United Steelworkers of America v. Universal Showcase Ltd., 2000 CanLII 8320

2064-00-R United Steelworkers of America, Applicant v. Universal Showcase Ltd., Responding Party v. United Brotherhood of Carpenters and Joiners of America, Local 1072, Intervenor.

BEFORE: Patrick Kelly, Vice-Chair, and Board Members J. A. Rundle and H. Peacock.

APPEARANCES: Luiza Monteiro appeared on behalf of the applicant; Mark Stone, Rob Turk and Dan Robichaud appeared on behalf of the responding party v. Marisa Pollock appeared on behalf of the intervenor.

DECISION OF THE BOARD; December 21, 2000

1. This is an application for certification.

2. On the scheduled day of the hearing in this matter, the parties entered into a memorandum of agreement, which provides as follows:

Board File No.: 2064-00-R

ONTARIO LABOUR RELATIONS BOARD

IN THE MATTER OF AN APPLICATION UNDER SECTION 96 OF THE ACT

B E T W E E N:

UNITED STEEL WORKERS OF AMERICA (the “Applicant” or the “USWA”)

• and -

UNIVERSAL SHOWCASE LTD. (the “Responding Party” or the “Employer”)

• and -

UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, LOCAL 1072 (the “Intervenor” or the “Carpenters”)

MEMORANDUM OF AGREEMENT

WHEREAS the USWA has commenced the above referenced Application for Certification with respect to certain employees of the Employer;

AND WHEREAS the Carpenters have intervened in the matter on the basis that the Carpenters already represent certain of the Employer’s employees in the City of Vaughan;

AND WHEREAS there is an issue between the parties regarding whether the USWA Application for Certification is timely, on the basis of the Employer’s position that the Carpenters already represent all of the Employer’s employees in the City of Vaughan;

AND WHEREAS the Carpenters hold bargaining rights for all employees of Global Store Fixtures Inc. (“Global”) employed in the City of Vaughan and all employees of Arbor Store Interiors Inc. (“Arbor”) in the City of Toronto;

AND WHEREAS Global and Arbor were amalgamated with and into the Employer effective September 1, 1999 such that Global and Arbor no longer exist as corporations and the Employer continues to exist as the amalgamated corporation effective September 1, 1999;

AND WHEREAS the parties agree that there has been a sale of Arbor’s business and Global’s business to the Employer within the meaning of section 69 of the Labour Relations Act, 1995, and that the Employer intends to intermingle employees represented by the USWA with employees represented by the Carpenters following the move described below;

AND WHEREAS the parties also agree that the Carpenters now represent the former employees of Global and Arbor that are now employed by the Employer;

NOW THEREFORE the parties agree to settle all outstanding issues in Board File No. 2064-00-R as follows, and agree to request that the Board incorporate the following settlement in their decision as a consent order:

1. The Board shall issue a certificate to the USWA. The bargaining unit shall be described as follows:

All employees of Universal Showcase Ltd. at 101 Marycroft Avenue, Woodbridge, Ontario and at 8150 Keele Street, Concord, Ontario, and the same employees when their work is transferred to 2771 Rutherford Road, Concord, Ontario, or other locations within the City of Vaughan, save and except plant manager and persons above the rank of plant manager, office, technical, engineering, clerical and sales staff.

2. The Carpenters shall continue to represent the employees at 350 Jacob Keffer Parkway, Concord, Ontario, 31 Casmir Court, Concord, Ontario and the former Arbor employees now employed at 52 Orfus Road, Toronto, Ontario, and the same employees when their work is transferred to 2771 Rutherford Road, Concord, Ontario, or other location within the City of Vaughan.

3. The parties acknowledge that the Employer will be moving all of its operations to 2771 Rutherford Road, Concord, Ontario, and that it is anticipated that the move will be completed by the end of April 2001. It is also acknowledged that the Employer may choose to keep some employees at the Keele Street location.

4. Following the move, but prior to the vote described below, all employees represented by the Carpenters shall continue to be represented by the Carpenters, and all employees represented by the USWA shall continue to be represented by the USWA.

5. During this interim period described in paragraph 4, if the Employer hires any new employees, the employees shall be represented by the USWA if their work is predominantly in metal and by the Carpenters if their work is predominantly in wood. Where an employee is not predominantly in metal or wood, the Employer shall assign employees to each bargaining unit on an alternating basis.

