Ontario Labour Relations Board
Parties
1944-01-R Drywall, Acoustic, Lathing and Insulation Local 675 of the United Brotherhood of Carpenters and Joiners of America, Applicant v. DTR Drywall T-Bar Restoration Ltd., Responding Party.
BEFORE: D. L. Gee, Vice-Chair, and Board Members J. G. Knight and G. McMenemy.
DECISION OF THE BOARD; November 29, 2001
Decision
1. This matter is an application for certification. Two ballots were cast in the representation vote held on October 22, 2001. Both ballots were segregated and sealed.
2. In its decision of October 18, 2001 the Board directed the parties to file post-vote submissions about any issue that remains in dispute, other than status disputes, within five days of the vote date. The applicant filed post-vote submissions in which it asserted that the responding party had failed to post the Notice of Vote in a timely manner and further told affected employees that if they voted their employment would be in jeopardy. The applicant requested a second vote. The responding party filed no post-vote submissions.
3. Information Bulletin No. 9 entitled Status Disputes in Certification Applications in the Construction Industry states that the parties are to file submissions with respect to any issue as to whether or not an individual should be on the voters’ list. The party that asserts that an individual is not properly on the voters’ list is directed to file its submissions no later than the Tuesday following the Regional Certification Meeting. Such submissions were in fact made by the applicant on November 20, 2001. The applicant challenges Mark Miscampbell on the basis that he is managerial or alternatively that he was not at work performing bargaining unit work on the date of application. The party that asserts an individual is on the list of voters is required, by Information Bulletin No. 9, to file its submissions no later than the following Friday. No such submissions were filed by the responding party.
4. Information Bulletin No. 9 states that the Board will determine if a hearing is necessary. Rule 77 of the Board’s Rules of Procedure provides that where the Board is satisfied that a matter can be determined on the basis of the material before it, the Board may decide an application under the construction industry provisions of the Labour Relations Act, 1995 without a hearing.
5. The applicant has filed submissions with the Board in which it points out that the responding party has failed to file submissions either as directed by the Board in its October 18, 2001 decision or pursuant to Information Bulletin No. 9. The applicant requests that the Board proceed to determine the eligibility of Mark Miscampbell based on the submissions filed and rule, based on the applicant’s submissions and the lack of any opposing submissions from the responding party, that he is not entitled to vote.
6. Having regard to the responding party’s failure to file any submissions in support of an assertion that Mark Miscampbell is properly on the list of voters and in light of the assertions contained in the submissions filed by the applicant to the effect that Mark Miscampbell is not an eligible voter, it is the Board’s determination that Mark Miscampbell’s status can be determined on the basis of the material filed. It is the Board’s determination that Mark Miscampbell is not properly on the list of voters.
7. The applicant has requested that the sole remaining ballot be counted. The Board is not clear, however, that the applicant is withdrawing its challenge to the conduct of the vote and its request that there be a second vote. Absent such a withdrawal, the Board is not inclined to order the counting of the sole ballot cast.
8. The applicant is hereby directed to advise the Board, no later than Friday, December 7, 2001 as to whether it is withdrawing all remaining challenges to the conduct of the vote or whether there are issues that remain outstanding.
“D. L. Gee”
for the Board