3206-00-R; Jeff Jessup, Applicant v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 46, Responding Party v. Jack Bird Plumbing & Heating Ltd., Intervenor.
3886-00-R; Jeff Jessup, Applicant v. Ontario Pipe Trades Council and United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 46, Responding Party v. Jack Bird Plumbing & Heating Ltd., Intervenor.
BEFORE: D.L. Gee, Vice-Chair.
APPEARANCES: C.J. Abbass and Jeff Jessup for the applicant; Craig Flood, Jim Hogarth and Brian Christie for the responding party; J. Paul Wearing for the intervenor.
DECISION OF THE BOARD; June 5, 2001
1Board File No. 3206-00-R is an application for termination of bargaining rights under section 63 or 132 of the Labour Relations Act, 1995 (the “Act”) filed with the Board on February 1, 2001. In its response, the responding party asserted that the application was a nullity as it had not been brought against the proper party nor had notice been given to the proper parties. Board File No. 3886-00-R is an application for termination of bargaining rights under section 63 or 132 of the Act that was filed with the Board on March 22, 2001. Board File No. 3886-00-R is brought against the parties and gives notice in the manner that the responding party in Board File No. 3206-00-R asserted should have been done. Board File No. 3886-00-R was filed in case the Board ruled in the responding party’s favour in Board File No. 3206-00-R.
2The responding party’s challenges to the validity of Board File No. 3206-00-R were dealt with by the Board (differently constituted) in a decision dated April 26, 2001. The Board dismissed the responding party’s challenges and found that the application named the proper parties and that the applicant had met the delivery requirements as set out in section 63(3) of the Act and Rules 139 and 140 of the Board’s Rules of Procedure.
3The matter was then listed for hearing on May 25, 2001 for the purpose of dealing with all outstanding issues. The sole outstanding issue was a dispute between the parties as to who was at work performing bargaining unit work on the date of application.
Document Production
4On March 20, 2001, the responding party wrote to the Board and requested a Board order requiring the employer to produce the following:
any and all documents regarding plumbing and pipefitting work performed in January and February 2001, including labour and material cost estimates, bids, tenders, building permits, permits and applications therefore, any and all trade licenses and/or master plumbers licenses and contracts and sub-contracts;
any and all records regarding material ordering, purchase, delivery, billing and/or payment;
all employment and attendance records, including records of employment, payroll ledgers and/or personnel records regarding numbers, identities and/or qualifications of employees engaged, their dates of hiring and separation and their hours worked, and deductions, contributions, remittances and payment made on their behalf, job site time records and cards, foremen’s diaries and/or journals, and any and all other records regarding employees and subcontractors engaged by the Intervener;
any and all payment records and payroll records; and
all municipal, provincial and/or federal government filings and/or postings (including relating to Workplace Safety and Insurance Board, Ministry of Skills and Development, Ministry of Labour, Revenue Canada and Employment and Immigration).
5The Board (differently constituted) issued a decision dated April 5, 2001 setting the matter down for hearing. The Board did not deal with the responding party’s request for a production order presumably because the responding party’s challenges to the validity of the application would logically be dealt with first and, if the responding party was to succeed with such challenges, the application would be dismissed and the production issue would become moot.
6As indicated above, the Board dismissed the responding party’s challenges to the validity of the application and directed that the matter be rescheduled to hear all remaining issues in dispute. Considerable correspondence then passed between the parties concerning what documents the responding party wanted produced and what documents the employer was willing to produce. Thus, as of the morning of the hearing, the issue of what documents the employer should be required to produce remained in contention.
7The applicant and the employer take the position that there were three individuals at work, who spent a majority of their day performing bargaining unit work, on the application date. Prior to the commencement of the hearing, the employer produced to the responding party all of its documents that went to the issue of the three individuals’ attendance at work on that date and the work that they were performing. In a letter enclosing the documents produced, the employer described the documents produced as follows:
Photocopies of pay cheques to the challenged employees for the pay period ending February 3rd, 2001 disclosing remittances to the Union.
Tender/Bid form presented to York County Hospital, Newmarket, Ontario seeking the contract to perform the work at the Southlake Regional Health Centre. Certain dollar amounts have been deleted as those amounts are confidential and of no consequence to the issue before the Board.
Bid Bond Form of the employer for the project.
Agreement to bond and consent of surety for the project.
Letter of Intent to the employer from consulting engineers managing the project dated November 27th, 2000.
Cost breakout of the project with undisclosed amounts.
WSIB clearance certificate to the employer for the project dated November 28th, 2000.
Certificate of Insurance for the Employer for the project dated November 27th, 2000.
Notice of Project pursuant to the Occupational Health and Safety Act dated November 30th, 2000.