6. Forty-five days after the move described in Paragraph 3 has been fully completed, the Board shall conduct a vote of all employees of Universal Showcase Ltd. in the City of Vaughan, save and except plant manager and persons above the rank of plant manager, office, technical, engineering, clerical and sales staff. Employees shall be asked whether they wish to be represented by the USWA or the Carpenters.

7. For greater certainty, the parties agree that the move described in Paragraph 3 has been fully completed when all employees who the Employer anticipates will be employed at 2771 Rutherford Road have been physically moved there.

8. No less than five working days prior to the vote described in Paragraph 6, the parties shall contact the Board to request that the vote be conducted. The vote shall be conducted in accordance with the Board’s normal practice for representation votes.

8(a) Within the five days prior to the vote date, each Union shall be entitled to have two one-half hour meetings with the employees in the bargaining unit defined in paragraph 6. The meetings shall be on the Employer’s premises during working hours, and shall take place during the last half hour of the day shift and the first half hour of the afternoon shift. The meetings shall be held on consecutive days, with the USWA addressing the employees on the first day.

9. During the interim period after the employees are moved but prior to the vote, the Employer shall have the right to intermingle any of its employees and/or their work should the Employer decide to do so, and no grievance, complaint or application concerning intermingling shall be commenced or filed by either Union. It is understood that during this interim period, Paragraphs 1, 2 and 4 continue to apply. After the interim period the parties’ rights concerning intermingling will be determined by what is negotiated between them.

10. Subsequent to the vote, the bargaining rights of the union which has lost the vote shall be terminated, and the union which has won the vote shall be declared by the Board to be the new bargaining agent for the employees in the new bargaining unit defined in Paragraph 6.

11. Any pre-existing collective agreements covering some or all of the employees in the bargaining unit described in paragraph 6 will be deemed terminated. The successful union will give notice to the Employer to bargain for a new collective agreement pursuant to the Act. The parties will negotiate a new collective agreement covering all the employees in the bargaining unit described in paragraph 6. The freeze and strike and lockout provisions of the Labour Relations Act, 1995 shall apply.

12. If the USWA wins the vote but has not already concluded a collective agreement with the Employer, the USWA shall have “just cause protection” for the employees in the bargaining unit for the period following the vote and up to any legal strike or lockout date, at which time the protection will expire. If the Carpenters win the vote, the Carpenters will have the same just cause protection to the extent it is not already provided by the extension of the collective agreement under the freeze provisions of the Act. “Just cause protection” means that the Union(s) shall have the right to go to arbitration for any discipline or discharge the Union considers to be unjust. Before going to arbitration, the Union(s) shall be obligated to meet with the Employer to try to resolve the dispute. The arbitration shall be before Frank Reilly or any other arbitrator agreed upon by the Union and the Employer. The arbitrator shall have all the powers of any arbitrator appointed pursuant to the Labour Relations Act, 1995.

13. The Board’s decision in this matter shall be posted in the Employer’s workplaces for the interim period after the move and before the vote.

“Brando Paris” December 11, 2000

United Steelworkers of America

Brando Paris

“Illegible Signature” December 11, 2000

Universal Showcase Ltd.

“Illegible Signature” December 11, 2000

United Brotherhood of Carpenters

And Joiners of America, Local 1072

3. Having regard to the memorandum of settlement the Board makes the following findings, orders and declarations:

(i) Having regard to the agreement of the parties, the Board finds that:

all employees of Universal Showcase Ltd. at 101 Marycroft Avenue, Woodbridge, Ontario and at 8150 Keele Street, Concord, Ontario, and the same employees when their work is transferred to 2771 Rutherford Road, Concord, Ontario, or other location within the City of Vaughan, save and except plant manager and persons above the rank of plant manager, office, technical, engineering, clerical and sales staff,

constitute a unit of employees of the responding party appropriate for collective bargaining.

(ii) On the taking of the representation vote directed by the Board, more than fifty per cent of the ballots cast by employees in the bargaining unit were cast in favour of the applicant.

(iii) A certificate will issue to the applicant.

