128.1 (1) A trade union applying for certification as bargaining agent of the employees of an employer may elect to have its application dealt with under this section rather than under section 8.  2005, c. 15, s. 8. Notice to Board and employer (2) The trade union shall give written notice of the election, (a) to the Board, on the date the trade union files the application; and (b) to the employer, on the date the trade union delivers a copy of the application to the employer.  2005, c. 15, s. 8. Employer to provide information (3) Within two days (excluding Saturdays, Sundays and holidays) after receiving notice under subsection (2), the employer shall provide the Board with, (a) the names of the employees in the bargaining unit proposed in the application, as of the date the application is filed; and (b) if the employer gives the Board a written description of the bargaining unit that the employer proposes, in accordance with subsection 7 (14), the names of the employees in that proposed bargaining unit, as of the date the application is filed.  2005, c. 15, s. 8. Matters to be determined (4) On receiving an application for certification from a trade union that has elected to have its application dealt with under this section, the Board shall determine, as of the date the application is filed and on the basis of the information provided in or with the application and under subsection (3), (a) the bargaining unit; and (b) the percentage of employees in the bargaining unit who are members of the trade union.  2005, c. 15, s. 8. Exception: allegation of contravention, etc. (5) Nothing in subsection (4) prevents the Board from considering evidence and submissions relating to any allegation that section 70, 72 or 76 has been contravened or that there has been fraud or misrepresentation, if the Board considers it appropriate to consider the evidence and submissions in making a decision under this section.  2005, c. 15, s. 8. Hearing (6) The Board may hold a hearing if it considers it necessary in order to make a decision under this section.  2005, c. 15, s. 8. Dismissal: insufficient membership (7) The Board shall not certify the trade union as bargaining agent of the employees in the bargaining unit and shall dismiss the application if it is satisfied that fewer than 40 per cent of the employees in the bargaining unit are members of the trade union on the date the application is filed.  2005, c. 15, s. 8. Remedial dismissal (8) Subsection (9) applies where the trade union or person acting on behalf of the trade union contravenes this Act and, as a result, the membership evidence provided in or with the trade union’s application for certification does not likely reflect the true wishes of the employees in the bargaining unit.  2005, c. 15, s. 8. Same (9) In the circumstances described in subsection (8), on the application of an interested person, the Board may dismiss the application for certification if no other remedy, including a representation vote directed under clause (13) (b), would be sufficient to counter the effects of the contravention.  2005, c. 15, s. 8. Bar to reapplying (10) If the Board dismisses an application for certification under subsection (9), the Board shall not consider another application for certification by the trade union as the bargaining agent for any employee that was in the bargaining unit proposed in the original application until one year after the application is dismissed.  2005, c. 15, s. 8. Same (11) Despite subsection (10), the Board may consider an application for certification by the trade union as the bargaining agent for employees in a bargaining unit that includes an employee who was in the bargaining unit proposed in the original application if, (a) the position of the employee at the time the original application was made was different from his or her position at the time the new application was made; and (b) the employee would not have been in the bargaining unit proposed in the new application had he or she still been occupying the original position when the new application was made.  2005, c. 15, s. 8. Board shall direct representation vote (12) If the Board is satisfied that at least 40 per cent but not more than 55 per cent of the employees in the bargaining unit are members of the trade union on the date the application is filed, it shall direct that a representation vote be taken.  2005, c. 15, s. 8. Board may certify or may direct representation vote (13) If the Board is satisfied that more than 55 per cent of the employees in the bargaining unit are members of the trade union on the date the application is filed, it may, (a) certify the trade union as the bargaining agent of the employees in the bargaining unit; or (b) direct that a representation vote be taken.  2005, c. 15, s. 8. Representation votes (14) If the Board directs that a representation vote be taken, (a) the vote shall, unless the Board directs otherwise, be held within five days (excluding Saturdays, Sundays and holidays) after the day on which the direction for a representation vote is made; (b) the vote shall be by ballots cast in such a manner that individuals expressing their choice cannot be identified with the choice made; (c) the Board may direct that one or more ballots be segregated and that the ballot box containing the ballots be sealed until such time as the Board directs; (d) subject to section 11.1, the Board shall certify the trade union as bargaining agent of the employees in the bargaining unit if more than 50 per cent of the ballots cast in the representation vote by the employees in the bargaining unit are cast in favour of the trade union; and (e) subject to section 11, the Board shall not certify the trade union as bargaining agent of the employees in the bargaining unit and shall dismiss the application for certification if 50 per cent or fewer of the ballots cast in the representation vote by the employees in the bargaining unit are cast in favour of the trade union.  