[1997] OLRB REP. MAY/JUNE 554
0560-97-R United Food and Commercial Workers Union, Local 1977, Applicant v. White Rose Crafts and Nursery Sales Limited, Responding Party
BEFORE: Timothy W. Sargeant, Vice-Chair, and Board Members S. C. Laing and H. Peacock.
DECISION OF TIMOTHY W. SARGEANT, VICE-CHAIR, AND BOARD MEMBER H. PEACOCK; May 20, 1997
This is an application for certification.
The Board finds that the applicant is a trade union within the meaning of section 1 (]) of the Labour Relations Act, 1995.
The responding party asks that this application be dismissed "forthwith without recourse to a hearing". A certification application had been filed by the United Food and Commercial Workers International Union on February 21, 1997. A vote had been ordered and a decision issued March 14, 1997 which stated in part:
- The Board will not consider another application for certification by the applicant as bargaining agent of the employees in the bargaining unit until one year elapses from the date of decision.
The responding party submits that this is the same bargaining unit and that the applicant in the first application, the United Food and Commercial Workers International Union, and the applicant in this matter "are one and the same for the purposes of the Labour Relations Act, 1995 (the "Act") and more specifically, subsections 10(3) and 111(2)(b) thereof'.
In the alternative, the responding party requests "that the Board direct that no vote be held until a ruling can be made on this threshold question before incurring workplace disruption and uncertainty associated with the holding of a second representation vote, within less than three months, for the same group of employees".
The Board is not prepared to accede to either request. The matter of whether the bar set out in the decision of March 14, 1997 is effective against this applicant may be raised in accordance with paragraph 14 of this decision. Further, in the circumstances the Board will direct that a vote take place in accordance with principles set out in the Corporation of the City of Toronto, [1996] OLRB July-Aug. 552.
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.
The Board directs that a representation vote be taken of the individuals in the following voting constituency:
all employees of White Rose Crafts and Nursery Sales Limited employed at 525 Hespeler Street. Cambridge. Ontario. N1R 6J2, save and except the manager, the assistant manager, persons above the rank of assistant manager, and summer seasonal employees.
The vote will be held on May 22, 1997. 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 May 14, 1997, the certification application filing date, are eligible to vote. Employees having an employment relationship on May 14, 1997, 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.
II, There is a dispute between the parties as to whether or not the position of bookkeepers should be included in the bargaining unit. If any individual holding such a position wishes to cast a ballot, the individual shall identify himself or herself as occupying a disputed position and such individual shall then 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.
13, 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.
14, 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 MEMBERS. C. LAING; May 20, 1997
Having regard to the issue raised by the employer, in my view the Board ought to seal the ballot box pending a determination of whether the Board should exercise its discretion to refuse to entertain a subsequent application by the applicant in respect of a bargaining unit whose members have, within the preceding year, been the subject of an unsuccessful application, and I would so order.