0124-01-R Industrial Wood & Allied Workers of Canada (I.W.A. Canada), Applicant v. Cashway Building Centres Ltd., Responding Party.
BEFORE: Patrick Kelly, Vice‑Chair, and Board Members J. A. Rundle and D. A. Patterson.
DECISION OF PATRICK KELLY, VICE-CHAIR, AND BOARD MEMBER D. A. PATTERSON; April 17, 2001
This is an application for certification.
The Board finds that the applicant is a trade union within the meaning of section 1(1) of the Labour Relations Act, 1995 (the “Act”).
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.
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 from that proposed by the applicant It gives notice under section 8.1 of the Act.
The Board finds that the bargaining unit described in the application could be appropriate. 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 Board directs that a representation vote be taken of the individuals in the following voting constituency:
all employees of Cashway Building Centres Ltd. in the City of Sault Ste. Marie, Ontario, save and except yard foreman, office and store assistant manager, and persons above those ranks.
The vote will be held on April 19, 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 April 10, 2001, the certification application filing date, are eligible to vote. Employees having an employment relationship on April 10, 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 as to whether office and clerical staff as well as the position of office and store assistant manager should be included in the bargaining unit. 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.
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 contends that the Board should not entertain this application because of its intent to request reconsideration of a decision of the Board (differently constituted) dated April 10, 2001 in Board File No. 0059-01-R in which the Board granted leave to withdraw the applicant’s previous application for certification in respect of employees of the responding party. That decision did not impose a bar to a further application for certification pursuant to section 7(9) of the Act. The responding party contends that its views concerning a section 7(9) bar should have been sought prior to the issue of the Board’s April 10, 2001 decision. It further contends that a bar should have been imposed, and that, had that occurred, this application could not then be considered.
In the circumstances we are prepared to seal the ballot box in this representation vote pending receipt of the responding party’s reconsideration application by no later than April 24, 2001, failing which the ballot box is to be opened and the ballots counted. Should the responding party file its reconsideration application on or before April 24, 2001, the ballot box shall remain sealed until the Board orders otherwise, or the parties agree to open and count the ballots.
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. RUNDLE; April 17, 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 on that basis as well as on the basis of the pending reconsideration request.
“J. A. Rundle”