1054-00-R International Union of Operating Engineers, Local 793, Applicant v. Hertz Equipment Rentals, Responding Party.
BEFORE: Caroline Rowan, Vice-Chair, and Board Members J. A. Ronson and R. R. Montague.
DECISION OF CAROLINE ROWAN, VICE-CHAIR, AND BOARD MEMBER R. R. MONTAGUE; July 11, 2000
1This is an application for certification.
2The Board finds that the applicant is a trade union within the meaning of section 1(1) of the Labour Relations Act, 1995 (the "Act").
3It 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.
4The 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.
5The 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.
6The Board directs that a representation vote be taken of the individuals in the following voting constituency:
all employees of Hertz Equipment Rentals employed at 310 Industrial Road, Cambridge, Ontario save and except outside sales staff, foremen and persons above the rank of foreman.
7The vote will be held on July 13, 2000. Other vote arrangements will be as determined by the Registrar and set out on the attached "Notice of Vote and of Hearing".
8All individuals who had an employment relationship with the responding party in the voting constituency on July 6, 2000, the certification application filing date, are eligible to vote. Employees having an employment relationship on July 6, 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.
9There is a dispute between the parties as to whether or not office and clerical 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.
10There is also a difference between the parties concerning the correct name of the responding party and concerning the appropriate managerial exclusions. The union proposes to exclude "foremen and persons above the rank of foreman" whereas the employer proposes to exclude "supervisors and persons above the rank of supervisor". In addition, the Board notes that the employer indicates that the correct name of the responding party is "Matthews Equipment Limited operating as Hertz Equipment Rental". If any individual is in dispute as a result of these differences, such individual shall identify himself or herself as occupying a disputed position and such individual shall 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.
11Voters will be asked to indicate whether or not they wish to be represented by the applicant in their employment relations with the responding party.
12The 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.
13Any 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).
14The matter is referred to the Registrar.
"Caroline Rowan"
for the majority
DECISION OF BOARD MEMBER J. A. RONSON; July 11, 2000
The employer has pleaded that section 8.1 applies. As a result, there should be no vote until the issues are dealt with at a hearing. If a vote is ordered, then at the least, the ballot box should be sealed until the section 8.1 issues are resolved.
"J. A. Ronson"