Canadian Union of Public Employees and its Local 255 v. Westario Power Services Inc., 2001 CanLII 11086

Canadian Union of Public Employees and its Local 255 v. Westario Power Services Inc. and the International Brotherhood of Electrical Workers, Local 636

3740-00-R Canadian Union of Public Employees and its Local 255, Applicant v. Westario Power Services Inc. and the International Brotherhood of Electrical Workers, Local 636, Responding Parties.

0044-01-PS The International Brotherhood of Electrical Workers, Local 636, Applicant v. Westario Power Holdings Inc., Westario Power Services Inc., Westario Power Inc., Hanover Electric Services Inc., The Corporation of the Municipality of Brockton (formerly Walkerton Public Utilities Commission), Wnghan Public Utilities Commission, Locknow/Ripley Public Utilities Commission, Mildmay/Teeswater Hydro Electric Commission, The Corporation of the Town of Minto Hydro Electric Commission, The Corporation of the Municipality of Keicardine (formerly Kindardine Hydro Electric Commission), The Saugeen Shores Energy Commission, The Canadian Union of Public Employes and its Local 255, Responding Parties.

0298-01-R International Brotherhood of Electrical Workers, Local 636, Applicant v. Westario Power Services Inc., Westario Power Inc., Westarrio Power Holdings Inc., Responding Parties v. Canadian Union of Public Employees and its Local 255, Intervenor.

BEFORE: Bram Herlich, Vice-Chair.

DECISION OF THE BOARD; May 3, 2001

1Board File No. 3740-00-R is an application under sections 69 and 1(4) of the Labour Relations Act, 1995 (the “Act”). Board File No. 0044-01-PS is an application pursuant to sections 21, 22, and/or 23 of the Public Sector Labour Relations Transition Act, 1997. Board File No. 0298-01-R is an application for certification.

2The parties have executed and filed the following agreement:

OLRB FILE NOS.

3740-00-R

0044-01-PS

0298-01-R

All parties agree to resolve their differences in the above listed proceedings pending before the Ontario Labour Relations Board as follows and request the following Declarations and Orders:

1. Westario Power Services Inc, Westario Power Inc and/or Westario Power Holdings Inc. are associated or related businesses or activities under common direction and control within the meaning of s.1(4) of the Act and constitute a single employer for the purposes of Labour Relations (the “Employer”).

2. The Employer is the Successor Employer within the meaning of s.69 of the Act and there has been an intermingling of Employers within the meaning of s.69(6) of the Act.

3. The OLRB is to direct a representation vote in accordance with the following:

Voting Constituency: all employees of the employer, save and except supervisors and persons above the rank of supervisor

Voters List: See Attached Schedule A

[not reproduced here]

Vote Date: May 8, 2001

Poling Locations and Times:

1. Wingham: 8:00 – 8:15

2. Hanover: 9:15 – 9:45

3. Port Elgin: 10:45 – 11:00

4. Kincardina 12 :00 – 12 :30

Scruitneers : IBEW: Harold Vance

Peter Spiniello

CUPE: James Keenan

John Von Rood

Employer: Vern Hodgins

Agents for Count: IBEW: Harold Vance

CUPE: James Keenan

Employer: Guy Cluff

Ballot: 2 way Choice between:

IBEW Local 636

CUPE Local 255

All parties agree that whichever union achieves the majority of ballots cast in the representation vote should be declared to be the exclusive bargaining agent of the employees in the bargaining unit/voting constituency. The bargaining rights of the other union shall be declared terminated.

All parties agree that all the terms and conditions of the collective agreements of the bargaining agents are to remain in full force and effect in respect of the pre-existing bargaining unit segments and further that terms and conditions of former non union employees shall remain in the effect, subject to the terms of the Labour Relations Act.

4. All parties agree that seniority for all employees shall be dovetailed and determined by length of service with the Employer and/or its predecessors. The Employer shall post a dovetailed seniority list in a conspicuous location at each of its locations. Employees shall have ten (10) working days to correct any discrepancy regarding seniority date.

5. The Employer acknowledges the status of the declared Collective Bargaining agent to pursue, where appropriate any existing grievances without prejudice to any other arbitrability objections.

6. The parties agree that Job posting of vacancies shall be administered as follows:

(a) Where IBEW 636 is declared to be the collective bargaining agent, the provisions with respect to job posting mechanism the IBEW 636 collective agreement shall apply to the entire bargaining unit;

or

(b) Where CUPE Local 255 is declared to be the collective agent, the Employer and CUPE Local 255 shall meet and bargain a job posting mechanism for the entire bargaining unit.

It is understood and agreed that such negotiations are to standardize the job posting mechanism and shall not impact upon the agreement of the parties to dovetail seniority

7. This agreement is without prejudice to the position of the parties with respect to the inclusion of a description of geographic scope within the ultimate bargaining unit description. If this issue remains unresolved the matter shall proceed to the OLRB for determination.

8. IBEW Local 636 requests the withdrawal of:

(i) Application pursuant to the Public Sector Labour Relations Transitions Act (0044-01-PS)

(ii) Application for Certification (0298-01-R).

9. Union dues will be collected and remitted to the successful union. Until a new collective agreement is reached, however, union dues will only be collected from those individuals set out in Schedule A who, prior to the commencement of the secret ballot vote, were represented by a union. The dues to be collected will be at the successful union’s rates as of the date of this agreement.

Dated at Toronto this 1^st day of May, 2001.

International Brotherhood Westario Power Services Inc.

Electrical Workers per: “Guy Cluff”

Local 636 Guy Cluff

Per: “Harold G. Vance” Westario Power Inc

Harold G. Vance

per: “Guy Cluff”

Guy Cluffe

Canadian Union of Public Employees Westario Power Holdings Inc.

per: “James Keenan” per: “Guy Cluff” James Keenan Guy Cluff

per: “Dave Banks”

Dave Banks

3Having regard to the agreement of the parties, the Board hereby:

(a) declares that Westario Power Services Inc., Westario Power Services Inc., and Westario Power Holdings Inc. are associated or related businesses or activities under common direction and control within the meaning of section 1(4) of the Act and constitute one employer (hereinafter the “employer”) for the purposes of the Act;

(b) declares that the employer is a successor employer within the meaning of section 69 of the Act and that there has been an intermingling of employees within the meaning of section 69(6) of the Act;

(c) directs that a representation vote be held on May 8, 2001.

4The Board notes that the parties have agreed on the voting constituency as set out in paragraph 3 of their settlement reproduced above. The parties have also agreed on the list of eligible voters (subject to one exception). Voters will be asked whether they wish to be represented by IBEW Local 636 or CUPE Local 255 in their employment relations with the employer.

5Having further regard to the agreement of the parties, the applications in Board Files 0044-01-PS and 0298-01-R are hereby withdrawn with leave of the Board.

6The matter is referred to the Registrar.

.“Bram Herlich”

for the Board