Local Union 1075 National Automobile, Aerospace, Transportation and General Workers’ Union of Canada (CAW Local 1075) v. Aramark Canada Limited, 2000 CanLII 9666

Local Union 1075 National Automobile, Aerospace, Transportation and General Workers’ Union of Canada (CAW Local 1075) v. Aramark Canada Limited

1902-00-R Local Union 1075 National Automobile, Aerospace, Transportation and General Workers’ Union of Canada (CAW Local 1075), Applicant v. Aramark Canada Limited (formerly Versa Services Limited) (full time employees), Responding Party v. Service Employees International Union, Local 268, Intervenor.

BEFORE: Stephen Raymond, Vice-Chair, and Board Members J. A. Ronson and R. R. Montague.

DECISION OF STEPHEN RAYMOND, VICE-CHAIR, AND BOARD MEMBER R. R. MONTAGUE; October 11, 2000

1This is a displacement application.

2The Board issued a decision on October 3, 2000 that stated that consideration of this application would be postponed until a final decision had been issued in Board File No. 1522-00-R.

3On October 5, 2000, the Board issued a final decision in Board File No. 1522-00-R and now the Board can consider this application.

4The intervenor takes the position that the Board should not consider this application pursuant to its discretion under section 111(2)(k) of the Act or because the CAW-Canada (the applicant in Board File No. 1522-00-R) is not legally distinct from the applicant in this matter. The applicant requests that a vote be ordered. This matter can be resolved by the Board at a hearing into this matter.

5The intention of the Labour Relations Act, 1995 is to hold a representation vote as quickly as possible. The fact that there was no final decision in Board File No. 1522-00-R meant that the representation vote did not occur in the normal course. It is our view that if the other preconditions for a vote are present in this case that the vote should occur but that the ballot box should be sealed and the ballots not counted until the Board orders otherwise or the parties agree.

6The Board finds that the applicant is a trade union within the meaning of section 1(1) of the Labour Relations Act, 1995 (the “Act”).

7The employees are currently represented by the intervenor.

8It 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. Further, this application appears to be timely.

9The intervenor has made a number of submissions in respect of unfair labour practices that are alleged to have occurred in respect of this application. It refers to a decision and Order of the Superior Court of Justice, in respect of a motion for injunctions brought by the intervenor against certain individuals. It also refers to certain proceedings pertaining to the applicant and intervenor before the Canadian Labour Congress. The intervenor asserts that no representation vote should be held, or, in the alternative, that the Board ought not to hold a vote until a decision is rendered with respect to these matters or, in the further alternative, that the ballot box should be sealed pending a hearing into the matters raised.

10The Board (differently constituted) has considered similar objections from the intervenor with respect to a number of other displacement applications by the applicant. In those applications, the ballot box had been sealed pending a hearing. At the hearing held April 6, 2000, the Board ruled that the ballots cast should be counted. At a subsequent hearing on April 11, 2000, the Board declined to adjourn its proceedings pending conclusion of matters before the Canadian Labour Congress.

11The 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 than 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.

12The 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. In any event, the responding party agreed that the ballots cast in the representation vote should be counted.

13The Board directs that a representation vote be taken of the individuals in the following voting constituency:

all employees of Aramark Canada Limited at Lakehead University in the City of Thunder Bay (including lead hands and the position of storeskeeper), save and except supervisors, persons above the rank of supervisor, office and clerical staff, persons regularly employed for not more than twenty-four (24) hours per week and students employed during the school vacation period.

14The vote will be held on October 16, 2000. Other vote arrangements will be as determined by the Registrar and set out on the attached "Notice of Vote and of Hearing".

15All individuals who had an employment relationship with the responding party in the voting constituency on September 28, 2000, the certification application filing date, are eligible to vote. Employees having an employment relationship on September 28, 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.

16There is a dispute between the parties as to the appropriate bargaining unit and whether or not there are employers of the employer who do not work in the food service or vending operations. If any individual holds such a position and 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.

17Voters 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.

18The 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.

19Any 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 Applications (Non-Construction).

20The matter is referred to the Registrar.

“Stephen Raymond”

for the majority

DECISION OF BOARD MEMBER J. A. RONSON; October 11, 2000

The optics are all wrong. Ordering a vote before determining the question of bad faith in this file is, in the circumstances, giving a hand up to one of the parties in this nasty dispute.