Nuno Dos Santos v. United Brotherhood of Retail, Food, Industrial and Service Trades International Union
1300-01-R Nuno Dos Santos, Applicant v. United Brotherhood of Retail, Food, Industrial and Service Trades International Union, Responding Party v. 935772 Ontario Limited c.o.b. as Royal Taxi, Intervenor.
BEFORE: Timothy W. Sargeant, Vice-Chair.
APPEARANCES: Nuno Dos Santos and Daina Groskaufmanis for the applicant; Nini Jones and Sean Floyd for the responding party union; and Carl Peterson, Mitch Grossman and Spiros Bostas for the intervenor.
DECISION OF THE BOARD; September 6, 2001
1The applicant has applied to the Board under section 63 of the Labour Relations Act, 1995 (the “Act”) for a declaration that the responding party no longer represents the employees in the bargaining unit for which it is the bargaining agent.
2This application was filed on August 1, 2001.
3As the decision of August 7, 2001 notes the responding party union requested that the ballot box be sealed. The board declined to do so and ordered a vote to be held on August 13, 2001. On August 13, 2001 the responding party union again asked that the ballot box be sealed as result of alleged voting irregularities. Again, that request was refused in a decision dated August 13, 2001.
4The responding party union again asks on September 5, 2001 that the ballot box be sealed. A hearing was held on the issue on September 5, 2001.
5The responding party union submits there are three serious issues currently before the Board that affect this application:
a) a request for reconsideration by the responding party union of the Board’s determination that forty percent of the employees in the bargaining unit had expressed a wish not to be represented by the union;
b) a timeliness issue that has arisen because of a remedy requested that in another Board proceeding alleging a breach of section 74 of the Act. In that proceeding, the applicant allegedly has sought a ruling that the collective agreement relevant to the matter be declared null and void. If such remedy were granted, the responding party union submits such remedy would make this application untimely.
c) Serious issues brought forward under section 63(16) of the Act and pursuant to section 96 of the Act relating to employer conduct and voting irregularities.
6Counsel for the responding party union states these three issues will all be raised at a hearing scheduled for September 18, 2001.
7Counsel for the responding party union submits that the ballot box should be sealed, given the seriousness of these issues, and given the prejudice that could arise to the responding party union if the ballots are counted. Counsel for the responding party union submits if the results of the vote are not favourable to the union, it will be difficult for the union in this industry to collect appropriate union dues and to exercise its duties both under the Act and the collective agreement.
8Both the applicant and the intervenor submit that the ballot box should not be sealed but that the ballots should be counted.
9The Board has in a decision dated August 7, 2001, with the benefit of a detailed response from the responding party union (detailing in part the industry practice of how union dues are collected and alleging a breach of section 63(16)), nevertheless determined that the ballot box should not be sealed. Further the Board in a decision dated August 13, 2001 determined, in the face of allegations of voting irregulations, that the ballot box should not be sealed.
10Though the issue of timeliness was not before either panel the Board does not see this issue as a reason for sealing the ballot box.
11The Board has considered the submission of counsel for the responding party union relating to prejudice, but in the circumstances feels that such allegation of prejudice is not sufficient in this instance to reverse the earlier Board decisions and now find that the ballot box should be sealed. The Board however would point out to all employees that this decision in no way relieves employees from their obligation to pay union dues.
12The Board confirms its oral decision of September 5, 2001, at which time it ordered that the ballots in this matter be counted.
"Timothy W. Sargeant"
for the Board