2005, c. 15, s. 8. Bar to reapplication (15) If the Board dismisses an application for certification under clause (14) (e), the Board shall not consider another application for certification by any trade union as the bargaining agent of any employee who was in the bargaining unit proposed in the original application until one year after the original application is dismissed.  2005, c. 15, s. 8. Exception (16) Despite subsection (15), the Board may consider an application for certification by a trade union as the bargaining agent for employees in a bargaining unit that includes an employee who was in the bargaining unit proposed in the original application if, (a) the position of the employee at the time the original application was made was different from his or her position at the time the new application was made; and (b) the employee would not have been in the bargaining unit proposed in the new application had he or she still been occupying the original position when the new application was made.  2005, c. 15, s. 8. Same (17) Subsection (15) does not apply if the trade union whose application was dismissed is a trade union that the Board is prohibited from certifying under section 15.  2005, c. 15, s. 8. Meaning of “trade union” (18) For the purposes of subsections (15) and (16), “trade union” includes any trade union as defined in section 1, whether or not the trade union is a trade union as defined in section 126.  2005, c. 15, s. 8. Non-application of certain provisions (19) Sections 8, 8.1 and 10 do not apply in respect of a certification application that the trade union has elected to have dealt with under this section.  2005, c. 15, s. 8. Determining bargaining unit and number of members (20) Section 128 applies with necessary modifications to determinations made under this section.  2005, c. 15, s. 8. Withdrawal of application: discretionary bar (21) Subsection 7 (9) applies, with necessary modifications, if the trade union withdraws the application for certification, (a) before the Board takes any action under subsection (7), (12) or (13); or (b) after the Board directs a representation vote under subsection (12) or clause (13) (b), but before the vote is taken.  2005, c. 15, s. 8. Second withdrawal: mandatory bar (22) Subsections 7 (9.1), (9.2) and (9.3) apply, with necessary modifications, if the trade union withdraws an application for certification in the circumstances described in subsection (21) and had withdrawn a previous application for certification not more than six months earlier.  2005, c. 15, s. 8. Withdrawal of application after vote taken: mandatory bar (23) Subsections 7 (10), (10.1) and (10.2) apply, with necessary modifications, if the trade union withdraws the application for certification after a representation vote is taken in accordance with the Board’s direction under subsection (12) or clause (13) (b).  2005, c. 15, s. 8. Industrial, commercial and institutional sector (24) If an election under this section is made in relation to an application for certification that relates to the industrial, commercial and institutional sector of the construction industry referred to in the definition of “sector” in section 126, (a) the references to “trade union” in subsections (1), (2), (4), (7), (8), (10) to (14), (17) and (19) to (23) shall be read as references to the trade unions on whose behalf the application for certification was brought; (b) if the Board certifies the trade unions on whose behalf the application for certification was brought as the bargaining agent of the employees in the bargaining unit under clause (13) (a), it shall issue one certificate that is confined to the industrial, commercial and institutional sector and another certificate in relation to all other sectors in the appropriate geographic area or areas; (c) if the Board directs that a representation vote be taken and more than 50 per cent of the ballots cast in the representation vote are cast in favour of the trade unions on whose behalf the application was brought, the Board shall certify the trade unions as the bargaining agent of the employees in the bargaining unit and shall issue one certificate that is confined to the industrial, commercial and institutional sector and another certificate in relation to all other sectors in the appropriate geographic area or areas; and (d) if the Board dismisses the application for certification under clause (14) (e), the Board shall not consider another application for certification by the employee bargaining agency or the affiliated bargaining agent or agents to certify the trade unions as bargaining agent for the employees in the bargaining unit until one year after the dismissal.  2005, c. 15, s. 8. Same (25) For the purposes of subsection (24), the terms “affiliated bargaining agent” and “employee bargaining agency” have the same meanings as in subsection 151 (1).  2005, c. 15, s. 8. Transition (26) This section applies in respect of applications made on or after the day section 8 of the Labour Relations Statute Law Amendment Act, 2005 comes into force.  2005, c. 15, s. 8. Section Amendments with date in force (d/m/y) 2005, c. 15, s. 8
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