Operative Plasterers' and Cement Masons' International Association of the United States and Canada Union, Local 598 v Aurora Forming Inc., 2015 CanLII 9876 (ON LRB)
OLRB Case No: 2629-14-R
Operative Plasterers' and Cement Masons' International Association of the United States and Canada Union Local 598, Applicant v Aurora Forming Inc., Responding Party v Labourers' International Union of North America, Local 506, Intervenor
BEFORE: Jack J. Slaughter, Vice-Chair
APPEARANCES: Michael Church, Simone Ostrowski, Maeve Clougherty, Tony Mollica and Rob Radolovic appearing for the applicant; Jim McKeown and Sam Gallelli appearing for the responding party; James Robbins and Carlo Ricci appearing for the intervenor.
DECISION OF THE BOARD: February 12, 2015
1. This is a card-based application for certification (construction industry) under section 128.1 of the Labour Relations Act, 1995, S.O. 1995 c.1, as amended (“the Act”), filed on November 28, 2014 by Operative Plasterers’ and Cement Masons’ International Association of the United States and Canada, Local 598 (“the Masons”) with respect to Aurora Forming Inc. (“Aurora”). Labourers’ International Union of North America, Local 506 (“the Labourers”) has filed an intervention herein.
2. The Board held a Case Management Hearing in this matter on February 11, 2015.
3. Aurora says that it only employed one employee in the bargaining unit on the date of application. That employee is Brent Santogato, who was at work on the Greenwood College School project in Toronto. This job site is within Ontario Labour Relations Board Area No. 8. The Masons agree with the identity of the site. However, they maintain that Mr. Santogato was not employed in the bargaining unit on the date of application. The Masons further assert that Ben Hanrahan, David Hernandez and Nicolae Mujoiu were employed by Aurora and performing bargaining unit work for the majority of their work day on the date of application at the job site. The Labourers submit that they have a collective agreement with Aurora via the operation of subsection 1(4) and/or 69 of the Act arising from the Labourers’ prior bargaining rights and collective agreements with Nova Forming Inc. and Ren-View Construction Group Ltd., both of which have been bound by the Labourers’ Provincial Collective Agreement for both work in the industrial, commercial and institutional sector and work outside the ICI sector. The Labourers say either that there was no one employed in the bargaining unit on the date of application, or the Masons have filed what amounts to an untimely displacement application.
4. At the hearing, the Masons identified four issues that it said were before the Board: the status of the Labourers to intervene herein; whether the Masons’ three employee additions should be included in the bargaining unit; document production; and Aurora’s argument that the Masons’ three employee additions were actually employed pursuant to the Carpenters’ Provincial Collective Agreement.
5. Aurora agreed all those issues were outstanding but also asked the Board to dismiss the Masons’ challenge to Mr. Santogato for lack of particularity.
6. The Labourers maintained that they have status to intervene herein and urged to Board to reject the Masons’ attempt to prematurely jettison them from participation in this proceeding.
7. As all parties were working under pressing time constraints, none of these issues were argued to a conclusion. Instead, the Board directed the filing of the following submissions:
(a) On or before March 4, 2015, the Labourers are to file a related/successor employer application in respect of Aurora and any other relevant entities;
(b) On or before March 18, 2015, the Masons and Aurora are to file their response and intervention respectively in the related/successor employer application;
(c) On or before March 18, 2015, the Masons are to file a summary of the facts and representations that they are relying upon to establish that the work performed on the date of application by the three Masons’ employee additions is bargaining unit work;
(d) On or before April 1, 2015, Aurora and the Labourers are to file any facts or representations they are relying upon to respond to the Masons’ facts and representations.
8. The Board also wishes to deal with the “Santogato particulars” and “Carpenters Provincial Agreement” issues in the course of these submissions. Therefore, on or before March 18, 2015, the Masons are to advise if they are still pursuing their challenge to Mr. Santogato, and Aurora is to advise if it is still raising the Carpenters’ Provincial Collective Agreement as a bar to this application. At the same time, they should advise on what grounds they are doing so. The other parties are directed to respond to these grounds if necessary, on or before April 1, 2015.
9. It appears to the Board that counsel should be able to resolve any document production issues amongst themselves. If any further direction appears necessary, counsel may address this issue in the usual manner by writing to the Registrar.
10. The hearing shall continue in this matter on June 19, August 11 and 14, 2015 commencing at 9:30 a.m. local time in the “Board Room”, 505 University Avenue, 2nd Floor, Toronto, Ontario.
11. This panel is not seized of hearing the merits of this matter, but will deal with any issue arising from the submissions directed herein.
“Jack J. Slaughter”
for
the Board