Ontario Public Service Employees Union v. Windsor Casino Limited
3812-99-R Ontario Public Service Employees Union, Applicant v. Windsor Casino Limited, Responding Party v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Intervenor.
BEFORE: Timothy W. Sargeant, Vice-Chair, and Board Members J. A. Ronson and R. R. Montague.
DECISION OF THE BOARD; May 4, 2000
The style of cause is hereby amended to reflect the correct name of the responding party: “Windsor Casino Limited”.
This is an application for certification
A vote was ordered by the Board in a decision dated March 24, 2000. The vote was to take place on March 28, 2000. Pursuant to that decision the ballot box was sealed.
A hearing was held on May 1, 2000 to consider whether or not the ballots should be counted.
The responding party in its original response had given notice under 8.1 of the Labour Relations Act, 1995 (the “Act”). The Board was informed at the hearing that the responding party had withdrawn its 8.1 response. The responding party, however, still maintained its position that all the individuals on the voting list included in the applicant’s bargaining unit were not employees in accordance with section 1 (3)(b) of the Act. The responding party therefore submitted that the bargaining unit applied for by the applicant was not an appropriate bargaining unit. In the alternative the employer submitted if the individuals named on the voters list were found to be employees then a classification of individuals referred to as dual vote staff should also be included in the proposed bargaining unit. Prior to the hearing, the applicant’s position was that the dual vote staff were managerial and thus excluded pursuant to section 1(3)(b) of the Act. The dual vote staff ballots were therefore segregated.
The applicant asked that the ballots be counted, and in a subsequent request on the same day, that the segregated ballots be counted. The responding party opposed both requests.
The majority of the Board having heard the submissions of the applicant and responding party (Mr. Ronson in dissent) ordered that the ballots be counted, and in a subsequent ruling (Mr. Ronson in dissent) that the segregated ballots also be counted. In regards to counting the segregated ballots the Board deemed that the applicant’s objection to counting the segregated ballots as being withdrawn, as it was the applicant who had sought the ruling that the segregated ballots be counted.
Given the result of the vote it was not necessary to make any determination on the responding party’s position that the applicant’s proposed bargaining unit was not appropriate. Neither was it necessary to determine whether or not the National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW–Canada) should be granted intervenor status.
The ballots have been counted and the results announced, the applicant withdrew all other matters that had been raised concerning the conduct of the vote.
On the taking of the representation vote directed by the Board, not more than fifty per cent of the ballots cast by the alleged employees in the proposed bargaining unit were case in favour of the applicant.
In the circumstances the application is therefore dismissed.
The Board will not consider another application for certification by the applicant as the bargaining agent of the alleged employees in the bargaining unit until one year elapses from the date of this decision.
The Registrar will destroy the ballots cast in the representation vote taken in this matter following the expiration of 30 days from the date of this decision unless a statement requesting that the ballots should not be destroyed is received by the Board from one of the parties before the expiration of such 30 day period.
The responding party is directed to post copies of this decision immediately, adjacent to all copies of the “Notice of Vote and Hearing” posted previously. These copies must remain posted for at least fifteen calendar days from the receipt of this decision
“Timothy W. Sargeant”
for the Board