[1999] OLRB REP. MARCH/APRIL 180
2842-98-U; 2846-98-R; 3070-98-U CFM Majestic Inc., Applicant v. United Steelworkers of America, Responding Party; United Steelworkers of America, Applicant v. CFM Majestic Inc., Responding Party
BEFORE: Timothy W Sargeant, Vice-Chair.
APPEARANCES: Michael Horan for the employer; Paula Turtle for the union
DECISION OF THE BOARD; April 8, 1999
1These three files were scheduled to be heard on the same day. File 3070-98-U is an application brought pursuant to section 96 by the United Steelworkers of America (the "Union") that CFM Majestic Inc. (the "Company") has violated sections 70, 72, 76, 86 and 96 of the Labour Relations Act, 1995 (the "Act"). File No. 2842-98-U is an application by the Company that the Union has violated section 76 of the Act. Both applications in addition to other remedies, seek remedies pursuant to section 11 of the Act. File No. 2846-98-R is an application for certification filed by the Union.
2In relation to Board File No. 2846-98-R, as noted in Board decision dated November 25, 1998 this is the second application for certification. The Company filed a response to this application for certification and gave timely notice under section 8.1 of the Act. One of the issues raised by the Company is that the Union does not have the requisite 40% support in the agreed upon bargaining unit and therefore in accordance with the provisions of section 8.1(5)7 this application should be dismissed.
3In relation to the certification application the parties agreed upon the following bargaining unit description:
"all employees of CFM Majestic Inc. in the City of Mississsauga, save and except supervisors, persons above the rank of supervisor, office, clerical and sales staff and professional engineers".
4Pursuant to a Board order, a vote was held on November 27, 1998 and the ballot box was sealed. This was as a result of a reconsideration decision dated November 27, 1998 where the Board found it could "not be absolutely certain that the percentage of the individuals in the bargaining unit who appear to be members of the trade union is 40 percent or more". It is to be noted in an earlier decision dated November 25, 1998 the ballot box had not been sealed.
5At the vote held on November 27, 1998, 452 persons voted. Of the 452 persons who voted 71 votes were segregated. The Union challenged a number of individuals on the voters' list that for a variety of reasons, for example that certain individuals fell outside the scope of the bargaining unit as being either managerial or clerical or that certain individuals were unknown to the Union (the "unknowns").
6In relation to the "unknowns", the Company engages several employment agencies to supply workers. As one of its allegations the Union has taken the position (see Board File No. 3070-98-U) that the Company violated,
"sections 70, 72 and 76 of the Act by seeking to interfere in the formation of a Trade Union by hiring workers, bringing workers into the workplace or otherwise adding workers' names to the list of employees submitted with the responses filed to the Union's application for certification. The Union states that this act was done in whole or in part for the purpose of defeating the Union's application for certification by, inter alia, attempting to ensure that the Union did not have the 40% card support arguably required by section 8 of the Act.
7At a Board hearing held on January 7, 1999 the parties argued as to how these matters should proceed. The Union wished to bifurcate the issues and first hear evidence of the challenges and determine whether the Union had support of 40% of the individuals in the agreed upon bargaining unit. The Company argued that the issues should not be so bifurcated as the same evidence would be relevant to all issues and in the long run such procedure would only lengthen the hearing. At the hearing the Board ruled orally that it would not bifurcate the hearing and that all matters would be heard together as the matters appeared to require common evidence and could not easily be segregated.
8The Board also issued a written order on January 7, 1999 requiring certain production by the Company to the Union.
9By letter dated February 3, 1999 counsel for the Union filed a request for reconsideration under Section 114 of the Act of the procedural ruling made on January 7, 1999.
10At the hearing held on February 8, 1999 a number of other issues were raised. It was determined by the Board that at a hearing to be held on February 16, 1999 the following issues would be heard by the Board:
(a) the request for reconsideration and in conjunction with such request submissions as to the interpretation of section 8.1 of the Act;
(b) a number of issues regarding new or changed positions in regards to the voters' list; and
(c) the Union's application to have the Company's section 96 complaint (Board File No. 2842-98-R) dismissed on the grounds that it does not disclose a prima facie case.
11At the hearing held February 16, 1999 the parties fully presented submissions and arguments on the above issues.
12On the issue of reconsideration Counsel for the Union takes the position that having received production it was able to determine that twenty persons on the voters' list had not been present on the date of the application for certification nor worked thereafter. Counsel for the