Ontario Labour Relations Board
Between: National Automobile, Aerospace, Transportationa nd General Workers Union of Canada (CAW-Canada), Applicant v. Premco Manufacturing Ltd., Responding Party.
Before: Brian McLean, Vice‑Chair, and Board Members J. A. Ronson and H. Peacock.
DECISION OF BRIAN MCLEAN, VICE-CHAIR, AND BOARD MEMBER H. PEACOCK; December 12, 2001
1This is an application for certification.
2The 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.
3It 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.
4The 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 than that proposed by the applicant and it contends that the applicant's bargaining unit could not be appropriate. It gives notice under section 8.1 of the Act.
5The 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.
6The Board directs that a representation vote be taken of the individuals in the following voting constituency:
all employees of Premco Manufacturing Ltd. in the City of St. Thomas, Ontario, save and except supervisors, persons above the rank of supervisor, and office and sales staff.
7The vote will be held on December 14, 2001. Other vote arrangements will be as determined by the Registrar and set out on the attached "Notice of Vote and of Hearing".
8All individuals who had an employment relationship with the responding party in the voting constituency on December 7, 2001, the certification application filing date, are eligible to vote. Employees having an employment relationship on December 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.
9There is a dispute between the parties as to whether or not the positions of technical staff and students employed during the school vacation period 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.
10The responding party requests that the Board conduct an inquiry into the membership evidence filed with the application. It requests the Board to advise it of certain information. The Board can advise that it reviewed all of the membership cards filed with the application. All cards are clearly and appropriately dated. All cards are dated after December 7, 2000. There are cards submitted with the application which do not match names on the list of employees filed by the employer. There are also some cards whose signatures are arguably illegible. Even if the Board discounts all of these cards (without finding that it must, in the case of illegible signatures, do so) it is still apparent that forty per cent or more of the 85 employees that the employer asserts are in the bargaining unit are members of the trade union.
11There are no exceptions in the form A-4. There is suggestion in the Form A-4 that the membership cards were marked in. However, (again assuming without finding that this is a relevant consideration) absent any specific allegations that membership evidence was mailed in, it is not appropriate to defer the holding of a vote.
12Voters will be asked to indicate whether or not they wish to be represented by the applicant in their employment relations with the responding party.
13The 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 "Notice to Employees of Application for Certification". These copies must remain posted for 30 days.
14Any party or person who wishes to make representations to the Board about any issue remaining in dispute which relates to the application for certification, 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).
15The matter is referred to the Registrar.
"Brian McLean"
for the majority
DECISION OF BOARD MEMBER J. A. RONSON; December 12, 2001
I dissent.
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.
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"