[1990] OLRB Rep. August 881
0225-90-R Alan Reitzel, Applicant v. The Sheet Metal Workers' International Association, the Ontario Sheet Metal Workers' Conference and the Sheet Metal Workers' International Association, Locals 30, 47, 235, 392, 397, 473, 504, 537, 539, 562, and 269, Respondents
BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members R. W. Pirrie and C. McDonald.
APPEARANCES: Michael Horan and Alan Reitzel for the applicant; J. A. Raso and C. Coffin for the respondents.
DECISION OF THE BOARD; August 8, 1990
- This is an application, under section 57 of the Labour Relations Act, for a declaration that the respondents no longer represents certain employees of Reitzel Heating and Sheet Metal Ltd. for whom they are presently the bargaining agent. Sections 57(2)(a) and 57(3) of the Act provide that:
57.- (2) Any of the employees in the bargaining unit defined in a collective agreement may. subject to section 61, apply to the Board for a declaration that the trade union no longer represents the employees in the bargaining unit,
(a) in the case of a collective agreement for a term of not more than three years, only after the commencement of the last two months of its operation;
(3) Upon an application under subsection (1) or (2), the Board shall ascertain the number of employees in the bargaining unit at the time the application was made and whether not less than 45 per cent of the employees in the bargaining unit have voluntarily signified in writing at such time as it determined under clause 103(2)(j) that they no longer wish to be represented by the trade union, and, if not less than 45 per cent have so signified, the Board shall, by a representation vote, satisfy itself that a majority of the employees desire that the right of the trade union to bargain on their behalf be terminated.
This application came on for hearing on July 5, 1990. A similar application with respect to employees of Reitzel Heating and Sheet Metal Ltd. represented by the Christian Labour Association of Canada (the "CLAC") in Board File No. 0184-90-R came on for hearing at the same time. That latter application was disposed of by the Board at the hearing as set out in the Board's written decision of the same date therein.
Having regard to the material before the Board in this application, and the agreement of the parties, the Board finds that the bargaining unit to which this application relates is all journeymen sheet metal workers and registered sheet metal apprentices in the employ of Reitzel Heating and Sheet Metal Ltd. in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario, excluding the Regional Municipality of Waterloo (except that portion of the geographic Township of Beverly annexed by North Dumfries Township) (i.e. Board Area No. 6), save and except non-working foremen and persons above the rank of non-working foreman.
There is no objection to the timeliness of this application. In addition, because the application relates to the industrial, commercial and institutional ("ICI") sector of the construction industry, it affects all affiliated bargaining agents which hold bargaining rights for journeymen sheet metal workers and registered sheet metal apprentices employed by Reitzel Heating and Sheet Metal Ltd. in the ICI sector in Ontario (see Double S Construction, [1988] OLRB Rep. Aug. 800 paragraphs 13 to 15 in that respect). The respondent Ontario Sheet Metal Workers' Association (which appears to have been intended to refer to the Sheet Metal Workers' International Association) is both an affiliated bargaining agent and a part of the employee bargaining agency designated to represent its affiliated bargaining agents in ICI bargaining in Ontario. There is no objection from the respondents with respect to the manner in which this application was styled or to the notice of it which was given to the affiliated bargaining agents. Accordingly, we find it appropriate to amend the name of the respondents nunc pro tunc to "The Sheet Metal Workers' International Association, the Ontario Sheet Metal Workers' Conference, and the Sheet Metal Workers' International Association, Locals 30, 47, 235, 392, 397, 473, 504, 537, 539, 562, and 269".
Having regard to the material before the Board, and the agreement of the parties, the Board finds that there were four employees in the bargaining unit at the time the application was made.
In a termination application like this one, the Board must determine the wishes of the affected employees. Section 57(3) of the Act and section 73(1) of the Board's Rules of Procedure stipulate that evidence of employee wishes must be in writing. The legislation also stipulates that employees who have indicated that they no longer wish to be represented by a trade union must have arrived at their decision voluntarily and that the written evidence