0609-01-R Service Employees International Union – Local 528, Applicant v. Ontario Lottery and Gaming Corporation c.o.b. as Casino Sault Ste. Marie, Responding Party.
BEFORE: Timothy W. Sargeant, Vice‑Chair, and Board Members J. A. Rundle and H. Peacock.
DECISION OF TIMOTHY W. SARGEANT, VICE-CHAIR, AND BOARD MEMBER H. PEACOCK; May 25, 2001
This is an application for certification.
The applicant has not previouly been found to be a trade union within the meaning of section 1(1) of the Labour Relations Act, 1995, S.O. 1995, c. 1, as amended (the “Act”). The applicant is therefore directed to, not later than June 15, 2001, file with the Board and deliver to the responding party copies of all materials upon which it intends to rely in establishing that it is a trade union within the meaning of the Act.
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.
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 and it contends that the applicant’s bargaining unit could not be appropriate. It gives notice under section 8.1 of the Act.
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.
The Board directs that a representation vote be taken of the individuals in the following voting constituency:
all employees of Ontario Lottery and Gaming Corporation c.o.b. as Casino Sault Ste. Marie in the district of Algoma, save and except dual rate supervisors, those above the rank of dual rate supervisor, summer students, surveillancce and security staff, office and clerical staff.
The vote will be held on May 29, 2001. Other vote arrangements will be as determined by the Registrar and set out on the attached "Notice of Vote and of Hearing".
All individuals who had an employment relationship with the responding party in the voting constituency on May 22, 2001, the certification application filing date, are eligible to vote. Employees having an employment relationship on May 22, 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.
There is a dispute between the parties as to whether the bargaining unit description should read “all employees of the Ontario Lottery and Gaming Corporation c.o.b. as Casino Sault Ste Marie in the district of Algoma …” or “in the City of Sault Ste Marie …”. There is also a dispute between the parties as to whether or not the position of maintenance specialist should be included in the bargaining unit. There maybe a dispute between the parties as to whether the positions of security officers, property hosts and surveillance operators, scheduling clerks, audit and payroll staff should be included in the bargaining unit. If any individuals are in dispute as a result of these disputes and wishes to cast a ballot 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.
The responding party raises a number of issues in its reply and asks that the ballot box be sealed as a result of its submissions. For the following reasons the Board is not prepared to seal the ballot box.
The responding party seeks to question the membership evidence submitted by the applicant. The responding party indicates that such evidence may have been signed six months and one year prior to the date of application. Having examined the membership evidence the Board is satisfied that no membership evidence relied upon by the Board was signed between six months and one year prior to the application. The Board therefore sees no reason to seal the ballot box based on this submission.
The responding party also questions the form of membership evidence. The Board is satisfied with such form and sees no reason to seal the ballot box based on this submission.
The responding party raises an issue that since employees have voluntarily come forward “stating they have been contracted by the SEIU regarding their signed card, when in fact they had signed no card at all”. The responding party asks that the Board conduct a signature sample to ensure the cards have not been created without employee’s knowledge. However, pursuant to the Act for the purpose of considering a certification application the Board “shall not consider any challenge to the information provided under subsection 7(13)”. The Board therefore is not prepared to seal the ballot box based on this submission.
The responding party has also asked that the ballot box be sealed as the applicant is not a “registered supplier” within the meaning of the Gaming Control Act, 1992. This issue was considered previously (see Casino Niagara 2000 OLRB Rep January/February 17). For similar reasons, the Board declines to seal the ballot box in this instance. The Gaming Control Act 1992 issue can be addressed, as necessary, following the vote and the counting of the ballots.
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.
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 "Notice to Employees of Application for Certification". These copies must remain posted for 30 days.
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).
The matter is referred to the Registrar.
“Timothy W. Sargeant”
for the majority
DECISION OF BOARD MEMBER J. A. RUNDLE; May 25, 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.
Furthermore I would have directed that the ballot box be sealed pending the determination of the applicant’s status as a “registered supplier” under the Gaming Control Act.
“J. A. Rundle”