1504-01-R The International Union of Painters and Allied Trades, Local Union 1891, Applicant v. Mariposa Homes Inc., Responding Party.
BEFORE: Harry Freedman, Vice‑Chair, and Board Members G. Pickell and A. Haward.
DECISION OF THE BOARD; August 30, 2001
This is an application for certification filed under the construction industry provisions of the Labour Relations Act, 1995, S.O. 1995, c.1 as amended (the “Act”). This application was filed on August 23, 2001.
The Board finds that the applicant is a trade union within the meaning of sections 1(1) and 126 of the Act and is an affiliated bargaining agent of a designated employee bargaining agency. Pursuant to the designation issued by the Minister under section 153(1) of the Act on March 29, 1978, the designated employee bargaining agency is the International Brotherhood of Painters and Allied Trades and the Ontario Council of the International Brotherhood of Painters and Allied Trades.
The responding party was duly served with the application material on August 27, 2001, according to the Certificate of Delivery filed by counsel for the applicant and filed its response with the Board within the time stipulated by Rule 135 of the Board's Rules of Procedure.
It appears to the Board on an examination of only the information provided in the application and the information and membership evidence filed by the applicant (see section 8(3) of the Act), that not less than forty per cent of the individuals in the bargaining unit proposed in the application for certification were members of the union at the time the application was made.
The responding party disputes the applicant's estimate of the number of employees in the applicant's proposed bargaining unit and asserts that there are no employees in the bargaining unit proposed by the applicant. It agreed to the description of the bargaining unit proposed by the applicant. It also gave a timely notice under section 8.1 of the Act, but agreed to have the ballots counted.
Section 8.1 of the Act applies to applications for certification in the construction industry following the amendments to the Act contained in Bill 139 [Labour Relations Amendment Act, 2000, S. O. 2000, c. 38] sections 3, 23, 32 and 33 which amended section 8.1(5), added section 126.1(2) and repealed sections 159(3) and 160(2) of the Act. See also Brick and Allied Craft Union of Canada, [2001] OLRB Rep. Jan./Feb. 78 at 81. Nevertheless, 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. See Plus Construction, Board File No. 3723-00-R, unreported, decision dated March 22, 2001, Q.L. cite [2001] O.L.R.D. No. 1118. The Board in that case observed at paragraph 9:
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.
The responding party asserts that in accordance with the standard practice in the low rise residential sector, it sub-contracts all of its work to independent sub-contractors, except for general labour. It therefore submits that the painters or drywall tapers working at its job sites were independent contractors.
- The Board finds that this is an application for certification within the meaning of section 128 of the Act and is an application made pursuant to section 158(1) of the Act which provides that:
An application for certification as bargaining agent which relates to the industrial, commercial and institutional sector of the construction industry referred to in the definition of "sector" in section 126 shall be brought by either,
(a) an employee bargaining agency; or
(b) one or more affiliated bargaining agents of the employee bargaining agency,
on behalf of all affiliated bargaining agents of the employee bargaining agency and the unit of employees shall include all employees who would be bound by a provincial agreement together with all other employees in at least one appropriate geographic area unless bargaining rights for such geographic area have already been acquired under subsection (2) or by voluntary recognition.
The Board further finds, pursuant to section 158(1) of the Act, that all painters and painters’ apprentices in the employ of the responding party in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and all painters and painters’ apprentices in the employ of the responding party in all other sectors of the construction industry in the County of Simcoe and the District Municipality of Muskoka, save and except non-working foremen and persons above the rank of non-working foreman, constitute a unit of employees of the responding party appropriate for collective bargaining. For the purpose of clarity the Board declares that drywall tapers are included in the bargaining unit.
Having regard to the Board's finding as to the appropriate bargaining unit, the Board directs that a representation vote be taken of the individuals in the following voting constituency:
all painters and painters’ apprentices in the employ of Mariposa Homes Inc. in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and all painters and painters’ apprentices in the employ of Mariposa Homes Inc. in all other sectors of the construction industry in the County of Simcoe and the District Municipality of Muskoka, save and except non-working foremen and persons above the rank of non‑working foreman.
Clarity Note: For the purpose of clarity the Board declares that drywall tapers are included in the bargaining unit.
The vote will be held on September 4, 2001. Vote arrangements are set out on the attached "Notice of Vote and of Meeting".
The responding party is directed to post copies of the application for certification, the “Notice to Employees of Application for Certification”, this decision and the "Notice of Vote and of Meeting" in a location or locations where they are most likely to come to the attention of those individuals who are eligible to vote.
All individuals who were employed by Mariposa Homes Inc. and at work in the voting constituency on August 23, 2001 are eligible to vote.
Voters will be asked to indicate whether or not they wish to be represented by the applicant in their employment relations with the responding party.
Any party or person who wishes to make representations to the Board about any issue relating to the application for certification which remains in dispute, other than status disputes, must file a detailed statement of representations and all material facts upon which they rely with the Board and deliver it to the other parties, so that it is received within five days (excluding Saturdays, Sundays and holidays on which the Board is closed) of the date on which the vote is taken. Representations with respect to any status dispute must be made in accordance with the directions provided in Information Bulletin No. 9: Status Disputes in Certification Applications in the Construction Industry.
This matter is referred to the Registrar.
This panel of the Board is not seized with this matter.
“Harry Freedman”
for the Board