2008-01-R National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Applicant v. G.E.W. Group and Lion-Share Solutions Inc., Responding Party.
BEFORE: Patrick Kelly, Vice‑Chair, and Board Members J. A. Ronson and H. Peacock.
DECISION OF PATRICK KELLY, VICE-CHAIR, AND BOARD MEMBER H. PEACOCK; October 24, 2001
This is an application for certification.
The 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.
The applicant requested that the membership evidence filed in a previously withdrawn application for certification (Board File No. 1948-01-R) naming G.E.W. Group Inc. as the responding party be transferred to this file. The response filed in this matter claims that the correct name of the responding party is G.E.W. Group Inc. The responding party submits the entity named by the applicant as the responding party in this application does not exist. It further submits that G.E.W. Group Inc. and Lion-Share Solutions Inc. are two separate corporate entities. The responding party contends that the applicant ought not to be permitted to rely upon the membership evidence from the previously withdrawn application for certification, because it does not properly identify the employer in this matter, and because employees affected by this matter are likely to have been misled as to the identity of the employer and confused by the nature of the membership evidence sought by the applicant. The responding party requests the Board to carefully compare the membership evidence from both applications so as to ascertain whether nor not confusion would likely result, and if necessary, schedule a hearing to consider the validity of the membership evidence filed in support of this matter.
The membership cards filed in this matter consist entirely of those cards that were filed in Board File No. 1948-01-R. No additional cards were filed in this application. A careful review of the membership cards reveals that some of them purport to be completed by employees of “G.E.W. Group” or “G.E.W” on one hand, and, on the other, by employees of “L.S.S.”, “LSS”, “LSS CO LTD.”, “LION SHARE”, “Lion Share”, “LION SHARE SOLUTIONS”, “Lion share solutions”, “Lion-share Solutions” “LIONS SHARE”, or “LION SHARE SOLUTIONS Inc.”
Having reviewed the membership evidence we are satisfied that the individuals knew who the membership evidence related to, and that that entity is one of the two names contained in the name of the responding party in this matter. In these circumstances, we are of the view that it would not be inappropriate to permit the applicant to rely upon the membership evidence from Board File No. 1948-01-R given the name of the entity that it contends is the employer in this matter. We make no finding, however, that the entity named by the applicant as the responding party in this matter exists as a legal entity or is otherwise correctly identified.
It 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. Section 8(4) of the Act prohibits the Board from holding a hearing with respect to a determination of the appearance of union membership pursuant to a decision whether or not to hold a representation vote. Having regard to the findings in paragraph 5 above we are satisfied that the requisite appearance of support exists in this case, and thus we decline the responding party’s request to conduct an oral hearing.
The 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 (and in the alternative, different bargaining units) from 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.
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.
The responding party asserts that a bar ought to pertain to this application by virtue of section 7 of the Act, in light of the Board’s decision of October 18, 2001 in Board File No. 1948-01-R which granted the applicant leave to withdraw that application for certification. Moreover, the responding party submits that it may be appropriate to schedule a Board hearing with respect to this issue, or, in the alternative, defer the representation vote by ten days in order to enable the issue of a written communication to the employees affected by this application, explaining the import and impact of the application on them and “the subject employers”, and to enable the employees an opportunity to respond should they so wish.
We are neither prepared to schedule a hearing prior to a representation vote, nor to defer the vote. We note the approach taken by the Board in Ontario Lottery and Gaming Corporation c.o.b. as Windsor Racetrack Slots, (Board File No. 2997-00-R, unreported decision dated January 17, 2001) where, notwithstanding the assertion that the application for certification in that matter was barred pursuant to section 10(3) of the Act, the Board ordered a representation vote. At paragraph 11 of that decision, the Board stated:
It is beyond dispute that a speedy representation vote in an application for certification that takes place within the time prescribed by section 8(5) serves one of the principal objectives of the Act found in section 2, paragraph 1, which states:
The following are the purposes of the Act:
- To facilitate collective bargaining between employers and trade unions that are the freely-designated representatives of the employees.