(iv) The Intervenor (“the Carpenters”) shall continue to represent the employees at 350 Jacob Keffer Parkway, Concord, Ontario, 31 Casmir Court, Concord, Ontario and the former Arbor employees now employed at 52 Orfus Road, Toronto, Ontario, and the same employees when their work is transferred to 2771 Rutherford Road, Concord, Ontario, or other locations within the City of Vaughan.

(v) The Board notes the acknowledgement of the parties that the responding party (“the employer”) will be moving all of its operations to 2771 Rutherford Road, Concord, Ontario, and that it is anticipated that the move will be completed by the end of April 2001. It is also acknowledged that the employer may choose to keep some employees at the Keele Street location.

(vi) Following the move described in paragraph (v), but prior to the vote described in paragraph (vii) below, all employees represented by the Carpenters shall continue to be represented by the Carpenters, and all employees represented by the applicant (“the USWA”) shall continue to be represented by the USWA.

(vii) During this interim period described in paragraph (vi), if the employer hires any new employees, the employees shall be represented by the USWA if their work is predominantly in metal and by the Carpenters if their work is predominantly in wood. Where an employee is not predominantly in metal or wood, the employer shall assign employees to each bargaining unit on an alternating basis.

(viii) Forty-five days after the move described in paragraph (v) has been fully completed, the Board shall conduct a vote of all employees of Universal Showcase Ltd. in the City of Vaughan, save and except plant manager and persons above the rank of plant manager, office, technical, engineering, clerical and sales staff. Employees shall be asked whether they wish to be represented by the USWA or the Carpenters.

(ix) The Board acknowledges the parties agreement that the move described in paragraph (v) has been fully completed when all employees who the employer anticipates will be employed at 2771 Rutherford Road have been physically moved there.

(x) No less than five working days prior to the vote described in paragraph (viii), the parties shall contact the Board to request that the vote be conducted. The vote shall be conducted in accordance with the Board’s normal practice for representation votes.

(xi) Within the five days prior to the vote date, each union shall be entitled to have two one-half hour meetings with the employees in the bargaining unit defined in paragraph (viii). The meetings shall be on the employer’s premises during working hours, and shall take place during the last half hour of the day shift and the first half hour of the afternoon shift. The meetings shall be held on consecutive days, with the USWA addressing the employees on the first day.

(xii) During the interim period after the employees are moved but prior to the vote, the employer shall have the right to intermingle any of its employees and/or their work should the employer decide to do so, and no grievance, complaint or application concerning intermingling shall be commenced of filed by either union. It is understood that during this interim period, paragraphs (i), (iii) and (vi) continue to apply. After the interim period the parties’ rights concerning intermingling will be determined by what is negotiated between them.

(xiii)Subsequent to the vote, the bargaining rights of the union which has lost the vote shall be terminated, and the union which has won the vote shall be declared by the Board to be the new bargaining agent for the employees in the new bargaining unit defined in Paragraph (viii).

(xiv)Any pre-existing collective agreements covering some or all of the employees in the bargaining unit described in paragraph (viii) will be deemed terminated. The successful union will give notice to the employer to bargain for a new collective agreement pursuant to the Labour Relations Act, 1995, S.O. 1995, c.1, (“the Act”). The parties will negotiate a new collective agreement covering all the employees in the bargaining unit described in paragraph (viii). The freeze and strike and lockout provisions of the Act shall apply.

(xv) If the USWA wins the vote but has not already concluded a collective agreement with the Employer, the USWA shall have “just cause protection” for the employees in the bargaining unit for the period following the vote and up to any legal strike or lockout date, at which time the protection will expire. If the Carpenters win the vote, the Carpenters will have the same just cause protection to the extent it is not already provided by the extension of the collective agreement under the freeze provisions of the Act. “Just cause protection” means that the union(s) shall have the right to go to arbitration for any discipline or discharge the union considers to be unjust. Before going to arbitration, the union(s) shall be obligated to meet with the employer to try to resolve the dispute. The arbitration shall be before Frank Reilly or any other arbitrator agreed upon by the union and the employer. The arbitrator shall have all the powers of any arbitrator appointed pursuant to the Act.

(xvi) The Board’s decision in this matter shall be posted in the employer’s workplaces for the interim period after the move and before the vote.

4. 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.

“Patrick Kelly”

for the Board