0835-01-R National Automobile, Aerospace, Transportation & General Workers Union of Canada (CAW-Canada), Applicant v. Sysco Foodservice of Ontario, Responding Party v. Christian Labour Association of Canada, Intervenor.
BEFORE: Laur Trachuk, Vice‑Chair, and Board Members J. A. Rundle and R. R. Montague.
DECISION OF LAURA TRACHUK, VICE-CHAIR, AND BOARD MEMBER R. R. MONTAGUE; June 19, 2001
This is a displacement 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”).
The employees are currently represented by the intervenor.
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. Further, this application appears to be timely.
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 and it contends that the applicant’s bargaining unit could not be appropriate. 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 responding party also claims that the application should be dismissed as the package it received from the applicant did not contain a copy of Form C-1. It also claims that the Form A-5 which was provided was defective. The Board considers it appropriate to proceed with a representation vote and to count the ballots. The issue raised by the responding party will be determined by the Board at the hearing after the vote.
The parties have raised a concern with respect to providing notice of the representation vote to the drivers who work from their residences. The Board therefore hereby directs the responding party to mail copies of this decision and the Board’s Notice of Vote by 5:00 p.m. Wednesday, June 20, 2001 to employees who work out of locations other than 65 Elmdale Road in the City of Peterborough. The responding party shall provide a list to the applicant and intervenor with the names of employees to whom notices were sent The material should also be mailed to any individual identified by the applicant or intervenor after receiving the list.
The Board directs that a representation vote be taken of the individuals in the following voting constituency:
all employees of Sysco Foodservice of Ontario in Ontario, save and except office staff, sales staff, supervisors and persons above the rank of supervisor, meat inspector and students employed during the summer vacation period.
The vote will be held on June 28, 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 June 14, 2001, the certification application filing date, are eligible to vote. Employees having an employment relationship on June 14, 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 may be a dispute between the parties as to whether or not employees in locations other than 65 Elmdale Road in the City of Peterborough, Ontario who are not drivers working from their residences 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 they wish to be represented by the applicant or the intervenor in their employment relations with the responding party.
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, 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.
“Laura Trachuk”
for the majority
DECISION OF BOARD MEMBER J. A. RUNDLE; June 19, 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.
This is a displacement application – not an application for certification. The employees in question are already covered by a collective agreement – bargaining rights have never been terminated. The voting constituency must be limited to the scope clause which is found in the current collective agreement. Any additions or deletions to that scope clause are the subject matter of negotiations, they must not be achieved through a displacement application to this Board.
“J. A. Rundle”