0009-01-R Labourers’ International Union of North America, Ontario Provincial District Council, Applicant v. S.S.T Contracting Ltd., Responding Party v. Operative Plasterers’, Cement Masons’, Restoration Steeplejacks International Association of the United States and Canada, Union Local 598, Intervenor.
BEFORE: Mary Ellen Cummings, Alternate Chair, and Board Members J. G. Knight and
G. McMenemy.
DECISION OF THE BOARD; May 4, 2001
This is an apparent displacement application for certification in the industrial, commercial and institutional sector of the construction industry.
By a decision dated April 4, 2001, the Board ordered a vote among “all employees” of the employer at work on the application date, March 30, 2001. Employees were asked to indicate whether they wished to be represented by the applicant (the Labourers) or the intervenor (the Restoration Steeplejacks). On direction of the Board, the ballot box was sealed.
There are a number of issues in dispute. In this decision, we will briefly set out our understanding of the issues; set the matter down for a hearing and make directions about what steps the parties must take before the matter can proceed to hearing. The issues are as follows:
Can the Labourers bring this application or are they precluded by their designation order?
What work were the employees performing on the application date?
Have the Restoration Steeplejacks adequately particularized their allegations of misconduct?
Can the Labourers bring this application?
While not acknowledging that the Board’s decision in Clifford Restoration, [1999] OLRB Rep. Jan./Feb. 5 is correct, the Labourers submit that the employees were not steeplejacking on the application date, but were engaged in restoration work. Without precluding whatever other arguments parties might want to make, one significant issue is what work was being performed by the employees at issue on the application date. The responding party is directed to provide any payroll records and other documents (time sheets, work orders, etc.) that identify the work performed, to the Labourers and the Restoration Steeplejacks by no later than May 11, 2001.
What work were the employees performing on the application date?
The Restoration Steeplejacks assert that no one was at work in the bargaining unit claimed on the application date. Providing the documents directed above may help resolve that issue.
Have the Restoration Steeplejacks adequately particularized their allegations of misconduct?
At paragraphs 8 to 11 of its intervention, the Restoration Steeplejacks allege that the Labourers and the responding party have engaged in serious misconduct with respect to this application. Rule 38 of the Board’s Rules of Procedure provides:
Where a party in a case intends to allege improper conduct by any person, he or she must do so promptly after finding out about the alleged improper conduct and provide a detailed statement of all material facts relied upon, including the circumstances, what happened, when and where it happened, and the names of any persons said to have acted improperly.
The Restoration Steeplejacks allegations do not meet this test. The intervenor is directed to fully particularize its allegations, deliver them to the other parties and file them with the Board no later than May 11, 2001. We note that the Restoration Steeplejack have not made an unfair labour practice complaint. If they intend to do so, it must be delivered and filed by May 11, 2001.
Any responses, either to the particularized allegations in this file, or to an unfair labour practice complaint, must be delivered and filed by June 1, 2001.
The hearing in this matter will take place on June 7, 2001, commencing at 9:30 a.m. in the “Board Room”, 2nd Floor, 505 University Avenue, Toronto, Ontario.
This panel is not seized.
“Mary Ellen Cummings”
for the Board