Registration of Constructors and Employers engaged in construction pursuant to s.5 of the Construction Regulations under the Occupational Health and Safety Act dated January 12th, 2001.
Performance Bond posted by the employer for the project dated November 30th, 2000.
Labour and Material Payment Bond, #29471-00 posted by the employer.
City of Toronto Municipal Licensing and Standards Master Plumber License issued to Brian Bird January 25th, 2001.
City of Toronto Municipal Licensing and Standards Master Heating Installer, Steam Hot Water License issued to Brian Bird – January 25th, 2001.
City of Toronto Municipal Licensing and Standards Contractor – PH License issued to Jack Bird Plumbing and Heating Limited – January 25th, 2001.
Construction Schedule (to be delivered under separate cover).
8At the commencement of the hearing on May 25, 2001 the responding party renewed its request for a Board order requiring the employer to produce all of the documents sought by the responding party in its letter of March 20, 2001. In the course of counsel’s submissions, the responding party narrowed its request to documentation relating to the week before and the week after the application date and documentation relating to the job site the applicant and employer assert the individuals were employed at on the application date (the South Lake Regional Health Centre) as well as one other job site (2202 Eglinton Ave.). Documentation with respect to the 2202 Eglinton Ave. site was being sought as the responding party understood one of the three individuals to have worked on this site. Thus, as of the morning of the hearing the responding party was seeking a Board order for the production of all of the documents that it was seeking in its March 20, 2001 letter (set out above) except that the request was limited to a period of two weeks, instead of all of January and February, and was limited to two jobs sites, rather than all job sites.
9In support of its request, the responding party asserts that it has no control over the job site and has no access to it. Further, the responding asserts that it has no advance notice of the application and is thus prevented from checking the site on the day of application to see what work is being performed. The responding party asserts that, given its lack of access to the actual work, it requires document production beyond the application date.
10The responding party further argued that wide document disclosure was appropriate given that no contemporaneous documents for the date of application, such as diary notes, were produced (the employer advised that no such notes are kept) and the responding party was not satisfied with the quality of the documents that were produced. The responding party asserted that the onus to prove that the individual were at work performing bargaining unit work on the date of application was on the applicant and given such onus wide document production was appropriate. In the responding party’s submission, the documents produced by the employer were not sufficient to permit the responding party to respond.
11With respect to the request for any and all records regarding material ordering, purchase delivery, billing and/or payment, the responding party states that the employer has provided it with a construction schedule relating to the South Lake Regional Health Centre and the responding party needs the material ordering, purchase delivery, and billing and/or payment documentation to see if the schedule was being met.
12Concerning the request for documents such as time sheets beyond those provided (which were for the week that included the date of application), the responding party suggested that the information hand written onto the time sheets was not in the proper columns and accordingly the responding party was entitled to see other weekly timesheets for comparison purposes.
13Counsel for the applicants and the employer opposed the request.
14Having regard to my determination not to grant the responding party’s request for the document production being sought, I have not set out the submissions made on behalf of the employer or the applicant.
15I advised the parties orally at the hearing that I was not persuaded that documents that went beyond the application date were arguably relevant. Having regard to the fact that the employer had already provided documentation concerning the date of application to the responding party and advised the Board that no further such documents existed, there were no documents that the Board needed to order produced.
16In the course of coming to my determination, I considered the pleadings and filings made by the parties in this matter.
17In the application form the applicant was required to answer the question: “Description of site or sites where the applicant believes affected employees to be at work on the Application Filing Date (please list):”. The applicant responded: “South Lake Regional Health Centre, 596 Davis Drive, Newmarket, Ontario”. The applicant further indicated that there were four employees at work in the bargaining unit on the date of application (the parties subsequently agreed that one of the four individuals was not properly on the list).
18In its response, the responding party also identified the South Lake Regional Health Centre as the only job site where employees affected by the application were at work on the application date. The responding party further indicated “The Responding Party agrees with the number of employees set out in the Application insofar as it relates to the job site listed in paragraph 4 above.” Thus, as of the date of filing its response, the responding party affirmed that there was one job site active on the date of application and that there were four employees of the employer affected by the application employed thereat. The only objections raised by the responding party in its response were those going to whether the application named the proper parties and whether it had been properly delivered.
19By decision dated February 19, 2001, the Board ordered the conduct of a vote. At the vote, the applicant and the employer asserted that there were four individuals properly on the list. The responding party challenged all four on the basis that they were either not at work or not performing bargaining unit work on the date of application. One individual was challenged on the additional basis that he was managerial. The applicant subsequently agreed to remove this individual from the list.
20Pursuant the Board’s decision of February 19, 2001 and Information Bulletin No. 10, the responding party was required to file submissions with the Board concerning its challenges to the voters list “providing the reasons for such challenges and a summary of the material facts upon which they intend to rely”. The applicant and the employer were then required to file their response to each of the challenges, summarizing the material facts upon which they intend to rely.
