International Union of Operating Engineers Local 772 v. Baycoat
1769-01-R International Union of Operating Engineers Local 772, Applicant v. Baycoat, Responding Party.
BEFORE: Laura Trachuk, Vice-Chair, and Board Members J.A. Ronson and H. Peacock.
DECISION OF THE BOARD; October 1, 2001
1This is an application for certification.
2The Registrar has certified that the applicant had been found to be a trade union in an earlier proceeding under the Labour Relations Act, 1995 (the “Act”). Therefore, having regard to the Registrar’s certificate and section 113 of the Act, the Board finds that the applicant is a trade union within the meaning of section 1(1) of the Act.
3It 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.
4The responding party contends that the applicant’s bargaining unit could not be appropriate. It gives notice under section 8.1 of the Act. However, the responding party does not dispute the applicant’s estimate at the number of employees in the applicant’s bargaining unit as required by section 8.1 of the Act. The ballots will therefore be counted. The Board will decide if the bargaining unit proposed by the applicant could be appropriate at the hearing after the vote if necessary. If the Board finds that the bargaining unit applied for is not appropriate, the application will be dismissed.
5The Board directs that a representation vote be taken of the individuals in the following voting constituency:
all employees in the City of Hamilton employed by Baycoat as licensed tradesman, mechanical assistants, and storeskeeper save and except supervisors and persons above the rank of supervisor.
6The vote will be held on October 3, 2001. Other vote arrangements will be as determined by the Registrar and set out on the attached "Notice of Vote and of Hearing".
7All individuals who had an employment relationship with the responding party in the voting constituency on September 26, 2001, the certification application filing date, are eligible to vote. Employees having an employment relationship on September 26, 2001, 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.
8Voters will be asked to indicate whether or not they wish to be represented by the applicant in their employment relations with the responding party.
9The 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.
10Any party or person who wishes to make representations to the Board about any issue remaining in dispute which relates to the application for certification, other than status disputes, including any matters relating to the representation vote, 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).
11The matter is referred to the Registrar.
“Laura Trachuk”
for the majority
DECISION OF BOARD MEMBER J. A. RUNDLE; October 1, 2001
I dissent.
A plain reading of sections 8 and 8.1 of the Labour Relations Act, 1995 (the “Act”) requires the Board to seal the ballot box, when as in the instant matter, an employer has given notice that it disagrees with the trade union's estimate of the number of individuals in the unit described in the application for certification.
Subsection 8.1(4) requires the Board to seal the ballot box unless the trade union and the employer agree otherwise. Accordingly, I would have directed the ballot box to be sealed.
“J. A. Ronson”