Ontario Public Service Employees Union v. Ontario Lottery and Gaming Corporation, 2001 CanLII 18479

Ontario Public Service Employees Union v. Ontario Lottery and Gaming Corporation

2482-01-R Ontario Public Service Employees Union, Applicant v. Ontario Lottery and Gaming Corporation c.o.b. as Thunder Bay Charity Casino, Responding Party.

BEFORE: Patrick Kelly, Vice‑Chair, and Board Members J. A. Rundle and R. R. Montague.

DECISION OF PATRICK KELLY, VICE-CHAIR, AND BOARD MEMBER R. R. MONTAGUE; December 6, 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. 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.

4. 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. 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. 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.

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

all security officers of Ontario Lottery and Gaming Corporation c.o.b. as Thunder Bay Charity Casino employed at Thunder Bay Charity Casino in the City of Thunder Bay, Ontario, save and except supervisors and persons above the rank of supervisor and surveillance personnel.

7. The vote will be held on December 10, 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 December 3, 2001, the certification application filing date, are eligible to vote. Employees having an employment relationship on December 3, 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. There may be a dispute between the parties as to whether or not the position of dual rate supervisor and supervisor 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.

10. 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.

11. The Board notes that the Confirmation of Posting filed by the responding party indicates that it posted only the Application for Certification (Form A-1). To the extent the responding party failed to also post the “Notice to Employees of Application for Certification” (Form C-2), it is directed to do so immediately, and file with the Board an additional Confirmation of Posting verifying that the Form C-2 has been posted. In the event the Form C-2 was posted with the Form A-1, the responding party is to file an amended Confirmation of Posting. In either case, the responding party is directed to file with the Board an additional or amended Confirmation of Posting on or before December 7, 2001.

12. 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 application for certification. These copies must remain posted for 30 days.

13. 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).

14. The matter is referred to the Registrar.

“Patrick Kelly”

for the majority

DECISION OF BOARD MEMBER J. A. RUNDLE; December 6, 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. Rundle”