21On February 24, 2001 the Board received submissions from the applicant. The applicant stated that, on the application date, the four individuals on the list were all working at the South Lake Regional Health Centre installing piping. On February 28, 2001, the Board received submissions from the employer and the responding party. The responding party stated “we reiterate the positions previously asserted with respect to the list of employees as challenged and as set out in paragraph 8 of the Termination Worksheet.” The employer submit that the four individuals were all employed on the application date at the South Lake Regional Health Centre performing bargaining unit work. The individuals’ time cards were attached.
22The Regional Meeting was held on March 14, 2001.
23On March 20, 2001, pursuant to Information Bulletin Number 10, the responding party made further submissions concerning its challenges to the voters list as follows:
the documentary evidence supplied by the Employer at the Regional Certification Meeting does not provide any indication of the work performed on the date of application, nor the work performed for a majority of that date, nor, indeed on any other date;
original documentation with respect to the work performed on the date of application, or any other date, nor the work performed for a majority of any date, has not been supplied;
officials of UA Local 46 has routinely and repeatedly inspected the job site identified as the South Lake Regional Health Care Centre and has never seen Mr. Jessup, in particular, on that site;
Mr. Smith has routinely exercised managerial functions including, but not limited to, direction of matters affecting the livelihood of the employees within the bargaining unit and, furthermore, providing effective recommendation with respect to the terms and conditions of employment of the employees.
24Accordingly, on the face of the pleadings and filings, the responding party initially agreed that there was only one active job site on the date of application and that there were four individuals affected by the application employed at it. The responding party, at the vote, challenged all such individuals as not being at work on the application date or not performing bargaining unit work. Notwithstanding the responding party’s own statement that it routinely and repeatedly inspected the South Lake Regional Health Care Centre, it did not assert any material fact upon which it relied in support of its assertion that the individuals were not at work or were not performing bargaining unit work on the date of application. The responding party’s sole position, after its initial agreement, was a simple denial.
25In the course of its request for document production, the responding party asserted that it was entitled to documents beyond the application date and South Lake Regional Health Care Centre on the basis that it was not satisfied with the documents and had not been provided with enough to challenge the applicant’s position. No compelling reason was given as to why the documents provided relating to the date of application were untrustworthy. No reason was suggested as to why the Board should be suspicious of the assertions and/or documents of the applicant and the employer.
26In essence what the responding party wanted was an opportunity to check further records in the hopes of finding something useful. Document production is not ordered for the purposes of assisting a party in determining whether it has a case. A party must first establish the foundation for a case. While the Board is aware that trade union’s may not have extensive access to job sites thus warranting a certain latitude in document production, in the instant matter the responding party had no difficulty in its response agreeing that there was only one job site and the four people were employed on it on the application date. Further, the responding party indicated in its own filings that it was routinely and repeatedly on the job site in question. Thus, the responding party was in a position to view the job site and who was working on it and plead material facts in support of its position that the individuals were not employed at all or on bargaining unit work on the date of application. Having been in a position to do so and failed to do so, in the Board’s view, the responding party was seeking documents in an effort to find a case as opposed to support one. Such is not an appropriate basis for a Board order concerning document production and accordingly the responding party’s request was denied.
Challenges to the List
27The Board heard oral evidence from the three individuals who the applicant and the employer assert were at work performing bargaining unit work on the date of application. All three testified that they were employed at the South Lake Regional Health Care Centre working in the boiler room for their entire work day performing bargaining unit work. Each of the individuals is either a certified plumber, welder and/or gas fitter. All are members in good standing of the applicant.
28The individuals who testified were credible. There is no basis not to believe their testimony. The responding party called no evidence.
29Accordingly, having regard to the fact that the sole evidence before the Board, which I find to be credible, is that the three individuals in question were at work performing bargaining unit work on the date of application, I ruled orally at the hearing that all three individuals were properly on the list.
30Having regard to my ruling, the ballot box was opened and the ballots counted.
31On 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 opposition to the responding party.
32The Board declares that the responding party no longer represents the employees of Jack Bird Plumbing & Heating Ltd. for whom it has heretofore been the bargaining agent in respect of employees covered by the Ontario Provincial Collective Agreement Between The Mechanical Contractors Association Ontario and the Ontario Pipe Trades Council of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada.
33Having regard to the outcome of Board File No. 3206-00-R, Board File No. 3886-00-R is hereby terminated.
34The employer is directed to post copies of this decision immediately, adjacent to the "Notice of Vote and of Hearing" posted previously. These copies must remain posted for a period of 30 days.
35The Registrar will destroy the ballots cast in the representation votes taken in these matters 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.
“D.L. Gee”
for the Board