3269-00-R Universal Workers Union, Labourers’ International Union of North America Local 183, Applicant v. L.G.R. Tiles Ltd., Responding Party.

BEFORE: Inge M. Stamp, Vice-Chair.

DECISION OF THE BOARD; June 6, 2001

1. In this application for certification a number of decisions have been issued dealing with the holding of a second vote. After a hearing was held to deal with this issue the Board ordered a second vote be taken of the eligible voters on May 22, 2001.

2. At the hearing the applicant requested an opportunity to make submissions with respect to special voting arrangements in the event that the Board ordered a second representation vote. In the circumstances the Board cancelled the May 22, 2001 vote in order to deal with the applicant’s submissions.

3. By letters dated May 28, 2001 and June 4, 2001 the applicant filed its submissions with respect to “additional remedies and special voting arrangements” in light of the Board’s decision to order a second vote. With the exception of two items the responding party objected to the applicant’s requested remedies and special voting arrangements, setting out the reasons in its letter dated May 31, 2001.

4. The responding party does not oppose the applicant’s requests in paragraphs 13 and 14 in the May 28, 2001 letter and states:

5. It is the position of the Union that the Board should provide to each bargaining unit employee a clear explanation as to why it is ordering a second representation vote. In this regard, the Union requests that the Board draw up a notice written in clear and easily understandable language and directed to each employee explaining why it is ordering a second representation vote, and in particular, stating that it is making such an order despite the fact that there was no wrongdoing by the Union or any of the employees;

6. In order to ensure that each employee has an opportunity to read and thoroughly understand the Board’s explanation for ordering a second vote, the Union requests that the Board send the above noted notice to each employee at their home address and that the Board direct that the notice be posted at the employer’s premises at a location where it is most likely to come to the attention of the employees for a period of 30 days, and further direct the Employer to take all reasonable steps to ensure that the notice is not defaced or altered in any way.

7. The responding party takes the position that the Board’s decision of May 16, 2001 is clear, however it does not oppose the above request and states:

13-14 The Employer does not object to the Board creating a document which describes why a second representation vote has been ordered (although the Employer would submit that the Board’s decision of May 16, 2001 is clear and should suffice for this purpose).

6. The applicant is asking for remedies and special vote arrangements because of what it considers the prejudice to the union by holding a second vote. The applicant asserts it is prejudiced by the delay caused by holding a second vote and especially in the construction industry where the labour force is characteristically transitory.

7. The applicant asserts there is a further prejudice which results from the fact that the employer can identify who voted in the original representation vote, and how each person voted.

8. The employer takes the position that the remedies requested by the applicant are extraordinary and unprecedented “special voting arrangements”. The responding party asserts granting the remedies and arrangements requested by the applicant would suggest that the employer has somehow breached the Act. The responding party submits the Board is without jurisdiction to grant some of these remedies in the absence of a violation of the Act.

Decision

9. The Board’s decision dated May 16, 2001 clearly sets out the reasons for holding a second vote. The vote materials were delivered to the employer, a party to the proceeding, after the vote had been held. There was no wrongdoing by any of the parties, or any of the employees of the responding party, that caused the Board to order a second vote. The second vote was ordered as a result of the Board’s inability to provide timely notice of the vote arrangements to one of the parties to the proceeding. The Board was not provided with a fax number for the responding party and the courier service did not deliver the vote materials until after the vote had taken place.

10. The Board has reviewed the extensive remedies requested by the applicant. These remedies go well beyond what would normally be described as vote arrangements.

11. One of the “vote arrangements” the applicant requests is an order by the Board to direct the employer to assign each employee to meet with the union (or a Labour Relations Officer) for one day at the union’s premises on a date determined by the union. The employer is to pay each employee a full day’s pay (or in the case of a Labour Relations Officer four hours of pay). The applicant submits the purpose of such meeting is to enable the union to satisfy itself that the employees understand the Board’s reasons for ordering a second vote, their rights under the Act and the benefits of union membership.

12. This type of “arrangement” is more like the type of remedy granted where there has been a breach of the Act. There are no allegations of unfair labour practices. There is no finding under section 96 that the responding party has breached the Act. The type of remedies and special vote arrangements, requested by the applicant are generally granted where there has been a finding of a violation of sections 96 and/or 11 of the Act. Without finding whether the Board has jurisdiction to order the type of remedies requested by the applicant, in the circumstances of this case the Board does not find it appropriate to make such orders.

13. The Board is of the view that its decisions in this matter set out clearly the reasons for ordering a second vote. However to make it absolutely clear that there has been no wrongdoing by any of the employees, or any of the parties, the Board has attached a notice to be posted alongside this decision and the vote materials at the premises of the responding party.

14. Paragraph 19 of the Board’s decision dated May 16, 2001 set aside the vote taken on February 15, 2001. The Board directs that a new vote be held of the individuals in the voting constituency as set out in paragraph 7 of the February 13, 2001 decision, which states:

all marble, tile and terrazzo, cement masons and their respective helpers, apprentices, improvers and all construction labourers in the employ of L.G.R. Tiles Ltd. in all sectors of the construction industry in the City of Toronto, the Regional Municipalities of Peel and York, the Towns of Oakville and Halton Hills and that portion of the Town of Milton within the geographic Townships of Esquesing and Trafalgar, and the Towns of Ajax and Pickering in the Regional Municipality of Durham, excluding the industrial, commercial and institutional sector, save and except non-working foremen and persons above the rank of non-working foreman.

15. The vote will be held on June 15, 2001. Vote arrangements will be set out in the “Notice of Vote and of Meeting” to be forwarded shortly.

16. The responding party is directed to post copies of the application for certification, the “Notice to Employees of Application for Certification”, this decision with the attached notice and the “Notice of Vote and of Meeting” in a location or locations where they are most likely to come to the attention of those individuals who are eligible to vote. These copies must remain posted for 30 days.

17. All individuals who were employed by L.G.R. Tiles Ltd. and at work in the voting constituency on February 7, 2001 are eligible to vote.

18. 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.

19. Any party or person who wishes to make representations to the Board about any issue relating to the application for certification which remains in dispute, other than status disputes, must file a detailed statement of representations and all material facts upon which they rely with the Board and deliver it to the other parties, so that it is received 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. 9: Status Disputes in Certification Applications in the Construction Industry.

20. This matter is referred to the Manager of Field Services and the Registrar.

“Inge M. Stamp”

for the Board

Appendix "A"

The Labour Relations Act, 1995

NOTICE TO EMPLOYEES

Posted by order of the Ontario Labour Relations Board

This notice has been posted in compliance with an order of the Ontario Labour Relations Board pursuant to the Board’s decision dated June 6, 2001.

After a hearing was held in this matter the Board made the following determinations:

The vote materials were delivered to L.G.R. Tiles Ltd. after the vote had taken place on February 15, 2001. The first vote was scheduled between 8:00 a.m. and 8:30 a.m. on February 15, 2001.

Under the provisions of the Act and the Board’s Rules the employer, as a party to this application, was entitled to have notice of the vote arrangements before the vote took place.

The Board determined that as a result of the vote materials being delivered after the vote had been held, L.G.R. Tiles Ltd. did not have timely notice of the vote arrangements as required by the Act and the Board’s Rules.

The only factor the Board considered when it directed that a second representation vote be held, was the fact that the vote materials were not delivered to L.G.R. Tiles Ltd. prior to the vote taking place on February 15, 2001.

There was no finding of any wrongdoing by Universal Workers Union, Labourers Local 183, or by the employees of L.G.R. Tiles Ltd.