Drywall Acoustic Lathing and Insulation Local 675, United Brotherhood of Carpenters and Joiners of America v. C &D Limited
File No.: 0374-01-R Date: November 7, 2001
Before: D. L. Gee, Vice-Chair
Appearances: James Robbins and Matthew Merritt for the applicant Peter McEwan for the responding party
Decision of the Board
1This matter is an application for certification filed under the construction industry provisions of the Labour Relations Act, 1995 (the “Act”). Pursuant to the Board’s direction of May 2, 2001 a representation vote was conducted on May 4, 2001.
2Eleven persons attended at the vote and cast ballots. Individuals who the parties agreed were eligible to vote cast three of the ballots. Such ballots were counted. Two ballots were marked in favour of the applicant and one ballot was marked against the applicant. The remaining eight ballots were challenged by the applicant as having been cast by individuals who were not eligible to vote on the bases that they: were not at work in the bargaining unit on the date of application; are independent contractors and/or are managerial. The eight challenged ballots remained sealed.
3The only submissions filed by the responding party concerning the status of the individuals in dispute were filed late, on October 22, 2001, and read as follows:
We at C & D Limited (Responding Party) wish to prove that 3 individuals are either employees or dependant contractors. The three are Lee Hansen, Norm Lapierre and Chris Latta. We wish to prove through payroll and invoicing to the satisfaction of the Labour Board.
4The responding party filed submissions setting out its position with respect to the status of the eight individuals in dispute on May 11 and June 5, 2001. The eight individuals were challenged on the basis that they: were not at work in the bargaining unit on the date of application; are independent contractors and/or are managerial.
5Information Bulletin No. 9 entitled “Status Disputes in Certification Applications in the Construction Industry” provides, in bold print, as follows:
The party that asserts that an individual should be on the list or in the bargaining unit has the responsibility for ensuring that individual’s attendance at the hearing, unless the Board orders otherwise.
The party that has the responsibility for ensuring an individual’s attendance at the hearing will be responsible for calling that individual as a witness. There may be circumstances in which a party calling a witness is allowed to cross-examine that individual. The Board may itself question a witness.
6This matter was scheduled for hearing on October 25, 2001. At the hearing, the responding party was represented by Peter McEwan. Mr. McEwan is a principal of the responding party. Mr. McEwan is not legally trained and has no expertise in connection with labour board matters. There is no obligation for parties who appear at the Board to retain legal counsel. The Board frequently conducts hearings at which one or more of the parties are not represented. However, a labour board hearing is a legal proceeding and persons appearing on their own behalf bear the risks involved with doing so.
7At the commencement of the hearing Peter McEwan advised the Board that the responding party had asked three of the individuals challenged by the union to attend the hearing. Two of the three, Lee Hansen and Chris Latta, were present. The third, Norm Lapierre was not. Mr. McEwan advised the Board that he did not subpoena Mr. Lapierre and had no knowledge as to whether he intended to appear or not. Mr. McEwan advised the Board that he did not ask the remaining five individuals who were challenged by the union to attend at the hearing as, based on his assumption that Messrs. Hansen, Latta and Lapierre had all voted against the union, it was numerically irrelevant whether the others were entitled to vote or not.
8The union brought a motion that its challenge to all eight individuals be upheld without the need for a hearing on a number of bases including: late amendments made to the voters’ list; the responding party’s late filing of its submissions with respect to the individuals in dispute and the non-attendance of six of the individuals in dispute.
9I ruled orally at the hearing that the union’s challenge with respect to the five individuals that the responding party did not ask to attend the hearing and the sixth individual who was asked to attend but did not appear would be upheld.
10The responding party advised the Board that it did not ask five of the individuals to attend at the hearing because it felt that it would be successful regardless of the outcome of such challenges. The responding party was effectively stating that it was content to concede to the union’s challenge with respect to those five individuals and only contest the union’s challenge to the remaining three. Having regard to the responding party’s position and the further fact that it did not, as required by Information Bulletin No. 9, ensure the attendance of the five individuals, the union’s challenge to the five individuals was upheld.
