International Union of Operating Engineers, Local 793 v. Yukon Construction Inc.
0024-01-R International Union of Operating Engineers, Local 793, Applicant v. Yukon Construction Inc., Responding Party v. United Brotherhood of Carpenters and Joiners of America, Intervenor.
BEFORE: Inge M. Stamp, Vice‑Chair, and Board Members J. G. Knight and G. McMenemy.
DECISION OF THE BOARD; April 6, 2001
This is an application for certification filed under the construction industry provisions of the Labour Relations Act, 1995 (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 July 13, 1978, the designated employee bargaining agency is the International Union of Operating Engineers and Local 793 of the International Union of Operating Engineers.
The responding party, although duly served with the application material on April 3, 2001, according to the certificate of delivery filed by the applicant, failed to file its response with the Board within the time stipulated by Rule 135 of the Board's Rules of Procedure.
The applicant has applied for its standard bargaining unit, ICI and all other sectors in Board Area No. 8. The work performed on the application date as described in the application for certification is work in the ICI sector of the construction industry.
The intervenor filed a collective agreement which covers a number of trades in the non-ICI sectors of the construction industry. Article 2 of the scope clause of the collective agreement between the responding party and the intervenor includes: “…all employees engaged in the operation of cranes, shovels, bulldozers, and similar equipment and those primarily engaged in the repairing and maintaining of same and those employees engaged as surveyors, and all other directly employed construction employees in the Province of Ontario”.
The intervenor states this collective agreement does not expire until June 2002 and therefore the application for certification as it relates to the non-ICI sectors of the construction industry is untimely.
It appears to the Board 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 were members of the union 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 directs that a representation vote be taken of the individuals in the following voting constituency:
all employees of Yukon Construction Inc. engaged in the operation of cranes, shovels, bulldozers, and similar equipment and those primarily engaged in the repairing and maintaining of same, and employees engaged as surveyors;
i. in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario; and
ii. 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 (OLRB Board Area No. 8) excluding the industrial, commercial and institutional sector of the construction industry;
save and except non-working forepersons and persons above the rank of non-working foreperson.
The vote will be held on April 10, 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 Yukon Construction Inc. and at work in the voting constituency on April 2, 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.
This matter is referred to the Registrar.
“Inge M. Stamp”
for the Board