Ontario Labour Relations Board
[1997] OLRB REP. JULY/AUGUST 730
1143-97-R United Steelworkers of America, Applicant v. Provincial Security Services Ltd., Responding Party
BEFORE: Lee Shouldice, Vice-Chair.
APPEARANCES: Jeffrey Sack and Brando Paris for the applicant; Brett Christen and Rocco Longhi for the responding party; Pierre Sadik and Frank Kelly for Canadian Union of Professional Security-Guards.
DECISION OF THE BOARD; August 13, 1997
1This is an application for certification. By way of decision dated July 14, 1997, a panel of the Board (differently constituted) determined that a representation vote ought not to be ordered in this proceeding until the timeliness of the application, and the validity of a voluntary recognition agreement entered into between the responding party and the Canadian Union of Professional Security-Guards, was determined by the Board. These issues came on for hearing before me on August 11, 1997.
2At the outset of the hearing, counsel advised that the Canadian Union of Professional Security-Guards was withdrawing its intervention in this proceeding, and that the only remaining issues in dispute between the applicant and the responding party related to the taking of a representation vote. After a brief recess, the hearing resumed and all issues, with one exception, had been resolved between the parties. Argument was entertained on the remaining issue and the parties were advised that a decision would issue which would direct the representation vote and resolve the one issue remaining in dispute. This is that decision.
3The issue that could not be resolved between the parties centres around the request of the applicant that it be provided with an opportunity to mail written materials to the employees of the responding party in such a manner that the addresses of those employees would not be disclosed. In essence, the applicant has requested that the process adopted by the Board in Metropol Security Services, [1993] OLRB Rep. Nov. 1154 be ordered by this panel of the Board. In that case, the Board directed that the employer produce labels containing the names and addresses of each person on the voters' list. A representative of the trade union was to attend at the offices of the employer with sealed envelopes containing the information to be communicated by the trade union and representatives of both parties were to label the sealed envelopes and arrange for the mailing of the information. All reasonable costs associated with the mailing of that information were to be borne by the trade union. Counsel for the applicant noted that there are 36 different buildings which are the workplaces for the voters in this proceeding, and that they are widely dispersed over the Greater Toronto Area.
4Counsel for the responding party resisted the request by the applicant. In counsel's submission, such an order is extraordinary in nature, and the Metropol Security Services decision referred to above ought to be limited to its particular facts. Counsel noted that in Metropol Security Services, there were 1100 voters and over 200 worksites. Counsel noted that the applicant had been provided with a list of names of the employees, and that the responding party was prepared to provide the applicant with a list of the sites and site addresses where voters work. Counsel argued that to make such an order would provide the applicant with direct access to the employees of the responding party, at their homes, without their consent. Counsel referred to an endorsement of the Board in North American Security Services Inc. (Board File 1305-97-R, July 29, 1997, unreported), in which the majority of the Board was of the view that such intervention was unwarranted.
5I have considered all of the submissions of counsel and I have carefully reviewed both of the authorities referred to above. I am of the view that the order requested by the applicant ought to issue in the circumstances of this case. There can be no doubt that the factual context of this proceeding (approximately 140 voters, with the voters working in 36 different buildings) is different than that which was before the Board in Metropol Security Services.
6Here, though, there is an added dimension, one which was relied upon by counsel for the applicant in his reply to opposing counsel's argument. This application was filed with the Board on July 3, 1997. Normally, a representation vote would be ordered within 5 days of the application date. However, the applicant conceded that in the circumstances of this particular application a 5 day vote was not realistic. It was desired by the applicant that voting arrangements be made by the Board which would ensure a vote within two weeks of the application date. As a result of the intervention by the Canadian Union of Professional Security-Guards, a panel of the Board deferred the taking of a representation vote in order to resolve the issues I identified above. These issues have now been resolved. The result of all of this is, however, a month's delay in the ordering (and, ultimately, in the taking) of the representation vote.
7Notwithstanding that time is of the essence in labour relations matters, it is true that Board proceedings can be (and are) delayed for various reasons. A month's delay in the taking of the representation vote in this proceeding could, in that context, be viewed as a not unexpected result. However, having reviewed the file, it is evident to me that the voluntary recognition agreement relied upon by both the responding party and the Canadian Union of Professional Security-Guards had no legitimate basis for its existence. It was not until late in the week before the hearing of this proceeding that counsel for the Canadian Union of Professional Security-Guards conceded that it had signed membership cards of only 11 out of the roughly 140 strong workforce at the time that the voluntary recognition agreement was signed. Based upon longstanding Board jurisprudence, the document said to be a voluntary recognition agreement could never have credibly established a bar to this application.
8At the end of the day, the intervention filed by the Canadian Union of Professional Security-Guards has delayed the timely taking of the representation vote in this proceeding. In these circumstances, I am of the view that the applicant ought to be provided with the opportunity to send its materials to each of the voters on the voters' list. There is nothing that precludes the employer from doing the same - in fact, counsel for the responding party implied during the course of argument that his client would likely do so.
9Accordingly, I make the same direction here that was made in the Metropol Security Services decision, referred to above. That is, I direct that the responding party forthwith cause to be produced labels containing the names and addresses of each of the persons on the voters' list. A representative of the applicant may attend at the offices of the responding party with sealed envelopes containing such information as the applicant wishes to communicate to the employees on the voters' list. Representatives of the responding party and the applicant shall together label the sealed envelopes and arrange for the mailing or distribution of such information. All reasonable costs associated with the mailing of such information shall be borne by the applicant.
10The Board finds that the applicant is a trade union within the meaning of section 1(1) of the Labour Relations Act, 1995.
11Having regard to the agreement of the parties, the Board further finds that:
all employees of Provincial Security Services Ltd. in the Regional Municipality of Metropolitan Toronto, the City of Mississauga, the City of Brampton, the City of Vaughan, the City of Oakville, the City of Aurora, and the City of Newmarket, save and except Mobile and Site Supervisors, persons above the rank of Mobile and Site Supervisor, office, clerical and sales staff, and persons for whom any trade union held bargaining rights as of July 3, 1997
Clarity Note: The parties agree that the sites with site supervisors as at the date of application are the following:
Sheridan College
H umber College
Centennial College
The parties further agree that shift supervisors are included in the bargaining unit
constitute a unit of employees of the responding party appropriate for collective bargaining.
12It 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.
13Raving regard to the agreement of the parties as to the appropriate bargaining unit, the Board directs that a representation vote be taken of the individuals in the following voting constituency:
all employees of Provincial Security Services Ltd. in the Municipality of Metropolitan Toronto, the City of Mississauga, the City of Brampton, the City of Vaughan, the City of Aurora, and the City of Newmarket, save and except Mobile and Site Supervisors, persons above the rank of Mobile and Site Supervisor, office, clerical and sales staff, and persons for whom any trade union held bargaining rights as of July 3, 1997.
14The vote will be held on August 25 and 26, 1997. Other vote arrangements will be as directed by the Registrar and set out on the attached Notice of Vote and of Rearing.
15All individuals who had an employment relationship with the responding party in the voting constituency on July 3, 1997, the certification application filing date, are eligible to vote. Employees having an employment relationship on July 3, 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.
16The responding party is directed to post copies of this decision and of the "Notice of Vote and of Rearing" adjacent to the "Notice to Employees of Application for Certification". These copies must remain posted for 30 days.
17Any party or person who wishes to make representations to the Board about any issue remaining in dispute which relates to the application for certification 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.
18The matter is referred to the Registrar.