Teamsters, Chauffeurs, Warehousemen and Helpers and Helpers, Local No. 880 v. 629619 Ontario Ltd. c.o.b. First Choice Haircutters
3148-99-R Teamsters, Chauffeurs, Warehousemen and Helpers and Helpers, Local No. 880, Applicant v. 629619 Ontario Ltd. c.o.b. First Choice Haircutters, Responding Party.
BEFORE: Patrick Kelly, Vice‑Chair and Board Members J. A. Rundle and H. Peacock
DECISION OF PATRICK KELLY, VICE-CHAIR, AND BOARD MEMBER H. PEACOCK; January 31, 2000.
DECISION OF THE BOARD; January 31, 2000
This is an application for certification. In Board File No. 2992-99-R, the same applicant applied for certification in respect of employees of the same responding party, but at a different street location of the responding party’s operation. The responding party in that application took the position that the only appropriate bargaining unit would be one encompassing all seven of its locations. The Board, differently composed issued a decision on January 14, 2000 ordering a representation vote of the voting constituency based on the responding party’s larger proposed bargaining unit. The hearing in that matter is scheduled for February 14 and 15, 2000.
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”).
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 (as it did in Board File No. 2992-R) 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.
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 urged the Board not to direct a representation vote, and to exercise its discretion under section 111(3) of the Act to postpone consideration of this application pending the outcome in Board File No. 2992-99-R. The Responding party submits that a further vote will be disruptive to employees.
While we accept that another vote of the bargaining unit proposed by the responding party would be disruptive, we are of the view that the interests of the employees in this application to have an expeditious vote within the normal scheme contemplated by the Act outweighs any consideration of disruption in respect of the unit proposed by the union. However, in the circumstances we direct that the ballot box be sealed and the ballots not counted until the Board so orders or the parties agree.
In light of the fact that the Board in File No. 2992-99-R directed that the representation vote be taken in the voting constituency based on the responding party’s proposed larger bargaining unit, it is unnecessary to do so again. If the responding party’s position concerning the appropriate bargaining unit in that matter succeeds, that will dispose of the application in this case. Accordingly, we direct a representation vote be taken of the individuals in the following voting constituency:
all employees of 629619 Ontario Ltd., c.o.b. First Choice Haircutters working at 475 Tecumseh Road East, in the City of Windsor, Ontario, save and except Managers and persons above the rank of Manager.
The vote will be held on February 1, 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 January 25, 2000, the certification application filing date, are eligible to vote. Employees having an employment relationship on January 25, 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. The ballot box will be sealed and the ballots shall not be counted until the Board so orders or the parties agree.
There is a dispute between the parties as to whether or not the positions of non-licenced hairstyists 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, 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.
The matter is referred to the Registrar. It should be listed with Board File 2992-99-R
“Patrick Kelly”
for the majority
DECISION OF BOARD MEMBER J. A. JUNDLE: January 31, 2000
I dissent.
I would have postponed consideration of this application pursuant to section 111(3) of the Labour Relations Act, 1995
I also do not agree with the voting constituency chosen by the majority of the Board for the purpose of the representation vote. The Board’s usual practice in new certification applications, which is how the majority is treating the present application, is to select the voting constituency that reflects the largest proposed bargaining unit between the parties. Therefore, had I been inclined to order any vote in this matter, I would have done so on the broader voting constituency mirroring the responding party’s proposed bargaining unit.
“Judith Rundle””