0321-01-R Labourers’ International Union of North America, Applicant v. Aspen Aluminum, Responding Party v. Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America, Intervenor.
0694-01-U Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America, Applicant v. Aspen Aluminum, a division of Klondike Vinyl Building Products Ltd.; Labourers’ International Union of North America; A & B Aluminum, Responding Parties.
BEFORE: David A. McKee, Vice‑Chair.
DECISION OF THE BOARD; August 2, 2001
This is an application for certification brought pursuant to the construction industry provisions of the Labour Relations Act, 1995, S. O. 1995 ch.1 (the “Act”), and an application under section 96 of the Act seeking relief, primarily in respect of the application for certification and the vote conducted.
The first issue is whether or not the Board will inquire into the status of three individuals, Mohamed Becerspakic, Esad Burkic and Sean Hadziosmanovic. At its highest, the allegation of the Labourers’ International Union of North America (the “Labourers”) is that the intervenor (the “Carpenters”) changed their minds about the entitlement to vote of these three individuals at some point in the vote process. The Carpenters admit they, along with the Labourers, opposed their entitlement to vote before the representation vote. The responding party employer (“Aspen”) said they should be entitled to vote. On the day of the vote, the Carpenters changed their minds, perhaps at the same time or shortly after Aspen changed its position. It is alleged that the change in position was purely strategic and was based on the results obtained from counting the unsegregated ballots.
The leading case on this point is Martha’s Garden Inc., [1997] OLRB Rep. Sept./Oct. 891. In that case the change in position was purely based on the results of the representation vote. The results of both groups of employees were known. After the vote the two parties abandoned their own position about the inclusion of a group of employees and adopted the other’s positions. In that case there was a nine-day delay between the first change of position and the second. As the Board said at paragraph 9 of that decision:
… The reference to parties’ abilities or entitlement to “change their position” needs to be read fairly narrowly. The two parties here did not merely change their positions, they each adopted the position formerly held by the other. Thus, while the positions adopted were new to the parties adopting them, they were not new to the process. These were positions that had already been articulated. This was not a situation where a party apparently losing or winning the representation vote suddenly comes up with challenges or additions to the voters’ list not previously raised by anyone. That kind of situation is to be readily distinguished from the instant one which some might cynically describe as the parties racing, for reasons no doubt closer to self-interest than epiphany, to embrace each other’s position.
The facts of this case are indistinguishable from Martha’s Gardens Inc., supra. Whatever an observer may conclude with respect to the various roles played by self-interest and epiphany, the fact is that no new issues have been introduced into the process. It is simply the case that the same horses have different riders. Therefore, the Board will inquire into the status of these three individuals.
The section 96 application does disclose a prima facie case. It should be noted, however, that unsolicited employer support of a trade union does not affect that union’s entitlement to be certified; see Povoa Carpentry, [1988] OLRB Rep. Nov. 1174. The Board would also observe that much of the relief sought is just entirely inappropriate (see Universal Workers Union, Labourers’ International Union of North America Local 183, Board File No. 0416-01-U, unreported decision, July 23, 2001). However, paragraph 11 of the application does allege a conspiracy between the Labourers and Aspen. The panel hearing the merits of this case will determine the relevance of allegations with respect to A & B Aluminum, and what if any significance should be attached to the alleged failure to post notices of the application. Accordingly, this application will proceed with the application for certification.
If it has not already done so, the Carpenters are directed to provide the particulars of the names of the persons alleged to be present at the meeting specified in paragraph 11 of the application and the dates on which they were alleged to have met. In turn, the Labourers are directed to provide particulars of the persons referred to in paragraph 5(v) of its response to the section 96 application.
The responding party, Aspen Aluminum, is directed, no later than 10 days before the date set for hearing in this matter, to produce to the two unions all documents of whatever sort, including invoices, purchase orders, time sheets, records of work performed, paycheques and records of payment in respect of the three disputed individuals which cover the period two weeks before and two weeks after the application date. No information on the document is to be obscured without the consent of the Board.
The Registrar is directed to set two days for the hearing of these matters. Procedure will be determined by the panel hearing the applications, although the three disputed individuals should be present on the first day set for hearing. I am not seized of these matters.
“David A. McKee”
for the Board