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. UFCW Canada, Intervenor v. District 2A, Transportation, Technical, Warehouse, Industrial and Service Employees Union, affiliated with American Maritime Officers, Intervenor.
BEFORE: Brian McLean, Vice‑Chair, and Board Members J. A. Rundle and R. R. Montague.
APPEARANCES: John R. Evans, John Forster, John L. Stout, Travis Kearns and Stephen Flaherty for UFCW Canada; Frank Luce and John Aman for CAW-Canada; Stewart Saxe, Art Tarasuk and Bill Dawson for Sobeys; Peter Shklanka and Mike McCreary for District 2A.
DECISION OF THE BOARD; December 17, 2001
The Board conducted a consultation today to determine which choices employees should have in a representation vote and the date on which that vote should be held.
The Board has carefully considered all of the submissions made by the parties and has determined that the following process will best reveal the true wishes of the employees. Our reasons are brief and will follow our determination to ensure that all concerned can understand what the Board has decided.
When is the vote?
- The representation vote will be held on Thursday, December 20, 2001. Other vote arrangements will be as determined by the Registrar and set out in a “Notice of Vote and of Hearing”.
Who votes?
- The Board directs that a representation vote 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, audit and quality assurance.
All employees will be asked whether they wish to be represented by CAW (Canada); District 2A, Transportation, Technical, Warehouse, Industrial and Service Employees Union - Affiliated with the American Maritime Officers; UFCW Canada or by no union in their relations with their employer.
If more than 50% of employees make one choice, that choice will prevail. If not, the Board will conduct a run-off vote. If a run-off vote is necessary it will take place on January 3, 2002. If further run-offs are necessary they will take place on January 10, 2002 and January 17, 2002.
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.
Segregations
Part-time employees and full-time employees will vote and, at least initially, be counted separately.
There is a dispute whether janitorial and maintenance employees should be included in the bargaining unit. There is also a dispute about whether employees who work at 202 South Blair Street, Unit 12 are eligible to vote. Disputed employees may cast ballots and their ballots will be segregated and not counted until the Board so orders or the parties agree.
Brief Reasons
The Board appreciates the submissions made in assisting it to come to a decision in this unique and challenging case. Parties coming before this Board in future applications must recognize that this decision is premised on the extraordinary facts of this case which are unlikely to reoccur.
As indicated, it is our view that conducting the vote in the manner described is the best labour relations result. The Board urges the parties to consider the wishes of the employees as revealed by the vote in determining which issues, if any, require litigation. One of the main purposes of the Act is to identify the true wishes of the employees so that employees can freely choose workplace representation. While the ballot in this case is not absolutely perfect, in our view, it satisfies this purpose.
In determining that Ryder Logistics was not entitled to notice at this stage the Board is following its usual practice. The Board’s practice in “who is the employer disputes” is to give the alleged “other” employer notice at the time the vote is ordered. Such employers, like Ryder, do not have a direct interest in such applications because the applications do not affect their employees, these being applications for Sobey’s employees. We do not comment on whether the notices which were posted in the Blair Street workplace constitute notice, although it is clear Ryder must be aware that some Board proceeding is ongoing. Nevertheless, the Board directs that all parties deliver copies of all material and pleadings which they have filed with the Board to Ryder Logistics by Wednesday, December 19, 2001 at 12:00 noon as they may have an interest in participating in the determination of who is the employer.
It is apparent that the most difficult issue facing the Board is whether there ought to be a non-union option on the full-time ballot. The UFCW’s application that District 2A has already abandoned these bargaining rights makes a non-union option necessary. Quite simply, there is an allegation that there is no union at Sobey’s. That is fundamental to the applications for certification, it is not merely another application which can be separated from the workplace reality. The termination application filed today in which 40% of employees in the full-time unit appear to support the termination of District 2A’s bargaining rights merely confirms that a non-union option is necessary. Those two applications being Board Files Nos. 2644-01-R and
2333-01-U are hereby consolidated with the certification applications already before the Board.
Similarly, the Board was following its normal practice in placing CAW on the part-time ballot. In any application for certification where there is the possibility that the unit applied for is smaller than the actual appropriate bargaining unit, the Board always votes the larger unit. We believe it is appropriate to do so in this case also.
Finally, we were not prepared to defer the holding of the representation vote. Although it is possible that another vote may have to be ordered after litigation, in our view the damage caused by that is much less significant than the labour relations harm which is caused by deferring the vote. While we agree with counsel for District 2A that turnover is not nearly as high in industrial workplaces as it is in the construction industry, in our view the Board’s concerns as expressed in Penegal Trim & Supply, [2000] OLRB Rep. March/April 333 are still applicable. The fact is that pre-vote litigation of these matters could take months and no one can predict what will happen in the workplace over that time. In our view a quick vote which is counted will, at a minimum, reduce litigation time and may end all of the disputes.
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.
“Brian McLean”
for the Board