0386-01-R United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union 46, Applicant v. A & E Plumbing Ltd., Responding Party.
BEFORE: Harry Freedman, Vice‑Chair
DECISION OF THE BOARD; May 3, 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 April 30, 2001. The Chair of the Board authorized me to sit alone to hear and determine this matter pursuant to section 110(14)(a) of the Act.
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 May 14, 1982, the designated employee bargaining agency is the United association of Journeymen and apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, and the Ontario Pipe Trades Council of the United association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada.
The responding party was duly served with the application on April 30, 2001, according to the Certificate of Delivery filed by the applicant and failed to file its response with the Board within the time stipulated by Rule 135 of the Board's Rules of Procedure. The Labourers’ International Union of North America, Local 183, which was named by the applicant as a trade union known to the applicant which claims to represent employees who may be affected by this application, was also served with the application on April 30, 2001 and did not file an intervention within the time stipulated by Rule 135 of the Board’s Rules.
The applicant failed to indicate in paragraph 9 of the application how many employees it believed were at work in the bargaining unit on the application date. The applicant did, however, file a Form A-74 Declaration Verifying Membership Evidence in which the applicant asserted that there were 9 employees in the bargaining unit. One application for membership did not have the name of Local 46 on it. Assuming without deciding that the one application for membership that did not have the name of Local 46 on it did not establish an appearance of membership in the applicant (see Chapleau Forest Products Limited, [1990] OLRB Rep. Dec. 1243 at 1246; application for judicial review dismissed, [1991] OLRB Rep. April 577; Bernardin of Canada Limited, [1975] OLRB Rep. Oct. 737; Clorox Company of Canada Ltd., [1980] OLRB Rep. Feb. 184) the Board is prepared to consider only the remaining evidence of membership (that is, the membership evidence containing the name Local 46) to make the determination required by section 8(2) of the Act.
The Board is satisfied 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 appear to be members of the applicant at the time the application was made.
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 plumbers and plumbers’ apprentices, and all steamfitters and steamfitters’ 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 plumbers and plumbers’ apprentices and all steamfitters and steamfitters’ apprentices in the employ of the responding party in all other sectors of the construction industry in the City of Toronto, the Regional Municipalities of Peel and York, the Towns of Oakville and Halton Hills and that portion of the Town of Milton within the geographic Townships of Esquesing and Trafalgar, and the Towns of Ajax and Pickering in the Regional Municipality of Durham, 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.
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 plumbers and plumbers’ apprentices and all steamfitters and steamfitters’ apprentices in the employ of A & E Plumbing Ltd. in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and all plumbers and plumbers’ apprentices and all steamfitters and steamfitters’ apprentices in the employ of A & E Plumbing Ltd. in all other sectors of the construction industry in the City of Toronto, the Regional Municipalities of Peel and York, the Towns of Oakville and Halton Hills and that portion of the Town of Milton within the geographic Townships of Esquesing and Trafalgar, and the Towns of Ajax and Pickering in the Regional Municipality of Durham, save and except non-working foremen and persons above the rank of non‑working foreman.
The vote will be held on May 7, 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 A & E Plumbing Ltd. and at work in the voting constituency on April 30, 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.
The applicant submitted that its application was filed without prejudice to its claim to bargaining rights in Board File No. 0124-98-R. The effect of this application on the applicant’s claim in another proceeding is not a matter upon which the Board makes any comment at this time.
This matter is referred to the Registrar.
“Harry Freedman”
for the Board