[1999] OLRB REP. NOVEMBER/DECEMBER 376
0475-99-R; 0500-99-R International Association of Machinists and Aerospace Workers, Applicant v. Bombardier Aerospace, Responding Party; National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Applicant v. Bombardier Aerospace, Responding Party v. The International Association of Machinists and Aerospace Workers, Local 712 (IAMAW), Intervenor
Certification - Membership Evidence - Representation Vote - TAM and CAW filing certification applications one day apart with respect to same group of employees - Board rejecting submission that it should consider alleged revocation of memberships when assessing whether applicant union has 40 percent support - Board finding that not less than 40 percent of individuals in bargaining unit were members of each applicant union - Board treating applications as if filed on same date and directing representation vote - Board directing that both applicants' names appear on ballot
BEFORE: Laura Trachuk, Vice-Chair.
DECISION OF THE BOARD; May 21, 1999
1The Board has now received submissions from the applicants pursuant to its direction of May 19, 1999. No submissions were received from the responding party.
2After reviewing the submissions the Board finds that it is appropriate to hold one representation vote in both applications.
3The International Association of Machinists and Aerospace Workers (IAMAW) submits that the National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAWCanada) does not represent 40 per cent of the members of the bargaining unit because 18 individuals revoked their membership. However section 8(2) and (3) of the Labour Relations Act, 1995 specify that the Board's determination that 40 per cent or more of the individuals in the proposed bargaining unit appear to be members of the union at the time the application was filed may be based only on the information in the application and the information accompanying it. It appears to the Board on an examination of the evidence before it that not less than 40 per cent of the individuals in the bargaining unit proposed in the applications (or subsequently agreed to) were members of the applicant trade unions at the time the applications were made.
4It makes good labour relations and practical sense in the circumstances of these applications for the Board to exercise its discretion to treat Board File No. 0500-99-R as if it were filed on the same day as Board File No. 0475-99-R. The applications were filed only one working day apart. The employees are currently faced with notices of application for both files which indicate that a vote may be held within five days. If both applicants plus an "no union" option are on the ballot the real choice the employees are making will be manifest. In these circumstances in which the Board had not yet even considered the first application and no vote has been ordered, it is appropriate for the Board to exercise its discretion to treat the second application as if it were filed on the same day as the first.
5The Board directs that a representation vote be taken of the individuals in the following voting constituency:
all employees of Bombardier Aerospace at 1500 Airport Road, Hanger No. 1, save and except supervisors, those above the rank of supervisor, office, clerical, engineering maintenance staff and summer students.
6The vote will be held on May 27, 1999. Other vote arrangements will be as determined by the Registrar and set out on the attached "Notice of Vote and of Hearing".
7All individuals who had an employment relationship with the responding party in the voting constituency on May 14, 1999, the certification application filing date, are eligible to vote. Employees having an employment relationship on May 14, 1999, 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.
8There may be a dispute between the parties as to whether or not engineering staff other than maintenance staff 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.
9Voters will be asked to indicate whether or not they wish to be represented by the International Association of Machinists and Aerospace Workers; the National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) or not to be represented by any union in their employment relations with the responding party.
10The 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.
11Any 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 five days (excluding Saturdays, Sundays and holidays on which the Board is closed) of the date on which the vote is taken.
12The matter is referred to the Registrar.