2472-01-R UFCW Canada, Applicant v. Sobey’s Whitby Retail Support Centre, Responding Party v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Intervenor v. District 2A, Transportation, Technical, Warehouse, Industrial and Service Employees Union, affiliated with American Maritime Officers, Intervenor.

2483-01-R National Automobile, Aerospace, Transportation & General Workers Union of Canada (CAW-Canada), Applicant v. Sobeys Inc., Responding Party v. United Food and Commercial Workers International Union, Intervenor v. District 2A, Transportation, Technical, Warehouse, Industrial and Service Employees Union, affiliated with American Maritime Officers, Intervenor.

BEFORE: Patrick Kelly, Vice‑Chair, and Board Members J. A. Ronson and D. A. Patterson.

DECISION OF PATRICK KELLY, VICE-CHAIR, AND BOARD MEMBER D. A. PATTERSON; December 7, 2001

1. These are displacement applications for certification. We shall refer to the application in Board File No. 2472-01-R as “the UFCW application”, and the application in Board File No. 2483-01-R as “the CAW application”.

2. The Registrar has certified that the applicants have been found to be trade unions in earlier proceedings under the Labour Relations Act, 1995 (the “Act”). Therefore, having regard to the Registrar’s certificates and section 113 of the Act, the Board finds that the applicants are trade unions within the meaning of section 1(1) of the Act.

3. For the purposes of these applications, all the parties appear to concede that at least some of the employees in this application are currently represented by the District 2A, Transportation, Technical, Warehouse, Industrial and Service Employees Union, Affiliated with American Maritime Officers (“District 2-A”).

4. The bargaining unit described in the collective agreement that appears to bind District 2-A and the responding party in each of these applications reads as follows:

all employees in the Regional Municipality of Durham serving the Sobeys account save and except forepersons and persons above the rank of foreperson, dispatchers, drivers, office, clerical, technical staff, security staff, warehouse maintenance, janitorial, audit and quality assurance.

5. The responding party in each application and District 2-A contend that the Board should concern itself with what is referred to as “crossover” membership evidence i.e. evidence that the same individual or individuals have signed membership cards for membership in both of the applicants. The responding party in each application appears to be of the view that the existence of such dual membership goes to the weight of the membership evidence as a whole. District 2-A insists that the Board should disqualify such crossover evidence from its determination of an appearance of membership in each application.

6. An individual is entitled to apply for membership in as many trade unions as he or she wishes. We are not clear how multiple memberships held by an individual goes to any assessment of the membership evidence in these matters, and we have serious doubts concerning the notion that the cards of individuals who applied for membership in both applicant trade unions should not be taken into account by the Board in these matters. In any event, we did not compare the respective membership evidence filed in these applications.

7. These applications appear to be timely.

The membership evidence in the CAW application

8. It appears to the Board on an examination of the information provided in the CAW 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 CAW application were members of the union at the time the application was made. This finding of an appearance of membership support did not take into account membership cards which, when compared to the Schedule A list of employees provided by the responding party, appear to have been completed by part-time employees. We did not consider those membership cards because the applicant contends that this is an application in respect of full-time employees only. Nonetheless, as we have indicated, the applicant still established the necessary level of membership support.

The membership evidence in the UFCW application

9. It appears to the Board on an examination of only the information provided in the UFCW 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 UFCW application were members of the union at the time the application was made.

Other issues

10. In each of these applications, the responding party disputes the applicants’ estimates of the number of employees in their respective proposed bargaining units, and proposes a different bargaining unit than that proposed by the applicants. In each application, the responding party contends that the applicants’ bargaining units could not be appropriate. Notice under section 8.1 is provided by the responding party in each application.

11. There are other disputes in both the UFCW application and the CAW application with respect to the appropriate bargaining unit. There are numerous other disputes between the parties, most of which cannot be resolved at this stage. We do not intend to set out all those issues here. However, one such dispute concerns whether a representation vote should be held in all the circumstances. The responding party in each application and Distract 2-A say there should be no vote. The applicants contend the vote should proceed on December 11, 2001. We are of the view that a vote should be held quickly, as contemplated by the Act. That can be achieved while still preserving the respective positions of the parties.

