2718-01-R Millwright Union Local 1410,United Brotherhood of Carpenters and Joiners of America, Applicant v. Kelly Services (Canada) Ltd., Responding Party.
BEFORE: David A. McKee, Vice-Chair.
DECISION OF THE BOARD; December 31, 2001
This is an application for certification filed under the construction industry provisions of the Labour Relations Act, 1995 (the "Act").
The Registrar has certified that the applicant had been found to be a trade union in an earlier proceeding under the Act. Therefore, having regard to the Registrar’s certificate and section 113 of 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 March 11, 1999, the designated employee bargaining agency is the Millwright Regional Council of Ontario, United Brotherhood of Carpenters and Joiners of America.
The responding party filed its response with the Board within the time stipulated by Rule 135 of the Board's Rules of Procedure.
The response raises several issues. First, the responding party purports to give notice under section 8.1, although it asserts there are no employees in the bargaining unit. As the Board said in Tri-Con Contracting Incorporated (Board File No. 0788-01-R, September 10, 2001):
An employer who asserts that it has zero employees is not giving a valid notice under section 8.1. If there are no employees in the bargaining unit, the application will be dismissed for that reason which has nothing to do with section 8.1. The mischief to which section 8.1 was directed was a perceived problem of trade unions which filed applications for certification knowing full well that they lacked the requisite level of support for making the application but hoping to win the vote in any event. It was to prevent that type of use of the procedures under the Act that section 8.1 was introduced. If, on the other hand the union is incorrect in its assessment of the legal status of the persons it seeks to organize, the consequence is simply a dismissal of the application. This was true both before and after the passage of section 8.1. That section has no impact on this type of dispute.
There is no reason therefore to seal the ballot box.
The responding party asserts that it is a non-construction employer, as defined in section 126(1) of the Act. This issue can be determined at a hearing. If the responding party is correct, this would have an impact on the bargaining unit description. However, on the material filed by the responding party it is not apparent that this would affect the entitlement to a certificate if the applicant is successful in winning the representation vote.
The responding party asserts that the Board should give notice to George A. Wright Ltd. and Dupont Canada Inc. and any trade union having bargaining rights for employees of either company. It does not assert that either was the true employer of the three employees at issue, and suggests no other reasons why these parties would be entitled to notice. No addresses are provided. The Board does not propose to search for addresses (or inquire as to the identity of trade unions) where there is no reason given why such parties would be entitled to notice.
The applicant’s proposed bargaining unit makes reference to Board Area No. 1 as the appropriate Board area for the non-ICI portion of the bargaining unit. Since the only location of employees alleged in the application is in Kingston (Board Area No. 29) the Board finds that it is Board Area No. 29 which is the appropriate Board area to be included in the bargaining unit description.
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 further finds, pursuant to section 158(1) of the Act, that all millwrights and millwrights’ apprentices in the employ of the responding party in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and all millwrights and millwrights’ apprentices in the employ of the responding party in all other sectors of the construction industry in the County of Lennox and Addington, the County of Frontenac, and the geographic Townships of Rear Leeds and Lansdowne, Rear of Yonge and Escott, and all lands south thereof in the United Counties of Leeds and Grenville, save and except non-working foremen and persons above the rank of non-working foreman, may constitute a unit of employees of the responding party appropriate for collective bargaining. This is dependent on the outcome of the non-construction employer issue.
Having regard to the Board's finding as to the appropriate bargaining unit, the Board directs that a representation vote be taken of the individuals in the following voting constituency:
all millwrights and millwrights’ apprentices in the employ of Kelly Services (Canada) Ltd. in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and all millwrights and millwrights’ apprentices in the employ of Kelly Services (Canada) Ltd. in all other sectors of the construction industry in the County of Lennox and Addington, the County of Frontenac, and the geographic Townships of Rear Leeds and Lansdowne, Rear of Yonge and Escott, and all lands south thereof in the United Counties of Leeds and Grenville, save and except non-working foremen and persons above the rank of non-working foreman.
The vote will be held on January 3, 2002. 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 Kelly Services (Canada) Ltd. and at work in the voting constituency on December 24, 2001, or who assert that, as of that date they had an employment relationship with Kelly Services (Canada) Ltd., 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.
“David A. McKee”
for the Board