0146-01-R; 0638-01-U Universal Workers Union, Labourers' International Union of North America Local 183 Applicant v. Mase Contracting Ltd., Responding Party.
BEFORE: Harry Freedman, Vice-Chair, and Board Members J.G. Knight and G. McMenemy.
DECISION OF THE BOARD; July 30, 2001
The Board, by decision dated April 19, 2001 directed a representation vote in the certification application in Board File No. 0146-01-R. The vote was held on April 23, 2001. There were a number of issues raised by the parties in that application, and in addition, the applicant filed an application under section 96 of the Labour Relations Act, 1995, S.O. 1995, c. 1, as am. (the “Act”) on May 25, 2001. One of the several remedies sought by the applicant is another representation vote on the basis that the responding party has violated the Act, thereby affecting the ability of the employees to express their true wishes about being represented by the applicant. The responding party vigourously denies that it contravened the Act.
The parties met with a Labour Relations Officer in respect of both applications. As a result of the Officer’s efforts, the parties were able to reach a settlement of both matters and they executed a Memorandum of Agreement. In that Memorandum of Agreement, the parties have agreed to the Board making various orders, including the holding of an additional representation vote. The parties’ Memorandum of Agreement is set out below.
Board File Nos. 0146-01-R
0638-01-U
MEMORANDUM OF AGREEMENT
BETWEEN:
Universal Workers Union, LIUNA Local 183
(the “Union”)
- and -
Mase Contracting Ltd.
(the “Company”)
Whereas the Union has filed an Application for Certification (Board File No. 0146-01-R)
And whereas the Union has filed an Application under Section 96 of the Act (Board File No. 0638-01-U);
And whereas the Company has denied any wrongdoing;
Therefore the parties agree to the following in full and final settlement of all disputes between them:
There shall be a Board supervised vote at the Company’s premises on Friday, September 28, 2001 between the hours of 7:00 a.m. to 7:30 a.m.
Those employees on the attached agreed to “Voters List”, Appendix “B”, shall be entitled to cast ballots in the vote and have their ballots counted.
The parties agree that the Board shall dispose of the Application for Certification (Board File No. 0146-01-R) based on the results of the vote subject to the right of any party to file new unfair labour practice allegations.
The parties request that the Board direct the posting of the attached “Board Notice”, Appendix “A”, at the Company’s premises and that such shall remain posted until October 5, 2001.
The Union shall be entitled to conduct a meeting of the employees. In this regard the Company shall direct all persons on the voters list to report to the Company’s premises on September 26, 2001 and be prepared to leave with the Union by 2:30 p.m. on that day. All employees working on that day shall continue to be paid by the Company up until 4:30 p.m.
The Union agrees to have the “Board Notice” identified in paragraph 4 above translated into Spanish and shall provide a copy of the translation to the Company. The Company agrees to post the translated Notice at the Company’s premises within seven (7) days of receipt of same subject to concerns being raised between counsel for the parties. The Union agrees to provide the translation of the “Board Notice” by August 10, 2001.
The Union agrees to have a Spanish translator present for the meeting with employees on Wednesday, September 26, 2001. Translation shall be provided by the Union.
The Company shall provide the Union with the current telephone numbers of the employees on the “Voters List” not later than seven (7) days of the date of this Memorandum of Agreement.
The parties agree that this Memorandum of Agreement constitutes a full and final settlement of the Application under Section 96 of the Act (Board File No. 0638-01-U).
The parties agree that this Memorandum of Agreement is entered into without any admission of liability or wrongdoing. The parties further agree that this settlement is entered into without prejudice or precedent and cannot be relied on by either party in any future proceeding save and except for purposes of enforcement of the settlement pursuant to section 96(7) of the Labour Relations Act, 1995.
The parties request that this Memorandum of Agreement be incorporated in a consent order of the Board and the Board make the necessary directions in respect of the above.
Dated at Toronto this 18th day of July, 2001.
