Universal Workers Union, Labourers’ International Union of North America Local 183 v. The Industrial & Commercial Cleaning Co. of Canada Ltd., 2001 CanLII 17922

Universal Workers Union, Labourers’ International Union of North America Local 183 v. The Industrial & Commercial Cleaning Co. of Canada Ltd.

File No.: 1609-01-R Date: September 12, 2001

Applicant: Universal Workers Union, Labourers’ International Union of North America Local 183 Responding Party: The Industrial & Commercial Cleaning Co. of Canada Ltd.

Before: Patrick Kelly, Vice‑Chair, and Board Members J. A. Ronson and R. R. Montague.

DECISION OF PATRICK KELLY, VICE-CHAIR, AND BOARD MEMBER R. R. MONTAGUE; September 12, 2001

1. This is an application for certification.

2. The Registrar has certified that the applicant had been found to be a trade union in an earlier proceeding under the Labour Relations Act, 1995 (the “Act”). Therefore, having regard to the Registrar’s certificate and section 113 of the Act, the Board finds that the applicant is a trade union within the meaning of section 1(1) of the Act.

3. The membership cards filed by the applicant are headed: “Application for Membership” in bold capital letters, followed in the next line by: “In the Universal Workers Union Local 183”. The body of the membership application document states:

I hereby make application to become a member of the Universal Workers Union Local 183. In doing so, I, of my own free will and accord, hereby authorize the Universal Workers Union Local 183 or its representatives, or officers to act for me as collective bargaining agent in all matters pertaining to my employment including rates of wages, hours of work and other conditions of employment.

There is no reference to Labourers' International Union of North America on the membership cards filed by the applicant. However, because the name of the organization on the membership cards filed in this application and the name of the applicant both bear the words “Universal Workers Union Local 183”, the Board is satisfied 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 appear to be members of the applicant at the time the application was made.

4. The responding party disputes the applicant’s estimate of the number of employees in the applicant’s proposed bargaining unit. It contends there are no employees in the applicant’s proposed bargaining unit, although it admits that there are workers at a site indicated in the applicant’s proposed bargaining unit who the responding party contends are “sub-contractors and are working as self employed individuals under an agreement”. The responding party did not propose a different bargaining unit from that proposed by the applicant, and it did not assert that the applicant’s proposed bargaining unit could not be appropriate. It also provided no names on Schedules A and B attached to the response. It gives notice under section 8.1 of the Act.

5. The Board finds that the bargaining unit described in the application could be appropriate. The responding party has not filed a valid section 8.1 objection. It has not agreed with the applicant’s proposed bargaining unit nor has it proposed a bargaining unit different from that proposed by the applicant. It concedes there are workers in the bargaining unit (although it contends they are not employees) but it failed to provide a list of those individuals. 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.

6. The Board directs that a representation vote be taken of the individuals in the following voting constituency:

all employees of The Industrial & Commercial Cleaning Co. of Canada Ltd. at 2737 Kipling Avenue, Etobicoke, Ontario and 2757 Kipling Avenue, Etobicoke, Ontario, save and except supervisors, persons above the rank of supervisor, office, sales and clerical staff.

7. The vote will be held on September 14, 2001. Other vote arrangements will be as determined by the Registrar and set out on the attached "Notice of Vote and of Hearing".

8. All individuals who had an employment relationship with the responding party in the voting constituency on September 7, 2001, the certification application filing date, are eligible to vote. Employees having an employment relationship on September 7, 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.

9. 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.

10. The Board notes that there is no completed Confirmation of Posting in this file. To the extent the responding party failed to make and post copies of the Application for Certification (Form A-1) and/or the Notice to Employees of Application for Certification (Form C-2) as directed by the Registrar in Confirmation of Filing of Application for Certification dated , 2001, it is directed to do so immediately. These copies must remain posted for a period of 30 days. The responding party is further directed to file with the Board a completed Confirmation of Posting verifying that the above-mentioned copies have been posted appropriately, and to do so before 12:00 p.m. on September 13, 2001.

11. 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 Forms referred to in paragraph 10 above. These copies must remain posted for 30 days.

12. 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, other than status disputes, including any matters relating to the representation vote, 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).

13. The matter is referred to the Registrar.

“Patrick Kelly”

for the majority

DECISION OF BOARD MEMBER J. A. RONSON; September 12, 2001

1. I dissent.

2. 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.

3. 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.

“J. A. Ronson”