0620-01-R Construction Workers Local 53, affiliated with the Christian Labour Association of Canada, Applicant, Applicant v. Seal-On Paving Ltd., Responding Party.
BEFORE: Harry Freedman, Vice‑Chair, and Board Members J.G. Knight and G. McMenemy.
DECISION OF THE BOARD; May 28, 2001
This is an application for certification filed under the construction industry provisions of the Labour Relations Act, 1995, S.O. 1995, c.1 as amended (the "Act"). This application was filed on May 23, 2001.
The Board finds that the applicant is a trade union within the meaning of sections 1(1) and 126 of the Act.
The responding party was duly served with the application on May 23, 2001, according to the Certificate of Delivery filed by the applicant and filed its response with the Board within the time stipulated by Rule 135 of the Board's Rules of Procedure.
The responding party disputes the applicant's estimate of the number of employees in the applicant's proposed bargaining unit. Furthermore, the responding party proposes a different bargaining unit than that proposed by the applicant and it contends that the applicant’s bargaining unit could not be appropriate. It gives notice under section 8.1 of the Act. Section 8.1 of the Act applies to applications for certification in the construction industry following the amendments to the Act contained in Bill 139 [Labour Relations Amendment Act, 2000, S. O. 2000, c. 38] sections 3, 23, 32 and 33 which amended section 8.1(5), added section 126.1(2) and repealed sections 159(3) and 160(2) of the Act. See also Brick and Allied Craft Union of Canada, as yet unreported, decision dated February 21, 2001, Board File Nos. 2736-00-R and 2737-00-R and A.R.A. Construction Ltd., unreported, decision dated May 3, 2001, Board File No.0399-01-R.
Although the responding party disagrees with the bargaining unit proposed by the applicant and contends that it could not be appropriate for collective bargaining, the responding party does not itself propose an alternative bargaining unit description. Furthermore, in its submissions in support of its position that the bargaining unit proposed by the applicant could not be appropriate, the responding party states: “There are employees who have as part of their job duties truck driving who are members of [sic]”. There is no indication in the response by whom those employees are represented. Furthermore, the responding party submits that there are employees in the applicant’s proposed bargaining unit that are covered by a collective agreement, but provides no information about that collective agreement. The responding party also fails to identify the trade union which it says may be affected by the application, although it states that the date upon which that unnamed trade union was certified or voluntarily recognized is not available.
The applicant did not identify any trade union which claims to represent any employees affected by the application. It also submits that the unit it seeks to represent is a “tag-end” unit and asserts that the remainder of the responding party’s employees are already organized.
The responding party submitted that there were five employees in the bargaining unit proposed by the applicant. The applicant states that there were six employees at work in its proposed bargaining unit on the date of application. After comparing the membership evidence provided by the applicant as against the information provided by the responding party, the Board finds that the numerical difference between the parties is not material to the application. The applicant has established sufficient membership support in its proposed bargaining unit for the purposes of obtaining a representation vote and having that vote counted.
The Board is satisfied 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 appear to be members of the applicant 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(4) of the Act which provides, in part:
…a trade union that is not represented by a designated or certified employee bargaining agency may bring an application for certification or enter into a voluntary recognition agreement on its own behalf.
- The applicant proposed a bargaining unit of all truck drivers employed in Board Area One save and except non-working foremen and persons above the rank of non-working foreman. The applicant also submits that it is proposing a tag end unit. The Board cannot be sure if there are more than just truck drivers who were employed by the responding party on the application date and who were not covered by a collective agreement on that date. Although the Board’s determination of the appropriate bargaining unit will have to wait until the Board can be satisfied whether there were any other unrepresented employees at work on the application date, the Board can, based on its determination in paragraph 8 above, direct a representation vote. Therefore, the Board directs that a representation vote be taken of the individuals in the following voting constituency:
all employees of Seal-On Paving Limited in the Counties of Essex and Kent, save and except non-working foremen, persons above the rank of non‑working foreman and persons in bargaining units for whom any trade union held bargaining rights as of May 23, 2001.
The vote will be held on Wednesday, May 30, 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 Seal-On Paving Limited and at work in the voting constituency on May 23, 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.
“Harry Freedman”
for the Board