12. In its previous decision of December 4, 2001, the Board (differently constituted) posited the notion of a ballot containing three choices, one for each of the two applicants and a third “no union” option. Given that that decision was made in the absence of any filed responses or interventions, the Board did not appear to appreciate the true nature of these applications as displacement applications at the time. Clearly, as these are displacement applications, District 2-A is entitled to be included as a choice of the voters, and whether there should be a “no union” option must be re-examined by the Board. The question becomes whether all potential voters in these applications should be ultimately entitled to consider District 2-A as their bargaining agent, and also whether some of the potential voters should have the option of a “no union” option. That is because there is some dispute as to whether the UFCW application is a displacement application in respect of full time and part time employees represented by District 2-A. The applicant in the UFCW application appears to contend that District 2-A represented part time employees, and that they are ostensibly covered by the terms of the collective agreement that appears to bind District 2-A and each responding party in these applications, which takes the position that District 2-A had bargaining rights only for full time employees, and that the collective agreement applies only to full time employees. District 2-A’s position is less clear on this issue, although it does appear to agree that the collective agreement was not previously applied to part time employees.

13. The applicant in the CAW application states that it does not seek to represent the part time employees through its application. But for purposes of the UFCW application, part time employees are very much in issue. It is not clear whether they are currently represented by District 2-A or covered by the collective agreement in issue. The design of the ballot that will be cast by part time employees, therefore, must take into account that there are two possibilities, one that they are represented by District 2-A, in which case the choice of part-time employees should be between District 2-A and UFCW Canada; or two, that they are not represented by District 2-A, and therefore should have an opportunity to choose between UFCW Canada or no union.

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

all employees of the responding party in the Regional Municipality of Durham serving the Sobeys account save and except forepersons and persons above the rank of foreperson, dispatchers, drivers, office, clerical, technical staff, security staff, warehouse maintenance, janitorial, audit and quality assurance.

15. The vote will be held on Tuesday, December 11, 2001. Other vote arrangements will be as determined by the Registrar and set out on the attached "Notice of Vote and of Hearing".

16. All individuals who had an employment relationship with the responding party in each application in the voting constituency on December 3, 2001, the filing date of each application, are eligible to vote. Employees having an employment relationship on December 3, 2001 include employees who were not at work on that date, so long as there is a reasonable expectation of their return to employment.

17. Voters who are full-time employees will be asked whether they wish to be represented by UFCW Canada or CAW-Canada or District 2A, Transportation, Technical, Warehouse, Industrial and Service Employees Union, Affiliated with American Maritime Officers. Voters who are part-time employees will be provided two ballots for reasons set out in paragraph 13. The first ballot will pose the question whether the voter wishes to be represented by District 2A, Transportation, Technical, Warehouse, Industrial and Service Employees Union, Affiliated with American Maritime Officers or UFCW Canada. The second ballot will pose the question whether the voter wishes to be represented by UFCW Canada or not. Part-time employees are entitled to complete both ballots.

18. Given the circumstances and the many unresolved issues in these matters, it is appropriate to seal the ballot box in the representation vote, and we so order. The ballots are not to be counted until the Board orders or the parties agree. We also direct that all ballots be segregated by location i.e. the Nordeagle Avenue and South Blair Street locations. We further direct that he ballots cast by full-time employees be segregated from those cast by part-time employees, and that the two types of ballots cast by part time employees be segregated.

19. The Board notes that there is no completed Confirmation of Posting in these files. To the extent the responding party in each application 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 either Confirmation of Filing of Application for Certification dated December 4, 2001 and December 5, 2001 respectively, it is directed to do so immediately. These copies must remain posted for a period of 30 days. The responding party in each application 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 on or before December 10, 2001.

20. 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 19 above. These copies must remain posted for 30 days.

21. The responding party in each application claims that it is not the employer of employees at 202 South Blair Street in Whitby. The UFCW application purports to cover those employees. Accordingly, the Labour Relations Officer assigned to these matters is hereby directed to post forthwith copies of the UFCW application, the Notice of Vote and Hearing, and this decision at the premises at 202 South Blair Street, Unit 12, Whitby, Ontario L1N 8X9.

22. Any party or person who wishes to make representations to the Board about any issue remaining in dispute which relates to these applications for certification, 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).

23. These matters are referred to the Registrar.

“Patrick Kelly”

for the majority

DECISION OF BOARD MEMBER J. A. RONSON; December 7, 2001

1. Frankly, the issues raised by all of the various files concerning the employer, the unions and the employees at the various locations create such a mish-mash to the mind that I don’t feel it wise to order a vote or votes until the Board has listened to the interested parties at an open hearing. At that time it would be possible to identify any matters which should be determined before a vote takes place and to have them dealt with as the Board sees fit.

“J. A. Ronson”