[1998] OLRB REP. MARCH/APRIL 325
0302-98-R United Steelworkers of America, Applicant v. Richards-Wilcox Canada Inc., Responding Party
BEFORE: Sharon C. Laing, Vice Chair, and Board Members J. A. Rundle and R. R. Montague.
DECISION OF SHARON C. LAING, VICE-CHAIR AND BOARD MEMBER R. R. MONTAGUE; April 27, 1998
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.
The employer in this matter submits that the applicant has not obtained the requisite forty percent support of its proposed bargaining unit, pursuant to section 8(2) of the Act. It is submitted that the membership evidence submitted by the union may not represent evidence of employees working at the specific location applied for in the application and/or may be representative of individuals who were on indefinite layoff on the date of the application. In addition, the responding party takes issue with the timeliness of the membership evidence if it is dated more than six months prior to the application date.
The Board has confirmed, based on the material filed by both parties, that the membership evidence filed relates to the location sought by the union in its application.
The membership evidence relied upon by the applicant consists of membership cards which were signed more than six months but less than one year, prior to the application date. The Board's practice in dealing with the timeliness of membership evidence was set out in Charterways Transportation, [1979] OLRB Rep. Nov. 1068:
The membership evidence filed by the applicant indicates that the last monetary payment to the applicant by any employee in the bargaining unit was made in January of 1979. that is more than six months but less than a year prior to the application date. The Board's long standing practice in such situations is to exercise its discretion under section 7(2) of the Act and direct the taking of a representation vote. See: W.N. Construction (Ottawa) Ltd.. [1986] OLRB Rep. Sept. 645. We are not satisfied that the circumstances of this case warrant a departure from this practice.
More recently, the Board in assessing combination application for membership/membership cards in the context of a certification application observed the following in Sudbury and District Health Unit, [1997] OLRB Rep. Jan. 139:
Given the statutory changes in the Act as a result of Bill 7 and the Board's practice, in our view the Board may properly have regard to membership evidence in the form of 'combination" cards which were signed between six months and one year prior to the date of application.
In the circumstances and having regard to the Board's comments cited above, 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 Richards-Wilcox Canada Inc. in the City of Mississauga. save and except forepersons and persons above the rank of foreperson, office, clerical and sales staff.
The vote will be held on April 29, 1998. 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 April 22, 1998, the certification application filing date, are eligible to vote. Employees having an employment relationship on April 22, 1998, 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 may be a dispute between the parties as to whether or not group leaders, supervisors and those above the rank of supervisor 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.
The responding party is directed to post copies of this decision and of the "Notice of Vote and of Hearingle 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 J. A. RUNDLE; April 27, 1998
The majority of the membership evidence relied on in this case consists of membership cards which were signed well in excess of six months, but less than one year, prior to the application date.
At a point in time where the legislation provides, as a matter of course, the determination of representation rights through the holding of representation votes it is not sufficient to cure such untimely membership evidence, which may be characterized as deficient, through the same mechanism.