Ontario Labour Relations Board
2346-00-R International Union of Operating Engineers, Local 793, Applicant v. Canadian Waste Services Inc., Responding Party.
BEFORE: Patrick Kelly, Vice‑Chair, and Board Members J. A. Rundle and R. R. Montague
DECISION OF PATRICK KELLY, VICE-CHAIR, AND BOARD MEMBER R. R. MONTAGUE; November 14, 2000
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 “Act”).
It appears to the Board on an examination of only the information provided in the application and the information and membership evidence filed by the applicant (see section 8(3) of the Act), 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 responding party disputes the applicant’s estimate of the number of employees in the applicant’s proposed bargaining unit. Furthermore, the responding party proposes a different bargaining unit from that proposed by the applicant and it contends that the applicant’s bargaining unit could not be appropriate. It gives notice under section 8.1 of the Act.
The Board finds that the bargaining unit described in the application could be appropriate. After comparing the membership evidence provided by the applicant as against the information provided by the responding party, the Board finds that the numerical difference between the parties is not significant. The applicant has established sufficient membership support in its proposed bargaining unit for the purposes of obtaining a representation vote and having that vote counted.
The Board directs that a representation vote be taken of the individuals in the following voting constituency:
all employees of Canadian Waste Services Inc. employed at or out of Canadian Waste Services Inc.’s facility on Mohawk Road and 20 Morrison Road, Gate 3 in Brantford, Ontario, save and except for office and clerical staff, supervisors and persons above the rank of supervisor and persons for whom any trade union held bargaining rights as of November 7, 2000.
There may be a dispute concerning the location of the facility covered by the application. The applicant contends that the facility is on Mohawk Road in Brantford, while the responding party’s proposed bargaining unit refers to 20 Morrison Road, Gate 3 in Brantford. Accordingly, employees at either facility are entitled to cast a ballot in the representation vote. The ballots of employees located at the Mohawk Road location shall be segregated and counted separately from those cast by employees at the 20 Morrison Road, Gate 3 location.
The responding party disagreed with the applicant’s submission that the representation vote should be held on the fifth day following the filing of the application, on the basis that not all employees affected by the application will have an opportunity to review nd consider the materials posted pursuant to this application. The responding party makes no submissions concerning when the vote should be held. The Board does not consider the responding party’s reasons to be sufficiently specific or compelling to justify the delay of the representation vote. The vote will be held on November 16, 2000. 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 November 8, 2000, the certification application filing date, are eligible to vote. Employees having an employment relationship on November 8, 2000, 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 is a dispute between the parties as to whether or not sales 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.
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 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.
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, other than status disputes, 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. Representations with respect to any status dispute must be made in accordance with the directions provided in Information Bulletin No. 4: Status Disputes in Certification Applications (Non-Construction).
The matter is referred to the Registrar.
“Patrick Kelly”
for the majority
DECISION OF BOARD MEMBER J. A. RUNDLE; November 14, 2000
I dissent.
A plain reading of sections 8 and 8.1 of the Labour Relations Act, 1995 (the “Act”) requires the Board to seal the ballot box, when as in the instant matter, an employer has given notice that it disagrees with the trade union's estimate of the number of individuals in the unit described in the application for certification.
Subsection 8.1(4) requires the Board to seal the ballot box unless the trade union and the employer agree otherwise. Accordingly, I would have directed the ballot box to be sealed.
“J. A. Rundle”