[1992] OLRB Rep. August 958
3664-91-R National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada), Applicant v. Riverside Fabricating Limited, Respondent v. Group of Employees, Objectors
BEFORE: R. O. MacDowell, Alternate Chair, and Board Members R. W. Pirrie and D. A. Patterson.
APPEARANCES: L. N. Gottheil, Dan Flynn and Brian Kunkel for the applicant; Theodore Crljenica and Dennis Anglin for the respondent; David Wylupek and Aaron MacPherson for the objectors.
DECISION OF THE BOARD; August 21, 1992
I
The name of the respondent is amended to read: "Riverside Fabricating Limited".
This is an application for certification.
There is no dispute and the Board finds that this application is timely, and that the applicant is a trade union within the meaning of section 1(1) of the Labour Relations Act.
Having regard to the agreement of the parties, the Board further finds that the unit of employees appropriate for collective bargaining should be described as follows:
all employees of Riverside Fabricating Limited in the City of Windsor. save and except supervisors/foreman, persons above the rank of supervisor/foreman, office and sales staff, persons regularly employed for not more than twenty-four (24) hours per week, and students employed during the school vacation period.
- A hearing in this matter was held in Windsor, Ontario on June 24, 25, 26, 29, and 30. Counsel for the parties agreed that the Board should deal first with the evidence confirming the employees' continuing wish to be represented by the union, then turn to the allegations of misconduct brought by certain objecting employees. The parties agreed that if these issues were disposed of in the union's favour, the union could be "certifiable" and it would be unnecessary to inquire into either the "voluntariness" of the statement submitted by the objecting employees, or the union's allegations of misconduct against the employer.
II
- Before turning to the evidence, it may be useful to briefly sketch in the legal framework within which the parties' rights must be determined. The provisions of the Labour Relations Act and the Rules to which reference will be made are as follows:
[Certification with or without a representation vote]
7.-(I) Upon an application for certification, the Board shall ascertain the number of employees in the bargaining unit at the time the application was made and the number of employees in the unit who were members of the trade union at the time as is determined under clause I05(2)(j).
(2) If the Board is satisfied that not less than 45 per cent and not more than 55 per cent of the employees in the bargaining unit are members of the trade union, the Board shall, and if the Board is satisfied that more than 55 per cent of the employees are members of the trade union, the Board may direct that a representation vote be taken.
[Definition of union membership]
1.-(1) In this Act, "member", when used with reference to a trade union, includes a person who,
(a) has applied for membership in the trade union, and
(b) has paid to the trade union on the member's own behalf an amount of at least $1 in respect of initiation fees or monthly dues of the trade union,
and membership" has a corresponding meaning;
[Presentation of membership evidence and objections to the Board]
105.-(2)(j) ... the Board has the power to determine the form in which and the time as of which evidence of membership in a trade union or of objection by employees to certification of a trade union or of signification by employees that they no longer wish to be represented by a trade union shall be presented to the Board on an application for certification or for a declaration terminating bargaining rights, and to refuse to accept any evidence of membership or objection or signification that is not presented in the form and as of the time so determined;
[Secrecy of union membership and employee wishes]
113.-(l) The records of a trade union relating to membership or any records that may disclose whether a person is or is not a member of a trade union or does or does not desire to be represented by a trade union produced in a proceeding before the Board is for the exclusive use of the Board and its officers and shall not, except with the consent of the Board, be disclosed, and no person shall, except with the consent of the Board, be compelled to disclose whether a person is or is not a member of a trade union or does or does not desire to be represented by a trade union.
[Evidence of membership or employee objections must be in writing]
Rule 73.-(1) Evidence of membership in a trade union or of objection by employees to certification of a trade union or of signification by employees that they no longer wish to be represented by a trade union shall not be accepted by the Board on an application for certification or for a declaration terminating bargaining rights unless the evidence is in writing, signed by the employee or each member of a group of employees, as the case may be, and,
(a) is accompanied by,
(i) the return mailing address of the person who files the evidence, objection or signification, and
(ii) the name of the employer; and
(b) is filed not later than the terminal date for the application.
[No oral evidence of membership or objection]
(2) No oral evidence of membership in a trade union or of objection by employees to certification of a trade union or of signification by employees that they no longer wish to be represented by a trade union shall be accepted by the Board except to identify and substantiate the written evidence referred to in subsection (1).
(3) Any employee or group of employees affected by an application for certification or by a declaration of termination of bargaining rights and desiring to