International Union of Operating Engineers, Local 793 v. Canada Building Materials Company A Division of St. Mary’s Cement Inc., 2001 CanLII 12581

International Union of Operating Engineers, Local 793 v. Canada Building Materials Company A Division of St. Mary’s Cement Inc.

File No.: 2409-01-R Date: November 30, 2001

Before: Brian McLean, Vice‑Chair, and Board Members J. A. Ronson and H. Peacock.

DECISION OF BRIAN MCLEAN, VICE-CHAIR, AND BOARD MEMBER H. PEACOCK; Nvoember 30, 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.

3Having regard to the agreement of the parties, the Board further finds that:

all employees of Canada Building Materials Company A Division of St. Mary’s Cement Inc. employed at its Ready Mix operation located at Cliff Varcoe Sand and Gravel’s facility on Highway 93 in Dalston, Ontario, save and except foremen, persons above the rank of foreman, office and clerical staff, sales staff, batcher and quality control staff and dispatchers.

constitute a unit of employees of the responding party appropriate for collective bargaining.

4It 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.

5Having regard to the agreement of the parties as to the appropriate bargaining unit, the Board directs that a representation vote be taken of the individuals in the following voting constituency:

all employees of Canada Building Materials Company A Division of St. Mary’s Cement Inc. employed at its Ready Mix operation located at Cliff Varcoe Sand and Gravel’s facility on Highway 93 in Dalston, Ontario, save and except foremen, persons above the rank of foreman, office and clerical staff, sales staff, batcher and quality control staff and dispatchers.

6The vote will be held on December 4, 2001. Other vote arrangements will be as directed 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 November 27, 2001, the certification application filing date, are eligible to vote. Employees having an employment relationship on November 27, 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 employer gives the Board notice under section 8.1 of the Act that it disagrees with the applicant’s estimate of the number of employees in the bargaining unit. The Board has carefully compared the membership evidence filed with the application with the employee list filed with the response. Based on this comparison, it is apparent that forty per cent or more employees in the bargaining unit are members of the applicant. Accordingly, the ballots will be counted following the representation vote.

10The responding party is directed to post copies of this decision and of the "Notice of Vote and of Hearing" adjacent to the "Notice to Employees of Application for Certification". These copies must remain posted for 30 days.

11Any 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, 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).

12The matter is referred to the Registrar.

“Brian McLean”

for the majority

DECISION OF BOARD MEMBER J. A. RONSON; November 30, 2001

1. I dissent.

2. 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.

3. 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.