Court File and Parties
File No.: 1958-01-R The Society of Energy Professionals, Applicant v. Ontario Power Generation, Inc., Responding Party.
Before: Brian McLean, Vice-Chair, and Board Members J. A. Rundle and D. A. Patterson.
Decision of the Board; October 19, 2001
Decision
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 Board directs that a representation vote be taken of the individuals in the following voting constituency:
all employees in Ontario Power Generation, Inc. in the Province of Ontario employed as supervisors and professional, administrative and associated employees whose full-time duties are security staff work, including employees who are paid from Salary Schedule 05 (Security Staff) save and except for persons who perform managerial functions as distinct from supervisory functions; persons employed in a confidential capacity with respect to labour relations; and persons for which any trade union held bargaining rights as of October 1, 2001.
Clarity Note: For purpose of clarity, the bargaining unit excludes:
a) those persons who perform managerial functions as distinct from supervisory functions. An employee is performing managerial functions if:
i) he/she performs managerial functions such as hiring, promotion, performance increase, discharge, etc., over other employees in the bargaining unit; and
he/she is required to spend the majority of his/her time performing managerial duties; and
he/she supervises at least seven (7) employees (directly and indirectly) on a regular and continuous basis; or
ii) he/she supervises persons who are excluded from the Society's bargaining unit by reason of performing managerial functions or being employed in a confidential capacity with respect to labour relations.
5The vote will be held on October 23, 2001. Other vote arrangements will be as determined by the Registrar and set out on the attached "Notice of Vote and of Hearing".
6All individuals who had an employment relationship with the responding party in the voting constituency on October 16, 2001, the certification application filing date, are eligible to vote. Employees having an employment relationship on October 16, 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.
7There is a dispute between the parties as to whether the employees affected by this application are eligible for collective bargaining under the Act. The employer asserts that the applicant is estopped from bringing this application due to certain agreements made between the parties or in the alternative that the employees are excluded by section 13(b) of the Act because they are managers. The employer also gives the board notice under section 8.1 of the Act. The Board notes that the section 8.1 objection is not numerically relevant. However, there is a chance that not all of the affected employees would be found to have the same status if the Board must deal with the employer's objection that these employees are managers. Accordingly, the ballots will be segregated and the ballot box sealed unless the parties agree that each of the affected employees exercise the same duties and responsibilities and therefore that they will either all be found to be managers or will all be found to be employees.
8Voters will be asked to indicate whether or not they wish to be represented by the applicant in their employment relations with the responding party.
9The 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.
10Any 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).
11The matter is referred to the Registrar.
"Brian McLean"
for the Board