City of Kitchener v. The International Union of Bricklayers and Allied Craftsmen et al.
File No.: 0972-01-R Date: August 16, 2001
City of Kitchener, Applicant v. The International Union of Bricklayers and Allied Craftsmen and the Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftsworkmen, International Union of Bricklayers and Allied Craftworkers, Local 12; and all affiliated bargaining agents, Responding Parties.
Before: David A. McKee, Vice-Chair.
Decision of the Board
1This is an application made under section 127.2 of the Labour Relations Act, 1995. S.O. 1995 ch.1 (the "Act") seeking a declaration terminating certain bargaining rights held by the responding parties in respect of a bargaining unit of bricklayers, bricklayers’ apprentices, stonemasons and stonemasons’ apprentices employed by the applicant, the City of Kitchener. The responding parties, the Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftworkers and the International Union of Bricklayers and Allied Craftworkers Local 12 have asked the Board to dismiss this application on the basis that it does not disclose a prima facie case, and that it has not been filed in accordance with the Board’s Rules of Procedure. The Board dismisses this motion.
2First, the application does plead a prima facie case. Section 127.2 requires that an applicant demonstrate only that it comes within the definition of non-construction employer set out in section 126(1). The Schedule “A” attached to the application is brief, but pleads facts which in the absence of any other facts, do disclose a prima facie case. Indeed the responding parties have been able to plead in response to it in paragraphs 8-11 of the response. Accordingly that motion is dismissed.
3The responding parties also assert that the application was filed in a manner not in compliance with the Board’s Rules of Procedure. While correct in certain aspects, this would not cause the Board to dismiss the application. The last decision of the Board dealing with the current state of affairs among the responding parties and the other affiliated bargaining agents of the Ontario Provincial Conference and the Brick and Allied Craft Union (“BACU”) is an unreported decision dated May 2, 2001 (Board File No. 1904-99-U, 2532-98-U, 2736-00-R and 2737-00-R). That decision dealt with the claim of the BACU that it was the successor to the Ontario Provincial Conference, or that it should be certified as Employee Bargaining Agency in its place. While the Board does not criticize anyone in the process, the current Employee Bargaining Agency has not been using the name of the International Union of Bricklayers and Allied Craftworkers for some time, and some confusion about names is understandable.
4The Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftworkers and International Union of Bricklayers and Allied Craftworkers Local 12 (“Local 12”) are proper responding parties. Although named only inferentially as an affiliated bargaining agent, Local 12 is in fact properly a responding party in its own right in respect to the non-ICI bargaining rights. Since Local 12 has filed a response, the Board adds it as a responding party in its own right. The May 2, 2001 decision makes it clear that the International Union of Bricklayers and Allied Craftworkers is not an Employee Bargaining Agency or a part of it, but is an affiliated bargaining agent and should have been served with a copy of this application as such. The only question remaining is whether all of the other affiliated bargaining agents have been properly provided with notice of this application. The other affiliated bargaining agents are the locals of the International Union of Bricklayers and Allied Craftworkers in Ontario. It appears from a brief review of the application that it was sent to the offices of these locals (which are also the offices of the corresponding Locals of the BACU). However, the locals are referred to by the name of another union, Bricklayers, Masons, Independent Union of Canada, which is active in the Toronto region, but not elsewhere in the Province of Ontario. The Employer Bargaining Agency has been properly named and served.
5Pursuant to section 112 of the Act and Rule 44, the Board may relieve against the strict application of the rules if it is satisfied that a party has misidentified a party in good faith. That appears to be the case here. Further there is no prejudice to the responding parties, who were properly named and served. With respect to the affiliated bargaining agents who were misidentified, there is also no prejudice in amending the name. This type of application may be made at any time. If the Board were to dismiss the application on the grounds of a technical defect, nothing would prevent the applicant from applying for the same relief the next day.
6The Board concludes that it is appropriate to require the applicant to file and serve an amended application containing the correct names of the responding parties and the affiliated bargaining agents, in accordance with the rules. The responding parties need not file an amended response, unless they chose to do so. Once that has been done and the period for filing a response has passed, this matter is referred to the Manager of Field Services for further processing in the normal course.
7Since an issue with respect to the Canadian Charter of Rights and Freedoms has been raised, the parties are reminded of their obligation to provide notice to the relevant Attorneys General under section 109 of the Courts of Justice Act.
8I am not seized of this application.
“David A. McKee”
for the Board