11The responding party advised the Board that it asked the sixth individual, Mr. Lapierre, to attend the hearing. The responding party did not serve a summons on Mr. Lapierre and had made no efforts to get his assurances that he would attend. The responding party’s efforts to ensure Mr. Lapierre’s attendance are not sufficient. Information Bulletin No. 9 states that the party that asserts an individual should be on the list “has the responsibility for ensuring that individual’s attendance at the hearing”. “Ensuring” someone’s attendance suggests that efforts beyond a mere request be made. It is of considerable importance that labour relations matters, and issues involving representation rights in particular, be resolved in an expeditious manner. The Board’s Rules and Procedures are designed to ensure that when a matter comes on for hearing the parties are aware of the issues in dispute, the position of the parties opposite and that all necessary witnesses are present in order that the matter can be adjudicated on the day set for hearing. Where a party that bears the responsibility for ensuring an individual’s attendance, fails, without explanation, to do so, the Board will not permit such failure to delay resolution of the matter. Accordingly, having regard to the responding party’s failure to make satisfactory efforts to secure Mr. Lapierre’s attendance and the importance of expeditious resolution of the matter, I ruled that the union’s challenge with respect to Mr. Lapierre was upheld.
12The union challenged the right of the responding party to lead evidence with respect to the two remaining individuals in dispute. I heard the union’s argument and indicated that I would reserve on my ruling and proceed to hear the evidence. Having regard to my determinations set out below, it is not necessary to deal with the union’s argument as to why I should not allow the responding party to lead evidence on the two remaining individuals.
13The two remaining individuals in dispute, Mr. Hansen and Mr. Latta, were called as witnesses and questioned by both Mr. McEwan on behalf of the responding party and by counsel for the union. In its submissions, the union challenged Mr. Hansen and Mr. Latta on a number of bases including that they were not at work on the date of application. Neither Mr. Hansen nor Mr. Latta was asked by the responding party whether he was in fact at work on the application date. The responding party called no evidence to support a determination that either gentleman was at work on the date of application. The union called Mathew Merritt, an organizer, as a witness. Mr. Merritt testified that he attended at the job site on two occasions on the application date and did not see either Mr. Hansen or Mr. Latta. Accordingly, there is no evidence before the Board in support of the responding party’s assertion that Mr. Hansen and Mr. Latta were at work on the application date. There is evidence that, on at least the two occasions Mr. Merritt toured the job site, Messrs. Hansen and Latta were not present.
14On the basis of the evidence presented, it is my determination that neither Mr. Hansen nor Mr. Latta was at work in the bargaining unit on the application date. As a result, they were not entitled to cast a ballot in the representation vote.
15For the reasons set out above, the union’s challenge to all of the uncounted ballots is upheld.
16In its decision of May 2, 2001 the Board found the following bargaining unit to be appropriate for collective bargaining:
all carpenters and carpenters’ apprentices in the employ of C & D Limited in all sectors of the construction industry in the Regional Municipality of Waterloo (except that portion of the geographic Township of Beverly annexed by North Dumfries Township), excluding the industrial, commercial and institutional sector, save and except non-working foremen and persons above the rank of non- working foreman.
17On the taking of the representation vote directed by the Board, more than fifty per cent of the ballots cast by employees in the bargaining unit were cast in favour of the applicant.
18A certificate will issue to the applicant.
19The Registrar will destroy the ballots cast in the representation vote taken in this matter following the expiration of 30 days from the date of this decision unless a statement requesting that the ballots should not be destroyed is received by the Board from one of the parties before the expiration of such 30-day period.
20The responding party is directed to post copies of this decision immediately, adjacent to the "Notice of Vote and of Meeting" posted previously. These copies must remain posted for a period of 30 days.
“D. L. Gee”
for the Board