International Brotherhood of Electrical Workers, Local 636 v. The Corporation of the Town of Midland
File No.: 2956-00-R Date: May 29, 2001
Before: Anthony Brown, Vice-Chair
Parties: International Brotherhood of Electrical Workers, Local 636 (“IBEW”), Applicant v. The Corporation of the Town of Midland, Responding Party v. Ontario Public Service Employees Union, Intervenor
Decision of the Board
1This is an application pursuant to section 69 of the Labour Relations Act, 1995 (the "Act").
2This application involves the transfer of water works (fresh water services) from the Midland Public Utilities Commission (“the PUC”) to the Town of Midland (“the Town”) on January 1, 2000. Employees of PUC are represented by the International Brotherhood of Electrical Workers Local 636. Unionized employees of the Town (including employees in an outside bargaining unit) are represented by the Ontario Public Service Employees Union.
3The parties agree that the transfer is a sale of business within the meaning of section 69 of the Act. There is no dispute that employees are intermingled as a result of the transfer. The parties have also agreed to a description for the new bargaining unit that will result from the transfer.
4The parties have submitted two questions to the Board:
(1) Should the Board exercise its powers under section 69 of the Labour Relations Act, 1995 to order a representation vote in this application?
(2) Can and/or will the Board give directions and/or guidance with respect to the seniority integration of the employees in the new combined bargaining unit?
5IBEW asserts that a representation vote should be ordered because IBEW represents 20% (5 out of 20) of the total employees. IBEW asserts that the nine temporary employees in the “outside” bargaining unit should not be included in the calculation of the relative numbers of employees in the units represented by OPSEU and IBEW.
6OPSEU opposes the holding of a representation vote. OPSEU states that the nine temporary employees should be included in the calculations, but that even if they are excluded, OPSEU represents 80 per cent of the employees in the new unit. The Town takes no position as to whether a vote should be held.
Decision
Representation Vote
7Having considered the parties’ submissions, the Board has determined that, whether or not the temporary employees are included for the purpose of calculating the number of employees currently represented by OPSEU, it is appropriate to direct that a representation vote take place to permit employees to exercise their choice as to bargaining agent.
8Having regard to the agreement of the parties, the Board declares that
(1) there has been a sale of business from the Midland Public Utilities Commission (PUC) to the Corporation of the Town of Midland, within the meaning of section 69 of the Act
(2) there has been an intermingling of employees
(3) the appropriate bargaining unit is as follows:
all employees of the Town of Midland Public Works Department, Town of Midland, save and except foreman, persons above the rank of foreman, office staff, student employees (as defined herein), occasional employees (as defined herein) and persons covered by subsisting collective agreements.
9The date of the vote shall be determined by the Registrar. The Board directs the Manager of Field Services to make arrangements for the holding of the vote.
10The voting constituency for the purposes of the vote is
all employees of the Town of Midland Public Works Department, Town of Midland, save and except foreman, persons above the rank of foreman, office staff, student employees (as defined herein), occasional employees (as defined herein) and persons covered by subsisting collective agreements.
11All those employed in the voting constituency as of the date of this decision will be eligible to vote.
12Employees will be asked to indicate whether they wish to be represented by the International Brotherhood of Electrical Workers Local 636 or the Ontario Public Service Employees Union in their employment relations with the employer (Town of Midland).
Seniority
13The Board does not have jurisdiction under section 69 to make an order resolving the parties’ “seniority” issue. The Board may have jurisdiction under the Public Sector Labour Relations Transition Act, 1997 (PSLRT) because the factual circumstances appear to come within section 12. Subsection 36(3) of PSLRT entitles certain parties to request an order determining the method to be used to determine seniority. However, I am not satisfied that the Board can make an order under section 36 in the absence of a valid application under PSLRT.
14The matter of the representation vote is referred to the Registrar.
“Anthony Brown”
for the Board