Canadian Union of Skilled Workers v. K-Line Maintenance & Construction Ltd.
File No.: 0396-01-R Date: June 1, 2001
Canadian Union of Skilled Workers, Applicant v. K-Line Maintenance & Construction Ltd., Responding Party v. IBEW Construction Council of Ontario, Intervenor
Before: Harry Freedman, Vice-Chair, and Board Members J. G. Knight and A. Haward.
DECISION OF THE BOARD
1The applicant and the intervenor filed representations with the Board within the time fixed under Rule 62 of the Board's Rules of Procedure following the taking of the representation vote pursuant to the Board's direction of May 4, 2001. The applicant and the intervenor, in their respective submissions, agreed that this application should be dismissed pursuant to section 8.1(5)7 of the Labour Relations Act, 1995, S. O. 1995, c. 1, as amended, (the "Act"). The applicant accepts that less than 40% of the individuals in the bargaining unit it proposed appear to members of the applicant.
2The responding party gave notice under section 8.1 of the Act. The applicant has now acknowledged that less than 40% of the individuals in the bargaining unit it proposed appeared to be its members.
3The application is therefore dismissed pursuant to section 8.1(5)7 of the Act.
4After the applicant and intervenor had filed their submissions indicating that the application should be dismissed, counsel for the intervenor, in a subsequent letter on that same date submitted that the ballots cast in the representation vote be counted. She also submits that although the application should be dismissed, "there is considerable interest in the bargaining unit in the outcome of the election and…it would be appropriate for the ballots to be counted."
5This application is being dismissed pursuant to section 8.1(5)7 of the Act. That section provides
If the percentage determined under paragraph 6 is less than 40 per cent, the Board shall dismiss the application for certification and, if the ballot boxes were sealed, the Board shall direct that the ballots be destroyed without being counted.
The ballot box was sealed by order of the Board. Even if there was some good labour relations reason for counting the ballots in the face of the application being dismissed regardless of the count (a reason that we would have considerable difficulty imagining), the Act is clear. The Board must direct that the ballots be destroyed without being counted. Thus, the intervenor's request to have the ballots counted is dismissed.
6The applicant has not established that it is a trade union within the meaning of sections 1(1) and 126 of the Act. Under the circumstances, that issue need not be determined in this proceeding as the application is being dismissed in any event.
7The Board directs the parties' and the employees' attention to section 10(3) and 10(4) of the Act, as this application was dismissed under section 8.1(5)7. Should an application for certification be filed within one year of the date of this decision, the effect, if any, of this decision and section 10 of the Act on that subsequent application may be determined, if necessary, at that time.
8The Registrar will destroy the ballots cast in the representation vote taken in this matter following the expiration of 30 days from the date of this decision unless a statement requesting that the ballots should not be destroyed is received by the Board from one of the parties before the expiration of such 30 day period.
9The responding party is directed to post copies of this decision immediately, adjacent to the "Notice of Vote and of Meeting" posted previously. These copies must remain posted for a period of 30 days.
"Harry Freedman"
for the Board