3890-00-R Allied Construction Employees Local 1030, United Brotherhood of Carpenters and Joiners of America, Applicant v. Arista Homes Limited, Responding Party v. Universal Workers Union, Labourers’ International Union of North America, Local 183, on its own behalf and on behalf of its members, Intervenor.
0628-01-U Allied Construction Employees Local 1030, United Brotherhood of Carpenters and Joiners of America, Applicant v. Universal Workers Union, Labourers’ International Union of North America, Local 183, Claudio Mazzotta and Roman Conde, and Arista Homes Limited, Responding Parties.
BEFORE: David A. McKee, Vice-Chair.
DECISION OF THE BOARD; July 16, 2001
This 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 persons in the bargaining unit. The Board has already heard one day of evidence.
The parties agreed that Board File No. 0628-01-U should remain in abeyance pending the outcome of the application for certification. The parties also agreed that the hearing of the evidence in this application will continue on November 8, 21, and December 14, 2001.
The total number of persons who the responding party and the intervenor submit are employees in the bargaining unit is 47. The Carpenters challenge 25 of those names and agree that 22 of them are employees in the bargaining unit. The Labourers and Arista take the position that two of the challenges made by the Carpenters were made in an untimely fashion and may not now be made. The Board has not yet determined that issue.
However, 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 22 persons not challenged by the Carpenters 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 47.
In this application the responding party has filed a timely notice under section 8.1. At the hearing counsel requested that the Board determine whether it was possible to determine the “40%” question posed by that section, on the basis of the number of persons who were already agreed on. The Board advised the responding party that on the undisputed list that existed at that time the applicant has demonstrated the appearance of membership for more than 40% of the persons in the bargaining unit.
On a careful review of the file, the actual membership evidence, and all of the challenges submitted, the Board is satisfied that this is still the case. However, the addition of a very small number of persons to the list would make it unnecessary to examine all of the challenged employees. That is, if a small number of persons is added to the list of employees in the bargaining unit, the Carpenters would fall below the level of 40% support in the bargaining unit, whatever its ultimate size turns out to be.
The Board therefore proposes to deal with the challenges site by site. I have heard evidence from three challenged persons from the Vellore Woods site and one from the Churchill Meadows site. I therefore direct the parties as follows.
The parties are to call all of their remaining evidence with respect to the Vellore Woods site. I do not know if there are any more persons who are alleged to have been employees who worked on the site. They will be called as will any other witnesses relevant to their status. After the evidence is called, the parties will make submissions as to the findings the Board should make. If there is time left in the hearing day, the parties should be prepared to call all evidence with respect to persons who were alleged to have been employees on the Churchill Meadows site, followed by submissions.
In preparation for the next day of hearing, the Board makes the following directions. Arista is directed, to the extent that it has not already done so, 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 names of all of the persons it claims were at work on the two sites, including those whose inclusion in the bargaining unit is challenged, and any other person or company performing work on either of the two sites at the request of Arista;
(b) the names of any other witnesses it plans to call with respect to the work done on the application date by the challenged persons;
(c) 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.
- On 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 two sites in their possession, including notes of any sort made for any purpose not protected by any privilege;
(b) a list of all persons either intends to call as witnesses in the proceeding.
The 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 Giancola Aluminum Contractors Ltd., Board File No. 0406-01-R.
The hearings will resume on November 8, 2001 and continue on November 21 and December 14, 2001.
“David A. McKee”
for the Board