Milk and Bread Drivers, Dairy Employees, Caterers and Allied Employees, Local No. 647 v. National Specialty Cakes Inc.
1853-00-R; 2138-00-U Milk and Bread Drivers, Dairy Employees, Caterers and Allied Employees, Local No. 647, Applicant v. National Specialty Cakes Inc., Responding Party.
APPEARANCES: David W. Cass and David Fodor for the applicant; Frank Angeletti, Glen Holmes, Myfanwy Marshall, Elizabeth Avery and Raju Gokhruwala for the responding party.
BEFORE: Brian McLean, Vice-Chair.
DECISION OF THE BOARD; November 8, 2000
1Board File No. 1853-00-R is an application for certification. Board File No. 2138-00-U is a complaint under section 96 of the Labour Relations Act, 1995 (“the Act”) in which the applicant alleges violations by the responding party of sections 70, 72, 76 and 86 of the Act.
2A representation vote was held with respect to the application for certification on September 29, 2000. Eight employees voted in favour of the union, seven against. There were two segregated ballots, both of which were “status” challenges by the union. A hearing was commenced on October 30, 2000 to deal with the two status challenges. Following the commencement of the hearing, the union withdrew its challenge to the status of the two individuals who cast ballots. Both ballots were cast against the applicant. Accordingly, but for its application under section 96 of the Act, the union’s application for certification would now be dismissed.
3Board File No. 2138-00-U was also scheduled to be heard on October 30, 2000. However, the employer claimed that it had not received notice of that fact and it was clear that the employer’s counsel had not received the Board’s notice combining the two matters or the union’s application itself. One way or another employer counsel should have been notified, even if, as claimed, his client was not. Apart from that, it was clear that the status issue might be determinative of the dispute and that the hearing was not going to be completed in the days then scheduled if both matters were heard together. Accordingly, the Board deferred the proceeding in Board File No. 2138-00-U.
4The union has requested that the Board set new dates for Board File No. 2138-00-U as soon as possible. Since the current panel’s availability is limited, and since the first available consent dates are late in December 2000, they request that a new panel hear the matter. The employer asserts that this panel is seized and that the hearing ought to proceed on consent dates.
5In my view, I am not seized of Board File 2138-00-U since I have not commenced hearing the matter in any fashion. Moreover, only a small portion of the evidence heard in connection with Board File 1853-00-R would apply to Board File No. 2138-00-U. Having a new panel hear the matter would result in only minimally extending the proceeding. I am also mindful of the fact that this is a certification matter (albeit now indirectly) and the union had a justifiable expectation of hearing Board File No. 2138-00-U proceed on October 30, 2000. Under all of these circumstances, the matter should proceed at the earliest opportunity.
6This matter is referred to the Registrar to be scheduled for hearing.
“Brian McLean”
for the Board