D. M. Blair

The applicant union sought certification for a bargaining unit of nurses employed by the respondent foundation.

A dispute arose over whether four part-time nurse examiners working on a national breast screening study were employees of the respondent or the National Cancer Institute of Canada.

Applying the York Condominium indicia of employer status, the Board found that the respondent exercised sufficient control, acted as paymaster, and provided the organizational framework for the nurses' work.

The Board concluded the nurse examiners were employees of the respondent and included them in the bargaining unit, directing that a final certificate issue.

The union filed an unfair labour practice complaint alleging the employer violated the statutory freeze by eliminating part-time switchboard positions and violated the reprisal provisions by discharging an employee who attended an arbitration hearing.

The Board found that the employer violated the section 79 statutory freeze by unilaterally transferring work out of the bargaining unit without an established prior pattern.

However, the Board dismissed the section 80 reprisal complaint, finding the employee was discharged for her disruptive outburst during the arbitration hearing and her poor employment record, rather than for her mere attendance as an observer.

The applicant sought certification as a bargaining agent.

As it had not previously been found to be a trade union, the Board held a hearing on this threshold issue.

The evidence showed that while the applicant had drafted and approved a constitution, it had failed to elect officers in accordance with that constitution, nor had it ratified the officers acclaimed prior to the constitution's adoption.

Applying the five-step test from Associated Hebrew Schools of Toronto, the Board found that the failure to have properly elected or authorized officers meant the applicant was not a trade union within the meaning of section 1(1)(p) of the Labour Relations Act.

The application for certification was dismissed.