Bricklayers, Masons Independent Union of Canada Local 1 v. Nu‑Tech Concrete Forming Ltd.
File No.: 0414-01-R Date: May 23, 2001
Applicant: Bricklayers, Masons Independent Union of Canada Local 1 Responding Party: Nu‑Tech Concrete Forming Ltd. Intervenor: Carpenters’ District Council of Ontario, United Brotherhood of Carpenters and Joiners of America
Before: Marilyn Silverman, Vice-Chair, and Board Members J. G. Knight and A. Haward.
DECISION OF THE BOARD
1This is a request for reconsideration of a decision of the Board dated May 4, 2001.
2The decision of May 4, 2001 was a decision ordering a vote in a displacement application. No response was received by the employer but a timely intervention was filed by the intervenor who holds bargaining right for the employees who are the subject matter of the application. The Board ordered a vote which was held on May 8, 2001 as required by the May 4, 2001 decision. Two ballots were cast. These ballots were segregated and sealed at the vote.
3The applicant asserts that the Board erred in part of its decision specifically paragraph 9 which states:
- The intervenor submits that the membership evidence filed does not represent membership evidence on behalf of 40% or more of the employees in the bargaining unit. The vote is ordered on the basis of the appearance of 40% as provided for in the Act. This issue can be raised before the panel scheduled to hear this application.
4In its request for reconsideration, the applicant provides the Board with its submissions on why an entity other than an employer cannot file a section 8.1 objection. Further it suggests that the Board erred in reserving for consideration the issue of whether the membership evidence filed does not represent membership evidence on behalf of 40% or more of the employees in the bargaining unit. The applicant also contends that there is no basis for not counting the ballots “as the Board appears to have ordered in the decision”.
5The responding party asks that the Board declare that the responding party has no standing to claim that the membership evidence filed does not represent membership evidence on behalf of 40% of the proposed bargaining unit and further requests that the Board issue an amended decision that the ballots be counted.
6The responding party is correct in that paragraph 9 of the May 4, 2001 is in error. In fact, the intervenor did not raise this issue in its intervention. In any event the Board is satisfied that 40% or more of the individuals proposed in the application for certification appear to be members of the applicant. There is nothing to be brought before another panel in respect of this issue. The decision of May 4, 2001 is amended to delete paragraph 9.
7In respect of the request that the Board order the ballots cast to be counted, the Board’s decision of May 4, 2001 did not indicate that the ballot box was sealed because of a section 8.1 notice nor did it order the sealing of the ballot box.
8The certification worksheet indicates that of the two individuals who voted, both were challenged by the intervenor on the basis that they were not performing bargaining unit work on the date of application. These votes were segregated and sealed for that reason. The votes were neither segregated nor sealed on the basis of a purported section 8.1 challenge or because the Board ordered that the ballot box be sealed. Therefore the amendment to the decision that the applicant requests and has been granted cannot provide the result of having those ballots that were cast be counted.
9Having regard to these circumstances and for the reasons provided above, the request for reconsideration is granted to the extent provided for in paragraph 6 above.
“Marilyn Silverman”
for the Board