0920-00-R Sheet Metal Workers’ International Association, Local Union No 47, Applicant v. Les Toitures Raymond 1997 Inc., and/or Les Toitures Raymond et Ass. Inc. and/or Raymond and Associates Roofing Inc., Responding Party.
BEFORE: Mary Ellen Cummings, Alternate Chair.
DECISION OF THE BOARD; July 7, 2000
This is an application for certification filed under the construction industry provisions of the Labour Relations Act, 1995 (the "Act").
By decision dated June 27, 2000, the Board directed that a representation vote take place on June 29, 2000 with respect to a bargaining unit of roofers and roofers’ apprentices in the employ of the responding party.
In that decision, the Board denied the responding party’s request for an extension of time to file a response.
At the time the Board made that decision, it made two important errors. First, it concluded that the application filing date was June 23, 2000. In fact, in accordance with Rule 129 the application filing date was June 22, 2000; the date that the application was filed by Priority Courier, not the date that the application was received by the Board.
The second error was made in calculating when the application package was delivered to the responding party. The applicant indicated that the package was sent by Priority Courier on June 22, 2000. In accordance with Rule 23, the date of delivery is June 23, 2000; the date it was actually delivered. It also now appears that the applicant faxed the same package to the responding party on June 23, 2000.
In accordance with Rule 135, then, the response was due to be filed on June 27, 2000. The responding party filed a timely response, but because of the Board’s errors, a decision directing the vote had already been made. Consequently, the Board’s decision ordering the vote was made without regard to the responding party’s timely response.
Counsel for the responding party raised her concerns about the Board ordering a vote without regard to the applicant’s timely response, in a letter dated June 28, 2000. In the same letter, counsel submitted that confusion had been created by the Board’s decision ordering a vote with the wrong application date on it, since only those working on the application date are entitled to vote. Counsel also raised concerns that a French version of the Notice of Vote was available only the day before the vote, after most employees would have left for the day.
On the basis of all these submissions, I made a decision to adjourn the vote without providing reasons.
Counsel for the applicant filed submissions on June 29 with respect to the Board’s decision to adjourn the vote. At the time of making the submissions, counsel did not know why the Board had adjourned the vote. Understandably, counsel for the applicant is very concerned about this departure from the statutory requirements in section 8(5) to hold a vote within 5 days of the filing of the application for certification “unless the Board otherwise directs”. The Board rarely departs from the 5 day standard.
In this case though, the responding party’s submissions, particularly around whether employees had Notice of Vote, and whether there was confusion about who was eligible to vote as a result of the Board’s error, convinced me that I should adjourn the vote.
The vote was not adjourned, as counsel for the applicant may have wondered, because we did not have a bilingual officer or French materials available. However, once I turned my mind to when the vote should be re-scheduled, I did consider the availability of a bilingual officer.
The Board agrees that there is a need for expedition in holding representation votes. But we must also retain the flexibility to meet our obligations pursuant to the French Language Services Act. In this case, I have determined that the vote will be held on July 12, 2000, when a bilingual officer of the Board is available.
The Board finds, pursuant to section 158(1) of the Act, that all roofers and roofers’ apprentices in the employ of the responding party in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and all roofers and roofers’ apprentices in the employ of the responding party in all other sectors of the construction industry in the Regional Municipality of Ottawa-Carleton, and the United Counties of Prescott and Russell, save and except non-working foremen and persons above the rank of non‑working foreman, constitute a unit of employees of the responding party appropriate for collective bargaining.
Having regard to the Board's finding as to the appropriate bargaining unit, the Board directs that a representation vote be taken of the individuals in the following voting constituency:
all roofers and roofers’ apprentices in the employ of Les Toitures Raymond 1997 Inc., and/or Les Toitures Raymond et Ass. Inc. and/or Raymond and Associates Roofing Inc. in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and all roofers and roofers’ apprentices in the employ of Les Toitures Raymond 1997 Inc., and/or Les Toitures Raymond et Ass. Inc. and/or Raymond and Associates Roofing Inc. in all other sectors of the construction industry in the Regional Municipality of Ottawa-Carleton, and the United Counties of Prescott and Russell, save and except non-working foremen and persons above the rank of non‑working foreman.
The vote will be held on July 12, 2000. Vote arrangements are set out on the attached "Notice of Vote and of Meeting".
The responding party is directed to post copies of the application for certification, the “Notice to Employees of Application for Certification”, this decision and the "Notice of Vote and of Meeting" in a location or locations where they are most likely to come to the attention of those individuals who are eligible to vote.
All individuals who were employed by Les Toitures Raymond 1997 Inc., and/or Les Toitures Raymond et Ass. Inc. and/or Raymond and Associates Roofing Inc. and at work in the voting constituency on June 22, 2000 are eligible to vote.
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.
Any party or person who wishes to make representations to the Board about any issue relating to the application for certification which remains in dispute, other than status disputes, must file a detailed statement of representations and all material facts upon which they rely with the Board and deliver it to the other parties, so that it is received 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. 9: Status Disputes in Certification Applications in the Construction Industry.
This matter is referred to the Registrar.
“Mary Ellen Cummings”
for the Board