For the Union For the Company
“Carlos Dionisio” “Anita M. Hines”
[See Appendix “A” and “B” attached]
- The responding party has denied any wrongdoing and therefore the Board does not have the jurisdiction under section 11 of the Act to order a second representation vote in the application for certification. Nevertheless, the Board is prepared to draw an inference from the parties’ agreement to the orders to which they have agreed that despite there being no violation of the Act, that an additional representation vote is necessary to determine the true wishes of the employees. Section 111(5) of the Act provides:
Where the Board determines that a representation vote is to be taken amongst the employees in a bargaining unit or voting constituency, the Board may hold the additional representation votes as it considers necessary to determine the true wishes of the employees.
In view of the parties’ agreement to the orders they have asked the Board to issue, the Board considers it necessary to direct an additional representation vote in order to determine the true wishes of the employees.
- Therefore, having regard to the agreement of the parties and section 111(5) of the Act, the Board:
a) directs that a representation vote be taken among the persons listed on the voters’ list attached as Appendix “B” to this decision. The vote shall take place at the responding party’s premises on Friday, September 28, 2001 between the hours of 7:00 a.m. to 7:30 a.m. Voters will be asked to indicate whether or not they wish to be represented by the applicant in their employment relations with the responding party;
b) directs the responding party to post the notice attached as Appendix “A” to this decision (the “Notice”) at its premises and to keep the Notice posted continuously until Friday, October 5, 2001;
c) directs the responding party to permit the applicant to conduct a meeting of the responding party’s employees on Wednesday September 26, 2001, by directing employees to report to the responding party’s premises not later than 2:15 p.m. on that day and to permit those employees to leave the premises with representatives of the applicant by 2:30 p.m. and to pay the employees who were working on that day, reported at 2:15 p.m. and left by 2:30 p.m. their normal pay for that day as if they had worked until 4:30 p.m.;
d) directs the applicant to translate the Notice into Spanish and to provide a copy of the translated Notice to the responding party on or before August 10, 2001;
e) directs the responding party to post the translated Notice at its premises within seven days of its receipt from the applicant, subject to counsel having concerns about the notice;
f) directs the applicant to secure and be responsible for the attendance of a Spanish translator at the meeting of employees on September 26, 2001 and to provide Spanish translation at that meeting;
g) directs the responding party to provide the applicant with the current phone numbers of the employees listed on Appendix “B” to this decision.
The Board notes that the Memorandum of Agreement provides that the application in Board File No. 0638-01-U has been resolved. The Board also notes that the parties have agreed in their Memorandum of Agreement to have the Board dispose of the application for certification in Board File No. 0146-01-R based on the results of the representation vote that takes place on September 28, 2001, subject to either party filing new unfair labour practice allegations. The final disposition of the application for certification will be a matter for the panel of the Board that is assigned to deal with it after the representation vote is conducted and the ballots counted.
The application in Board File No. 0146-01-R is referred to the Registrar.
The application in Board File No. 0638-01-U is terminated.
This panel of the Board is not seized with this matter.
“Harry Freedman”
for the Board
Appendix "A"
The Labour Relations Act, 1995
NOTICE TO EMPLOYEES
Posted by Order of the Ontario Labour Relations Board
Employees in Ontario have these rights which are protected by law:
An employee has the right to join a trade union of his or her own choice and to participate in its lawful activities.
An employee has the right to oppose a trade union.
An employee has the right to cast a secret ballot in favour of, or in opposition to, a trade union if the Ontario Labour Relations Board directs a representation vote.
An employee has the right not to be discriminated against or penalized by an employer or by a trade union because he or she is exercising rights under the Labour Relations Act, 1995.
An employee has the right not to be penalized because he or she participated in a proceeding under the Labour Relations Act, 1995.
An employee has the right to remain neutral, to refuse to sign documents opposing the union or to refuse to sign a union membership card.
It is unlawful for employees to be fired or in any way penalized for the exercise of these rights. If this happens, a complaint may be filed with the Ontario Labour Relations Board.
It is unlawful for anyone to use intimidation to compel someone else to become or refrain from becoming a member of a trade union, or to compel someone to refrain from exercising rights under the Labour Relations Act, 1995.
APPENDIX “B”
VOTER’S LIST
Carlos Ruano
Jose Luis Morales
Jose Luis Melara
Miguel Escobar
Ioan (John) Ciurmarnean