[1996] OLRB Rep. November/December 950
2244-96-R United Food and Commercial Workers International Union, Applicant v. K-Mart Canada Limited, Responding Party
BEFORE: K. G. O'Neil, Vice-Chair, and Board Members R. M. Sloan and H. Peacock.
DECISION OF K. G. O'NEIL, VICE-CHAIR, AND BOARD MEMBER H. PEACOCK; November 5, 1996
This is an application for certification.
The Board finds that the applicant is a trade union within the meaning of section 1(1) of the Labour Relations Act, 1995.
It appears to the Board on an examination of the evidence before it, 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. There is a difference in the numbers of employees in the bargaining unit given by the union and the responding party. However, the union filed cards for more than 40%, even using the employer's higher number.
The Board directs that a representation vote be taken of the individuals in the following voting constituency:
all employees of K-Mart Canada Limited employed in the City of St. Thomas, save and except department managers, persons above the rank of department manager, loss prevention officers and students employed in a co-operative work program.
The vote will be held on November 7, 1996. Other vote arrangements will be as determined by the Registrar and set out on the attached "Notice of Vote and of Hearing".
All individuals who had an employment relationship with the responding party in the voting constituency on October 31, 1996, the certification application filing date, are eligible to vote. Employees having an employment relationship on October 31, 1996 the certification application filing date, include employees who were not at work on that date, so long as there is a reasonable expectation of their return to employment.
There is a minor difference in the wording of the bargaining units in the application and response, the word "employed" appearing after the employer's name in the first line of the union's proposed bargaining unit. It would not appear this has any effect on who would be in the bargaining unit. If any person appears to cast a ballot and is disputed by the parties due to any issue that is not apparent, that person shall be entitled to cast a ballot. Any ballot cast by such an individual shall be segregated and not counted until the Board so orders or the parties agree.
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.
The employer has raised an issue relating to a prior application for certification by Local 175 of the United Food and Commercial Workers noting that application was dismissed and a one year bar imposed by Board decision dated April 25, 1996. The employer submits that the applicant in this application should be covered by the bar, and thus this application should be dismissed. Further the employer requests that the ballot box be sealed pending the determination of this issue. As there is a practical advantage to counting the ballots, in that one would then know if the issue were necessary to decide, the majority of the Board is of the view the ballot box should be opened and counted and the issue dealt with, if necessary after the vote.
The responding party is directed to post copies of this decision and of the "Notice of Vote and of Hearing" adjacent to each of the posted copies of the "Notice to Employees of Application for Certification". These copies must remain posted for 30 days.
Any party or person who wishes to make representations to the Board about any issue remaining in dispute which relates to the application for certification, including any matters relating to the representation vote, must file a detailed statement of representations with the Board and deliver it to the other parties, so that it is received by the Board within seven days (excluding Saturdays, Sundays and holidays on which the Board is closed) of the date on which the vote is taken.
The matter is referred to the Registrar.
DECISION OF BOARD MEMBER R. M. SLOAN; November 5, 1996
I dissent.
The question of whether or not an affiliated union or in fact the same union in a different guise can apply for certification prior to the expiration date of a bar is of great significance and should be decided before a vote is taken, but once the vote has been ordered by the Board the ballot boxes should remain sealed pending the determination of this most important issue.