct that the ballots be destroyed without being counted.
If the percentage determined under paragraph 6 is 40 per cent or more,
i. if the ballot boxes were sealed, the Board shall direct that the ballot boxes be opened and the ballots counted, subject to any direction the Board has made under subsection 8(7), and
ii. the Board shall either certify the trade union or dismiss the application for certification.
The intervenor contends that the Board did not correctly interpret the section 8.1 notice in the circumstances and it made determinations that are beyond the Board’s jurisdiction and raise significant policy issues. It asserts that no party had an opportunity to make submissions on this issue, and therefore it is appropriate to reconsider at this time.
The intervenor contends that the employer has provided proper notice under section 8.1. The Board should consider the employer’s estimate as being zero. As such, the difference between the estimates of the applicant and the employer is numerically significant. Zero is a mathematical entity that is not divisible and it is therefore impossible to establish any percentage let alone 40% of zero. The intervenor therefore requests that the application be dismissed.
Further the intervenor contends that even if the employer is wrong in its estimate, once the employer’s section 8.1 notice is given, the Board must consider paragraphs 4, 5 and 6 of section 8.1(5) to determine the actual number of employees in the unit and the applicant’s level of support of those employees before directing the counting of the ballots.
The intervenor argues that since the status issue relates to whether the pieceworkers are in or out of the bargaining unit and some may be in and others may be out, the applicant may have less support than 40% of those individuals who were actual employees on the date of application.
The intervenor asserts that the effect of a section 8.1 notice is to require the ballot box to be sealed where the information provided in the response creates doubt as to whether the applicant actually had the required initial support to initiate the certification process.
Decision
The employer says that there are no employees in the bargaining unit. It does not provide any number (including the number zero) in that portion of the response form which indicates that it disagrees with the applicant’s estimate. It provides no list of employees which list is supposed to include those individuals in the bargaining unit requested by the applicant.
Section 8.1(2)(b) says that the employer “must” include an estimate of the number of individuals in the bargaining unit. By leaving that portion blank, the employer did not provide a valid section 8.1 notice as required by the legislation.
If I assume that by not filling in any number the employer’s position is that there are zero employees in the unit, then the employer has in fact given proper notice that its estimate is zero. Even on that basis however, the provisions of section 8.1(5) 7 make clear that a section 8.1 notice is not numerically significant in the circumstances of this case. That is because the percentage determined under paragraph 6 cannot be less than 40%. Hence, the section 8.1 notice does not raise a numerically significant challenge.
The intervenor’s further contention is that if there were employees in the unit on the date of application they may be different than those for whom membership evidence was filed. If that is the basis for a section 8.1 notice then it is incumbent upon the employer to list those individuals whom it considers to have been at work on the application date in the applicant’s described unit. If it is the employer’s position that the individuals at work are not employees but independent contractors, for the purposes of the response, the employer must still list them and indicate its position that they are not employees. The purpose of that list in regard to section 8.1 is to enable the Board to make the required comparison so as to determine the validity of the section 8.1 notice.
Finally, this request for reconsideration is not filed by the employer, the only party with a right to give notice under section 8.1. However, assuming without deciding that the intervenor can bring this request, for the reasons provided above, the request for reconsideration is denied.
“Marilyn Silverman”
for the Board