1740-01-R International Brotherhood of Electrical Workers, Local 773, Applicant v. Union Energy Inc. c.o.b. as Fahringer Mechanical, Responding Party v. Construction Workers Local 53, CLAC, Intervenor
BEFORE: Timothy W. Sargeant, Vice‑Chair, and Board Members J. A. Rundle and D. A. Patterson.
DECISION OF THE BOARD; September 26, 2001
This is an application for certification.
The Registrar has certified that the applicant had been found to be a trade union in an earlier proceeding under the Labour Relations Act, 1995 (the “Act”). Therefore, having regard to the Registrar’s certificate and section 113 of the Act, the Board finds that the applicant is a trade union within the meaning of section 1(1) of the Act.
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 Board directs that a representation vote be taken of the individuals in the following voting constituency:
all electricians and electricians’ apprentices in the employ of Union Energy Inc, c.o.b. as Fahringer Mechanical in the Counties of Essex and Kent (O.L.R.B. Area 1), save and except non-working foreperson and persons above the rank of non-working foreperson.
The vote will be held on September 28, 2001. Other vote arrangements will be as determined by the Registrar and set out on the attached "Notice of Vote and of Hearing".
All individuals who had an employment relationship with the responding party in the voting constituency on September 21, 2001, the certification application filing date, are eligible to vote. Employees having an employment relationship on September 21, 2001, the certification application filing date, include employees who were not at work on that date, so long as there is a reasonable expectation of their return to employment.
The intervenor takes the position that the applicantion should be dismissed without a vote. The intervenor submits that by a certificate issued May 11, 2001 the Board certified the intervenor as bargaining agent of “all journeymen and apprentice refrigeration and air conditioning mechanics, journeymen and apprentice sheet metal workers, journeymen and apprentice electricians in the employ of Fahringer Mechanical Contractors Limited in all sectors of the construction industry in the Counties of Essex and Kent, save and except non-working foremen and persons above the rank of non-working foremen”. The intervenor submits that a conciliation officer was appointed September 10, 2001 concerning this bargaining unit. The intervenor submits the employees in the instant application work in the construction sector and therefore fall within the bargaining unit represented by the intervenor. The intervenor submits that pursuant to section 7(2) of the Act this application is untimely.
The intervenor further submits that the applicant has via a separate application applied for certification of a construction industry bargaining unit of the respondent. The intervenor submits that each application appears to describe the same six electricians and apprentices. The intervenor submits that such individuals cannot both be at work in the construction industry and outside the construction industry at the same time. The intervenor submits these individuals work in the construction industry.
In the alternative the intervenor submits that if the individuals affected work both within and without the construction industry, in these circumstances the applicants’ proposed unit is not viable and conflicts with the Board’s long standing policy on fragmentation.
The responding gives notice under section 8.1 of the Act. The responding party submits no vote should be held as there are no employees in the bargaining unit and the employees referred to in the application are represented by another union in another bargaining unit.
The Board has determined that a vote should be conducted but in the circumstances and given the positions of the parties the Board directs that the ballot box be sealed and the ballots not counted until the Board so orders or the parties agree.
All individuals who had an employment relationship with the responding party in the voting constituency on September 21, 2001, the certification application filing date, are eligible to vote. Employees having an employment relationship on September 21, 2001, the certification application filing date, include employees who were not at work on that date, so long as there is a reasonable expectation of their return to employment.
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.
The responding party is directed to post copies of this decision and of the "Notice of Vote and of Hearing" adjacent to each of the posted copies of the "Notice to Employees of Application for Certification". These copies must remain posted for 30 days.
Any party or person who wishes to make representations to the Board about any issue remaining in dispute which relates to the application for certification, other than status disputes, including any matters relating to the representation vote, must file a detailed statement of representations with the Board and deliver it to the other parties, so that it is received by the Board 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. 4: Status Disputes in Certification Applications (Non-Construction).
The matter is referred to the Registrar.
“Timothy W. Sargeant”
for the Board