0406-01-R Labourers’ International Union of North America, Applicant v. Giancola Aluminum Contractors Ltd., Responding Party v. Carpenters & Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America, Intervenor.
BEFORE: David A. McKee, Vice-Chair.
DECISION OF THE BOARD; July 16, 2001
1This is an application for certification brought pursuant to the construction industry provisions of the Labour Relations Act, 1995, S. O. 1995 ch.1 (the “Act”). The only issue remaining is the composition of the list of persons in the bargaining unit. The history of this issue has some unusual twists and turns.
2The applicant (“the Labourers”) filed the application for certification on April 30, 2001. In some segments of the construction industry, this date has considerable significance. In this case the responding party (“Giancola”) claims a collective agreement between it and the intervenor expired on May 1, 2001. The intervenor (“the Carpenters”) filed a copy of a Memorandum of Agreement renewing a collective agreement for a term which expires March 31, 2002. No issue has been raised with respect to the timeliness of this application. There is no dispute that the bargaining unit is the one defined in the collective agreement.
3In their application, the Labourers submitted that there were 36 employees in the bargaining unit. Giancola stated, in its response, that there were 73 employees in the unit and filed a timely notice under section 8.1. The ballot box has been sealed.
4At the vote, all ballots were segregated. At the vote the Labourers took the startling (for an applicant) position that none of those who had voted were entitled to vote, as they were not employed in the bargaining unit on the application date. Giancola and the Carpenters maintained their position that there were now 78 persons in the bargaining unit and that all of those who had voted were entitled to vote.
5At the regional certification meeting the Labourers advised that it would be withdrawing its challenges with respect to some of the persons on the list, the identities of whom it would later reveal. The Carpenters took the position that the Labourers were unable to change their position and that they were “stuck with” the untenable position that there were no employees in the bargaining unit.
6The Carpenters repeated this position in its post-meeting submissions. On June 19, 2001 the Labourers submitted a list of challenges. Thirty-five persons are not challenged; forty‑three are challenged on the basis that “none of these individuals were employed by the responding party and performed [sic] bargaining work on the date of application.” It reserved the right to file further particulars about its challenges at some time in the future.
7The bargaining unit is defined as “All construction workers of Giancola Aluminum Contractors Ltd. engaged in new Residential subdivision (defined as 3 or more units) in residential lowrise buildings…”. The Board does not anticipate very much in the way of evidence about working in a particular craft.
8The Carpenters maintain their position that the Labourers may not change from their original position and that the application should be dismissed summarily.
9The Board does not accept the Carpenters’ position. There was never an agreement that there were no persons in the bargaining unit. Since the issue was always a disputed one among the parties, any party was free to abandon its position with respect to any individual. Accordingly, it is entitled now to agree with Giancola and the Carpenters that these 35 persons are employees in the bargaining unit.
10However, there is a time when the ability to raise additional issues comes to an end. That point has been reached in this file. All parties agree that the 35 persons not challenged by the Labourers are employees in the bargaining unit. No party will be entitled to resile from this agreement. No additional names will be added to the list of employees who are in the bargaining unit; the maximum number is 78.
11Normally the Board would now commence the process of examining 43 individuals and any other relevant witnesses to finalize the list. However, it may not be necessary to complete this process. If the bargaining unit has only the 35 persons agreed to, the applicant has demonstrated the appearance of membership on behalf of 40% or more of them. If the number of persons in the bargaining unit rises by a very small number, the Labourers fall below the 40% level. This would be very relevant for Giancola’s section 8.1 notice.
12Accordingly, the Board directs the Registrar to set this application down for hearing for one day. Giancola is directed to select one or two of the sites referred to in the response where it claims one or more of the challenged voters worked on the application date. It is directed by the Board to file with the Board and deliver to counsel for the two unions no later than 10 working days before the date fixed for hearing the following information:
(a) the name of the site;
(b) the names of all of the persons it claims were at work on the site, including those whose inclusion in the bargaining unit is challenged, and any other person or company performing work on the site at the request of Giancola;
(c) the names of any other witnesses it plans to call with respect to the work done on the application date by the challenged persons;
(d) all documents with respect to work performed on the site on the application date of whatsoever nature including contracts, subcontracts, invoices, purchase orders, requests to perform work, documents indicating completion of the work, site supervisor’s notes, records of time or work completed, miscellaneous notes on the backs of envelopes or any other written document whatsoever.
13On a date no later than five working days before the date fixed for hearing, both the Carpenters and the Labourers are to file with the Board and serve on the other parties the following:
(a) all documents with respect to persons performing work on the site(s) identified by Giancola in their possession not protected by any privilege, including notes of any sort made for any purpose;
(b) a list of all persons either intends to call as witnesses in the proceeding.
14The Board will hear all the evidence and submissions with respect to all of the challenged persons who are alleged to have worked on the first site named by Giancola. If there is time in the hearing day, it will then hear all the evidence and argument with respect to the challenged persons who are alleged to have worked on the second site. Following that day of hearing, the Board will render a decision with respect to the persons whose status is challenged about whom evidence was heard, and any other decision that is appropriate at that time.
15The Board notes that this is an unusual way of proceeding, and not necessarily the way the Board would proceed to handle status disputes in general or even most disputes involving a section 8.1 challenge. However, in the context of the ongoing rivalry between these two unions, the nature and the volume of evidence that will need to be called to determine all issues in this application, and the state of the list of employees in the bargaining unit at this point, it is appropriate to proceed in this fashion. While an unusual approach, it is not an isolated one: see a similar decision issued as of this date in Arista Homes Limited., Board File Nos. 3890-00-R and 0628-01-U.
16I am not seized of this application.
“David A. McKee”
for the Board