Ontario Labour Relations Board
File No.: 3820-99-R Date: April 4, 2000
Between: National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Applicant v. Victoria Place, Responding Party v. Service Employees International Union, Local 220, Intervenor.
Before: Patrick Kelly, Vice‑Chair, and Board Members J. A. Ronson and D. A. Patterson.
DECISION OF THE BOARD
1This is a displacement application for certification.
2By endorsement dated March 29, 2000 the Board directed the applicant to file submissions with respect to the effect on the application of the appointment of a conciliation officer on January 17, 2000. The applicant filed its submissions, and stated that the appointment of the conciliation officer on January 17, 2000 has no impact on the timeliness of the application.
3The Board finds that the application is timely. The collective agreement expired on March 31, 2000. The conciliation officer was appointed on January 17, 2000, before the collective agreement ceased to operate. The application for certification was filed on March 22, 2000, prior to the expiry of the collective agreement. Accordingly, applying the provisions of section 67(2) of the Labour Relations Act, 1995 (“the Act) the application is timely.
4The Board finds that the applicant is a trade union within the meaning of section 1(1) of the Act.
5The employees are currently represented by the intervenor.
6It 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.
7The responding party disputes the applicant's estimate of the number of employees in the applicant's proposed bargaining unit. It gives notice under section 8.1 of the Act.
8After 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.
9The Board directs that a representation vote be taken of the individuals in the following voting constituency:
all employees of Central Park Lodges Ltd. – Victoria Place in the City of Kitchener, save and except supervisors and persons above the rank of supervisor
10The vote will be held on April 7, 2000. Other vote arrangements will be as determined by the Registrar and set out on the attached "Notice of Vote and of Hearing".
11All individuals who had an employment relationship with the responding party in the voting constituency on March 22, 2000, the certification application filing date, are eligible to vote. Employees having an employment relationship on March 22, 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.
12Voters will be asked to indicate whether they wish to be represented by the applicant or the intervenor in their employment relations with the responding party.
13The Board notes that the completed Confirmation of Posting (Form A-5) filed by the responding party indicates that only the Form C-2 (Notice to Employees of Application for Certification) was posted in the workplace. To the extent that the Application for Certification (Form A-1) has not been posted in the workplace, the responding party is directed to post the Form A-1 forthwith and file with the Board a completed Confirmation of Posting on or before April 4, 2000. To the extent that the Form A-1 has already been posted, the responding party is directed to file an amended Confirmation of Posting with the Board on or before April 4, 2000.
14The intervenor has filed a copy of a decision and Order of the Superior Court of Justice (dated March 1, 2000) in respect of a motion for an injunction brought by the intervenor against certain individuals formerly associated with the intervenor, now associated with the applicant. The intervenor argues that the holding of a representation vote would be contrary to the Order and therefore submits that the application should be dismissed without a vote. Alternatively, the intervenor argues that no vote should be held until the Board conducts a hearing with respect to the matters raised by it. In the further alternative, the intervenor argues that if a vote is ordered, the ballot box should be sealed pending a hearing.
15As the Board stated in Delhi Nursing Home, Board File No. 3645-99-R, decision dated March 15, 2000 (unreported):
It is by no means clear that the Order of the Supreme Court of Justice has any impact upon the Board’s statutory obligations to process certification applications and to give employees the opportunity to cast ballots in representation votes, and to have those ballots counted, to determine which union will represent them for the purposes of collective bargaining. The Board’s general practice is to order certification votes if the preconditions for such orders are satisfied, and to have them counted. There are several advantages to a quick count. The Board is inclined to count the ballots in representation votes and will do so unless there are compelling reasons why the ballot box should be sealed.
In order to give the intervenor an opportunity to make representations as to how the Court’s Order may possibly affect the Board’s usual processes, this matter will be set down for hearing at an early date. The purpose of the hearing is only to consider argument on whether the Order prevents the Board from pursuing its usual process of counting ballots cast in representation votes. Should the intervenor fail to persuade the Board thereof, the parties should assume that the Board will order that the ballots will be counted after the hearing.
16In light of the above, the Board directs that the ballot box will be sealed and the ballots will not be counted until the Board so orders or the parties agree.
17The responding party is directed to post copies of this decision and of the "Notice of Vote and of Hearing" at a location(s) where they are likely to come to the attention of employees affected by this application. These copies must remain posted for 30 days.
18Any party or person who wishes to make representations to the Board about any issue remaining in dispute which relates to the application for certification, 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