In my view, conducting a representation vote and then determining all of the issues raised by the parties in the application permits the wishes of the employees who were in the bargaining unit that is the subject of the application to be recorded around the time the application was filed and not at some future indeterminate point when there [sic] wishes might well be affected by the passage of time or the conduct of the parties. Having a representation vote quickly minimizes the disruption and uncertainty that would be occasioned by waiting weeks, months or even years for the resolution of what can be quite complex and difficult litigation. See for example, Penegal Trim & Supply Ltd., [2000] OLRB Rep. March/April 332.
The same considerations articulated in the Windsor Racetrack case apply in the matter before us with respect to considering whether or not to delay a representation vote that the statute contemplates be conducted expeditiously. The issues raised in this application may give rise to lengthy litigation. The application may or may not fail as a result of the resolution of those issues. The ordering of the representation vote in this matter does not affect the resolution of those issues and does not determine the outcome of the application. What it does accomplish was the timely recording of the employees’ wishes that may be relevant to the ultimate determination.
The responding party’s assertions regarding the application of a bar may be referred to the panel assigned to hear this matter following the taking of the representation vote. Moreover, the employees affected by this application will have an opportunity to make representations in accordance with paragraph 21 of this decision.
The Board directs that a representation vote be taken of the individuals in the following voting constituency:
all employees of G.E.W. Group and Lion-Share Solutions Inc. in the City of Cambridge, save and except supervisors, persons above the rank of supervisors, shop co-ordinators, office and clerical, sales staff, engineers, research and development and students for the summer vacation.
The vote will be held on October 26, 2001. Other vote arrangements will be as determined by the Registrar and set out on the attached "Notice of Vote and of Hearing".
All individuals who had an employment relationship with the responding party in the voting constituency on October 19, 2001, the certification application filing date, are eligible to vote. Employees having an employment relationship on October 19, 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.
There appears to be a dispute between the parties concerning the scope of an exclusion from the bargaining unit or units. The applicant proposes the exclusion of “students for the vacation period”, whereas the responding party proposes to exclude “students”. If any individual holding such a position 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.
There may be further disputes between the parties as to the inclusion or exclusion of other positions, given the responding party’s alternative proposal of two bargaining units. The positions of the parties concerning those disputes, if any, may be preserved by making the appropriate challenge or challenges during the course of the representation vote.
Given the dispute concerning the identity of the responding party, the ballots cast by employees of G.E.W. Group Inc. shall be segregated and counted separately from those cast by employees of Lion-Share Solutions Inc. In the event of a dispute regarding the identity of the employer of any individual who wishes to cast a ballot, such ballot shall be segregated and not counted until the Board so orders or the parties agree.
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.
The 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.
Any 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).
The matter is referred to the Registrar.
“Patrick Kelly”
for the majority
DECISION OF BOARD MEMBER J. A. RONSON; October 24, 2001
Once again the Board allows its procedures to be rather cynically manipulated by the applicant union.
The applicant union and the Board are both well aware that this is an application for the employees of two distinct employers, G.E.W. Group Inc. and Lion-Share Solutions Inc. The timing of a vote is not a factor in this application by reason of the procedure adopted by the applicant union.
The applicant union has not filed an application under s. 1(4) of the Act. Rather, for the second time it has filed the same mish-mash of applications for membership which may relate to the employees of both employers.
We don’t allow a certification application to apply to two employers without a finding that the employers are “related” within the meaning of s. 1(4). And we certainly shouldn’t be allowing our resources to be used by an applicant that simply throws membership evidence at us and expects a vote to occur following which everything that is nominally a pre-condition to a vote can be sorted out, perhaps. We have better things to do with our time than to assist an experienced applicant to get things right in this manner.
I would set the matter down for immediate hearing to determine and settle the issues. Then and then only should a vote be ordered.
“J. A. Ronson”